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(123rd General Assembly)(Substitute Senate Bill Number 295)
AN ACT
To amend sections 129.42, 5501.20, 5501.31, 5501.32, 5501.34, 5501.45,
5501.50, 5511.01,
5511.07, 5515.02, 5515.04, 5521.01, and 5525.14, to enact
section 5525.23, and to repeal sections 4582.07, 4582.08, 4582.09,
4582.32, 4582.33, 4582.34, and 5501.37 of the Revised Code to
revise the law governing Department of Transportation construction
contracts, to revise the sale and acquisition of property by the
Department of Transportation,
to make other changes in the law governing the
Department of Transportation, and to repeal requirements for a port authority
to have a plan for future development.
Be it enacted by the General Assembly of the State of Ohio:
SECTION 1. That sections 129.42, 5501.20, 5501.31, 5501.32, 5501.34, 5501.45,
5501.50,
5511.01, 5511.07, 5515.02, 5515.04, 5521.01, and 5525.14 be
amended and section 5525.23 of the Revised Code be enacted to
read as follows:
Sec. 129.42. All moneys received from the sale of any
certificates of obligation issued pursuant to section 129.41 of
the Revised Code, and all moneys required by the terms of
agreements under section 5501.36 of the Revised Code to be paid
by the director of transportation to the commissioners of the
sinking fund shall be paid into a special fund hereby designated
as "special highway acquisition fund .........." (designation to
be provided) and said special fund shall be applied solely to the
payment of the cost of acquiring real property as provided in
section 5501.36 of the Revised Code or to the payment of
principal and interest of said certificates of obligation. There
shall be a separate such special fund for each issue of
certificates of obligation. There is hereby created a lien upon
each such fund and such real property in favor of holders of such
certificates of obligation. Moneys in any such special fund may
be invested in direct obligations of the United States government
prior to the anticipated need for such moneys and the
commissioners shall be guided in the investment of such moneys by
the instructions of the director. The clerk of the commissioners of the sinking fund shall be
paid from the several respective special highway acquisition
funds, suitable compensation in addition to that prescribed by
section 129.01 of the Revised Code. All the other expenses of
the commissioners of the sinking fund in connection with this
section and sections 129.41, 5501.36, 5501.37, and 5501.38 of the
Revised Code, not otherwise provided for, shall be paid from the
appropriate special highway acquisition fund. Out of the proceeds of sale of an issue of certificates of
obligation issued pursuant to section 129.41 of the Revised Code,
or from the additional consideration running from the director to
the commissioners of the sinking fund under an agreement
contemplated by section 5501.36 of the Revised Code, or from
both, there shall be set aside into a certificate of obligation
redemption account in the said special fund the sum required to
pay interest coming due during the life of said certificates of
obligation in the then current biennium, which amount shall be
used only for that purpose. In the event an issue of
certificates of obligation is renewed for a biennium beyond the
biennium of original issue, the agreement securing said renewal
issue shall provide in like manner for the setting aside of the
sum to pay interest coming due in the then current biennium to
the extent that such amounts are not otherwise provided for in
said account. As provided in section 5501.36 of the Revised
Code, direct obligations of the United States government may be
substituted in whole or in part for the sum or sums otherwise
required under this section. Such agreements under section
5501.36 of the Revised Code shall define the circumstances under
which moneys to be paid by the director to the commissioners of
the sinking fund as purchase price must be paid into the
appropriate special fund, with restrictions on its use to acquire
additional real property thereunder, so as to avoid any
possibility of default in the payment of interest on certificates
of obligation or in the payment of principal thereof at maturity
or prior redemption. In a single biennium, more than one issue of certificates
of obligation may be authorized and secured by a single agreement
and supplements thereto under section 5501.36 of the Revised Code
notwithstanding that such certificates of obligation may be
issued, sold, and delivered at different times, with different
dates and bearing different rates of interest. Sec. 5501.20. (A) As used in this section: (1) "Career professional service" means that part of the
competitive classified service that consists of employees of the
department of transportation who, regardless of job classification, meet both
of the following qualifications: (a) They are supervisors, professional employees who are not in a
collective bargaining unit, confidential
employees, or management level employees, all as defined in section
4117.01 of the Revised Code. (b) They exercise
authority that is not merely routine or clerical in nature and
report only to a higher level unclassified employee or employee
in the career professional service. (2) "Demoted" means that an employee is placed in a position where the
employee's wage rate equals, or is not more than twenty per cent less than,
the employee's wage rate immediately prior to demotion or where the employee's
job responsibilities are reduced, or both. (3) "Employee in the career professional service with
restoration rights" means an
employee in the career professional service who has been in the
classified civil service for at least two years and who has a cumulative total
of at least ten years of continuous service with the department of
transportation. (B) Not later than the
first day of July of each
odd-numbered year, the director of transportation shall adopt a
rule in accordance with section 111.15 of the Revised Code
that
establishes a business plan for the department of transportation that states
the department's mission, business objectives, and strategies
and that establishes a procedure by which employees in the
career professional service will be held accountable for
their performance. The director shall adopt a rule that establishes a
business plan for the department only once in each two
years. Within sixty days after the effective date
of a rule that establishes a business plan for the department, the director
shall adopt a rule in accordance with
section 111.15 of the Revised Code that identifies specific
positions within the department of transportation that are
included in the career professional service. The director may amend the rule
that identifies the specific positions included in the career professional
service only within sixty days after whenever the
director adopts a rule that establishes a business plan for the
department determines necessary.
Any rule adopted under this division is
subject to review and invalidation by the joint
committee on agency rule
review as provided in division (D) of section
111.15 of the Revised Code. The director shall provide a
copy of
any rule adopted under this division to the director of budget and
management. Except as otherwise provided in this section, an
employee in the career professional service is subject
to the provisions of Chapter 124. of the Revised
Code that
govern employees in the classified civil service. (C) After an employee is appointed to a
position in the career professional service, the employee's direct supervisor
shall provide the
employee appointed to that position with a written performance action plan
that describes the department's expectations for that employee in fulfilling
the mission, business objectives, and strategies stated in the department's
business plan. No sooner than four months after being appointed to a
position in
the career professional service, an employee appointed to that position shall
receive a written performance
review based on the employee's fulfillment of the mission,
business objectives, and strategies stated in the department's
business plan. After the initial performance review, the employee shall
receive a written performance review at least once each year or as often as
the director considers necessary. The department shall give an employee
whose
performance is unsatisfactory an opportunity to improve
performance for a period of at least six months, by means of a
written corrective action plan, before the department takes any
disciplinary action under this section or section 124.34 of the
Revised Code. The department shall base its performance
review forms on its business plan. (D) An employee in the career professional
service may be suspended, demoted, or removed because of
performance that hinders or restricts the fulfillment of the
department's business plan or for disciplinary reasons under section 124.34 or
124.57 of the Revised Code. An employee in the career
professional service may
appeal only the employee's removal to the state personnel board
of review.
An employee in the
career professional service may appeal a demotion or a
suspension of more than three days pursuant to rules the
director adopts in accordance with section 111.15 of the
Revised
Code. (E) An employee in the career professional
service with restoration rights
has restoration rights if demoted because of performance that hinders or
restricts fulfillment of the mission, business objectives, or strategies
stated in the department's business plan, but not
if involuntarily demoted or removed for any of the reasons described in
section 124.34 or for a violation of 124.57 of the Revised
Code.
The director shall demote an employee
who has restoration rights of that nature to a
position in the classified service that in the director's judgment is similar
in nature to the position the employee held
immediately prior to being appointed to the position in the career
professional service. The director shall assign to an employee who is
demoted
to a position in the classified service as provided in this division
a wage rate that equals, or that is not more than twenty per cent less than,
the wage rate assigned to the employee in the career professional service
immediately prior to the employee's demotion. (F) This section establishes a
pilot program for employees in the
career professional service of the department of
transportation. At the end of each fiscal biennium that this program is in
effect, the
director of transportation shall prepare a report describing and
evaluating the operation of the program and forward a copy of
the report to the governor, director of administrative services, speaker
of the house of representatives, and president of the senate. (G) No person shall be appointed to a position in the career
professional service of the Department of Transportation after June
30, 2003, including for the purpose of filling a vacancy within the career
professional service that occurs for any reason. Sec. 5501.31. The director of transportation shall have
general supervision of all roads comprising the state highway
system. The director may alter, widen, straighten, realign,
relocate,
establish, construct, reconstruct, improve, maintain, repair, and
preserve any road or highway on the state highway system, and, in
connection therewith, relocate, alter, widen, deepen, clean out,
or straighten the channel of any watercourse as the director
considers
necessary, and purchase or appropriate property for the disposal
of surplus materials or borrow pits, and, where an established
road has been relocated, establish, construct, and maintain such
connecting roads between the old and new location as will provide
reasonable access thereto. The director may purchase or appropriate property necessary
for the location or construction of any culvert, bridge, or
viaduct, or the approaches thereto, including any property needed
to extend, widen, or alter any feeder or outlet road, street, or
way adjacent to or under the bridge or viaduct when the
extension, widening, or alteration of the feeder road, street, or
way is necessary for the full utilization of the bridge or
viaduct, or for any other highway improvement. The director also
may purchase or appropriate, for such length of time as is
necessary and desirable, any additional property required for the
construction and maintenance of slopes, detour roads, sewers,
roadside parks, rest areas, recreational park areas, park and ride
facilities, and park and carpool or vanpool facilities, scenic view
areas, drainage systems, or land to replace wetlands incident to
any highway improvement, that the director is or may be
authorized to
locate or construct. Title to property purchased or appropriated
by the director shall be taken in the name of the state either in
fee simple or in any lesser estate or interest that the director
considers necessary or proper, in accordance with forms to be
prescribed by the attorney general. The deed shall contain a
description of the property and be recorded in the county where
the property is situated and, when recorded, shall be kept on
file in the department of transportation. Provided that when property, other than property used by a
railroad for operating purposes, is acquired in connection with
improvements involving projects affecting railroads wherein the
department is obligated to acquire property
under grade separation statutes, or on other improvements wherein
the department is obligated to acquire lands under agreements
with railroads, or with a public utility, political subdivision,
public corporation, or
private corporation owning transportation facilities for
the
readjustment, relocation, or improvement of
their facilities, a fee simple
title or an easement may be acquired by purchase or appropriation
in the name of the railroad, public utility, political
subdivision, public corporation, or private corporation in
the discretion of the director. When
the title to lands, which are required to adjust, relocate, or
improve such facilities
pursuant to agreements with the director, is taken in the name of
the state, the lands then, in the discretion of the
director, the title to such lands may be conveyed in fee simple or
the right acquired to
the railroad,
public utility, political subdivision, or
public corporation for which they were acquired. The
conveyance shall be prepared by the attorney general and executed by the
governor and bear the great seal of the state of Ohio. The director, in the maintenance or repair of state
highways, is not limited to the use of the materials with which
the highways, including the bridges and culverts thereon, were
originally constructed, but may use any material that is
proper
or suitable. The director may aid any board of county
commissioners in establishing, creating, and repairing suitable
systems of drainage for all highways within the jurisdiction or
control of the board and advise with it as to the establishment,
construction, improvement, maintenance, and repair of the
highways. Chapters 5501., 5503., 5511., 5513., 5515., 5516., 5517.,
5519., 5521., 5523., 5525., 5527., 5528., 5529., 5531., 5533.,
and 5535. of the Revised Code do not prohibit the federal
government, or any individual or corporation, from contributing a
portion of the cost of the establishment, construction,
reconstruction, relocating, widening, resurfacing, maintenance,
and repair of the highways. Except in the case of maintaining, repairing, erecting
traffic signs on, or pavement marking of state highways within
villages, which is mandatory as required by section 5521.01 of
the Revised Code, and except as provided in section 5501.49 of
the Revised Code, no duty of constructing, reconstructing,
widening, resurfacing, maintaining, or repairing state highways
within municipal corporations, or the bridges and culverts
thereon, shall attach to or rest upon the director, but the
director may
construct, reconstruct, widen, resurface, maintain, and repair
the same with or without the cooperation of any municipal
corporation, or with or without the cooperation of boards of
county commissioners upon each municipal corporation consenting
thereto. Sec. 5501.32. The director of transportation may purchase
property in fee simple in the name of the state by warranty deed,
and all or any part of a tract of land when the acquisition of a
part of the land needed for highway purposes will result in
substantial damages to the residue by severance, controlled
access, or isolation. The warranty deed shall contain a
description of the property suitable for platting on tax maps. Any
instrument by which real property is acquired pursuant to this section
shall identify the agency of the state that has the use and benefit of the
real property as specified in section 5301.012 of the Revised Code. The director, in the name of the state, may sell all the
right, title, and interest of the state in any part of land not
required for highway purposes, provided the director shall have
the parcel of land appraised by a department prequalified
appraiser.
Except as otherwise provided in this section, the director
shall advertise the sale of land not required for
highway purposes in a newspaper of general circulation
in the county in which the land is situated for at least two consecutive weeks
prior to the date set for the sale. The
land may be sold at public auction to the highest bidder
for not less than two-thirds of its appraised value, but the
director may reject all bids that are less than the full appraised value of
the land.
If, however, land not required for highway purposes is
appraised as having a current
fair market value of five thousand dollars or less, the director
may sell the land to the sole abutting owner through a private
sale at a price not less than its appraised value. If there is
more than one abutting owner, the director may invite all of the
abutting owners to submit sealed bids and may sell the land to
the highest bidder at not less than its appraised value.
All expense incurred in the sale of each parcel of land
shall be paid out of the proceeds of the sale and the balance
shall be deposited in the highway fund from which the purchase
was made.
The deed to the purchaser of land under this section
shall be prepared by the auditor of state, executed by the governor,
countersigned by the secretary of state, and
shall bear the great seal of the state.
Sec. 5501.34. (A) In the event that circumstances alter the
highway requirements after the director of transportation has
purchased and acquired property from the administrator of
workers' compensation or retirement board, or otherwise, so that
the real property, or part thereof, is no longer required for highway
purposes, the director, in the name of the state, may
sell all the right, title, and interest of the state in any of the real
property. As soon as reasonably practical after After
determining that
any a parcel of the real property is no longer required
for highway
purposes, the director shall have the parcel of land appraised by
a department prequalified appraiser. (B) Except as otherwise provided in this section, the director
shall advertise the sale of real property that is no longer required for
highway purposes in
a newspaper of general circulation in
the county in which the land real property is situated for at
least two
consecutive weeks prior to the date set for the sale. The
land real property may be sold at public auction to the highest
bidder
for not less than two-thirds of its appraised value,
but the director may reject all bids that are less than the full appraised
value of the land real property However, if no sale has been
effected after an
effort to sell under this
paragraph division, the director may set aside the
appraisement appraisal, order a
new appraisement appraisal, and, except as otherwise provided in
this
section, readvertise the property for sale. (C) If land not real property no longer required for
highway purposes is
appraised or reappraised as
having a current fair market value of five twenty thousand
dollars
or
less, the director may sell the land real property to the sole
abutting owner
through a private sale at a price not less than the appraised
value. If there is more than one abutting owner, the director
may invite all of the abutting owners to submit sealed bids and
may sell the land real property to the highest bidder at not
less than its
appraised value. (D) If such land real property no longer required for
highway purposes is appraised or reappraised as having a fair
market value
of one TWO thousand dollars or less, and no sale has been
effected
after an effort to sell to the abutting owner or owners, the
director may readvertise and advertise the sale of such real
property in accordance with division (B) of this section. The
director may sell the land at public auction to
the highest bidder without regard to its appraised value, but the director
may reject all bids that are less than the full appraised value of the real
property. (E) The department shall pay all expenses incurred in the sale of
a parcel of real property out of the proceeds of the sale and shall deposit
the balance of the proceeds in the
highway fund used to acquire that parcel of real property. (F) Upon a determination that real property previously acquired
within a highway improvement project corridor no longer is needed for highway
purposes, the director may offer the
unneeded property to another landowner located within that
project's corridor as full or partial consideration for other real
property to be acquired from the landowner. If the landowner
accepts the offer, the director shall convey the unneeded property
directly to the landowner at the full fair market value determined
by the department by appraisal. The director shall credit the value of the
unneeded property against the acquisition price of the property
being acquired by the department, and the landowner shall pay the
department the difference if the value of the unneeded property
exceeds the acquisition price of the property being acquired. (G) Conveyances of the lands real property under this
section shall be by deed executed by the
governor, shall bear the great seal of the state of Ohio, and shall be
in the form as prescribed by the attorney general. Section
5301.13 of the Revised Code, relating to the sale of public
lands, shall not apply to conveyances made pursuant to this
section. The director shall keep a record of all such
conveyances. This section applies to all real property acquired by the
department, regardless of how or from whom the property was acquired. Sec. 5501.45. (A) The director of transportation may convey or
transfer the fee simple estate or any lesser estate or interest
in, or permit the use of, for such period as the director
shall determine, any lands owned by the state and acquired or used for the
state highway system or for highways or in connection with highways or
as incidental to the acquisition of land for highways, provided
that the director determines, after consulting with the director of
natural resources,
that the property or interest conveyed or made subject to a
permit to use is not needed by the state for highway or
recreation purposes. Such conveyance, transfer, or permit to use
may be to the grantee or permittee or to the grantee or permittee
and the grantee's or its successors and assigns and shall be
of such
portion of such lands as the director shall determine, which
shall be described in the deed, transfer, or other instrument or
conveyance and in any permit to use, and may include or be
limited to areas or space on, above, or below the surface, and
also may include the grant of easements or other interests in any such
lands for use by the grantee for buildings or structures or for
other uses and purposes, and for the support of buildings or
structures constructed or to be constructed on or in the lands or
areas or space conveyed or made subject to a permit to use. (B) Whenever pursuant to this section separate units of
property are created in any lands, each unit shall for all
purposes constitute real property and shall be deemed real estate
within the meaning of all provisions of the Revised Code,
shall be deemed to be a separate parcel for all purposes of
taxation and assessment of real property, and no other unit or
other part of such lands shall be charged with the payment of
such taxes and assessments. (C) With respect to any portion of the state highway system not
owned in fee simple by the state, the director may permit the use
of any portion thereof in perpetuity or for such period of time
as the director shall specify, including areas or space on,
above, or
beneath the surface, together with rights for the support of
buildings or structures constructed or to be constructed thereon
or therein, provided that the director determines that the
portion made subject to a right to use is not needed by the state for highway
purposes. (D) The director shall require, as either a condition precedent
or a condition subsequent to any conveyance, transfer, or grant
or permit to use, that the plans and specifications for all such
buildings or structures and the contemplated use thereof, be
approved by the director as not interfering with the use of
the state
highway system and not unduly endangering the public. The director may
require such indemnity agreements in favor of the
director and the public as shall be lawful and as shall be deemed necessary by
the director. The director shall not unreasonably withhold
approval of such plans, specifications, and contemplated use. (E)(1) All such conveyances, transfers, grants, or permits to use
that are made to state institutions, agencies, commissions,
instrumentalities, political subdivisions, or taxing districts of
the state, and institutions receiving financial assistance from
the state, shall be upon such consideration as shall be
determined by the director to be fair and reasonable, without
competitive bidding, and sections 5301.13 and 5515.01 of the
Revised Code, relating to the sale or use of public lands shall
not apply to conveyances, grants, transfers, or permits to use
made pursuant to this section division. An institution receiving
financial assistance from the state shall provide the director with acceptable
documentary evidence of the state loan, grant, or other state financial
assistance All such (2) As used in this division, "institution receiving financial
assistance from the state" includes any public or private organization,
especially one of a charitable, civic, or educational character, in receipt of
a state loan, grant, or other type of state financial assistance. (F) Except as provided in division (E) of this section,
all conveyances, grants, or
permits to use that are made to private persons, firms,
or
corporations shall be to the highest bidder at public auction
conducted in
accordance with the procedure set forth in section 5501.32
5501.311 or 5501.34 of the
Revised Code, as applicable. (G) In any case where the director has acquired or acquires,
for the state highway system, easements in or permits to use
areas or space on, above, or below the surface, the director
may extinguish them in whole or in part or subordinate them to uses by others,
provided that the director determines that the easements or permit
to use so extinguished
or subordinated are not needed by the state for highway purposes. The
director shall make any extinguishments to the current underlying fee owner of
record at no cost. (H) No conveyance, transfer, easement, lease, permit, or other
instrument executed pursuant to the authorization given by this
section shall prejudice any right, title, or interest in any
lands affected thereby which at the date thereof existed in any
person, firm, or corporation, other than the state and other than
members of the general public having no specific rights in said
lands, unless the right, title, or interest was expressly
subject to the right of the state to make such conveyance or
transfer, grant such right, or execute such instrument, and
unless the state by such instrument expressly exercises such
right, nor shall any public utility be required to move or
relocate any of its facilities that may be located in or on the
areas described in any such conveyance, transfer, easement,
lease, permit, or other instrument. Sec. 5501.50. (A) As used in this section, "agricultural
purposes" means commercial animal or poultry husbandry, or the
production for a commercial purpose of field crops, tobacco,
fruits, or vegetables. (B) Whenever the director of transportation acquires real
property as provided in section 5501.32 of the Revised Code or
otherwise acquires real property in fee simple in the name of the
state for highway purposes and subsequently finds the property is
not needed for such purposes, or will not be needed for such
purposes for a period of two years or more following the date of
acquisition of the property, and the property is adjacent to or
in the near vicinity of property used for agricultural purposes,
the director may, at his the director's discretion, offer to
lease the property
for agricultural purposes for one year at a price consistent with
rentals of adjacent agricultural lands in the manner provided in
divisions (C), (D), (E), (F), (G), (H), and (I) of this section
before conveying or transferring the fee simple estate or any
lesser estate or interest in the property, or permitting its use
by another. (C) Real property shall be offered for lease by mailing a
notice, in writing, to each person who owns or leases property
being used for agricultural purposes that adjoins or is in the
near vicinity of the property. The notice shall include a
general description of the property offered for lease, the cost
of the lease, the manner in which the lease will be made, the
requirements of this section, a statement that the person shall
notify the director in writing within no more than four weeks
following mailing of the notice if the person is interested in
leasing the property, and such other information as the director
considers necessary. (D) If the director receives information in writing from
two or more persons who are interested in leasing the real
property, one of whom is the owner of real property that adjoins
the property offered for lease, the director may lease the
property to that person. If the director receives such
information from two or more persons, two or more of whom are
owners of real property that adjoins the property offered for
lease, the director shall lease the property to the person whose
information is contained in the envelope bearing the earliest
postmark. (E) Any lease made under this section shall be conditioned
upon the lessee's written agreement to maintain weed control on
the property. If the director has reasonable cause to believe
that such an agreement is violated, the director, or any of his the
director's
authorized agents, may, at his the director's or authorized
agent's discretion, do either of the
following: (1) Provide necessary weed control. The expense of
providing weed control shall be paid by the director out of any
appropriation to the department of transportation available for
the establishment, use, maintenance, or repair of highways and
the amount thereof shall be reimbursed by the lessee to the
department and if not reimbursed the amount thereof shall be
certified to the attorney general for collection by civil action
against the lessee of the property. (2) File a complaint by petition in the court of common
pleas of the county in which the property is located. Upon a
finding by the court that a violation of the agreement exists as
alleged in the petition, the court shall enter an order of
abatement against the lessee of the property. (F) If real property offered for lease as provided in this
section is located near a highway where the use of the property
for crops such as corn and wheat will obstruct the view of any
part of the highway from a person operating a vehicle on the
highway or on an intersecting highway or private road, or near an
airport where such use of the property may interfere with airport
safety, any lease made shall be conditioned upon the lessee's
written agreement to use the property for only crops that will
not create such an obstruction of the view of the highway or
interference with airport safety. If the director has reasonable
cause to believe that such an agreement is violated, the
director, or any of his the director's authorized agents, may,
at his the director's or authorized agent's
discretion, do either of the following: (1) Remove the crop or such part thereof as may be
necessary to ensure that the view of the highway will not be
obstructed, or that airport safety will not be reduced. The
expense of the removal shall be paid by the director out of any
appropriation to the department of transportation available for
the establishment, use, maintenance, or repair of highways and
the amount thereof shall be reimbursed by the lessee to the
department and if not reimbursed the amount thereof shall be
certified to the attorney general for collection by civil action
against the lessee of the property. (2) File a complaint by petition in the court of common
pleas of the county in which the property is located. Upon a
finding by the court that a violation of the agreement exists as
alleged in the petition, the court shall enter an order of
abatement against the lessee of the property. (G) The director may offer to renew annually any lease of
real property made under this section to the current lessee or
may offer the opportunity to lease to others in the manner and
subject to the requirements and limitations as provided for in
this section. (H) The requirements of sections 5501.32, 5501.34,
5501.37, and 5501.45 of the Revised Code relating to the
appraisal, advertisement, manner of sale, and minimum sale price
of property not needed for highway purposes and the requirements
of sections 5501.34, 5501.37, and 5501.45 of the Revised Code
relating to the use of property not needed for highway purposes
for recreation purposes, do not apply to a lease or renewal of a
lease of real property made in accordance with this section. (I) Except as provided in divisions (E)(1) and (F)(1) of
this section, all expense incurred in the lease of real property
under this section shall be paid out of the proceeds of the lease
and the balance shall be deposited in the highway fund from which
the purchase of the real property giving rise to the proceeds was
made. (J) Nothing in this section shall be construed to permit
the director to acquire real property by appropriation for the
purpose of leasing it for agricultural purposes. Sec. 5511.01. All state highways established by law shall
continue to be known as state highways, and the state highway
system established by law shall continue to be known as the state
highway system. Before establishing any additional highways as part of the
state highway system, or making any significant changes in existing
highways
comprising the system, the director of transportation shall give
notice, by publication in one newspaper of general circulation
notify the general community of the project and offer an
opportunity for appropriate public involvement in the project
process. The opportunity for public involvement shall satisfy the
requirements of the "National Environmental Policy
Act of 1969,"
83 Stat. 852, 42 U.S.C.A. 4321 et seq., as amended, and may
consist of activities including public meetings or hearings, small group
meetings with local officials, individual meetings, news
releases, public notices, workshops, newsletters, electronic communications,
radio announcements, mail notification,
and other activities considered appropriate for the exchange of
information. The director or the director's designee shall
provide the public involvement activities in
each of the counties in which the highway proposed to be
established is to be located or in which it is proposed to make
such changes, once each week for two successive weeks. The
notice shall state the time and place of the hearing which shall
be held in the county, or one of the counties, in which the
proposed highway or some part thereof is to be situated, or in
which it is proposed to make such changes. The notice shall
state the route of the proposed highway or the change proposed to
be made in an existing highway of the system. The hearing shall
be open to the public and the director or a deputy designated by
him shall attend and hear any proof offered on the
matter. Any. Any changes made in existing highways by the director or any
additional highways established by him the director following
the hearing public involvement activities
shall be certified to the following authorities interested
therein: the legislative authority of municipalities, board of
county commissioners, board of township trustees, municipal,
county, and regional planning commissions, and the municipal,
township, or county officer authorized to issue land use or
building permits. Before any zoning change or subdivision plat
is approved and before any permit for land use or the erection,
alteration, or moving of a building is granted affecting any land
within three hundred feet of the center line of a proposed new
highway or highway for which changes are proposed, as described
in the certification by the director, or within a radius of five
hundred feet from the point of intersection of that center line
with any public road or highway, the authority authorized to
approve the zoning change or subdivision plat or the authority
authorized to grant the permit for land use or the erection,
alteration, or moving of the building shall give notice, by
certified mail, to the director, and shall not approve a zoning
change or subdivision plat or grant a permit for land use or the
erection, alteration, or moving of a building for one hundred
twenty days from date notice is received by the director. During
the one hundred twenty day period and any extension of it as may
be agreed to between the director and any property owner, notice
of which has been given to the authority to which the application
has been made, the director shall proceed to acquire any land
needed by purchase or gift, or by initiating proceedings to
appropriate, or make a finding that acquisition at such time is
not in the public interest. Upon purchase, initiation of
appropriation proceedings, or a finding that acquisition is not
in the public interest, the director shall notify the authority
from which notice was received of that action. Upon being
notified that the director has purchased or initiated proceedings
to appropriate the land that authority shall refuse to rezone
land or to approve any subdivision plat that includes the land
which the director has purchased or has initiated proceedings to
appropriate, and that authority shall refuse to grant a permit
for land use or the erection, alteration, or moving of a building
on the land which the director has purchased or initiated
proceedings to appropriate. Upon notification that the director
has found acquisition at that time not to be in the public
interest, or upon the expiration of the one hundred twenty day
period or any extension thereof, if no notice has been received
from the director, that authority shall proceed in accordance
with law. A report of the change or addition shall be filed in the
office of the director, and the report of the director making the
change or establishing the highway shall be placed on file in the
office of the department of transportation. In no event shall the total mileage of the state highway
system be increased under this section to exceed two hundred
miles in one year. The director, upon petition of the boards of the counties
traversed thereby or of citizens of such counties, may officially
assign to a highway of the state highway system a distinctive
name, commemorative of a historical event or personage, or
officially assign thereto a commonly accepted and appropriate
name by which the highway is known. The The director may, upon
giving appropriate notice and holding a hearing offering the
opportunity for public involvement and comment, abandon a highway on the
state highway system or part thereof which he the director
determines is of
minor importance or which traverses territory adequately served
by another state highway, and the abandoned highway shall revert
to a county or township road or municipal street. A report
covering such action shall be filed in the office of the
director, and the director shall certify his the action to the
board
of the county in which the highway or portion thereof so
abandoned is situated. The director shall make a map showing thereon, by
appropriate numbering or other designation, all the state
highways. The map shall be kept on file in his the director's
office and he the director shall cause the same to be corrected
and revised to show all
changes and additions to the date of such correction. A copy of
the map, certified by the director as a correct copy of the map
on file in his the director's office, shall be admissible as
evidence in any
court to prove the existence and location of the several highways
and roads of the state highway system. The state highway routes into or through municipal
corporations, as designated or indicated by state highway route
markers erected thereon, are state highways and a part of the
state highway system. The director may erect state highway route
markers and such other signs directing traffic as he the
director thinks
proper upon those portions of the state highway system lying
within municipal corporations, and the consent of the municipal
corporations to such erection and marking shall not be necessary.
However, the director may erect traffic signs in villages in
accordance with section 5521.01 of the Revised Code. No change
in the route of any highway through a municipal corporation shall
be made except after notice and hearing providing public involvement
activities. Except as provided in sections 5501.49 and 5517.04 of the
Revised Code, no duty of constructing, reconstructing,
maintaining, and repairing such state highways within municipal
corporations shall attach to or rest upon the director. The
director may enter upon such state highways within any municipal
corporation and construct, reconstruct, widen, improve, maintain,
and repair them, provided the municipal corporation first
consents thereto by resolution of its legislative authority,
except that he the director need not obtain the consent of the
municipal
corporation if the existing highway being changed or the location
of an additional highway being established was not within the
corporate limits of the municipal corporation at the time such
establishment or change was journalized is approved by the
director, or if
the director is acting pursuant to section 5501.49 of the Revised
Code. The director shall place in the files of the department a
record of the routes of all such state highways within municipal
corporations, and shall cause them to be corrected and revised to
show all changes and additions to the date of the correction. A
copy of the record or any pertinent part thereof, certified by
the director to be a true and correct copy, shall be admissible
in evidence in any court of the state for the purpose of proving
the existence and location of any state highway within a
municipal corporation. When the director proposes to change an existing state
highway and there exists upon the highway a separated railroad
crossing, the director shall mail to the interested railroad
company a copy of the notice which shall be mailed by first-class
mail, postage prepaid, and certified with return receipt
requested, at least two weeks before the time fixed for hearing any
public involvement activity.
When the director proposes to change an existing state highway
within a municipal corporation he, the director shall
mail to the
mayor or
other chief executive officer of the municipal corporation a copy
of the notice which shall be mailed by first-class mail, postage
prepaid, and certified with return receipt requested, at least
two weeks before the time fixed for hearing any public involvement
activity. Nothing in this section shall be construed to require
notice and hearing providing public involvement activities
before the construction, reconstruction,
maintenance, improvement, or widening of an existing highway
where no relocation is involved. With the exception of the authority conferred upon the
director by this section, to erect state highway route markers
and signs directing traffic, and by section 5501.49 of the
Revised Code, Chapters 5501., 5503., 5511., 5513., 5515., 5516.,
5517., 5519., 5521., 5523., 5525., 5527., 5528., 5529., 5531.,
5533., and 5535. of the Revised Code, shall not in any way
modify, limit, or restrict the authority conferred by section
723.01 of the Revised Code upon municipal corporations to
regulate the use of streets and to have the care, supervision,
and control of the public highways, streets, avenues, alleys,
sidewalks, public grounds, bridges, aqueducts, and viaducts
within the municipal corporations and to keep them, subject to
division (B)(3) of section 2744.02 of the Revised Code, open, in
repair, and free from nuisance. Sec. 5511.07. In pursuance of section 5501.31 of the
Revised Code, the director of transportation, in vacating any
highway or portion thereof on the state highway system that
the director finds is no longer necessary for the purposes of a
public highway, shall issue such a finding, which shall
contain a description of the highway or part thereof to be
vacated. Notice of such finding shall be published once a week,
for two consecutive weeks, in a newspaper of general circulation
in the county in which the highway, or part thereof, to be
vacated lies, and a copy of the notice shall be served as
in civil cases, or by registered first class mail, return receipt
requested, upon each owner of property abutting on the portion of
the highway to be vacated, and upon the director of natural
resources. Any owner whose place of residence is unknown, or who
is a nonresident of the state, shall be specifically named in the
notice of publication and shall be directed in the
finding to take due notice of the contents thereof. The director shall
make any vacation of a highway or portion of a highway to an abutting
landowner or current underlying fee owner of record at no cost. The notice shall fix a date, not less than twenty days
after the date of the final publication of the notice, and
shall contain a determination that on or before that date claims
for compensation and damage, or either, by reason of the vacation
proceedings, must be filed in writing, in duplicate, with the
district deputy director of transportation in whose district lies any
portion of the highway to be vacated. Failure to file
claims in that manner is a waiver of any claim for damage
by reason of the vacation. After considering any claims filed, the director shall make
awards as the director considers just and equitable,
and if, within ten days,
the amount so awarded has not been accepted and waivers therefor signed,
that amount shall be deposited in the probate court or
court of common pleas of the county in which the vacation
lies, wholly or in part, and the procedure to adjudicate such claims
shall be that provided under section 5519.01 of the Revised Code. No final determination shall be made by the director in
vacating such highway or portion thereof until all awards are
accepted, or deposit therefor made, in the probate court or court
of common pleas. No public utility shall be required to move or relocate any of
its facilities that may be located in or on any highway or portion
thereof being vacated. Any deed, transfer, or other instrument or
conveyance made by reason of the vacation shall indicate the right
of any public utility to continue its use or occupation of the
highway or portion of the highway being vacated. Sec. 5515.02. All individuals, firms, and corporations
using or occupying any part of a road or highway on the state
highway system, or the bridges or culverts thereon, with
telegraph or telephone lines, steam, electrical, or industrial
railways, oil, gas, water, or other pipes, mains, conduits, or
any object or structure, other than by virtue of a franchise or
permit granted and in force, shall remove from the bounds of
the road, or highway, bridge, or culvert, their poles and
wires
connected therewith, and any tracks, switches, spurs, or oil,
gas, water, or other pipes, mains, conduits, or other objects or
structures, when in the opinion of the director of transportation
they constitute obstructions in the roads, highways,
bridges, or culverts, or they interfere or may interfere with the
contemplated
construction, reconstruction, improvement, maintenance, or
repair, or use by the traveling public
of the roads, or highways, bridges, or culverts
or with
their use by the traveling public. All individuals, firms, or corporations so occupying any
road or highway on the state highway system, or the bridges or
culverts thereon, under and by virtue of a franchise or permit
granted and in force, shall relocate their properties and all
parts thereof within the bounds of the road, or highway,
bridge, or culvert when in the opinion of the director they constitute
obstructions in the road, highway, bridge, or culvert,
or they interfere with or may interfere with the contemplated
construction, reconstruction, improvement, maintenance, or
repair, or use
of the road, or highway, bridge, or culvert or
with its use. The relocation within the bounds of
the road, or
highway, bridge, or culvert shall be in the manner and to the
extent prescribed by the director. If, in the opinion of the director, such individuals,
firms, or corporations have obstructed any road or highway on the
state highway system, or the bridges or culverts thereon, or if
any of their properties, in the director's opinion, are so
located that they
do or may interfere with the contemplated construction,
reconstruction, improvement, maintenance, or repair, or
use of the
road, or
highway, bridge, or culvert, or with the use of the road,
highway, bridge, or culvert by the traveling public, the
director shall notify such individual, firm, or corporation
directing the removal of the obstruction or properties, or
the relocation of the properties, and, if such. If the
individual,
firm, or
corporation does not within five days from the service of
the notice proceed to remove or relocate the obstruction
or properties and complete the removal or relocation within a reasonable
time, the director may
remove or relocate the same by employing the necessary labor,
tools, and equipment. The Any notice required under this section
shall be made by personal service, certified mail, or express mail. If, in the director's opinion, the obstruction or properties present an
immediate and serious threat to the safety of the traveling public, the
director may remove or relocate the obstruction or properties without prior
notice. When the director performs a removal or relocation under this section,
the costs and expenses shall be paid by the director out
of any appropriation of the
department of transportation available for the establishment,
construction, reconstruction, improvement, maintenance, or repair
of highways, and the amount thereof shall be certified to the
attorney general for collection by civil action. Notice
of the action shall be made by personal service or by certified
mail. As used in this section, "road" or "highway" has the same meaning as in
section 5501.01 of the Revised Code and also includes any
part of the right of way. Sec. 5515.04. Telegraph and telephone Utility poles along the
public highway may be
used for the purpose of attaching thereto or placing thereon, signposts,
guideposts, warning signs, or other signs when prescribed by the director of
transportation or county engineer. Sec. 5521.01. The director of transportation, upon the
request by and the approval of the legislative authority of a
village, shall maintain, repair, and apply standard longitudinal
pavement marking lines as the director considers appropriate,
or may
establish, construct, reconstruct, improve, or widen any section
of a state highway within the limits of a village. The director
also may erect regulatory and warning signs, as defined in the
manual adopted under section 4511.09 of the Revised Code, on any
section of a state highway within the limits of a village. The
director may establish, construct, reconstruct, improve, widen,
maintain, or repair any section of state highway within the
limits of a city, including the elimination of railway grade
crossings, and pay the entire or any part of the cost and expense
thereof from state funds, but in all cases the director
first shall obtain the consent of the legislative authority of the
municipal corporation, except that the director need not
obtain the
consent of the municipal corporation if the existing highway being changed or
the location of an additional highway being established was not
within the corporate limits of the municipal corporation at the
time the director determines the establishment or change should be
made, or if the director is
acting pursuant to section 5501.49 of the
Revised Code. Except as provided in section 5501.49 of the Revised Code,
when in the opinion of the director there is urgent need to
establish a state highway, which is to be designated a federal
aid highway, or a federal aid interstate highway within a
municipal corporation or, in the opinion of the director, any
federal aid highway or interstate federal aid highway is in
urgent need of repair, reconstruction, widening, improvement, or
relocation, so as to accommodate the traveling public, the
director shall submit a written request to the legislative
authority of the municipal corporation for its consent to the
desired establishment or improvement. The legislative authority, within sixty
days after the written request has been
received from the director, either shall grant its consent
to the establishment or improvement or refuse consent by filing in
writing with the director a statement of its reasons for refusing
consent and any alternate proposals it considers reasonable. If
the legislative authority fails to act or refuses consent, the
director, upon consideration of the reasons for
rejection, may make a resolution declaring the necessity of the
establishment or improvement, and then
proceed in the same manner as if consent had been given. A
certified copy of the resolution shall be served upon the
municipal legislative authority, which, within twenty days
from the date of service, may appeal to the court of common pleas of
the county in which the municipal corporation is situated, upon
the reasonableness and necessity of the action provided for in
the resolution. In the hearing upon appeal, the director shall
introduce the record of the director's proceedings,
including the director's findings
with respect to factors referred to in section 5521.011 of the
Revised Code, and such other competent evidence as the
director desires in support of the director's
resolution, and the municipality likewise may introduce
competent evidence opposing the resolution, and
findings. The court may affirm or revoke the resolution. The
decision of the common pleas court may be appealed to the court
of appeals and the supreme court as in other cases. If the court
affirms the resolution, the director may proceed with the
establishment or improvement with or without the cooperation of
the municipal corporation. Any such municipal corporation may
cooperate with the director in the work and pay such portion of
the cost as is agreed upon between the municipal corporation and
the director. The legislative authority of any municipal
corporation desiring to cooperate, by resolution, may propose
such cooperation to the director, and a copy of the resolution,
which shall set forth the proportion of the cost and expense to
be contributed by the municipal corporation, shall be filed with
the director. The director shall cause to be prepared the
necessary surveys, plans, profiles, cross sections, estimates,
and specifications and shall
file copies of them with the legislative authority of the municipal
corporation. After
the legislative authority has approved the surveys, plans,
profiles, cross sections, estimates, and specifications, and
after the municipal corporation has provided the funds necessary
to meet the portion of the cost of the work assumed by it, the
municipal corporation shall enter into a contract with the state
providing for payment by the municipal corporation of the agreed
portion of the cost. The form of the contract shall be
prescribed by the attorney general, and such contracts shall
be submitted to the director and approved before
advertising for the receipt of bids. Section 5705.41 of the
Revised Code applies to such contract to be made by the municipal
corporation, and a duplicate of the certificate of the chief
fiscal officer of the municipal corporation shall be filed in the
office of the director. That part of the cost of the work
assumed by the municipal corporation shall be paid from the
proceeds of taxes or special assessments, or both, or from the
proceeds of notes or bonds issued and sold in anticipation of the
collection of the taxes and assessments. For the purpose
of providing funds for the payment of that part of the cost of the
work assumed by the municipal corporation, the municipal
corporation has the same authority to make special assessments,
levy taxes, and issue bonds or notes, in anticipation of the
collection of the same, as it has with respect to improvements
constructed under the sole supervision and control of the
municipal corporation. All such assessments shall be made, taxes
levied, and bonds or notes issued and sold under such conditions
and restrictions as may be provided with respect to assessments,
taxes, bonds, or notes made, levied, issued, or sold in
connection with improvements of the same class and character
constructed under the sole supervision and control of the
municipal corporation. The improvement shall be constructed
under the sole supervision of the director. The proportion of
the cost and expense payable by the municipal corporation shall
be paid by the proper officers thereof, upon the requisition of
the director, and at times during the progress of the work as may
be determined by the director or as may be otherwise
provided by law. Sec. 5525.14. (A) Notwithstanding sections 125.01 to 125.11 of the Revised
Code, the director of transportation,
by written instruction to the contractor, may increase the
quantities of any item specified or not specified in a competitively bid
construction contract but, except as provided in division (B) of this section,
the additional cost incurred by the increase shall not exceed the lesser of
one hundred thousand dollars or five per cent of the total contract price.
Any such provision for increased quantities or extra work shall be made in
the form of a written change to the original contract and does not require
competitive bidding. (B) The one hundred thousand dollar or five per cent restriction in division
(A) of this section does not apply to change orders or extra work contracts
when the total dollar amount of the increase is twenty-five thousand
dollars
or less or to change orders or extra work contracts
resulting from any of the following: (1) An increase in the plan quantity that is determined during the final
measurement of an item of work. (2) Federally mandated requirements that did not exist at the time of the
original contract award. (3) Circumstances that would create a life-, safety-, or health-threatening
situation or would unduly delay the completion of a project and increase its
costs, but only if the director makes a
finding of such fact, declares an emergency, and issues the finding.
Extra work that the director contracts
for in
these circumstances may include not only construction needed to complete a
project, but also
adjustments needed to meet changed conditions, alterations in original plans,
unforeseen contingencies, or payments necessitated by contract terminations or
suspensions. All change orders or extra work contracts set forth in division (B) of this
section shall be reported to the controlling board quarterly in writing. (C) The director, by written instruction to the contractor,
may decrease or cancel the quantity of any item specified in a contract
or portion of a contract and authorize payment to the contractor for
reasonable costs incurred to date. Sec. 5525.23. The director of transportation may include in any
construction contract a provision authorizing arbitration of any
controversy subsequently arising out of the contract. The provision shall
provide that if all parties in
a controversy arising out of a construction contract agree to
proceed to arbitration, the director shall determine the method
and form of arbitration. Notwithstanding sections 2711.11 and
2711.13 of the Revised Code, the decision of an arbitrator
under
this section is not subject to a motion to modify or correct an
award. No appeal from the decision of an arbitrator lies to any
court except that the court of common pleas of Franklin county may
make an
order vacating the award upon the application of any party to the
arbitration if division (A), (B), or (C) of section
2711.10
of the Revised Code applies. SECTION 2. That existing sections 129.42, 5501.20, 5501.31, 5501.32, 5501.34,
5501.45,
5501.50, 5511.01, 5511.07, 5515.02, 5515.04, 5521.01, and 5525.14 and sections
4582.07, 4582.08, 4582.09, 4582.32, 4582.33,
4582.34, and 5501.37 of the Revised Code are hereby repealed.
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