M E M O R A N D U M

TO: Sarah K. Skow

Stephen D. Hartman
Spengler Nathanson, PLL

FROM: Shumaker, Loop & Kendrick, LLP

DATE: May 12, 2021

RE: City of Toledo Summit Street Project – Responsibility for the Cost of Relocating
Buckeye Cablevision, Inc.’s Facilities

I. Introduction

This is memo discusses which party - Buckeye Cablevision, Inc. (“Buckeye”), an affiliate
of Block Communications, or the City of Toledo - has the obligation to pay the cost of relocating
Buckeye’s telecommunication facilities in connection with the City’s desire to improve the
appearance of Summit Street, in downtown Toledo, in advance of the 2021 Solheim Cup, a biennial
women’s golf event between European and American golfers.
II. The Solheim Cup Golf Tournament and the Summit Street Improvements
In 2016, the City of Toledo and the Inverness Club were chosen to host the 2021 Solheim
Cup tournament.1 Judd Silverman, who spearheaded the local effort to land the tournament,
explained that, “This is good for the economy. We’re going to have a lot of visitors here spending
money on restaurants, hotels, rental cars, everything. So we have to really do our best to spiff the
place up and have it looking as good as we can.”2 In 2019, Mayor Kapszukiewicz echoed that
sentiment:
“There are probably half a dozen major public
projects with public dollars and public investment
that are all planned with the specific deadline of
summer 2021. We are putting our best foot forward.
Downtown is in a lot better place than it was 10 years
ago, that’s for sure. It’s in a lot better place than it
was five years ago. But we are going to make sure

1 https://www.lpga.com/news/2016-solheim-cup-announces-2021-host-site

2 https://www.toledoblade.com/local/2019/09/13/solheim-cup-will-boost-local-economy/stories/20190910006

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 that two years from now when the Solheim Cup is
taking place, we take it up another notch.
****

We believe it will make that part of Summit Street

more welcoming. It will have a European feel.
It’s going to aid retail.”3
For the Toledo Solheim, the U.S. and European teams reportedly will be introduced at
Promenade Park on Summit Street. City spokesman Ignazio Messina explained the [then
estimated] $7.5 million Summit Street project: “With the opening ceremonies being along Summit
Street in Promenade Park, we want to make sure that Toledo puts its best foot forward for this
amazing golf tournament.”4
The Summit Street improvements call for adding more than 250 deciduous trees, 1,400
shrubs and hundreds of concrete flower containers, wider sidewalks to accommodate outdoor
dining, a large pedestrian-oriented median with public artwork and a decorative water fountain.5
The project also reportedly includes the replacement of an aging water line beneath Summit Street.
These improvements are being undertaken despite the fact that much of Summit Street was
improved only three years ago in connection with ProMedica Health System, Inc. relocating its
corporate headquarters to Summit Street. No transportation or safety need has been identified or
offered by the City as a rationale for the project.
III. The Governmental/Proprietary Distinction
The governmental/proprietary distinction generally recognizes that governmental entities
sometimes act like governments and other times like private business and their authority and
obligations should be treated according to the role in which they are acting.
In State ex rel. Speeth v. Carney, 163 Ohio St. 159 (1955), the Supreme Court of Ohio
upheld the authority of the Cuyahoga Board of Commissioners to construct a subway under the
public streets, and also upheld the Board’s authority to expend public funds to relocate the existing,
privately owned utility lines. The court recognized the general rule “that in the absence of contract
to that effect there is no power in a governmental subdivision to require public utilities using public
streets to relocate their facilities at their own expense to accommodate the proprietary utility
operations of such subdivision.” Id. at 177-178 (citations omitted).
More recently, in Duke Energy, Ohio, Inc. v. City of Cincinnati, 2014 WL 12873312 (Ohio
Com.Pl.), aff’d, 2015-Ohio-4844 (1st Dist.), appeal not accepted, 2016-Ohio-2807, the court found
that the City of Cincinnati was required to pay the cost of relocating Duke Energy’s electrical and
gas lines to make way for a street railway project. Because the operation of a street railway is
deemed to be a proprietary function, the Supreme Court of Ohio’s 1955 Speeth decision placed the
cost of the relocation project on the city. Duke Energy also expressly rejected the ruling in AT&T

3
Id.
4
https://www.13abc.com/content/news/Coming-Soon-Summit-Street-construction-downtown-564833571.html

5
Summit Street Reconstruction Plans, Volume 2, Landscape Improvements.

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Corp. v. Lucas County, 381 F.Supp2d 714, requiring AT&T to pay the cost of relocating its lines
to make way for the Toledo Mud Hens Stadium, noting that, “[n]othing in [the court’s] opinion
adequately addresses why relocation was required by “public necessity and for public safety and
welfare . . . nor is there any discussion of whether the construction at issue was proprietary or
governmental. The AT&T opinion cannot nullify the rule of law announced in Speeth.”
A. Economic Development, Tourism and Aesthetic Improvements are
Proprietary Functions.
While no Ohio case directly addresses whether economic development, tourism and
aesthetic improvements - the essence of the Summit Street project - are governmental or
proprietary undertakings, it seems highly likely a court would find them to be proprietary. A 1927
decision of the Supreme Court of Ohio distinguished mandatory governmental functions (“such as
protection from crime, or fires, or contagion, or preserving the peace and health of citizens and
protecting their property”) from proprietary functions:
If . . . there is no obligation on the part of the
municipality to perform them, but it does in fact do
so for the comfort and convenience of its citizens, for
which the city is directly compensated by levying
assessments upon property, or where it is indirectly
benefited by growth and prosperity of the city and its
inhabitants, and the city has an election whether to
do or omit to do those acts, the function is private
and proprietary…
City of Wooster v. Arbenz, 116 Ohio St. 281, 285 (1927) (emphasis added).
A further discussion of the distinction between public necessity and aesthetics is found in
City of Albuquerque v. New Mexico Public Regulation Com’n, 79 P.3d 297 (N.M. 2003). At issue
was the lawfulness of a tariff approved by the New Mexico Public Regulation Commission that
allowed a utility to recover costs incurred in complying with a local ordinance to place utility
systems underground. The court vacated the tariff because it did not contain an exception for
projects necessitated by public health and safety. Rather, the tariff applied to all projects. In doing
so, the court distinguished between projects based on public necessity versus aesthetics, citing
numerous cases from other jurisdictions where imposing the cost of relocation on a public utility
based on aesthetics, such as beautification projects, were deemed unlawful. See also Rochester
Telephone Corp. v. Village of Fairport, 84 A.D.2d 455, 446 N.Y.S.2d 823 (4th Dep’t 1982)
(municipality liable for costs of aesthetic relocation).
The Summit Street project is not aimed at protecting the health and safety of the City’s
inhabitants or maintaining Summit Street; rather it is offered as an economic development project
to foster “growth and prosperity” by providing Summit Street with a more “European feel” with
the hope that this will result in greater business investment and commercial activity. As such,
Ohio law would deem the project to be proprietary in nature.

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 B. The Private Development Cases
A further line of cases consistent with Ohio’s proprietary/governmental distinction holds
that when private interests and private development require public roads to be improved, which in
turn requires the relocation of utility lines, the private developer must bear the cost of relocating
the utility lines. Pacific Gas & Electric Co. v. Dame Construction Co., 191 Cal.App.3d 233 (1987)
(where a private party develops a parcel of land and thereby creates or aggravates a need for public
improvement requiring the relocation of existing utility equipment, the private party, and not the
utility, must bear the relocation costs.); Potomac Elec. Power Co. v. Classic Cmty. Corp., 856 A.2d
660 (Md. 2004) (where the relocation of utility poles is triggered by a private development, the
developer must pay the cost of the relocation.); Whisenhunt v. Sw. Bell Tel., 573 F.3d 565 (8th Cir.
2009) (property developers, rather than telephone company, were required to bear costs of
relocating utility lines to accommodate construction of city streets, in connection with commercial
development of property).6
The line of cases noted above could well be used to support an argument that Ohio would
adopt the same rule. At a minimum, their logic further supports Buckeye’s argument that the
Summit Street project is a proprietary function and it therefore should not be made to bear the cost
of relocating its facilities.
C. A Municipal Water Utility is a Proprietary Function
As noted above, the Summit Street improvement project reportedly includes replacing
aging water lines beneath Summit Street, although it is not clear that the replacement of those
water lines would necessitate the relocation of Buckeye’s telecommunication facilities. In any
event, Ohio classifies a municipal water utility as a proprietary function. Hill v. City of Urbana,
79 Ohio St.3d 130 (1997); Ohio Rev. Code 2744.01(G)(2)(c) (“a ‘proprietary function’ includes,
but is not limited to . . . the establishment, maintenance, and operation of a utility, including . . . a
municipal corporation water supply system”). Therefore, under the proprietary/governmental
dichotomy articulated in Speeth, the cost of relocating Buckeye’s lines must be borne by the City
because all aspects of the project, including the replacement of the City’s water line, are proprietary
in nature.
IV. Toledo Municipal Code Section 945.10(b)(4) Allocates the Cost of Utility Relocation
to the City

The City of Toledo has no authority, under the Ohio Constitutional Home Rule provisions
or under its locally-adopted charter, to abrogate or exempt itself from the Ohio common law rules
applicable to utility relocations within the city limits. The municipality may, however, enact
ordinances that are more liberal than the common law rules because in that situation, the City
simply would be electing to spend public funds for what it deemed to be a valid public purpose.
With this in mind, Toledo Municipal Code section 945.10(b) provides that:

6Those out-of-state cases are also consistent with a provision of the Toledo Municipal Code which relieves a party occupying the public right-of-
way from the cost of relocating its facilities “for the benefit of a third party.” TMC 945.10(b)(2). Given that the Summit Street streetscape project
was called out in the 2015 City/ProMedica development agreement, and the fact that the improvements are immediately adjacent to the company’s
new corporate headquarters and other buildings, the project may be deemed to be principally “for the benefit of” ProMedica.

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 No [right-of-way] permit holder shall, without
reasonable compensation, be required by the City to:
****
(4) relocate, change, support, hold or alter the
position of any facility for a non-transportation
related aesthetic improvement.
As shown above, the Summit Street project is all about the aesthetics and the “European
feel” the City wants to create along this section of Summit Street. Under this TMC section then,
the question is whether this improvement is a “non-transportation” related aesthetic improvement,
and in particular, whether the pedestrian aspects of the project constitute “transportation”. Black’s
Law Dictionary (11th ed. 2019) defines “transportation” as “the movement of goods or persons
from one place to another by a carrier.” (Emphasis added). The terms “transportation” and
“transport” would not ordinarily be understood to include pedestrians walking along Summit
Street. Accordingly, the City should pay for the cost of relocating Buckeye’s facilities in
accordance with the Ohio common law, and pursuant to TMC 945.10(b)(4) because the project
qualifies as a “non-transportation related aesthetic improvement.”

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