Opinion
No. 95-787
Submitted July 12, 1995 —
Decided August 10, 1995.
On July 10, 1992, relator, Ohio Edison Company, and the Dayton Power Light Company ("DP L"), filed a joint application with the Ohio Power Siting Board ("board") to construct and operate a twenty-seven-mile 138 kV transmission line in Logan and Union Counties. Prior to filing the application, relator, through an engineering firm, notified Union County of relator's intention to construct the proposed transmission line. The preferred route for the proposed transmission line paralleled portions of County Road Nos. 286 and 311 within Union County. The Union County Engineer responded that the county planned to widen County Road Nos. 286 and 311 within five to eight years, and that if the transmission line was constructed at least thirty-five feet from the centerline of each road it would not affect the road-widening project. On April 28, 1992, relator's engineering firm indicated to the county engineer that relator and DP L could take the county's plan into consideration once a route had been finalized, but that more complete information would be forthcoming in the application before the board.
On September 25, 1992, relator and DP L filed proofs of service for the joint application with the board. The county and county engineer were each served with a copy of the application. The application proposed an easement extending thirty-two feet from the roadway centerline and a construction centerline of twenty-two feet, two feet outside the county's existing roadway right-of-way, but thirteen feet less than that requested by the county engineer.
On October 9, 1992, the board issued an entry stating that the application had been accepted for filing. The entry also scheduled a local public hearing and an adjudicatory hearing at the offices of the Public Utilities Commission for early January 1993. Relator published notices of the application in newspapers of local and regional circulation. On January 25, 1993, the board approved the application and entered its Opinion, Order and Certificate issuing the Certificate of Environmental Compatibility and Public Need to permit construction, operation, and maintenance of the transmission line.
County representatives did not attend the public hearing on January 6, 1993. They did not intervene or otherwise participate in the adjudicatory hearing on January 7, 1993. Nor did they seek rehearing of the board's order.
Following the application's approval, relator purchased the necessary easements from landowners along the now-approved transmission-line route, including easements along portions of County Road Nos. 286 and 311. The easements were consistent in size with the application. Beginning in March 1995, relator started clearing the easements along County Road No. 286 to begin construction of the transmission line.
In mid-March 1995, relator began installing poles along County Road No. 286. These poles are within relator's thirty-two-foot easement, but outside the county's twenty-foot roadway right-of-way. The location of the poles, twenty-two feet from the centerline of County Road No. 286, is consistent with the application and the board's order.
On March 30, 1995, the county engineer contacted relator expressing concern that the poles were too close to County Road No. 286. On April 11, 1995, relator responded that it had approached each landowner about the possibility of locating the poles further into their fields, to accommodate the county's road widening plans, but that every landowner insisted that all poles be located at the edge of his property because of the adverse effects on their farming operations. This resulted in the construction centerline of twenty-two feet south of the centerline of County Road No. 286.
Two days later, the Union County Prosecuting Attorney sent relator a letter alleging that relator's activities were "unconscionable" and would require the county to incur unreasonable and unnecessary cost and expense to relocate the poles if the county widened County Road Nos. 286 and 311. On April 14, 1995, the county filed suit against relator and DP L in Union County Common Pleas Court case No. 95-CV-0055, and sought and received a temporary restraining order from respondent, Judge Richard E. Parrott, restraining relator from continuing with the installation of transmission line poles along County Road Nos. 286 and 311.
On April 20, 1995, relator brought this action seeking a writ of prohibition directing respondent to cease and desist from the exercise of jurisdiction in case No. 95-CV-0055, vacating the temporary restraining order entered in that case, and ordering respondent to cease any further action regarding this matter.
Roetzel Andress, Stephen D. Jones and E. Joel Wesp, for relator. R. Larry Schneider, Union County Prosecuting Attorney, for respondent.
Betty D. Montgomery, Attorney General, Duane W. Luckey and William L. Wright, Assistant Attorneys General, urging issuance of the writ for amicus curiae, Ohio Power Siting Board.
Because we find that we have exclusive jurisdiction to enjoin orders of the Ohio Power Siting Board, we grant relator's application for a writ of prohibition and vacate the order enjoining construction of the transmission line in case No. 95-CV-0055.
To obtain a writ of prohibition, a relator must show (1) that the court against whom the writ is sought is exercising or about to exercise judicial power, (2) that the exercise of power is unauthorized by law, and (3) that denying the writ will result in injury for which no other adequate remedy exists in the ordinary course of law. State ex rel. Koren v. Grogan (1994), 68 Ohio St.3d 590, 592, 629 N.E.2d 446, 448; State ex rel. Enyart v. O'Neill (1995), 71 Ohio St.3d 655, 656, 646 N.E.2d 1110, 1112. However, where there is a patent and unambiguous lack of subject matter jurisdiction in the court exercising judicial authority, it is not necessary to establish that the relator has no adequate remedy at law in order for a writ to issue. State ex rel. Enyart v. O'Neill, supra, 71 Ohio St.3d at 656, 646 N.E.2d at 1112; State ex rel. Tilford v. Crush (1988), 39 Ohio St.3d 174, 176, 529 N.E.2d 1245, 1247.
Respondent acknowledges that it exercised judicial power when it entered the order enjoining construction of the transmission line in case No. 95-CV-0055. See State ex rel. N. Ohio Tel. Co. v. Winter (1970), 23 Ohio St.2d 6, 52 O.O.2d 29, 260 N.E.2d 827. Thus, the first prong of the test has been met in this case.
In R.C. Chapter 4906, the General Assembly created a comprehensive scheme addressing the process for applying for and granting certificates to construct a major transmission line, such as the one at issue here. That scheme expresses the General Assembly's intention that such powers are vested exclusively in the board. See, e.g., Chester Twp. v. Power Siting Comm. (1977), 49 Ohio St.2d 231, 3 O.O.3d 367, 361 N.E.2d 436. Accord Kazmaier Supermarket, Inc. v. Toledo Edison Co. (1991), 61 Ohio St.3d 147, 152-153, 573 N.E.2d 655, 659.
Pursuant to R.C. Chapter 4906, questions involving approval and placement of certain large transmission lines are solely within the board's domain. Significantly, power siting projects are exempt from local regulation. R.C. 4906.13. Further, no transmission line with a capacity of one hundred twenty-five kilovolts or more may be constructed in Ohio without first obtaining a certificate of environmental compatibility and public need issued by the board. R.C. 4906.01(B)(2) and (D), 4906.04, and 4906.98. All interested parties may intervene in these proceedings upon a showing of good cause. Ohio Adm. Code 4906-7-04(A) and (B).
Consistent with this comprehensive scheme, we have exclusive jurisdiction to suspend or delay implementation of an order of the Public Utilities Commission of Ohio, of which the Power Siting Board forms a part:
"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 * * * in the performance of official duties. * * *" R.C. 4903.12.
Pursuant to R.C. 4906.12, this exclusive jurisdiction applies equally to the board's orders. Chester Twp. v. Power Siting Comm., supra, 49 Ohio St.2d at 238, 3 O.O.3d at 370, 361 N.E.2d at 441. Thus, we have exclusive jurisdiction to review, suspend, or delay implementation of the board's orders. Id.
R.C. 4906.12 provides:
"Sections 4903.02 to 4903.16 and 4903.20 to 4903.23 of the Revised Code shall apply to any proceeding or order of the power siting board under Chapter 4906. of the Revised Code, in the same manner as if the board were the public utilities commission under such sections."
Admittedly, however, our jurisdiction over matters involving utilities is not entirely exclusive. Other courts retain limited subject matter jurisdiction over tort and some contract claims involving utilities regulated by the commission. See, e.g., Kazmaier Supermarket, Inc. v. Toledo Edison Co., supra, 61 Ohio St. 3 d at 154, 573 N.E.2d at 660 (pure common-law tort claims may be brought in common pleas court); Kohli v. Pub. Util. Comm. (1985), 18 Ohio St.3d 12, 18 OBR 10, 479 N.E.2d 840 (failure to warn landowners of dangers regarding voltage actionable in common pleas court); Milligan v. Ohio Bell Tel. Co. (1978), 56 Ohio St.2d 191, 10 O.O.3d 352, 383 N.E.2d 575, paragraph three of the syllabus (invasion of privacy actionable in common pleas court); Marketing Research Serv., Inc. v. Pub. Util. Comm. (1987), 34 Ohio St.3d 52, 517 N.E.2d 540 (commission has no jurisdiction to resolve breach of contract dispute concerning provision of interstate telecommunications service). But, see, Gallo Displays, Inc. v. Cleveland Pub. Power (1992), 84 Ohio App.3d 688, 618 N.E.2d 190 (common-law nuisance claim against utility not actionable in common pleas court).
Respondent argues that the board has no authority to resolve the county's breach of agreement dispute with relator, contending that this case is the limited type which vests jurisdiction in the common pleas courts. We agree that respondent may have jurisdiction over the county's claim that relator breached its agreement with the county. See Marketing Research Serv., Inc. v. Pub. Util. Comm., supra, 34 Ohio St.3d at 56, 517 N.E.2d at 544. However, that does not also vest respondent with jurisdiction to enjoin construction of a board-approved transmission line. Only we have that authority. R.C. 4903.12.
Respondent restrained construction of a board-approved transmission line because of its location. Questions involving the location of a transmission line are exclusively within the board's domain. R.C. 4906.13. As stated previously, we have exclusive jurisdiction to review, suspend, or delay implementation of orders by the board. R.C. 4903.12. Therefore, respondent's exercise of jurisdiction by entry of an order stopping construction of the transmission line was unlawful. Accordingly, the second prong of the test to obtain a writ of prohibition has also been met in this case.
Finally, upon reviewing the clear language of R.C. 4903.12 and 4906.12, we find that respondent's lack of subject matter jurisdiction to exercise judicial authority in case No. 95-CV-0055 is patent and unambiguous. Thus, relator need not establish that it has no adequate remedy at law in order to obtain a writ of prohibition in this case. See State ex rel. Enyart v. O'Neill, supra, 71 Ohio St.3d at 656, 646 N.E.2d at 1112; State ex rel. Tilford v. Crush, supra, 39 Ohio St.3d at 176, 529 N.E.2d at 1247. Therefore, we hold that respondent's exercise of judicial authority by entry of a restraining order in case No. 95-CV-0055 was and is unlawful, and a writ of prohibition shall issue to prevent any further exercise of jurisdiction regarding construction of the transmission line. Our decision does not affect respondent's jurisdiction in case No. 95-CV-0055 regarding the county's claim against relator for money damages if the county is required to move the transmission line poles in order to widen County Road Nos. 286 and 311.
Accordingly, for the foregoing reasons, we grant relator's application for a writ of prohibition, vacate the temporary restraining order entered in case No. 95-CV-0055, and order respondent to cease and desist from the exercise of any further jurisdiction over the construction of the transmission line.
Writ granted.
MOYER, C.J., DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
COOK, J., not participating.