THE TOLEDO EDISON COMPANY, PLAINTIFF-APPELLEE, v. BOARD OF DEFIANCE COUNTY COMMISSIONERS, ET AL., DEFENDANTS-APPELLANTS.
CASE NO. 4-13-04
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT DEFIANCE COUNTY
December 9, 2013
[Cite as Toledo Edison Co. v. Bd. of Defiance Cty. Commrs., 2013-Ohio-5374.]
Appeal from Defiance County Common Pleas Court Trial Court No. 12-CV-41752 Judgment Reversed and Cause Remanded
OPINION
APPEARANCES:
Frank J. Reed, Jr. and Brian W. Fox for Appellants, Defiance County Commissioners
Frederick A. Vierow, Amicus Curiae County Engineers Association of Ohio
Emily Ciecka Wilcheck 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,
{¶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. (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
{¶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, 2008-Ohio-2010. 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
{¶8} On February 8, 2012, Toledo Edison appealed Resolution No. 12-01-058 to the Defiance County Court of Common Pleas pursuant to
{¶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
{¶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, 2008-Ohio-2010, 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.
Assignment of Error No. I
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.
Assignment of Error No. III
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
{¶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
{¶15} When reviewing the board‘s judgment, the common pleas court must consider the “‘whole record,’ including any new or additional evidence admitted under
{¶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 (1984). “The key term is ‘preponderance.’ If a preponderance of reliable, probative and substantial evidence exists, the Court of Common Pleas must affirm the agency decision; if it does not exist, the court may reverse, vacate, modify or remand.” Dudukovich v. Lorain Metro. Hous. Auth., 58 Ohio St.2d 202, 207 (1979).
{¶17} In contrast, “[t]he standard of review to be applied by the court of appeals in an
{¶18} Administrative appeals under
{¶19} After reviewing the testimony and record from the January 23, 2012 public hearing, the trial court determined that Resolution No. 12-01-058 was not supported by substantial, reliable, and probative evidence. (Apr. 23, 2013 JE,
{¶20} This case ultimately concerns the scope of authority the State delegated to boards of county commissioners—here, the Board of Defiance County Commissioners—in
{¶21}
[A] All * * * corporations using or occupying any part of a highway [or] bridge * * * with * * * electrical * * * mains, conduits, or any object or structure, other than by virtue of a franchise legally granted, shall remove from the bounds of such highway * * * their poles and wires * * * when, in the opinion of the board of county commissioners, they constitute obstructions in any highway, other than the state highway system; or the bridges or culverts thereon, or interfere or may interfere with the proposed improvement of such highways, bridges, or culverts or the use thereof by the traveling public. By obtaining the consent and approval of the board, such persons, partnerships, and corporations may relocate their properties within the bounds of such highways, bridges, or culverts in such manner as the board prescribes. The giving of such consent and approval by the board does not grant any franchise rights.
[B] Persons, partnerships, or corporations occupying any part of a highway, bridge, or culvert, under and by virtue of a franchise legally granted, shall relocate their properties within the bounds of such highway, bridges, or culverts when in the opinion of the county engineer, they constitute obstructions or interfere with the construction, improvement, maintenance, or repair of such
highways, bridges, or culverts, or the use thereof by the traveling public. [C] If, in the opinion of the engineer, such * * * companies have obstructed any such highway, bridges, or culverts, or if any of their properties are, in his opinion, so located that they do or may interfere with the proposed improvement, maintenance, or repair the board shall notify such * * * corporation directing the removal or relocation of the obstruction or property, and, if they do not within five days proceed to so remove or relocate and complete the removal or relocation within a reasonable time, the board may do so by employing the necessary labor. The expense incurred shall be paid in the first instance out of any moneys available for highway purposes, and not encumbered for any other purpose, and the amount shall be certified to the proper officials to be placed on the tax duplicate against the property of such person, partnership, or corporation, to be collected as other taxes and in one payment, and the proper fund shall be reimbursed out of the money so collected, or the account thereof may be collected from such person, partnership, or corporation by civil action by the state on the relation of the board.5
{¶22}
{¶23} Division [A] is divided into two independent clauses, both modified by “in the opinion of the board of county commissioners” providing justifications for the removal of objects or structures occupying any part of a highway, bridge, or culvert: [1] “* * * they constitute obstructions * * *, or” [2] “[they] interfere or may interfere with the proposed improvement of such highways, bridges, or culverts or the use thereof by the traveling public.” The second clause is divided into two sub-clauses: [a] “interfere or may interfere with the proposed improvement of such highways, bridges, or culverts“; and, [b] “or the use thereof by the traveling public.” Sub-clauses [a] and [b] are related because they are separated by the word “or” with no comma, and “thereof” in sub-clause [b] refers to “such highways, bridges, or culverts” in sub-clause [a]. The phrase “such highways, bridges, or culverts,” in turn, refers to highways, bridges, or culverts with any object or structure thereon. Sub-clause [b], therefore, can be reworded “or the use [of highways, bridges, or culverts with any object or structure thereon] by the traveling public.”
{¶24} Synthesizing all of these clauses together,
{¶25} Because the commissioners called Toledo Edison‘s utility poles “obstructions” throughout the proceedings and in Resolution No. 12-01-58, Toledo Edison concluded that the commissioners relied on
{¶26} We must first address the application of Turner here. In that case, Bryan Little struck Bell Telephone Co.‘s utility pole—located two feet, five inches from the berm and three feet, nine inches from the white edge line—with his vehicle, killing his passenger, Robert Turner. 2008-Ohio-2010, at ¶ 1.
{¶27} Turner‘s estate sued Ohio Bell and other utility companies alleging, in relevant part, that they were negligent in placing, maintaining, and continuing to use the utility pole because it was too close to the highway. Id. at ¶ 2. The utility companies filed motions for summary judgment. Id. Turner‘s estate opposed the motions, submitting expert affidavits of an accident reconstructionist, a civil engineer, and an environmental engineer who opined that the utility pole was unreasonably close to the highway. Id. at ¶ 3. The trial court granted the utility companies summary judgment, concluding that the pole was not placed on the traveled and improved portion of the highway nor in such close proximity to the roadway to constitute an obstruction dangerous to anyone properly using the highway. Id. at ¶ 4.
{¶28} The Court of Appeals for the Eighth District reversed, concluding that a jury should determine the reasonableness of the utility pole‘s location. Id. at ¶ 5. The appellate court determined that “‘liability may be imposed where the placement of a pole in close proximity to the edge of a roadway constitutes a foreseeable and unreasonable risk of harm to users of the roadway.‘” Id. at ¶ 5, quoting Turner v. Ohio Bell Tel. Co., 8th Dist. Cuyahoga No. 87541, 2006-Ohio-6168, ¶ 17. The Eighth District created an eight-factor test for the fact-finder to determine the reasonableness of the utility pole‘s location, including: (1) the narrowness and general contours of the road, (2) the presence of sharp curves in the road, (3) the illumination of the pole, (4) any warning signs of the placement of the pole, (5) the presence or absence of reflective markers, (6) the proximity of the pole to the highway, (7) whether the utility company had notice of previous accidents at the location of the pole, and (8) the
{¶29} The utility companies appealed, and the Supreme Court of Ohio reversed, holding:
* * * when a vehicle collides with a utility pole located off the improved portion of the roadway but within the right-of-way, a public utility is not liable, as a matter of law, if the utility has obtained any necessary permission to install the pole and the pole does not interfere with the usual and ordinary course of travel.
Id. at ¶ 21 (emphasis added). To reach this holding, the Court in Turner first recognized public utilities’ general, qualified right to place utility poles within the public road right-of-way. Id. at ¶ 7, citing 45 Ohio Laws 34. However, the Court observed that public utilities’ right to do so was originally limited by a single condition: “that the utility poles not incommode the public in the use of the roads or highways.” Id. The Court then recognized that, today, public utility companies must obtain approval from the public entity that owns the right-of-way prior to erecting poles and other fixtures upon the public right-of-way. Id., citing
{¶30} After reviewing its prior, relevant precedent, the Court in Turner found that, collectively, the Court‘s precedent recognized the public‘s right to use the highway to the entire width of the right-of-way against all others using the highway for private purposes. Id. at ¶ 9-12. On the other hand, the Court noted that the traveling public is not free to drive on the right-of-way “as he or she pleases“; rather, the public‘s right to use the highway extends only to the portion of the roadway normally used for vehicular traffic—that is, as nearly as practicable within the marked lanes. Id. at 12-19, citing
{¶31} Utility companies, according to the Court, do not have unfettered discretion to determine the placement of their utility poles, but rather, are required to obtain approval from the owner of the right-of-way, i.e. the public authority. Id. at ¶ 20. The public authority would presumably use many of the factors outlined in the Eighth District‘s reasonableness test when deciding whether to approve a utility pole‘s location, stated the Court. Id. The Court then noted that “[p]lacement that complies with the requirements of the public authority that owns the right of way is indicative that the object is not an obstacle to the traveling public.” Id.
{¶32} The trial court‘s reliance on Turner to define “obstruction” in
{¶33} Furthermore, Turner interpreted “incommode” in
{¶34} The term obstruction is not defined in the statute; therefore, it must be accorded its common, ordinary meaning. City of South Euclid v. Richardson, 49 Ohio St.3d 147, 152 (1990), citing State v. Young, 37 Ohio St.3d 249, 252 (1988). The common, ordinary meaning of “obstruction” is “something that obstructs or impedes.” Webster‘s Third New International Dictionary 1559 (2002). See also Black‘s Law Dictionary 1183 (9th Ed.2009) (“Something that impedes or hinders.“). “Obstruct,” in turn, means “to block up, stop up or close up; place an obstacle in or fill with obstacles or impediments to passing.” Webster‘s at 1559. “Impede” means “to interfere with or get in the way of the progress of.” Id. at 1132. “Hinder” is defined: “to make slow or difficult the course or progress of.” Id. at 1070. These definitions are broader than “incommode” interpreted in Turner, and
{¶35} Implicit in Toledo Edison‘s argument—as evidenced by its exclusive reliance upon Turner—is that an object is not an “obstruction” under
{¶36} On appeal, the landowners agreed that “obstruction” must be given its common, ordinary meaning and cited Black‘s Law Dictionary to define “obstruction” as:
R.C. 5547.04 * * * make[s] no mention of obstructing traffic. Rather, the bare term obstruction is used. Thus, if the highway, including its right of way, is hindered or occupied by an obstacle, thenR.C. 5547.04 applies. In its plain and ordinary sense, the
Id. The appellate court also observed that the landowners’ neighbor had difficulty pulling out of his driveway because the fence and trees obstructed his view of traffic. Id. at ¶ 42. Lastly, the appellate court noted that the landowners failed to rebut the county‘s claim that their solid, six-foot-tall fence located two feet off a curved roadway (on the downward hill side) impaired snow removal. Id.
{¶37} Steigerwald is persuasive here. The appellate court‘s interpretation of “obstruction” in Steigerwald is consistent with its common, ordinary meaning. The statutes at issue in Steigerwald and here are similarly worded:
{¶38} Although not binding on this Court, the Ohio Attorney General has also concluded that the General Assembly intended “obstruction” in
* * * the General Assembly intended that the word ‘obstruction’ have a very broad meaning. In order to give effect to this intention of the General Assembly, it appears that ‘obstruction’ is any object that has the potential of include [sic] virtually any object within the bounds of a highway that has been ‘placed’ or ‘erected’ there. In other words, an ‘obstruction’ is any object that has the potential of interfering with the highway easement. An object could interfere with the easement without hindering the flow of traffic or the construction or maintenance of the highway. Whether an object interferes with the easement will depend upon the nature of the object, its size, and its precise location.
Id. Because
{¶40} The survey supervisor averred that the landowners planted two rows of shrub seedlings eleven feet from the edge of the pavement, with the right-of-way line being twelve feet to the north of the seedlings. Id. He further averred that one row of seedlings was planted at the bottom (flow-line) of the highway‘s drainage ditch, and the second row was planted near the back slope of the drainage ditch. Id. The engineer averred that, while the seedlings were only a few inches high and not currently a problem, the seedlings would mature to 10 to 12 feet in height and “problems could arise.” Id. The engineer opined that, once mature, the shrubs could block the drainage ditch causing water to flood the highway, and a traveler could leave the highway striking one of the shrubs. Id.
{¶41} On appeal, the landowners argued that the director should not be permitted to remove the shrubs, because his decision was based on speculation of what “could” occur. Id. at *2. While the appellate court agreed that the engineer‘s opinion concerning potential, future problems was inadmissible, the appellate court concluded that the director “was not required to prove that drainage problems will occur in the future. He was only required to show that he has concluded that the seedlings interfere or may interfere with the use or maintenance of the highway.” (Emphasis sic). Id. at *2. “Whether the conclusion is correct is irrelevant to the [director‘s] authority to remove the seedlings,” according to the court. Id. The court further stated that the director‘s “judgment that the shrubs should be removed, and his order to remove them, are matters within the scope of his statutory discretion” with which a court should not interfere absent fraud or a gross abuse of discretion. Id. at *4. The court in Lamborn ultimately concluded that the director‘s decision was within the scope of his statutory authority. Id.
{¶42} The court‘s decision in Lamborn affirms the general view that the public authority has broad discretion to order the removal of obstructions in the highways.
All individuals, firms, and corporations using or occupying any part of a road or highway on the state highway system, or the bridges or culverts thereon, with * * * any object or structure, other than by virtue of a franchise or permit granted and in force, shall remove from the bounds of the road, highway, bridge, or culvert, their * * * objects or structures, when in the opinion of the director of transportation they constitute obstructions in such roads, highways, bridges, or culverts, or interfere or may interfere with the contemplated construction, reconstruction, improvement, maintenance, or repair of such roads,
highways, bridges, or culverts thereon, or interfere or may interfere with the use of such roads, highways, bridges, or culverts thereon, by the traveling public. (Eff. Sept. 28, 1973).7
{¶43} Like the statute in this case,
{¶44} In this case, the county engineer opined that Toledo Edison‘s utility poles were not in compliance with several roadside design guides and negatively impacted the county‘s ability to plow snow off the shoulder of the road to prevent drifting. (Ex. C). In its December 15, 2011 letter, the board of county commissioners stated that the utility poles were closer to the road than permitted by the AASHTO Road Design Guide and the ODOT Location and Design Manual. (Ex. B). Furthermore, the county engineer also notified the commissioners that other utility companies, like AEP and Northwest Electric, moved their utility poles at the county‘s request. (Ex. C). Toledo Edison did not offer testimony at the administrative hearing, but instead argued Turner and submitted, without objection, materials that included diagrams with measurements of the utility pole locations. (Exs. B, C).
{¶45} In light of the common, ordinary meaning of “obstruction,”
{¶46} The Board of Defiance County Commissioners exercised authority that the General Assembly has affirmatively delegated to it and authority that the Ohio Supreme Court in Turner approved—it reevaluated the location of Toledo Edison‘s utility poles after a road-widening project with an eye toward public safety. The board did not act outside of its authority under
{¶47} Additionally, Toledo Edison, like the landowners in Steigerwald, failed to rebut the county engineer‘s opinion that their utility poles obstructed (impeded) snow removal. The county engineer testified that part of the roadway improvements included installing a wider roadway shoulder for the purpose of plowing back snow to reduce drifting. (Ex. C). The county engineer testified that the proximity of Toledo Edison‘s utility poles to the edge of the road “limit[s] the ability to plow back * * * the full length” of the shoulder. (Id.). The county commissioners’ finding that the utility poles interfered with snow removal is equivalent to a finding that the utility poles “interfere or may interfere” with “the use [of such highways, bridges, or culverts] by the traveling public,” although not labeled as such.
{¶48} Our decision is not only consistent with the
{¶50} While the Board of Defiance County Commissioners could have provided more reasoning behind its decision, Toledo Edison failed to present any rebuttal evidence, besides its packet of materials. From Toledo Edison‘s perspective, the answer in this case was a legal one, not a factual one, which is the best explanation for why it failed to offer any testimony at the hearing. From its perspective, the utility poles were located off the improved portion of the highway, and therefore, were not “obstructions” under
{¶51} Because the trial court erred as a matter of law and, therefore, abused its discretion by relying on Turner to interpret “obstruction” in
Assignment of Error No. II
The trial court erred by impermissibly substituting its judgment for that of the commissioners.
{¶52} In their second assignment of error, the commissioners argue that the trial court impermissibly substituted its judgment for theirs despite the limited review under
{¶53} In light of our decision to sustain the first and third assignments of error raised by the Board of Defiance County Commissioners, this assignment of error is moot, and we decline to address it further.
{¶54} Having found error prejudicial to the appellant in the first and third assignments of error, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.
Judgment Reversed and
Cause Remanded
WILLAMOWSKI and SHAW, J.J., concur.
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