By Rich Heiland
Free Press Publications, LLC
For Walker County News Today
VOTERS WILL SEE several Huntsville City Charter Amendments dealing with utilities and franchises when they go to the polls Nov. 6, or when early voting starts Monday, Oct. 22 at the Walker County Annex.
Cities control businesses that use public property to serve or reach customers. These can include anything from electricity to taxi cabs to television. And, they may well include at some point things that have not even been thought of today. It wasn’t long ago that there were no Uber nor Lyft for instance.
The City Charter has several sections that deal with these areas and in most cases they use pretty specific language, which means that if the Charter is going to be current any time a new service pops up, it would have to be changed.
For the most part the changes in the following sections are designed to make those changes unnecessary and in some cases, bring the Charter into line with current state law.
Shall Article XIII, Section 13.01 of the City relating to public property be amended to follow state law by deleting the first sentence:
“the right of control and use of the public streets, highways, sidewalks alleys, parks, public squares, and public places of the City is hereby declared to be inalienable by the City, except by ordinances not in conflict with the provisions of this charter.”
and replace it with……
“The City shall have full power to the extent the same is conferred by applicable law, to own, lease, operate, prohibit, regular and control any public utility within or without the limits of the City and the provide for the compensation and rental to be paid to the City by any public utility for the use of its streets, highways and public areas.”
Explanation:Specifically mentions utilities and adds specific language around compensation for use.
Shall the first sentence of Article XIII, Section 13.02 of the City Charter relating to granting franchises be amended by deleting the first sentence and inserting new first and second sentences so that Section 13.02 shall read as follows:
‘”The City Council shall have power by ordinance to grant, renew and extend all franchises of public utilities of every character operating with the City and for such purposes is granted full power. The term “public utility” as used herein is construed to mean any person, firm or corporation furnishing to the public any general public service, including but not limited to, heat, light, gas, power, telephone service, communication services, community antenna or cable television service, sewer service and treatment of water thereof, wrecker service, the carrying of passengers for hire or any public service whereby a right to, in part, appropriate or use the streets, highways or other property of the City, as necessary or proper is granted. Provided, however, that no franchise shall be granted for an indeterminate term and that no franchise shall be granted for a term of more than thirty years.”
Explanation:WHEW!! This new section speaks to how we led off this article. The previous wording did not take into account the proliferation of “new” franchise types or utilities. This does. And, by inserting language such as “any public service” that uses public property and “but not limited to” it anticipates yet-to-be-invented services.
Shall Article XI, Section 13.04 of the City Charter relating to transfer of franchises be amended by inserting new language “Except as provided by law….” To read as follows:
“Except as provided by law, no public utility franchise shall be transferred by the holder thereof, except with the approval of the Council expressed by the ordinance.”
Explanation: This brings the Charter into line with state law concerning transfers. There could be instances where state law controls transfers.
Shall Article XIII, Section 13.06 be amended by amending subsections 13.06(b) and 13.06(c) and inserting new subsection 13.06(j) so that subsections (b), (c) and (j) read as follows:
“(b) To impose reasonable regulations to ensure safe, efficient and continuous service to the public and establish reasonable standards of service and quality of products and prevent unjust discrimination in service or rates;
(c) To require such expansion, extension, enlargement, and improvement of plants and facilities as are necessary to provide adequate service to the public and to require that maintenance of facilities be performed at the highest reasonable standard of efficiency;
(j) To require that the franchise holder restore to the applicable City standards at that time, at his/her expense, all public and private property damaged or destroyed by construction, maintenance, or removal by such franchise holder.”
Explanation:The language clarifies, just what control the city has over utility franchises and what expectations are in terms of service, continued quality in terms of facilities, delivery etc and expectations for repairs to damage to both city and citizen property.
Shall Article XIII of the City Charter relating to franchise and public utilities be amended to include a new section 13.08 titled “Other Franchise Conditions” to read as follows:
“All franchises heretofore granted are recognized as contracts between the City and grantee, and the contractual rights as contained in any such franchise shall not be impaired by the provisions of this Charter, except that that power of the City to exercise the right of eminent domain in the acquisition of any utility property is in all things reserved; and except that the general power of the City, heretofore existing and herein provided for to regulate the rates and services of a grantee, shall include the right to require proper and extension of plant and service and the maintenance of the plant and equipment at the highest reasonable standard of efficiency. All franchises hereafter granted shall be held subject to all terms and conditions contained in the various sections of this article whether or not such terms are specifically mentioned in the franchise.”
Explanation:Again, WHEW! Basically all the legal jargon closes loopholes, eliminates any doubt that the city can control franchises whether instances of that control are specifically mentioned or not. If a franchise provides services, uses city property, the city controls it.
Shall Article XIII of the City Charter relating to franchise and public utilities be amended to include a new Section 13.09 titled “Regulation of Rates and Services” to read as follows:
“The City Council subject to applicable law shall have full power, after due notice and hearing, to regulate by ordinance the rates, charges, and fares of every public utility franchise holder operating in the City. Every franchise holder who shall request an increase in rates, charges or fares shall have, at a hearing of the City Council called to consider such request, the burden of establishing by clear, competent and convincing evidence the value of its investment property allocable to services in the City, the amount and character of its expenses and revenues connected with the rendering of such service, and any additional evidence required by the City Council. If no agreement between the City Council and the franchise holder can reached on such request for an increase in rates, charges or fares, the City Council may select and employ rate consultants, auditors and attorneys to investigate and, if necessary, litigate such request. The franchise holder shall reimburse the City for its reasonable and necessary expenses so incurred and may be allowed to recover such expenses through its rates during the period of recovery if authorized to do so by the City Council.
Explanation:Again, WHEW! But, these sections basically lay out the basis for contracts and remedies so hence, the legalese. It basically says a utility or franchise has to prove it needs more money from citizens and lays out how disagreements are resolved.
NEXT: Some loose ends and some thoughts on a couple that may depend on how you view government operations.
Rich Heiland, former publisher of the Huntsville Item and owner of Free Press publications, LLC, a reporting/writing firm working with media, has been a reporter, editor and publisher at several daily papers. He was part of a Pulitzer Prize winning team. He taught journalism at Western Illinois University. He can be reached at firstname.lastname@example.org or 936-293-0293.