WHAT IS A FRANCHISE? - San Juan County

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WHAT IS A FRANCHISE? - San Juan County

UTILITY ACCOMMODATION AND FRANCHISE

ON PUBLIC RIGHTS OF WAY

Roles and Responsibilities of the Legislative Authority


UTILITY ACCOMMODATION AND FRANCHISE ON PUBLIC RIGHTS OF WAY

FOUR PRIMARY PLAYERS:

County Engineer – Technical oversight, standards and

specifications, safety, implementation.

• Utility – Owns the infrastructure. May be pipe line, wire line or cable.

Typical examples include power, water, sewer, and telecommunications.

• Public – Includes utility customers, neighbors, R-O-W users, others.

• Legislative Authority – Represents the public interest. Grants

franchises.

Utility Accommodation and Franchise on Public Rights of Way

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UTILITY ACCOMMODATION AND FRANCHISE ON PUBLIC RIGHTS OF WAY

LEGISLATIVE INTENT

• Federal – Telecommunications Act of 1996 cedes authority to states,

but strives to remove economic and legal barriers to entry in the

telecommunications industry. No federal involvement in nontelecommunication

utilities.

• State – 3 Main pieces of legislation:

• RCW 80.32 – Electrical Transmission Lines

• RCW 80.36 – Telecommunications

• RCW 36.55 – Utilities on County Roads

• Local – 2 Sources:

• Implementation of WAC 136 Chapter 40

San Juan County Code Chapter 12.16

Utility Accommodation and Franchise on Public Rights of Way

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WHAT IS A FRANCHISE

A Grant of a Right or Special Privilege

A Revocable License to Use PROW

Not a Privilege to Offer a Service

Does not Create a Competitive Advantage

Utility Accommodation and Franchise on Public Rights of Way

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WHAT IS A FRANCHISE AGREEMENT

An occupancy and use document granted by the

county required for occupancy of public rights-ofway

in accordance with RCW 36.55 and RCW

80.32.

Utility Accommodation and Franchise on Public Rights of Way

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HISTORY

County currently has about 30 Franchises

• Some have expired and need to be renewed

• Current agreement form is outdated

• A new agreement form has been developed

County has not charged Franchise Fees for

non telecommunication franchises

• New Draft PW Fee Ordinance includes Fees for

Franchises

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FACTORS TO KEEP IN MIND

1. The franchise holder is liable to the county for all necessary

expenses incurred in restoring the county road to a suitable

condition for travel.

2. No franchise shall be granted for a period of longer than fifty years.

3. No exclusive franchise shall be granted.

4. The franchise holder shall remove or relocate its facilities, at its

own expense, if such removal is reasonably necessary for

reconstruction, alteration, or improvement of the county road.

5. It is important for the county to use a consistent permit and

oversight process for all franchises.

6. A franchise is a legislative authorization to use public rights­of­way

and actual construction and activities in the rights­of­way will be

subject to administratively approved Right­of­Way Use Permits

after review of specific plans.

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UTILITY ACCOMMODATION AND FRANCHISE ON PUBLIC RIGHTS OF WAY

POWERS OF LOCAL LEGISLATIVE AUTHORITY

The Granting of a Franchise is a Legislative Act

RCW 36.55.010

Pipe line and wire line franchises on county roads.

Any board of county commissioners may grant franchises to persons or private or municipal

corporations to use the right-of-way of county roads in their respective counties for the

construction and maintenance of waterworks, gas pipes, telephone, telegraph, and electric light

lines, sewers and any other such facilities.

RCW 36.55.050

A Public Hearing is Required.

On application being made to the county legislative authority for franchise, it shall fix a time and

place for hearing the same, and shall cause the county auditor to give public notice thereof at the

expense of the applicant, by posting notices in three public places in the county seat of the county

at least fifteen days before the day fixed for the hearing. The county legislative authority shall also

publish a like notice two times in the official newspaper of the county, the last publication to be not

less than five days before the day fixed for the hearing. The notice shall state the name or names of

the applicant or applicants, a description of the county roads by reference to section, township and

range in which the county roads or portions thereof are physically located, to be included in the

franchise for which the application is made, and the time and place fixed for the hearing.

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UTILITY ACCOMMODATION AND FRANCHISE ON PUBLIC RIGHTS OF WAY

POWERS OF LOCAL LEGISLATIVE AUTHORITY

The Granting of a Franchise is a Legislative Act

• RCW 36.55.050

Public Hearing – Order

The hearing may be adjourned from time to time by the order of the

board of county commissioners. If, after the hearing, the board deems it to

be for the public interest to grant the franchise in whole or in part, it may

make and enter a resolution to that effect and may require the applicant

to place his utility and its appurtenances in such location on or along the

county road as the board finds will cause the least interference with other

uses of the road.

• Franchise is Granted by Ordinance (Charter)

• May be Subject to Referendum (PA will issue legal brief)

Utility Accommodation and Franchise on Public Rights of Way

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CURRENT POLICIES

COMPREHENSIVE PLAN

TRANSPORTATION ELEMENT

Right-of-Way 6.5.A

County road rights-of-way widths should be adequate to accommodate

anticipated improvements, including utilities and to maintain the roadway and

ancillary features. A minimum twenty-year planning period should be used for

purposes of anticipating improvements. The county should obtain dedications of

road rights-of-way when discretionary use permits or land division approvals are

sought by property owners.

•No specific policy on utilities or use of ROW by utilities

•No current formal policy on when and where franchises are required

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CODE REVISIONS

• The County Code sections that govern roads,

including ROW and utilities, are outdated

(Charter) and a major revision is currently

being worked on by PW and the PA. Should be

ready by June of 2009.

• Code revision includes the implementation of

a fee section. Council may want to consider

implementing fees separately sooner.

Utility Accommodation and Franchise on Public Rights

of Way

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PROPOSED FEES

PERMIT TYPE PURPOSE PROPOSED FEE

RIGHT of WAY (ROW)

Access Permit

To allow a permanent encroachment into County Right

of Way, eg: Driveway, trail, structure

$100

Right of Way Permit For temporary use of County Road or Right of Way $50

Parking Permit

Annual Fee for use of designated County owned

Parking Areas

$25/year

Dock/Moorage Permit

Annual fee for day use moorage at designated County

Docks

$25/year

UTILITY

Utility Installation Permit (Base fee)

Parallel Trenching

Utility Repair Permit

Renewal Permit

After the Fact Permit

Use of County Right of Way for permanent installation of

power, water, sewer, telecommunications, etc

Use of County Right of Way for permanent installation of

power, water, sewer, telecommunications, etc structures

For repair and maintenance of existing utility

infrastructure

To extend Installation or Repair permit for an additional

90 days

For utility work started before a Utility Permit was issued

$300

Basic Fee + $0.25 per

lineal foot

$150

$75

2 times regular fee

Utility Franchise

Use of County Right of Way for permanent installation of

power, water, sewer, etc.

$500 Initial fee, $250

annual renewal

ADMINISTRATIVE

Oversize/Overweight Permit

To allow use of county roads, docks, and ramps for

transportation of oversize and/or overweight loads

$25

Road Vacation Petition To review and process a road vacation petition $300 + bond

Petition to Establish a County Road

Temporary Road Closure Permit

To review and process a petition to establish a county

road

To temporarily close a county road for private, nonemergency

purposes

$300 + bond

$100

Petition to Establish or Change a Road Name

To review, process and assign a new county road name $150

DEVELOPMENT REVIEW

Boundary Line Modifications Verify legal description and driveway access according

to County Code

$45

Simple Land Divisions Verify legal description and driveway access according

to County Code

$45

Building Permits Calculations and verifications for drainage systems $90

Concurrency Review For roads, solid waste, docks $170

Large Project Concurrency Review

$55/hour

Long Plats, Short Plats, Plat Alterations Drainage, construction BMPs, SEPA Checklist, roads,

plat road access, road names, ROW, survey control,

$200

verify installations, road construction, driveways

Stormwater Plan Only Review stormwater plan under 5,000 sq ft impervious

surface

$50

Stormwater Plan Only Review stormwater plan over 5,000 sq ft impervious

surface

$55/hour

Address Assignment Assign and Map new Address $150

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CURRENTLY 2 APPLICATIONS IN PROCESS

• NEXT STEPS:

– Schedule Public Hearings

– Receive and Review Legal Issues from PA

– Conduct Public Hearings

– Pass Ordinance

County Engineer review final Designs and Specs

– Install Utilities

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FREQUENTLY ASKED QUESTIONS

• Can the county deny a franchise if the applicant has met all the

requirements

– There is a Legislative Duty to accommodate Utilities in the public ROW.

• Can the county charge reasonable and equitable fees for a

franchise

– Yes.

• Does the public get a say in the process

– Yes. Anyone can provide comments at the public hearing.

• Is the issuance of a franchise subject to referendum

– Probably. The PA will provide guidance.

• Can utilities be required to share the ROW to minimize impacts to

the public

– Yes.

• Is there a difference between accommodating public and private

utilities

– The statutes do not make a distinction. Case law and past practices of the

county indicate that all utilities will be accommodated subject to rules and

engineering standards.

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SUMMARY

• Issuance of a utility franchise is a legislative act.

• The County Engineer is responsible for implementation overseeing

the installation, relocation, maintenance and repair of utilities in

the public ROW.

• The PA is preparing a legal brief to answer questions of law.

• The county has a duty to accommodate utilities in the ROW.

• A franchise agreement is part of any franchise ordinance.

• The county may charge reasonable and equitable fees to recover

the cost of preparing a franchise, for the issuance of a franchise,

and the renewal of a franchise.

• The County Code needs to be revised and updated.

• The Council should consider establishing policies related to utility

franchises.

• The are 2 franchise applications pending:

– Use of McNallie Road on Orcas

– Use of Hunter Bay Dock

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