Second Regular Session Sixty-fifth General Assembly STATE OF COLORADO INTRODUCED LLS NO. 06-0168.01 Jason Gelender HOUSE BILL 06-1003 HOUSE SPONSORSHIP Pommer, Borodkin, Green, Hefley, Larson, and McFadyen SENATE SPONSORSHIP Williams, Isgar, and Wiens House Committees Senate Committees Transportation & Energy A BILL FOR AN ACT Concerning private toll roads and toll highways, and, in connection therewith, specifying requirements that must be met before a corporation can construct a private toll road or toll highway. Bill Summary (Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments that may be subsequently adopted.) Transportation Legislation Review Committee. Requires a corporation formed for the purposes of constructing a private toll road or toll highway (corporation) to:  Specify in its certificate of incorporation a proposed route for the toll road or toll highway within 3 miles;  Commence work on the toll road or toll highway within 3 years after incorporating and continue the work until it has expended at least $500,000 or forfeit all rights acquired under its certificate of incorporation and be administratively dissolved;  Comply with all department of transportation (department) standards for state transportation projects when planning, constructing, and maintaining a toll highway;  Before constructing and operating a toll road or toll highway, undertake, at its own expense, the analysis and receive the approvals that would be required for any new segment of a federal interstate highway, including but not limited to: Certification by the executive director of the department (executive director) that all applicable required regional transportation and statewide transportation plans approved by the transportation commission (commission) include the toll road or toll highway and that the corporation has prepared an environmental, economic, and social impact analysis that meets all substantive and approval requirements imposed by specified federal laws and regulations; identification and implementation of all mitigation measures required by specified federal regulations; and transportation planning region approval with attendant incorporation into regional and statewide transportation plans of the proposed toll road or toll highway and the mitigation and financial plans prepared by the corporation;  Bear the responsibility for defending any legal challenge filed in a court to the adequacy of an impact analysis;  Within 45 days following its incorporation, send written notice of its incorporation, its intent to construct a toll road or toll highway, and the route of the toll road or toll highway as specified within its certificate of incorporation to the executive director and to the board of directors of each metropolitan planning organization through which the route of the toll road or toll highway will pass;  Within 45 days following its incorporation, provide written individual notice through a specified process to each person who owns real property within the route specified in the certificate of incorporation of the intent of the corporation to construct a toll road or toll highway and, if applicable, to acquire the person's real property, and record the notice with the office of the clerk and recorder of the county that includes the real property;  File a disclaimer of interest with the clerk and recorder's office in the county of residence of each person to whom the corporation provided written notice that expressly states that the certificate of incorporation does not effect an interest in the person's real property within the route specified in the certificate of incorporation;  Comply with certain standards, procedures, and other requirements specified in the act; and  Obtain plan and land use approval from the board of county commissioners of the county in which property to be affected by the construction is located. Specifies that a toll road or toll highway shall be included by amendment in an applicable regional and statewide transportation plan only if:  The corporation has complied with all planning, construction, maintenance, and environmental mitigation standards and requirements specified in or developed in accordance with the act;  The applicable transportation planning region and the department certify that the taxpayers of the state or any county will not bear any direct or indirect costs resulting from the construction, operation, or maintenance of the toll road or toll highway; and  The corporation establishes to the satisfaction of the commission that the proposed toll road or toll highway is financially viable and the corporation has or can obtain sufficient financial resources to construct, operate, and maintain the toll road or toll highway. Requires a corporation that has previously filed a certificate of incorporation that does not comply with the new notice and disclaimer of interest requirements of the act to file a new or amended certificate of incorporation within 30 days of the date the new requirements take effect that certifies that the corporation will satisfy the requirements. Specifies that if a corporation is sold or sells its interest in a toll road or toll highway or real property obtained for the purpose of constructing or operating a toll road or toll highway, the purchaser shall use any real property purchased only for the purpose of constructing or operating a toll road or toll highway. Allows the executive director to charge a fee to a corporation to cover the reasonable expenses incurred by the executive director and the department in determining whether to grant any approval or certification required to be obtained from the executive director. Requires a corporation to provide written notification to the commission of its intent to sell a property interest in a toll road or toll highway. Allows the commission, within 45 days following notification, to adopt a resolution that prohibits the corporation from completing the sale of the property interest, and allows the corporation to complete the sale of the property interest if the commission does not adopt such a resolution. Makes legislative finding and declarations. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. Legislative declaration. (1) The general assembly hereby finds and declares that: (a) Private toll roads and toll highways will help relieve the many transportation needs of the state. (b) When constructing and operating private toll roads and toll highways, certain requirements must be met to ensure compliance with federal and state laws and regulations. SECTION 2. 7-45-101 (1), Colorado Revised Statutes, is amended to read: 7-45-101. Additional statements in certificate - rights and interests in toll roads. (1) If any three or more persons associate to form a corporation for the purpose of constructing a road or highway under the provisions of law, their certificate of incorporation shall state the termini of said road or highway and the its specific route of the same, as near as may be. Such company within three miles. If the corporation complies with the requirements of this article, it shall have the right-of-way over the line named in the certificate ability to erect toll gates, not to exceed one in every ten miles of road or highway, and to collect toll at the rates prescribed by the board of county commissioners of the county in which said the road or highway is located, upon the application of the corporation. SECTION 3. Article 45 of title 7, Colorado Revised Statutes, is amended BY THE ADDITION OF THE FOLLOWING NEW SECTIONS to read: 7-45-101.5. Deadline to commence work - maintenance of effort requirement. A corporation incorporated in accordance with the provisions of section 7-45-101 shall commence work on the toll road or toll highway proposed in the certificate of incorporation within three years after the filing of the certificate and shall continue the work from day to day until at least five hundred thousand dollars is expended on the toll road or toll highway. If the corporation fails to perform the required work, it shall forfeit all rights acquired under its certificate of incorporation and be administratively dissolved. 7-45-104. Construction standards - planning - environmental review. (1) When planning, constructing, and maintaining a toll road or toll highway, a corporation formed under this article shall comply with all department of transportation standards for state transportation projects. (2) (a) Before constructing and operating a private toll road or toll highway, a corporation formed under this article shall undertake, at its own expense, the analysis and receive the approvals that would be required for a new segment of a federal interstate highway, including but not limited to: (I) Receipt of certification from the executive director of the department of transportation that all applicable regional transportation and statewide transportation plans required pursuant to section 43-1-1103, C.R.S., and approved by the transportation commission include the toll road or toll highway, that the corporation has obtained any required federal approvals from the United States department of transportation and the United States Army corps of engineers for federal interstate access permits or dredge and fill permits, and that an environmental, economic, and social impact analysis prepared by the corporation satisfies the requirements of 23 U.S.C. sec. 109, as amended, and 40 CFR 1500, 1501, 1502, 1503, 1505, 1506, and 1508, as amended, for the review of major actions having a significant impact on the human environment; (II) Identification of all mitigation measures as required by 40 CFR 1502.14 (f) and 1502.16 (h), as amended, and adoption of a monitoring and enforcement program and financial plan adequate to ensure the implementation of any mitigation measures necessary to avoid or eliminate any identified adverse impacts of the construction of the toll road or toll highway; and (III) With respect to each transportation planning region, as described in 2 CCR 604-2, section IV, as amended, within which the toll road or toll highway will be constructed, receipt of approval of an amendment to the regional transportation plan in effect for the region pursuant to sections 43-1-1102 and 43-1-1103, C.R.S., and to the statewide transportation plan required pursuant to section 43-1-1103 (5), C.R.S., that adopts the toll road or toll highway, mitigation plan, and financial plan proposed by the corporation. (b) The executive director of the department of transportation may charge a fee to a corporation to cover the reasonable expenses incurred by the executive director and the department in determining whether to grant any approval or certification required to be obtained by a corporation under paragraph (a) of this subsection (2). (3) For purposes of this section, "agency", as used in the incorporated parts of title 40 of the code of federal regulations, shall mean the executive director of the department of transportation; except that a corporation formed in accordance with this article for the purpose of constructing a private toll road or toll highway shall have the initial obligation to prepare the impact analysis to the satisfaction of the executive director. (4) Approval or certification of an impact analysis granted by the executive director of the department of transportation pursuant to this section may be appealed within thirty days of publication thereof in the Colorado register to the transportation commission for a final decision by the commission. Notwithstanding the receipt of any approval or certification of an impact analysis from the executive director or the commission, the corporation shall bear the responsibility for defending any legal challenge to the adequacy of an impact analysis filed in a court. (5) No transportation planning organization, as defined by 2 CCR 604-2, section III, as amended, shall approve an amendment to any applicable regional transportation plan as required by this section until after the impact analysis required by paragraph (a) of subsection (2) of this section has been approved by the department of transportation and has been made available to the transportation planning organization and the public for consideration at least thirty days prior to a public hearing on any proposed amendment to the regional transportation plan. (6) A regional and state transportation plan may be amended to include a toll road or toll highway proposed by a corporation formed in accordance with this article for the purpose of constructing the private toll road or toll highway only if: (a) The corporation has complied with all planning, construction, maintenance, and environmental mitigation standards and requirements specified in or developed in accordance with this section; (b) The applicable transportation planning region as described in 2 CCR 604-2, section IV, as amended, and the department of transportation certify that the taxpayers of the state or any county will not bear any direct or indirect costs resulting from the construction, operation, or maintenance of the toll road or toll highway; and (c) The corporation establishes to the satisfaction of the transportation commission that the proposed toll road or toll highway is financially viable and that the corporation has or can obtain sufficient financial resources to construct, operate, and maintain the toll road or toll highway. (7) A corporation formed under the provisions of this article shall provide written notification to the transportation commission of its intent to sell a property interest in a toll road or toll highway held by the corporation. The commission may, within forty-five days after notification, adopt a resolution that prohibits the corporation from completing the sale of the property interest. If the commission does not adopt such a resolution within the forty-five-day period, the corporation may complete the sale of the property interest. 7-45-105. Notice to department of transportation, affected metropolitan transportation organizations, affected property owners and lessees - identification of investors. (1) Within forty-five days of filing a certificate of incorporation pursuant to section 7-45-101, a corporation shall: (a) Send written notice of its incorporation, its intent to construct a toll road or toll highway, and the route of the toll road or toll highway as specified within its certificate of incorporation to the executive director of the department of transportation and to the board of directors of each metropolitan planning organization, as defined in section 43-1-1102 (4), C.R.S., through which the route of the toll road or toll highway will pass; (b) Cause written individual notice to be sent to each person who owns real property within the route specified in the certificate of incorporation of the intent of the corporation to construct a toll road or toll highway and, if applicable, to acquire the person's real property. The notice shall include a legible legal description that identifies the real property, and the corporation shall record the notice with the office of the clerk and recorder of the county that includes the real property identified in the notice. To provide written individual notice, the corporation shall provide the assessor of each county that includes affected real property with copies of each applicable written individual notice, and the assessor shall promptly mail the notice to each affected property owner of record. The assessor shall also publish the notice in the applicable newspaper of record in the county for four consecutive weeks. The corporation shall reimburse each assessor for the expenses incurred by the assessor in complying with the requirements of this paragraph (b). (c) File a disclaimer of interest with the clerk and recorder's office in the county of residence of each person to whom the corporation provided written notice pursuant to paragraph (b) of this subsection (1) that expressly states that the certificate of incorporation does not effect an interest in the person's real property within the route specified in the certificate of incorporation. (2) As used in this article, a toll road or toll highway may consist of improvements, including but not limited to paving, grading, landscaping, curbs, gutters, culverts, sidewalks, bikeways, lighting, bridges, overpasses, underpasses, frontage roads, access roads, interchanges, drainage facilities, mass transit lanes, park and ride facilities, toll collection facilities, service areas, which shall be limited to gas stations, restaurants, and travel-related services that serve motorists using the toll road or toll highway, administrative or maintenance facilities, and gas, electric, water, sewer, cable, data transmission, and other utilities located or to be located in the right-of-way of a toll road or toll highway, relating to the financing, construction, operation, or maintenance of a toll road or toll highway. Nothing in this article shall be construed to affect any common carrier, as defined in section 40-1-102 (3), C.R.S., including, but not limited to, any railroad. (3) A corporation that has filed a certificate of incorporation prior to the effective date of this section that has not satisfied the notice or disclaimer requirements of subsection (1) of this section shall file a new or amended certificate of incorporation within thirty days that certifies that the corporation will comply with those requirements. 7-45-106. Sale of corporation or assets - land to be used only for a toll road or toll highway. If a corporation formed under this article is sold or sells its interest in a toll road or toll highway or real property obtained for the purpose of constructing or operating a toll road or toll highway, the purchaser shall use any real property purchased only for the purpose of constructing or operating a toll road or toll highway. SECTION 4. Part 3 of article 3 of title 43, Colorado Revised Statutes, is amended BY THE ADDITION OF THE FOLLOWING NEW SECTIONS to read: 43-3-301.5. Toll road or toll highway. As used in this part 3, a toll road or toll highway may consist of improvements, including but not limited to paving, grading, landscaping, curbs, gutters, culverts, sidewalks, bikeways, lighting, bridges, overpasses, underpasses, frontage roads, access roads, interchanges, drainage facilities, mass transit lanes, park and ride facilities, toll collection facilities, service areas, which shall be limited to gas stations, restaurants, and travel-related services that serve motorists using the toll road or toll highway, administrative or maintenance facilities, and gas, electric, water, sewer, cable, data transmission, and other utilities located or to be located in the right-of-way of a toll road or toll highway relating to the financing, construction, operation, or maintenance of a toll road or toll highway. Nothing in this part 3 shall be construed to affect any common carrier, as defined in section 40-1-102 (3), C.R.S., including, but not limited to, any railroad. 43-3-302.5. County and municipal oversight over land use. A corporation formed in accordance with article 45 of title 7, C.R.S., for the purpose of constructing a toll road or toll highway shall obtain plan and land use approval from the board of county commissioners of each county and the governing body of each municipality in which property to be affected by the construction is located. SECTION 5. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.