ROADS, BRIDGES AND FERRIES

Under the authority of 69 Ohio St. 1205 [69-1205](d) (1971), the Transportation Commission has the authority, in its discretion, to pay for the entire cost of rights-of-way in any municipality regardless of size, where it has determined that it is necessary to construct a highway through or within the corporate limits, and further determines that the construction will not benefit the municipality involved, or that the construction will benefit state-owned property or institutions. This determination must be made by the Commission as to each project after consideration of the facts and circumstances existing in each project. The Attorney General has received your letter of May 4, 1977, wherein you, in effect, ask the following question: Does the Transportation Commission have authority to waive payments for rights-of-way by all municipalities regardless of their size? The Legislature has established by law the policy which the Commission is to follow in the acquisition of rights-of-way for highways. That policy is embodied in 69 Ohio St. 1205 [69-1205] (1971), which provides in pertinent part as follows: "The policy which the Commission shall follow in the acquisition of all rights-of-way shall be as follows: "(a) For construction on the Interstate Highway System within the limits of municipalities having a population of five thousand (5,000) or more, Federal aid funds, if available, may be used for the acquisition of rights-of-way, and shall, if available, be used to pay the cost of the removing or relocating of utility facilities located in either privately-owned or public rights-of-way, and in such event the municipality in which said construction is to be performed shall furnish funds to the State necessary to match the Federal funds. "(b) For construction on the Interstate Highway System in all locations other than within the limits of municipalities having a population of five thousand (5,000) or over, and where control of access is required, the State shall furnish all rights-of-way and may use Federal aid funds, if available, for such purpose, and when Federal aid funds are available for such purpose, shall pay the cost of the removing or relocating utility facilities located on either privately-owned or public rights of way. "(c) For all construction projects within the limits of municipalities, other than projects on the Interstate Highway System, as described in the Federal Aid Highway Act of 1956, the municipality or county involved and the Department shall equally share the cost of all necessary rights-of-way, clear of all obstructions, including structures of any kind or nature and utility lines, poles, pipelines or other facilities above or below the surface of the ground. If Federal aid funds are available for the project, the municipality or county and the Department shall equally share the local portion of the costs for acquiring and clearing the right-of-way, including the cost of removing and relocating utility facilities located on privately-owned rights-of-way. "(d) In any municipality where the Commission has determined it to be necessary to construct a highway through or within the corporate limits, and further determines that the construction will not benefit the municipality involved, or that the construction will benefit State-owned property or institutions, the Commission may, in its discretion, pay for or participate in the cost of rights-of-way for such project." Paragraphs (a), (b), and (c) place certain requirements on municipalities in the acquisition of rights-of-way necessary for the construction of highways. In construction on the Interstate Highway System within the limits of municipalities with a population of five thousand (5,000) or over, the municipality is required to furnish the rights-of-way, whereas in those municipalities with a population of less than five thousand (5,000), the State is required to furnish the rights-of-way. For the construction of highways other than on the Interstate Highway System, the Department is to share the cost of necessary rights-of-way. Paragraph (d) of the above Section gives the Commission authority in its discretion in certain situations to pay for the entire cost of rights-of-way for any highway construction project within the limits of municipalities. A plain reading of paragraph (d) reveals that upon the determination by the Commission that it is necessary to construct a highway through or within the corporate limits of a municipality and determines that the construction will not benefit the municipality involved or that the construction will benefit State-owned property or institutions, the Commission may, in its discretion, pay for the entire cost of the rights-of-way. The statute contemplates that the Commission will consider the relevant facts and circumstances involved in each project to ascertain if the required condition exists to enable them to pay for the necessary rights-of-way. The language contained in this paragraph has no reference to the size of the municipality, therefore, the authority of the Commission would extend to the paying for the cost of rights-of-way in any municipality, regardless of size, in which they determine the conditions to exist which are set forth in paragraph (d) quoted above. It is, therefore, the opinion of the Attorney General that your question be answered in the affirmative. Under the authority of 69 Ohio St. 1205 [69-1205](d) (1971), the Transportation Commission has the authority, in its discretion, to pay for the entire cost of rights-of-way in any municipality regardless of size, where it has determined that it is necessary to construct a highway through or within the corporate limits, and further determines that the construction will not benefit the municipality involved, or that the construction will benefit State-owned property or institutions. This determination must be made by the Commission as to each project after consideration of the facts and circumstances existing in each project. (MARVIN C. EMERSON)