Ohio Municipal League
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John Mahoney
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On Thursday of this week SB 255 was introduced in the Senate by Senator Lou Blessing. This legislation, which attempts to limit local control over local right-of-ways, is in reaction to a Franklin County Common Pleas Court that declared a portion of HB 283, passed by the General Assembly in 1999, was unconstitutional. In a suit filed on behalf of the cities of Upper Arlington and Dublin, the court said that the right-of-way provisions of HB 283 violated both the "single subject" clause of the Ohio Constitution and the Home Rule provisions of Ohio's Constitution.

The single subject clause of the Constitution provides that no bill passed by the General Assembly shall contain more that one subject. HB 283 was an 855-page state budget bill. The Court deemed the insertion of the right-of-way provisions as having nothing to do with the state budget.

The Court also ruled that the right-of-way provisions of HB 283 violated Home Rule because the provisions reduced and eliminated municipal powers to regulate without providing a state system to take the place of that regulation. The Court held that such a scheme was not a "general law" because it was simply a legislative act designed to eliminate powers of municipal self-government. As such, the right-of-way provisions of HB 283 violated a core provisions of the Home Rule powers invested in municipalities by the Constitution.

The Court decision also held that while the General Assembly could limit municipalities abilities to impose "taxes" for the use of the right-of-way, the state could not prohibit the levying of reasonable fees related to the cost of managing the right-of-way on those private companies which use the right-of-way.

The introduction of SB 255, which will receive a sponsor-only hearing next week in the Senate Ways and Means Committee, hopefully begins the discussion on all of these issues through the usual legislative hearing process. While as a "stand alone" bill, SB 255 addresses the single subject violation. However, as primarily a restatement of all that was in HB 283, the bill does not as yet address all the Home Rule issues cited by the Court.

The League, in cooperation with the Ohio Municipal Electric Association and many others interested in this issue, is and will be working to make sure those issues related to Home Rule are satisfactorily addressed throughout the legislative consideration of SB 255.

First, if you have passed a right-of-way ordinance, especially one which includes fees of some sort, we would like you to send us a copy of that ordinance. Proponents of state limitations on municipal right-of-way powers have portrayed many right-of-way ordinances as the new "cash cows" for municipalities. We don't think that is the case. We know that most right-of-way ordinances impose fees that are "cost based." We need copies of your ordinances so that we can make that point clear.

Second, if you have right-of-way regulations, we need for you to talk to your local legislators about how important these regulations are for the management of the right-of-way. While the discussion on fees is important, we think the most important issue in this discussion is being able to regulate and coordinate what happens in the right-of-way and when necessary work in the right-of-way occurs.

While you are still more than welcome to call the League offices to get sample ordinances, we have also set a quicker way for you to get some ordinances off our website. We are taking the top ten requested sample ordinances and listing them under the "TopTen Ordinances" on our website (Sure, it's a Letterman thing. Wait until you read the ordinance on "barking dogs." It's hilarious!). The Top Ten will be available early next week.

Senate Ways & Means, After 1:30 p.m. session & majority caucus, South Hearing Rm., Chr. Blessing, Phone: 466-8068.

SB 255 RIGHTS-OF-WAY (Blessing) Re-enacts certain provisions of the utility and cable public right-of-way law as enacted by Am.Sub.HB283 of the 123^rd General Assembly and makes other changes. (1^st Hearing - Sponsor - Pending referral)

SB 247 RETIREMENT BENEFITS (Blessing) Creates in the State Teachers Retirement System, school Employees Retirement System and Public Employees Retirement System the option of receiving retirement benefits as a partial lump sum followed by a reduced monthly allowance and makes other changes to the law governing STRS. (2^nd Hearing - Proponent, opponent & interested party - Explanation of substitute bill)

1. How did you set up your Architectural Review Board?
2. Who did you choose for your board and why?
3. Do you compensate your board? If yes, how much?
4. If you have an ordinance that describes the makeup and guidelines of the board, would you share it with us?

Thank you.