Unique Springboro-Clearcreek deals raise legal questions

City attorney says deals are legal and should be considered by more governments.

Agreements between Springboro and Clearcreek Twp. limiting annexation into the city from the township violate the property rights of some land owners, according to a former city lawyer with decades of experience.

Springboro’s law director, however, insists that the agreements are lawful.

“The missing party in all this discussion is the property owner,” said Bill Duning, former Lebanon law director and assistant Cincinnati city attorney, who is critical of the deal. “Where’s the owner’s voice here?”

Duning was responding to questions about the terms of a "coterminous agreement" approved last month by Clearcreek Twp. trustees and Thursday by Springboro City Council.

RELATED: Clearcreek trustees vote 2-1 on latest deal with Springboro

Alan Schaeffer, the Springboro law director, approved of the resolution voted on Thursday night and disagreed with Duning’s point.

Schaeffer, a veteran of decades of real-estate development law, found common ground with Duning on one point: the agreements are unique in Ohio.

“Why isn’t everybody doing it?” Schaeffer asked.

The latest agreement

The new deal, good through 2038, splits in half the general fund inside millage collected by Clearcreek Twp. on property in Springboro. Otherwise, all this tax money would go to the township.

The deal also prevents Springboro from breaking off and forming its own fire department, rather than sharing in use of Clearcreek fire prevention and emergency medical services, funded through a separate levy. Township residents pay no local income tax, unlike city residents.

RELATED: Mayor, long-time trustee primary architects of agreements dating back to 1989

Also, the city agrees to refrain from annexing township land without consent of the trustees and gets $500,000, otherwise going to township coffers, for construction of Kacie Jane Park, a new city park featuring a splash pad.

Property rights ‘foreclosed on’

By limiting annexation, and preventing those to which local leaders are opposed, the governments have foreclosed on affected property owners, Duning said.

The Springboro-Clearcreek deals undermine the rights of property owners who could favor remaining in the township or want to annex into the city - where developers are more likely to be permitted to build more homes per acre, according to Duning.

“That is an opinion that at least deserves a public voice,” he said after being asked to review the various versions of the agreements, in force since 1989 in Springboro and Clearcreek Twp.

“In this case, a deal has been cut which takes out the option of the municipality saying, ‘Yes.’ It’s been foreclosed by agreement,” Duning said.

City not obligated to annex

Schaeffer insisted the agreements preserve property rights.

“Any township property owner can file for annexation into the city anytime they want to, although there are certain requirements that they have meet,” Schaeffer said.

For example, the property must be contiguous, or touching, municipal limits.

“They are not prohibited by this agreement from doing so,” Schaeffer added.

Assuming the annexation is approved by the county government, it is submitted to the city for approval.

“The city doesn’t have to approve it,” Schaeffer said. “There’s no legal obligation.”

The property rights?

“They’re there,” Schaeffer said.

MORE: Warren County approves annexation of 220 acres by South Lebanon

Law favors some annexations

Current law expedites some annexations and limits county-level resistance, but doesn’t require cities to agree, Schaeffer said.

“In all cases, the city has to agree. It is not legally obligated to under the annexation laws or anywhere else,” he said.

In addition, Schaeffer confirmed state law frowns on agreements involving unrelated multiple issues.

But he pointed to the state budget law, under which lawmakers enact a wide range of changes in one legislative act.

“You can lump the subjects together. It will pass muster as one-subject legislation,” he said.

Unique in Ohio

Schaeffer acknowledged there were few such deals in Ohio.

However, he said Springboro should be applauded for partnerships, including those governing development and tax-sharing with Miami Twp., Miamisburg and Montgomery County in the Austin Center area and in Franklin, where Hazel Woods, a Springboro park, is located.

“The amount of intergovernmental cooperation that exists between Springboro and its neighbors is very unique,” he said.

George Pattison, a Clermont County lawyer since the 1970s with expertise in annexation, said, “I’ve never run into one.” He suggested querying the Ohio Municipal League.

The Ohio Municipal League declined to comment on the Springboro-Clearcreek agreements or other local governments in Ohio with anything similar.

Springboro-Clearcreek choosy on annexation

Schaeffer also downplayed Duning’s property-rights argument, claiming governments should balance the rights of the property owners seeking the annexation with others affected by the proposed change.

“Both parties have property rights here,” he said.

RELATED: Trustees reject Oberer farm rezoning for proposed subdivision

Springboro Mayor John Agenbroad said the city recently rejected Oberer Development Group’s inquiry after it was turned down for a planned-unit development in Clearcreek Twp.

“We said we were not going to be aggressively annexing. We have an agreement with the township,” Agenbroad said. “We’ve had a lot of people come through over the years wanting to annex.”

Before supporting annexation, Agenbroad said the city also studies “whether it makes sense.”

For example, will a pumping station be needed to provide sewer service?

“We have a good relationship with the township. I don’t want to spoil that because Oberer couldn’t get his deal with the township,” Agenbroad said.

With three members absent, Springboro City Council voted 4-0 on Thursday to accept the new 20-year deal with Clearcreek Twp.

City Manager Chris Pozzuto said the agreement would result in the first joint park with Clearcreek Twp. and offset “unfairness” in costs to the city due to township youths using city parks for sports programs.

About the Author