75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
Enrolled
Senate Bill 269
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Senate Interim Committee on
Judiciary)
CHAPTER ................
AN ACT
Relating to relocation of utility facilities; creating new
provisions; and amending ORS 221.420 and 758.010.
Whereas it is the policy of the Legislative Assembly that a
proactive cooperative coordination process between public bodies
and utilities is the most effective way to minimize costs, limit
disruption of utility services related to highway projects and
reduce the potential need for relocation of utility facilities;
and
Whereas the primary objective of the coordination process is to
deliver a cost-effective product to the public that meets the
intent, scope and budget of a highway project; now, therefore,
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Section 2 of this 2009 Act is added to and made
a part of ORS chapter 758. + }
SECTION 2. { + (1) As used in this section:
(a) 'Highway' has the meaning given that term in ORS 801.305
(1) but does not include highways located on property owned by
the Port of Portland that is subject to federal relocation
regulations authorized under 49 U.S.C. 47107, as in effect on the
effective date of this 2009 Act.
(b) 'Public body' has the meaning given that term in ORS
174.109.
(c) 'Utility' means a public utility, as defined in ORS
757.005, or a telecommunications utility or competitive
telecommunications provider, as those terms are defined in ORS
759.005.
(2) If a public body plans a project that would require
utilities to relocate their utility facilities that are located
in the highway right of way, the public body shall notify
affected utilities of the project in writing as soon as is
practicable.
(3) During the planning and design phase of a project, the
public body shall coordinate with the affected utilities to
discuss the project's scope and schedule. At a minimum, the
discussion must include a description of the plans, goals and
objectives of the proposed project and options to minimize or
eliminate costs to the public body and the utilities. The public
body is not required to avoid or minimize costs to the utilities
Enrolled Senate Bill 269 (SB 269-A) Page 1
in a way that materially affects the project's scope, costs or
schedule. Failure of the affected utilities to respond or
participate in the coordination or discussion does not affect the
ability of the public body to proceed with design and
construction of the project.
(4) A public body having jurisdiction over a highway may not
prohibit a utility from seeking reimbursement from private
parties or customers for costs under this section in any permit
application, license application or other written agreement
authorizing the utility to relocate the facilities.
(5)(a) Notwithstanding any other provision of ORS chapter 759,
a telecommunications utility that is not subject to
rate-of-return regulation, including a utility regulated under
ORS 759.255 may, after participating in the process described in
subsection (3) of this section, request authorization from the
Public Utility Commission to recover from customers prudent costs
incurred for the relocation of facilities required by a public
body that are not otherwise paid or reimbursed from another
source. Recoverable relocation costs are the nonfacility costs
incurred in the relocation plus the undepreciated value of the
facilities replaced, including the cost of placing such
facilities underground if underground placement is required by
the public body or other provision of law. The commission may
authorize the recovery of relocation costs that the commission
determines to be substantial and beyond the normal course of
business.
(b) The commission shall:
(A) Verify the relocation costs for which the utility requests
recovery;
(B) Determine the allocation of costs between interstate and
intrastate services, geographic areas, customers and services;
and
(C) Prescribe the method of cost recovery.
(c) In determining the level of cost recovery and the
allocation of costs, the commission shall consider:
(A) The overall impact on the utility; and
(B) Other relevant factors identified by the commission.
(d) Relocation costs may be recovered for a reasonable period
of time subject to approval by the commission and not to exceed
the depreciable life of the facilities. + }
SECTION 3. ORS 221.420 is amended to read:
221.420. (1) As used in this section:
(a) 'Public utility' has the meaning for that term provided in
ORS 757.005.
(b) 'Commission' means the Public Utility Commission of Oregon.
(c) 'Council' means the common council, city council,
commission or any other governing body of any municipality
wherein the property of the public utility is located.
(d) 'Municipality' means any town, city or other municipal
government wherein property of the public utility is located.
(e) 'Service' is used in its broadest and most inclusive sense
and includes equipment and facilities.
(f) 'Heating company' means any person furnishing heat but not
electricity or natural gas to its customers.
(2) { - Every - } { + Subject to section 2 of this 2009
Act, a + } city may:
(a) Determine by contract or prescribe by ordinance or
otherwise, the terms and conditions, including payment of charges
and fees, upon which any public utility, electric cooperative,
people's utility district or heating company, or Oregon Community
Enrolled Senate Bill 269 (SB 269-A) Page 2
Power, may be permitted to occupy the streets, highways or other
public property within such city and exclude or eject any public
utility or heating company therefrom.
(b) Require any public utility, by ordinance or otherwise, to
make such modifications, additions and extensions to its physical
equipment, facilities or plant or service within such city as
shall be reasonable or necessary in the interest of the public,
and designate the location and nature of all additions and
extensions, the time within which they must be completed, and all
conditions under which they must be constructed.
(c) Fix by contract, prescribe by ordinance, or in any other
lawful manner, the rates, charges or tolls to be paid to, or that
may be collected by, any public utility or the quality and
character of each kind of product or service to be furnished or
rendered by any public utility furnishing any product or service
within such city. No schedule of rates, charges or tolls, fixed
in the manner provided in this paragraph, shall be so fixed for a
longer period than five years. Whenever it is proposed by any
city to enter into any contract, or to enact any ordinance, or
other municipal law or regulation concerning the matters
specified in this paragraph, a copy of such proposed contract,
ordinance or other municipal law or resolution shall be filed
with the Public Utility Commission of Oregon before the same may
be lawfully signed or enacted, as the case may be, and the
commission shall thereafter have 90 days within which to examine
into the terms thereof. If the commission is of the opinion that
in any respect the provisions of the proposed contract, ordinance
or other municipal law or resolution are not in the public
interest, the commission shall file, in writing, with the clerk
or other officer who has the custody of the files and records of
the city, the commission's reasons therefor. If the objections
are filed within said period of 90 days, no proposed contract,
ordinance or other municipal law or regulation shall be valid or
go into effect until it has been submitted to or ratified by the
vote of the electors of the city. Unless and until a city
exercises its powers as provided in this paragraph, the
commission is vested with all powers with respect to the matters
specified in this paragraph. If the schedule of rates, charges
and tolls or the quality and character of each kind of product or
service is fixed by contract, ordinance or other municipal law or
regulation and in the manner provided in this paragraph, the
commission has no power or jurisdiction to interfere with, modify
or change it during the period fixed thereby. Upon the expiration
of said period such powers shall again be vested in the
commission, to be exercised by the commission unless and until a
new schedule of rates or the quality and character for such
service or product is fixed or prescribed by contract, ordinance
or other municipal law or regulation in the manner provided in
this paragraph.
(d) Provide for a penalty for noncompliance with the provisions
of any charter provision, ordinance or resolution adopted by the
city in furtherance of the powers specified in this subsection.
SECTION 4. ORS 758.010 is amended to read:
758.010. (1) Except within cities, any person or corporation
has a right and privilege to construct, maintain and operate its
water, gas, electric or communication service lines, fixtures and
other facilities along the public roads in this state, as defined
in ORS 368.001 or across rivers or over any lands belonging to
the state, free of charge, and over lands of private individuals,
as provided in ORS 772.210. Such lines, fixtures and facilities
Enrolled Senate Bill 269 (SB 269-A) Page 3
shall not be constructed so as to obstruct any public road or
navigable stream.
(2) A county governing body and the Department of
Transportation have authority to designate the location upon
roads under their respective jurisdiction, outside of cities,
where lines, fixtures and facilities described in this section
may be located, and { + subject to section 2 of this 2009
Act + } may order the location of any such line, fixture or
facility to be changed when such governing body or department
deems it expedient. Any line, fixture or facility erected or
remaining in a different location upon such road than that
designated in any order of the governing body or department is a
public nuisance and may be abated accordingly.
(3) The state officer, agency, board or commission having
jurisdiction over any land belonging to the state with respect to
which the right and privilege granted under subsection (1) of
this section is exercised may impose reasonable requirements for
the location, construction, operation and maintenance of the
lines, fixtures and facilities on such land. The person or
corporation exercising such right and privilege over any land
belonging to the state shall pay the current market value for the
existing forest products that are damaged or destroyed in
exercising such right and privilege. Such right and privilege of
any person or corporation is conditioned upon compliance with the
requirements imposed by this subsection.
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Passed by Senate May 4, 2009
...........................................................
Secretary of Senate
...........................................................
President of Senate
Passed by House June 2, 2009
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Speaker of House
Enrolled Senate Bill 269 (SB 269-A) Page 4
Received by Governor:
......M.,............., 2009
Approved:
......M.,............., 2009
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2009
...........................................................
Secretary of State
Enrolled Senate Bill 269 (SB 269-A) Page 5