In re City of Reynoldsburg, 2011-1274
| Decision Date | 15 November 2012 |
| Docket Number | No. 2011-1274,2011-1274 |
| Citation | 2012 Ohio 5270 |
| Parties | IN RE COMPLAINT OF CITY OF REYNOLDSBURG, OHIO, APPELLANT; COLUMBUS SOUTHERN POWER COMPANY, INTERVENING APPELLEE; PUBLIC UTILITIES COMMISSION OF OHIO, APPELLEE. |
| Court | Ohio Supreme Court |
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
Slip Opinion No. 2012-Ohio-5270.]
Public utilities—Municipal home rule—Ohio Constitution, Article XVIII, Section
3—Electric company's tariff prevails over ordinance requiring company
to pay costs of relocating electric lines underground.
APPEAL from the Public Utilities Commission of Ohio, No. 08-0846-EL-CSS.
{¶ 1} The city of Reynoldsburg is a municipal corporation governed by a charter. Intervening appellee, Columbus Southern Power Company ("CSP"), is apublic utility under R.C. 4905.02 and provides electric power to Reynoldsburg and its residents.
{¶ 2} The issue in this case is whether Reynoldsburg or CSP bears the cost to relocate overhead power lines underground. Specifically, Reynoldsburg seeks a ruling that its right-of-way ordinance requiring all overhead power lines to be relocated underground takes precedence over CSP's commission-approved tariff in this particular aspect. Reynoldsburg City Code 907.06(A)(4) requires any public utility to relocate its facilities located within the city's public rights of way underground at the "sole cost" of the public utility if the city's public-service director determines that the relocation is reasonable and part of a local improvement project. In contrast, Section 17 of CSP's tariff provides that municipalities shall pay the costs whenever they require CSP to relocate overhead electrical distribution lines underground.
{¶ 3} Reynoldsburg filed a complaint with the Public Utilities Commission pursuant to R.C. 4905.26, contending that its ordinance superseded CSP's tariff and that the tariff was unjust, unreasonable, and unlawful. The commission found in favor of CSP.
{¶ 4} Reynoldsburg appealed that decision to this court, raising six propositions of law. After review, we affirm the commission's orders.
{¶ 5} In 1992, the commission approved a tariff as part of CSP's last general rate case. Section 17 of CSP's tariff provides that municipalities and other public authorities must pay the cost of requiring CSP to relocate overhead electric distribution lines underground. See In re Application of Columbus S. Power Co. for Authority to Amend Its Filed Tariffs to Increase Rates & Charges for Elect. Serv., Pub. Util. Comm. No. 91-418-EL-AIR (May 12, 1992).
{¶ 6} On April 24, 2000, the Reynoldsburg City Council passed an ordinance granting a five-year nonexclusive franchise to CSP to construct,maintain, and operate lines for distribution and transmission of electricity in, over, under, and through the streets, avenues, alleys, and public places of the city. The franchise agreement expired on April 24, 2005, but CSP continued to operate its facilities in the city's rights of way.
{¶ 7} In the early 2000s, Reynoldsburg began a comprehensive project to revitalize its commercial corridors. The project was known as the Reynoldsburg Major Commercial Corridors Revitalization Project or "Main Street Project." The city's project plans included the building of an underground utility duct and the relocation of overhead utility lines into the underground duct. The first phase of the Main Street Project began in 2003. Phase II of the project began in 2005.
{¶ 8} In October 2004, the city applied for a community-development grant from Franklin County in conjunction with Phase II of the project. The application represented that the existing overhead electric lines in the right of way would be removed and placed underground.
{¶ 9} On May 9, 2005, two weeks after the expiration of CSP's right-of-way franchise, the Reynoldsburg City Council passed an ordinance "To Enact a Comprehensive Right of Way Management Policy." Reynoldsburg City Code 907.06(A)(4), enacted by the ordinance, authorized the city's public-service director to designate portions of the city's right of way as being suitable for underground utility facilities and to require any utility that had facilities located within the city's public rights of way to relocate those facilities underground at the utility's "sole cost." Reynoldsburg City Code, Section 907.06(A)(4).
{¶ 10} On July 8, 2005, Reynoldsburg Public Service Director Sharon L. Reichard notified CSP by letter that the city intended to begin construction of Phase II of the Main Street Project. Reichard, citing her authority under the right-of-way ordinance, ordered CSP to relocate its "facilities within the public right of way of the Project into the underground duct bank." According to that letter, the city designated that the portion of the public right of way within the constructionproject would "accommodate only utility facilities located underground." Relying on its approved tariff, CSP refused to pay the relocation costs and informed Reynoldsburg that the city bore responsibility for the cost of burying the overhead lines.
{¶ 11} On November 1, 2005, Reynoldsburg entered into a letter agreement with CSP in order not to delay the Main Street Project. Pursuant to the agreement, Reynoldsburg agreed to conditionally pay the estimated cost for CSP to move the lines underground—in an amount not to exceed $1,185,535—and CSP agreed to relocate its facilities. The parties further agreed that the dispute over the ultimate liability for the costs would be resolved in an appropriate forum.
{¶ 12} In July 2006, Reynoldsburg filed a complaint for a declaratory judgment in the Franklin County Court of Common Pleas. Case No. 06-CVH-07-8792. Reynoldsburg sought a declaration that CSP had a legal obligation to relocate its overhead lines at its sole cost and that Reynoldsburg was entitled to reimbursement of its costs in accordance with the parties' agreement. CSP moved to dismiss for lack of subject-matter jurisdiction, contending that the Public Utilities Commission had exclusive jurisdiction over the matter. The trial court denied CSP's motion. See State ex rel. Columbus S. Power Co. v. Fais, 117 Ohio St.3d 340, 2008-Ohio-849, 884 N.E.2d 1, ¶ 11-12.
{¶ 13} CSP then sought a writ of prohibition in this court to prevent the trial court from proceeding on the declaratory-judgment action. We granted a writ of prohibition, finding that the common pleas court lacked jurisdiction and that the commission had exclusive, original jurisdiction over the matter.
{¶ 14} In July 2008, Reynoldsburg filed a complaint with the commission pursuant to R.C. 4905.26, alleging that CSP's tariff was unjust, unreasonable, discriminatory, and/or unlawful. Specifically, the city alleged that (1) the tariff did not apply to Reynoldsburg, (2) the city's right-of-way ordinance supersededthe tariff, and (3) the tariff violated Article XVIII, Sections 3 and 4 of the Ohio Constitution.
{¶ 15} On April 5, 2011, the commission issued its order denying Reynoldsburg's complaint. The commission found that (1) CSP's tariff applied to Reynoldsburg under the facts of the case, (2) under the tariff, the city is responsible for the entire cost of relocating the electric lines, and (3) the tariff is just and reasonable in that it helps to ensure that CSP and its ratepayers do not incur the expense of relocating facilities underground upon the request of a municipality and is consistent with the principle that the cost-causer be the cost-payer. Opinion and order, at 14-15. The commission did not render any ruling with respect to Reynoldsburg's constitutional claims. Id. at 18, 23.
{¶ 16} Reynoldsburg timely filed an application for rehearing, which the commission denied.
{¶ 17} Reynoldsburg now appeals to this court.
{¶ 18} "R.C. 4903.13 provides that a PUCO order shall be reversed, vacated, or modified by this court only when, upon consideration of the record, the court finds the order to be unlawful or unreasonable." Constellation NewEnergy, Inc. v. Pub. Util. Comm., 104 Ohio St.3d 530, 2004-Ohio-6767, 820 N.E.2d 885, ¶ 50. We will not reverse or modify a PUCO decision as to questions of fact if the record contains sufficient probative evidence to show that the commission's decision was not manifestly against the weight of the evidence and was not so clearly unsupported by the record as to show misapprehension, mistake, or willful disregard of duty. Monongahela Power Co. v. Pub. Util. Comm., 104 Ohio St.3d 571, 2004-Ohio-6896, 820 N.E.2d 921, ¶ 29. The appellant bears the burden of demonstrating that the PUCO's decision is against the manifest weight of the evidence or is clearly unsupported by the record. Id.
{¶ 19} Although this court has "complete and independent power of review as to all questions of law" in appeals from the PUCO, Ohio Edison Co. v. Pub. Util. Comm., 78 Ohio St.3d 466, 469, 678 N.E.2d 922 (1997), we may rely on the expertise of a state agency in interpreting a law where "highly specialized issues" are involved and "where agency expertise would, therefore, be of assistance in discerning the presumed intent of our General Assembly." Consumers' Counsel v. Pub. Util. Comm., 58 Ohio St.2d 108, 110, 388 N.E.2d 1370 (1979).
{¶ 20} Reynoldsburg challenges CSP's tariff on the grounds that it is unjust, unreasonable, and unlawful. Section 17 of the tariff provides that if a municipality requires overhead distribution lines to be relocated underground, the municipality is required to...
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