§ 136-4. Chief Engineer.

There shall be a Chief Engineer, who shall be a career official and who shall be the administrative officer of the Department of Transportation for highway matters. For purposes of this section, the term "highway matters" includes planning, design, construction, maintenance, operations, procurements, agreements, delivery methods, standards, and specifications for current and future State-maintained roads. The Chief Engineer shall be appointed by the Secretary of Transportation and he may be removed at any time by the Secretary of Transportation. He shall be paid a salary to be set in accordance with Chapter 126 of the General Statutes, the North Carolina Human Resources Act. The Chief Engineer shall have such powers and perform such duties as the Secretary of Transportation shall prescribe.

History

(1921, c. 2, ss. 5, 6; C.S., s. 3846(g); 1933, c. 172, s. 17; 1957, c. 65, s. 2; 1961, c. 232, s. 2; 1965, c. 55, s. 3; 1973, c. 507, s. 22; 1975, c. 716, s. 7; 1977, c. 464, s. 11; 1983, c. 717, s. 45; 1983 (Reg. Sess., 1984), c. 1034, s. 164; 1985, c. 757, s. 191; 2012-85, s. 4; 2013-382, s. 9.1(c); 2016-94, s. 35.26(a).)

Editor's Note. - Session Laws 2012-142, s. 24.19(a), provides: "The Regional New Starts & Capital Program within the Public Transportation Division of the Department of Transportation is eliminated. The unexpended balance of funds for this program is reallocated to the LYNX Blue Line Extension/Northeast Corridor project."

Session Laws 2012-142, s. 1.2, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2012.'"

Session Laws 2012-142, s. 27.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2012-2013 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2012-2013 fiscal year."

Session Laws 2012-142, s. 27.7, is a severability clause.

Session Laws 2013-382, s. 9.1(b), provides: "The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

"(1) The State Personnel Commission is renamed the 'North Carolina Human Resources Commission.'

"(2) The Office of State Personnel is renamed the 'North Carolina Office of State Human Resources.'

"(3) The State Personnel Director is renamed the 'Director of the North Carolina Office of State Human Resources.'"

Session Laws 2013-382, s. 9.1(c), provides: "Modification of References. - The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary."

Session Laws 2013-382, s. 9.2, provides: "No action or proceeding pending on the effective date of this section [August 21, 2013], brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies."

Session Laws 2013-382, s. 9.3, provides: "Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective [August 21, 2013] may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office."

Session Laws 2016-94, s. 35.26(b), provides: "By December 1, 2016, the Chief Engineer of the Department of Transportation shall develop and implement a policy for delegating authority to the Division Engineers to execute capital and maintenance programs within the Division Engineers' respective divisions. By December 15, 2016, the Chief Engineer shall report to the Joint Legislative Transportation Oversight Committee with a detailed summary of the policy developed under this subsection."

Session Laws 2016-94, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2016.'"

Session Laws 2016-94, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2016-2017 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2016-2017 fiscal year."

Session Laws 2016-94, s. 39.7, is a severability clause.

Effect of Amendments. - Session Laws 2012-85, s. 4, effective June 26, 2012, substituted "Chief Engineer" for "State Highway Administrator" through the section.

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted "North Carolina Human Resources Act" for "State Personnel Act" at the end of the second sentence.

Session Laws 2016-94, s. 35.26(a), effective July 1, 2016, added the second sentence in the section.

Legal Periodicals. - For article, "The Law Is What It Is, But Is It Equitable? The Law of Encroachments Where the Innocent, Negligent, and Willful Are Treated the Same," see 39 Campbell L. Rev. 287 (2017).

§§ 136-4.1 through 136-5: Repealed by Session Laws 1973, c. 507, s. 23.

§ 136-5.1. Transportation system.

For the purpose of this Chapter, transportation system is defined as all modes of transportation infrastructure owned and maintained by the North Carolina Department of Transportation, including roads, highways, rail, ferry, aviation, public transportation, and bicycle and pedestrian facilities.

History

(2009-266, s. 5.)

Editor's Note. - Session Laws 2020-59, ss. 1-4, effective June 30, 2020, provides: "SECTION 1. For purposes of this section, the following shall apply:

"(1) The term ‘Rail Corridor' shall mean the former Murphy Branch rail corridor consisting of the only railway located solely within the boundaries of Cherokee County and between the Town of Andrews and the Town of Murphy in Cherokee County between Milepost 101.1 and Milepost 113.7, excluding all of the following:

"a. Any portion of that railway located in the Town of Murphy on land owned by the United States government or any of its agencies.

"b. Any privately owned railroad or any privately owned railroad right-of-way.

"(2) Where there is more than one track in the Rail Corridor, the State shall retain its property interest in the Rail Corridor for a distance of 25 feet from the center of each track.

"SECTION 2.(a) Subject to applicable federal requirements, the State's interest in the right-of-way claimed by the North Carolina Department of Transportation with respect to the Rail Corridor is uniformly reduced to 25 feet on each side of the center line of the tracks traversing the Rail Corridor. Upon reduction of the right-of-way, the interest in real property previously held by the State of North Carolina is transferred to the current adjacent real property owner of record according to the land records in the Office of the Register of Deeds of Cherokee County upon that real property owner's release of all claims against the State and the Department of Transportation with respect to that right-of-way. All transfers of interest in real property by the State of North Carolina and all releases of claims against the State and the North Carolina Department of Transportation by the owners of adjacent real property must occur within two years of the effective date of this act.

"(b) Within 180 days of the current adjacent property owner releasing all claims against the State and the Department of Transportation, the Department of Transportation shall, at no expense to the State or to that Department, provide to that real property owner a quitclaim deed, or, if applicable, a deed of release, to the real property so transferred. The quitclaim deed or deed of release shall be recorded in the Office of the Register of Deeds of Cherokee County.

"(c) Notwithstanding the provisions of Chapters 136 and 146 of the General Statutes or any other provision of State law, transfers in accordance with this section shall not require Council of State or Board of Transportation approval.

"SECTION 3. Notwithstanding Section 2 of this act, the Department of Transportation shall retain an easement for right of entry and access for maintenance and repair of the track and associated structures that is parallel to each side of the retained portion of the Rail Corridor and 15 feet in width. No buildings or structures shall be constructed or placed within this easement nor shall trees or other permanent foliage be allowed to grow within the easement. Nothing in this section shall prevent the maintenance and repair easement established by this section from also being subject to an agricultural or conservation easement under State or federal law.

"SECTION 4. Nothing in this act shall apply, nor be construed to apply, to any publicly owned or privately owned rail or other transportation corridor, except the Rail Corridor. Nothing in this act shall alter or amend, nor be construed to alter or amend, the application of the federal law with respect to railroad rights-of-way; publicly owned and privately owned rail transportation corridors are and shall remain under the jurisdiction of the Surface Transportation Board, the independent federal agency charged with regulation of various modes of surface transportation. Nothing in this act shall alter or amend, nor be construed to alter or amend, that privately owned rail transportation corridor rights-of-way in this State are managed by the respective privately owned railroad."

§§ 136-6 through 136-9: Repealed by Session Laws 1957, c. 65, s. 12.

§ 136-10. Audit and rules.

The operations of the Department of Transportation shall be subject to the oversight of the State Auditor pursuant to Article 5A of Chapter 147 of the General Statutes. Rules adopted by the Department of Transportation are subject to Chapter 150B of the General Statutes.

History

(1921, c. 2, s. 24; C.S., s. 3846(m); 1933, c. 172, s. 7; 1957, c. 65, s. 4; 1973, c. 507, s. 5; 1977, c. 464, s. 7.1; 1983, c. 913, s. 25; 1991, c. 477, s. 5.)

§ 136-11: Repealed by Session Laws 2010-165, s. 1, effective August 2, 2010.

History

(1933, c. 172, s. 11; 1957, c. 65, s. 11; c. 269, s. 1; c. 349, s. 7; 1973, c. 507, s. 5; 1977, c. 464, s. 7.1; repealed by 2010-165, s. 1, effective August 2, 2010.)

Editor's Note. - Former G.S. 136-11 pertained to annual reports to the Governor.

§ 136-11.1. Prior consultation on transportation projects.

Prior to any action of the Board on a transportation project, the Department shall inform all municipalities, counties, and utility providers affected by a planned transportation project and request each to submit within 45 days a written resolution expressing their views on the project. A municipality or county may designate a Transportation Advisory Committee to submit its response to the Department's request for a resolution. Upon receipt of a written resolution from all affected parties or their designees, or the expiration of the 45-day period, whichever occurs first, the Board may take action. The Department and the Board shall consider, but shall not be bound by, the views of the affected parties or their designees on each transportation project. The failure of an affected party to express its views within the time provided shall not prevent the Department or the Board from taking action. The Department shall not be required to send notice under this section if it has already received a written resolution from the affected party on the planned transportation project. "Action of the Board", as used in this section, means approval by the Board of: the Transportation Improvement Program and amendments to the Transportation Improvement Program; the Secondary Roads Paving Program and amendments to the Secondary Roads Paving Program; and individual applications for access and public service road projects, contingency projects, small urban projects, and spot safety projects that exceed two hundred fifty thousand dollars ($250,000). The 45-day notification provision may be waived upon a finding by the Secretary of Transportation that emergency action is required. Such findings must be reported to the Joint Legislative Transportation Oversight Committee.

History

(1998-169, s. 3; 2016-90, s. 1; 2017-57, s. 34.4A(a).)

Editor's Note. - Session Laws 2017-57, s. 34.4(b), made the amendment to this section by Session Laws 2017-57, s. 34.4(a), effective June 28, 2017, and applicable to transportation projects planned on or after that date.

Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.6, is a severability clause.

Effect of Amendments. - Session Laws 2016-90, s. 1, effective July 11, 2016, substituted "two hundred fifty thousand dollars ($250,000)" for "one hundred fifty thousand dollars ($150,000)."

Session Laws 2017-57, s. 34.4A(b), rewrote the first sentence, which read: "Prior to any action of the Board on a transportation project, the Department shall inform all municipalities and counties affected by a planned transportation project and request each affected municipality or county to submit within 45 days a written resolution expressing their views on the project."; in the third sentence, substituted "parties" for "municipalities or counties" and substituted "parties or their designees" for "municipalities and counties"; substituted "an affected party" for "a county or municipality" in the fourth sentence; and substituted "party" for "county or municipality" in the fifth sentence For effective date and applicability, see editor's note.

Legal Periodicals. - For 1999 legislative survey, see 21 Campbell L. Rev. 323 (1999).

§ 136-12. Reports to General Assembly; Transportation Improvement Program submitted to members and staff of General Assembly.

1. The Department of Transportation shall report to the Joint Legislative Transportation Oversight Committee by March 1 of each year on how the previous fiscal year's funds for maintenance and construction were allocated and expended. The report shall include expenditures of both State and federal funds and shall be in sufficient detail that the county can be identified. A full account of each road project shall be kept by and under the direction of the Department of Transportation or its representatives, to ascertain at any time the expenditures and the liabilities against all projects; also records of contracts and force account work. The account records, together with all supporting documents, shall be open at all times to the inspection of the Governor or road authorities of any county, or their authorized representatives, and copies thereof shall be furnished such officials upon request.
2. Repealed by Session Laws 2011-145, s. 28.35(a), effective July 1, 2011.
3. At least 30 days before it approves a Transportation Improvement Program in accordance with G.S. 143B-350(f)(4) or approves interim changes to a Transportation Improvement Program, the Department shall submit the proposed Transportation Improvement Program or proposed interim changes to a Transportation Improvement Program to the following members and staff of the General Assembly:
   1. The Speaker and the Speaker Pro Tempore of the House of Representatives;
   2. The Lieutenant Governor and the President Pro Tempore of the Senate;
   3. The Chairs of the House and Senate Appropriations Committees;
   4. Each member of the Joint Legislative Transportation Oversight Committee; and
   5. The Fiscal Research Division of the Legislative Services Commission.

History

(1921, c. 2, s. 23; C.S., s. 3846( l ); 1933, c. 172, s. 17; 1957, c. 65, s. 11; 1973, c. 507, s. 5; 1977, c. 464, s. 7.1; 1989, c. 692, s. 1.3; c. 770, s. 74.16; 1993, c. 321, s. 169.2(d); 1996, 2nd Ex. Sess., c. 18, s. 19.4(c); 2006-203, s. 74; 2011-145, s. 28.35(a); 2018-74, s. 6.)

Cross References. - As to periodic adjustment of permit fees to assure that revenue generated by the fees equals the cost of administration of Oversize/Overweight Permit Unit Program, see G.S. 20-119(e).

For department reporting provisions on projects let without a performance or payment bond, see G.S. 143-129(i).

Editor's Note. - Session Laws 1993 (Reg. Sess., 1994), c. 769, s. 20.10 provides that the Departments of Transportation and Correction shall report, quarterly beginning October 1, 1994, to the Joint Legislative Transportation Oversight Committee on the implementation of the recommendations of the Inmate Labor Subcommittee.

Session Laws 1996, Second Extra Session, c. 18, s. 19.4(c) was codified as subsection (a1) of this section at the direction of the Revisor of Statutes.

Session Laws 2006-203, s. 126, provides, in part: "Prosecutions for offenses committed before the effective date of this act [July 1, 2007] are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions."

Effect of Amendments. - Session Laws 2011-145, s. 28.35(a), effective July 1, 2011, repealed subsection (a1).

Session Laws 2018-74, s. 6, effective July 1, 2018, in subsection (a), rewrote the first sentence and added the second sentence.

§ 136-12.1: Repealed by Session Laws 2018-74, s. 3, effective July 1, 2018.

History

(1991, c. 689, s. 208; repealed by 2018-74, s. 3, effective July 1, 2018.)

Editor's Note. - Former G.S. 136-12.1 pertained to biennial report on off-premise sign regulatory program.

§ 136-12.2: Repealed by Session Laws 2011-145, s. 28.35(a), effective July 1, 2011.

History

(2010-31, s. 28.9; repealed by Session Laws 2011-145, s. 28.35(a), effective July 1, 2011.)

Editor's Note. - Former G.S. 136-12.2 pertained to semiannual report on Department personnel positions.

Session Laws 2011-145, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2011.'"

Session Laws 2011-145, s. 32.5, is a severability clause.

§ 136-12.3. Outsourcing and project delivery reports.

1. Intent. - It is the intent of the General Assembly to take all steps necessary to assist the Department of Transportation in accelerating project delivery and reducing costs incurred by the State. The General Assembly finds that shifting more control over projects to each of the Highway Divisions can assist in achieving this intent. Further, the General Assembly encourages each Highway Division to increase its outsourcing of preconstruction activities to private contractors to sixty percent (60%) of the total cost of preconstruction activities performed by the Highway Division, with the belief that increased outsourcing will also assist in achieving this intent. Therefore, in order to assess the results from shifting project control and increasing the use of outsourcing, and to determine what adjustments may be necessary to improve upon the results, the General Assembly finds that reports are necessary to collect baseline data to establish appropriate targets.
2. Outsourcing Report. - For each Highway Division, the Department shall provide a detailed report on all payments made to private contractors for preconstruction activities. In order to compare internal costs incurred with payments made to private contractors, and except as otherwise provided in this subsection, the Department shall include project-specific expenses incurred by division, regional, or central staff. The Department shall not include expenses incurred for central business units that support and oversee outsourcing functions. The information in the first report submitted under this subsection shall be used to establish a baseline to use for setting future preconstruction outsourcing targets. The Department shall submit the report required under this subsection to the Joint Legislative Transportation Oversight Committee by March 1 of each year.
3. Project Delivery Report. - For each Highway Division, the Department shall provide a detailed annual report in accordance with the following requirements:
   1. The report shall detail the progress of the following types of projects in the State Transportation Improvement Program current for the period covered by the report:
      1. Bridge projects with a cost in excess of ten million dollars ($10,000,000).
      2. Interstate highway projects.
      3. Rural highway projects.
      4. Urban highway projects.
   2. For each project, the report shall indicate the status of all of the following phases:
      1. Planning and design in progress.
      2. Right-of-way acquisition in progress.
      3. Project let for construction.
      4. Construction substantially complete and traffic using facility.
   3. For each project, and as applicable, the report shall include an indication and explanation for project stages that are delayed during the period covered by the report and the delay has been for more than one year.
   4. For each project, the report shall include the planned and actual completion date for any required environmental documentation.
   5. The Department shall submit the report required under this subsection to the Joint Legislative Transportation Oversight Committee by March 1 of each year.
4. Combined Report. - The Department may combine the reports required to be submitted under subsections (b) and (c) of this section into a single report.
5. Consultation Required. - If a Highway Division fails to meet the established preconstruction outsourcing target in two consecutive reports submitted under subsection (b) of this section, or if a report submitted under subsection (c) of this section identifies a Highway Division as having three or more project stages delayed for more than one year, the Division Engineer of the Highway Division identified in the report shall consult with the Joint Legislative Transportation Oversight Committee. The Division Engineer shall submit a request for consultation to (i) all members of the Committee, (ii) the chairs of the House of Representatives Appropriations Committee on Transportation if the General Assembly is in session at the time consultation is required under this subsection, (iii) the chairs of the Senate Appropriations Committee on the Department of Transportation if the General Assembly is in session at the time consultation is required under this subsection, and (iv) the Fiscal Research Division of the General Assembly. The request for consultation shall consist of a written report providing an explanation for the failure or delay and a plan for remedying the failure or delay. If the Committee does not hold a meeting to hear the consultation required by this subsection within 90 days after the consultation request has been submitted, the consultation requirement is satisfied.

History

(2017-57, s. 34.13; 2018-74, s. 4.)

Effect of Amendments. - Session Laws 2018-74, s. 4, effective July 1, 2018, in subsection (b), substituted "report" for "biannual report" in the first sentence, substituted "report" for "reports," and "March 1" for "September 1 and March 1" in the last sentence; substituted "and" for "a" in subdivision (c)(2)a.; deleted "by March 1" following "submitted" in subsection (d).

§ 136-13. Malfeasance of officers and employees of Department of Transportation, members of Board of Transportation, contractors, and others.

1. It is unlawful for any person, firm, or corporation to directly or indirectly corruptly give, offer, or promise anything of value to any officer or employee of the Department of Transportation or member of the Board of Transportation, or to promise any officer or employee of the Department of Transportation or any member of the Board of Transportation to give anything of value to any other person with intent:
   1. To influence any official act of any officer or employee of the Department of Transportation or member of the Board of Transportation;
   2. To influence such member of the Board of Transportation, or any officer or employee of the Department of Transportation to commit or aid in committing, or collude in, or allow, any fraud, or to make opportunity for the commission of any fraud on the State of North Carolina; and
   3. To induce a member of the Board of Transportation, or any officer or employee of the Department of Transportation to do or omit to do any act in violation of his lawful duty.
2. It shall be unlawful for any member of the Board of Transportation, or any officer or employee of the Department of Transportation, directly or indirectly, to corruptly ask, demand, exact, solicit, accept, receive, or agree to receive anything of value for himself or any other person or entity in return for:
   1. Being influenced in his performance of any official act;
   2. Being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or to make opportunity for the commission of any fraud on the State of North Carolina; and
   3. Being induced to do or omit to do any act in violation of his official duty.
3. The violation of any of the provisions of this section shall be cause for forfeiture of public office and shall be a Class H felony which may include a fine of not more than twenty thousand dollars ($20,000) or three times the monetary equivalent of the thing of value whichever is greater.

History

(1921, c. 2, s. 49; C.S., s. 3846(cc); 1933, c. 172, s. 17; 1957, c. 65, s. 11; 1965, c. 55, s. 7; 1973, c. 507, s. 6; 1975, c. 716, s. 7; 1977, c. 464, ss. 7.1, 10, 10.1; 1979, c. 298, ss. 3, 4; 1993, c. 539, s. 1308; 1994, Ex. Sess., c. 24, s. 14(c).)

§ 136-13.1. Use of position to influence elections or political action.

No member of the Board of Transportation nor any officer or employee of the Department of Transportation shall be permitted to use his position to influence elections or the political action of any person.

History

(1965, c. 55, s. 8; 1973, c. 507, s. 7; 1975, c. 716, s. 7; 1977, c. 464, ss. 7.1, 10.1; 1979, c. 298, s. 3.)

§ 136-13.2. Falsifying highway inspection reports.

1. Any person who knowingly falsifies any inspection report or test report required by the Department of Transportation in connection with the construction of highways, shall be guilty of a Class H felony.
2. Any person who directs a subordinate under his direct or indirect supervision to falsify an inspection report or test report required by the Department of Transportation in connection with the construction of highways, shall be guilty of a Class H felony.
3. Repealed by Session Laws 1979, c. 786, s. 2, effective May 8, 1979.

History

(1979, c. 523; c. 786, s. 2; 1981, c. 793, s. 1; 2005-96, s. 1.)

Editor's Note. - Subsections (a) and (b), as amended by Session Laws 2005-96, s. 1, effective December 1, 2005, substituted the word "person" for other wording in those subsections, and is applicable to offenses committed on or after that date.

§ 136-14. Members not eligible for other employment with Department; no sales to Department by employees; members not to sell or trade property with Department; profiting from official position; misuse of confidential information by Board members.

1. No Board member shall be eligible to any other employment in connection with the Department.
2. No Board member or any salaried employee of the Department shall furnish or sell any supplies or materials, directly or indirectly, to the Department.
3. No Board member shall, directly or indirectly, engage in any transaction involving the sale of or trading of real or personal property with the Department.
4. No Board member shall profit in any manner by reason of the Board member's official action or official position, except to receive salary, fees and allowances as by law provided.
5. No Board member shall take any official action or use the Board member's official position to profit in any manner the Board member's immediate family, a business with which the Board member or the Board member's immediate family has a business association, or a client of the Board member or the Board member's immediate family with whom the Board member, or the Board member's immediate family, has an existing business relationship for matters before the Board.
6. No Board member shall attempt to profit from a proposed project of the Department if the profit is greater than that which would be realized by other persons living in the area where the project is located. If the profit under this subsection would be greater for the Board member than other persons living in the area where the project is located not only shall the member abstain from voting on that issue, but once the conflict of interest is apparent, the member shall not discuss the project with any other Board member or other officer or employee of the Department except to state that a conflict of interest exists. Under this subsection a Board member is presumed to profit if the profit would be realized by a Board member's immediate family, a business with which the Board member or the Board member's immediate family has a business association, or a client of the Board member or the Board member's immediate family with whom the Board member, or the Board member's immediate family, has an existing business relationship for matters before the Board. Violation of this subsection shall be a Class I felony.
7. No Board member, in contemplation of official action by the Board member, by the Board, or in reliance on information that was made known to the Board member in the Board member's official capacity and that has not been made public, shall commit any of the following acts:
   1. Acquire a pecuniary interest in any property, transaction, or enterprise or gain any pecuniary benefit that may be affected by such information or official action; or
   2. Intentionally aid another to do any of the above acts.
8. As used in this section, the following terms mean:
   1. "Board". - The Board of Transportation.
   2. "Board member". - A member of the Board of Transportation.
   3. "Business association". - A director, employee, officer, or partner of a business entity, or owner of more than ten percent (10%) interest in any business entity.
   4. "Department". - The Department of Transportation.
   5. "Immediate family". - Spouse, children, parents, brothers, and sisters.
   6. "Official action". - Actions taken while a Board member related to or in connection with the person's duties as a Board member including, but not limited to, voting on matters before the Board, proposing or objecting to proposals for transportation actions by the Department or the Board, discussing transportation matters with other Board members or Department staff or employees in an effort to further the matter after the conflict of interest has been discovered, or taking actions in the course and scope of the position as a Board member and actions leading to or resulting in profit.
   7. "Profit". - Receive monetary or economic gain or benefit, including an increase in value whether or not recognized by sale or trade.
9. Except as otherwise provided in this section, a violation of this section shall be a Class H felony which may include a fine of not more than twenty thousand dollars ($20,000), or three times the value of the transaction, whichever amount is greater.

History

(1933, c. 172, s. 10; 1957, c. 65, s. 11; 1965, c. 55, s. 9; 1973, c. 507, s. 8; 1975, c. 716, s. 7; 1977, c. 464, ss. 7.1, 10.2; 1979, ch. 298, s. 3; 1985, c. 689, s. 28; 1993, c. 539, s. 1309; 1994, Ex. Sess., c. 24, s. 14(c); 1998-169, s. 4.)

§ 136-14.1. Transportation engineering divisions.

For purposes of administering transportation activities, the Department of Transportation shall have authority to designate boundaries of transportation engineering divisions for the proper administration of its duties.

History

(1957, c. 65, s. 5; 1965, c. 55, s. 10; 1973, c. 507, s. 9; 1975, c. 716, s. 7; 1993, c. 483, s. 2.)

§ 136-14.2. Division engineer to manage personnel.

Except for general departmental policy applicable to all of the State the division engineer shall have authority over all divisional personnel matters and over Department employees in his division making personnel decisions.

History

(1975, 2nd Sess., c. 983, s. 92.)

§ 136-15. Establishment of administrative districts.

The Department of Transportation may establish such administrative districts as in its opinion shall be necessary for the proper and efficient performance of highway duties. The Department may from time to time change the number of such districts, or it may change the territory embraced within the several districts, when in its opinion it is in the interest of efficiency and economy to make such change.

History

(1931, c. 145, s. 5; 1933, c. 172, s. 17; 1957, c. 65, s. 11; 1973, c. 507, s. 10; 1975, c. 716, s. 7.)

§ 136-16. Funds and property converted to State Highway Fund.

Except as otherwise provided in this Chapter, all funds and property collected by the Department of Transportation shall be paid or converted into the State Highway Fund. For the purposes of this section, funds include proceeds from the sale of real property owned by the Department.

History

(1919, c. 189, s. 8; C.S., s. 3595; 1933, c. 172, s. 17; 1957, c. 65, s. 11; 1973, c. 507, s. 5; 1977, c. 464, s. 7.1; 2007-323, s. 27.15; 2019-199, s. 2(a).)

Effect of Amendments. - Session Laws 2007-323, s. 27.15, effective July 1, 2007, in the middle of this section, inserted "including the proceeds from the sale of real property originally purchased with funds from the State Highway Fund," and minor punctuation changes.

Session Laws 2019-199, s. 2(a), effective August 21, 2019, inserted "in this Chapter" after "provided" near the beginning of the first sentence, and deleted ", including the proceeds from the sale of real property originally purchased with funds from the State Highway Fund," following "Transportation" near the middle of the first sentence; and added the last sentence.

Legal Periodicals. - For a survey of 1996 developments in constitutional law, see 75 N.C.L. Rev. 2252 (1997).

§§ 136-16.1 through 136-16.3: Reserved for future codification purposes.

§§ 136-16.4, 136-16.5: Repealed by Session Laws 2013-360, s. 34.9, effective July 1, 2013.

History

(§§ 136-16.4, 136-16-5: 1987, c. 738, s. 170(a), (c); 1989, c. 500, s. 53; 1993, c. 321, s. 153(a); 2005-276, s. 28.12; repealed by 2013-360, s. 34.9, effective July 1, 2013.)

Editor's Note. - Former G.S. 136-16.4 pertained to continuing aviation appropriations. Former G.S. 136-16.5 pertained to purposes for continuing aviation appropriations.

Session Laws 2013-360, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2013.'"

Session Laws 2013-360, s. 38.5, is a severability clause.

§ 136-16.6: Repealed by Session Laws 2013-360, s. 34.14(i), effective January 1, 2014.

History

(1987, c. 738, s. 170(a), (c); 1989, c. 500, s. 53; 1991, c. 689, s. 65; 1995, c. 324, s. 18.2; 1996, 2nd Ex. Sess., c. 18, s. 19.12; 1997-443, s. 32.30(f); repealed by 2013-360, s. 34.14(i), effective January 1, 2014.)

Editor's Note. - Former G.S. 136-16.6 pertained to continuing rail appropriations.

Session Laws 2013-360, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2013.'"

Session Laws 2013-360, s. 38.5, is a severability clause.

§§ 136-16.7 through 136-16.9: Repealed by Session Laws 2013-360, s. 34.9, effective July 1, 2013.

History

(§§ 136-16.7 - 136-16.9: 1987, c. 738, s. 170(a), (c); 1989, c. 500, s. 53; repealed by 2013-360, s. 34.9, effective July 1, 2013.)

Editor's Note. - Former G.S. 136-16.7 pertained to purposes for continuing rail appropriations. Former G.S. 136-16.8 pertained to continuing appropriations for public transportation. Former G.S. 136-16.9 pertained to purposes for continuing public transportation appropriations.

Session Laws 2013-360, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2013.'"

Session Laws 2013-360, s. 38.5, is a severability clause.

§ 136-16.10. Allocations by Department Chief Financial Officer to eliminate overdrafts.

The Chief Financial Officer of the Department of Transportation shall allocate at the beginning of each fiscal year from the various appropriations made to the Department of Transportation for State Construction, State Funds to Match Federal Highway Aid, State Maintenance, and Ferry Operations, sufficient funds to eliminate all overdrafts on State maintenance and construction projects, and these allocations shall not be diverted to other purposes.

History

(1997-443, s. 32.3; 2010-165, s. 2.)

Effect of Amendments. - Session Laws 2010-165, s. 2, effective August 2, 2010, in the section catchline and text, substituted "Chief Financial Officer" for "Controller."

§ 136-17.2. Members of the Board of Transportation represent entire State.

The chairman and members of the Board of Transportation shall represent the entire State in transportation matters and not represent any particular person, persons, or area. The Board shall, from time to time, provide that one or more of its members or representatives shall publicly hear any person or persons concerning transportation matters in each of said geographic areas of the State.

History

(1973, c. 507, s. 3; 1977, c. 464, s. 7.1; 1987, c. 783, s. 3; 1993, c. 483, s. 3.)

Local Modification. - Village of Bald Head Island: 1997-324, s. 1.

Editor's Note. - Session Laws 1999-237, s. 27.3, provides that, notwithstanding any other provision of law, the Board of Transportation may award up to three contracts annually for construction of transportation projects on a design-build basis after a determination by the Department that delivery of the projects must be expedited and that it is not in the public interest to comply with normal design and construction contracting procedures. Prior to the award of a design-build contract, the Secretary of Transportation is to report to the Joint Legislative Transportation Oversight Committee and to the Joint Legislative Commission on Governmental Operations on the nature and scope of the project and the reasons an award on a design-build basis will best serve the public interest.

Session Laws 1999-237, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 1999'."

Session Laws 1999-237, s. 30.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 1999-2001 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 1999-2001 biennium."

Session Laws 1999-237, s. 30.4, is a severability clause.

§ 136-17.2A: Repealed by Session Laws 2013-183, s. 4.3, effective July 1, 2013.

History

(1989, c. 692, s. 1.4; c. 770, s. 74.7; 1999-237, ss. 27.19, 27.20(a); 1999-422, s. 2; 2000-134, s. 22; 2005-403, s. 3; 2009-497, s. 1; 2010-31, ss. 28.8, 28.10; 2010-165, s. 3; 2012-42, s. 2; repealed by 2013-183, s. 4.3, effective July 1, 2013.)

Editor's Note. - Former G.S. 136-17.2A pertained to distribution formula for funds expended on Intrastate System and Transportation Improvement Program.

§ 136-18. Powers of Department of Transportation.

The Department of Transportation has the following powers:

1. The authority and general supervision over all matters relating to the construction, maintenance, and design of State transportation projects, letting of contracts therefor, and the selection of materials to be used in the construction of State transportation projects under the authority of this Chapter.
2. Related to right-of-way:
   1. To take over and assume exclusive control for the benefit of the State of any existing county or township roads.
   2. To locate and acquire rights-of-way for any new roads that may be necessary for a State highway system.
   3. Subject to the provisions of G.S. 136-19.5(a) and (b), to use existing rights-of-way, or locate and acquire such additional rights-of-way, as may be necessary for the present or future relocation or initial location, above or below ground, of all of the following:
      1. Telephone, telegraph, distributed antenna systems (DAS), broadband communications, electric and other lines, as well as gas, water, sewerage, oil, and other pipelines, to be operated by public utilities as defined in G.S. 62-3(23) and which are regulated under Chapter 62 of the General Statutes, or by municipalities, counties, any entity created by one or more political subdivisions for the purpose of supplying any such utility services, electric membership corporations, telephone membership corporations, or any combination thereof.
      2. Nonutility owned or operated communications or data transmission infrastructure.
   4. To change or relocate any existing roads that the Department of Transportation owns or acquires.
   5. To acquire by gift, purchase, or otherwise, any road or highway, or tract of land or other property whatsoever that may be necessary for a State transportation system and adjacent utility rights-of-way.
   6. , g. Repealed by Session Laws 2019-76, s. 23, effective October 1, 2019.
3. To provide for such road materials as may be necessary to carry on the work of the Department of Transportation, either by gift, purchase, or condemnation. When any person, firm, or corporation owning a deposit of sand, gravel, or other material necessary for the construction of the system of State highways has entered into a contract to furnish the Department of Transportation any of such material, at a price to be fixed by the Department of Transportation, thereafter the Department of Transportation may condemn the necessary right-of-way under Article 9 of this Chapter, to connect the deposit with any part of the system of State highways or public carrier. Easements to material deposits condemned under this Article shall not become a public road and the condemned easement shall be returned to the owner as soon as the deposits are exhausted or abandoned by the Department of Transportation.
4. To enforce by mandamus or other proper legal remedies all legal rights or causes of action of the Department of Transportation with other public bodies, corporations, or persons.
5. To make rules, regulations, and ordinances for the use of, and to police traffic on, the State highways, and to prevent their abuse by individuals, corporations, and public corporations, by trucks, tractors, trailers, or other heavy or destructive vehicles or machinery, or by any other means whatsoever, and to provide ample means for the enforcement of the rules, regulations, and ordinances. The violation of any of the rules, regulations, or ordinances so prescribed by the Department of Transportation constitutes a Class 1 misdemeanor. The Department of Transportation shall not make a rule, regulation, or ordinance that conflicts with any statute or any ordinance of incorporated cities or towns, except the Department of Transportation may regulate parking upon any street which forms a link in the State highway system, if the street is maintained with State highway funds.
6. To establish a traffic census to secure information about the relative use, cost, value, importance, and necessity of roads forming a part of the State highway system, which information shall be a part of the public records of the State, and upon which information the Department of Transportation shall, after due deliberation and in accordance with these established facts, proceed to order the construction of the particular highway or highways.
7. To assume full and exclusive responsibility for the maintenance of all roads other than streets in towns and cities, forming a part of the State highway system from the date of acquiring the roads. The Department of Transportation may maintain all streets constructed by the Department of Transportation in towns of less than 3,000 population by the last census, and such other streets as may be constructed in towns and cities at the expense of the Department of Transportation, whenever in the opinion of the Department of Transportation it is necessary and proper so to do.
8. To give suitable names to State highways and change the names as determined by the Board of Transportation of any highways that shall become a part of the State system of highways.
9. To employ appropriate means for properly selecting, planting, and protecting acceptable trees, shrubs, vines, grasses, or legumes in the highway right-of-way in the promotion of erosion control, landscaping, and general protection of the highways; to acquire by gift or otherwise land for and to construct, operate, and maintain roadside parks, picnic areas, picnic tables, scenic overlooks, and other appropriate turnouts for the safety and convenience of highway users; and to cooperate with municipal or county authorities, federal agencies, civic bodies, and individuals in the furtherance of those objectives. For purposes of this subdivision, the term "acceptable" means plants the Department of Transportation determines will maintain a stable and aesthetic roadside, with a strong preference for using plants the U.S. Department of Agriculture has classified as native to North Carolina. None of the roadside parks, picnic areas, picnic tables, scenic overlooks, or other turnouts, or any part of the highway right-of-way shall be used for commercial purposes except for any of the following:
   1. Materials displayed in welcome centers in accordance with G.S. 136-89.56.
   2. Vending machines permitted by the Department of Transportation and placed by the Division of Services for the Blind of the Department of Health and Human Services, as the State licensing agency designated pursuant to Section 2(a)(5) of the Randolph-Sheppard Act (20 U.S.C. 107a(a)(5)). The Department of Transportation shall regulate the placing of the vending machines in highway rest areas and shall regulate the articles to be dispensed.
   3. Activities permitted by a local government pursuant to an ordinance meeting the requirements of G.S. 136-27.4.
10. To make proper and reasonable rules, regulations, and ordinances for the placing or erection of telephone, telegraph, electric, and other lines, above or below ground, wireless facilities, signboards, fences, gas, water, sewerage, oil, or other pipelines, and other similar obstructions that may, in the opinion of the Department of Transportation, contribute to the hazard upon any of the highways or in any way interfere with the highways, and to make reasonable rules and regulations for the proper control thereof. And whenever the order of the Department of Transportation shall require the removal of, or changes in, the location of telephone, telegraph, electric, or other lines, wireless facilities, signboards, fences, gas, water, sewerage, oil, or other pipelines, or other similar obstructions, the owners thereof shall at their own expense, except as provided in G.S. 136-19.5(c), move or change them to conform to the order of the Department of Transportation. Any violation of these rules and regulations or noncompliance with these orders constitutes a Class 1 misdemeanor. For purposes of this subdivision, "wireless facilities" has the definition set forth in G.S. 160D-931.
11. To regulate, abandon, and close to use grade crossings on any road designated as part of the State highway system, and whenever a public highway has been designated as part of the State highway system and the Department of Transportation, in order to avoid a grade crossing or crossings with a railroad or railroads, continues or constructs the road on one side of the railroad or railroads, the Department of Transportation may abandon and close to use the grade crossings; and whenever an underpass or overhead bridge is substituted for a grade crossing, the Department of Transportation may close to use and abandon the grade crossing and any other adjacent crossing.
12. To comply fully with the provisions of the Intermodal Surface Transportation Efficiency Act of 1991, Pub. L. No. 102-240, 105 Stat. 1914 (1991), as amended, and all other federal aid acts and programs the Department is authorized to administer. The Department of Transportation may enter into all contracts and agreements with the United States government relating to survey, construction, improvement and maintenance of roads, urban area traffic operations studies, and improvement projects on the streets on the State highway system and on the municipal system in urban areas, under the provisions of the present or future congressional enactments, to submit such scheme or program of construction or improvement and maintenance as may be required by the Secretary of Transportation or otherwise provided by federal acts, and to do all other acts necessary to carry out fully the cooperation contemplated and provided for by present or future aid acts of Congress for the construction or improvement and maintenance of federal aid of State highways. The good faith and credit of the State are further pledged to make available funds necessary to meet the requirements of the acts of Congress, present or future, appropriating money to construct and improve rural post roads and apportioned to this State during each of the years for which federal funds are now or may hereafter be apportioned by the act or acts, to maintain the roads constructed or improved with the aid of funds so appropriated and to make adequate provisions for carrying out the construction and maintenance. The good faith and credit of the State are further pledged to maintain the roads now built with federal aid and hereafter to be built and to make adequate provisions for carrying out the maintenance. Upon request of the Department of Transportation and in order to enable it to meet the requirements of acts of Congress with respect to federal aid funds apportioned to the State of North Carolina, the State Treasurer may, with the approval of the Governor and Council of State, issue short term notes from time to time, and in anticipation of State highway revenue, and to be payable out of State highway revenue for such sums as may be necessary to enable the Department of Transportation to meet the requirements of the federal aid appropriations, but in no event shall the outstanding notes under the provisions of this section amount to more than two million dollars ($2,000,000).
13. To establish, administer, and receive federal funds for a transportation infrastructure banking program as authorized by the Intermodal Surface Transportation Efficiency Act of 1991, Pub. L. 102-240, as amended, and the National Highway System Designation Act of 1995, Pub. L. 104-59, as amended. The Department of Transportation may apply for, receive, administer, and comply with all conditions and requirements related to federal financial assistance necessary to fund the infrastructure banking program. The infrastructure banking program established by the Department of Transportation may utilize federal and available State funds for the purpose of providing loans or other financial assistance to governmental units, including toll authorities, to finance the costs of transportation projects authorized by the federal aid acts referenced in this subdivision. Such loans or other financial assistance shall be subject to repayment and conditioned upon the establishment of such security and the payment of such fees and interest rates as the Department of Transportation may deem necessary. The Department of Transportation may apply a municipality's share of funds allocated under G.S. 136-41.1 or G.S. 136-44.20 as necessary to ensure repayment of funds advanced under the infrastructure banking program. The Department of Transportation shall establish jointly, with the State Treasurer, a separate infrastructure banking account with necessary fiscal controls and accounting procedures. Funds credited to this account shall not revert, and interest and other investment income shall accrue to the account and may be used to provide loans and other financial assistance as provided under this subdivision. The Department of Transportation may establish such rules and policies as are necessary to establish and administer the infrastructure banking program. The infrastructure banking program authorized under this subdivision shall not modify the formula for the distribution of funds established by G.S. 136-189.11. Governmental units may apply for loans and execute debt instruments payable to the State in order to obtain loans or other financial assistance provided for in this subdivision. The Department of Transportation shall require that applicants pledge as security for the obligations revenues derived from operation of the benefited facilities or systems, other sources of revenue, or their faith and credit, or any combination thereof. The faith and credit of the governmental units shall not be pledged or be deemed to have been pledged unless the requirements of Article 4 of Chapter 159 of the General Statutes have been met. The State Treasurer, with the assistance of the Local Government Commission, shall develop and adopt appropriate debt instruments for use under this subdivision. The Local Government Commission shall develop and adopt appropriate procedures for the delivery of debt instruments to the State without any public bidding therefor. The Local Government Commission shall review and approve proposed loans to applicants pursuant to this subdivision under the provisions of Articles 4 and 5 of Chapter 159 of the General Statutes, as if the issuance of bonds was proposed, so far as those provisions are applicable. Loans authorized by this subdivision are outstanding debt for the purpose of Article 10 of Chapter 159 of the General Statutes.
14. To issue "GARVEE" bonds (Grant Anticipation Revenue Vehicles) or other eligible debt-financing instruments to finance federal-aid highway projects using federal funds to pay a portion of principal, interest, and related bond issuance costs, as authorized by 23 U.S.C. § 122, as amended (the National Highway System Designation Act of 1995, Pub. L. 104-59). These bonds shall be issued by the State Treasurer on behalf of the Department and shall be issued pursuant to an order adopted by the Council of State under G.S. 159-88. The State Treasurer shall develop and adopt appropriate debt instruments, consistent with the terms of the State and Local Government Revenue Bond Act, Article 5 of Chapter 159 of the General Statutes, for use under this subdivision. Prior to issuance of any "GARVEE" or other eligible debt instrument using federal funds to pay a portion of principal, interest, and related bond issuance costs, the State Treasurer shall determine (i) that the total outstanding principal of the debt does not exceed the total amount of federal transportation funds authorized to the State in the prior federal fiscal year; or (ii) that the maximum annual principal and interest of the debt does not exceed twenty percent (20%) of the expected average annual federal revenue shown for the period in the most recently adopted Transportation Improvement Program. Notes issued under the provisions of this subdivision shall not be deemed to constitute a debt or liability of the State or of any political subdivision thereof, or a pledge of the full faith and credit of the State or of any political subdivision thereof, but shall be payable solely from the funds and revenues pledged therefor. All the notes shall contain on their face a statement to the effect that the State of North Carolina is not obligated to pay the principal or the interest on the notes, except from the federal transportation fund revenues as shall be provided by the documents governing the revenue note issuance, and that neither the faith and credit nor the taxing power of the State of North Carolina or of any of its political subdivisions is pledged to the payment of the principal or interest on the notes. The issuance of notes under this Part does not directly or indirectly or contingently obligate the State or any of its political subdivisions to levy or to pledge any form of taxation whatever or to make any appropriation for their payment.
15. To construct and maintain all walkways and driveways within the Mansion Square in the City of Raleigh and the Western Residence of the Governor in the City of Asheville including the approaches connecting with the city streets, and any funds expended therefor shall be a charge against general maintenance.
16. To provide roads for the connection of airports in the State with the public highway system, and to mark the highways and erect signals along the highways for the guidance and protection of aircraft.
17. To provide facilities for the use of waterborne traffic and recreational uses by establishing connections between the highway system and the navigable and nonnavigable waters of the State by means of connecting roads and piers. The facilities for recreational purposes shall be funded from funds available for safety or enhancement purposes.
18. Pursuant to a resolution of the Board of Transportation, under the power of eminent domain and under the same procedure as provided for the acquirement of rights-of-way, to acquire title in fee simple to parcels of land for the purpose of exchanging the parcels of land for other real property to be used for the establishment of rights-of-way or for the widening of existing rights-of-way or the clearing of obstructions that, in the opinion of the Department of Transportation, constitute dangerous hazards at intersections. Real property may be acquired for these purposes only when the owner of the property needed by the Department of Transportation has agreed in writing to accept the property so acquired in exchange for that to be used by the Department of Transportation, and when, in the opinion of the Department of Transportation, an economy in the expenditure of public funds and the improvement and convenience and safety of the highway can be effected thereby.
19. The Department of Transportation shall maintain and keep in repair, sufficient to accommodate the public school buses, roads leading from the State-maintained public roads to all public schools and public school buildings to which children are transported on public school buses to and from their homes. The Department of Transportation may construct, pave, and maintain school bus driveways and sufficient parking facilities for the school buses at those schools. The Department of Transportation may construct, pave, and maintain all other driveways and entrances to the public schools leading from public roads not required in the preceding portion of this subdivision.
20. To cooperate with appropriate agencies of the United States in acquiring rights-of-way for and in the construction and maintenance of flight strips or emergency landing fields for aircraft adjacent to State highways.
21. To prohibit the erection of any informational, regulatory, or warning signs within the right-of-way of any highway project built within the corporate limits of any municipality in the State where the funds for the construction are derived in whole or in part from federal appropriations expended by the Department of Transportation, unless the signs have first been approved by the Department of Transportation.
22. To maintain and keep in repair a suitable way of ingress and egress to all public or church cemeteries or burial grounds in the State notwithstanding the fact that the road is not a part of the State-maintained system of roads. For the purpose of this subdivision a public or church cemetery or burial ground is defined as a cemetery or burial ground in which there are buried or permitted to be buried deceased persons of the community in which the cemetery or burial ground is located, but does not mean a privately owned cemetery operated for profit or family burial plots.
23. The Department of Transportation shall remove all dead animals from the traveled portion and rights-of-way of all primary and secondary roads and to dispose of the animals by burial or otherwise. In cases where there is evidence of ownership upon the body of any dead dog, the Department of Transportation shall take reasonable steps to notify the owner thereof by mail or other means.
24. No airport or aircraft landing area shall be constructed or altered where the construction or alteration when undertaken or completed may reasonably affect motor vehicle operation and safety on adjoining public roads except in accordance with a written permit from the Department of Transportation or its duly authorized officers. The Department of Transportation may regulate airport and aircraft landing area construction and alteration in order to preserve safe clearances between highways and airways and the Department of Transportation may make rules, regulations, and ordinances for the preservation of safe clearances between highways and airways. The Department of Transportation is responsible for determining safe clearances and shall fix standards for this determination which shall not exceed the standards adopted for similar purposes by the United States Bureau of Public Roads under the Federal Aid Highway Act of 1958. Any person, firm, corporation, or airport authority constructing or altering an airport or aircraft landing area without obtaining a written permit as provided in this subdivision, or not in compliance with the terms of the permit, or violating the provisions of the rules, regulations, or ordinances promulgated under the authority of this section is guilty of a Class 1 misdemeanor. This subdivision does not apply to publicly owned and operated airports and aircraft landing areas receiving federal funds and subject to regulation by the Federal Aviation Authority.
25. When in the opinion of the Department of Transportation an economy in the expenditure of public funds can be effected thereby, the Department of Transportation may enter into agreements with adjoining states regarding the planning, location, engineering, right-of-way acquisition, and construction of roads and bridges connecting the North Carolina State highway system with public roads in adjoining states, and the Department of Transportation may do planning, surveying, locating, engineering, right-of-way acquisition, and construction on short segments of roads and bridges in adjoining states with the cost of the work to be reimbursed by the adjoining state, and may also enter into agreements with adjoining states providing for the performance of and reimbursement to the adjoining state of the cost of the work done within this State by the adjoining state. The Department of Transportation shall retain the right to approve any contract for work to be done in this State by an adjoining state for which the adjoining state is to be reimbursed.
26. To pave driveways leading from State-maintained roads to rural fire district firehouses which are approved by the North Carolina Fire Insurance Rating Bureau and to facilities of rescue squads furnishing ambulance services which are approved by the North Carolina State Association of Rescue Squads, Inc.
27. The Department of Transportation shall design, construct, repair, and maintain paved streets and roads upon the campus of each of the State's institutions of higher education, at State-owned hospitals for the treatment of tuberculosis, State-owned orthopedic hospitals, juvenile correction centers, mental health hospitals and developmental centers, schools for the deaf, and schools for the blind, when such construction, maintenance, or repairs have been authorized by the General Assembly in the appropriations bills enacted by the General Assembly. Cost for the construction, maintenance, and repairs shall be borne by the Highway Fund. Upon the General Assembly authorizing the construction, repair, or maintenance of a paved road or drive upon any of the institutions listed in this subdivision, the Department of Transportation shall give the project priority to ensure that it shall be accomplished as soon as feasible, at the minimum cost to the State, and in any event during the biennium for which the authorization has been given by the General Assembly.
28. The Department of Transportation, at the request of a representative from a board of county commissioners, may acquire by condemnation new or additional right-of-way to construct, pave, or otherwise improve a designated State-maintained secondary road upon presentation by the board to the Department of Transportation of a duly verified copy of the minutes of its meeting showing approval of the request by a majority of its members and by the further presentation of a petition requesting the improvement executed by the abutting owners whose frontage on the secondary road equals or exceeds seventy-five percent (75%) of the linear front footage along the secondary road sought to be improved. This subdivision does not limit the authority of the Department of Transportation to exercise the power of eminent domain.
29. To establish policies and promulgate rules providing for voluntary local government, property owner, or highway user participation in the costs of maintenance or improvement of roads which would not otherwise be necessary or would not otherwise be performed by the Department of Transportation and which will result in a benefit to the property owner or highway user. By way of illustration and not as a limitation, these costs include those incurred in connection with drainage improvements or maintenance, driveway connections, dust control on unpaved roads, surfacing or paving of roads and the acquisition of rights-of-way. Local government, property owner, and highway user participation can be in the form of materials, money, or land (for right-of-way) as deemed appropriate by the Department of Transportation. The authority of this section shall not be used to authorize, construct, or maintain toll roads or bridges.
30. To obtain land, either by gift, lease, or purchase, which shall be used for the construction and maintenance of ridesharing parking lots. The Department may design, construct, repair, and maintain ridesharing parking facilities.
31. To establish policies and adopt rules about the size, location, direction of traffic flow, and the construction of driveway connections into any street or highway which is a part of the State Highway System. The Department of Transportation may require the construction and public dedication of acceleration and deceleration lanes, and traffic storage lanes and medians by others for the driveway connections into any United States route, or North Carolina route, and on any secondary road route with an average daily traffic volume of 4,000 vehicles per day or more.
32. To coordinate with all public and private entities planning schools to provide written recommendations and evaluations of driveway access and traffic operational and safety impacts on the State highway system resulting from the development of the proposed sites. All public and private entities shall, upon acquiring land for a new school or prior to beginning construction of a new school, relocating a school, or expanding an existing school, request from the Department a written evaluation and written recommendations to ensure that all proposed access points comply with the criteria in the current North Carolina Department of Transportation "Policy on Street and Driveway Access." The Department shall provide the written evaluation and recommendations within a reasonable time, which shall not exceed 60 days. This subdivision applies to improvements that are not located on the school property. The Department has the power to grant final approval of any project design under this subdivision. To facilitate completion of the evaluation and recommendations within the required 60 days, in lieu of the evaluation by the Department, schools may engage an independent traffic engineer prequalified by the Department. The resulting evaluation and recommendations from the independent traffic engineer shall also fulfill any similar requirements imposed by a unit of local government. This subdivision does not require the public or private entities planning schools to meet the recommendations made by the Department or the independent traffic engineer, except those highway improvements that are required for safe ingress and egress to the State highway system, pursuant to subdivision (29) of this section, and that are physically connected to a driveway on the school property. The total cost of any improvements to the State highway system provided by a school pursuant to this subdivision, including those improvements pursuant to subdivision (29) of this section, shall be reimbursed by the Department. Any agreement between a school and the Department to make improvements to the State highway system shall not include a requirement for acquisition of right-of-way by the school, unless the school is owned by an entity that has eminent domain power. Nothing in this subdivision precludes the Department from entering into an agreement with the school whereby the school installs the agreed upon improvements and the Department provides full reimbursement for the associated costs incurred by the school, including design fees and any costs of right-of-way or easements. The term "school," as used in this subdivision, means any facility engaged in the educational instruction of children in any grade or combination of grades from kindergarten through the twelfth grade at which attendance satisfies the compulsory attendance law and includes charter schools authorized under G.S. 115C-218.5. The term "improvements," as used in this subdivision, refers to all facilities within the right-of-way required to be installed to satisfy the road cross-section requirements depicted upon the approved plans. These facilities include roadway construction, including pavement installation and medians; ditches and shoulders; storm drainage pipes, culverts, and related appurtenances; and, where required, curb and gutter; signals, including pedestrian safety signals; street lights; sidewalks; and design fees. Improvements do not include any costs for public utilities.
33. The Department of Transportation shall consider exceptions to the sight distance requirement for driveway locations in instances where the curves of the road are close and frequent. Exceptions shall be granted in instances where sufficient sight distance can be provided or established through other means such as advisory speed signs, convex mirrors, and advanced warning signs. When appropriate, the Department shall consider lowering the speed limit on the relevant portion of the road. The Department may require a driveway permit applicant to cover the cost of installing the appropriate signage around the driveway, including speed limit reduction and driveway warning signs, and may also require the applicant to install and maintain convex or other mirrors to increase the safety around the driveway location.
34. Consistent with G.S. 130A-309.14(a1), the Department of Transportation shall review and revise its bid procedures and specifications set forth in this Chapter to encourage the purchase or use of reusable, refillable, repairable, more durable, and less toxic supplies and products. The Department of Transportation shall require the purchase or use of these supplies and products in the construction and maintenance of highways and bridges to the extent that the use is practicable and cost-effective. The Department shall prepare an annual report on October 1 of each year to the Environmental Review Commission as required under G.S. 130A-309.14(a1).
35. To designate portions of highways as scenic highways, and combinations of portions of highways as scenic byways, for portions of those highways that possess unusual, exceptional, or distinctive scenic, recreational, historical, educational, scientific, geological, natural, wildlife, cultural, or ethnic features. The Department shall remove, upon application, from any existing or future scenic highway or scenic byway designation, highway sections that meet all of the following:
    1. Have no scenic value.
    2. Have been designated or would be so designated solely to preserve system continuity.
    3. Are adjacent to property on which is located one or more permanent structures devoted to a commercial or industrial activity and on which a commercial or industrial activity is actually conducted, in an unzoned area or an area zoned commercial or industrial pursuant to a State or local zoning ordinance or regulation, except for commercial activity related to tourism or recreation.
36. To perform dredging services, on a cost reimbursement basis, for a unit of local government if the unit cannot obtain the services from a private company at a reasonable cost. A unit of local government is considered to be unable to obtain dredging services at a reasonable cost if it solicits bids for the dredging services in accordance with Article 8 of Chapter 143 of the General Statutes and does not receive a bid, considered by the Department of Transportation Engineering Staff, to be reasonable.
37. The Department of Transportation shall, from time to time, carefully examine into and inspect the condition of each railroad, its equipment and facilities, in regard to the safety and convenience of the public and the railroad employees. If the Department finds any equipment or facilities to be unsafe, it shall at once notify the railroad company and require the company to repair the equipment or facilities.
38. To conduct, in a manner consistent with federal law, a program of accident prevention and public safety covering all railroads and to investigate the cause of any railroad accident. In order to facilitate this program, any railroad involved in an accident that must be reported to the Federal Railroad Administration shall also notify the Department of Transportation of the occurrence of the accident.
39. To establish rural planning organizations, as provided in Article 17 of this Chapter.
40. The Department has the following powers related to fixed guideway public transportation system safety:
    1. To oversee the safety of fixed guideway public transportation systems in the State not regulated by the Federal Railroad Administration, pursuant to 49 U.S.C. § 5329 and 49 U.S.C. § 5330 and any reauthorizations of or amendments to those sections. The Department shall adopt rules in conformance with 49 U.S.C. § 5329 and 49 U.S.C. § 5330 concerning its oversight of the safety of fixed guideway public transportation systems.
    2. The Department shall examine and inspect the condition of each rail fixed guideway public transportation system and its equipment and facilities for the purpose of ensuring the safety and convenience of the public and the rail fixed guideway public transportation system's employees. If the Department finds any equipment or facilities to be unsafe, it shall at once notify the rail fixed guideway public transportation system and require the rail fixed guideway public transportation system to repair the equipment or facilities.
    3. To conduct, in a manner consistent with federal law, a program of accident prevention and public safety covering all rail fixed guideway public transportation systems and to investigate the cause of any rail fixed guideway public transportation system accident. In order to facilitate this program, any rail fixed guideway public transportation system involved in an accident meeting the reporting thresholds defined by the Department shall report the accident to the Department.
    4. The Department shall review, approve, oversee, and enforce each rail fixed guideway public transportation system's implementation of the public transportation system safety plan required pursuant to 49 U.S.C. § 5329(d).
    5. The Department shall audit, at least once triennially, each rail fixed guideway public transportation system's compliance with the public transportation agency safety plan required pursuant to 49 U.S.C. § 5329(d).
    6. The Department shall provide, at least once annually, a status report on the safety of the rail fixed guideway public transportation systems overseen by the Department to the Federal Transit Administration, the Governor, and the Board of Directors, or equivalent entity, of any rail fixed guideway public transportation system the Department oversees.
    7. The Department shall not receive funding for the activities authorized by sub-subdivisions a. through f. of this subdivision from any rail fixed guideway public transportation systems subject to the Department's authority pursuant to sub-subdivisions a. through f. of this subdivision.
41. To permit use of and encroachment upon the right-of-way of a State highway or road for the purpose of construction and maintenance of a bridge owned by a private or public entity, if the bridge does not unreasonably interfere with or obstruct the public use of the right-of-way. Any agreement for an encroachment authorized by this subdivision shall be approved by the Board of Transportation, upon a finding that the encroachment is necessary and appropriate, in the sole discretion of the Board. Locations, plans, and specifications for any pedestrian or vehicular bridge authorized by the Board for construction pursuant to this subdivision shall be approved by the Department of Transportation. For any bridge subject to this subdivision, the Department shall retain the right to reject any plans, specifications, or materials used or proposed to be used, inspect and approve all materials to be used, inspect the construction, maintenance, or repair, and require the replacement, reconstruction, repair, or demolition of any partially or wholly completed bridge that, in the sole discretion of the Department, is unsafe or substandard in design or construction. An encroachment agreement authorized by this subdivision may include a requirement to purchase and maintain liability insurance in an amount determined by the Department of Transportation. The Department shall ensure that any bridge constructed pursuant to this subdivision is regularly inspected for safety. The owner shall have the bridge inspected every two years by a qualified private engineering firm based on National Bridge Inspection Standards and shall provide the Department copies of the bridge inspection reports where they shall be kept on file. Any bridge authorized and constructed pursuant to this subdivision is subject to all other rules and conditions of the Department of Transportation for encroachments.
42. To enter into agreements with municipalities, counties, governmental entities, or nonprofit corporations to receive funds for the purposes of advancing right-of-way acquisition or the construction schedule of a project identified in the Transportation Improvement Program. If these funds are subject to repayment by the Department, prior to receipt of funds, reimbursement of all funds received by the Department shall be shown in the existing Transportation Improvement Program and shall be reimbursed within the period of the existing Transportation Improvement Program.
43. To enter into partnership agreements with private entities, and authorized political subdivisions to finance, by tolls, contracts, and other financing methods authorized by law, the cost of acquiring, constructing, equipping, maintaining, and operating transportation infrastructure in this State, and to plan, design, develop, acquire, construct, equip, maintain, and operate transportation infrastructure in this State. An agreement entered into under this subdivision requires the concurrence of the Board of Transportation. The Department shall report to the Chairs of the Joint Legislative Transportation Oversight Committee, the Chairs of the House of Representatives Appropriations Committee on Transportation, and the Chairs of the Senate Appropriations Committee on the Department of Transportation, at the same time it notifies the Board of Transportation of any proposed agreement under this subdivision. No contract for transportation infrastructure subject to an agreement under this subdivision that commits the Department to make nonretainage payments for undisputed capital costs of a completed transportation infrastructure to be made later than 18 months after final acceptance by the Department of the transportation infrastructure shall be executed without approval of the Local Government Commission. Any contracts for construction of highways, roads, streets, and bridges which are awarded pursuant to an agreement entered into under this section shall comply with the competitive bidding requirements of Article 2 of this Chapter.
44. 1. The Department of Transportation or Turnpike Authority, as applicable, may enter into up to three agreements with a private entity as provided under subdivision (39) of this section for which the provisions of this section apply. (39a) a. The Department of Transportation or Turnpike Authority, as applicable, may enter into up to three agreements with a private entity as provided under subdivision (39) of this section for which the provisions of this section apply.
    2. A private entity or its contractors must provide performance and payment security in the form and in the amount determined by the Department of Transportation. The form of the performance and payment security may consist of bonds, letters of credit, parent guaranties, or other instruments acceptable to the Department of Transportation.
    3. Notwithstanding the provisions of G.S. 143B-426.40A, an agreement entered into under this subdivision may allow the private entity to assign, transfer, sell, hypothecate, and otherwise convey some or all of its right, title, and interest in and to the agreement, and any rights and remedies thereunder, to a lender, bondholder, or any other party. However, in no event shall any such assignment create additional debt or debt-like obligations of the State of North Carolina, the Department, or any other agency, authority, commission, or similar subdivision of the State to any lender, bondholder, entity purchasing a participation in the right to receive the payment, trustee, trust, or any other party providing financing or funding of projects described in this section. This sub-subdivision does not preclude the Department from making any payments due and owing pursuant to an agreement entered into under this section.
    4. Article 6H of this Chapter applies to the Department of Transportation and to projects undertaken by the Department of Transportation under subdivision (39) of this section. The Department may assign its authority under that Article to fix, revise, charge, retain, enforce, and collect tolls and fees to the private entity.
    5. Any contract under this subdivision or under Article 6H of this Chapter for the development, construction, maintenance, or operation of a project shall provide for revenue sharing, if applicable, between the private party and the Department, and revenues derived from the project may be used as set forth in G.S. 136-89.188(a), notwithstanding the provisions of G.S. 136-89.188(d). Excess toll revenues from a Turnpike Project shall be used for the funding or financing of transportation projects within the corridor where the Turnpike Project is located. For purposes of this subdivision, the term "excess toll revenues" means those toll revenues derived from a Turnpike Project that are not otherwise used or allocated to the Authority or a private entity pursuant to this subdivision, notwithstanding the provisions of G.S. 136-89.188(d). For purposes of this subdivision, the term "corridor" means (i) the right-of-way limits of the Turnpike Project and any facilities related to the Turnpike Project or any facility or improvement necessary for the use, design, construction, operation, maintenance, repair, rehabilitation, reconstruction, or financing of a Turnpike Project; (ii) the right-of-way limits of any subsequent improvements, additions, or extension to the Turnpike Project and facilities related to the Turnpike projects, including any improvements necessary for the use, design, construction, operation, maintenance, repair, rehabilitation, reconstruction, or financing of those subsequent improvements, additions, or extensions to the Turnpike Project; and (iii) roads used for ingress or egress to the toll facility or roads that intersect with the toll facility, whether by ramps or separated grade facility, and located within one mile in any direction.
    6. Agreements entered into under this subdivision shall comply with the following additional provisions:
       1. The Department shall solicit proposals for agreements.
       2. The agreement shall be limited to no more than 50 years from the date of the beginning of operations on the toll facility.
       3. Notwithstanding the provisions of G.S. 136-89.183(a)(5), all initial tolls or fees to be charged by a private entity shall be reviewed by the Turnpike Authority Board. Prior to setting toll rates, either a set rate or a minimum and maximum rate set by the private entity, the private entity shall hold a public hearing on the toll rates, including an explanation of the toll setting methodology, in accordance with guidelines for the hearing developed by the Department. After tolls go into effect, the private entity shall report to the Turnpike Authority Board 30 days prior to any increase in toll rates or change in the toll setting methodology by the private entity from the previous toll rates or toll setting methodology last reported to the Turnpike Authority Board.
       4. Financial advisors and attorneys retained by the Department on contract to work on projects pursuant to this subsection are subject to State law governing conflicts of interest.
       5. 60 days prior to the signing of a concession agreement subject to this subdivision, the Department shall report to the Joint Legislative Transportation Oversight Committee on the following for the presumptive concessionaire:
          1. Project description.
          2. Number of years that tolls will be in place.
          3. Name and location of firms and parent companies, if applicable, including firm responsibility and stake, and assessment of audited financial statements.
          4. Analysis of firm selection criteria.
          5. Name of any firm or individual under contract to provide counsel or financial analysis to the Department or Authority. The Department shall disclose payments to these contractors related to completing the agreement under this subdivision.
          6. Demonstrated ability of the project team to deliver the project, by evidence of the project team's prior experience in delivering a project on schedule and budget, and disclosure of any unfavorable outcomes on prior projects.
          7. Detailed description of method of finance, including sources of funds, State contribution amounts, including schedule of availability payments and terms of debt payments.
          8. Information on assignment of risk shared or assigned to State and private partner.
          9. Information on the feasibility of finance as obtained in traffic and revenue studies.
       6. The Turnpike Authority annual report under G.S. 136-89.193 shall include reporting on all revenue collections associated with projects subject to this subdivision under the Turnpike Authority.
       7. The Department shall develop standards for entering into comprehensive agreements with private entities under the authority of this subdivision and report those standards to the Joint Legislative Transportation Oversight Committee on or before October 1, 2013.
45. To expand public access to coastal waters in its road project planning and construction programs. The Department shall work with the Wildlife Resources Commission, other State agencies, and other government entities to address public access to coastal waters along the roadways, bridges, and other transportation infrastructure owned or maintained by the Department. The Department shall adhere to all applicable design standards and guidelines in implementation of this enhanced access.
46. The Department shall, prior to the beginning of construction, determine whether all sidewalks and other facilities primarily intended for the use of pedestrians and bicycles that are to be constructed within the right-of-way of a public street or highway that is a part of the State highway system or an urban highway system must be constructed of permeable pavement. "Permeable pavement" means paving material that absorbs water or allows water to infiltrate through the paving material. Permeable pavement materials include porous concrete, permeable interlocking concrete pavers, concrete grid pavers, porous asphalt, and any other material with similar characteristics. Compacted gravel shall not be considered permeable pavement.
47. The Department shall develop and utilize a process for selection of transportation projects that is based on professional standards in order to most efficiently use limited resources to benefit all citizens of the State. The strategic prioritization process should be a systematic, data-driven process that includes a combination of quantitative data, qualitative input, and multimodal characteristics, and should include local input. The Department shall develop a process for standardizing or approving local methodology used in Metropolitan Planning Organization and Rural Transportation Planning Organization prioritization.
48. For the purposes of financing an agreement under subdivision (39a) or (46) of this section, the Department of Transportation may act as a conduit issuer for private activity bonds to the extent the bonds do not constitute a debt obligation of the State. The issuance of private activity bonds under this subdivision and any related actions is governed by the State and Local Government Revenue Bond Act, Article 5 of Chapter 159 of the General Statutes, with G.S. 159-88 satisfied by adherence to the requirements of subdivision (39a) or (46) of this section.
49. To contract for sponsorship arrangements for Department operations and may solicit contracts for these arrangements pursuant to Article 2 of this Chapter. All amounts collected and all savings realized as a result of these sponsorship arrangements shall be used by the Department toward funding of maintenance activities.
50. Where the Department owns or leases the passenger rail facility, owns or leases the rail equipment, or holds leasehold or license rights for the purpose of operating passenger stations, the Department may operate or contract for the following receipt-generating activities and use the proceeds to fund passenger rail operations:
    1. Where the Department owns the passenger rail facility or owns or leases the rail equipment, operation of concessions on State-funded passenger trains and at passenger rail facilities to provide to passengers food, drink, and other refreshments, personal comfort items, Internet access, and souvenirs publicizing the passenger rail system.
    2. Where the Department holds leasehold or license rights for the purpose of operating passenger stations, operation of concessions at rail passenger facilities to provide food, drink, and other refreshments, personal comfort items, Internet access, and souvenirs publicizing the passenger rail system, in accordance with the terms of the leasehold or license.
    3. Advertising on or within the Department's passenger rail equipment or facility, including display advertising and advertising delivered to passengers through the use of video monitors, public address systems installed in passenger areas, and other electronic media.
    4. The sale of naming rights to Department-owned passenger rail equipment or facilities.
51. The Department shall not transfer ownership of a State-owned concrete arch bridge to any public, private, or nonprofit entity as part of any bridge relocation or reuse program project unless the entity assumes all liability associated with the bridge and posts a bond or other financial assurance acceptable to the Department to cover the present value of future maintenance costs, as well as any right-of-way or other additional costs if the bridge transfer would require the Department to change the planned route of any replacement structure.
52. To enter into partnership agreements with private entities to finance, by contracts, revenues of facilities, and other financing methods authorized by law, the cost of acquiring, constructing, equipping, maintaining, and operating communications infrastructure supporting transportation infrastructure on the Interstate System as defined by Title 23, United States Code, Section 103(c) in this State, and to plan, design, develop, acquire, construct, equip, maintain, and operate communications infrastructure supporting transportation infrastructure within this State. For the purposes of this subdivision, communications infrastructure supporting transportation infrastructure means fiber optic trunk lines, microcell towers or other broadband or data transmission facilities located within the right-of-way of the interstate or primary highway system that is owned, and utilized completely or partly, by the Department for traffic management, highway safety, vehicle technology integration, and other functions of the Department. An agreement entered into under this subdivision requires the concurrence of the Board of Transportation. The Department shall report to the Chairs of the Joint Legislative Transportation Oversight Committee, the Chairs of the House of Representatives Appropriations Subcommittee on Transportation, and the Chairs of the Senate Appropriations Committee on the Department of Transportation, at the same time it notifies the Board of Transportation of any proposed agreement under this subdivision. No contract for communications infrastructure supporting transportation infrastructure subject to such an agreement that commits the Department to make nonretainage payments for undisputed capital costs for communications infrastructure supporting transportation infrastructure to be made later than 18 months after final acceptance by the Department shall be executed without approval of the Local Government Commission. Any contracts for communications infrastructure supporting transportation infrastructure which are awarded pursuant to an agreement entered into under this subdivision shall comply with the competitive bidding requirements of this Article. The Department may enter into agreements with one or more private entities under this subdivision as follows:
    1. A private entity or its contractors must provide performance and payment security in the form of performance and payment bonds on the design and construction portion of the agreement as required under G.S. 44A-26.
    2. Notwithstanding the provisions of G.S. 143B-426.40A, an agreement entered into under this subdivision may allow the private entity to assign, transfer, sell, hypothecate, and otherwise convey some or all of its right, title, and interest in and to such agreement, and any rights and remedies thereunder, to a lender, bondholder, or any other party. However, in no event shall any such assignment create additional debt or debt-like obligations of the State of North Carolina, the Department, or any other agency, authority, commission, or similar subdivision of the State to any lender, bondholder, entity purchasing a participation in the right to receive the payment, trustee, trust, or any other party providing financing or funding of projects described in this subdivision. The foregoing shall not preclude the Department from making any payments due and owing pursuant to an agreement entered into under this subdivision.
    3. An agreement entered into under this subdivision for communications infrastructure supporting transportation infrastructure may provide that private entities may commercialize the capacity of such communications infrastructure in excess of the Department's need through lease or other arrangements, with the Department having first right of refusal for future anticipated capacity needs.
    4. No agreement entered into under this subdivision for use of Department right-of-way or communications infrastructure and its facilities shall abrogate the Department's ownership and control of the right-of-way or communications infrastructure and its facilities within the right-of-way.
    5. Agreements entered into under this subdivision shall comply with the following additional provisions:
       1. The Department shall solicit proposals for an agreement.
       2. An agreement shall be limited to no more than 50 years from the date the communications infrastructure becomes operational and utilized by the Department.
       3. Financial advisors and attorneys retained by the Department on contract to work on projects pursuant to this subdivision shall be subject to State law governing conflicts of interest.
       4. Sixty days prior to the signing of a concession agreement subject to this subdivision, the Department shall report to the Joint Legislative Transportation Oversight Committee on the following for the presumptive concessionaire:
          1. Project description.
          2. Name and location of firms and parent companies, if applicable, including firm responsibility and stake, and assessment of audited financial statements.
          3. Analysis of firm selection criteria.
          4. Name of any firm or individual under contract to provide counsel or financial analysis to the Department. The Department shall disclose payments to these contractors related to completing the agreement under this subdivision.
          5. Demonstrated ability of the project team to deliver the project, by evidence of the project team's prior experience in delivering a project on schedule and budget, and disclosure of any unfavorable outcomes on prior projects.
          6. Detailed description of method of finance, including sources of funds, State contribution amounts, including schedule of availability payments, service payments or similar remuneration, and terms of debt payments.
          7. Information on assignment of risk shared or assigned to the Department, the State, and private entity partner.
          8. Information on the feasibility of finance.

The Department may widen, relocate, change, or alter the grade or location thereof, or alter the location or configuration of the lines or systems above or below ground. No agreement for use of Department right-of-way under this sub-subdivision shall abrogate the Department's ownership and control of the right-of-way. The Department may adopt policies and rules necessary to implement this sub-subdivision.

All changes or alterations authorized by this subdivision are subject to G.S. 136-54 to G.S. 136-63, to the extent that those sections are applicable.

Nothing in this Chapter authorizes the Department of Transportation to allow or pay anything to any county, township, city, or town, or to any board of commissioners or governing body thereof, for any existing road or part of any road heretofore constructed by the county, township, city, or town, unless a contract has already been entered into with the Department of Transportation.

Every other use or attempted use of any of these areas for commercial purposes constitutes a Class 1 misdemeanor, and each day's use constitutes a separate offense.

This subdivision applies only to sections of roadway where the minimum sight distance as defined in the published "Policy on Street and Driveway Access to North Carolina Highways” is not available for a proposed driveway.

The Department shall adopt rules and regulations setting forth the criteria and procedures for the designation of scenic highways and scenic byways under this subdivision.

Those portions of highways designated as scenic by the Department prior to July 1, 1993, are considered to be designated as scenic highways and scenic byways under this subdivision, but the Department shall remove from this designation portions of those highway sections that meet the criteria set forth in this subdivision, if requested.

History

(1921, c. 2, s. 10; 1923, c. 160, s. 1; c. 247; C.S., s. 3846(j); 1929, c. 138, s. 1; 1931, c. 145, ss. 21, 25; 1933, c. 172; c. 517, c. 1; 1935, c. 213, s. 1; c. 301; 1937, c. 297, s. 2; c. 407, s. 80; 1941, c. 47; c. 217, s. 6; 1943, c. 410; 1945, c. 842; 1951, c. 372; 1953, c. 437; 1957, c. 65, s. 11; c. 349, s. 9; 1959, c. 557; 1963, cc. 520, 1155; 1965, c. 879, s. 1; 1967, c. 1129; 1969, c. 794, s. 2; 1971, cc. 289, 291, 292, 977; 1973, c. 507, s. 5; 1977, c. 460, ss. 1, 2; c. 464, ss. 7.1, 14, 42; 1981, c. 682, s. 19; 1983, c. 84; c. 102; 1985, c. 718, ss. 1, 6; 1987, c. 311; c. 417, ss. 1, 2; 1989, c. 158; 1989 (Reg. Sess. 1990), c. 962, s. 1; 1993, c. 197, s. 2; c. 488, s. 1; c. 524, s. 4; c. 539, ss. 974-977; 1994, Ex. Sess., c. 24, s. 14(c); 1995, c. 247, s. 1; c. 507, s. 18.2; 1995 (Reg. Sess., 1996), c. 673, s. 4; 1996, 2nd Ex. Sess., c. 18, s. 19.10(a); 1997-428, s. 1; 1997-443, s. 11A.118(a); 2000-123, s. 1; 2000-140, s. 102; 2001-424, s. 27.27; 2003-184, s. 1; 2003-267, s. 1; 2004-168, s. 1; 2005-403, s. 2; 2006-230, s. 1(a); 2007-428, s. 1; 2007-439, s. 1; 2007-485, s. 3.1; 2008-164, s. 1; 2008-180, ss. 2, 8; 2009-266, s. 6; 2009-451, s. 25.6(a); 2010-97, s. 14; 2010-165, ss. 4, 4(a), 5-8; 2012-84, s. 2; 2012-184, s. 1; 2013-137, ss. 1, 2; 2013-183, ss. 4.2, 5.2; 2013-266, s. 1; 2014-58, ss. 9, 13; 2014-100, s. 34.27; 2014-115, s. 56.2; 2015-241, s. 29.22(a); 2016-90, s. 2(a); 2017-57, s. 34.6A(a); 2017-159, s. 3(a); 2017-197, s. 7.5; 2019-76, s. 23; 2019-111, s. 2.5(o); 2019-148, s. 1; 2019-199, s. 5(a), (b); 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d); 2020-91, s. 4.5(a).)

Cross References. - As to motor vehicles generally, see Chapter 20 of the General Statutes, G.S. 20-1 et seq.

As to authority to designate and mark truck routes, see G.S. 20-141(i).

As to the Public Utilities Act, see G.S. 62-1 et seq.

As to Department's power of eminent domain, see G.S. 136-19.

As to power to determine the maximum load limit for bridges, see G.S. 136-72.

As to exemption from temporary driveway permitting for forestry operations, see G.S. 136-92.1.

As to selective pruning within highway rights-of-way to enable view of agritourism activities, see G.S. 136-93.3.

As to authority of Department to cooperate with counties in establishing and operating solid waste disposal facilities, see G.S. 153A-291.

As to sale, lease, exchange and joint use of governmental property by State and local governmental units, see G.S. 160A-274.

Rail Division/Report Required Prior to Entering into Certain Contracts. - Session Laws 2017-57, s. 34.24(a), (b), provides: "(a) In addition to any other requirements provided by State or federal law, the Rail Division of the Department of Transportation shall submit a report to the Joint Legislative Transportation Oversight Committee prior to entering into a contract with a duration of five or more years and requiring an estimated expenditure of State funds in an amount totaling or exceeding one million five hundred thousand dollars ($1,500,000). The report shall (i) identify the total cost of the proposed contract, (ii) identify the duration of the proposed contract, (iii) identify the other party or parties to the proposed contract, and (iv) identify any other terms of the proposed contract that are deemed relevant by the Rail Division.

"(b) This section is effective when it becomes law [June 28, 2017] and applies to contracts entered into on or after that date. This section expires June 30, 2022."

Pilot Project/Funding for Rest Area in Richmond County. - Session Laws 2017-57, s. 34.34(a)-(c), as amended by Session Laws 2018-5, s. 34.21(a), provides: "(a) Pilot Project. - The Department of Transportation shall develop and implement a pilot project to provide funding for operating a rest area on U.S. Highway 220 in Richmond County. From funds appropriated in this act to the Roadside Environmental Fund in the Highway Fund, the Department shall allocate the sum of one hundred thousand dollars ($100,000) in nonrecurring funds for each fiscal year of the 2017-2019 fiscal biennium to the Town of Ellerbe for funding the rest area described in this subsection. The funds allocated under this subsection shall not revert at the end of each fiscal year but shall remain available until expended in accordance with the purpose set forth in this subsection.

"(b) Distribution of Brochures. - Notwithstanding any State law or rule to the contrary, brochures and other materials advertising local attractions and accommodations may be distributed at the rest area funded under subsection (a) of this section.

"(c) Report. - The Department shall provide a report on the results of the pilot project required under subsection (a) of this section to the Joint Legislative Transportation Oversight Committee by December 1, 2019. The report shall include (i) the average daily number of visitors to the rest area, (ii) the average monthly number of visitors to the rest area, (iii) the total number of visitors to the rest area, and (iv) the average annual costs to operate the rest area. The information required under this subsection shall be for the period from when the rest area begins operation to November 1, 2019."

DOT Pilot Program/Funding and Oversight of Time-Critical Economic Development Project. - Session Laws 2018-5, s. 34.3(a)-(e), as amended by Session Laws 2019-15, s. 4(b), provide: "(a) Limited Authority for Time-Critical Economic Development Project. - Notwithstanding any provision of law to the contrary, the Department of Transportation may let, administer, and oversee any contract related to the site preparation and design of the non-transportation portion of a project meeting all of the following criteria:

"(1) The project is located in Edgecombe County.

"(2) The project received a grant under the Job Development Investment Grant Program established under G.S. 143B-437.52.

"(3) The Community Economic Development Agreement entered into pursuant to G.S. 143B-437.57 for the project requires that the business invest at least five hundred million dollars ($500,000,000) in private funds and create at least 800 eligible positions.

"The Department shall only let contracts under this subsection in accordance with the requirements of Article 2 of Chapter 136 of the General Statutes. The authority set forth in this subsection expires July 1, 2020.

"(b) Source of Funding for Costs. - Of the funds appropriated in this act to the General Maintenance Reserve in the Highway Fund, the Department of Transportation may use up to the sum of thirty million dollars ($30,000,000) in nonrecurring funds to cover costs incurred by the Department in utilizing the authority set forth in subsection (a) of this section.

"(c) Report. - By January 15, 2019, the Department of Transportation shall submit a report to the Joint Legislative Transportation Oversight Committee, the Joint Legislative Oversight Committee on Governmental Operations, and the Fiscal Research Division of the General Assembly detailing the use of funds under subsection (b) of this section. The report shall include the total amount of funds expended and the types of costs for which the funds were or are going to be expended.

"(d) Repealed by Session Laws 2019-15, s. 4(b), effective May 16, 2019.

"(e) Effective Date. - Subsection (a) of this section is effective when it becomes law [June 12, 2018] and applies retroactively to July 1, 2017. Subsection (b) of this section becomes effective July 1, 2018. The remainder of this section is effective when it becomes law."

Project Delivery Method Pilot Program. - Session Laws 2018-5, s. 34.13(a)-(e), provides: "(a) Definition. - For purposes of this section, the term 'construction manager-general contractor' means a project delivery method that allows the use of a construction manager during the design process to provide input on the design. During the design phase, the construction manager provides advice, including constructability review, scheduling, pricing, and phasing, to assist in designing a more efficient and well-designed project. The construction manager may subsequently act as the general contractor and construct the project if the department and the construction manager-general contractor reach agreement on a guaranteed maximum price for construction.

"(b) Pilot Project. - Notwithstanding any provision of Chapter 136 of the General Statutes to the contrary, the Department of Transportation may establish and implement a pilot project to award contracts for up to five projects for the construction of transportation projects on a construction manager-general contractor basis. The Department may only award a contract under this section if (i) the cost of the project is determined by the Department to be less than one hundred million dollars ($100,000,000), (ii) the Department determines that it is in the public interest to use the construction manager-general contractor basis for the project, (iii) the Department prequalifies the contractor that will be awarded the contract, (iv) the Department complies with the pre-award reporting requirement set forth in subsection (c) of this section, and (v) the Department has established and implemented guidelines as required under subsection (d) of this section.

"(c) Report. - Prior to the award of a contract under the authority set forth in subsection (b) of this section, the Department shall submit a pre-award report to the Joint Legislative Transportation Oversight Committee on the nature and scope of the project and the reasons using the construction manager-general contractor basis will best serve the public interest. Upon completion of a project awarded under subsection (b) of this section, the Department shall submit a post-completion report to the Joint Legislative Transportation Oversight Committee detailing the results of the project, including any cost and time efficiencies achieved as a result of using the construction manager-general contractor basis.

"(d) Guidelines. - The Department shall develop and implement guidelines for the awarding of contracts under subsection (b) of this section.

"(e) Effective Date. - This section is effective when it becomes law [June 12, 2018]. This section expires upon submission of the post-completion report required under subsection (c) of this section for the final project completed under the authority set forth in subsection (b) of this section."

Designation of Bridges. - Session Laws 2018-5, s. 34.16, as amended by Session Laws 2018-97, s. 7.3, provides: "Notwithstanding any provision of law to the contrary, the Department of Transportation shall designate the bridges described in the subdivisions below as follows:

"(1) The Millstone Road bridge over Interstate 73 and Interstate 74 and located off Exit 28 in the Town of Ellerbe in Richmond County as the 'Colonel Jack F. Cardwell Bridge'.

"(2) The bridge numbered 252 by the Department that is located in the City of Lowell in Gaston County as the 'Sgt. Larry K. Morrow, Vietnam-MIA, 5-29-1972 Bridge'.

"(3) The bridge on U.S. Highway 158 East that crosses part of the Interstate 74 Northern Beltway in Forsyth County as the 'Officer Stephen Levi Amos II Bridge'.

"(4) The bridge on N.C. Highway 18 that crosses the U.S. Highway 74 Bypass in the City of Shelby in Cleveland County as the 'Officer Tim Brackeen Bridge'.

"(5) The bridge on Pharr Mill Road that crosses North Carolina Highway 49 in the Town of Harrisburg in Cabarrus County as the 'Joshua B. Earley Bridge'.

"(6) The U.S. 221/U.S. 421 Overpass in the Community of Deep Gap in Watauga County as the 'Sgt. Dillon C. Baldridge Bridge'."

DOT Report/Federal Build Grant Submissions. - Session Laws 2018-5, s. 34.17, provides: " The Department of Transportation shall report to the chairs of the House of Representatives Appropriations Committee on Transportation, the chairs of the Senate Appropriations Committee on Department of Transportation, and the Fiscal Research Division of the General Assembly at least 15 days prior to submission of a grant application for funding through the United States Department of Transportation Better Utilizing Investments to Leverage Development (BUILD) Transportation Discretionary Grants program. The report shall contain project information, including a description and time line for completion, project cost and the amount of grant requested, and a brief overview of which federal criteria the project proposes to meet, including safety, economic competitiveness, quality of life, environmental protection, state of good repair, innovation, partnership, and additional nonfederal revenue for future transportation infrastructure investments."

Require Local Governments to Issue Temporary Certificate of Compliance/Occupancy to Health Service Facilities - Session Laws 2021-3, s. 2.7(a), (b), provides: "(a) Notwithstanding G.S. 136-18(5), 136-18(29), 136-93, 160D-1116, and any other provision of law to the contrary, a local government shall issue a temporary certificate of compliance and temporary certificate of occupancy to a health service facility (facility) allowing for the full operational use of the facility in the following circumstances:

"(1) The facility building is currently under construction, and the scheduled construction completion date for the building will occur before recission of the COVID-19 emergency declaration.

"(2) Subject to subdivision (3) of this section, the facility building complies with all applicable State and local laws and the terms of the building permit, and the facility building may be safely occupied.

"(3) The only portions of the construction project remaining to be completed are off-site improvements to public roadways that were identified by the Traffic Impact Analysis for the project and required as conditions for the approval of the permit, and the facility agrees to (i) complete the roadway improvements within 18 months of the date of the certificate of occupancy and (ii) post a corresponding performance bond or letter of credit. The performance bond completion date and letter of credit expiration date, and all other terms of both instruments, shall remain in force notwithstanding the recission of the COVID-19 emergency declaration prior to the completion of the roadway improvements.

"For purposes of this section, the term ‘local government' has the same meaning as in G.S. 160D-1116, the term ‘health service facility' has the same meaning as in G.S. 131E-176, and the term ‘COVID-19 emergency declaration' means Executive Order No. 116 issued March 10, 2020.

"(b) This section is effective when it becomes law [March 11, 2021] and expires upon recission of the COVID-19 emergency declaration or upon completion of the roadway improvements as agreed to by the facility, whichever is later."

Limited Exemption from Department of Information Technology Oversight and Requirements for Division of Motor Vehicles Information Technology Modernization Projects. - Session Laws 2021-134, s. 11(a)-(c), provides: "(a) Notwithstanding Part 3 and Part 4 of Article 15 of Chapter 143 of the General Statutes or any other provision of law to the contrary, the Department of Transportation may manage, procure information technology goods and services, and enter into contracts for up to five information technology projects for Division of Motor Vehicles system modernization, and these projects are exempt from Department of Information Technology oversight and requirements. These projects may include modernization of the Division of Motor Vehicles' electronic services and the Division's mail intake, handling, and management systems and practices.

"(b) The Department of Transportation shall notify the Department of Information Technology of the nature and scope of an information technology project the Department of Transportation is undertaking pursuant to the exemption under subsection (a) of this section.

"(c) The Department of Transportation shall report to the Joint Legislative Transportation Oversight Committee, the Joint Legislative Oversight Committee on Information Technology, and the Fiscal Research Division within 30 days of entering into a contract for an information technology project the Department of Transportation is undertaking pursuant to the exemption under subsection (a) of this section.”

Editor's Note. - Session Laws 1977, c. 460, s. 2, as amended by Session Laws 1977, c. 780, s. 1, provided: "This act [which added subdivision (26) of this section] shall not be construed to limit the authority of the Department of Transportation to exercise the power of eminent domain."

Session Laws 1995 (Reg. Sess., 1996), c. 673, s. 1, provides: "The statutory authority, powers, duties, and functions, records, personnel, property, unexpended balances of appropriations, allocations or other funds, including the functions of budgeting and purchasing, of the Rail Safety Section of the Transportation Division of the North Carolina Utilities Commission, is transferred to the Department of Transportation."

Session Laws 2004-199, s. 61, provides: "The Department of Transportation shall install highway directional guide signs at limited-access highway terminals for the nonresidential campuses of colleges or universities located in North Carolina, if the nonresidential campus is located within one mile from the limited-access highway terminal and if the college or university is licensed by the Board of Governors of The University of North Carolina, offers both undergraduate and graduate degree programs, and has a minimum of 350 students enrolled at the nonresidential campus. The college or university requesting the sign installment shall pay for all charges related to the construction of the sign."

Session Laws 2007-323, s. 27.9(a)-(c), provides: "(a) The Department of Transportation may continue the productivity pilot programs in the road oil, bridge inspection and pavement markings units implemented under Section 29.3 of S.L. 2003-284 and Section 28.9 of S.L. 2005-276. The Department of Transportation may expend up to one-half of one percent (0.50%) of the budget allocation for these programs for employee incentive payments to maintain the increased efficiency and productivity under these programs.

"(b) The Department of Transportation may establish up to two additional pilot programs to test incentive pay for employees as a means of increasing and maintaining efficiency and productivity.

"These programs may be selected by the Department of Transportation. Up to one-half of one percent (0.50%) of the budget allocation for these programs may be used to provide employee incentive payments.

"Incentive payments shall be based on quantifiable measures and production schedules determined prior to the implementation of the pilot programs. Pilot programs implemented under this subsection shall last no more than two years.

"(c) The Department of Transportation shall report to the Joint Legislative Transportation Oversight Committee on the pilot programs developed under this section at least 30 days prior to their implementation."

For prior similar provisions, see Session Laws 2003-284, s. 29.3, and Session Laws 2005-276, s. 28.9(a), (b).

Session Laws 2007-323, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2007'."

Session Laws 2007-323, s. 32.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2007-2009 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2007-2009 fiscal biennium."

Session Laws 2007-323, s. 32.5, is a severability clause.

Session Laws 2007-485, s. 3.2, provides: "The first report required by G.S. 136-18, as enacted by this section, is due no later than March 1, 2008."

Session Laws 2008-107, s. 25.2, provides: "(a) The Department of Transportation shall cease annual production of the North Carolina State Transportation Map and Coastal Boating Guide and shall produce a biennial North Carolina State Transportation Map and may provide funding for a biennial Coastal Boating Guide, in conjunction with the Wildlife Resources Commission, beginning in the 2008-2009 fiscal year.

"(b) The Department shall provide a written report to the Joint Legislative Transportation Oversight Committee on the biennial map production plan and identify any cost savings for nonproduction years. The report shall also include historical budget and production information for the past five years. The report is due by March 1, 2009."

Session Laws 2008-107, s. 1.2, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2008'."

Session Laws 2008-107, s. 30.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2008-2009 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2008-2009 fiscal year."

Session Laws 2008-107, s. 30.5, is a severability clause.

Subdivision (41), as added by Session Laws 2009-451, s. 25.6(a), effective October 1, 2009, is applicable to facilities constructed on or after that date.

Session Laws 2009-451, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2009'."

Subdivision (41), as added by Session Laws 2009-451, s. 25.6(a), effective October 1, 2009, is applicable to facilities constructed on or after that date.

Session Laws 2009-451, s. 28.5, is a severability clause.

Session Laws 2010-31, s. 28.4, provides: "The Department of Transportation shall remove the existing prohibition on naming State roads after specific military veterans and shall adopt a policy for naming highways after specific military veterans. This new policy shall be part of the Department of Transportation's existing system for naming State roads after people. The Department of Transportation shall report to the Joint Legislative Transportation Oversight Committee no later than December 1, 2011, on the new policy and the Department's implementation of the policy."

Session Laws 2010-31, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2010'."

Session Laws 2010-31, s. 32.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2010-2011 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2010-2011 fiscal year."

Session Laws 2010-31, s. 32.6, is a severability clause.

Session Laws 2012-78, ss. 15 and 16, provide: "SECTION 15. Notwithstanding 19A NCAC 02D.0607(e)(3), the Department of Transportation may permit sealed ship containers as nondivisible loads as allowed by Federal Highway Administration policy. All Department of Transportation permitting rules applied to other nondivisible loads shall also apply to sealed ship containers.

"SECTION 16. The Department of Transportation shall initiate the process to conform the North Carolina Administrative Code to this act by striking the words 'not to exceed 94,500 pounds' from the first sentence of 19A NCAC 02D.0607(e)(3)."

Session Laws 2013-137, ss. 1 and 2, effective June 19, 2013, were codified as subdivision (29b) of this section at the direction of the Revisor of Statutes.

Session Laws 2013-137, s. 3, provides "The Department of Transportation shall report to the Joint Legislative Oversight Committee on Transportation on its implementation of the change required by this act within 180 days of this act becoming law [act was approved June 19, 2013]."

Session Laws 2013-183, s. 7.1(b), provided: "This act is effective only if the General Assembly appropriates funds in the Current Operations and Capital Improvements Appropriations Act of 2013 to implement this act." Session Laws 2013-360, s. 34.30, effective July 1, 2013, repealed Session Laws 2013-183, s. 7.1(b).

Session Laws 2013-266, s. 3, provides: "This act shall not preempt or override local ordinances currently in place."

Session Laws 2013-360, s. 34.17, provides: "The Department of Transportation, Business and Contractual Services Unit, shall, in collaboration with the Division of Motor Vehicles, evaluate current contractual models and compensation for the provision of registration, title, tax collection, and other vehicle service transactions by branch agents contracting with the Division of Motor Vehicles. As part of this evaluation, the Department shall conduct an analysis of transaction trends, completion and error rates, and service times by transaction type and branch agent type, and shall assess the appropriateness of the current basis for contractor compensation and rates relative to documented service requirements.

"Based on its findings, the Department shall recommend alternatives to the current contractual models for branch agents to standardize contract types, enhance performance, and strengthen contract administration, taking into account citizen accessibility to service centers. In addition, the Department shall submit detailed proposals for alternate options for contractor compensation, including, at a minimum, competitive bidding of branch agent contracts. The Department shall identify anticipated programmatic and fiscal impacts, and include implementation plans for each alternative.

"The Department shall report its findings and recommendations to the Joint Legislative Transportation Oversight Committee, Joint Legislative Program Evaluation Oversight Committee, and Fiscal Research Division no later than March 1, 2014."

Session Laws 2013-360, s. 34.27, as amended by Session Laws 2014-100, s. 34.24(a), provides: "The Department of Transportation may engage the services of private counsel with the pertinent expertise to provide legal services related to transportation projects undertaken by the Department. The Department shall supervise and manage the private counsel engaged under this section and shall not be required to obtain written permission or approval from the Attorney General under G.S. 114-2.3."

Session Laws 2015-241, s. 29.8(a), effective July 1, 2015, repealed Session Laws 2013-360, s. 34.27, as amended by Session Laws 2014-100, s. 34.24(a).

Session Laws 2013-360, s. 34.28, provides: "The Department of Transportation and the Department of Public Safety shall not transfer any personnel or functions of the License & Theft Bureau of the Department of Transportation's Division of Motor Vehicles or enter into any agreement regarding transfer of personnel or functions of the License & Theft Bureau until passage of an act of the General Assembly authorizing the transfer."

Session Laws 2013-360, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2013.'"

Session Laws 2013-360, s. 38.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2013-2015 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2013-2015 fiscal biennium."

Session Laws 2013-360, s. 38.5, is a severability clause.

Session Laws 2014-3, s. 13.4, provides: "Section 34.17 of S.L. 2013-360 directs the Department of Transportation to evaluate current contractual models and compensation for the provision of registration, title, tax collection, and other vehicle service transactions by branch agents contracting with the Division of Motor Vehicles. The Department of Transportation shall provide to the Revenue Laws Study Committee any reports, recommendations, and findings that are a result of the study required under this section. The Department of Transportation shall also provide to each member of the Revenue Laws Study Committee a copy of any final report issued as a result of the study. The Revenue Laws Study Committee is directed to examine the information provided by the Department of Transportation and make an interim report of its findings and recommendations on the per transaction compensation amounts to the 2015 Regular Session of the 2015 General Assembly and shall make a final report to the 2016 Regular Session of the 2015 General Assembly."

Session Laws 2016-90, s. 2(b), provides: "The Department of Transportation shall study the issue of administrative fees for encroachments pursuant to G.S. 136-18(2)c. The Department shall report its findings and recommendations to the Joint Legislative Transportation Oversight Committee on or before December 1, 2016."

Session Laws 2016-94, s. 35.28(a), as amended by Session Laws 2018-76, s. 9.2, provides: "Notwithstanding G.S. 136-18(8) and any other State law to the contrary, the Department of Transportation shall designate the portion of Interstate 40 in North Carolina from mile marker 380 to mile marker 385 the 'Senator Wendell Holmes Murphy, Sr. Freeway.'"

Session Laws 2016-94, s. 35.28(b), provides: "The Department of Transportation shall use unobligated funds available to pay costs associated with signage needed to implement subsection (a) of this section."

Session Laws 2016-94, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2016.'"

Session Laws 2016-94, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2016-2017 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2016-2017 fiscal year."

Session Laws 2016-94, s. 39.7, is a severability clause.

Session Laws 2017-57, s. 34.6A(c)-(g), provides: "(c) The Department of Transportation, in collaboration with the Department of Public Instruction, shall develop a report covering the period from July 1, 2015, through July 1, 2017, that provides all of the following information:

"(1) All schools, including private and charter, that have been opened, relocated, or expanded.

"(2) The types of road improvements required for each school identified in subdivision (1) of this subsection.

"(3) Whether each road improvement identified in subdivision (2) of this subsection is to a road maintained by the State or a municipality.

"(4) Whether each road improvement identified in subdivision (2) of this subsection is to a road adjacent to the school property.

"(5) A description of any disputes or appeals raised by the schools identified in subdivision (1) of this subsection concerning the road improvements identified in subdivision (2) of this subsection.

"(6) The total cost for each road improvement identified under subdivision (2) of this subsection.

"(7) The funding source for the payment of the costs incurred for each road improvement identified in subdivision (2) of this subsection.

"(d) In addition to the information required under subdivisions (1) through (5) of subsection (c) of this section, and for the period covering July 2, 2017, through July 1, 2020, the report required under subsection (c) of this section shall identify (i) the number of schools, including private and charter, that will be opened, relocated, or expanded, (ii) the types of road improvements anticipated to be required for each school identified, and (iii) the total cost for each road improvement anticipated to be required for each school identified.

"(e) The Department of Transportation shall submit the report required under subsection (c) of this section to the Joint Legislative Transportation Oversight Committee and the Joint Legislative Education Oversight Committee by February 1, 2018.

"(f) Any rule or policy adopted by the Department of Transportation that does not comply with the provisions of this section shall be null, void, and without effect.

"(g) The Department of Transportation may adopt temporary rules to implement the provisions of this section. Any temporary rules adopted in accordance with this section shall remain in effect until permanent rules that replace the temporary rules become effective."

Session Laws 2017-57, s. 34.6A(h), as amended by Session Laws 2017-197, s. 7.5, made the rewriting of subdivision (29a) by Session Laws 2017-57, s. 34.6A(a), effective August 1, 2017, and applicable to school openings, relocations, and expansions on or after that date.

Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium."

Session Laws 2017-57, s. 39.6, is a severability clause.

Session Laws 2018-5, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2018.'"

Session Laws 2018-5, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2018 2019 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2018 2019 fiscal year."

Session Laws 2018-5, s. 39.7, is a severability clause.

Session Laws 2019-15, ss. 1-3, 5-8, as amended by Session Laws 2019-250, s. 3.8, and as amended by Session Laws 2019-251, s. 1.6, provide: "Section 1. Create Cash Flow Fund. - The Disaster Relief Cash Flow Loan Fund (Fund) is created as a special fund in the Department of Transportation (Department). The Fund is created to be used in accordance with Section 5 of this act.

"Section 2. Transfer from the General Fund. - For the 2018-2019 fiscal year, the State Controller shall transfer the sum of ninety million dollars ($90,000,000) in nonrecurring funds from the unreserved fund balance in the General Fund to the Fund.

"Section 3. Transfer from the Office of State Budget and Management. - Of the funds allocated to the Department under Section 4.1 of S.L. 2018-136, the Office of State Budget and Management shall transfer the remaining sum to the Fund. The reporting requirements contained in S.L. 2018-136 and S.L. 2018-138 continue to apply to these funds and any other funds, whether State or federal, the Department receives or expends for the purpose of disaster recovery, relief, or resiliency.

"Section 5. Deposit and Use. - The Department may only use the funds in the Fund to meet the cash flow needs of the Department resulting from expenditures related to disaster relief. The Department shall deposit in the Fund any funds the Department receives as reimbursement from the federal government for expenditures related to disaster relief, and may only use those funds for the purpose set forth in this section. The amount of funds in the Fund authorized for use under this section shall not exceed the total aggregate amount of three hundred million dollars ($300,000,000).

"Section 6. Limitation. - The Department shall ensure that funds described in this act are expended in a manner that does not adversely affect the Department's eligibility for federal funds that are made available or are anticipated to be made available as a result of a disaster.

"Section 7. Reversion of Loaned Funds. - Upon reaching the amount limitation set forth in Section 5 of this act or June 30, 2021, whichever occurs earlier, the Department shall transfer the remaining balance in the Fund to the Highway Fund and close the Fund.

"Section 8. Report. - Beginning October 1, 2019, and quarterly thereafter until July 1, 2021, the Department shall submit a report detailing its use of funds transferred and made available under this act to (i) the Senate Appropriations•ase Budget Committee, (ii) the House of Representatives Committee on Appropriations, (iii) the Senate Appropriations Committee on Department of Transportation, (iv) the House of Representatives Appropriations Committee on Transportation, and (v) the Fiscal Research Division. Additionally, for reimbursed funds deposited under Section 5 of this act, the report required under this section shall specify the source of funds for the expenditures and specify which disaster the funds were expended for." Sections 2, 3, and 4 of Session Laws 2019-15 contain appropriations for the 2018-2019 fiscal year.

Session Laws 2019-76, s. 33, provides: "Parts I and II of this act do not affect the coverage, eligibility, rights, responsibilities, or provision of State or federal services or benefits for individuals who have been diagnosed with mental retardation and whose diagnosis has not been changed to a diagnosis of intellectual disability."

Session Laws 2019-76, s. 34, made the amendments by Session Laws 2019-76, s. 23 effective October 1, 2019, and applicable to proceedings commenced or services rendered on or after that date.

Session Laws 2019-111, s. 3.2, as amended by Session Laws 2020-3, s. 4.33(a), made the amendment of subdivision (10) by Session Laws 2019-111, s. 2.5(o), effective August 1, 2021, and applicable to local government development regulation decisions made on or after that date, and further provided that: "Part II of this act clarifies and restates the intent of existing law and applies to ordinances adopted before, on, and after the effective date." Session Laws 2020-25, s. 51(a), (b), and (d), effective June 19, 2020, repealed Session Laws 2019-111, s. 3.2, and Session Laws 2020-3, s. 4.33(a), and provides: "Part II of S.L. 2019-111 is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:

"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or

"(2) July 1, 2021."

The reference to "G.S. 160D-9-31" in subdivision (10) was changed to "G.S. 160D-931" at the direction of the Revisor of Statutes to conform to the renumbering of enacted sections in Session Laws 2019-111.

Session Laws 2019-148 provides in its preamble: "Whereas, native plants are an important part of North Carolina's natural heritage, history, and identity; and Whereas, North Carolina's native plants are indigenous plants that have adapted over many years to our region and evolved to flourish in the unique geography, hydrology, and microclimates of our State; and

"Whereas, North Carolina's native plants are indigenous plants that have adapted over many years to our region and evolved to flourish in the unique geography, hydrology, and microclimates of our State; and

"Whereas, North Carolina contains over 3,900 native plant species, making North Carolina one of the most diverse states for flora in the Southeast; and

"Whereas, 26 of those species are extremely rare and considered federally threatened or endangered; and

"Whereas, native plants support over 350 resident and migratory bird species in North Carolina, many of which are species of concern and face growing threats from climate change; and

"Whereas, North Carolina's native plants and their derivatives have provided foods, medicines, and other products from the origin of North Carolina's blueberry industry to American ginseng exports; and

"Whereas, gardens and landscapes composed of North Carolina's native plants require little or no fertilizers, soil amendments, or pesticides and use less water; and

"Whereas, planting, cultivation, and preservation of the State's native plants provide a natural link to wild land areas present and past, while presenting beauty and benefit and instilling a greater appreciation for North Carolina's natural heritage; Now, therefore,"

Session Laws 2019-199, s. 5(c)-(e), provides: "(c) The Department shall develop standards for entering into comprehensive agreements with private entities under the Department's authority pursuant to G.S. 136-18(46), as enacted by subsection (a) of this section, and report those standards with legislative recommendations to the Joint Legislative Transportation Oversight Committee on or before March 1, 2020.

"(d) The authority granted in Section 5(a) of this act is limited to projects which receive federal discretionary grants issued by the United States Department of Transportation.

"(e) The Department shall consult and coordinate with private telecommunications industry entities regarding the authority granted under this section and shall report to the Joint Legislative Transportation Oversight Committee by March 1, 2020, with findings and legislative recommendations."

Session Laws 2020-3, s. 5, is a severability clause.

Effect of Amendments. - Session Laws 2004-168, s. 1, effective August 2, 2004, added subdivision (38).

Session Laws 2005-403, s. 2, effective February 1, 2006, added subdivision (12b).

Session Laws 2006-230, s. 1(a), effective August 1, 2006, substituted "is" for "shall be" in the middle of the introductory paragraph and added paragraph (39).

Session Laws 2007-428, s. 1, effective August 23, 2007, added "except those highway improvements that are required for safe ingress and egress to the State highway system" at the end of the last sentence in subdivision (29a).

Session Laws 2007-439, s. 1, effective August 23, 2007, in subdivision (39), inserted "contracts" and substituted "transporation infrastructure in this State, with priority given to highways, roads, streets, and bridges" for "highways, roads, streets, and bridges in this State" in the first sentence, and added the last sentence.

Session Laws 2007-485, s. 3.1, effective August 30, 2007, added subdivision (40).

Session Laws 2008-164, s. 1, effective August 3, 2008, in subdivision (39), added "and to plan, design, develop, acquire, construct, equip, maintain, and operate highways, roads, streets, bridges, and existing rail, as well as properties adjoining existing rail lines in this State" at the end of the first sentence, and added the last sentence.

Session Laws 2008-180, ss. 2 and 8, effective August 4, 2008, in subdivision (2), inserted "broadband communications"; and in subdivision (27), inserted "local government" in the first sentence, and inserted "Local government" at the beginning of the next-to-last sentence.

Session Laws 2009-266, s. 6, effective August 1, 2009, substituted "State transportation system" for "State highway system" just before the first proviso in subdivision (2); and in subdivision (39), in the first sentence, deleted "with priority given to highways, roads, streets, and bridges" preceding "and to plan" near the middle, and substituted "transportation infrastructure" for "highways, roads, streets, bridges, and existing rail, as well as properties adjoining existing rail lines" near the end.

Session Laws 2010-97, s. 14, effective July 20, 2010, deleted "as permitted by local zoning" following "(DAS)" in subdivision (2).

Session Laws 2010-165, ss. 4, 4(a), 5-8, effective August 2, 2010, rewrote subdivision (1), which formerly read: "The general supervision over all matters relating to the construction of the State highways, letting of contracts therefore, and the selection of materials to be used in the construction of State highway under the authority of this Chapter"; in subdivision (2), inserted "distributed antenna systems (DAS) as permitted by local zoning" and "or alter the location or configuration of such lines or systems above or below ground"; in the fourth sentence in subdivision (12b), deleted "seven-year" preceding "period"; in subdivision (38), substituted "purposes of advancing right-of-way acquisition or the construction" for "purpose of advancing the construction" and "shall be reimbursed within the period of the existing Transportation Improvement Program" for "shall be reimbursed within seven years of receipt"; in subdivision (39), deleted "the North Carolina Turnpike Authority" following "agreements with"; and deleted the former last sentence in subdivision (40), which read: "The Department shall report on its progress in expanding public access to coastal waters to the Joint Legislative Commission on Seafood and Aquaculture and to the Joint Legislative Transportation Oversight Commission no later than March 1 of each year."

Session Laws 2012-84, s. 2, effective June 26, 2012, added subdivision (42).

Session Laws 2012-184, s. 1, effective July 16, 2012, in subdivision (39), added the fourth sentence; and added subdivisions (39a) and (43).

Session Laws 2013-183, ss. 4.2 and 5.2, effective July 1, 2013, in the ninth sentence of subdivision (12a), deleted "regional distribution" preceding "formula for the distribution" and substituted "G.S. 136-189.11" for "G.S. 136-17.2A"; in sub-subdivision (39a)a., in the first sentence, substituted "or Turnpike Authority, as applicable, may enter into up to three agreements" for "may enter into a partnership agreement," and deleted the former second sentence, which read "The pilot project allowed under this subdivision must be one that is a candidate for funding under the Mobility Fund, that is planned for construction through a public-private partnership, and for which a Request for Qualifications has been issued by the Department no later than June 30, 2012"; rewrote subdivision (39a)d.; added sub-subdivisions (39a)e. and (39a)f.; and substituted "subdivision (39a)" for "subdivisions (39) and (39a)" in the second sentence of subdivision (43).

Session Laws 2013-266, s. 1, effective July 17, 2013, rewrote subdivision (9).

Session Laws 2014-58, s. 9, effective July 7, 2014, rewrote subdivision (36).

Session Laws 2014-58, s. 13, effective July 7, 2014, added subdivision (44).

Session Laws 2014-100, s. 34.27, effective July 1, 2014, added subdivision (45).

Session Laws 2014-115, s. 56.2, effective August 11, 2014, in the first sentence of subdivision (37), deleted "private" following "permit" and substituted "bridge owned by a private or public entity" for "privately owned bridge for pedestrians or motor vehicles."

Session Laws 2015-241, s. 29.22(a), effective July 1, 2015, added subdivision (44a).

Session Laws 2016-90, s. 2(a), effective July 11, 2016, rewrote subdivision (2) to insert all sub-subdivision designations and made related changes; added sub-subdivision (2)c.2, and added the last two sentences in sub-subdivision (2)c.

Session Laws 2017-57, s. 34.6A(a), rewrote subdivision (29a). For effective date and applicability, see editor's note.

Session Laws 2017-159, s. 3(a), effective July 21, 2017, in subdivision (10), inserted "wireless facilities" in the first and second sentences, and added the last sentence.

Session Laws 2019-76, s. 23, effective October 1, 2019, rewrote this section.

Session Laws 2019-111, s. 2.5(o), substituted "G.S. 160D-9-31" for "G.S. 160A-400.51" at the end of subdivision (10). For effective date and applicability, see editor's note.

Session Laws 2019-148, s. 1, effective July 22, 2019, added "acceptable" before "trees" in the first sentence in subdivision (9); and added the second sentence in subdivision (9).

Session Laws 2019-199, s. 5(a), (b), effective August 21, 2019, inserted "or (46)" after "subdivision (39a)" twice in subdivision (43); and added subdivision (46).

Session Laws 2020-91, s. 4.5(a), effective July 1, 2020, substituted "twenty percent (20%)" for "fifteen percent (15%)" in the fourth sentence of subdivision (12b).

Legal Periodicals. - For article on remedies for trespass to land in North Carolina, see 47 N.C.L. Rev. 334 (1969).

For survey of 1977 law on property, see 56 N.C.L. Rev. 1111 (1978).

For survey of 1984 administrative law, "A Declining Role for the Attorney General," see 63 N.C.L. Rev. 1051 (1985).

For a comment on the acquisition, abandonment, and preservation of rail corridors in North Carolina, see 75 N.C.L. Rev. 1989 (1997).

For a survey of 1996 developments in constitutional law, see 75 N.C.L. Rev. 2252 (1997).

§ 136-18.01. Consultation required for welcome and visitor centers.

The Department of Commerce and the Department of Transportation shall consult with the chairs of the Joint Legislative Transportation Oversight Committee, the chairs of the Senate Appropriations Committee on Department of Transportation, the chairs of the House of Representatives Appropriations Committee on Transportation, the chairs of the Senate Appropriations Committee on Agriculture, Natural, and Economic Resources, and the chairs of the House of Representatives Appropriations Committee on Agriculture and Natural and Economic Resources before beginning the design or construction of any new welcome center or visitor center buildings.

History

(2007-356, s. 1; 2017-57, s. 14.1(w).)

Editor's Note. - Session Laws 2007-356, s. 1, was codified as this section at the direction of the Revisor of Statutes.

Session Laws 2007-356, s. 2, provides: "The Department of Commerce and the Department of Transportation shall immediately cease the planning, design, or construction of any new welcome center buildings in Randolph County and shall not resume the planning, design, or construction of any new welcome center buildings in that county before consulting with the Joint Legislative Commission on Governmental Operations and the House and Senate Appropriations Subcommittees on Natural and Economic Resources."

Session Laws 2007-356, s. 3, as amended by Session Laws 2008-107, s. 13.3, provides: "Nothing in this act shall be interpreted to prohibit or restrict the Department of Transportation from constructing visitor center buildings in Randolph County and Wilkes County that were in the planning, design, or construction phase prior to the effective date of this act [August 17, 2007]."

Session Laws 2007-356, s. 4, made this section effective August 17, 2007.

Session Laws 2008-107, s. 1.2, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2008.'"

Session Laws 2008-107, s. 30.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2008-2009 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2008-2009 fiscal year."

Session Laws 2008-107, s. 30.5, is a severability clause.

Effect of Amendments. - Session Laws 2017-57, s. 14.1(w), effective July 1, 2017, substituted "chairs of the Joint Legislative Transportation Oversight Committee, the chairs of the Senate Appropriations Committee on Department of Transportation, the chairs of the House of Representatives Appropriations Committee on Transportation, the chairs of the Senate Appropriations Committee on Agriculture, Natural, and Economic Resources, and the chairs of the House of Representatives Appropriations Committee on Agriculture and Natural and Economic Resources" for "Joint Legislative Commission on Governmental Operations and the House and Senate Appropriations Subcommittees on Natural and Economic Resources" near the beginning of this section.

§ 136-18.02. Operation of electric vehicle charging stations at rest stops; report.

1. The Department of Transportation may operate an electric vehicle charging station at State-owned rest stops along the highways only if all of the following conditions are met:
   1. The electric vehicle charging station is accessible by the public.
   2. The Department has developed a mechanism to charge the user of the electric vehicle charging station a fee in order to recover the cost of electricity consumed, the cost of processing the user fee, and a proportionate cost of the operation and maintenance of the electric vehicle charging station.
2. If the cost of the electricity consumed at the electric vehicle charging stations cannot be calculated as provided by subsection (a) of this section, the Department shall develop an alternative mechanism, other than electricity metering, to recover the cost of the electricity consumed at the vehicle charging station.
3. The Department may consult with other State agencies and industry representatives in order to develop the mechanisms for cost recovery required pursuant to subsection (a) of this section.
4. Beginning January 1, 2014, and annually thereafter, the Department of Transportation shall report to the Joint Legislative Commission on Energy Policy, the Joint Legislative Transportation Oversight Committee, the House Appropriations Subcommittee on Transportation, and the Senate Appropriations Subcommittee on Department of Transportation on the implementation of this section.

History

(2012-186, s. 2.)

Editor's Note. - Session Laws 2012-186, s. 2, effective March 1, 2013, was codified as this section at the direction of the Revisor of Statutes.

§ 136-18.03. Outside counsel.

1. Intent. - It is the intent of the General Assembly that the Department of Transportation exercise the authority granted by this section to maximize operational and project delivery benefits attributed to the avoidance or successful defense of litigation.
2. Authorization. - The Department of Transportation may engage the services of private counsel with the pertinent expertise to provide legal services related to any project undertaken by the Department. The Department shall supervise and manage the private counsel engaged under this section and, excluding legal services related to workers' compensation claims brought by Department employees, shall not be required to obtain written permission or approval from the Attorney General under G.S. 114-2.3. G.S. 147-17(c1) and G.S. 114-2.3(d) do not apply to this section.
3. Performance Metrics. - The Department shall develop performance metrics to evaluate its utilization of in-house counsel and private counsel, to include the following:
   1. A summary of new matters opened by legal area.
   2. Case cycle times.
   3. Resolution of cases.
   4. A comparison of in-house costs to billable rates for private counsel.
   5. The process for procurement for legal services.
4. Report. - The Department shall provide a semiannual report to the Joint Legislative Transportation Oversight Committee and the Joint Legislative Justice and Public Safety Oversight Committee on the performance metrics set forth in subsection (c) of this section.

History

(2015-241, s. 29.8(d); 2017-57, s. 6.7(c).)

Editor's Note. - Session Laws 2015-241, s. 33.7, made this section effective July 1, 2015.

Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.6, is a severability clause.

Session Laws 2017-57, s. 6.7(o), made the amendment to subsection (b) of this section by Session Laws 2017-57, s. 6.7(c ), effective June 28, 2017, and applicable to pending and future actions.

Effect of Amendments. - Session Laws 2017-57, s. 6.7(c), effective July 1, 2017, added the last sentence in subsection (b).

§ 136-18.04. Product Evaluation Program.

The Product Evaluation Program, or any successor program operated by the Department of Transportation to review and approve or disapprove new and innovative technologies and products for use by the Department, shall complete its evaluation of a technology or product within one year from the date that the technology or product was submitted for evaluation. Nothing in this section shall be construed as requiring the Product Evaluation Program or any successor program to review all technologies and products submitted to the Product Evaluation Program or any successor program.

History

(2015-241, s. 29.11(c).)

Editor's Note. - Session Laws 2015-241, s. 29.11(d), made this section effective January 1, 2016, and applicable to technologies and products submitted for review on or after that date.

Session Laws 2015-241, s. 29.11(a), (b), provides: "(a) Plan. - The Board of Transportation shall develop a plan to bring greater visibility and public awareness to the Product Evaluation Program, a unit of the Department of Transportation that reviews new and innovative technologies and products. As part of its plan, the Board shall add to its monthly public meeting an agenda item that highlights two new technologies, one technology that is under review by the Product Evaluation Program and one technology that was recently approved by the Product Evaluation Program.

"(b) Report and Implementation. - The plan required under subsection (a) of this section shall be submitted to the chairs of the Joint Legislative Transportation Oversight Committee no later than December 1, 2015. The Board shall implement the plan required under subsection (a) of this section by February 15, 2016."

Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2015-2017 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2015-2017 fiscal biennium."

Session Laws 2015-241, s. 33.6, is a severability clause.

§ 136-18.05. Establishment of "DOT Report" Program.

1. Intent. - It is the intent of the General Assembly that North Carolina's reputation as the "Good Roads State" is restored, which requires a partnership between the Governor, the Department of Transportation, the General Assembly, and all North Carolina citizens. Further, the General Assembly finds that improving the condition of North Carolina's roads requires increased oversight, accountability, innovation, and efficiency. It is the belief of the General Assembly that, through increased transparency and responsiveness to the public, the condition of the roads in this State will be the best in the nation within 10 years.
2. Establishment and Components. - To achieve the intent set forth in subsection (a) of this section, the Department shall establish and implement the "DOT Report" Program (Program). The Program shall include the following components:
   1. Responsiveness. - The Department shall structure the Program to gather citizen input and shall commit to quickly addressing structural problems and other road hazards on State-maintained roads. Citizens may report potholes, drainage issues, culvert blockages, guardrail repairs, damaged or missing signs, malfunctioning traffic lights, highway debris, or shoulder damage to the Department of Transportation by calling a toll-free telephone number designated by the Department or submitting an online work request through a Web site link designated by the Department. Beginning January 1, 2016, upon receiving a citizen report in accordance with this subdivision, the Department shall either address the reported problem or identify a solution to the reported problem. Excluding potholes, which shall be repaired within two business days of the date the report is received, the Department of Transportation shall properly address (i) safety-related citizen reports no later than 10 business days after the date the report is received and (ii) non-safety-related citizen reports no later than 15 business days after the date the report is received. The Department shall determine, in its discretion, whether a citizen report is safety-related or non-safety-related. The Department shall transmit information received about potholes or other problems on roads not maintained by the State to the appropriate locality within two business days of receiving the citizen report. The Department shall post a monthly report to the Department's performance dashboard Web site on the number of citizen reports received under this subdivision for the month immediately preceding the monthly report, the number of citizen reports fully addressed within the time frames set forth in this subdivision for the month immediately preceding the monthly report, the number of citizen reports addressed outside of the time frames set forth in this subdivision for the month immediately preceding the monthly report, and the number of citizen reports not fully addressed for the month immediately preceding the report.
   2. Efficiency. - The Department shall adopt procedures in all stages of the construction process to streamline project delivery, including consolidating environmental review processes, expediting multiagency reviews, accelerating right-of-way acquisitions, and pursuing design build and other processes to collapse project stages. By December 1, 2015, the Department shall establish a baseline unit pricing structure for transportation goods used in highway maintenance and construction projects and set annual targets for three years based on its unit pricing. In forming the baseline unit prices and future targets, the Department shall collect data from each Highway Division on its expenditures on transportation goods during the 2015-2016 fiscal year. Beginning January 1, 2016, no Highway Division shall exceed a ten percent (10%) variance over a baseline unit price set for that year in accordance with this subdivision. The Department of Transportation shall institute annual tracking to monitor pricing variances. The ten percent (10%) maximum variance set under this subdivision is intended to account for regional differences requiring varying product mixes. If a Highway Division exceeds the unit pricing threshold, the Department shall submit a report to the Joint Legislative Transportation Oversight Committee, the Fiscal Research Division of the General Assembly, the chairs of the House of Representatives Appropriations Committee on Transportation, and the chairs of the Senate Appropriations Committee on the Department of Transportation no later than the fifteenth day of February following the end of the calendar year on why the variance occurred and what steps are being taken to bring the Highway Division back into compliance. In order to drive savings, unit pricing may be reduced annually as efficiencies are achieved.
   3. Performance. - Beginning December 1, 2015, the Secretary of the Department of Transportation shall conduct an annual job satisfaction survey of all Department personnel that shall address relationships among all levels of leadership, work environment, issues impacting job performance, and leadership performance in creating the dynamic work environment necessary to meet new performance outcomes. In addition, the Department shall conduct an annual survey of North Carolina citizens to measure the level of citizen satisfaction with the condition of the roads and highways of this State. Within 30 days of compiling the information received from surveys conducted in accordance with this subdivision, the results of these surveys shall be reported to the Joint Legislative Transportation Oversight Committee and the Fiscal Research Division.
3. Quarterly Cost Escalation Report. - Within 30 days of the end of each quarter, the Department of Transportation shall submit to the chairs of the Joint Legislative Transportation Oversight Committee and to the Fiscal Research Division of the General Assembly a quarterly report containing summaries by month of a report for resurfacing projects and a report for contracts let centrally and by the highway divisions. Both reports shall contain all of the following information itemized by highway division:
   1. Total number of projects.
   2. Number of awarded projects.
   3. Number of bidders.
   4. Average number of bidders per project.
   5. Number of single bids.
   6. Number of contracts not awarded.
   7. Total cost estimate for projects.
   8. Total low bid amount.
   9. Percentage above or below estimate.

History

(2015-241, s. 29.14(a); 2017-57, s. 35.16(a); 2018-5, s. 34.10(a); 2018-74, s. 2(a).)

Editor's Note. - Session Laws 2015-241, s. 29.14(b)-(e), as amended by Session Laws 2017-57, s. 35.16(b), provides: "(b) Repealed by Session Laws 2017-57, s. 35.16(b), effective July 1, 2017.

"(c) Oversight. - No later than May 1, 2016, and to increase budget transparency and allow for greater legislative and citizen oversight, the Department of Transportation, in consultation with the Fiscal Research Division and the Office of State Budget and Management, shall reclassify the funding source for all full-time positions that are budgeted as receipt-supported on the basis of charging to projects to appropriation and shall adjust budgeted funds accordingly. Employees in the Division of Highways shall be attributed to the respective Highway Division fund codes within the Highway Fund. Notwithstanding any other provision of law, the Department of Transportation is authorized to reallocate sufficient funds from the Primary Maintenance, Secondary Maintenance, and General Maintenance Reserve fund codes to each Highway Division to pay for salary and related costs associated with the reclassified positions. Receipt-supported positions in other organizational units within the Department of Transportation shall be funded through existing fund codes and funding sources for their assigned organizational units.

"(d) Restructure. - A review of the organization, staffing, and operations of the Division of Highways within the Department of Transportation is needed to improve the efficiency and effectiveness of the Division of Highways' operations and to align operations and staffing with the strategic goals set for the Division of Highways. To that end, the Department of Transportation shall study and review the Division of Highways. The study and review, at a minimum, shall include all of the following:

"(1) A review of current Division of Highways' operations, staffing levels, and employee performance management efforts.

"(2) An evaluation of current laws and policies related to Division of Highways' operations and staffing.

"(3) Recommendations on how best to align staffing with strategic goals and workload.

"(4) Recommendations on how to better shift decision making on project development to the 14 Highway Divisions, including a plan developed by the Department of Transportation to eliminate at least ten percent (10%) of the total amount of filled positions within the Department of Transportation that are centrally or regionally based and that perform administrative, managerial, supervisory, or oversight functions. The plan shall describe the functions performed at the centrally and regionally based offices, including justification as to why each function cannot be outsourced, consolidated, or shifted to the Highway Divisions.

"(5) Recommendations on performance- or incentive-based systems to improve the effectiveness of the Division of Highways.

"(6) Recommendations on whether current laws and policies should be continued or modified based upon study results and human resource best practices.

"The Department of Transportation shall submit the results of the study and review to the Joint Legislative Transportation Oversight Committee by May 1, 2016.

"(e) Transparency. - In order for the public to access up-to-date information on highway and bridge projects and hold the Department of Transportation accountable for completing projects on time, the Department of Transportation shall adjust its performance dashboard available on the Department of Transportation's home page to track the monthly progress of all of the following:

"(1) Maintenance projects costing over one million dollars ($1,000,000).

"(2) Bridge replacement projects.

"(3) Bridge repair and bridge renovation projects requiring road closures in excess of 24 hours.

"(4) All construction projects included in the five-year State Transportation Improvement Program.

"The Department of Transportation's performance dashboard shall also be expanded to include Highway Division- and county-specific data with more detailed financial reporting and project delivery tracking. Dashboard enhancements required under this subsection shall be completed by March 1, 2016."

Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2015-2017 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2015-2017 fiscal biennium."

Session Laws 2015-241, s. 33.6, is a severability clause.

Session Laws 2016-94, s. 35.22, provides: "(a) Reduction Schedule. - The Department of Transportation shall complete the reductions through reorganization and reductions in force identified in the plan required under Section 29.14(d)(4) of S.L. 2015-241 according to the following schedule:

"(1) The Department shall reduce through reorganization (i) at least 15 employees from the Division of Highways and (ii) at least 10 employees from the Technical Services Division. The Department shall complete the reductions required under this subdivision by September 1, 2016.

"(2) The Department shall reduce through reorganization or reduce in force (i) at least 21 employees from the Planning and Programming Division, with a minimum of five employees reduced through reorganization and (ii) at least 13 employees from the Technical Services Division, with a minimum of 10 employees reduced through reorganization. The Department shall complete the reductions required under this subdivision by January 1, 2017.

"(3) The Department shall reduce through reorganization or reduce in force (i) at least 171 employees from the Division of Highways and (ii) at least 26 employees from the Technical Services Division, with a minimum of 15 employees reduced through reorganization. The Department shall complete the reductions required under this subdivision by March 1, 2017.

"(b) Report. - The Department shall report to the Joint Legislative Transportation Oversight Committee (i) by September 16, 2016, on the reductions completed under subdivision (1) of subsection (a) of this section and (ii) by January 16, 2017, on the reductions completed under subdivision (2) of subsection (a) of this section. The Department shall report to the chairs of the House of Representatives Committee on Transportation Appropriations and the Senate Appropriations Committee on Department of Transportation by March 16, 2017, on the reductions completed under subdivision (3) of subsection (a) of this section. The reports shall identify the number of reductions, the type of reduction, and the positions that were reduced."

Session Laws 2016-94, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2016.'"

Session Laws 2016-94, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2016-2017 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2016-2017 fiscal year."

Session Laws 2016-94, s. 39.7, is a severability clause.

Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium."

Session Laws 2017-57, s. 39.6, is a severability clause.

Session Laws 2018-5, s. 34.10(b), provides: "The initial reports submitted under G.S. 136-18.05(c), as enacted by subsection (a) of this section, shall be submitted by October 31, 2018, and shall include information for each quarter beginning July 1, 2015."

Session Laws 2018-5, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2018.'"

Session Laws 2018-5, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2018-2019 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2018-2019 fiscal year."

Session Laws 2018-5, s. 39.7, is a severability clause.

Session Laws 2018-74, s. 2(b), provides: "This section is effective when it becomes law [June 25, 2018], except that the report required under G.S. 136-18.05(b)(1), as amended by this section, shall continue to be provided monthly to the Joint Legislative Transportation Oversight Committee, the Fiscal Research Division of the General Assembly, the chairs of the House of Representatives Appropriations Committee on Transportation, and the chairs of the Senate Appropriations Committee on the Department of Transportation, until it is posted to the Department's performance dashboard Web site."

Effect of Amendments. - Session Laws 2017-57, s. 34.16(a), effective July 1, 2017, added the last sentence in subdivision (b)(1); added subdivisions (b)(1)(a) through (b)(1)(d); and added subdivision (b)(1a).

Session Laws 2018-5, s. 34.10(a), effective July 1, 2018, added subsection (c).

Session Laws 2018-74, s. 2(a), substituted "shall post a monthly report to the Department's performance dashboard Web site" for "shall provide a monthly report to all of the following" in the last sentence of subdivision (b)(1); and in subdivision (b)(1a), substituted "annual tracking" for "quarterly tracking," in the fifth sentence, and in the seventh sentence, substituted "calendar year" for "quarter," and inserted "submit a" and "of February." For effective date and applicability, see editor's note.

§ 136-18.06. Public Street Information Database.

The Department shall compile a readily available "Public Street Information Database" and place it in operation on or before January 1, 2020. The information shall convey the status of roads within the State, and it shall be updated at least monthly, except as provided in subdivision (1) of this section. The data shall reside on any existing database system chosen by the Department for this purpose, including a geographic information system (GIS) mapping system. The system chosen shall convey clear and concise information regarding the status of roads to the public. The data shall be available to the public in either graphic or tabular format, or both. The status of roads to be conveyed shall be:

1. Federally owned, updated as often and with as much information as the State is provided from the federal government.
2. State-maintained with a State road number assigned.
3. State-owned with a State road number assigned.

History

(2019-156, s. 1.)

Editor's Note. - Session Laws 2019-156, s. 1, made this section effective July 22, 2019.

§ 136-18.07. Subdivision Roads Manual.

The Department shall update its Subdivision Roads Minimum Construction Standards Manual and any related pavement or other policies by July 1, 2020, and regularly thereafter, to accurately reflect current federal and State law and applicable judicial decisions. The Department shall report all updates to the Manual to the Joint Legislative Transportation Oversight Committee.

History

(2019-156, s. 2.)

Editor's Note. - Session Laws 2019-156, s. 2, made this section effective July 22, 2019.

§ 136-18.1: Repealed by Session Laws 1999-29, s. 1.

§ 136-18.2. Seed planted by Department of Transportation to be approved by Department of Agriculture and Consumer Services.

The Department of Transportation shall not cause any seed to be planted on or along any highway or road right-of-way unless and until such seed has been approved by the Department of Agriculture and Consumer Services as provided for in the rules and regulations of the Department of Agriculture and Consumer Services for such seed.

History

(1957, c. 1002; 1973, c. 507, s. 5; 1977, c. 464, s. 7.1; 1997-261, s. 88.)

§ 136-18.3. Location of garbage collection containers by counties and municipalities.

1. The Department of Transportation is authorized to issue permits to counties and municipalities for the location of containers on rights-of-way of state-maintained highways for the collection of garbage. Such containers may be located on highway rights-of-way only when authorized in writing by the Chief Engineer in accordance with rules and regulations promulgated by the Department of Transportation. Such rules and regulations shall take into consideration the safety of travelers on the highway and the elimination of unsightly conditions and health hazards. Such containers shall not be located on fully controlled-access highways.
2. The provisions of G.S. 14-399, which make it a misdemeanor to place garbage on highway rights-of-way, shall not apply to persons placing garbage in containers in accordance with rules and regulations promulgated by the Department of Transportation.
3. The written authority granted by the Department of Transportation shall be no guarantee that the State system highway rights-of-way on which the containers are authorized to be located is owned by the Department of Transportation, and the issuance of such written authority shall be granted only when the county or municipality certifies that written permission to locate the refuse container has been obtained from the owner of the underlying fee if the owner can be determined and located.
4. Whenever any municipality or county fails to comply with the rules and regulations promulgated by the Department of Transportation or whenever they fail or refuse to comply with any order of the Department of Transportation for the removal or change in the location of a container, then the permit of such county or municipality shall be revoked. The location of such garbage containers on highway rights-of-way after such order for removal or change is unauthorized and illegal; the Department of Transportation shall have the authority to remove such unauthorized or illegal containers and charge the expense of such removal to the county or municipality failing to comply with the order of the Department of Transportation.

History

(1973, c. 1381; 1977, c. 464, s. 7.1; 2012-85, s. 5.)

Effect of Amendments. - Session Laws 2012-85, s. 5, effective June 26, 2012, substituted "Chief Engineer" for "State Highway Administrator" in the second sentence in subsection (a).

§ 136-18.3A. Wireless communications infrastructure.

1. The definitions set forth in G.S. 160D-931 shall apply to this section.
2. The Department of Transportation is authorized to issue permits to wireless providers for the collocation of wireless facilities and the construction, operation, modification, or maintenance of utility poles, wireless support structures, conduit, cable, and related appurtenances and facilities for the provision of wireless services along, across, upon, or under the rights-of-way of State-maintained highways. The permits and included requirements shall be issued and administered in a reasonable and nondiscriminatory manner.
3. The Department of Transportation shall take action to approve or deny a permit application for collocation of a small wireless facility under this section within a reasonable period of time of receiving the application from a wireless provider.
4. The collocation of small wireless facilities and the construction, operation, modification, or maintenance of utility poles, wireless support structures, conduit, cable, and related appurtenances and facilities for the provision of small wireless facilities along, across, upon, or under the rights-of-way of State-maintained highways shall be subject to all of the following requirements:
   1. The structures and facilities shall not obstruct or hinder the usual travel or public safety on any rights-of-way of State-maintained highways or obstruct the legal use of such rights-of-way of State-maintained highways by other utilities.
   2. Each new or modified utility pole and wireless support structure installed in the right-of-way of State-maintained highways shall not exceed the greater of (i) 10 feet in height above the height of the tallest existing utility pole, other than a utility pole supporting only wireless facilities, in place as of July 1, 2017, located within 500 feet of the new pole in the same rights-of-way or (ii) 50 feet above ground level.
   3. Each new small wireless facility in the right-of-way shall not extend (i) more than 10 feet above an existing utility pole, other than a utility pole supporting only wireless facilities, or wireless support structure in place as of July 1, 2017, or (ii) above the height permitted for a new utility pole or wireless support structure under subdivision (2) of this section.

History

(2017-159, s. 3(b); 2019-111, s. 2.5(p); 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)

Editor's Note. - Session Laws 2019-111, s. 3.2, as amended by Session Laws 2020-3, s. 4.33(a), made the amendment of subsection (a) by Session Laws 2019-111, s. 2.5(p), effective August 1, 2021, and applicable to local government development regulation decisions made on or after that date, and further provided that: "Part II of this act clarifies and restates the intent of existing law and applies to ordinances adopted before, on, and after the effective date." Session Laws 2020-25, s. 51(a), (b), and (d), effective June 19, 2020, repealed Session Laws 2019-111, s. 3.2, and Session Laws 2020-3, s. 4.33(a), and provides: "Part II of S.L. 2019-111 is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:

"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or

"(2) July 1, 2021."

The reference to "G.S. 160D-9-31" in subdivision (10) was changed to "G.S. 160D-931" at the direction of the Revisor of Statutes to conform to the renumbering of enacted sections in Session Laws 2019-111.

Session Laws 2020-3, s. 5, is a severability clause.

Effect of Amendments. - Session Laws 2019-111, s. 2.5(p), substituted "G.S. 160D-9-31" for "G.S. 160A-400.51" at the end of subsection (a). For effective date and applicability, see editor's note.

§ 136-18.4. Provision and marking of "pull-off" areas.

The Department of Transportation is hereby authorized and directed (i) to provide as needed within its right-of-way, adjacent to long sections of two-lane primary highway having a steep uphill grade or numerous curves, areas on which buses, trucks and other slow-moving vehicles can pull over so that faster moving traffic may proceed unimpeded and (ii) to erect appropriate and adequate signs along such sections of highway and at the pull-off areas. A driver of a truck, bus, or other slow-moving vehicle who fails to use an area so provided and thereby impedes faster moving traffic following his vehicle shall be guilty of a Class 3 misdemeanor.

History

(1975, c. 704; 1977, c. 464, s. 7.1; 1993, c. 539, s. 978; 1994, Ex. Sess., c. 24, s. 14(c).)

§ 136-18.5. Wesley D. Webster Highway.

State Highway 704 shall be known as the "Wesley D. Webster Highway".

History

(1983 (Reg. Sess., 1984), c. 974.)

§ 136-18.5A. Purple Heart Memorial Highway.

Interstate Highway 95 in North Carolina is designated as the "Purple Heart Memorial Highway" to pay tribute to the many North Carolinians who have been awarded the Purple Heart medal after being wounded or killed in action against the enemy.

History

(2002-86, s. 2(a).)

Editor's Note. - Session Laws 2002-86, s. 2(b), provides: "The Department of Transportation shall, with the assistance of the Military Order of the Purple Heart and the Division of Veterans Affairs, design and place appropriate signage on Interstate Highway 95 at suitable locations, consistent with State and federal regulations, near the South Carolina and Virginia borders and at the intersection of Interstate Highway 40, implementing Section 2(a) of this act."

Session Laws 2002-86, s. 2(c), provides: "The Department of Transportation shall calculate the costs of designing and placing the signs required by Section 2(b) of this act, and the Military Order of the Purple Heart shall pay those costs to the Department prior to the erection of the signs."

§ 136-18.5B. Dale Earnhardt Highway.

The Board of Transportation shall designate State Highway 136 in Iredell and Cabarrus counties as State Highway 3, which shall be known as the "Dale Earnhardt Highway".

History

(2002-170, s. 4.)

Editor's Note. - This section was enacted as G.S. 136-18.5.1 and was redesignated as G.S. 136-18.5B at the direction of the Revisor of Statutes.

Session Laws 2002-170, s. 5, provides: "State Highway 3 in Currituck County shall be designated as State Highway 136."

§ 136-18.5C. The U.S. Marine Corps Highway: Home of Carolina-Based Marines since 1941.

U.S. Highway 17 running between the Town of Holly Ridge and the Town of Edenton, and the portion of U.S. Highway 70 running between the intersection of U.S. Highway 70 and N.C. Highway 101 near Cherry Point Marine Corps Air Station and the intersection of U.S. Highway 70 and U.S. Highway 17 is designated as "The U.S. Marine Corps Highway: Home of Carolina-Based Marines since 1941" in light of the historical contributions of the United States Marine Corps.

History

(2009-198, s. 1.)

Editor's Note. - Session Laws 2009-198, s. 1, was codified as this section at the direction of the Revisor of Statutes. Session Laws 2009-198, s. 3, made this section effective June 26, 2009.

The preamble to Session Laws 2009-198, provides: "Whereas, during 1940, amid the escalating mobilization of World War II, the 1st Marine Division and the 1st Marine Air Wings of the United States Marine Corps were in need of an operational staging area on the east coast of the United States; and

"Whereas, in the summer of 1940, Major John C. McQueen and his pilot, Captain Verne McCaul, on the orders of then Major General Thomas Holcomb, Marine Corps Commandant, undertook an aerial survey that covered the Atlantic and Gulf Coasts from Norfolk, Virginia, to Corpus Christi, Texas, and determined that 14 miles of beach in Onslow County, North Carolina, was the only suitable location for a Marine Corps base in the Eastern United States; and

"Whereas, in February 1941, President Roosevelt authorized an initial outlay of $1,500,000 for the survey and purchase of a 174-square-mile tract near Jacksonville, North Carolina, and on April 5, 1941, the United States Congress authorized $14,575,000 for the base's construction; and

"Whereas, on May 1, 1941, the Marine Barracks New River was formally established as a major amphibious training ground and has grown since into the Marine Corps Base, Camp Lejeune, partly bounded by U.S. Highway 17 in Jacksonville, North Carolina; and

"Whereas, from April 1942 until desegregation of the Marine Corps in 1949, Montford Point Camp in North Carolina was the exclusive training grounds for African-American Marines; and

"Whereas, from 1943 until passage of the Women's Armed Service Integration Act in 1948, the New River Base was the principal training center for the women Marines, having trained over 20,000 women Marines; and

"Whereas, in 1944 the United States Marine Corps assumed control of Camp Davis at Holly Ridge when the United States Army declared it excess to their needs and utilized it to train the Royal Netherlands Marine Corps; and

"Whereas, other sites along or near U.S. Highway 17 in Eastern North Carolina have historical significance to the United States Marine Corps, including major air stations at Cherry Point and Edenton, North Carolina, and auxiliary or outlying landing fields at Atlantic Beach, Beaufort, Bogue, Greenville, Manteo, New River, Oak Grove, Washington, and Wilson; and

"Whereas, the Museum of the Marine currently being planned at Camp Lejeune in Jacksonville, North Carolina, will honor the history of the Carolina-based Marines from World War II to the present and highlight the many historically significant locations along U.S. Highway 17; and

"Whereas, estimates show that the Museum of the Marine has the potential to draw 100,000 visitors each year, and the designation of U.S. Highway 17 as a scenic byway will add to this attraction; and

"Whereas, the General Assembly desires to honor the United States Marine Corps' large and enduring military presence at locations in Eastern North Carolina along U.S. Highway 17; Now, therefore,

"The General Assembly of North Carolina enacts:"

Session Laws 2009-198, ss. 2 and 2.1, provide: "SECTION 2. The Department of Transportation shall collaborate with the Highway 17 Association, the Department of Commerce, and the Department of Cultural Resources concerning the appropriate signage along the Highway designated in this act, in order to maximize the economic development opportunities along the route of the Highway. The Department of Transportation may contract with nongovernmental entities to produce, install, and maintain the signs.

"SECTION 2.1. No State funds shall be expended to purchase signage or for any other purpose authorized by this act. All costs shall be paid by the Marine Corps Parkway Association."

§ 136-18.6. Cutting down trees.

Except in the process of an authorized construction, maintenance or safety project, the Department shall not cut down trees unless:

1. The trees pose a potential danger to persons or property; or
2. The cutting down of the trees is approved by the appropriate District Engineer.

History

(1989, c. 63, s. 1.)

§ 136-18.7. Fees.

The fee for a selective vegetation removal permit issued pursuant to G.S. 136-18(5), (7), and (9) is two hundred dollars ($200.00).

History

(1999-404, s. 5.)

§ 136-19. Acquisition of land and deposits of materials; condemnation proceedings; federal parkways.

1. The Department of Transportation is vested with the power to acquire either in the nature of an appropriate easement or in fee simple such rights-of-way and title to such land, gravel, gravel beds or bars, sand, sand beds or bars, rock, stone, boulders, quarries, or quarry beds, lime or other earth or mineral deposits or formations, and such standing timber as it may deem necessary and suitable for transportation infrastructure construction, including road construction, maintenance, and repair, and the necessary approaches and ways through, and a sufficient amount of land surrounding and adjacent thereto, as it may determine to enable it to properly prosecute the work, by purchase, donation, or condemnation, in the manner hereinafter set out. If the Department of Transportation acquires by purchase, donation, or condemnation part of a tract of land in fee simple for highway right-of-way as authorized by this section and the Department of Transportation later determines that the property acquired for transportation infrastructure, including highway right-of-way, or a part of that property, is no longer needed for infrastructure right-of-way, then the Department shall give first consideration to any offer to purchase the property made by the former owner. The Department may refuse any offer that is less than the current market value of the property, as determined by the Department. Unless the Department acquired an entire lot, block, or tract of land belonging to the former owner, the former owner must own the remainder of the lot, block, or tract of land from which the property was acquired to receive first consideration by the Department of their offer to purchase the property.
2. Notwithstanding the provisions of subsection (a), if the Department acquires the property by condemnation and determines that the property or a part of that property is no longer needed for highway right-of-way or other transportation projects, the Department of Transportation may reconvey the property to the former owner upon payment by the former owner of the full price paid to the owner when the property was taken, the cost of any improvements, together with interest at the legal rate to the date when the decision was made to offer the return of the property. Unless the Department acquired an entire lot, block, or tract of land belonging to the former owner, the former owner must own the remainder of the lot, block, or tract of land from which the property was acquired to purchase the property pursuant to this subsection.
3. The requirements of this section for reconveying property to the former owner, regardless of whether such property was acquired by purchase, donation, or condemnation, shall not apply to property acquired outside the right-of-way as an "uneconomic remnant" or "residue".
4. The Department of Transportation is also vested with the power to acquire such additional land alongside of the rights-of-way for transportation projects, including roads as in its opinion may be necessary and proper for the protection of the transportation projects, including roads and roadways, and such additional area as may be necessary as by it determined for approaches to and from such material and other requisite area as may be desired by it for working purposes. The Department of Transportation may, in its discretion, with the consent of the landowner, acquire in fee simple an entire lot, block or tract of land, if by so doing, the interest of the public will be best served, even though said entire lot, block or tract is not immediately needed for right-of-way purposes.
5. Notwithstanding any other provisions of law or eminent domain powers of utility companies, utility membership corporations, municipalities, counties, entities created by political subdivisions, or any combination thereof, and in order to prevent undue delay of highway projects because of utility conflicts, the Department of Transportation may condemn or acquire property in fee or appropriate easements necessary to provide transportation project rights-of-way for the relocation of utilities when required in the construction, reconstruction, or rehabilitation of a State transportation project. The Department of Transportation shall also have the authority, subject to the provisions of G.S. 136-19.5(a) and (b), to, in its discretion, acquire rights-of-way necessary for the present or future placement of utilities as described in G.S. 136-18(2).
6. Whenever the Department of Transportation and the owner or owners of the lands, materials, and timber required by the Department of Transportation to carry on the work as herein provided for, are unable to agree as to the price thereof, the Department of Transportation is hereby vested with the power to condemn the lands, materials, and timber and in so doing the ways, means, methods, and procedure of Article 9 of this Chapter shall be used by it exclusively.
7. The Department of Transportation shall have the same authority, under the same provisions of law provided for construction of State transportation projects, for acquirement of all rights-of-way and easements necessary to comply with the rules and regulations of the United States government for the construction of federal parkways and entrance roads to federal parks in the State of North Carolina. The acquirement of a total of 125 acres per mile of said parkways, including roadway and recreational, and scenic areas on either side thereof, shall be deemed a reasonable area for said purpose. The right-of-way acquired or appropriated may, at the option of the Department of Transportation, be a fee-simple title. The said Department of Transportation is hereby authorized to convey such title so acquired to the United States government, or its appropriate agency, free and clear of all claims for compensation. All compensation contracted to be paid or legally assessed shall be a valid claim against the Department of Transportation, payable out of the State Highway Fund. Any conveyance to the United States Department of Interior of land acquired as provided by this section shall contain a provision whereby the State of North Carolina shall retain concurrent jurisdiction over the areas conveyed. The Governor is further authorized to grant concurrent jurisdiction to lands already conveyed to the United States Department of Interior for parkways and entrances to parkways.
8. The action of the Department of Transportation heretofore taken in the acquirement of areas for the Blue Ridge Parkway in accordance with the rules and regulations of the United States government is hereby ratified and approved and declared to be a reasonable exercise of the discretion vested in the said Department of Transportation in furtherance of the public interest.
9. When areas have been tentatively designated by the United States government to be included within a parkway, but the final survey necessary for the filing of maps as provided in this section has not yet been made, no person shall cut or remove any timber from said areas pending the filing of said maps after receiving notice from the Department of Transportation that such area is under investigation; and any property owner who suffers loss by reason of the restraint upon his right to use the said timber pending such investigation shall be entitled to recover compensation from the Department of Transportation for the temporary appropriation of his property, in the event the same is not finally included within the appropriated area, and the provisions of this section may be enforced under the same law now applicable for the adjustment of compensation in the acquirement of rights-of-way on other property by the Department of Transportation.

History

(1921, c. 2, s. 22; 1923, c. 160, s. 6; C.S., s. 3846(bb); 1931, c. 145, s. 23; 1933, c. 172, s. 17; 1935, c. 2; 1937, c. 42; 1949, c. 1115; 1953, c. 217; 1957, c. 65, s. 11; 1959, c. 1025, s. 1; cc. 1127, 1128; 1963, c. 638; 1971, c. 1105; 1973, c. 507, ss. 5, 11; 1977, c. 464, s. 7.1; 1989 (Reg. Sess., 1990), c. 962, s. 2; 1991 (Reg. Sess., 1992), c. 979, s. 1; 2009-266, s. 7.)

Cross References. - As to powers of the Department of Transportation, see G.S. 136-18.

As to institution of action and deposit in condemnation action, see G.S. 136-103 et seq.

Effect of Amendments. - Session Laws 2009-266, s. 7, effective August 1, 2009, in subsection (a), in the first sentence, inserted "transportation infrastructure construction, including" near the middle, in the second sentence, inserted "transportation infrastructure, including" and substituted "infrastructure right-of-way" for "highway right-of-way" near the middle; in subsection (b), inserted "or other transportation projects" in the first sentence; in subsection (d), substituted "rights-of-way for transportation projects, including" for "rights-of-way or" and inserted "transportation projects, including" in the first sentence; in subsection (e), substituted "transportation project rights-of-way" for "highway rights-of-way" and "transportation project" for "highway project" in the first sentence; and, in subsection (g), substituted "transportation projects" for "highways" in the first sentence.

Legal Periodicals. - For comment on the operation of this section in connection with Chapter 40, see 28 N.C.L. Rev. 403 (1950).

For case law survey on eminent domain, see 41 N.C.L. Rev. 471 (1963); 44 N.C.L. Rev. 941, 1003 (1966); 48 N.C.L. Rev. 767 (1970).

For note on public use in North Carolina, see 44 N.C.L. Rev. 1142 (1966).

For article urging revision and recodification of North Carolina's eminent domain laws, see 45 N.C.L. Rev. 587 (1967).

§ 136-19.3. Acquisition of buildings.

Where the right-of-way of a proposed highway or other transportation project necessitates the taking of a portion of a building or structure, the Department of Transportation may acquire, by condemnation or purchase, the entire building or structure, together with the right to enter upon the surrounding land for the purpose of removing said building or structure, upon a determination by the Department of Transportation based upon an affidavit of an independent real estate appraiser that the partial taking will substantially destroy the economic value or utility of the building or structure and (i) that an economy in the expenditure of public funds will be promoted thereby; or (ii) that it is not feasible to cut off a portion of the building without destroying the entire building; or (iii) that the convenience, safety or improvement of the transportation project will be promoted thereby; provided, nothing herein contained shall be deemed to give the Department of Transportation authority to condemn the underlying fee of the portion of any building or structure which lies outside the right-of-way of any existing or proposed transportation project, including a public road, street or highway.

History

(1965, c. 660; 1973, c. 507, s. 5; 1977, c. 464, s. 7.1; 2009-266, s. 8.)

Effect of Amendments. - Session Laws 2009-266, s. 8, effective August 1, 2009, inserted "or other transportation project" near the beginning, substituted "transportation project" for "highway" in clause (iii), and inserted "transportation project, including a" near the end.

§ 136-19.4. Registration of right-of-way plans.

1. A copy of the cover sheet and plan and profile sheets of the final right-of-way plans for all Department of Transportation projects, on those projects for which plans are prepared, under which right-of-way or other interest in real property is acquired or access is controlled shall be certified by the Department of Transportation to the register of deeds of the county or counties within which the project is located. The Department shall certify said plan sheets to the register of deeds within two weeks from their formal approval by the Board of Transportation.
2. The copy of the plans certified to the register of deeds shall consist of a Xerox, photographic, or other permanent copy, except for plans electronically transmitted pursuant to subsection (b1) of this section, and shall measure approximately 17 inches by 11 inches including no less than one and one-half inches binding space on the left-hand side.
3. With the approval of the county in which the right-of-way plans are to be filed, the Department may transmit the plans electronically.
4. Notwithstanding any other provision in the law, upon receipt of said original certified copy of the right-of-way plans, the register of deeds shall record said right-of-way plans and place the same in a book maintained for that purpose, and the register of deeds shall maintain a cross-index to said right-of-way plans by number of road affected, if any, and by identification number. No probate before the clerk of the superior court shall be required.
5. If after the approval of said final right-of-way plans the Board of Transportation shall by resolution alter or amend said right-of-way or control of access, the Department of Transportation, within two weeks from the adoption by the Board of Transportation of said alteration or amendment, shall certify to the register of deeds in the county or counties within which the project is located a copy of the amended plan and profile sheets approved by the Board of Transportation and the register of deeds shall remove the original plan sheets and record the amended plan sheets in lieu thereof.
6. The register of deeds in each county shall collect a fee from the Department of Transportation for recording right-of-way plans and profile sheets in the amount set out in G.S. 161-10.

History

(1967, c. 228, s. 1; 1969, c. 80, s. 13; 1973, c. 507, ss. 5, 12-15; 1975, c. 716, s. 7; 1977, c. 464, s. 7.1; 1999-422, s. 1; 2000-68, s. 1; 2001-390, s. 6.)

Editor's Note. - Session Laws 1969, c. 80, which added subsection (e) of this section, provided, in s. 14, that nothing in the act "shall prevent any register of deeds whose compensation is derived from fees from retaining those fees as heretofore provided by law except that the amount of such fees shall be determined as provided herein."

§ 136-19.4A. Required surveying information in certain acquisition plans.

The Department of Transportation shall include in any plan prepared for the purpose of acquiring right-of-way, a permanent easement, or both, that depicts property lines, right-of-way lines, or permanent easements, a set of drawings that clearly identify design alignments, baseline control points, found property-related corner markers, and new right-of-way and permanent easement corner markers. Plans subject to the requirements of this section shall document the localized coordinates for each major control point along the design alignments. The coordinates and associated localization metadata shall be based upon, and tied to, the North Carolina State Plane Coordinate system and shall be clearly identified within the plans. All property corner markers found and surveyed shall be clearly identified within the plans in accordance with general surveying standards and procedures. Each property corner marker shall be accurately tied to the design alignment or the North Carolina State Plane Coordinate system, by either a system of bearings and distances or by station and offset.

History

(2017-137, s. 1; 2017-212, s. 1.3.)

Editor's Note. - Session Laws 2017-137, s. 3, as amended by Session Laws 2017-212, s. 1.3, made this section effective October 1, 2017, and applicable to policies issued or renewed on or after that date.

§ 136-19.5. Utility right-of-way agreements.

1. Before the Department of Transportation acquires or proposes to acquire additional rights-of-way for the purpose of accommodating the installation of utilities as authorized by G.S. 136-18 and G.S. 136-19, there shall first be voluntary agreements with the appropriate utilities regarding the acquisition and use of the particular right-of-way and requiring the payment to the Department of Transportation for or recapture of all of its costs associated with that acquisition, including the use of funds allocated to such acquisition. Such agreements may take into account the fact that more than one utility can make use of the right-of-way. No such agreement shall constitute a sale of the right-of-way and all such rights-of-way shall remain under the control of the Department of Transportation.
2. A prior agreement between the Department of Transportation and the affected utilities may be entered into but is not required when the acquisition of right-of-way is for the purpose of relocation of utilities due to construction, reconstruction, or rehabilitation of a State transportation project. The Department of Transportation shall notify the affected utility whose facilities are being relocated and the affected utility may choose not to participate in the proposed plan for right-of-way acquisition. The decision not to participate in the proposed plan of right-of-way acquisition shall not affect any other rights the utility may have as a result of the relocation of its lines or pipelines.
3. Whenever the Department of Transportation requires the relocation of utilities, including cable service as defined in G.S. 105-164.3, located in a right-of-way for which the utility owner contributed to the cost of acquisition, the Department of Transportation shall reimburse the utility owner for the cost of moving those utilities. The Department may, with the agreement of the utility owner, acquire a replacement right-of-way and assign the easement rights of the replacement right-of-way to the utility owner.
4. Any additional right-of-way obtained pursuant to this section which is part of a railroad right-of-way shall be returned to the railroad or its successor in interest when the Department of Transportation and the affected utilities agree that the additional right-of-way is no longer useful for utility purposes and the Department of Transportation determines that it is no longer useful for transportation purposes.

History

(1989 (Reg. Sess., 1990), c. 962, s. 3; 2009-266, s. 9; 2017-10, s. 2.12(c); 2018-5, s. 34.14.)

Editor's Note. - Session Laws 2017-10, s. 2.12(d), provides: "Notwithstanding G.S. 150B-21.1(a), the Department of Transportation may adopt temporary rules to implement the provisions of this section."

Session Laws 2017-10, s. 5.1, is a severability clause.

Effect of Amendments. - Session Laws 2009-266, s. 9, effective August 1, 2009, substituted "transportation" for "highway" in the first sentence of subsection (b), and near the end of subsection (d).

Session Laws 2017-10, s. 2.12(b), effective May 4, 2017, inserted "including cable service as defined in G.S. 105-164.3," near the beginning of subsection (c).

Session Laws 2018-5, s. 34.14, effective July 1, 2018, added the second sentence in subsection (c).

§ 136-19.6. Right-of-Way Claim Report.

1. Intent. - It is the intent of the General Assembly to provide the Department of Transportation with the resources and flexibility necessary to accelerate the time in which projects are completed while maintaining fairness to affected property owners and other citizens of this State. It is the belief of the General Assembly that providing the Department with the flexibility allowed under subsection (b) of this section will help toward achieving this intent. Therefore, the Department is encouraged to utilize the flexibility provided in subsection (b) of this section for all acquisitions of land in which the estimate of the acquisition is ten thousand dollars ($10,000) or less.
2. Permissive Exception to Appraisal. - When the Department acquires land, and except as otherwise required by federal law, an appraisal is not required if the Department estimates that the proposed acquisition is forty thousand dollars ($40,000) or less, based on a review of data available to the Department at the time the Department begins the acquisition process. If the Department estimates the acquisition to be forty thousand dollars ($40,000) or less, the Department may prepare a Right-of-Way Claim Report instead of an appraisal. The owner of the land to be acquired may request the Department provide an appraisal for any right-of-way claim of ten thousand dollars ($10,000) or more. The Department may contract with a qualified third party to prepare a Right-of-Way Claim Report. Any person preparing a Right-of-Way Claim Report must have a sufficient understanding of the local real estate market.
3. Construction. - Nothing in subsection (b) of this section shall be construed as superseding or altering any provision of federal law requiring the Department to obtain an appraisal of a property the Department is attempting to acquire.

History

(2017-57, s. 34.5(a); 2018-74, s. 1(a).)

Editor's Note. - Session Laws 2017-57, s. 34.5(d), made this section effective May 15, 2018, and applicable to acquisitions on or after that date.

Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium."

Session Laws 2017-57, s. 39.6, is a severability clause.

Effect of Amendments. - Session Laws 2018-74, s. 1(a), effective July 1, 2018, substituted the section catchline for the former, which read: "Appraisal waiver valuation"; substituted "estimate of the acquisition is" for "value of the acquisition is estimated at" in the last sentence of subsection (a); and rewrote subsection (b).

§ 136-19.7. Residue property disposal; Department authority; definitions; classification and valuation; disposition method; proceeds; approvals required.

1. State Policy. - It is the policy of the State that the Department of Transportation shall dispose of its residue real property as expeditiously as possible for the benefit of the citizens and taxpayers of the State.
2. Department Authority to Dispose of Residue Property. - The Department, in accordance with this section, is vested with the power to manage, control, and dispose of real property acquired in fee simple and that the Department determines to be residue property.
3. Definitions. - When used in this section, the following definitions apply:
   1. Appraised value. - The value of residue property determined by an appropriate area appraiser or appraiser using Department appraisal methodology.
   2. Appraiser. - An appraiser licensed or certified by the North Carolina Appraisal Board and approved by the Department to accomplish Department appraisals.
   3. Area appraiser. - A Department supervising staff appraiser currently associated with a Department area appraisal office.
   4. Current market value. - The value of property determined by the Department, in the absence of an appraised value, when obtaining an appraisal is not feasible as determined by the Department. This value shall be determined by the appropriate Division Right-of-Way agent and Right-of-Way Unit manager. The Department shall document a determination of current market value by means other than determining an appraised value.
   5. Negotiated sale. - Method of sale involving discussion and agreement of sale terms with a single or limited group of purchasers. This method may be undertaken by the Department or the Department may delegate a negotiated sale of residue property to real estate brokers licensed in this State, at the election of the Chief Engineer.
   6. Public sale. - Method of disposing of residue property utilizing advertising and solicitation of competitive bids. This method may be undertaken by the Department or the Department may delegate a public sale to a real estate broker, auctioneer, or auction firm licensed in this State, at the election of the Chief Engineer.
   7. Residue property. - Real property that is owned in fee simple by the Department that was acquired by the Department in addition to the property necessary for a transportation project because it would have been an uneconomic remnant to the prior owner following completion of that transportation project.
   8. Residue property value. - The Department approved value of the residue property established by either the current market value or appraised value method.
   9. Uneconomic remnant. - Real property, that was located outside of a proposed right-of-way prior to acquisition, determined to have nominal or no value to the owner after a Department acquisition pursuant to G.S. 136-19.
   10. Upset bid. - At a public sale, an increased bid by a person that exceeds the highest bid received in response to the notice of public sale, or the last upset bid, as applicable, by a minimum of five percent (5%).
4. Classification of Residue Property. - The Department shall adopt criteria to guide the Department in classifying residue property, in its opinion, according to its highest potential benefit to the Department or potential purchasers. Once classified, residue property that has not been disposed of within five years shall be reviewed and reclassified if appropriate. [Classification is as follows:]
   1. Residue property of sufficient size and access to allow commercial or residential development shall be designated "Class A."
   2. Residue property that enhances the value of adjacent property by allowing more extensive use when joined with adjacent property shall be designated "Class B."
   3. Residue property that, due to size or access, is only of value to adjacent property owners, or that is of minimal or no value, shall be designated "Class C."
   4. Residue property that has not yet been classified or may be needed by the Department for future use shall be designated "Class D."
5. Residue Property Inventory. - The Department shall create and maintain a single comprehensive and up-to-date inventory of residue property owned in fee simple by the Department.
6. Methods of Disposition Based on Class of Residue Property. - The Department shall utilize its best efforts to dispose of Class A, Class B, and Class C residue property within four years of its classification and in accordance with the following methods:
   1. Public sale. - The sale of Class A residue property shall be disposed of by public sale and may be sold by either sealed bid or by auction at the election of the Right-of-Way Branch of the Department. The sale of the property must be advertised by at least two of the following methods:
      1. Publication once a week for at least two successive weeks in a newspaper qualified for legal advertising published in the area in which the residue property is located or, if no newspaper qualified for legal advertising is published in the area, in a newspaper having general circulation in the area in which the residue property is located.
      2. Placement on the Department Web site.
      3. Placement of a "For Sale" sign on the residue property.
   2. Other methods of disposition for residue property. -
      1. Class A, Class B, or Class C residue property may be conveyed to a State agency, public institution, and other local governmental units by negotiated sale or exchange or may be donated provided its future use is for public purposes.
      2. Class B residue property may be sold, in whole or in part, where feasible, by either negotiated sale or exchange for a residue property value that is approved by the Division Right-of-Way agent and the Right-of-Way Unit manager.
      3. Class C residue property may be sold to an adjacent property owner, in whole or in part, where feasible, by either negotiated sale or exchange for the residue property value that is approved by the Division Right-of-Way agent and the Right-of-Way Unit manager.
      4. Class B and Class C residue property with an area of one acre or less and a residue property value of twenty-five thousand dollars ($25,000) or less may be sold by negotiated sale or exchange with an adjoining owner. The Division Right-of-Way agent or their designee may negotiate with the adjoining owners concerning the disposal of each residue for a consideration that is approved by the Division Right-of-Way agent and the Right-of-Way Unit manager.
   3. Exchange with a public utility company. - Class B and Class C residue property may be used for the purpose of exchange with a public utility company in part or in full consideration for acquiring rights-of-way. The exchange shall be based on the residue property value and the fair market value of rights-of-way to be acquired.
   4. Exchange with a property owner. - Class B and Class C residue property may be used for the purpose of exchange with another property owner in part or full consideration for acquiring rights-of-way. The exchange shall be based on the residue property value and the fair market value of rights-of-way to be acquired.
   5. Sale to persons displaced by a transportation project. - Residue property may be sold by negotiated sale to a property owner displaced by a transportation project and shall be based upon the residue property value. Residue property sold pursuant to this subdivision shall not include any real property previously owned by a displaced property owner.
7. Proceeds to State Highway Fund. - Notwithstanding G.S. 146-15 and G.S. 146-30, no service charge into the State Land Fund shall be deducted from or levied against the proceeds of any disposition of residue property pursuant to this section. Net proceeds received pursuant to disposition of residue property in accordance with this section, less any apportionment required by federal law or regulation regulating its use, shall be deposited in the State Highway Fund.
8. Approvals Required. - All conveyances of residue property require Department and Board of Transportation approval. Conveyance of residue property with a residue property value of less than ten thousand dollars ($10,000) shall not require the approval of the Governor and Council of State; otherwise Governor and Council of State approval is also required.
9. Recordation of Conveyance. - The Department shall record all conveyances of residue property pursuant to this section in accordance with G.S. 47-27 and other applicable State law.
10. Rule-Making Authority. - The Department shall also have the authority to adopt, amend, or repeal rules as it may deem necessary to carry out its duties under the provisions of this section.
11. Reconveyance to Former Owner. - Nothing in this section shall preclude the reconveyance of condemned property to its former owner pursuant to G.S. 136-19.
12. Report to Joint Legislative Transportation Oversight Committee. - No later than March 1, 2019, and by March 1 each year thereafter, the Department shall report to the Joint Legislative Transportation Oversight Committee on the classification and sale of residue properties pursuant to this section. At a minimum, this report shall include information on the following:
    1. The number and type of properties classified.
    2. The number and type of properties sold, including information about the manner of sale, the identity of the purchaser, and the average ratio of sale price to residue property value of the properties sold.

Upset bids must be received within 10 business days following the deadline for receipt of sealed bids or closing of an auction. The highest bid shall be presented to the Board of Transportation at its next regular meeting after the deadline for receipt of bids for rejection or acceptance. The Department may reject all bids if the Department does not consider the bids to be in accord with the appraised value as approved by the Department. The Department shall approve an appraised value for Class A residue property prior to disposition pursuant to this subdivision.

History

(2017-137, s. 2(a); 2017-212, s. 1.3.)

Editor's Note. - The bracketed language at the end of the introductory language of subsection (d) was added at the direction of the Revisor of Statutes.

§ 136-20. Elimination or safeguarding of grade crossings and inadequate underpasses or overpasses.

1. Whenever any road or street forming a link in or a part of the State highway system, whether under construction or heretofore or hereafter constructed, shall cross or intersect any railroad at the same level or grade, or by an underpass or overpass, and in the opinion of the Secretary of Transportation such crossing is dangerous to the traveling public, or unreasonably interferes with or impedes traffic on said State highway, the Department of Transportation shall issue notice requiring the person or company operating such railroad to appear before the Secretary of Transportation, at his office in Raleigh, upon a day named, which shall not be less than 10 days or more than 20 days from the date of said notice, and show cause, if any it has, why such railroad company shall not be required to alter such crossing in such way as to remove such dangerous condition and to make such changes and improvements thereat as will safeguard and secure the safety and convenience of the traveling public thereafter. Such notice shall be served on such railroad company as is now provided by law for the service of summons on domestic corporations, and officers serving such notice shall receive the same fees as now provided by law for the service of such summons.
2. Upon the day named, the Secretary of Transportation shall hear said matter and shall determine whether such crossing is dangerous to public safety, or unreasonably interferes with traffic thereon. If he shall determine that said crossing is, or upon the completion of such highway will be, dangerous to public safety and its elimination or safeguarding is necessary for the proper protection of the traffic on said State highway, the Secretary of Transportation shall thereupon order the construction of an adequate underpass or overpass at said crossing or he may in his discretion order said railroad company to install and maintain gates, alarm signals or other approved safety devices if and when in the opinion of said Secretary of Transportation upon the hearing as aforesaid the public safety and convenience will be secured thereby. And said order shall specify that the cost of construction of such underpass or overpass or the installation of such safety device shall be allocated between the railroad company and the Department of Transportation in the same ratio as the net benefits received by such railroad company from the project bear to the net benefits accruing to the public using the highway, and in no case shall the net benefit to any railroad company or companies be deemed to be more than ten percent (10%) of the total benefits resulting from the project. The Secretary of Transportation shall be responsible for determining the proportion of the benefits derived by the railroad company from the project, and shall fix standards for the determining of said benefits which shall be consistent with the standards adopted for similar purposes by the United States Bureau of Public Roads under the Federal-Aid Highway Act of 1944.
3. Upon the filing and issuance of the order as hereinbefore provided for requiring the construction of any underpass or overpass or the installation and maintenance of gates, alarm signals or other safety devices at any crossing upon the State highway system, it shall be the duty of the railroad company operating the railroad with which said public road or street intersects or crosses to construct such underpass or overpass or to install and maintain such safety device as may be required in said order. The work may be done and material furnished either by the railroad company or the Department of Transportation, as may be agreed upon, and the cost thereof shall be allocated and borne as set out in subsection (b) hereof. If the work is done and material furnished by the railroad company, an itemized statement of the total amount expended therefor shall, at the completion of the work, be furnished the Department of Transportation, and the Department of Transportation shall pay such amount to the railroad company as may be shown on such statement after deducting the amount for which the railroad company is responsible; and if the work is done by the Department of Transportation, an itemized statement of the total amount expended shall be furnished to the railroad company, and the railroad company shall pay to the Department of Transportation such part thereof as the railroad company may be responsible for as herein provided; such payment by the railroad company shall be under such rules and regulations and by such methods as the Department of Transportation may provide.
4. Within 60 days after the issuance of the order for construction of an underpass or overpass or the installation of other safety devices as herein provided for, the railroad company against which such order is issued shall submit to the Department of Transportation plans for such construction or installation, and within 10 days thereafter said Department of Transportation, through its chairman of the Department of Transportation, shall notify such railroad company of its approval of said plan or of such changes and amendments thereto as to it shall seem advisable. If such plans are not submitted to the Department of Transportation by said railroad company within 60 days as aforesaid, the chairman of the Department of Transportation shall have plans prepared and submit them to the railroad company. The railroad company shall within 10 days notify the chairman of the Department of Transportation of its approval of the said plans or shall have the right within such 10 days to suggest such changes and amendments in the plans so submitted by the chairman of the Department of Transportation as to it shall seem advisable. The plans so prepared and finally approved by the chairman of the Department of Transportation shall have the same force and effect, and said railroad company shall be charged with like liability, and said underpass or overpass shall be constructed or such safety device installed in accordance therewith, as if said plans had been originally prepared and submitted by said railroad company. If said railroad company shall fail or neglect to begin or complete the construction of said underpass or overpass, or the installation of such safety device, as required by the order of the Secretary of Transportation, said Secretary of Transportation is authorized and directed to prepare the necessary plans therefor, which plans shall have the same force and effect, and shall fix said railroad company with like liability, as if said plans had been originally prepared and submitted by said railroad company, and the Department of Transportation shall proceed to construct said underpass or overpass or install such safety device in accordance therewith. An accurate account of the cost of said construction or installation shall be kept by the Department of Transportation and upon the completion of such work a statement of that portion thereof chargeable to such railroad company as set out in the order of the Department of Transportation shall be rendered said railroad company. Upon the failure or refusal of said company to pay the bill so rendered, the Department of Transportation shall recover the amount thereof by suit therefor against said company in the Superior Court of Wake County: Provided, that the payment by such railroad company of said proportionate part may be made under such rules and regulations and by such methods as the Department of Transportation may provide. If the Department of Transportation shall undertake to do the work, it shall not obstruct or impair the operation of the railroad and shall keep the roadbed and track safe for the operation of trains at every stage of work. If said railroad company shall construct such underpass or overpass or shall install such safety devices in accordance with the order of the Secretary of Transportation, the proportionate share of the cost thereof as set out in subsection (b) hereof shall upon the completion of said work be paid to the railroad company by the Department of Transportation. The Department of Transportation may inspect and check the expenditures for such construction or installation so made by the railroad company and an accurate account of the cost thereof shall upon the completion of said work be submitted to the Department of Transportation by the railroad company. If the Department of Transportation shall neglect or refuse to pay that portion of the cost of said construction or installation chargeable to it, the railroad company shall recover the amount thereof by suit therefor against the Department of Transportation in the Superior Court of Wake County.
5. If any railroad company so ordered by the Secretary of Transportation to construct an underpass or overpass or to install safety devices at grade crossings as hereinbefore provided for shall fail or refuse to comply with the order of the Secretary of Transportation requiring such construction or installation, said railroad company shall be guilty of a Class 3 misdemeanor and shall only be fined not less than fifty dollars ($50.00) nor more than one hundred dollars ($100.00) in the discretion of the court for each day such failure or refusal shall continue, each said day to constitute a separate offense.
6. The jurisdiction over and control of said grade crossings and safety devices upon the State highway system herein given the Department of Transportation shall be exclusive.
7. From any order or decision so made by the Secretary of Transportation the railroad company may appeal to the superior court of the county wherein is located the crossing affected by said order. Such appeal shall not defer or delay the construction of such underpass or overpass or the installation of such safety device as required by the order of the Secretary of Transportation, but the railroad company shall proceed to comply with such order in accordance with his terms. The action of the railroad company in complying with and carrying out such order pending said appeal shall not prejudice or affect the right or remedies of such railroad company on such appeal. Upon such appeal the court shall determine only whether the order of the Secretary of Transportation for such construction or installation is unreasonable and unnecessary for the protection of the traveling public and the apportionment of the cost to the extent hereinafter provided in this subsection, and if upon the hearing of said appeal it shall be determined that said order was unnecessary for the protection of the traveling public, the Department of Transportation shall bear the total cost of the construction of such underpass or overpass or the installation of such safety device. In the event the decision on appeal should be that the construction or installation was necessary but the cost or apportionment thereof unreasonable, then the railroad company shall bear its proportion as provided in this section of such cost as may be determined on appeal to have been reasonable to meet the necessity of the case. Upon said appeal from an order of the Secretary of Transportation, the burden of proof shall be upon the railroad company, and if it shall not be found and determined upon said appeal that said order was unreasonable or unnecessary for the protection of the traveling public at said crossing, then such railroad company shall bear its proportion of the cost of such construction or installation in accordance with this section.
8. The Department of Transportation shall pay the cost of maintenance of all overpasses and the railroad company shall pay the cost of maintenance of all underpasses constructed in accordance with this section. The cost of maintenance of safety devices at all intersections of any railroad company and any street or road forming a link in or a part of the State highway system which have been constructed prior to July 1, 1959, or which shall be constructed thereafter shall be borne fifty percent (50%) by the railroad company and fifty percent (50%) by the Department of Transportation. The maintenance of said overpasses and underpasses shall be performed by the railroad company or the Department of Transportation as may be agreed upon and reimbursement for the cost thereof, in accordance with this section, shall be made annually. The maintenance of such safety devices shall be performed by the railroad company and reimbursement for the cost thereof, in accordance with this section, shall be made annually by the Department of Transportation.

History

(1921, c. 2, s. 19; 1923, c. 160, s. 5; C.S., s. 3846(y); 1925, c. 277; 1929, c. 74; 1933, c. 172, s. 17; 1957, c. 65, s. 11; 1959, c. 1216; 1973, c. 507, s. 5; 1977, c. 464, ss. 7.1, 11, 15; 1993, c. 539, s. 979; 1994, Ex. Sess., c. 14, s. 60; c. 24, s. 14(c).)

Legal Periodicals. - For note on railroads' liability at dangerous highway crossings, see 41 N.C.L. Rev. 296 (1963).

§ 136-20.1. To require installation and maintenance of block system and safety devices; automatic signals at railroad intersections.

1. The Department of Transportation is empowered and directed to require any railroad company to install and put in operation and maintain upon the whole or any part of its road a block system of telegraphy or any other reasonable safety device, but no railroad company shall be required to install a block system upon any part of its road unless at least eight trains each way per day are operated on that part.
2. The Department of Transportation is empowered and directed to require, when public safety demands, where two or more railroads cross each other at a common grade, or any railroad crosses any stream or harbor by means of a bridge, to install and maintain such a system of interlocking or automatic signals as will render it safe for engines and trains to pass over such crossings or bridge without stopping, and to apportion the cost of installation and maintenance between said railroads as may be just and proper.

History

(1907, c. 469, s. 1b; 1911, c. 197, s. 2; Ex. Sess. 1913, c. 63, s. 1; C.S., ss. 1047, 1049; 1933, c. 134, s. 8; 1941, c. 97; 1963, c. 1165, s. 1; 1995 (Reg. Sess., 1996), c. 673, s. 5.)

Editor's Note. - This section was formerly numbered 62-236. It was recodified as G.S. 136-20.1 by Session Laws 1995 (Reg. Sess., 1996), c. 673, s. 5.

§ 136-21. Drainage of highway; application to court; summons; commissioners.

Whenever in the establishment, construction, improvement or maintenance of any public highway it shall be necessary to drain said highway, and to accomplish such purpose it becomes necessary to excavate a canal or canals for carrying the surplus water to some appropriate outlet, either along the right-of-way of said highway or across the lands of other landowners, and by the construction, enlargement or improvement of such canal or canals, lands other than said highway will be drained and benefited, then, and in such event, the Department of Transportation, if said highway be a part of the State highway system, or the county commissioners, if said road is not under State supervision, may, by petition, apply to the superior court of the county in which, in whole or in part, said highway lies or said canal is to be constructed, setting forth the necessity for the construction, improvement or maintenance of said canal, the lands which will be drained thereby, with such particularity as to enable same to be identified, the names of the owners of said land and the particular circumstances of the case; whereupon a summons shall be issued for and served upon each of the proprietors, requiring them to appear before the court at a time to be named in the summons, which shall not be less than 10 days from the service thereof, and upon such day the petition shall be heard, and the court shall appoint three disinterested persons, one of whom shall be a competent civil and drainage engineer recommended by the Department of Environmental Quality, and the other two of whom shall be resident freeholders of the county or counties in which the road and lands are, in whole or in part, located, as commissioners, who shall, before entering upon the discharge of their duties, be sworn to do justice between the parties.

History

(1925, c. 85, s. 3; c. 122, s. 44; 1933, c. 172, s. 17; 1957, c. 65, s. 11; 1973, c. 507, s. 5; c. 1262, s. 86; 1977, c. 464, s. 7.1; c. 771, s. 4; 1989, c. 727, s. 218(88); 1997-443, s. 11A.119(a); 2015-241, s. 14.30(u).)

Editor's Note. - Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.6, is a severability clause.

Effect of Amendments. - Session Laws 2015-241, s. 14.30(u), effective July 1, 2015, substituted "Department of Environmental Quality" for "Department of Environment and Natural Resources" near the end of the section.

§ 136-22. View by commissioners; report; judgment.

The commissioners, or a majority of them, one of whom must be the engineer aforesaid, shall, on a day of which each party is to be notified at least five days in advance, meet on the premises, and view the highway, or proposed highway, and also the lands which may be drained by the proposed canal, and shall determine and report what lands will be drained and benefited by the construction, enlargement or improvement of such canal, and whether said drainage ought to be done exclusively by said highway authorities, and if they are of opinion that the same ought not to be drained exclusively at their expense, then they shall decide and determine the route of the canal, the dimensions and character thereof, and the manner in which the same shall be cut or thrown up, considering all the circumstances of the case, the extent, area and identity of lands which shall be permitted to drain therein, and providing as far as possible for the effectual drainage of said highway, and the protection and benefit of the lands of all the parties; and they shall apportion the cost of the construction, repair and maintenance of said canal among said highway authorities and said landowners, and report the same to the court, which when confirmed by the clerk shall stand as a judgment of the court against each of the parties, his or its executors, administrators, heirs, assigns or successors.

History

(1925, c. 85, s. 4.)

§ 136-23. Appeal.

Upon the entry of the judgment or decree aforesaid the parties to said action, or any of them, shall have the right to appeal to the superior court in term time under the same rules and regulations as apply to other special proceedings.

History

(1925, c. 85, s. 5.)

§ 136-24. Rights of parties.

The parties to such special proceeding shall have all the rights which are secured to similar parties by Article 1 of Chapter 146 of this Code and shall be regulated by the provisions thereof and amendments thereto, insofar as the same are not inconsistent herewith.

History

(1925, c. 85, s. 6.)

§ 136-25. Repair of road detour.

It shall be mandatory upon the Department of Transportation, its officers and employees, or any contractor or subcontractor employed by the said Department of Transportation, to select, lay out, maintain and keep in as good repair as possible suitable detours by the most practical route while said highways or roads are being improved or constructed, and it shall be mandatory upon the said Department of Transportation and its employees or contractors to place or cause to be placed explicit directions to the traveling public during repair of said highway or road under the process of construction. All expense of laying out and maintaining said detours shall be paid out of the State Highway Fund.

History

(1921, c. 2, s. 11; C.S., s. 3846(s); 1933, c. 172, s. 17; 1957, c. 65, s. 11; 1973, c. 507, s. 5; 1977, c. 464, s. 7.1.)

§ 136-26. Closing of State transportation infrastructure during construction or for dangerous conditions; driving through, removal, injury to barriers, warning signs, etc.

1. If it shall appear necessary to the Department of Transportation, its officers, or appropriate employees, to close any transportation infrastructure coming under its jurisdiction so as to permit proper completion of construction work which is being performed, or to prohibit traffic on transportation infrastructure due to damage posing a danger to public safety, the Department of Transportation, its officers or employees, may close, or cause to be closed, the whole or any portion of transportation infrastructure deemed necessary to be excluded from public travel. While any transportation infrastructure, or portion thereof, is so closed, or while any transportation infrastructure, or portion thereof, is in process of construction or maintenance, the Department of Transportation, its officers or appropriate employees, or its contractor, under authority from the Department of Transportation, may erect, or cause to be erected, suitable barriers or obstruction thereon; may post, or cause to be posted, conspicuous notices to the effect that the transportation infrastructure, or portion thereof, is closed; and may place warning signs, lights and lanterns on transportation infrastructure, or portions thereof.
2. When infrastructure is closed to the public as provided herein, any person who willfully drives onto transportation infrastructure closed pursuant to this section or removes, injures or destroys any such barrier or barriers or obstructions on the road closed or being constructed, or tears down, removes or destroys any such notices, or extinguishes, removes, injures or destroys any such warning signs, lights, or lanterns so erected, posted, or placed pursuant to this section, shall be guilty of a Class 1 misdemeanor.
3. This prohibition [in this section] does not apply to law enforcement, first responders, personnel of emergency management agencies, or Department of Transportation personnel acting in the course of, and within the scope of, their official duties; or personnel acting in the course of, and within the scope of, installation, restoration or maintenance of utility services in coordination with the Department of Transportation.

History

(1921, c. 2, s. 12; C.S., s. 3846(t); 1933, c. 172, s. 17; 1957, c. 65, s. 11; 1973, c. 507, s. 5; 1977, c. 464, s. 7.1; 1993, c. 539, s. 980; 2009-266, s. 10; 2019-84, s. 1.)

Editor's Note. - The previously undesignated provisions of this section were divided into subsections (a), (b), and (c) at the direction of the Revisor of Statutes.

Session Laws 2019-84, s. 2, made the amendments to this section by Session Laws 2019-84, s. 1, effective December 1, 2019, and applicable to offenses committed on or after that date.

Effect of Amendments. - Session Laws 2009-266, s. 10, effective August 1, 2009, substituted "transportation infrastructure" for "highways" in the section catchline, and substituted "transportation infrastructure" for "road or highway" and "such road or highway" throughout the section; in the first sentence, deleted "of" preceding "proper", substituted "infrastructure" for "such road or highway" in the last sentence, and made stylistic changes throughout the section.

Session Laws 2019-84, s. 1, rewrote the section heading; and rewrote the section. For division of existing provisions into subsections, see editor's note. For effective date and applicability, see editor's note.

§ 136-27. Connection of highways with improved streets; pipelines and conduits; cost.

When any portion of the State highway system shall run through any city or town and it shall be found necessary to connect the State highway system with improved streets of such city or town as may be designated as part of such system, the Department of Transportation shall build such connecting links, the same to be uniform in dimensions and materials with such State highways: Provided, however, that whenever any city or town may desire to widen its streets which may be traversed by the State highway, the Department of Transportation may make such arrangements with said city or town in connection with the construction of said road as, in its discretion, may seem wise and just under all the facts and circumstances in connection therewith: Provided further, that such city or town shall save the Department of Transportation harmless from any claims for damage arising from the construction of said road through such city or town and including claims for rights-of-way, change of grade line, and interference with public-service structures. And the Department of Transportation may require such city or town to cause to be laid all water, sewer, gas or other pipelines or conduits, together with all necessary house or lot connections or services, to the curb line of such road or street to be constructed: Provided further, that whenever by agreement with the road governing body of any city or town any street designated as a part of the State highway system shall be surfaced by order of the Department of Transportation at the expense, in whole or in part, of a city or town it shall be lawful for the governing body of such city or town to declare an assessment district as to the street to be improved, without petition by the owners of property abutting thereon, and the costs thereof, exclusive of so much of the cost as is incurred at street intersections and the share of railroads or street railways whose tracks are laid in said street, which shall be assessed under their franchise, shall be specially assessed upon the lots or parcels of land abutting directly on the improvements, according to the extent of their respective frontage thereon by an equal rate per foot of such frontage.

History

(1921, c. 2, s. 16; 1923, c. 160, s. 4; C.S., s. 3846(ff); 1933, c. 172, s. 17; 1957, c. 65, s. 11; 1973, c. 507, s. 5; 1977, c. 464, s. 7.1.)

Local Modification. - Durham: 1925, c. 312; town of Siler City: 1935 Pr., c. 143.

§ 136-27.1. Relocation of water and sewer lines of municipalities, nonprofit water or sewer corporations or associations, local boards of education, and certain private water or sewer utilities.

1. The Department of Transportation shall pay the nonbetterment cost for the relocation of water and sewer lines, located within the existing State transportation project right-of-way, that are necessary to be relocated for a State transportation improvement project and that are owned by: (i) a municipality with a population of 10,000 or less according to the latest decennial census; (ii) a nonprofit water or sewer association or corporation; (iii) any water or sewer system organized pursuant to Chapter 162A of the General Statutes; (iv) a rural water system operated by a County as an enterprise system; (v) any sanitary district organized pursuant to Part 2 of Article 2 of Chapter 130A of the General Statutes; (vi) constructed by a water or sewer system organized pursuant to Chapter 162A of the General Statutes and then sold or transferred to a municipality with a population of greater than 10,000 according to the latest decennial census; (vii) a local board of education; or (viii) a private water or sewer utility organized pursuant to Chapter 62 of the General Statutes serving 10,000 or fewer customers.
2. A municipality with a population of greater than 10,000 shall pay a percentage of the nonbetterment cost for relocation of water and sewer lines owned by the municipality and located within the existing State transportation project right-of-way that are necessary to be relocated for a State transportation improvement project. The percentage shall be based on the municipality's population, with the Department paying the remaining costs, as follows:
   1. A municipality with a population of greater than 10,000, but less than 50,000, shall pay twenty-five percent (25%) of the cost.
   2. A municipality with a population of 50,000 or greater, but less than 100,000, shall pay fifty percent (50%) of the cost.
   3. A municipality with a population of 100,000 or greater shall pay one hundred percent (100%) of the cost.

History

(1983 (Reg. Sess., 1984), c. 1090; 1985, c. 479, s. 186(a); 1985 (Reg. Sess., 1986), c. 1018, s. 11; 1993 (Reg. Sess., 1994), c. 736, s. 1; 1995, c. 33, s. 1; c. 266, s. 1.1; 2009-266, s. 11; 2015-111, s. 1; 2015-241, s. 29.20(a); 2019-197, s. 1; 2020-74, s. 16(a).)

Editor's Note. - Session Laws 2015-111, s. 2, made the amendment to this section by Session Laws 2015-111, s. 1, applicable to relocations of water and sewer lines on or after July 1, 2015.

Session Laws 2015-241, s. 29.20(b), made the amendment to this section by Session Laws 2015-241, s. 29.20(a), applicable to projects started on or after January 1, 2016.

Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.6, is a severability clause.

Session Laws 2016-123, s. 11A.1, effective July 1, 2016, provides: "Notwithstanding G.S. 136-27.1 and any other provision of law to the contrary, the Department of Transportation shall pay seventy-five percent (75%) of the nonbetterment costs for the relocation under Project U-2211B of water and sewer lines owned by the City of Lenoir. Notwithstanding any provision of Article 14B of Chapter 136 of the General Statutes to the contrary, the Department shall pay the costs required under this section from Fund Code 9075 in the Highway Trust Fund."

Session Laws 2020-74, s. 16(b), made the amendment of this section by Session Laws 2020-74, s. 16(a), effective retroactively to March 1, 2020, and applicable to nonbetterment costs for State transportation improvement projects incurred on or after that date. Session Laws 2020-74, s. 16(b), further provides: "The Department of Transportation shall reimburse any nonbetterment costs for State transportation improvement projects collected from a private water or sewer utility organized pursuant to Chapter 62 of the General Statutes serving 10,000 or fewer customers after March 1, 2020."

Effect of Amendments. - Session Laws 2009-266, s. 11, effective August 1, 2009, substituted "transportation project" and "transportation" for "highway" near the beginning of the section.

Session Laws 2015-111, s. 1, effective July 1, 2015, rewrote the section heading which formerly read: "Relocation of water and sewer lines of municipalities and nonprofit water or sewer corporations or associations"; and added (vii) and made related changes. For applicability, see editor's note.

Session Laws 2015-241, s. 29.20(a), effective January 1, 2016, added the subsection (a) designation, substituted "population of 10,000" for "population of 5,500" in subdivision (a)(i), substituted "population of greater than 10,000" for "population of greater than 5,500" in subdivision (a)(vi); and added subsection (b). For applicability, see editor's note.

Session Laws 2019-197, s. 1, effective August 14, 2019, substituted "50,000" for "25,000" in subdivisions (b)(1) and (b)(2); and substituted "100,000" for "50,000" in subdivisions (b)(2) and (b)(3).

Session Laws 2020-74, s. 16(a), substituted "associations, local boards of education, and certain private water or sewer facilities" for "associations and local boards of education" in the section heading; and, in subsection (a), added item (viii) and made related punctuation and stylistic changes. For effective date and applicability see editor's note.

§ 136-27.2. Relocation of county-owned natural gas lines located on Department of Transportation right-of-way.

The Department of Transportation shall pay the nonbetterment cost for the relocation of county-owned natural gas lines, located within the existing State transportation project right-of-way, that the Department needs to relocate due to a State transportation improvement project.

History

(2002-126, s. 26.18(a); 2009-266, s. 12.)

Editor's Note. - Session Laws 2002-126, s. 26.18(b), provides: "The Department of Transportation is directed to use monies appropriated to the Department to relocate county-owned natural gas lines located on Department of Transportation right-of-way."

Session Laws 2002-126, s. 1.2, provides: "This act shall be known as 'The Current Operations, Capital Improvements, and Finance Act of 2002.'"

Session Laws 2002-126, s. 31.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2002-2003 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2002-2003 fiscal year. For example, uncodified provisions of this act relating to the Medicaid program apply only to the 2002-2003 fiscal year."

Session Laws 2002-126, s. 31.6, is a severability clause.

Effect of Amendments. - Session Laws 2009-266, s. 12, effective August 1, 2009, substituted "transportation project" for "highway" near the middle, and "transportation" for "highway" near the end.

§ 136-27.3. Relocation of municipalities' utilities by Department; repayment by municipalities.

When requiring municipalities to relocate utilities under its power granted in G.S. 136-18(10), the Department may enter into agreements with municipalities to provide that the necessary engineering and utility construction be accomplished by the Department on a reimbursement basis as follows:

1. Reimbursement to the Department shall be due after completion of the work and within 60 days after date of invoice.
2. Interest shall be paid on any unpaid balance due at a variable rate of the prime rate plus one percent (1%).

History

(2012-142, s. 24.22; 2012-145, s. 6.1.)

§ 136-27.4. Use of certain right-of-way for sidewalk dining.

1. The Department may enter into an agreement with any local government permitting use of the State right-of-way associated with components of the State highway system and located within the zoning jurisdiction of the local government for sidewalk dining activities. For purposes of this section, "sidewalk dining activities" means serving food and beverages from a restaurant abutting State right-of-way to customers seated in the State right-of-way. The agreement between the Department and the local government shall provide that the local government is granted the administrative right to permit sidewalk dining activities that, at a minimum, comply with all of the following requirements and conditions:
   1. Tables, chairs, and other furnishings shall be placed a minimum of six feet from any travel lane.
   2. Tables, chairs, and other furnishings shall be placed in such a manner that at least five feet of unobstructed paved space of the sidewalk, measured from any permanent or semi-permanent object, remains clear for the passage of pedestrians and provides adequate passing space that complies with the Americans with Disabilities Act.
   3. Tables, chairs, and other furnishings shall not obstruct any driveway, alleyway, building entrance or exit, emergency entrance or exit, fire hydrant or standpipe, utility access, ventilations areas, or ramps necessary to meet accessibility requirements under the Americans with Disabilities Act.
   4. The maximum posted speed permitted on the roadway adjacent to the right-of-way to be used for sidewalk dining activities shall not be greater than 45 miles per hour.
   5. The restaurant operator shall provide evidence of adequate liability insurance in an amount satisfactory to the local government, but in no event in an amount less than the amount specified by the local government under G.S. 160A-485 as the limit of the local government's waiver of immunity or the amount of Tort Claim liability specified in G.S. 143-299.2, whichever is greater. The insurance shall protect and name the Department and the local government as additional insureds on any policies covering the business and the sidewalk activities.
   6. The restaurant operator shall provide an agreement to indemnify and hold harmless the Department or the local government from any claim resulting from the operation of sidewalk dining activities.
   7. The restaurant operator shall provide a copy of all permits and licenses issued by the State, county or city, including health and ABC permits, if any, necessary for the operation of the restaurant or business, or a copy of the application for the permit if no permit has been issued. This requirement includes any permits or certificates issued by the county or city for exterior alterations or improvements to the restaurant.
   8. The restaurant operator shall cease part or all sidewalk dining activities in order to allow construction, maintenance, or repair of any street, sidewalk, utility, or public building, by the Department, the local government, its agents or employees, or by any other governmental entity or public utility.
   9. Any other requirements deemed necessary by the Department, either for a particular local government or a particular component of the State highway system.
2. A municipality applying to the Department for administrative rights under this section shall:
   1. Enact an ordinance consistent with, but not necessarily limited to, the requirements of this section.
   2. For applications along a federal-aid route or where the laws of the United States otherwise require, obtain permission from the Federal Highway Administration to permit the right-of-way to be used for the sidewalk dining.

A local government given the administrative right to permit sidewalk dining activities under this section may impose additional requirements on a case-by-case basis, and nothing in this section requires the local government to issue or maintain any permit for sidewalk dining activities if, in the opinion of the local government, such activities cannot be conducted in a safe manner. Nothing in this section requires the Department to give a local government the right to establish a permit program for sidewalk dining activities if, in the opinion of the Department, such activities cannot be conducted in a safe manner.

History

(2013-266, s. 2.)

Editor's Note. - Session Laws 2013-266, s. 3, provides: "This act shall not preempt or override local ordinances currently in place."

§ 136-28: Repealed by Session Laws 1971, c. 972, s. 6.

§ 136-28.1. Letting of contracts to bidders after advertisement; exceptions.

1. All contracts over five million dollars ($5,000,000) that the Department of Transportation may let for construction, maintenance, operations, or repair necessary to carry out the provisions of this Chapter, shall be let to a responsible bidder after public advertising under rules and regulations to be made and published by the Department of Transportation. The right to reject any and all bids shall be reserved to the Board of Transportation. Contracts for construction or repair for federal aid projects entered into pursuant to this section shall not contain the standardized contract clauses prescribed by 23 U.S.C. § 112(e) and 23 C.F.R. § 635.109 for differing site conditions, suspensions of work ordered by the engineer or significant changes in the character of the work. For those federal aid projects, the Department of Transportation shall use only the contract provisions for differing site conditions, suspensions of work ordered by the engineer, or significant changes in the character of the work developed by the North Carolina Department of Transportation and approved by the Board of Transportation.
2. For contracts let to carry out the provisions of this Chapter in which the amount of work to be let to contract for transportation infrastructure construction or repair is five million dollars ($5,000,000) or less, and for transportation infrastructure maintenance, excluding resurfacing, that is five million dollars ($5,000,000) per year or less, at least three informal bids shall be solicited. The term "informal bids" is defined as bids in writing, received pursuant to a written request, without public advertising. All such contracts shall be awarded to the lowest responsible bidder. Where public advertising is used for a contract subject to this subsection, the Highway Division shall post the advertisement at least 14 calendar days prior to the letting date of the contract. The Secretary of Transportation shall keep a record of all bids submitted, which record shall be subject to public inspection at any time after the bids are opened. The Highway Divisions shall publish the results of a bidding process no later than three business days after the contract bid upon is awarded.
3. Notwithstanding any provision of G.S. 136-28.5 to the contrary, and except as prohibited by other State or federal law, the Department of Transportation shall, at the time and place bids solicited for a contract subject to this section are opened, make public all cost estimates prepared by the Department for the purpose of comparing the bids.
4. The construction, maintenance, and repair of ferryboats and all other marine floating equipment and the construction and repair of all types of docks by the Department of Transportation shall be deemed highway construction, maintenance, or repair for the purpose of G.S. 136-28.1 and Chapter 44A and Chapter 143C of the General Statutes, the State Budget Act. In cases of a written determination by the Secretary of Transportation that the requirement for compatibility does not make public advertising feasible for the repair of ferryboats, the public advertising as well as the soliciting of informal bids may be waived.
5. The construction, maintenance, and repair of the highway rest area buildings and facilities, weight stations and the Department of Transportation's participation in the construction of welcome center buildings shall be deemed highway construction, maintenance, or repair for the purpose of G.S. 136-28.1 and 136-28.3 and Chapter 143C of the General Statutes, the State Budget Act.
6. The Department of Transportation may enter into contracts for construction, maintenance, or repair without complying with the bidding requirements of this section upon a determination of the Secretary of Transportation or the Secretary's designee that an emergency exists and that it is not feasible or not in the public interest for the Department of Transportation to comply with the bidding requirements. For purposes of this section, the term "emergency" includes any of the following that is unanticipated, results in detours or deters the free movement of goods and services, and requires an estimated expenditure of ten million dollars ($10,000,000) or less in construction, maintenance, or repair costs:
   1. A bridge closure.
   2. A road closure.
   3. A weight restriction.
7. Notwithstanding any other provision of law, the Department of Transportation may solicit proposals under rules and regulations adopted by the Department of Transportation for all contracts for professional engineering services and other kinds of professional or specialized services necessary in connection with the planning, operations, design, maintenance, repair, and construction of transportation infrastructure. In order to promote engineering and design quality and ensure maximum competition by professional firms of all sizes, the Department may establish fiscal guidelines and limitations necessary to promote cost-efficiencies in overhead, salary, and expense reimbursement rates. The right to reject any and all proposals is reserved to the Board of Transportation.
8. The Department of Transportation may enter into contracts for research and development with educational institutions and nonprofit organizations without soliciting bids or proposals.
9. The Department of Transportation may enter into contracts for applied research and experimental work without soliciting bids or proposals; provided, however, that if the research or work is for the purpose of testing equipment, materials, or supplies, the provisions of Article 3 of Chapter 143 of the General Statutes shall apply. However, the Department of Transportation shall: (i) submit all proposed contracts for supplies, materials, printing, equipment, and contractual services that exceed one million dollars ($1,000,000) authorized by this subsection to the Attorney General or the Attorney General's designee for review as provided in G.S. 114-8.3; and (ii) include in all proposed contracts to be awarded by the Department of Transportation under this subsection a standard clause which provides that the State Auditor and internal auditors of the Department of Transportation may audit the records of the contractor during and after the term of the contract to verify accounts and data affecting fees and performance. The Department of Transportation shall not award a cost plus percentage of cost agreement or contract for any purpose. The Department of Transportation is encouraged to solicit proposals when contracts are entered into with private firms when it is in the public interest to do so.
10. The Department of Transportation may negotiate and enter into contracts with public utility companies for the lease, purchase, installation, and maintenance of generators for electricity for its ferry repair facilities.
11. Repealed by Session Laws 2002-151, s. 1, effective October 9, 2002.
12. The Department of Transportation may accept bids under this section by electronic means and may issue rules governing the acceptance of these bids. For purposes of this subsection "electronic means" is defined as means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
13. The Department of Transportation may enter into contracts for public-private participation in providing litter removal from State right-of-way. Selection of firms to perform this work shall be made using a best value procurement process and shall be without regard to other provisions of law regarding the Adopt-A-Highway Program administered by the Department. Acknowledgement of sponsors may be indicated by appropriate signs that shall be owned by the Department of Transportation. The size, style, specifications, and content of the signs shall be determined in the sole discretion of the Department of Transportation. The Department of Transportation may issue guidelines, rules, and policies necessary to administer this subsection.
14. The Department of Transportation may enter into contracts for public-private participation at State-owned rest areas. Selection of firms shall be made using a best value procurement process. Recognition of sponsors in the program may be indicated by appropriate acknowledgment for any services provided. The size, style, specifications, and content of the acknowledgment shall be determined in the sole discretion of the Department. Revenues generated pursuant to a contract initiated under this subsection shall be shared with Department of Transportation at a predetermined percentage or rate, and shall be earmarked by the Department to maintain the State owned rest areas from which the revenues are generated. The Department of Transportation may issue guidelines, rules, and policies necessary to administer this subsection.

History

(1971, c. 972, s. 1; 1973, c. 507, ss. 5, 16; c. 1194, ss. 4, 5; 1977, c. 464, ss. 7.1, 16; 1979, c. 174; 1981, c. 200, ss. 1, 2; c. 859, s. 68; 1985, c. 122, s. 2; 1985 (Reg. Sess., 1986), c. 955, s. 46; c. 1018, s. 2; 1987, c. 400; 1989, c. 78; c. 749, ss. 2, 3; 1995, c. 167, s. 1; 1997-196, s. 1; 1999-25, ss. 2, 3; 2001-424, ss. 27.9(a), 27.9(b); 2002-151, s. 1; 2006-68, s. 1; 2006-203, s. 75; 2007-439, ss. 3, 4; 2009-266, s. 1; 2009-475, s. 12; 2010-194, s. 19; 2011-145, s. 28.3; 2011-326, s. 15(t); 2013-340, s. 2.1; 2016-94, ss. 35.5(a), 35.6(a); 2018-5, s. 34.15.)

Cross References. - As to Highway Fund and Highway Trust Fund Small Project Bidding, see G.S. 136-28.10.

As to provisions similiar to those in former subsection (j) pertaining to design-build construction of transportation projects, see G.S. 136-28.11.

Editor's Note. - Session Laws 1998-212, s. 27 was codified as subsection (j) of this section at the direction of the Revisor of Statutes.

Session Laws 1998-212, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations and Capital Improvement Appropriations Act of 1998.' "

Session Laws 1998-212, s. 30.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 1998-99 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 1998-99 fiscal year."

Session Laws 1998-212, s. 30.5, is a severability clause.

Section 136-28.3, referred to in subsection (d) of this section, has been repealed. For present provisions as to performance bonds, see G.S. 44A-25 et seq.

Session Laws 1993, c. 561, s. 65(b) provides:

"(b) The letting of contracts under this section is not subject to any of the provisions of G.S. 135-28.1 relating to the letting of contracts. The Department may waive the bonding requirements of Chapter 44A of the General Statutes and the licensing requirements of Chapter 87 for contracts awarded under this section."

Session Laws 1993, c. 561, s. 65(a) and (c), provides "(a) Notwithstanding the provisions of G.S. 136-28.4(b), for Highway Fund or Highway Trust Fund projects of three hundred thousand dollars ($300,000) or less, the Board of Transportation may, after soliciting at least three informal bids in writing from Small Business Enterprises, award contracts to the lowest responsible bidder. The Department of Transportation may identify projects likely to attract increased participation by Small Business Enterprises, and restrict the solicitation and award to those bidders. The Board of Transportation may delegate full authority to award contracts, adopt necessary rules, and administer the provisions of this section to the Secretary of Transportation.

"(c) The Secretary of Transportation shall report quarterly to the Joint Legislative Transportation Oversight Committee on the implementation of this section."

Session Laws 1997-443, s. 32.11, provides that the Department of Transportation may enter into a design-build-warrant contract to develop, with Federal Highway Administration participation, a Congestion Avoidance and Reduction for Autos and Trucks (CARAT) system of traffic management in the Charlotte-Mecklenburg urban areas. Notwithstanding any other provision of law, contractors, their employees, and Department of Transportation employees involved in this project only do not have to be licensed by occupational licensing boards, and for the purpose of entering into contracts, the Department of Transportation is exempted from the provisions of G.S. 136-28.1, 143-52, 143-53, 143-58, 143-128, and 143-129; these exemptions are limited and available only to the extent necessary to comply with federal rules, regulations, and policies for completion of this project. The Department shall report quarterly to the Joint Legislative Transportation Oversight Committee on the project.

For prior similar provisions, see Session Laws 1991 (Reg. Sess., 1992), c. 900, s. 94, Session Laws 1993, c. 321, s. 162, and Session Laws 1995, c. 324, s. 18.14.

Session Laws 1997-443, s. 35.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 1997-99 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 1997-99 fiscal biennium."

Session Laws 2006-203, s. 126, provides, in part: "Prosecutions for offenses committed before the effective date of this act [July 1, 2007] are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions."

Session Laws 2009-475, s. 15, provides: "The General Assembly finds that it is in the public interest of the State of North Carolina to ensure expeditious awards of ARRA funds to maximize the economic recovery impact of the ARRA. It is the policy of the State to provide fair regulation, oversight, and transparency for the use of ARRA funds and to quickly and efficiently complete the awards of grants and contracts under the ARRA. It is also the policy of this State that, due to the historic level of federal and State oversight of ARRA grant and contract awards, restraint should be exercised in the granting of legal and injunctive relief that might forestall awards to programs and contractors."

Session Laws 2013-340, s. 4, made the amendment to subsections (a) and (b) by Session Laws 2013-340, s. 2.1, applicable to transportation project bids solicited on or after August 1, 2013.

Session Laws 2016-94, s. 35.5(b), provides: "The Department of Transportation shall provide an annual report by May 1 to the chairs of the House of Representatives Committee on Transportation Appropriations and the Senate Appropriations Committee on Department of Transportation on the impact of the implementation of this section, specifically the impact of the implementation of this section on small businesses."

Session Laws 2016-94, s. 35.5(c), made the amendment to this section by Session Laws 2016-94, s. 35.5(a), effective July 1, 2016, and applicable to bids solicited on or after that date.

Session Laws 2016-94, s. 35.6(b), made the amendment to this section by Session Laws 2016-94, s. 35.6(a), effective July 1, 2016, and applicable to bids solicited on or after that date.

Session Laws 2016-94, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2016.'"

Session Laws 2016-94, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2016-2017 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2016-2017 fiscal year."

Session Laws 2016-94, s. 39.7, is a severability clause.

Session Laws 2018-5, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2018.'"

Session Laws 2018-5, s. 39.7, is a severability clause.

Session Laws 2019-231, s. 4.20, provides: "The Department of Transportation, Ferry Division, may enter into a contract to lease a passenger ferry vessel for operation between Hatteras and Ocracoke from May 20, 2019, to September 5, 2019, without complying with the provisions of Article 8 of Chapter 143 of the General Statutes, G.S. 136-28.1, or any other provision of law to the contrary. Of the funds appropriated in this act to the Department, any lease entered into pursuant to this section shall not exceed one million dollars ($1,000,000)."

Session Laws 2019-231, s. 5.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2019-2021 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2019-2021 fiscal biennium."

Session Laws 2019-231, s. 5.5, is a severability clause.

Session Laws 2020-57, s. 2.5, provides: "Notwithstanding the provisions of Article 8 of Chapter 143 of the General Statutes, G.S. 136-28.1, and any other provision of law to the contrary, and pending completion of a successful route verification, the Department of Transportation, Ferry Division, shall lease a passenger ferry vessel for operation between Hatteras and Ocracoke. The term of the lease shall end no later than September 10, 2020. Of the funds appropriated to the Department of Transportation Contingency Fund in S.L. 2019-231 for the 2019-2020 fiscal year, the sum of up to one million one hundred forty-six thousand one hundred seventy-nine dollars ($1,146,179) shall be used by the Division to lease and operate the ferry."

Session Laws 2021-33, s. 3, as amended by Session Laws 2021-108, s. 3(a), provides: "Notwithstanding Article 8 of Chapter 143 of the General Statutes, G.S. 136-28.1, and any other provision of law to the contrary, the Department of Transportation, Ferry Division, shall lease a passenger ferry vessel for operation between Hatteras and Ocracoke. The term of the lease shall end no later than September 12, 2021. Except as otherwise provided in this section, of the funds appropriated in S.L. 2020-91 from the Highway Fund to the Department of Transportation, the sum of seven hundred thousand dollars ($700,000) in nonrecurring funds shall be used by the Division to lease and operate the ferry. The Division shall exercise the opt-out clause of the lease when the Division determines the State-owned ferry for passenger service on the Hatteras-Ocracoke route can be operationalized within 30 days if the cost of opting out is less than the cost of completing the term of the lease. Following the expiration or termination of the lease, any remaining funds shall be deposited in the Ferry Systemwide reserve account established in G.S. 136-82(f2) for use in accordance with that subsection."

Effect of Amendments. - Session Laws 2006-68, s. 1, effective July 1, 2006, in subsection (a), substituted "23 C.F.R. § 635.109" for "23 C.F.R. § 635.131(a)" in the next-to-last sentence; and rewrote the last sentence.

Session Laws 2007-439, ss. 3 and 4, effective August 23, 2007, added subsections ( l ) and (m).

Session Laws 2009-266, s. 1, effective August 1, 2009, in subsection (a), inserted "maintenance" in the first sentence; in subsection (b), in the first sentence, substituted "For contracts let to carry out the provisions of this Chapter" for "In those cases" at the beginning, substituted "for construction" for "highway construction, maintenance" and inserted "and for maintenance, excluding resurfacing, that is one million two hundred thousand dollars ($1,200,000) per year or less," near the middle; in subsection (e), substituted "the Secretary's designee" for "the State Highway Administrator" near the middle; and, in subsection (f), in the first sentence, substituted "the planning, design, maintenance, repair, and construction of transportation infrastructure" for "highway construction, maintenance, or repair" at the end.

Session Laws 2009-475, s. 12, effective February 17, 2009, in subsection (a), inserted "operations" near the middle of the first sentence; and in the first sentence of subsection (b), inserted "transportation infrastructure" twice.

Session Laws 2011-145, s. 28.3, effective July 1, 2011, in the first sentence of subsections ( l ) and (m), deleted "as many as two pilot" preceding "contracts"; in subsection ( l ), in the first sentence, substituted "public-private" for "public private," and in the last sentence, inserted "guidelines," substituted "administer this subsection" for "implement this section," and made a minor stylistic change; and in subsection (m), in the first sentence, deleted "in providing real-time traveller information" following "participation," in the second sentence, deleted "to perform this work" following "firms," and in the last sentence, deleted "a pilot program initiated under" following "administer."

Session Laws 2011-326, s. 15(t), effective June 27, 2011, in the second sentence of subsection (h), deleted "statewide and agency term" following "(i) submit all proposed" and inserted "and after."

Session Laws 2013-340, s. 2.1, effective August 1, 2013, substituted "two million five hundred thousand dollars ($2,500,000)" for "one million two hundred thousand dollars ($1,200,000)" in subsection (a) and twice in subsection (b). For applicability, see editor's note.

Session Laws 2016-94, s. 35.5(a), effective July 1, 2016, in subsection (a), substituted "five million dollars ($5,000,000)" for "two million five hundred thousand dollars ($2,500,000)" near the beginning and made a stylistic change; substituted "five million dollars ($5,000,000)" for "two million five hundred thousand dollars ($2,500,000)" twice in subsection (b); and inserted "operations" following "in connection with planning" in subsection (f). For applicability, see Editor's note.

Session Laws 2016-94, s. 35.6(a), effective July 1, 2016, added the fourth and last sentences in subsection (b); and added subsection (b1).

Session Laws 2018-5, s. 34.15, effective July 1, 2018, in subsection (e), added the last sentence in the introductory paragraph and added subdivisions (e)(1) through (e)(3).

§ 136-28.2. Relocated transportation infrastructure; contracts let by others.

The Department of Transportation is authorized to permit power companies and governmental agencies, including agencies of the federal government, when it is necessary to relocate transportation infrastructure by reason of the construction of a dam, to let contracts for the construction of the relocated transportation infrastructure. The construction shall be in accordance with the Department of Transportation standards and specifications. The Department of Transportation is further authorized to reimburse the power company or governmental agency for betterments arising out of the construction of the relocated transportation infrastructure, provided the bidding and the award is in accordance with the Department of Transportation's regulations and the Department of Transportation approves the award of the contract.

History

(1971, c. 972, s. 2; 1973, c. 507, s. 5; 1977, c. 464, s. 7.1; 2009-266, s. 13.)

Effect of Amendments. - Session Laws 2009-266, s. 13, effective August 1, 2009, substituted "transportation infrastructure" for "highways" in the section catchline; and substituted "transportation infrastructure" for "highway" in the first and last sentences, and substituted "transportation infrastructure" for "a public highway" in the first sentence.

§ 136-28.3: Repealed by Session Laws 1973, c. 1194, s. 6.

Editor's Note. - As to payment and performance bonds, see now G.S. 44A-25 et seq.

§ 136-28.4. (Expires August 31, 2022) State policy concerning participation by disadvantaged minority-owned and women-owned businesses in transportation contracts.

1. It is the policy of this State, based on a compelling governmental interest, to encourage and promote participation by disadvantaged minority-owned and women-owned businesses in contracts let by the Department pursuant to this Chapter for the planning, design, preconstruction, construction, alteration, or maintenance of State transportation infrastructure and in the procurement of materials for these projects. All State agencies, institutions, and political subdivisions shall cooperate with the Department of Transportation and among themselves in all efforts to conduct outreach and to encourage and promote the use of disadvantaged minority-owned and women-owned businesses in these contracts.
2. At least every five years, the Department shall conduct a study on the availability and utilization of disadvantaged minority-owned and women-owned business enterprises and examine relevant evidence of the effects of race-based or gender-based discrimination upon the utilization of such business enterprises in contracts for planning, design, preconstruction, construction, alteration, or maintenance of State transportation infrastructure and in the procurement of materials for these projects. Should the study show a strong basis in evidence of ongoing effects of past or present discrimination that prevents or limits disadvantaged minority-owned and women-owned businesses from participating in the above contracts at a level which would have existed absent such discrimination, such evidence shall constitute a basis for the State's continued compelling governmental interest in remedying such race and gender discrimination in transportation contracting. Under such circumstances, the Department shall, in conformity with State and federal law, adopt by rule and contract provisions a specific program to remedy such discrimination. This specific program shall, to the extent reasonably practicable, address each barrier identified in such study that adversely affects contract participation by disadvantaged minority-owned and women-owned businesses.
3. Based upon the findings of the Department's 2014 study entitled "North Carolina Department of Transportation Disparity Study, 2014," hereinafter referred to as "Study", the program design shall, to the extent reasonably practicable, incorporate narrowly tailored remedies identified in the Study, and the Department shall implement a comprehensive antidiscrimination enforcement policy. As appropriate, the program design shall be modified by rules adopted by the Department that are consistent with findings made in the Study and in subsequent studies conducted in accordance with subsection (b) of this section. As part of this program, the Department shall review its budget and establish a combined aspirational goal every three years, not a mandatory goal, in the form of a percentage, for the overall participation in contracts by disadvantaged minority-owned and women-owned businesses. This aspirational goal for disadvantaged minority-owned and women-owned businesses shall be established consistent with federal methodology and shall not be applied rigidly on specific contracts or projects. Instead, the Department shall establish a contract-specific goal or project-specific goal for the participation of such firms in a manner consistent with availability of disadvantaged minority-owned and women-owned businesses, as appropriately defined by its most recent Study. Nothing in this section shall authorize the use of quotas. Any program implemented as a result of the Study conducted in accordance with this section shall be narrowly tailored to eliminate the effects of historical and continuing discrimination and its impacts on such disadvantaged minority-owned and women-owned businesses without any undue burden on other contractors. The Department shall give equal opportunity for contracts it lets without regard to race, religion, color, creed, national origin, sex, age, or handicapping condition, as defined in G.S. 168A-3, to all contractors and businesses otherwise qualified.
4. The following definitions apply in this section:
   1. "Contract" includes, but is not limited to, contracts let under the procedures set forth in G.S. 136-28.1(a) and (b).
   2. "Disadvantaged Business" has the same meaning as "disadvantaged business enterprise" in 49 C.F.R. § 26.5 Subpart A or any subsequently promulgated replacement regulation.
   3. "Minority"' includes only those racial or ethnicity classifications identified by a study conducted in accordance with this section that have been subjected to discrimination in the relevant marketplace and that have been adversely affected in their ability to obtain contracts with the Department.
   4. "Women" means nonminority persons born of the female sex.
5. The Department shall report annually to the Joint Legislative Transportation Oversight Committee on the utilization of disadvantaged minority-owned businesses and women-owned businesses and any program adopted to promote contracting opportunities for those businesses. Following each study of availability and utilization, the Department shall report to the Joint Legislative Transportation Oversight Committee on the results of the study for the purpose of determining whether the provisions of this section should continue in force and effect.
6. This section expires August 31, 2022.

History

(1983, c. 692, s. 3; 1989, c. 692, s. 1.5; 1989 (Reg. Sess., 1990), c. 1066, s. 143(a); 2006-261, s. 4; 2009-266, s. 3; 2010-165, s. 9; 2013-340, s. 2.2; 2014-108, s. 7(a); 2015-231, s. 3; 2017-57, s. 34.15(a).)

Editor's Note. - Session Laws 1989 (Reg. Sess., 1990), c. 1066, s. 143(b) provided that the Department of Transportation should compile and keep a current list of all disadvantaged, minority, and women businesses in the State that could participate in contracts bought by the Department, and should adopt a plan for actively seeking participation by disadvantaged, minority, and women businesses pursuant to the State policy set forth in this section. The Department was required to report to the Joint Legislative Highway Oversight Committee on the details of this plan and keep the Committee informed of its progress in meeting the goals established in this section.

Session Laws 1993, c. 321, s. 169.2(g) provides: "Any law that contains 'Joint Legislative Highway Oversight Committee' shall be deemed to refer to the 'Joint Legislative Transportation Oversight Committee.' "

Session Laws 1993, c. 321, s. 321 provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 1993-95 biennium, the textual provisions of this act shall apply only to funds appropriated for and activities occurring during the 1993-95 biennium."

Session Laws 2017-57, s. 34.15(b), provides: "The Department of Transportation shall develop a plan to establish and implement the combined goal required under subsection (a) of this section. The Department shall submit its plan, including any legislative recommendations, to the Joint Legislative Transportation Oversight Committee by February 1, 2018. The Department shall implement its plan developed under this subsection by April 1, 2018."

Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium."

Session Laws 2017-57, s. 39.6, is a severability clause.

Effect of Amendments. - Session Laws 2006-261, s. 4, effective August 27, 2006, inserted "minority-owned and women-owned" in the middle of the section catchline; in subsection (a), in the first sentence, inserted "based on a compelling governmental interest" near the beginning, inserted "minority-owned and women-owned" near the middle, inserted "planning" near the middle, and inserted "preconstruction" near the middle, and, in the second sentence, substituted "among themselves in all efforts to conduct outreach and to" for "all other State agencies, institutions, and political subdivisions in efforts to" and inserted "minority-owned and women-owned" near the end; rewrote subsection (b); added subsection (b1); rewrote subsection (c); and added subsections (d) and (e).

Session Laws 2009-266, s. 3, effective August 1, 2009, substituted "August 31, 2010" for "August 31, 2009" in subsection (e).

Session Laws 2010-165, s. 9, effective August 2, 2010, in the section catchline, substituted "transportation contracts" for "highway contracts"; in the first sentence in subsections (a) and (b), substituted "State transportation infrastructure" for "State highways, roads, streets, or bridges"; in the second sentence in subsection (b), substituted "transportation contracting" for "highway contracting"; in subsection (b1), in the first sentence, substituted "the Department's 2009 study entitled 'Measuring Business Opportunity: A Disparity Study of NCDOT's State and Federal Programs'" for "the Department's Second Generation Disparity Study completed in 2004," in the third sentence, substituted "establish aspirational goals every three years" for "establish annual aspirational goals," in the fourth sentence, deleted "annual" preceding "aspirational" and substituted "federal methodology" for "methodology specified in the Study"; in subdivision (c)(1), made a minor stylistic change, and inserted "Subpart A"; added subdivision (c)(3); in the first sentence in subsection (d), substituted "shall report annually" for "shall report semiannually"; and in subsection (e), substituted "August 31, 2014" for "August 31, 2010."

Session Laws 2013-340, s. 2.2, effective July 23, 2013, redesignated former subdivision (c)(1) as present subdivision (c)(1a); and added present subdivision (c)(1).

Session Laws 2014-108, s. 7(a), effective August 6, 2014, substituted "2015" for "2014" in subsection (e).

Session Laws 2015-231, s. 3, effective August 25, 2015, substituted "2014 study entitled 'North Carolina Department of Transportation Disparity Study, 2014'" for "2009 study entitled 'Measuring Business Opportunity: A Disparity Study of NCDOT's State and Federal Programs'" in the first sentence of (b1); and substituted "August 31, 2017" for "August 31, 2015" in subsection (e).

Session Laws 2017-57, s. 34.15(a), effective April 1, 2018, in subsection (b1), substituted "a combined aspirational goal" for "aspirational goals", substituted "not a mandatory goal, in the form of a percentage" for "not mandatory goals in percentages", substituted "This aspirational goal" for "These aspirational goals", substituted "a contract-specific goal or project-specific goal" for "contract specific goals or project specific goals", deleted "for each disadvantaged minority-owned and women-owned business category that has demonstrated significant disparity in contract utilization" following "most recent Study", and made stylistic changes and, effective June 28, 2017, substituted "August 31, 2022" for "August 31, 2017" in subsection (e). For applicability, see editor's note.

§ 136-28.5. Construction diaries; bid analysis and management system.

1. Diaries kept in connection with construction or repair contracts entered into pursuant to G.S. 136-28.1 shall not be considered public records for the purposes of Chapter 132 of the General Statutes until the final estimate has been paid.
2. Analyses generated by the Department of Transportation's Bid Analysis and Management System, including work papers, documents and the output of automated systems associated with the analyses of bids made by the Bid Analysis and Management System, are confidential and are not subject to the public records provisions of Chapter 132 of the General Statutes.
3. Notwithstanding G.S. 132-1, bids and documents submitted in response to an advertisement or request for proposal under this Chapter shall not be public record until the Department issues a decision to award or not to award the contract.

History

(1987, c. 380, s. 1; 1991, c. 716, s. 1; 2012-78, s. 11.)

Editor's Note. - Session Laws 2012-78, s. 18, provides: "Prosecutions for offenses committed before the effective date of the section of this act that modifies the offense [July 1, 2012] are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions."

Session Laws 2012-78, s. 19, made subsection (c) of this section effective July 1, 2012, and applicable to bids and documents submitted for advertisements and requests for proposal that are advertised or requested on or after that date.

Effect of Amendments. - Session Laws 2012-78, s. 11, effective July 1, 2012, added subsection (c). For applicability, see editor's note.

§ 136-28.6. Participation by the Department of Transportation with private developers.

1. The Department of Transportation may participate in private engineering and construction contracts for State transportation systems.
2. In order to qualify for State participation, the project must be:
   1. The construction of a transportation project on the Transportation Improvement Plan adopted by the Department of Transportation; or
   2. The construction of a transportation project on a mutually adopted transportation plan that is designated a Department of Transportation responsibility.
3. Only those projects in which the right-of-way is furnished without cost to the Department of Transportation are eligible.
4. The Department's participation shall be limited to fifty percent (50%) of the amount of any engineering contract and/or any construction contract let for the project.
5. Department of Transportation participation in the contracts shall be limited to cost associated with normal practices of the Department of Transportation.
6. Plans for the project must meet Department of Transportation standards and shall be approved by the Department of Transportation.
7. Projects shall be constructed in accordance with the plans and specifications approved by the Department of Transportation.
8. The Secretary shall report in writing, on an annual basis, to the Joint Legislative Transportation Oversight Committee on all agreements entered into between a private developer and the Department of Transportation for participation in private engineering and construction contracts under this section, as well as (i) agreements by counties and municipalities to participate in private engineering and construction contracts under subsection (i) of this section and (ii) pass-through funding from private developers to counties or municipalities for State transportation projects. The information in the report required by this subsection shall be set forth separately for each division of the Department of Transportation.
9. Counties and municipalities may participate financially in private engineering, land acquisition, and construction contracts for transportation projects which meet the requirements of subsection (b) of this section within their jurisdiction.
10. The Department is authorized to create a statewide pilot program for participation in cost-sharing for transportation improvements in connection with driveway permits. The Department may create a fair share allocation formula and other procedures to facilitate the pilot program. The formula shall uniformly determine the value of transportation improvements and apportion these costs, on a project-by-project basis, among applicable parties, including the Department and private property developers. Transportation improvement projects developed under the pilot program may include the provision of ingress and egress to new private development prior to acceptance of the improved portion of the roads constructed providing access to the development by the State or local government for maintenance as a public street or highway. Nothing in this section shall require a private developer to participate in the pilot program to obtain a driveway permit or other approval from the Department or any local government.
11. Nothing in this section shall obligate the Department to custodial responsibility for managing or distributing monies in the application of this program.
12. The Department shall report on the pilot program to the Joint Legislative Commission on Governmental Operations and the Fiscal Research Division of the Legislative Services Commission no later than the convening date of the 2021 Regular Session of the General Assembly.

History

(1987, c. 860, ss. 1, 2; 1989, c. 749, s. 1; 1991, c. 272, s. 1; 1993, c. 183, s. 1; 1995, c. 358, s. 5; c. 437, s. 3; c. 447, ss. 1, 2; 2002-170, s. 1; 2008-164, s. 2; 2009-266, s. 14; 2013-245, s. 1; 2014-100, s. 34.2; 2015-241, s. 29.12(e).)

Editor's Note. - Session Laws 2013-245, ss. 2-5, provide: "2. DOT contracted services cost-savings pilot program authorized. - The Department of Transportation is authorized to study a statewide pilot program for contracted services cost savings for the 2013-2014 budget cycle. The Department of Transportation shall study methods to reduce its existing facilities maintenance, repair, operation, and service costs by ten percent (10%) by implementing cost-effective and streamlined procurement strategies as recommended in this act. The ten percent (10%) reduction provided for in this section shall be based upon the funds appropriated to the Department in the Appropriations Act of 2013. The Department shall report its findings to the Joint Legislative Commission on Governmental Operations and the Joint Legislative Transportation Oversight Committee on or before April 1, 2014. Any implementation plans may include, but are not limited to, the following: to obtain the reduction provided for in this section, the Department shall investigate and study, among other things, whether cost reductions can be achieved by efforts to (i) procure services through integrated facility service contracts to maintain, repair, or operate all facilities under the Department's control and (ii) consolidate facility service contracts to award a single contract, where feasible, for similar or identical services at separate and distinct facilities. Contracts awarded under this subsection shall not be subject to the requirements of Article 3 or Article 8 of Chapter 143 of the General Statutes.

"The following facility maintenance, repair, operation, and service contracts may be subject to the requirements of this section:

"(1) Janitorial, custodial, and commercial cleaning services, including blind cleaning, carpet care, document disposal, waste disposal, escalator cleaning, food service sanitation, hard surface floor care, light industrial cleaning, pressure washing, recycling services, restroom sanitation, upholstery cleaning, and window cleaning.

"(2) Landscaping, grounds maintenance, and lawn care, including fertilization, seeding, weeding, tree trimming, aerification, verticutting, irrigation maintenance, pest control, floral planting and care, landscape design, parking lot maintenance, interior plant maintenance, and snow removal.

"(3) Security, access control, and public safety, including background checks, alarm response, security consulting, security surveys, and special event staffing.

"(4) Electrical distribution systems maintenance, repair, and testing, including interior and exterior lighting maintenance, thermal imaging, exit and emergency lighting systems, landscape lighting, pole and fixture installation, ultrasonic inspection, and sign repair.

"(5) HVAC and mechanical systems maintenance, repair, testing, and operation, including boiler repairs, building controls, exhaust heat, chiller repairs, climate control systems, retro-commissioning, continuous commissioning, lighting retrofit and re-lamp projects, and lighting control systems.

"(6) Parking, fleet management, and transportation management, including shuttle transportation services, valet parking, meter collections, parking revenue management and collection, vehicle maintenance, vehicle tracking, driver management, speed management, fuel management, and health and safety management.

"(7) Other general maintenance and repair services, including, but not limited to, fire and security alarms, appliance repair, awnings, backflow testing, building repairs, carpentry, carpet or upholstery cleaning, ceiling repair, disaster recovery, loading dock repairs, doors and hardware, duct cleaning, electrical repair, floor carpeting tile, furniture refinishing, generator maintenance and repair, glass, gutters, waste hauling, hazardous waste removal, locksmiths, masonry, mold remediation, overhead door repair, pest control, plaster, plumbing, power washing, roof repair, drain service, snow removal, sprinklers and irrigation systems, and welding.

"3. Any contract not subject to the provisions of Section 2 of this act shall be bid and awarded as provided in Article 3 and Article 8 of Chapter 143 of the General Statutes.

"4. The Department of Transportation shall submit a written report of their progress to the Joint Legislative Transportation Oversight Committee, the Fiscal Research Division, and the Office of the Governor no later than December 31, 2015.

"5. If the Department achieves the savings provided for in Section 2 of this act, the Department shall retain the funds saved and may use the funds for any purpose authorized by applicable law."

Session Laws 2014-100, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2014.'"

Session Laws 2014-100, s. 38.7, is a severability clause.

Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.6, is a severability clause.

Effect of Amendments. - Session Laws 2008-164, s. 2, effective August 3, 2008, rewrote the section heading; in subsection (c), substituted "the right-of-way is furnished" for "the developer furnishes the right-of-way"; deleted "by the developer" preceding "for the project" in subsection (d); substituted "Department of Transportation participation" for "Participation" in subsection (e); and rewrote subsection (i).

Session Laws 2009-266, s. 14, effective August 1, 2009, substituted "transportation systems" for "highways" at the end of subsection (a); in subdivisions (b)(1) and (b)(2), substituted "transportation project" for "street or highway"; and in subsection (i), substituted "transportation projects" for "projects pertaining to streets or highways."

Session Laws 2013-245, s. 1, effective July 1, 2013, added subsections (j) through ( l ).

Session Laws 2014-100, s. 34.2 effective July 1, 2014, added "as well as . .. transportation projects" at the end of subsection (h).

Session Laws 2015-241, s. 29.12(e), effective July 1, 2015, in subsection (h), substituted "on an annual basis, to the Joint Legislative Transportation Oversight Committee" for "on a quarterly basis, to the Joint Legislative Commission on Governmental Operations," and added the last sentence.

§ 136-28.6A. Partnerships with private developers.

1. When in the best interest of the State, the Department may enter into a contract with a private developer to accomplish the engineering, design, or construction of improvements to the State highway system.
2. The Department is authorized to establish policies and promulgate rules providing for its participation in contracts for projects performed on or abutting a state highway or on a facility planned to be added to the State highway system for purposes of completing incidental work on the State highway system.
3. Any project funded or constructed under this section shall be subject to the following restrictions:
   1. The Department's participation shall be limited to the lesser of ten percent (10%) of the amount of the engineering contract and any construction contract let by the developer for the project or two hundred fifty thousand dollars ($250,000). However, under no circumstances shall participation in the contracts by the Department exceed costs associated with normal practices of the Department.
   2. Plans for the project must meet established standards and shall be approved by the Department.
   3. Projects shall be constructed in accordance with the plans and specifications approved by the Department.
4. The Secretary shall report annually, not later than March 1, in writing to the Joint Legislative Commission on Governmental Operations and the Joint Legislative Transportation Oversight Committee on all agreements entered into between the Department and a private developer for participation in private engineering and construction contracts under this section.

History

(2009-235, ss. 1, 2; 2014-58, s. 7; 2016-90, s. 2.3; 2019-199, s. 1.)

Editor's Note. - Session Laws 2009-235, s. 2, provided, in part: "This act [which enacted the section] shall expire on December 31, 2011." On December 31, 2011, this section was set out as expired pursuant to the terms of that expiration provision. Session Laws 2014-58, s. 7, effective July 7, 2014, amended Session Laws 2009-235, s. 2, by extending the expiration date of this section until December 31, 2016, and this section was set out again. Session Laws 2016-90, s. 2.3, further amended Session Laws 2009-235, s. 2, as amended by Session Laws 2014-58, s. 7, to extend the expiration date of this section until July 1, 2017. On July 1, 2017, this section was set out as expired, once again, pursuant to the terms of that extended expiration provision. Session Laws 2019-199, s. 1, repealed the expiration provision altogether, and this section has now been set out, once again, as currently effective.

§ 136-28.6B. Applicable stormwater regulation.

For the purposes of stormwater regulation, any construction undertaken by a private party pursuant to the provisions of G.S. 136-18(17), 136-18(27), 136-18(29), 136-18(29a), 136-28.6, or 136-28.6A shall be considered to have been undertaken by the Department, and the stormwater law and rules applicable to the Department shall apply.

History

(2017-10, s. 2.11.)

§ 136-28.7. Contract requirements relating to construction materials.

1. The Department of Transportation shall require that every contract for construction or repair necessary to carry out the provisions of this Chapter shall contain a provision requiring that all steel and iron permanently incorporated into the construction or repair project be produced in the United States.
2. Subsection (a) shall not apply whenever the Department of Transportation determines in writing that this provision required by subsection (a) cannot be complied with because such products are not produced in the United States in sufficient quantities to meet the requirements of such contracts or cannot be complied with because the cost of such products produced in the United States unreasonably exceeds other such products.
3. The Department of Transportation shall apply this section consistent with the requirements in 23 C.F.R. § 635.410(b)(4).
4. The Department of Transportation shall not authorize, provide for, or make payments to any person pursuant to any contract containing the provision required by subsection (a) unless such person has fully complied with such provision.

History

(1989, c. 692, s. 1.18; c. 770, ss. 74.12, 74.14, 74.15; 2002-151, s. 3.)

§ 136-28.8. Use of recycled materials in construction.

1. It is the intent of the General Assembly that the Department of Transportation continue to expand its use of recycled materials in its construction and maintenance programs.
2. The General Assembly declares it to be in the public interest to find alternative ways to use certain recycled materials that currently are part of the solid waste stream and that contribute to problems of declining space in landfills. The Department shall, consistent with economic feasibility and applicable engineering and environmental quality standards, use:
   1. Rubber from tires in road pavements, subbase materials, or other appropriate applications.
   2. Recycled materials for guard rail posts, right-of-way fence posts, and sign supports.
   3. Recycling technology, including, but not limited to, hot in-place recycling, in road and highway maintenance.
   4. Recycled asphalt, provided that minimum content standards are met and the material meets minimum specifications for the project.
3. As a part of its scheduled projects, the Department shall conduct additional research, which may include demonstration projects, on the use of recycled materials in construction and maintenance.
4. The Department shall review and revise existing bid procedures and specifications to eliminate any procedures and specifications that explicitly discriminate against recycled materials in construction and maintenance, except where the procedures and specifications are necessary to protect the health, safety, and welfare of the people of this State.
5. The Department shall review and revise its bid procedures and specifications on a continuing basis to encourage the use of recycled materials in construction and maintenance and shall, to the extent economically practicable, require the use of recycled materials.
6. All agencies shall cooperate with the Department in carrying out the provisions of this section.
7. On or before October 1 of each year, the Department shall report to the Division of Environmental Assistance and Outreach of the Department of Environmental Quality as to the amounts and types of recycled materials that were specified or used in contracts that were entered into during the previous fiscal year. On or before January 15 of each year, the Division of Environmental Assistance and Outreach shall prepare a summary of this report and submit the summary to the Joint Legislative Oversight Committee on Agriculture and Natural and Economic Resources, the Joint Legislative Transportation Oversight Committee, and the Fiscal Research Division. The summary of this report shall also be included in the report required by G.S. 130A-309.06(c).
8. The Department, in consultation with the Department of Environmental Quality, shall determine minimum content standards for recycled materials.
9. This section is broadly applicable to all procurements by the Department if the quality of the product is consistent with the requirements of the bid specifications.
10. The Department may adopt rules to implement this section.

History

(1989, c. 784, s. 6; 1993, c. 256, s. 3; 1995 (Reg. Sess., 1996), c. 743, s. 9; 1997-443, s. 11A.119(a); 1999-237, s. 27.4; 2001-452, s. 3.6; 2010-31, s. 13.1(e); 2012-8, s. 1; 2012-200, s. 25; 2015-241, s. 14.30(u); 2017-57, s. 14.1(e).)

Editor's Note. - Session Laws 1989, c. 784, s. 6 enacted this section as G.S. 136-285. The section has been recodified as G.S. 136-28.8 at the direction of the Revisor of Statutes.

Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.6, is a severability clause.

Effect of Amendments. - Session Laws 2010-31, s. 13.1(e), effective July 1, 2010, twice substituted "Division of Environmental Assistance and Outreach" for "Division of Pollution Prevention and Environmental Assistance" in subsection (g).

Session Laws 2012-8, s. 1, effective June 7, 2012, added subdivision (b)(4).

Session Laws 2012-200, s. 25, effective August 1, 2012, substituted "January 15" for "December 1" in the second sentence of subsection (g).

Session Laws 2015-241, s. 14.30(u), effective July 1, 2015, substituted "Department of Environmental Quality" for "Department of Environment and Natural Resources" in subsections (g) and (h).

Session Laws 2017-57, s. 14.1(e), effective July 1, 2017, in the second sentence of subsection (g), substituted "Joint Legislative Oversight Committee on Agriculture and Natural and Economic Resources," for "Joint Legislative Commission on Governmental Operations and", and added "and the Fiscal Research Division" at the end of the sentence.

§ 136-28.9. Retainage - construction contracts.

Notwithstanding the provisions of G.S. 147-69.1, 147-77, 147-80, 147-86.10, and 147-86.11, or any other provision of the law, the Department of Transportation is authorized to enter into trust agreements with banks and contractors for the deposit of retainage and for the payment to contractors of income on these deposits, in connection with transportation construction contracts, in trust accounts with banks in accordance with Department of Transportation regulations, including deposit insurance and collateral requirements. The Department of Transportation may contract with those banks without trust departments in addition to those with trust departments. Funds deposited in any trust account shall be invested only in bonds, securities, certificates of deposits, or other forms of investment authorized by G.S. 147-69.1 for the investment of State funds. The trust agreement may also provide for interest to be paid on uninvested cash balances.

History

(1989 (Reg. Sess., 1990), c. 1074, s. 38; 2009-266, s. 15.)

Effect of Amendments. - Session Laws 2009-266, s. 15, effective August 1, 2009, substituted "transportation construction contracts" for "highway construction contracts" in the first sentence.

§ 136-28.10. Highway Fund and Highway Trust Fund Small Project Bidding.

1. Notwithstanding the provisions of G.S. 136-28.4(b), for Highway Fund or Highway Trust Fund construction and repair projects of five hundred thousand dollars ($500,000) or less, and maintenance projects of five hundred thousand dollars ($500,000) or less per year, the Board of Transportation may, after soliciting at least three informal bids in writing from Small Business Enterprises, award contracts to the lowest responsible bidder. The Department of Transportation may identify projects likely to attract increased participation by Small Business Enterprises, and restrict the solicitation and award to those bidders. The Board of Transportation may delegate full authority to award contracts, adopt necessary rules, and administer the provisions of this section to the Secretary of Transportation.
2. The letting of contracts under this section is not subject to any of the provisions of G.S. 136-28.1 relating to the letting of contracts. The Department may waive the bonding requirements of Chapter 44A of the General Statutes and the licensing requirements of Chapter 87 for contracts awarded under this section.
3. The Secretary of Transportation shall report annually to the Joint Legislative Transportation Oversight Committee on the implementation of this section. The information in the report required by this subsection shall be set forth separately for each division of the Department of Transportation.

History

(1993, c. 561, s. 65; 1999-25, s. 1; 2009-266, s. 2; 2015-241, s. 29.12(g).)

Cross References. - As to letting of contracts to bidders after advertisement and exceptions, see G.S. 136-28.1.

As to State policy concerning participation by disadvantaged businesses in highway contracts, see G.S. 136-28.4.

Editor's Note. - Session Laws 1993, c. 561, s. 65, effective July 1, 1993, was codified as this section at the direction of the Revisor of Statutes.

Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.6, is a severability clause.

Effect of Amendments. - Session Laws 2009-266, s. 2, effective August 1, 2009, in subsection (a), inserted "construction and repair" and "and maintenance projects of five hundred thousand dollars ($500,000) or less per year" in the first sentence.

Session Laws 2015-241, s. 29.12(g), effective July 1, 2015, in subsection (c), substituted "annually" for "quarterly" in the first sentence, and added the last sentence.

§ 136-28.11. Design-build construction of transportation projects.

1. Design-Build Contracts Authorized. - Notwithstanding any other provision of law, the Board of Transportation may award contracts each fiscal year for construction of transportation projects on a design-build basis.
2. Design-Build Contract Amounts; Basis of Award. - The Department may award contracts for the construction of transportation projects on a design-build basis of any amount. The Department shall endeavor to ensure design-build projects are awarded on a basis to maximize participation, competition, and cost benefit. On any project for which the Department proposes to use the design-build contracting method, the Department shall attempt to structure and size the contracts for the project in order that contracting firms and engineering firms based in North Carolina have a fair and equal opportunity to compete for the contracts.
3. Disadvantaged Business Participation Goals. - The provisions of G.S. 136-28.4 and 49 C.F.R. Part 26 shall apply to the award of contracts under this section.
4. Repealed by Session Laws 2013-360, s. 34.2(c), effective July 1, 2013.
5. Reporting Requirements. - The Department, for any proposed design-build project projected to have a construction cost in excess of fifty million dollars ($50,000,000), shall present to the Joint Legislative Transportation Oversight Committee information on the scope and nature of the project and the reasons the development of the project on a design-build basis will best serve the public interest.

History

(2001-424, s. 27.2(a); 2002-151, s. 2; 2007-357, s. 1; 2011-145, s. 28.4; 2013-360, s. 34.2(c).)

Editor's Note. - Session Laws 2001-424, s. 27.2(b), provides: "The Department of Transportation shall report to the Joint Legislative Transportation Oversight Committee on September 1, December 1, and March 1 of each year on the status of all design-build projects."

Session Laws 2001-424, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2001.'"

Session Laws 2001-424, s. 36.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2001-2003 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2001-2003 fiscal biennium."

Session Laws 2001-424, s. 36.5, is a severability clause.

Session Laws 2002-60, s. 1, provides: "In addition to the authority granted by G.S. 136-28.11, the Department of Transportation may award contracts by the design-build method for the multilaning of US Highway 601 from the South Carolina State line to US Highway 74 in Union County."

For prior similar provisions, see Session Laws 2013-360, s. 34.2 (a), (b) and (d).

Session Laws 2013-360, s. 38.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2013-2015 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2013-2015 fiscal biennium."

Session Laws 2013-360, s. 38.5, is a severability clause.

Session Laws 2014-100, s. 34.13(a)-(c), as amended by Session Laws 2015-241, s. 29.13(a), provides for the Department of Transportation to seek privatization work when practical, economical, and likely to lead to increase efficiency with allocation for reduction in expenditures.

Session Laws 2014-100, s. 34.13(d), as amended by Session Laws 2015-241, s. 29.13(b), and as amended by Session Laws 2016-94, s. 35.11, provides: "The Department shall report no later than October 1, 2015, and quarterly thereafter, to the Joint Legislative Transportation Oversight Committee and the Fiscal Research Division regarding its implementation of this section, including any reductions in force used to meet privatization requirements. In addition, the Department shall report by March 1, 2017, to the chairs of the House of Representatives Committee on Transportation Appropriations and the Senate Appropriations Committee on Department of Transportation on the Department's recommendations for revising, based on the study and review required under Section 29.14(d) of S.L. 2015-241, the method used for measuring the outsourcing of preconstruction activities subject to subsection (a) of this section."

Session Laws 2014-100, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2014.'"

Session Laws 2014-100, s. 38.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2014-2015 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2014-2015 fiscal year."

Session Laws 2014-100, s. 38.7, is a severability clause.

Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.' "

Session Laws 2015-241, s. 33.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2015-2017 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2015-2017 fiscal biennium."

Session Laws 2015-241, s. 33.6, is a severability clause.

Session Laws 2016-94, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2016.'"

Session Laws 2016-94, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2016-2017 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2016-2017 fiscal year."

Session Laws 2016-94, s. 39.7, is a severability clause.

Effect of Amendments. - Session Laws 2007-357, s. 1, effective August 17, 2007, in subsection (a), substituted "up to 25 projects each fiscal year" for "10 projects in fiscal year 2002-2003, and 25 projects in fiscal years 2003-2004, 2004-2005, 2005-2006, 2006-2007, 2007-2008, and 2008-2009"; in subsection (e), substituted "fifty million dollars ($50,000,000)" for "one hundred million dollars ($100,000,000)" in the first sentence, and deleted the former last sentence which read: "Prior to the award of a design build contract, the Secretary of Transportation shall report to the Joint Legislative Transportation Oversight Committee and the other Joint Legislative Commission on Governmental Operations on the nature and scope of the project and the reasons an award on a design build basis will best serve the public interest."

Session Laws 2011-145, s. 28.4, effective July 1, 2011, deleted "for up to 25 projects" following "may award contracts" in subsection (a).

Session Laws 2013-360, s. 34.2(c), effective July 1, 2013, repealed subsection (d).

§ 136-28.12. Litter removal coordinated with mowing of highway rights-of-way.

The Department of Transportation shall, to the extent practicable, schedule the removal of debris, trash, and litter from highways and highway rights-of-way prior to the mowing of highway rights-of-way. The Department of Transportation shall include as a term of any contract that it enters into for the mowing of a highway right-of-way that the contracting party shall, to the extent practicable, coordinate with the scheduled removal of debris, trash, and litter from the highway and highway right-of-way prior to the mowing of the highway right-of-way.

History

(2001-512, s. 3.)

Editor's Note. - Session Laws 2001-512, s. 15, provides: "This act shall not be construed to obligate the General Assembly to appropriate any funds to implement the provisions of this act. Every agency to which this act applies shall implement the provisions of this act from funds otherwise appropriated or available to the agency."

§ 136-28.13. Participation in the energy credit banking and selling program.

The Department of Transportation shall participate in the energy credit banking and selling program under G.S. 143-58.4 and is eligible to receive proceeds from the Alternative Fuel Revolving Fund under G.S. 143-58.5 to purchase alternative fuel, develop alternative fuel refueling infrastructure, or purchase AFVs as defined in G.S. 143-58.4.

History

(2005-413, s. 2.)

Editor's Note. - Session Laws 2005-413, s. 9, made this section effective January 1, 2006.

§ 136-28.14. Project contractor licensing requirements.

The letting of contracts under this Chapter for the following types of projects shall not be subject to the licensing requirements of Article 1 of Chapter 87 of the General Statutes:

1. Routine maintenance and minor repair of pavements, bridges, roadside vegetation and plantings, drainage systems, concrete sidewalks, curbs, gutters, and rest areas.
2. Installation and maintenance of pavement markings and markers, ground mounted signs, guardrail, fencing, and roadside vegetation and plantings.

History

(2006-261, s. 1.)

§ 136-28.15. Diesel vehicles purchase warranty requirement.

Every new motor vehicle transferred to or purchased by the Department of Transportation that is designed to operate on diesel fuel shall be covered by an express manufacturer's warranty that allows the use of B-20 fuel, as defined in G.S. 143-58.4. This section does not apply if the intended use, as determined by the Department, of the new motor vehicle requires a type of vehicle for which an express manufacturer's warranty allows the use of B-20 fuel is not available.

History

(2007-420, s. 3.)

Cross References. - As to manufacturer's warranty for State motor vehicles that operate on diesel fuel, see G.S. 20-351.11.

Editor's Note. - Session Laws 2007-420, s. 4, made this section effective January 1, 2008, and applicable to motor vehicles transferred to or purchased by the State on or after that date.

§ 136-29. Adjustment and resolution of Department of Transportation contract claim.

1. A contractor who has completed a contract with the Department of Transportation let in accordance with Article 2 of this Chapter and who has not received the amount he claims is due under the contract may submit a verified written claim to the Secretary of Transportation for the amount the contractor claims is due. The claim shall be submitted within 60 days after the contractor receives his final statement from the Department and shall state the factual basis for the claim.
2. A contractor who is dissatisfied with the Secretary or the Secretary's designee's decision on the contractor's claim may commence a contested case on the claim under Chapter 150B of the General Statutes. The contested case shall be commenced within 60 days of receiving the written statement of the decision.
3. As to any portion of a claim that is denied by the Secretary or the Secretary's designee, the contractor may, in lieu of the procedures set forth in subsection (b) of this section, within six months of receipt of the final decision, institute a civil action for the sum he claims to be entitled to under the contract by filing a verified complaint and the issuance of a summons in the Superior Court of Wake County or in the superior court of any county where the work under the contract was performed. The procedure shall be the same as in all civil actions except that all issues shall be tried by the judge, without a jury.
4. The provisions of this section shall be part of every contract let in accordance with Article 2 of this Chapter between the Department of Transportation and a contractor. A provision in a contract that conflicts with this section is invalid.

The Secretary or the Secretary's designee shall investigate a submitted claim within 90 days of receiving the claim or within any longer time period agreed to by the Secretary or the Secretary's designee and the contractor. The contractor may appear before the Secretary or the Secretary's designee, either in person or through counsel, to present facts and arguments in support of the claim. The Secretary or the Secretary's designee may allow, deny, or compromise the claim, in whole or in part. The Secretary or the Secretary's designee shall give the contractor a written statement of the decision on the contractor's claim.

History

(1939, c. 318; 1947, c. 530; 1957, c. 65, s. 11; 1963, c. 667; 1965, c. 55, s. 11; 1967, c. 873; 1973, c. 507, ss. 5, 17, 18; 1977, c. 464, s. 7.1; 1983, c. 761, s. 191; 1987, c. 847, s. 3; 2009-266, s. 16.)

Effect of Amendments. - Session Laws 2009-266, s. 16, effective August 1, 2009, in the section catchline, substituted "Department of Transportation" for "highway construction;" substituted "Secretary or the Secretary's designee" for "State Highway Administrator" and "State Highway Administrator's" throughout the section; in subsection (a), in the first paragraph, substituted "let in accordance with Article 2 of this Chapter" for "to construct a State highway" and "Secretary of Transportation" for "State Highway Administrator" in the first sentence, and in the second paragraph, in the second sentence, substituted "the claim" for "his claim", and in the last sentence, deleted "State Highway Administrator's" preceding "decision"; in subsection (b), deleted "State Highway Administrator's" preceding "written" in the last sentence; and, in subsection (d), substituted "let in accordance with Article 2 of this Chapter" for "for State highway construction" in the first sentence.

Legal Periodicals. - For comment on this section prior to the 1963 amendment, see 17 N.C.L. Rev. 340 (1939).

For note on abrogation of contractual sovereign immunity, see 12 Wake Forest L. Rev. 1082 (1976).

For survey of North Carolina construction law, see 21 Wake Forest L. Rev. 633 (1986).

For article, "North Carolina Construction Law Survey II," see 22 Wake Forest L. Rev. 481 (1987).

§ 136-30. Uniform signs and other traffic control devices on highways, streets, and public vehicular areas.

1. State Highway System. - The Department of Transportation may number and mark highways in the State highway system.  All traffic signs and other traffic control devices placed on a highway in the State highway system must conform to the Uniform Manual. The Department of Transportation shall have the power to control all signs within the right-of-way of highways in the State highway system. The Department of Transportation may erect signs directing persons to roads and places of importance.
2. Municipal Street System. - All traffic signs and other traffic control devices placed on a municipal street system street must conform to the appearance criteria of the Uniform Manual. All traffic control devices placed on a highway that is within the corporate limits of a municipality but is part of the State highway system must be approved by the Department of Transportation.
3. Public Vehicular Areas. - Except as provided in this subsection, all traffic signs and other traffic control devices placed on a public vehicular area, as defined in G.S. 20-4.01, must conform to the Uniform Manual.  The owner of private property that contains a public vehicular area may place on the property a traffic control device, other than a sign designating a parking space for handicapped persons, as defined in G.S. 20-37.5, that differs in material from the uniform device but does not differ in shape, size, color, or any other way from the uniform device. The owner of private property that contains a public vehicular area may place on the property a sign designating a parking space for handicapped persons that differs in material and color from the uniform sign but does not differ in shape, size, or any other way from the uniform device.
4. Definition. - As used in this section, the term "Uniform Manual" means the Manual on Uniform Traffic Control Devices for Streets and Highways, published by the United States Department of Transportation, and any supplement to that Manual adopted by the North Carolina Department of Transportation.
5. Exception for Public Airport Traffic Signs. - Publicly owned airports, as defined in Chapter 63 of the General Statutes, shall be exempt from the requirements of subsections (b) and (c) of this section with respect to informational and directional signs, but not with respect to regulatory traffic signs.

History

(1921, c. 2, ss. 9(a), 9(b); C.S., ss. 3846(q), 3846(r); 1927, c. 148, s. 54; 1933, c. 172, s. 17; 1957, c. 65, s. 11; 1973, c. 507, s. 5; 1977, c. 464, s. 7.1; 1991, c. 530, s. 1; 1991 (Reg. Sess., 1992), c. 818, s. 2; 1993, c. 51, s. 1.)

Editor's Note. - Session Laws 1991 (Reg. Sess., 1992), c. 860, s. 1, effective July 7, 1992, inserted "appearance criteria of the" in the first sentence of subsection (b). Section 2 of c. 860 made the act applicable to the City of Charlotte only, and provided that the act would expire when Session Laws 1991 (Reg. Sess., 1992), c. 818, s. 2 became effective. Chapter 818, s. 2 made the same amendment to this section in the form of general legislation, and became effective October 1, 1992, and applicable to offenses committed on or after that date.

Session Laws 1981-1194, s. 7.2, as added by Session Laws 2005-276, s. 28.14(a), provides: "At the request of the Roanoke Voyages Corridor Commission, the Department of Transportation may manufacture and install, on Roanoke Island and up to 30 miles off the island, way-finding signs that, by color, design, and lettering, do not comply with normal transportation signage standards. These signs shall be used to identify and give directions to historic, educational, and cultural attractions on the island. The Department of Transportation shall not erect any signage that would be impracticable, unfeasible, or that would result in an unsafe or hazardous condition."

Session Laws 2005-276, s. 28.14(b), provides: "At the request of the Blue Ridge National Heritage Area Partnership, as established by Public Law 108-108, Title I, Section 140(d)(3), the Department of Transportation may manufacture and install way-finding signs that, by color, design, and lettering, do not comply with normal transportation signage standards. Signage throughout the 25-county area, as defined in Public Law 108-108, Title I, Section 140(d)(2), of the Blue Ridge National Heritage Area shall be used to identify and give directions to historic, educational, and cultural attractions. The Department of Transportation shall not erect any signage that would be impracticable, unfeasible, or that would result in an unsafe or hazardous condition."

Session Laws 2005-276, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2005.'"

Session Laws 2005-276, s. 46.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2005-2007 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2005-2007 fiscal biennium."

Session Laws 2005-276, s. 46.5, is a severability clause.

§ 136-30.1. Center line and pavement edge line markings.

1. The Department of Transportation shall mark with center lines and edge lines all interstate and primary roads and all paved secondary roads having an average traffic volume of 100 vehicles per day or more, and which are traffic service roads forming a connecting link in the State highway system. The Department of Transportation shall not be required to mark with center and edge lines local subdivision roads, loop roads, dead-end roads of less than one mile in length or roads the major purpose of which is to serve the abutting property, nor shall the Department of Transportation be required to mark with edge lines those roads on which curbing has been installed or which are less than 16 feet in width.
2. Whenever the Department of Transportation shall construct a new paved road, relocate an existing paved road, resurface an existing paved road, or pave an existing road which under the provisions of subsection (a) hereof is required to be marked with lines, the Department of Transportation shall, within 30 days from the completion of the construction, resurfacing or paving, mark the said road with the lines required in subsection (a) hereof.
3. Repealed by Session Laws 1991, c. 530, s. 2, effective January 1, 1992.

History

(1969, c. 1172, s. 1; 1973, c. 496, ss. 1, 2; c. 507, s. 5; 1977, c. 464, s. 7.1; 1991, c. 530, s. 2.)

§ 136-30.2. Prohibit the use of high content arsenic glass beads in paint used for pavement marking.

No pavement markings shall be placed on or along any road in the State highway system, in any municipal street system, or on any public vehicular area, as defined in G.S. 20-4.01, that is made from paint that has been mixed, in whole or in part, with reflective glass beads containing more than 75 parts per million inorganic arsenic, as determined by the United States Environmental Protection Agency Method 6010B in conjunction with the United States Environmental Protection Agency Method 3052 modified.

History

(2010-180, s. 17(b).)

Editor's Note. - Session Laws 2010-180, s. 22, made this section effective October 1, 2010, and applicable to any contracts for road projects entered into, or any pavement remarking that takes place, on or after that date.

Session Laws 2010-180, s. 17(a), provides: "The General Assembly finds and declares that inorganic arsenic is a hazardous substance and is recognized by the United States Environmental Protection Agency and the United States Occupational Safety and Health Administration as a human carcinogen; that release of this substance into the environment may lead to contamination of soil and water; that the ingestion or inhalation of soil, water, plant material, or animal tissues contaminated with inorganic arsenic may lead to lung cancer, damage to the nervous system, or, in extreme cases, death from systemic poisoning; that reflective glass beads are used to reflect light when applied to roadway markers; that glass beads that contain more than 75 parts per million inorganic arsenic may represent a danger to workers who handle and apply them and a contamination potential to soil and water surrounding roadways. The General Assembly therefore determines that it is in the public interest to prohibit the use of glass beads containing more than 75 parts per million inorganic arsenic used to reflect light when applied to markings on roadways."

§ 136-31: Repealed by Session Laws 1991, c. 530, s. 3.

§ 136-32. Regulation of signs.

1. Commercial Signs. - No unauthorized person shall erect or maintain upon any highway any warning or direction sign, marker, signal or light or imitation of any official sign, marker, signal or light erected under the provisions of G.S. 136-30, except in cases of emergency. No person shall erect or maintain upon any highway any traffic or highway sign or signal bearing thereon any commercial or political advertising, except as provided in subsections (b) through (e) of this section: Provided, nothing in this section shall be construed to prohibit the erection or maintenance of signs, markers, or signals bearing thereon the name of an organization authorized to erect the same by the Department of Transportation or by any local authority referred to in G.S. 136-31. Any person who shall violate any of the provisions of this section shall be guilty of a Class 1 misdemeanor. The Department of Transportation may remove any signs erected without authority or allowed to remain beyond the deadline established in subsection (b) of this section.
2. Compliant Political Signs Permitted. - During the period beginning on the 30th day before the beginning date of "one-stop" early voting under G.S. 163-227.2 and ending on the 10th day after the primary or election day, persons may place political signs in the right-of-way of the State highway system as provided in this section. Signs must be placed in compliance with subsection (d) of this section and must be removed by the end of the period prescribed in this subsection. Any political sign remaining in the right-of-way of the State highway system more than 30 days after the end of the period prescribed in this subsection shall be deemed unlawfully placed and abandoned property, and a person may remove and dispose of such political sign without penalty.
3. Definition. - For purposes of this section, "political sign" means any sign that advocates for political action. The term does not include a commercial sign.
4. Sign Placement. - The permittee must obtain the permission of any property owner of a residence, business, or religious institution fronting the right-of-way where a sign would be erected. Signs must be placed in accordance with the following:
   1. No sign shall be permitted in the right-of-way of a fully controlled access highway.
   2. No sign shall be closer than three feet from the edge of the pavement of the road.
   3. No sign shall obscure motorist visibility at an intersection.
   4. No sign shall be higher than 42 inches above the edge of the pavement of the road.
   5. No sign shall be larger than 864 square inches.
   6. No sign shall obscure or replace another sign.
5. Penalties for Unlawful Removal of Signs. -  It is a Class 3 misdemeanor for a person to steal, deface, vandalize, or unlawfully remove a political sign that is lawfully placed under this section.
6. Application Within Municipalities. - Pursuant to Article 8 of Chapter 160A of the General Statutes, a city may by ordinance prohibit or regulate the placement of political signs on rights-of-way of streets located within the corporate limits of a municipality and maintained by the municipality. Any such ordinance shall provide that any political sign that remains in a right-of-way of streets located within the corporate limits of a municipality and maintained by the municipality more than 30 days after the end of the period prescribed in the ordinance is to be deemed unlawfully placed and abandoned property, and a person may remove and dispose of such political sign without penalty. In the absence of an ordinance prohibiting or regulating the placement of political signs on the rights-of-way of streets located within a municipality and maintained by the municipality, the provisions of subsections (b) through (e) of this section shall apply.

History

(1921, c. 2, s. 9(b); C.S., s. 3846(r); 1927, c. 148, ss. 56, 58; 1933, c. 172, s. 17; 1957, c. 65, s. 11; 1973, c. 507, s. 5; 1977, c. 464, s. 7.1; 1991 (Reg. Sess., 1992), c. 1030, s. 39; 1993, c. 539, s. 981; 1994, Ex. Sess., c. 24, s. 14(c); 2011-408, s. 1; 2017-6, s. 3; 2018-146, ss. 3.1(a), (b), 6.1; 2019-119, s. 1.)

Cross References. - As to general ordinance-making power of cities, see G.S. 160A-174 et seq.

Re-recodification; Technical and Conforming Changes. - Session Laws 2017-6, s. 3, provides, in part: "The Revisor of Statutes shall recodify Chapter 138A of the General Statutes, Chapter 120C of the General Statutes, as well as Chapter 163 of the General Statutes, as amended by this act, into a new Chapter 163A of the General Statutes to be entitled 'Elections and Ethics Enforcement Act,' as enacted by Section 4 of this act. The Revisor may also recodify into the new Chapter 163A of the General Statutes other existing statutory laws relating to elections and ethics enforcement that are located elsewhere in the General Statutes as the Revisor deems appropriate." The Revisor was further authorized to make additional technical and conforming changes to catchlines, internal citations, and other references throughout the General Statutes to effectuate this recodification. Pursuant to this authority, the Revisor of Statutes substituted "G.S. 163A-1300" for "G.S. 163-227.2" in subsection (b).

Session Laws 2018-146, ss. 3.1(a), (b) and 6.1, repealed Session Laws 2017-6, s. 3, and authorized the Revisor of Statutes to re-recodify Chapter 163A into Chapters 163, 138A, and 120C and to revert the changes made by the Revisor pursuant to Session Laws 2017-6, s. 3. Pursuant to this authority, the Revisor of Statutes reverted the change to the reference in subsection (b).

Editor's Note. - Session Laws 2019-119, s. 3, made the amendments to this section by Session Laws 2019-119, s. 1, applicable to offenses committed on or after December 1, 2019.

Effect of Amendments. - Session Laws 2019-119, s. 1, effective December 1, 2019, in subsection (b), added the last sentence; and, in subsection (f), added the second sentence. For applicability, see editor's note.

§ 136-32.1. Misleading signs prohibited.

No person shall erect or maintain within 100 feet of any highway right-of-way any warning or direction sign or marker of the same shape, design, color and size of any official highway sign or marker erected under the provisions of G.S. 136-30, or otherwise so similar to an official sign or marker as to appear to be an official highway sign or marker. Any person who violates any of the provisions of this section is guilty of a Class 1 misdemeanor.

History

(1955, c. 231; 1991 (Reg. Sess., 1992), c. 1030, s. 40; 1993, c. 539, s. 982; 1994, Ex. Sess., c. 24, s. 14(c).)

§ 136-32.2. Placing blinding, deceptive or distracting lights unlawful.

1. If any person, firm or corporation shall place or cause to be placed any lights, which are flashing, moving, rotating, intermittent or steady spotlights, in such a manner and place and of such intensity:
   1. Which, by the use of flashing or blinding lights, blinds, tends to blind and effectively hampers the vision of the operator of any motor vehicle passing on a public highway; or
   2. Which involves red, green or amber lights or reflectorized material and which resembles traffic signal lights or traffic control signs; or
   3. Which, by the use of lights, reasonably causes the operator of any motor vehicle passing upon a public highway to mistakenly believe that there is approaching or situated in his lane of travel some other motor vehicle or obstacle, device or barricade, which would impede his traveling in such lane;
2. Each 10 days during which a violation of the provisions of this section is continued after conviction therefor shall be deemed a separate offense.
3. The provisions of this section shall not apply to any lights or lighting devices erected or maintained by the Department of Transportation or other properly constituted State or local authorities and intended to effect or implement traffic control and safety. Nothing contained in this section shall be deemed to prohibit the otherwise reasonable use of lights or lighting devices for advertising or other lawful purpose when the same do not fall within the provisions of subdivisions (1) through (3) of subsection (a) of this section.
4. The enforcement of this section shall be the specific responsibility and duty of the State Highway Patrol in addition to all other law-enforcement agencies and officers within this State; provided, however, no warrant shall issue charging a violation of this section unless the violation has continued for 10 days after notice of the same has been given to the person, firm or corporation maintaining or owning such device or devices alleged to be in violation of this section.

[he or it] shall be guilty of a Class 3 misdemeanor.

History

(1959, c. 560; 1973, c. 507, s. 5; 1975, c. 716, s. 5; 1977, c. 464, ss. 7.1, 17; 1993, c. 539, s. 983; 1994, Ex. Sess., c. 24, s. 14(c).)

§ 136-32.3. Litter enforcement signs.

The Department of Transportation shall place signs on the Interstate Highway System notifying motorists of the penalties for littering. The signs shall include the amount of the maximum penalty for littering. The Department of Transportation shall determine the locations of and distance between the signs.

History

(2001-512, s. 4.)

Editor's Note. - Session Laws 2001-512, s. 15, provides: "This act shall not be construed to obligate the General Assembly to appropriate any funds to implement the provisions of this act. Every agency to which this act applies shall implement the provisions of this act from funds otherwise appropriated or available to the agency."

§ 136-33. Damaging or removing signs; rewards.

1. No person shall willfully deface, damage, knock down or remove any sign posted as provided in G.S. 136-26 or G.S. 136-30.
2. No person, without just cause or excuse, shall have in his possession any highway sign as provided in G.S. 136-26 or G.S. 136-30.
3. Any person violating the provisions of this section shall be guilty of a Class 2 misdemeanor.
4. The Department of Transportation is authorized to offer a reward not to exceed five hundred dollars ($500.00) for information leading to the arrest and conviction of persons who violate the provisions of this section, such reward to be paid from funds of the Department of Transportation.
5. The enforcement of this section shall be the specific responsibility and duty of the State Highway Patrol in addition to all other law-enforcement agencies and officers within this State.

History

(1927, c. 148, s. 57; 1971, c. 671; 1973, c. 507, s. 5; 1975, cc. 11, 93; c. 716, s. 7; 1977, c. 464, ss. 7.1, 18; 1991 (Reg. Sess., 1992), c. 1030, s. 41; 1993, c. 539, s. 984; 1994, Ex. Sess., c. 24, s. 14(c).)

§ 136-33.1. Signs for protection of cattle.

Upon written request of any owner of more than five head of cattle, the Department of Transportation shall erect appropriate and adequate signs on any road or highway under the control of the Department of Transportation, such signs to be so worded, designed and located as to give adequate warning of the presence and crossing of cattle. Such signs shall be located at points agreed upon by the owner and the Department of Transportation at points selected to give reasonable warning of places customarily or frequently used by the cattle of said owner to cross said road or highway, and no one owner shall be entitled to demand the placing of signs at more than one point on a single or abutting tracts of land.

History

(1949, c. 812; 1957, c. 65, s. 11; 1973, c. 507, s. 5; 1977, c. 464, s. 7.1.)

§ 136-33.2: Repealed by Session Laws 2007-164, s. 2, effective July 1, 2007.

Cross References. - For current provisions as to signs marking beginning of speed zones, see G.S. 136-33.2A.

§ 136-33.2A. Signs marking beginning of reduced speed zones.

If a need to reduce speed in a speed zone is determined to exist by an engineer of the Department, there shall be a sign erected, of adequate size, at least 600 feet in advance of the beginning of any speed zone established by any agency of the State authorized to establish the same, which shall indicate a change in the speed limit.

History

(2007-164, s. 3.)

§ 136-34. Department of Transportation authorized to furnish road equipment to municipalities.

The Department of Transportation is hereby authorized to furnish municipalities road maintenance equipment to aid such municipalities in the maintenance of streets upon such rental agreement as may be agreed upon by the Department of Transportation and the said municipality. Such rental, however, is to be at least equal to the cost of operation, plus wear and tear on such equipment; and the Department of Transportation shall not be required to furnish equipment when to do so would interfere with the maintenance of the streets and highways under the control of the Department of Transportation.

History

(1941, c. 299; 1957, c. 65, s. 11; 1973, c. 507, s. 5; 1977, c. 464, ss. 7.1, 19.)

§ 136-34.1. Department of Transportation authorized to furnish road maintenance materials to municipalities.

The Department of Transportation is authorized, in its discretion, to furnish municipalities road maintenance materials to aid municipalities in the maintenance of streets upon agreement for reimbursement, as may be required by the Department and agreed to by the municipality. The agreement shall provide for reimbursement in an amount at least equal to the cost of the materials, together with the actual reasonable cost of any handling and storage of the materials and of administering the reimbursement agreement, all as solely determined by the Department. In no event shall the Department of Transportation be required to furnish road maintenance materials when, in the sole determination of the Department of Transportation, to do so would interfere with the maintenance of the streets and highways under its control. Notwithstanding any other provision of law, the provision of and reimbursement for materials under this section shall not be deemed a sale for any purpose.

History

(2009-332, s. 3.)

§ 136-35. Cooperation with other states and federal government.

It shall also be the duty of the Department of Transportation, where possible, to cooperate with the state highway commissions of other states and with the federal government in the correlation of roads and other transportation systems so as to form a system of intercounty, interstate, and national highways and transportation systems. The Department of Transportation may enter into reciprocal agreements with other states and the United States Department of Transportation to perform inspection work and to pay reasonable fees for inspection work performed by others in connection with supplies and materials used in transportation construction and repair.

History

(1915, c. 113, s. 12; C.S., s. 3584; 1933, c. 172, s. 17; 1957, c. 65, s. 11; 1973, c. 507, s. 5; 1977, c. 464, s. 7.1; 1985, c. 127; c. 689, s. 31; 2009-266, s. 17.)

Effect of Amendments. - Session Laws 2009-266, s. 17, effective August 1, 2009, in the first sentence, inserted "and other transportation systems" and "and transportation systems", and in the second sentence, substituted "United States Department of Transportation" for "Federal Highway Administration" and substituted "transportation construction and repair" for "highway construction and repair."

§ 136-36: Repealed by Session Laws 1951, c. 260, s. 4.

§ 136-37: Repealed by Session Laws 1959, c. 687, s. 5.

§§ 136-38 through 136-41: Repealed by Sessions Laws 1951, c. 260, s. 4.

§ 136-41.1. Appropriation to municipalities; allocation of funds generally; allocation to Butner.

1. Upon appropriation of funds by the General Assembly to the Department of Transportation for State aid to municipalities, one-half of the amount appropriated shall be allocated in cash on or before October 1 of each year to the cities and towns of the State in accordance with this section. The second one-half of the amount appropriated shall be allocated in cash on or before January 1 of each year to the cities and towns of the State in accordance with this section.
2. For purposes of this section and of G.S. 136-41.2 and 136-41.3, urban service districts defined by the governing board of a consolidated city-county in which street services are provided by the consolidated city-county, as defined by G.S. 160B-2(1), shall be considered eligible municipalities, and the allocations to be made thereby shall be made to the government of the consolidated city-county.
3. Any funds allocated to the unincorporated area known as the Butner Reservation shall be transferred to the Town of Butner.
4. Nature. - The General Assembly finds that the revenue distributed under this section is local revenue, not a State expenditure, for the purpose of Section 5(3) of Article III of the North Carolina Constitution. Therefore, the Governor may not reduce or withhold the distribution.

Seventy-five percent (75%) of the funds appropriated for cities and towns shall be distributed among the several eligible municipalities of the State in the percentage proportion that the population of each eligible municipality bears to the total population of all eligible municipalities according to the most recent annual estimates of population as certified to the Secretary of Revenue by the State Budget Officer. This annual estimation of population shall include increases in the population within the municipalities caused by annexations accomplished through July 1 of the calendar year in which these funds are distributed. Twenty-five percent (25%) of said fund shall be distributed among the several eligible municipalities of the State in the percentage proportion that the mileage of public streets in each eligible municipality which does not form a part of the State highway system bears to the total mileage of the public streets in all eligible municipalities which do not constitute a part of the State highway system.

It shall be the duty of the mayor of each municipality to report to the Department of Transportation such information as it may request for its guidance in determining the eligibility of each municipality to receive funds under this section and in determining the amount of allocation to which each is entitled. Upon failure of any municipality to make such report within the time prescribed by the Department of Transportation, the Department of Transportation may disregard such defaulting unit in making said allotment.

The funds to be allocated under this section shall be paid in cash to the various eligible municipalities on or before October 1 and January 1 of each year as provided in this section. Provided that eligible municipalities are authorized within the discretion of their governing bodies to enter into contracts for the purpose of maintenance, repair, construction, reconstruction, widening, or improving streets of such municipalities at any time after January 1 of any calendar year in total amounts not to exceed ninety percent (90%) of the amount received by such municipality during the preceding fiscal year, in anticipation of the receipt of funds under this section during the next fiscal year, to be paid for out of such funds when received.

The Department of Transportation may withhold each year an amount not to exceed one percent (1%) of the total amount appropriated for distribution under this section for the purpose of correcting errors in allocations: Provided, that the amount so withheld and not used for correcting errors will be carried over and added to the amount to be allocated for the following year.

The word "street" as used in this section is hereby defined as any public road maintained by a municipality and open to use by the general public, and having an average width of not less than 16 feet. In order to obtain the necessary information to distribute the funds herein allocated, the Department of Transportation may require that each municipality eligible to receive funds under this section submit to it a statement, certified by a registered engineer or surveyor of the total number of miles of streets in such municipality. The Department of Transportation may in its discretion require the certification of mileage on a biennial basis.

History

(1951, c. 260, s. 2; c. 948, ss. 2, 3; 1953, c. 1127; 1957, c. 65, s. 11; 1963, c. 854, ss. 1, 2; 1969, c. 665, ss. 1, 2; 1971, c. 182, ss. 1-3; 1973, c. 476, s. 193; c. 500, s. 1; c. 507, s. 5; c. 537, s. 6; 1975, c. 513; 1977, c. 464, s. 7.1; 1979, 2nd Sess., c. 1137, s. 50; 1981, c. 690, s. 4; c. 859, s. 9.2; c. 1127, s. 54; 1985 (Reg. Sess., 1986), c. 982, s. 1; 1989, c. 692, s. 1.6; 1995, c. 390, s. 26; c. 461, s. 18; 1997-443, s. 11A.118(a); 2000-165, s. 1; 2002-120, s. 5; 2007-269, s. 13; 2011-145, s. 28.10(a); 2013-183, s. 3.1; 2014-100, s. 34.1; 2015-241, s. 29.17D(a).)

Local Modification. - Cherokee: 1989 (Reg. Sess., 1990), c. 1049, s. 13(a); Henderson: 1957, c. 1181; village of Grandfather: 1987, c. 419, s. 1; village of Woodlake: 1991 (Reg. Sess., 1992), c. 859, s. 1 (contingent on referendum).

Cross References. - As to estimate of population authorizing participation in state-collected funds, see G.S. 160A-486.

Editor's Note. - Session Laws 2002-120, s. 9, is a severability clause.

Session Laws 2002-159, s. 65, effective October 11, 2002, provides: "It is the intent of the General Assembly that Sections 1 through 7 of S.L. 2002-120 shall be effective prospectively only and shall not apply to pending litigation or claims that accrued before the effective date of S.L. 2002-120. Nothing in Section 1 through 7 of S.L. 2002-120 shall be construed as a waiver of the sovereign immunity of the State or any other defenses as to any claim for damages, other recovery of funds, including attorneys' fees, or injunctive relief from the State by any unit of local government or political subdivision of the State." Session Laws 2002-120, s. 5, effective September 24, 2002, added subsection (d).

Session Laws 2007-269, s. 14.1, provides: "Section 1.1 through 14 of this act shall become effective only if the Charter of the Town of Butner is approved under section 5 of the Voting Rights Act of 1965; provided, however, that if the Charter is not approved under section 5 of the Voting Rights Act of 1965 because of any provisions contained in Article III or Article IV of the Charter, the Butner Advisory Council established in accordance with G.S. 122C-413 may make such amendments to the Article III or IV of the Charter as it, in its sole discretion, deems necessary to obtain such approval, and such amendments shall be filed in accordance with G.S. 160A-111. If the Charter is not approved, Sections 1.1 through 14 of this act have no force and effect. If the Charter is approved, then those sections become effective on the first day of the next calendar month that begins more than three days after the approval, except that the persons appointed as temporary officers under Section 3.2 of the Charter may immediately take the oath of office and take such preliminary actions as may be necessary for initial organization, personnel actions, and budget adoption, in such special meetings as may be called under G.S. 160A-71." Preclearance was received from the United States Department of Justice by letter dated October 1, 2007.

Session Laws 2013-183, s. 3.5, provides: "DOT Municipal Lane Mile Study. - The Department of Transportation shall collect lane mile data from each municipality eligible to receive funds under this section no later than December 1, 2013. The Department shall report to the Joint Legislative Transportation Oversight Committee no later than March 1, 2014, on at least three options to shift the distribution formula to include lane mile data. The report shall include advantages and disadvantages, fiscal impacts to each municipality, and any other technical considerations in making such a change. The Joint Legislative Transportation Oversight Committee and the Fiscal Research Division shall include in its recommendations to the 2014 Session of the 2013 General Assembly a new distribution formula, if the Committee finds that a new formula is beneficial and practical."

Session Laws 2013-183, s. 7.1(b), provided: "This act is effective only if the General Assembly appropriates funds in the Current Operations and Capital Improvements Appropriations Act of 2013 to implement this act." Session Laws 2013-360, s. 34.30, effective July 1, 2013, repealed Session Laws 2013-183, s. 7.1(b).

Session Laws 2015-241, s. 29.17D(c), provides: "For the 2015-2016 fiscal year, and notwithstanding any provision of G.S. 136-41.3 to the contrary, the Department of Transportation shall submit by November 1, 2015, the report required under G.S. 136-41.3(b), as amended by subsection (b) of this section, detailing the uses by each municipality of funds received under G.S. 136-41.1 and G.S. 136-41.2 during the preceding year."

Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2015-2017 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2015-2017 fiscal biennium."

Effect of Amendments. - Session Laws 2007-269, s. 13, rewrote subsection (c). For effective date, see Editor's note.

Session Laws 2011-145, s. 28.10(a), effective July 1, 2011, in subsection (a), added "One-half of" at the beginning of the second sentence, and added the third sentence.

Session Laws 2013-183, s. 3.1, effective July 1, 2013, in subsection (a), in the first paragraph, inserted "ten and four-tenths percent (10.4%) of" and substituted "the tax imposed" for "a one and three-fourths cents (1 3/4 › ) tax on each gallon of motor fuel taxed" in the first sentence and deleted the last two sentences, and, in the first sentence of the fourth paragraph, added "and January 1" and "as provided in this section."

Session Laws 2014-100, s. 34.1, effective July 1, 2014, added the last sentence in the first paragraph of subsection (a).

Session Laws 2015-241, s. 29.17D(a), effective July 1, 2015, rewrote the first paragraph in subsection (a).

§ 136-41.2. Eligibility for funds; municipalities incorporated since January 1, 1945.

1. No municipality shall be eligible to receive funds under G.S. 136-41.1 unless it has conducted the most recent election required by its charter or the general law, whichever is applicable, for the purpose of electing municipal officials. The literal requirement that the most recent required election shall have been held may be waived only:
   1. Where the members of the present governing body were appointed by the General Assembly in the act of incorporation and the date for the first election of officials under the terms of that act has not arrived; or,
   2. Where validly appointed or elected officials have advertised notice of election in accordance with law, but have not actually conducted an election for the reason that no candidates offered themselves for office.
2. No municipality shall be eligible to receive funds under G.S. 136-41.1 unless it has levied an ad valorem tax for the current fiscal year of at least five cents (5›) on the one hundred dollars ($100.00) valuation upon all taxable property within its corporate limits, and unless it has actually collected at least fifty percent (50%) of the total ad valorem tax levied for the preceding fiscal year; provided, however, that, for failure to have collected the required percentage of its ad valorem tax levy for the preceding fiscal year:
   1. No municipality making in any year application for its first annual allocation shall be declared ineligible to receive such allocation; and
   2. No municipality shall be declared ineligible to receive its share of the annual allocation to be made in the year 1964.
3. No municipality shall be eligible to receive funds under G.S. 136-41.1 unless it has formally adopted a budget ordinance in substantial compliance with G.S. 159-8 and G.S. 159-13, showing revenue received from all sources, and showing that funds have been appropriated for at least two of the following municipal services if the municipality was incorporated with an effective date prior to January 1, 2000, water distribution; sewage collection or disposal; garbage and refuse collection or disposal; fire protection; police protection; street maintenance, construction, or right-of-way acquisition; or street lighting, or at least four of the following municipal services if the municipality was incorporated with an effective date of on or after January 1, 2000: (i) police protection; (ii) fire protection; (iii) solid waste collection or disposal; (iv) water distribution; (v) street maintenance; (vi) street construction or right-of-way acquisition; (vii) street lighting; and (viii) zoning.
4. The provisions of this section shall not apply to any municipality incorporated prior to January 1, 1945.

History

(1963, c. 854, ss. 3, 3 1 / 2 ; 1985 (Reg. Sess., 1986), c. 934, ss. 5, 6; 1999-458, s. 5; 2017-102, s. 20.)

Local Modification. - Town of Red Cross: 2005-245, s. 2 (fiscal year 2002-2003 only); Community of Gray's Creek: 1999-458, s. 13 (contingent on petition filed before July 1, 2002); Community of Union Cross: 1999-458, s. 13 (contingent on petition filed before July 1, 2002).

Editor's Note. - Section 160-410.3, referred to in this section, was repealed by Session Laws 1971, c. 780, s. 13. See now G.S. 159-7 et seq.

Session Laws 1993, c. 321, s. 169.1, as amended by Session Laws 2000-165, s. 1.1, provides: "Notwithstanding any other provision of law, the Department of Transportation shall maintain the streets and highways on the State highway system within municipalities that are not eligible for funds under G.S. 136-41.2. The Department of Transportation shall maintain the streets and highways as part of the State secondary system, and maintain the paving priority for the secondary roads the same as if the municipality were not incorporated, as long as the ineligibility for funds under G.S. 136-41.2 continues. The provisions of this section apply only to municipalities incorporated between July 1, 1989, and June 30, 1993 or between June 1, 1978 and June 30, 1978."

Session Laws 1993, c. 321, s. 321 provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 1993-95 biennium, the textual provisions of this act shall apply only to funds appropriated for and activities occurring during the 1993-95 biennium."

Session Laws 1999-458, s. 12, provides that Section 1 of this act, which amended G.S. 120-163(c), applies with respect to municipalities for which the Joint Legislative Commission on Municipal Incorporations makes recommendations on or after August 13, 1999. Sections 1 through 11 of this act, other than the repeal of G.S. 120-169.1(a), do not apply to any community which first filed a petition with the Commission prior to July 20, 1999.

Session Laws 2015-241, s. 29.17D(c), provides: "For the 2015-2016 fiscal year, and notwithstanding any provision of G.S. 136-41.3 to the contrary, the Department of Transportation shall submit by November 1, 2015, the report required under G.S. 136-41.3(b), as amended by subsection (b) of this section, detailing the uses by each municipality of funds received under G.S. 136-41.1 and G.S. 136-41.2 during the preceding year."

Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2015-2017 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2015-2017 fiscal biennium."

Session Laws 2015-241, s. 33.6, is a severability clause.

Effect of Amendments. - Session Laws 2017-102, s. 20, effective July 12, 2017, substituted "G.S. 159-8 and G.S. 159-13," for "G.S. 160-410.3," in the first sentence of subsection (c).

§ 136-41.2A. Eligibility for funds; municipalities incorporated before January 1, 1945.

1. No municipality shall be eligible to receive funds under G.S. 136-41.1 unless it has been within the four-year period next preceding the annual allocation of funds conducted an election for the purpose of electing municipal officials and currently imposes an ad valorem tax or provides other funds for the general operating expenses of the municipality.
2. The provisions of this section apply only to municipalities incorporated prior to January 1, 1945.

History

(1985 (Reg. Sess., 1986), c. 934, s. 4.)

§ 136-41.2B. Eligibility for funds; municipalities with no road miles ineligible.

No municipality shall be eligible to receive funds under G.S. 136-41.1 unless the municipality maintains public streets that (i) are within its jurisdiction and (ii) do not form a part of the State highway system.

History

(2011-145, s. 28.10(b).)

§ 136-41.3. Use of funds; records and annual statement; excess accumulation of funds; contracts for maintenance, etc., of streets.

1. Uses of Funds. - Except as otherwise provided in this subsection, the funds allocated to cities and towns under the provisions of G.S. 136-41.1 and G.S. 136-41.2 shall be expended by said cities and towns primarily for the resurfacing of streets within the corporate limits of the municipality but may also be used for the purposes of maintaining, repairing, constructing, reconstructing or widening of any street or public thoroughfare including bridges, drainage, curb and gutter, and other necessary appurtenances within the corporate limits of the municipality or for meeting the municipality's proportionate share of assessments levied for such purposes, or for the planning, construction and maintenance of bikeways, greenways, or sidewalks. Cities and towns shall strongly prefer the use of seeds and plants the U.S. Department of Agriculture has classified as native to North Carolina when the use of funds under this subsection includes landscaping. The funds allocated to cities and towns under the provisions of G.S. 136-41.1 and G.S. 136-41.2 shall not be expended for the construction of a sidewalk into which is built a mailbox, utility pole, fire hydrant, or other similar obstruction that would impede the clear passage of pedestrians on the sidewalk.
2. Records and Annual Statement. - Each municipality receiving funds by virtue of G.S. 136-41.1 and 136-41.2 shall maintain a separate record of accounts indicating in detail all receipts and expenditures of such funds. It shall be unlawful for any municipal employee or member of any governing body to authorize, direct, or permit the expenditure of any funds accruing to any municipality by virtue of G.S. 136-41.1 and 136-41.2 for any purpose not herein authorized. Any member of any governing body or municipal employee shall be personally liable for any unauthorized expenditures. On or before the first day of August each year, the treasurer, auditor, or other responsible official of each municipality receiving funds by virtue of G.S. 136-41.1 and 136-41.2 shall file a statement under oath with the Secretary of Transportation showing in detail the expenditure of funds received by virtue of G.S. 136-41.1 and 136-41.2 during the preceding year and the balance on hand. The Department of Transportation shall submit to the chairs of the Joint Legislative Transportation Oversight Committee an annual report no later than October 1 of each year detailing the uses by each municipality of funds received under G.S. 136-41.1 and G.S. 136-41.2 during the preceding year.
3. Failure to File. - A municipality that fails to file the statement required under subsection (b) of this section by October 1 is ineligible to receive funds allocated on October 1 under G.S. 136-41.1 or G.S. 136-41.2 for the fiscal year in which the municipality failed to file the statement. A municipality that fails to file the statement required under subsection (b) of this section by January 1 is ineligible to receive funds allocated under G.S. 136-41.1 or G.S. 136-41.2 for the fiscal year in which the municipality failed to file the statement.
4. Excess Accumulation of Funds Prohibited. - No funds allocated to municipalities pursuant to G.S. 136-41.1 and 136-41.2 shall be permitted to accumulate for a period greater than permitted by this section. Interest on accumulated funds shall be used only for the purposes permitted by the provisions of G.S. 136-41.3. Except as otherwise provided in this section, any municipality having accumulated an amount greater than the sum of the past 10 allocations made, shall have an amount equal to such excess deducted from the next allocation after receipt of the report required by this section. Such deductions shall be carried over and added to the amount to be allocated to municipalities for the following year. Notwithstanding the other provisions of this section, the Department shall adopt a policy to allow small municipalities to apply to the Department to be allowed to accumulate up to the sum of the past 20 allocations if a municipality's allocations are so small that the sum of the past 10 allocations would not be sufficient to accomplish the purposes of this section.
5. Contracts for Maintenance and Construction. - In the discretion of the local governing body of each municipality receiving funds by virtue of G.S. 136-41.1 and 136-41.2 it may contract with the Department of Transportation to do the work of maintenance, repair, construction, reconstruction, widening or improving the streets in such municipality; or it may let contracts in the usual manner as prescribed by the General Statutes to private contractors for the performance of said street work; or may undertake the work by force account. The Department of Transportation within its discretion is hereby authorized to enter into contracts with municipalities for the purpose of maintenance, repair, construction, reconstruction, widening or improving streets of municipalities. And the Department of Transportation in its discretion may contract with any city or town which it deems qualified and equipped so to do that the city or town shall do the work of maintaining, repairing, improving, constructing, reconstructing, or widening such of its streets as form a part of the State highway system.
6. Permitted Offsets to Funding. - The Department of Transportation is authorized to apply a municipality's share of funds allocated to a municipality under the provisions of G.S. 136-41.1 to any of the following accounts of the municipality with the said Department of Transportation, which the municipality fails to pay:
   1. Cost sharing agreements for right-of-way entered into pursuant to G.S. 136-66.3, but not to exceed ten percent (10%) of any one year's allocation until the debt is repaid,
   2. The cost of relocating municipally owned waterlines and other municipally owned utilities on a State highway project which is the responsibility of the municipality,
   3. For any other work performed for the municipality by the Department of Transportation or its contractor by agreement between the Department of Transportation and the municipality, and
   4. For any other work performed that was made necessary by the construction, reconstruction or paving of a highway on the State highway system for which the municipality is legally responsible.

In the case of each eligible municipality, as defined in G.S. 136-41.2, having a population of less than 5,000, the Department of Transportation shall upon the request of such municipality made by official action of its governing body, on or prior to June 1, 1953, or June 1 in any year thereafter, for the fiscal year beginning July 1, 1953, and for the years thereafter do such street construction, maintenance, or improvement on nonsystem streets as the municipality may request within the limits of the current or accrued payments made to the municipality under the provisions of G.S. 136-41.1.

In computing the costs, the Department of Transportation may use the same rates for equipment, rental, labor, materials, supervision, engineering and other items, which the Department of Transportation uses in making charges to one of its own department or against its own department, or the Department of Transportation may employ a contractor to do the work, in which case the charges will be the contract cost plus engineering and inspection. The municipality is to specify the location, extent, and type of the work to be done, and shall provide the necessary rights-of-way, authorization for the removal of such items as poles, trees, water and sewer lines as may be necessary, holding the Department of Transportation free from any claim by virtue of such items of cost and from such damage or claims as may arise therefrom except from negligence on the part of the Department of Transportation, its agents, or employees.

If a municipality elects to bring itself under the provisions of the two preceding paragraphs, it shall enter into a two-year contract with the Department of Transportation and if it desires to dissolve the contract at the end of any two-year period it shall notify the Department of Transportation of its desire to terminate said contract on or before April 1 of the year in which such contract shall expire; otherwise, said contract shall continue for an additional two-year period, and if the municipality elects to bring itself under the provisions of the two preceding paragraphs and thereafter fails to pay its account to the Department of Transportation for the fiscal year ending June 30, by August 1 following the fiscal year, then the Department of Transportation shall apply the said municipality's allocation under G.S. 136-41.1 to this account until said account is paid and the Department of Transportation shall not be obligated to do any further work provided for in the two preceding paragraphs until such account is paid.

Section 143-129 of the General Statutes relating to the procedure for letting of public contracts shall not be applicable to contracts undertaken by any municipality with the Department of Transportation in accordance with the provisions of the three preceding paragraphs.

History

(1951, c. 260, s. 3; c. 948, s. 4; 1953, c. 1044; 1957, c. 65, s. 11; 1969, c. 665, ss. 3, 4; 1971, c. 182, s. 4; 1973, c. 193; c. 507, s. 5; 1977, c. 464, ss. 7.1, 20; c. 808; 1993 (Reg. Sess., 1994), c. 690, s. 1.1; 2011-145, s. 28.10(d); 2013-183, s. 3.3; 2015-241, s. 29.17D(b); 2017-57, s. 34.17(a); 2020-91, s. 4.11A.)

Editor's Note. - Session Laws 2013-183, s. 3.5, provides: "DOT Municipal Lane Mile Study. - The Department of Transportation shall collect lane mile data from each municipality eligible to receive funds under this section no later than December 1, 2013. The Department shall report to the Joint Legislative Transportation Oversight Committee no later than March 1, 2014, on at least three options to shift the distribution formula to include lane mile data. The report shall include advantages and disadvantages, fiscal impacts to each municipality, and any other technical considerations in making such a change. The Joint Legislative Transportation Oversight Committee and the Fiscal Research Division shall include in its recommendations to the 2014 Session of the 2013 General Assembly a new distribution formula, if the Committee finds that a new formula is beneficial and practical."

Session Laws 2013-183, s. 7.1(b), provided: "This act is effective only if the General Assembly appropriates funds in the Current Operations and Capital Improvements Appropriations Act of 2013 to implement this act." Session Laws 2013-360, s. 34.30, effective July 1, 2013, repealed Session Laws 2013-183, s. 7.1(b).

Session Laws 2015-241, s. 29.17D(c), provides: "For the 2015-2016 fiscal year, and notwithstanding any provision of G.S. 136-41.3 to the contrary, the Department of Transportation shall submit by November 1, 2015, the report required under G.S. 136-41.3(b), as amended by subsection (b) of this section, detailing the uses by each municipality of funds received under G.S. 136-41.1 and G.S. 136-41.2 during the preceding year."

Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2015-2017 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2015-2017 fiscal biennium."

Session Laws 2015-241, s. 33.6, is a severability clause.

Session Laws 2017-57, s. 34.17(c), made the amendment of subsection (a) and the addition of subsection (b1), as added by Session Laws 2017-57, s. 34.17(a), applicable to allocations on or after June 28, 2017.

Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium."

Session Laws 2017-57, s. 39.6, is a severability clause.

Effect of Amendments. - Session Laws 2011-145, s. 28.10(d), effective July 1, 2011, in the third paragraph, added the exception at the beginning of the second sentence, and added the last sentence.

Session Laws 2013-183, s. 3.3, effective July 1, 2013, designated the formerly undesignated paragraphs as subsections (a) through (e), and added subsection headings; and, in subsection (a), substituted "bikeways, greenways, or sidewalks" for "bikeways located within the rights-of-way of public streets and highways or for the planning, construction, and maintenance of sidewalks along public streets and highways."

Session Laws 2015-241, s. 29.17D(b), effective July 1, 2015, substituted "primarily for the resurfacing of streets within the corporate limits of the municipality but may also be used for the purposes" for "only for the purpose" in subsection (a); and added the last sentence in subsection (b).

Session Laws 2017-57, s. 34.17(a), effective June 28, 2017, in subsection (a), added "Except as otherwise provided in this subsection" in the beginning of the first sentence, added the last sentence, and made a stylistic change; and added subsection (b1). For applicability, see editor's note.

Session Laws 2020-91, s. 4.11A, effective July 1, 2020, in subsection (a), inserted "G.S. 136-41.1 and" in the first and last sentences, and added the next-to-last sentence.

§ 136-41.4. Municipal use of allocated funds; election.

1. A municipality that qualifies for an allocation of funds pursuant to G.S. 136-41.1 shall have the following options:
   1. Accept all or a portion of funds allocated to the municipality for use as authorized by G.S. 136-41.3(a).
   2. Use some or all of its allocation to match federal funds administered by the Department for independent bicycle and pedestrian improvement projects within the municipality's limits, or within the area of any metropolitan planning organization or rural transportation planning organization.
   3. Elect to have some or all of the allocation reprogrammed for any Transportation Improvement Project currently on the approved project list within the municipality's limits or within the area of any metropolitan planning organization or rural transportation planning organization.
2. If a municipality chooses to have its allocation reprogrammed, the amount that may be reprogrammed is an amount equal to that amount necessary to complete one full phase of the project selected by the municipality or an amount that, when added to the amount already programmed for the Transportation Improvement Project selected, would permit the completion of at least one full phase of the project. The restriction set forth in this subsection shall not apply to any bicycle or pedestrian projects.

History

(2007-428, s. 5; 2013-183, s. 3.4; 2013-360, s. 34.30.)

Editor's Note. - Session Laws 2013-183, s. 3.5, provides: "DOT Municipal Lane Mile Study. - The Department of Transportation shall collect lane mile data from each municipality eligible to receive funds under this section no later than December 1, 2013. The Department shall report to the Joint Legislative Transportation Oversight Committee no later than March 1, 2014, on at least three options to shift the distribution formula to include lane mile data. The report shall include advantages and disadvantages, fiscal impacts to each municipality, and any other technical considerations in making such a change. The Joint Legislative Transportation Oversight Committee and the Fiscal Research Division shall include in its recommendations to the 2014 Session of the 2013 General Assembly a new distribution formula, if the Committee finds that a new formula is beneficial and practical."

Effect of Amendments. - Session Laws 2013-183, s. 3.4, effective July 1, 2013, redesignated and rewrote the formerly undesignated paragraphs of this section as subsections (a) and (b).

§ 136-41.5. Annual report on use of Bicycle and Pedestrian Planning Grant funds.

The Division of Bicycle and Pedestrian Transportation of the Department of Transportation shall submit an annual report by May 15 on the progress of projects identified in plans (i) submitted to the Division over the 10-year period prior to the report and (ii) funded from Bicycle and Pedestrian Planning Grant funds. The Division shall submit the report required by this section to the chairs of the House of Representatives Appropriations Committee on Transportation, the chairs of the Senate Appropriations Committee on the Department of Transportation, and the Fiscal Research Division of the General Assembly.

History

(2017-57, s. 34.22.)

§ 136-42: Transferred to G.S. 136-42.2 by Session Laws 1971, c. 345, s. 2.

§ 136-42.1. Archaeological objects on highway right-of-way.

The Department of Transportation is authorized to expend highway funds for reconnaissance surveys, preliminary site examinations and salvage work necessary to retrieve and record data and the preservation of archaeological and paleontological objects of value which are located within the right-of-way acquired for highway construction. The Department of Natural and Cultural Resources shall be consulted when objects of scientific or historical significance might be anticipated or encountered in highway right-of-way and a determination made by that Department as to the national, State, or local importance of preserving any or all fossil relics, artifacts, monuments or buildings. The Department of Natural and Cultural Resources shall request advice from other agencies or institutions having special knowledge or skills that may not be available in the said Department for the determination of the presence of or for the evaluation and salvage of prehistoric archaeological or paleontological remains within the highway right-of-way. The Department of Transportation is authorized to contract with the Department of Natural and Cultural Resources and to provide funds necessary to perform reconnaissance surveys, preliminary site examination and salvage operation at those sites determined by the Department of Natural and Cultural Resources to be of sufficient importance to be preserved for the inspiration and benefit of the people of North Carolina. The Department of Natural and Cultural Resources is authorized to enter into contracts and to make arrangements to perform the necessary work pursuant to this section. The Department of Natural and Cultural Resources shall assume possession and responsibility for any and all historical objects and is authorized to enter into agreements with governmental units and agencies thereof, institutions, and charitable organizations for the preservation of any or all fossil relics, artifacts, monuments, or buildings.

History

(1971, c. 345, s. 1; 1973, c. 476, s. 48; c. 507, s. 5; 1977, c. 464, s. 7.1; 2015-241, s. 14.30(s).)

Editor's Note. - Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.6, is a severability clause.

Effect of Amendments. - Session Laws 2015-241, s. 14.30(s), effective July 1, 2015, substituted "Department of Natural and Cultural Resources" for "Department of Cultural Resources" throughout.

§ 136-42.2. Markers on highway; cooperation of Department of Transportation.

The Department of Transportation is hereby authorized to cooperate with the Department of Natural and Cultural Resources in marking historic spots along the State highways.

History

(1927, c. 226, s. 1; 1933, c. 172, s. 17; 1943, c. 237; 1957, c. 65, s. 11; 1971, c. 345, s. 2; 1973, c. 476, s. 48; c. 507, s. 5; 1977, c. 464, s. 7.1; 2015-241, s. 14.30(s).)

Editor's Note. - Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.6, is a severability clause.

Effect of Amendments. - Session Laws 2015-241, s. 14.30(s), effective July 1, 2015, substituted "Department of Natural and Cultural Resources" for "Department of Cultural Resources."

§ 136-42.3. Historical marker program.

The Department of Transportation may spend up to sixty thousand dollars ($60,000) a year to purchase historical markers prepared and delivered to it by the Department of Natural and Cultural Resources. The Department of Transportation shall erect the markers on sites selected by the Department of Natural and Cultural Resources. This expenditure is hereby declared to be a valid expenditure of State highway maintenance funds. No provision in this section shall be construed to prevent the expenditure of any federal highway funds that may be available for this purpose.

History

(1935, c. 197; 1943, c. 237; 1951, c. 766; 1955, c. 543, s. 2; 1957, c. 65, s. 11; 1971, c. 345, s. 2; 1973, c. 476, s. 48; c. 507, s. 5; 1977, c. 464, s. 7.1; 1983 (Reg. Sess., 1984), c. 1034, s. 129; 2015-241, s. 14.30(s); 2016-94, s. 35.4.)

Local Modification. - Town of Lillington: 2002-47, s. 1.

Editor's Note. - Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.6, is a severability clause.

Effect of Amendments. - Session Laws 2015-241, s. 14.30(s), effective July 1, 2015, substituted "Department of Natural and Cultural Resources" for "Department of Cultural Resources" in the first and second sentences.

Session Laws 2016-94, s. 35.4, effective July 1, 2016, substituted "sixty thousand dollars ($60,000)" for "forty thousand dollars ($40,000)" near the beginning of the section.

Opinions of Attorney General

Funds for Historical Markers Not to Be Used for Other Purchases. - See opinion of Attorney General to Mr. George S. Willoughby, Jr., State Highway Commission (now Department of Transportation), 41 N.C.A.G. 241 (1971).

§ 136-43: Transferred to G.S. 136-42.3 by Session Laws 1971, c. 345, s. 2.

§ 136-43.1. Procedure for correction and relocation of historical markers.

Any person, firm or corporation who has knowledge or information, supported by historical data, books, records, writings, or other evidence, that any historical marker has been erected at an erroneous or mistaken site, or that the inscription appearing on any historical marker contains erroneous or mistaken information, shall have the privilege of presenting such knowledge or information and supporting evidence to the advisory committee described in the preamble of Public Laws 1935, c. 197 for its consideration. Upon being informed that any person desires to present such information, the Secretary of Natural and Cultural Resources shall notify such person of the date, place and time of the next meeting of the advisory committee. Any person, firm or corporation desiring to present such information to the advisory committee shall be allowed to appear before the committee for that purpose.

If, after considering the information and evidence presented, the advisory committee should find that any historical marker has been erected on an erroneous or mistaken site, or that erroneous or mistaken information is contained in the inscription appearing on any historical marker, it shall so inform the Department of Natural and Cultural Resources and the Department of Natural and Cultural Resources shall cause such marker to be relocated at the correct site, or shall cause the erroneous or mistaken inscription to be corrected, or both as the case may be.

History

(1961, c. 267; 1973, c. 476, s. 48; 2015-241, ss. 14.30(s), (t).)

Editor's Note. - Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.6, is a severability clause.

Effect of Amendments. - Session Laws 2015-241, s. 14.30(s), effective July 1, 2015, substituted "Department of Natural and Cultural Resources" for "Department of Cultural Resources" two times in the last paragraph.

Session Laws 2015-241, s. 14.30(t), effective July 1, 2015, substituted "Secretary of Natural and Cultural Resources" for "Secretary of Cultural Resources" in the second sentence of the first paragraph.

§ 136-44. Maintenance of grounds.

The Department of Transportation is hereby authorized and directed through the highway supervisor of the district that includes Warren County to clean off and keep clean the premises and grounds at the old home of Nathaniel Macon, known as "Buck Springs," which are owned by the County of Warren, and also to look after the care and keeping the grounds surrounding the grave of Miss Anne Carter Lee, daughter of General Robert E. Lee, in Warren County.

The Department of Transportation is authorized and directed through the highway supervisor of the district that includes Pender County to maintain the grounds surrounding the grave of Governor Samuel Ashe in Pender County.

History

(1939, c. 38; 1957, c. 65, s. 11; 1973, c. 507, s. 5; 1977, c. 464, s. 7.1; 2001-487, s. 125.1.)

§ 136-44.1. Statewide transportation system; policies.

The Department of Transportation shall develop and maintain a statewide system of roads, highways, and other transportation systems commensurate with the needs of the State as a whole and it shall not sacrifice the general statewide interest to the purely local desires of any particular area. The Board of Transportation shall formulate general policies and plans for a statewide transportation system. The Board shall formulate policies governing the construction, improvement and maintenance of roads, highways, and other transportation systems of the State with due regard to farm-to-market roads and school bus routes.

History

(1973, c. 507, s. 3; 1975, c. 716, s. 7; 2009-266, s. 18.)

Local Modification. - Village of Bald Head Island: 1997-324, s. 1.

Effect of Amendments. - Session Laws 2009-266, s. 18, effective August 1, 2009, in the section catchline, substituted "transportation" for "road"; in the first and last sentences, substituted "roads, highways, and other transportation systems" for "roads and highways"; and, in the second sentence, substituted "transportation system" for "system of highways" at the end.

Legal Periodicals. - For survey of 1980 administrative law, see 59 N.C.L. Rev. 1026 (1981).

§ 136-44.2. Budget and appropriations.

1. The Director of the Budget shall include in the "Current Operations Appropriations Act" an enumeration of the purposes or objects of the proposed expenditures for each of the maintenance and improvement programs for that budget period for the State primary, secondary, State parks road systems, and other transportation systems. The State primary system shall include all portions of the State highway system located both inside and outside municipal corporate limits that are designated by N.C. U.S. or Interstate numbers. The State secondary system shall include all of the State highway system located both inside and outside municipal corporate limits that is not a part of the State primary system. The State parks system shall include all State parks roads and parking lots that are not also part of the State highway system. The transportation systems shall also include State-maintained, nonhighway modes of transportation.
2. All maintenance and improvement programs for which appropriations are requested shall be enumerated separately in the budget. Programs that are entirely State funded shall be listed separately from those programs involving the use of federal-aid funds. Proposed State matching funds for the highway planning and research program shall be included separately along with the anticipated federal-aid funds for that purpose.
3. Other program categories for which appropriations are requested, such as, but not limited to, maintenance, channelization and traffic control, bridge maintenance, public service and access road construction, transportation projects and systems, and ferry operations shall be enumerated in the budget.
4. The Department of Transportation shall have all powers necessary to comply fully with provisions of present and future federal-aid acts. For purposes of this section, "federally eligible construction project" means any construction project except secondary road projects developed pursuant to G.S. 136-44.8 eligible for federal funds under any federal-aid act, whether or not federal funds are actually available.
5. The "Current Operations Appropriations Act" shall also contain the proposed appropriations of State funds for use in each Highway Division for maintenance and improvement of secondary roads, to be allocated in accordance with G.S. 136-44.6. State funds appropriated for secondary roads shall not be transferred nor used except for the construction, maintenance, and improvement of secondary roads in the county for which they are allocated pursuant to G.S. 136-44.6.
6. If the unreserved credit balance in the Highway Fund on the last day of a fiscal year is greater than the amount estimated for that date in the Current Operations Appropriations Act for the following fiscal year, the excess shall be used in accordance with this subsection. The Director of the Budget shall allocate the excess to a reserve (i) for access and public roads or (ii) for other urgent road construction or road maintenance needs. The use of this reserve shall be subject to the following:
   1. Restrictions on use. - No more than five million dollars ($5,000,000) from this reserve may be spent on a single project. Funds from this reserve being used for an "other urgent road construction or road maintenance need" project cannot be used for nontransportation administrative costs, nontransportation information technology costs, or any economic development purpose.
   2. Approval. - The Department of Transportation shall submit for approval to the Director of the Budget all expenditures from the reserve established under this subsection.
   3. Reporting. - At least five days, not including State holidays or weekend days, prior to submitting an expenditure request to the Director of the Budget under subdivision (2) of this subsection, the Department of Transportation shall submit a report on the expenditure request to the Fiscal Research Division and to the members of the House Appropriations Subcommittee on Transportation and the Senate Appropriations Committee on Department of Transportation. Such report shall be certified by the chief financial officer of the Department of Transportation and shall include (i) a project description, (ii) whether the project is for access and public roads or for other urgent needs, (iii) a justification of the project, (iv) the total project cost, (v) the amount of funding for the project coming from the reserve, and (vi) other funding sources for the project.
   4. Carryforward. - If on the last day of the fiscal year the balance in the reserve established by this subsection is greater than five million dollars ($5,000,000), then the Director of the Budget shall transfer the amount in excess of that sum to the Reserve for General Maintenance in the Highway Fund.
7. The credit reserve for the Highway Fund consists of the following:
   1. The unreserved credit balance in the Highway Fund on the last day of the fiscal year to the extent the balances exceed the amount estimated for that date in the Current Operations Appropriations Act for the following fiscal year.
   2. The unallotted and unencumbered balances on the last day of the fiscal year for the following:
      1. Funds appropriated from the Highway Fund for the multimodal programs of the Department, consisting of funds for bicycle and pedestrian, ferry, railroad, aviation, and public transportation programs, excluding funds deposited in the Freight Rail & Rail Crossing Safety Improvement Fund.
      2. Funds appropriated from the Highway Fund for the construction programs of the Department, consisting of funds for secondary construction, access and public service roads, spot safety improvement, small urban construction, and economic development programs.
   3. The unencumbered and unexpended balances on the last day of the fiscal year for the following:
      1. Central and program administration.
      2. Transfers to other State agencies or departments not used or returned.
   4. The remaining balance for (i) any open project that has been inactive for two or more years after construction of the project has been completed or (ii) any project that is not obligated during the first two fiscal years in which funds are appropriated.
8. The Department of Transportation may provide for costs incurred or accrued for traffic control measures to be taken by the Department at major events which involve a high degree of traffic concentration on State highways, and which cannot be funded from regular budgeted items. This authorization applies only to events which are expected to generate 30,000 vehicles or more per day. The Department of Transportation shall provide for this funding by allocating and reserving up to one hundred thousand dollars ($100,000) before any other allocations from the appropriations for State maintenance for primary and secondary road systems are made, based upon the same proportion as is appropriated to each system.

History

(1973, c. 507, s. 3; 1977, c. 464, s. 7.1; 1981, c. 859, s. 84; 1983, c. 717, ss. 46, 47; 1987, c. 830, s. 113(b); 1989, c. 799, s. 12(a); 1991 (Reg. Sess., 1992), c. 907, s. 2; c. 1044, s. 35; 1997-443, s. 32.5; 2005-276, s. 28.1; 2005-382, s. 1; 2009-266, s. 19; 2011-145, s. 28.35(b); 2012-142, s. 24.6; 2013-125, s. 1; 2013-183, s. 2.2(a), (b); 2014-100, s. 34.19(a); 2016-94, s. 35.24(d); 2018-97, s. 7.1(a).)

Editor's Note. - Session Laws 2014-100, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2014.'"

Session Laws 2014-100, s. 38.7, is a severability clause.

Effect of Amendments. - Session Laws 2013-125, s. 1, effective July 1, 2014, inserted "road construction or road maintenance" in the second sentence of subsection (f); and, in subdivision (f)(1), inserted "road construction or road maintenance" and substituted "nontransportation administrative costs, nontransportation information technology costs, or any development purpose" for "administrative costs, information technology costs, or economic development."

Session Laws 2013-183, s. 2.2.(b), effective July 1, 2014, deleted "construction" preceding "maintenance" in subsections (a), (b), and twice in subsection (e); in subsection (b), deleted the third sentence and made a minor stylistic change to the present third sentence; deleted "136-44.7 and" preceding "136-44.8" in subsection (d); deleted "136-44.5 and" preceding "136-44.6" twice in subsection (e); and substituted "primary and secondary" for "primary, secondary, and urban" in subsection (g).

Session Laws 2014-100, s. 34.19(a), effective July 1, 2014, added subsection (f1).

Session Laws 2016-94, s. 35.24(d), effective July 1, 2016, substituted "Highway Division" for "county" following "for use in each" in subsection (e).

Session Laws 2018-97, s. 7.1(a), effective June 30, 2018, deleted "contingency," following "spot safety improvement," in subdivision (f1)(2)b.

§ 136-44.2A: Repealed by Session Laws 2013, c. 183, s. 2.3(b), effective July 1, 2014.

History

(1981, c. 690, s. 6; 1989, c. 692, s. 1.7; 2005-404, s. 1; 2006-258, s. 1; 2013-183, s. 2.3(a); repealed by 2013-183, s. 2.3(b), effective July 1, 2014.)

Editor's Notes. - The section originally codified as G.S. 136-44.2A was recodified by Session Laws 1981, c. 690, s. 5, as G.S. 136-44.2B.

Former G.S. 136-44.2A pertained to secondary road improvement program.

§ 136-44.2B. Reports to appropriations committees of General Assembly.

In each year that an appropriation bill is considered by the General Assembly, the Department of Transportation shall make a report to the appropriations committee of each House on all services provided by the Department to the public for which a fee is charged. The report shall include an analysis of the cost of each service and the fee charged for that service.

History

(1975, c. 875, s. 8; 1981, c. 690, s. 5.)

Editor's Note. - This section was originally codified as G.S. 136-44.2A. It was recodified as G.S. 136-44.2B by Session Laws 1981, c. 690, s. 5.

§ 136-44.2C: Repealed by Session Laws 2013-183, s. 2.4, effective July 1, 2013.

History

(1991, c. 689, s. 210.1; 2009-266, s. 20; repealed by 2013-183, s. 2.4, effective July 1, 2013.)

Editor's Note. - Former G.S. 136-44.2C pertained to special appropriations for State construction.

§ 136-44.2D. Secondary unpaved road paving program.

The Department of Transportation shall expend fifty percent (50%) of the funds allocated to the paving of unpaved secondary roads for the paving of unpaved secondary roads based on a statewide prioritization. The Department shall expend the remainder of the funds equally among the 14 Highway Divisions for the paving of unpaved secondary roads within each Highway Division based on the same statewide prioritization. The Department shall pave the eligible unpaved secondary roads that receive the highest priority ranking within this statewide prioritization. Nothing in this subsection shall be interpreted to require the Department to pave any unpaved secondary roads that do not meet secondary road system addition standards as set forth in G.S. 136-44.10 and G.S. 136-102.6. The Highway Trust Fund shall not be used to fund the paving of unpaved secondary roads.

History

(2013-183, s. 2.5; 2016-94, s. 35.7(a).)

Editor's Note. - This section, as enacted by Session Laws 2013-183, s. 2.5, had a subsection "(a)" designation. The designation has been removed at the direction of the Revisor of Statutes.

Session Laws 2013-183, s. 2.6(d), provided: "Secondary Road Funding. - The sum of fifteen million dollars ($15,000,000) in nonrecurring funds for the 2013-2014 fiscal year is allocated from the Highway Fund for the secondary road construction program under G.S. 136-44.2A, as enacted by Section 2.3 of this act, and the sum of twelve million dollars ($12,000,000) in recurring funds for the 2013-2014 fiscal year is allocated from the Highway Fund for the paving of unpaved roads pursuant to G.S. 136-44.2D, as enacted by Section 2.5 of this act."

Session Laws 2013-183, s. 7.1(b), provided: "This act is effective only if the General Assembly appropriates funds in the Current Operations and Capital Improvements Appropriations Act of 2013 to implement this act." Session Laws 2013-360, s. 34.30, effective July 1, 2013, repealed Session Laws 2013-183, s. 7.1(b).

Session Laws 2016-94, s. 35.7(b), made the amendment to this section by Session Laws 2016-94, s. 35.7(a), effective July 1, 2016, and applicable to funds allocated on or after that date.

Session Laws 2016-94, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2016.'"

Session Laws 2016-94, s. 39.7, is a severability clause.

Effect of Amendments. - Session Laws 2016-94, s. 35.7(a), effective July 1, 2016, in the section, inserted "fifty percent (50%) of the" in the first sentence and added the second sentence. For applicability, see Editor's note.

§ 136-44.2E. Transportation Emergency Reserve.

1. Creation. - The Transportation Emergency Reserve (Emergency Reserve) is established as a special fund in the Department of Transportation.
2. Funding; Use of Funds. - Subject to subsection (d) of this section, no later than July 30 of each fiscal year, the Department of Transportation shall transfer from the Highway Fund to the Emergency Reserve the sum of one hundred twenty-five million dollars ($125,000,000), and these funds are hereby appropriated for expenses related to an emergency. For purposes of this section, the term "emergency" has the same meaning as in G.S. 166A-19.3.
3. Access to Funds. - The Department may only use funds in the Emergency Reserve after the President of the United States issues a declaration under the Stafford Act (42 U.S.C. §§ 5121 - 5207) that a major disaster exists in the State. The Secretary of Transportation shall ensure all funds in the Emergency Reserve are accessed and used pursuant to this section, and in a manner that ensures to the extent practicable that the funds are eligible for federal reimbursement or cost sharing with the federal funds.
4. Limitation on Funds. - The total funds in the Emergency Reserve shall not exceed the sum of one hundred twenty-five million dollars ($125,000,000). If a transfer under subsection (b) of this section would cause the Emergency Reserve to exceed this limitation, the amount transferred shall equal the difference between one hundred twenty-five million dollars ($125,000,000) and the amount of funds in the Emergency Reserve on the transfer date set forth in subsection (b) of this section.
5. Evaluation of Emergency Reserve. - No later than February 1 of the first year of the 2021-2023 fiscal biennium, and biennially thereafter, the Department of Transportation shall submit a report on the Emergency Reserve to the House of Representatives Appropriations Committee on Transportation, the Senate Appropriations Committee on the Department of Transportation, and the Fiscal Research Division. The report shall contain the results of an evaluation of the Emergency Reserve, based on a methodology developed jointly by the Office of State Budget and Management and the Department of Transportation, to determine the minimum amount of funds needed in the Emergency Reserve.
6. Notification of Governor; Reimbursement. - The Secretary shall notify the Governor within 24 hours of determining that anticipated emergency expenses by the Department under this section will exceed the funds in the Emergency Reserve. Upon notification, the Governor shall immediately proceed under G.S. 166A-19.20(e). Federal reimbursements for funds expended in relation to a major disaster, declared in accord with subsection (c) of this section, shall be used to reimburse expenditures from the following accounts in order of priority:
   1. Emergency Reserve, subject to the limitation in subsection (d) of this section.
   2. Reserve for General Maintenance in the Highway Fund.
   3. Savings Reserve.

History

(2019-251, s. 1.3(b); 2020-69, s. 5; 2020-91, s. 4.7(a), (b).)

Editor's Note. - Session Laws 2019-251, s. 1.3(f) made this section effective November 18, 2019.

Session Laws 2019-251, s. 1.3(a), provides: "Legislative Intent. - It is the intent of the General Assembly that the Transportation Emergency Reserve shall only be used for major disasters and not for snow and ice removal or non-declared emergency operations."

Session Laws 2019-251, s. 1.3(d), provides: "No later than 30 days from the effective date of this section [November 18, 2019], the State Controller shall transfer from the unreserved balance in the General Fund to the Emergency Reserve the sum of sixty-four million dollars ($64,000,000)."

Session Laws 2019-251, s. 1.3(e), provides: "Revise Department of Transportation Base Budget. - The Department of Transportation, in consultation with the Office of State Budget and Management, shall revise the Department base budget to increase the amount of funds available for snow and ice removal and emergency expenditures."

Session Laws 2020-3, s. 4.9, provides: "Notwithstanding G.S. 136-44.2E, as enacted by S.L. 2019-251, for the fiscal year 2020-2021, the Department of Transportation shall not transfer funds to the Transportation Emergency Reserve."

Session Laws 2020-3, s. 5, is a severability clause.

Effect of Amendments. - Session Laws 2020-69, s. 5, effective July 1, 2020, deleted "the" preceding "Transportation" in the first sentence of subsection (e).

Session Laws 2020-91, s. 4.7(a), (b), effective July 1, 2020, added "and in a manner that ensures to the extent practicable that the funds are eligible for federal reimbursement or cost sharing with the federal funds" at the end of the last sentence in subsection (c); and added subsection (f).

§ 136-44.3. Report on the condition of the State highway system and maintenance funding needs.

The Department shall establish performance standards for the maintenance and operation of the State highway system. In each even-numbered year, the Department of Transportation shall survey the condition of the State highway system and shall prepare a report of the findings of the survey. The report shall provide both quantitative and qualitative descriptions of the condition of the system and shall provide estimates of the following:

1. The annual cost to meet and sustain the established performance standards for the State highway system, delineated by costs to the primary or secondary system, to include the following categories of work: (i) contract resurfacing, (ii) pavement preservation, (iii) routine highway maintenance, (iv) disasters and emergencies, (v) structurally sound bridge maintenance, and (vi) structurally unsound bridge rehabilitation, repair, or replacement.
2. Projected system condition and corresponding optimal funding requirements for a seven-year plan to sustain established performance standards. The report shall also identify target levels of service for each maintenance activity and assess historical program performance across divisions, including project delivery rates, staffing, and direct and indirect costs. The Department shall clearly denote prioritized maintenance needs and recommended resource allocations and distribution methods to achieve each target.
3. Any significant variations in system conditions among highway divisions. The report shall include an examination of how well the highway divisions streamline project delivery, maximize efficiency, and prioritize spending based on needs and make recommendations on ways to improve these processes. The report shall analyze the cost of delivering maintenance activities by division and make recommendations on how to reduce these costs regionally and statewide.
4. An assessment of the level of congestion throughout the primary highway system based on traffic data, and a ranking of the most congested areas based on travel time reliability and the average number of congested hours, together with the Department's recommendations for congestion reduction and mobility improvement.
5. An analysis of existing highway division staffing levels and recommendations to ensure staffing levels are distributed appropriately based on need.
6. A cross-divisional comparison summary document, not to exceed one page in length, which includes the divisional performance data described in subdivision (2) of this section as well as the most deficient roads and bridges in each division.

The report on the condition of the State highway system and maintenance funding needs shall be presented to the Joint Legislative Transportation Oversight Committee by December 31 of each even-numbered year, and copies shall be made available to any member of the General Assembly upon request.

History

(1973, c. 507, s. 3; 1975, c. 716, s. 7; 1977, c. 464, s. 39; 1997-443, s. 32.19; 2007-164, s. 1; 2013-360, s. 34.8; 2014-100, s. 34.11(c).)

Editor's Note. - Session Laws 2014-100, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2014.'"

Session Laws 2014-100, s. 38.7, is a severability clause.

Effect of Amendments. - Session Laws 2007-164, s. 1, effective July 1, 2007, rewrote the section.

Session Laws 2013-360, s. 34.8, effective July 1, 2013, added subdivisions (3) and (4).

Session Laws 2014-100, s. 34.11(c), effective July 1, 2014, substituted the present section heading for the former which read: "Maintenance program" and rewrote the section.

§ 136-44.3A. Highway Maintenance Improvement Program.

1. Definitions. - The following definitions apply in this Article:
   1. Cape seal treatment. - A chip seal treatment followed by a slurry seal treatment.
   2. Chip seal treatment. - A type of pavement preservation treatment applied to existing asphalt pavement. The treatment involves spraying an asphalt emulsion onto the roadway, applying a layer of aggregate chips, and rolling the chips into the emulsion. This term includes single, double, and triple chip seal treatments.
   3. Highway Maintenance Improvement Program. - The schedule of State highway maintenance projects required under G.S. 143B-350(f)(4a).
   4. Highway Maintenance Improvement Program Needs Assessment. - A report of the amount of funds needed, the number of affected lane miles, and the percentage of the primary and secondary system roads that are rated to need a resurfacing or pavement preservation treatment within the Highway Maintenance Improvement Program's five-year time period but are not programmed due to funding constraints.
   5. Microsurfacing treatment. - A type of pavement preservation treatment that involves mixing fine aggregate, asphalt emulsion, minerals, water, and a polymer additive, and applying the mixture to the roadway.
   6. Pavement preservation treatment. - Includes full-width surface treatments used to extend or renew the pavement life.
   7. Rehabilitation. - A contract resurfacing maintenance program that involves applying multiple layers of pavement that exceed two inches.
   8. Resurfacing. - A contract resurfacing program that involves applying one layer that does not exceed two inches of pavement.
   9. Slurry seal treatment. - A type of pavement preservation treatment that involves mixing fine aggregate, asphalt emulsion, minerals, and water, and applying the mixture to the roadway.
2. Road Quality Improvement of Pavement Preservation Treatments. - It is the intent of the General Assembly that (i) the Department use asphalt pavement preservation treatments that are high-quality, long-lasting, and provide a smooth road surface and (ii) the Department increase its contractual use of pavement preservation treatments.
3. Highway Maintenance Improvement Program. - After the annual inspection of roads within the State highway system, each highway division shall determine and report to the Chief Engineer on (i) the need for rehabilitation, resurfacing, or pavement preservation treatments, (ii) the need for bridge and general maintenance, and (iii) projected changes to the condition of pavement on primary and secondary roads for each year over a five-year period. The Chief Engineer shall establish a five-year priority list for each highway division based on the Chief Engineer's estimate of need. In addition, the Chief Engineer shall establish a five-year improvement schedule, sorted by county, for rehabilitation, resurfacing, and pavement preservation treatment activities. The schedule shall be based on the amount of funds appropriated to the contract resurfacing program and the pavement preservation program in the fiscal year preceding the issuance of the Highway Maintenance Improvement Program for all five years of the Highway Maintenance Improvement Program. State funding for the Highway Maintenance Improvement Program shall be limited to funds appropriated from the State Highway Fund.
4. Repealed by Session Laws 2015-241, s. 29.17C(b), effective July 1, 2015.
5. Restriction and Encumbrance Schedule. - Notwithstanding any other provision of law, funds appropriated for the contract maintenance resurfacing program may not be transferred to another account to be used for another purpose. Beginning in the 2015-2016 fiscal year, the Department of Transportation shall spend or encumber all funds appropriated for the contract maintenance resurfacing program by June 30 of the fiscal year in which the funds were appropriated.
6. Single Chip Seal Treatment Prohibited on Access Routes. - Except as authorized in subsection (f) of this section, and unless used in combination with a slurry seal, microsurfacing, or resurfacing treatment, the Department shall not use single chip seal treatment on access routes for Surface Transportation Assistance Act Dimensioned Vehicles.
7. Authorized Use of Single Chip Seal Treatment on Secondary Roads. The Department may use single chip seal treatments on secondary roads only under any of the following conditions:
   1. The secondary road has a daily traffic volume of less than 15,000 vehicles. Single chip treatments used under this subdivision shall be capped with a final riding surface of sand or material of equivalent size to fill voids to create a smooth riding surface.
   2. The single chip seal treatment is used in combination with a slurry seal, microsurfacing, or resurfacing treatment.
   3. The condition of the secondary road requires a rough surface to improve traction, such as a secondary road in a mountainous community or another area with low skid resistance.
8. Chip Seal Treatment Prohibited on Subdivision Streets. Unless used in combination with a fog seal, the Department shall not use chip seal treatment on subdivision streets.
9. Report. - The Department shall submit the Highway Maintenance Improvement Program and Highway Maintenance Improvement Program Needs Assessment to the General Assembly by April 1 of each year. If the General Assembly is in session, the Department shall report to the House of Representatives Appropriations Subcommittee on Transportation, the Senate Appropriations Committee on Transportation, and the Fiscal Research Division. If the General Assembly is not in session, the Department shall report to the Joint Legislative Transportation Oversight Committee and the Fiscal Research Division.

History

(2014-100, s. 34.11(b); 2015-241, s. 29.17C(b); 2016-94, s. 35.23; 2017-57, s. 34.11(a), (b).)

Editor's Note. - Session Laws 2014-100, s. 38.8, made this section effective July 1, 2014.

Session Laws 2014-100, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2014.'"

Session Laws 2014-100, s. 38.7, is a severability clause.

Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.6, is a severability clause.

Session Laws 2016-94, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2016.'"

Session Laws 2016-94, s. 39.7, is a severability clause.

Session Law 2017-57, s. 34.11(d), made the amendment to subdivision (a)(4) and to subsection (c) of the section by Session Laws 2017-57, s. 34.11(a), effective July 1, 2017, and applicable to priority lists and improvement schedules submitted on or after that date.

Session Law 2017-57, s. 34.11(d), made the amendment to subsection (c) of the section by Session Laws 2017-57, s. 34.11(b), effective January 1, 2020, and applicable beginning with the report due April 1, 2020.

Session Laws 2017-57, s. 34.11(c), provides: "(c) By January 1, 2020, and for the purpose of forming a consolidated report of all maintenance activities, the Department of Transportation shall merge the Bridge Maintenance Improvement Program and the General Maintenance Improvement Program into the Highway Maintenance Improvement Program established under G.S. 136-44.3A."

Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium."

Session Laws 2017-57, s. 39.6, is a severability clause.

Effect of Amendments. - Session Laws 2015-241, s. 29.17C(b), effective July 1, 2015, deleted former subsection (d), which related to contract maintenance resurfacing program letting schedule; and added subsection (d1).

Session Laws 2016-94, s. 35.23, effective July 1, 2016, deleted "subdivision streets" preceding "access routes" twice and made related changes in subsection (e); and added subsection (f1).

Session Laws 2017-57, s. 34.11(a), substituted "five-year" for "three year" in subdivision (a)(4); and, in subsection (c), substituted "five-year" or variants for "three-year" or variants wherever it appeared. For effective date and applicability, see editor's note.

Session Laws 2017-57, s. 34.11(b), rewrote the first sentence in subsection (c), which read: "Highway Maintenance Improvement Program. - After the annual inspection of roads within the State highway system, each highway division shall determine and report to the Chief Engineer on the need for rehabilitation, resurfacing, or pavement preservation treatments." For effective date and applicability, see editor's note.

§ 136-44.4: Repealed by Session Laws 2018-74, s. 5, effective July 1, 2018.

History

(1973, c. 507, s. 3; 1975, c. 716, s. 7; 1977, c. 464, s. 40; 2009-266, s. 21; repealed by 2018-74, s. 5, effective July 1, 2018.)

Editor's Note. - Former G.S. 136-44.4 pertained to annual construction program state primary and urban systems.

Effect of Amendments. - Session Laws 2009-266, s. 21, effective August 1, 2009, inserted "other" preceding "federal-aid construction programs" in the first sentence, and added the sixth sentence.

§ 136-44.5: Repealed by Session Laws 2013, c. 183, s. 2.6(b), effective July 1, 2014.

History

(1973, c. 507, s. 3; 1975, c. 716, s. 7; 1989, c. 692, s. 1.8; 2005-404, s. 2; 2006-258, ss. 1, 2; 2013-183, s. 2.6(a); repealed by 2013-183, s. 2.6(b), effective July 1, 2014.)

Editor's Note. - Former G.S. 136-44.5 pertained to secondary roads, mileage study, and allocation of funds.

§ 136-44.6. Uniformly applicable formula for the allocation of funds for primary and secondary road maintenance.

The Department of Transportation, in consultation with its Division Engineers, shall develop biennially a uniformly applicable formula for the allocation of funds in the Highway Fund for maintenance on primary and secondary roads in each Highway Division. The formula shall take into consideration the number of paved and unpaved miles of state-maintained secondary roads in each Highway Division and such other factors as experience may dictate. In developing the allocation formula, the Department of Transportation shall allocate funding to Highway Divisions and create a plan of action to reallocate funds among Highway Divisions based upon expenditures of the first three quarters. Each Division Engineer shall have discretion in using funds allocated under this section to his or her Highway Division for maintenance activities. Allotments shall be made available to Highway Divisions on a quarterly basis, based upon the Spend Plan developed by the Department. The Department shall create a plan for reallocation to maximize use of funds with the fiscal year. This section shall not apply to projects to pave unpaved roads under G.S. 136-44.2D.

History

(1973, c. 507, s. 3; 1975, c. 716, s. 7; c. 753; 2013-183, s. 2.6(c); 2016-94, s. 35.24(c); 2020-91, s. 5.10.)

Editor's Note. - The words "and improvement" have been added to the section heading at the direction of the Revisor of Statutes. However, the 2016 amendment removed this addition.

Effect of Amendments. - Session Laws 2013-183, s. 2.6.(c), effective July 1, 2013, inserted "and improvement" in the first sentence, and added the last sentence.

Session Laws 2016-94, s. 35.24(c), effective July 1, 2016, rewrote the section, which formerly read "The Department of Transportation shall develop a uniformly applicable formula for the allocation of secondary roads maintenance and improvement funds for use in each county. The formula shall take into consideration the number of paved and unpaved miles of state-maintained secondary roads in each county and such other factors as experience may dictate. This section shall not apply to projects to pave unpaved roads under G.S. 136-44.2D."

Session Laws 2020-91, s. 5.10, effective July 1, 2020, in the first sentence, inserted "biennially" and deleted "from the Reserve for General Maintenance" following "of funds," and added the third and fifth sentences.

§ 136-44.7. Secondary roads; right-of-way acquisition.

1. , (b) Repealed by Session Laws 2013-183, s. 2.7, effective July 1, 2013.
2. When it is necessary for the Department of Transportation to acquire a right-of-way in order to pave a secondary road or undertake a maintenance project, the Department shall negotiate the acquisition of the right-of-way for a period of up to six months. At the end of that period, if one or more property owners have not dedicated the necessary right-of-way and at least seventy-five percent (75%) of the property owners adjacent to the project and the owners of the majority of the road frontage adjacent to the project have dedicated the necessary property for the right-of-way and have provided funds required by Department rule to the Department to cover the costs of condemning the remaining property, the Department shall initiate condemnation proceedings pursuant to Article 9 of this Chapter to acquire the remaining property necessary for the project.
3. The Division Engineer is authorized to reduce the width of a right-of-way to less than 60 feet to pave an unpaved secondary road with the allocated funds, provided that in all circumstances the safety of the public is not compromised and the minimum accepted design practice is satisfied.

History

(1973, c. 507, s. 3; 1975, c. 716, s. 7; 1977, c. 464, s. 8; 1989, c. 692, s. 1.9; 1991 (Reg. Sess., 1992), c. 900, s. 99; 2001-501, s. 2; 2002-86, s. 1; 2013-183, s. 2.7.)

Small Construction and Contingency Funds. - Session Laws 2011-145, s. 28.6, provides: "Of the funds appropriated in this act to the Department of Transportation:

"(1) Seven million dollars ($7,000,000) shall be allocated in each fiscal year for small construction projects recommended by the State Highway Administrator in consultation with the Chief Operating Officer and approved by the Secretary of the Department of Transportation. These funds shall be allocated equally in each fiscal year of the biennium among the 14 Highway Divisions for small construction projects.

"(2) Twelve million dollars ($12,000,000) shall be allocated statewide in each fiscal year for rural or small urban highway improvements and related transportation enhancements to public roads and public facilities, industrial access roads, and spot safety projects, including pedestrian walkways that enhance highway safety. Projects funded pursuant to this subdivision shall be approved by the Secretary of Transportation.

"None of these funds used for rural secondary road construction are subject to the county allocation formulas in G.S. 136-44.5(b) and (c) (now repealed).

"These funds are not subject to G.S. 136-44.7.

"The Department of Transportation shall report to the members of the General Assembly on projects funded pursuant to this section in each member's district prior to construction. The Department shall make a quarterly comprehensive report on the use of these funds to the Joint Legislative Transportation Oversight Committee and the Fiscal Research Division."

For prior similar provisions, see Session Laws 2007-323, s. 27.5, and Session Laws 2009-451, s. 25.3.

Editor's Note. - Session Laws 2011-145, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2011.'"

Session Laws 2011-145, s. 32.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2011-2013 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2011-2013 fiscal biennium."

Session Laws 2011-145, s. 32.5, is a severability clause.

Session Laws 2012-142, s. 24.12, provides: "Notwithstanding any other provision of law and not including the funds appropriated in Section 28.6(2) of S.L. 2011-145 for the 2011-2013 fiscal biennium, the sum of twenty-two million dollars ($22,000,000) is transferred from the unexpended balance of contingency fund appropriations to the Highway Fund. That sum is appropriated and allocated as shown in this act."

Session Laws 2012-142, s. 1.2, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2012.'"

Session Laws 2012-142, s. 27.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2012-2013 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2012-2013 fiscal year."

Session Laws 2012-142, s. 27.7, is a severability clause.

Effect of Amendments. - Session Laws 2013-183, s. 2.7, effective July 1, 2013, substituted "right-of-way acquisition" for "annual work program" in the section heading; deleted subsections (a) and (b); deleted "in accordance with (a) and (b) of this section" following "a right-of way" in subsection (c); and added subsection (d).

§ 136-44.7A. Submission of secondary roads construction programs to State agencies.

When the Department of Transportation proposes to pave an unpaved secondary road that crosses land controlled by a State agency, the Department of Transportation shall obtain the approval of that State agency before paving that secondary road.

History

(1996, 2nd Ex. Sess., c. 18, s. 19.7.)

§ 136-44.7B. Permit issuance by Department of Environmental Quality transportation construction projects.

Once the Department of Environmental Quality or any agency within the Department of Environmental Quality has issued a permit that is required for a transportation construction project to be undertaken by or on behalf of the Department of Transportation pursuant to the Transportation Improvement Program, that permit shall remain in effect until the project is completed. The permit shall not expire and shall not be modified or canceled for any reason, including a subsequent change in federal law or regulations or in State law or rules, unless at least one of the following occurs:

1. The modification or cancellation is requested by the Department of Transportation.
2. The modification or cancellation is clearly required by a change in federal law or regulations and a failure to modify or cancel the permit by the Department of Environmental Quality will or may result in a loss of federal program delegation or a significant reduction in the availability of federal funds to the Department of Environmental Quality or to the Department of Transportation.
3. The modification or cancellation is clearly required by a change in State law as a result of an act of the General Assembly that includes a statement that the General Assembly specifically intends the change in State law to apply to ongoing transportation construction projects.
4. The modification or cancellation is ordered by a court of competent jurisdiction.
5. The nature or scope of the transportation construction project is significantly expanded or otherwise altered.
6. Federal law or regulation requires that the permit expire at the end of a specific term of years.

History

(2003-284, s. 29.6; 2015-241, s. 14.30(u).)

Editor's Note. - Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.6, is a severability clause.

Effect of Amendments. - Session Laws 2015-241, s. 14.30(u), effective July 1, 2015, substituted "Department of Environmental Quality" for "Department of Environment and Natural Resources" in the section heading, the introductory language, and in subdivision (2).

§ 136-44.7C. Analysis and approval of Department of Transportation environmental policies or guidelines affecting transportation projects.

1. Analysis Required. - The Department of Transportation shall conduct an analysis of any proposed environmental policy or guideline adopted by the Department that affects Department of Transportation projects to determine if the policy or guideline will result in an increased cost to Department of Transportation projects.
2. Report of Analysis; Approval of Policy or Guideline Required. - The analysis of a proposed policy or guideline required by subsection (a) of this section shall be reported to the Board of Transportation at least 30 days prior to the proposed effective date of the policy or guideline, and shall not go into effect until approved by the Board of Transportation.

History

(2005-276, s. 28.8(b).)

§ 136-44.7D. Bridge construction guidelines.

A bridge crossing rivers and streams in watersheds shall be constructed to accommodate the hydraulics of a flood water level equal to the water level projected for a 100-year flood for the region in which the bridge is built. The bridge shall be built without regard for the riparian buffer zones as designated by the Department of Environmental Quality, Division of Water Resources. No Memorandums of Agreement may be made between Departments to bypass this construction mandate. No agency rules shall be enacted contrary to this section.

History

(2007-551, s. 4; 2013-413, s. 57(g); 2014-115, s. 17; 2015-241, s. 14.30(u).)

Editor's Note. - Session Laws 2013-413, s. 61(b), provided: "Except as otherwise provided, this act is effective when it becomes law [August 23, 2013]." Session Laws 2013-413, s. 60(c), had provided that: "This Part becomes effective July 1, 2015." Session Laws 2014-115, s. 17, amended Session Laws 2013-413, s. 60(c), to replace the reference to "This act" with the words "This Part."

Session Laws 2013-413, s. 61(a), is a severability clause.

Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.6, is a severability clause.

Effect of Amendments. - Session Laws 2013-413, s. 57(g), substituted "Division of Water Resources" for "Division of Water Quality." For effective date, see Editor's note.

Session Laws 2015-241, s. 14.30(u), effective July 1, 2015, substituted "Department of Environmental Quality" for "Department of Environment and Natural Resources" in the second sentence.

§ 136-44.7E. Compliance with federal guidelines for transportation projects.

The Department may continue to use the Merger '01 process provided the relevant portions of P.L. 109-59, Section 6002, (SAFETEA-LU) are incorporated to ensure the Department as the recipient agency is the co-lead agency with the United States Department of Transportation, delegating all other federal, state, or local agencies as participating or cooperating agencies. The Department's designation as a co-lead agency shall inure to the Department the authority to determine the purpose and need of a project and to determine viable alternatives. Any conflict between cooperating or participating agencies and the Department shall be resolved by the Department in favor of the completion of the project in conflict.

History

(2007-551, s. 5.)

§ 136-44.8. Submission of unpaved secondary roads paving programs to the Boards of County Commissioners.

1. Repealed by Session Laws 2013-183, s. 2.8(a), effective July 1, 2013.
2. In each county having unpaved roads programmed for paving, representatives of the Department of Transportation shall annually provide to the board of county commissioners in those counties a list of roads proposed for the annual paving program approved by the Board of Transportation. The paving priority list shall include the priority rating of each secondary road paving project included in the proposed paving program according to the criteria and standards adopted by the Board of Transportation. In addition to the list required under this subsection, the Department of Transportation shall annually provide to the board of county commissioners a summary of unpaved secondary road projects completed in the particular county for the prior calendar year, including an indication as to which projects were not completed on schedule and a detailed explanation as to why the projects were not completed on schedule.
3. through (d) Repealed by Session Laws 2013-183, s. 2.8(a), effective July 1, 2013.
4. Repealed by Session Laws 2013-183, s. 2.8(b), effective July 1, 2014.
5. The unpaved secondary roads paving programs adopted by the Board of Transportation shall be followed by the Department of Transportation unless changes are approved by the Board of Transportation and notice of any changes is given to the board of county commissioners. Upon request, the most recent unpaved secondary roads paving programs adopted shall be submitted to any member of the General Assembly. The Department of Transportation shall make the annual construction program for each affected county available to the newspapers having a general circulation in the county.

History

(1973, c. 507, s. 3; 1975, c. 716, s. 7; 1977, c. 464, s. 9; 1981, c. 536; 2013-183, s. 2.8(a), (b); 2015-241, s. 29.12(c).)

Editor's Note. - Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.6, is a severability clause.

Effect of Amendments. - Session Laws 2013-183, s. 2.8(b), effective July 1, 2014, in the section heading, inserted "unpaved" and deleted "construction and unpaved roads" preceding "paving programs"; in subsection (a1), in the first sentence, added "In each county having unpaved roads programmed for paving," inserted "annually," and substituted "those counties" for "each county the proposed secondary road construction program and, if applicable to that county," and, in the last sentence, substituted "The paving priority list shall" for "If a paving priority list is presented, it shall"; deleted subsection (e); and, in subsection (f), substituted "The unpaved secondary roads" for "The secondary road construction and unpaved roads" in the first sentence, substituted "unpaved secondary roads for" "secondary road construction and unpaved roads" in the second sentence, and, in the third sentence, inserted "affected."

Session Laws 2015-241, s. 29.12(c), effective July 1, 2015, added the last sentence in subsection (a1).

§ 136-44.9: Repealed by Session Laws 2015-241, s. 29.12(d), effective July 1, 2015.

History

(1973, c. 507, s. 3; 1975, c. 615; c. 716, s. 7; repealed by 2015-241, s. 29.12(d), effective July 1, 2015.)

§ 136-44.10. Additions to secondary road system.

The Board of Transportation shall adopt uniform statewide or regional standards and criteria which the Department of Transportation shall follow for additions to the secondary road system. These standards and criteria shall be promulgated and copies made available for free distribution.

History

(1973, c. 507, s. 3; 1975, c. 716, s. 7; 1977, c. 464, ss. 8, 21.)

§ 136-44.11. Right-of-way acquisitions; preliminary engineering annual report.

1. The Department of Transportation shall include in its annual report projects for which preliminary engineering has been performed more than two years but where there has been no right-of-way acquisition, projects where right-of-way has been acquired more than two years but construction contracts have not been let. The report shall include the year or years in which the preliminary engineering was performed and the cost incurred, the number of right-of-way acquisitions for each project, the dates of the first and last acquisition and the total expenditure for right-of-way acquisition. The report shall include the status of the construction project for which the preliminary engineering was performed or the right-of-way acquired and the reasons for delay, if any.
2. Requests to the Board of Transportation for allocation of funds for the purchase of right-of-way shall include an estimated time schedule to complete all necessary right-of-way purchases related to a specific project, and a proposed date to award construction contracts for that project. If the anticipated construction contract date is more than two years beyond the estimated completion of the related right-of-way purchases, the approval of both the Board of Transportation and the Director of the Budget is required.

History

(1973, c. 507, s. 3; 1975, c. 716, s. 7; 1981, c. 859, s. 69.)

§ 136-44.12. Maintenance of roads and parking lots in areas administered by the Division of Parks and Recreation.

The Department of Transportation shall maintain all roads and parking lots which are not part of the State Highway System, leading into and located within the boundaries of all areas administered by the Division of Parks and Recreation of the Department of Natural and Cultural Resources.

All such roads and parking lots shall be planned, designed, and engineered through joint action between the Department of Transportation and the Division of Parks and Recreation of the Department of Natural and Cultural Resources. This joint action shall encompass all accepted park planning and design principles. Particular concern shall be given to traffic counts and vehicle weight, minimal cutting into or through any natural and scenic areas, width of shoulders, the cutting of natural growth along roadways, and the reduction of any potential use of roads or parking lots for any purpose other than by park users. All State park roads and parking lots shall conform to the standards regarding width and other roadway specifications as agreed upon by the Division of Parks and Recreation of the Department of Natural and Cultural Resources and the Department of Transportation.

The State park road systems may be closed to the public in accordance with approved park practices that control the use of State areas so as to protect these areas from overuse and abuse and provide for functional use of the park areas, or for any other purpose considered in the best interest of the public by the Division of Parks and Recreation of the Department of Natural and Cultural Resources.

Nothing herein shall be construed to include the transfer to the Department of Transportation the powers now vested in the Division of Parks and Recreation of the Department of Natural and Cultural Resources relating to the patrol and safeguarding of State park roads or State park parking lots.

History

(1973, c. 123, ss. 1-3; 1977, c. 771, s. 4; 1989, c. 727, s. 218(89); c. 799, s. 12(b); 1991 (Reg. Sess., 1992), c. 907, s. 3; 1997-443, s. 11A.119(a); 2015-241, s. 14.30(ww).)

Editor's Note. - Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.6, is a severability clause.

Effect of Amendments. - Session Laws 2015-241, s. 14.30(ww), effective July 1, 2015, substituted "Department of Natural and Cultural Resources" for "Department of Environment and Natural Resources" throughout the section.

§ 136-44.13: Reserved for future codification purposes.

§ 136-44.14. Curb ramps or curb cuts for handicapped persons.

1. Curbs constructed on each side of any street or road, where curbs and sidewalks are provided and at other major points of pedestrian flow, shall meet the following minimum requirements:
   1. No less than two curb ramps or curb cuts shall be provided per lineal block, located at intersections.
   2. In no case, shall the width of a curb ramp or curb cut be less than 40 inches.
   3. The maximum gradient of such curb ramps or curb cuts shall be eight and thirty-three one-hundredths percent (8.33%) (12 inches slope for every one-inch rise) in relationship to the grade of the street or road.
   4. One curb ramp or curb cut may be provided under special conditions between each radius point of a street turnout of an intersection, if adequate provisions are made to prevent vehicular traffic from encroaching on the ramp.
2. Minimum requirements for curb ramps or curb cuts under subsection (a) shall be met (i) in the initial construction of such curbs, and (ii) whenever such curbs are reconstructed, including, but not limited to, reconstruction for maintenance procedures and traffic operations, repair, or correction of utilities.
3. The Department of Transportation, Division of Highways, Highway Design Section, is authorized and directed to develop guidelines to implement this Article in consultation with the Governor's Study Committee on Architectural Barriers (or the Committee on Barrier-Free Design of the Governor's Committee on Employment of the Handicapped if the Governor's Study Committee on Architectural Barriers ceases to exist). All curb ramps or curb cuts constructed or reconstructed in North Carolina shall conform to the guidelines of the Highway Design Section.
4. The Department of Transportation, Division of Highways, Highway Design Section, is authorized and directed to provide free copies of this Article together with implementary guidelines and standards, to municipal and county governments and public utilities operating within the State.

History

(1973, c. 718, ss. 1-4.)

§ 136-44.15: Expired.

Editor's Note. - This section was enacted by Session Laws 1987, c. 324 s. 1. Section 2 of the act provided that it would expire June 30, 1988.

§ 136-44.16. Authorized use of contract maintenance resurfacing program funds.

1. Of the contract maintenance resurfacing program funds appropriated by the General Assembly to the Department of Transportation, an amount not to exceed fifteen percent (15%) of the Board of Transportation's allocation of these funds may be used for widening existing narrow pavements.
2. The uses of slurry seal treatments, microsurfacing treatments, and thin lift asphalt overlays for pavement preservation treatments are authorized uses of contract maintenance resurfacing program funds.

History

(1997-443, s. 32.12; 2003-112, s. 1; 2014-100, s. 34.11(d).)

Editor's Note. - Session Laws 2014-100, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2014.'"

Session Laws 2014-100, s. 38.7, is a severability clause.

Effect of Amendments. - Session Laws 2014-100, s. 34.11(d), effective July 1, 2014, designated the existing provisions as subsection (a) and added subsection (b).

§ 136-44.17. Pavement preservation program.

1. Program Established. - The Department of Transportation shall establish the pavement preservation program.
2. Eligible Activities or Treatments. - Applications eligible for funding under the pavement preservation program include the following preservation activities or treatments for asphalt pavement structures:
   1. Chip seals, slurry seals, fog seals, sand seals, scrub seals, and cape seals.
   2. Microsurfacing.
   3. Profile milling not covered by resurfacing.
   4. Asphalt rejuvenators.
   5. Open graded asphalt friction course.
   6. Overlays less than 1,000 feet in length.
   7. Diamond grinding.
   8. Joint sealing.
   9. Dowel bar retrofit.
   10. Partial-depth or full-depth repairs and reclamations.
   11. Ultra-thin whitetopping.
   12. Thin lift and sand asphalt overlays.
   13. Asphalt crack sealing.
   14. Pavement markers and markings.
3. Ineligible Activities or Treatments. - The pavement preservation program shall not include the following preservation activities or treatments:
   1. Contract resurfacing activities or major pavement rehabilitation treatments and pretreatments that are used in combination with a resurfacing treatment, such as profile milling or chip seals.
   2. Routine maintenance activities used to maintain and preserve the condition of roads. Treatments include, but are not limited to, pothole patching, rut filling, cleaning of roadside ditches and structures, shoulder maintenance, and retracing of pavement markings.
   3. Maintenance and preservation activities performed on bridges or culverts.
   4. Activities related to positive guidance or signal maintenance program functions.
4. Encumbrance Schedule. - Beginning in the 2015-2016 fiscal year, the Department of Transportation shall spend or encumber all funds appropriated by the General Assembly to the Department for the pavement preservation program by June 30 of the fiscal year for which the funds were appropriated.

History

(2014-100, s. 34.11(f); 2015-241, s. 29.17(a); 2017-57, s. 34.9.)

Editor's Note. - Session Laws 2014-100, s. 34.11(g), provides: "Establishment of Account. - The Department of Transportation shall establish a new account within its maintenance account to receive funds allocated under this section for pavement preservation."

Session Laws 2014-100, s. 34.11(h), provides: "2014-2015 Outsourcing Target. - Of funds allocated in this act for pavement preservation, no more than eighty percent (80%) may be used for projects undertaken by the Department, with the remaining funds used for projects outsourced to private contractors."

Session Laws 2014-100, s. 34.11(i), provides: "Future Outsourcing Targets. - The Department shall increase its use of outsourcing of pavement preservation activities to reach the following targets for outsourcing of pavement preservation projects:

"(1) Thirty percent (30%) of pavement preservation program funds allocated by the 2015-2016 fiscal year.

"(2) Fifty-five percent (55%) of pavement preservation program funds allocated by the 2016-2017 fiscal year.

"(3) Eighty percent (80%) of pavement preservation program funds allocated by the 2017-2018 fiscal year and subsequent fiscal years thereafter."

Session Laws 2014-100, s. 34.11(j), provides: "Increased Use of the Paving Industry. - It is the intent of the General Assembly that the Department work cooperatively with the paving industry so that the industry grows in size, scope, and geographic reach and has the capability to fulfill contracts for pavement preservation work across the State. Therefore, the Department is directed to conduct workshops, trainings, or other meetings to encourage greater privatization of pavement preservation activities with the intent of reducing the amount of pavement preservation activities conducted by the Department."

Session Laws 2014-100, s. 34.11( l ), as amended by Session Laws 2015-241, s. 29.17(c), provides: "Report. - The Department shall report to the Joint Legislative Transportation Oversight Committee and the Fiscal Research Division by no later than September 1, 2014, on its plan for increasing its use of outsourcing of pavement preservation activities in accordance with subsection (i) of this section. The Department shall report no later than December 1, 2014, and annually thereafter, to the Joint Legislative Transportation Oversight Committee and the Fiscal Research Division on the Department's progress toward achieving the goals set forth in subsection (i) of this section. The annual report shall include the following:

"(1) A monthly examination of expenditures, by treatment type, indicating the amount and percentage performed by contract.

"(2) The number of lane miles covered, by treatment type, along with an average cost per lane miles, by treatment type, indicating costs for each type for work performed by the Department and by contract.

"(3) The statewide cost per lane mile (hereafter 'unit cost') along with unit cost for each division and for each type of treatment. The Department shall provide an explanation for unit costs that vary by more than ten percent (10%) from the statewide unit cost."

Session Laws 2014-100, s. 34.11(m) provides: "Subsection (j) of this section expires June 30, 2017. Subsection ( l ) of this section expires December 31, 2018."

Session Laws 2014-100, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2014.'"

Session Laws 2014-100, s. 38.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2014-2015 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2014-2015 fiscal year."

Session Laws 2014-100, s. 38.7, is a severability clause.

Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.6, is a severability clause.

Effect of Amendments. - Session Laws 2015-241, s. 29.17(a), effective July 1, 2015, added subdivision (b)(13); deleted "asphalt crack sealing" preceding "pothole patching" in the second sentence of subdivision (c)(2); and added subsection (d).

Session Laws 2017-57, s. 34.9, effective July 1, 2017, added subdivision (b)(14).

§§ 136-44.18, 136-44.19: Reserved for future codification purposes.

§ 136-44.20. Department of Transportation designated agency to administer and fund public transportation programs; authority of political subdivisions.

1. The Department of Transportation is hereby designated as the agency of the State of North Carolina responsible for administering all federal and/or State programs relating to public transportation; and the Department is hereby granted authority to do all things required under applicable federal and/or State legislation to administer properly public transportation programs within North Carolina. Such authority shall include, but shall not be limited to, the power to receive federal funds and distribute federal and State financial assistance for inter-city rail or bus passenger service crossing one or more county lines.
2. The Department of Transportation, upon approval by the Board of Transportation, is authorized to provide the matching share of federal public transportation assistance programs through private resources, local government funds, or State appropriations provided by the General Assembly.
3. The Secretary may, subject to the appropriations made by the General Assembly for any fiscal year, enter into State Full Funding Grant Agreements with a Regional Public Transportation Authority (RPTA) duly created and existing pursuant to Article 26 of Chapter 160A, a Regional Transportation Authority (RTA) duly created and existing pursuant to Article 27 of Chapter 160A, or a city organized under the laws of this State as defined in G.S. 160A-1(2), to provide State matching funds for "new start" fixed guideway projects in development by any entity pursuant to 49 U.S.C. § 5309. These grant agreements shall be executable only upon an Authority's or city's completion of and the Federal Transit Administration (FTA) approval of Preliminary Engineering and Environmental Impact Studies in anticipation of federal funding pursuant to 49 U.S.C. § 5309.
4. Nothing herein shall be construed to prevent a political subdivision of the State of North Carolina from applying for and receiving direct assistance from the United States government under the provisions of any applicable legislation.
5. Repealed by Session Laws 2011-145, s. 28.12, effective July 1, 2011.
6. The Department of Transportation is authorized to annually allocate funds to qualifying public transportation systems to be used to consolidate or coordinate with other public transportation systems to maximize resources, gain efficiencies, and increase access to public transportation. In order to be eligible for funding under this subsection, a public transportation system must submit a plan for consolidation or coordination with another public transportation system. The plan must include a time line for completion and an estimated cost for completion. The Department is not required to provide the full amount of the estimated cost identified in the plan. The Department shall disburse the funds no later than 30 days from the date it approves the plan. The amount allocated under this subsection to a public transportation system shall not exceed two hundred thousand dollars ($200,000) annually. Beginning December 1, 2017, the Department shall provide an annual report to the Joint Legislative Transportation Oversight Committee identifying for the year preceding the report (i) each public transportation system provided funding under this subsection, (ii) the amount of funds disbursed to each public transportation system, and (iii) the purpose or purposes for which each public transportation system has used the funds.

Prior to executing State Full Funding Grant Agreements, the Secretary shall submit proposed grant agreements or amendments to the Joint Legislative Transportation Oversight Committee for review. The agreements, consistent with federal guidance, shall define the limits of the "new starts" projects within the State, commit maximum levels of State financial participation, and establish terms and conditions of State financial participation.

State Full Funding Grant Agreements may provide for contribution of State funds in multiyear allotments. The multiyear allotments shall be based upon the Department's estimates, made in conjunction with an Authority or city, of the grant amount required for "new start" project work to be performed in the appropriation fiscal year.

State funds may be used to fund fixed guideway projects developed without federal funding by the Department, a Regional Public Transportation Authority (RPTA) duly created and existing pursuant to Article 26 of Chapter 160A of the General Statutes, a Regional Transportation Authority (RTA) duly created and existing pursuant to Article 27 of Chapter 160A of the General Statutes, or a unit of local government. In addition, State funds may be used to pay administrative costs incurred by the Department while participating in such fixed guideway projects.

History

(1975, c. 451; 1977, c. 341, s. 2; 1983, c. 616; 1989, c. 692, s. 2.3; c. 700, s. 1; 1993, c. 488, s. 2; 2000-67, s. 25.7; 2009-409, s. 1; 2011-145, s. 28.12; 2017-57, s. 34.18A.)

Editor's Note. - Session Laws 2012-142, s. 24.19(a), provides: "The Regional New Starts & Capital Program within the Public Transportation Division of the Department of Transportation is eliminated. The unexpended balance of funds for this program is reallocated to the LYNX Blue Line Extension/Northeast Corridor project."

Session Laws 2012-142, s. 1.2, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2012.'"

Session Laws 2012-142, s. 27.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2012-2013 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2012-2013 fiscal year."

Session Laws 2012-142, s. 27.7, is a severability clause.

Session Laws 2017-57, s. 34.18A(b) and (c), provides: "(b) By September 1, 2017, the Department of Transportation shall establish criteria for approving plans submitted to the Department under G.S. 136-44.20(e), as enacted by subsection (a) of this section. No later than 10 days from the date the Department establishes the criteria required under this subsection, the Department shall publish the criteria on the Department's Web site.

"(c) Notwithstanding any provision of G.S. 136-44.20(e), as enacted by subsection (a) of this section, to the contrary, and for the report due under G.S. 136-44.20(e) on December 1, 2017, the Department shall provide the required information only for the period from the effective date of this section to December 1, 2017."

Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium."

Session Laws 2017-57, s. 39.6, is a severability clause.

Effect of Amendments. - Session Laws 2009-409, s. 1, effective July 1, 2009, added the last paragraph in subsection (b1).

Session Laws 2011-145, s. 28.12, effective July 1, 2011, repealed subsection (d).

Session Laws 2017-57, s. 34.18A(a), effective July 1, 2017, added subsection (e).

§ 136-44.21. Ridesharing arrangement defined.

Ridesharing arrangement means the transportation of persons in a motor vehicle where such transportation is incidental to another purpose of the driver and is not operated or provided for profit. The term shall include ridesharing arrangements such as carpools, vanpools and buspools.

History

(1981, c. 606, s. 1.)

§ 136-44.22. Workers' Compensation Act does not apply to ridesharing arrangements.

Chapter 97 of the General Statutes shall not apply to a person injured while participating in a ridesharing arrangement between his or her place of residence and a place of employment or termini near such place, provided that if the employer owns, leases or contracts for the motor vehicle used in such an arrangement, Chapter 97 of the General Statutes shall apply.

History

(1981, c. 606, s. 1.)

§ 136-44.23. Ridesharing arrangement benefits are not income.

Any benefits, other than salary or wages, received by a driver or a passenger while in a ridesharing arrangement shall not constitute income for the purposes of Article 4 of Chapter 105 of the General Statutes.

History

(1981, c. 606, s. 1.)

§ 136-44.24. Ridesharing arrangements exempt from municipal licenses and taxes.

No county, city, town or other municipal corporation may require a business license for a ridesharing arrangement, nor may they require any additional tax, fee, or registration on a vehicle used in a ridesharing arrangement.

History

(1981, c. 606, s. 1.)

§ 136-44.25. Wage and Hour Act inapplicable to ridesharing arrangements.

The provisions of Article 2A of Chapter 95 of the General Statutes of North Carolina shall not apply to an employee while participating in any ridesharing arrangement as defined in G.S. 136-44.21, as provided in G.S. 95-25.14(b)(6).

History

(1981, c. 606, s. 1; c. 663, s. 14.)

§ 136-44.26. Use of public motor vehicles for ridesharing.

Motor vehicles owned or operated by any State or local agency may be used in ridesharing arrangements for public employees, provided the public employees benefiting from said ridesharing arrangements shall pay fees which shall cover all capital operating costs of the ridesharing arrangements.

History

(1981, c. 606, s. 1.)

§ 136-44.27. North Carolina Elderly and Disabled Transportation Assistance Program.

1. There is established the Elderly and Disabled Transportation Assistance Program that shall provide State financed elderly and disabled transportation services for counties within the State. The Department of Transportation is designated as the agency of the State responsible for administering State funds appropriated to purchase elderly and disabled transportation services for counties within the State. The Department shall develop appropriate procedures regarding the distribution and use of these funds and shall adopt rules to implement these procedures. No funds appropriated pursuant to this act may be used to cover State administration costs.
2. For the purposes of this section, an elderly person is defined as one who has reached the age of 60 or more years, and a disabled person is defined as one who has a physical or mental impairment that substantially limits one or more major life activities, an individual who has a record of such impairment, or an individual who is regarded as having such an impairment. Certification of eligibility shall be the responsibility of the county.
3. All funds distributed by the Department under this section are intended to purchase additional transportation services, not to replace funds now being used by local governments for that purpose. These funds are not to be used towards the purchase of transportation vehicles or equipment. To this end, only those counties maintaining elderly and disabled transportation services at a level consistent with those in place on January 1, 1987, shall be eligible for additional transportation assistance funds.
4. The Public Transportation Division of the Department of Transportation shall distribute these funds to the counties according to the following formula: fifty percent (50%) divided equally among all counties; twenty-two and one-half percent  (221/2%) based upon the number of elderly residents per county as a percentage of the State's elderly population; twenty-two and one-half percent (221/2%) based upon the number of disabled residents per county as a percentage of the State's disabled population; and, the remaining five percent (5%) based upon a population density factor that recognizes the higher transportation costs in sparsely populated counties.
5. Funds distributed by the Department under this section shall be used by counties, public transportation authorities, or regional public transportation authorities in a manner consistent with transportation development plans which have been approved by the Department and the Board of County Commissioners. To receive funds apportioned for a given fiscal year, a county shall have an approved transportation development plan. Funds that are not obligated in a given fiscal year due to the lack of such a plan will be distributed to the eligible counties based upon the distribution formula prescribed by subsection (d) of this section.
6. A regional public transportation authority created pursuant to Article 25 or Article 26 of Chapter 160A of the General Statutes may, upon written agreement with the municipalities served by a public transportation authority or counties served by the regional public transportation authority, apply for and receive any funds to which the member municipality or counties are entitled to receive based on the distribution formula set out in subsection (d) of this section.

History

(1987 (Reg. Sess., 1988), c. 1095, ss. 1(a), 1(b); c. 1101, s. 8.2; 1989, c. 752, s. 105(b); 1993, c. 321, s. 147; 2011-207, s. 1.)

Editor's Note. - Session Laws 2011-145, s. 28.20(b), provides: "The Department of Transportation and the Office of State Budget and Management are directed to combine grant funding to the 'elderly and disabled,' 'work first and transportation employment,' and the human service transportation management and rural general public grant programs within the 'urban technology, human service transportation management and rural general public' grant programs. The Highway Fund Budget Code 84210, Fund Code 7831, shall be changed to reflect these consolidations and the separation of the 'urban technology, human service transportation management and rural general public' grant program. The grant categories and respective formulas shall remain unchanged. The Department shall determine an appropriate distribution for funds based upon the needs of the local governments.

"Consolidating the funding sources should enable the Department to increase utilization of all available funds based on documented local needs, reduce program administration at the State and local levels, and increase flexibility for regional systems to apply and expend funds for multicounty transit needs."

Session Laws 2011-145, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2011.'"

Session Laws 2011-145, s. 32.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2011-2013 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2011-2013 fiscal biennium."

Session Laws 2011-145, s. 32.5, is a severability clause.

Effect of Amendments. - Session Laws 2011-207, s. 1, effective June 23, 2011, inserted "public transportation authorities, or regional public transportation authorities" in the first sentence of subsection (e); and added subsection (f).

§§ 136-44.28, 136-44.29: Reserved for future codification purposes.

§§ 136-44.30 through 136-44.34: Repealed by Session Laws 1977, c. 579.

Cross References. - As to professional housemoving, see G.S. 20-356 et seq.

§ 136-44.35. Railroad revitalization and corridor preservation a public purpose.

The General Assembly hereby finds that programs for railroad revitalization which assure the maintenance of safe, adequate, and efficient rail transportation services and that programs for railway corridor preservation which assure the availability of such corridors in the future are vital to the continued growth and prosperity of the State and serve the public purpose.

History

(1979, c. 658, s. 1; 1989, c. 600, s. 1.)

Editor's Note. - This section was enacted by Session Laws 1979, c. 658, s. 1. Former G.S. 136-44.35, which was derived from Session Laws 1977, c. 584, was rewritten and renumbered as G.S. 136-44.36 by Session Laws 1979, c. 658, ss. 1, 2.

The preamble to Session Laws 2005-222, provides: "Whereas, expanding and upgrading passenger, freight, commuter, and short line rail service is important to the economy of North Carolina; and

"Whereas, the citizens of this State have stated their support for expanded passenger rail service through resolutions from over 100 cities, towns, and organizations submitted to the House Interim Committee on Expanding Rail Service in the fall of 2004; and

"Whereas, Congress is debating reauthorization of the federal Surface Transportation Program; and

"Whereas, Congress is considering new and innovative means of financing construction of transportation infrastructure, including highways, transit, intermodal, and rail projects; and

"Whereas, Congress is debating reform of the National Railroad Passenger Corporation, known as Amtrak, and the result may be more responsibilities for rail transferred to the states; and

"Whereas, it is in the best interest of the State of North Carolina to respond in a timely way to these proposed changes as they impact our transportation programs and economic development opportunities; and

"Whereas, many rail corridors in the State, such as the Wallace to Castle Hayne rail corridor, are in need of restoration and improvement; and

"Whereas, many rail initiatives in the State, including service to western and southeastern North Carolina, are in need of federal and State investment; Now, therefore, The General Assembly of North Carolina enacts:"

Section 2017-57, s. 34.24(a), (b), provides: "(a) In addition to any other requirements provided by State or federal law, the Rail Division of the Department of Transportation shall submit a report to the Joint Legislative Transportation Oversight Committee prior to entering into a contract with a duration of five or more years and requiring an estimated expenditure of State funds in an amount totaling or exceeding one million five hundred thousand dollars ($1,500,000). The report shall (i) identify the total cost of the proposed contract, (ii) identify the duration of the proposed contract, (iii) identify the other party or parties to the proposed contract, and (iv) identify any other terms of the proposed contract that are deemed relevant by the Rail Division.

"(b) This section is effective when it becomes law [June 28, 2017] and applies to contracts entered into on or after that date. This section expires June 30, 2022."

Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium."

Session Laws 2017-57, s. 39.6, is a severability clause.

§ 136-44.36. Department of Transportation designated as agency to administer federal and State railroad revitalization programs.

1. The General Assembly hereby designates the Department of Transportation as the agency of the State of North Carolina responsible for administering all State and federal railroad revitalization programs. The Department of Transportation is authorized to develop, and the Board of Transportation is authorized to adopt, a State railroad plan, and the Department of Transportation is authorized to do all things necessary under applicable State and federal legislation to properly administer State and federal railroad revitalization programs within the State. Such authority shall include, but shall not be limited to, the power to receive federal funds and distribute and expend federal and State funds for rail programs designed to cover the costs of acquiring, by purchase, lease or other manner as the department considers appropriate, a railroad line or other rail property to maintain existing or to provide future rail service; the costs of rehabilitating and improving rail property on railroad lines to the extent necessary to permit safe, adequate and efficient rail service on such lines; and the costs of constructing rail or rail related facilities for the purpose of improving the quality, efficiency and safety of rail service. The Department shall also have the authority to preserve railroad corridors for future railroad use and interim compatible uses and may lease such corridors for interim compatible uses. Such authority shall also include the power to receive and administer federal financial assistance without State financial participation to railroad companies to cover the costs of local rail service continuation payments, of rail line rehabilitation, and of rail line construction as listed above. This Article shall not be construed to grant to the department the power or authority to operate directly any rail line or rail facilities.
2. Notwithstanding subsection (a) of this section, the acceptance of federal funds by the Department of Transportation for rail programs shall be subject to the following:
   1. Report. - For any project under subsection (a) of this section, the Department of Transportation shall report the project details, including the amounts of federal funds and any State matching funds, as well as the expected annual maintenance and operational costs to the State of the project for the next 25 years, to the Joint Legislative Transportation Oversight Committee if the General Assembly is not in session, or to the House Appropriations Subcommittee on Transportation and the Senate Committee on Appropriations on Department of Transportation if the General Assembly is in session.
   2. Consultation. - If either the amount of State matching funds required by the federal grant or the amount of future annual maintenance and operational costs of the project are reasonably expected to exceed three million dollars ($3,000,000), then the Department shall not accept the federal funds prior to consultation with the Joint Legislative Transportation Oversight Committee if the General Assembly is not in session, or with the House Appropriations Subcommittee on Transportation and the Senate Committee on Appropriations on Department of Transportation if the General Assembly is in session. Failure of the Joint Legislative Transportation Oversight Committee, the House Appropriations Subcommittee on Transportation, or the Senate Committee on Appropriations on Department of Transportation to hold a meeting with the Department of Transportation within 60 days of a written request for a meeting from the Department of Transportation shall be deemed a waiver of consultation by the committee.
   3. Approval. - If either the amount of State matching funds required by the federal grant or the amount of future annual maintenance and operational costs of the project are reasonably expected to exceed five million dollars ($5,000,000), then the Department's acceptance of funds shall be subject to approval of the project by an act of the General Assembly. If 30 days have passed since consultation or the expiration of the consultation period under subdivision (2) of this subsection, then the inaction of the General Assembly, including the lack of an extra session to address the project, shall be deemed an approval of the project, and the Department may accept the funds without an act of the General Assembly.

For purposes of this subsection, the terms "State matching funds" and "annual maintenance and operational costs to the State" shall not include funds that may pass through the Department of Transportation but that originally came from a non-State source.

History

(1979, c. 658, s. 2; 1987 (Reg. Sess., 1988), c. 1071, s. 1; 1989, c. 600, s. 2; 2011-145, s. 28.15.)

Editor's Note. - This section was formerly G.S. 136-44.35. It was rewritten and renumbered by Session Laws 1979, c. 658, ss. 1, 2.

Session Laws 2011-145, s. 28.16, provides: "The Department of Transportation, Rail Division, shall not provide convenience items to passengers free of charge unless the items are donated to the State. These items include bottled or canned drink products, excluding water, newspapers, or other items of convenience. The Department of Transportation may charge a nominal fee for such items through vending machines or through other mechanisms."

Session Laws 2011-145, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2011.'"

Session Laws 2011-145, s. 32.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2011-2013 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2011-2013 fiscal biennium."

Session Laws 2011-145, s. 32.5, is a severability clause.

Session Laws 2016-94, s. 35.18(a) describes conditions that must be met in order for authorization of the Department of Transportation to enter into a lease agreement for interim public recreation use of the former Andrews to Murphy Branch rail line of the Great Smoky Mountain Railroad. Session Laws 2016-94, s. 35.18(b) provides that the Department of Transportation shall convey to any person owning an underlying fee simple interest a portion of the Department's interest for right-of-way that is not needed. Session Laws 2016-94, s. 35.18(c)-(e) provides that if the right-of-way is not needed for interim public recreation use, the Department shall revitalize the rail line to be used for the operation of an excursion train and sets out funding and cost-sharing for the operation. Session Laws 2016-94, s. 35.18(f) provides for a five-year reporting and review process. Session Laws 2020-59, s. 5, repealed Session Laws 2016-94, s. 35.18, effective June 30, 2020.

Session Laws 2016-94, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2016.'"

Session Laws 2016-94, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2016-2017 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2016-2017 fiscal year."

Session Laws 2016-94, s. 39.7, is a severability clause.

Effect of Amendments. - Session Laws 2011-145, s. 28.15, effective July 1, 2011, added the subsection (a) designation; and added subsection (b).

§ 136-44.36A. Railway corridor preservation.

The North Carolina Department of Transportation is authorized, pursuant to 16 U.S.C.A. § 1247(d), to preserve rail transportation corridors and permit compatible interim uses of such corridors.

History

(1987 (Reg. Sess., 1988), c. 1071, s. 2.)

Editor's Note. - Session Laws 1987 (Reg. Sess., 1988), c. 1071, s. 7 made this section effective upon ratification and applicable only to railroad corridors and abandonments after that date. The act was ratified July 7, 1988.

Session Laws 1987 (Reg. Sess., 1988), c. 1071, ss. 3 through 5, provided:

"Sec. 3. If the Congress of the United States repeals the authorization contained in 16 U.S.C.A. 1247(d) or if a court of competent jurisdiction declares the provisions to be unconstitutional or otherwise invalid, following any appellate review, then Section 2 of this act [which enacted this section] shall expire upon certification by the Secretary of State that the federal authorization has been repealed or has been invalidated.

"Sec. 4. The Department of Transportation is authorized to proceed under Section 2 of this act, but the payment of just compensation may be provided to the underlying fee owners in accordance with Article 9 of Chapter 136 of the General Statutes, the same as if the railroad had been abandoned rather than preserved for future railroad use and compatible interim uses.

"Sec. 5. The Department of Transportation shall develop a proposed high speed rail corridor plan for North Carolina, in conjunction with the Department's railway corridor preservation program. The Department shall present its plan to the 1989 General Assembly for its review and approval."

Legal Periodicals. - For a comment on the acquisition, abandonment, and preservation of rail corridors in North Carolina, see 75 N.C.L. Rev. 1989 (1997).

§ 136-44.36B. Power of Department to preserve and acquire railroad corridors.

In exercising its power to preserve railroad corridors, the Department of Transportation may acquire property for new railroad corridors and may acquire property that is or has been part of a railroad corridor by purchase, gift, condemnation, or other method, provided that the Department may not condemn part of an existing, active railroad line. The procedures in Article 9 of this Chapter apply when the Department condemns property to preserve or acquire a railroad corridor.

History

(1989, c. 600, s. 3; 1991, c. 673, s. 1.)

Legal Periodicals. - For a comment on the acquisition, abandonment, and preservation of rail corridors in North Carolina, see 75 N.C.L. Rev. 1989 (1997).

§ 136-44.36C. Installment contracts authorized.

The Department of Transportation may purchase active or inactive railroad lines, corridors, rights-of-way, locomotives, rolling stock, and other rail property, both real and personal, by installment contracts which create in the property purchased a security interest to secure payment of the purchase money. No deficiency judgment may be rendered against the Department of Transportation in any action for breach of a contractual obligation authorized by this section, and the taxing power of the State is not and may not be pledged directly or indirectly to secure any money due the seller.

History

(1991, c. 673, s. 2.)

§ 136-44.36D. Recreational leasing requirements.

Portions of rail corridors held by the North Carolina Department of Transportation in fee simple absolute may be leased by the Department for interim public recreation use provided the following conditions are met:

1. Before requesting trail use, a sponsoring unit of local government has held a public hearing in accordance with G.S. 143-318.12 and notified the owners of all parcels of land abutting the corridor as shown on the county tax listing of the hearing date, place, and time by first-class mail at the last addresses listed for such owners on the county tax abstracts. A transcript of all public comments presented at the hearing has been sent to the North Carolina Department of Transportation at the time of requesting use of the corridor.
2. A unit of local government has requested use of the rail corridor or a portion thereof for interim public recreational trail use, and agrees in writing to assume all development costs as well as management, security, and liability responsibilities as defined by the North Carolina Department of Environmental Quality and the North Carolina Department of Transportation.
3. Adjacent property owners are offered broad voting representation by membership in the organization, if any, that is delegated most immediate responsibility for development and management of the rail-trail by the sponsoring local government.
4. The North Carolina Department of Transportation has determined that there will not likely be a need to resume active rail service in the leased portion of the rail corridor for at least 10 years.
5. Any lease or other agreement allowing trail use includes terms for resumption of active rail use which will assure unbroken continuation of the corridor's perpetual use for railroad purposes and interim compatible uses.
6. Use of the rail corridor or portions thereof as a recreational trail does not interfere with the ultimate transportation purposes of the corridor as determined by the North Carolina Department of Transportation.

History

(1991, c. 751, s. 1; 1997-443, s. 11A.119(a); 2015-241, s. 14.30(u).)

Editor's Note. - This section was enacted as G.S. 136-44.36C. It was renumbered at the direction of the Revisor of Statutes.

Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.6, is a severability clause.

Effect of Amendments. - Session Laws 2015-241, s. 14.30(u), effective July 1, 2015, substituted "Department of Environmental Quality" for "Department of Environment and Natural Resources" in subdivision (2).

Legal Periodicals. - For a comment on the acquisition, abandonment, and preservation of rail corridors in North Carolina, see 75 N.C.L. Rev. 1989 (1997).

§ 136-44.37. Department to provide nonfederal matching share.

The Department of Transportation upon approval by the Board of Transportation and the Director of the Budget may provide for the matching share of federal rail revitalization assistance programs through private resources, county funds or State appropriations as may be provided by the General Assembly.

History

(1979, c. 658, s. 3; 1983, c. 717, s. 48; 1985 (Reg. Sess., 1986), c. 955, ss. 47, 48; 2006-203, s. 76.)

Editor's Note. - Session Laws 2006-203, s. 126, provides, in part: "Prosecutions for offenses committed before the effective date of this act [July 1, 2007] are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions."

§ 136-44.38. Department to provide State and federal financial assistance to cities and counties for rail revitalization.

1. The Department of Transportation is authorized to distribute to cities and counties State financial assistance for local rail revitalization programs provided that every rail revitalization project for which State financial assistance would be utilized must be approved by the Board of Transportation and by the Director of the Budget.
2. Repealed by Session Laws 1989, c. 600, s. 4.

History

(1979, c. 658, s. 3; 1983, c. 717, s. 48; 1985 (Reg. Sess., 1986), c. 955, ss. 49, 50; 1989, c. 600, s. 4; 2006-203, s. 77.)

Editor's Note. - This section is set out in the form above at the direction of the Revisor of Statutes.

Session Laws 2006-203, s. 126, provides, in part: "Prosecutions for offenses committed before the effective date of this act [July 1, 2007] are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions."

§ 136-44.39. Department to provide State and federal financial assistance to short-line railroads.

The Department of Transportation is authorized to provide assistance to short-line railroads to continue and enhance common carrier rail service in the State so as to assist in economic development and access to ports and military installations. Assistance under this section may include funds from the Rail Industrial Access Program, the Short Line Infrastructure Access Program, and any other programs that may exist or be established for these purposes. Grants under this section shall not exceed fifty percent (50%) of the nonfederal share and must be matched by equal or greater funding from the applicant.

History

(2011-145, s. 28.13; 2016-94, s. 35.21(b).)

Effect of Amendments. - Session Laws 2016-94, s. 35.21(b), effective July 1, 2016, in the section, inserted "common carrier" in the first sentence and substituted "include funds from the Rail Industrial Access Program" for "involve both the Rail Industrial Access Program and" and substituted "and any other programs that may exist or be established for these purposes" for "as well as other innovative programs" in the second sentence.

§§ 136-44.40 through 136-44.49: Reserved for future codification purposes.

§§ 136-44.50 through 136-44.54: Repealed by Session Laws 2019-35, s. 1, effective June 21, 2019.

History

(1987, c. 747, s. 19; 1989, c. 595, s. 1; 1998-184, s. 1; 2005-275, s. 1; 2005-418, s. 9; 2006-237, s. 1; 2008-180, s. 3; 2009-332, ss. 1, 2; 2009-570, s. 44; 2013-183, s. 4.4; 2013-360, s. 34.30; 2015-151, s. 1; 2016-90, s. 16; 2017-57, ss. 34.17A, 34.18; 2018-5, s. 34.9(a); repealed by 2019-35, s. 1, effective June 21, 2019.)

Editor's Note. - Former G.S. 136-44.50 pertained to the transportation corridor official map act. Former G.S. 136-44.51 pertained to the effect of the transportation corridor official map. Former G.S. 136-44.52 pertained to the variance from transportation of the corridor official map. Former G.S. 136-44.53 pertained to the advance acquisition of right-of-way within the transportation corridor. Former G.S. 136-44.54 pertained to the standard for appraisal of right-of-way within a transportation corridor.

Session Laws 2019-251, s. 1.4(a), provides: "Limitation on Funds to Pay Map Act Settlement Costs. - The Department of Transportation may use no more than one hundred fifty million dollars ($150,000,000) each fiscal year to pay compensation for damages arising from the Department's recordation of a transportation corridor map under Article 2E of Chapter 136 of the General Statutes (Map Act). This limitation does not apply to the payment of compensation for Map Act damages arising from a Turnpike project. For purposes of this section, the term 'Turnpike project' has the same meaning as in G.S. 136-89.181."

Session Laws 2019-251, s. 1.4(c), provides: "Subsection (a) of this section becomes effective December 1, 2019, and applies to all pending and future claims and causes of action arising from the recordation of a transportation corridor map under Article 2E of Chapter 136 of the General Statutes.

§ 136-45. General purpose of law; control, repair and maintenance of highways.

The general purpose of the laws creating the Department of Transportation is that said Department of Transportation shall take over, establish, construct, and maintain a statewide system of hard-surfaced and other dependable highways running to all county seats, and to all principal towns, State parks, and principal State institutions, and linking up with state highways of adjoining states and with national highways into national forest reserves by the most practical routes, with special view of development of agriculture, commercial and natural resources of the State, and, except as otherwise provided by law, for the further purpose of permitting the State to assume control of the State highways, repair, construct, and reconstruct and maintain said highways at the expense of the entire State, and to relieve the counties and cities and towns of the State of this burden.

History

(1921, c. 2, s. 2; C.S., s. 3846(a); 1943, c. 410; 1957, c. 65, s. 11; 1973, c. 507, s. 5; 1977, c. 464, s. 7.1; 2007-428, s. 2.)

Effect of Amendments. - Session Laws 2007-428, s. 2, effective August 23, 2007, near the middle of the section, inserted "except as otherwise provided by law" and made minor punctuation changes.

§§ 136-48 through 136-50: Repealed by Session Laws 1943, c. 410.

PART 2. COUNTY PUBLIC ROADS INCORPORATED INTO STATE HIGHWAY SYSTEM.

§ 136-51. Maintenance of county public roads vested in Department of Transportation.

From and after July 1, 1931, the exclusive control and management and responsibility for all public roads in the several counties shall be vested in the Department of Transportation as hereinafter provided, and all county, district, and township highway or road commissioners, by whatever name designated, and whether created under public, public-local, or private acts, shall be abolished:

Provided, that for the purpose of providing for the payment of any bonded or other indebtedness, and for the interest thereon, that may be outstanding as an obligation of any county, district, or township commission herein abolished, the boards of county commissioners of the respective counties are hereby constituted fiscal agents, and are vested with authority and it shall be their duty to levy such taxes on the taxable property or persons within the respective county, district, or township by or for which said bonds or other indebtedness were issued or incurred and as are now authorized by law to the extent that the same may be necessary to provide for the payment of such obligations; and the respective commissions herein abolished shall on or before July 1, 1931, turn over to said boards of county commissioners any moneys on hand or evidences of indebtedness properly applicable to the discharge of any such indebtedness (except such moneys as are mentioned in paragraph (a) above); and all uncollected special road taxes shall be payable to said boards of county commissioners, and the portion of said taxes applicable to indebtedness shall be applied by said commissioners to said indebtedness, or invested in a sinking fund according to law. All that portion of said taxes or other funds coming into the hands of said county commissioners and properly applicable to the maintenance or improvement of the public roads of the county shall be held by them as a special road fund and disbursed upon proper orders of the Department of Transportation.

Provided, further, that in order to fully carry out the provisions of this section the respective boards of county commissioners are vested with full authority to prosecute all suitable legal actions.

Nothing in this section shall prevent a county from participating in the cost of rights-of-way, construction, reconstruction, improvement, or maintenance of a road on the State highway system under agreement with the Department of Transportation. A county is authorized and empowered to acquire land by dedication and acceptance, purchase, or eminent domain and make improvements to portions of the State highway system lying within or outside the county limits utilizing local funds that have been authorized for that purpose. The provisions of G.S. 153A-15 apply to any county attempting to acquire property outside its limits. All improvements to the State highway system shall be done in accordance with the specifications and requirements of the Department of Transportation.

History

(1931, c. 145, s. 7; 1933, c. 172, s. 17; 1957, c. 65, s. 11; 1973, c. 507, s. 5; 1977, c. 464, s. 7.1; 2007-428, s. 3.)

Editor's Note. - In bringing forward Public Acts 1931, c. 145, s. 7, to appear as this section of the General Statutes, the paragraph formerly designated as subsection (a) was omitted, but the reference to it in the present second paragraph of the section was retained.

Effect of Amendments. - Session Laws 2007-428, s. 3, effective August 23, 2007, added the last paragraph.

§§ 136-52, 136-53: Repealed by Session Laws 1977, c. 464, s. 22.

PART 3. POWER TO MAKE CHANGES IN HIGHWAY SYSTEM.

§ 136-54. Power to make changes.

The Board of Transportation shall be authorized, when in its judgment the public good requires it, to change, alter, add to, or abandon and substitute new sections for, any portion of the State highway system.

History

(1927, c. 46, s. 1; 1933, c. 172, s. 17; 1957, c. 65, s. 11; 1965, c. 538, s. 2; 1967, c. 1128, s. 1; 1973, c. 507, s. 5; 1977, c. 464, s. 23.)

Cross References. - See case notes under G.S. 136-20.

§ 136-55.1. Notice of abandonment.

1. At least 60 days prior to any action by the Department of Transportation abandoning a segment of road and removing the same from the State highway system for maintenance, except roads abandoned on request of the county commissioners under G.S. 136-63, the Department of Transportation shall notify by registered mail or personal delivery all owners of property adjoining the section of road to be abandoned whose whereabouts can be ascertained by due diligence. Said notice shall describe the section of road which is proposed to be abandoned and shall give the date, place and time of the Department of Transportation meeting at which the action abandoning said section of road is to be taken.
2. In keeping with its overall zoning scheme and long-range plans regarding the extraterritorial jurisdiction area, a municipality may keep open and assume responsibility for maintenance of a road within one mile of its corporate limits once it is abandoned from the State highway system.

History

(1957, c. 1063; 1967, c. 1128, s. 3; 1973, c. 507, s. 5; 1977, c. 464, s. 7.1; 1993, c. 533, s. 13.)

§ 136-56: Repealed by Session Laws 1967, c. 1128, s. 4.

§ 136-57: Repealed by Session Laws 1965, c. 538, s. 1.

§ 136-58: Repealed by Session Laws 1977, c. 464, s. 22.

§ 136-59. No court action against Board of Transportation.

No action shall be maintained in any of the courts of this State against the Board of Transportation to determine the location of any State highways or portion thereof, by any person, corporation, or municipal corporation.

History

(1927, c. 46, s. 7; 1933, c. 172, s. 17; 1957, c. 65, s. 11; 1967, c. 1128, s. 5; 1973, c. 507, s. 5.)

Legal Periodicals. - For survey of 1980 administrative law, see 59 N.C.L. Rev. 1026 (1981).

§ 136-62. Right of petition.

The citizens of the State shall have the right to present petitions to the board of county commissioners, and through the board to the Department of Transportation, concerning additions to the system and improvement of roads. The board of county commissioners shall receive such petitions, forwarding them on to the Board of Transportation with their recommendations. Petitions on hand at the time of the periodic preparation of the secondary road plan shall be considered by the representatives of the Department of Transportation in preparation of that plan, with report on action taken by these representatives on such petitions to the board of commissioners at the time of consultation. The citizens of the State shall at all times have opportunities to discuss any aspect of secondary road additions, maintenance, and construction, with representatives of the Department of Transportation in charge of the preparation of the secondary road plan, and if not then satisfied opportunity to discuss any such aspect with the division engineer, the Secretary of Transportation, and the Board of Transportation in turn.

History

(1931, c. 145, s. 14; 1933, c. 172, s. 17; 1957, c. 65, s. 7; 1965, c. 55, s. 12; 1973, c. 507, s. 5; 1977, c. 464, ss. 7.1, 24, 24.1.)

§ 136-63. Change or abandonment of roads.

1. The board of county commissioners of any county may, on its own motion or on petition of a group of citizens, request the Board of Transportation to change or abandon any road in the secondary system when the best interest of the people of the county will be served thereby. The Board of Transportation shall thereupon make inquiry into the proposed change or abandonment, and if in its opinion the public interest demands it, shall make such change or abandonment. If the change or abandonment shall affect a road connecting with any street of a city or town, the change or abandonment shall not be made until the street-governing body of the city or town shall have been duly notified and given opportunity to be heard on the question. Any request by a board of county commissioners or street-governing body of a city refused by the Board of Transportation may be presented again upon the expiration of 12 months.
2. In keeping with its overall zoning scheme and long-range plans regarding the extraterritorial jurisdiction area, a municipality may keep open and assume responsibility for maintenance of a road within one mile of its corporate limits once it is abandoned from the State highway system.

History

(1931, c. 145, s. 15; 1957, c. 65, s. 8; 1965, c. 55, s. 13; 1973, c. 507, s. 221/2; 1975, c. 19, s. 45; 1977, c. 464, s. 25; 1993, c. 533, s. 14.)

§ 136-64. Filing of complaints with Department of Transportation; hearing and appeal.

In the event of failure to maintain the roads of the State highway system or any county road system in good condition, the board of county commissioners of such county may file complaint with the Department of Transportation. When any such complaint is filed, the Department of Transportation shall at once investigate the same, and if the same be well founded, the said Department of Transportation shall at once order the repair and maintenance of the roads complained of and investigate the negligence of the persons in charge of the roads so complained of, and if upon investigation the person in charge of the road complained of be at fault, he may be discharged from the service of the Department of Transportation. The board of commissioners of any county, who shall feel aggrieved at the action of the Department of Transportation upon complaint filed, may appeal from the decision of the Department of Transportation to the Governor, and it shall be the duty of the Governor to adjust the differences between the board of county commissioners and the Department of Transportation.

History

(1921, c. 2, s. 20; C.S., s. 3846(11); 1931, c. 145, s. 17; 1933, c. 172, s. 17; 1957, c. 65, s. 11; 1973, c. 507, s. 5; 1977, c. 464, s. 7.1.)

§ 136-64.1. Applications for intermittent closing of roads within watershed improvement project by Department of Transportation; notice; regulation by Department; delegation of authority; markers.

1. Upon proper application by the board of commissioners of a drainage district established under the provisions of Chapter 156 of the General Statutes of North Carolina, by the board of trustees of a watershed improvement district established under the provisions of Article 2 of Chapter 139 of the General Statutes, by the board of county commissioners of any county operating a county watershed improvement program under the provisions of Article 3 of Chapter 139 of the General Statutes, by the board of commissioners of any watershed improvement commission appointed by a board of county commissioners or by the board of supervisors of any soil and water conservation district designated by a board of county commissioners to exercise authority in carrying out a county watershed improvement program, the Department of Transportation, for roads coming under its jurisdictional control, is hereby authorized to permit the intermittent closing of any secondary road within the boundaries of any watershed improvement project operated by the applicants, whenever in the judgment of the Department of Transportation it is necessary to do so, and when the secondary road will be intermittently subject to inundation by floodwaters retained by an approved watershed improvement project.
2. Before any permit may be issued for the temporary inundation and closing of such a road, an application for such permit shall be made to the Department of Transportation by the public body having jurisdiction over the watershed improvement project. The application shall specify the secondary road involved, the anticipated frequency and duration of intermittent flooding of the secondary road involved, and shall request that a permit be granted to the applicant public body to allow the intermittent closing of the road.
3. Upon receipt of such an application the Department of Transportation shall give public notice of the proposed action by publication once each week for two consecutive weeks in a newspaper of general circulation in the county or counties within which the proposed intermittent closing of road or roads would occur; and such notices shall contain a description of the places of beginning and the places of ending of such intermittent closing. In addition, the Department of Transportation shall give notice to all public utilities or common carriers having facilities located within the rights-of-way of any roads being closed by mailing copies of such notices to the appropriate offices of the public utility or common carrier having jurisdiction over the affected facilities of the public utility or common carrier. Not sooner than 14 days after publication and mailing of notices, the Department of Transportation or the municipality may issue its permit with respect to such road.
4. The Department of Transportation shall have the discretion to deny any application submitted pursuant to this section, or it may grant a permit on any condition it deems warranted. The Department, however, shall consider the use of alternate routes available during flooding of the roads, and any inconvenience to the public or temporary loss of access to business, homes and property. The Department shall have the authority to promulgate regulations for the issuance of permits under this section and it may delegate the authority for the consideration, issuance or denial of such permits to the Chief Engineer. Any applicant granted a permit pursuant to this section shall cause suitable markers to be installed on the secondary road to advise the general public of the intermittent closing of the road or roads involved. Such markers shall be located and approved by the Chief Engineer.

History

(1975, c. 639, s. 1; 1977, c. 464, s. 7.1; 2012-85, s. 6.)

Effect of Amendments. - Session Laws 2012-85, s. 6, effective June 26, 2012, substituted "Chief Engineer" for "State Highway Administrator" twice in subsection (d).

§§ 136-65, 136-66: Repealed by Session Laws 1943, c. 410.

§ 136-66.1. Responsibility for streets inside municipalities.

Responsibility for streets and highways inside the corporate limits of municipalities is hereby defined as follows:

1. The State Highway System. - The State highway system inside the corporate limits of municipalities shall consist of a system of major streets and highways necessary to move volumes of traffic efficiently and effectively from points beyond the corporate limits of the municipalities through the municipalities and to major business, industrial, governmental and institutional destinations located inside the municipalities. The Department of Transportation shall be responsible for the maintenance, repair, improvement, widening, construction and reconstruction of this system. These streets and highways within corporate limits are of primary benefit to the State in developing a statewide coordinated system of primary and secondary streets and highways. Each highway division shall develop an annual work plan for maintenance and contract resurfacing, within their respective divisions, consistent with the needs, inasmuch as possible, as identified in the report developed in accordance with G.S. 136-44.3. In developing the annual work plan, the highway division shall give consideration to any special needs or information provided by the municipalities within their respective divisions. The plan shall be made available to the municipalities within the respective divisions upon request.
2. The Municipal Street System. - In each municipality the municipal street system shall consist of those streets and highways accepted by the municipality which are not a part of the State highway system. The municipality shall be responsible for the maintenance, construction, reconstruction, and right-of-way acquisition for this system.
3. Maintenance of State Highway System by Municipalities. - Any city or town, by written contract with the Department of Transportation, may undertake to maintain, repair, improve, construct, reconstruct or widen those streets within municipal limits which form a part of the State highway system, and may also, by written contract with the Department of Transportation, undertake to install, repair and maintain highway signs and markings, electric traffic signals and other traffic-control devices on such streets. All work to be performed by the city or town under such contract or contracts shall be in accordance with Department of Transportation standards, and the consideration to be paid by the Department of Transportation to the city or town for such work, whether in money or in services, shall be adequate to reimburse the city or town for all costs and expenses, direct or indirect, incurred by it in the performance of such work. The city or town under contract with the Department shall develop an annual work plan for maintenance of the State highway system consistent with the needs, inasmuch as possible, as identified in the report developed in accordance with G.S. 136-44.3. The annual work plan shall be submitted to the respective division engineers and shall be mutually agreeable to both parties.
4. If the governing body of any municipality determines that it is in the best interest of its citizens to do so, it may expend its funds for the purpose of making any of the following improvements on streets that are within its corporate limits and form a part of the State highway system:
   1. Construction of curbing and guttering.
   2. Adding of lanes for automobile parking.
   3. Constructing street drainage facilities which may by reasonable engineering estimates be attributable to that amount of surface water collected upon and flowing from municipal streets which do not form a part of the State highway system.
   4. Constructing sidewalks.
   5. Intersection improvements, if the governing body determines that such improvements will decrease traffic congestion, improve safety conditions, and improve air quality.

In exercising the authority granted herein, the municipality may, with the consent of the Department of Transportation, perform the work itself, or it may enter into a contract with the Department of Transportation to perform such work. Any work authorized by this subdivision shall be financed entirely by the municipality and be approved by the Department of Transportation.

The cost of any work financed by a municipality under this subdivision may be assessed against the properties abutting the street or highway upon which such work was performed in accordance with the procedures of either Article 10 of Chapter 160A of the General Statutes or any charter provisions or local acts applicable to the particular municipality.

History

(1959, c. 687, s. 1; 1969, cc. 798, 978; 1973, c. 507, s. 5; 1975, c. 664, s. 3; 1977, c. 464, s. 7.1; 1987, c. 747, s. 2; 1993 (Reg. Sess., 1994), c. 690, s. 1; 1995, c. 163, s. 14; 2005-382, s. 2.)

Effect of Amendments. - Session Laws 2005-382, s. 2, effective September 13, 2005, added the last three sentences to subdivision (1); and added the last two sentences to subdivision (3).

§ 136-66.2. Development of a coordinated transportation system and provisions for streets and highways in and around municipalities.

1. Each municipality, not located within a metropolitan planning organization (MPO) as recognized in G.S. 136-200.1, with the cooperation of the Department of Transportation, shall develop a comprehensive transportation plan that will serve present and anticipated travel demand in and around the municipality. The plan shall be based on the best information available including, but not limited to, population growth, economic conditions and prospects, and patterns of land development in and around the municipality, and shall provide for the safe and effective use of the transportation system. In the development of the plan, consideration shall be given to all transportation modes including, but not limited to, the street system, transit alternatives, bicycle, pedestrian, and operating strategies. The Department of Transportation may provide financial and technical assistance in the preparation of such plans. Each MPO, with cooperation of the Department of Transportation, shall develop a comprehensive transportation plan in accordance with 23 U.S.C. § 134. In addition, an MPO may include projects in its transportation plan that are not included in a financially constrained plan or are anticipated to be needed beyond the horizon year as required by 23 U.S.C. § 134. For municipalities located within an MPO, the development of a comprehensive transportation plan will take place through the metropolitan planning organization. For purposes of transportation planning and programming, the MPO shall represent the municipality's interests to the Department of Transportation.
2. After completion and analysis of the plan, the plan shall be adopted by both the governing body of the municipality or MPO and the Department of Transportation as the basis for future transportation improvements in and around the municipality or within the MPO. The governing body of the municipality and the Department of Transportation shall reach agreement as to which of the existing and proposed streets and highways included in the adopted plan will be a part of the State highway system and which streets will be a part of the municipal street system. As used in this Article, the State highway system shall mean both the primary highway system of the State and the secondary road system of the State within municipalities.
3. The Department of Transportation may participate in the development and adoption of a transportation plan or updated transportation plan when all local governments within the area covered by the transportation plan have adopted land development plans within the previous five years. The Department of Transportation may participate in the development of a transportation plan if all the municipalities and counties within the area covered by the transportation plan are in the process of developing a land development plan. The Department of Transportation may not adopt or update a transportation plan until a local land development plan has been adopted. A qualifying land development plan may be a comprehensive plan, land use plan, master plan, strategic plan, or any type of plan or policy document that expresses a jurisdiction's goals and objectives for the development of land within that jurisdiction. At the request of the local jurisdiction, the Department may review and provide comments on the plan but shall not provide approval of the land development plan.
4. The municipality or the MPO shall provide opportunity for public comments prior to adoption of the transportation plan.
5. Each county, with the cooperation of the Department of Transportation, may develop a comprehensive transportation plan utilizing the procedures specified for municipalities in subsection (a) of this section. This plan may be adopted by both the governing body of the county and the Department of Transportation. For portions of a county located within an MPO, the development of a comprehensive transportation plan shall take place through the metropolitan planning organization.
6. To complement the roadway element of the transportation plan, municipalities and MPOs may develop a collector street plan to assist in developing the roadway network. The Department of Transportation may review and provide comments but is not required to provide approval of the collector street plan.
7. From and after the date that the plan is adopted, the streets and highways designated in the plan as the responsibility of the Department of Transportation shall become a part of the State highway system and all such system streets shall be subject to the provisions of G.S. 136-93, and all streets designated in the plan as the responsibility of the municipality shall become a part of the municipal street system.
8. For municipalities not located within an MPO, either the municipality or the Department of Transportation may propose changes in the plan at any time by giving notice to the other party, but no change shall be effective until it is adopted by both the Department of Transportation and the municipal governing board. For MPOs, either the MPO or the Department of Transportation may propose changes in the plan at any time by giving notice to the other party, but no change shall be effective until it is adopted by both the Department of Transportation and the MPO.
9. Until the adoption of a comprehensive transportation plan that includes future development of the street system in and around municipalities, the Department of Transportation and any municipality may reach an agreement as to which existing or proposed streets and highways within the municipal boundaries shall be added to or removed from the State highway system.
10. Streets within municipalities which are on the State highway system as of July 1, 1959, shall continue to be on that system until changes are made as provided in this section.
11. The street and highway elements of the plans developed pursuant to G.S. 136-66.2 shall serve as the plan referenced in G.S. 136-66.10(a).

History

(1959, c. 687, s. 2; 1969, c. 794, s. 3; 1973, c. 507, s. 5; 1977, c. 464, s. 7.1; 2001-168, s. 1.)

Local Modification. - Village of Bald Head Island: 1997-324, s. 1.

§ 136-66.3. Local government participation in improvements to the State transportation system.

1. Municipal Participation Authorized. - A municipality may, but is not required to, participate in the right-of-way and construction cost of a State transportation improvement approved by the Board of Transportation under G.S. 143B-350(f)(4) that is located in the municipality or its extraterritorial jurisdiction.
2. Process for Initiating Participation. - A municipality interested in participating in the funding of a State highway improvement project may submit a proposal to the Department of Transportation. The Department and the municipality shall include their respective responsibilities for a proposed municipal participation project in any agreement reached concerning participation.
3. Type of Participation Authorized. - A municipality is authorized and empowered to acquire land by dedication and acceptance, purchase, or eminent domain, and make improvements to portions of the State transportation system lying within or outside the municipal corporate limits utilizing local funds that have been authorized for that purpose. All improvements to State transportation systems shall be done in accordance with the specifications and requirements of the Department of Transportation.
4. Repealed by Session Laws 2013-183, s. 4.5, effective July 1, 2013.
5. Distribution of State Funds Made Available by County or Municipal Participation. - Any State or federal funds allocated to a project that are made available by county or municipal participation in a project contained in the Transportation Improvement Program under G.S. 143B-350(f)(4) shall be subject to G.S. 136-189.11.
6. Repealed by Session Laws 2013-183, s. 4.5, effective July 1, 2013.
7. Pedestrian Safety Improvements. - The Department of Transportation shall accept and use any funding provided by a municipal government for a pedestrian safety improvement project on a State road within the municipality's limits, provided the municipality funds one hundred percent (100%) of the project and the Department of Transportation retains the right to approve the design and oversee the construction, erection, or installation of the pedestrian safety improvement.
8. Authorization to Participate in Development-Related Improvements. - When in the review and approval by a local government of plans for the development of property abutting a State transportation system it is determined by the municipality that improvements to the State highway system are necessary to provide for the safe and orderly movement of traffic, the local government is authorized to construct, or have constructed, said improvements to the State transportation system in vicinity of the development. For purposes of this section, improvements include but are not limited to additional travel lanes, turn lanes, curb and gutter, drainage facilities, and other transportation system improvements. All improvements to a State transportation system shall be constructed in accordance with the specifications and requirements of the Department of Transportation and be approved by the Department of Transportation.
9. Authorization to Participate in Project Additions. - Pursuant to an agreement with the Department of Transportation, a county or municipality shall reimburse the Department of Transportation for the cost of all improvements requested by the county or municipality, including additional rights-of-way, streets, highway improvement projects, or other transportation system improvements approved by the Board of Transportation under G.S. 143B-350(f)(4), that are in addition to those improvements that the Department of Transportation would normally include in the project. Requests for safety enhancements or efforts to facilitate the flow of traffic shall not be considered improvements under this subsection unless the enhancement or effort is in excess of the standard required by law.
10. Reimbursement Procedure. - Upon request of the county or municipality, the Department of Transportation shall allow the local government a period of not less than three years from the date construction of a project undertaken under subsection (e) of this section is initiated to reimburse the Department their agreed upon share of the costs necessary for the project. The Department of Transportation shall not charge a local government any interest during the initial three years.
11. Report to General Assembly. - The Department shall report in writing, on an annual basis, to the Joint Legislative Transportation Oversight Committee on all agreements entered into between counties, municipalities and the Department of Transportation. The report shall state in summary form the contents of the agreements. The information in the report required by this subsection shall be set forth separately for each division of the Department of Transportation.
12. Local Government Acquisition of Rights-of-Way. - In the acquisition of rights-of-way for any State street, highway, or other transportation project, the county or municipality shall be vested with the same authority to acquire such rights-of-way as is granted to the Department of Transportation in this Chapter. In the acquisition of such rights-of-way, counties and municipalities may use the procedures provided in Article 9 of this Chapter, and wherever the words "Department of Transportation" appear in Article 9 they shall be deemed to include "county," "municipality" or local governing body, and wherever the words "Administrator," "Administrator of Highways," "Administrator of the Department of Transportation," or "Chairman of the Department of Transportation" appear in Article 9 they shall be deemed to include "county or municipal clerk". It is the intention of this subsection that the powers herein granted to municipalities for the purpose of acquiring rights-of-way shall be in addition to and supplementary to those powers granted in any local act or in any other general statute, and in any case in which the provisions of this subsection or Article 9 of this Chapter are in conflict with the provisions of any local act or any other provision of any general statute, then the governing body of the county or municipality may in its discretion proceed in accordance with the provisions of such local act or other general statute, or, as an alternative method of procedure, in accordance with the provisions of this subsection and Article 9 of this Chapter.
13. Department Authority Concerning Rights-of-Way. - In the absence of an agreement, the Department of Transportation shall retain authority to pay the full cost of acquiring rights-of-way where the proposed project is deemed important to a coordinated State transportation system.
14. Changes to Local Government Participation Agreement. - Either the local government or the Department of Transportation may at any time propose changes in the agreement setting forth their respective responsibilities by giving notice to the other party, but no change shall be effective until it is adopted by both the municipal governing body and the Department of Transportation.
15. Local Governments Party to Rights-of-Way Proceeding. - Any municipality that agrees to contribute any part of the cost of acquiring rights-of-way for any State transportation system shall be a proper party in any proceeding in court relating to the acquisition of such rights-of-way.
16. Repealed by Session Laws 2008-180, s. 6, effective August 4, 2008.

History

(1959, c. 687, s. 3; 1965, c. 867; 1967, c. 1127; 1973, c. 507, s. 5; 1977, c. 464, s. 7.1; 1987, c. 747, s. 3; 1989, c. 595, ss. 2, 3; 1991, c. 21, s. 1; 2000-188, s. 1; 2001-245, s. 2; 2008-180, s. 6; 2009-266, s. 23; 2010-37, s. 1; 2013-183, s. 4.5; 2013-360, s. 34.30; 2015-241, ss. 29.5(a), 29.12(f).)

Local Modification. - Cities of Charlotte, Concord, and Monroe and the towns of Cary and Weddington: 2001-245, s. 2.

Editor's Note. - Session Laws 2015-241, s. 29.5(b), made the amendment to subsection (e) of this section by Session Laws 2015-241, s. 29.5(a), applicable to agreements entered into on or after September 18, 2015.

Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.6, is a severability clause.

Effect of Amendments. - Session Laws 2008-180, s. 6, effective August 4, 2008, substituted "local government" for "municipal" and inserted "county or" preceding "municipal" or "municipality" throughout the section and in the catchline; in subsection (c1), inserted "or by G.S. 136-51 and G.S. 136-98," substituted "G.S. 143B-350(f)(4)" for "G.S. 143B-350(f)(4) and located outside the municipality"; in subsection (f), inserted "counties"; in subsection (g), in the first sentence, substituted "highway, the county or municipality" for "highway in or around a municipality, the municipality," in the second sentence, inserted "counties and," substituted "'county,' 'municipality' or local" for "'municipality' or municipal," and inserted "county or"; and deleted subsection (k), relating to Specified County Participation.

Session Laws 2009-266, s. 23, effective August 1, 2009, substituted "transportation" for "highway" throughout the section; in subsection (c), substituted "to transportation systems" for "the State highway system" in the last sentence; in subsection (d), substituted "a State transportation system" for "the State highway system" in the first and last sentences, and in the second sentence, inserted "and other transportation system improvements" at the end, and made a related stylistic and punctuation change; in subsection (e), inserted "or other transportation system improvements" and made a related stylistic and punctuation change; in subsection (g), substituted "State street, highway, or other transportation project" for "State highway system street or"; and in subsection (j), substituted "transportation system" for "highway system street or highway."

Session Laws 2010-37, s. 1, effective July 1, 2010, added subsection (c4).

Session Laws 2013-183, s. 4.5, effective July 1, 2013, deleted subsections (c1) and (c3); substituted "be subject to G.S. 136-189.11" for "remain in the same funding region that the funding was allocated to under the distribution formula contained in G.S. 136-17.2A" in subsection (c2); and substituted "a project undertaken under subsection (e) of this section" for "the project" in subsection (e1).

Session Laws 2015-241, s. 29.5(a), effective September 18, 2015, in subsection (e), substituted "shall reimburse the Department of Transportation for the cost of all improvements requested by the county or municipality, including additional rights-of-way, streets" for "may reimburse the Department of Transportation for the cost of all improvements, including additional right-of-way, for a street" in the first sentence, and added the second sentence. For applicability, see editor's note.

Session Laws 2015-241, s. 29.12(f), effective July 1, 2015, in subsection (f), substituted "an annual basis, to the Joint Legislative Transportation Oversight Committee" for "a monthly basis, to the Joint Legislative Commission on Governmental Operations" in the first sentence, made a minor stylistic change in the second sentence, added the last sentence.

§ 136-66.4. Rules and regulations; authority of municipalities.

The Department of Transportation shall have authority to adopt such rules and regulations as are necessary to carry out the responsibilities of the Department of Transportation under this Article, and municipalities shall have and may exercise such authority as is necessary to carry out their responsibilities under this Article.

History

(1959, c. 687, s. 4; 1973, c. 507, s. 5; 1977, c. 464, s. 7.1.)

§ 136-66.5. Improvements in urban areas to reduce traffic congestion.

1. The Department of Transportation is authorized to enter into contracts with municipalities for improvement projects which are a part of an overall plan authorized under the provisions of section 135 of Title 23 of the United States Code, the purpose of which is to facilitate the flow of people and goods in urban areas. In connection with these contracts, the Department of Transportation and the municipalities are authorized to enter into contracts for improvement projects on the municipal system of streets, and pursuant to contract with the municipalities, the Department of Transportation is authorized to construct or to let to contract the said improvement projects on streets on the municipal street system or other transportation system; provided that no portion of the cost of the improvements made on the municipal system shall be paid from Department of Transportat