This chapter shall be known and may be cited as the "Undergrounding of Utilities Law of the City of Artesia."
(Ord. 129, § 113)
For the purposes of this chapter, unless otherwise apparent from the context, certain words and phrases used in this chapter are defined as follows:
shall mean the Public Utilities Commission of the State.
shall mean an area within the City within which overhead electric or communication facilities are prohibited as such area is described in a resolution adopted pursuant to the provisions of Section 7-3.03 of this chapter.
shall mean poles, towers, supports, wires. conductors. guys. stubs, platforms, crossarms, braces, transformers, insulators, cutouts. switches, communication circuits, appliances, attachments, and appurtenances used or useful in supplying and maintaining electric, communication, television, radio signals, or similar or associated services.
shall mean electric or communication facilities located principally above the surface of the ground.
shall mean and include any individual, firm, copartnership, joint venture. association, corporation, estate, trust, business trust, city, public corporation, municipal corporation, political subdivision, or district and their agents and employees.
shall mean the Road Commissioner of the City.
shall mean electric or communication facilities located principally below the surface of the ground.
shall mean and include all persons and entities supplying, operating, or maintaining electric, communication, television, radio signals, or similar or associated services by means of electric or communication facilities.
(Ord. 129, §§ 100—102; Ord. 129, §§ 103—108; Ord. 153, § 1)
When the Council from time to time, after consultations with the utility affected and after holding public hearings on the subject, finds that it is in the general interest that existing overhead electric or communication facilities located within certain designated areas, or sections thereof, of the City shall be removed and replaced with underground electric or communication facilities, and that any future or new electric or communication facilities located within certain designated areas, or sections thereof, of the City shall be underground electric or communication facilities the Council, by resolution, may declare such designated areas, or sections thereof, an Underground Utility District, and, by resolution, may add to, modify, amend, or delete certain designated areas, or sections thereof, from existing Districts. Such resolutions shall include a description of the area comprising such District and shall fix the time within which such removal and underground installations shall be accomplished and within which affected property owners shall be ready to receive underground services. A reasonable time shall be allowed for such removal and underground installations, having due regard for the availability of the labor, materials, and equipment necessary for such removal and for the installation of such underground facilities as may be occasioned thereby.
The findings of the Council shall be based on one or more of the following reasons:
(a)
That such undergrounding will avoid or eliminate an unusually heavy concentration of overhead electric or communication facilities;
(b)
That such designated areas, or sections thereof, are extensively used by the general public and carry a heavy volume of pedestrian or vehicular traffic; and
(c)
That such designated areas, or sections thereof, adjoin or pass through civic areas, public recreation areas, or areas of unusual scenic interest to the general public.
(Ord. 129, § 200; Ord. 153, § 2)
Upon the receipt of a written notice to do so from the Superintendent, utilities supplying, operating, or maintaining overhead electric or communication facilities in an Underground Utility District established pursuant to the provisions of Section 7-3.03 of this chapter within the time required by the notice, shall commence and diligently prosecute to completion the work required to remove and replace the existing overhead electric or communications facilities located in the sections of the District specified in the notice with underground electric or communication facilities.
(Ord. 129, § 3)
At the same time as the notice provided for in Section 7-3.04 of this chapter is sent to utilities, the Superintendent shall also send written notice to the affected property owners within the District established pursuant to the provisions of Section 7-3.03 of this chapter advising such property owners of their responsibility as set forth in Section 7-3.11 of this chapter. Such notices shall be mailed to the owners shown on the last equalized assessment roll of the County.
(Ord. 129, § 301)
Upon the receipt of an application in writing therefor from the utilities or any person having the responsibility set forth in Section 7-3.11 of this chapter stating the reasons for the request and the facts upon which such reasons are based, the Superintendent may revoke, amend, or modify the notice referred to in Section 7-3.04 of this chapter if he or she finds that hardships or injustices to the utilities or such persons would result, or if the general public interest would be adversely affected, if the utilities were required to comply with the terms of such notice.
(Ord. 129, § 302)
Except as otherwise provided in this chapter, it is unlawful for any person or utility to erect, construct, install, place, keep, maintain, continue, employ, use, or operate overhead electric or communication facilities in an Underground Utility District established pursuant to the provisions of Section 7-3.03 of this chapter after such district has been converted to underground electric or communication facilities, except such over-head electric or communication facilities as may be required to furnish services 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 set forth in Section 7-3.11 of this chapter and for such reasonable time required to remove such facilities after such work has been performed.
(Ord. 129, § 400)
Notwithstanding the provisions of this chapter, a person or utility having the authority, by franchise or otherwise, to install, operate, and maintain overhead electric or communication facilities in an Underground Utility District established pursuant to the provisions of Section 7-3.03 of this chapter, upon complying with the provisions of Ordinance No. 3597 of the County, as amended, may install, operate, and maintain overhead electric or communication facilities in such District for a period not to exceed 30 days in order to provide emergency services. The Superintendent may grant special permission to any such person or utility, on such terms as he or she may deem appropriate, in cases of unusual circumstances, to erect, construct, install, place, keep, maintain, employ, use, or operate overhead electric or communication facilities in such District.
(Ord. 129, § 401)
Except as otherwise provided in this chapter, the provisions of this chapter shall not apply to the following types of facilities:
(a)
County and City facilities and equipment installed under the supervision and to the satisfaction of the Superintendent;
(b)
Poles and electroliers used exclusively for street lighting;
(c)
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, where such wires originate in an area from which poles, overhead wires, and associated overhead structures are not prohibited;
(d)
Poles, overhead wires, and associated overhead structures used for the transmission of electric energy at nominal voltages in excess of 34,500 volts;
(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 on the same building or to an adjacent building without crossing any public street;
(f)
Antennas, associated equipment, and supporting structures used by a utility for furnishing communication services;
(g)
Equipment appurtenant to underground facilities, such as surface-mounted transformers, pedestalmounted terminal boxes and meter cabinets, and concealed ducts; and
(h)
Temporary poles, overhead wires, and associated overhead structures used or to be used in conjunction with construction projects.
(Ord. 129, § 402)
If underground construction is necessary to provide utility services within a District, 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. 129, § 500)
(a)
Construction of Service Connections Required. Every person owning, operating, leasing, occupying, or renting a building or structure within an Underground Utility District established pursuant to the provisions of Section 7-3.03 of this chapter shall construct and provide that portion of the service connection on his or her property between the facilities referred to in Section 7-3.10 of this chapter and the termination facilities on or within such building or structure being served.
(b)
Failure to Comply: Notices: Disconnections. In the event any person owning, operating, leasing, occupying, or renting such property does not comply with the provisions of Subsection (a) of this section within the time provided for in the resolution adopted pursuant to the provisions of Section 7-3.03 of this chapter, the City Engineer shall post a written notice on the property being served and 30 days thereafter shall have the authority to order the disconnection and removal of any and all overhead service wires and associated facilities supplying utility services to such property.
(Ord. 129, § 501)
The Council, in its discretion, may use the following procedure in lieu of the procedure set forth in Section 7-3.11 of this chapter:
(a)
Construction of Service Connections Required: Failure to Comply: Notices. Every person owning, operating, leasing, occupying, or renting a building or structure within an Underground Utility District established pursuant to the provisions of Section 7-3.03 of this chapter shall construct and provide that portion of the service connection on his or her property between the facilities referred to in Section 7-3.10 of this chapter and the termination facility on or within such building or structure being served. If such work is not accomplished by any person within the time provided for in the resolution adopted pursuant to the provisions of Section 7-3.03 of this chapter, the City Engineer shall give a 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 10 days after the receipt of such notice.
(b)
Failure to Comply: Notices: Service: Posting. The notices to provide the required underground facilities may be given either by personal service or by mail. In the event of service by mail to either of such persons, the notice shall 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 shall be addressed to the owner thereof as such owner's name appears, and shall be addressed to such owner's last known address as such address appears, on the last equalized assessment roll and, when no address appears, to General Delivery, City of Artesia. If such notice is given by mail, the notice shall be deemed to have been received by the person to whom the notice was sent within 48 hours after the mailing thereof. If such notice is given by mail to either the owner or occupant of such premises, the City Engineer, within 48 hours after the mailing of such notice shall cause a copy thereof, printed on a card not less than eight inches by 10 inches in size, to be posted in a conspicuous place on such premises.
(c)
Failure to Comply: Notices: Form. The notices 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 such work is not completed within 30 days after the receipt of such notice, the City Engineer will provide such required underground facilities, in which case the cost and expense thereof will be assessed against the property benefited and become a lien upon such property.
(d)
Failure to Comply: Performance of Work by City: Costs: Reports. If, upon the expiration of the 30 day period, the 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 communications services are being furnished thereto, the City Engineer, in lieu of providing the required underground facilities, shall have the authority to order the disconnection and removal of any and all overhead service wires and associated facilities supplying the utility services to such property. Upon the completion of the work by the City Engineer, he or she shall file a written report with the Council setting forth the fact that the required underground facilities have been provided, 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 time shall not be less than 10 days thereafter.
(e)
Failure to Comply: Performance of Work by City: Costs: Reports: Hearings: Notices. The City Engineer, upon the time for hearing such protests having been fixed, shall forthwith give a notice in writing to the owner thereof, in the manner set forth in Subsection (b) of this section, of the time and place 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)
Failure to Comply: Performance of Work by City: Costs: Reports: Hearings. Upon the date and hour set for the hearing of protests, the Council shall hear and consider the report and all protests, if there shall be any, and then proceed to affirm, modify, or reject the assessment.
(g)
Failure to Comply: Performance of Work by City: Costs: Assessments: Liens. 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 he or she is hereby directed to turn over to the Assessor and Tax Collector of the County a notice of lien on each of such properties on which the assessment has not been paid. The Assessor and Tax Collector of the County shall add the amount of such assessment to the next regular bill for taxes levied against the premises upon which such assessment was not paid. Such assessment shall be due and payable at the same time property taxes are due and payable and, if not paid when due and payable, shall bear interest at the rate of 6% per year.
(Ord. 129, § 501; Ord. 153, §§ 3, 4)
The City, at its own expense, shall remove all City-owned equipment from all poles required by the provisions of this chapter to be removed in ample time to enable the owner or user of such poles to remove the poles within the time specified in the notice sent pursuant to the provisions of Section 7-3.04 of this chapter.
(Ord. 129, § 502)