The Honorable Kevin J. Baxter
AGO 2018-34
No. 2018-034
Ohio Attorney General Opinions
Ohio Attorney General
December 20, 2018
The
Honorable Kevin J. Baxter
Erie
County Prosecuting Attorney
247
Columbus Avenue, Suite 319
Sandusky,
Ohio 44870
SYLLABUS:
1. A
county engineer shall include in the plans and specifications
for a road improvement project, as required by R.C.
153.64(A)(3), the name, address, and telephone number of each
owner of an underground utility facility that does not
subscribe to a protection service, even if the owner is a
private owner of a single family residence that is served by
the underground utility facility.
2. A
county engineer satisfies the requirement in R.C.
153.64(B)(3) to include in the plans and specifications of a
road improvement project a “telephone number of each
owner of any underground utility facilities in the
construction area that does not subscribe to a protection
service,” by including in the plans and specifications
any telephone number belonging to the owner, regardless of
whether the telephone number is assigned to a landline
telephone.
Dear
Prosecutor Baxter:
We have
received your request regarding the responsibilities of a
county engineer under R.C. 153.64. R.C. 153.64 imposes
various rights and responsibilities upon public entities,
contractors, and owners of underground utility facilities, to
protect underground utility facilities during the
construction of public improvements. See R.C.
153.64(A)(1) (defining “public improvement”);
R.C. 153.64(A)(3) (defining “underground utility
facilities”). R.C. 153.64(B)(1) through (5) confer upon
a “public authority,” as that term is defined in
R.C. 153.64(A)(2), various duties related to the location and
marking of underground utility facilities in the area in
which the public authority plans to construct the public
improvement. R.C. 153.64(B)(3) requires the public authority
to include “in the plans and specifications for such
improvement, … the name, address, and telephone number
of each owner of any underground utility facilities in the
construction area that does not subscribe to a protection
service.” See also R.C. 153.64(A)(4) (defining
“protection service”).
In this
instance, the county engineer is preparing plans and
specifications for a road improvement project. You ask
whether R.C. 153.64(B)(3) requires a county engineer to
include in the plans and specifications for the road
improvement project the name, address, and telephone number
of an owner of an underground utility facility if the owner
is a private owner of a single family residence that is
served by the underground utility facility. If so, you ask
how the county engineer is to comply with the requirement to
provide a telephone number for the owner under R.C.
153.64(B)(3) if the owner’s residence does not have a
landline telephone.
The
Meaning of “Owner” Under R.C.
153.64(B)(3)
Your
first question asks whether R.C. 153.64(B)(3) requires a
county engineer to include in the plans and specifications
for the road improvement project the name, address, and
telephone number of an owner of an underground utility
facility if the owner is a private owner of a single family
residence that is served by the underground utility facility.
Pursuant to R.C. 153.64(B), a “public authority,”
as that term is defined in R.C. 153.64(A)(2), “is
required to contact the owners of … underground
utility facilities for the location of existing underground
utilities within” the area in which a public
improvement is planned to be constructed “and then
include the same on the project plans and
specifications.” United Tel. Co. of Ohio v.
Williams Excavating, Inc., 125 Ohio App.3d 135, 145, 707
N.E.2d 1188 (Allen County 1997). For the purpose of R.C.
153.64, a “‘[p]ublic improvement’ means any
construction, reconstruction, improvement, enlargement,
alteration, or repair of a … highway, … road,
street, alley, … and all other structures … of
any nature by a public authority.” R.C. 153.64(A)(1).
Any project contemplating improvement to a road by a public
authority is a “public improvement” within the
meaning of R.C. 153.64(A)(1).
R.C.
153.64(A)(2) defines a “public authority” to
include, among other things, “a county, township,
… or other political subdivision,” R.C.
153.64(A)(2)(a), “[a]ny public agency, authority,
board, commission, instrumentality, or...
