Del Mar Municipal Code Ch. 23.54 Underground Utility Districts

As used in this Chapter, the following words or phrases, and any variants thereof, shall have the respective meanings assigned to them in the following definitions:

Cable operator has the same meaning as defined in Section 5830 of the Public Utilities Code.

Cable television service has the same meaning as "cable service" as defined in Section 5830 of the Public Utilities Code.

Commission means the Public Utilities Commission of the State of California.

Communication service means the transmission of intelligence by electrical means, including, but not limited to, telephone, telegraph, messenger-call, clock, police, fire alarm, and traffic control circuits, and circuits for the transmission of television or radio signals.

Electric service means the distribution of electricity for the purposes of heat, light, power, etc.

Electric or communication facilities means any works or improvements used or useful in providing electrical, cable television, or communication service, including, but not limited to, poles, towers, supports, tunnels, manholes, vaults, conduits, pipes, wires, cables, conductors, guys, stubs, platforms, crossarms, braces, transformers, insulators, cutouts, switches, capacitors, meters, communication circuits, appliances, attachments, antennas, pull/connection boxes, and other appurtenances. "Electric facilities" does not include any facilities used or intended to be used for the transmission of electric energy at nominal voltages as defined by the industry, e.g. in excess of 35,000 volts.

Overhead electric or communication facilities means electrical, cable television, or communication facilities located, in whole or in part, above the surface of the ground.

Person means individuals, firms, corporations, partnerships, and their agents and employees.

Underground Utility District or District means an area in the City described in a resolution adopted pursuant to the provision of Section 23.54.030 of this Chapter, within which poles, overhead wires, and associated overhead electric or communication facilities are prohibited.

Utility means all persons or entities supplying electric, communication, or similar or associated service.

(Ord. No. 62; Ord. No. 272; Ord. No. 430; Ord. No. 958, § 1, 2-18-2020)

The Council may, from time to time, hold public hearings to ascertain whether the public health, safety or welfare requires the removal of overhead electric or communication facilities within designated areas of the City and the underground installation of electric or communication facilities. The City Clerk shall notify all affected property owners, as shown on the last equalized assessment roll and utilities concerned, by mail of the time and place of such hearings at least ten days prior to the date thereof. Each such hearing shall be open to the public and may be continued from time to time. At each such hearing all persons interested shall be given an opportunity to be heard.

(Ord. No. 958, § 2, 2-18-2020)

If, after the public hearing, the Council finds that the public health, safety or general welfare requires removal of overhead electric or communication facilities, and underground installation of electric or communication facilities within a designated area, the Council shall, by resolution, declare all or any portion of the designated area an underground utility district and order the removal and underground installation. The decision of the Council shall be final and conclusive. The resolution shall include a description and map of the area comprising the district. It shall also provide that the Council shall, by subsequent resolution, fix the time within which:

A. Property in the district must be ready to receive underground service, and

B. Overhead electric or communication facilities shall be removed.

A reasonable time shall be allowed for removal and underground installation, having due regard for the availability of labor, materials, and equipment necessary for such removal and for the installation of such underground facilities as may be occasioned thereby. Immediately following adoption of the subsequent resolution setting the time by which overhead facilities must be removed and properties must be ready to receive underground service, the City Clerk shall cause a certified copy of the resolution to be recorded in the office of the County Recorder.

(Ord. No. 958, § 3, 2-18-2020)

Whenever the Council creates an underground utility district and orders the removal of overhead electric or communication facilities therein as provided in Section 23.54.030 hereof, it shall be unlawful for any person or utility to erect, construct, place, keep, maintain, continue, employ or operate overhead electric or communication facilities in the district after the date when said overhead facilities are required to be removed by such resolution, except as said overhead facilities may be required to furnish service to an owner or occupant of property prior to the performance by such owner or occupant of the underground work necessary for such owner or occupant to continue to receive utility service as provided in Section 23.54.090 hereof, and for such reasonable time required to remove said facilities after said work has been performed and except as otherwise provided in this Chapter.

(Ord. No. 958, § 4, 2-18-2020)

Notwithstanding the provisions of this Chapter, overhead facilities may be installed and maintained for a period, not to exceed ten days, without authority of the Council in order to provide emergency service. The Council may grant special permission, on such terms as the Council may deem appropriate, in cases of unusual circumstances, without discrimination as to any person or utility, to erect, construct, install, maintain, use or operate overhead electric or communication facilities.

(Ord. No. 958, § 5, 2-18-2020)

This Chapter and any resolution adopted pursuant to Section 23.54.030 hereof, unless otherwise provided in such resolution, shall not apply to the following types of facilities:

A. Any municipal facility or equipment installed under the supervision and to the satisfaction of the City Engineer.

B. Overhead electric or communication facilities used exclusively for street lighting or signalization.

C. Overhead wires which originate on a pole outside the boundaries of a district and terminate at a point of service on a building within the district.

D. Overhead wires, either existing or new, which cross any portion of a district but are suspended from poles, structures or towers located outside the district.

E. Overhead wires attached to the exterior surface of a building by means of a bracket or other fixture and extending from one location on the building to another location of the same building or to an adjacent building without crossing any public street.

F. Antenna, associated equipment and supporting structures used by a utility for furnishing communication services.

G. Equipment appurtenant to underground facilities, such as surface mounted transformers, pedestal mounted terminal boxes and meter cabinets, and concealed ducts.

H. Temporary overhead electric or communication facilities used or to be used in conjunction with construction projects.

I. Stub poles, anchors and guy wires originating in the district but used to support poles outside district.

(Ord. No. 958, § 6, 2-18-2020)

A. Within ten days after the effective date of a resolution adopted pursuant to Section 23.54.030 hereof, the City Clerk shall notify all affected utility companies and all affected property owners of the provisions of the resolution. The City Clerk specifically shall notify the affected persons that, if they desire to continue to receive electric, communication, community antenna television or similar or associated service, they shall provide, at their own expense, all facility changes on their premises necessary to receive underground service from the lines relocated underground of the supplying utility company subject to applicable rules, regulations, and tariffs of the respective utility company on file with the commission and to all other applicable requirements of State laws and City ordinances.

B. Within 15 days of adoption by the Council of the resolution fixing the time within which conversions on private property and pole removal must be accomplished, the City Clerk shall further notify all affected utilities and affected persons that the work required to change the facilities on the premises so as to receive electric, communication, or community antenna television or similar or associated service provided or to be provided by the utility company shall be accomplished on or before the applicable date set forth in the resolution. This notice shall also state the date all poles and related overhead structures are to be removed from within the district.

C. Notices given under this section may be given either by personal service or by mail to affected property owners as such are shown on the last equalized assessment roll and to the affected utilities.

(Ord. No. 958, § 7, 2-18-2020)

If underground construction is necessary to provide utility service within a district created by any resolution adopted pursuant to Section 23.54.030 hereof, the supplying utility shall furnish that portion of the conduits, conductors and associated equipment required to be furnished by it under its applicable rules, regulations and tariffs on file with the commission.

Every person owning, operating, leasing, occupying or renting a building or structure within a district shall perform construction and provide that portion of the service connection on his property between the facilities referred to in Section 23.54.080, and the termination facility on or within said building or structure being served, all in accordance with applicable rules, regulations and tariffs of the respective utility or utilities on file with the commission and in accordance with applicable requirements of State laws and City ordinances.

In the event any person owning, operating, leasing, occupying or renting said property does not comply with the provisions of Section 23.54.090 within the time provided for in the resolution enacted pursuant to the provisions of Section 23.54.030 hereof, the City Engineer shall post written notice on the property being served and 30 days thereafter shall have the authority to order the disconnecting and removal of any and all overhead service wires and associated facilities supplying utility service to said property.

If the requirements of Section 23.54.090 are not accomplished in accordance with said provisions and within the time provided for in the resolution enacted pursuant to Section 23.54.030 hereof, the City Engineer may determine that the method of enforcement provided in Section 23.54.100 hereof is not an efficient or effective method of enforcement, and may pursue the following procedure for enforcement of the responsibility of property owners set forth in Section 23.54.090.

A. The City Engineer shall give notice in writing to the person in possession of such premises, and a notice in writing to the owner thereof as shown on the last equalized assessment roll, to provide the required underground facilities within ten days after receipt of such notice.

B. The notice to provide the required underground facilities may be given either by personal service or by mail. In case of service by mail of either of such persons, the notice must be deposited in the United States mail in a sealed envelope with postage prepaid, addressed to the person in possession of such premises at such premises, and the notice must be addressed to the owner thereof as such owner's name appears, and must be addressed to such owner's last known address as the same appears on the last equalized assessment; and when no address appears, to General delivery, City of Del Mar. If notice is given by mail, such notice shall be deemed to have been received by the person to whom it has been sent within 48 hours after the mailing thereof. If notice is given by mail to either the owner or occupant of such premises, the City Engineer shall, within 48 hours after the mailing thereof, cause a copy thereof, printed on a card not less than eight inches by ten inches in size, to be posted in a conspicuous place on said premises.

C. The notice given by the City Engineer to provide the required underground facilities shall particularly specify what work is required to be done, and shall state that if said work is not completed within 30 days after receipt of such notice, the City Engineer will either provide such required underground facilities or authorize erecting an individual pole on that property to continue to provide above ground service, in which case the cost and expense of either option, including engineering, legal, advertising and all incidental expenses, will be assessed against the property benefited and become a lien upon such property.

D. If, upon the expiration of the 30-day period, the said required underground facilities have not been provided, the City Engineer shall forthwith proceed to do the work, provided, however, if such premises are unoccupied and no electric or communication services are being furnished thereto, the City Engineer shall, in lieu of providing the required underground facilities or erecting an individual pole, have the authority to order the disconnection and removal of any and all overhead electric or communication facilities supplying utility service to said property. Upon completion of the work by the City Engineer, he shall file a written report with the City Council, setting forth the fact that the required underground facilities have been provided or that an individual pole has been erected and the cost thereof together with a legal description of the property against which such cost is to be assessed. The Council shall thereupon fix a time and place for hearing protests against the assessment of the cost of such work upon such premises, which said time shall not be less than ten days thereafter.

E. The City Engineer shall forthwith, upon the time for hearing such protests having been fixed, give a notice in writing to the person in possession of such premises and a notice in writing to the owner thereof, in the manner hereinabove provided for the giving of the notice to provide the required underground facilities, of the time and place that the Council will pass upon such report and will hear protests against such assessment. Such notice shall also set forth the amount of the proposed assessment.

F. Upon the date and hour set for the hearing of protests, the Council shall hear and consider the report and all protests, if there are any, and then proceed to affirm, modify or reject the assessment.

G. If any assessment is not paid within five days after its confirmation by the Council, the amount of the assessment shall become a lien upon the property against which the assessment is made by the City Engineer, and said City Engineer shall turn over to the assessor and tax collector a notice of lien on each of said properties on which the assessment has not been paid, and said assessor and tax collector shall add the amount of said assessment to the next regular bill for taxes levied against the premises upon which said assessment was not paid. Said assessment shall be due and payable at the same time as said property taxes are due and payable, and if not paid when due and payable, shall bear interest at the rate of eight percent per annum.

(Ord. No. 958, § 8, 2-18-2020)

City shall remove at its own expense all City-owned equipment from all poles required to be removed hereunder, in ample time to enable the owner or user of such poles to remove the same within the time specified in the resolution enacted pursuant to Section 23.54.030.

In the event that any act required by this Chapter or by a resolution adopted pursuant to Section 23.54.030 hereof cannot be performed within the time provided on account of short-age of materials, war, restraint by public authorities, strikes, labor disturbances, civil disobedience, or any other circumstances beyond the control of the act, then the time within which such act will be accomplished shall be extended for a period equivalent to the time of such limitation.

It shall be unlawful for any person to violate any provision or to fail to comply with any of the requirements of this Chapter. Any person violating any provision of this Chapter or failing to comply with any of its requirements shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not exceeding $500.00 or by imprisonment not exceeding six months, or by both such fine and imprisonment. Each such person shall be deemed guilty of a separate offense for each day during any portion of which any violation of any of the provisions of this Chapter is committed, continued or permitted by such person, and shall be punishable therefore as provided for in this Chapter.