Substitute House Bill 244, effective August 12, 2008, protects both trustees and utility line owners from liability arising from the relocation of those lines. The bill further expands the authority of landowners to collectively request that certain utility lines be buried. The provisions require that costs associated with the relocation pass to those landowners located in the project area.
This clarification to Ohio statute will be of particular interest to real estate developers and to construction contractors.
Under current Ohio law, township trustees may enter into a contract for the underground relocation of overhead utility lines and appurtenant equipment. The trustees may contract with a third-party (such as a developer) for utility relocation, so long as that third-party consults with the owner of the utility lines before commencing the project. Prior to the change, the now-deleted Ohio Revised Code §515.15 read:
Any corporation, company, partnership, association, municipal corporation, or person with which the board of township trustees contracts for the relocation of overhead cables, wires, and appurtenant equipment underground shall identify and consult with the owner of such cables, wires, and equipment during the planning of the relocation, and shall notify the owner at least twenty-four hours in advance of beginning the relocation.
To relocate utility lines underground, township trustees follow the process set out in Ohio Revised Code §§515.11 - 515.15. Under existing law, the trustees have the authority, by resolution, to require landowners in the utility relocation area to install underground wires and other equipment from the street or right-of-way to their buildings or structures. Current law also empowers trustees to enter onto private land to examine wires and equipment in conjunction with the relocation project.
Prior to amendment, trustees or utility line owners are not protected from liability when engaging in utility relocation projects. After August 12, however, that standard will change as explained below.
Under current law, the landowners in a township may petition for special lighting projects, as defined by Ohio Revised Code §515.02. Trustees may approve a petition signed by landowners and assess those landowners the cost of the project under additional authority:
Such assessments may be made and levied by any one of the following methods: (A) By a percentage of the tax value of the property assessed; (B)In proportion to the benefits which may result from the lighting; (C) By the foot frontage of the property bounding and abutting upon the streets, or public ways so lighted; (D) In an equal amount against each benefited lot, this amount to be determined by dividing the total cost per semiannual installment by the number of benefited lots in the district.
Ohio Revised Code § 515.08
The New Law
Substitute House Bill 244 allows townships to recoup the costs of relocating utility lines and protects trustees and utility owners from liability when engaging in these projects.
The bill's sponsor, Representative Tom Brinkman (R-Cincinnati) said that township trustees came to him after attempting to assess residents for the relocation utility lines, and realized they had no authority to do so. "The bill closely follows the same code applying to cities -- with slight changes requested by the utility companies and agreed on by the Ohio Township Association," Brinkman said.
Heidi Fought, Director of Governmental Affairs for the Ohio Township Association testified to her organization's support of the bill, and highlighted the fact that the Township Association is always supportive of permissive legislation that allows boards of township trustees more latitude in the execution of their duties.
The new law protects board of township trustees, as well as the owners of overhead utility wires and equipment, from any liability occurring from line relocation. The owners are not relieved of liability stemming from their own negligence. Substitute House Bill 244 changes the standard for both trustee-initiated projects and those started by petition. The new law at Ohio Revised Code §515.15 reads:
The township is not liable for any service outages or other damage caused by the underground relocation project. The owner of the overhead cables, wires, and appurtenant equipment is not liable for any service outages or other damage caused by the underground relocation project, unless the outage or other damage was caused by the owner's negligence.
This liability protection applies not only in citizen petition relocation projects, but for those initiated by the boards of township trustees as well.
Owners are liable only when they act negligently during the relocation.
Under newly created Ohio Revised Code §515.16, "any person" is afforded the opportunity to file a petition requesting the board of township trustees relocate wires and utility equipment underground. Ohio Revised Code §515.08 serves as a template for the new provisions created by Substitute House Bill 244. The new law at Ohio Revised Code § 515.16 provides a similar procedure by which township landowners can petition to relocate utility lines and other appurtenant equipment underground.
The petition shall specify the metes and bounds of the area to be included in the underground relocation project and any designated properties served by private streets as designated in the petition and shall be signed by at least seventy-five per cent of the landowners in the specified area whose land either abuts the streets or rights-of-way, including any designated properties served by private streets, or otherwise would be specially benefited by the project.
Substitute House Bill 244 still allows the board of township trustees to decide in favor of or against the petition before embarking on the utility relocation project. Once a project is approved, however, township trustees must contract only with the owners of the overhead equipment in the relocation. Similarly, the legislature added language in Ohio Revised Code §515.15 that requires township trustees to deal only with the utility owner when engaging trustee-initiated projects.
When the township trustees approve a relocation project initiated by petition, those trustees must pay for the relocation of the lines and equipment. Any costs incurred by the township in this process, however, "shall be assessed upon abutting or specially benefited property" according to the code. The trustees then may assess the properties located in the project area, as laid out in the petition initiating the action.
The township trustees can collect interest on unpaid assessments in both trustee-initiated special lighting projects and the newly created petition-initiated underground utility relocation projects according to the substitute version of House Bill 244.
The board of township trustees shall certify the assessments and interest on unpaid assessments, when applicable, to the county auditor. The auditor shall place the assessments and interest on unpaid assessments, when applicable, upon the tax duplicate and collect the assessments and interest in the same manner and at the same time that taxes are paid and collected. The collected assessments and collected interest shall be deposited into the township general fund.
Under Substitute House Bill 244, the township also may use general fund dollars to pay for those parts of the relocation project that the trustees determine to be for a general benefit as opposed to the special benefit conferred upon abutting property owners.
Substitute House Bill 244 passed both the Ohio Senate and the House of Representatives unanimously. The new law primarily protects township trustees and utility line owners from liability during relocation projects. The law also affords landowners the opportunity to initiate their own utility line relocation projects.
Boards of township trustees should be prepared to address new petitions asking for the relocation of overhead utility wires any time after the effective date of this Act. Similarly, utility line owners might plan on increased projects directed at relocating their equipment underground.