494 N.E.2d 1150 | Ohio Ct. App. | 1985
In this appeal we must decide whether a determination by the Ohio Public Utilities Commission ("PUCO") that the appellee, Quest Microwave VII, Inc. ("Quest"), is a public utility for the purposes of regulation under R.C. Chapter 4905, also makes the company a public utility exempt from township zoning regulations pursuant to R.C.
The appellants filed a complaint seeking declaratory and injunctive relief aimed at preventing appellee Quest from building and operating a telecommunications tower at a site in Doylestown, Ohio. In their answers the appellees claimed that Quest was a public utility exempt from township zoning under R.C.
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Appellees claimed that because the PUCO had assumed jurisdiction to regulate Quest under R.C. Title 49 as a public utility, Quest was necessarily a public utility for the purpose of R.C.
"No court other than the supreme court shall have power to review, suspend, or delay any order made by the public utilities commission, or enjoin, restrain, or interfere with the commission or any public utilities commissioner in the performance of official duties. * * *"
Based upon the foregoing, appellees moved for dismissal of appellants' complaint for lack of subject matter jurisdiction. Appellants counter-argued that the PUCO determination of status for purposes of R.C. Title 49 was not controlling and, therefore, they were not seeking to overturn a PUCO decision.
The defense of subject matter jurisdiction was heard and determined pursuant to the appellees' motion. The only issue considered at the hearing was subject matter jurisdiction under R.C.
R.C.
"As used in Chapter 4905. of the Revised Code, `public utility' includes every corporation, company, copartnership, person, or association, their lessees, trustees, or receivers, defined in section
However, this definition is limited to the title of the code in which it appears and has limited applicability. Vernon v. WarnerAmex Cable Communications, Inc. (Apr. 24, 1985), Summit App. No. 11886, unreported. Thus, even though Quest is considered a public utility for the purpose of regulation by the PUCO under R.C. Chapter 4905, that designation of control does not make it a utility in fact under R.C.
Because the trial court made its ruling based only upon the issue of whether the PUCO designation controlled, the parties did not present evidence pertaining to the question of whether Quest had *222 the attributes of a public utility. The trial court must give the parties the opportunity to present this evidence. WDBN, Inc.,supra. Accordingly, the appellants' first assignment of error is well-taken.
Appellants did not challenge the constitutionality of R.C.
The judgment of the trial court is reversed and the cause is remanded for proceedings consistent with the law.
Judgment reversed and cause remanded.
GEORGE, P.J., and MAHONEY, J., concur.