§ 8-1-2-101 — Municipal regulations; county executive's power; relocation of facilities

(a) Every municipal council or county
executive shall have power:
(1) To determine by ordinance the provisions, not inconsistent
with this chapter or IC 8-1-11.1, upon which a public utility or
department of public utilities created under IC 8-1-11.1 occupies
the areas along, under, upon, and across the streets, highways, or
other public property within such municipality or county, and
such ordinance or other determination of such municipality or
county executive shall be in force and prima facie reasonable.
Upon complaint made by such public utility, department of public
utilities, or by any qualified complainant, as provided in section
54 of this chapter, the commission shall set a hearing, as provided
in sections 54 to 67 of this chapter, and if it shall find such
ordinance or other determination to be unreasonable, such
ordinance or other determination shall be void.
(2) To require of any public utility, by ordinance, such additions
and extensions to its physical plant within said municipality or
county as shall be reasonable and necessary in the interest of the
public, and to designate the location and nature of all such
additions and extensions, the time within which they must be
completed, and all conditions under which they must be
constructed, subject to review by the commission as provided in
subdivision (1).
(3) To provide for a penalty for noncompliance with the
provisions of any ordinance or resolution adopted pursuant to the
provisions of this section.
(4) The power and authority granted in this section shall exist and
be vested in said municipalities or county executives, anything in
this chapter to the contrary notwithstanding.
Provided, however, whenever, after a request by petition in writing of
any public utility, department of public utilities, the city, or other
political subdivision or other body, having jurisdiction of the matter,
shall refuse or fail, for a period of thirty (30) days, to give or grant to
such public utility or department of public utilities permission and
authority to construct, maintain, and operate any additional
construction, equipment, or facility, reasonably necessary for the
transaction of the business of such public utility or department of
public utilities and for the public convenience or interest, then such
public utility or department of public utilities may file a petition with
said commission for such right and permission, which petition shall
state, with particularity, the construction, equipment, or other facility
desired to be constructed and operated, and show a reasonable public
necessity therefor, and also the failure or refusal of such city, political
subdivision, or other body to give or grant such right or permission;
and the commission shall thereupon give notice of the pendency of
such petition, together with a copy thereof, to such city or other
political subdivision or body, and of the time and place of hearing of
the matter set forth in such petition; and such commission shall have
power to hear and determine such matters and to give or grant such
right and permission and to impose such conditions in relation thereto
as the necessity of such public utility or department of public utilities
and the public convenience and interest may reasonably require.
Provided, further, that when the relocation by a public utility or
department of public utilities of any of its construction, equipment, or
facility located within the corporate limits of two (2) or more adjoining
cities is reasonably necessary for the public convenience or interest,
and any or either of said cities fail or refuse to give or grant to such
public utility or department of public utilities permission and authority
to relocate such construction, equipment, or facility, any municipality
which has given or granted to such public utility or department of
public utilities permission and authority to relocate such construction,
equipment, and facility, the public utility or department of public
utilities may file a petition with said commission for such right and
permission to which petition the city or cities failing or refusing to give
or grant the same shall be made a respondent, and such public utility
or department of public utilities if not the petitioner shall also be made
a respondent, and said commission shall have power to hear and
determine such matter and to give or grant such right and permission
and to impose such conditions in relation thereto as the public
convenience and interest may reasonably require; and if said
commission shall give or grant such right and permission, no further
public authority to make such relocation as authorized or to go on any
street, alley, road, or highway in said city or cities necessary to be used
therefor shall be required of said public utility or department of public
utilities. All orders entered before June 30, 1931, by the commission in
cases within the provisions of this section are hereby declared legal and
valid.
(b) Subject to the commission's authority under subsection (a)(1)
with respect to an unreasonable ordinance or other determination, the
municipality or county executive may operate and maintain the streets,
highways, and other public property in the municipality or county for
the safety of the traveling public, and a municipality or county
executive may manage the public right-of-way or require by ordinance
fair and reasonable compensation on a competitively neutral and
nondiscriminatory basis for occupation of the public right-of-way on a
nondiscriminatory basis, including occupation by the municipality or
county executive, if the compensation required is publicly disclosed by
the municipality or county executive. Fair and reasonable
compensation may not exceed the municipality's or county executive's
direct, actual, and reasonably incurred costs of managing the public
right-of-way caused by the public utility's or department of public
utilities' occupancy. The management costs, which the municipality or
county executive shall assign individually to the public utility or
department of public utilities creating the management costs, must be
limited to the direct, actual, and reasonably incurred costs a
municipality or county incurs in managing the public right-of-way. As
used in this section, the term "management costs" includes but is not
limited to the costs to the municipality or county of the following:
(1) Registering occupants.
(2) Verifying public right-of-way occupation.
(3) Inspecting job sites and restoration projects.
(4) Restoring work inadequately performed after providing notice
and the opportunity to correct the work.
(5) Administering a reasonable restoration ordinance that ensures
that a public utility or department of public utilities adequately
restores the right-of-way as near as is reasonably possible to the
right-of-way's original condition.
(6) Management costs associated with the implementation of an
ordinance adopted under this section.
However, as used in this section, direct, actual, and reasonably incurred
management costs do not include rents, franchise fees, or any other
payment by a public utility or department of public utilities for
occupation of the public right-of-way. As used in this section, the term
"public right-of-way" does not include the airwaves above the streets,
highways, or other public property within the municipality or county as
those airwaves are used for cellular or other nonwire
telecommunications or broadcast service.
(c) A municipality or county executive may not unreasonably delay
a public utility's or department of public utilities' access to or use of a
street, highway, or other public property within the municipality or
county. However, subsection (a)(1) and this subsection do not limit a
municipality or county executive's right to advance notification of and
review of a public utility's or department of public utilities' occupation
of a street, highway, or other public property within the municipality or
county to ensure and protect the safety of the public.
(d) Nothing in this section may be construed to affect franchise
agreements between a cable company and a municipality or county.
Formerly: Acts 1913, c.76, s.110; Acts 1931, c.126, s.1. As
amended by P.L.59-1984, SEC.42; P.L.127-1998, SEC.1.