Tustin Municipal Code Ch. 5 Underground Utility Districts

This Chapter is known as the Underground Utility Ordinance, and is enacted to provide procedures for undergrounding of overhead distribution facilities of public utilities, and is enacted pursuant to the decisions, rules and regulations of the California Public Utilities Commission, and is intended to be in conformity with Case Nos. 8208 and 8209, General Orders 95 and 128. (Ord. No. 411, Sec. 1)

Whenever in this Chapter the words or phrases hereinafter defined are used, they shall have the respective meanings assigned to them.

"Commission" shall mean the Public Utilities Commission of the State of California.

"Underground Utility District" or "District" shall mean that area in the City within which poles, overhead wires, and associated overhead structures are prohibited, as such area is described in a resolution adopted pursuant to the provisions of Section 7502d of this Chapter.

"Person" shall mean and include individuals, firms, corporations, partnerships, and their agents and employees.

"Poles, overhead wires and associated overhead structures" shall mean poles, towers, supports, wires, conductors, guys, stubs, platforms, crossarms, braces, transformers, insulators, cutouts, switches, communication circuits, appliances, attachments and appurtenances located above ground within a District and used or useful in supplying electric, communication or similar or associated service.

"Utility" shall include all persons or entities supplying electric, communication or similar or associated service by means of electrical materials, or devices. (Ord. No. 411, Sec. 2)

a Public Hearing by Council

1. The Council may from time to time call public hearings to ascertain whether the public necessity, health, safety or welfare requires the removal of poles, overhead wires and associated overhead structures within designated areas of the City and the underground installation of wires and facilities for supplying electric, communication, or similar or associated service, and to establish an Underground Utility District or Districts.

2. Not less than ten (10) days prior to the date of any such public hearing, the City Clerk shall mail to all persons owning real property within the proposed District, as shown on the last equalized assessment roll, and all affected utilities, a Notice of the time and place of said hearing, and a statement that the City Engineer's report containing details of the District, will be available for inspection by the public in the Office of the City Clerk prior to said hearing.

3. Each such hearing shall be open to the public, and may be continued from time to time. At such hearings all interested persons shall be given an opportunity to be heard.

4. The Council shall make a determination as to whether the replacement of existing overhead distribution facilities with underground distribution facilities along public streets and roads, and on public lands and private property across which rights-of-way satisfactory to the utility have been obtained, or may be obtained without cost or condemnation, would be in the general public interest for any reason or reasons set forth by applicable rules and regulations of the California Public Utilities Commission as a basis for undergrounding at utility expense, as such rules and regulations provide at the time of such determination, which said rules and regulations at this time provide for such undergrounding where:

(a) Such undergrounding will avoid or eliminate an unusually heavy concentration of overhead distribution facilities;

(b) A street, road or right-of-way is extensively used by the general public, and carries a heavy volume of pedestrian or vehicular traffic.

(c) A street, road or right-of-way adjacent to overhead distribution facilities adjoins or passes through a civic area or public recreation area, or an area of unusual scenic interest to the general public. (Ord. No. 411, Sec. 3)

b Advisory Committee

To assist in advising the City relative to undergrounding of utilities an Underground Utilities Committee shall be appointed by the City Administrator, who shall act as its Chairman, and which shall be composed of a representative of each affected utility, the City Engineer, and such of the following persons as may be designated by the City Administrator to serve from time to time: The Director of Public Works, City Attorney, Planning Director, members of the public, and others. (Ord. No. 411, Sec. 4)

c Report of City Engineer

Prior to holding such public hearing, the City Engineer shall consult with all affected utilities and shall prepare a report for submission at such hearing, containing, among other information, the extent of such utilities' participation and estimates of the total costs to the City and affected property owners. Such report shall also contain an estimate of the time required to complete such underground installation and removal of overhead facilities. A copy of said report shall be filed in the Office of the City Clerk prior to the hearing, and shall thereafter remain available for public inspection. (Ord. No. 411, Sec. 5)

d Council may designate Underground Utility District by Resolution

If, after any such public hearing, the Council finds that the public necessity, health, safety or welfare requires such removal and such underground installation within a designated area, the Council shall, by resolution, declare such designated area an Underground Utility District, and order such removal and underground installation. Such resolution shall include a description of the area comprising such district and shall fix the time within which such removal and underground installation shall be accomplished and within which affected property owners must be ready to receive underground service. A reasonable time shall be allowed for such removal and underground installation, having due regard for the availability of labor, material and equipment necessary for such removal and for the installation of such underground facilities as may be occasioned thereby. (Ord. No. 411, Sec. 6)

e Unlawful Acts

Whenever the Council creates an Underground Utility District and orders the removal of poles, overhead wires and associated overhead structures therein, as provided in Section 7502d hereof, it shall be unlawful for any person or utility to erect, construct, place, keep, maintain, continue, employ or operate poles, overhead wires and associated overhead structures 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 7505b 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. 411, Sec. 7)

a Emergency or Unusual Circumstances

Notwithstanding the provisions of this Chapter, overhead facilities may be installed and maintained for a period, not to exceed ten (10) days, without authority of the Director of Public Works in order to provide emergency service. The Director of Public Works may grant special permission on such terms as he may deem appropriate, in cases of unusual circumstances, without discrimination as to any person or utility, to erect, construct, install, maintain, use or operate poles, overhead wires and associated overhead structures. (Ord. No. 411, Sec. 8)

b Other Exceptions

This Chapter and any resolutions adopted pursuant thereto, shall not apply to the following types of facilities, unless otherwise provided in said resolution:

1. Any municipal facilities or equipment installed under the supervision and to the satisfaction of the City Engineer.

2. Poles, or electroliers used exclusively for street lighting.

3. Overhead wires (exclusive of supporting structures), crossing any portion of a District within which overhead wires have been prohibited, or connecting to buildings on the perimeter of a district, when such wires originate in an area from which poles, overhead wires and associated overhead structures are not prohibited.

4. Poles, overhead wires and associated overhead structures used for the transmission of electric energy at nominal voltages in excess of 34,500 volts.

5. 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 on the same building or to an adjacent building without crossing any public street.

6. Antennae, associated equipment and supporting structures, used by a utility for furnishing communication services.

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

8. Temporary poles, overhead wires and associated overhead structures used or to be used in conjunction with construction projects. (Ord. No. 411, Sec. 9)

Within ten (10) days after the effective date of the resolution adopted pursuant to Section 7502d hereof, the City Clerk shall mail to all persons owning real property within the District created by said resolution, as shown on the last equalized assessment roll, and to all affected utilities, a copy of said resolution, together with a copy of this Chapter, together with a statement of the necessity that if they or any person occupying such property desire to continue to receive electric, communication or similar associated service, they or such occupant shall provide all necessary facility changes on their premises so as to receive such service from the lines of the supplying utility or utilities at a new location subject to the applicable rules, regulations and tariffs of the respective utility or utilities on file with the Commission, together with a statement that the City Engineer's report containing details of the District, is available for inspection by the public in the Office of the City Clerk. (Ord. No. 411, Sec. 10)

a Responsibility of Utility Companies

If underground construction is necessary to provide utility service within a District created by any resolution adopted pursuant to Section 7502d 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. (Ord. No. 411, Sec. 11)

b Responsibility of Property Owners

1. Every person owning, operating, leasing, occupying or renting a building or structure within a District shall construct and provide that portion of the service connection on his property between the facilities referred to in Section 7505a and the termination facility on or within said building or structure being served, subject to the applicable rules, regulations and tariffs of the respective utility or utilities on file with the Commission.

2. The service connection shall be completed and ready for service in accordance with the construction schedule supplied by the City Engineer, as hereinafter provided. Prior to start of construction the City Engineer, as hereinafter provided. Prior to start of construction the City Engineer shall mail, postage prepaid, to owners and occupants in the manner provided in Section 7504 hereof, a construction notice, specifying the service connection work to be done, and the date on or before which said service connection shall be completed and ready for use. Said notice shall also advise the addressee that, in the event any required service connection has not been completed to meet the construction program of the utility concerned, or the date stipulated in said notice, whichever is later, the City Engineer may post written notice upon the property being served and thirty (30) days thereafter, may authorize the disconnection and removal of any and all overhead service wires and associated facilities supplying utility service to said property, and/or may immediately undertake to provide the required service connection by force account or by contract; provided, however, that if there is no occupant and no utility service is being furnished, the City Engineer shall have the option to order removal of any existing poles, overhead wires and associated overhead structures, without replacement thereof.

3. Within five (5) days after a construction schedule has been mailed to any owner of property as provided in this Section, any owner desiring to protest the requirement that he comply with the provisions of this Chapter, or to protest the City undertaking to provide the required service, may make written request to the City for public hearing by the City Council. The City Council shall then set a time and place no less than fifteen (15) days thereafter, and at said time shall hear and consider the property owner's protest and shall affirm or modify the requirements for said property owner to comply with the provisions of this Section.

4. Upon completion of the work by the City Engineer, he shall file a written report with the Council, setting forth the facts that the required underground facilities have been provided and/or that the poles, overhead wires and associated overhead structures have been removed, and the cost thereof, together with the legal description and Assessor's parcel number of each such parcel of property against which said cost is to be assessed.

5. The Council shall then set a time and place, not less than fifteen (15) days thereafter, for hearing protests against said assessments, and authorize the City Clerk to give notice thereof to each such owner and/or occupant in the manner provided in Section 7504 hereof. The notice shall include the name and address of the owner, description of the work done and cost thereof, and the time and place set for the hearing of protests.

6. At the time and place set for said hearing, the Council shall hear and consider said protests and the report of the City Engineer, and upon conclusion of such consideration, shall affirm, modify, or reject each proposed assessment. The Council shall then direct the City Clerk to give notice to the owner of each property so assessed in the manner provided in Section 7504 hereof, stating the amount of the affirmed assessment, and that same is to be paid within five (5) days after receipt of said notice. Any such assessment remaining unpaid thereafter shall then become a lien against said property, and shall be forwarded by the City Clerk to the Assessor to be included in the next regular property tax bill levied against the premises, said assessment to be due and payable with said tax. Any such assessment shall bear interest from one (1) month after affirmation thereof, at the rate of six percent (6%) per annum. (Ord. No. 411, Sec. 12)

c Responsibility of City

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 7502d hereof. (Ord. No. 411, Sec. 13)

d Modification and Abandonment

1. The City Council may terminate, abandon, modify, or enlarge any District or Districts, or the boundaries thereof, upon public hearing, conducted as provided in Section 7502a hereof, and upon findings that the public health, safety or welfare require such termination, abandonment, modification or enlargement.

2. In the event that any act required by this Chapter or by a resolution adopted pursuant to Section 7502b hereof cannot be performed within the time provided on account of shortage of materials, war, restraint by public authorities, strikes, labor disturbances, civil disobedience, or any other circumstances beyond the control of the actor, the time within which such act will be accomplished shall be extended for a period equivalent to the time of such limitation. (Ord. No. 411, Sec. 14 and 15)