An ordinance to amend various sections of Title 17 of the Metropolitan Code of Laws, the Zoning Ordinance of the Metropolitan Government of Nashville and Davidson County, relative to undergrounding utilities in any residential subdivision where a new public or private street is to be constructed, all of which is more particularly described herein (Proposal No. 2004Z-005T).

WHEREAS, overhead utilities exist in many portions of Metropolitan Government of Nashville and Davidson County ("Metro");

WHEREAS, overhead utilities can have an undesirable aesthetic impact upon the character and quality of the neighborhoods in Metro;

WHEREAS, as a prominent part of the streetscape, overhead utility lines may detract from the visual quality of the neighborhoods;

WHEREAS, a one-time investment by a developer or property owner to underground utilities produces aesthetic returns to the Nashville community for generations;

WHEREAS, undergrounding utilities may encourage a more active and healthy life for Davidson County residents by creating more attractive streetscapes for pedestrians;

WHEREAS, use of underground utilities allows a greater variety of street trees to be planted and to grow to their natural canopy thereby reducing maintenance costs attributable to tree trimming and improving the aesthetic quality of streetscapes and neighborhoods;

WHEREAS, undergrounding utilities may contribute to increased property values in affected areas; and,

WHEREAS, the Metro Council finds for all of the foregoing reasons, and to promote the welfare of residents with respect to the aesthetic quality of subdivisions, the electric and communication distribution facilities should be located underground, where feasible, without affecting the quality of utility services.

NOW, THEREFORE, BE IT ENACTED BY THE COUNTY OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY:
SECTION 1. By amending Section 17.04.060 (Definitions of General Terms), by adding the following definitions in alphabetical order:
Above ground means visible from the surface of the earth.

Electrical Service Lines means an electrical line serving limited geographic areas of residential neighborhoods by providing electrical power directly to a residence, or group of residences, and not designed to extend service more than one half-mile.

Electrical Distribution Lines means an electrical line designed to distribute electric power to, and through, agricultural, residential, commercial, and industrial areas.

Electrical Transmission Lines means electrical power lines, feeder circuits, or networks designed to transmit electrical power for regional use.

Subdivision means any subdivision of land as provided in Section 13-3-401 et seq. and Section 13-4-301 et seq., Tennessee Code Annotated.

Switch Gear means a high voltage electrical device used to switch main feeder circuits and to provide fuse protection for distribution of currents to customers.

Underground means not visible from the surface of the earth.

Utility Companies means any person, governmental body, organization, or entity of any type, and their agents, representatives, and employees, supplying electricity, natural gas, water, communications, or similar or associated services to the residential areas of Metropolitan Nashville and Davidson County.

Utility Equipment means poles, towers, supports, wires, conductors, conduits, guys, stubs, cross arms, braces, transformers, insulators, cut-outs, switches, communication circuits, used or useful in supplying electricity, natural gas, water, communication or similar or associated services to the residential areas of Metropolitan Nashville and Davidson County.

SECTION 2. By amending Section 17.28.080.B (Operational Performance Standards: Applicability) by modifying the text as follows:

17.28.080 Applicability.
B. When an existing land use or structure is expanded, enlarged or otherwise reconstructed after the effective date of the ordinance codified in this title, the applicable performance standards shall apply to the expanded, enlarged or reconstructed portion, with the exception of undergrounding utilities; see Section 17.28.103 below.

SECTION 3. By amending Section 17.28.103 (Compliance Certification) by renumbering it as Section 17.28.104, and adding as Section 17.28.103 (Underground Utilities) as follows:

17.28.103 Underground Utilities.
A. Applicability. Effective July 1, 2005, these standards shall apply to any application for residential development submitted to the Metropolitan Government of Nashville and Davidson County for approval, wherein a new public or private street is to be constructed now or in the future, or where an existing public or private stub street, is to be extended, as follows:

1. Any application for a new or amended preliminary planned unit development;
2. Any new or amended preliminary urban design overlay district; or
3. Any new or revised preliminary subdivision plat; and in the case of a proposed revised preliminary plat, these provisions shall only apply to those plats deemed to be a major modification by the Executive Director of the Metro Planning Department, as provided in the Subdivision Regulations.

B. Utility Services.
1. A public utility easement shall be provided along all public and private streets and alleys by the property owner.
2. All public and private utility services installed after the effective date of this ordinance shall be underground, including the conduit (raceway) from service equipment, except as provided in Sections 17.28.103.C, 17.28.103.D, and 17.28.103.F below. Such conduit (raceway) shall be placed underground to the curbline and/or utility right-of-way, including but not limited to, electric, telephone, communication, exterior lighting and television cable.
3. Related equipment such as transformers, meters, etc., shall be above ground, preferably within the furnishing zone between the curb and sidewalk, within the public utility easement, or within the required front yard setback or side yard setback adjacent to the street; equipment placed in the street right-of-way shall be subject to all applicable laws and ordinances.

C. Previously Approved Streets and Utilities: Where a subdivision abuts an existing public or private street, or one shown on an approved final plan with an overlay district, recorded final plat, or on the Metro Government Official Street and Alley Map, then no undergrounding shall be required of existing utilities or new utilities proposed along that existing portion of the public or private street, unless underground utilities already exist.

D. Exemptions. The following items shall be exempt from complying with the provisions of this title, except those noted with an asterisk (*). Items with an asterisk (*) shall be considered on a case-by-case basis for exemption by the Metro Planning Commission, based on a property's location and topography.

1. Any new preliminary or amended planned unit development application or any new or amended urban design overlay district application, submitted to the Metropolitan Government of Nashville and Davidson County before July 1, 2005.
2. Any preliminary or revised preliminary subdivision plat application, submitted to the Metropolitan Government of Nashville and Davidson County before July 1, 2005.
3. Any residential lot or parcel greater than 40,000 square feet in size.
4. Above ground utility equipment installed, maintained, and utilized by utility companies for a period not to exceed thirty (30) days in order to provide emergency utility services. The time limitation may be extended, if warranted, by the Metro Planning Commission.
5. Utility equipment utilized for street lighting purposes.
6. Utility equipment utilized exclusively for vehicular and pedestrian traffic control purposes.
7. Utility equipment appurtenant to underground facilities and which meet the requirements of Section 17.28.103.B.3, such as service-mounted, pedestal-mounted, or pad-mounted transformers, terminal boxes, meters, cross boxes, cabinets, vaults, electronic enclosures, pedestals, flush-to-grade hand holes, splice closures.
8. Temporary utility equipment utilized or to be utilized exclusively in conjunction with construction projects, seasonal, or special event installations. Upon installation of permanent utility service, above ground service shall be removed.
9. Fire hydrants, fireplugs, and other utility equipment utilized exclusively for firefighting purposes.
10. Overhead wires attached to the exterior surface of a building by means of a bracket or other fixture and extending from one location on the building to another location on the same building, or to an adjacent building or to the alley, without crossing any public street.
11. Antennas, associated equipment and supporting structures, used by a utility for furnishing communication services.
12. Electrical distribution lines on major streets as shown on the Major Street Plan, electrical transmission lines, or switch gear.
13. Equipment installed by the utility which should not be installed underground for engineering, safety, or environmental regulatory reasons.
14*. Utility lines with a length of less than 300 feet and where utility lines have not been placed underground within the proposed new subdivision, on any property abutting the subdivision, or within any approved but not yet built abutting subdivision where a final plat has been approved.
15*. Utility lines where severe disruption of existing improvements, diminished quality of service, or undue difficulty in repair would occur.
16*. Utility lines where an affected adjoining property owner will not consent to modification of easements.

E. Variance. A property owner and/or developer may appeal to the Board of Zoning Appeals indicating why undergrounding utilities are not feasible in accordance with the procedures set forth in Section 17.40.350. The Board shall not act upon such a request without first receiving a recommendation from the Metro Planning Commission, as provided in Section 17.40.340.

F. Alleys. Where a subdivision proposes alleys, utilities may be located above or below ground in these alleys. If utilities are located above ground, then all utilities serving the proposed lots shall be placed in the alleys, except any street light system. Utilities connecting one alley to another alley may cross a public or private street above ground.

H. Property Owner Responsibility. The property owner and/or developer installing, requesting, or requiring the construction of the improvement, and not the Metropolitan Government or the utility, shall be responsible for the cost of placing utility lines underground and shall make the necessary arrangements with the serving utility companies. The utility shall have no obligation to underground facilities unless and until it receives full payment for costs to do so.

I. Non-Conforming Utility Equipment. Any utility equipment approved or installed, and operating prior to the effective date of this ordinance, may be maintained in its present condition and may be upgraded to conform to new technologies and regulatory requirements.

J. Existing City Franchises Not Affected. The provisions of this section do not and shall not be interpreted to waive any right enjoyed by Metro with respect to any franchisee, nor to waive the obligations created by any franchise. In the event that any provision of this section conflicts with any provision of a franchising agreement or ordinance, said franchise provision shall control. The provisions of this section likewise are not intended to create any conflict with the rights granted pursuant to T.C.A. §§ 65-21-201, et seq. and 65-21-107.

H. Relationship to Other Requirements. In case of conflict between the standards of this section and any other standards, rules, or regulations adopted by any other applicable Metro governmental department or agency, the provisions of this article shall control.

If any section, clause, provision or portion of this section is held to be invalid or unconstitutional by any court of competent jurisdiction, such holding shall not affect any other section, clause, provision or portion of this section.

SECTION 4. By amending Section 17.40.340 (Limits to Jurisdiction) by adding after the phrase "variance application" and before the phrase "within a planned unit development" the phrase "concerning underground utilities or".

SECTION 5. BE IT FURTHER ENACTED, That this ordinance take effect immediately after its passage and such change be published in a newspaper of general circulation, the welfare of The Metropolitan Government of Nashville and Davidson County requiring it.

Sponsored by: Tommy Bradley, Jim Shulman, Ginger Hausser, Carolyn Baldwin Tucker, Mike Jameson, Jamie Isabel, Vivian Wilhoite, Diane Neighbors, Rip Ryman, Lynn Williams, Amanda McClendon, Erik Cole, Pam Murray, Parker Toler, Billy Walls

LEGISLATIVE HISTORY
Introduced:	April 5, 2005
Passed First Reading:	April 5, 2005
Referred to:	Planning Commission - Approved 10-0 (April 28, 2005) Planning & Zoning Committee
Passed Second Reading:	May 3, 2005
Passed Third Reading:	May 17, 2005
Approved:	May 19, 2005
By:
Effective:	May 21, 2005