Code of Virginia

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Code of Virginia
Title 15.2. Counties, Cities and Towns
Chapter 21. Franchises; Sale and Lease of Certain Municipal Public Property; Public Utilities

Article 1. Franchises; Sale and Lease of Certain Public Property.

§ 15.2-2100. Restrictions on selling certain municipal public property and granting franchises.

A. No rights of a city or town in and to its waterfront, wharf property, public landings, wharves, docks, streets, avenues, parks, bridges, or other public places, or its gas, water, or electric works shall be sold except by an ordinance passed by a recorded affirmative vote of three-fourths of all the members elected to the council, notwithstanding any contrary provision of law, general or special, and under such other restrictions as may be imposed by law. Notwithstanding any contrary provision of law, general or special, in case of a veto by the mayor of such an ordinance, it shall require a recorded affirmative vote of three-fourths of all the members elected to the council to override the veto.

B. No franchise, lease or right of any kind to use any such public property or any other public property or easement of any description, in a manner not permitted to the general public, shall be granted for a period longer than forty years, except for air rights together with easements for columns for support, which may be granted for a period not exceeding sixty years.

Before granting any such franchise or privilege for a term in excess of five years, except for a trunk railway, the city or town shall, after due advertisement, publicly receive bids therefor, in such manner as is provided by § 15.2-2102, and shall then act as may be required by law.

Such grant, and any contract in pursuance thereof, may provide that, upon the termination of the grant, the plant as well as the property, if any, of the grantee in the streets, avenues and other public places shall thereupon, without compensation to the grantee, or upon the payment of a fair valuation become the property of the city or town; but the grantee shall be entitled to no payment by reason of the value of the franchise. Any such plant or property acquired by a city or town may be sold or leased or, if authorized by general law, maintained, controlled, and operated by such city or town. Every such grant shall specify the mode of determining any valuation therein provided for and shall make adequate provisions by way of forfeiture of the grant, or otherwise, to secure efficiency of public service at reasonable rates and the maintenance of the property in good order throughout the term of the grant.

C. Any additional restriction now required in any existing municipal charter relating to the powers of cities and towns in selling or granting franchises or leasing any of their property is hereby superseded; however, nothing herein contained shall be construed as affecting the term of any existing franchise, lease or right. The requirement of an affirmative three-fourths vote of council shall apply only to the sale of the listed properties and not to their franchise, lease or use.

D. The provisions of this section shall only apply to cities or towns and shall not apply to counties or other political subdivisions.

Code 1950, § 15-727; 1962, c. 623, § 15.1-307; 1971, Ex. Sess., c. 64; 1997, c. 587; 2001, c. 498.

§ 15.2-2101. Ordinance proposing grant of franchise, etc., to be advertised.

A. Before granting any franchise, privilege, lease or right of any kind to use any public property described in § 15.2-2100 or easement of any description, for a term in excess of five years, except in the case of and for a trunk railway, the city or town proposing to make the grant shall advertise a descriptive notice of the ordinance proposing to make the grant once a week for two successive weeks in a newspaper having general circulation in the city or town. The descriptive notice of the ordinance may also be advertised as many times in such other newspaper or newspapers, published outside the city, town or Commonwealth, as the council may determine. The advertisement shall include a statement that a copy of the full text of the ordinance is on file in the office of the clerk of the city or town council.

B. The advertisement shall invite bids for the franchise, privilege, lease or right proposed to be granted in the ordinance. The bids shall be in writing and delivered upon the day and hour named in the advertisement and shall be opened in public session and marked for identification by the person designated in the advertisement to receive such bids. The cost of the required advertisement shall be paid by the city or town which shall be reimbursed by the person to whom the grant is made. The city or town shall have the right to reject any and all bids and shall reserve this right in the advertisement.

Code 1950, §§ 15-728, 15-729; 1962, c. 623, §§ 15.1-308, 15.1-309; 1971, Ex. Sess., c. 64; 1983, c. 138; 1997, c. 587; 2001, c. 498.

§ 15.2-2102. How bids received and to whom franchise awarded.

The presiding officer shall read aloud, or cause to be read aloud, a brief summary of each of the bids that have been received, for public information, and shall then inquire if any further bids are offered. If further bids are offered, they shall be received. The presiding officer shall thereafter declare the bidding closed. The presiding officer shall receive recommendations from the staff relative to any bids received in advance and staff's recommendations, if any, on any bids received at the advertised council meeting. After such other investigation as the council sees fit to make, the council shall accept the highest bid from a responsible bidder and shall adopt the ordinance as advertised, without substantial variation, except to insert the name of the accepted bidder. However, the council, by a recorded vote of a majority of the members elected to the council, may reject a higher bid and accept a lower bid from a responsible bidder and award the franchise, right, lease or privilege to the lower bidder, if, in its opinion, some reason affecting the interest of the city or town makes it advisable to do so, which reason shall be expressed in the body of the subsequent ordinance granting the franchise, right, lease or privilege. The process described in this section may run concurrently with any other advertisement or public ordinance requirements of this title, or such requirements as may be contained in charters of such cities or towns.

Code 1950, § 15-730; 1962, c. 623, § 15.1-310; 1997, c. 587; 2001, c. 498.

§ 15.2-2103. Award when no satisfactory bid received.

If, after such advertisements, no bid, or no satisfactory bid, is made, the council may advertise for further bids, and in case no bid at all is made, the council, if it sees fit to do so, may adopt an ordinance in the manner required by law granting such franchises, rights, leases or privileges to any person making application therefor.

Code 1950, § 15-731; 1962, c. 623, § 15.1-311; 1997, c. 587.

§ 15.2-2103.1. Solar services agreements; nondisclosure of proprietary information.

A. A solar services agreement may be structured as a service agreement or may be subject to available appropriation.

B. Nothing in this article shall be construed to require the disclosure of proprietary information voluntarily provided by a private entity in connection with a franchise, lease, or use under a solar services agreement that is excluded from mandatory disclosure pursuant to subdivision 29 of § 2.2-3705.6 of the Virginia Freedom of Information Act (§ 2.2-3700 et seq.).

C. Nothing in this section, however, shall be construed as authorizing the withholding of the financial terms of such agreements.

2017, c. 737.

§ 15.2-2104. Bond of person awarded franchise, etc.

The person to whom a franchise, right, lease or privilege is awarded, whether by competing bids or otherwise, shall first execute a bond, with good and sufficient security, in favor of the city or town. The bond shall be in such sum as the city or town shall determine, conditioned upon the construction, operation and maintenance of the plant or plants provided for in the granted franchise, right, lease or privilege.

Code 1950, § 15-732; 1962, c. 623, § 15.1-312; 1997, c. 587.

§ 15.2-2105. How amendments made to franchise, etc.; notice required.

No amendment or extension of any franchise, right, lease or privilege that now exists, or that may hereafter be authorized, which extends or enlarges the time or territory of such franchise, right, lease or privilege, shall be granted by any city or town until the provisions of §§ 15.2-2101 through 15.2-2104 have been complied with. No amendment that releases the grantee, or his assignee, from the performance of any duty required by the ordinance or that authorizes an increase in the user charges to be made by such grantee or assignee shall be granted until notice of such proposed amendment has given to the public by advertising the proposed amendment for ten days in some newspaper having general circulation in the city or town. The cost of such advertising shall be paid by the city or town, which shall be reimbursed by the person to whom the amendment is granted. No such amendment shall be adopted except by ordinance.

Code 1950, § 15-734; 1962, c. 623, § 15.1-314; 1997, c. 587.

§ 15.2-2105.1. Granting franchises for operation of a vehicular ferry transportation system.

The authority granted by this article for the granting of franchises by localities shall include the authority to grant an exclusive franchise for the operation of a vehicular ferry transportation system in Northumberland County. The county may regulate such system, including the establishment of fees and rates.

2002, c. 154.

§ 15.2-2106. Powers of court to enforce obedience by mandamus, etc.

The circuit courts for the cities and for the counties in which towns may be situated shall have jurisdiction by mandamus, according to the provisions of Article 2 (§ 8.01-644 et seq.) of Chapter 25 of Title 8.01, to enforce compliance by the cities or towns and by all grantees with all the terms, contracts and obligations of either party, as contained in the franchises, rights, leases or privileges, whether now in force or hereafter granted. The jurisdiction in mandamus shall not preclude any party from bringing any other suit or action which such party would be entitled to bring, at law or in equity.

Code 1950, § 15-735; 1962, c. 623, § 15.1-315; 1997, c. 587.

§ 15.2-2107. Persons occupying or using streets, etc., contrary to law.

Any person occupying or using any of the streets, avenues, parks, bridges or any other public places or public property or any public easement of any description of a city or town, in a manner not permitted to the general public, without having first legally obtained the consent of the city or town shall be guilty of a Class 4 misdemeanor. Each day's continuance thereof shall be a separate offense. Such occupancy or use shall be deemed a nuisance. The court trying the case may cause the nuisance to be abated and commit the offenders and all their agents and employees engaged in such offenses to jail until the order of the court is obeyed.

Code 1950, § 15-736; 1962, c. 623, § 15.1-316; 1983, c. 613; 1997, c. 587.

§ 15.2-2108. Repealed.

Repealed by Acts 2006, cc. 73 and 76, cl. 2, effective July 1, 2006.

§ 15.2-2108.1. Regulation of open video systems.

A locality may regulate any open video system authorized pursuant to 47 U.S.C. § 573 to the maximum extent permitted by federal law, including without limitation the (i) imposition of a gross revenues fee, if such locality has not adopted a currently effective ordinance pursuant to § 58.1-3818.3 and (ii) requirement of the provision and support of public, educational and governmental access channels on any such system.

1998, cc. 643, 652.

§ 15.2-2108.1:1. Franchise fees and public rights-of-way fees on cable operators.

A. As used in this section:

"Cable operator" means any person or group of persons that (i) provides cable service over a cable system and directly or through one or more affiliates owns a significant interest in such cable system or (ii) otherwise controls or is responsible for, through any arrangement, the management and operation of a cable system, whether or not the operator has entered into a franchise agreement with a locality. Cable operator does not include a provider of wireless or direct-to-home satellite transmission service.

"Cable service" means the one-way transmission to subscribers of (i) video programming as defined in 47 U.S.C. § 522 (20) or (ii) other programming service, and subscriber interaction, if any, which is required for the selection of such video programming or other programming service. Cable service does not include any video programming provided by a commercial mobile service provider as defined in 47 U.S.C. § 332 (d) and any direct-to-home satellite service as defined in 47 U.S.C. § 303 (v).

"Cable system" or "cable television system" means any facility consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service that includes video programming and that is provided to multiple subscribers within a community, except that such definition shall not include (i) a system that serves fewer than 20 subscribers; (ii) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (iii) a facility that serves only subscribers without using any public right-of-way; (iv) a facility of a common carrier that is subject, in whole or in part, to the provisions of Title II of the Communications Act of 1934, 47 U.S.C. § 201 et seq., except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services; (v) any facilities of any electric utility used solely for operating its electric systems; (vi) any portion of a system that serves fewer than 50 subscribers in any locality, where such portion is a part of a larger system franchised in an adjacent locality; or (vii) an open video system that complies with § 653 of Title VI of the Communications Act of 1934, as amended, 47 U.S.C. § 573.

"Franchise" means an initial authorization, or renewal thereof, issued by a franchising authority, including a locality or the Commonwealth Transportation Board, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement, or otherwise, that authorizes the construction or operation of a cable system, a telecommunications system, or other facility in the public rights-of-way, including either a negotiated cable franchise or an ordinance cable franchise.

B. Notwithstanding any other provision of law, if a cable operator uses the public rights-of-way the cable operator shall be subject to the Public Rights-of-Way Use Fee as provided in § 56-468.1. Any limitation as to fees charged for the use of the public rights-of-way shall not be applicable to pole attachments and conduit occupancy agreements between a cable operator and a locality or its authority or commission, which permits such operator to use the public poles or conduits.

C. Notwithstanding any other provision of law, no new or renewed cable franchise entered into on or after January 1, 2007, shall include a franchise fee as long as cable services are subject to the Virginia Communications Sales and Use Tax (§ 58.1-645 et seq.). Franchise fee as used in this subsection shall have the same meaning as that term is defined in 47 U.S.C. § 542 (g).

1. All cable franchises in effect as of January 1, 2007, shall remain in full force and effect, and nothing in this section shall impair any obligation of any such agreement; provided, however, that any requirement in such an existing franchise for payment of a monetary franchise fee based on the gross revenues of the franchisee shall be fulfilled in the manner specified in subdivision 2.

2. Each cable operator owing monetary payments for franchise fees, until the expiration of one or more such existing franchises, shall include with its monthly remittance of the Communications Sales and Use Tax a report, by locality, of the amounts due for franchise fees accruing during that month. The Department of Taxation shall, on behalf of the cable operator in the relevant locality, then distribute to each county, city, or town the amount reported by each locality's franchisee(s). Such payments shall reduce the cable operator's franchise fee liability. The monthly distributions shall be paid from the Communications Sales and Use Tax Trust Fund before making the other calculations and distributions required by § 58.1-662. Until distributed to the individual localities, such amounts shall be deemed to be held in trust for their respective accounts.

3. A locality's acceptance of any payment under subdivision 2 shall not prejudice any rights of the locality under the applicable cable franchises (i) to audit or demand adjustment of the amounts reported by its franchisee, or (ii) to enforce the provisions of the franchise by any lawful administrative or judicial means.

2006, c. 780.