CHAPTER 297

FORMERLY

HOUSE BILL NO. 437

AN ACT TO AMEND TITLE 17 AND TITLE 29 OF THE DELAWARE CODE RELATING TO THE DEPARTMENT OF TRANSPORTATION.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE :

WHEREAS, the Department of Transportation, in the execution of its duties, is required routinely to negotiate agreements with public utility companies for the purpose of altering or relocating public utility facilities within or adjacent to the highways of the State; and

WHEREAS, existing legislation governing the acquisition of the interest of public utility companies and the altering or relocation of their facilities is both vague and cumbersome to apply, resulting in delays in the commencement and completion of urgent highway construction projects; and

WHEREAS, the General Assembly finds that the Department of Transportation has been unnecessarily hindered in the execution of its public duties by the lack of flexibility in its authority to negotiate alteration or relocation agreements with public utility companies; and

WHEREAS, the Department of Transportation’s Utilities Design Manual sets forth guidelines for determining the appropriate reimbursement for public utility facility alteration or relocation in certain circumstances, which guidelines may also be used to assist in the calculation of reimbursement for alterations or relocations authorized herein; and

WHEREAS, the cost of obtaining formal appraisals of small properties or minor portions of larger properties can often exceed the fair market value of the property to be acquired; and

WHEREAS, with this legislation, the General Assembly intends to create a more cooperative relationship between the Department of Transportation and the State's various public utilities through increased communication and coordination, including, but not limited to, quarterly meetings, field reviews, and the timely distribution of project information and schedules, so that highway improvements needed by the State and its citizens can be planned for and executed with greater dispatch and efficiency and in a manner that is financially fair to all parties;

NOW, THEREFORE,

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend §143, Title 17 of the Delaware Code by striking §143 in its entirety and by substituting in lieu thereof the following:

"§143. Expenses of alteration or relocation of facilities or structures of public utilities.

(a) As used in this section:

(1) 'facility' includes, but is not limited to, structures and appliances and their appurtenances, poles, wires, conductors, transformers, substations, manholes, vaults, valves, conduits, sewer pipes, gas mains, regulator stations, water pipes, water distribution facilities, and service lines;

(2) 'public utility' means a utility defined in 26 Del. C. §102(2) and (4).

(b) If required by reason of the construction, reconstruction, relocation, repair, or maintenance of a public highway, the Department of Transportation shall, at its sole expense, make any necessary alteration or relocation of the facilities owned and/or operated by a public utility of a municipality or of any governmental body or political subdivision of the State.

(c) The Department may enter into an agreement with a non-municipal or other non-governmental public utility to reimburse it for up to fifty percent (50%) of the cost of the public utility facility's alteration or relocation as part of a highway construction, reconstruction, relocation, repair, or maintenance project if:

(1) the existing public utility facility is located within a highway or public right-of-way by grant of franchise; and

(2) the alteration or relocation is necessitated by special circumstances, including, but not limited to:

(i) a major economic development project in which the public utility's cooperation is critical to accomplishing the project in a timely manner;

(ii) recovery from natural disasters such as storms or floods; or

(iii) compelling benefit to the traveling public.

(d) The determination of whether special circumstances exist under subsection (c)(2) of this section vests solely with the Secretary. The Secretary shall make written findings detailing the nature of the special circumstances and the costs and benefits to the State in altering or relocating a public utility facility. The determination of the Secretary is a public record. The Secretary shall forward a copy of the determination to the Public Service Commission for filing with the public records of the Commission.

(e) If construction specifications for the alteration or relocation of a non-municipal or other non-governmental public utility facility, authorized by the Department as part of a highway construction, reconstruction, relocation, repair, or maintenance project, require the use of unique materials or supplies, the Department may enter into an agreement with the public utility for the use of the unique materials or supplies in advance of the construction contract. If the public utility is required to store the unique materials or supplies for more than sixty (60) days prior to their incorporation into the construction work, the Department shall enter into an agreement with the public utility to reimburse the public utility for all or a portion of the actual cost incurred for the storage of the unique materials or supplies.

(f) If the Department determines that it is beneficial to enter into an agreement with a non-municipal or other non-governmental public utility for the alteration or relocation of its facilities in advance of the commencement of a highway construction, reconstruction, relocation, repair, or maintenance project, the agreement may include provisions for the Department to reimburse the public utility for increased expenses incurred as a result of the advanced move, including, but not limited to, expenses for the maintenance of traffic, tree and vegetation removal, grubbing, grading, test holes, and surveying.

(g) (1) The Department shall reimburse a non-municipal or other non-governmental public utility for the cost of altering or relocating its facility due to a highway construction, reconstruction, relocation, repair, or maintenance project under each of the following circumstances:

(i) the Department requires a second alteration or relocation of the same public utility facility within ten (10) years from the date of completion of the initial alteration or relocation;

(ii) the Department alters its plan of construction for the project at any time before its completion, in a manner that requires the public utility to alter or relocate its facility that has already been fully or partially altered or relocated in connection with the project;

(iii) the Department cancels or does not commence a highway construction, reconstruction, relocation, repair, or maintenance project within a period of two (2) years from the date of authorization;

(iv) the Department requests a temporary alteration or relocation of the public utility facility.

(2) The amount of reimbursement to be paid to a public utility under this subsection is the entire cost of alteration or relocation minus any increase in the value of the altered or new facility and any salvage value derived from the old facility.

(h) The Department and a non-municipal or other non-governmental public utility may agree to include in a construction contract between the Department and the Department’s contractor or subcontractor a provision to identify specific facility alteration or relocation construction items which will be performed by the Department's contractor or subcontractor instead of by the public utility. The construction items may include, but are not limited to, adjusting manholes and installing conduits, valve boxes, and concrete pads. As part of the agreement, the public utility must agree to reimburse the Department or the Department's contractor or subcontractor for the construction items.

(i) The Secretary may enter into an agreement with a non-municipal or other non-governmental public utility that owns or maintains poles in public rights-of-way to attach Department road signs to the poles under such terms and conditions as the public utility considers necessary in order to provide for the safety of the public utility's employees and contractors and to avoid interference with the public utility's operations. The authority given to the Department in this subsection does not alter the public utility’s right to refuse access to its poles if it believes that such access would create a safety hazard or interfere with its operations. If the Department attaches a sign to a pole owned or maintained by a public utility, a person alleging injury to person or property as a result of the attachment has no cause of action against the public utility.

(j) The Department may enter into an agreement with a non-municipal or other non-governmental public utility regarding the alteration or relocation of the public utility's facilities to reimburse the public utility for the public utility's additional expenses incurred due to the enhancement of the public utility's facilities or of its equipment design, location, placement, or specification, if, in the judgment of the Department, the enhancement will result in net cost savings to the Department, will expedite the project, or will otherwise result in increased public benefit and convenience.".

Section 2. Amend §9505, Title 29 of the Delaware Code by inserting a new subsection (14) as follows:

"(14) For a real property acquisition necessitated by a highway project, an appraisal is unnecessary if the Department of Transportation determines that the valuation of the property to be acquired is uncomplicated and the market value is estimated at fifty-thousand dollars ($50,000) or less, based on a review of available data. If an appraisal is determined to be unnecessary, the Department of Transportation shall prepare a waiver of valuation. The Department of Transportation may seek from the federal agency funding the project, approval on a case-by-case basis to increase the waiver amount on any valuation over ten-thousand dollars ($10,000) and up to a maximum of twenty-five thousand dollars ($25,000), or the amount currently approved by the federal agency, provided that the Department of Transportation offers the property owner the option of having an appraisal prepared. In all cases in which the estimated market value of a property to be acquired is over ten-thousand dollars ($10,000), the property owner must be given the option of having an appraisal prepared.”.

Section 3. Severability clause. If any provision of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and, to that end, the provisions of this Act are declared to be severable.

Approved June 29, 2004