Chapter 12.36 UNDERGROUND UTILITIES

A. "Facility" means poles, towers, supports, wires, conductors, guys, stubs, platforms, crossarms, braces, transformers, insulators, cutouts, switches, communication circuits, appliances and all other attachments and appurtenances used or useful in supplying electric, communication or similar or associated service.

B. "Person" includes an individual, firm, corporation and partnership, and includes utility.

C. "Service" includes but is not limited to the product of an electrical transmission device, such as electrical energy, television and telephone communications, through continuous conductive material.

D. "Underground utility district" means an area in the city within which all facilities are required to be installed underground.

E. "Utility" means a person supplying electric communication or similar or associated service by means of electrical materials or devices. (Prior code § 10-201).

12.36.020 Exceptions.

This chapter and a resolution adopted under BMC 12.36.120 does not apply to the following kind of facility:

A. A facility used exclusively for a police and fire alarm box or similar municipal equipment;

B. An overhead wire attached to the exterior surface of a building and extending from one location on the building to another location on the same building;

C. A radio antenna, and its associated equipment and supporting structure, used for furnishing communication service;

D. Equipment appurtenant to underground facilities such as a surface-mounted transformer (except as otherwise required in accordance with BMC 12.36.340), a pedestal-mounted terminal box and meter cabinet, and a concealed duct;

E. An overhead wire, exclusive of supporting structures, crossing any portion of an underground utility district or connecting to buildings on the perimeter of such portion, when the wire originates in an area from which overhead facilities are not prohibited;

F. A pole or electrolier used exclusively for street lighting;

G. A facility used for the transmission of electric energy at nominal voltages in excess of 34,500 volts;

H. A facility used or to be used in conjunction with construction projects;

I. Overhead facilities installed and maintained for a period not exceeding 10 days to provide emergency service, unless the time is extended by the council upon terms and conditions it determines. (Prior code § 10-202).

12.36.030 Waiver – Circumstances.

The council may waive the requirements that facilities be located underground under these circumstances:

A. In an industrial subdivision after recommendation by the planning commission, when the council finds that a waiver is necessary or desirable to obtain the objectives of health, safety and general welfare and is in the public interest;

B. Upon application by a person and a showing to the satisfaction of the city that:

1. Installation underground involves a threat or danger to persons or property and cannot be accomplished feasibly within applicable safety regulations; or

2. Installation underground involves an unnecessary or unusual hardship. (Prior code § 10-203).

12.36.040 Waiver – Procedure.

A person who desires a waiver shall file an application with the city on a form prescribed by it. The application shall set forth reasons why the exception should be granted. The city may require the applicant to provide supporting information, including reports relating to technical and economic aspects of construction and development prepared by a qualified person. (Prior code § 10-204).

12.36.050 Waiver – Conditions.

In granting a waiver of underground requirements under BMC 12.36.030, the council may impose such conditions as it considers necessary or desirable in the public interest. (Prior code § 10-205).

Article II. Requirements for Underground Construction

12.36.060 New residential subdivisions.

The requirements for underground utilities in new residential subdivisions are set forth in the regulations governing subdivisions. (Prior code § 10-211).

12.36.070 Developments other than new subdivisions.

The city council shall fix the requirements for construction of, or conversion to, underground facilities by the creation of underground utility districts as provided in BMC 12.36.080 through 12.36.170. (Prior code § 10-212).

Article III. Underground Utility District

12.36.080 Purpose.

It is the purpose of BMC 12.36.080 through 12.36.170 to provide for the orderly removal of existing overhead facilities and the construction of new underground facilities by providing a procedure by which the council may create an underground utility district upon finding that the public necessity, health, safety, or welfare requires it. (Prior code § 10-221).

12.36.090 Initiation of proceedings – Hearing.

A. The council may initiate proceedings to determine whether the public necessity, health, safety or welfare requires the creation of an underground utility district for the purpose of requiring existing overhead distribution facilities along public streets, roads and ways. The council shall consult with each affected utility to determine whether or not undergrounding of utilities is in the general public interest for reasons of public necessity, health, safety or welfare.

B. Proceedings are initiated when the council adopts a resolution calling a public hearing to determine whether or not to create an underground utility district. The resolution shall generally describe the boundaries of the area proposed to be included in the underground utility district. (Prior code § 10-222).

12.36.100 Hearing – Notice.

When the council determines to hold a public hearing, the city shall notify property owners and utilities in the proposed area by mailing notice of the time and place of hearing. The notice shall be at least 10 days before the date of the hearing and shall be addressed to the owner, postage prepaid, as shown on the last equalized assessment roll or as known to the city. (Prior code § 10-223).

12.36.110 Hearing – Generally.

The hearing is open to the public and the council may continue it from time to time. At the hearing, all persons interested shall be given an opportunity to be heard. (Prior code § 10-224).

12.36.120 Hearing – Decision by council.

A. At the close of the public hearing, the council shall determine whether or not the public necessity, health, safety, or welfare requires underground installation.

B. The decision of the council is final. If the council finds that facilities should be installed underground, the council shall adopt a resolution declaring the formation of the underground utility district and ordering the installation of existing overhead distribution facilities underground. The resolution shall describe the area of the underground utility district and fix a reasonable time within which the work must be done. (Prior code § 10-225).

12.36.130 Allocation of responsibility for work.

A. Utility Responsibility. The utility shall furnish and pay the costs of providing that portion of the underground facilities required to be furnished by it under its rules, regulations and tariffs on file with the Public Utilities Commission of the state of California.

B. Property Owner’s Responsibility. The property owner is responsible for providing that portion of the service connection on his property between the facilities referred to in subsection (A) of this section and the termination facility on or within the structure being served, in accordance with applicable rules, regulations and tariffs of the utility on file with the Public Utilities Commission of the state of California. (Prior code § 10-226).

12.36.140 Responsibility of government agencies.

The city and each federal, state and local governmental agency and district is responsible for the removal of its police and fire alarm circuits or other equipment at its own expense from the facilities required to be removed. The responsible agency shall complete this work in sufficient time to enable each utility and property owner to remove the facilities for which they are responsible within the time specified in the resolution ordering removal. (Prior code § 10-227).

12.36.150 Creation of district – Notice.

A. Within 30 days after adoption of the resolution creating the underground utility district and ordering removal, the city shall give notice to each utility affected and each property owner within the area designated in the resolution.

B. The notice shall:

1. State that the council has adopted the resolution creating the underground utility district;

2. Describe the area within the underground utility district;

3. Advise each property owner of the necessity that if he or the person occupying the property desires to continue to receive service, he or the occupant shall provide all necessary facility changes on the premises to receive service;

4. State the time within which the work must be completed. (Prior code §§ 10-228, 10-229).

12.36.160 Notice – Mailing procedure.

The city shall have a copy of the notice and resolution creating the underground utility district, and ordering removal, mailed to each affected utility and to each property owner as known to the city or as shown on the last equalized assessment roll, postage prepaid. (Prior code § 10-230).

12.36.170 Compliance – Installation of facilities.

Each property owner and each utility shall comply with the resolution order and install the facilities for which he is responsible within the time prescribed in the resolution. (Prior code § 10-231).

Article IV. Alternate Procedure for Conversion

12.36.180 City responsibility for work.

If a person other than a utility does not install the facilities for which he is responsible as directed or within the time prescribed, the city may do the work and assess the cost against the property in the manner prescribed in this article. (Prior code § 10-241).

12.36.190 Survey of property owners.

When the time for completing the conversion to underground expires, the city shall make an engineering study and prepare a list of each property owner who has not installed underground the facilities necessary to receive service from the utilities. (Prior code § 10-242).

12.36.200 Report to council.

The list and report prepared under BMC 12.36.190 shall be filed with the council. The council may adopt a resolution directing the institution of proceedings under this article. (Prior code § 10-243).

12.36.210 Notice to property owners.

The city shall have a notice prepared in substantially the following form:

NOTICE TO INSTALL FACILITIES UNDERGROUND

NOTICE is given to: _________________

(name) (address)

_____________ ______________

that on _________________, 20____, the city council of Benicia adopted a resolution creating an underground utility district and declaring that facilities shall be installed underground and directing that the work be completed no later than ___________. Thereafter, the council did on _________, adopt a resolution directing that proceedings be instituted under BMC 12.36.180 through 12.36.310 by which the city would do the work and assess the cost against the land and that the cost would be a lien upon the property until paid. Reference is made to these resolutions for further particulars.

The city has made an estimate of the cost of doing the work based upon an average installation. The estimated cost is $_____. However, this is an estimate only and no detailed study has been made of the cost for your particular property.

Each property owner having an objection to the proposed estimate of cost for installation of underground facilities is notified to attend the meeting of the city council to be held on _________________, when their objections to this cost estimate will be heard and given due consideration.

(Date)

_________________
Title

(Prior code § 10-244).

12.36.220 Notice – Publication, posting and mailing.

A. The city shall have a copy of the notice posted conspicuously in front of or on the property affected in any manner most likely to give actual notice to the property owner. The city shall also have the notice published once in a newspaper of general circulation circulated in the city and mailed to the property owner at his last known address or as shown on the last equalized assessment roll.

B. The posting, publication and mailing shall be complete at least 10 days before the day set for the hearing. (Prior code § 10-245).

12.36.230 Hearing – Action of council.

At the time set for hearing, the council shall hear all objections and may continue the hearing from time to time. Upon the conclusion of the hearing, the council shall allow or overrule each or any of the objections, after which it may order the work performed. (Prior code § 10-246).

12.36.240 Work by city – Method.

The city may do the work with its own forces or may let a contract for the work. (Prior code § 10-247).

12.36.250 Authority to enter property.

The city and each authorized agent or employee of the city may enter upon the private property for the purpose of performing the work of installing underground facilities required by resolution of the council. (Prior code § 10-248).

12.36.260 Cost report – Filing – Notice.

A. The public works director shall file an engineer’s report showing the cost of doing the work on each separate parcel within 30 days after the work is completed.

B. Before submitting the report to the council, the council shall give notice of the time and place when it will consider the report and hear protests in the manner provided in BMC 12.36.220 for the giving of notice to install facilities underground. (Prior code § 10-249).

12.36.270 Cost report – Hearing – Action by council.

At the time fixed for considering the report, the council shall hear objections of each property owner liable for the cost of the work. The council may make such modifications as it considers necessary. Following the hearing, the council shall confirm the report. (Prior code § 12-250).

12.36.280 Special assessments and lien.

If the amount fixed in the report is not paid within five days after the council confirms it, the amount of the cost for removing the overhead facilities and installing the underground facilities upon each of the parcels of property listed in the report, as confirmed, is a special assessment against the respective parcel of property and is a lien on the property for the amount of the assessment. (Prior code § 10-251).

12.36.290 Assessment and lien – Notice.

The city shall send a notice of lien on each property on which the assessment is not paid to the county assessor together with the request that the assessor enter the amounts of the assessment against the parcel of property as it appears on the assessment roll. (Prior code § 10-252).

12.36.300 Assessment – Collection.

The tax collector shall include the amount of the assessment on the next regular bill for taxes levied against the property. The amount of the assessment shall be collected at the same time and in the same manner as county taxes are collected. The assessment is subject to the same penalty and the same procedure as in the case of delinquency as provided for county taxes. (Prior code § 10-253).

12.36.310 Applicability.

The laws which govern the levy, collections, enforcement, cancellation and refund of county taxes apply to the special assessment. (Prior code § 10-254).

Article V. Construction Standards

12.36.320 General construction standards.

A person who installs facilities underground shall comply with all applicable building and electrical codes, safety regulations and orders and rules of the Public Utility Commission of the state of California. (Prior code § 10-261).

12.36.330 Compliance with encroachment regulations.

A person who installs facilities underground shall comply with the encroachment regulations of the city. (Prior code § 10-262).

12.36.340 Location of transformers.

Each transformer shall be located in the manner so that it harmonizes with the area surrounding it. The transformer shall be properly landscaped in a manner approved by the city. The council may require the transformer to be flush with or below the official sidewalk or curb grade. (Prior code § 10-263).

Article VI. Prohibitions and Penalties

12.36.350 Maintenance of overhead facilities.

A person who maintains overhead facilities in violation of BMC 12.36.010 through 12.36.340 is guilty of a misdemeanor and shall be punished as provided in BMC 12.36.380. (Prior code § 10-271).

12.36.360 Construction of overhead facilities.

A person who constructs, uses, continues to use, or operates overhead facilities, or who neglects to take down and remove them within the time directed by the council, or who otherwise fails to comply with any provisions of BMC 12.36.010 through 12.36.340, is guilty of a misdemeanor and shall be punished as provided in BMC 12.36.380. (Prior code § 10-272).

12.36.370 Fifteen-day period as separate offense.

Each period of 15 days during which a person violates BMC 12.36.350 or 12.36.360 is a separate violation and is a separate offense. (Prior code § 10-273).

12.36.380 Violation – Penalty.

A person who violates BMC 12.36.350 or 12.36.360 shall be punished by a fine of not more than $500.00 or imprisonment in the county jail for not more than six months, or both. (Prior code § 10-274).

1 For statutory provisions on conversion of utilities facilities to underground locations, see Streets and Highways Code § 5896.1 et seq. and Government Code § 38793.