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