Senate Bill 331, set to take effect March 21, has been opposed by some cities and lawmakers as taking power away from local governments

Community leaders across Ohio are considering how to challenge a state law critics say could take power away from cities and counties.

Senate Bill 331 was introduced in May 2016 and originally received support from Chillicothe-based Petland because it would overrule city-level laws attempting to specify where pet stores could purchase puppies.

The bill, sponsored by Sen. Bob Peterson (R-Sabina), was written largely in response to an ordinance Grove City had adopted in March 2016 requiring retailers to acquire the pets they sell from animal shelters, rescues and humane societies. Instead, it allowed pet stores to sell puppies from any "qualified breeder" meeting certain conditions.

But by the time Gov. John Kasich signed SB 331 into law in December, it had become an omnibus bill covering a variety of seemingly unrelated topics applying only to cities and counties.

The bill, which is scheduled to take effect March 21, included language that criminalized bestiality, prohibited cities from raising local minimum wage above the state minimum wage of $8.15 and limited municipalities' ability to regulate work schedules and benefits.

It also included an amendment that gave utility companies full rein to install "small-cell wireless" nodes to such structures as street signs and traffic lights within cities' public rights of way. When such structures are not present, the bill allows companies to install a tower, similar to a telephone pole, for infrastructure.

AT&T backed the amendment that was added during the senate's lame-duck session.

A range of concerns

For many local city leaders, the small-cell wireless amendment is a concerning precedent when it comes to home rule, which the Ohio Constitution grants to municipalities for "the power of local self-government, exercise of police powers and ownership and operation of public utilities," according to a definition from the Ohio State Bar Association.

"It really puts a tremendous number of constraints on local governments in terms of our ability to manage or regulate or control the installation," said Westerville City Manager David Collinsworth. "Up until now, we've had right-of-way ordinances that govern when and how and the extent to which you can go in and utilize the city's public right of way. This basically preempts that and puts in place a very structured set of requirements and limitations on local governments and what we can say or do."

Grove City Mayor Ike Stage described it as a limit on local authority.

"It allows someone like AT&T to have access to all of our poles in the right of way and put in small-cell equipment without having to ... get formal approval," Stage said.

Peterson did not return calls requesting comment, but Matt Resch, an AT&T spokesman, said the bill's language was not sinister as some have implied.

Resch said the bill simply "streamlines" the process of installing the technology, and AT&T is committed to working with communities, rather than installing things with no regard for their opinions.

"As everyone knows, the demand we're putting on our cellphones and iPads and devices every day for more data increases all the time," he said. "We're trying to make sure our network in Ohio and across the country is set up best to deliver that data for people who need it. Small-cell technology is one of the innovations coming up that brings faster speeds to customers."

The bill itself wasn't a unanimous decision, even along party lines.

In a Dec. 7 vote, 21 senators voted yes while 10 senators -- nine Democrats and Randy Gardner (R-Bowling Green) -- voted against the bill. In the House, 55 Republicans voted in favor while 42 representatives, including nine Republicans, voted no.

State Rep. Mike Duffey (R-Worthington) was one of the nay votes. He said the bill was a violation of both home rule and the Ohio Constitution's rule that bills should be limited to one subject.

"It was a logrolled bill, meaning they stuffed many things into one bill," Duffey said. "It's clearly a violation of the Ohio Constitution's single-subject rule. If the Supreme Court has any guts, they'll strike it down for that reason. ... But until the court is embarrassed about this issue, they're going to continue letting it slide."

Duffey criticized his Republican colleagues, saying they claim to support local municipalities but several approved SB 331, which is "almost entirely about denying local control."

He also said the bill's language was designed to force the hand of anyone voting against it.

"If anybody voted no on it, they would be theoretically accused of supporting bestiality," he said. "That's the kind of stupid game they play."

Legal options

With the bill scheduled to take effect next month, many cities -- including some in central Ohio -- are in the process of adopting legislation that officially opposes it, with some ready to support legal action.

Greg Dunn, a Worthington resident and partner with the Ice Miller law firm, specializes in cases involving rights of way and public utilities.

Dunn represented Upper Arlington and Dublin in a successful 2002 lawsuit against the state that cited the "single-subject" rule, a portion of the Ohio Constitution specifying that "no bill shall contain more than one subject, which shall be clearly expressed in its title."

In the case of SB 331, Dunn believes cities would have an even stronger claim. He said he's been in touch with a handful of community leaders who are ready to support legislation.

"I know many jurisdictions are thinking about this," he said. "My gut would be that the bigger jurisdictions will be the leaders and that they will probably want laws filed in their own jurisdictions."

Any lawsuit to challenge the bill would first go to a common pleas court in the county of the city that decides to challenge it, Dunn said. It would request that the court find the bill unconstitutional.

Dunn said he expects a major city, such as Columbus, Cleveland or Toledo, would lead the way, with other cities providing support in one way or another.

Rather than a variety of lawsuits from different counties, Dunn said, one would take precedent, as multiple decisions from multiple county courts would send the case to an appellate court and then to the Ohio Supreme Court.

Determining a response

Despite AT&T's reassurances, Dunn and the city officials he said he has been talking to aren't willing to take their word for it.

"It gives everybody with a public-utility license the ability to do these things," he said. "And you know there's going to be a bad actor in the group."

The city councils of Worthington and Bexley have discussed resolutions that oppose SB 331 and pledged to work with other cities on opposing it, while some municipalities in central Ohio are waiting for the lead of the Central Ohio Mayors and Managers Association, for which Bexley Mayor Ben Kessler is chairman.

"COMMA is cooperating with other regional city groups to challenge the legality of SB 331," Kessler said in an email.

At a Jan. 24 Bexley City Council meeting, Kessler provided an example of his concern.

"It subverts our local zoning process, in that poles can go up to 50 feet without any approval, and we don't allow 50-foot poles in most zoning districts," he said.

Stage said COMMA members have discussed a potential joint lawsuit, but it remains under discussion.

"Without question, Senate Bill 331 is a significant impediment on home rule, particularly when it comes to the right-of-way issue," he said. "The idea of a lawsuit is still in the talking stages."

Grove City likely would participate in or support a lawsuit in favor of home rule, Stage said. Although other components of the bill affect municipalities, discussion regarding a potential lawsuit has focused primarily on the right-of-way issue, he said.

Collinsworth said he wouldn't confirm that Westerville would be involved in a lawsuit, but he "wouldn't rule it out."

"There are some cities in the state that are evaluating (a legal) option," he said. "They're talking ... about whether or not there is a path that makes sense in terms of a legal challenge. There's a lot that still needs to be deciphered about that."

Meanwhile, the largest city in central Ohio hasn't taken a side. A spokeswoman for Columbus Mayor Andrew Ginther said city leaders had no comment on the matter.

If the bill eventually is struck down, Duffey said, he hopes lawmakers will rethink trying to sneak amendments into a bill without public discussion.

"The whole point of having a process on bills is that people have an opportunity to speak up about them," he said. "When somebody does this as an amendment and doesn't introduce it as a bill ... it's kind of offensive."

ThisWeek staff writer Alan Froman and freelancer Chris Bournea contributed to this story.

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