Columbia Gas v. Phelps Preferred Invests., L.L.C.

[Cite as Columbia Gas v. Phelps Preferred Invests., L.L.C., 2022-Ohio-2540.]

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

COLUMBIA GAS OF OHIO, INC.,

PETITIONER-APPELLANT, CASE NO. 14-22-07

v.

PHELPS PREFERRED INVESTMENTS, LLC,
OPINION
RESPONDENT-APPELLEE.

Appeal from Union County Common Pleas Court
Trial Court No. 21-CV-0137

Judgment Affirmed

Date of Decision: July 25, 2022

APPEARANCES:

Adam C. Smith for Appellant

Andrew C. Clark and Richard T. Ricketts for Appellee
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SHAW, J.

{¶1} Petitioner-Appellant, Columbia Gas of Ohio, Inc. (“Columbia Gas”),

appeals from a judgment entry of the Union County Court of Common Pleas

dismissing Columbia Gas’ petition in an action involving appropriation of easement

rights.

Facts and Procedural Background

{¶2} In August 2020, the Ohio Power Siting Board (“Siting Board”)

approved Columbia Gas’ Letter of Notification application “for the construction,

operation, and maintenance of the Marysville Connector Pipeline Project” (the

“Pipeline Project”), subject to two conditions which are not at issue in this appeal.

(Petitioner’s Ex. 7). According to the Siting Board’s Opinion, Order, and

Certificate, the Pipeline Project is a 4.78-mile natural gas pipeline route near

Marysville, Union County.

{¶3} By a letter dated July 21, 2021, Columbia Gas sent Respondent-

Appellee, Phelps Preferred Investments, LLC (“Phelps”) a notice of intent to acquire

an easement across Phelps’ parcels of real property located in Union County for

purposes of the project involving installation of the natural gas pipeline

infrastructure. (Respondent’s Ex. R). The pipeline route is on 1.7 miles of the

Phelps’ property. (Tr. at 168). Despite negotiations, the parties were unable to

agree on the proposed easement rights.

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{¶4} Accordingly, on August 30, 2021, Columbia Gas, a public utility, filed

in the Common Pleas Court of Union County a verified petition for appropriation

of easements rights on the real property owned by Phelps. The petition claimed that

the Pipeline Project and acquisition of the easement rights are “necessary and for a

public use” to construct, operate, and maintain the Marysville Connector Facility.

(Doc. No. 2 at ¶ 38). The petition included among the exhibits a copy of the

proposed easement and a copy of the Siting Board’s August 27, 2020 Opinion,

Order, and Certificate for the Pipeline Project.

{¶5} Phelps filed an answer objecting to the appropriation action. Phelps’

answer raised ten specific denials to Columbia Gas’ petition.

{¶6} On December 7, 2021, the trial court conducted a necessity hearing. At

this hearing, both parties were given the opportunity to present testimony and

evidence for and against their respective positions. Columbia Gas called two

witnesses, Melissa Thompson, Director of Regulatory Policy for Columbia Gas, and

Matthew Opfer, a Manager of Major Projects for Columbia Gas, through his work

at NiSource. Phelps testified on its behalf by Doug Phelps (a member and manager

of Phelps). The office manager of the law firm of Ricketts & Clark Co., LPA also

testified and Opfer was called on cross-examination by Phelps.

{¶7} On February 8, 2022, the trial court issued a judgment entry finding the

following three specific denials asserted in Phelps’ answer have merit: “Excess

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taking relating to pipeline specification;” “Excessive taking relating to blanket

easement for valves and appurtenances;” and “Excessive taking as to width and

duration of easement.” (Doc. No. 44, Feb. 8, 2022 J.E. on Necessity Hearing, p. 1-

2). The trial court’s conclusions of law state that (1) the burden was upon Petitioner

[Columbia Gas] to prove that the appropriation was taking no more than was

necessary to promote the public; and (2) the Ohio Power Siting Board in failing to

examine the applicable easement documents itself, failed to determine if the

appropriation was taking only that which was necessary. (Id. at p. 3, citing Norwood

v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799; Ohio Power Co. v. Burns, 4th

Dist. Washington Nos. 20CA19, 20CA20, 20CA21, and 20CA22, 2021-Ohio-2714,

appeal not allowed, 165 Ohio St.3d 1478, 2021-Ohio-4289, reconsideration

granted, 165 Ohio St.3d 1543, 2022-Ohio-397.) As a result, the trial court

concluded that Columbia Gas’ petition should be dismissed pursuant to R.C.

163.09([G]).

{¶8} From this decision, Columbia Gas appeals, asserting the following

assignments of error.

Assignment of Error No. 1

The Trial Court erred in failing to find in the Judgment Entry on
Necessity Hearing (the “Judgment Entry”) that
Petitioner/Appellant Columbia Gas of Ohio, Inc., (“Columbia
Gas”) is not entitled to an irrebuttable presumption of necessity
pursuant to R.C. 163.09(B)(1)(c), despite the Ohio Power Siting
Board (“OPSB”) approving Columbia Gas’ Letter of Notification

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Application for the Marysville Connector Pipeline Project (the
“Project”), which contained the easement terms Columbia Gas
seeks to appropriate.

Assignment of Error No. 2

The Trial Court erred in failing to find in the Judgment Entry
that Columbia Gas is entitled to a rebuttable presumption of
necessity pursuant to R.C. 163.09(B)(1)(b), despite Columbia Gas
presenting evidence of necessity of the appropriation, despite
considerable deference afforded to an appropriating public
utility, and despite Respondent Phelps Preferred Investments,
LLC’s (“Phelps”) failure to overcome Columbia Gas’
presumption of necessity of the appropriation.

Assignment of Error No. 3

The Trial Court erred in finding in favor of Phelps in the
Judgment Entry on Phelps’ second specific denial that Columbia
Gas is seeking excessive pipeline specifications, despite only
Columbia Gas proffering evidence that such pipeline
specifications are reasonably convenient or useful to the public.

Assignment of Error No. 4

The Trial Court erred in finding in favor of Phelps in the
Judgment Entry on Phelps’ third specific denial that Columbia
Gas is seeking excessive “blanket” easement rights, despite only
Columbia Gas proffering evidence that Columbia Gas’ easement
rights are limited to a 75´ easement corridor that is depicted by a
professional surveyor and that such easement corridor is
reasonably convenient or useful to the public.

Assignment of Error No. 5

The Trial Court erred in finding in favor of Phelps in the
Judgment Entry on Phelps’ fourth specific denial that Columbia
Gas is seeking excessive rights regarding Columbia Gas’ 25´
temporary construction easement because Columbia Gas is
authorized to use that area after initial pipeline construction only

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for limited work on the pipeline, despite only Columbia Gas
proffering evidence that such rights are reasonably convenient or
useful to the public.

Assignment of Error No. 6

The Trial Court erred by dismissing Columbia Gas’ Petition in
the Judgment Entry and by failing to hold a compensation
hearing pursuant to R.C. 163.09(B)(2), regardless of how the Trial
Court decided Phelps’ specific denials.

{¶9} Because the first through fifth assignments of error present related

issues, we address them together.

Standard of Review

{¶10} “The interpretation and application of a statute is a matter of law that

an appellate court reviews de novo.” Ohio Power Co., 4th Dist. Washington Nos.

20CA19, 20CA20, 20CA21, and 20CA22, 2021-Ohio-2714, at ¶ 45. Additionally,

“we review the trial court’s decision on the extent of the take de novo, without any

deference to the trial court’s determination, as it is an issue of law.” (Italics sic.)

Ohio Dept. of Natural Resources v. Thomas, 3d Dist. Mercer No. 10-16-05, 2016-

Ohio-8406, ¶ 46.

Statutory Framework

{¶11} Pursuant to R.C. 163.021(A), “No agency1 shall appropriate real

property except as necessary and for a public use. In any appropriation, the taking

1
An “agency” includes “any corporation * * * that is authorized by law to appropriate property in the courts
of this state.” R.C. 163.01(B), (C).

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agency shall show by a preponderance of the evidence that the taking is necessary

and for a public use.” Importantly, when the affected property owner files an answer

which consists of specific denials, the appropriation provisions in R.C. 163.09(B)(1)

provide for a hearing on:

any of the matters relating to the right to make the appropriation, the
inability of the parties to agree, or the necessity for the appropriation
* * * . Upon those matters, the burden of proof is upon the agency by
a preponderance of the evidence except as follows:

***

(b) The presentation by a public utility or common carrier of
evidence of the necessity for the appropriation creates a rebuttable
presumption of the necessity for the appropriation.

(c) Approval by a state or federal regulatory authority of an
appropriation by a public utility or common carrier creates an
irrebuttable presumption of the necessity for the appropriation.

{¶12} The Fourth Appellate District has explained the effect of such

presumptions as follows:

“[A] presumption shifts the evidentiary burden of producing evidence,
i.e., the burden of going forward, to the party against whom the
presumption is directed; it does not effect the burden of proof, which
remains the same throughout the case. Moreover, a rebuttable
presumption does not carry forward as evidence once the opposing
party has rebutted the presumed fact. Thus, once the presumption is
met with sufficient countervailing evidence, it fails and serves no
further evidentiary purpose. * * * [T]he case then proceed[s] as if the
presumption had never arisen. (Citations omitted.)”

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Ohio Power Co. at ¶ 46, quoting Horsley v. Essman, 145 Ohio App.3d 438, 444,

2001-Ohio-2557 (4th Dist.); see also Hoyle v. DTJ Ent., Inc., 143 Ohio St.3d 197,

2015-Ohio-843, ¶ 24.

{¶13} Further, R.C. 163.09(B)(2) states that at the hearing, the necessity of

the appropriation is a question for the trial court to determine.

Legal Analysis

A. The Presumption in R.C. 163.09(B)(1)(c)

{¶14} Columbia Gas contends that the trial court erred in failing to find that

it is entitled to an irrebuttable presumption of necessity for the appropriation under

R.C. 163.09(B)(1)(c) because the Siting Board, a state regulatory authority,

approved the Pipeline Project. Columbia Gas further suggests that even if approval

of the Pipeline Project alone does not trigger the irrebuttable presumption, it is

entitled to the rebuttable presumption for the reason that the Siting Board approved

the terms within the easement that it seeks to acquire in this case.

1. The Ohio Power Siting Board

{¶15} To obtain a certificate from the Siting Board to build a major utility

facility, a company must submit an application that, inter alia: (1) describes the

major utility facility and its location; (2) summarizes any environmental-impact

studies that have been conducted; (3) explains the need for the facility; (4) states

why the proposed location is “best suited for the facility.” R.C. 4906.06(A)(1)-(4).

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The Siting Board “shall not grant a certificate for the construction, operation, and

maintenance of a major utility facility * * * unless it finds and determines all of the

following:” the basis of the need for the facility; the nature of the probable

environmental impact; that the facility represents the minimum adverse

environmental impact, considering the state of available technology and the nature

and economics of the various alternatives, and other pertinent considerations; and

that the facility will serve the public interest, convenience, and necessity. R.C.

4906.10(A)(1)-(3), (6).

{¶16} As stated earlier, Columbia Gas received Siting Board regulatory

approval for the construction, operation, and maintenance of the subject Pipeline

Project. The certificate of approval notes adequate data was provided “to make the

applicable determinations required by R.C. 4906.10,” and that pursuant to R.C.

Chapter 4906, a certificate of approval should be issued. (Petitioner’s Ex. 7 at ¶ 61-

62). One of the listed requirements in R.C. 4906.10 for the Siting Board to grant a

certificate is “that the facility will serve the public interest, convenience, and

necessity.” R.C. 4906.10(A)(6).

{¶17} Columbia Gas in its brief states that the Siting Board “approved,

among other things, the precise dimensions of the permanent easement and

temporary construction easement; the location of the Pipeline; that Columbia Gas

needs to acquire easements, including an easement on Phelps’ property, before

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beginning the authorized work on the Pipeline; and that Columbia Gas is authorized

to construct, operate, and maintain the Pipeline.” (Appellant’s Brief at 12).

Columbia Gas’ brief then cites to testimony of Ms. Thompson who reviewed the

Siting Board’s certificate of environmental compatibility and public need for the

Pipeline Project and testified that it constituted approval of the rights set forth in the

easement at issue in this appropriation. Id.

{¶18} The Ohio Supreme Court has held that “[c]ourts shall apply

heightened scrutiny when reviewing statutes that regulate the use of eminent-

domain powers.” Norwood v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, at

paragraph three of the syllabus. Further, courts have strictly construed the

appropriation provisions of R.C. 163.01 et seq. against the governmental agency.

See, e.g., State ex rel. Ohio History Connection v. Moundbuilders Country Club Co.,

5th Dist. Licking No. 2019 CA 00039, 2020-Ohio-276, ¶ 20. Thus, “R.C. 163.09(B)

states that the presumptions apply where the * * * state regulatory authority

approves the appropriation.” Ohio Power Co., 4th Dist. Washington Nos. 20CA19,

20CA20, 20CA21, and 20CA22, 2021-Ohio-2714, at ¶ 51.

{¶19} We find persuasive the decision of the Fourth District Court of

Appeals in Ohio Power Co. v. Burns, supra. The appellate court found the

irrebuttable presumption in R.C. 163.09(B)(1)(c) inapplicable because the state

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regulatory authority did not approve the actual easements being sought from the

landowners. It reasoned that:

The irrefutable evidence is that the Siting Board and the Ohio
Power Board did not review or approve the easements sought
from the Landowners. Thus, the trial court erred in applying the
irrebuttable presumption of the necessity for the proposed
easements. The Siting Board made no findings about the
appropriations at issue here. Because the Siting Board did not
approve these appropriations, Ohio Power was not entitled to the
irrebuttable presumption of the necessity for the proposed
easements under R.C. 163.09(B)(1)(c).

Id.

{¶20} Similarly, under the facts of this case, we find that the Siting Board

was never provided with the proposed easement sought from Phelps. (Tr. at 91-92).

The Siting Board did not review or approve the terms of the proposed easement in

this case. Accordingly, Columbia Gas was not entitled to an irrebuttable

presumption of the necessity of the appropriation, i.e. the proposed easement from

Phelps, under R.C. 163.09(B)(1)(c).

B. The Presumption in R.C. 163.09(B)(1)(b)

{¶21} Columbia Gas also contends that the trial court erred in failing to find

it is entitled to R.C. 163.09(B)(1)(b)’s rebuttable presumption of necessity for the

appropriation and, therefore, erroneously placed the burden “upon the Petitioner to

prove that the appropriation is taking no more than is necessary to promote the

public.” See Feb. 8, 2022 J.E., Conclusions of Law, No. 1, citing Norwood v.

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Horney, 110 Ohio St.3d 353, 2006-Ohio-3799. According to Columbia Gas, the

pipeline will: (1) provide natural gas service to new industry and residential

development; and (2) provide existing customers with increased capacity for

reliable natural gas service. (Petitioner’s Ex. 1 at p. 2).

{¶22} Here, the trial court determined, as an initial matter, that “[t]his project

would benefit the community of Marysville and surrounding areas with an increase

in available natural gas.” (Feb. 8, 2022 J.E., Findings of Fact, No. 3). Further, as

discussed above, one of the listed requirements in R.C. 4906.10 for the Siting Board

to grant the approval certificate was “that the facility will serve the public interest,

convenience, and necessity.” R.C. 4906.10(A)(6). However, these broad

conclusions regarding the Pipeline Project were insufficient to establish a rebuttable

presumption of the necessity for the proposed easement under 163.09(B)(1)(b).

{¶23} The trial court determines at a R.C. 163.09(B) hearing “whether the

entire appropriation was necessary; specifically whether the amount taken was

excessive.” Octa v. Octa Retail, L.L.C., 12th Dist. Fayette No. CA2007-04-015,

2008-Ohio-4505, ¶ 43; see Ohio Power Co. v. Duff, 12th Dist. Madison No.

CA2020-01-004, 2020-Ohio-4628, ¶ 35 (“breadth of easement” was a factor

reviewed by trial court at a R.C. 163.09(B) hearing). “The trial court’s role ‘requires

vigilance in reviewing state court actions for the necessary restraint,’ which

includes: (1) ensuring that the scope of the take is narrow so that ‘the state takes no

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more than that necessary’ for the public use; and that the state (2) ‘proceeds fairly;’

(3) ‘without bad faith;’ (4) without ‘pretext;’ (5) without ‘discrimination;’ and (6)

without ‘improper purpose.’ ˮ Ohio Power Co., 4th Dist. Washington Nos.

20CA19, 20CA20, 20CA21, and 20CA22, 2021-Ohio-2714, at ¶ 56, quoting

Norwood at ¶ 69. Moreover, “ ‘[a] court’s independence is critical, particularly

when the authority for the taking is delegated to another or the contemplated public

use is dependent on a private entity. In such cases, the courts must ensure that the

grant of authority is construed strictly and that any doubt over the propriety of the

taking is resolved in favor of the property owner.’ ” (Citations omitted.) Id., quoting

Norwood at ¶ 71.

{¶24} Accordingly, what the record shows is that the trial court did review

the extent of the taking (i.e., the terms of the easement). In other words, we find the

trial court engaged in a scope of review of the proposed easement required under

Norwood and R.C. 163.09(B) and properly found that the burden of proof is on

Columbia Gas to show the necessity of the easement terms sought by Columbia Gas.

See id. at ¶ 55 (finding the trial court erred in not reviewing each of the challenged

easement terms and making a separate necessity finding).

1. The Findings of the Trial Court related to the necessity of the appropriation

{¶25} The easement sought by Columbia Gas seeks rights “to lay a pipeline

subsurface on the premises hereinafter described, and to operate and maintain

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without restriction or limitation, repair, and replace said pipeline without

interruption to service, together with necessary valves and other necessary

appurtenances on lands situated in the Townships of Jerome and Millcreek, Union

County, State of Ohio, being the lands of [Phelps] as described in Exhibit ‘A’

attached hereto and made a part hereof.” (Petitioner’s Ex. 5). In particular, “[t]he

pipeline laid pursuant to the terms and conditions of this easement shall be located

within the limits of a fifty foot (50´) wide easement (the ‘Permanent Easement

Area’) as shown on Exhibits B attached hereto and made part hereof.” Id.

Additionally, Columbia Gas seeks a temporary easement to “use an additional

twenty-five feet (25´) of space adjoining said Permanent Easement Area (the

‘Temporary Easement Area’), as shown on Exhibits B, only for the purpose of

enabling the Company to initially construct the pipeline and to later alter, replace,

and repair said pipeline and to conduct all activities incident thereto, including

restoration or clean-up activities.” Id. “The pipeline and ancillary valves and

appurtenances shall be buried below plow depth so as not to interfere with the

present use of the land.” Id.

a. Excessive taking relating to pipeline specification

{¶26} Columbia Gas challenges the trial court’s findings on the excessive

taking, arguing that, given the considerable deference to which it is entitled as a

public utility, the land rights contained in the easement it seeks to acquire are

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reasonably convenient and useful to the public for purposes of construction,

operation, and maintenance of the pipeline. Columbia Gas first challenges the trial

court’s finding of merit to Phelps’ second specific denial, which claims Columbia

Gas’ easement must be limited to a 12-inch diameter natural gas pipeline. (See Doc.

No. 15, p. 12-13).

{¶27} In support of its argument, Columbia Gas cites hearing testimony that

having the ability to increase or decrease the size of the pipeline allows it to account

for future operations and maintenance issues. Columbia Gas also cites testimony

that it would not be feasible for this connecting pipeline or Columbia Gas’ pipeline

system to transport anything other than natural gas.

{¶28} “ ‘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.” ’ ˮ Ohio Power Co., 12th Dist.

Madison No. CA2020-01-004, 2020-Ohio-4628, at ¶ 32. However, we resolve any

doubt over the propriety of the easements in favor of the landowner on the necessity

and extent of the easements. Ohio Power Co., 4th Dist. Washington Nos. 20CA19,

20CA20, 20CA21, and 20CA22, 2021-Ohio-2714, at ¶ 59.

{¶29} Testimony at the hearing indicates Columbia Gas was required to

specifically describe the Pipeline Project to the Siting Board including certain

“required descriptors,” which included details such as the class of pipe to be used,

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the diameter of the pipe, the maximum operating pressure for the pipeline, and even

the wall thickness of the pipe. (Tr. at 82-83). Specifically, the Letter of Notification

application sought to construct a natural gas pipeline, consisting of construction of

a 12-inch diameter, coated steel pipe and has a maximum operating pressure of 190

pounds per square inch gauge. (Petitioner’s Ex. 1). The certificate granted by the

Siting Board recognized the public need for the construction, operation, and

maintenance of 4.78 miles of the 12-inch natural gas pipeline serving Union County.

(Petitioner’s Ex. 7). From that fact, as the trial court found: “Before the Siting

Board a specific size pipe and specific materials to be conveyed were presented and

approved.” (Doc. No. 44, p. 2).

{¶30} The proposed easement sought by Columbia Gas seeks the right “to

lay a pipeline subsurface on the premises.” As the trial court found, and we agree,

the easement allowed any size pipe and other substances than natural gas to be

transported through the pipeline. The fact that the pipeline must be buried below

plow depth and the dimensions of the easement cannot change is not dispositive.

Rather, the fact is that “a specific size pipe and specific materials to be conveyed

were presented and approved” by the Siting Board. (Id.)

{¶31} Notably, the hearing testimony discloses Columbia Gas conceded at

the hearing it has not limited itself to natural gas in this easement. (Tr. at 94). And

as also conceded during the hearing, Columbia Gas has no present or speculative

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need to transport anything other than natural gas. Id. Additionally, testimony in the

record indicates there was no present need to increase the size of the pipeline from

12 inches or to increase the maximum operating pressure beyond 190 pounds per

square inch.

{¶32} Considering the proposed easement along with the testimony, the

Siting Board never approved, and Columbia Gas never requested approval for,

anything other than a 12-inch diameter natural gas pipeline. Thus, because the

easement contains no restrictions as to the size pipe and substances that may be

transported through the pipeline, the trial court properly found this proposed taking

relating to the pipeline specifications to be an excessive taking.

b. Excessive taking relating to blanket easement for valves and appurtenances

{¶33} Columbia Gas next challenges the trial court’s finding of merit to

Phelps’ third specific denial which claims Columbia Gas’ easement was a “blanket

easement” because it allows Columbia Gas to locate valves and other appurtenances

anywhere on the Phelps’ property. (See Doc. No. 15, p. 13-14). Columbia Gas’

argument to the contrary is based on the language of the easement, the survey

drawings attached as exhibits to the easement, and the Siting Board documents.

(Appellant’s Brief at 20).

{¶34} Specifically, the easement states Columbia Gas shall have the right “to

operate and maintain without restriction or limitation, repair, and replace said

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pipeline without interruption to service, together with necessary valves and other

necessary appurtenances on lands * * *, being the lands of the Grantor [Phelps] as

described in Exhibit ‘A.’ ” The easement then goes on to specify that the

“Permanent Easement Area,” “Temporary Easement Area,” and “ATWS and

Access Road Easement” are shown on Exhibits B (the survey drawings). While the

easement limits the placement of the pipeline to the permanent easement area, we

note, as did the trial court, “[t]here was no restriction as to where the valves and

appurtenances could be located.” (Feb. 8, 2022 J.E., p. 2). In fact, other than

specifically stating they shall be buried below plow depth, the easement does not

limit the placement of valves and appurtenances to the permanent easement area,

nor does it limit the placement of valves and appurtenances to any of the areas

shown on Exhibits B. Ms. Thompson testified the valves and appurtenances would

need to be located within the permanent easement area or otherwise those valves

and appurtenances would be of no use to the system nor the pipeline. (Tr. at 64).

Beyond that, Ms. Thompson’s testimony on cross-examination at the hearing

acknowledged she was not aware that having such a restriction would impair

Columbia Gas’ ability to utilize this easement. (Tr. at 96). Thus, by its plain

language, the easement is an unnecessarily broad “blanket easement” or excessive

taking relating to placement of valves and appurtenances.

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c. Excessive taking as to width and duration of easement

{¶35} Columbia Gas next challenges the trial court’s finding of merit to

Phelps’ fourth specific denial, which claims that the permanent right to utilize the

25-foot “temporary easement” was an excessive taking—width and duration. (See

Doc. No. 15, p. 14-16). Specifically, Columbia Gas argues it is entitled to the

rebuttable presumption under R.C. 163.09(B)(1)(b) upon presenting evidence that

utilizing the 25-foot temporary construction easement for purposes of altering,

replacing, and repairing the pipeline after initial construction is reasonably

convenient or useful to the public. In support of its argument, Columbia Gas relies

on the testimony of Mr. Opfer that altering, replacing and repairing the pipeline after

initial construction is operating and maintaining the pipeline. Columbia Gas also

relies on his testimony that utilizing the 25-foot temporary construction workspace

for altering, replacing, or repairing the pipeline is required to safely and reliably

transport natural gas.

{¶36} Both the petition to appropriate and the record show that the Pipeline

Project requires a 75-foot easement, comprised of a 50-foot permanent easement

area and a 25-foot “temporary” easement area. The Siting Board Staff Report of

Investigation specifically notes the temporary easement, and as stated, then, in the

project description portion of the Siting Board’s certificate of approval, the

“Pipeline construction will occur within a 75-foot easement, 25-feet of which is

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temporary, with the remainder being permanent.” (Petitioner’s Ex. 6, 7 at ¶ 25).

However, as the trial noted, the 25-feet of temporary easement was called a

“perpetual temporary easement” at the necessity hearing, and under the terms of the

proposed easement, it had no expiration date. Attached as exhibits to the easement

were survey drawings purporting to depict each of the proposed easement areas.

The “Temporary Easement Area” as shown on Exhibits B was indicated as a

“Perpetual Temporary Easement.” Columbia Gas conceded at the hearing, through

its witness Ms. Thompson, that it could have included that terminology in its Letter

of Notification application to the Siting Board, but chose not to describe the

temporary easement as a “perpetual temporary easement.” (Tr. at 90). Columbia

Gas’ reliance upon testimony to indicate that the 75-foot corridor--a 50-foot

permanent easement area and 25-foot temporary perpetual construction easement

area, was needed for both initial construction, and operations and maintenance,

including altering, replacing, and repairing the pipeline, subsequent to initial

construction, is factually inconsistent with the easement labeled “temporary” on the

construction plans (Appendix B) filed as part of the Siting Board application.

{¶37} Also, factually inconsistent with Columbia Gas’ application is the fact

that the 25-foot temporary perpetual easement is considered “temporary” based on

Ms. Thompson’s explanation as well as that of Mr. Opfer that it imposes a limitation

as to when Columbia Gas is able to utilize the temporary easement after initial

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construction. (Tr. at 63, 97, 132). Further, we note Columbia Gas’ position is not

consistent with the acknowledged fact that it would “be ideal” to have a 50-foot

permanent easement and a 25-foot temporary easement in the event that Columbia

Gas had to repair, replace or modify the pipeline and that while “it would make it

more difficult,” Columbia Gas would not be “incapable” of properly maintaining

the pipeline with only 50 feet. (Tr. at 130, 140).

{¶38} The hearing testimony and the language of the easement plainly

indicate that the terms of the proposed easement would allow Columbia Gas the

ability to more broadly be able to construct, operate, and maintain the pipeline.

Based upon our review of the record, we concur with the trial court’s assessment of

excessive taking as to width and duration of the easement. Thus, by the twenty-five

foot perpetual temporary easement for all construction (not just initial construction)

and continuous operation and maintenance of the pipeline encumbering the

property, Columbia Gas sought to appropriate additional rights beyond the

specifically stated terms of the authorized Pipeline Project, by removing any

durational limitation on the “temporary easement.” See Springfield v. Gross, 164

Ohio App.3d 1, 2005-Ohio-5527, ¶ 21 (concluding that the “failure to define the

purpose of excess appropriations in definite and specific terms is fatal to the

proposed appropriation”).

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{¶39} For these reasons, we conclude that Columbia Gas’ first, second, third,

fourth, and fifth assignments of error are overruled.

Sixth Assignment of Error

{¶40} Finally, Columbia Gas argues that the trial court erroneously

dismissed its petition under R.C. 163.09(G) because it should have proceeded to

hold a compensation hearing pursuant to R.C. 163.09(B)(2). Columbia Gas

contends the trial court is required to narrow the easement by removing terms that

are not deemed reasonably convenient or useful to the public and then proceed with

the compensation hearing within sixty days from the date of the journalization of its

determination.

{¶41} The first phase of the eminent-domain procedure provides for a

hearing to rule on the property owner’s denials and if the court rules in favor of the

appropriating agency, the second phase proceeds to determine the amount of

compensation owed to the property owner in a jury trial. State ex rel. Bohlen v.

Halliday, 164 Ohio St.3d 121, 2021-Ohio-194, ¶ 2-3, citing R.C. 163.09(B)(1),

(B)(2).

{¶42} R.C. 163.09(B)(2) provides in relevant part: “If, as to any or 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 the journalization

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of that determination[.]” The provision also provides with one exception

inapplicable here, “an order of the court in favor of the agency on any of the matters

* * * shall not be a final order for purposes of appeal.” R.C. 163.09(B)(2). But,

R.C. 163.09(G) specifically provides that “[i]f the court determines the matter in the

favor of the owner as to the necessity of the appropriation * * *, in a final,

unappealable order, the court shall award the owner reasonable attorney’s fees,

expenses, and costs.”

{¶43} In this case, because the trial court did not err in dismissing the petition

and there is no remaining appropriation left to proceed to a compensation trial, the

trial court’s determination that R.C. 163.09(G) applied instead of R.C. 163.09(B)(2)

is proper. Columbia Gas’ sixth assignment of error should be overruled.

{¶44} Accordingly, we affirm the trial court’s judgment dismissing

Columbia Gas’ petition.

Judgment Affirmed

ZIMMERMAN, P.J. and WILLAMOWSKI, J., concur.

/jlr

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