Florida Senate - 2015                              CS for SB 896
       
       
        
       By the Committee on Community Affairs; and Senator Brandes
       
       
       
       
       
       578-02722-15                                           2015896c1
    1                        A bill to be entitled                      
    2         An act relating to the location of utilities; amending
    3         s. 125.42, F.S.; authorizing the board of county
    4         commissioners to grant a license to work on or operate
    5         communications services within the right-of-way limits
    6         of certain county or public highways or roads;
    7         conforming a cross-reference; amending s. 337.401,
    8         F.S.; authorizing the Department of Transportation and
    9         certain local governmental entities to prescribe and
   10         enforce rules or regulations regarding placing and
   11         maintaining specified structures within the right-of
   12         way limits of roads or publicly owned rail corridors
   13         under their respective jurisdictions; prohibiting a
   14         municipality or county from requiring a utility to
   15         provide proprietary maps of facilities under certain
   16         circumstances; prohibiting a municipality or county
   17         from requiring a provider of communications services
   18         to provide proprietary maps of facilities under
   19         certain circumstances; amending s. 337.403, F.S.;
   20         requiring a utility owner, under certain
   21         circumstances, to initiate at its own expense the work
   22         necessary to alleviate an interference to a public
   23         road or publicly owned rail corridor which is caused
   24         by a utility if it is placed within the right-of-way
   25         limits of the public road or publicly owned rail
   26         corridor; requiring an authority or an entity other
   27         than the authority to bear the costs of relocating a
   28         utility in certain circumstances; requiring the
   29         authority to bear the cost of the utility work
   30         necessary to eliminate an unreasonable interference if
   31         the utility is located within a certain utility
   32         easement; conforming a cross-reference; providing
   33         legislative findings; providing an effective date.
   34          
   35  Be It Enacted by the Legislature of the State of Florida:
   36  
   37         Section 1. Section 125.42, Florida Statutes, is amended to
   38  read:
   39         125.42 Water, sewage, gas, power, telephone, other utility,
   40  and television lines within the right-of-way limits of along
   41  county roads and highways.—
   42         (1) The board of county commissioners, with respect to
   43  property located without the corporate limits of any
   44  municipality, is authorized to grant a license to any person or
   45  private corporation to construct, maintain, repair, operate, and
   46  remove lines for the transmission of water, sewage, gas, power,
   47  telephone, other public utilities, and television, or other
   48  communications services under, on, over, across or within the
   49  right-of-way limits of and along any county highway or any
   50  public road or highway acquired by the county or public by
   51  purchase, gift, devise, dedication, or prescription. However,
   52  the board of county commissioners shall include in any
   53  instrument granting such license adequate provisions:
   54         (a) To prevent the creation of any obstructions or
   55  conditions which are or may become dangerous to the traveling
   56  public;
   57         (b) To require the licensee to repair any damage or injury
   58  to the road or highway by reason of the exercise of the
   59  privileges granted in any instrument creating such license and
   60  to repair the road or highway promptly, restoring it to a
   61  condition at least equal to that which existed immediately prior
   62  to the infliction of such damage or injury;
   63         (c) Whereby the licensee shall hold the board of county
   64  commissioners and members thereof harmless from the payment of
   65  any compensation or damages resulting from the exercise of the
   66  privileges granted in any instrument creating the license; and
   67         (d) As may be reasonably necessary, for the protection of
   68  the county and the public.
   69         (2) A license may be granted in perpetuity or for a term of
   70  years, subject, however, to termination by the licensor, in the
   71  event the road or highway is closed, abandoned, vacated,
   72  discontinued, or reconstructed.
   73         (3) The board of county commissioners is authorized to
   74  grant exclusive or nonexclusive licenses for the purposes stated
   75  herein for television.
   76         (4) This law is intended to provide an additional method
   77  for the granting of licenses and shall not be construed to
   78  repeal any law now in effect relating to the same subject.
   79         (5) In the event of widening, repair, or reconstruction of
   80  any such road, the licensee shall move or remove such water,
   81  sewage, gas, power, telephone, and other utility lines and
   82  television lines at no cost to the county should they be found
   83  by the county to be unreasonably interfering, except as provided
   84  in s. 337.403(1)(d)-(j) s. 337.403(1)(d)-(i).
   85         Section 2. Paragraph (a) of subsection (1), subsection (2),
   86  and paragraph (b) of subsection (3) of section 337.401, Florida
   87  Statutes, are amended to read:
   88         337.401 Use of right-of-way for utilities subject to
   89  regulation; permit; fees.—
   90         (1)(a) The department and local governmental entities,
   91  referred to in this section and in ss. 337.402, 337.403, and
   92  337.404 ss. 337.401-337.404 as the “authority,” that have
   93  jurisdiction and control of public roads or publicly owned rail
   94  corridors are authorized to prescribe and enforce reasonable
   95  rules or regulations with reference to the placing and
   96  maintaining along, across, or on, or within the right-of-way
   97  limits of any road or publicly owned rail corridors under their
   98  respective jurisdictions any electric transmission, telephone,
   99  telegraph, or other communications services lines; pole lines;
  100  poles; railways; ditches; sewers; water, heat, or gas mains;
  101  pipelines; fences; gasoline tanks and pumps; or other structures
  102  referred to in this section and in ss. 337.402, 337.403, and
  103  337.404 this section as the “utility.” The department may enter
  104  into a permit-delegation agreement with a governmental entity if
  105  issuance of a permit is based on requirements that the
  106  department finds will ensure the safety and integrity of
  107  facilities of the Department of Transportation; however, the
  108  permit-delegation agreement does not apply to facilities of
  109  electric utilities as defined in s. 366.02(2).
  110         (2) The authority may grant to any person who is a resident
  111  of this state, or to any corporation which is organized under
  112  the laws of this state or licensed to do business within this
  113  state, the use of a right-of-way for the utility in accordance
  114  with such rules or regulations as the authority may adopt. No
  115  utility shall be installed, located, or relocated unless
  116  authorized by a written permit issued by the authority. However,
  117  for public roads or publicly owned rail corridors under the
  118  jurisdiction of the department, a utility relocation schedule
  119  and relocation agreement may be executed in lieu of a written
  120  permit. The permit shall require the permitholder to be
  121  responsible for any damage resulting from the issuance of such
  122  permit. In exercising its authority over a utility under this
  123  section, a municipality or county may not require a utility to
  124  provide proprietary maps of facilities where such facilities
  125  have been previously subject to a permit from the authority. The
  126  authority may initiate injunctive proceedings as provided in s.
  127  120.69 to enforce provisions of this subsection or any rule or
  128  order issued or entered into pursuant thereto.
  129         (3)
  130         (b) Registration described in paragraph (a) does not
  131  establish a right to place or maintain, or priority for the
  132  placement or maintenance of, a communications facility in roads
  133  or rights-of-way of a municipality or county. Each municipality
  134  and county retains the authority to regulate and manage
  135  municipal and county roads or rights-of-way in exercising its
  136  police power. Any rules or regulations adopted by a municipality
  137  or county which govern the occupation of its roads or rights-of
  138  way by providers of communications services must be related to
  139  the placement or maintenance of facilities in such roads or
  140  rights-of-way, must be reasonable and nondiscriminatory, and may
  141  include only those matters necessary to manage the roads or
  142  rights-of-way of the municipality or county. In exercising its
  143  authority over providers of communications services under this
  144  section, a municipality or county may not require a provider of
  145  communications services to provide proprietary maps of
  146  facilities where such facilities have been previously subject to
  147  a permit from the authority.
  148         Section 3. Subsection (1) of section 337.403, Florida
  149  Statutes, is amended to read:
  150         337.403 Interference caused by utility; expenses.—
  151         (1) If a utility that is placed upon, under, over, or
  152  within the right-of-way limits of along any public road or
  153  publicly owned rail corridor is found by the authority to be
  154  unreasonably interfering in any way with the convenient, safe,
  155  or continuous use, or the maintenance, improvement, extension,
  156  or expansion, of such public road or publicly owned rail
  157  corridor, the utility owner shall, upon 30 days’ written notice
  158  to the utility or its agent by the authority, initiate the work
  159  necessary to alleviate the interference at its own expense
  160  except as provided in paragraphs (a)-(j) (a)-(i). The work must
  161  be completed within such reasonable time as stated in the notice
  162  or such time as agreed to by the authority and the utility
  163  owner. If an authority requires the relocation of a utility for
  164  purposes not described in this subsection, the authority shall
  165  bear the cost of relocating the utility. If the relocation is
  166  required as a condition or result of a project by an entity
  167  other than an authority, the entity other than the authority
  168  shall bear the costs of relocating the utility.
  169         (a) If the relocation of utility facilities, as referred to
  170  in s. 111 of the Federal-Aid Highway Act of 1956, Pub. L. No.
  171  84-627, is necessitated by the construction of a project on the
  172  federal-aid interstate system, including extensions thereof
  173  within urban areas, and the cost of the project is eligible and
  174  approved for reimbursement by the Federal Government to the
  175  extent of 90 percent or more under the Federal Aid Highway Act,
  176  or any amendment thereof, then in that event the utility owning
  177  or operating such facilities shall perform any necessary work
  178  upon notice from the department, and the state shall pay the
  179  entire expense properly attributable to such work after
  180  deducting therefrom any increase in the value of a new facility
  181  and any salvage value derived from an old facility.
  182         (b) When a joint agreement between the department and the
  183  utility is executed for utility work to be accomplished as part
  184  of a contract for construction of a transportation facility, the
  185  department may participate in those utility work costs that
  186  exceed the department’s official estimate of the cost of the
  187  work by more than 10 percent. The amount of such participation
  188  is limited to the difference between the official estimate of
  189  all the work in the joint agreement plus 10 percent and the
  190  amount awarded for this work in the construction contract for
  191  such work. The department may not participate in any utility
  192  work costs that occur as a result of changes or additions during
  193  the course of the contract.
  194         (c) When an agreement between the department and utility is
  195  executed for utility work to be accomplished in advance of a
  196  contract for construction of a transportation facility, the
  197  department may participate in the cost of clearing and grubbing
  198  necessary to perform such work.
  199         (d) If the utility facility was initially installed to
  200  exclusively serve the authority or its tenants, or both, the
  201  authority shall bear the costs of the utility work. However, the
  202  authority is not responsible for the cost of utility work
  203  related to any subsequent additions to that facility for the
  204  purpose of serving others. For a county or municipality, if such
  205  utility facility was installed in the right-of-way as a means to
  206  serve a county or municipal facility on a parcel of property
  207  adjacent to the right-of-way and if the intended use of the
  208  county or municipal facility is for a use other than
  209  transportation purposes, the obligation of the county or
  210  municipality to bear the costs of the utility work shall extend
  211  only to utility work on the parcel of property on which the
  212  facility of the county or municipality originally served by the
  213  utility facility is located.
  214         (e) If, under an agreement between a utility and the
  215  authority entered into after July 1, 2009, the utility conveys,
  216  subordinates, or relinquishes a compensable property right to
  217  the authority for the purpose of accommodating the acquisition
  218  or use of the right-of-way by the authority, without the
  219  agreement expressly addressing future responsibility for the
  220  cost of necessary utility work, the authority shall bear the
  221  cost of removal or relocation. This paragraph does not impair or
  222  restrict, and may not be used to interpret, the terms of any
  223  such agreement entered into before July 1, 2009.
  224         (f) If the utility is an electric facility being relocated
  225  underground in order to enhance vehicular, bicycle, and
  226  pedestrian safety and in which ownership of the electric
  227  facility to be placed underground has been transferred from a
  228  private to a public utility within the past 5 years, the
  229  department shall incur all costs of the necessary utility work.
  230         (g) An authority may bear the costs of utility work
  231  required to eliminate an unreasonable interference when the
  232  utility is not able to establish that it has a compensable
  233  property right in the particular property where the utility is
  234  located if:
  235         1. The utility was physically located on the particular
  236  property before the authority acquired rights in the property;
  237         2. The utility demonstrates that it has a compensable
  238  property right in adjacent properties along the alignment of the
  239  utility or, after due diligence, certifies that the utility does
  240  not have evidence to prove or disprove that it has a compensable
  241  property right in the particular property where the utility is
  242  located; and
  243         3. The information available to the authority does not
  244  establish the relative priorities of the authority’s and the
  245  utility’s interests in the particular property.
  246         (h) If a municipally owned utility or county-owned utility
  247  is located in a rural area of critical economic concern, as
  248  defined in s. 288.0656(2), and the department determines that
  249  the utility is unable, and will not be able within the next 10
  250  years, to pay for the cost of utility work necessitated by a
  251  department project on the State Highway System, the department
  252  may pay, in whole or in part, the cost of such utility work
  253  performed by the department or its contractor.
  254         (i) If the relocation of utility facilities is necessitated
  255  by the construction of a commuter rail service project or an
  256  intercity passenger rail service project and the cost of the
  257  project is eligible and approved for reimbursement by the
  258  Federal Government, then in that event the utility owning or
  259  operating such facilities located by permit on a department
  260  owned rail corridor shall perform any necessary utility
  261  relocation work upon notice from the department, and the
  262  department shall pay the expense properly attributable to such
  263  utility relocation work in the same proportion as federal funds
  264  are expended on the commuter rail service project or an
  265  intercity passenger rail service project after deducting
  266  therefrom any increase in the value of a new facility and any
  267  salvage value derived from an old facility. In no event shall
  268  the state be required to use state dollars for such utility
  269  relocation work. This paragraph does not apply to any phase of
  270  the Central Florida Commuter Rail project, known as SunRail.
  271         (j) If a utility is located within an existing and valid
  272  utility easement granted by recorded plat, regardless of whether
  273  such land was subsequently acquired by the authority by
  274  dedication, transfer of fee, or otherwise, the authority shall
  275  bear the cost of the utility work required to eliminate an
  276  unreasonable interference.
  277         Section 4. The Legislature finds that a proper and
  278  legitimate state purpose is served by clarifying a utility’s
  279  responsibility for relocating its facilities within the right
  280  of-way or within a utility easement granted by recorded plat.
  281  Therefore, the Legislature determines and declares that this act
  282  fulfills an important state interest.
  283         Section 5. This act shall take effect upon becoming a law.
  284