Ohio Municipal League
175 South Third Street
Suite 510
Columbus, Ohio 43215

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John Mahoney
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CONTROL OF PUBLIC RIGHT OF WAY

Over all of your objections and those of OML, the Joint Conference Committee retained the proposal in the budget bill (HB 283) which attempts to severely restrict a city or village’s (and other political subdivisions) ability to regulate the public right of way. In addition they ignored the joint objections of the OML, County Commissioners Association, County Engineers Association, and Township Association which were provided to each Senator and Representative in a joint letter.

Amendments inserted by the conference committee: 1) attempt to grandfather "any legal requirement of a political subdivision... which took effect on or before 12/31/98"; however subsequent amendments to any such legal requirements would be required to comply with provisions of HB 283; 2) exempt from fees and permits for access any provider that doesn’t own the facility in the public right of way but that may use that facility. Obviously those are not particularly helpful. Rep. Peter Lawson Jones attempted to lessen the negative impact of this rider to the budget bill but was voted down.

The conference committee report will be on the floor of the House and Senate Monday, June 28 where it is expected to pass with this offensive language included. PLEASE CALL OR FAX YOUR OBJECTION TO HAVING NEW SECTIONS 4939.01-4939.04 ENACTED AS PART OF THE BUDGET. YOU MAY ALSO WANT TO EXPRESS YOUR DISAPPOINTMENT WITH THEIR ACTIONS ON THIS ISSUE TO DATE.

NEXT CONTACT IMMEDIATELY GOVERNOR TAFT ASKING HIM TO VETO SECTIONS 4939.01-4939.04 OF HB 283.

THE GOVERNOR’S TELEPHONE NUMBER IS: 614/466-3555
THE GOVERNOR’S FAX NUMBER IS: 614/466-9350

OML legal counsel raised the following serious legal issues not only with the process of enacting the amendment but with the contents of the amendment.

1) Violation of the "one-subject rule". See Simmons -Harris v. Goff (1999) Ohio St. 3d (decided 5/27/99) and the cases cited therein by the Ohio Supreme Court.

2) Efforts to limit the police power of municipalities by unlawful means, i.e. by prohibiting or requiring certain actions or conduct by the municipality rather than substantively regulating the industries involved. No regulatory pre-exemption, is allowed by case law. Conflict is the appropriate test, and that test is not met.

3) That which is really of local concern can not be converted into state-wide concern by legislative fiat.

4) Should the state of Ohio be allowed to take the property rights of the municipality held in trust for its people without just compensation? The proposal seems to override the interest of the municipality and its people, and may constitute a takings.

5) The Ohio and Federal Constitutions prohibit the impairment of the obligation contracts. Will the application of the proposal impair existing contracts and agreements voluntarily entered into the by the parties?