State ex rel. Ohio Edison Co. v. Parrott

• Decision Date: 10 August 1995
• Docket Number: No. 95-787,95-787
• Parties: , Util. L. Rep. P 26,494 The STATE ex rel. OHIO EDISON COMPANY v. PARROTT, Judge.
• Court: Ohio Supreme Court

Page 705

73 Ohio St.3d 705

654 N.E.2d 106, Util. L. Rep. P 26,494

The STATE ex rel. OHIO EDISON COMPANY v. PARROTT, Judge.

No. 95-787.

Supreme Court of Ohio.

Submitted July 12, 1995.

Decided Aug. 10, 1995.

On July 10, 1992, relator, Ohio Edison Company, and the Dayton Power & Light Company ("DP&L"), filed a joint application with the Ohio Power Siting Board ("board") to construct and operate a twenty-seven-mile 138 kV transmission line in Logan and Union Counties. Prior to filing the application, relator, through an engineering firm, notified Union County of relator's intention to construct the proposed transmission line. The preferred route for the proposed transmission line paralleled portions of County Road Nos. 286 and 311 within Union County. The Union County Engineer responded that the county planned to widen County Road Nos. 286 and 311 within five to eight years, and that if the transmission line was constructed at least thirty-five feet from the centerline of each road it would not affect the road-widening project. On April 28, 1992, relator's engineering firm indicated to the county engineer that relator and DP&L could take the county's plan into consideration once a route had been finalized, but that more complete information would be forthcoming in the application before the board.

On September 25, 1992, relator and DP&L filed proofs of service for the joint application with the board. The county and county engineer were each served with a copy of the application. The application proposed an easement extending thirty-two feet from the roadway centerline and a construction centerline of twenty-two feet, two feet outside the county's existing roadway right-of-way, but thirteen feet less than that requested by the county engineer.

On October 9, 1992, the board issued an entry stating that the application had been accepted for filing. The entry also scheduled a local public hearing and an adjudicatory hearing at the offices of the Public Utilities Commission for early January 1993. Relator published notices of the application in newspapers of local and regional circulation. On January 25, 1993, the board approved the application and entered its Opinion, Order and Certificate issuing the Certificate of Environmental Compatibility and Public Need to permit construction, operation, and maintenance of the transmission line.

County representatives did not attend the public hearing on January 6, 1993. They did not intervene or otherwise participate in the adjudicatory hearing on January 7, 1993. Nor did they seek rehearing of the board's order.

Following the application's approval, relator purchased the necessary easements from landowners along the now-approved transmission-line route, including easements along portions of County Road Nos. 286 and 311. The easements were consistent in size with the application. Beginning in March 1995, relator started clearing the easements along County Road No. 286 to begin construction of the transmission line.

In mid-March 1995, relator began installing poles along County Road No. 286. These poles are within relator's thirty-two-foot easement, but outside the county's twenty-foot roadway right-of-way. The location of the poles, twenty-two feet from the centerline of County Road No. 286, is consistent with the application and the board's order.

On March 30, 1995, the county engineer contacted relator expressing concern that the poles were too close to County Road No. 286. On April 11, 1995, relator responded that it had approached each landowner about the possibility of locating the poles further into their fields, to accommodate the county's road widening plans, but that every landowner insisted that all poles be located at the edge of his property because of the adverse effects on their farming operations. This resulted in the construction centerline of twenty-two feet south of the centerline of County Road No. 286.

Two days later, the Union County Prosecuting Attorney sent relator a letter alleging that relator's activities were "unconscionable" and would require the county to incur unreasonable and unnecessary cost and expense to relocate the poles if the county widened County Road Nos. 286 and 311. On April 14, 1995, the county filed suit against relator and DP&L in Union County Common Pleas Court case No. 95-CV-0055, and sought and received a temporary restraining order from respondent, Judge Richard E. Parrott, restraining relator from continuing with the installation of transmission line poles along County Road Nos. 286 and 311.

On April 20, 1995, relator brought this action seeking a writ of prohibition directing respondent to cease and desist from the exercise of jurisdiction in case No. 95-CV-0055, vacating the temporary restraining order entered in that case, and ordering respondent to cease any further action regarding this matter.

Roetzel & Andress, Stephen D. Jones and E. Joel Wesp, Columbus, for relator.

R. Larry Schneider, Union County Pros. Atty., for respondent.

Betty D. Montgomery, Atty. Gen., Duane W. Luckey and William L. Wright, Asst. Attys. Gen., urging issuance of the writ, for amicus curiae, Ohio Power Siting Bd.

PER CURIAM.

Because we find that we have exclusive jurisdiction to enjoin orders of the Ohio Power Siting Board, we grant relator's application for a writ of prohibition and vacate the order enjoining construction of the transmission line in case No. 95-CV-0055.

To obtain a writ of prohibition, a relator must show (1) that the court against whom the writ is sought is exercising or about to exercise judicial power, (2) that the exercise of power is unauthorized by law, and (3) that denying the writ will result in injury for which no other adequate remedy exists in the ordinary course of law. State ex rel. Koren v. Grogan (1994), 68 Ohio St.3d 590, 592, 629 N.E.2d 446, 448; State ex rel. Enyart v. O'Neill (1995), 71 Ohio St.3d 655, 656, 646 N.E.2d 1110, 1112. However, where there is a patent and unambiguous lack of subject matter jurisdiction in the court exercising judicial authority, it is not necessary to establish that the relator has no adequate remedy at law in order for a writ to issue. State ex rel. Enyart v. O'Neill, supra, 71 Ohio St.3d at 656, 646 N.E.2d at 1112; State ex rel. Tilford v. Crush (1988), 39 Ohio St.3d 174, 176, 529 N.E.2d 1245, 1247.

Respondent acknowledges that it exercised judicial power when it entered the order enjoining construction of the transmission line in case No. 95-CV-0055. See State ex rel. N. Ohio Tel. Co. v. Winter (1970), 23 Ohio St.2d 6, 52 O.O.2d 29, 260 N.E.2d 827. Thus, the first prong of the test has been met in this case.

In R.C. Chapter 4906, the General Assembly created a comprehensive scheme addressing the process for applying for and granting certificates to construct a major transmission line, such as the one at issue here. That scheme expresses the General Assembly's intention that such powers are vested exclusively in the board. See, e.g., Chester Twp. v. Power Siting Comm. (1977), 49 Ohio St.2d 231, 3 O.O.3d 367, 361 N.E.2d 436. Accord Kazmaier Supermarket, Inc. v. Toledo Edison Co. (1991), 61 Ohio St.3d 147, 152-153, 573 N.E.2d 655, 659.

Pursuant to R.C. Chapter 4906, questions involving approval and placement of certain large transmission lines are solely within the board's domain. Significantly, power siting projects are exempt from local regulation. R.C. 4906.13. Further, no transmission line with a capacity of one hundred twenty-five kilovolts or more may be constructed in Ohio without first obtaining a certificate of environmental compatibility and public need issued by the board. R.C. 4906.01(B)(2) and (D), 4906.04, and 4906.98. All interested parties may intervene in these proceedings upon a showing of good cause. Ohio Adm.Code 4906-7-04(A) and (B).

Consistent with this comprehensive scheme, we have exclusive jurisdiction to suspend or...