Florida Senate - 2016                                     SB 416
       
       
        
       By Senator Flores
       
       
       
       
       
       37-00427A-16                                           2016416__
    1                        A bill to be entitled                      
    2         An act relating to the location of utilities; amending
    3         s. 125.42, F.S.; revising the circumstances under
    4         which a board of county commissioners is authorized to
    5         grant to a person or private corporation a license for
    6         specified projects related to lines for the
    7         transmission of certain public utilities and
    8         communication services; conforming a cross-reference;
    9         amending s. 337.401, F.S.; authorizing the Department
   10         of Transportation and certain local governmental
   11         entities to prescribe and enforce rules or regulations
   12         regarding the placement and maintenance of specified
   13         structures and lines within the right-of-way limits of
   14         roads or publicly owned rail corridors under their
   15         respective jurisdictions; prohibiting a municipality
   16         or county from requiring a utility or a provider of
   17         communications services to provide proprietary maps of
   18         previously permitted facilities; amending s. 337.403,
   19         F.S.; specifying that a utility located within certain
   20         right-of-way limits must initiate and bear the cost
   21         necessary to alleviate any interference to the use of
   22         certain public roads or rail corridors under certain
   23         circumstances; conforming a cross-reference; requiring
   24         an authority or an entity other than the authority to
   25         bear the cost of relocating a utility under certain
   26         circumstances; providing applicability; requiring the
   27         authority under certain circumstances to pay the
   28         entire expense attributable to relocating a utility
   29         after certain deductions; requiring the authority to
   30         bear the cost of the utility work necessary to
   31         eliminate an unreasonable interference if the utility
   32         is lawfully located within a certain utility easement;
   33         providing findings of an important state interest;
   34         providing an effective date.
   35          
   36  Be It Enacted by the Legislature of the State of Florida:
   37  
   38         Section 1. Section 125.42, Florida Statutes, is amended to
   39  read:
   40         125.42 Water, sewage, gas, power, telephone, other utility,
   41  and television lines within the right-of-way limits of along
   42  county roads and highways.—
   43         (1) The board of county commissioners, with respect to
   44  property located without the corporate limits of any
   45  municipality, is authorized to grant a license to any person or
   46  private corporation to construct, maintain, repair, operate, and
   47  remove lines for the transmission of water, sewage, gas, power,
   48  telephone, other public utilities, and television, or other
   49  communications services as defined in s. 202.11(1) under, on,
   50  over, across, or within the right-of-way limits of and along any
   51  county highway or any public road or highway acquired by the
   52  county or public by purchase, gift, devise, dedication, or
   53  prescription. However, the board of county commissioners shall
   54  include in any instrument granting such license adequate
   55  provisions:
   56         (a) To prevent the creation of any obstructions or
   57  conditions which are or may become dangerous to the traveling
   58  public;
   59         (b) To require the licensee to repair any damage or injury
   60  to the road or highway by reason of the exercise of the
   61  privileges granted in any instrument creating such license and
   62  to repair the road or highway promptly, restoring it to a
   63  condition at least equal to that which existed immediately prior
   64  to the infliction of such damage or injury;
   65         (c) Whereby the licensee shall hold the board of county
   66  commissioners and members thereof harmless from the payment of
   67  any compensation or damages resulting from the exercise of the
   68  privileges granted in any instrument creating the license; and
   69         (d) As may be reasonably necessary, for the protection of
   70  the county and the public.
   71         (2) A license may be granted in perpetuity or for a term of
   72  years, subject, however, to termination by the licensor, in the
   73  event the road or highway is closed, abandoned, vacated,
   74  discontinued, or reconstructed.
   75         (3) The board of county commissioners is authorized to
   76  grant exclusive or nonexclusive licenses for the purposes stated
   77  herein for television.
   78         (4) This law is intended to provide an additional method
   79  for the granting of licenses and shall not be construed to
   80  repeal any law now in effect relating to the same subject.
   81         (5) In the event of widening, repair, or reconstruction of
   82  any such road, the licensee shall move or remove such water,
   83  sewage, gas, power, telephone, and other utility lines and
   84  television lines at no cost to the county should they be found
   85  by the county to be unreasonably interfering, except as provided
   86  in s. 337.403(1)(d)-(j) s. 337.403(1)(d)-(i).
   87         Section 2. Paragraph (a) of subsection (1), subsection (2),
   88  and paragraph (b) of subsection (3) of section 337.401, Florida
   89  Statutes, are amended to read:
   90         337.401 Use of right-of-way for utilities subject to
   91  regulation; permit; fees.—
   92         (1)(a) The department and local governmental entities,
   93  referred to in this section and in ss. 337.402, 337.403, and
   94  337.404 ss. 337.401-337.404 as the “authority,” which that have
   95  jurisdiction and control of public roads or publicly owned rail
   96  corridors are authorized to prescribe and enforce reasonable
   97  rules or regulations with reference to the placing and
   98  maintaining along, across, or on, or within the right-of-way
   99  limits of any road or publicly owned rail corridors under their
  100  respective jurisdictions any electric transmission, telephone,
  101  telegraph, or other communications services lines; pole lines;
  102  poles; railways; ditches; sewers; water, heat, or gas mains;
  103  pipelines; fences; gasoline tanks and pumps; or other structures
  104  referred to in this section and in ss. 337.402, 337.403, and
  105  337.404 this section as the “utility.” The department may enter
  106  into a permit-delegation agreement with a governmental entity if
  107  issuance of a permit is based on requirements that the
  108  department finds will ensure the safety and integrity of
  109  facilities of the Department of Transportation; however, the
  110  permit-delegation agreement does not apply to facilities of
  111  electric utilities as defined in s. 366.02(2).
  112         (2) The authority may grant to any person who is a resident
  113  of this state, or to any corporation which is organized under
  114  the laws of this state or licensed to do business within this
  115  state, the use of a right-of-way for the utility in accordance
  116  with such rules or regulations as the authority may adopt. No
  117  utility shall be installed, located, or relocated unless
  118  authorized by a written permit issued by the authority. However,
  119  for public roads or publicly owned rail corridors under the
  120  jurisdiction of the department, a utility relocation schedule
  121  and relocation agreement may be executed in lieu of a written
  122  permit. The permit shall require the permitholder to be
  123  responsible for any damage resulting from the issuance of such
  124  permit. In exercising its authority over a utility under this
  125  section, a municipality or county may not require a utility to
  126  provide proprietary maps of facilities that were previously
  127  subject to a permit from the authority. The authority may
  128  initiate injunctive proceedings as provided in s. 120.69 to
  129  enforce provisions of this subsection or any rule or order
  130  issued or entered into pursuant thereto.
  131         (3)
  132         (b) Registration described in paragraph (a) does not
  133  establish a right to place or maintain, or priority for the
  134  placement or maintenance of, a communications facility in roads
  135  or rights-of-way of a municipality or county. Each municipality
  136  and county retains the authority to regulate and manage
  137  municipal and county roads or rights-of-way in exercising its
  138  police power. Any rules or regulations adopted by a municipality
  139  or county which govern the occupation of its roads or rights-of
  140  way by providers of communications services must be related to
  141  the placement or maintenance of facilities in such roads or
  142  rights-of-way, must be reasonable and nondiscriminatory, and may
  143  include only those matters necessary to manage the roads or
  144  rights-of-way of the municipality or county. In exercising its
  145  authority over providers of communications services under this
  146  section, a municipality or county may not require a provider of
  147  communications services to provide proprietary maps of
  148  facilities that were previously subject to a permit from the
  149  authority.
  150         Section 3. Subsection (1) of section 337.403, Florida
  151  Statutes, is amended to read:
  152         337.403 Interference caused by utility; expenses.—
  153         (1) If a utility that is placed upon, under, over, or
  154  within the right-of-way limits of along any public road or
  155  publicly owned rail corridor is found by the authority to be
  156  unreasonably interfering in any way with the convenient, safe,
  157  or continuous use, or the maintenance, improvement, extension,
  158  or expansion, of such public road or publicly owned rail
  159  corridor, the utility owner shall, upon 30 days’ written notice
  160  to the utility or its agent by the authority, initiate the work
  161  necessary to alleviate the interference at its own expense
  162  except as provided in paragraphs (a)-(j) (a)-(i). The work must
  163  be completed within such reasonable time as stated in the notice
  164  or such time as agreed to by the authority and the utility
  165  owner. If the authority requires the relocation of a utility for
  166  purposes not described in this subsection and the utility owner
  167  is authorized by state or common law or state or local agreement
  168  to place facilities in the public rights-of-way, the authority
  169  must bear the cost of relocating the utility. If relocation is
  170  required as a condition or result of a project by an entity
  171  other than an authority, the entity other than the authority
  172  must bear the cost of relocating the utility except to the
  173  extent that the relocation would otherwise be required in
  174  connection with a transportation improvement identified in the
  175  authority’s capital improvement schedule and scheduled for
  176  construction within 5 years. This subsection does not impair any
  177  right of the holder of a private railroad right-of-way or
  178  obligate the holder of such private railroad right-of-way to
  179  bear the relocation cost in such railroad right-of-way, subject
  180  to any agreement between the holder of the private railroad
  181  right-of-way and a utility that otherwise allocates such
  182  relocation cost. This subsection also does not affect a lawful
  183  permit or contract entered into between an authority and a
  184  utility before October 1, 2015. To the extent that an authority
  185  is required by this subsection to bear the cost of relocating a
  186  utility, the authority shall pay the entire expense properly
  187  attributable to such work after deducting any increase in the
  188  value of a new facility and any salvage value derived from an
  189  old facility.
  190         (a) If the relocation of utility facilities, as referred to
  191  in s. 111 of the Federal-Aid Highway Act of 1956, Pub. L. No.
  192  84-627, is necessitated by the construction of a project on the
  193  federal-aid interstate system, including extensions thereof
  194  within urban areas, and the cost of the project is eligible and
  195  approved for reimbursement by the Federal Government to the
  196  extent of 90 percent or more under the Federal Aid Highway Act,
  197  or any amendment thereof, then in that event the utility owning
  198  or operating such facilities shall perform any necessary work
  199  upon notice from the department, and the state shall pay the
  200  entire expense properly attributable to such work after
  201  deducting therefrom any increase in the value of a new facility
  202  and any salvage value derived from an old facility.
  203         (b) When a joint agreement between the department and the
  204  utility is executed for utility work to be accomplished as part
  205  of a contract for construction of a transportation facility, the
  206  department may participate in those utility work costs that
  207  exceed the department’s official estimate of the cost of the
  208  work by more than 10 percent. The amount of such participation
  209  is limited to the difference between the official estimate of
  210  all the work in the joint agreement plus 10 percent and the
  211  amount awarded for this work in the construction contract for
  212  such work. The department may not participate in any utility
  213  work costs that occur as a result of changes or additions during
  214  the course of the contract.
  215         (c) When an agreement between the department and utility is
  216  executed for utility work to be accomplished in advance of a
  217  contract for construction of a transportation facility, the
  218  department may participate in the cost of clearing and grubbing
  219  necessary to perform such work.
  220         (d) If the utility facility was initially installed to
  221  exclusively serve the authority or its tenants, or both, the
  222  authority shall bear the costs of the utility work. However, the
  223  authority is not responsible for the cost of utility work
  224  related to any subsequent additions to that facility for the
  225  purpose of serving others. For a county or municipality, if such
  226  utility facility was installed in the right-of-way as a means to
  227  serve a county or municipal facility on a parcel of property
  228  adjacent to the right-of-way and if the intended use of the
  229  county or municipal facility is for a use other than
  230  transportation purposes, the obligation of the county or
  231  municipality to bear the costs of the utility work shall extend
  232  only to utility work on the parcel of property on which the
  233  facility of the county or municipality originally served by the
  234  utility facility is located.
  235         (e) If, under an agreement between a utility and the
  236  authority entered into after July 1, 2009, the utility conveys,
  237  subordinates, or relinquishes a compensable property right to
  238  the authority for the purpose of accommodating the acquisition
  239  or use of the right-of-way by the authority, without the
  240  agreement expressly addressing future responsibility for the
  241  cost of necessary utility work, the authority shall bear the
  242  cost of removal or relocation. This paragraph does not impair or
  243  restrict, and may not be used to interpret, the terms of any
  244  such agreement entered into before July 1, 2009.
  245         (f) If the utility is an electric facility being relocated
  246  underground in order to enhance vehicular, bicycle, and
  247  pedestrian safety and in which ownership of the electric
  248  facility to be placed underground has been transferred from a
  249  private to a public utility within the past 5 years, the
  250  department shall incur all costs of the necessary utility work.
  251         (g) An authority may bear the costs of utility work
  252  required to eliminate an unreasonable interference when the
  253  utility is not able to establish that it has a compensable
  254  property right in the particular property where the utility is
  255  located if:
  256         1. The utility was physically located on the particular
  257  property before the authority acquired rights in the property;
  258         2. The utility demonstrates that it has a compensable
  259  property right in adjacent properties along the alignment of the
  260  utility or, after due diligence, certifies that the utility does
  261  not have evidence to prove or disprove that it has a compensable
  262  property right in the particular property where the utility is
  263  located; and
  264         3. The information available to the authority does not
  265  establish the relative priorities of the authority’s and the
  266  utility’s interests in the particular property.
  267         (h) If a municipally owned utility or county-owned utility
  268  is located in a rural area of opportunity, as defined in s.
  269  288.0656(2), and the department determines that the utility is
  270  unable, and will not be able within the next 10 years, to pay
  271  for the cost of utility work necessitated by a department
  272  project on the State Highway System, the department may pay, in
  273  whole or in part, the cost of such utility work performed by the
  274  department or its contractor.
  275         (i) If the relocation of utility facilities is necessitated
  276  by the construction of a commuter rail service project or an
  277  intercity passenger rail service project and the cost of the
  278  project is eligible and approved for reimbursement by the
  279  Federal Government, then in that event the utility owning or
  280  operating such facilities located by permit on a department
  281  owned rail corridor shall perform any necessary utility
  282  relocation work upon notice from the department, and the
  283  department shall pay the expense properly attributable to such
  284  utility relocation work in the same proportion as federal funds
  285  are expended on the commuter rail service project or an
  286  intercity passenger rail service project after deducting
  287  therefrom any increase in the value of a new facility and any
  288  salvage value derived from an old facility. In no event shall
  289  the state be required to use state dollars for such utility
  290  relocation work. This paragraph does not apply to any phase of
  291  the Central Florida Commuter Rail project, known as SunRail.
  292         (j) If a utility is lawfully located within an existing and
  293  valid utility easement granted by recorded plat, regardless of
  294  whether such land was subsequently acquired by the authority by
  295  dedication, transfer of fee, or otherwise, the authority must
  296  bear the cost of the utility work required to eliminate an
  297  unreasonable interference.
  298         Section 4. The Legislature finds that a proper and
  299  legitimate state purpose is served by clarifying a utility’s
  300  responsibility for relocating its facilities within a right-of
  301  way or within a utility easement granted by recorded plat.
  302  Therefore, the Legislature determines and declares that this act
  303  fulfills an important state interest.
  304         Section 5. This act shall take effect upon becoming a law.