March 14th, 2012 By Kevin Osborne | News | Posted In: Streetcar, Public Transit, Courts, Business, Development

Duke's Streetcar Claim Might be Crumbling

Ohio law has exception for wire-powered vehicles


A review of the fine print in Ohio law could spell trouble for Duke Energy in its dispute with Cincinnati about who must pay to move utility lines to accommodate the city’s streetcar project.

Readers of CityBeat’s March 6 cover story know that one of the legal arguments made by Duke Energy is that it said the system qualifies as a utility itself under Ohio law. And one utility has no legal obligation to reimburse another utility, Duke added.

City officials disagree with Duke’s interpretation, and the two sides currently are trying to negotiate a compromise to the impasse.

The city is willing to pay $6 million to relocate Duke’s natural gas, chilled water, fiber and electrical infrastructure along the streetcar route, but the firm insists it will cost at least $18.7 million and possibly more.

A close reading of the Ohio Revised Code (ORC), however, reveals it is unlikely that a streetcar system qualifies as a “public utility.”

Under Ohio law, the following items are defined as public utilities:

“A motor transportation company, when engaged in the business of carrying and transporting persons or property or the business of providing or furnishing such transportation service, for hire, in or by motor-propelled vehicles of any kind, including trailers, for the public in general, over any public street, road, or highway in this state.” ORC §4905.03

But motor-propelled vehicles aren’t defined under Ohio law.

The ORC does, however, define “motor vehicle” as:

“(B) “Motor vehicle” means any vehicle, including mobile homes and recreational vehicles, that is propelled or drawn by power other than muscular power or power collected from overhead electric trolley wires. “Motor vehicle” does not include utility vehicles as defined in division (VV) of this section, motorized bicycles, road rollers, traction engines, power shovels, power cranes, and other equipment used in construction work and not designed for or employed in general highway transportation, well-drilling machinery, ditch-digging machinery, farm machinery, and trailers that are designed and used exclusively to transport a boat between a place of storage and a marina, or in and around a marina, when drawn or towed on a public road or highway for a distance of no more than ten miles and at a speed of twenty-five miles per hour or less.” ORC §4501.01(B)

Streetcars operate using overhead trolley wires, thus they aren’t considered motor vehicles under Ohio law. But do they even qualify as vehicles? The ORC defines vehicles as:

“(A) “Vehicles” means everything on wheels or runners, including motorized bicycles, but does not mean electric personal assistive mobility devices, vehicles that are operated exclusively on rails or tracks or from overhead electric trolley wires, and vehicles that belong to any police department, municipal fire department, or volunteer fire department, or that are used by such a department in the discharge of its functions.” ORC §4501.01(A)

Of course, streetcars run on rails and use power from electric trolley wires. So, they aren’t vehicles either.

The conclusion: Either “motor-propelled vehicles” mean the same as “motor vehicles” (in which case it doesn’t apply to streetcars) or “motor-propelled” is an adjective to “vehicle” (which also doesn’t apply, as streetcars aren’t vehicles).

In each instance, a streetcar system doesn’t fall into the legal realm of a “motor transportation company” and therefore isn’t a “public utility.”

03.14.2012 at 02:35 Reply
When I hear the word "Utility", I think "electricity" or "water"... I don't think "Street Car"! It doesn't make sense to me that any sort of motor vehicle - whether it fits the State's definition of one or not - would be considered a utility. I can kind of see Duke's PoV about having to pay to move all of their lines when this isn't their project, however, wouldn't they have to do this if the city were breaking ground for, say, a new city building or a road-widening project? Isn't this the sort of thing that we pay for in all of the extra fees and taxes we pay to Duke in our bills? (A huge chunk of our bill is fees and taxes!) Duke should do the work. This is a project that is giving people jobs in a tough economy and Duke is holding up progress.


03.14.2012 at 02:47 Reply

You wrote: "A close reading of the Ohio Revised Code (ORC), however, reveals it is unlikely that a streetcar system qualifies as a '“public utility.'"

This is wrong.  You quote at some length from R.C. 4905.03, but somehow you missed division (A)(10), which includes within the definition of "public utility" the following:

"(10) A street railway company, when engaged in the business of operating as a common carrier, a railway, wholly or partly within this state, with one or more tracks upon, along, above, or below any public road, street, alleyway, or ground, within any municipal corporation, operated by any motive power other than steam and not a part of an interurban railroad, whether the railway is termed street, inclined-plane, elevated, or underground railway;"

Based on subdivision (A)(10), it seems pretty clear that a streetcar is a "public utility."

Also, you wrote that "motor-propelled vehicles aren’t defined under Ohio law."  This is also wrong.  R.C. 4905.03(B) says: "'Motor-propelled vehicle' means any automobile, automobile truck, motor bus, or any other self-propelled vehicle not operated or driven upon fixed rails or tracks.


03.15.2012 at 07:54

Jeff, you are correct in that I should have been clearer in what I wrote.

In reference to "public utility," I don't think it applies to streetcars because of the "interurban railroad" phrase.

Also, I should have written "motor-propelled vehicles aren't defined in a way pertaining to rail projects." That would have been much clearer.

Thanks for the catches. I am sure you will agree that this dispute will be interesting to watch play out, should it ever even get to court (which I suspect it will not).


03.14.2012 at 09:27 Reply

This is all a bunch of antiquated crap that is sitting in the state legal code like 40 year old holiday decorations in my grandmother's basement. It may be law, but it doesn't mean its in the interest of a responsible, efficient state to have it. One only has to consider that there are blatantly conflicting definitions and explanations in all this code. Apparently a streetcar occupies some quantum Schroedinger's Cat status as both a motor vehicle and not a motor vehicle. Please, just spare us the tedium and force Duke to accept the 3-foot utility benchmark because that's the existing modern precedent.


03.15.2012 at 08:06 Reply

Kevin: Again, I would direct you to the next two subdivisions in the statute, (A)(11) and (A)(12), to address your concerns about "interurban railroads."  An "interurban railroad" is one which spans multiple municipal corporations, so the exclusion of "interurban railroads" from the definition of "street railway company" in (A)(10) would not apply to the Cincinnati streetcar.  Also, it really doesn't matter whether an "interurban railroad" is or is not a "street railway company," because both "interurban railroads" and "street railway companies" are "public utilities" under this statute.

Marshal: You may or may not be right about whether these statutes are good policy, but you are wrong that "there are blatantly conflicting definitions and explanations" throughout the code. If you disagree, what are the conflicting definitions and explanations?  You are also wrong to claim that this is "antiquated crap." Whether or not it is crap is perhaps something we could agree or disagree on, but the law was amended and updated less than two years ago--effective as of September 13, 2010. 


03.15.2012 at 10:10

If multiple entities own a right of way and one of them decides to exercise that right in any way that impinges on the other entities right of way then the impinging entity must cover all costs associated with the impingement. Period.

This fact seems to be common sense.  Apparently common sense is not so common.


03.15.2012 at 11:05

Anonymous, if you would've read the original article, you would have discovered "multiple entities" do not "own" the rights-of-way in question. The city of Cincinnati owns them, and Duke operates there on a permit basis. Period.

Further, utility companies HAVE had to foot the entire bill in other cities with streetcar systems. At least Cincinnati is offering to help Duke.