226 N.E.2d 145 | Ohio Ct. App. | 1967
This appeal on questions of law is from a declaratory judgment of the Common Pleas Court. The action was filed by the Cleveland Electric Illuminating Company (hereinafter referred to as C. E. I.). The defendants are the city of Painesville (hereinafter referred to as Painesville) and the Painesville Planning Commission. The planning commission is not a party to this appeal.
The controlling facts are either stipulated or not disputed.
The C. E. I. found that it will be necessary to construct *86 three overhead electric transmission lines from its Eastlake power plant west of Painesville, through Painesville to its Nursery substation east of that city. These three lines will carry electricity of 33 KV (33,000 volts), 132 KV (132,000 volts), and 345 KV (345,000 volts). The lines are to traverse, overhead, certain named streets within the city, and are to provide electric service to consumers in communities and political subdivisions other than Painesville, which has its own municipal electric plant. The 345 KV line leads to the Pennsylvania border, there connecting with a similar 345 KV line, thus serving interstate commerce. The C. E. I. lines in Ohio run generally parallel to and adjacent to an Ohio freeway, Route 2.
The original action sought a declaration as to whether Painesville's consent could be withheld. While the action was pending, Painesville passed Ordinance No. 18-65, which provided that an electric public utility must obtain a permit from that city for the construction of such lines, and in no event could a permit be issued to construct lines carrying voltage in excess of 33 KV without placing such lines underground. C. E. I. then filed an amended petition which asked for a declaration that the ordinance was invalid.
The Painesville ordinance is similar in regulatory effect to an ordinance of the city of Euclid. Euclid's ordinance was upheld, and the C. E. I. was refused a writ of mandamus, inState, ex rel. Cleveland Electric Illuminating Co., v. Euclid
(1959),
The syllabus of that case reads:
"1. A municipal corporation may prescribe reasonable regulations for the installing of electric power lines through or into its territorial limits and may withhold its consent for the installation of such power lines until such regulations are complied with. (Sections
"2. A municipal ordinance which provides that all electric power lines installed within or through the municipality's territorial limits and carrying greater voltage than 33 KV (33,000 volts) shall be installed underground is not an unreasonable regulation unrelated to the health, safety and welfare of the inhabitants of the municipality."
Since Euclid, has come Section
"(A) As used in this section:
"(1) `Public utility' means any electric light company, as the same is defined in Sections
"(2) `Public utility facility' means any electric line having a voltage of twenty-two thousand or more volts used or to be used by an electric light company and supporting structures, fixtures, and appurtenances connected to, used in direct connection with, or necessary for the operation or safety of such electric lines.
"(3) `Local regulation' means any legislative or administrative action of a political subdivision of this state, or of an agency of a political subdivision of this state, having the effect of restricting or prohibiting the use of an existing public utility facility or facilities or the proposed location, construction, or use of a planned public utility facility or facilities.
"(B) To the extent permitted by existing law a local regulation may reasonably restrict the construction, location, or use of a public utility facility, unless the public utility facility:
"(1) Is necessary for the service, convenience, or welfare of the public served by the public utility in one or more political subdivisions other than the political subdivision adopting the local regulation; and
"(2) Is to be constructed in accordance with generally accepted safety standards; and
"(3) Does not unreasonably affect the welfare of the general public.
"Nothing in this section prohibits a political subdivision from exercising any power which it may have to require, under reasonable regulations not inconsistent with this section, a permit for any construction or location of a public utility facility proposed by a public utility in such political subdivision."
Upon the evidence the trial court found (1) necessity for C. E. I. to build these lines as a public utility facility for the service, convenience and welfare of the public served by C. E. I. in one or more political subdivisions and in interstate commerce; (2) that these lines are to be constructed in accordance with generally accepted safety standards; (3) that these lines *88
do not unreasonably affect the welfare of the general public within the meaning of Section
The trial court in effect declared that Section
The trial court made other declarations which are not the subject of this appeal, since C. E. I. filed no cross-appeal and Painesville did not assign any of them as error.
The first four assigned errors, treated together, are that the trial court erred in the following respects:
"1. In holding invalid the provisions of Section 6-173-03 of City of Painesville Ordinance No. 18-1965 requiring electric transmission lines carrying energy at voltages in excess of 33 kv to be constructed underground.
"2. In holding valid Revised Code Section
"3. In holding that an electric utility can place its installations in and through municipal streets and lands without the consent of the municipal [ity] and without appropriating a right of way therefor.
"4. In holding that Revised Code Section
Our ruling upon the first four assignments of error is dependent upon our construction and application of Section
The legal effect of Section
The Painesville permit ordinance is in conflict with Section
Section
"Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws."
That constitutional provision refers to all powers oflocal self-government. The construction of these public utility facilities across the state, transversing many political subdivisions of the state and serving interstate commerce, is not a matter of local self-government. Here, we are dealing with a matter of state-wide and national importance. This construction is of more than local interest and is not a matter for local requlation. The construction of such facilities through a municipality without that municipality's consent does not violate the above constitutional provision.
The proposed construction in the present case is similar in state-wide and national importance to the construction of certain highways. See State, ex rel. Ohio Turnpike Commission, v.Allen,
In both those cases, the Supreme Court held valid the legislation in question on the premise that it involved a matter of *90 state-wide and national concern and importance which removed it from being subject to local regulation or local self-government.
In the Turnpike case, Chief Justice Weygandt said, at page 174:
"* * * The construction of a turnpike across the state hardly can be considered a matter of local self-government."
In the Lakewood case, Putnam, J., said at pages 146 and 147:
"* * * an f. a. p. highway is more than of local interest and of local regulation. * * *.
"* * * Local self-interest must give way to the general welfare."
See the recent case of State, ex rel. Klapp, v. Dayton P. L. Co.,
"1. Police and similar regulations under the powers of local self-government established by the Constitution of Ohio mustyield to general laws of statewide scope and application, and statutory enactments representing the general exercise of police power by the state prevail over police and similar regulations in the exercise by a municipality of the powers of local self-government." (Emphasis added.)
We have indicated that Section
Therefore, it is our opinion that Painesville's ordinance, with its requirement of underground construction of all of these lines, is not a reasonable regulation. By being unreasonable, this regulation becomes inconsistent and in conflict with Section
When applied to public utility facilities "to be constructed in accordance with generally accepted safety standards," as stipulated here, in other words, with all modern safeguards, and meeting all the standards of Section
Therefore, each of the first four assignments of error is overruled.
The fifth assignment of error is that the court erred in:
"5. Failing to dismiss the petition and supplemental petition on the ground that no judiciable controversy existed between the parties, within the contemplation of the Declaratory Judgment Act, since plaintiff-appellee did not make application to Painesville City Planning Commission for approval of the proposed transmission lines in accordance with Section
This assignment of error is based upon a technicality. In pre-action negotiations, Painesville did refuse its approval for these proposed transmission lines. In fact, the filing of the amended petition, which brought into focus the Painesville ordinance, definitely shows that a justiciable controversy existed between the parties.
The fifth assignment of error is, therefore, overruled.
Each of the assignments of error is overruled, and the declaratory judgment of the trial court is affirmed.
Judgment affirmed.
JONES, P. J., and LYNCH, J., concur.
McLAUGHLIN, J., of the Fifth Appellate District, sitting by designation in the Seventh Appellate District. *92