From the Dayton Daily News

ENGLEWOOD — A divided state Supreme Court declined Wednesday, Aug. 26, to hear Englewood’s case that the street-lighting system owned by Miami Valley Lighting LLC should be declared a public utility.

The city wished to takeover the system, believing it could save taxpayers nearly $100,000 annually over what MVL, a wholly owned subsidiary of DPL Inc., charged.

A trial court judge, upheld in April by the 2nd District Court of Appeals, ruled MVL’s street lights are not a public utility. MVL provides street lighting systems throughout the Miami Valley. Had the city prevailed in its suit, the effect could have been millions of dollars in savings.

“We’ve taken it as far as we can,” Eric Smith, city manager, said. “The casket is closed. We’re going to bury this one.”

MVL asserted its property rights in opposition to the city’s takeover through eminent domain.

“We are pleased that three separate levels of judicial review have now affirmed that eminent domain cannot be used to take the assets of a private business,” said Lesley Sprigg, a DPL spokeswoman.

The city leases the lights from MVL for around $220,000 a year. A city analysis found it could run the system for $117,000 annually.

It was a case closely watched by municipalities throughout the Miami Valley and Ohio. If Englewood had been successful, other cities would likely have gone down the same path.

“Any prudent local government would look into it, especially in these economic times,” said John Weithofer, executive director of the Miami Valley Communications Council, which negotiates a number of contracts, including streetlights, for all or some of its eight member communities. There are 13 other affiliated communities that often adopt the negotiated contracts as their own.

Weithofer said earlier this year that the most recent four-year contract, which expires in 2010, costs the cities of Centerville, Germantown, Kettering, Miamisburg, Moraine, Oakwood and West Carrollton an estimated $5.7 million. He said a council survey found MVL’s price structure was higher than other Ohio utilities.

Smith said though the legal fight may be ended, the 2010 negotiations will benefit.

“The legal research we conducted will not go to waste. … It will be used in the future negotiations.”

MVL claimed its 1,212 street lights — about 80 percent of the lights in the Englewood — do not constitute a public utility. Nor is the system real property; it is MVL’s personal property that can be removed should the contract with the city lapse.

A city can appropriate real property through eminent domain, but not personal property.

The high court voted 5-2, with Chief Justice Thomas J. Moyer and Justice Paul E. Pfeifer dissenting, not to hear the appeal.