The Ohio Supreme Court ruled July 22 that a homeowners association was an affected landowner with standing to challenge a joint board of county commissioners' decision to move ahead with a two-county ditch improvement. In a unanimous opinion, the court affirmed the Tenth District Court of Appeals and held that the appeal should have been heard by a panel of judges drawn from each of the counties the project would touch.
The dispute arose from Cole Ditch, which has its headwaters in Licking County and flows through Licking and Franklin counties before draining into Blacklick Creek. Its watershed spans 1,132 acres and includes 70 parcels in Licking County and 341 parcels in Franklin County. In April 2023, the Jefferson Township Board of Trustees and landowner Julie Dockter petitioned the Franklin County Board of Commissioners to improve the ditch's drainage to alleviate stormwater flooding, and the petition was later amended to add landowner Jack Martin.
Because the project could benefit or damage property in both counties, a joint board of commissioners from Licking and Franklin counties convened to consider it. At the first hearing, the board denied a motion to dismiss filed by the Colt's Neck Homeowners Association, which argued that some of its members had not received notice. An engineer's office representative estimated the improvement would cost $3,228,000, assessed against landowners within the watershed. Although the majority of commenters opposed the project, the joint board found it necessary and conducive to the public welfare and ordered the Franklin County Engineer to prepare reports, plans, and schedules.
Colt's Neck appealed that order to the Licking County Court of Common Pleas and, about two hours later, filed substantively the same appeal in Franklin County. Both trial courts dismissed the appeals. The Fifth District affirmed the Licking County dismissal, reasoning that no multi-county judicial panel was required, that there was no right to appeal an order issued after a first hearing, and that the matter was not ripe. The Tenth District reached the opposite conclusion, reversing the Franklin County dismissal, and the two appellate decisions were certified as in conflict.
Chief Justice Sharon L. Kennedy, writing for the court, framed the case around three questions: whether a two-judge panel was required, whether an order issued after a first hearing may be appealed, and whether opponents of a petition are affected landowners with standing. "The answer to each question is yes," she wrote.
On the panel requirement, the court pointed to R.C. 6133.10(A), which directs that any appeal not involving compensation or damages be "heard by a panel of judges consisting of one judge of the court of common pleas from each of the affected counties." The court called that language "plain and unambiguous." Although Colt's Neck had demanded damages in excess of $25,000 in its notice of appeal, the court explained that the statute's damages provision concerns "compensation for land taken or for damages to land," claims resolved at a later final hearing. Because the joint board's order merely directed the engineer to proceed, no such claim was before it.
The court also rejected the argument that no appeal lies from an order issued after a first hearing. R.C. 6131.25(A) allows any affected owner to appeal "any order" issued by a joint board within 30 days, and the court traced legislative history showing that the General Assembly removed a former final-order requirement in 1981. "The General Assembly plainly meant what it said when it provided for an appeal from any order of a joint board of county commissioners," Kennedy wrote.
Turning to standing, the court held that Colt's Neck qualified as an "affected owner" because its land would be impacted by the proposed changes to the ditch, and because it alleged its procedural rights had been violated at the first hearing. The definition of owner in R.C. 6131.01(A) expressly reaches associations, and R.C. 6133.03(D) extends single-county appeal rights to joint-county projects.
The court separately addressed the jurisdictional-priority rule, which it had asked the parties to brief because Colt's Neck first perfected its appeal in Licking County. The court clarified that the rule relates to a court's exercise of jurisdiction rather than its subject-matter jurisdiction, so any error rendered the resulting judgments voidable, not void. Because no party objected to the Franklin County proceedings going forward, the court held any such error had been forfeited.
The ruling gives Ohio landowners who oppose multi-county drainage petitions a clear route to challenge a board's decision to proceed, and it settles a procedural gap for practitioners: because the statutes do not specify where such an appeal must be filed, the court held that an affected landowner may file in any county where the improvement will occur. "It is ultimately up to the General Assembly to clarify the appellate process," Kennedy wrote, until the legislature acts. The court affirmed the Tenth District and remanded the case to the Franklin County Court of Common Pleas to convene a two-judge panel drawn from Licking and Franklin counties.