05/05/2008 Council Packet - Laserfiche WebLink

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MODEL UNDERGROUNDING ORDINANCE [Prepared by Jim Strommen of Kennedy & Graven] The following are some suggested ordinance provisions to address undergrounding rights available to cities under Minnesota law and in light of the NSP v City of Oakdale decision, filed by the Minnesota Court of Appeals on February 2, 1999 and not appealed by NSP. As a result of the Oakdale decision, cities may require undergrounding of electric distribution lines either through the exercise of police power or franchise right. The case does not give authority to require undergrounding of the higher voltage transmission lines, and by implication in the enabling statute, Minnesota Statutes, Section 216B.36, would not be allowed under Minnesota law. Though the Oakdale case does not deal with telecommunication lines, the opinion and relevant statutory and case law would support the same right to require undergrounding under the city's police power. The Oakdale decision further holds that as an exercise of police power, the city need not reimburse the utility for the added cost of undergrounding. The utility must comply and bear the cost of compliance. The utility may seek recovery of the cost from the ratepayers through the tariffs or some other form approved by the Public Utilities Commission. The language suggested below covers undergrounding in three distinct contexts: new lines for new development; utility or city projects causing the need for facility repair or relocation; and a plan to underground all utility lines over a period of time. The right to require all facilities to be underground by a reasonable date certain appears supportable under Oakdale Cities have a restricted right to require undergrounding in the interest of safety and the general welfare. Note that the League of Minnesota Cities Model Right -of -Way Ordinance, Section 1.24, subdivision 1, deals with location of facilities. If your city has adopted the Model and intends to have a comprehensive undergrounding ordinance, we suggest that the following be added to section 1.24 of the ordinance. Subd. 5 Undergrounding. Unless otherwise agreed in a franchise between the applicable right -of -way user and the City, Facilities in the right -of -way must be located or relocated and maintained underground in accordance with Section of the City Code. 36