Ohio Public Law Update

    View Authors Spring 2005
    The Gemini Project: A "Public/Public Partnership"

    The Gemini Project represents a new variation on the continuing theme of public sector entities cooperating to provide public facilities. It originated as a grassroots coalition of residents of the City of Fairview Park and Fairview Park City School District (the two entities are nearly coterminous) with a vision to provide first class recreational facilities for the Fairview Park community and consolidate and upgrade school district facilities. The premise of the proposal was that quality recreational and school facilities are critical for a community's continued vitality. The project was named "Gemini" to signify the proposed partnering of the City and the School District. In August 2004, City Council and the Board of Education endorsed the Gemini Project and committed to its implementation.

    The Gemini Project includes (i) construction of a new joint-use recreation center and other recreational facilities on a site currently owned by the School District adjacent to its existing High School and (ii) construction of a new elementary school, closure of three existing School District facilities and additions to and renovations of the Junior High School and High School. The City and the School District each developed a plan to present to their respective voters to finance their portions of the proposed Gemini Project improvements. The City and the School District submitted their respective ballot issues to their electors at the same election so as to permit their voters to endorse the entire Gemini Project at one election. The City Council and Board of Education publicly resolved that the Gemini Project would go forward only upon approval of both the City's and the School District's ballot issues. Toward that end, each ballot question referred to the improvements to be financed "as an integral part of a cooperative project" with the other entity.

    At the February 8, 2005 election, the City asked its electors to approve a 0.50% increase in the City's municipal income tax rate, the proceeds to be used to pay debt charges on bonds to be issued by the City to pay costs of constructing the joint-use recreation center and other recreational facilities and operating and maintaining the same. The School District asked its electors to approve the issuance of $28,500,000 of bonds to pay costs of constructing, adding to and renovating school facilities. The Gemini Project Committee was proactive in campaigning for the issues, including holding numerous community meetings and maintaining an informative website.

    Both issues were approved at the February 8, 2005 election, and the parties are currently moving forward with their finance plans, an appropriate joint-use agreement for the joint-use recreation facility, related real estate matters and preparing for construction of the contemplated facilities.

    The Gemini Project stands as a shining example of governments working together to provide facilities for the greater good of the community.

    House Bill 66: A Closer Look

    The House (April 12, 2005) and the Senate (June 1, 2005) have passed different versions of House Bill 66, the State budget appropriation bill. We cannot predict in what form these proposals will be enacted following conference committee consideration. The Bill is expected to be passed in June.

    Both versions of the Bill provide for the major restructuring of certain taxing programs in the State. The restructuring provides for a phasing out of personal property taxes and the termination of the 10% State rollback payments relating to commercial and industrial properties. The State franchise tax would be replaced by a commercial activity tax (based largely on gross receipts). Personal income tax rates also would be reduced. One-half of the 1% sales tax that was temporarily imposed would remain in effect. The Bill also includes reductions in the State's Local Government Fund revenue sharing program for local governments.

    The House version of the Bill (not the Senate) alters the state school foundation formula in a number of ways relating to tax abatement and tax increment financing programs. Real property located in Incentive Districts (a type of tax increment financing) would be treated as if on the tax duplicate for purposes of the formula. Further, one-half of compensatory payments received by school districts relating to certain tax increment financing and tax abatement programs would be taken into account in the 23-mill charge-off calculation, thereby reducing State aid for certain school districts.

    The House version of the Bill (not the Senate) also amends certain tax increment financing programs. The current sunset date for tax increment financing Incentive District programs (June 30, 2007) was proposed to be moved to an earlier date. In addition, the House version provides that cities, counties and townships may determine which year an exemption begins under Revised Code Sections 5709.40, 5709.73 and 5709.77 tax increment financing programs, and eliminates the incremental demand test in those programs.

    Recent Decisions of Interest

    City's denial of water service to tenants whose predecessors left delinquent water accounts at the premises violates the Equal Protection Clause of the Fourteenth Amendment. Golden v. City of Columbus, 404 F.3d 950

    Newspaper is entitled to copy of audiotape of 911 call at cost under the Public Records Act and is also entitled to attorney fees. State ex rel. Dispatch Printing Company v. Morrow County Prosecutor's Office, 105 Ohio State 3d 172

    Since city approved the creation of subdivision and applied covenants in the subdivision declaration to deny owner's application to build, city's motion for summary judgment denied and owner's mandamus action to compel city to commence appropriation action remanded for further proceedings to resolve issues of material fact regarding whether there was a compensable taking. State ex rel. Duncan v. City of Mentor, 105 Ohio State 3d 372

    Unsuccessful bidder on a city project that a jury later determined was the lowest and best bidder is entitled to damages for lost profits. Cementech, Inc. v. Fairlawn, Court of Appeals, Ninth Judicial Circuit, 160 Ohio App. 3d 450

    City's use of eminent domain for an urban renewal project based on city's finding that area was in danger of deteriorating into a blighted area upheld. City did not improperly delegate its eminent domain powers to developer under redevelopment agreement where city council retained the final decision whether to use eminent domain and decision not to use that power would not result in breach of that redevelopment agreement. Norwood v. Horney, Court of Appeals, First Appellate District, C. Nos. 040683 & 040783, May 20, 2005, 2005-Ohio-2448

    Indemnification clause pursuant to which county agrees to indemnify another party to contract is valid and enforceable only if (1) clause specifies maximum dollar amount for which county is obligated under that clause and such amount is appropriated and certified as available under R.C. 5705.41(D)(1) and (2) contract provides to county consideration sufficient to support the financial obligation that county assumes thereunder. 2005 Op. Att'y Gen. No. 2005-007

    A non-charter municipality that has levied an income tax for specific purposes at a rate in excess of one percent may submit to voters an amendment that would change the permissible uses of that tax. 2005 Op. Att'y Gen. No. 2005-011

    A county commissioner may not simultaneously hold both positions of commissioner and county administrator. Board of county commissioners may assign duties associated with position of county administrator to one of the county commissioners provided that commissioner receives no additional compensation for assuming those duties. 2005 Op. Att'y Gen. No. 2005-016

    A board of county commissioners is not authorized by
    R.C. 307.93(D) or R.C. 2929.37(A) to adopt a policy that requires a convicted offender serving in a local detention facility to repay the county for costs it incurred as a result of his confinement in the facility prior to the commencement of his sentence. 2005 Op. Att'y Gen. No. 2005-019

    A person may serve as a part-time administrative hearing officer for a county child support enforcement agency and part-time magistrate in an adjacent county, provided that as magistrate she does not preside over cases involving that agency. 2005 Op. Att'y Gen. No. 2005-022