Thanks to a colleague giving us a heads-up, we're starting 2023 with a neat case.
In Ohio Power Co. v. Burns, No. 2021-1168 (Dec. 29, 2022), the Ohio Supreme Court declined to apply a statutory presumption of necessity to the power company's efforts to use eminent domain to expand the scope of several existing utility easements to upgrade electric transmission lines. Although the case turned on the interpretation of the term "appropriation" in the Ohio statute, it has some lessons for those of us not in the Buckeye State.
In the absence of three statutory presumptions that a taking is necessary, the general rule in Ohio is that the condemnor bears the burden of proving necessity by a preponderance of the evidence. Here, "[t]he landowners opposed the easements in general, alleging that the appropriations were overly broad and unnecessary, and they challenged the need for several of the easement terms specifically, including the need for distribution lines." Slip op. at 4.
The trial court considered testimony and other evidence submitted by the power company to show the project was necessary, including evidence that the Ohio Power Board adopted a resolution "recognizing the necessity of acquiring easements in connection with the project." Slip op. at 5. But the evidence showed the Board had not reviewed any specific easement, "and instead, through its resolution, delegated to the officers, engineers, and other agents of the company the authority to acquire individual easements to complete the project." Id.
Therein lay the issue: the owner argued that the term "appropriation" in the statute is the trigger to the creation of either a rebuttable -- or an irrebuttable -- presumption in favor of necessity, and this means an individualized determination, not a conclusion about whether a project broadly is necessary. In other words, easement-by-easement, and not project-as-a-whole.
The trial court rejected the argument, but the court of appeal reversed. After which, the power company sought -- and the Supreme Court granted -- discretionary review.
The court concluded that "appropriation" was not meant broadly to mean the project or the overall taking, but each condemned easement. After noting that "[t]he property rights of an individual are fundamental rights," slip op. at 10, and that judicial review of takings ensure that "no more [is taken] than that necessary to promote the public use." Id.
Pages 11-14 is where the opinion laid out the reasons why appropriation was meant narrowly, and you can read that part if you are interested.
Those of us not in Ohio will want to pick it back up at page 15, where the court rejected the power company's "doing this individually and seeking necessity determinations from the Power Board for each easement would be too much trouble" argument.
First, the court held that nothing is requiring the company to seek the Board's review. It only needs to do so if it wants to take advantage of the statutory presumptions. Slip op. at 15 ("Ohio Power is not required to have the Siting Board or the Power Board approve the individual appropriations in order to appropriate a property or an interest or right therein. But if it does get such approval, then it obtains the legal presumption of necessity.") (citation omitted).
Second, inconvenience is no matter: "Simply because it may be inconvenient or tedious for Ohio Power to obtain the required resolutions or approvals for each appropriation to be entitled to a presumption under R.C. 163.09(B)(1)(a) or (c) does not mean that such an interpretation is unreasonable or absurd." Id.
Although the court concluded there was no need for another necessity hearing, it sent the case back down for another review of the evidence by the trial court:
Here, the trial court stated that it reviewed the easement terms and found them all necessary based on Rentschler’s testimony and its belief that Ohio Power knows best. Generally, a trial court’s findings of fact will be upheld when they are supported by some competent and credible evidence. See Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 81, 461 N.E.2d 1273 (1984). While Rentschler did discuss each of the easement terms individually during her testimony, and while we have stated that some deference to the government or the agency may be appropriate in eminent-domain cases, Norwood at ¶ 62, 66, a blanket statement that all the easement terms are necessary, without findings to support that decision beyond the deference given to Ohio Power and Ohio Power’s own agent, Rentschler, makes us question whether the trial court did conduct the appropriate review. Therefore, we remand the cause to the trial court to make the specific findings concerning the challenged easement terms consistent with the presumption set forth in R.C. 163.09(B)(1)(b).
Slip op. at 17.
And that's as good a way to remember this case: necessity isn't always a belief that the "condemnor knows best."
Ohio Power Co. v. Burns, No. 2021-1168 (Ohio Dec. 29, 2022)
