S 374 Session 109 (1991-1992)
S 0374 General Bill, By Wilson and M.T. Rose
A Bill to amend Chapter 5, Title 57, Code of Laws of South Carolina, 1976,
relating to the state highway system, by adding Article 14 so as to enact the
Tollroad Act of 1991.
12/10/90 Senate Prefiled
12/10/90 Senate Referred to Committee on Transportation
01/08/91 Senate Introduced and read first time SJ-125
01/08/91 Senate Referred to Committee on Transportation SJ-125
A BILL
TO AMEND CHAPTER 5, TITLE 57, CODE OF LAWS OF SOUTH
CAROLINA, 1976, RELATING TO THE STATE HIGHWAY
SYSTEM, BY ADDING ARTICLE 14 SO AS TO ENACT THE
TOLLROAD ACT OF 1991.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. The General Assembly finds that there is a compelling
public need for rapid construction of safe and efficient highways for the
purpose of travel within the State, and that it is in the public interest to
encourage construction of additional, safe, convenient, and economic
highway facilities by private parties, provided that adequate safeguards
are provided against default in the construction and operation
obligations of the operators of roadways. The public interest shall
include without limitation the relative speed of the construction of the
project and the relative cost efficiency of private construction of the
project. Accordingly, the General Assembly finds that this article is
necessary for the public convenience, safety, and welfare.
SECTION 2. Chapter 5, Title 57 of the 1976 Code is amended by
adding:
"Article 14
Tollroad Act of 1991
Section 57-5-1910. This article may be cited as the Tollroad Act of
1991.
Section 57-5-1915. As used in this article, unless the context
requires a different meaning:
(1) 'Certificate' means the certificate of authority awarded
pursuant to this article which allows operation of a roadway.
(2) 'Department' means the South Carolina Department of
Highways and Public Transportation.
(3) 'Highway' means the entire width between the boundary lines
of every way or place of whatever nature open to the use of the public
under the provisions of this article for purposes of vehicular travel in this
State.
(4) 'Operation' means all functions and pursuits of the operator of
any roadway under this article which are directly or indirectly related to
acquisition, approval, construction, enlargement, maintenance,
patrolling, toll collections, or connections of the roadway or highway
with any other highway or with any street, road, or alley. This term also
includes, without limitation, operation of the roadway and management
of the affairs of the operator.
(5) 'Operator' means the corporation which submits to the
department an application for authority to construct, operate, or enlarge
a roadway, and which, after issuance of a certificate of authority, is
responsible for operation of any roadway under the provisions of this
article.
(6) 'Person' includes any natural person, corporation, partnership,
joint venture, and any other business entity; however, 'person' does not
include the State or any political subdivision or agency thereof, or other
corporate body.
(7) 'Roadway' means that portion of a highway improved,
designed, or ordinarily used for vehicular travel, exclusive of the
shoulder. A highway may include two or more roadways if divided by
a physical barrier or barriers or unpaved areas. 'Roadway', as used in
this article, includes only privately owned or operated highways for use
of which a toll or similar single-use charge is imposed.
(8) 'Toll' means the fee charged by the operator for a single use of
all or a portion of the roadway.
Section 57-5-1920. No person may construct, operate, or enlarge any
roadway, as defined in Section 57-5-1915(7) within the State without
first having obtained a certificate of authority from the department
authorizing the construction, operation, or enlargement.
Section 57-5-1925. A person may apply to the department for a
certificate of authority to construct or operate a roadway, or to extend or
enlarge a roadway for which a certificate has been issued under this
article. If the department determines in writing, after notice and
opportunity for a hearing that the application is complete, that approval
of the application is in the public interest, and that the applicant has
complied with the provisions of this article, it shall approve the
application, with or without modification, unless it receives an adopted
resolution of the governing body of any county or municipality through
which the roadway passes, requesting the department to deny the
application, in which case the department shall deny it. If the
application is approved the operator may construct the roadway. Upon
completion of construction and the opening of the roadway to the public,
the roadway must be kept at all times open for use by the public and
made accessible to the public, upon payment of the toll established by
the operator, but the roadway may be partially or completely closed,
temporarily, with the concurrence of the department, to protect the
public safety or for reasonable construction or maintenance procedures.
Section 57-5-1930. The department may charge a reasonable
application fee to cover the costs of processing and reviewing the
application. The application for a certificate of authority must contain
the following material and information:
(1) the geographic area to be served by the roadway and a survey
indicating the route of the roadway;
(2) a list of the property owners through whose property the
roadway or highway will pass or whose property will abut the roadway
or highway;
(3) the method by which the operator will secure all rights-of-way
required for the roadway, including a description of the nature of the
interest in the lands to be acquired, which provides, at a minimum, for
permanent dedication so long as the lands are used for transportation
purposes;
(4) the comprehensive plan or plans for all counties and
municipalities through which the roadway will pass and an analysis
which shows that the roadway conforms to these comprehensive plans;
(5) the operator's plan for financing the proposed construction or
enlargement of the roadway, including proposed tolls to be charged for
use of the roadway, projected amounts to be collected from the tolls and
anticipated traffic volume and detailed plans for distribution of funds,
including the priority in which necessary expenditures will be made;
(6) the operator's plan for operation of the proposed roadway or
roadway enlargement;
(7) a list of all permits and approvals required for construction of
the roadway from local, state, or federal agencies and a schedule for
securing the approvals;
(8) an overall description of the project, the project design, and
all proposed interconnections with the state highway system, including
any interstate highway, or secondary system of highways or the streets
or roads of any county and municipality not within the state highway
system;
(9) a list of public utility facilities to be crossed and plans for the
crossings or relocations of the facilities;
(10) a certificate of the operator that the roadway will be designed
and constructed to meet department standards, and substantially in
accordance with a proposed timetable which is agreeable to the
department, and that the operator will provide a design, review, and
inspection agreement with the department which must provide that the
department shall authorize construction upon review and approval of the
plans and specifications for the roadway and its interconnection with
other roads, and that it must inspect periodically the progress of the
construction work to ensure its compliance with the department
standards; and
(11) completion and performance bonds in form and amount
satisfactory to the department.
Section 57-5-1935. Eminent domain may not be exercised by the
operator for the purpose of acquiring any lands or interests in land, nor
any other property used by the operator for the construction or
enlargement of a roadway pursuant to this article.
Section 57-5-1940. The department shall:
(1) review and approve or deny the application;
(2) supervise and control the operator in the performance of its
duties under this article; and
(3) correct any abuse in the performance of the operator's public
duties.
The department shall require from the operator a verified report
describing the nature of its contractual and other relationships with
individuals or entities contracting with the operator for the provision of
significant financial, construction, or maintenance services. The
department shall review the report and other materials it considers
necessary for the purpose of determining improper or excessive costs,
and shall exclude from the operator's costs any amounts which it finds
are improper or excessive. The department also shall approve or revise
the toll rates charged by the operator. Initial rates must be approved if
they appear reasonable to the use in relation to the benefit obtained, not
likely to materially discourage use of the roadway and provide the
operator no more than a reasonable rate of return as determined by the
department. Thereafter, the department, upon application, complaint, or
its own initiative and after investigation, may order substituted for any
toll being charged by the operator, a toll which is set at a level which is
reasonable to the user in relation to the benefit obtained and which will
not materially discourage use of the roadway by the public and which
will provide the operator no more than a reasonable return as determined
by the department.
Section 57-5-1945. (A) The operator shall operate the roadway
and charge tolls for its use and shall pledge any revenue net of
operational expenses realized from tolls charged for the use of the
roadway in order to secure repayment of any obligations incurred for the
construction, enlargement, or operation of the roadway. The debts or
obligations of the operator are limited to an amount not to exceed the
cost of construction plus an amount for issuance cost and other financing
expenses, and a reasonable amount for reserve funds. The State must
not obligate its full faith and credit on any financing of the operator and
assumption of operation of the project does not obligate the State to pay
any obligation of the operator whether secured or otherwise, from
sources other than toll revenue. Subject to applicable permit
requirements, the operator may cross any canal or navigable watercourse
if the crossing does not unreasonably interfere with navigation and use
of the waterway. In operating the roadway, the operator may:
(1) classify traffic according to reasonable categories for
assessment of tolls;
(2) with the consent to the department, make and enforce
reasonable regulations, including regulations; which:
(a) set maximum and minimum speeds that must conform to
department and state practices;
(b) exclude undesirable vehicles or cargoes or materials
from the use of the roadway; or
(c) establish commuter lanes for use during all or any part of
a day and limit the use of those lanes to certain traffic.
(3) The enumeration of powers in this subsection does not
limit the power of the operator to do anything it considers necessary and
appropriate in the operation of the roadway, if the practice is reasonable
and nondiscriminatory.
(B) The operator shall:
(1) file and maintain at all times with the department an
accurate schedule of rates charged to the public for use of all or any
portion of the roadway and it also shall file and maintain a statement that
the rates shall apply uniformly to all users within any reasonable
classification the operator elects to implement. These rates may be
neither applied nor collected in a discriminatory fashion. Free vehicular
passage is permitted for public officers and employees and law
enforcement and public safety-related personnel whose official duties
require use of the roadway.
(2) construct and maintain the roadway for anticipated use
according to appropriate standards of the department for public
highways operated and maintained by the department, and enlarge or
expand the road when unsatisfied demand for use of the roadway makes
it economically feasible to do so. The operator shall agree with the
department for inspection of construction work by the department at
appropriate times during any construction or enlargement. In addition,
it shall cooperate fully with the department in establishing any
interconnection with the roadway that the department may make.
(3) contract with the State for enforcement of the traffic and
public safety laws by state authorities, and may similarly contract with
appropriate political subdivisions for those portions of the roadway
within counties and municipalities.
Section 57-5-1950. If the department approves of the project, project
design, and connections of the roadway, before granting the certificate
of authority, it shall enter into a comprehensive agreement with the
applicant which provides, inter alia, that the department shall review and
approve plans and specifications for the roadway to determine if they
conform to state practices; that the department shall inspect and approve
construction of the roadway to determine if it conforms to the plans and
specifications or state construction and engineering standards; that the
department, through the life of the roadway project, shall monitor the
maintenance practices of the operator and take appropriate actions to
ensure the performance of maintenance obligations; and that the
department is reimbursed its direct project costs, by the operator, for the
services performed by the department. The agreement also must
provide, inter alia, that the operator shall establish and fund accounts
which must ensure that funds are available to meet the obligations of the
operator, including reasonable reserves for contingencies and
maintenance replacement activities. The approval of plans and
specifications, and construction may be undertaken in phases, but no
construction may commence until approval of plans including that phase
of construction. The services for which the department must be
reimbursed include project development costs, such as those attendant
to preparation of environmental impact statements, which are necessary
for the construction of the roadway by a private operator but have been
performed by the department. The agreement may include a provision
that the department shall perform services necessary for project
development on behalf of the operator, and in such a case, the
department must be reimbursed fully by the operator for its direct costs.
Section 57-5-1955. An operator who constructs, operates, or
enlarges a roadway pursuant to this article shall secure and maintain
policies of public liability insurance in a form and amount satisfactory
to the department and sufficient to insure coverage of tort liability to the
public and employees, and to enable the continued operation of the
roadway. Proofs of coverage and copies of policies must be filed with
the department.
Section 57-5-1960. (A) Before the issuance of a certificate of
authority by the department and contemporaneously with the filing of
any application materials with the department, the applicant shall
provide the governing body of each county and municipality through
which any part of the roadway passes with the application information
and materials required by Section 57-5-1930 and an overall description
of the project and its benefits. The governing body may participate in
procedures conducted by the department concerning the application.
(B) When the operator wishes to occupy lands owned by any
county or municipality, including the streets or roads of any county or
municipality it first shall obtain a franchise allowing the occupancy or
it may obtain the necessary interests through grant or other appropriate
conveyance to the operator for a period of time not to exceed the term
of the certificate.
(C) Where the applicant wishes to interconnect with the streets or
roads of a county or municipality, and the locality is willing to allow its
interconnection, it shall submit appropriate plans for the connection to
the governing body, which shall approve the connection if it determines
that the connection meets all appropriate engineering requirements.
(D) The operator and the county or municipality also may agree
on any supplemental or related matters according to terms and
conditions as are reasonable, appropriate, and in the public interest, and
a county or municipality may enter into such an agreement.
Section 57-5-1965. The applicant shall include in the application a
list of public utility facilities and rights-of-way to be crossed or
otherwise affected in the construction of the roadway and a plan and
schedule for the crossings. The operator and each public utility whose
works are to be crossed or affected shall cooperate fully with the other
in planning and arranging of the manner of the crossing or relocation of
the facilities. A public utility possessing the powers of eminent domain
expressly is granted these powers in connection with the moving or
relocation of facilities to be crossed by the roadway or which must be
relocated to the extent that the moving or relocation is made necessary
by construction of the roadway, which includes construction of
temporary facilities for the purpose of providing service during the
period of construction. If the applicant or operator and the public utility
whose facilities are to be crossed or relocated is not able to agree upon
a plan for the crossing or any necessary relocation, either party may
request the department to inquire into the need for the crossing or
relocation and to decide whether the crossing or relocation should be
compelled, and if so, the manner in which the crossing or relocation is
to be accomplished and any damages due either party arising out of the
crossing or relocation. The department may employ expert engineers to
examine the location and plans for the crossing or relocation, hear any
objections and consider modifications, and make a recommendation to
the commission. In such a case, the cost of the experts must be borne
equally by the applicant and the public utility, unless the department
determines that it would be unjust, in which case the cost must be borne
as the department decides. Railroads are included within the scope of
the term 'public utility' for purposes of this section.
Section 57-5-1970. No crossing of a railway, highway, street, road,
or alley may be at grade. Crossings must pass above or below the
railway, highway, street, road, or alley, and those crossings are
permitted, subject to the provisions of this article.
Section 57-5-1975. In the event of material and continuing default
in the performance of the operator's construction or operation duties or
failure of the operator to comply with the terms of its agreement with the
department, or if construction has not begun within two years of the
issuance of a certificate, the department, after a hearing before the
Highways and Public Transportation Commission in which the applicant
or operator has notice and opportunity to participate, may revoke the
certificate of authority for the roadway, declare a default in the
construction or operation of the roadway, and make or cause to be made
the appropriate claim or claims under any completion or performance
bonds, or take such other action as it considers appropriate, under the
circumstances. In case of revocation of a certificate, the applicant or
operator shall thereafter be without any authority to construct or operate
the roadway, and the department may take over construction and
operation of the roadway, and may proceed to take any steps which are
in the public interest, including completion of construction or additions
to the roadway, closing the roadway, or any intermediate step. The
department shall receive the full proceeds of any payments due to claims
against bonding companies or sureties for this purpose. In addition, in
such event the operator shall grant to the department all of his right, title,
and interest in the assets of the corporation. Nothing in this article may
be construed to limit the department's exercise of the power of eminent
domain. In either case, the operator may obtain compensation from the
department for the assets, except that the department first shall deduct
from the value of the assets all of its costs incurred in connection with
completion or fulfillment of the unperformed obligations of the operator,
and any other costs associated with the events contemplated in this
section. The department shall take into account monies received from
the proceeds of any payment or completion bond in calculating the
amount due the operator.
Section 57-5-1980. (A) The roadways and highways constructed
or operated under this article may be policed by officers of the State
Highway Patrol, even though all or some portion of any such projects lie
within the limits of a municipality or county, and just as if the roadway
and highway were a part of the state highway system. The operator and
the State Highway Patrol shall agree upon reasonable terms and
conditions pursuant to which the activities contemplated in this section
may take place. The officers must be under the exclusive control and
direction of the State Highway Patrol and are responsible for the
preservation of public peace, prevention of crime, apprehension of
criminals, protection of the rights of persons and property, and
enforcement of the laws of the State, within the limits of any highway
and roadway. All other law enforcement officers of the State and of
each county and municipality through which any roadway extends have
the same powers and jurisdiction within the limits of the roadways and
highways as they have beyond the limits and shall have access to the
highway and roadway at any time for the purpose of exercising such
powers and jurisdiction. This authority does not extend to the private
offices, buildings, garages, and other improvements of the operator to
any greater degree than the police power extends to any other private
buildings and improvements.
(B) The traffic and motor vehicle laws of the State apply to
persons and motor vehicles on the roadway or highway, and the powers
of arrest of law enforcement officers are the same as those applying to
conduct on the state highway system. Punishment for offenses is as
prescribed by law for conduct occurring on the state highway system.
Section 57-5-1985. Within ninety days of the completion and
closing of the original permanent financing, the operator shall provide
full details of the financing, including the terms of all bonds, to the
department, and shall certify the date on which all debt will be retired.
The department may require that the operator provide copies of any
relevant documents, and shall review the financing and determine the
date on which all bonds or other debt constituting the original permanent
financing must be retired. After establishing this date, the department
shall enter an order terminating the operator's authority pursuant to the
certificate of authority on a date which is ten years from the date on
which all of the original permanent financing is retired completely. At
the request of the operator or the department, or on its own initiative, the
department may revise its order to modify the date for termination of the
certificate of authority in order to take into account any refinancing of
the original permanent financing, where the refinancing or modification
is in the public interest, or any refinancing for the purpose of expansion,
or early retirement of the debt. Upon the termination of the certificate
of authority, the authority and duties of the operator under this article
shall cease, and the highway assets and improvements of the operator
must be dedicated to the State for highway purposes.
Section 57-5-1990. There is a fund established by the department
from the toll revenues described in this section, for the purpose of
funding transportation improvements which are related to or affected by
the toll road. Toll rates must be set in multiples of five cents; however,
the department shall order that that percentage of each toll by which the
toll established exceeds that necessary to provide the operator with an
amount necessary to meet the operator's obligations under Section
57-5-1945 and earn a reasonable return must be committed to the fund.
In addition the operator, the department, and the counties and
municipalities through which the road passes jointly may petition the
department to establish an additional toll amount to be committed to this
fund."
SECTION 3. This act takes effect upon approval by the Governor.
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