State ex rel. Utilities Commission v. Carolina Forest Utilities, Inc. , 21 N.C. App. 146 ( 1974 )

CAMPBELL, Judge.

In its final order the Utilities Commission relied heavily on Forest Hills Util. Co. v. Pub. Util. Comm. of Ohio, 31 Ohio St. 2d 46, 285 N.E. 2d 702 (1972), which held that the Ohio Utilities Commission had no statutory authority to impose “availability charges” and which was conceded to be the only available appellate decision on availability charges. However, in Mohawk Utilities v. Pub. Util. Comm. of Ohio, 87 Ohio St. 2d 47, 307 N.E. 2d 261 (1974), the Supreme Court of Ohio spoke directly to the use of availability charges in a recreational subdivision and distinguished the Forest Hills case on the grounds that the availability charge in Mohawk was agreed to in contracts between the parties rather than being imposed by the Commission. The Ohio Supreme Court in Mohawk went on to hold that under the Ohio statutes the landowners who pay availability charges are “consumers” or stand in a consumer-like relationship to the utility; that Mohawk Utilities, Inc., is a “utility”; that the contractual obligation to provide water service as well as the actual delivery thereof directly affects the utility’s ability to function as a utility; that the whole transaction was within the jurisdiction of the Ohio Public Utilities Commission; and hence, that a review of water availability charges was within the jurisdiction of the Commission.

The Ohio and North Carolina statutes governing utilities are quite similar. See, generally, N.C.G.S. Chapter 62 and, particularly, G.S. 62-2; G.S. 62-3(23), (24) and (26); G.S. 62-32; G.S. 62-130; G.S. 62-133; G.S. 62-138 (a) (1); and G.S. 62-140. We adopt the reasoning of the Mohawk case and hold that under the facts of this case, the North Carolina Utilities Commission does have the jurisdiction and authority to allow the use of an availability charge, in a rate schedule, should any be deserved. We therefore reverse that part of the Commission’s Order and remand for a determination of what amount of availability charge, if any, would be a just and reasonable rate.

Defendant’s other assignments of error deal with the Commission’s determination of depreciation and other operating expenses and are without merit. As to this portion of the Commission’s order, we affirm.

Reversed in part.

Affirmed in part.

Judges Hedrick and Baley concur.