Agenda - Planning Commission - 11/08/1999

Home

Page 2-- September 25, 1999 Z.B. Public Utility -- Trucking company claims exemption as public utility OHIO (8/23/99) -- Levy owned a trucking company that hauled gravel, sand, steel, and machinery. He operated the company on residentially zoned prop- erty in Osnaburg Township. Levy's company had a Certificate of Public Convenience and Necessity from the state public utilities commission allowing it to operate as an intrastate motor carrier. It also had a federal highway commission permit. The township zoning officer told Levy his business violated the township zoning ordinance because it was in a residential district. After Leby ignored his repeated requests that Levy stop operating his irucking company, the zon- ing officer sued Levy. Levy claimed the residential zoning didn't apPly to his company because it was a public utility. The statute that gave townships their zoning powers ex- empted public utilities from township zoning regulations. The statute didn't define "public utility," but Levy said the definition in a statute that outlined the powers of the public utilities commission should apply. That statute stated a motor transportation company was a public utility if it transported persons or property for hire and offered its services to the general public. According to the township, the court should consider whether Levy's com- pany met the common law criteria for public utilities. One characteristic was that public utilities provid.ed an essential service that the public l~ad a right to demand. Furthermore, the services couldn't be arbitrarily withdrawn, and the "utility" had to be a matter of public concern. The court awarded the township judgment without a trial. It ordered Levy to shut down his business within a month and permanently prohibited him from operating a commercial business on his property. Levy appealed. DECISION: Affirmed. The company was not exempt from zoning regulations. That Levy's company was regulated by the public utilities commission didn't make it a "public utility" trader the statute that gave townships thei. r zoning powers. Although the definition of "public utility" was flexible, to qualify, an entity had to provide an essential service that the general public had a legal right to demand. The "utility" also had to be a matter of public concern. Levy didn't prove his company provided an essential service or that the public had a legal right to demand the services of his company. Nor was there any evidence Levy's company couldn't arbitrarily refuse to haul any particular client's products. Finally, hauling gravel, sand, and steel wasn't an "essential service" in the same manner as water or electric service. The company's ser- vices weren't essential to the public just because the state issued the company a Certificate of Public Convenience and Necessity; Citation: Osnaburg Township Zoning Inspector v. Levy, Court of Appeals of Ohio, 5th Appellate Dist., Stark County, No. 1998CA00278 (1999). see also: Montville Board of Township Trustees v. WBDN Inc., 461 N.E. 2d 1345 (J983).