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ST9302-CS 950320 (2) NICHOLS, JACKSON. DILLARD. HAGER & SMITH, L.L.P. LAWRENCE W ~,ACKSON Attorneys & Counselors at Law ROBERT L DILLARD !11 1800 Lincoln Plaza ROBERT E HAGER 500 Noah -;' kard gOBERT ~ OILLARD JR PETER G SMITH H LOU~S NICHOLS DAVID M BERMAN Dallas, Texas 75201 BRUCE A STOCKARD (214) 954-3333 Fax (214) 954-3334 March 20, 1995 VIA FACSIMILE AND REGULAR MAlL / fl ~/~~ nn Coppell, Texas 75019 .' : · .... . . . . ; 7ondemnat ,op of TU Electric Transnn Dear . Wit. Pursuant to your requ~s~,-t-hg4.tgler, signed'i~rovides the following opinion co cerni g the measure of damages payable to Texas Utility Electric Company CTU Electric") for the expense of removing and relocating the existing transmission line and poles located adjacent to Sandy Lake Road. In addition, you ask whether TU Electric could, by virtue of the City Franchise Agreement, relocate the transmission line and poles to the center median of Sandy Lake Road or in other public rights-of-way. For the reasons set forth herein, we conclude that TU Electric is entitled to be compensated for the removal and relocation of the transmission line and poles adjacent to Sandy Lake Road located by easement in private property off of the public right-of-way. We also conclude that, subject to the limitations contained in the Franchise Agreement, that TU Electric may relocate the transmission line and poles to the center median of Sandy Lake Road or to other available public rights-of- way. You ask whether the City or TU Electric should bear the expense of the removal and relocation of the transmission line and poles located adjacent to Sandy Lake Road. The removal and relocation is necessitated by the widening and improvement of Sandy Lake Road. It is well established that the right of use of public streets granted by franchise to public utilities is subordinate to the right of the City to expand or improve the streets. The original location of poles or other facilities in public rights-of-way does not create an irrevocable right to have such facilities remain forever in the same location. Thus, TU March 20, 1995 Page 2 Electric maybe required to relocate its lines and poles located in public right-of-way at its own expense when necessitated for the widening and improvement of a public street. In this case, TU Electric claims that the transmission line and poles are located on private property for which it has easements. The widening and improvement of Sandy Lake Road may require the condemnation of property in which TU Electric has located its facilities by virtue of privately owned easements, and no~ by virtue of the City Franchise Agreement. In that event, TU Electric is entitled to be compensated for the reasonable expense of removal and permanent relocation of the transmission line and poles which are located off the public right-of-way and on private land. The amount of compensation should consider the expense incident to the construction of a similar transmission line and poles on private property affording comparable facilities. Although the exact measure of damages will be determined by an appraiser and is subject to judicial interpretation, it should roughly equate to the cost of removal and permanent relocation of the transmission line and poles less depreciation and salvage value. If, however, the transmission line and poles are located in public rights-of-way, TU Electric will be required to remove and relocate the same at its own cost and expense. Next, you ask whether TU Electric may relocate the transmission line and poles to the center median of Sandy Lake Road or in other public right-of-way by virtue of the Franchise Agreement. The Cit3', by Ordinance No. 90-493, as amended, granted TU Electric, its successor and assigns a franchise to construct and maintain an electric power utility system (including telephone wires for its own use, underground conduits, poles, wires, and transmission lines) in the present and future streets, alleys, utility easements and public ways of the City. The placement of the facilities in public rights-of-way is not subject to prior approval by the City, however, the location of such shall not unreasonably interfere with the public use of the rights-of-way. Section 3 of Ordinance No. 90-493 requires the facilities be placed or relocated so as not to unreasonably interfere with drainage, travel on the street, sidewalk and bikeways, and be in such manner that public safety is not compromised. Section 2B of the Ordinance also requires that whenever the City deems it necessary to relocate by reason of the widening or straightening of a street, TU Electric, at no cost to the City, must relocate its facilities as soon as reasonably practicable upon the City specifying the new location along the right-of-way. Thus, the City has, by the Franchise Agreement, granted TU Electric the right to construct and maintain in the public streets, alleys and rights-of-way an electric utility power system, including but not limited to, cables, wires, lines, poles, and transmission lines for the purpose of supplying electricity to the City. If the City requires relocation of the facilities from public rights-of-way, TU Electric must relocate at its own costs if the City provides a new location for the facilities. This provision is quite common and can be found in most electric franchise agreements. Some of the more modern franchise agreements, such as TU AGG06931 NICHOLS. JACKSON, DILLARD. HAGER & SMITH. L.L.P. March 20, 1995 Page 3 Electric's Franchise Agreement with the City of Dallas, condition relocation from public rights-of-way without a claim for reimbursement if such requirement does not impose a financial hardship. Under the Dallas Agreement, if relocation will impose a financial hardship, TU Electric has the right to present alternative proposals to the City for consideration and the City may not require removal entirely from a street or other public right-of-way unless suitable alternatives are available for relocation at reasonable costs. Accordingly, if the TU Electric transmission line along Sandy Lake Road is located in public right-of-way, the City may require TU Electric to relocate the facilities at its own expense, if the City provides a new location along Sandy Lake Road. If the transmission line and poles are located in privately owned easements outside of the public right-of-way, the City's authority under Section 2B of the Ordinance to require relocation without cost, does not apply. Moreover, since the Franchise Agreement grants TU Electric the right to construct and maintain its facilities in the then present and future streets and public rights- of-way, TU Electric may relocate the transmission line and poles to the center median or other public right-of-way along Sandy Lake Road provided, however, such location does not unreasonably interfere with drainage or traffic. Whether the relocation will unreasonably interfere with traffic or drainage will have to be determined by an appropriate consultant retained for such purpose. In summary, if the TU Electric transmission line and poles along Sandy Lake Road are located in easements on private property outside of the public right-of-way, TU Electric is entitled to be compensated for the expense of removing and relocating its poles and lines. If the transmission line and poles are located in public right-of-way along Sandy Lake Road, the City can require TU Electric to relocate the facilities at its own expense, if the City provides a new location along Sandy Lake Road. Finally, if required to relocate the transmission line and poles from the present location, TU Electric may relocate the facilities to the center median or other public right-of-way by virtue of the Franchise Agreement provided such location does not unreasonably interfere with drainage and traffic. Thank you for your attention in this matter. If you have any questions in this regard, please don't hesitate to contact me. AGG06931 NICHOLS. JACKSON, DILLARD. HAGER & SMITH. L.L.P. March 20, 1995 Page 4 Very truly yours, NICHOLS, JACKSON, DILLARD, HAGER & SMITH, L.L.P. By: ~J,Z~ Peter G. Smit~7r~ PGS/ct AGG06931 NICHOLS. JACKSON, DILLARD. HAGER & SMITH, L.L.P.