UTILITY REIMBURSEMENTS Kenny Franklin Director of Utilities and Railroad

It’s A Matter of Law

It’s a matter of law Reimbursement eligibility is determined by Federal and State Law Federal law provides the baseline, but allows state laws to be stricter: Some states never reimburse Some states always reimburse Indiana typically follows the same principle as Federal law-reimbursement that is based on property interests What portion of the bundle of rights does the utility own?

It’s a matter of law I am the signing authority for INDOT for agreements up to $1.5M I am not an attorney You are likely not an attorney Any nuance, novel issue, question, or challenge to reimbursement should be brought to my attention.

Utility Reimbursements For all utility reimbursements, INDOT must ensure that the applicable laws are correctly interpreted and applied. It is a matter of extreme importance Requires diligence on our part to be thorough Requires accuracy on our part to be consistent

Defining Property Interests Always review the individual merit Being located on or in an easement is not necessarily a property interest Attachers to poles Dedicated subdivision easements=public ROW A license/permit is not a property interest Obviously on public ROW On Railroad property Attachers on poles

Defining Property Interests Property interests are best demonstrated On recorded documents Or with a record of the transaction/bill of sale With compensation/consideration Defined and allowable activities on the property An affidavit alone is not acceptable evidence of a property interest Tax records are helpful Maintenance and use of the property is helpful

Other Reimbursable Situations ( A) Extraordinary Cost of Relocations- State only 1. Cost Exceeds 10% Utility’s Gross Annual Revenue of the most recent fiscal year 2. Cost Exceeds 50% of INDOT project estimated cost (B) Unnecessary Relocation 1. If INDOT has not let a project within 2 years after authorized relocation for the project 2. An additional relocation of a utility’s facility is necessitated by changes to the INDOT project

Other Reimbursable Situations (C) Customer Service Lines IC ,11,12 When the acquisition of ROW caused the relocation If the service line is not owned by the utility (D) Interstate Highway Projects Not all work on interstates All crossings Longitudinal installations before June 30, 1991 (E) Municipal Utility on municipally owned property

What about Prescriptive Easements? Open and notorious for 20 years Cannot have a prescriptive easement on public property Best proved by Quiet Title action in court INDOT does not accept affidavits without additional support

Examples of Non-Reimbursable Utilities Cost to bury vs aerial Suitable ROW Temporary moves from Public ROW then to a permanent Not a “highway project” Not in conflict but for future maintenance

Additional Thoughts We can buy additional ROW for utilities We can condemn for that acquisition We must reimburse utilities for their acquisition of replacement property interests Our service providers can partner with the utilities to acquire ROW for them Right of Entry (ROE)

Questions

Contact Information INDOT Director of Utilities and Railroads Kenny Franklin