A. Purpose: The purpose of this section is to promote the health, safety and general welfare of the public and is intended to foster: 1) safe travel over the right of way; 2) nontravel related safety around homes and buildings where overhead feeds are connected; and 3) orderly development in the city. Location and relocation, installation and reinstallation of facilities in the right of way or in or on other public ground must be made in accordance with this section and is intended to be enforced consistently with state and federal law regulating right of way users, specifically including, but not limited to, Minnesota statutes sections 161.45, 237.162, 237.163, 301B.01, 222.37, 238.084 and 216B.36 and the telecommunications act of 1996, title 47, USC section 253.
B. New Facilities: Facilities newly installed, constructed or otherwise placed in the public right of way or in other public property held in common for public use must be located and maintained underground pursuant to the terms and conditions of this chapter and in accordance with applicable construction standards, subject to the exceptions below. Aboveground installation, construction, modification, or replacement of meters, gauges, transformers, street lighting, pad mount switches, capacitor banks, reclosers and service connection pedestals shall be allowed. These requirements shall apply equally outside of the corporate limits of the city coincident with city jurisdiction of platting, subdivision regulation or comprehensive planning as may now or in the future be allowed by law.
C. Permanent Replacement, Relocated Or Reconstructed Facilities: If the city finds that one or more of the purposes set forth in subsection A of this section would be promoted, the city may require a permanent replacement, relocation or reconstruction of a facility to be located and maintained underground, with due regard for seasonal working conditions. For purposes of this subsection, "reconstruction" means any substantial repair of or any improvement to existing facilities. Undergrounding may be required whether a replacement, relocation or reconstruction is initiated by the right of way user owning or operating the facilities, or by the city in connection with: 1) the present or future use by the city or other local governmental unit of the right of way or other public ground for a public project; 2) the public health or safety; or 3) the safety and convenience of travel over the right of way. Subject to subsection D of this section, all relocations from previously placed underground facilities shall be to another underground location.
D. Exceptions: The following exceptions to the strict application of this section shall be allowed upon the conditions stated:
1. Technical/Economic Feasibility; Promotion Of Policy: Aboveground installation, construction, or placement of facilities shall be allowed in residential, commercial and industrial areas where the council, following consideration and recommendation by the planning commission, finds that:
a. Underground placement would place an undue financial burden upon the landowner, rate payer, or right of way user, or would deprive the landowner of the preservation and enjoyment of substantial property rights; or
b. Underground placement is impractical or not technically feasible due to topographical, subsoil or other existing conditions which adversely affect underground facilities placement; or
c. Failure to promote the purposes of undergrounding. The right of way user clearly and convincingly demonstrates that none of the purposes under subsection A of this section would be advanced by underground placement of facilities on the project in question, or the city determines on its own review that undergrounding is not warranted based on the circumstances of the proposed undergrounding.
2. Temporary Service: Aboveground installation, construction, or placement of temporary service lines shall only be allowed:
a. During new construction of any project for a period not to exceed three (3) months.
b. During an emergency in order to safeguard lives or property within the city.
c. For a period of not more than seven (7) months when soil conditions make excavation impractical.
E. Developer Responsibility: All owners, platters, or developers are responsible for complying with the requirements of this section and, prior to final approval of any plat or development plan, shall submit to the director written instruments from the appropriate right of way users showing that all necessary arrangements with said users for installation of such facilities have been made. (Ord. 1174, 4-28-2008)