Coventry Twp. v. Ecker, 16807

• Citation: 654 N.E.2d 1327,101 Ohio App.3d 38
• Decision Date: 08 February 1995
• Docket Number: No. 16807,16807
• Parties: COVENTRY TOWNSHIP et al., Appellees, v. ECKER, Appellant.
• Court: United States Court of Appeals (Ohio)

Page 38

101 Ohio App.3d 38

654 N.E.2d 1327

COVENTRY TOWNSHIP et al., Appellees, v. ECKER, Appellant.

No. 16807.

Court of Appeals of Ohio,

Ninth District, Summit County.

Decided Feb. 8, 1995.

Irving Sugarman, Akron, for appellees.

Richard Schnars, Uniontown, for appellant.

REECE, Presiding Judge.

Defendant-appellant, Jeffrey L. Ecker, appeals from the trial court's entry of summary judgment in favor of the plaintiff-appellee, Coventry Township, on the township's complaint for declaratory judgment and injunctive relief. We affirm.

Ecker is an independent trucking contractor who owns a flatbed semitractor-trailer. Ecker admits that when he is not using his semi, he parks the truck in the driveway of his Coventry Township residence at 140 Swartz Road. Ecker also admits that he uses his Coventry Township residence as the sole place for conducting his trucking business. Finally, it is undisputed that Ecker's residence is located in area zoned by Coventry Township as an R-3 residential zone and that the operation of a trucking business and the overnight parking of a semi are not permitted in an R-3 residential zone.

Based on Ecker's trucking-related activity, Coventry Township brought this action seeking an order declaring that Ecker was in violation of the township's zoning regulations and an order enjoining Ecker from continuing to violate those regulations. After the pleadings were filed, Coventry Township moved for summary judgment, and Ecker responded in opposition. The trial court granted the township summary judgment, finding that the township's zoning regulations were a reasonable exercise of its police power and were not inconsistent with the authority of the Public Utilities Commission of Ohio ("PUCO") to regulate motor transportation companies. Ecker appeals, raising two assignments of error.

Of central importance to this appeal is the organization of Ecker's trucking business. Ecker conducts his business as an independent contractor. However, Ecker obtains hauling jobs by leasing his truck and driving services to Vanguard Transportation Systems of Westchester, Ohio. Vanguard, in turn, has a sublease agreement in which Vanguard subleases the trucks under its control, including Ecker's, to the O.K. Trucking Company of Cincinnati, Ohio.

Although Ecker's trucking business is a motor transportation company regulated by the PUCO, Ecker has not been issued a Certificate of Public Convenience and Necessity by the PUCO to operate over Ohio routes. Ecker, however, is legally permitted to operate over Ohio routes via his lease relationship with O.K Trucking, which has been issued a Certificate of Public Convenience and Necessity.

In his second assignment of error, Ecker contends that the trial court erred in entering a final judgment because issues of fact remain as to whether his PUCO-regulated trucking business is a public utility exempt from township zoning pursuant to R.C. 519.211(A).

R.C. 519.211(A) expressly exempts public utilities from township zoning regulations and land use controls. A & B Refuse Disposers, Inc. v. Ravenna Twp. Bd. of Trustees (1992), 64 Ohio St.3d 385, 387, 596 N.E.2d 423, 425. We do not dispute that Ecker's trucking business meets the definition of a "motor transportation company" as set forth in R.C. Title 49. See R.C. 4921.02. We also acknowledge that for purposes of PUCO regulation, a motor transportation company is a public utility. See R.C. 4905.02 and 4905.03. However, this court has repeatedly held that even though an entity is considered a public utility for purposes of PUCO regulation under R.C. Chapter 4905, that designation does not make it a public utility in fact for purposes of the zoning exemption in R.C. 519.211(A). McGinnis v. Quest Microwave VII, Inc. (1985), 24 Ohio App.3d 220, 221, 24 OBR 398, 399, 494 N.E.2d 1150, 1151-1152; Freight, Inc. v. Northfield Ctr. Bd. of Twp. Trustees (1958), 107 Ohio App. 288, 290, 8 O.O.2d 212, 213-214, 158 N.E.2d 537, 539. The issue in this appeal then is whether Ecker's trucking business constitutes a public utility in fact for purposes of the R.C. 519.211(A) zoning exemption.

Ecker initially argues the parties stipulated that the issue of whether his trucking business is a public utility was to be decided at trial because it is an issue of fact that cannot be determined through summary judgment. Contrary to Ecker's argument, however, the determination of whether an entity is a public utility under R.C. 519.211(A) is not a pure question of fact. Instead, that determination is a mixed question of law and fact. Marano v. Gibbs (1989), 45 Ohio St.3d 310, 311, 544 N.E.2d 635, 636. As a mixed question of law and fact, an entity's public utility status can be determined through summary judgment as a matter of law if the facts are such that reasonable minds could come to but one conclusion and that conclusion is adverse to the party opposing summary judgment.

Ecker next argues that the trial court did not specifically address the public utility exemption issue in granting summary judgment. Although we agree with Ecker that the trial court did not directly address the public utility issue in its judgment entry, it is a basic rule of appellate review that a lower court's entry of summary judgment is reviewed de novo. McKay v. Cutlip (1992), 80 Ohio App.3d 487, 491, 609 N.E.2d 1272, 1274-1275. As a result, this court applies the same summary judgment standard as the trial court and must affirm the trial court's judgment if any valid grounds are found on appeal to support it, even if the trial court failed to consider those grounds. Id. The question that remains, therefore, is whether any valid grounds support a finding that, as a matter of law, Ecker's trucking business is not a public utility exempt from township zoning under R.C. 519.211(A).

Two Ohio appellate districts have dealt directly with this question. In Hill v. Russell (Jan. 6, 1987), Licking App. No. CA-3198, unreported, 1987 WL 5763, Russell owned several semis that he would regularly park, store, and repair on his residentially zoned property in Monroe Township. Russell leased his trucks to a motor transportation company operating under the authority of the PUCO. The township brought a zoning violation action against Russell to stop him from conducting trucking activity at his residence. Both parties moved for summary judgment. The trial court granted the township summary judgment, finding that Russell was not made a public utility, exempt from township zoning, by the mere fact that he leased his trucks to a company holding PUCO authority.

On appeal, the Fifth District Court of Appeals affirmed. The court found that:

"[T]he statute in question [R.C. 519.211(A) ] only provides an exemption from zoning to the public utility. The exemption does not run to a party who is a lessor to a company holding I.C.C. or P.U.C.O. authority. * * * [Russell] should not be permitted to bootstrap himself into the protection of the instant exemption by merely agreeing with a trucking company that he will use, store, and repair leased trucks on his property."

In Whitten v. Munson Twp. Bd. of Trustees (June 11, 1993), Geauga App. No. 92-G-1725, unreported, 1993 WL 418474, the Whittens were cited for parking and storing on their residential property a truck exceeding the weight and length limitations contained in Munson Township's zoning regulations. The Whittens were leasing the truck to Roberts Express, a motor transportation company...