Tracked House Bills – August 2021

Jeffry Harris
Bricker & Eckler LLP

 

 

State News:

ODOD adopts Residential Broadband Expansion Program rules on an emergency basis:  On July 30, ODOD formally filed with the Joint Committee on Agency Rule Review (JCARR) the rules for HB 2’s broadband expansion program.  This filing occurred the same day as Governor DeWine issued his executive order authorizing their immediate adoption.  ODOD is charged with implementing the rules immediately, with their emergency status to expire within 120 days (when they are to be adopted via the traditional JCARR process).

On August 4, the newly formed Broadband Expansion Authority members met for first time.  With three named members, of five total, the Authority convened to approve scoring criteria they will use to approve grant applications.  The window for submitting application materials commences September 6 and will close November 8.

The rules are attached to this month’s legislative report.  In summary, the new rules provide the following:

• Reiterates that only broadband providers under the statute may submit applications;
• Applications are to include information as to a project’s location in a distressed area or in an opportunity zone;
• Project construction may not commence prior to the receipt of any grant from ODOD (i.e., broadband expansion grants are to awarded to projects on a “but for” basis);
• The Broadband Expansion Authority is to meet quarterly, with ODOD to provide notice to the public;
• Opportunity will be provided for county commissioners to request that ODOD solicit applications for up to two years for projects within eligible areas (for which no projects have been proposed);
• Grant funds per location are one-time only, meaning the Broadband Expansion Authority will not award grant funds to serve the same residential address in future application periods;
• Applications submitted by one broadband provider may be challenged by another broadband provider, or de facto challenges may arise when two applications are submitted to serve the same area, with the Broadband Expansion Authority to make the necessary determinations (including suspending challenged applications); and,
• ODOD may pursue clawback of grant funds in the event a broadband provider is noncompliant in a project and fails to cure its default.

 

Federal News:

Breaking news: “Neither side got everything they wanted”: On August 10, the Senate approved the $1T physical infrastructure improvement plan, with the 69-30 vote demonstrating a rare bipartisan comity among senators.  The “ayes” included Minority Leader Mitch McConnell (R. – Kentucky) and 18 other Republicans.   The 2,700-page legislation now proceeds to the House, with the following plan elements:

• $110B for roads, bridges and other major projects, including:
  • $11B for highway and pedestrian safety
  • $2B  to expand roads, bridges, and other surface transportation infrastructure in rural areas
  • $1B to reconnect communities of color that had been dissected by mid-20^th Century interstate highway construction;
• $73B to modernize the nation’s electricity grid;
• $39B to public buses, subways, and trains;
• $66B in passenger and freight rail;
• $55B in clean drinking water, such as:
  • $15B to replace-out all the nation’s remaining lead pipes
• $65B for broadband (described in more detail, below);
• $46B to assist states and local governments in addressing droughts, wildfires, flooding, and other climate change-based calamities, such as:
  • Expanded funding to the National Oceanic and Atmospheric Administration to map and forecast inland and coastal flooding, and modeling and forecasting wildfires;
• $17B for ports and waterways; and,
• $7.5B to build-out a national network of electric vehicle charging stations.

In earlier discussions, the infrastructure improvements were to have been paid for by enhanced IRS enforcement of tax cheats.  That revenue pathway was vociferously rejected by Republican senators, given their long-held resentment of the agency, which in turn threatened the entire infrastructure plan’s future.

Instead, the bill will be paid for largely with repurposed federal funds, including unallocated and unencumbered COVID federal stimulus funds, such as up to $200B in unused CARES Act and ARPA – Local Fiscal Recovery Funds.

Drill-down into Infrastructure Bill’s broadband funding:  The Senate’s federal infrastructure bill directs $40B in broadband funding to individual states to offset the costs of expanding broadband to unserved or underserved areas.  Each state would receive at least $100MM in such funding.  The Senate targets funding to areas lacking service at speeds of at least 25Mbps download/3Mbps upload (i.e., those areas in which only 20% or less of locations attain such service speeds), with funding to provide service at speeds of at least 100Mbps download /20Mbps upload.

Known as the Broadband Equity, Access and Deployment Program, it would be administered by the Dept. of Commerce.  (Note, this envisioned funding would not require the use of an auction process as was under with the Rural Digital Opportunity Fund; it appears individual states could make such a determination.)

Unlike the Ohio General Assembly’s ban on government participants in HB 2’s Residential Broadband Expansion Program, the federal bill would not allow states to exclude co-op’s, nonprofit organizations, public-private partnerships, private companies, public or private utilities, public utility districts, or local governments from funding under the Deployment Program.

The funding includes $2.5B for so-called middle-mile networks, digital equity and affordability programs. These program funds would reduce the cost of connecting such unserved and underserved areas to the larger internet backbone.  Areas served by such middle-mile infrastructure would be those lacking service at speeds of at least 100Mbps download/20Mbps upload.  This program component would be budgeted $500MM/federal fiscal year during 2022 to 2026, with priority to projects connecting middle mile infrastructure to last mile networks in unserved areas.

Final plank in President Biden’s economic agenda begins its budget reconciliation journey:  After 14 hours of debate, at 4am on August 11, the Senate voted strictly along party lines (50-49) to approve a budget blueprint of the $3.5T American Family Plan act.  This represents the third, and final, element of the Biden Administration’s economic recovery plan (ARPA being the first; the federal infrastructure bill being the second).  This measure, to be written from the approved blueprint (i.e., outline) among a dozen Senate committees with assured zero support or involvement by Republicans, will employ the chamber’s budget reconciliation process, which the Senate parliamentarian allows only for bills that involve federal expenditures.  (This process was last used to enact ARPA in March 2021 without any Republican support in the Senate.)

The announced blueprint includes an expansion of health insurance subsidies offered via the Affordable Care Act and an extension of the just-commenced monthly payments remitted to most parents of children in the U.S.

The bill also will include net, new expenditure programs: Medicare to offer dental, hearing, and vision benefits; providing long-term care, on an in-home basis, to the elderly; free preschool and two years of community college tuition; creates a Civilian Conservation Corps-like program to construct climate change-related public works; tax credits, to manufacturers and consumers alike, to induce the assembly and purchase, respectively, of electric vehicles, including financing domestic manufacturing of key parts like batteries; and lowering the cost of prescription drugs by allowing Medicare to negotiate with Big Pharma.

The plan will be paid for by remaking the federal tax code.  Simply put, taxes would increase on wealthy people and corporations.  The former administration’s key tax cut in 2017 would be rolled-back, raising the corporate tax rate from 21% to at least 25%; raising the tax rate to 39.6% on investment gains for those making more than $1M/year; and addressing the carried interest loophole used extensively by private equity funds to avoid higher taxes on the fees they charge.

 

134^TH GENERAL ASSEMBLY – PROPOSED & ENACTED LEGISLATION
(Changes from last month are noted in BOLD):

HOUSE BILLS:

 

HB 2 BROADBAND SERVICES (Carfagna, R., Stewart, B.) Introduced on February 4, 2021, this bill concerns broadband expansion, including access to electric cooperative easements and facilities. Note the companion SB 8 in the upper chamber.  Note further this legislation was dropped into the State’s biennial budget bill – HB 110 – via action by the House Finance Committee on April 13.

This bill quickly cleared the House Finance Committee, where Sponsor Rep. Rick Carfagna (R – Genoa Township) called this repeat measure of House Bill 13 (133rd General Assembly) a “labor of love” as approximately 1 million Ohioans lack access to reliable broadband.

The bill establishes the Ohio Residential Broadband Expansion Grant Program (R.C. 122.40 et seq.), to be housed within ODOD, providing funds to broadband providers that otherwise would not pursue expansion in certain areas of Ohio without such support. Specifically, this will provides ODOD-vetted grants to cover broadband providers’ costs of providing hard-to-reach, last-mile connectivity.

The Committee adopted an amended bill that increased funding for the proposed program ($20MM in State Fiscal Year 2021 (i.e., current budget period); $170 MM in SFY 2022; and $20MM in SFY 2023). Specifically, the Committee added two (2) amendments: (1) using $150MM of the Governor’s proposed $290MM in broadband spending to arrive at the SFY 2022 appropriation ($170MM), while keeping the SFY 2023 appropriation as originally proposed ($20MM); and (2) inserting an emergency clause.

On February 18, the legislation cleared the House (88-5 vote).

On March 23, the Senate Financial Institutions & Technology Committee heard testimony suggesting changes to the measure, including: (1) AEP Ohio requesting that electric distribution utilities be allowed to apply to the ODOD for grant funds; and (2) both the Ohio Economic Development Association and AARP requesting that governmental entities be allowed to apply for grant funds (the statewide economic development organization noted, “Ohio needs an ‘all hands on deck’ solution” to close the digital divide).

On April 27, the Senate Committee unanimously reported out the bill, which then passed unanimously via floor vote on April 28.  Amendments made by the Committee included stripping out funding for State Fiscal Year 2022 ($170MM) and SFY 2023 ($20MM), as those appropriations now are included in the state operating budget (HB 110).  Thus, funding in this bill for SFY 2021 is $20MM (to be available immediately), sourced from ODOD’s Facilities Establishment Fund rather than the state’s General Revenue Fund.  Administratively, one of the amendments creates a stand-alone fund account – the Residential Broadband Expansion Grant Program Fund – thereby enabling the fund to hold any other appropriations from the General Assembly that may be made in the future.

The measure, which includes an emergency clause, cleared the House’s concurrence vote on May 5, 2021.  The bill was signed into law by the Governor on May 17, 2021; now signed, ODOD can immediately commence the Ohio Residential Broadband Expansion Program.

HB 10 UTILITY LAWS (Leland, D.) Introduced by the House Democrats on February 4, 2021, this bill makes changes regarding electric utility service law, to allow the implementation of energy waste reduction programs, and to repeal certain provisions of H.B. 6 of the 133rd General Assembly. Sponsor Rep. David Leland (D-Columbus) seeks to repeal and refund HB 6’s subsidies as well as the decoupling charges. This measure had its first hearing on February 17 in the House Public Utilities Committee.

HB 18 ENERGY LAW REPEAL (Lanese, L.) Introduced on February 4, 2021, this bill seeks to repeal the changes made by H.B. 6 of the 133rd General Assembly to the laws governing electric service, renewable energy, and energy efficiency and the changes made to other related laws. This measure had its first hearing on February 17 in the House Public Utilities Committee.

HB 43 PUBLIC MEETINGS (Sobecki, L., Hoops, J.) Introduced on February 4, 2021, this bill seeks to permanently authorize public bodies to meet via teleconference and video conference beyond the currently July 1, 2021 sunset. The House Government Oversight Committee heard this measure for the first time on February 11.

HB 47 CHARGING STATIONS (Loychik, M.) Introduced on February 4, 2021, this bill requires the Director of ODOT to establish an electric vehicle charging station grant rebate program and to make an appropriation. Note the companion SB 32 in the upper chamber. This bill had its fourth hearing in the House Transportation & Public Safety Committee on June 22.

HB 53 CONTRACT LIMITATIONS (Hillyer, B.) Introduced on February 4, 2021, this bill seeks to shorten the period of limitations for actions upon a contract; to make changes to the borrowing statute pertaining to applicable periods of limitations; and to establish a statute of repose for a legal malpractice action. Note the companion SB 13 in the upper chamber, which was signed into law on March 16, 2021. This bill has been referred to the House Civil Justice Committee.

HB 57 ENERGY REPEAL (Skindell, M., O’Brien, M.) Introduced on February 4, 2021, this bill seeks to repeal the changes made by H.B. 6 of the 133rd General Assembly to the laws governing electric service, renewable energy, and energy efficiency. This measure had its first hearing on February 17 in the House Public Utilities Committee.

HB 58 UTILITY EARNINGS (Skindell, M., Denson, S.) Introduced on February 4, 2021, this bill pertains to the significantly excessive earnings determination for an electric distribution utility’s electric security plan. Note the similar HB 128 as well as SB 44 in the upper chamber. This House version introduced by Rep. Michael Skindell (D-Lakewood) and Rep. Sedrick Denson (D-Cincinnati) would not impact decoupling. This measure had its first hearing on February 17 in the House Public Utilities Committee.

HB 63 EMINENT DOMAIN (Cutrona, A., Stoltzfus, R.) This bill will amend the law regarding eminent domain and to declare an emergency. During sponsor testimony to the House Civil Justice Committee, Rep. Reggie Stoltzfus (R – Paris Twp.) noted the bill allows residents impacted by eminent domain to seek relief from township trustees, rather than via court procedures. This bill had its second hearing in the House Civil Justice Committee on March 2.

HB 66 PROPERTY TAX EXEMPTIONS (Hoops, J.) Introduced on February 4, 2021, this bill requires the reporting of information on and legislative review of property tax exemptions. This bill had its first hearing in the House Ways & Means Committee on February 9, with the sponsor, Rep. Jim Hoops (R – Napoleon), noting this would require the Ohio Tax Commissioner’s biennial tax expenditure report to include data pertaining to local property tax exemption programs.

This measure passed the House on March 3 by unanimous vote; it has been referred to the Senate Ways & Means Committee.

HB 74 TRANSPORTATION BUDGET (Oelslager, S.) Introduced February 9, 2021, this bill is the state’s $8.3B two-year transportation budget (State Fiscal Years 2022 and 2023).

The House Finance Committee in late February and early March accepted several changes to the initially proposed transportation budget.  The provisions of the substitute bill include the following:

• More funding for public transit.  Doubles the proposed investment for public transit to $193.7MM during the biennium
• Removed distracted driving language.  All distracted driving provisions were remove from the as-introduced bill’s provisions; these had been a priority for Governor DeWine
• Dedicated funding for RTPOs.  Regional Transportation Planning Organizations (RTPOs) would be allocated $2.6MM/year rural transportation planning grant programs

The House Finance Committee cleared the bill on March 3, with the entire Ohio House approving it by an 87-8 vote on March 4.

On March 24, the Senate Transportation Committee reported out the bill, and the entire Senate passed the measure by unanimous vote.  (The House concurred on an 86-8 vote.)  The bill was signed into law by Governor DeWine on March 31; there were no line-item vetoes.  The appropriations go into effect immediately; the law change provisions go into effect 90 days hence. In its final form, the bill provided the following:

• Increases State GRF for public transit by $13.85MM each year, thus totaling $37 MM for State Fiscal Year 2022 and SFY 2023;
• Allows for state’s driver’s license renewal on an eight-year cycle, including online renewal options;
• Requires ODOT to reopen certain closed weigh stations as overnight parking for commercial vehicles;
• Makes the Cleveland metro’s RTA’s rail projects eligible for ODOT’s TRAC funding process;
• Increases capital appropriations for the Public Works Commission’s Local Public Infrastructure by $2MM; and,
• Directs OEPA to use $8MM from Volkswagen Clean Air Act Settlement for electronic vehicle charging station grant program.

HB 91 PUBLIC FACILITY PARTNERSHIPS (Patton, T.) Introduced on February 9, 2021, this bill would authorize certain public entities to enter into public-private initiatives with a private party through a public-private agreement regarding public facilities. This bill had its second hearing on April 28 in the House Infrastructure & Rural Development Committee.

HB 110 BUDGET BILL (Oelslager, S.) Introduced on February 16, 2021, this bill was the legislative vehicle for Governor Mike DeWine’s executive budget proposal. The measure was helmed by the bill’s sponsor, Rep. Scott Oelslager (R-Canton).  As widely reported, and detailed in prior months’ Bricker reports, the state budget bill gained and lost various provisions during budget negotiations.

In the late evening of Wednesday, June 30 (after having received the final, signed bill at 7pm that night), Governor DeWine signed the budget bill into law.  The final enacted version had elements of particular interest to economic developers, which are described below.

Substantive Law Changes

• ODSA reverts back to its historic Ohio Department of Development name;

• Transfers compliance responsibilities from the Ohio Attorney General to the Auditor of State as to recipients’ compliance with state economic development awards (new R.C. 117.55);

• Creates within ODOD a Brownfield Remediation Program (newC. 122.6511), with project eligibility to be set via administrative rules issued by the Director; funds may cover up to 25% of a project’s total cost to remediate brownfield conditions; program must be operational and accepting application within 90 days of budget bill’s effective date (September 29, 2021), with $350MM appropriated for SFY 2022 to support the program statewide ($1M reserved for each Ohio county for one (1) year; all remaining funds awarded by ODOD on a first-come, first-served basis; authority to re-appropriate any unencumbered balance of funds in the program to SFY 2023);
• Creates within ODOD a Building Demolition and Site Revitalization Program (newC. 122.6512), for the demolition of commercial and residential buildings and adjacent, non-brownfield properties; project eligibility to be set via administrative rules issued by the Director; funds may cover up to 25% of a project’s total cost; program must be operational and accepting application within 90 days of budget bill’s effective date (September 29, 2021), with $150MM appropriated for SFY 2022 to support the program statewide ($500,000 reserved for each Ohio county for one (1) year; all remaining funds awarded by ODOD on a first-come, first-served basis; authority to re-appropriate any unencumbered balance of funds in the program to SFY 2023);
• Changes the ODOD’s Rural Business Growth Program (R.C. 122.151) eligibility criteria and investment requirements (e.g., referencing participating companies in the state’s border counties), bifurcating program funds as to before / after the effective date of these HB 110 changes, and requiring the new types of applications to be accepted by ODOD within 30 days of the budget bill’s effective date (on or after July 31, 2021);
• Inserts new “megaproject” designation in the state’s Job Creation Tax Credit program (newC. 122.17(A)(11) and (D)(2)(c)), allowing tax credits for very large projects (i.e., at least $1B in capital investment or $75MM/year in new payroll, average wages at least 300% of the federal minimum wage) for up to 30 years, as well as allows JCTC recipients to include work-from-home employees in their job creation calculations (new R.C. 122.17(T));
• Includes a new rank-ordering of Job Retention Tax Credit application priorities (newC. 122.171(C)(2)).
• Changes elements of the state’s Opportunity Zone tax credits (R.C. 122.84) to  increase to $2MM the limits on credits awarded to individual taxpayers each budget biennium;
• Removes production contractors from those which may claim the state’s film and theater tax credit (R.C. 122.85);
• Drops in the provisions of proposed HB 174, which authorizes an income tax deduction for capital gains received by investors in certain Ohio-based venture capital operating companies (newC. 122.851);
• Extends the availability of the state’s Transformational Mixed Use Tax Credit (or TMUD, at R.C. 122.09) from 2023 to 2025 and sets at $100MM the maximum annual credit allotment during those two extra years (given that no TMUD credits were issued during 2020 to 2021, this amendment shifts those years’ allotments into the extended time period);
• Changes to JEDD law (newC. 715.72(A)(10) and (11); and (J)(2)) as to the means of creating a new or amending an existing JEDD (to add area) to require new notices, new JEDD Agreement terms, and exclusions of land from JEDDs that are in close proximity to, or subject to water / sanitary sewer service agreements by, a municipality which is not party to the JEDD Agreement.  Unless an owner signs the JEDD Petition, such land must be excluded from the JEDD District;[1]
• Changes to TIF law by adding language to “Public Infrastructure Improvement” definition (R.C. 5709.40(A)(8)):  general use of TIF funds may now include off-street parking facilities, including those with reserved spaces (i.e., nonpublic);¹
• Cleans-up language in urban redevelopment TIF (R.C. 5709.41) to specify that exemptions commence after the effective date of the municipality’s enabling ordinance, as well as to make explicit that TIF exemptions commence upon certain value being created or on a parcel-by-parcel basis, once improvements are made (rather than an entire urban redevelopment TIF’s exemption commencing based on improvements to a singular parcel); ¹
• Inserts newC. 5713.083 to require owners of exempt property to notify their respective county auditor (on a to-be-developed OTAX form) as to the property’s ceasing to be exempt from real property taxes, with charges imposed for an owner’s failure to notify;
• Extends by two years (to December 31, 2024) the deadline by which renewable energy operators may apply to ODOD for a Qualified Energy Project tax exemption (R.C. 5727.75);
• Inserts “megaprojects” into the Community Reinvestment Area (CRA) program (newC. 3735.65(E)), authorizing local jurisdictions to award additional 15 years of tax exemptions to megaprojects.

 

Appropriation Items of Interest

• Restores appropriation levels for the Ohio Rural Industrial Park Loan Program ($15MM in SFY 2022 and SFY 2023), expands eligibility beyond distressed areas by including rural areas, which are any county not within a statistical metropolitan area (MSA), as well as transfers $20MM in unencumbered funds to SFY 2022;
• As to ODOD’s Residential Broadband Expansion Grant Program (i.e., enacted HB 2):
  • Modifies the current law’s provisions of OPERS contributions to members of the Residential Broadband Expansion Program Authority;
  • Strips out the Senate’s proposed limits on existing and future municipal broadband networks;
  • Replaces the Senate Finance Committee’s zeroed-out appropriations by providing $230MM in SFY 2022 and $20MM in SFY 2023 to ODOD for the new broadband expansion program;
• Earmarks $1M/year to the Lucas County Land Bank for its Commercial Site Clean-up Pilot Program to demolish vacant commercial or industrial buildings in the county, with $1:$1 local match required;
• Earmarks $250,000/year to Fulton County Land Bank to demolish vacant commercial or industrial buildings in the county;
• Creates a Main Street Job Recovery Program ($250,000/SFY) in ODOD for business and employment opportunities among LMI and prison re-entry populations;
• Directs ODOD to make available grants during SFY 2022 – in amounts of $10,000, $20,000, and $30,000 – for entertainment venues, bars and restaurants, and lodging industry businesses, based in-part on demonstrated losses of revenue from COVID-19, but now sources the funding from the ARPA – State Fiscal Recovery Fund;
• Directs to ODOD to make available grants during SFY 2022 – in amounts of $10,000 – for new businesses having commenced operations after January 1, 2020, but now sources the funding from the APRA – State Fiscal Recovery Fund;
• Appropriates $10MM in SFY 2022 in Sports Event Grant Program funds awarded under R.C. 122.12 and R.C. 122.121;
• Creates a new Meat Processing Program Fund in ODOD, to provide up to $250,000 grants to meat processing plants for facility improvements and equipment purchases.

HB 118 WIND FARMS (Riedel, C., Stein, D.) Introduced on February 16, 2021, this bill requires inclusion of safety specifications in wind farm certificate applications, to modify wind turbine setbacks, and to permit a township referendum vote on certain wind farm and solar facility certificates. Note the companion SB 52 in the upper chamber, which was signed into law on July 12.

In effect, this bill allows local voters to veto turbine projects approved by the Ohio Power Siting Board. Specifically, the measure requires a renewable developer to submit a plan to township trustees 30 days prior to submission to the Ohio Power Siting Board; township trustees could then approve the project or trigger a referendum process, whereby the siting question would advance to the ballot at the next primary or general election (so long as at least 8% of voters in the last gubernatorial election supported the referendum).

During its first hearing on February 23, House Public Utilities Committee members expressed concern the measure sends a bad message to the business community. Rep. Laura Lanese (R-Grove City) noted the plan would establish a “very dangerous precedent…. We’re saying that with this one energy generation – or in this case two – resources we’re going to have one set of rules,” she said. “Yet with all the other sources of energy generation we’re not. From a business point of view…we’re sending this anti-business message.”

On March 23, the House Public Utilities Committee held its third hearing on the measure, with significant written and in-person testimony submitted, including Columbus Partnership CEO Alex Fischer, who noted, “This is a job killing bill.  I can’t put it any other way.”  Other opponent testimony was offered by the Ohio Chamber of Commerce, economic development organizations, and the Ohio Farm Bureau Federation.

On May 12, the House Public Utilities Committee accepted a substitute bill from the sponsors, based on industry concerns.  Under the new version of the bill, community action is moved to the beginning of the site-permitting process, with townships empowered to designate all or part of their jurisdiction as an energy development district; this latter action would be subject to referendum by the electors.  The OPSB would be prohibited from approving a project not within such an energy development district.

HB 123 COMMUNITY REINVESTMENT AREAS (Fraizer, M., Cross, J.) Introduced on February 16, 2021, this bill modifies the law governing CRA areas and the terms under which property may be exempted in such areas.

The bill streamlines the process of creating a new CRA by eliminating Ohio Department of Development (ODOD) designation and agreement sign-off responsibilities. Instead, ODOD is charged with merely designing a model CRA Agreement for commercial or industrial projects. The bill increases abatement thresholds to 75% (from current 50%) equal to which a municipality or county can make awards without school board approval. Further, the bill eliminates the requirement that municipalities that impose an income tax share that revenue with school districts when payroll from new employees is greater than $1M/year.

During sponsor testimony to the House Ways & Means Committee, Rep. Mark Fraizer (R-Newark) said the bill aims to update the Community Reinvestment Area law enacted in 1994, noting the “overly bureaucratic nature of post-1994 CRAs with unnecessary State reporting.” He continued, describing the focus of his bill as “building consistency with economic development tools, aligning TIFs and CRA default tax incentive percentages to range from 75% to 100% based on school board approval[.]”

Rep. Troy said he chaired the committee in 1994 that processed the CRA law, and noted, “I don’t really see what’s broke here that needs to be fixed.”

During the House Ways & Means Committee’s second hearing on March 2, the sole proponent testimony heard was from Nate Green with the Montrose Group / Jobs Alliance, who advocated passage of the bill, noting Indiana does not impose restrictions on tax abatements as does Ohio under the CRA law. Rep. Daniel Troy (D-Willowick) questioned the school funding impacts of the bill, noting tax breaks would have the effect of shifting property tax burden on to residential homeowners.

Rep. Troy, involved in writing the 1994 CRA law changes, noted those changes were enacted to prevent enterprises from “shopping” for CRAs after their initial benefit period runs out; this bill, he described, removes the requirement that a business relocating into a CRA-abated site notify its former community in advance of the move. Mr. Green stated that shopping for CRA abatements is “not as big of an issue as it was before.”

Opponent testimony submitted on March 9 included significant comment from representatives of Ohio’s school districts, as well as testimony from the Medina County economic development team.

During interested party discussions with Bricker on March 11, Rep. Frazier noted the 75% threshold for requiring school board approval (increased from the current law’s 50%) is “non-negotiable; there will cease to be a bill if that figure changes.”

On April 13, the House Ways & Means Committee offered a substitute version of the bill, which makes the following changes:

• Allows for limited home rule townships to establish CRAs (under current law, only municipalities and counties may do so);
• Does not require the use of ODOD model agreements, but requires CRA agreements to include ODOD’s “magic language” from its model document; and
• Allows for municipal-school district income sharing agreements when new payroll is more than $3MM/year, tied to inflation.

The bill had its fifth hearing on April 20, after which the measure was reported-out by the House Ways & Means Committee strictly along a party-line vote.

On May 26, the House passed the bill on a 55-35 vote; it now proceeds to the Senate for consideration.

HB 128 ELECTRIC LAWS (Hoops, J., Stein, D.) This bill seeks to make changes regarding electric utility service law, to repeal the $150MM/year in nuclear payments under HB 6, and to provide refunds to retail electric customers in the state. Note the companion SB 44 in the upper chamber.

House Public Utilities Chair Rep. James Hoops (R-Napoleon) introduced this separate plan to repeal decoupling provisions and the threshold at which a utility achieves significantly excessive earnings (the so-called SEET) that should be refunded; these elements had both specifically benefited FirstEnergy.  The bill leaves intact the $20MM/year in annual solar subsidies provided under HB 6.

On March 10, the House voted 86-7 for the proposal.  (Interestingly, one of the House members voting to approve this HB 6 repeal measure was Rep. Larry Householder (R-Glenford), the former speaker who has pleaded not guilty to a racketeering charge amid the scandal.)

On March 24 the Senate voted to approve the measure; the House voted unanimously in concurrence.  The bill was signed into law by Governor DeWine on March 31, and it becomes effective 90 days hence (with revenue paid under the now-repealed HB 6 provisions to be refunded).

HB 133 TAX COMPLAINTS (Hillyer, B.) Introduced on February 17, 2021, this bill relates to commerce and property tax valuation complaints. This measure also seeks to repeal the version of R.C. 1322.24 taking effect October 9, 2021 that governs the granting of temporary permission to out-of-state mortgage lenders to originate loans in Ohio.

On March 17, this measure passed the House via unanimous vote.  The bill then was heard three times in the Senate Financial Institutions & Technology Committee during late April to early May, and was reported out as an amended measure on May 11.  That amended bill, with an emergency provision, passed the Senate unanimously on May 12.  On June 2, 2021, the Governor signed the bill into law, and it will become effective 90 days hence.

HB 143 CLEAN OHIO FUND (Hillyer, B.) Introduced on February 23, 2021, this bill seeks to make changes to the law relating to the Clean Ohio Revitalization Fund.  Note the companion SB 84 in the upper chamber.

This brownfield bill provides a dedicated funding source for the Clean Ohio Revitalization Fund (CORF). This is in response to the fact a dedicated funding source for brownfields was not included in the Governor’s introduced budget (HB 110). Sponsor Representative Hillyer (R – Uhrichsville) introduced this same legislation during the 133rd General Assembly.

HB 146 PREVAILING WAGE (Riedel, C., Manchester, S.) Introduced on February 23, 2021, this bill seeks to allow political subdivisions, special districts, and state institutions of higher education to elect to apply the Prevailing Wage Law to public improvement projects.

On June 23, this measure had its second hearing in the House Commerce & Labor Committee.

HB 155 LAND USE (Upchurch, T., Smith, M.) Introduced on February 25, 2021, this bill seeks to create the Land Reutilization Nuisance Abatement Program under R.C. Chapter 1724 (community improvement corporation statutes) to address nuisance structures by funding demolition, renovation, or remediation. Specifically, ODOD is charged with administering a $50MM grant program to county land banks for the abatement of nuisance structures on blighted parcels, including both residential and commercial properties.

On April 21, this measure had its second hearing in the House Economic & Workforce Development Committee, drawing widespread support from individuals across the state.  Rep. Monique Smith (D-Fairview Park), a chief sponsor of the bill, said the issue of blight extends across the state.  Additional supporting testimony was offered by witnesses from the City of Nelsonville, the Butler County Land Bank, the Western Reserve Land Conservancy, and the Mahoning County Land Bank.

Bricker published an article regarding the subject matter of this bill, available at the following link: https://www.bricker.com/insights-resources/publications/much-more-than-just-%E2%80%9Cdrug-houses%E2%80%9D-state-grants-to-fund-commercial-building-demolition-would-propel-county-land-banks-as-key-drivers-of-ohios-economic-development  

The bill had its fourth committee hearing on June 16.  Comments made by the committee chair, Rep. Jay Edwards (R-Nelsonville), generally were unfavorable to county land banks, as he noted the General Assembly should look at the current state of land banks and said that more guardrails, including a sheriff’s sale pre-requisite, are needed.  Given the chair’s voiced concerns with land banking in general, there is doubt this bill will be reported out of his committee.  But with the $500MM in brownfield remediation and building demolition funding provided in the state budget bill (HB 110, described above), this measure is moot at this point.

HB 157 MUNICIPAL TAXES (Jordan, K., Edwards, J.) Introduced on February 25, 2021, this bill modifies municipal income tax employer withholding rules for COVID-19-related work-from-home employees.

The bill would sunset – at the end of 2021 – a temporary rule that treated those working from a location other than their regular place of employment during the pandemic as working in the office for municipal income tax purposes. It would also require municipalities to approve employees’ requests for a refund of taxes withheld under the rule on and after January 1, 2021.

The bill had its sixth hearing on May 18, after which it was reported out along party lines for likely consideration on the floor by the entire House.  The reported measure is now a substitute version of the bill, which sunsets the current emergency changes on municipal tax payments as of December 31, 2021 and clarifies that provisions of the bill are voluntary for businesses to follow.  During the committee’s consideration, opposition testimony was offered by municipal government representatives, who noted the bill’s provisions regarding potential retroactive tax refunds could result in “very serious financial implications” for cities.

On May 26, the bill cleared the House in a party line vote; the measure now proceeds to the Senate.

HB 168 BUSINESS GRANTS (Fraizer, M., Loychik, M.) Introduced on March 2, this bill would provide grants to businesses, local fairs, child care providers, and veterans’ homes and to make an appropriation. Note the companion SB 109 in the upper chamber, which has been signed into law.

On March 24, this bill was reported out of the House Economic & Workforce Committee.

On April 15, the measure was reported out by the House Finance Committee, which amended the bill to replace state GRF appropriation for two grant programs with appropriation from the Coronavirus Relief Fund. The measure was unanimously approved by the House the same day, and has gone to the Senate.

On June 22, the Senate Finance Committee amended and reported-out this measure with a significant re-write of the entire bill.  Namely, Sen. Jay Hottinger (R-Newark) proposed an amendment to remove the original contents of the bill, replacing that language with a directive to ODJFS to certify and retire the entire amount owed by the state of its unemployment assistance loan from the federal government.  (During the COVID-19 pandemic, Ohio borrowed heavily to pay for the estimated $1.47B – $1.6B in unemployment compensation.  Without this pay-off, interest would start accruing on the federal loan in September.)  To-date, Ohio has received $2.7B State Fiscal Recovery Funds from the U.S. Treasury; another $2.7B will arrive within the year in a second and final installment.

The bill unanimously passed the Senate on June 24 after being amended on the floor in two material ways:

1. To include SB 111’s provisions (described below) appropriating the first slug of $421.86MM in Local Fiscal Recovery Funds received by the State from the U.S. Treasury in late May (with the key inclusion of townships as so-called nonentitlement units of local government); and,
2. To appropriate $250MM in State Fiscal Year 2022 to ODOD for a new Water and Sewer Quality grant program to counties, townships, municipal corporations, and other bodies politic in Ohio.  Within 60 days of the bill’s effective date, county engineers are to submit to ODOD a list of eligible projects, ranked in order of priority.

On June 29, Governor DeWine signed the bill into law.

HB 169 BUSINESS GRANTS (Cutrona, A., Swearingen, D.) Introduced on March 2, this bill would provide grants to bars and restaurants and the lodging industry and make an appropriation. Note the companion SB 108 in the upper chamber.

On March 24, this bill was reported out of the House Economic & Workforce Committee.

On April 15, the measure was reported out by the House Finance Committee, which amended the bill to appropriate $10MM in Coronavirus Relief Fund dollars that were previously unspent for the purpose of helping liquor permit holders pay for renewal fees. The measure was unanimously approved by the House the same day, and has gone to the Senate.

HB 174 AUTHORIZE INCOME TAX DEDUCTION FOR CERTAIN CAPITAL GAINS (Cross J, Lanese L) Introduced on March 3, this bill authorizes an income tax deduction for capital gains received by investors in certain Ohio-based venture capital operating companies.

During sponsor testimony in the House Economic & Workforce Development Committee on March 24, Rep. Laura Lanese (R-Grove City) described the goal of the measure as joining 22 other states that offer tax credits to venture capital firms to encourage economic expansion. Rep. Jon Cross (R-Kenton) noted the COVID-19 pandemic has led to a movement away from the coasts.

HB 228 MUNICIPAL CORPORATION TAX (Roemer, B.) Introduced on March 23, 2021, this bill would seek to make changes related to state-administered municipal net profits taxes.  The bill had its fourth hearing before the House Ways & Means Committee on May 18, 2021, after which it was reported out for possible consideration on the floor by the entire House.  The reported measure was an amended version of the bill, which now allows the Ohio Attorney General to charge and deduct its collection costs for any state-administered municipal net profits tax it collects.

On May 26, the House passed the bill on a 88-1 vote; it now proceeds to the Senate for consideration.

HB 237 COUNTY RECORDERS (Hillyer, B.)  Introduced on March 31, this bill seeks to require counties to provide an electronic means of recording instruments and accessing them, to allow county recorders to charge a document preservation surcharge, to increase recording fees for certain instruments, and to make an appropriation.   The bill had its fourth hearing before the House State & Local Government Committee on June 15, during which the Committee accepted a substitute version.  The revised bill removed language that had called for recording fee deposits being made into the Ohio Housing Trust Fund; the Committee also proposed funding implementation of the bill among county recorders by using ARPA – State Fiscal Recovery Funds.

HB 241 TAX FORECLOSURES (Patton, T.) Introduced on March 31, this bill makes changes to the law relating to tax foreclosures and county land reutilization corporations. Note the companion SB 112 in the upper chamber.  The bill has been referred to the House State & Local Government Committee.

HB 264 INCOME TAX (Smith, M., Sobecki, L.) Introduced on April 20, 2021, this bill would seek to modify the municipal income tax withholding rule for employees working at a temporary worksite.

HB 271 NATURAL GAS (Edwards, J.)  Introduced on April 22, 2021, this bill would establish a natural gas infrastructure development program and fund to help meet Ohio’s natural gas supply needs.  The measure had its first hearing in the House Energy & Natural Resources Committee on May 6.

HB 302 WIND FARMS (Skindell, M., Smith, K.)  This measure, introduced on May 11, 2021, would alter the minimum setback requirement for wind farms of five or more megawatts.

The bill had its first hearing before the House Public Utilities Committee on May 19, 2021.  During joint sponsor testimony, Rep. Kent Smith (D – Euclid) noted this measure would essentially reverse a 2014 floor amendment that extended wind turbine setbacks, reverting the setback limit for + 5MW turbines to the distance they were prior to that change.

HB 303 COMMUNITY REINVESTMENT AREAS (Swearingen, D.)  Introduced on May 12, 2021, this bill generally regards career-technical education.  The bill would require that school compensation agreements reached under commercial or industrial CRA abatements be provided on the same terms and conditions to joint vocational school districts.  Note the companion bill in the upper chamber (SB 166).

The bill had its first hearing in the House Economic & Workforce Development Committee on June 16, during which sponsor testimony by Rep. D.J. Swearingen (R-Huron).

HB 369 PROPERTY TAX EXEMPTIONS (Weinstein, C.)  Introduced on July 7, 2021, this bill seeks to enact the School Board Fairness Act, requiring school districts to approve certain residential community reinvestment area property tax exemptions.

HB 377 LOCAL FISCAL RECOVERY (Hall, T., Swearingen, D.)  Introduced on July 15, 2021, this bill seeks to amend just-enacted HB 168 to appropriate the entirety of the U.S. Treasury’s allocation of Local Fiscal Recovery Funds ($844MM) to nonentitlement units of local government (NEUs), to be distributed by Ohio OBM.

 

 

[1] The changes to JEDD and TIF law were the subject of a Bricker-authored article published during the budget bill’s consideration, available at the following link: https://www.bricker.com/resource-center/develop-ohio/publications/ohio-senate-committee-chefs-baking-economic-development-morsels-into-their-version-of-the-state-budget-bill