Florida Senate - 2015                       CS for CS for SB 896
       
       
        
       By the Committees on Transportation; and Community Affairs; and
       Senator Brandes
       
       
       
       
       596-03453-15                                           2015896c2
    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         specified communications services within the right-of
    6         way limits of certain county or public highways or
    7         roads; conforming a cross-reference; amending s.
    8         337.401, F.S.; authorizing the Department of
    9         Transportation and certain local governmental entities
   10         to prescribe and enforce rules or regulations
   11         regarding placing and maintaining specified structures
   12         within the right-of-way limits of roads or publicly
   13         owned rail corridors under their respective
   14         jurisdictions; prohibiting a municipality or county
   15         from requiring a utility to provide proprietary maps
   16         of facilities under certain circumstances; prohibiting
   17         a municipality or county from requiring a provider of
   18         communications services to provide proprietary maps of
   19         facilities under certain circumstances; amending s.
   20         337.403, F.S.; requiring a utility owner, under
   21         certain circumstances, to initiate at its own expense
   22         the work necessary to alleviate an interference to a
   23         public road, including directly associated drainage,
   24         or publicly owned rail corridor which is caused by the
   25         utility if the utility is placed within the right-of
   26         way limits of the public road or publicly owned rail
   27         corridor; conforming a cross-reference; requiring an
   28         authority or an entity other than the authority to
   29         bear the costs of relocating a utility in certain
   30         circumstances; providing applicability; requiring the
   31         authority to bear the cost of the utility work
   32         necessary to eliminate an unreasonable interference if
   33         the utility is lawfully located within a certain
   34         utility easement; providing legislative findings;
   35         providing an effective date.
   36          
   37  Be It Enacted by the Legislature of the State of Florida:
   38  
   39         Section 1. Section 125.42, Florida Statutes, is amended to
   40  read:
   41         125.42 Water, sewage, gas, power, telephone, other utility,
   42  and television lines within the right-of-way limits of along
   43  county roads and highways.—
   44         (1) The board of county commissioners, with respect to
   45  property located without the corporate limits of any
   46  municipality, is authorized to grant a license to any person or
   47  private corporation to construct, maintain, repair, operate, and
   48  remove lines for the transmission of water, sewage, gas, power,
   49  telephone, other public utilities, and television, or other
   50  communications services as defined in s. 202.11 under, on, over,
   51  across, or within the right-of-way limits of and along any
   52  county highway or any public road or highway acquired by the
   53  county or public by purchase, gift, devise, dedication, or
   54  prescription. However, the board of county commissioners shall
   55  include in any instrument granting such license adequate
   56  provisions:
   57         (a) To prevent the creation of any obstructions or
   58  conditions which are or may become dangerous to the traveling
   59  public;
   60         (b) To require the licensee to repair any damage or injury
   61  to the road or highway by reason of the exercise of the
   62  privileges granted in any instrument creating such license and
   63  to repair the road or highway promptly, restoring it to a
   64  condition at least equal to that which existed immediately prior
   65  to the infliction of such damage or injury;
   66         (c) Whereby the licensee shall hold the board of county
   67  commissioners and members thereof harmless from the payment of
   68  any compensation or damages resulting from the exercise of the
   69  privileges granted in any instrument creating the license; and
   70         (d) As may be reasonably necessary, for the protection of
   71  the county and the public.
   72         (2) A license may be granted in perpetuity or for a term of
   73  years, subject, however, to termination by the licensor, in the
   74  event the road or highway is closed, abandoned, vacated,
   75  discontinued, or reconstructed.
   76         (3) The board of county commissioners is authorized to
   77  grant exclusive or nonexclusive licenses for the purposes stated
   78  herein for television.
   79         (4) This law is intended to provide an additional method
   80  for the granting of licenses and shall not be construed to
   81  repeal any law now in effect relating to the same subject.
   82         (5) In the event of widening, repair, or reconstruction of
   83  any such road, the licensee shall move or remove such water,
   84  sewage, gas, power, telephone, and other utility lines and
   85  television lines at no cost to the county should they be found
   86  by the county to be unreasonably interfering, except as provided
   87  in s. 337.403(1)(d)-(j) s. 337.403(1)(d)-(i).
   88         Section 2. Paragraph (a) of subsection (1), subsection (2),
   89  and paragraph (b) of subsection (3) of section 337.401, Florida
   90  Statutes, are amended to read:
   91         337.401 Use of right-of-way for utilities subject to
   92  regulation; permit; fees.—
   93         (1)(a) The department and local governmental entities,
   94  referred to in this section and in ss. 337.402, 337.403, and
   95  337.404 ss. 337.401-337.404 as the “authority,” that have
   96  jurisdiction and control of public roads or publicly owned rail
   97  corridors are authorized to prescribe and enforce reasonable
   98  rules or regulations with reference to the placing and
   99  maintaining along, across, or on, or within the right-of-way
  100  limits of any road or publicly owned rail corridors under their
  101  respective jurisdictions any electric transmission, telephone,
  102  telegraph, or other communications services lines; pole lines;
  103  poles; railways; ditches; sewers; water, heat, or gas mains;
  104  pipelines; fences; gasoline tanks and pumps; or other structures
  105  referred to in this section and in ss. 337.402, 337.403, and
  106  337.404 this section as the “utility.” The department may enter
  107  into a permit-delegation agreement with a governmental entity if
  108  issuance of a permit is based on requirements that the
  109  department finds will ensure the safety and integrity of
  110  facilities of the Department of Transportation; however, the
  111  permit-delegation agreement does not apply to facilities of
  112  electric utilities as defined in s. 366.02(2).
  113         (2) The authority may grant to any person who is a resident
  114  of this state, or to any corporation which is organized under
  115  the laws of this state or licensed to do business within this
  116  state, the use of a right-of-way for the utility in accordance
  117  with such rules or regulations as the authority may adopt. No
  118  utility shall be installed, located, or relocated unless
  119  authorized by a written permit issued by the authority. However,
  120  for public roads or publicly owned rail corridors under the
  121  jurisdiction of the department, a utility relocation schedule
  122  and relocation agreement may be executed in lieu of a written
  123  permit. The permit shall require the permitholder to be
  124  responsible for any damage resulting from the issuance of such
  125  permit. In exercising its authority over a utility under this
  126  section, a municipality or county may not require a utility to
  127  provide proprietary maps of facilities where such facilities
  128  have been previously subject to a permit from the authority. The
  129  authority may initiate injunctive proceedings as provided in s.
  130  120.69 to enforce provisions of this subsection or any rule or
  131  order issued or entered into pursuant thereto.
  132         (3)
  133         (b) Registration described in paragraph (a) does not
  134  establish a right to place or maintain, or priority for the
  135  placement or maintenance of, a communications facility in roads
  136  or rights-of-way of a municipality or county. Each municipality
  137  and county retains the authority to regulate and manage
  138  municipal and county roads or rights-of-way in exercising its
  139  police power. Any rules or regulations adopted by a municipality
  140  or county which govern the occupation of its roads or rights-of
  141  way by providers of communications services must be related to
  142  the placement or maintenance of facilities in such roads or
  143  rights-of-way, must be reasonable and nondiscriminatory, and may
  144  include only those matters necessary to manage the roads or
  145  rights-of-way of the municipality or county. In exercising its
  146  authority over providers of communications services under this
  147  section, a municipality or county may not require a provider of
  148  communications services to provide proprietary maps of
  149  facilities where such facilities have been previously subject to
  150  a permit from the authority.
  151         Section 3. Subsection (1) of section 337.403, Florida
  152  Statutes, is amended to read:
  153         337.403 Interference caused by utility; expenses.—
  154         (1) If a utility that is placed upon, under, over, or
  155  within the right-of-way limits of along any public road or
  156  publicly owned rail corridor is found by the authority to be
  157  unreasonably interfering in any way with the convenient, safe,
  158  or continuous use, or the maintenance, improvement, extension,
  159  or expansion, of such public road, including directly associated
  160  drainage, or publicly owned rail corridor, the utility owner
  161  shall, upon 30 days’ written notice to the utility or its agent
  162  by the authority, initiate the work necessary to alleviate the
  163  interference at its own expense except as provided in paragraphs
  164  (a)-(j) (a)-(i). The work must be completed within such
  165  reasonable time as stated in the notice or such time as agreed
  166  to by the authority and the utility owner. If an authority
  167  requires the relocation of a utility for purposes not described
  168  in this subsection, the authority shall bear the cost of
  169  relocating the utility. If the relocation is required as a
  170  condition or result of a project by an entity other than an
  171  authority, the entity other than the authority shall bear the
  172  costs of relocating the utility. However, nothing in this
  173  subsection shall impair any rights of the holder of any private
  174  railroad right-of-way, including any rights in any agreement
  175  between the holder of the private railroad right-of-way and a
  176  utility that otherwise allocates such relocation cost.
  177         (a) If the relocation of utility facilities, as referred to
  178  in s. 111 of the Federal-Aid Highway Act of 1956, Pub. L. No.
  179  84-627, is necessitated by the construction of a project on the
  180  federal-aid interstate system, including extensions thereof
  181  within urban areas, and the cost of the project is eligible and
  182  approved for reimbursement by the Federal Government to the
  183  extent of 90 percent or more under the Federal Aid Highway Act,
  184  or any amendment thereof, then in that event the utility owning
  185  or operating such facilities shall perform any necessary work
  186  upon notice from the department, and the state shall pay the
  187  entire expense properly attributable to such work after
  188  deducting therefrom any increase in the value of a new facility
  189  and any salvage value derived from an old facility.
  190         (b) When a joint agreement between the department and the
  191  utility is executed for utility work to be accomplished as part
  192  of a contract for construction of a transportation facility, the
  193  department may participate in those utility work costs that
  194  exceed the department’s official estimate of the cost of the
  195  work by more than 10 percent. The amount of such participation
  196  is limited to the difference between the official estimate of
  197  all the work in the joint agreement plus 10 percent and the
  198  amount awarded for this work in the construction contract for
  199  such work. The department may not participate in any utility
  200  work costs that occur as a result of changes or additions during
  201  the course of the contract.
  202         (c) When an agreement between the department and utility is
  203  executed for utility work to be accomplished in advance of a
  204  contract for construction of a transportation facility, the
  205  department may participate in the cost of clearing and grubbing
  206  necessary to perform such work.
  207         (d) If the utility facility was initially installed to
  208  exclusively serve the authority or its tenants, or both, the
  209  authority shall bear the costs of the utility work. However, the
  210  authority is not responsible for the cost of utility work
  211  related to any subsequent additions to that facility for the
  212  purpose of serving others. For a county or municipality, if such
  213  utility facility was installed in the right-of-way as a means to
  214  serve a county or municipal facility on a parcel of property
  215  adjacent to the right-of-way and if the intended use of the
  216  county or municipal facility is for a use other than
  217  transportation purposes, the obligation of the county or
  218  municipality to bear the costs of the utility work shall extend
  219  only to utility work on the parcel of property on which the
  220  facility of the county or municipality originally served by the
  221  utility facility is located.
  222         (e) If, under an agreement between a utility and the
  223  authority entered into after July 1, 2009, the utility conveys,
  224  subordinates, or relinquishes a compensable property right to
  225  the authority for the purpose of accommodating the acquisition
  226  or use of the right-of-way by the authority, without the
  227  agreement expressly addressing future responsibility for the
  228  cost of necessary utility work, the authority shall bear the
  229  cost of removal or relocation. This paragraph does not impair or
  230  restrict, and may not be used to interpret, the terms of any
  231  such agreement entered into before July 1, 2009.
  232         (f) If the utility is an electric facility being relocated
  233  underground in order to enhance vehicular, bicycle, and
  234  pedestrian safety and in which ownership of the electric
  235  facility to be placed underground has been transferred from a
  236  private to a public utility within the past 5 years, the
  237  department shall incur all costs of the necessary utility work.
  238         (g) An authority may bear the costs of utility work
  239  required to eliminate an unreasonable interference when the
  240  utility is not able to establish that it has a compensable
  241  property right in the particular property where the utility is
  242  located if:
  243         1. The utility was physically located on the particular
  244  property before the authority acquired rights in the property;
  245         2. The utility demonstrates that it has a compensable
  246  property right in adjacent properties along the alignment of the
  247  utility or, after due diligence, certifies that the utility does
  248  not have evidence to prove or disprove that it has a compensable
  249  property right in the particular property where the utility is
  250  located; and
  251         3. The information available to the authority does not
  252  establish the relative priorities of the authority’s and the
  253  utility’s interests in the particular property.
  254         (h) If a municipally owned utility or county-owned utility
  255  is located in a rural area of critical economic concern, as
  256  defined in s. 288.0656(2), and the department determines that
  257  the utility is unable, and will not be able within the next 10
  258  years, to pay for the cost of utility work necessitated by a
  259  department project on the State Highway System, the department
  260  may pay, in whole or in part, the cost of such utility work
  261  performed by the department or its contractor.
  262         (i) If the relocation of utility facilities is necessitated
  263  by the construction of a commuter rail service project or an
  264  intercity passenger rail service project and the cost of the
  265  project is eligible and approved for reimbursement by the
  266  Federal Government, then in that event the utility owning or
  267  operating such facilities located by permit on a department
  268  owned rail corridor shall perform any necessary utility
  269  relocation work upon notice from the department, and the
  270  department shall pay the expense properly attributable to such
  271  utility relocation work in the same proportion as federal funds
  272  are expended on the commuter rail service project or an
  273  intercity passenger rail service project after deducting
  274  therefrom any increase in the value of a new facility and any
  275  salvage value derived from an old facility. In no event shall
  276  the state be required to use state dollars for such utility
  277  relocation work. This paragraph does not apply to any phase of
  278  the Central Florida Commuter Rail project, known as SunRail.
  279         (j) If a utility is lawfully located within an existing and
  280  valid utility easement granted by recorded plat, regardless of
  281  whether such land was subsequently acquired by the authority by
  282  dedication, transfer of fee, or otherwise, the authority shall
  283  bear the cost of the utility work required to eliminate an
  284  unreasonable interference.
  285         Section 4. The Legislature finds that a proper and
  286  legitimate state purpose is served by clarifying a utility’s
  287  responsibility for relocating its facilities within the right
  288  of-way or within a utility easement granted by recorded plat.
  289  Therefore, the Legislature determines and declares that this act
  290  fulfills an important state interest.
  291         Section 5. This act shall take effect upon becoming a law.
  292