COURT AFFIRMS MUNICIPAL AUTHORITY TO REQUIRE UTILITY RELOCATION FOR PUBLIC PROJECTS

A state district court has once again affirmed municipal authority to require private utilities to relocate their facilities for public projects.  In a dispute that began in 2005, the City of Houston adopted an ordinance that requires owners of facilities located in public rights-of-way to bear the cost of relocating their equipment to accommodate city public works projects. The city then required AT&T to remove its facilities for a city drainage improvement project. AT&T relocated its facilities but, believing the city’s relocation ordinance was preempted by federal law, sued the city to recover the cost of the relocation.

The federal Fifth Circuit Court of Appeals concluded in Southwestern Bell v. City of Houston that the Houston ordinance is valid. That decision is a favorable one for Houston and all other cities that have projects that might require relocation of utility facilities.

However, AT&T’s state law claims were not addressed in the federal courts. AT&T re-filed the suit in state court in Harris County. The suit claimed that AT&T has a “vested right” to use the city’s rights-of-way and that the city’s ordinance worked an unconstitutional taking of that property right. Previous case law indicates that the claim is without merit, and the state court agreed.  It granted the city’s motion for summary judgment in the case.

The suit seems to simply be another in a long and storied dispute between cities and telecommunications providers over right-of-way issues, and the court’s decision may be appealed.

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