Tracked Senate 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):

SENATE RESOLUTIONS:

SJR 2 WATER QUALITY BONDS (Gavarone, T., Yuko, K.)  This Resolution proposes to enact Section 2t of Article VIII of the Ohio Constitution to permit the issuance of general obligation bonds to fund clean water improvements.

 

SENATE BILLS:

SB 8 BROADBAND SERVICES (McColley, R.) Introduced on January 21, 2021, this bill addresses broadband expansion, including access to electric cooperative easements and facilities, and to make an appropriation. Note the companion HB 2 in the lower chamber, which has been signed into law by Governor DeWine.

This bill is a refresh of House Bill 13 (133rd General Assembly), which failed in the final stretch to enactment during the lame duck last session. Sponsor Sen. Rob McColley (R-Napoleon) notes this version represents a negotiated substitute bill that had been poised for adoption last December.

This bill seeks to establish an Ohio Residential Broadband Expansion Program (R.C. 122.40 et seq.) to induce internet providers to construct last-mile infrastructure to underserved areas, particularly in rural Ohio. Changes since the last General Assembly’s version include moving the program to ODOD, with the agency reviewing grant applications for the proposed Broadband Expansion Program Authority.

This Senate vehicle appropriates $20MM to the ODOD program in state fiscal year 2022.

After three hearings before the Senate Energy & Public Utilities Committee during late January and February, the Senate unanimously adopted the measure on February 10; it now moves to the House, where is has been referred to the House Finance Committee.

SB 10 ELECTRIC RATES (Romanchuk, M.). This bill seeks to change to two (2) FirstEnergy-friendly rate provisions: (a) repealing HB 6’s so-called “decoupling mechanism” that allowed FirstEnergy to lock its annual guaranteed revenue at 2018 levels – or $978MM/year; and (b) repealing the prior state budget bill’s modification to the significantly excessive earnings test (or SEET) determination as to whether FirstEnergy utilities obtained significantly excessive earnings that must be refunded (the budget bill had allowed FirstEnergy to combine figures across its three companies, offsetting gains at Ohio Edison with those from less profitable companies under its umbrella). Note the companion HB 128 in the lower chamber. This legislation leaves unchanged HB 6’s nuclear subsidies for the FirstEnergy power plants.

During February, the Senate Energy & Public Utilities Committee held three hearings, with the Senate unanimously passing the bill on February 17. The bill has been referred to the House Public Utilities Committee.

SB 13 CONTRACT LIMITATIONS (Lang, G.). This bill shortens the period of limitations for actions upon a contract; makes changes to the borrowing statute pertaining to applicable periods of limitations; and establish a statute of repose for a legal malpractice actions. Note the companion HB 53 in the lower chamber. The bill was heard and reported out by the Senate Judiciary Committee in early February, passed the Senate by unanimous vote on February 3, and passed the House by unanimous vote on February 24. The measure was signed into law by Governor DeWine on March 16 and takes effect 90 days hence.

SB 19 TAX EXEMPTION (Schaffer, T.) Introduced on January 26, this bill establishes a property tax exemption for certain property used for wetland mitigation projects. Specifically, this legislation codifies into law a current practice for property used in wetland mitigation projects used by nonprofit organizations. Bill sponsor, Sen. Tim Schaffer (R-Lancaster), noted, “If counties decide that they can charge property taxes on these wetlands, we would drastically hurt development that would normally occur in our districts,”

After the Senate Ways & Means Committee quickly reported out the measure, the Senate unanimously passed the bill on February 24.

The House passed the measure on June 28 (by a 59-36 vote), with amendments to reflect minor changes in this tax exemption’s application filing process.  Importantly, during its passage, the bill became an omnibus tax policy update, with changes including an imposition of limits on tax revenue options available to the Toledo Area Regional Transit Authority (TARTA).  Relevant to economic developers, the measure also included language from HB 51’s proposed process by which county auditors could initiate themselves (i.e., without need for property owner’s application) any changes to taxable value arising from destroyed / damaged property.

SB 32 CHARGING STATIONS (Rulli, M.) This bill would require the Director of ODOT to establish an electric vehicle charging station grant rebate program and to make an appropriation. Note the companion HB 47 in the lower chamber. This measure had its first hearing before the Senate Transportation Committee on February 17.

SB 44 ENERGY LAW (Rulli, M., Cirino, J.) Introduced on February 2, 2021, this bill seeks to repeal the nuclear resource credit payment provisions, and amend, and rename as solar resource, the renewable resource credit payment provisions of H.B. 6 of the 133rd General Assembly. Note the companion SB 128 in the lower chamber.

Sponsors Sen. Jerry Cirino (R-Kirtland) and Sen. Michael Rulli (R-Salem) note their proposal takes a more targeted approach to addressing the ongoing uncertainty over the future of last session’s HB 6. Specifically, this bill repeals the nuclear subsidies program portion of HB 6 while maintaining previous bill’s $20MM in annual solar subsidies. All other aspects of HB6 would remain in place. By design, Sen. Cirino noted, “It doesn’t open up the whole of House Bill 6 for negotiation”; the Senator represents a district in which is located one of the subject nuclear energy plants.

This measure was approved unanimously by the Senate on March 2. It was referred to the House on March 9.

SB 45 TAX INDUCEMENTS (Peterson, B., Kunze, S.) Introduced on February 2, 2021, this bill seeks to enhance state and local tax inducements for businesses making substantial fixed asset and employment investments and their suppliers. The measure had its third hearing before the Senate Ways & Means Committee on February 23.

SB 52 WIND FARMS (Reineke, B., McColley, R.) Introduced February 9, 2021, this bill requires inclusion of safety specifications in wind farm certificate applications, modifies wind turbine setbacks, and permits a township referendum vote on certain wind farm and solar facility certificates. Note the companion HB 118 in the lower chamber.

This bill, allowing for local prohibitions on wind turbine and solar projects, gained and lost various provisions during its journey to enactment.  (Those fits and starts appear in prior months’ Bricker reports.)

Governor DeWine signed the bill into law on July 12; it takes effect 90 days hence.  The final enacted version had the following key elements:

• A renewable energy developer must hold a public meeting in the proposed impacted community within six months prior to submitting a project application to the Ohio Power Siting Board.  During the public hearing, the developer must provide county commissioners with project documentation, including maximum nameplate capacity and its proposed boundaries.  Thereafter, county commissioners would have a 90-day window in which to: (i) do nothing (i.e., de facto approval); (ii) pass a resolution banning the project outright; or (iii) pass a resolution limiting the geographic area of the project.
• County commissioners are authorized to pass a resolution prior to any potential project to designate a restricted area in which any such construction is prohibited.  Further, county commissioners must provide public notice to taxing entities in effected areas of a pending vote to designate a restricted area.
• Creates two (2) new ad-hoc voting seats on the Ohio Power Siting Board when voting on such projects (the new seats would be occupied, on a case-by-case basis, by a county commissioner and township trustee from areas within the footprint of the project being voted on).  These ad hoc members are voting members, and must be named within 30 days after receiving notice of an application.  The ad hoc OPSB members must be either a resident or another elected official from the respective political subdivision.  These ad hoc members are prohibited from voting on their own commissioners / trustees boards as to local legislation to intervene on the state proceeding.  These ad hoc members may engage in ex parte communications with any party in the case.
• The bill applies its provisions to “material amendments” to an existing facility, which is defined as changes to a facility’s generation type, increased nameplate capacity, modified boundaries in most cases, or increased number or height of wind turbines.
• Applies current law to economically significant or large wind farms that have incomplete applications pending with the Siting Board for up to 30 days after this bill’s effective date.

A Bricker-authored article was published as this bill was being delivered to Governor DeWine for his signature, available at the following link: https://www.bricker.com/resource-center/solar/publications/ohio-general-assembly-passes-sb-52-changes-to-wind-and-solar-siting-requirements

SB 57 EXEMPT CERTAIN HOUSING FROM PROPERTY TAXATION (Hackett R., Antonio N.) Introduced on February 9, 2021, this bill modifies the law regarding property tax exemptions and procedures and to authorize COVID-19-related property tax valuation complaints.

Of particular note to economic developers, the bill includes language regarding TIF annual service payments in lieu of taxes (i.e., PILOTs), namely: a change to R.C. 5709.91 to render minimum service payments by developers as covenants running with the land (and therefore enforceable against subsequent owners), to be recorded with the county recorder, in those TIF projects in which developers agree to make minimum PILOTs under the terms of their development agreements.

The Senate unanimously passed the measure on February 24, 2021.  And on March 25, following changes to the bill in the House the House likewise unanimously passed the bill and sent it back to the Senate.  On April 21, the Senate unanimously concurred with the House’s changes to the measure, and Governor DeWine signed the measure into law on April 27, 2021 (to be effective 90 days hence).

SB 61 PLANNED COMMUNITIES (Blessing, L., Antonio, N.) Introduced on February 17, 2021, this bill concerns condominiums and planned community properties and seeks to make changes to the New Community Law (R.C. Chapter 349).

This measure had its third hearing on June 22 in the Senate Local Government & Elections Committee.

SB 83 BROWNFIELD SITES (Williams, S., Rulli, M.) Introduced on February 23, 2021, this bill seeks to require OEPA to conduct a study to determine where brownfield sites are located in Ohio and to make an appropriation.  Specifically, the measure appropriates $150,000 from State GRF for an OEPA study of brownfield sites, with support from universities, to fill in the gaps in the current inventory program (which relies on voluntary reporting).  The bill’s deadline for OEPA would be January 1, 2023.

The sponsors estimated there are approximately 9,000 such brownfield sites in existence in Ohio, but there is no single complete listing.

On May 19, the bill was passed unanimously by the Senate.

On June 15, 2021, the bill had its first hearing in the House Agriculture & Conservation Committee.  During sponsor testimony, Sen. Sandra Williams (D-Cleveland) noted the $150,000 appropriation amount for the study is not enough to cover its cost; she stated an amendment to the bill has been drafted (but not yet shared) to appropriate $1M to the effort.

On June 23, the bill had its second hearing before the House committee.  Proponent testimony noted this funded study would create a snapshot-in-time view of the brownfields in Ohio as of its authorship.  As of now, there is no centralized source of the data; OEPA maintains a list of such properties, but it relies on voluntary disclosure, which is incomplete.

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

This measure had its first hearing on March 16 in the Senate Agriculture & Natural Resources Committee, during which joint sponsor testimony from Sen. Michael Rulli (R-Salem) and Sen. Sandra Williams (D-Cleveland).  Outlining their bill, the sponsors noted this measure would re-fund the Clean Ohio Revitalization Fund for cleanup of the sites identified under SB 83 (above), by directing excess liquor profits received from JobsOhio and pledging tem for Clean Ohio bonds.  Sponsors noted during the period 2002 through 2013, CORF provided $400MM in grant assistance for brownfield site redevelopment.

During the bill’s second hearing on March 23, support for the measure was expressed by the Greater Ohio Policy Center, the Ohio Land Bank Association, and the Ohio Chamber of Commerce.

SB 97 MUNICIPAL TAXES (Roegner, K.) Introduced on February 25, 2021, this bill seeks to modify municipal income tax employer withholding rules for COVID-19-related work-from-home employees.  Note the similar bill in the lower chamber (HB 157).  This bill had its first hearing in the Senate Ways & Means Committee on May 12.

SB 98 TAX EXEMPTION (Antani, N.) Introduced on February 24, 2021, this measure seeks to exempt from sales and use tax things used primarily to move completed manufactured products or general merchandise.

SB 108 BUSINESS GRANTS (Huffman, S., Romanchuk, M.) Introduced on March 2, 2021, this bill would provide $100MM in grants to bars and restaurants and $25MM to the lodging industry and make such appropriations. Note the companion HB 169 in the lower chamber.

On March 17, the Senate unanimously passed this spending proposal; the House Economic & Workforce Committee referred the bill in late April to the House Finance Committee, the latter of which reported out the measure on May 5.  Later that same day, the House passed the bill on a 93-1 vote (the Senate concurred unanimously), and the bill was signed into law by the Governor on May 17, 2021.

SB 109 GRANT PROGRAM (Manning, N., Rulli, M.) Introduced on March 2, 2021, this bill would provide $300MM in grants to small businesses, child care providers, and indoor entertainment venues and make such appropriations. Note the companion HB 168 in the lower chamber, which was signed into law as a completely rewritten measure. On March 16, at its second hearing, this bill was reported out of the Senate Finance Committee and on March 17, the Senate unanimously passed this spending proposal; the House Economic & Workforce Committee referred the bill in late April to the House Finance Committee.  In turn, the House Finance Committee changed the bill: for entertainment venue ($20MM/SFY 2021) and new business ($10MM/SFY 2021) grant programs administered by ODOD, the source of funding replaced the General Revenue Fund with federal the State’s Coronavirus Relief Fund.

The bill includes $150MM to the ODOD to provide grants to eligible small businesses which did not receive COVID-19 relief funding in 2020.

The Committee reported out the measure on May 5.  Later that same day, the House passed the bill on a 89-2 vote (the Senate concurred unanimously), and the bill was signed into law by the Governor on May 17, 2021.

SB 111 LOCAL FISCAL RECOVERY (Blessing, L., Brenner, A.)  Introduced on March 2, 2021, this bill originally sought to provide funding to schools in response to the COVID-19 pandemic.  In its original form, the bill passed the Senate by unanimous vote on March 24.  Those provisions were enacted into law via its companion HB 170.

On June 22, the House Finance Committee used this measure as the vehicle to appropriate $422MM of ARPA Local Fiscal Recovery Funds, representing the first slug received in late May by the State from the U.S. Treasury.  The appropriations are to distribute federal stimulus to nonentitlement units of local government (NEUs), or those non-metro cities with less than 50,000 population which did not receive Local Fiscal Recovery Funds directly from the U.S. Treasury (compare: counties and metro cities).

Importantly, the Committee included townships as NEUs in its appropriations of Local Fiscal Recovery Funds.

The Local Fiscal Recovery Funds will be distributed via Ohio OBM to non-metro cities, incorporated villages and townships based on population.

(In late May, the U.S Treasury instructed those states with “minor civil divisions,” or townships in Ohio’s instance, to undertake a facts-and-circumstances test to determine whether such entities have the legal and operational capacity to stand as NEUs in accepting Local Fiscal Recovery Fund allocations and provide a broad enough range of services that would constitute eligible uses of such funds.   Bricker had expected the DeWine Administration, through the Ohio OBM, to make such a factual determination; with this measure, the Ohio General Assembly legislatively determined that townships are eligible to receive ARPA stimulus funding.)

The Committee accepted the re-written measure, with the House passing the bill on June 24 by a 60-34 vote (with a last-minute floor amendment to prohibit public and private entities from requiring COVID-19 vaccinations).  Note the provisions of this rewritten measure were inserted into HB 168, which has been signed into law.

SB 112 TAX FORECLOSURES (Dolan, M.) Introduced on March 2, 2021, this bill seeks to make changes to the law relating to tax foreclosures and county land reutilization corporations. This measure is a re-introduction of the county land bank law changes proposed in August 2020 under companion bills in the previous Ohio General Assembly (HB 755 and SB 356).

Note the companion HB 241 in the lower chamber.

As was the case with the previously introduced bills, SB 112 seeks to make large-scale changes to county land banking law (R.C. Chapter 5722) and the law relating to tax foreclosures (R.C. Chapter 323). This measure was written in coordination with the Cuyahoga County Land Bank and other land bank leaders in Ohio.

During sponsor testimony on March 16 in the Senate Local Government & Elections Committee, Sen. Matt Dolan (R-Chagrin Falls) described his bill as a modernization of land banking in Ohio.  Land banking statutes in Ohio were last updated in 2015 by removing population requirements first put in place in 2009, thus making all counties eligible to form county land banks.  At present, 59 counties have established land banks across Ohio.

Via written testimony, the Greater Ohio Policy Center stated SB 112 seeks to balance county auditors’ interests across large and small population counties.  Specifically, SB 112 requires county auditors to conduct sales of properties from their Forfeited Lands List at least 1X/year, but county auditors would be allowed to exclude certain properties from those sales: “Where a municipal or county land reutilization corporation requests an auditor to exclude a property from a forfeiture sale, SB 112 allows the auditor to so withhold the property, but with a limitation that requires exposure to sale at least once every three years.”

The Committee also received proponent testimony from the Montgomery County Land Bank, the Butler County Land Bank, the Richland County Land Bank, and the Ohio Land Bank Association.

The measure had its second hearing, for opponent testimony, on March 31.  No witnesses appeared, although Cuyahoga County Land Bank President & General Counsel Gus Frangos appeared to answer committee members’ general questions.

SB 144 CONSUMER PROTECTIONS (Rulli, M., Williams, S.)  Introduced on March 23, this bill would enact the Consumer Protection Call Center Act as to notices required by employers relocating a call center to a foreign country and their eligibility to receive state grants, loans, and other benefits.

SB 152 TASK FORCE ESTABLISHMENT (Hoagland, F.)  Introduced on April 6, 2021, this bill would establish the Fraud, Waste, and Abuse Task Force in the office of the Attorney General.  This 10-person office would investigate instances of fraud by entities applying for public funds, including grants.

SB 166 VOCATIONAL SCHOOLS-COMMUNITY REINVESTMENT AREAS (Reineke, W.)  Introduced on April 21, 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 lower chamber (HB 303).

This measure unanimously passed the Senate on June 16, 2021; it now proceeds to the House.

SB 172 MUNICIPAL CORPORATION (Schaffer, T.)  Introduced on May 5, 2021, this bill would require municipal corporations with more than $100 million in annual income tax collections to provide a tax credit to nonresident taxpayers.

SB 212 FORECLOSURES (Hackett, B.)  Introduced on July 27, 2021, this bill seeks to make procedural changes to real property foreclosures under R.C. Chapter 2329 (i.e., judicial sales, sheriffs’ sales, etc.).