Agenda - Planning Commission - 01/31/2013 - Special

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October 10, 2012 I Volume 6 I Issue 19 Zoning Bulletin looked to case law for guidance as to what constitutes a "public utility" for the purposes of R.C. 519.211. The court found that to qualify as a "public utility" under R.C. 519.211, and thus be exempt from the local zoning restrictions, an entity must: (1) provide a "public service"; and (2) the nature of its operation must be a matter of "public concern." When analyzing whether an entity provides a "public-service," the court looks to whether there: "is a devotion of an essential good or service to the general public which has a legal right to demand or receive this good or service." In other words, "the entity must provide its good or service to the public indiscriminately and reasonably," with an "obligation to provide the good or service which cannot be arbitrarily or unreasonably withdrawn." As for the public -concern factor, there must be an "indiscriminate treatment of that portion of the public which needs and pays for the vital good or service offered by the entity." When detecniining whether an enterprise conducts itself in such a way as to become a matter of public concern, the court looks to factors such as: the good or service provided; competition in the local marketplace; and regulation by governmental authority. Analyzing Rumpke under these factors, the court concluded that Rumpke was not a public utility because there was a lack of governmental regulation over the public service and public concern factors. Although Rumpke was subject to environmental regulations, the court found that there was a lack of governmental control over the public-service and public-concernfactors. With regard to the public service factor, the lack of other governmental regulation meant that Rumpke had full discretion in determining to whom it provided service and how or when that service was provided. There was no assurance or guarantee that Rumpke would provide its services to the public indiscrimi- nately and reasonably, nor was there anything preventing Rumpke from arbitrarily or unreasonably withdrawing its services. Furthermore, as a private company, Rumpke had the ability to set its own rates without any governmen- tal oversight. With regard to the public concern factor, Rumpke did occupy a monopolistic position in the marketplace and provided an essential service. However, no governmental body regulated Rumpke's rates or methods, allow- ing Rumpke to treat discriminately and arbitrarily the portion of the public to whom it provides its services. See also: Marano v. Gibbs, 45 Ohio St. 3d 310, 544 N.E.2d 635, 107 Pub. Util. Rep. 4th (PUR) 558 (1989). See also: A & B Refuse Disposers, Inc. v. Ravenna Twp. Bd. of Trustees, 64 Ohio St. 3d 385, 1992-Ohio-23, 596 N.E.2d 423 (1992). 6 © 2012 Thomson Reuters