CITY OF HOMER

HOMER, ALASKA

City Manager

ORDINANCE 05-39(S)

 AN ORDINANCE OF THE HOMER CITY COUNCIL AMENDING HOMER CITY CODE  TITLE 13 BY ADDING A NEW CHAPTER 13.50 ENTITLED "UNDERGROUND UTILITIES REQUIRED", AND PROVIDING FOR AN EFFECTIVE DATE.

 WHEREAS, Residents and visitors alike are attracted to Homer because of its stunning natural setting and expansive, scenic views, and

 WHEREAS, Homer's economy, physical attractiveness, and quality of life are closely tied to maintaining and improving expansive and unrestricted views of its scenic resources, and

 WHEREAS, The Council, the Planning Commission, the Parks and Recreation Commission, other organizations, and City residents have been working to make Homer a more attractive place to live and conduct business by performing community clean-ups, expanding the parks and trails network, and adopting new design, construction, and site development standards, and

 WHEREAS, The City Council believes that placing all utilities underground is consistent with the Comprehensive Plan and that it will promote business, enhance the quality of life, improve the physical attractiveness of the community, and promote public safety, and

WHEREAS, the community has been discussing this idea since the mid-1980's when the City Council formed the Underground Utilities Task Force. The Council believes that the time is right to address this issue in a more comprehensive manner in cooperation with all local utilities.

NOW THEREFORE, THE CITY OF HOMER HEREBY ORDAINS:

Section 1. Homer City Code Title 13 is hereby amended by adding a new Chapter 13.50 which shall read as follows:

 Chapter 13.50

UNDERGROUND UTILITIES REQUIRED

Sections:

13.50.010   Applicability

13.50.020   Definitions

13.50.030   Underground Utilities - Subdivisions

13.50.040   Underground Utilities Required- New or Relocated Overhead Utilities

13.50.050    Nonconforming Overhead Lines - Generally

13.50.060    Nonconforming Overhead Lines - Designation of Target Areas

13.50.070    Nonconforming Overhead Lines - Compliance Requirements

13.50.080    Nonconforming Overhead Lines - State and Municipal Rights of Way

13.50.090    Nonconforming Overhead Lines - Service Connections

13.50.100    Enforcement

13.50.110    Appeals

            13.50.010 Applicability. This Chapter requires that all utilities within the City of Homer, including, but not limited to, electric lines, telephone lines, [ and ] CATV and internet cables, be placed underground. This Chapter applies to utilities located within public road right of ways and to utilities and associated facilities located in easements reserved for their use. It also applies to utilities that may be located in places where easements do not exist. This Chapter prescribes a "phase- in" approach to placing all utilities underground.

            13.50.020 Definitions. The following words, terms, and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except when the context clearly indicates a different meaning:

" CATV" means a utility that operates non-broadcast facilities that distribute to subscribers the signals of one or more television broadcast stations.

" Central Office" means a utility facility where messages, impressions, pictures, or signals are generated, received, or controlled.

"Distribution Substation" means a utility facility where the electric voltage is transformed for distribution through a substation transformer.

"Joint Trench" means a trench excavated for the underground placement of utility distribution lines owned and operated by two or more utilities.

"Municipal Street Improvements" means street construction or projects within the right-of-way used by motor vehicles and funded by the [municipality] City of Homer.

"Reinforcement" means repair, replacement, or addition of a crossarm, guy, pole, stub, or conductor for a utility distribution facility.

"Relocation" means a change of alignment of more than six spans.

"Right of Way" means land, property, or interest therein, usually in a strip, acquired for or dedicated to the public for a street, road, or utility. 

"Service Connection" means conductors transmitting utility service from a utility distribution line to a customer's riser or service entrance.

"State Highway Project" means a highway project which has received design authorization from the Federal Highway Administration or legislative approval from the state legislature.

"Substation Transformer" means a utility facility that transforms electric voltage to the level supplied to the distribution system.

" Subdivider" means a person, firm, association, partnership, corporation, governmental unit, or combination of any of these which may hold any recorded or equitable ownership interest in land, and dividing or proposing to divide such land so as to constitute a subdivision as defined in [Title] HCC 22.10.050. This term shall also include all heirs, assigns, or successors in interest, or representatives of, the subdivider, owner, proprietor, or developer.

" Subdivision" means the division of a tract or parcel of land into two or more lots, sites, or other divisions for the purpose, whether immediate or future, of sale, lease, or building development, including any subdivision or resubdivision. When appropriate, to the context, the term shall refer to the process of subdividing or to the land or areas subdivided.   

"Target Area" means an area designated under Section 13.50.060 as a location in which overhead distribution lines are to be placed underground as provided in this chapter. 

"Utility" means a public utility as defined in AS 42.05.701 furnishing electric service or telecommunications services. Utility as defined herein does not include water and sewer utilities.

"Utility Distribution Line" means all or any part of a conductor and supports owned or operated by a utility and used to transmit no more than 35 KV of energy or to transmit messages impressions, pictures or signals by means of electricity or electromagnetic waves between a distribution substation or central office and the lot line of a customer's premises, excluding auxiliary equipment such as above ground transformers, switching devices, pad mounted distribution facilities and CATV power supplies.

"Utility Easement" means an interest in land or property that has been granted to or acquired by a public utility for the purpose of locating and constructing distribution lines and other equipment and facilities necessary for the delivery of services.

13.50.030 Underground Utilities - Subdivisions. Utilities in new residential subdivisions developed after January 27, 1987 [(Ordinance 86-39(S))] are required to be placed underground pursuant to the provisions of HCC 22.10.055.

13.50.040 Underground Utilities Required - New or Relocated Overhead Utilities. a. After the effective of the enabling ordinance for this section, all newly installed utility lines and all relocated existing overhead utility lines shall be placed underground. This also applies to all new service connections [as well] and to all service connections to relocated existing overhead utilities when they are placed underground. Existing overhead utility lines on property that is subdivided are subject to the provisions of HCC 22.10.055 (b).  

            b. Appurtenances such as transformers, switching boxes, terminal boxes, meter cabinets, pedestals, ducts and other facilities necessary to underground utilities may be placed above ground.

            c. Utility distribution lines owned or operated by utilities that are parties to a joint trench agreement shall be placed underground in a joint trench.

            d. Exceptions: Exceptions to the requirement of this section may be obtained from the Public Works Director for good cause shown including, but not limited to, the following.

CATV or telephone lines need not be placed underground where there are other overhead utility distribution lines; provided that when all of the other overhead distribution lines are placed underground, the CATV and/or telephone lines shall be placed in a joint trench with the other utility distribution lines.

A new utility distribution line may be placed overhead when necessary immediately to restore service interrupted by accident or damage by flood, fire, earthquake, or weather provided that it is placed underground within 12 months thereafter.

A utility distribution line or service connection may be placed on the surface of frozen ground, provided that it is placed underground within 12 months thereafter.

Nothing in this section restricts the maintenance, repair, or reinforcement of existing overhead utility distribution lines.

A temporary utility distribution line may be placed overhead in connection with new construction if the utility's tariff approved by the state public utilities commission expressly provides for removal of that line by a certain date, not to exceed 12 months thereafter.

e. Variances: The Public Works Director may, to the extent necessary, grant a variance from the requirements of this section when any of the following is found. All variance findings must be made in writing.

Placing a utility line underground would cause an excessive adverse environmental impact.

Placing a utility distribution line underground would threaten public health and safety because the placement cannot be shown to meet acceptable technical standards for safety.

Placing a utility distribution lines underground in an environmentally sound and safe manner would cost more than three times the cost of placing the line overhead, where the applicant demonstrates the relative cost to the satisfaction of the Public Works Director.

13.50.050 Nonconforming Overhead Lines - Generally. a. Existing overhead utility distribution lines located where this chapter requires new or relocated utility distribution lines to be placed underground are nonconforming utility distribution lines and are subject to Sections 13.50.060 through 13.50.090. No utility distribution line is a nonconforming structure or a nonconforming use of land under HCC 21.64.

b. Nonconforming overhead utility lines may be reinforced as defined in this chapter but may not [receive major modifications or improvements] be modified or improved above and beyond reinforcement. Nonconforming overhead lines that require [major] modifications and/or improvements that exceed reinforcement are required to be placed underground.

13.50.060 Nonconforming Overhead Lines - Designation of Target Areas. a. An electric utility that owns poles that support nonconforming utility distribution lines shall prepare or otherwise include as part of its annual capital improvement plan, a five year under-grounding program consistent with Section 13.50.070. This five year program shall be updated on an annual basis. Priorities shall be based on under-grounding in conjunction with the electric utility's essential system improvements and then by target area as set forth in no particular order. The Public Works Director shall provide review and comment for consideration by the electric utility on these five year programs. When reviewing and commenting on these programs, the director shall consider the following factors in no particular order:

Whether under-grounding will avoid or eliminate an unusually heavy concentration of overhead electric distribution or other attached utility facilities.

Whether the street or general area is extensively used by the general public and carries a heavy volume of pedestrian or vehicular traffic.

Whether the appearance of grounds and structures adjacent to the roadway is such that the removal of the overhead facilities will substantially improve the general appearance of the area.

Whether the street or area affects a public recreation area or an area of scenic interest.

Whether there is a significant opportunity to achieve economies due to the anticipated relocation or replacement of overhead lines or the widening or realignment of streets within a given area.

Whether the five year program sufficiently addresses the objectives of Section 13.50.070.

Whether the area(s) under consideration are included in the designated City target areas described in [this herein] Subsection B.

Whether the installation of underground distribution lines is economically, technically, and environmentally feasible including the effect on an attached utility.

b. The following shall be target areas. These areas represent locations that the City places the highest [priority] importance on with respect to placing utilities underground. The target areas below are listed in order of priority.

The Central Business District

Urban Residential District

Rural Residential District, especially those close to the City Center

Waterfront Areas including all of the Homer Spit and Bishops Beach, Mud Bay

Scenic highway and road corridors including the Sterling Highway from Baycrest Hill to Ocean Drive, Ocean Drive, Kachemak Drive, East End Road, East Hill Road, West Hill Road, Skyline Drive.

            13.50.070 Nonconforming Overhead Lines - Compliance Requirements. a. [An electric] A utility that owns poles that support nonconforming utility distribution lines shall remove the poles and place those lines underground. Any other utility that attaches to such poles shall place its lines underground at the same time that the pole owner places lines underground.

            b. The [electric] utility that owns the poles shall, in each fiscal year, expend at least two percent of a three year average of its annual gross retail revenues derived from utility service connections (sales and fees) within the City of Homer, excluding toll revenues and revenues from the sales of electrical power for resale, for purposes of under-grounding nonconforming lines.

            c. A utility with lines attached to a pole that is to be removed under this section shall place its lines underground at the same time that the pole owner places its lines underground. To under-ground nonconforming utility lines, an attached utility shall not be required to expend more than two percent of its annual gross retail revenues derived from connections (sales and fees) within the City of Homer, excluding toll revenues.

            d. The [electric] utility which owns the poles may choose which existing lines to under-ground in order to fulfill the two percent expenditure requirement, in consultation with appropriate public agencies and other utilities.

            e. [An electric] A utility that owns poles that does not expend the amount required in subsection a of this section, or that exceeds more than that amount, [may] shall carry over the under expenditure or the over expenditure as an adjustment to the following year's obligation.

            f. The electric utility that owns poles shall notify the Public Works Director, and utilities or entities with lines attached to such poles, of the approximate date that the owner plans to remove the poles. Such notice, where possible, shall be given at least four months in advance of the under-grounding except where an emergency or other unforeseen circumstances preclude such notice, in which case such advance notice as is reasonable under the circumstances shall be provided.

            g. A utility shall annually submit a report on its under-grounding projects and expenditures for non-conforming lines to the Public Works Director within 120 days of the end of the preceding calendar year.

[h. All new service connections shall be placed underground in the same manner as required for utility distribution lines. New service lines may be temporarily installed above ground from October through May provided that they are placed underground within one year of installation.]

13.50.080 Nonconforming Overhead Lines - State and Municipal Rights of Way.   a. The Department of Public Works shall furnish to a utility owning or operating utility distribution lines all planning documents for municipal road construction which will require the relocation of those utility distribution lines. Utilities should obtain from the Alaska Department of Transportation and Public Facilities [will do so] the same information for state highway projects.

b. [Upon adoption of the ordinance from which] After the effective date of this chapter [is derived], a utility [installing] that has installed a utility distribution line underground in material compliance with a right of way permit issued by the Public Works Department, and in

accordance with this chapter, shall be reimbursed by the municipality for the cost of any subsequent relocation of [the] that utility distribution line required by municipal road construction.

c. If municipal or state road construction requires the relocation of a nonconforming utility distribution line, the municipality or the state as appropriate, as part of the road construction project cost, shall reimburse the cost of the relocation. Reimbursable costs under this subsection include engineering and design, inspection, construction and general overhead costs, but exclude utility plant betterment costs. Plant betterment costs are the costs of providing utility distribution line capacity or quality beyond what current industry standards require for the capacity or level of service existing before the relocation.

d. All utilities performing work within municipal right of ways shall conform to the requirements of Title 13, Standard Construction Practices.

13.50.090 Nonconforming Overhead Lines - Service Connections. A utility that places a nonconforming utility distribution line underground as required by this chapter shall bear the cost of placing underground any related service connections or other utility facilities on a customer's premises. [in accordance with the utility's applicable tariff, rules, or regulations of operation] This does not prohibit the utility from recovering the cost from customers according to its applicable tariff, rules, or regulations.

13.50.100 Enforcement. a. Violations of this chapter are subject to all of the general penalties and remedies provided for violations of the Homer City Code set forth in HCC 1.16.

b. In addition to the penalties and remedies provided for violations of the Homer City Code, no new permit may be issued to install a utility distribution line on municipal property or in a municipal easement or right of way until such time as the applicant utility comes into compliance with this chapter.

13.50.110 Appeals. Appeals from administrative actions or determinations issued under Section 13.50.040 (d) (exceptions) and 13.50.040 (e) (variances) may be made to the City Council, sitting as the Board of Adjustment. [Any City resident or property owner who lives on or owns land along or within an effected road or neighborhood] A land owner or resident living on land along an affected utility distribution line or within an affected subdivision or neighborhood may file an appeal. All appeals must be in writing and must be submitted to the City Clerk within 30 days of the effective date of the action. The City Council will hear the appeal and render its decision in a timely manner.

Section 2. This ordinance is of a permanent and general character and shall be included in the City Code.

ENACTED BY THE CITY COUNCIL OF THE CITY OF HOMER, ALASKA this _____ day of _______, 2005.

CITY OF HOMER

__________________

JAMES C. HORNADAY, MAYOR

ATTEST:

__________________

 MARY L. CALHOUN, CMC, CITY CLERK

Introduction:

Public Hearing:

Public Hearing:

Second Reading:

Effective Date:

Ayes:

Nayes:

Abstain:

Absent:

Reviewed and approved as to form and content:

____________________                                                 ________________

Walt Wrede, City Manager                                             Gordon Tans, City Attorney

Date_________________                                               Date: _____________

Fiscal Note: N.A. All City obligations under this ordinance must be budgeted under separate ordinances.