One Energy Enters., LLC v. Ohio Dep't of Transp.

• Decision Date: 05 February 2019
• Docket Number: No. 17AP-829,17AP-829
• Parties: One Energy Enterprises, LLC et al., Plaintiffs-Appellants, v. Ohio Department of Transportation, Defendant-Appellee.
• Court: Ohio Court of Appeals

2019 Ohio 359

One Energy Enterprises, LLC et al., Plaintiffs-Appellants, v. Ohio Department of Transportation, Defendant-Appellee.

No. 17AP-829

COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT

February 5, 2019

(C.P.C. No. 17CV-5513)

(REGULAR CALENDAR)

DECISION

On brief: Zeiger, Tigges & Little LLP, Marion H. Little, Jr., and Christopher J. Hogan, for appellants. Argued: Marion H. Little, Jr.

On brief: Dave Yost, Attorney General, William J. Cole, and Eric M. Hopkins, for appellee. Argued: William J. Cole.

APPEAL from the Franklin County Court of Common Pleas

BROWN, J.

{¶ 1} Plaintiffs-appellants, One Energy Enterprises, LLC ("One Energy") and OEE XXV, LLC ("OEE" collectively "appellants"), appeal from a judgment of the Franklin County Court of Common Pleas granting the Civ.R. 12(B)(6) motion to dismiss of defendant-appellee, Ohio Department of Transportation ("ODOT"). For the reasons that follow, we affirm in part and reverse in part.

{¶ 2} One Energy is a company engaged in the business of constructing large scale wind turbines for industrial customers. OEE is a wholly owned subsidiary of One Energy. OEE currently has a contract to construct and operate two wind turbines for an industrial facility located in Findlay, Ohio (the "Findlay Project"). One Energy has banking and financing relationships tied to the Findlay Project.

{¶ 3} ODOT is the state agency tasked with administering the Ohio Airport Protection Act ("OAPA"), contained in R.C. 4561.30 to 4561.39. The OAPA requires ODOT consider "applications for and issu[e] and/or deny[] permits" to "tall structures that fall within certain defined surfaces or planes that extend out from airports in Ohio." (Compl. at ¶ 9.)

{¶ 4} On June 20, 2017, appellants filed a complaint against ODOT asserting claims for injunctive and declaratory relief. Appellants asserted the OAPA limited ODOT's regulatory authority to structures that penetrate at least one of the surfaces identified in R.C. 4561.31(A). R.C. 4561.31(A) prohibits any person from commencing to install, or from substantially changing, "any structure or object of natural growth in this state, any part of which will penetrate or is reasonably expected to penetrate into or through any airport's clear zone surface, horizontal surface, conical surface, primary surface, approach surface, or transitional surface without first obtaining a permit." R.C. 4561.31(A)(1) and (2). The six surfaces identified in R.C. 4561.31(A), and elsewhere in the OAPA, will be referred to herein as the ("Imaginary Surfaces"). Whoever violates R.C. 4561.31(A)(1) or (2) "is guilty of a misdemeanor of the third degree," and "[e]ach day of violation constitutes a separate offense." R.C. 4561.31(G)(1).

{¶ 5} Appellants additionally asserted R.C. 4561.32 limited ODOT's rule-making authority under the OAPA to the Imaginary Surfaces. R.C. 4561.32 provides ODOT "shall adopt" rules necessary to administer the OAPA, "based in whole upon the obstruction standards set forth in 14 C.F.R. 77.21 to 77.29, as amended, to uniformly regulate the height and location of structures and objects of natural growth in any airport's clear zone surface, horizontal surface, conical surface, primary surface, approach surface, or transitional surface." R.C. 4561.32(A). See also Ohio Adm.Code 5501:1-10-02(C) (stating the "imaginary surfaces around an airport, including clear zone surface, horizontal surface, conical surface, primary surface, approach surface, and transitional surfaces," are "defined by the federal aviation administration (FAA) regulations, as amended").

{¶ 6} In their complaint, appellants alleged that consistent "with the express statutory language" of the OAPA, "no permit application need be filed with ODOT - and ODOT lacks jurisdiction over - any structure that will not and/or is not reasonably expected to penetrate one of the Imaginary Surfaces." (Emphasis sic.) (Compl. at ¶ 22.) Appellants explained the Findlay Project, which will stand approximately 405 feet above ground level and be located a little beyond four miles from the Findlay Airport, will not penetrate any of the Imaginary Surfaces. (See compl. at ¶ 16.) As such, appellants alleged the Findlay Project was beyond the reach of ODOT's regulatory jurisdiction under the OAPA.

{¶ 7} However, appellants admitted the Findlay Project would constitute an obstruction to air navigation under the applicable federal regulations. The Federal Aviation Administration ("FAA") regulates matters of air navigation and safety within the national airspace. 14 C.F.R. 77 contains the federal regulations applicable to tall structures which penetrate the national airspace. A party must submit notice to the FAA for "[a]ny construction or alteration that is more than 200 ft." above ground level. 14 C.F.R. 77.9(a). Appellants submitted notice of the Findlay Project to the FAA.

{¶ 8} 14 C.F.R. 77.17 identifies objects which constitute obstructions to air navigation. Any object with a height greater than 499 feet above ground level is considered an obstruction to air navigation under 14 C.F.R. 77.17(a)(1). Any object with a height of 200 feet above ground level which is located "within 3 nautical miles of the established reference point of an airport, * * * and that height increases in the proportion of 100 feet for each additional nautical mile from the airport up to a maximum of 499 feet," is considered an obstruction to air navigation under 14 C.F.R. 77.17(a)(2). The Findlay Project's height and location render it an obstruction to air navigation under 14 C.F.R. 77.17(a)(2).

{¶ 9} Additionally, an object with a height greater than any of the imaginary surfaces described in 14 C.F.R. 77.19 or 77.21 is considered an obstruction to air navigation under 14 C.F.R. 77.17(a)(5). 14 C.F.R. 77.19 identifies the imaginary surfaces which surround civil airports, including the horizontal surface, conical surface, primary surface, approach surface, and transitional surface. 14 C.F.R. 77.21 identifies the imaginary surfaces which surround military airports, including the inner horizontal surface, outer horizontal surface, conical surface, primary surface, approach clearance surface, transitional surface, and clear zone surface. Each surface identified in 14 C.F.R. 77.19 and 77.21 is defined by a precise geometric description.

{¶ 10} If a proposed structure will constitute an obstruction to air navigation, and an aeronautical study concludes that the structure "would have a substantial aeronautical impact," the "FAA will issue a Determination of Hazard to Air Navigation." 14 C.F.R. 77.31(c). If a proposed structure will constitute an obstruction to air navigation, but an aeronautical study concludes the proposed structure "would not have a substantial aeronautical impact to air navigation," the FAA will issue a "Determination of No Hazard to Air Navigation." 14 C.F.R. 77.31(d). Appellants explained that the receipt of a "No Hazard" determination from the FAA on the Findlay Project, or any similar project, was a necessary prerequisite to appellants' "ability to fulfill their contracts and financing arrangements to construct and operate the same." (Compl. at ¶ 17.) The FAA issued the desired "No Hazard" determination to the Findlay Project. (Compl. at ¶ 33.)

{¶ 11} Appellants asserted ODOT had taken the official position that its regulatory jurisdiction under the OAPA extended beyond the Imaginary Surfaces to "other 'obstructions,' including the Section 77.17(a)(1) & (a)(2) Obstruction Standards." (Compl. at ¶ 24.) Appellants explained ODOT had expressed its official position through the testimony of two ODOT office of aviation officials,¹ John Stains, an office of aviation employee, and James Bryant, the administrator of the office of aviation. The testimony occurred in an administrative hearing in In re One Energy, LLC v. Ohio Dept. of Transp., 2016-DOT-647-OE, 2016-DOT-4888-OE, which concerned ODOT's denial of permits for certain wind turbines located in Putnam County (the "Putnam County Project").² The Putnam County Project is "distinct from [and has] nothing to do" with the turbines at issue in the Findlay Project. (Compl. at ¶ 7.)

{¶ 12} During the administrative hearing, Stains and Bryant testified about proposed amendments to the OAPA contained in 2017 Sub.H.B. No. 49 ("H.B. 49").³ Appellants attached excerpts from the hearing transcript to their complaint as Exhibit A, and attached the H.B. 49 proposed amendments to the OAPA to their complaint as ExhibitB. H.B. 49 sought to amend R.C. 4561.31(A) by replacing the reference to the Imaginary Surfaces with the term "navigable airspace." (Compl. Ex. B.) "Navigable airspace" would be defined in R.C. 4561.01(L) as the "imaginary surfaces around an airport as specified in 14 C.F.R. part 77, as amended." (Compl. Ex. B.)

{¶ 13} Stains explained during the hearing that H.B. 49 "clarifie[d] the Department's position that we are required to enforce Part 77 as a whole." (Compl. Ex. A, Hearing Tr. at 102.) Stains noted that, although it was the office of aviation's "position that the current language [of the OAPA] already [said] that" ODOT had the authority to enforce all of 14 C.F.R. 77, H.B. 49 "clarifie[d] that." (Compl. Ex. A, Hearing Tr. at 102.) Bryant stated that "the end result" of H.B. 49 would be "to state that the Department has the ability to regulate and exercise jurisdiction over all Part 77 airspace irrespective of whether it's one of these six imaginary surfaces or not." (Compl. Ex. A, Hearing Tr. at 184.) In response to a question asking whether, under the current version of the OAPA, the Imaginary Surfaces were the surfaces a structure could not "penetrate into without the State providing some form of permit," Bryant testified as follows:

No, not really. There is six surfaces, and there's an additional surface which we felt that we had jurisdiction to also administer that we didn't feel that the Ohio Revised Code when it was prepared in 1991 or '92 adequately explained

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