GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 2007

SESSION LAW 2008-180

HOUSE BILL 2314

AN ACT to make changes to the STATUTES governing Voluntary local government FINANCIAL PARTICIPATION in department of transportation projects, as recommended by the Joint LEGISLATIVE TRANSPORTATION OVERSIGHT COMMITTEE, AND TO EXPAND THE AUTHORITY OF THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION TO LOCATE AND ACQUIRE RIGHT-OF-WAY FOR THE LOCATION, ABOVE OR BELOW GROUND, OF FIBER-OPTIC CABLE.

The General Assembly of North Carolina enacts:

SECTION 1.  G.S. 143B‑350(f1) reads as rewritten:

"(f1)    Municipal Local Government Participation. – The ability of a municipality local government to pay in part or whole for any transportation improvement project shall not be a factor considered by the Board of Transportation in its development and approval of a schedule of major State highway system improvement projects to be undertaken by the Department under G.S. 143B‑350(f)(4)."

SECTION 2.  G.S. 136‑18(27) reads as rewritten:

"(27)   The Department of Transportation is authorized to establish policies and promulgate rules providing for voluntary local government, property owner or highway user participation in the costs of maintenance or improvement of roads which would not otherwise be necessary or would not otherwise be performed by the Department of Transportation and which will result in a benefit to the property owner or highway user. By way of illustration and not as a limitation, such costs include those incurred in connection with drainage improvements or maintenance, driveway connections, dust control on unpaved roads, surfacing or paving of roads and the acquisition of rights‑of‑way. Property Local government, property owner and highway user participation can be in the form of materials, money, or land (for right‑of‑way) as deemed appropriate by the Department of Transportation. The authority of this section shall not be used to authorize, construct or maintain toll roads or bridges."

SECTION 3.  G.S. 136‑44.50 reads as rewritten:

"§ 136‑44.50.  Transportation corridor official map act.

(a)       A transportation corridor official map may be adopted or amended by any of the following:

(1)       The governing board of any city local government for any thoroughfare included as part of a comprehensive plan for streets and highways adopted pursuant to G.S. 136‑66.2 or for any proposed public transportation corridor included in the adopted long‑range transportation plan.

(2)       The Board of Transportation for any portion of the existing or proposed State highway system or for any public transportation corridor, to include rail, that is in the Transportation Improvement Program.

(3)       Regional public transportation authorities created pursuant to Article 26 of Chapter 160A of the General Statutes or regional transportation authorities created pursuant to Article 27 of Chapter 160A of the General Statutes for any proposed public transportation corridor, or adjacent station or parking lot, included in the adopted long‑range transportation plan.

(4)       The North Carolina Turnpike Authority for any project being studied pursuant to G.S. 136‑89.183.

(5)       The Wilmington Urban Area Metropolitan Planning Organization for any project that is within its urbanized boundary and identified in G.S. 136‑179.

Before a city adopts a transportation corridor official map that extends beyond the extraterritorial jurisdiction of its building permit issuance and subdivision control ordinances, or adopts an amendment to a transportation corridor official map outside the extraterritorial jurisdiction of its building permit issuance and subdivision control ordinances, the city shall obtain approval from the Board of County Commissioners.

(a1)     No transportation corridor official map shall be adopted or amended, nor may any property be regulated under this Article until:

(1)       The governing board of the city, the county, the regional transportation authority, the North Carolina Turnpike Authority, or the Department of Transportation has held a public hearing in each county affected by the map on the proposed map or amendment. Notice of the hearing shall be provided:

a.         By publication at least once a week for four successive weeks prior to the hearing in a newspaper having general circulation in the county in which the transportation corridor to be designated is located.

b.         By two week written notice to the Secretary of Transportation, the Chairman of the Board of County Commissioners, and the Mayor of any city or town through whose corporate or extraterritorial jurisdiction the transportation corridor passes.

c.         By posting copies of the proposed transportation corridor map or amendment at the courthouse door for at least 21 days prior to the hearing date. The notice required in sub‑subdivision a. above shall make reference to this posting.

d.         By first‑class mail sent to each property owner affected by the corridor. The notice shall be sent to the address listed for the owner in the county tax records.

(2)       A permanent certified copy of the transportation corridor official map or amendment has been filed with the register of deeds. The boundaries may be defined by map or by written description, or a combination thereof. The copy shall measure approximately 20 inches by 12 inches, including no less than one and one‑half inches binding space on the left‑hand side.

(3)       The names of all property owners affected by the corridor have been submitted to the Register of Deeds.

(b)       Transportation corridor official maps and amendments shall be distributed and maintained in the following manner:

(1)       A copy of the official map and each amendment thereto shall be filed in the office of the city clerk and in the office of the district engineer.

(2)       A copy of the official map, each amendment thereto and any variance therefrom granted pursuant to G.S. 136‑44.52 shall be furnished to the tax supervisor of any county and tax collector of any city affected thereby. The portion of properties embraced within a transportation corridor and any variance granted shall be clearly indicated on all tax maps maintained by the county or city for such period as the designation remains in effect.

(3)       Notwithstanding any other provision of law, the certified copy filed with the register of deeds shall be placed in a book maintained for that purpose and cross‑indexed by number of road, street name, or other appropriate description. The register of deeds shall collect a fee of five dollars ($5.00) for each map sheet or page recorded.

(4)       The names submitted as required under subdivision (a)(3) of this section shall be indexed in the "grantor" index by the Register of Deeds.

(c)       Repealed by Session Laws 1989, c. 595, s. 1.

(d)       Within one year following the establishment of a transportation corridor official map or amendment, work shall begin on an environmental impact statement or preliminary engineering. The failure to begin work on the environmental impact statement or preliminary engineering within the one‑year period shall constitute an abandonment of the corridor, and the provisions of this Article shall no longer apply to properties or portions of properties embraced within the transportation corridor. A city local government may prepare environmental impact studies and preliminary engineering work in connection with the establishment of a transportation corridor official map or amendments to a transportation corridor official map. When a city or county prepares a transportation corridor official map for a street or highway that has been designated a State responsibility pursuant to G.S. 136‑66.2, the environmental impact study and preliminary engineering work shall be reviewed and approved by the Department of Transportation. An amendment to a corridor shall not extend the one‑year period provided by this section unless it establishes a substantially different corridor in a primarily new location.

(e)       The term "amendment" for purposes of this section includes any change to a transportation corridor official map, including:

(1)       Failure of the Department of Transportation, the North Carolina Turnpike Authority, a city, a county, or a regional transportation authority to begin work on an environmental impact statement or preliminary engineering as required by this section; or

(2)       Deletion of the corridor from the transportation corridor official map by action of the Board of Transportation, the North Carolina Turnpike Authority, or deletion of the corridor from the long‑range transportation plan of a city city, county, or regional transportation authority by action of the city city, county, or regional transportation authority governing Board.

(f)        The term "transportation corridor" as used in this Article does not include bikeways or greenways."

SECTION 4.  G.S. 136‑44.52 reads as rewritten:

"§ 136‑44.52.  Variance from transportation corridor official map.

(a)       The Department of Transportation, the regional public transportation authority, the regional transportation authority, or the city local government which initiated the transportation corridor official map shall establish procedures for considering petitions for variance from the requirements of G.S. 136‑44.51.

(b)       The procedure established by the State shall provide for written notice to the Mayor and Chairman of the Board of County Commissioners of any affected city or county, and for the hearing to be held in the county where the affected property is located.

(c)       Cities Local governments may provide for petitions for variances to be heard by the board of adjustment or other boards or commissions which can hear variances authorized by G.S. 160A‑388. The procedures for boards of adjustment shall be followed except that no vote greater than a majority shall be required to grant a variance.

(c1)     The procedure established by a regional public transportation authority or a regional transportation authority pursuant to subsection (a) of this section shall provide for a hearing de novo by the Department of Transportation for any petition for variance which is denied by the regional public transportation authority or the regional transportation authority. All hearings held by the Department of Transportation under this subsection shall be conducted in accordance with procedures established by the Department of Transportation pursuant to subsection (a) of this section.

(d)       A variance may be granted upon a showing that:

(1)       Even with the tax benefits authorized by this Article, no reasonable return may be earned from the land; and

(2)       The requirements of G.S. 136‑44.51 result in practical difficulties or unnecessary hardships."

SECTION 5.  G.S. 136‑44.53 reads as rewritten:

"§ 136‑44.53.  Advance acquisition of right‑of‑way within the transportation corridor.

(a)       After a transportation corridor official map is filed with the register of deeds, a property owner has the right of petition to the filer of the map for acquisition of the property due to an imposed hardship. The Department of Transportation, the regional public transportation authority, the regional transportation authority, or the city which local government that initiated the transportation corridor official map may make advanced acquisition of specific parcels of property when that acquisition is determined by the respective governing board to be in the best public interest to protect the transportation corridor from development or when the transportation corridor official map creates an undue hardship on the affected property owner. The procedure established by a regional public transportation authority or a regional transportation authority pursuant to subsection (b) of this section shall provide for a hearing de novo by the Department of Transportation for any request for advance acquisition due to hardship that is denied by an authority. All hearings held by the Department under this subsection shall be conducted in accordance with procedures established by the Department pursuant to subsection (b) of this section. Any decision of the Department pursuant to this subsection shall be final and binding. Any property determined eligible for hardship acquisition shall be acquired within three years of the finding or the restrictions of the map shall be removed from the property.

(b)       Prior to making any advanced acquisition of right‑of‑way under the authority of this Article, the Board of Transportation or the respective governing board which initiated the transportation corridor official map shall develop and adopt appropriate policies and procedures to govern the advanced acquisition of right‑of‑way and to assure that the advanced acquisition is in the best overall public interest.

(c)       When a city local government makes an advanced right‑of‑way acquisition of property within a transportation corridor official map for a street or highway that has been determined to be a State responsibility pursuant to the provisions of G.S. 136‑66.2, the Department of Transportation shall reimburse the city local government for the cost of any advanced right‑of‑way acquisition at the time the street or highway is constructed. The Department of Transportation shall have no responsibility to reimburse a municipality for any advanced right‑of‑way acquisition for a street or highway that has not been designated a State responsibility pursuant to the provisions of G.S. 136‑66.2 prior to the initiation of the advanced acquisition by the city. The city local government shall obtain the concurrence of the Department of Transportation in all instances of advanced acquisition.

(d)       In exercising the authority granted by this section, a municipality local government is authorized to expend municipal its funds for the protection of rights‑of‑way shown on a duly adopted transportation corridor official map whether the right‑of‑way to be acquired is located inside or outside the a municipal corporate limits."

SECTION 6.  G.S. 136‑66.3 reads as rewritten:

"§ 136‑66.3.  Municipal Local government participation in improvements to the State highway system.

(a)       Municipal Participation Authorized. – A municipality may, but is not required to, participate in the right‑of‑way and construction cost of a State highway improvement approved by the Board of Transportation under G.S. 143B‑350(f)(4) that is located in the municipality or its extraterritorial jurisdiction.

(b)       Process for Initiating Participation. – A municipality interested in participating in the funding of a State highway improvement project may submit a proposal to the Department of Transportation. The Department and the municipality shall include their respective responsibilities for a proposed municipal participation project in any agreement reached concerning participation.

(c)       Type of Participation Authorized. – A municipality is authorized and empowered to acquire land by dedication and acceptance, purchase, or eminent domain, and make improvements to portions of the State highway system lying within or outside the municipal corporate limits utilizing local funds that have been authorized for that purpose. All improvements to the State highway system shall be done in accordance with the specifications and requirements of the Department of Transportation.

(c1)     No TIP Disadvantage for Participation. – If a county or municipality participates in a State highway system improvement project, as authorized by this section, or by G.S. 136‑51 and G.S. 136‑98, the Department shall ensure that the municipality'slocal government's participation does not cause any disadvantage to any other project in the Transportation Improvement Program under G.S. 143B‑350(f)(4).G.S. 143B‑350(f)(4) and located outside the municipality.

(c2)     Distribution of State Funds Made Available by County or Municipal Participation. – Any State or federal funds allocated to a project that are made available by county or municipal participation in a project contained in the Transportation Improvement Program under G.S. 143B‑350(f)(4) shall remain in the same funding region that the funding was allocated to under the distribution formula contained in G.S. 136‑17.2A.

(c3)     Limitation on Agreements. – The Department shall not enter into any agreement with a county or municipality to provide additional total funding for highway construction in the county or municipality in exchange for county or municipal participation in any project contained in the Transportation Improvement Program under G.S. 143B‑350(f)(4).

(d)       Authorization to Participate in Development‑Related Improvements. – When in the review and approval by a municipality local government of plans for the development of property abutting the State highway system it is determined by the municipality that improvements to the State highway system are necessary to provide for the safe and orderly movement of traffic, the municipality local government is authorized to construct, or have constructed, said improvements to the State highway system in vicinity of the development. For purposes of this section, improvements include but are not limited to additional travel lanes, turn lanes, curb and gutter, and drainage facilities. All improvements to the State highway system shall be constructed in accordance with the specifications and requirements of the Department of Transportation and be approved by the Department of Transportation.

(e)       Authorization to Participate in Project Additions. – Pursuant to an agreement with the Department of Transportation, a county or municipality may reimburse the Department of Transportation for the cost of all improvements, including additional right‑of‑way, for a street or highway improvement projects approved by the Board of Transportation under G.S. 143B‑350(f)(4), that are in addition to those improvements that the Department of Transportation would normally include in the project.

(e1)     Reimbursement Procedure. – Upon request of the county or municipality, the Department of Transportation shall allow the municipality local government a period of not less than three years from the date construction of the project is initiated to reimburse the Department their agreed upon share of the costs necessary for the project. The Department of Transportation shall not charge a municipality local government any interest during the initial three years.

(f)        Report to General Assembly. – The Department shall report in writing, on a monthly basis, to the Joint Legislative Commission on Governmental Operations on all agreements entered into between counties, municipalities and the Department of Transportation. The report shall state in summary form the contents of such agreements.

(g)       Municipal Local Government Acquisition of Rights‑of‑Way. – In the acquisition of rights‑of‑way for any State highway system street or highway in or around a municipality, highway, the county or municipality shall be vested with the same authority to acquire such rights‑of‑way as is granted to the Department of Transportation in this Chapter. In the acquisition of such rights‑of‑way, counties and municipalities may use the procedures provided in Article 9 of this Chapter, and wherever the words "Department of Transportation" appear in Article 9 they shall be deemed to include "county," "municipality" or municipal local governing body, and wherever the words "Administrator," "Administrator of Highways," "Administrator of the Department of Transportation," or "Chairman of the Department of Transportation" appear in Article 9 they shall be deemed to include "county or municipal clerk". It is the intention of this subsection that the powers herein granted to municipalities for the purpose of acquiring rights‑of‑way shall be in addition to and supplementary to those powers granted in any local act or in any other general statute, and in any case in which the provisions of this subsection or Article 9 of this Chapter are in conflict with the provisions of any local act or any other provision of any general statute, then the governing body of the county or municipality may in its discretion proceed in accordance with the provisions of such local act or other general statute, or, as an alternative method of procedure, in accordance with the provisions of this subsection and Article 9 of this Chapter.

(h)       Department Authority Concerning Rights‑of‑Way. – In the absence of an agreement, the Department of Transportation shall retain authority to pay the full cost of acquiring rights‑of‑way where the proposed project is deemed important to a coordinated State highway system.

(i)        Changes to Municipal Local Government Participation Agreement. – Either the municipality local government or the Department of Transportation may at any time propose changes in the agreement setting forth their respective responsibilities by giving notice to the other party, but no change shall be effective until it is adopted by both the municipal governing body and the Department of Transportation.

(j)        Municipality Local Governments Party to Rights‑of‑Way Proceeding. – Any municipality that agrees to contribute any part of the cost of acquiring rights‑of‑way for any State highway system street or highway shall be a proper party in any proceeding in court relating to the acquisition of such rights‑of‑way.

(k) Specified County Participation. – In addition to the authority given to Burke, Cabarrus, and Mecklenburg Counties by Chapter 478 of the 1993 Session Laws, these counties are authorized to participate in State highway improvement projects located anywhere in each respective county in accordance with this section."

SECTION 7.  G.S. 136‑98 reads as rewritten:

"§ 136‑98.  Counties authorized to participate in costs of road construction and maintenance.maintenance, participation is voluntary.

(a)       Repealed by Session Laws 2007‑428, s. 4, effective August 23, 2007.

(b)       Nothing in this Article prohibits counties from establishing service districts for road maintenance under Part 1, Article 16 of Chapter 153A of the General Statutes.

(c)       A county is authorized to participate in the cost of rights‑of‑way, construction, reconstruction, improvement, or maintenance of a road on the State highway system under agreement with the Department of Transportation. County participation in improvements to the State highway system is voluntary. The Department shall not transfer any of its responsibilities to counties without specific statutory authority."

SECTION 8.  G.S. 136‑18(2) reads as rewritten:

"§ 136‑18.  Powers of Department of Transportation.

The said Department of Transportation is vested with the following powers:

…

(2)       To take over and assume exclusive control for the benefit of the State of any existing county or township roads, and to locate and acquire rights‑of‑way for any new roads that may be necessary for a State highway system, and subject to the provisions of G.S. 136‑19.5(a) and (b) also locate and acquire such additional rights‑of‑way as may be necessary for the present or future relocation or initial location, above or below ground, of telephone, telegraph, broadband communications, electric and other lines, as well as gas, water, sewerage, oil and other pipelines, to be operated by public utilities as defined in G.S. 62‑3(23) and which are regulated under Chapter 62 of the General Statutes, or by municipalities, counties, any entity created by one or more political subdivisions for the purpose of supplying any such utility services, electric membership corporations, telephone membership corporations, or any combination thereof, with full power to widen, relocate, change or alter the grade or location thereof and to change or relocate any existing roads that the Department of Transportation may now own or may acquire; to acquire by gift, purchase, or otherwise, any road or highway, or tract of land or other property whatsoever that may be necessary for a State highway system and adjacent utility rights‑of‑way: Provided, all changes or alterations authorized by this subdivision shall be subject to the provisions of G.S. 136‑54 to 136‑63, to the extent that said sections are applicable: Provided, that nothing in this Chapter shall be construed to authorize or permit the Department of Transportation to allow or pay anything to any county, township, city or town, or to any board of commissioners or governing body thereof, for any existing road or part of any road heretofore constructed by any such county, township, city or town, unless a contract has already been entered into with the Department of Transportation.…"

SECTION 9.  This act is effective when it becomes law.

In the General Assembly read three times and ratified this the 16^th day of July, 2008.

                                                                    s/ Marc Basnight

                                                                         President Pro Tempore of the Senate

                                                                    s/ Joe Hackney

                                                                         Speaker of the House of Representatives

                                                                    s/ Michael F. Easley

                                                                         Governor

Approved 3:07 p.m. this 4^th day of August, 2008