241 N.E.2d 783 | Ohio Ct. App. | 1968
This is an action in quo warranto, commenced originally in this court by the state of Ohio, on the relation of the Prosecuting Attorney of Summit County, in which the state prays that the respondent, the Ohio Edison Company "be compelled to answer to the state authority, by what warrant it claims to use and enjoy the liberties, privileges and franchises" of certain public utility claimed rights, "and that it be ousted from using the same."
The petition alleges that the respondent is an Ohio private corporation, operating a public utility, and engaged in the business of generating and distributing electricity in the state of Ohio, with its principal office in Akron, Summit County, Ohio; that, pursuant to the laws of the state, there has been created in and for Summit County a Tri-County Regional Planning Commission, which has, pursuant to Section
The petition continues by alleging that the respondent, the Ohio Edison Company, "claiming as a matter of right, is engaged in the construction and location of power lines and incidents thereto in said Northampton Township in Summit County; that saidconstruction and location constitutes *57 a departure from said plans and that the said Board of CountyCommissioners has not authorized said construction and locationpursuant to Section
Issues were joined by answer, and reply.
In the answer, the respondent corporation pleads that it was organized "to manufacture, acquire by purchase, lease or otherwise, transmit, distribute, sell and supply electricity to public and private consumers for light, heat and power and any or all other uses"; and that by virtue of its charter, and the Ohio statutes, it is "duly authorized and empowered to carry on the manufacture, generation, transmission, distribution and supply of electricity for light, heat and power to public and private consumers throughout the state of Ohio, and in connection therewith, to locate, construct and maintain poles, wires, lines and other facilities necessary for such purposes, subject only to regulation thereof in the manner and to the extent authorized by the statutes of the state of Ohio."
The answer continues with a lengthy narration of present and proposed facilities for the conduct of the company's business in servicing consumers in a number of counties in the state of Ohio, including Summit County, and, in connection therewith, alleges that it has lawful authority, under Ohio laws, to locate, construct and operate the transmission lines, and other facilities in controversy, and "there is existing no lawful and authorized regulation or other action of any governmental body restricting such authority."
The respondent's third defense specifically challenges the legality of the actions of the planning commission by claiming that whatever action was taken in respect to adopting a regional plan was not taken by the commission itself, but was taken by a committee of the commission. This defense is plead as follows:
"There has heretofore been created for Summit, Medina *58 and Portage Counties, a Tri-County Regional Planning Commission. The staff of said commission prepared a `Regional Land Use Plan' * * *. On May 27, 1964, some of the members of the Tri-County Regional Planning Commission, referred to as the `Executive Committee' met and adopted the plan. Thereafter, on July 20, 1964, the secretary of said commission transmitted to the Board of Summit County Commissioners a purported Resolution of the Tri-County Regional Planning Commission, dated May 27, 1964, adopting the plan although said commission had not, and has not as of the filing of this answer adopted the plan * * *. Said plan was adopted by the `Executive Committee' of said commission without public notice of its proposed action and without the holding of a public hearing as to the plan as required by law and the plan is without force and effect in law."
Directing our attention at this point to this third defense, and to the powers and duties of a regional planning commission as incorporated in Sections
1. In March of 1963, the staff of a duly created Regional Planning Commission prepared a Regional Land Use Plan, a Regional Water Resources Development Plan, and a Regional Sanitary Sewage Disposal Plan, and submitted them to the Regional Planning Commission. Plans for the location or installation of utility facilities in the areas of electricity, gas, and telephone were not, and never have been, prepared. None of the plans submitted were formally adopted by the planning commission.
2. A stipulation entered into by the parties appears in the following terms:
"On May 27, 1964 twelve (12) members of the thirty (30) member `Executive Committee' of the planning commission and eight (8) other persons, some of whom were members and some of whom were alternates for members of the 75 member planning commission, held a meeting designated in the minutes as a meeting of the `Executive Committee,' and voted to adopt the Regional Land Use Plan. * * * No public hearing was held on the adoption *59
of said plan by either the planning commission or the `Executive Committee.' The by-laws of the planning commission provide that upon the adoption by the `Executive Committee' of a plan of the kind and character described in Sections
"On July 20, 1964, James E. Farmer, acting as Executive Director of the Planning Commission wrote a letter to the Board of County Commissioners of Summit County and transmitted therewith a paper entitled `Resolution,' dated May 27, 1964, purporting to be a resolution of the Planning Commission adopting the Regional Land Use *60 Plan. No action adopting this resolution has been taken except at the meeting of the `Executive Committee' on May 27, 1964 * * *."
This stipulation of facts, as well as the evidence, and the reasonable inferences to be drawn therefrom, fail to show any specific action taken by the Tri-County Regional Planning Commission in an adoption of the "recommendation" provided in Section
"The regional or county planning commission shall make studies, maps, plans, and other reports of the region or county respectively, which may include adjoining areas, showing the commission's recommendation for systems of transportation, highways, park and recreational facilities, the water supply, sewerage and sewage disposal, garbage disposal, civic centers, and other public improvements and land uses which affect the development of the region or county respectively, as a whole or as more than one political unit within the region or county, and which do not begin and terminate within the boundaries of any single municipal corporation."
Section
It is held, in State, ex rel. Ohio Power Co., v. FranklinCounty Regional Planning Commission,
It appears obvious, we believe, that the legislative intent in the statutes, giving rise to a right of county commissioners, upon the recommendation of a commission, to regulate and control the location of the facilities of a public utility is that the "recommendation" come from the agency designated rather than from some subordinate committee of the agency. It has been said in legal forums, and this court adopts the principle, that a regional planning commission cannot delegate to a committee the very function for which the commission exists. It is the function of the commission, as a legal unit, to "recommend" to the commissioners, which recommendation alone gives power to the county commissioners to act. Apparently, nothing more or nothing less is required, although a serious question of due process is raised when valuable property rights are taken without notice or a right to be heard. The statutes make no such provision, and, in the instant case, none was given.
It is our conclusion, on this phase of the case, that the Regional Land Use Plan has not been formally or legally adopted by the Regional Planning Commission, and, as a consequence, any action taken by the Board of County Commissioners in respect thereto has no validity.
It is contended by the relator that the respondent has failed to pursue administrative remedies available to it, and is, therefore, precluded from challenging the actions taken by these agencies of government; that, if the respondent is adversely affected, it could appeal from the order of the county commissioners to the Court of Common Pleas, pursuant to Section
We hold this claim untenable.
The respondent strenuously urges additional defenses to the relator's action. Specifically, it claims that legislation enacted subsequent to the enactment of Sections
These, and other defenses, have been all considered; however, in the light of the conclusions heretofore reached, we find it unnecessary to incorporate our conclusions as to them in this opinion.
Writ denied.
BRENNEMAN, P. J., and HUNSICKER, J., concur.