Duke's Streetcar Claim Might be Crumbling

A review of the fine print in Ohio law could spell trouble for Duke Energy in its dispute with Cincinnati about who must pay to move utility lines to accommodate the city’s streetcar project. Readers of CityBeat’s March 6 cover story know that one of the legal arguments made by Duke Energy is that it said the system qualifies as a utility itself under Ohio law. And one utility has no legal obligation to reimburse another utility, Duke added. City officials disagree with Duke’s interpretation, and the two sides currently are trying to negotiate a compromise to the impasse. The city is willing to pay $6 million to relocate Duke’s natural gas, chilled water, fiber and electrical infrastructure along the streetcar route, but the firm insists it will cost at least $18.7 million and possibly more. A close reading of the Ohio Revised Code (ORC), however, reveals it is unlikely that a streetcar system qualifies as a “public utility.” Under Ohio law, the following items are defined as public utilities: “A motor transportation company, when engaged in the business of carrying and transporting persons or property or the business of providing or furnishing such transportation service, for hire, in or by motor-propelled vehicles of any kind, including trailers, for the public in general, over any public street, road, or highway in this state.” ORC §4905.03 But motor-propelled vehicles aren’t defined under Ohio law. The ORC does, however, define “motor vehicle” as: “(B) “Motor vehicle” means any vehicle, including mobile homes and recreational vehicles, that is propelled or drawn by power other than muscular power or power collected from overhead electric trolley wires. “Motor vehicle” does not include utility vehicles as defined in division (VV) of this section, motorized bicycles, road rollers, traction engines, power shovels, power cranes, and other equipment used in construction work and not designed for or employed in general highway transportation, well-drilling machinery, ditch-digging machinery, farm machinery, and trailers that are designed and used exclusively to transport a boat between a place of storage and a marina, or in and around a marina, when drawn or towed on a public road or highway for a distance of no more than ten miles and at a speed of twenty-five miles per hour or less.” ORC §4501.01(B) Streetcars operate using overhead trolley wires, thus they aren’t considered motor vehicles under Ohio law. But do they even qualify as vehicles? The ORC defines vehicles as: “(A) “Vehicles” means everything on wheels or runners, including motorized bicycles, but does not mean electric personal assistive mobility devices, vehicles that are operated exclusively on rails or tracks or from overhead electric trolley wires, and vehicles that belong to any police department, municipal fire department, or volunteer fire department, or that are used by such a department in the discharge of its functions.” ORC §4501.01(A) Of course, streetcars run on rails and use power from electric trolley wires. So, they aren’t vehicles either. The conclusion: Either “motor-propelled vehicles” mean the same as “motor vehicles” (in which case it doesn’t apply to streetcars) or “motor-propelled” is an adjective to “vehicle” (which also doesn’t apply, as streetcars aren’t vehicles). In each instance, a streetcar system doesn’t fall into the legal realm of a “motor transportation company” and therefore isn’t a “public utility.”