Toledo Edison Co. v. Bd. of Defiance Cnty. Comm'rs
| Decision Date | 09 December 2013 |
| Docket Number | No. 4–13–04.,4–13–04. |
| Citation | 4 N.E.3d 458 |
| Parties | The TOLEDO EDISON COMPANY, Plaintiff–Appellee, v. BOARD OF DEFIANCE COUNTY COMMISSIONERS, et al., Defendants–Appellants. |
| Court | Ohio Court of Appeals |
OPINION TEXT STARTS HERE
Frank J. Reed, Jr., Columbus, and Brian W. Fox, West Chester, for Appellants, Defiance County Commissioners.
Frederick A. Vierow, Amicus Curiae County Engineers, Association of Ohio.
Emily Ciecka Wilcheck, Toledo, for Appellee, Toledo Edison Company.
{¶ 1} Defendants-appellants, Board of Defiance County Commissioners and Defiance County Commissioners James E. Harris, Jr., Thomas L. Kime, and Otto Nicely (hereinafter collectively “commissioners”), appeal the Defiance County Court of Common Pleas' decision vacating Resolution No. 12–01–058 ordering plaintiff-appellee,The Toledo Edison Company (“Toledo Edison”), to remove and relocate several of its utility poles located within the county-owned rights-of-way 1 along Harding and Bend Roads in Defiance County, Ohio pursuant to R.C. 5547.03. For the reasons that follow, we reverse.
{¶ 2} In 2005, the commissioners widened Bend Road from State Route 15 to the Defiance and Williams County line. Toledo Edison owns 38 utility poles at this location—the closest is four feet from the edge of the pavement and the furthest is eleven feet, four inches from the edge of the pavement. (Ex. B). 2 In 2007, the commissioners widened Harding Road between Watson Road and the Defiance City limits. Toledo Edison owns 22 utility poles at this location—the closest is six feet, two inches from the edge of the pavement and the furthest is fifteen feet, six inches from the edge of the pavement. ( Id.). For spring 2012, the commissioners planned a bridge replacement project on Bend Road north of Mud Creek, affecting 10 of Toledo Edison's utility poles—the closest is four feet, nine inches from the edge of the pavement and the furthest is ten feet, two inches from the edge of the pavement. ( Id.).3
{¶ 3} The commissioners requested that Toledo Edison relocate its utility poles further away from the edge of the roadway for safety and snow removal, but Toledo Edison refused. ( Id.). Other companies affected by the roadway improvements, including AEP, Northwest Electric, and Embarq, complied with the commissioners' request to move their utility poles and lines. (Ex. A). Toledo Edison, on the other hand, claimed that its utility poles were “not obstructions and * * * [did] not interfere or conflict with the improved highway,” relying on Turner v. Ohio Bell Tel. Co., 118 Ohio St.3d 215, 2008-Ohio-2010, 887 N.E.2d 1158. ( Id.).
{¶ 4} On December 15, 2011, the commissioners notified Toledo Edison by certified mail that they would hold a hearing on January 23, 2012 to determine whether to order it to remove its utility poles pursuant to R.C. 5547.03 and 5547.04. .
{¶ 5} At the January 23, 2012 hearing, County Engineer Warren Schlatter informed the commissioners that Toledo Edison's utility poles were located too close to the edge of the roadway, as widened, and were not in compliance with federal and state guidelines. (Ex. A). Schlatter also indicated that the utility poles were negatively affecting the County's ability to plow snow to reduce drifting, because the plow trucks were unable to use the entire shoulder of the road. ( Id.).
{¶ 6} Toledo Edison did not present any testimony at the hearing, but instead, counsel argued that Toledo Edison was willing to move its utility poles but not at its cost. ( Id.). Toledo Edison again maintained that the utility poles were not “obstructions” in the roadways in light of Turner, 118 Ohio St.3d 215, 2008-Ohio-2010, 887 N.E.2d 1158. Toledo Edison also submitted a booklet containing various case citations and diagrams showing the distances from the edge of the road and the white edge line for each of the affected utility poles. (Ex. B).
{¶ 7} The commissioners found that the utility poles were obstructions under R.C. 5547.03 and enacted Resolution No. 12–01–058, which ordered Toledo Edison to relocate its 70 utility poles along Harding and Bend Roads to locations approved by the county engineer. (Ex. A); (Doc. No. 1, attached).
{¶ 8} On February 8, 2012, Toledo Edison appealed Resolution No. 12–01–058 to the Defiance County Court of Common Pleas pursuant to R.C. 307.56 and 2506. (Doc. No. 1). That same day, Toledo Edison also filed a motion to stay execution of the resolution pending the administrative appeal, which the trial court granted on May 23, 2012. (Doc. Nos. 2, 10).
{¶ 9} The parties briefed their respective positions on Resolution No. 12–01–058. (Doc. Nos. 9, 11, 14). Toledo Edison argued that the resolution was not supported by a preponderance of substantial, reliable, and probative evidence presented at the hearing, and that the resolution amounted to an invalid taking under the Ohio Constitution. (Doc. No. 9). The commissioners, on the other hand, argued that they validly passed the resolution pursuant to R.C. 5547.03 based upon substantial evidence presented at the hearing and not in violation of the Takings Clause. (Doc. No. 11).
{¶ 10} On April 23, 2013, the trial court determined that Toledo Edison's utility poles were not “obstructions,” because they would not “incommode or interfere with the usual and ordinary course of travel,” relying on Turner, 118 Ohio St.3d 215, 2008-Ohio-2010, 887 N.E.2d 1158, and vacated Resolution No. 12–01–058. (Doc. No. 17).
{¶ 11} On May 14, 2013, the commissioners filed a notice of appeal. (Doc. No. 18). The commissioners, joined by amicus curiae The County Engineers Association of Ohio, raise three assignments of error for our review. We elect to address the first and third assignments of error together since they are dispositive.
The trial court erred by finding that the commissioners' decision to pass the resolution was not supported by a preponderance of reliable, probative, and substantial evidence.
The trial court erred by misstating the legal standard for passing the resolution, pursuant to R.C. 5547.03.
{¶ 12} In their first assignment of error, the commissioners argue that their decision was based on a preponderance of substantial, probative evidence that Toledo Edison's utility poles were closer to the roadway than both the American Association of State Highway and Transportation Officials' (AASHTO) Manual and the Ohio Department of Transportation (ODOT) Location and Design Manual allow and impeded the County's ability to maintain the roadways; and therefore, the utility poles were “obstructions” under R.C. 5547.03.
{¶ 13} In their third assignment of error, the commissioners argue that the trial court erroneously relied on Turner v. Ohio Bell Tel. Co. to narrow the common, ordinary meaning of “obstruction” in R.C. 5547.03. The commissioners argue that Turner concerned a telephone company's tortious liability stemming from an automobile accident; whereas, this case concerns the commissioners' duty to ensure the roadways are obstruction-free pursuant to R.C. 5547.03.
{¶ 14} A person aggrieved by a decision of a board of county commissioners may appeal to the common pleas court under Chapter 2506. R.C. 307.56. Likewise, R.C. 2506.01(A) provides that “every final * * * decision of any * * * board * * * of any political subdivision of the state may be reviewed by the court of common pleas of the county in which the principal office of the political subdivision is located.”
{¶ 15} When reviewing the board's judgment, the common pleas court must consider the “ ‘whole record,’ including any new or additional evidence admitted under R.C. 2506.03, and determine whether the administrative order is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence.” Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142, 147, 735 N.E.2d 433 (2000).
{¶ 16} “A court of common pleas should not substitute its judgment for that of an administrative board * * * unless the court finds that there is not a preponderance of reliable, probative and substantial evidence to support the board's decision.” Kisil v. City of Sandusky, 12 Ohio St.3d 30, 34, 465 N.E.2d 848 (1984). Dudukovich v. Lorain Metro. Hous. Auth., 58 Ohio St.2d 202, 207, 389 N.E.2d 1113 (1979).
{¶ 17} In contrast, “[t]he standard of review to be applied by the court of appeals in an R.C. 2506.04 appeal is ‘ more limited in scope.’ ” Henley at 147, 735 N.E.2d 433, quoting Kisil at 34, 465 N.E.2d 848 (emphasis sic). The Court of Appeals reviews the judgment of the common pleas court only for “questions of law,” which does not include the same extensive power to weigh “the preponderance of substantial, reliable and probative evidence,” as is granted to the common pleas court. Id., quoting Kisil at 34, 465 N.E.2d 848, fn. 4. Henley at 147, 735 N.E.2d 433, quoting Lorain City School Dist. Bd. of Edn. v. State Emp. Relations Bd., 40 Ohio St.3d 257, 261, 533 N.E.2d 264 (1988). An appellate court must affirm the trial court's decision, unless it finds, as a matter of law, that the lower court's decision is not supported by a preponderance of reliable, probative and substantial evidence. Kisil at 34, 465 N.E.2d 848.
{¶ 18} Administrative appeals under R.C. 2506.04 are reviewed under an abuse-of-discretion standard. Briggs v. Dinsmore Twp. Bd. of Zoning Appeals, 161 Ohio...
To continue reading
Request your trial
-
Link v. Firstenergy Corp.
...certify the expense to the county auditor to be collected in the same manner as a tax. Id. See also Toledo Edison Co. v. Bd. of Defiance Cty. Commrs., 2013-Ohio-5374, 4 N.E.3d 458 (3d Dist.) (board of county commissioners may order removal of utility poles along county right-of-way pursuant......