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City opposes Senate Bill 331, may affect historic district

by Laura Freeman | Reporter Published: March 27, 2017 11:39 AM
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HUDSON – The city has spent $4.7 million to beautify Main Street in downtown and maintain its historical appearance, but officials are concerned that may be undone by Ohio Senate Bill 331 which went into effect March 21.

At the March 7 Council meeting, city solicitor Todd Hunt explained how the bill affects municipalities like Hudson.

The bill allows wireless service providers to attach equipment such as boxes and antennas to any public poles such as traffic lights or street lights in the public rights of way without the consent or regulation of local cities and villages, Hunt said.

The law doesn't apply to county or township streets, he said.

The equipment can't be more than 28 cubic feet in size and an antenna, with or without an enclosure, must not exceed six cubic feet, according to the legislation.

The law also allows a cellphone provider to build a tower up to 50 feet in height in the public rights of way.

The concern to municipalities, he explained, is the state requirement that municipalities accept facilities that support small cell wireless technologies in their rights of way.

This would preempt city ordinances such as the 1950 Hudson ordinance requiring utilities to be underground in the historic downtown area, Hunt said.

“Hudson prides itself in the city’s historic downtown area,” said Communications Manager Jody Roberts. “For more than 50 years, Hudson has not permitted above ground utilities in our downtown. We also require developers to install underground utilities in new residential and commercial subdivisions.”

With SB 331, companies will be able to install equipment on city poles, place poles anywhere in the historic and residential areas, install above ground cabinets, and the city can’t say no, Roberts said.

“We believe this statute will have a significant negative impact on our city now and in the future,” she said.

Lawsuit

Hunt filed a lawsuit March 17 in the Summit County Court of Common Pleas for a temporary restraining order and preliminary injunction against implementation of SB 331. A hearing is scheduled for March 30 in the Summit County Court of Common Pleas. The original lawsuit listed 20 municipal plaintiffs from seven counties – Cuyahoga, Summit, Lorain, Medina, Wayne, Portage and Lake. The lawsuit will be amended to include 11 more municipalities. Hudson and Aurora are among the 31 communities.

The proposal was put together by wireless utilities and went through the legislative process in two weeks and was tacked onto SB 331, Hunt said.

SB 331 started out as puppy mill legislation in May 2016 in the House in the General Assembly to regulate the sales from puppy mills, Hunt said. Later in the year things started to be added such as the violation for beastiality, prohibiting a different minimum wage than the state's amount, appointments of directors of local humane and animal welfare societies and animal fighting.

“We feel it is a violation of home rule and violates [the] single subject rule,” Hunt said.

“In December the last thing they threw in was this issue about small cell facilities and public rights of way in municipalities only,” he said. “It does not regulate or prohibit in related county and township roads. The provisions virtually takes away all local regulation in public ROWs.”

The lawsuit has two claims, Hunt said.

The first claim is that the bill violates the Ohio Constitution prohibition against adding additional unrelated items to legislation, he said.

“Each piece of legislation shall have a single subject and clearly stated in the title and legislative contents,” Hunt said. “There are a plethora of subjects that are unrelated [in SB 331].”

The second claim is the home rule, Hunt said. SB 331 is not a general law of statewide application because it only applies to municipal streets. The bill does not apply to township and county streets or roads.

“If it is not a general rule, we as municipalities should exercise our regulatory authority over our streets,” Hunt said. “It preempts virtually all local regulation of streets.”

The city can't regulate where the equipment will be located, Hunt said.

A third claim which was to be added March 24 states the General Assembly didn't give SB 331 the required three readings before its passage, Hunt said.

The lawsuit asks for a preliminary injunction, according to Hunt.

“Which means we want the statute to not be applied during the pending of the lawsuit,” he said.

A hearing on the preliminary injunction is scheduled March 30 in the Summit County Court of Common Pleas.

“The state of Ohio brief opposing our brief is due [March 24], and we can file a reply brief by Tuesday [March 28],” Hunt said.

The court can declare the bill unconstitutional based on one or more of the claims, Hunt said.

“Then it would have no force or effect after that point,” he added.

Hunt said if that occurs, the wireless company will likely ask for new legislation and make a second effort to pass something.

“Hopefully municipalities would have more input than the few days in December when this was rushed through,” Hunt said.

Municipalities already had significant constraints on ROW regulations in respect to public utilities prior to this law, Hunt said.

“We felt what was in place was adequate,” he said. “This was not necessary.”

Legislators’ comments

Ohio Senator Frank LaRose (R-Hudson) and Ohio House Representative Kristina Roegner (R-Hudson) voted for the bill which was approved in December 2016 by the Ohio General Assembly and signed by Gov. John Kasich.

Roegner said she could see both sides of the telecommunications aspect of SB 331.

“It's an exciting time for Ohio,” Roegner said. “We are on the forefront of technology. Ohio would be in the lead of the 5G technology.”

Roegner said that wireless service providers would still need approval from the city to place equipment.

“They have to go through zoning committee and can't just place them on historic buildings,” Roegner said. “They have to get appropriate approval.”

Roegner said she has lived in Hudson for 15 years and wants to maintain the character and charm of the city.

Senate Bill 331 was a bill that passed in the lame duck session, Roegner said.

“It was a bill with all kinds of things in it, disconnected unrelated topics,” she said. “There was a component about beastiality in there so if you voted no, then it sort of meant you were supportive of beastiality. Cock fighting was in it. Same sort of the thing, if you voted no you supported this cruel, unusual fighting.”

Senator Frank LaRose explained why he voted for the bill.

"There seem to be many misconceptions about this important new development to improve wireless service for all Ohioans," LaRose said. "When considering the final version of the legislation, we were informed that the Ohio Municipal League—the advocate for Ohio’s cities before the General Assembly—had taken a neutral position on this legislation. Once I knew that the organizations representing Ohio’s cities did not object to this change, I was comfortable with this component of the larger bill. Exemptions in the legislation also ensure that technological advancement and historical preservation can coexist.
 
"The spirit of this change is to improve wireless service for people across Ohio."

Editor’s Note: Some information was provided by the Columbus Dispatch.

Email: lfreeman@
recordpub.com
Phone: 330-541-9434
Twitter: @LauraFreeman_RP


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jtzedak Mar 30, 2017 3:49 PM

WOW!!!! The assault on Home Rule and Local Zoning continues and who is surprised? The same thing happened with rules regarding Natrual Gas well siting. When this was pointed out to city council, the response was "What can we do? Sue the state?" Well actually, yes, that is exactly what you do. Why is a small antenna on a pole bad? Because we, as a community, deserve and in fact HAVE the right to decide these types of issues. Not the state. Greater access to WIFI is not free to the community. We are enabling providers to utilize a public common for their advantage.