N.M. Admin. Code § 17.4.2.19 - UTILITY RELOCATIONS AND REIMBURSEMENT

The Department develops their annual highway construction schedule based upon engineering studies conducted on an ongoing basis, that determines when and where highway construction projects will be let to contract. In the early stages of development, the Railroad & Utility Section of the Department or its approved representative will begin discussions with utility owners who are thought to have portions of their facilities in conflict with the proposed highway construction features. This Section sets forth the regulations pertaining to eligibility for utility relocation reimbursement, methods and scheduling of the utility relocation work required, and the documentation and record keeping required when the expenditure of public funds is involved.

A. Public and private utilities: Statutory reimbursement regulation pertains only to utilities. Utilities that have to be relocated or removed from the right-of-way will be handled in accordance with the terms of the New Mexico Public Highway Utility Accommodation Permit and these regulations. The relocation of a private utility, situated on private land and not dedicated to public use, is to be handled as a right-of-way taking consideration. A private utility on public right-of-way will be handled in accordance with terms of the permit and these regulations.

B. Interstate highway projects: On Interstate highway projects only, the required relocation of public utility facilities within existing public right-of-way is generally eligible for reimbursement by the Department, unless the facilities were installed with knowledge of future conflict, or as documented in an approved New Mexico Public Highway Utility Accommodation Permit which defines the future obligation of the utility owner. Facilities owned by a public utility that are situated on lands, easements or other properties, in which the owners have a documented compensable property right thereto, and which utilities shall be relocated because of conflict with highway features are also reimbursable to the utility owner.

C. Other state highway projects: On any type of state highway project (other than Interstate Highways) where the utilities are located on private right-of-way, and the owner holds a documented compensable property interest therein, the relocation required of the owner is compensable to the owner under the Department's regulations providing for reimbursement. On any Non-Interstate Projects where public utility facilities are located within existing public rights-of-way, the relocation cost is not eligible for reimbursement, unless the utility facility occupies the right-of-way under a Joint Use Agreement, issued and approved by the Department, which authorizes reimbursement issued and approved by the Department.

D. Other highway projects involving public funds: On any highway project where public utility facilities have once been relocated to the satisfaction of the Department for a specific highway project, but due to a revision or change in plan on the same highway project an additional complete or partial relocation is required, and the Department directs the utility to relocate all or some of their facilities by written instruction, then the additional complete or partial relocation costs are reimbursable to the utility owner by the Department.

(1) If additional relocations are required due to errors, omissions or faulty workmanship performed by the utility owner, their personnel and/or those engaged by the utility, or if any of these parties fail to complete the relocation in accordance with the Utility Adjustment Agreement, the utility relocation plans, specifications, and/or contract documents, the utility shall make any correction required as directed in writing by this Department. This remedial work will be at the sole expense of the utility owner, including administrative costs incurred by the Department pertaining to the remedial work, regardless of the cost responsibility for the previous relocation.

(2) On projects where overhead utilities that occupy public right of way have to be buried because of safety, environmental, archeological, aesthetic, or highway construction considerations, such relocation from overhead to underground shall be performed at the expense of the utility owner.

(3) Should any highway construction delay claims be paid by the Department because of unreasonable actions or inaction by the utility owner, all costs associated therewith shall be reimbursed to the Department by the utility within ninety (90) days of receipt of a reimbursement request.

E. Special districts, municipalities and counties: Pursuant to NMSA 1978, Section 67-8-21, financial assistance will be provided by the Department to special districts, municipalities and counties to relocate utilities if they can demonstrate they are unable to pay for the relocation costs themselves. To qualify for relocation costs, the special districts, municipalities and counties must officially notify the Department in writing that they have made a determination that utility relocation will be necessary as a result of a highway project. The notification must be explicit in terms of the need to relocate specific utilities and the need for financial assistance. It must also be specific as to whether the need is for engineering and design services, relocation construction or both. All reimbursement requests shall be considered on their individual merits and shall be forwarded to the Department for handling. All requests shall include the following as a minimum:

(1) A written request for reimbursement by an authorized representative of the utility.

(2) Letter of Transmittal, along with the following items:

(a) Copies of Utility Permits or other instruments authorizing the placement of utilities in their present location.

(b) Resolution by the appropriate governing body regarding the need to relocate utilities and the need for financial assistance, pursuant to relevant State statutes.

(c) Financial Statement that is current and sufficiently detailed for the State Department of Finance and Administration to perform an analysis and make an informed decision regarding the entity's financial condition.

(d) Current fiscal year budget as required by the local Government Division of the Department of Finance and Administration.

(i) Reimbursement for the cost of relocation shall be made only after the provisions of this regulation have been fulfilled and after the State Department of Finance and Administration, Local Government Division issues an official finding.

(ii) In the event the Department of Finance and Administration is unable to make a determination as to financial condition or the determination is not made in a timely manner, the Department shall then make such a determination.

F. Documentation required to determine eligibility for reimbursement: It is mandatory that a utility facility owner provide the Department with copies of their land use documentation to substantiate their right to occupy the public and private land affected by the proposed highway construction. If a utility owner is seeking reimbursement under New Mexico State Law, the right to compensation must be justified and substantiated by documented proof of the utilities existing compensable property rights. The Department will not reimburse a utility owner for any utility relocation occasioned by the construction of highway project unless the utility can prove their right to be paid. The documentation shall include copies of any land use conveyances, including Deeds, Easements, Permits, Land Use Agreements and any other documentation acceptable under the Laws of the State of New Mexico providing for transfer, sale and use of land, including a claim for prescriptive rights or adverse possession.

Notes

N.M. Admin. Code § 17.4.2.19

3/10/71, 11/15/96; Recompiled 12/31/01