ATTACHMENT 5
REQUESTED INFORMATION ABOUT ELECTRIC LINES
SEPTEMBER 18, 2002
On September 9, 2002, a Town Council agenda item focused on a response from the Town Manager to a petition that had been brought by Mr. Kyle Cattani on August 26. The Council asked, on September 9, for additional information on four items:
(a) Discussion of possibilities for the Town Council to include language in the new Land Use Management Ordinance that would require burial of 3-phase electric lines;
(b) Discussion of ordinances in Cary and Charlotte, two cities mentioned in Mr. Cattani’s petition materials;
(c) Information about the costs involved in burying 3-phase electric lines underground; and
(d) Further discussion of the possibilities for the Town Council to include language in the new Land Use Management Ordinance that would prohibit spraying of herbicides in utility easements.
Immediately following are four addenda, one on each of these topics.
TO: Mayor and Town Council
FROM: Ralph D. Karpinos, Town Attorney
SUBJECT: Possible Language to Require Burial of Electric Utility Lines
DATE: September 18, 2002
The purpose of this memorandum is to respond to Council questions raised on September 9, 2002, and to offer possible language, for the Council’s consideration, pertaining to installation of underground utility lines.
SUMMARY
The proposed Third Draft of the Land Use Management Ordinance, published on August 23, 2002, responds to the Town Council’s directions, issued on June 10, 2002, to include more specific language encouraging underground installation of electric utility lines. On September 9, the Council asked for stronger language to be prepared for consideration.
DISCUSSION
The Third Draft, subject of tonight’s Public Hearing, contains the following language:
(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 places 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.
Section 5.12.2(b) above proposes the circumstances under which three-phase electric lines might be required to be placed underground. An alternative would be to eliminate the considerations offered in 5.12.2(b), and eliminate this section completely, while re-writing 5.12.2(a) to make it clear that three-phase lines must be buried. A re-written Section 5.12.2(a) might read:
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 required to be placed underground.
The Town Manager is not recommending this substitution at this time. We are continuing to research the question of whether a Charter amendment would be required for Chapel Hill prior to enactment of such regulation
CONCLUSION
As requested by the Council, we are researching the question of whether a Charter amendment would be required prior to enactment of regulations requiring burial of three-phase electric utility lines, and will offer the Council an opinion on that question prior to the Council’s consideration of enactment of the new Land Use Management Ordinance.
ADDENDUM 5b
TO: Mayor and Town Council
FROM: Ralph D. Karpinos, Town Attorney
SUBJECT: Cary and Charlotte Regulations on Installation of Utility Lines
DATE: September 18, 2002
The purpose of this memorandum is to respond to Council questions raised on September 9, 2002, and to provide clarifying information regarding the regulations enacted by the Town of Cary and the City of Charlotte pertaining to installation of underground utility lines.
SUMMARY
Both Cary and Charlotte have Charter provisions authorizing local regulations requiring the undergrounding of utility lines. (These are special grants of legislative authority from the North Carolina General Assembly which are in addition to the general authority granted to municipalities contained in the North Carolina General Statutes.)
DISCUSSION
Cary
Included in a petition that was in the Council’s agenda materials for the September 9, 2002, meeting was a copy of Article IX, Section 9.3, of the Cary Town Charter. This provision authorizes the Cary Town Council as follows:
“In addition to the powers now or hereafter granted to municipalities by law, the town council may by ordinance require that all utility or other pipes, wiring, conduits, cables, and fixtures installed after the adoption of such ordinance within the planning and zoning jurisdiction be installed underground, whether or not the same are installed in public rights-of-way.”
Cary has enacted ordinance provisions pursuant to this Charter provision. There are several references to underground utilities in Cary’s ordinances. An example is the following simple statement from Cary’s subdivision regulations (Section 15.1.13 in Cary’s Unified Development Ordinance):
15.1.13. Utilities.
(b) All electrical and telephone lines shall be installed underground.
Charlotte
Also included in the same petition in the Council’s agenda materials for the September 9, 2002, meeting was a copy of Section 12.509 of the Charlotte Code of Ordinances. That section establishes certain requirements for installation of utility lines underground in Charlotte.
Charlotte, like Cary, does have language in its Charter which authorizes the City to require utility lines be placed underground. Section 6.121 of the Charlotte Charter provides, in part that the Council may:
“require all wires, pipes, and conduits be placed underground and to regulate the same; provided that such regulations not be in contravention of the general laws of North Carolina applicable to such utilities as the same are now or may hereafter be enacted.”
CONCLUSION
The Town of Chapel Hill does not have, in our Charter, language similar to that of the Cary and Charlotte Charters. As requested by the Council, we will research the question of whether a Charter amendment would be required prior to enactment of an underground installation requirement, and will offer the Council an opinion on that question prior to the Council’s consideration of enactment of the new Land Use Management Ordinance. We will also provide further information at that time regarding the language contained in the Cary and Charlotte Codes of Ordinances.
ADDENDUM 5c
MEMORANDUM
TO: Mayor and Town Council
FROM: W. Calvin Horton, Town Manager
SUBJECT: Cost Implications of Power Line Burial
DATE: September 18, 2002
At the September 9, 2002 meeting, the Council asked that we determine the cost implications of burial of three-phase power lines.
We requested this information from Duke Energy and received the attached e-mail from Duke Energy’s District Manager, Scott Gardner.
Received by Email: Sept. 12, 2002:
Bill, I hope this is the information you are looking for.
Regarding the town's question of costs to the requesting party for the installation of three phase electric facilities underground, the approximate costs to bury underground lines vary greatly depending upon the circumstances involved and do not lend themselves to any easily applied rule of thumb. Those circumstances range from the structural density of the site involved (other utilities, buildings, roadways, landscaping, etc.) to the composition of the soil, lay of the terrain, and particularly the size and type of electrical facilities involved or potentially involved. Due to the variety of such circumstances, costs can range from less than $140 per foot ($740,000 per mile) for the most ideal of situations (rare) to in excess of $900 per foot ($4,750,000 per mile) for the more complicated of situations. The adverse impact on trees, structures and other objects, the temporary disruption to vehicular and pedestrian traffic, and the cost for individual parties to modify their electrical facilities to accept underground facilities are among the other factors that may be difficult to quantify.
Regarding the issue of prohibiting the use of herbicides in utility easements, we believe the town has the right to prohibit the use of herbicides on town property if they so desire, but would be pre-empting State law to attempt to prohibit the use of herbicides on private property in Chapel Hill. Our annual mailing to customers informing them of our use of herbicides and their right to request that none be used on their property is in compliance with State law and has been approved by the NC Pesticide Board.
If you have any questions let me know.
Scott
TO: Mayor and Town Council
FROM: Ralph D. Karpinos, Town Attorney
SUBJECT: Request for Development Ordinance Language Regarding Use of Herbicides in Utility Easements
DATE: September 18, 2002
This report responds to directions provided by the Town Council to provide, for the September 18, 2002, hearing on the new Land Use Management Ordinance, language that would prohibit the spraying of herbicides by utility companies within utility rights-of-way and easements.
BACKGROUND
The Council is considering issues raised by a citizen petition urging the Town to modify its regulations with regard to the installation of utility lines. Issues have been raised both with respect to existing above-ground facilities and facilities being installed to serve new development.
The proposal to regulate, through a zoning ordinance, the use of herbicides by utility companies to maintain utility rights-of-way and easements, raises a number of significant legal questions, including:
1. Is the regulation of the use of herbicides within the scope of a municipality’s zoning/land use regulatory authority?
2. Is the proposed regulation a substantial enough change to the proposed Land Use Management Ordinance so as to require further notice and pubic hearing?
3. Should the regulation of use of herbicides be considered under a municipality’s general police power rather than its zoning power?
4. Has the Town been pre-empted from enacting an ordinance prohibiting the use of herbicides to maintain utility easements by state and federal laws and regulations?
5. Should the Town consider requesting special legislative authority before enacting a prohibition on the use of herbicides to maintain utility rights-of-way and easements?
6. Can the Town enact a prohibition only on the use of herbicides by utility companies to maintain utility rights-of-way and easements or should any regulation of herbicide use be more general in scope?
DISCUSSION AND RECOMMENDATION
Included below is language that, if inserted in the third draft of the Town’s Land Use Management Ordinance, would prohibit the spraying of herbicides by utility companies within utility rights-of-way and easements.
There are significant substantive and procedural legal issues, including those identified above, which make the adoption of such regulations as part of the new Land Use Management Ordinance problematic. Thorough consideration of such issues could require a delay in the possible enactment of the new Land Use Management Ordinance.
In order to not delay the possible enactment of the new Ordinance I recommend that this issue be deferred and not considered for inclusion in the Proposed Land Use Management Ordinance at this time.
Although I have not completed a thorough legal analysis of this proposal, my research thus far indicates that the proposed language would not be considered within the scope of the Town’s authority to enact land use regulations as that authority is provided in the North Carolina General Statutes. Moreover, as an exercise of the Town’s general police power, such regulations appear to be pre-empted by N.C. General Statute Chapter 143, Article 52, which establishes State regulation of pesticides and herbicides, and specifically, N.C. General Statute Sec. 143-465.
Accordingly, I recommend that this matter be deferred for possible further discussion as part of the consideration of a legislative program for the Town in the next session of the General Assembly.
Proposed language to insert in Draft Land Use Management Ordinance:
Section 5.12.3. Use of Herbicides to Maintain Utility Rights-of-Way and Easements Prohibited
Utility rights-of-way and easements shall not be cleared or maintained through the use of spray herbicides without written approval from the underlying property owner.