Detroit Edison Co. v. City of Wixom

J. H. Gillis, J.

The troublesome issue presented by this appeal is whether the legislature has granted exclusive authority to the public service commission to regulate public electric utilities so as to preclude a local government from attempting such regulation through its duly enacted zoning ordinances.

Factually the case is very simple as it comes to this Court. In 1955, the plaintiff, The Detroit Edison Company, realized a need to expand its services and in so doing- to run a high voltage electrical transmission line from its plant in St. Clair, Michigan, to its plant in Monroe, Michigan. Plaintiff *222purchased a right-of-way, including a strip of land 200 feet wide and 4 miles long, over lands which have since been incorporated by the defendant city of "Wixom.

Plaintiff’s plans were for a high tension line supported by towers 850 feet apart and averaging 132 feet in height. This particular portion of the route was approved by the Michigan public service commission on November 13, 1964.

Defendant was incorporated in 1958 and in 1960 a master plan for development was adopted. The city adopted an amendment to its zoning ordinance in 1965 providing in pertinent portions:

“Essential services serving the city of Wixom shall be permitted as authorized and regulated by law and other ordinances of the city of Wixom. Overhead or underground lines and necessary poles and towers to be erected to service primarily those areas beyond the city shall require the review and approval, after a public hearing, of the board of appeals. Such review of the board of appeals shall consider abutting property and uses as they relate to easements, rights-of-way, overhead lines, poles and towers and further, shall consider injurious effects on property abutting or adjacent thereto and on the orderly appearance of the city. A building-permit shall be required for any such construction. * * #
“Add footnote (p) to each box in the height column (in feet). The footnote (p) to read as follows:
“(p) No structure shall exceed 100 feet in height unless such structure has received the review and approval of the board of appeals.”

Fearing the additional burdens imposed upon it by the regulatory provisions, Detroit Edison brought this action to have the above amendments declared null and void. Two grounds were asserted *223by plaintiff in the trial court: (1) that by statutory grant of authority, the public service commission has pre-empted the field of regulation of electric utilities, and (2) that the amendatory provisions of defendant’s zoning ordinance are void as being arbitrary, unreasonable, and discriminatory.

The trial judge ruled only on the first of these contentions, holding that the public service commission has pre-empted the field by virtue of CLS 1961, § 460.1 et seq. (Stat Ann 1965 Cum Supp § 22.13[1] et seq.). The language of the pertinent portion of this act provides:

“The Michigan public service commission is hereby vested with complete power and jurisdiction to regulate all public utilities in the state except any municipally owned utility and except as otherwise restricted by law. It is hereby vested with power and jurisdiction to regulate all rates, fares, fees, charges, services, rules, conditions- of service and all other matters pertaining to the formation, operation or direction of such public utilities. It is further granted the power and jurisdiction to hear and pass upon all matters pertaining to or necessary or incident to ■ such regulation of all public utilities, including electric light and power companies, whether private, corporate or cooperative, gas' companies, water, telephone, telegraph, oil, gas and pipeline companies, motor carriers, and all public transportation and communication agencies other than railroads and railroad companies.” CLS 1961, §460.6 (Stat Ann 1965 Cum Supp § 22.13[6]).

Plaintiff contends that this broad statutory language expresses the legislative intent to vest exclusive power of regulation in the commission. Defendant argues that the language of the act does not expressly or by necessary implication preclude local government from regulating the height of electrical transmission towers under its zoning *224powers to promote the health, safety, or welfare of its citizens.

The issue before us is simply whether the statutory language indicates legislative intent to vest sole power in the commission. If such a reading is proper, then it is clear that a local ordinance in conflict with the statutory powers of the commission would be of no force, City of Howell v. Kaal (1954), 341 Mich 585; Gust v. Township of Canton (1953), 337 Mich 137.

But the power to enact zoning ordinances is not itself a local power, but rather one which comes by virtue of the zoning enabling acts. What we deal with, in reality, are two or more statutes which may or may not conflict insofar as they purport to provide for the regulation of public utilities.

The portion of the act which we have quoted above, and on which plaintiff relies, has already been determined by our Supreme Court to be merely an outline of the commission’s jurisdiction and not a grant of specific powers to the commission, Huron Portland Cement Company v. Public Service Commission (1958), 351 Mich 255; Northern Michigan Water Company v. Public Service Commission (1967), 5 Mich App 635, 638. As stated in Huron, supra, at p 263:

“If, indeed, the general language quoted had the effect of vesting particular, specific, powers in the commission * * * there would have been no need whatever for the many statutes enacted (both before and after the effective date of PA 1939, No 3) vesting specific powers in the commission.”

Indeed, plaintiff’s contention cannot find support in the broad grant to the commission but can only be sustained on a finding of some specific power with which local zoning powers would be inconsistent. See, for example, Huron Portland Cement *225Company v. City of Detroit (1960), 362 US 440 (80 S Ct 813, 4 L Ed 2d 852, 78 ALR2d 1294) for the Federal-State analogy.

The only specific powers given the commission to regulate the transmission of electricity is the transmission of electricity through highways act, CL 1948, §460.551 et seq. (Stat Ann §22.151 et seq.). This act however is limited to transmission over public streets, highways and places and therefore does not include plaintiff’s transmission over a private right-of-way. It is of interest to note, however, that even in this grant of specific power, the right of reasonable control of streets is preserved to local government, CL 1948, § 460.553 (Stat Ann § 22.153), and Const 1963, art 7, § 29. Moreover, the electrical transmission act does specifically regulate the height of towers but only at highways and railroad crossings.1 Whether these specific restrictions would apply to plaintiff in crossing highways or railroads may be weighty arguments in going to the reasonableness of the ordinance, but they do indicate at least the negative inference, that the commission has no specific exclusive powers to determine tower height under other circumstances.

Likewise we can find no implied grant of power in the acts, necessary in carrying out any express legislative intent, which would be inconsistent with the zoning power. Michigan Bell Telephone Co. v. Public Service Commission (1946), 315 Mich 533. Such questions, it seems to us, go more to the reasonableness of the zoning ordinance in question than to inconsistency with any enumerated powers of the commission.

Defendant’s zoning ordinance is enacted by virtue of CL 1948, § 125.581 et seq. (Stat Ann 1958 Rev § 5.2931 et seq.). The enabling act provides no ex-*226elusion for electrical utilities (as for instance the rural township zoning- enabling- act2 makes for oil and gas wells) and in fact specifically provides for notice to utility companies owning or operating any public utility within the district to be affected by the ordinance. CL 1948, § 125.584 (Stat Ann 1958 Rev § 5.2934).

We can find no power or provision in the statutes precluding a municipality from'enacting reasonable regulations as to electrical utilities. The limits of this local power are coincidental with the reasonableness of the ordinance under all the circumstances. Supply and transmission of electricity are essential to the development of this State and the well-being of its citizens. The limits of local regulation must be construed in the light of this public purpose and their reasonableness of course must weigh their relation to local conditions with their effect on the broad purpose.

The judgment is reversed and remanded to the trial court for findings and a ruling on plaintiff’s contention of the substantive invalidity of the ordinance.

T. G. Kavanagh, P. J., concurred with J. H. GlLLIS, J.

CL 1948, § 460,554 (Stat A»» § 22454).

CL 1948, § 125.271 (Stat Ann 1958 Rev § 5.2963 [1]).