Ohio Power Co. v. Duff , 2020 Ohio 4628 ( 2020 )

[Cite as Ohio Power Co. v. Duff, 2020-Ohio-4628.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
MADISON COUNTY
OHIO POWER COMPANY, : CASE NO. CA2020-01-004
Appellee, : OPINION
9/28/2020
:
- vs -
:
DAVID DUFF, et al., :
Appellants. :
CIVIL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS
Case No. CV20190161
Porter Wright Morris & Arthur LLP, Ryan P. Sherman, Jason T. Gerken, Sara C.
Schiavone, 41 South High Street, 29th Floor, Columbus, Ohio 43215, for appellee
Ricketts Co., LPA, Richard T. Ricketts, Andrew C. Clark, 50 Hill Road South,
Pickerington, Ohio 43147, for appellants
M. POWELL, J.
{¶ 1} Appellants, David and Lisa Duff, appeal a decision of the Madison
County Court of Common Pleas granting judgment in favor of appellee, Ohio Power
Company, in an action involving appropriation of real estate.1
1. Pursuant to Loc.R. 6(A), we sua sponte remove this appeal from the accelerated calendar for
purposes of issuing this opinion.
Madison CA2020-01-004
{¶ 2} Ohio Power Company is a subsidiary of American Electric Power, a
public utility company ("AEP"). As part of a larger infrastructure project, AEP decided
to replace an aging and unreliable electric transmission line serving Madison and
Pickaway Counties ("the Project"). The Project involves rebuilding approximately 23
miles of the 69kV transmission line which originates in the village of Mount Sterling,
Madison County, Ohio. The Duffs own a 207-acre property south of Mount Sterling.
When rebuilding a transmission line, AEP tries to follow the existing corridors and
easements of the transmission line whenever possible, and further seeks to follow
natural boundaries such as property lines, roads, and existing utility corridors. In siting
transmission lines, AEP considers the distance involved in different possible routes,
the number of turns, and the proximity of residences, businesses, and other structures.
{¶ 3} On November 27, 2018, AEP's Board of Directors (the "Board") adopted
a resolution declaring the Project a public necessity and granting AEP authorization to
acquire necessary easements or rights-of-way by eminent domain or otherwise.
{¶ 4} The Project follows the path of the existing transmission line for the
majority of its 23 miles. However, AEP determined it was not feasible to follow the path
of the existing line through Mount Sterling due to the village's growth since the line was
built 70 years ago. Rebuilding the line through downtown Mount Sterling would have
required the condemnation and removal of several buildings. Consequently, AEP's
siting team decided to reroute the existing line around Mount Sterling. The reroute
cuts through the Duffs' property.
{¶ 5} AEP representatives met with the Duffs to negotiate the easement
necessary to build the transmission line across their property. The easement is
approximately 40 feet wide and 1,200 feet long and constitutes 1.5 acres of the Duffs'
property. The Duffs proposed that the route be constructed along the northern border
-2-
Madison CA2020-01-004
of their property. AEP considered the Duffs' proposed route but ultimately rejected it
because it placed the transmission line next to residences and a church. Furthermore,
it required two additional turns which would have added $200,000 to the cost of the
Project. Ultimately, AEP and the Duffs were unable to reach an agreement.
{¶ 6} Consequently, on September 4, 2019, AEP initiated eminent domain
proceedings under R.C. Chapter 163 by filing a verified petition for appropriation of an
easement on the Duffs' property. The easement was attached to the petition and
provided it was "for electric transmission, distribution, and internal communication
purposes, being, in, over, under, through and across the [Duffs' property.]" The Duffs
filed an answer to the petition, denying the necessity of the appropriation.
{¶ 7} Subsequently, the Duffs engaged in discovery, serving requests for
admissions, interrogatories, and production of documents upon AEP in early October
2019. AEP initially denied discovery was allowed under the statutory procedure but
eventually provided its responses on November 8, 2019. The Duffs complained that
AEP's responses did not include any documents or a privilege log and otherwise
"contain[ed] numerous inadequacies." On November 15, 2019, after being unable to
resolve the dispute, the Duffs moved to compel AEP to respond to their discovery
requests. A discovery hearing was scheduled for November 18, 2019; a necessity
hearing was scheduled for November 25, 2019.
{¶ 8} By order of the trial court and agreement of the parties, both hearings
were vacated on November 18, 2019. The necessity hearing was rescheduled for
December 17, 2019. AEP was ordered to supplement its discovery responses and
produce documents on or before November 25, 2019, and the parties were ordered to
advise the trial court of any discovery impasse on or before December 6, 2019, to
permit rescheduling of the hearing on the Duffs' motion to compel discovery.
-3-
Madison CA2020-01-004
{¶ 9} AEP subsequently provided the Duffs with an additional 34 pages of
documents; however, the Duffs remained unsatisfied with AEP's discovery responses.
Consequently, the Duffs faxed a motion on December 6, 2019, requesting "a telephone
scheduling conference to discuss outstanding discovery issues and to schedule a
hearing on [their] Motion to Compel Discovery[.]" The faxed motion asserted that
AEP's supplemental discovery responses were "believed to be an incomplete
production" and that the parties were unable to come to an agreement, through
stipulation or otherwise, to resolve their discovery dispute.
{¶ 10} The necessity hearing was held on December 17, 2019. Three
witnesses testified on behalf of AEP; David Duff testified on his own behalf. At the
outset of the hearing, counsel for the Duffs stated the following:
I did file a motion seeking a telephone conference and
hearing on the motion to compel discovery. I believe that
was on Friday, the 6th of December, and I do know we
exchanged some messages yesterday and I had requested
a continuance of this hearing based on what I felt were
some insufficient subpoena responses and the Court did
deny that request for a continuance, so I just wanted to put
that on the record, but otherwise I think we are ready to
move forward.
The trial court then stated, "The record reflects." The subpoena comment refers to
subpoenas issued to two of AEP's contractors.
{¶ 11} On January 2, 2020, the trial court granted judgment in favor of AEP,
finding that the Duffs had failed to establish that the taking of their property was
unnecessary. Specifically, the trial court held that
The Duff's attempted to argue at the hearing that AEP failed
to make a good faith effort to exercise its discretion during
the routing of this project. However, there were multiple
routes considered during the development of this project.
Route selection is discretionary and in the absence of bad
faith, fraud, or gross abuse of discretion, that determination
will not be disturbed by the courts.
-4-
Madison CA2020-01-004
***
There is sufficient evidence before the Court that satisfies
the necessity requirement for the Madison-Harrison project
and the proposed reroute at issue in this case. Due to the
age of the line, the development of the town of Mount
Sterling, the number of home owners potentially affected
without the reroute, the cost of the alternative suggested by
Mr. Duff, and Mr. Duff's testimony that the new line was
necessary, AEP's proposed reroute is not an abuse of
discretion, nor the result of fraud or bad faith.
Accordingly, because AEP passed a resolution of
necessity, and because the Duff's [sic] failed to meet their
burden to show the taking was unnecessary, the Court
finds in favor of [AEP].
{¶ 12} The Duffs appeal, raising three assignments of error that will be
addressed out of order.
{¶ 13} Assignment of Error No. 2:
{¶ 14} THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
REFUSED TO CONDUCT A HEARING ON DISCOVERY DEFICIENCIES AND
REFUSED TO CONTINUE THE NECESSITY HEARING TO PERMIT THE DUFFS TO
OBTAIN RESPONSIVE DOCUMENTATION.
{¶ 15} As will be discussed later, once the Board adopted the resolution that the
easement across the Duffs' property was necessary, such created a rebuttable
presumption of necessity for the appropriation. The parties agree that because the
Project involved a transmission line lower than 100kV, it was not subject to the Ohio
Power Siting Board jurisdiction. The Duffs assert that as a result, AEP's siting
documents and the agendas and minutes of the Board were within AEP's exclusive
control and not publicly available, and that their only means to obtain these documents
was through the civil discovery process. The Duffs argue that under these
circumstances and given the fact they notified the trial court they believed discoverable
-5-
Madison CA2020-01-004
materials were being wrongfully withheld by AEP, the trial court erred in summarily
denying their request for a discovery hearing and a continuance of the necessity
hearing, thereby forcing them to proceed with the necessity hearing without complete
discovery responses.
{¶ 16} R.C. 163.22 provides that "[a]ll proceedings brought under sections
163.01 to 163.22 of the Revised Code shall be governed by the law applicable in civil
actions and the Rules of Civil Procedure, including, but not limited to, the rules
governing discovery, except as otherwise provided in those sections." Unless clearly
inapplicable, the Ohio Rules of Civil Procedure apply to appropriation proceedings
brought under R.C. Chapter 163. See Cleveland Elec. Illum. Co. v. Astorhurst Land
Co., 18 Ohio St.3d 268 (1985); Highland Cty. Bd. of Commrs. v. Fasbender, 4th Dist.
Highland No. 98CA24, 1999 Ohio App. LEXIS 3565 (July 28, 1999). Thus, contrary to
AEP's assertion, discovery is permitted in appropriation actions.
{¶ 17} We are unable to review the merits of the Duffs' argument. Resolution
of this assignment of error requires that we review what discovery responses the Duffs
claim are lacking, why AEP's failure to respond was unjustified, why the discovery was
essential to the Duffs' defense, the particulars of the Duffs' request for a discovery
hearing, and the trial court's ground for denying it.
{¶ 18} Following AEP's initial discovery responses, the Duffs moved to compel
AEP to respond to their discovery requests on November 15, 2019. The motion
specifically described what documents the Duffs were seeking to obtain, which
interrogatories were essential to their defense, and why AEP's responses were
deficient. Complying with the trial court's November 18, 2019 order, AEP subsequently
provided supplemental discovery. On December 6, 2019, unsatisfied with AEP's
supplemental discovery responses, the Duffs moved for a discovery hearing. The
-6-
Madison CA2020-01-004
motion merely argued that the supplemental discovery was "believed to be an
incomplete production" and that the parties were unable to resolve their dispute. The
motion did not explain what documents the Duffs were still seeking to obtain, what
supplemental discovery responses were lacking, and why AEP's supplemental
responses were not responsive to their requests. Neither the record nor the Duffs
indicate whether AEP's initial discovery responses remained deficient after AEP
provided supplemental discovery.
{¶ 19} The record seemingly indicates there was an in-chamber, off-the-record
discussion on the eve of the necessity hearing during which the trial court summarily
denied the Duffs' request for a discovery hearing and a continuance of the necessity
hearing. At the outset of the necessity hearing, counsel for the Duffs summarily
memorialized the trial court's denial of the requests on the record but provided no
details of the in-chamber discussion. On appeal, the Duffs refer to this discussion in
support of this assignment of error.
{¶ 20} While there may have been some discussion among the court and
parties with regard to discovery prior to the necessity hearing, we are not privy to such
communication because the Duffs failed to file an App.R. 9 statement. "The duty to
provide a transcript for appellate review falls upon the appellant." Parma v. Brown, 8th
Dist. Cuyahoga No. 104219, 2016-Ohio-7963, ¶ 6. Because there was no App.R. 9
statement filed with this court, "we do not know the content of that discussion. What
was discussed among the court and the parties about the discovery issue is clearly
germane to this appeal. And because it is incumbent upon the appellant to provide
this court with either the transcript or App.R. 9(C) statement, we must presume
regularity." Id. at ¶ 10. Therefore, we cannot conclude that the trial court erred in
denying the Duffs' request for a discovery hearing.
-7-
Madison CA2020-01-004
{¶ 21} Likewise, we find no error in the trial court's denial of the Duffs' request
for a continuance of the necessity hearing. R.C. 163.09, the statutory provision
governing such hearings, provides that when a landowner files an answer to a petition
for appropriation, the trial court "shall set a day, not less than five or more than fifteen
days from the date was filed, to hear those matters." R.C. 163.09(B)(1). Ohio courts
have held that R.C. 163.09 "is intentionally drafted in such a manner to expedite
resolution regardless of the status of discovery." Dublin v. Beatley, 5th Dist. Delaware
No. 18 CAE 01 0007, 2018-Ohio-3354, ¶ 38. "'The [Tenth Appellate District] court
found that the legislative intent was that the cases should move as quickly as possible
through the court so there is a minimum of delay in proceeding with the project, and
the General Assembly was within its authority to set up a procedure so this type of
case could proceed as quickly and expeditiously as possible.'" Id., quoting Masheter
v. Benua, 24 Ohio App.2d 7, 10 (10th Dist.1970). Likewise, R.C. 163.22 provides that
appropriation proceedings "shall be advanced as a matter of immediate public interest
and concern and shall be heard by the court at the earliest practicable moment."
Accordingly, the trial court did not err in declining to continue the necessity hearing and
in holding it on December 17, 2019, three weeks past its initial scheduled date.
{¶ 22} The second assignment of error is overruled.
{¶ 23} Assignment of Error No. 1:
{¶ 24} THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
FOCUSED ON THE NECESSITY OF THE ENTIRE PROJECT INSTEAD OF THE
NECESSITY OF THIS SPECIFIC EASEMENT.
{¶ 25} Assignment of Error No. 3:
{¶ 26} THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
CONCLUDED THAT OHIO POWER COMPANY'S ROUTE SELECTION OVER THE
-8-
Madison CA2020-01-004
DUFF PROPERTY WAS NOT THE PRODUCT OF A GROSS ABUSE OF
DISCRETION.
{¶ 27} Because these assignments of error are interrelated, we will consider
them together. The gravamen of the first and third assignments of error is that the trial
court erred in granting a judgment in favor of AEP.
{¶ 28} In their first assignment of error, the Duffs challenge the trial court's
finding that the easement was necessary, arguing that the trial court improperly
focused on the necessity of the entire Project rather than the necessity of the easement
at issue, and ignored the breadth of the easement sought by AEP. In their third
assignment of error, the Duffs challenge the trial court's finding that AEP did not act in
bad faith or abuse its discretion in routing the transmission line across their property.
{¶ 29} Both the United States and Ohio Constitutions allow appropriation of
private property for public use, as long as the property owner receives just
compensation in return. See State ex rel. Duncan v. Mentor City Council, 105 Ohio
St.3d 372, 2005-Ohio-2163. R.C. Chapter 163 controls the pleading and procedure in
this appropriation action.
{¶ 30} R.C. 163.09(B)(1)(a) provides that when a property owner files an
answer to an appropriation petition specifically denying the necessity of the
appropriation, as the Duffs did here,
Upon those matters, the burden of proof is on the agency
by a preponderance of the evidence except [that] [a]
resolution or ordinance of the governing or controlling body,
council, or board of the agency declaring the necessity for
the appropriation creates a rebuttable presumption of the
necessity for the appropriation if the agency is not
appropriating the property because it is a blighted parcel or
part of a blighted area or slum.
{¶ 31} "[W]here a rebuttable presumption exists, a party challenging the
-9-
Madison CA2020-01-004
presumed fact must produce evidence of a nature that counterbalances the
presumption or leaves the case in equipoise. Only upon the production of sufficient
rebutting evidence does the presumption disappear." Myocare Nursing Home, Inc. v.
Fifth Third Bank, 98 Ohio St.3d 545, 2003-Ohio-2287, ¶ 35. Thus, pursuant to R.C.
163.09, once an agency adopts a resolution of necessity for the appropriation, the
burden of production shifts to the property owner to rebut the presumption of necessity
for the appropriation. See Ohio Power Co. v. Ogle, 4th Dist. Hocking No.
09CA1/09AP1, 2009-Ohio-5953. "[A] determination that an appropriation is necessary
for a public use will not be disturbed unless the property owner proves that the
determination was the result of fraud, bad faith, or an abuse of discretion." Eschtruth
Invest. Co., L.L.C. v. Amherst, 9th Dist. Lorain No. 10CA009870, 2011-Ohio-3251, ¶
9. "In reviewing the trial court's conclusion that there was no such abuse of discretion,
we are limited to determining whether the decision was supported by competent and
credible evidence." Ogle at ¶ 10.
{¶ 32} "The 'necessity' required in the exercise of the power of eminent domain
does not require a showing of absolute necessity, but includes 'that which is reasonably
convenient or useful to the public.'" Ferencz v. Toledo, 6th Dist. Lucas No. L-87-379,
1988 Ohio App. LEXIS 5178, *7 (Dec. 30, 1988), quoting Giesy v. Cincinnati,
Wilmington, and Zanesville RR. Co., 4 Ohio St. 308, 327 (1854).
{¶ 33} The Board adopted a resolution of necessity for the appropriation of the
easement across the Duffs' property on November 27, 2018. Thus, pursuant to R.C.
163.09(B)(1), the resolution created a rebuttable presumption of the necessity for the
appropriation and the burden of production fell upon the Duffs to demonstrate that the
appropriation was unnecessary. That is, AEP was presumed to have acted regularly
and in a lawful manner and the Duffs needed to produce evidence that AEP abused
- 10 -
Madison CA2020-01-004
its discretion in determining that the easement was necessary.
{¶ 34} The Duffs challenge the trial court's finding that the easement across
their property was necessary, arguing that the trial court improperly focused on the
necessity of the Project itself rather than the necessity of the easement.2 In support of
their argument, the Duffs simply cite hearing testimony that rebuilding the transmission
line along the existing route through Mount Sterling was not feasible "due to the number
of structures that are within the right-of-way through town there." The Duffs assert this
problem is of AEP's own making because AEP "permitted structures to encroach onto
their existing right-of-way and was unwilling to defend and enforce the property rights
that it already held." The fact that development within Mount Sterling rendered the
routing of the transmission line through the village impactable does not foreclose AEP's
determination that the existing right-of-way was inadequate or unsuitable for the
Project and does not rebut the presumption that the easement is necessary.
{¶ 35} The Duffs next challenge the breadth of the easement sought by AEP.
The resolution adopted by the Board recognized the public necessity for the
reconstruction of approximately 23 miles of the 69kV transmission line serving Madison
and Pickaway Counties. The easement sought by AEP and described at the hearing
2. In support of this argument, the Duffs cite R.C. 163.09(B)(2) for the proposition that "the judge may
determine the necessity of the appropriation * * * as to any or all of the property or other interests sought
to be appropriated." However, when properly quoted, R.C. 163.09(B)(2) provides that
"[s]ubject to the irrebuttable presumption in division (B)(1)(c) of this
section, only the judge may determine the necessity of the
appropriation. If, as to any and all of the property or other interests
sought to be appropriated, the court determines the matters in favor of
the agency, the court shall set a time for the assessment of
compensation by the jury not less than sixty days from the date of
journalization of that determination, subject to the rights of the parties
to request mediation under section 163.051 of the Revised Code and
the right of the owner to an immediate appeal under division (B)(3) of
this section.
- 11 -
Madison CA2020-01-004
as AEP's standard easement, seeks "a permanent easement and right of way for
electric transmission, distribution, and internal communication purposes[.]" Citing the
testimony of Steven Scott, AEP's transmission right-of-way agent, that "[the easement]
doesn't limit us from coming back with a higher voltage," the Duffs assert that the
easement exceeds the necessity set forth in the resolution because it allows the
construction of a transmission line with a voltage higher than 69kV.
{¶ 36} We find no merits to the Duffs' argument. While Scott testified that the
easement sought by AEP does not explicitly limit it to a 69kV transmission line and
would not prevent AEP from building a higher kilovolt line in the future, he further
testified that AEP could not "just go build a higher voltage line in this easement without
additional approvals." Specifically, Scott explained that the next highest voltage is
138kV and that before a 138kV or higher voltage transmission line could be built in the
easement at some point in the future, a need for such a higher voltage line would first
have to be identified, and more importantly, such higher voltage line would have to be
reviewed and approved by the Ohio Power Siting Board. Furthermore, Scott's
testimony does not contradict or rebut the presumption that the easement across the
Duffs' property is necessary.
{¶ 37} The Duffs next challenge the trial court's finding that AEP did not act in
bad faith or abuse its discretion in rerouting the transmission line across their property.
The Duffs assert that AEP's admitted failure to perform a siting study for the rerouting
of the transmission line around Mount Sterling in violation of AEP's internal procedures
and the lack of any documentation that other southern alternative routes were
considered establish that AEP grossly abused its discretion in selecting the reroute
across the Duffs' property. In support of their argument, the Duffs rely on the testimony
of Alicia Cross, AEP's siting specialist, and Thomas Berkemeyer, AEP's assistant
- 12 -
Madison CA2020-01-004
secretary.
{¶ 38} Berkemeyer generally testified that a proposed resolution and supporting
materials are provided to the Board two days prior to the Board's decision on the
resolution to allow the directors to review the materials and ask questions about the
project or resolution at the Board meeting if necessary. The Board itself is not involved
in the siting process, the routing selection, or the language of individual easements.
Berkemeyer explained that by the time a resolution gets to the Board, there is an
understanding that all the people working on the project have done the necessary work
and that the resolution is ready for decision.
{¶ 39} Cross generally explained what is considered in determining the best
feasible route and described the several steps involved in a siting analysis. She further
explained that a siting memo is a document memorializing the routing decisions that
were made during the siting process. A siting memo always comes after a siting study
has been performed and a routing decision has been made "because it documents
that final route." Cross did not define a siting study but explained that such a study "is
a little bit more robust for * * * greenfield projects with lots of different study segments
and route alternatives." A greenfield project involves the building of a new transmission
line, thereby requiring identifying a new corridor. A brownfield project involves the
rebuilding of an existing transmission line utilizing existing rights-of-way as much as
possible. Cross identified the Project as a brownfield project. The siting memo for the
Project was submitted by both parties and admitted into evidence.
{¶ 40} On cross-examination, Cross testified that the difference between a siting
study and a siting memo is the amount of information provided. Counsel for the Duffs
referred to the defense Exhibit K, a lengthy document addressing "AEP Siting Study
Process and Documentation" in Section 2 of the document. Cross testified there was
- 13 -
Madison CA2020-01-004
a siting memo for the Project but not a siting study. She further testified that to her
knowledge, there was no documentation to show that southern routes other than the
reroute across the Duffs' property were considered.
{¶ 41} Based on the foregoing, the Duffs assert that Exhibit K plainly requires
that a siting study be performed, AEP "never performed a siting study for the reroute"
across the Duffs' property in violation of its internal procedures in Exhibit K, AEP never
considered other southern alternative routes, and therefore, AEP grossly abused its
discretion in selecting the reroute across the Duffs' property.
{¶ 42} Exhibit K is titled "AEP Siting, Permitting, Right of Way, and Real Estate
Requirements for Independent Power Producers exercising the Option to Build (PJM)."
Under its Purpose heading, the document provides, inter alia, that AEP has a vested
interest "to ensure that AEP's standards are met when an Independent Power
Developer interconnects with AEP's transmission system[,]" "the following sections
outline the technical standards, requirements, and procedures for siting * * * as well as
for acquiring real estate and right-of-way that will ultimately be turned over to AEP as
part of an Option-to-Build project[,]" and that failure to follow these standards,
procedures, and technical requirements "may result in AEP requiring the Developer *
* * to modify its siting, permitting, real estate and/or right of way work at the Developer's
sole cost and expense before AEP will take ownership and/or interconnect with the
Developer's project."
{¶ 43} Testimony at the hearing indicates that AEP is an independent power
developer, that it will own the Project and the transmission lines and easements
connected to the Project, and that it will be the sole such developer involved in the
Project. The language of Exhibit K clearly focuses on AEP's relationship and work with
independent power developers other than AEP. In other words, Exhibit K does not
- 14 -
Madison CA2020-01-004
govern AEP's internal procedures and its own work on a project. Consequently, the
trial court properly found that the internal guidelines described in Exhibit K do not apply
to the Project. The Duffs' reliance on Exhibit K is therefore misplaced and does not
rebut the presumption that the easement is necessary.
{¶ 44} While Cross testified there was no siting study for the Project, a fair
reading of the hearing testimony plainly indicates that a siting analysis was performed
regarding which route should be selected to address Mount Sterling's growth. Cross
testified she was the siting specialist for and had been working on the Project for a
year. While she was not involved in the Project at the very beginning of the siting
analysis, she had had several meetings and discussions with the team that had made
initial decisions.
{¶ 45} Cross' testimony as well as that of Scott show that the feasibility of the
Duffs' proposed route along their northern property line was studied but ultimately
rejected because it would have placed the line in close proximity to several residences
and a church and would have required two additional sharp turns which would have
increased the cost of the Project by $200,000. Cross testified that AEP considered
rebuilding the transmission line through Mount Sterling but rejected that option
because it would have required the condemnation and removal of several residences
and commercial buildings Cross further testified that AEP considered rerouting the
transmission line north of Mount Sterling but rejected that option as well because there
was already a transmission line there. Furthermore, that route would have been longer
than the reroute across the Duffs' property. Cross testified that the reroute ultimately
selected was not perfect but was appropriate and the least impactful route.
{¶ 46} David Duff testified that while the Project itself was a public necessity, it
was not necessary for AEP to reroute the transmission line across his property when
- 15 -
Madison CA2020-01-004
other less intrusive routes were available, such as the route he proposed along the
northern border of his property. Duff testified that he had also suggested another route
further south on his property; however, both proposed routes were rejected by AEP.
{¶ 47} "The appropriating agency has the discretion to determine the location
and route of the land to be taken for public use, and, within reasonable and statutory
limits, to determine the amount of land required." Eschtruth Invest. Co., 2011-Ohio-
3251 at ¶ 10. The existence of alternate routes or methods of implementation is not
proof that a taking is unnecessary. Id.; Ogle, 2009-Ohio-5953 at ¶ 15. "Where two
lines for an electric transmission line are possible[,] it is discretionary with the
appropriating agency to select the route it will follow, and in the absence of fraud, bad
faith, or gross abuse of discretion, such determinations will not be disturbed by the
court." Cincinnati Gas and Elec. Co. v. Davies, 1st Dist. Butler Nos. CA 74-10-0086
and CA 74-10-0087, 1975 Ohio App. LEXIS 7474, *10 (June 30, 1975). "Evidence that
another route is feasible is not sufficient to show that the grantee's selection constitutes
bad faith, oppression or abuse of power." Id. at *10-11. Furthermore, "evidence that
another location or configuration would serve the same public use and be less
burdensome for the landowner would be relevant for the jury only in regard to the
question of the compensation required for the taking." Eschtruth Invest. Co. at ¶ 10.
{¶ 48} The record shows that the Board, through surrogates, made a reasoned,
good faith effort to determine the necessity for the appropriation before declaring it. It,
therefore, made a reasoned and good faith effort to exercise the discretion given it by
R.C. Chapter 163. Cleveland Electric Illuminating Co. v. Scapell, 44 Ohio App.2d 13,
16 (8th Dist.1975). At the hearing, the Duffs did not produce any evidence that AEP
engaged in fraud, bad faith, or gross abuse of discretion in selecting the reroute across
their property and in determining that the appropriation was necessary. As discussed
- 16 -
Madison CA2020-01-004
above, the testimony elicited at the hearing and relied upon by the Duffs does not rebut
the presumption that acquiring the easement across their property was necessary for
public use.
{¶ 49} Accordingly, because AEP passed a resolution of necessity, and
because the Duffs failed to rebut the presumption that the appropriation was
necessary, we find there is competent and credible evidence supporting the trial court's
judgment in favor of AEP.
{¶ 50} The first and third assignments of error are overruled.
{¶ 51} Judgment affirmed.
HENDRICKSON, P.J., and RINGLAND J., concur.
- 17 -