WILLIAM B. BROWN, J.
Two issues are raised by the instant cause. The first is whether, under R. C. 4906.10(A) (3), the commission may deny a Certificate of Environmental Compatibility and Public Need solely on the grounds that the utility's expansion plans will have a greater than minimum adverse impact on recreational facilities. The second is whether, in the instant cause, the commission's order, promulgated pursuant to Rule 4906-15-05(F)(2), Ohio Adm. Code, impairs the obligation of contracts and deprives appellant of property without due process of law.
In its first proposition of law, appellant argues that the Power Siting Commission cannot withhold a certificate, pursuant to R. C. 4906.10(A)(3), solely on the basis of evidence that the utility's expansion plans will cause a greater than minimum adverse recreational impact, because recreational impact is a criteria to be considered, if at all, only when the commission determines, pursuant to R. C. 4906.10(A)(6), whether the proposed utility will serve the public interest, convenience, and necessity.
We are not persuaded by appellant's argument. Rule
Rule 4906-15-05(F) (2) is a valid rule. The commission clearly had the power to promulgate it. (R. C. 4906.03[E].) Moreover, the rule is not "unreasonable or in conflict with statutory enactments covering the same subject matter" (State, ex rel. DeBoe, v. Indus. Comm. , 161 Ohio St. 67, 69). Rule 4906-15-05(F) (2) does not conflict with statutory enactments covering the same subject matter. The statutory criteria set forth in R. C. Chaper 4906 for denying or granting a certificate are the "environmental impact" of the facility (R. C. 4906.10[A] ) and the facility's furtherance of "public interest, convenience, and necessity" (R. C. 4906.10[A] ). While these criteria do not specifically include recreational considerations, they are also sufficiently general
Appellant argues next that Rule 4906-15-05(F)(2) applies only to a determination, pursuant to R. C. 4906.10 (A)(6), that the utility will or will not serve the public interest, convenience, and necessity.
We disagree. The fact that the commission's rule might apply to an R. C. 4906.10(A)(6) determination does not prevent its application to an R. C. 4906.10(A)(3) finding. Rule 4906-15-05(F) (2) requires the utility applying for a certificate to identify existing and potential recreation areas which might be affected by the applicant's expansion plans and to estimate the impact of its proposed expansion on those recreation areas. Nothing within the rule indicates whether the commission should consider the information concerning recreational impact while it makes one or another of the findings required by R. C. 4906.10 (A). However, R. C. 4906.10(A)(3) and 4906.10(A)(6) require the commission to answer different questions— whether and how much the proposed utility will harm the environment and how much it will benefit the public. Since the significance of criteria like recreational impact may vary depending on the question the commission is attempting to answer, the consideration of such a given criterion at one stage of the commission's inquiry does not make its consideration at a second stage irrelevant. Moreover, it is
Having found that the commission properly considered evidence concerning the adverse recreational impact of appellant's proposed expansion when it made its R. C. 4906.10(A) (3) determination, it is necessary for us to determine whether the commission erred when it withheld the certificate on the basis of that evidence.
Pursuant to R. C. 4906.12 and 4903.13, this court will not reverse a determination of the Power Siting Commission of Ohio on the grounds that it is against the weight of the evidence, unless that determination is unreasonable. Chester Twp. v. Power Siting Comm. (1977), 49 Ohio St.2d 231. In view of the evidence that the utility's construction of a new transmission line along the centerline of its easement over the golf course would effectively turn an
Appellant contends further that the commission's determination, which limits appellant's use of an easement granted it by Bath Golf Course several years ago, violates Ohio and federal constitutional safeguards against the impairment of contracts and the taking of property without due process of law.
Section 10, Article I of the United States Constitution and Section 28, Article II of the Ohio Constitution, protect against state impairment of contracts, and the Fourteenth Amendment to the United States Constitution and Section 16, Article I of the Ohio Constitution, protect against state taking of property without due process of law.
We do not find the commission's initial determination that recreational impact bears a real and substantial relationship to public health, safety and welfare to be clearly erroneous. Unlike ordinances limiting grocery store or barber shop hours (Olds v. Klotz , 131 Ohio St. 447; Cincinnati v. Cornell , 141 Ohio St. 535), a rule requiring the applicant to identify and estimate, and the commission to consider, the impact of a utility's expansion on existing and potential recreation areas does more good to the public than harm to the individual. Under Rule 4906-05-15(F)(2) and R. C. 4906.10(A)(3), the commission must determine merely whether the proposed expansion represents the minimum adverse recreational impact, not whether it represents any adverse impact at all. (Under the facts of the instant cause, the fact that the commission considered minimum adverse impact led it to restrict the utility's use of unused portions of the easement, but not to prohibit the utility from building its new power line along the route the older one had taken even though evidence revealed that any power line additions along the
The order of the commission being neither unreasonable nor unlawful is affirmed.
CELEBREZZE, SWEENEY and LOCHER, JJ., concur.
LEACH, C. J., HERBERT and P. BROWN, JJ., dissent.
PAUL W. BROWN, J., dissenting. The facts of this case include a private agreement of easement between the Ohio Edison Company and the owners of the affected property, the materiality of which cannot be denied. There is minimum adverse recreational effect upon the private facility herein involved. There is no evidence of such adverse recreational impact as to provide an adequate police power connection justifying the action of the Power Siting Commission denying the required certificate of environmental compatibility. If needed power transmission lines can be prevented or diverted at great expense on such slight evidence as herein involved, that greatly increased expense in
LEACH, C. J., and HERBERT, J., concur in the foregoing dissenting opinion.
"1. something that environs: surroundings * * * 2: the surrounding conditions, influences, or forces that influence or modify: as a: the whole complex of climatic, edaphic, and biotic factors that act upon an organism or an ecological community and ultimately determine its form and survival * * * b: the aggregate of social and cultural conditions (as customs, laws, language, religion, and economic and political organization) that influence the life of an individual or community."
In light of definition 2b, it would be difficult to say that the impact on one's "surroundings" does not include an impact on recreation areas.
"No state shall * * * pass any Bill of Attainder, ex post facto Law, or Law impairing the obligation of Contracts * * *."
Its Ohio constitutional counterpart, Section 28 of Article II, provides, in pertinent part:
"The General Assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts * * *."
The Fourteenth Amendment to the United States Constitution provides, in pertinent part:
"No State shall * * * deprive any person of life, liberty, or property, without due process of law * * *."
Section 16, Article I of the Ohio Constitution, reads, in pertinent part:
"All courts shall be open, and every person, for an injury done him in his land, goods, person or reputation, shall have remedy by due course of law * * *."