HOUSE BILL 320

51st legislature - STATE OF NEW MEXICO - second session, 2014

INTRODUCED BY

Roberto "Bobby" J. Gonzales

AN ACT

RELATING TO PUBLIC UTILITIES; PERMITTING THE STATE TRANSPORTATION COMMISSION TO ASSESS AND COLLECT HIGHWAY RIGHT-OF-WAY FEES FROM ELECTRICITY TRANSMISSION OWNERS; UPDATING UTILITY TERMINOLOGY; CREATING THE ROAD PROJECT FUND; MAKING AN APPROPRIATION.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. Section 67-3-12 NMSA 1978 (being Laws 1929, Chapter 110, Section 1, as amended) is amended to read:

     "67-3-12. POWERS AND DUTIES.--In addition to the powers now conferred upon it by law, the state transportation commission:

          A. may declare abandoned and close to public traffic all grade crossings of railroads by state highways in cases where grade separations or other adequate crossings are substituted therefor or where such grade crossings become unnecessary to the public convenience by reason of changes in highway locations;

          B. may offer and, upon compliance with the conditions of such offer, pay rewards for information leading to the arrest and conviction of offenders in cases of theft, defacement or destruction of markers or highway signs, lights or other warning devices placed upon or along highways of this state under the supervision of the state transportation commission and for information leading to the arrest and conviction of offenders or for the return of property in case of theft or unlawful damaging of property under the control of the commission. All such rewards when paid shall be paid from the state road fund upon voucher drawn by the secretary or other authorized officer or agent of the department;

          C. shall prescribe by rule:

                (1) the conditions under which [pipelines, telephone, telegraph and electric transmission lines and ditches may be placed] a utility, as defined in Section 67-8-16 NMSA 1978, may place equipment along, across, over or under public highways in this state; and [shall forcibly remove or cause to be removed pipelines, telephone, telegraph or electric transmission lines or ditches that may be placed along, across, over or under such public highways in violation of such rules and regulations]

                (2) the ways in which a utility's placement of equipment along, across, over or under public highways in this state would constitute a violation of rules or laws or necessitate the removal of the equipment;

          D. shall:

                (1) by August 1, 2014, establish in rule a schedule of highway right-of-way fees to be paid by an electricity transmission owner that sells its product directly to utilities and not to end users; and

                (2) deposit into the road project fund the fees collected pursuant to Paragraph (1) of this subsection;

          [D.] E. shall employ an attorney to assist and advise the state transportation commission and the department in the discharge of their duties and to appear and represent the interests of the commission or department in any case before any court or tribunal in which the official duties, powers, rights or privileges of the commission or department may be involved or affected and to pay that attorney the reasonable value of the attorney's services out of the state road fund;

          [E.] F. shall bring and maintain in the name of the state actions and proceedings deemed necessary by the state transportation commission for the condemnation of rights of way for public highways or for the removal or condemnation of buildings or other improvements that encroach in whole or part upon the rights of way of public highways or for the condemnation of gravel pits or other deposits of materials or supplies suitable for the construction of public highways.

The attorney general of New Mexico shall appear in and prosecute all such cases on behalf of the state upon request of the state transportation commission. All such proceedings shall be conducted in the same manner as other cases for the condemnation of real property. The damages assessed in proceedings brought under the provisions of this section shall be paid out of the state road fund from money furnished for that purpose by cooperative agreement between the state, the federal government and the county within which the condemned property is situate or any such governmental bodies or out of money furnished for the construction of the highway in connection with which the condemnation is had, by the county in which the condemned property is situate; provided, however, that if no such money is available, the damages shall be advanced on behalf of said counties out of their money in the state road fund and the state treasurer shall thereafter reimburse the state road fund for the money advanced out of the next installment of money from motor vehicle license fees accruing to the road fund of the county for which such funds were so advanced;

          [F.] G. shall designate in its discretion one of its employees as acting secretary to act at all times when the secretary is absent from the state capital. The acting secretary, when designated, has the right and is hereby given authority at all times when the secretary is absent from the state capital to sign all federal project statements, federal project agreements and federal vouchers with the same force and effect as if signed by the secretary in person, and the certificate of the acting secretary attached to any federal project statement, federal project agreement or federal voucher to the effect that the secretary was absent from the state capital at the time that the same was so signed by the acting secretary shall be conclusive evidence of the truth of such fact. The acting secretary may also be vested by the state transportation commission with power and authority to act for the secretary in such other matters as the state transportation commission may determine;

          [G.] H. subject to the provisions of Subsection [H] I of this section, may conduct, permit or authorize commercial enterprises or activities on department- or commission-owned land or land leased to or from the department for the purpose of providing goods and services to the users of the property or facilities on the land, including commercial enterprises or activities, other than commercial enterprises or activities on a controlled-access facility conducted, permitted or authorized pursuant to Section 67-11-9 NMSA 1978. In furtherance of these commercial enterprises or activities, the commission may:

                (1) authorize the lease of department- or commission-owned land as it deems necessary, in which case consideration for the lease shall be payments in cash or cash equivalent that shall be deposited into the state road fund; or

                (2) authorize the sale or exchange or lease with in-lieu value consideration of department- or commission-owned land; provided that the sale or exchange or lease with in-lieu value shall be subject to the ratification and approval by joint resolution of the state legislature prior to the sale or exchange or lease with in-lieu value becoming effective; and

          [H.] I. for the purposes of Subsection [G] H of this section shall:

                (1) adopt rules necessary to carry out the provisions of Subsection [G] H of this section;

                (2) prior to initiating any action to conduct, permit or authorize commercial enterprises or activities, adopt a rule providing a procedure to involve residents of the municipality or county in which the commercial enterprises or activities are proposed to occur in the department's planning and decision-making process for the sole purpose of advising the commission and department on the feasibility and suitability of the proposed commercial enterprises or activities;

                (3) comply with the Procurement Code in the acquisition process whenever commercial enterprises or activities result in the commission or department acquiring construction, services or tangible personal property, as those terms are defined in the Procurement Code;

                (4) if the commercial enterprises or activities are to be developed or operated by a private entity, direct that private entity to:

                     (a) create its plans to be not necessarily in compliance but generally compatible with local zoning and land use policies, including affordable housing and historic and architectural standards, if any, and, to the extent the private entity will obtain water or other services from a local authority, negotiate an agreement between relevant parties for those services, the terms and conditions of which shall be no more stringent than the local authority's then current laws, rules and policies; and

                     (b) submit its plans to the local zoning and land use authority for comment. The local authority shall communicate its recommendations and comments in writing to the department and private entity within thirty days of receiving the plans. The department, commission and private entity shall take no action on the project in reliance on those plans until they have received the local authority's recommendations and comments or until the thirty-day comment period has expired, whichever comes first; provided that the local authority's approval is not required under this section, and this section does not delegate to the local authority power that it does not otherwise have; and

                (5) not use the power of eminent domain to acquire land to be developed or operated by a private entity."

     SECTION 2. Section 67-8-15 NMSA 1978 (being Laws 1959, Chapter 310, Section 1) is amended to read:

     "67-8-15. DECLARATION OF POLICY.--

          A. The construction of modern highways is necessary to promote public safety, to facilitate the movement of present-day motor traffic, both interstate and intrastate in character, and to promote the national defense [and]. In the construction of such highways, it is also in the public interest to provide for the orderly and economical relocation of utilities when made necessary by such highway improvements, including extensions thereof within urban areas, without occasioning utility service interruptions or unnecessary hazards to the health, safety and welfare of the traveling or utility-consuming public.

          B. Utilities have been authorized by statute for many years to locate their facilities within the boundaries of public roads and streets in this state, because utilities are subject to extensive regulation by state agencies and they are affected with the public interest in that, among other things:

                (1) the business and activities of utilities involve the rendition of essential public services to large numbers of the general public, and no cessation of utility service is permitted without authority of law;

                (2) the financing of utilities involves the investment of large sums of money, including capital obtained from many members of the general public;

                (3) the development and extension of utilities directly [affects] affect the development, growth and expansion of the general welfare, business and industry of this state; and

                (4) all persons in this state are actual or potential consumers of one or more utility services, and all consumers will be affected by the cost of relocation of their utilities as necessary to [accomodate] accommodate highway improvements.

     Public highways are intended principally for public travel and transportation, but they are also intended for proper utility uses in serving the public, as authorized pursuant to the laws of this state, and such utility uses are for the benefit of the public served. Without making use of public ways, utility lines could not reach or economically service the adjacent public, particularly in urban areas.

          C. Federal-aid highways of the interstate system and other modern highway improvements serve the need of non-local and long-distance traffic.

          D. The burden of such utility relocations is a burden on the public in this state whether initially borne by the state or the utility or in part by both, and it is, therefore, in the public interest that such burden be minimized to the extent that [same] it can be done consistently with the principal purpose of such highways for vehicular movement of persons and property. Therefore, it is the intent of the legislature to insure that the state's police power in requiring relocation of utilities shall be exercised in a reasonable manner.

          E. Utility relocations necessitated by construction of public highways or improvements thereto are a public governmental function, properly a part of such construction, and to the extent [in this Act] provided in Sections 67-8-15 through 67-8-21 NMSA 1978, such relocations shall be made at state expense. However, although made in obedience to the commission's orders in exercise of the police power under [this act] Sections 67-8-15 through 67-8-21 NMSA 1978, relocations hereunder for which compensation is not provided by [this act] Sections 67-8-15 through 67-8-21 NMSA 1978 or otherwise by law are declared to be damnum absque injuria, and no claim therefor shall be enforceable against the state. Utility relocations to which [this act is] Sections 67-8-15 through 67-8-21 NMSA 1978 are applicable shall be made only in pursuance hereof.

          F. The statements in this section [1] are legislative determinations and declarations of public policy, and [this act] Sections 67-8-15 through 67-8-21 NMSA 1978 shall be [liberally] construed in conformity with [its declarations and purposes to promote] the public interest; provided that nothing contained in this section or other law shall preclude the commission from charging and collecting highway right-of-way fees from an electricity transmission owner that sells its product directly to utilities and not to end users."

     SECTION 3. Section 67-8-16 NMSA 1978 (being Laws 1959, Chapter 310, Section 2, as amended) is amended to read:

     "67-8-16. DEFINITIONS.--As used in Sections 67-8-15 through 67-8-21 NMSA 1978:

          A. "utility" means publicly, privately and cooperatively owned utilities, without distinction, for the rendition of water; electric power; transmission of electricity; sanitary sewer, storm sewer, sanitary sewage collection, steam, fuel gas and natural gas systems; communication systems, including telephone [or], telegraph [service], cell phone, television, internet and other communication technologies; and other services delivered through a system of pipes [or], wires, cables, microwaves, fiber optics and other means of transmission, devoted to public utility service and whose product is sold by the utility to end users;

          B. "cost of relocation" means the entire amount paid properly attributable to such relocation after deducting therefrom any increase in the value of the new facility and any salvage value derived from the old facility;

          C. "commission" means the state transportation commission;

          D. "public highway" means any state highway or other public way in this state, including extensions thereof within urban areas, constructed in whole or in part with state aid, and shall include any incorporated or related physical facilities for the handling of traffic and the right of way;

          E. "relocation" means any horizontal or vertical movement of utility facilities intact and any protective measures taken or, where found by the commission to be necessary, the construction of new or additional facilities, with or without contemporaneous removal and salvage of old facilities, in this state, including in any case adjustment or protection of connecting off-highway utility lines to the extent necessary; 

          F. "federal-aid highways" means all roads constructed in whole or in part with federal aid and includes the "interstate system", the "primary system" and the "secondary system" in this state as designated by the commission; and

          G. "urban area" means an area in this state, including and adjacent to a municipality or other urban place having a population of five thousand or more, as determined by the latest available federal census, within reasonable boundaries fixed by the commission."

     SECTION 4. A new section of Chapter 67 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] ROAD PROJECT FUND CREATED.--

          A. The "road project fund" is created in the state treasury. The fund shall be administered by the department. The fund shall consist of distributions of money from the collection of highway right-of-way fees pursuant to Section 67-3-12 NMSA 1978. Income earned on the fund shall not be transferred to another fund. Balances remaining in the fund at the end of any fiscal year shall not revert to any other fund. Disbursements from the fund shall be made for the purposes authorized in Subsection B of this section and by warrant of the secretary of finance and administration pursuant to vouchers signed by the secretary of transportation or the secretary of transportation's authorized representative.

          B. Money in the fund shall be used solely for the planning, design, engineering, construction or improvement of state road and highway projects as identified in the department's current statewide transportation improvement program or successor program. The money shall not be used for debt financing, debt service, salaries, wages or administrative costs."

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