The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In
re Letter of Notification Application of Columbia Gas of Ohio, Inc., Slip Opinion No. 2024-Ohio-
4747.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2024-OHIO-4747
IN RE LETTER OF NOTIFICATION APPLICATION OF COLUMBIA GAS OF OHIO,
INC., FOR THE FORD STREET PIPELINE PROJECT;
YORKTOWN MANAGEMENT, L.L.C., APPELLANT; OHIO POWER SITING BOARD,
APPELLEE; COLUMBIA GAS OF OHIO, INC., INTERVENING APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as In re Letter of Notification Application of Columbia Gas of
Ohio, Inc., Slip Opinion No. 2024-Ohio-4747.]
Public utilities—Gas-pipeline construction—R.C. 4906.03(F)—R.C. 4906.10(A)(2)
and (A)(3)—Adm.Code Ch. 4906-6—Ohio Power Siting Board properly
approved application for construction of natural-gas-distribution pipeline
under accelerated-review process set forth in R.C. 4906.03(F) for a gas
pipeline that is not more than five miles long—Order affirmed.
(No. 2023-0649—Submitted July 23, 2024—Decided October 3, 2024.)
APPEAL from the Power Siting Board, Nos. 22-1145-EL-BLN
and 22-1145-GA-BLN.
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SUPREME COURT OF OHIO
STEWART, J., authored the opinion of the court, which KENNEDY, C.J., and
FISCHER, DEWINE, DONNELLY, BRUNNER, and DETERS, JJ., joined.
STEWART, J.
{¶ 1} In the proceedings below, the Ohio Power Siting Board granted the
application of intervening appellee, Columbia Gas of Ohio, Inc. (“Columbia”), to
construct the Ford Street Pipeline Project, a 3.7-mile natural-gas-distribution
pipeline in the City of Maumee in Lucas County. The board approved the pipeline
project under R.C. 4906.03(F)(3), which provides an accelerated-review process
for a proposed gas pipeline that is not more than five miles long.
{¶ 2} Appellant, Yorktown Management, L.L.C. (“Yorktown”), which
owns land and a commercial office building adjacent to property that contains a
portion of the approved route of the pipeline, has appealed. Yorktown contends
that the board failed to consider and resolve safety and environmental concerns
related to the pipeline’s siting in proximity to the western boundary of Yorktown’s
property. Specifically, Yorktown questions the placement of the pipeline and the
width of the easements necessary to safely construct, maintain, and operate the
pipeline.
{¶ 3} As discussed below, Yorktown’s arguments lack merit. We therefore
affirm the board’s decision.
I. FACTS AND PROCEDURAL BACKGROUND
{¶ 4} R.C. 4906.04 provides that no person shall construct a major utility
facility in Ohio without first having obtained a construction certificate from the
board. The proposed Ford Street Pipeline Project is described as a 3.7-mile natural-
gas pipeline to be constructed in Maumee using a combination of private easements
and public-road rights-of-way. The pipeline will be 30 inches in diameter and is
classified as a high-pressure distribution pipeline with a maximum allowable
operating pressure of 145 pounds per square inch gauge. The length and operating
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pressure of the pipeline make it a “major utility facility” requiring the board’s
approval. See R.C. 4906.01(B)(1)(c) and 4906.04.
{¶ 5} R.C. 4906.03(F)(3) directs the board to adopt rules for conducting an
accelerated review of an application for a construction certificate for a gas pipeline
that is not more than five miles long. Consistent with that statutory provision, the
board adopted Adm.Code Ch. 4906-6. Under the statute and the administrative
rules, the board is required to approve an accelerated application no later than 90
days after its filing, unless review of the application is suspended for good cause
shown. R.C. 4906.03(F)(3); Adm.Code 4906-6-09(A) and 4906-6-10(A) and (B).
{¶ 6} In December 2022, Columbia filed an accelerated application to
construct the Ford Street pipeline. In January 2023, Yorktown filed a motion to
intervene and initial comments in opposition to the proposed pipeline. Although
no part of the proposed pipeline crosses or encroaches on Yorktown’s property,
Yorktown argued that it would suffer irreparable financial harm if the proposed
pipeline is constructed along its western property line and so close to its commercial
office building. In March 2023, an administrative-law judge granted Yorktown’s
motion to intervene.
{¶ 7} Under Adm.Code 4906-6-06(B), the board’s staff is required to
investigate each accelerated certificate application and submit a written report no
less than seven days before the automatic-approval date. This rule also requires the
board’s staff to include in its report recommended findings under R.C. 4906.10,
which, in turn, requires the board to make certain substantive findings before
issuing a certificate for the construction, operation, and maintenance of a major
utility facility.
{¶ 8} On March 10, 2023, the board’s staff issued its “Report of
Investigation,” recommending that the project be automatically approved on March
17, subject to four conditions. The board’s staff found that Columbia had satisfied
the necessary criteria under R.C. 4906.10(A) for approval of its accelerated
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application, including demonstrating the need for the pipeline. The report also
included the board staff’s analysis of the project’s probable impacts on land use,
safety, cultural resources, surface waters, and threatened and endangered species.
{¶ 9} On March 14, 2023, Yorktown filed a motion to suspend the board’s
consideration of Columbia’s accelerated application. See R.C. 4906.03(F)(3);
Adm.Code 4906-6-09. Among other claims, Yorktown argued that Columbia’s
application and the board’s staff report failed to address safety concerns regarding
construction of the proposed pipeline along the entire western boundary of
Yorktown’s property and less than 50 feet from its commercial office building.
Columbia had already secured a permanent 30-foot easement and a temporary 50-
foot construction easement from Yorktown’s neighbor for the portion of the
pipeline that would run along Yorktown’s western property line. Yorktown
asserted that these easements were not wide enough for Columbia to safely
construct, operate, and maintain the pipeline. Yorktown requested that the board
conduct a full hearing to develop the factual record and resolve these safety
concerns as required by R.C. 4906.10(A)(2) (by determining “[t]he nature of the
probable environmental impact” of the project) and R.C. 4906.10(A)(3) (by
determining “[t]hat the [proposed project] represents the minimum adverse
environmental impact”).
{¶ 10} Because the board did not act on the accelerated application before
the automatic-approval date recommended in the board’s staff report, the
application was deemed automatically approved by the board under Adm.Code
4906-6-10(B), subject to the staff’s recommended conditions.
{¶ 11} On March 23, 2023, Yorktown filed an application for rehearing of
the board’s automatic approval of Columbia’s accelerated application. See R.C.
4903.10; Adm.Code 4906-2-32(C). Yorktown argued that the board had failed to
address the safety concerns created by the proposed pipeline’s proximity to
Yorktown’s property and thus violated R.C. 4906.10(A)(2) and (A)(3). The board
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January Term, 2024
denied rehearing on April 20, 2023. In re Letter of Notification Application of
Columbia Gas of Ohio, Inc., Power Siting Board No. 22-1145-EL-BLN, 2023 WL
3095408, *1.
{¶ 12} Yorktown appealed. The board filed a brief in defense of its order
denying the application for rehearing. We granted Columbia’s motion for leave to
intervene, 2023-Ohio-2453, and Columbia filed a brief urging affirmance of the
board’s order.
II. STANDARD OF REVIEW
{¶ 13} Under R.C. 4906.12, we apply the same standard of review to
determinations of the Power Siting Board that we apply to orders of the Public
Utilities Commission. Under that standard, we will reverse, vacate, or modify an
order of the board only when, upon consideration of the record, we find the board’s
order to be unlawful or unreasonable. R.C. 4903.13. We have “‘complete and
independent power of review as to all questions of law’ ” in appeals from the board.
In re Application of Champaign Wind, L.L.C., 2016-Ohio-1513, ¶ 7, quoting Ohio
Edison Co. v. Pub. Util. Comm., 1997-Ohio-196, ¶ 16. We will not, however,
“reverse or modify a board decision as to questions of fact when the record contains
sufficient probative evidence to show that the board’s decision was not manifestly
against the weight of the evidence and was not so clearly unsupported by the record
as to show misapprehension, mistake, or willful disregard of duty.” Id.
III. ANALYSIS
{¶ 14} Yorktown raises one proposition of law with four subparts. But
before turning to the merits of this case, we address three preliminary issues: (1)
the board’s argument that we lack jurisdiction over Yorktown’s due-process claim,
(2) Columbia’s argument that Yorktown has forfeited its right to challenge the
board’s denial of Yorktown’s motion to suspend review of the accelerated
application, and (3) Columbia’s argument that Yorktown was not prejudiced by the
board’s order.
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A. Whether Yorktown’s due-process argument is jurisdictionally barred
{¶ 15} Yorktown claims on appeal that the board violated Yorktown’s due-
process and fundamental private-property rights when it automatically approved
Columbia’s accelerated application without giving Yorktown a meaningful
opportunity to be heard on its pipeline-safety claims. The board contends that we
lack jurisdiction over Yorktown’s due-process argument because Yorktown failed
to raise this argument in its application for rehearing by the board as required by
R.C. 4903.10(B). Yorktown maintains that it raised the due-process argument “in
its application for rehearing when it argued that the Board’s ‘process’ cannot
‘ignore [the safety] concerns [raised by Yorktown] and fast track approval [of the
accelerated application] without thorough investigation and analysis . . . .’ ”
{¶ 16} An appellant is jurisdictionally barred from raising a claim on appeal
that was not specifically set forth in an application for rehearing of the board’s
order. See R.C. 4903.10(B); In re Application of Ohio Power Co., 2014-Ohio-4271,
¶ 45. We strictly construe the specificity requirement in R.C. 4903.10. See In re
Complaint of Pilkington N. Am., Inc., 2015-Ohio-4797, ¶ 29. Yorktown’s single
mention of the word “process” in its rehearing application is not enough to put the
board on notice of its due-process claim. Hence, Yorktown did not preserve a due-
process argument in its application for rehearing and we lack jurisdiction to
consider that argument on appeal. See In re Complaint of Reynoldsburg, 2012-
Ohio-5270, ¶ 60-62.
B. Whether we lack jurisdiction over Yorktown’s challenge to the board’s
refusal to suspend its review of the accelerated application
{¶ 17} Yorktown claims that the board erred in denying its motion to
suspend review of the accelerated application and set the matter for an evidentiary
hearing. Columbia counters that we lack jurisdiction to consider this argument
because Yorktown failed to raise the argument in its application for rehearing.
Columbia also claims that we are jurisdictionally barred from considering this issue
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January Term, 2024
because Yorktown failed to include this argument in its notice of appeal. As
discussed, we lack jurisdiction over issues that were not set forth in a rehearing
application as required by R.C. 4903.10. We also lack jurisdiction over alleged
errors that were not set forth in the notice of appeal as required by R.C. 4903.13.
{¶ 18} However, Columbia’s jurisdictional arguments lack merit. In its
application for rehearing, Yorktown argued that the board’s automatic approval of
Columbia’s accelerated application to construct the proposed pipeline was unlawful
and unreasonable under R.C. 4906.03(F), which authorizes the board to (1) conduct
an accelerated review and automatic certification of applications for the
construction of gas pipelines that are less than five miles long and (2) suspend its
review of such applications for good cause shown. In addition, in its rehearing
application, Yorktown specifically requested that the board “rescind automatic
approval of the Project, and set the matter for hearing to allow for a full presentation
of facts and issues to develop the evidentiary record which will address unanswered
questions related to safety and need.” Yorktown also outlined its safety concerns
in its application for rehearing, arguing that the board’s failure to address those
concerns rendered the board’s automatic approval of the pipeline project improper.
With this language, Yorktown sufficiently preserved the issue for review on appeal.
See Sunoco, Inc. (R & M) v. Toledo Edison Co., 2011-Ohio-2720, ¶ 28.
{¶ 19} Yorktown set forth the following alleged error in its notice of appeal:
The Board unlawfully and unreasonably allowed automatic
approval of Columbia Gas’s accelerated application because the
Board failed to determine that the Project’s impacts satisfy R.C.
4906.10(A)(2) and (A)(3) as unresolved questions remain about
whether Columbia Gas can safely construct and operate the
Project’s proposed thirty-inch pipeline with a centerline only forty-
two feet from Yorktown’s building and an edge of operational area
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only thirty-two feet from Yorktown’s entire western property line,
particularly when Columbia Gas is utilizing undersized easements
in contradiction to the easements its application submits are required
for the Project.
{¶ 20} Columbia is correct that Yorktown does not specifically allege that
the board erred in refusing to grant Yorktown’s motion to suspend review of the
accelerated application or to set the matter for hearing. But unlike R.C. 4903.10,
R.C. 4903.13 contains no specificity requirement for a notice of appeal. R.C.
4903.13 requires only that a notice of appeal “set[ ] forth the order appealed from
and the errors complained of.” (Emphasis added.) We have held that the
sufficiency of a notice of appeal is “judged not merely by the form of the words
used but also by their context.” Lycourt-Donovan v. Columbia Gas of Ohio, Inc.,
2017-Ohio-7566, ¶ 45. In its notice of appeal, Yorktown cites pages 3 through 12
of its application for rehearing, which is where Yorktown preserved this alleged
error for review by the board. We find that this language in Yorktown’s notice of
appeal put this court, Columbia, and the board on notice of the alleged error that
Yorktown subsequently argued in its merit brief. See Lycourt-Donovan at ¶ 46.
C. Whether Yorktown has demonstrated that it has suffered harm or
prejudice as a result of the board’s order
{¶ 21} Columbia argues that before addressing the merits of Yorktown’s
appeal, we must consider whether Yorktown has demonstrated that it has suffered
any harm or prejudice as a result of the board’s failure to suspend its review of the
accelerated application and set the matter for hearing. Columbia states that
Yorktown is alleging that the board did not properly consider Yorktown’s public-
safety concerns before determining that the project meets the requirements set forth
in R.C. 4906.10(A)(2) and (A)(3). Columbia contends that the board has already
rejected Yorktown’s safety concerns, so to demonstrate harm or prejudice,
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Yorktown needs to show how the board’s refusal to suspend its review of the
accelerated application prevented Yorktown from effectively challenging the
board’s order.
{¶ 22} A party that challenges an order of the board on appeal must be
aggrieved by that order to warrant its reversal. See In re Application of Black Fork
Wind Energy, L.L.C., 2018-Ohio-5206, ¶ 23. Accordingly, we will not reverse an
order of the board as unreasonable or unlawful “ʻunless the party seeking reversal
shows that it has been or will be harmed or prejudiced by the order.’ ” Id., quoting
In re Complaint of Buckeye Energy Brokers, Inc. v. Palmer Energy Co., 2014-Ohio-
1532, ¶ 19; see also Champaign Wind, 2016-Ohio-1513, at ¶ 15.
{¶ 23} We resolve this issue in favor of Yorktown. Columbia’s lack-of-
harm-or-prejudice claim presumes the correctness of the board’s order rejecting
Yorktown’s safety concerns. The board may suspend its review of an accelerated
application upon a showing of good cause, R.C. 4906.03(F)(3), and at issue on
appeal here is whether Yorktown’s safety concerns constituted good cause for the
board to suspend its review of Columbia’s accelerated application. We cannot
determine whether Yorktown has demonstrated harm or prejudice from the board’s
order until we first determine whether the board erred in refusing to suspend its
review of the accelerated application. Stated differently, Columbia’s lack-of-harm-
or-prejudice claim is premature, so we reject it.
D. Whether the board failed to determine the project’s probable impacts as
required by R.C. 4906.10(A)(2) and (A)(3)
{¶ 24} Turning to the merits of Yorktown’s appeal, Yorktown argues that
the board erred in approving Columbia’s accelerated application for the Ford Street
Pipeline Project without addressing the serious public-safety concerns created by
the pipeline’s proximity to Yorktown’s property. Yorktown maintains that it
continually raised public-safety concerns, including the potential risks to human
health, associated with the pipeline project but that the board never addressed those
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concerns and instead improperly deferred to Columbia on those issues. As a result,
Yorktown contends, the board failed to determine the proposed pipeline’s probable
environmental impacts as required by R.C. 4906.10(A)(2) and (A)(3). Yorktown’s
arguments lack merit.
1. Columbia’s pipeline project does not require a permanent easement with a
minimum width of 50 feet
{¶ 25} Yorktown first argues that the board refused to address
inconsistencies between information contained in Columbia’s accelerated
application and the undisputed facts in the record concerning safety and
environmental concerns posed by the pipeline project. According to Yorktown,
Columbia indicated in its application that the pipeline project would require a
permanent easement with a minimum width of 50 feet along the entire pipeline
route. Yorktown states that contrary to what was stated in the application,
Columbia obtained only a 30-foot-wide permanent easement on the property
abutting Yorktown’s entire western property line. Yorktown maintains that the
inconsistency between the proposed easement in the application and the actual
easement obtained by Columbia raises serious concerns about Columbia’s ability
to safely construct, operate, and maintain a pipeline along Yorktown’s property
line. Yorktown alleges that instead of addressing these safety concerns, the board
deferred to Columbia’s statements that it had complied with R.C. 4906.10(A)(2)
and (A)(3) in its application.
{¶ 26} Columbia counters that Yorktown presented no evidence of
inconsistencies between the easements referred to in its accelerated application and
the easement it obtained along Yorktown’s property line. According to Columbia,
a reading of the application in its entirety confirms that “variable-width easement
corridors were proposed from the outset.” The board similarly contends that
Columbia did not indicate in its application that the pipeline project would require
a 50-foot-wide permanent easement, as Yorktown alleges.
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January Term, 2024
{¶ 27} We find that contrary to Yorktown’s assertion, Columbia did not
indicate in its accelerated application that the pipeline project requires a minimum-
width permanent easement. First, Columbia stated in one part of its application that
the project would use a 100-foot-wide construction footprint, which would include
a 50-foot-wide permanent easement and a 50-foot-wide temporary easement. But
this representation was included in the section of the application discussing the
project’s impact on areas of ecological concern, such as national and state parks,
floodplains, wetlands, wild and scenic rivers, and wildlife areas, refuges, and
sanctuaries. The 50-foot-wide permanent and temporary easements referred to in
the application would therefore apply only to the pipeline route running through the
identified areas of ecological concern.
{¶ 28} Second, in an attachment to the accelerated application titled
“Construction Plans,” Columbia stated that construction rights-of-way would
“typically” consist of a 50-foot-wide permanent easement and a 50-foot-wide
temporary construction easement but that the easement widths would vary based
on the circumstances. Likewise, the construction-plan drawings attached to the
application depicted easements of varying widths. Thus, we do not find support for
Yorktown’s contention that Columbia’s application commits Columbia to
acquiring a 50-foot-wide permanent easement along the entire route of the pipeline
project.
2. Yorktown waived its right to challenge the board’s rejection of certain
testimony
{¶ 29} Yorktown claims that the board refused to address Michael Scott’s
testimony about Columbia’s Northern Loop Pipeline Project, a different pipeline
project in Union County. Scott, a pipeline project manager for Columbia, testified
before the Union County Court of Common Pleas in an appropriation case that
Columbia had filed seeking to acquire easement rights along the route of the
Northern Loop Pipeline Project. See Columbia Gas of Ohio, Inc. v. GB Family Ltd.
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Partnership, Union C.P. No. 2022-CV-0129 (May 3, 2023); Columbia Gas of Ohio,
Inc. v. Holloway, 2023-Ohio-4257 (3d Dist.). Several landowners filed a “necessity
challenge” to Columbia’s proposed taking, and Scott’s testimony was submitted to
establish the necessity of certain easement terms, including the minimum width of
50 feet for the permanent easement for purposes of operating, maintaining, and
repairing the pipeline.
{¶ 30} Yorktown maintains that Scott’s testimony in the Union County
proceedings confirms and supports Columbia’s representations in its accelerated
application here that a 50-foot-wide permanent easement is necessary for the Ford
Street Pipeline Project. Yorktown also asserts that because the proposed Ford
Street pipeline would be six inches larger in diameter than the Northern Loop
pipeline, Scott’s testimony raises significant safety concerns about how Columbia
could safely operate and maintain the Ford Street pipeline with no more than a 30-
foot-wide permanent easement.
{¶ 31} Contrary to Yorktown’s claim, the board addressed Scott’s
testimony in its April 20, 2023 rehearing entry in this case. Specifically, the board
rejected Scott’s testimony, on which Yorktown relies, finding that it was irrelevant
in this case because the Northern Loop pipeline is a transmission line with a much
greater maximum allowable operating pressure than the proposed Ford Street
pipeline, which would be a lower-pressure distribution pipeline.
{¶ 32} The critical problem for Yorktown is that it did not file a second
application for rehearing by the board under R.C. 4903.10 alleging error in the
board’s rejection of Scott’s testimony in its order on rehearing. And that failure
jurisdictionally bars this court from considering Yorktown’s claim on this issue.
See Discount Cellular, Inc. v. Pub. Util. Comm., 2007-Ohio-53, ¶ 66 (failure to file
a second rehearing application challenging additional grounds given by the Public
Utilities Commission for its ruling in a first rehearing entry jurisdictionally bars
this court’s review of the commission’s ruling based on those additional grounds).
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3. The board did not err in refusing to suspend its review of the accelerated
application
{¶ 33} Yorktown contends that the board erred in refusing to grant
Yorktown’s motion to suspend review of the accelerated application and set the
matter for hearing. R.C. 4906.03(F) authorizes the board, an administrative-law
judge, the board’s chairperson, or the board’s executive director to suspend review
of an accelerated application for up to 90 days “for good cause shown.” See also
Adm.Code 4906-6-09 (setting forth the process for suspending review of an
accelerated application). Once review of an accelerated application is suspended,
the board or an administrative-law judge has discretion to set the matter for hearing.
Adm.Code 4906-6-09(C). We find that Yorktown has failed to demonstrate that it
provided the board with good cause to suspend its review of Columbia’s accelerated
application, thereby foreclosing Yorktown’s assertion that it is entitled to a hearing.
{¶ 34} Yorktown argued before the board that it should suspend its review
of the accelerated application because (1) Columbia indicated in its application that
the pipeline route would require a 50-foot-wide permanent easement but that
Columbia obtained only a 30-foot-wide permanent easement running along
Yorktown’s western property line and (2) Scott’s testimony regarding the Northern
Loop Pipeline Project indicated that Columbia’s permanent easement along
Yorktown’s property may not be wide enough for Columbia to safely operate and
maintain the proposed pipeline. We have already determined that Yorktown’s
allegation that Columbia’s application stated a requirement that the proposed
pipeline project necessitates a minimum permanent easement width is unfounded
and that Yorktown has waived its right to challenge the board’s rejection of Scott’s
testimony from prior proceedings regarding a different pipeline project.
{¶ 35} In addition, Yorktown has failed to cite any statute, administrative
rule, or pipeline-safety regulation that requires a minimum setback or minimum
easement width for natural-gas-distribution pipelines. Likewise, Yorktown has not
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identified any evidence that the proposed pipeline in this case presents safety risks
given its proximity to Yorktown’s property. This lack of citation to relevant legal
authority and record evidence suffices as a basis for this court to reject Yorktown’s
arguments. See In re Application of Columbus S. Power Co., 2011-Ohio-2638,
¶ 14; Util. Serv. Partners, Inc. v. Pub. Util. Comm., 2009-Ohio-6764, ¶ 39.
{¶ 36} As for Yorktown’s argument that the board was required to hold an
evidentiary hearing regarding Yorktown’s safety concerns, the board did not err in
refusing to set the matter for hearing. Adm.Code 4906-6-09(C) provides that
“[o]nce an accelerated certificate application has been suspended, . . . [t]he board
or administrative law judge may, at its discretion, set the matter for hearing.”
Because Yorktown has not shown that the board erred in refusing to suspend its
review of the accelerated application, Yorktown was not entitled to a discretionary
evidentiary hearing on Columbia’s accelerated application.
4. The board did not give “artificial deference” to Columbia
{¶ 37} Yorktown maintains that the board and its staff failed to address
necessary questions about the placement of the proposed pipeline and the easements
necessary to safely construct, maintain, and operate the pipeline. Yorktown argues
that instead of addressing those safety concerns by conducting a full review of the
project, the board unlawfully and unreasonably gave “artificial deference” to
Columbia throughout the accelerated-application process.
{¶ 38} Yorktown argues that the board ignored this court’s holdings in Ohio
Power Co. v. Burns, 2022-Ohio-4713, and Norwood v. Horney, 2006-Ohio-3799,
and improperly deferred to Columbia regarding the safety concerns and potential
risks to human health created by the proposed pipeline’s proximity to Yorktown’s
property. Both Burns and Norwood involved the taking of private property for
public use and the degree of deference that courts should afford to an entity
exercising its eminent-domain power. But this case does not involve any taking of
private property, including Yorktown’s. To be clear, Columbia obtained an
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January Term, 2024
easement running along the western border of Yorktown’s property through an
agreement with Yorktown’s neighboring property owner, not through the exercise
of eminent domain. Moreover, the board did not review the terms of that easement
or any other individual easement agreement that Columbia obtained along the
proposed pipeline route. Nor did the board adjudicate any rights involving
Yorktown’s private property. In sum, because this case does not involve the
exercise of eminent-domain power, Burns and Norwood are inapposite.
{¶ 39} But even if Burns and Norwood applied here, Yorktown’s “artificial
deference” argument lacks merit. Yorktown’s argument hinges on its claims that
Columbia’s accelerated application requires a 50-foot-wide permanent easement
and that the board ignored Scott’s testimony regarding the minimum easement
width needed for such a project. But as discussed, Yorktown has not demonstrated
error, let alone reversible error, with those arguments.
{¶ 40} Additionally, we are not persuaded by Yorktown’s assertion that the
board improperly deferred to Columbia regarding Yorktown’s safety concerns.
The board conditioned approval of the accelerated application on Columbia’s
complying with all relevant rules and regulations, including pipeline-safety
standards established by the Pipeline and Hazardous Materials Safety
Administration set forth at 49 C.F.R. 192.1 et seq. The Public Utilities Commission
has adopted these regulations for the purpose of enforcing the safety of intrastate
gas pipelines. Adm.Code 4901:1-16-03. The board also adopted the board staff’s
report, which requires Columbia—prior to beginning construction of the Ford
Street Pipeline—to obtain and provide “on the case docket” copies of all permits
and authorizations required by federal and state laws and regulations in areas that
require such permits and authorizations. The board also approved the Ford Street
Pipeline Project subject to the condition that issuance of the construction certificate
“shall not exempt the facility from any other applicable and lawful local, state, or
federal rules or regulations nor be used to affect the exercise of discretion of any
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local, state, or federal permitting or licensing authority with regard to areas subject
to their supervision or control.”
{¶ 41} Yorktown criticizes the board’s decision to condition approval of the
accelerated application on Columbia’s future compliance with federal, state, and
local laws and regulations, arguing that it “is not the same as ensuring the safe
construction, operation, and maintenance of the pipeline.” But the board acted
pursuant to its authority granted by the General Assembly. R.C. 4906.10(A) allows
the board to grant a siting certificate “upon such terms, conditions, or modifications
of the construction, operation, or maintenance of the major utility facility as the
board considers appropriate.” Moreover, we have consistently upheld the board’s
practice of imposing conditions on utility companies when issuing certificates to
allow a company to build a major utility facility. See In re Application of Buckeye
Wind, 2012-Ohio-878, ¶ 13-18 (lead opinion); In re Application of Icebreaker
Windpower, Inc., 2022-Ohio-2742, ¶ 39-40; In re Application of Firelands Wind,
L.L.C., 2023-Ohio-2555, ¶ 46, 65; In re Application of Alamo Solar I, L.L.C., 2023-
Ohio-3778, ¶ 41, 67. Accordingly, Yorktown has not established that the board
acted unlawfully or unreasonably in its review of Columbia’s accelerated
application and in granting a certificate for construction of the proposed pipeline.
IV. CONCLUSION
{¶ 42} Yorktown has not shown that the board acted unlawfully or
unreasonably in approving the Ford Street Pipeline Project. Therefore, we affirm
the board’s decision.
Order affirmed.
__________________
Vorys, Sater, Seymour and Pease, L.L.P., Thomas H. Fusonie, Anna Sanyal,
and Emily J. Taft, for appellant.
Dave Yost, Attorney General, and John H. Jones, Amy Botschner O’Brien,
and Thomas G. Lindgren, Assistant Attorneys General, for appellee.
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January Term, 2024
John R. Ryan Sr. and Melissa Thompson; and Porter, Wright, Morris &
Arthur, L.L.P., L. Bradfield Hughes, and Eric B. Gallon, for intervening appellee.
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