[Cite as Toledo Edison Co. v. Bd. of Defiance Cty. Commrs.,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT DEFIANCE COUNTY

THE TOLEDO EDISON COMPANY,

PLAINTIFF-APPELLEE, CASE NO. 4-13-04

v.

BOARD OF DEFIANCE COUNTY COMMISSIONERS, ET AL., OPINION

DEFENDANTS-APPELLANTS.

Appeal from Defiance County Common Pleas Court Trial Court No. 12-CV-41752

Judgment Reversed and Cause Remanded

Date of Decision: December 9, 2013

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 Case No. 4-13-04

PRESTON, P.J.

{¶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, The Toledo Edison Company (“Toledo Edison”), to remove and

relocate several of its utility poles located within the county-owned rights-of-way1

along Harding and Bend Roads in Defiance County, Ohio pursuant to R.C.

5547.03. For the reasons that follow, we reverse.

{¶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 1 “Right-of-way” is defined as “[a] general term denoting land, property, or the interest therein, usually in the configuration of a strip, acquired for or devoted to transportation purposes. When used in this context, right-of-way includes the roadway, shoulders or berm, ditch, and slopes extending to the right-of-way limits under the control of the state or local authority.” R.C. 4511.01(UU)(2). 2 The commissioners’ December 15, 2011 letter to Toledo Edison reflects that the number of utility poles at this location is 37. (Doc. No. 5, Ex. A).

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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.,

,

. (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 R.C. 5547.03 and

5547.04. (Doc. No. 5, Ex. A).

{¶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

3 The commissioners’ December 15, 2011 letter to Toledo Edison reflects that the number of utility poles at this location is nine. (Doc. No. 5, Ex. A). At oral argument, the parties indicated that this project is now complete.

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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,

.

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 R.C. 5547.03 and enacted Resolution No. 12-01-058, which ordered Toledo

Edison to relocate its 70 utility poles along Harding and Bend Roads to locations

approved by the county engineer. (Ex. A); (Doc. No. 1, attached).

{¶8} On February 8, 2012, Toledo Edison appealed Resolution No. 12-01-

058 to the Defiance County Court of Common Pleas pursuant to R.C. 307.56 and

2506. (Doc. No. 1). That same day, Toledo Edison also filed a motion to stay

execution of the resolution pending the administrative appeal, which the trial court

granted on May 23, 2012. (Doc. Nos. 2, 10).

{¶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

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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 R.C. 5547.03

based upon substantial evidence presented at the hearing and not in violation of

the Takings Clause. (Doc. No. 11).

{¶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.

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{¶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 R.C. 5547.03.

{¶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 R.C. 5547.03. The commissioners

argue that Turner concerned a telephone company’s tortious liability stemming

from an automobile accident; whereas, this case concerns the commissioners’ duty

to ensure the roadways are obstruction-free pursuant to R.C. 5547.03.

{¶14} A person aggrieved by a decision of a board of county

commissioners may appeal to the common pleas court under Chapter 2506. R.C.

307.56. Likewise, R.C. 2506.01(A) provides that “every final * * * decision of

any * * * board * * * of any political subdivision of the state may be reviewed by

the court of common pleas of the county in which the principal office of the

political subdivision is located.”

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{¶15} When reviewing the board’s judgment, the common pleas court must

consider the “‘whole record,’ including any new or additional evidence admitted

under R.C. 2506.03, and determine whether the administrative order is

unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the

preponderance of substantial, reliable, and probative evidence.” Henley v.

Youngstown Bd. of Zoning Appeals,

(2000).

{¶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,

(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.,

(1979).

{¶17} In contrast, “[t]he standard of review to be applied by the court of

appeals in an R.C. 2506.04 appeal is ‘more limited in scope.’”

,

quoting

(emphasis sic). The Court of Appeals reviews the judgment of

the common pleas court only for “questions of law,” which does not include the

same extensive power to weigh “the preponderance of substantial, reliable and

probative evidence,” as is granted to the common pleas court.

quoting Kisil at

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34, fn. 4. “It is incumbent on the trial court to examine the evidence. Such is not

the charge of the appellate court. * * * The fact that the court of appeals * * *

might have arrived at a different conclusion than the administrative agency is

immaterial.”

, quoting Lorain City School Dist. Bd. of Edn. v. State

Emp. Relations Bd.,

(1988). An appellate court must

affirm the trial court’s decision, unless it finds, as a matter of law, that the lower

court’s decision is not supported by a preponderance of reliable, probative and

substantial evidence.

.

{¶18} Administrative appeals under R.C. 2506.04 are reviewed under an

abuse-of-discretion standard. Briggs v. Dinsmore Twp. Bd. of Zoning Appeals,

,

(3d Dist.). “Abuse of discretion”

implies that the trial court’s decision was unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore,

(1983). See also

Armstead v. Lima City Bd. of Edn.,

(3d Dist. 1991)

(“Within the ambit of ‘questions of law’ for appellate court review would be abuse

of discretion by the common pleas court.” (emphasis and internal quotation marks

omitted)), quoting Kisel at 34, fn. 4.

{¶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,

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Doc. No. 17). In reaching that conclusion, the trial court framed the “dispositive

issue” as “whether the Board of County Commissioners, or the County Engineer,

has unlimited discretion to determine the existence of an obstruction and order its

removal.” (Id.). The trial court answered this inquiry in the negative based upon

the concept of an administrative appeal found in Chapter 2506. (Id.). It concluded

that the “reliable, substantial and probative evidence” standard must be “defined

with reference to the applicable legal standards, be they pronouncements of the

Ohio Supreme Court or enactments of the legislature.” (Id.).

{¶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 R.C. 5547.03 to remove obstructions and other

interferences from county highways. Geauga Bd. of Commrs. Munn Rd. Sand &

Gravel,

(counties may exercise only those powers

affirmatively granted by the Ohio General Assembly); Article X, Section 1, Ohio

Constitution.4 The answer to this question requires an interpretation of R.C.

5547.03 and, specifically, the word “obstruction.” The interpretation of a statute

and undefined statutory terms are questions of law reviewed de novo on appeal.

Riedel v. Consol. Rail Corp.,

,

; Hewitt v. 4 There is no indication that Defiance County is an Article X, Section 3 home-rule county. Our research indicates that only Cuyahoga and Summit Counties have adopted a charter pursuant to this section. See Green v. Cuyahoga Cty.,

,

(8th Dist.); Akron-Canton Chapter of Am. Subcontractors Assn. v. Morgan, 9th Dist. Summit No. 10724,

(Sept. 1, 1982). See also Cianca, Home Rule in Ohio Counties: Legal and Constitutional Perspectives, 19 U. Dayton L.Rev. 533 (1994).

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L.E. Myers Co.,

,

. To interpret a statute,

we begin with its plain language. Horsely v. United Ohio Ins. Co.,

(1991).

{¶21} R.C. 5547.03 provides, in relevant part:

[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

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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

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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} R.C. 5547.03 provides two different procedures for the removal or

relocation of objects or structures constituting obstructions or interferences

depending upon the person or entity’s right to use or occupy the highway, bridge,

or culvert. Persons or entities using or occupying “other than by virtue of a

franchise legally granted” fall under Division [A]; whereas, those using or

occupying “under and by virtue of a franchise legally granted” fall under Divisions

[B] and [C]. Toledo Edison’s right to use or occupy the right-of-way falls under

the first category, so Division [A] applies. (Ex. C, Pg. 6); (Doc. No. 9, Pg. 5);

(Appellee’s Brief at 4).

{¶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

5 For clarity, we have designated the paragraphs within the statute as divisions “A,” “B,” and “C.”

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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, R.C. 5547.03[A]

authorizes the board of county commissioners to order the removal of objects or

structures if, in its opinion, the objects or structures: (1) “constitute obstructions

in any highway * * * or the bridges or culverts thereon”; (2) “interfere or may

interfere with the proposed improvements of * * * highways, bridges, or culverts

[with any object or structure thereon]”; or (3) “interfere or may interfere” with

“the use [of highways, bridges, or culverts with any object or structure thereon] by

the traveling public.”6 Because these clauses are separated by the term “or,” each

of these reasons serves as an independent justification for a removal order.

6 At oral argument, Toledo Edison argued that “interfere or may interfere” modifies the phrase “with the proposed improvement of such highways, bridges, or culverts” only. We disagree. To read the statute in that manner leaves the phrase “or the use thereof by the traveling public” without a verb and converts it into a dangling modifier. The more reasonable interpretation is that the second clause of R.C. 5547.03[A] has two sub-clauses—the first related to improvements, and the second related to the traveling public’s use of highways, bridges, and culverts, generally.

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{¶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 R.C. 5547.03[A][1]

above. (Ex. B); (Ex. C, Pgs. 1, 6); (Doc. No. 1). Consequently, Toledo Edison

argued in the prior proceedings that their utility poles were not “obstructions”

under R.C. 5547.03, relying on Turner v. Ohio Bell Tel. Co.,

,

. The trial court agreed and apparently relied on Turner to

conclude that the record did not contain a preponderance of substantial, reliable,

and probative evidence supporting Resolution No. 12-01-58.

{¶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.

, 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

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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 availability of less dangerous

locations. Id. at ¶ 15, citing Turner,

.

{¶29} The utility companies appealed, and the Supreme Court of Ohio

reversed, holding:

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* * * 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 R.C.

4939.03 (municipalities), 5547.03 (counties), and 5515.01 (the State). The Court

stated that, in the case of State highways, approval may be granted only when the

use “will not incommode the traveling public.” Id., citing R.C. 5515.01.

Consequently, the issue presented, according to the Court, was: “when does a

utility pole incommode the public in the use of the roads or highways?” Id. at ¶ 8.

{¶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

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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 R.C. 4511.33.

{¶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 R.C.

5547.03 was an error of law. The holding in Turner is essentially this: if (1) the

public utility company has obtained any necessary permission to install its pole,

and (2) the pole does not interfere with the usual and ordinary course of travel,

then the public utility company is not liable, as a matter of law, when a vehicle

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collides with its utility pole located off the improved portion of the roadway but

within the right-of-way.

, at ¶ 21. Toledo Edison’s argument, on

the other hand, is essentially: if (1) the utility pole is located off the improved

portion of the roadway, then (1) it does not interfere with the usual and ordinary

course of travel, and (2) it is not an obstruction under R.C. 5547.03. Toledo

Edison’s argument does not follow from Turner. That the utility pole is located

off the improved portion of the roadway is a necessary but not a sufficient

condition to ensure that it is not an obstacle to the traveling public. Many of the

factors the Ohio Supreme Court in Turner recognized as relevant for the public

authority’s approval relate to things other than this necessary fact. Id. at ¶ 15, 20.

{¶33} Furthermore, Turner interpreted “incommode” in R.C. 5515.01, not

“obstruction” in R.C. 5547.03, and the issue in Turner was categorically different

than here. Turner concerned the liability of a utility company for the death of an

automobile passenger whose automobile collided with one of its utility poles that

was located off the improved portion of the highway within the right-of-way with

the public authority’s approval. Turner did not concern the director of

transportation’s authority under R.C. 5515.02 to order the removal of the utility

pole—a similar issue to that presented here. Simply stated, Turner does not define

“obstruction” in R.C. 5547.03, does not concern the same issue as this case, and

does not compel the result Toledo Edison seeks.

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{¶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,

(1990), citing State v. Young,

(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 R.C. 5547.03 increases their breadth by

modifying the term “obstruction” with the phrase “in the opinion of the board of

county commissioners.” Utility poles located within right-of-way can “interfere

with” or “make difficult” the use of the highway for the traveling public.

{¶35} Implicit in Toledo Edison’s argument—as evidenced by its exclusive

reliance upon Turner—is that an object is not an “obstruction” under R.C. 5547.03

unless it obstructs the ability of motorists to safely travel the road. As we noted

above, Turner, itself, does not support this argument. This is also the same

argument the Court of Appeals rejected in Steigerwald v. Branagan, 7th Dist.

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Jefferson No. 07 JE 25,

. In that case, the county commissioners,

pursuant to R.C. 5547.04, ordered private property owners to remove a fence and

trees they placed within the right-of-way and two feet from the edge of the road.

Id. at ¶ 3. After the landowners refused, the county engineer removed the fence

and trees, and the county auditor assessed the property $1,296.79 for the cost of

the removal, both procedures provided for in R.C. 5547.03. Id. at ¶ 11-12.

Afterwards, the property owners sued the county commissioners arguing, in

pertinent part, that “obstruction” in R.C. 5547.04 means that the object(s) must

obstruct the ability of motorists to safely travel on the road. Id. at ¶ 38-39. The

trial court disagreed.

{¶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: “a hindrance, obstacle, barrier or an object that delays, impedes

or hinders.” Id. at ¶ 38. Nevertheless, the landowners argued that R.C. 5547.04

prohibited only objects that obstruct the ability of motorists to safely travel on the

road. Id. at ¶ 38. The appellate court disagreed, stating:

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,

then R.C. 5547.04 applies. In its plain and ordinary sense, the

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statute would include a fence and trees as being obstructions as they

are obstacles and barriers existing within the undisputed right of

way.

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: R.C. 5547.04

refers to the removal of “obstructions within the bound of the highway”; R.C.

5547.03 refers to the removal “from the bounds of such highway * * * [any object

or structure] when, in the opinion of the county commissioners, they constitute

obstructions in any highway * * *.” Neither statute limits the word obstruction in

terms of vehicular traffic. If anything, “obstruction” in R.C. 5547.03 should be

given a broader meaning than in R.C. 5547.04 since it is modified in the former

statute by the phrase “in the opinion of the board of county commissioners.”

Additionally, both R.C. 5547.03 and 5547.04 govern the same subject—the county

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commissioners’ authority to remove obstructions from “the bounds of the

highways.” See R.C. 1.49(D).

{¶38} Although not binding on this Court, the Ohio Attorney General has

also concluded that the General Assembly intended “obstruction” in R.C. 5547.04

to have “a very broad meaning.” 1980 Ohio Atty.Gen.Ops. No. 80-043,

, *3. The Attorney General opined, in relevant part, that “obstruction” in

R.C. 5547.04’s first paragraph “is not limited to something that interferes with the

flow of traffic on the highway or with the construction or repair of the highway.”

Reading the statute as a whole, the Attorney General opined:

* * * 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.

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Because R.C. 5547.03 and 5547.04 are similarly worded and govern similar

subjects, there is no reason to interpret “obstruction” in R.C. 5547.03 less broadly

than in 5547.04. See R.C. 1.49(D).

{¶39} In an analogous context, the Court of Appeals has characterized the

State director of transportation’s authority to remove obstructions in the State

highways, bridges, and culverts pursuant to R.C. 5515.02 as a judgment by a

public official with which a court should not interfere absent fraud or gross abuse

of discretion. Lamborn v. Wray, 2d Dist. Clark No. 95-CA-0028,

, *4 (Mar. 29, 1996). In Lamborn, private landowners sought to enjoin the

director from removing 40 arborvitae shrub seedlings they planted in their front

yard along U.S. Route 40. Id. at *1. The trial court granted the director summary

judgment and permitted the removal of the shrubs based on the affidavits of a

survey supervisor and an operations engineer, both of whom worked for the State

department of transportation. Id.

{¶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

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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

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highways. R.C. 5515.02, the statute at issue in Lamborn, provided operative

language similar to the statute at issue here:

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, R.C. 5515.02 had three independent

clauses authorizing the director to order the removal of an object or structure from

the bounds of a highway, and all three clauses were modified by the phrase “when

in the opinion of the director of transportation,” similar to R.C. 5547.03’s “when

7 The version enacted in 1953, when the General Assembly switched from the General Code to the Ohio Revised Code, contained this same applicable language.

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in the opinion of the board of county commissioners” modifying phrase.8 While

R.C. 5515.02’s second clause was broader than 5547.03’s because it included

“maintenance or repair,” two reasons not listed in 5547.03, both statutes provide a

third clause authorizing removal of objects or structures that “interfere or may

interfere” with the traveling public’s use of the highways, bridges, or culverts. In

light of the statutes’ similar wording and subject matter, Lamborn persuades us

that R.C. 5547.03 provides the board of county commissioners broad authority to

remove obstructions and interferences from highways, bridges, and culverts.

{¶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 8 In 1998, R.C. 5515.02 was amended to provide, in pertinent part “* * * or interfere or may interfere with the contemplated construction, reconstruction, improvement, maintenance, or repair of the roads, highways, bridges, or culverts or with their use by the traveling public.” (Eff. Sept. 16, 1998). The statute was amended again, in pertinent part, to provide “* * * or use by the traveling public of the roads or highways.” (Eff. Apr. 5, 2001). Unlike R.C. 5515.02, 5547.03 has never been amended since its initial passage in 1953.

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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,” R.C.

5547.03’s broad statutory language, Steigerwald, Lamborn, and Ohio Attorney

General Opinion No. 80-043, we conclude that Toledo Edison’s utility poles

could, in the opinion of the county commissioners, constitute “obstructions”

subject to ordered-removal. The trial court erred as a matter of law and, therefore,

abused its discretion, by relying on Turner to interpret “obstruction” more

narrowly than its common, ordinary meaning. Furthermore, the trial court failed

to observe what that Court in Turner did observe—that the General Assembly has

delegated to public authorities (municipalities, counties, and the State director of

transportation) the authority to approve the location of utility poles within the road

right-of-way in the interest of public safety.

, at ¶ 20. The utility

companies in Turner were not liable precisely because the State director of

transportation had approved the utility pole location, and his approval was

“indicative that the object was not an obstacle to the traveling public.”

The

Court in Turner recognized that the public authority would consider a variety of

factors when considering the location of a utility pole. Id. at ¶ 15, 20.

{¶46} The Board of Defiance County Commissioners exercised authority

that the General Assembly has affirmatively delegated to it and authority that the

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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 R.C. 5547.03 when it

determined that Toledo Edison’s utility poles constituted obstructions. Once the

board determined that the utility poles were obstructions, Toledo Edison was

permitted to obtain the board’s consent and approval to relocate their poles “in

such manner as the board prescribes.” R.C. 5547.03. Resolution No. 12-01-058

specifically ordered Toledo Edison to either remove their poles or relocate them

“to a location approved by the Defiance County Engineer.” (Doc. No. 1,

attached).

{¶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

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labeled as such. R.C. 5547.03[A][2]. Therefore, snow removal was an

independent justification for the county commissioners’ decision to order the

removal of Toledo Edison’s utility poles. Toledo Edison did not present any

evidence to rebut the county engineer’s testimony in this regard.

{¶48} Our decision is not only consistent with the R.C. 5547.03’s broad

statutory language, analogous statutory provisions, case law, and the opinion of

Ohio’s Attorney General but also the public policy of permitting public utility

companies access to publicly owned road rights-of-way subject to the approval of

the applicable public authority. See R.C. 723.01 (municipalities authority to

govern roadways), 4939.03 (consent of municipality necessary to occupy/use the

bounds of the highway), 5547.04 (county commissioners’ authority to remove

obstructions; consent and approval to occupy/use the bounds of the highway),

5515.01 (state director of transportation’s authority to issue permits to occupy/use

state highways); Turner,

. The factors that public authorities

consider for the initial placement or the removal/relocation of objects and

structures within the right-of-way are best determined and evaluated by those

officials who are not only aware of the particular circumstances concerning the

location but responsible for maintaining the roadways. See R.C. 5535.01

(classifying types of highways and setting forth the public authority responsible).

The judiciary should not overturn a public authority’s decision in these matters

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unless the decision fails to meet R.C. 5547.03’s statutory criteria, or it fails to meet

the standards for administrative appeals pursuant to R.C. 2506.03 and 2506.04.

{¶49} As a final matter, we want to address a concern voiced in the trial

court’s opinion and echoed at oral argument by Toledo Edison—whether the

board of county commissioners has “unbridled” discretion under R.C. 5547.03 to

order the removal of an object of structure it categorizes as an “obstruction” in the

highway. This question is answered by the statutory language, itself, with a

simple “no.” While the modifying phrase “in the opinion of the board of county

commissioners” results in broad discretion, it is not “unbridled.” The language of

the statute sets forth three, independent bases for the board of county

commissioners to order removal—their decision must rest on one or more of these

bases. As the trial court recognized, the board’s decision is still subject to

administrative appeal where the trial court can determine whether its removal

order was “unconstitutional, illegal, arbitrary, capricious, unreasonable, or

unsupported by the preponderance of substantial, reliable, and probative

evidence.” Henley,

; R.C. 307.56; 2506.01(A).

{¶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

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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 R.C. 5547.03. We have rejected this

categorical rule of law.

{¶51} Because the trial court erred as a matter of law and, therefore, abused

its discretion by relying on Turner to interpret “obstruction” in R.C. 5547.03 more

narrowly than its common, ordinary meaning, and the record contains a

preponderance of substantial, probative evidence supporting the board of county

commissioners’ opinion that Toledo Edison’s utility poles were obstructions in the

highway and that the utility poles interfered or may interfere with the use of the

highway by the traveling public, we sustain the first and third assignments of error

and reverse the decision of the trial court vacating Resolution No. 12-01-058.

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 R.C. 2506.04. In particular, the commissioners argue that the trial

court engaged in a “how close is too close to constitute an obstruction” analysis

inconsistent with the trial court’s duty to presume regularity and defer to an

agency’s determination.

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{¶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. App.R. 12(A)(1)(c).

{¶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.

/jlr

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