2021 Ohio 2714
Ohio Ct. App.2021Background
- Ohio Power (AEP subsidiary) filed eminent-domain petitions to expand/replace existing 23 kV lines with a 138 kV transmission project, seeking broader easements across several landowners’ parcels; the PUCO Siting Board issued a certificate approving the Project and Ohio Power’s board passed a December 2019 resolution approving the Project.
- Landowners answered, denying necessity and challenging specific easement terms (broad assignability, rights to distribution lines, anti-abandonment clause, herbicide/right-to-exclude concerns) and requested R.C. 163.09(B) necessity hearings.
- At the consolidated R.C. 163.09 hearing Ohio Power witnesses testified on the Project need, authenticated the December 2019 Board resolution, and admitted distribution-line rights were not needed and could be dropped; testimony also showed an earlier petition verification referenced the later Board resolution.
- Trial court: (1) denied landowners’ Civ.R. 12(C) motion to dismiss Burns/Bohlen petitions for defective verification (found motion untimely and verification inconsequential), (2) held easements (except distribution-line rights) necessary, concluding the Siting Board and Ohio Power Board created statutory presumptions of necessity, and (3) ordered removal of distribution-line rights but declined to treat that concession as abandonment requiring cost awards.
- Landowners appealed, challenging (a) denial of judgment on the pleadings re: invalid verification, (b) application of R.C. 163.09(B) presumptions, (c) trial court’s deference to Ohio Power on scope/necessity of easements, and (d) denial of R.C. 163.21(B) relief after distribution-rights were rejected.
Issues
| Issue | Plaintiff's Argument (Ohio Power) | Defendant's Argument (Landowners) | Held |
|---|---|---|---|
| 1) Motion for judgment on the pleadings: defective petition verification; timeliness under Civ.R. 12(C) | Motion was untimely because filed after presentation at necessity hearing ("trial"); verification not false or inconsequential; Civ.R.11 preempts verification requirement | Verification was facially false (verification predated Board resolution), motion timely (must be before jury trial on compensation) and defect voids petition | Court erred to call motion untimely ("trial" is jury compensation trial), but denial affirmed on merits: verification invalid yet cured by hearing authentication and R.C.163.12(C) amendment power (harmless error). |
| 2) Applicability of R.C.163.09(B) presumptions (board resolution & regulatory approval) | Siting Board certificate approving Project and Ohio Power Board resolution establishing Project necessity trigger irrebuttable (regulatory) and rebuttable (board) presumptions; court need not review easement terms | Siting Board/Board approved the Project, not the specific appropriations or easement terms; presumptions inapplicable to particular easements | Reversed as to application of presumptions: neither the Siting Board nor Ohio Power Board approved the specific easements, so statutory presumptions (both rebuttable and irrebuttable) do not apply to these appropriations. |
| 3) Scope-of-take review and deference to utility on necessity/extent | Utility is best positioned to determine what is necessary; scope/extent may be addressed at compensation trial (jury) | Trial court must perform a limited but vigilant review under Norwood; extent of appropriation is a matter for the court to define, not deferred to jury or utility | Trial court erred by deferring to Ohio Power and failing to review contested easement terms individually; remanded for a R.C.163.09(B) hearing to determine necessity/extent of each challenged term. |
| 4) Abandonment / distribution-line rights and awarding costs under R.C.163.21 | Removing distribution rights was not abandonment; no automatic fee award | Landowners successfully defeated appropriation of distribution-line rights at the hearing; R.C.163.21(B) requires judgment against agency for costs and just disbursement awards for owners who defended particular property rights | Court correctly found no voluntary abandonment, but erred by not awarding costs/disbursements under R.C.163.21(B) after determining Ohio Power was not entitled to appropriate the distribution-line rights; remand to determine just awards. |
Key Cases Cited
- Norwood v. Horney, 853 N.E.2d 1115 (Ohio 2006) (courts must apply vigilant, limited review in eminent-domain cases to ensure the state takes no more than necessary)
- Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (U.S. 2021) (the right to exclude is a core stick in the bundle of property rights)
- Masheter v. Boehm, 307 N.E.2d 533 (Ohio 1974) (extent of the taking is a question of law for the trial court to decide before valuation)
- State ex rel. New Wen, Inc. v. Marchbanks, 167 N.E.3d 934 (Ohio 2020) (discusses fee awards and Chapter 163 remedial scheme)
- Horsley v. Essman, 763 N.E.2d 245 (Ohio Ct. App. 2001) (explains effect of rebuttable presumptions and the burden-shifting mechanism)