SB 299-1_ Filed 02/06/2009, 10:27

COMMITTEE REPORT




MADAM PRESIDENT:

    The Senate Committee on Utilities and Technology, to which was referred Senate Bill No. 299, has had the same under consideration and begs leave to report the same back to the Senate with the recommendation that said bill be AMENDED as follows:

SOURCE: Page 1, line 1; (09)AM029902.1. -->     Page 1, delete lines 1 through 17, begin a new paragraph and insert:
SOURCE: IC 8-1-2-92; (09)AM029902.1. -->     "SECTION 1. IC 8-1-2-92 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 92. (a) Every license, permit, or franchise granted after April 30, 1913, to any public utility shall have the effect of an indeterminate permit subject to the provisions of this chapter, and subject to the provisions that:
         (1) the license, franchise, or permit may be revoked by the commission for cause; or that
         (2) the municipality may purchase or condemn the property of such public utility, as provided in this section. IC 8-1.5-2.
Any such municipality is authorized to purchase such property and every such public utility is required to sell such property at the value and according to the terms and conditions as provided in this chapter. IC 8-1.5-2.
    (b)
If this chapter should be repealed or annulled, then all such indeterminate franchises, permits, or grants shall cease and become inoperative, and in place thereof such utility shall be reinstated in the possession and enjoyment of the license, permit, or franchise surrendered by such utility at the time of the issue of the indeterminate franchise, permit, or grant; but in no event shall such reinstated license, permit, or franchise be terminated within a less period than five (5)

years from the date of the repeal or annulment of this chapter.

SOURCE: IC 8-1-2-93; (09)AM029902.2. -->     SECTION 2. IC 8-1-2-93 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 93. Any public utility accepting or operating under any indeterminate license, permit, or franchise granted after April 30, 1913, shall by acceptance of any such indeterminate license, permit, or franchise be deemed to have consented to a future purchase or condemnation of its property including property located in contiguous territory within six (6) miles of the corporate limits of such municipality by the municipality in which such utility is located, at the value and under the terms and conditions as provided in this chapter, IC 8-1.5-2, and shall thereby be deemed to have waived the right of requiring the necessity of such taking to be established by the judgment of a court, and to have waived all other remedies and rights relative to condemnation, except such rights and remedies as are provided in this chapter IC 8-1.5-2 and shall have been deemed to have consented to the revocation of its license, permit, or franchise by the commission for cause.
SOURCE: IC 8-1.5-2-7; (09)AM029902.3. -->     SECTION 3. IC 8-1.5-2-7 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 7. (a) A certificate of public convenience and necessity is not required as a condition precedent to the owning, leasing, acquisition, construction, or operation of a utility by a municipality, even if there is a public utility engaged in a similar service. The acquisition of electric utility property and assignment of a municipal electric utility's service area are, however, subject to the provisions of IC 8-1-2.3 and IC 8-1-2-95.1.
    (b) A municipality that wants to own and operate, including by purchase or condemnation under IC 8-1-2-92, IC 8-1-2-93, or another law, a utility where there is a public utility engaged in a similar service:
        (1) under a franchise granted by the municipality; or
        (2) under an indeterminate permit as defined in IC 8-1-2-1;
may, shall, after a hearing as provided by under section 10 of this chapter and an election as provided required by section 16 of this chapter, declare by ordinance that public convenience and necessity require the establishment, including by purchase or condemnation under IC 8-1-2-92, IC 8-1-2-93, or otherwise, of a municipally owned utility. However, an election under section 16 of this chapter is not required if the municipality and the public utility enter into a mutually acceptable agreement for the municipality's acquisition of the property of the public utility, including the compensation paid by the municipality to the public utility. An ordinance adopted under this subsection is final.".
SOURCE: Page 2, line 4; (09)AM029902.2. -->     Page 2, line 4, after "utility," insert " or under section 15 of this chapter for the condemnation of the property of a public utility,".
    Page 2, delete lines 19 through 38, begin a new paragraph and insert:
    " (e) This section does not apply to the acquisition of a subject utility company under IC 8-1-30-5.
SOURCE: IC 8-1.5-2-15; (09)AM029902.5. -->     SECTION 5. IC 8-1.5-2-15 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 15. (a) Before a municipality may exercise the power of eminent domain under IC 8-1-2-92, IC 8-1-2-93, or otherwise, to acquire the property of a public utility, the municipality shall make a good faith offer to purchase the property of the public utility.
    (b)
If the municipality and the owners of a the public utility are unable to agree upon a price to be paid for the property of the public utility, the municipality may:
        (1) by ordinance declare that a public necessity exists for the condemnation of the utility property; exercise the power of eminent domain; and
        (2) bring an action in the circuit or superior court of the county where the municipality is located against the utility for the condemnation of the property.
    (b) An ordinance adopted under subsection (a) is final.
(c) For the purpose of acquiring the property of a public utility under subdivision (2), the municipality (1) may shall exercise the power of eminent domain in accordance with IC 32-24; and (2) is required only to establish the necessity of taking as this chapter requires. under IC 32-24-1.
    (d) (c) The provisions of this section do not apply to the acquisition of:
         (1) electric utility property or the assignment of service areas covered by IC 8-1-2.3 and IC 8-1-2-95.1; or
        (2) a subject utility company under IC 8-1-30-5.
".
SOURCE: Page 3, line 16; (09)AM029902.3. -->     Page 3, after line 16, begin a new paragraph and insert:
SOURCE: IC 32-24-2-5; (09)AM029902.7. -->     "SECTION 7. IC 32-24-2-5 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 5. (a) Except as provided in subsection (b), if:
        (1) a municipality has the power to acquire property under this chapter; or
        (2) another statute provides for proceedings by a municipality for acquiring property under this chapter;
the board exercising those powers may proceed under IC 32-24-1 instead of this chapter.
     (b) If a municipality acquires property under IC 8-1.5-2, the municipality shall proceed under IC 32-24-1 instead of this chapter.
SOURCE: IC 32-24-2-6; (09)AM029902.8. -->     SECTION 8. IC 32-24-2-6 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 6. (a) This chapter applies if the works board of a municipality wants to acquire property for the use of the municipality or to open, change, lay out, or vacate a street, an alley, or a public place in the municipality, including a proposed street or alley crossings of railways or other rights-of-way. However, this chapter does not apply if a municipality wants to acquire the property of a public utility (as defined in IC 8-1-2-1).
    (b) The works board must adopt a resolution that the municipality wants to acquire the property. The resolution must describe the property that may be injuriously or beneficially affected. The board shall have notice of the resolution published in a newspaper of general circulation published in the municipality once each week for two (2) consecutive weeks. The notice must name a date, at least ten (10) days after the last publication, at which time the board will receive or hear remonstrances from persons interested in or affected by the proceeding.
    (c) The works board shall consider the remonstrances, if any, and then take final action, confirming, modifying, or rescinding its original resolution. This action is conclusive as to all persons.".
    Renumber all SECTIONS consecutively.
    (Reference is to SB 299 as introduced.)

and when so amended that said bill do pass .

Committee Vote: Yeas 7, Nays 3.

____________________________________

Senator Charbonneau


AM 029902/DI 103    2009