The Honorable Robert L. Herron
AGO 2019-29
Opinion No. 2019-029
Ohio Attorney General Opinion
Ohio Attorney General
August 15, 2019
The
Honorable Robert L. Herron
Columbiana
County Prosecuting Attorney
Columbiana
County Courthouse
105
South Market Street
Lisbon,
Ohio 44432
SYLLABUS:
1. A
regional water district created under R.C. Chapter 6119, for
the purpose of carrying out its appropriate functions, may
excavate within a township road or road right-of-way without
obtaining a permit which is otherwise required for such
excavation under a township resolution adopted pursuant to
R.C. 5571.16. The regional water district, however, must
otherwise abide by all applicable laws and regulations. Its
obligations include under R.C. 6119.06(Z), the duty to
restore, repair, or replace any public or private property
damaged or destroyed as a result of the district’s
activity. Such restoration, repair, or replacement must
restore the damaged or destroyed property to its original
condition as nearly as practicable. In the alternative, the
district may provide compensation adequate to accomplish that
end; and
2. A
township and its board of trustees enjoy no authority or
control over the construction efforts of a regional water
district conducted on a township road or within a township
road right-of-way. A township may be held liable, however,
for injury, death, or loss of person or property caused by
the negligent failure of an employee or officer of the
township to keep the public roads of the township in repair,
or his or her negligent failure to remove obstructions from
the public roadways of the township. A board of township
trustees is empowered to close a township road to public
access and use, temporarily, when the board deems the road to
be impassable or dangerous to the traveling public, and its
closure necessary to protect the public. Determinations as to
the reasonableness of the action reside within the sound
discretion of the board of trustees, and are not susceptible
to assessment as part of the Attorney General’s
opinion-rendering function.
Dear
Prosecutor Herron:
You
have requested an opinion on the following questions
concerning R.C. 5571.16 and R.C. 6119.06:
1. May a regional water district, created pursuant to R.C.
Chapter 6119, excavate within a township road or road
right-of-way without obtaining a permit to do so from a
township that has adopted a resolution requiring such permits
under R.C. 5571.16?
2. If the answer to the first question is in the affirmative,
what then are the duties and responsibilities of the
township, if any, to the traveling public utilizing the road
during construction?
You
state in your letter that a regional water district (the
“district” or the “water district”)
is constructing a utility line, part of which will be
installed within a township road and/or road right-of-way.
The township has adopted a resolution requiring persons
wishing to excavate within its roads or road rights-of-way to
first obtain from township authorities a permit authorizing
such activity. According to your letter, the water district
claims that it does not need a permit because it is not a
“person” under R.C. 5571.16, and because it is
authorized by R.C. 6119.06(Z) and (BB) to act without the
township’s consent. You write that the officials of the
township do not intend to prevent...
