UTILITY REIMBURSEMENTS

1. UTILITY REIMBURSEMENTS Kenny Franklin Director of Utilities and Railroad

2. It’s A Matter of Law

3. 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?

4. 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.

5. 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

6. 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

7. 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

8. 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

9. Other Reimbursable Situations • (C) Customer Service Lines • IC-23-26-10,11,12 • 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

10. 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

11. 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

12. 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)

13. Questions

14. Contact Information INDOT Director of Utilities and Railroads Kenny Franklin kfranklin@indot.in.gov 317-232-5007