MEMORANDUM

AGENDA #5a

MEMORANDUM

TO: Mayor and Town Council

FROM: W. Calvin Horton, Town Manager

SUBJECT: Response to Kyle Cattani Petition - Underground Utility Lines

DATE: September 9, 2002

This memorandum responds to a petition brought to the Town Council on August 26, 2002, by Mr. Kyle Cattani. We offer staff comments tonight, and suggest further consideration in the context of the September 18 Public Hearing on the proposed new Development Ordinance.

BACKGROUND

Mr. Cattani first brought a petition about underground utility lines to the Council on January 14, 2002. A full chronology follows:

January 14, 2002: Petition from Mr. Cattani regarding overhead lines installed to serve an expansion of Carol Woods.

March 25, 2002: Town Manager response to January petition; additional petition presented by Mr. Cattani, asking for language in the new Development Ordinance to require that 3-phase electric lines be buried underground.

June 24, 2002: Town Manager response to March petition. Council adopts resolution directing that language be added to new Development Ordinance.

July, 2002: Email correspondence between Mr. Cattani and Town Manager, Mayor, with request that an additional petition appear on the August 26 Council meeting.

August 26, 2002: Petition from Mr. Cattani transmitting information from other communities and asking for stronger language in the Development Ordinance regarding burial of 3-phase electric distribution lines.

AUGUST 26 PETITION

Mr. Cattani made a request and highlighted a concern on August 26:

Request: That the Council adopt a stronger resolution that no new above ground power lines be allowed to be installed in Chapel Hill.

Concern: That there is no requirement that Duke Energy warn property owners prior to spraying herbicides, and no requirement that Duke Energy advise property owners that property has been sprayed.

We offer comments below in response to these issues.

ORDINANCE LANGUAGE REGARDING UNDERGROUND LINES

In response to Mr. Cattani’s March 25, 2002 petition, and a subsequent staff recommendation, the Council adopted a resolution on June 24, directing that language be included in the Third Draft of the new Development Ordinance about burial of 3-phase lines. Specifically, on June 24 the Council offered the following direction on this issue:

Include language in the Third Draft that reflects these concepts: Require that, if Duke Energy agrees, 3-phase lines be provided underground unless it is demonstrated that the burial is not appropriate in relation to the extent of development proposed. The burial of such lines shall occur subject to there being a rational nexus between the impact of the proposed development and the proposed utility requirement, and if the costs of placing the utilities underground is roughly proportional to the impacts of the development on the community, and that placing the lines underground does not violate any provisions of the electrical code or other relevant safety standard, and subject to the developer having the legal right to do so if the lines are off-site.

In response, we have included the following language in the Third Draft of the new Ordinance (Third Draft completed on August 23, 2002):

5.12.2 Other Utilities

(a) All utility lines other than lines used only to transmit electricity between generating stations or substations shall be placed underground, and all surface disruptions required for installation shall be rehabilitated to the original or an improved condition. Three-phase electric power distribution lines are not required to be placed underground except as provided in subsection (b), below.

(b) Three-phase electric power distribution lines

(1) Three-phase electric power distribution lines shall be placed underground if:

A. Duke Energy agrees in a written statement to provide utilities underground; and

B. Three-phase lines shall be placed underground by the applicant where:

(i) there is a rational nexus between the impact of the proposed development and the proposed utility requirement; and

(ii) the costs of placing the utilities underground are roughly proportionate to the impacts of the development on adjoining properties or the city; and

(iii) placing the utility underground does not violate any provision of the electrical code or other relevant safety standard; and

(iv) the applicant has the legal right to place the lines underground where they are located off-site.

(2) Three-phase lines are not required to be placed underground if the applicant or Duke Energy demonstrates that the burial would create economic hardship or a danger to public health or safety as it relates to the size, nature, timing, and scope of the proposed development.

We note that this language, along with the entire Third Draft, will be before the Town Council for Public Hearing on September 18.

NOTICE ABOUT SPRAYING

Mr. Cattani’s second issue in his August 26 petition concerned the use of herbicides in maintenance of a utility easement. We addressed this issue in our March 25, 2002 report to the Council. In that report we included a letter from Duke Energy, describing a required practice that Duke customers are notified annually about Duke’s vegetation management procedures (including use of herbicides), and are notified that any customer may elect to have their property designated as “no spray” by providing notification to Duke. We attach here a copy of our March 25 report, and an accompanying correspondence from Mr. Scott Gardner at Duke Energy.

RECOMMENDATION

We recommend that the Council consider and discuss ideas about new regulatory language in the context of the September 18 Public Hearing on the proposed new Land Use Management Ordinance. We will include discussion of this issue in our staff report for that Hearing. We also recommend that the Council ask the Mayor to prepare a letter to Duke Energy Company, forwarding Mr. Cattani’s concerns about spraying and notice.