In Marano, 45 Ohio St.3d 310, 544 N.E.2d 635, this court held that companies which supplied two-way telephone services, mobile telephone services, voice paging systems, and radio communications systems are public utilities within the meaning of R.C. 519.211.Summary of this case from Campanelli v. AT&T Wireless Serv., Inc.
Submitted May 31, 1989 —
Decided September 20, 1989.
Public utilities — Entity is characterized as a public utility if the nature of its operation is a matter of public concern and membership is indiscriminately and reasonably made available to the general public — Radio towers are exempt from township zoning regulation when used by public utilities — Former R.C. 519.21, construed.
APPEAL from the Court of Appeals for Lake County, No. 12-035.
In March 1985, two radio towers approximately two hundred feet tall were erected on a parcel of property owned by defendants-appellees, Robert E. Gibbs, Gibbs Industrial, Inc., and E.L. Eighmy. The property in issue is located in both Painesville and Concord Townships in Lake County. While both towers are in Painesville Township, one concrete pilaster to which a guy wire is attached supporting part of one tower is located on defendants' property in Concord Township. A two-story building is located between the two towers. The first floor of the building is used solely for agricultural purposes, and a portion of the second floor is used for electronic radio equipment owned and used in connection with the radio towers by those firms that rent space on the towers.
The radio towers were constructed to rent space to members of the general public, including business, professional or public entities, for the purpose of providing one-way or two-way telephone services, mobile telephone services, voice paging services and radio communication services. As stipulated in the trial court below, Motorola, Inc., Digital Paging Systems of Cleveland, Inc. ("Digital") and RAM Communications of Ohio, Inc. ("RAM") are now using, or intend to use, the radio towers in issue. Digital is regulated by the Public Utilities Commission of Ohio ("PUCO") and has a certificate of public convenience and necessity as a telephone company to provide one-way tone and voice paging services to the public. RAM is also regulated by the PUCO and has a certificate of public convenience and necessity as a telephone company to provide one-way and two-way mobile telephone service to the public. The services provided by all three aforementioned users-lessees of the radio towers are available indiscriminately to any member of the general public for public use.
Plaintiff-appellant, Teno S. Marano, the Zoning Inspector for Concord Township, and plaintiff-appellant, Ralph Harlan, the Zoning Inspector for Painesville Township, filed this action in the court of common pleas to enjoin defendants from operating, using or permitting the use of the radio towers on the grounds that the towers violate their respective townships' zoning resolutions. The cause was submitted to the trial court upon the briefs and stipulations of the parties. In granting appellants' requested relief, the trial court permanently enjoined appellees from operating a radio tower business in both townships, and further ordered that the towers and operating equipment be removed from the premises. The trial court found, in part, that the appellees were not public utilities, and that, therefore, the radio towers were not exempted by R.C. 519.21 (now R.C. 519.211) from the townships' zoning resolutions.
Upon appeal, the court of appeals reversed, finding that since the lessees-users of the towers are public utilities, the then applicable statute (R.C. 519.21) prohibited zoning regulation by a township, even though the appellees themselves are not public utilities.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Wiles, Richards Bates, John W. Wiles and Patricia A. Nocero, for appellants.
Baker, Hackenberg Collins Co., L.P.A., and Richard L. Collins, Jr., for appellees.
Two main issues are presented for our review. First, we must determine whether the court of appeals below was correct in reversing the trial court and holding that the lessees-users of the radio towers are public utilities. Second, we must consider whether former R.C. 519.21 exempts such land and structures from township zoning.
With respect to the first issue presented, all parties agree that the determination of entities as public utilities is a mixed question of law and fact. The definitions of a "public utility" set forth in R.C. 4905.02, 4905.03 and 5727.01 are not exclusive since those definitions are relevant solely to the statutory chapters in which they are located. Vernon v. Warner Amex Cable Communications, Inc. (1986), 25 Ohio St.3d 117, 119, 25 OBR 164, 166, 495 N.E.2d 374, 376. Inasmuch as R.C. Chapter 519 does not define a "public utility," we look to relevant case law for such a determination.
Research indicates that while it is important that an entity be subject to regulatory control, such regulation is not necessarily required for an entity to be considered a public utility. Ohio Power Co. v. Attica (1970), 23 Ohio St.2d 37, 40, 52 O.O. 2d 90, 92, 261 N.E.2d 123, 126.
In Attica, this court emphasized that an important factor in determining public utility status is the character of the business in which the entity is engaged. Id. at 41, 52 O.O. 2d at 92, 261 N.E.2d at 126. See, also, Industrial Gas Co. v. Pub. Util. Comm. (1939), 135 Ohio St. 408, 14 O.O. 290, 21 N.E.2d 166, paragraph one of the syllabus. We have also held:
"To constitute a `public utility,' the devotion to public use must be of such character that the product and service is available to the public generally and indiscriminately or there must be the acceptance by the utility of public franchises or calling to its aid the police power of the state." Southern Ohio Power Co. v. Pub. Util. Comm. (1924), 110 Ohio St. 246, 143 N.E. 700, paragraph two of the syllabus.
In sum, the foregoing precedents indicate that an entity may be characterized as a public utility if the nature of its operation is a matter of public concern, and membership is indiscriminately and reasonably made available to the general public.
In our view, the court of appeals below was correct in finding all three lessees of space on appellees' towers to be public utilities. The record indicates that both Digital and RAM are regulated by the PUCO, and that both possess a certificate of public convenience and necessity to dispense the services that they provide. Based on the stipulations rendered below and the language in the certificates that the services provided are "to the public" within a definable geographic area, it is clear that membership in Digital and RAM is available reasonably and indiscriminately to any member of the general public. Thus, both Digital and RAM exhibit sufficient indicia of public-utility status as defined by abundant case law. While Motorola, Inc. is not regulated by the PUCO, it was stipulated that membership in the company is reasonably and indiscriminately provided to the general public. In addition, the services Motorola, Inc. provides and the nature of its operation are very similar to those of both Digital and RAM. Therefore, it readily appears that Motorola, Inc. can be characterized as a public utility. Accordingly, based on the stipulations and aforementioned precedents, we affirm the appellate court's finding that all three lessees of the radio towers are public utilities.
Since the three lessees of the radio towers are public utilities, our next inquiry is whether former R.C. 519.21 prohibits township zoning on the use of land or structures for business purposes by any public utility. The appellants contend that the exemption contained in former R.C. 519.21 applies only to public utilities that are lessors-owners of land, buildings or structures. However, we do not agree with appellants that the statute contemplates such a narrow reading.
R.C. 519.21 provided in relevant part:
"Such sections [R.C. 519.02 to 519.25] confer no power on any board of township trustees or board of zoning appeals in respect to the location, erection, construction, reconstruction, change, alteration, maintenance, removal, use, or enlargement of any buildings or structures of any public utility or railroad, whether publicly or privately owned, or the use of land by any public utility or railroad, for the operation of its business. * * *" (Emphasis added.)
In our view, appellees are correct in submitting that as it relates to public utilities, the first part of the statutory language above restricts regulation of buildings or structures of any public utility. A review of R.C. Chapter 519 reveals no special statutory definition to be accorded throughout the chapter for the term "use." Under such circumstances, where the term is unambiguous, any term left undefined by statute is to be accorded its common, everyday meaning. See, e.g., Eastman v. State (1936), 131 Ohio St. 1, 5 O.O. 248, 1 N.E.2d 140, paragraph five of the syllabus. Thus, research reveals that one of the common, everyday meanings of the term "use" includes the exercise, employment or occupation of property. See Random House Dictionary of the English Language (2 Ed. 1987) 2097.
Based on the record developed below, it is clear that the lessees use appellees' radio towers as contemplated by R.C. 519.21. This use of the towers includes transmission of electronic signals from the towers, as well as use of the building between the towers for the equipment necessary to accomplish the transmission of electronic signals. Since R.C. 519.21 is unambiguous, and because the towers, land and structures are used by public utilities in the performance of their business, the towers, land and structures are thereby exempt from township zoning regulation under the statute.
Accordingly, the judgment of the court of appeals is hereby affirmed.
MOYER, C.J., HOLMES, WRIGHT and H. BROWN, JJ., concur.
DOUGLAS and RESNICK, JJ., dissent.
I respectfully dissent. There are three separate and distinct parties to this appeal. The first party consists of the plaintiffs-appellants, who are the respective zoning inspectors for Concord and Painesville Townships. The second party is referred to as the defendants-appellees, who are the lessors of the two radio towers and the adjoining building, which properties are the subject of the present case. The third party is a group of three lessees (Digital, RAM and Motorola), all of whom are currently renting frequency "space" on the radio towers.
The trial court properly determined that appellees-lessors were not public utilities, and therefore not within the exclusion from zoning regulations as contained in former R.C. 519.21. The court of appeals, however, went one step further in finding that because the lessees were public utilities, they were within the above exclusion from zoning regulations. For the following reasons, I would reverse this decision of the court of appeals.
The authority of townships to regulate land is governed by R.C. 519.02, which contains a necessarily broad grant of power to local governments in this area of Ohio law. The statute provides that "[f]or the purpose of promoting the public health, safety, and morals, the board of township trustees may in accordance with a comprehensive plan regulate by resolution the location, height, bulk, number of stories, and size of buildings and other structures * * *."
"Such sections [R.C. 519.02 and 519.25] confer no power on any board of township trustees or board of zoning appeals in respect to the location, erection, construction, reconstruction, change, alteration, maintenance, removal, use, or enlargement of any buildings or structures of any public utility or railroad, whether publicly or privately owned, or the use of land by any public utility or railroad, for the operation of its business. * * *"
Thus, the statute clearly excludes public utilities and railroads from local zoning regulations. Furthermore, "* * * [t]his court has long held that statutory exceptions to the operations of laws should receive a strict interpretation (see Kroff v. Amrhein, 94 Ohio St. 282, 286)." Boys Town v. Brown (1981), 69 Ohio St.2d 1, 6, 23 O.O. 3d 1, 4, 429 N.E.2d 1171, 1174. It can be gleaned from the face of the statute that lessors of land who lease to public utilities are not excluded from local zoning laws. In effect, the appellate court and the majority have exempted from local zoning regulations a class of persons, namely lessors of land, simply by the type of party to whom they rent space.
This is an impermissible judicial expansion of R.C. 519.21, and in fact abrogates the authority of a local municipality's power to regulate land under R.C. 519.02. Well-established Ohio case law recognizes the presumptive validity of local zoning resolutions enacted pursuant to a municipality's police power when promoting public health, safety and morals. See Leslie v. Toledo (1981), 66 Ohio St.2d 488, 490, 20 O.O. 3d 406, 407, 423 N.E.2d 123, 124, and cases cited therein.
On this basis, it is error to extend the exclusion granted to public utilities to a landlord who may simply ignore a local zoning resolution, and then circumvent said resolution by renting to a public utility. Therefore, I respectfully dissent.
DOUGLAS, J., concurs in the foregoing dissenting opinion.