28-7382. Telecommunication facility installation; highway construction projects; expanded use; action for just compensation; excavation; notice
A. The director, or a provider with permission from the department, may install telecommunication facilities pursuant to this article.
B. The director may lease a telecommunication facility to providers pursuant to this article and coordinate with providers regarding planning or relocating of a telecommunication facility and any related provider telecommunication facilities within the right-of-way at the provider's expense. The director may limit provider access to any telecommunication facilities within the right-of-way for initial installation and infrequent access for maintenance purposes and may take other actions necessary to maintain highway safety.
C. The director, or a provider with permission from the department, may install a telecommunication facility without regard to the timing of a related existing road construction project.
D. For the purposes of installing and operating a telecommunication facility, if the department, directly or through a provider, expands the use of an existing easement or other property right that is owned, held or used by the department for transportation purposes and the expanded use reduces the fair market value of the property over which the easement or other property right runs, the property owner is entitled to just compensation from the department or provider.
E. The property owner must commence an action in the superior court for just compensation based on diminution in value not later than eighteen months after the date the department provides notice to the property owner of the expanded use.
F. Notice under subsection E of this section is provided if sent by first class mail to the last known address of the property owner.
G. In an action for just compensation based on a claim of expanded use for installation of a telecommunication facility, all of the following apply:
1. The court or jury shall ascertain and assess the diminution in value of the property based on the difference between the fair market value of the entire parcel immediately before the expanded use and the fair market value of the entire parcel immediately after the expanded use.
2. Evidence of revenues or profits derived from or the rental value of an assembled communications corridor are not admissible in determining fair market value.
3. On payment of just compensation, the expanded use is deemed fully vested in the department and the expanded use shall run with the land.
H. A class action may not be maintained against the department or provider in any action for just compensation based on a claim of expanded use for the installation of a telecommunication facility.
I. Actions for just compensation as described in this section include trespass, inverse condemnation and other similar causes of action.
J. This section does not prohibit the department or a provider from reaching an agreement with a property owner to waive a claim for just compensation related to expanded use for the installation of a telecommunication facility or from acquiring the right to use the property by other lawful means.
K. If excavation is required to install fiber optic cable or other underground telecommunication facilities within an existing easement or other property right that is owned, held or used by the department for transportation purposes, a provider with permission from the department to install privately owned telecommunication facilities shall provide written notice to the property owner of the expanded use for installation of the telecommunication facility before excavation. The provider shall send the notice by first class mail to the last known address of the property owner. A notice sent to the property owner entitled to notice under this subsection must include all of the following:
1. The name and mailing address of the provider.
2. The mailing address, telephone number and email address of a representative of the provider.
3. A summary statement describing the activities to be conducted during the excavation.
4. The approximate dates when the excavation will start and end.
L. The notice prescribed in subsection K of this section is not required before the provider may use an easement or other property right that includes an authorization for excavation for the purposes of installing a telecommunication facility. Failure to provide the notice prescribed in subsection K of this section:
1. Prohibits the provider from proceeding with an excavation until the notice is provided.
2. Does not invalidate or prevent the department from expanding the use of the easement or property right as otherwise described in this section.
M. Compensation provided by this section shall be paid from the smart highway corridor trust fund established by section 28-7387.