BILL ANALYSIS Ó
AB 1119
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Date of Hearing: May 6, 2015
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Brian Maienschein, Chair
AB 1119
(Rendon) - As Introduced February 27, 2015
SUBJECT: Public utilities: municipal corporations: rights of
way.
SUMMARY: Grants counties the same right to construct, operate,
and maintain utilities that is granted to municipal corporations
under current law. Specifically, this bill:
1)Provides, for the purposes of existing law that grants
municipal corporations the right to construct, operate, and
maintain utilities, that the terms "municipal corporation" and
"municipality" include a county.
2)Requires, before any municipal corporation uses any street,
alley, avenue, or highway within any other municipal
corporation for the purposes outlined above, that the
municipal corporation request of the municipal corporation
that has control over the street, alley, avenue, or highway to
agree with it upon the location of the use and the terms and
conditions to which the use shall be subject.
3)Repeals a section of law providing that a grant of authority
from or agreement with another municipality is not necessary
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in any case where the street, alley, avenue, or highway, or
portion thereof, proposed to be used is a necessary or
convenient part of the route of the proposed works and at the
time construction was commenced or the plans adopted was
located in unincorporated territory.
EXISTING LAW:
1)Grants to every municipal corporation of the state the right
to construct, operate, and maintain water and gas pipes, mains
and conduits, electric light and power lines, telephone and
telegraph lines, sewers and sewer mains, all with the
necessary appurtenances, across, along, in, under, over, or
upon any road, street, alley, avenue, or highway, and across,
under, or over any railway, canal, ditch, or flume which the
route of such works intersects, crosses, or runs along, in
such manner as to afford security for life and property. (PUC
10101)
2)Requires a municipal corporation exercising its rights under
the provision outlined above to restore the road, street,
alley, avenue, highway, canal, ditch, or flume so used to its
former state of usefulness as nearly as may be, and to locate
its use so as to interfere as little as possible with other
existing uses of a road, street, alley, avenue, highway,
canal, ditch, or flume. (PUC 10102)
3)Requires, before any municipal corporation uses any street,
alley, avenue, or highway within any other municipal
corporation for the purposes outlined above, the municipal
corporation to request the municipal corporation in which the
street, alley, avenue, or highway is situated to agree with it
upon the location of the use and the terms and conditions to
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which the use shall be subject. (PUC 10103)
4)Provides, if the two municipal corporations are unable to
agree on the terms and conditions and location of a use within
three months after a proposal to do so, the municipal
corporation proposing to use a street, alley, avenue, or
highway may bring an action in the superior court of the
county in which the street, alley, avenue, or highway is
situated against the other municipal corporation to have the
terms and conditions and location determined. The superior
court may determine and adjudicate the terms and conditions to
which the use of the street, avenue, alley, or highway shall
be subject, and the location thereof, and upon the making of
the final judgment the municipal corporation desiring to do so
may enter and use the street, alley, avenue, or highway upon
the terms and conditions and at the location specified in the
judgment. (PUC 10104)
5)Provides that a grant of authority from or agreement with
another municipality is not necessary in any case where the
street, alley, avenue, or highway, or portion thereof,
proposed to be used is a necessary or convenient part of the
route of the proposed works and at the time construction was
commenced or the plans adopted was located in unincorporated
territory. (PUC 10105)
FISCAL EFFECT: None
COMMENTS:
1)Bill Summary. This bill grants to counties the same right to
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construct, operate, and maintain utilities that is granted to
municipal corporations under current law. This bill is
sponsored by the Los Angeles County Board of Supervisors.
2)Author's Statement. According to the author, "The purpose of
the bill is to clarify the Public Utilities Code to define
that the term 'municipal corporation' includes counties. This
would provide counties with the same rights as cities when it
comes to their ability to challenge a utility project by
another public entity in or over a street or highway located
in unincorporated county territory."
3)Background. In 2010, the County of Los Angeles (County) filed
a suit against the
City of Los Angeles (City) over the City's plans to install a
sewer pipe through an unincorporated area of the County. The
decision of the Court held that a county does not qualify as a
"municipal corporation" and is therefore not entitled to the
same protections that a city would be entitled to under
existing law, specifically the protections contained in PUC
10103, which states:
"Before any municipal corporation uses any street, alley,
avenue, or highway within any other municipal corporation
(for the purposes of installing utility infrastructure), it
shall request the municipal corporation in which the
street, alley, avenue, or highway is situated to agree with
it upon the location of the use and the terms and
conditions to which the use shall be subject."
The County argues that the court decision "misinterprets the
legislative purpose of existing statutes by depriving the
County of an adequate right to challenge projects by cities
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that encroach into its unincorporated territory."
4)Municipal Corporations and Utilities. PUC sections
10101-10105 govern the rights of a "municipal corporation" to
build a utility project in a street or highway, including a
street or highway within another jurisdiction. Section 10101
grants to municipal corporations the authority to construct,
operate and maintain utilities such as sewers, water and
electric lines, within any road. Section 10103 provides,
however, that when a municipal corporation proposes to use a
road located within another municipal corporation, the
municipal corporation proposing the project must obtain an
agreement from the other municipal corporation.
Section 10104 provides that if the two municipal corporations
don't agree, the municipal corporation proposing the project
can obtain an adjudication in superior court regarding the
location, terms and conditions of the use of the road.
Section 10105 qualifies sections 10103 and 10104 in cases
"where the [road] . . . proposed to be used is a necessary or
convenient part of the route of the proposed works and at the
time construction was commenced or the plans adopted was
located in unincorporated territory."
These statutes balance the interests of municipal corporations
in being able to build utility projects using streets and
highways, including those located within other jurisdictions,
with the interests of residents who may be impacted by a
project that is initiated by officials in another jurisdiction
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who do not represent them. They do this by requiring the
municipal corporation initiating the project to obtain the
consent of the officials representing the residents of the
jurisdiction in which they want to build the project, or to
obtain an independent judicial determination that weighs the
rights and interests of both jurisdictions.
5)The Case in Question. In its opinion, the Court held that the
County is not a "municipal corporation" for purposes of PUC
sections 10101-10105. Therefore, the County is not entitled
to the same protections that a city would be entitled to under
sections 10103 and 10104 (to require a city proposing to
construct a utility project within its street or highway to
obtain either an agreement from County officials or an
independent judicial determination
of its right to do so). Instead, the Court determined that the
only restriction on a city's use
of a county highway is that the city, in its own discretion,
must find that the use of that road is a "necessary or
convenient part of the route" of the proposed project (under
section 10105). The city's decision can only be overturned if
it is "arbitrary or capricious."
According to the sponsor, "the purposes of sections 10103 and
10104 apply with equal force in the unincorporated territory
as they do in a city - i.e, protecting the residents from
decisions by officials of foreign jurisdictions who are not
elected by and are not accountable to the residents who will
be impacted. Treating counties differently from incorporated
cities deprives unincorporated area residents of the
protections afforded by sections 10103 and 10104.
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"The bill would amend the statute to define the terms
'municipal corporation' and 'municipality' to include the
County for purposes of sections 10101-10105. This will
provide counties with the same rights as cities when it comes
to the ability of a public entity to install a utility project
in or over a street or highway, including a street or highway
located in another jurisdiction.
"The bill would also clarify that the County has the same
rights as cities to construct its own utility projects within
streets and highways, including those streets and highways
that are within city boundaries. Having the same rights to
construct a utility in a City highway is a matter of equity
just as important as the ability of a governing body (or
having an adjudication occur) in order to grant approval to
another municipal corporation."
6)Policy Consideration. Given the stated intent of the bill to
remedy the Court's decision by giving counties the same rights
as cities when a dispute arises, the Committee may wish to
consider whether it is necessary or appropriate to also grant
counties the same rights as cities to construct, operate, and
maintain utilities.
7)Arguments in Support. The Los Angeles County Board of
Supervisors, sponsor of this bill, writes, "The County's
Department of Public Works and County Counsel indicate that
AB 1119 would balance the interests of local public entities to
build utility projects using streets and highways, including
those located within other jurisdictions, with the interests
of residents and businesses that may be impacted by projects
initiated by officials in other jurisdictions who do not
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represent them. AB 1119 would require the local entity to
either obtain the consent of the officials representing the
residents of the jurisdiction in which they want to build the
project, or to obtain an independent judicial determination
that weighs the rights and interests of both jurisdictions."
8)Arguments in Opposition. None on file.
9)Double-Referral. This bill was heard by the Utilities and
Commerce Committee on
April 13, 2015, where it passed with a 14-0 vote.
REGISTERED SUPPORT / OPPOSITION:
Support
Los Angeles County Board of Supervisors [SPONSOR]
California State Association of Counties
Urban Counties Caucus
Opposition
None on file
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Analysis Prepared by:Angela Mapp / L. GOV. / (916) 319-3958