ARTICLE VI. STREET FRANCHISE FEES1
27-119 Title.
This article shall be cited as the "Street Franchise Fee Ordinance" and is adopted pursuant to the Charter of the City of Burlington, Section 48, Subsection XL, Acts of 1949, No. 298, Vermont General Assembly, as amended.
(Ord. of 6-11-90, § 27-109)
27-120 Definitions.
The following definitions shall apply in the interpretation and enforcement of this article:
City means the City of Burlington.
Company means any street railroad, traction, telegraph, telephone, electric, electric lighting, electric power, gas, cable television, or telecommunications company, or other company or person enjoying the privileges or exercising the functions of any such company doing business within the City of Burlington by maintaining or using by ownership, lease, lease-purchase, access agreement or otherwise poles, wires, cables, conduits, manholes, fixtures or other facilities in connection with such business on, in, over, under or above any public street in the City of Burlington.
Council means the Burlington City Council.
Gross revenues means the gross revenues taken in or received by any company from sales and/or services provided within the City of Burlington. It includes the total amounts actually received or receivable for the performance of any sale, act or service provided within the city for which a charge or credit is made. It also shall include all receipts, cash, credits, and property of any kind or nature without any deduction therefrom on account of cost of the property sold, the cost of the materials used, labor or service costs, interest paid or payable, or losses or other expenses whatsoever. It shall not include monthly sales within the city of the first two hundred fifty (250) kilowatt-hour of electric power to each residential customer including sale of New York Power Authority power by or on behalf of the Vermont Department of Public Service.
Month means a calendar month.
Street means all public streets, alleys, public ways and public places now laid out and dedicated, and all additions thereto and extensions thereof, including airspace above and ground underneath the street surface.
Sworn report means an affidavit sworn to before a person authorized to take oaths, or a declaration or certification made under penalty of perjury or an accounting as required to be filed under this article.
(Ord. of 6-11-90, § 27-110)
27-121 Grant of franchise; express agreements.
(a) The City of Burlington hereby grants to any company as herein defined which has not executed a valid and operative franchise agreement under authority of Charter Section 48(XL) with the city regarding street usage the nonexclusive privilege and franchise to own, use, lease, lease-purchase, place, maintain, operate, erect, or construct poles, wires, cables, fiber optics, underground conduits including pipes, manholes and other fixtures necessary for proper maintenance and operation in, upon, along, across, above, over and under, and to otherwise use and occupy the streets, alleys, rights-of-way and public property of the city.
(b) Companies which have executed operative, valid and binding franchise agreements with the city regarding their use and occupation of city streets under authority of City Charter Section 48(XL) shall be subject to the terms of said agreements for the term(s) specified therein in lieu of this article.
(Ord. of 6-11-90, § 27-111)
27-122 Franchise fees.
(a) Each company shall pay as compensation to the city for its use of city streets, a franchise fee in a sum equal to the following percentages of the company’s gross revenues:
(1) Cable television services in Burlington have been declared by the Federal Communications Commission to be subject to "effective competition" and under the Cable Communications Policy Act of 1984 are therefore priced in Burlington on a deregulated market-will-bear basis. Congress has determined in Section 622(b) of that Act that a five (5) percent franchise fee is reasonable. Therefore, all such rate deregulated cable television companies which provide such service within Burlington shall pay a franchise fee of five (5) percent of gross revenue commencing July 1, 1990.
(2) Services such as natural gas, electric, local exchange telephone, water and wastewater are legal and/or natural monopolies provided by investor or publicly owned public service companies. Their service rates are established and/or regulated on a cost-of-service basis rather than a market-will-bear basis. All such companies (including, but not limited to, the Burlington Electric Department and the Water and Wastewater Divisions of the Public Works Department) shall pay a franchise fee of two and one-half (2.5) percent gross revenues commencing July 1, 1990.
All franchise fees are in addition to any pole rental fees, street excavation fees, or other fees and charges which may come due unless otherwise provided by an express agreement with the city executed under authority of Charter Section 48(XL).
(b) A company shall file monthly with the city treasurer a sworn summary report, showing the gross revenues received by the company from its operations within the city during that month and such other information as the city shall request which is reasonably related to the purposes of this article. The city shall also have access at all reasonable hours to all of a company’s plans, contracts, and engineering, accounting, financial, statistical and customer service records relating to the operation of the company within the city. The monthly reports shall be on forms prepared by the city treasurer.
(c) Franchise fees due to the city under paragraph (a) above shall be payable in monthly installments and remittance therefor shall be made no later than the last day of the month next succeeding the month in which the sum is collected.
(d) If a company fails to file a return and payment when required, the city treasurer shall assess the amount of franchise fees due including applicable interest charges using any information in its possession. The monthly franchise fee payment shall be considered delinquent on the day after the report and payment are due. To all delinquent franchise fees there shall be an interest penalty equal to the legal rate of twelve (12) percent per annum simple interest. Any compensation due and unpaid and all interest charges thereon shall be a debt to the city and may be collected by appropriate action in law or equity.
(Ord. of 6-11-90, § 27-112)
27-123 Term of franchise; reservation of city’s right to alter, amend, revoke or repeal.
(a) The terms herein for use of city streets shall take effect and be in force immediately upon the effective date after publication.
(b) The uses of public streets herein are always subordinate to the paramount interests of the public therein. Any franchise for such use conveys to no company any property interest or vested right in the public streets or rights-of-way. Any relocation expenses incurred by such company because of any work on such street undertaken by the city for any purpose shall be exclusively at the expense of such company. Such use is privileged only, and is at all times subject to all other ordinances, resolutions and regulations of the city. The city expressly reserves the right to use the public streets for its own governmental purposes, and expressly reserves the right to alter, amend, revoke or appeal [repeal] this article in whole or in part at any time.
(Ord. of 6-11-90, § 27-113)
27-124 Charter notice.
Notice is hereby given that Charter Section 48 Subsection XL provides as follows:
"48. The City Council shall have power.
"XL. To fix, demand, impose and enforce such terms, conditions and regulations for the use or occupation of any street or highway in said city by any street railroad, traction, telegraph, telephone, electric, gas, electric lighting, electric power, or other company or any person enjoying the privileges, or exercising the functions of any such company aforesaid, as shall be just and reasonable, including any sum or sums of money to be paid to said city for the use of any street or highway by any or all of said companies for the purpose of laying, maintaining and operating any street railway therein, or for the purpose of therein erecting and maintaining any poles, wires or any other apparatus in or under the surface of said street; and to prohibit the use of such street by any such company or person until such terms have been complied with.
"In case any such company or person cannot agree with said city upon such terms, said company or person may apply by petition to the county court within and for the County of Chittenden, and said court shall thereupon, after hearing all parties interested therein, fix such terms as shall be just and reasonable and make all necessary orders for carrying its decision therein into effect.
"Provided, however, that no special franchise shall be granted by said city council for a longer term than thirty (30) years, and further provided that at the expiration of any franchise, or at any time thereafter, the city shall have the right to acquire the title to and take over the property employed or used in the business for which such franchise was granted, upon the payment to the owner of the same of the fair value of the physical properties at that time employed or used in such business, and that in case the city is unable to agree with the owners as to the value of such physical properties, then said property may be condemned and taken for public use, and the value thereof ascertained and awarded as compensation therefor to the owner of the same in the manner, as near as may be, provided in the general laws of the state for the determination of the damages to be awarded persons aggrieved or damaged by the construction or operation of a street railway, and further provided that the grant of every such special franchise shall contain provisions embodying the foregoing conditions and limitations."
These terms of the Charter are incorporated herein by reference.
(Ord. of 6-11-90, § 27-114)
27-125 Severability.
If any part or parts or application of any part of this article is held invalid, such holding shall not affect the validity of remaining parts of this article.
(Ord. of 6-11-90, § 27-115)
27-126 Regulating the placement of utility facilities below ground.
(a) Purpose. This section is enacted in order to meet the following goals:
To improve the city’s vistas, view corridors, and streetscapes, particularly those along streets which are heavily traveled and provide visual access to Lake Champlain, as well as those that serve as main approaches into the city;
To improve the city’s physical environment where the opportunities exist to advance community goals for economic development, cultural and recreational activities, and the enhancement of its visual and historic resources;
To re-establish the city’s street tree canopy where possible; and
To maintain consistency with existing policies regarding the underground construction of utility facilities.
(b) Definitions. The following terms, whether singular or plural, shall be defined as follows:
Person: Any agency, individual, firm, company, association, society, corporation, body, or group.
Public improvement project: Any project undertaken by a local, state, or federal body for the benefit of the general public, such as, but not limited to, road or bridge construction, or the development of a park. Any utility facility project undertaken by a privately, publicly or cooperatively owned utility, or any combination thereof, that requires a certificate of public good from the Vermont Public Service Board or an Act 250 permit from the environmental board or district environmental commission shall be considered a public improvement project.
Substantial roadway reconstruction: The construction of any new road in the public right-of-way, and the construction of any new road that is part of a project subject to the jurisdiction of the subdivision regulations of the City of Burlington, and the modification of an existing road that results in an increase in the number of lanes for at least five hundred (500) feet of its length or an increase of over four (4) feet in the width of the paved portion of the road for at least five hundred (500) feet of its length.
Utility facility: Any privately, publicly, or cooperatively owned line, facility, or system for producing, transmitting, or distributing communications, cable television, power electricity, light, heat, gas, oil, crude products, water, steam, waste, stormwater not connected with the highway drainage, or any other similar commodity, including any fire or police signal system or street lighting system, which directly or indirectly serves the public.
(c) Requirements:
(1) Review committee. An underground utilities review committee consisting of a representative of the planning and zoning, Burlington electric, public works, community and economic development and parks departments shall review all projects covered by this section. Input shall be solicited from affected utilities during each project review. The underground utilities review committee shall maintain a record of the evidence presented during its review of each project.
(2) New roadways. On any new road, street, or highway hereafter constructed within the city, all new and existing utility facilities associated with the right-of-way of such project will be installed or relocated underground in accordance with the specifications of the affected utilities and the locational requirements of the department of public works unless the city council determines that underground installation is not feasible due to the existence of any of the conditions listed below.
The underground utilities review committee shall review the project and may recommend to the city council that the requirements of this subsection be waived, in whole or in part, for a specific new roadway project based on a finding that the placement of utility facilities underground is not feasible due to one or more of the following conditions:
a. That hazardous conditions at or near the project site unduly endanger the health and safety of the workers or the public or both, either during or after installation;
b. That the placement of utilities underground would irreparably endanger an important historic or natural resource;
c. That physical and/or technical constraints exist at or near the site which cause unreasonable hardship with regard to the proper installation and maintenance of said utilities underground; and/or
d. The engineering design or permitting process for a project has been substantially completed and the construction of that project will be completed in a timely manner.
Upon receipt of the record and information from the committee, the city council may waive the requirements of this subsection for a specific project based on the existence of the conditions listed above. The council shall conduct a review of the record of the information presented to the underground utilities review committee and its decision shall be based solely on that evidence. The decision of the council shall be final.
(3) Substantial highway reconstruction projects. On all substantial roadway reconstruction or public improvement project in the areas of the city listed below, utility facilities will be installed or relocated underground in accordance with the specifications of the affected utilities and the locational requirements of the department of public works:
a. The Waterfront Commercial-West (WFC-W), Waterfront Commercial-East (WFC-E), Waterfront Recreation, Conservation, Open Space (WRC), Waterfront Enterprise (WFE) and the Waterfront Residential, medium density (WRM) zoning districts as defined in the zoning ordinance;
b. Main approaches into the city as described in the municipal development plan, such as the Champlain Parkway, Main Street, Riverside Avenue, Shelburne Street, and Pine Street;
c. Neighborhood activity centers as defined in the municipal development plan; and
d. Bike paths, view corridors and any other main approaches as delineated in the municipal development plan in effect at the time of the project.
However, in these identified areas, the city shall also consider whether there is an alternative to underground placement of utilities that is more appropriate. The underground utilities review committee shall determine the placement of utilities on all such projects for these areas using all relevant considerations including, but not limited to, aesthetics, public safety, physical and technical considerations of construction, alternatives to underground placement and an analysis of the economic impacts of requiring the placement of utilities underground for the project.
Any of the member departments of the underground utilities review committee or other person initiating the project, may appeal to the city council the committee’s determination that there is a more appropriate alternative placement for the utilities in the areas listed in this subsection. The council shall conduct a review of the record of the information presented to the committee and issue a decision based solely on that evidence. The council’s decision shall be final.
(4) Other city streets. On all other city streets, consideration should be given to placing utility facilities underground during substantial roadway reconstruction or public improvement projects.
The underground utilities review committee shall make a determination on these projects using the criteria outlined in subsection (3). Member departments of the committee or other person initiating the project, may appeal the committee’s determination to the council also as provided in subsection (3). The council’s decision shall be made based solely on the record of the evidence heard by the committee. The council’s decision shall be final.
(5) Cost. In the case of any public improvement project or substantial roadway reconstruction where the placement of utility facilities underground is to be done for aesthetic or economic development purposes, the person initiating the project shall be responsible for securing the difference in cost between the placement of utility facilities above ground and their placement underground. The affected utilities shall be responsible for the costs if placement underground is being done in the best interest of service delivery. When the City of Burlington initiates a substantial roadway reconstruction for any purpose, the affected utilities shall be responsible for the underground relocation cost.
(6) Utility apparatus. It is acknowledged that some utility apparatus used in connection with underground utility service, such as transformers, switches, amplifiers, equipment cabinets, and other similar equipment, may be mounted at ground level in accordance with accepted construction standards and codes and locational standards of the department of public works.
(7) Emergency work. This section shall not apply to projects for the provision of temporary service or normal repairs or maintenance or for emergency services.
(d) Enforcement and penalties:
(1) Any person found to be in violation of any provision of this section shall be served by the city attorney with a written notice stating the nature of the violation and providing a specific time limit, of at least ten (10) working days, for satisfactory correction thereof.
(2) The city may commence appropriate civil enforcement proceedings against any person who fails to correct all violations within the time provided in the notice. The city may recover fines in an amount not to exceed five hundred dollars ($500.00) for each violation. Each day’s continued violation shall be considered a separate offense. The city may also seek injunctive or other appropriate relief.
(Ord. of 5-22-95; Ord. of 2-20-01; Ord. of 4-23-01; Ord. of 6-9-03)
Editor’s note—An ordinance enacted June 11, 1990, amended Ch. 27 by adding a new Art. VI, §§ 27-109—27-115. In order to conform to established Code format and to provide for future additions to Art. V without the necessity of point-numbering, the editor, at his discretion, has renumbered these new provisions as §§ 27-119—27-125. The original numbers of these sections have been retained in the history citation following each section and in the Code Comparative Table in order to assist in tracking.