T&E Committee #1&2
July 22, 2010
MEMORANDUM
July 20, 2010
TO:
FROM:
SUBJECT:
Transportation, Infrastructure, Energy, & Environment Committee
Jeff
ZYOnt~islative
Attorney
Bill 17-10, Public Utility Easement - Urban Roads; and Subdivision Regulation
Amendment (SRA) 10-01, Public Utility Easements - Urban Roads
Minutes from June 24 worksession on SRA 10-01 and
Bill 17-10
On June 24, 2010 the Committee (2-0 with Councilmember EIrich attending and in agreement)
recommended the following:
1)
If the Planning Board determines that a building should abut a roadway right-of-way along an
urban roadway, the location of public utilities should not prevent that from occurring. Whenever
possible, it would be preferable to have public utilities on private property.
The Committee asked County Executive Staff and Planning Board Staff to work out their
differences and come back to the Committee with a joint recommendation to amend SRA 10-01
and Bill 17-10.
2)
Agreement between staff:
DPS, DOT, and Planning Board staff agreed to the following revised SRA:
ill
[[Unless the Planning Board determines that the resulting building setbacks would be
appropriate,
a
public utility easement on
a
record plat must not be required lithe easement would
abut an urban road as defined
by
Chapter 49 Section 32(c)(I).]] Generally. public utilities must
be located in a public utiIitveasement a10ngsige the roadway right-of-way; however, when the
Planning Boar<:i determines that the preferred location of a building is abutting an urban roadway
ruID1::of-way a§ defined by Chapter 49 Section 32(c)(1):
ill
public utilities must be located, if feasible, in a manner that goes not require a building
~k
djfferent from the preferred location;
if no
f~asible
locations are found for ut!lities under subsection
(1),
the County must allow
utilities inthe right-of-way by issuing a permit that satisfies County standards.
 PDF to HTML - Convert PDF files to HTML files
DPS, DOT, and Planning Board staff agreed to the following revised Bi1117-10:
{gl
[[Public]] Generally. all public utilities must be located in a public utility easement adjacent and
contiguous to dedicated roadway rights-of-way; however. when the Planning Board determines
that the preferred location of a building is abutting
an
urban roadway right-of-way and no
feasible alternSJ,tiyes have been identifted on-site. utilities must be allowed [[in urban]] by permit
within road rights-of-way[[J] in the following order of preference:
ill
in a public alley;
(21
unger the sidewalk:
ill
under the area used for on-street parking;
ill
under a travel lane.
When utilities are located within the right-of-way a.nd the utility needs to be repaired or
replac~..d,.
the utility company rrlUst be responsible for restoring. at
it~sole
cost. the
affect~d
surface and
transition areas to the condition that existed before making the repair. or to a better condition.
Chl
Staffrecommends approval ofthe ZTA and Bill as amended by the joint agreement.]
DOT and DPS Staff suggested adopting their agreement as a statement of policy, rather than changing
the law. Councilmember EIrich believes that transparency requires a change to the law.
Background
SRA 10-01, Public Utility Easements Urban Roads; and Bi1117-10, Public Utility Easement - Urban
Roads, sponsored by Councilmember EIrich, were introduced on April 13, 2010.
Generally, the Planning Board requires a public utility easement (PUE) along the edge of the roadway right­
of-way; the PUE is generally in the area between the sidewalk and the building. The easement gives
utilities the right to access to their service lines. Buildings must
be
located outside of the easement areas.
This suburban model of development is appropriate for most areas of the County; it is a problem in
pedestrian-oriented areas where
it
is desirable for the building to be built next to the public sidewalk. Under
permits issued by the Department of Permitting Services (DPS), public utilities are allowed in a Central
Business District's public rights-of-way (ROWs).
It
is not clear how utilities would
be
accommodated in urbanizing areas such as White Flint. The design
guidelines call for buildings next to the sidewalk. DPS does not want utilities in the ROW unless it is the
last resort.
2
SRA 10-01 would allow appropriate building setbacks by prohibiting public utility easements along urban
roads
3 .
The Planning Board would have the authority to allow a public utility easement along an urban road
"We seldom fmd any person of good sense, except those who share our opinions." Francois De La Rochefoucauld
2
Utilities would be under brick, concrete, or asphalt.
Major repairs require tearing up hard surfaces and disrupting
pedestrians and motor vehicles. Given the cost, time, and inconvenience, utilities would also prefer to be in the right-of-way
as a last resort.
3
Under §49-32(c)(l) an "urban road" is "a road segment in or abutting a Metro Station Policy Area, Town Center Policy
Area, or other urban area expressly identified in a Council resolution." The current Metro Station Policy Areas include:
Shady Grove, White Flint, Twinbrook, Grosvenor, Bethesda CBD, Friendship Heights, Glenmont, Wheaton CBD, and Silver
Spring CBD. Germantown TO\\-l1 Center is the only designated town center. The other areas identified as urban by
1
2
 PDF to HTML - Convert PDF files to HTML files
if it finds that the resulting building setbacks are appropriate. The SRA was introduced with a companion
Bill. Bill 17-10 would
require
the Department of Transportation to allow public utilities to be located in
the ROW of an urban road.
The Planning Board recommended approval of SRA 10-01 and Bill 17-10 with modifications.
It
recognized that placing utilities in ROWs should
be
an option, but not a mandate. The Board recognized
that the SRA would give it the authority to reject a PUE if it did not result in desirable building setbacks,
but they also wanted flexibility to address streets capes. The Planning Board recommendation was
consistent with the Planning Staff recommendation.
On June 15, 2010 the Council held a public hearing. The County Executive expressed concern over
requiring
public utilities to
be
in the public ROW. Testimony pointed out that the Bill would limit the
Executive Branch's discretion and its ability to coordinate issues through the pennitting process. There was
no other testimony.
PEPCO favors the approval of the SRA and Bill with amendments. PEPCO would like a requirement for
color coded utility plans with subdivisions. Pepco would also want a provision that utilities be paid for
reconstruction work, if public works harms utilities.
4
This packet contains:
SRA 10-01
Bill 17-10
PEPCO testimony
Circle
#
1 3
4-6
7-8
F:\Land Use\SRAs\SRA 10-01 PUE- urban roads\SRA 10-01 T&E second worksession post June 24.doc
resolution are: Clarksburg, Damascus, Olney, the North Bethesda CommerciaVMixed Use area, the Montgomery Hills
Parking Lot District, and the Flower/Piney/Arliss Commercial Areas.
4
The mandatory referral process under Article 28 includes the placement of public utilities.
3
 PDF to HTML - Convert PDF files to HTML files
Ordinance No.:
Subdivision Regulation Amend. No.: 10-01
Concerning: Public Utility Easements ­
Urban Roads
Revised: 7/22/10; Draft No.2
Introduced: April 13, 2010
Public Hearing: June 15,2010
Adopted:
Effective:
COUNTY COUNCIL FOR MONTGOMERY COUNTY, MARYLAND
SITTING AS THE DISTRICT COUNCIL FOR THAT PORTION OF
THE MARYLAND-WASHINGTON REGIONAL DISTRICT WITHIN
MONTGOMERY COUNTY, MARYLAND
By:
Councilmember EIrich
AN AMENDMENT
to the Subdivision Regulations to:
prohibit public utility easement along urban roads under certain circumstances.
By
amending
Montgomery County Code
Chapter 50, Subdivision of Land
Section 50-40, Public utilities
Boldface
Underlining
[Single boldface brackets]
Double underlining
([Double boldface brackets]]
* * *
Heading or defined term.
Added to existing law by original bill.
Deletedfrom existing law by original bill.
Added by amendment.
Deletedfrom existing law or the bill by amendment.
Existing law unaffected by bill.
ORDINANCE
The County Council for Montgomery County, Maryland, sitting as the District Council for that
portion ofthe Maryland-Washington Regional District in Montgomery County, Maryland,
approves the following ordinance:
 PDF to HTML - Convert PDF files to HTML files
1
2
3
Sec. 1. Section 50-40 is amended as follows:
Sec. 50-40. Public utilities.
(a)
GeneraL Pipelines, electric power and energy transmission and distribution
lines and cables, and telephone and telegraph lines and cables [shall] must be
underground in a subdivision where the preliminary subdivision plan is filed
subsequent to June
6,1967.
[!lInless the Planning Board determines that the resulting building setbacks
would be appropriate, g public utility easement on g record plat must not be
required if the easement would abut an urban road as defined by Chapter 49
Section 32(c)(1).]]
Generally. public utilities must be located in a public utility easement
alongside the roadway right-of-way; however. when the Planning Board
determines that the preferred location of a building is abutting an urban
roadway right-of-way as defined by Chapter 49 Section 32(c)(I):
4
5
6
7(hl
8
9
10
11
12
13
14
15
16
ill
public utilities must be located, iffeasibl€:!. in a manner that
does not require a building setback different from the preferred
location;
17
18
19
m
(£)
if no feasible loc'!tions are found for utiljties under subsection
(1).
the County must aUowutilities in the right-of-way by
issuing a permit that satisfies County standards.
Installation. Underground installation shall be required but not limited to g
total of six
(6)
or more buildings in a subdivision. Temporary overhead lines
[shall] must be permitted for any total of less than six (6) buildings in a
subdivision.
[(c)]@
20
21
22
23
24
25
* * *
26
27
Sec. 2. Effective date. This ordinance takes effect 20 days after the date of
 PDF to HTML - Convert PDF files to HTML files
28
29
30
31
32
33
34
35
36
37
38
Council adoption.
Approved:
Isiah Leggett, County Executive
Date
This is a correct copy o/Council action.
Linda M. Lauer, Clerk ofthe Council
Date
 PDF to HTML - Convert PDF files to HTML files
Bill No. _ _ _-'-'-""'-"'-_____- - ­
Concerning: Public Utility Easement­
Urban Roads
Revised: 4-1-10
Draft No. _1_
Introduced:
April 13, 2010
Expires:
October 13, 2011
Enacted: _ _ _ _ _ _ _ _ __
Executive: _ _ _ _ _ _ _ __
Effective: _ _ _ _ _ _ _ __
Sunset Date: -cN!..!.:o=n:.:::;e_ _ _ _ __
Ch, _ _, Laws of Mont. Co. _ __
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By:
Councilmember Eirich
AN
ACT to:
(1)
allow public utilities in the right-of-way ofurban roads.
By amending
Montgomery County Code
Chapter 49, Road Code
Section 49-32. Design standards for types of roads.
Boldface
Underlining
[Single boldface brackets]
Double underlining
[[Double boldface brackets]]
* * *
Heading or defined term.
Added to existing law by original bill.
Deleted from existing law by original bill.
Added by amendment.
Deletedfrom existing law or the bill by amendment.
Existing law unaffected by bill.
The County Council for Montgomery County, Maryland approves the following Act:
 PDF to HTML - Convert PDF files to HTML files
BILL
No. 17-10
1
2
3
4
5
Sec.
1.
Section 49-32 is
amended
as follows:
(
a)
The design standards adopted under this Article govern the construction or
reconstruction of any County road except Rustic Roads and Exceptional Rustic
Roads.
*
(b)
* *
6
7
8
A limited segment of a County road may be designed to vary slightly from the
applicable standards, criteria, or specifications, as necessary to adjust to site-
specific conditions, as long as the road's typical cross-section and other
attributes conform to the applicable standards, criteria, or specifications.
9
10
*
(c)
(1)
* *
11
12
In this Article and the standards adopted under it:
an 'urban' road is a road segment in or abutting a Metro Station Policy
Area, Town Center Policy Area, or other urban area expressly identified
in a Council resolution;
13
14
15
16
* * *
(d)
The minimum right-of-way for a road may be specified in the applicable
master plan or sector plan for the area where the road is located.
17
18
19
20
21
*
(g)
* *
[[Public]] Generally. all public utilities must be located in a public utility
easement adjacent and contiguous to dedicated roadway rights-of-way; however,
when the Planning Board determines that the preferred.location ofa building is
abutting an urban roadway right-of-way and no1'easible altern(itives have been
identitied on-site, utilities must be allowed [[ in urban]] by permit within road rights-
of-way[[ :.
22
23
24
25
n
in the following order of preference:
ill
(2)
in a public alley;
under the sidewalk:
under the area used for on-street parking;
under a travel lane.
- 2
-f:\Iaw\bills\1017 public utility easements in row\10xx public utility easement in rowag
26
27
28
ill
8:1
@)
 PDF to HTML - Convert PDF files to HTML files
BILL
No. 17-10
29
30
!hl
When utilities are located within the right-of-way and the utility needs to be
repaired or replaced. the utility company must be responsible for
r~storing,
at its sole
cost. the affected surface and transition areas
to
the cpndition that existed before
making the repair, orto a better condition.
31
32
33
34
35
36
37
Approved:
Nancy Floreen, President, County Council
38
Date
Approved:
39
40
Isiah Leggett, County Executive
41
Date
This is a correct copy ofCouncil action.
42
Linda M. Lauer, Clerk of the Council
Date
f:l-
3
-f:\law\bilis\1017 public utility easements in row\10xx public utility easement in row ag
LV
 PDF to HTML - Convert PDF files to HTML files
~/LL
/7-/0
v
~pepco
A PHI
Company
Kim M. Watson
Vice President -Maryland Affairs
701 Ninth Street, NW
Suite 9212
Washington, DC 20068
(202) 872-2524
kmwatson@pepco.com
0577:13
June 23, 2010
The Honorable Nancy Floreen
Chair, Transportation, Environment and Infrastructure Committee
Montgomery County Council
100 Maryland Avenue
Rockville, MD 20850
Dear Councilmember Floreen:
I write today to address Pepco's position on Bill 17-10 and the companion Subdivision
~
Regulation Amendment (SRA) 10-01 which are scheduled to be before your committee
on June 24. Pepco supports the goals of transit-oriented, pedestrian-friendly, mixed-use
development as envisioned in this legislation. However, Pepco is concerned that this
legislation, as drafted, does not ensure the level of coordination between utilities .and
developers that would be necessary if all utilities along urban roads were to be in public
space. In addition, this legislation does not explicitly allow utilities the financial
protections provided under state law.
Color-Coded Utility Concept Plans
SRA 10-01 attempts to empower the Planning Board to prohibit public utility easements
and allow developers to construct buildings closer to the property line. Bill 17-10 seeks
to provide utilities the space to safely install and maintain their facilities within the public
right-of-way, However, in order to ensure that all utilities have adequate space, Pepco
recommends that developers submit a color-coded utility concept plan that identifies the
existing and proposed location of all public utilities, including streetlights. In similar
legisiatior., the Prince George's County Council recently required developers submit a
color-coded utility drawing to improve coordination of facilities in public space. Tile
proposed concept plan, drawn to scale, would allow utilities to notify developers early in
the process if space limitations present a safety concern.
Rights-of-Way and Easements - Consistency with State Regulations
The Code of Maryland Regulations (COMAR) provides that "rights-of-way and
easements suitable to the utility shall be furnished at no cost to the utility." However, Bill
17-10 does not explicitly address a utility's right to the space necessary to provide safe
service, at no cost to the utility. In addition, COIVIAR 20.85.01.03 provides that utilities
should not be responsible for the costs of utility relocation necessitated by road work,
subsequent to construction. To prevent confusion, Pepco requests amendments that
explicitly address these costs in a manner that is consistent with CO MAR.
 PDF to HTML - Convert PDF files to HTML files
The Honorable Nancy Floreen
June 23, 2010
Page 2
After speaking with the legislation's sponsor, other Montgomery County utilities and
representatives of the development community, Pepco proposes the attached
amendments. Pepco believes these amendments address utility concerns without
unfairly burdening other stakeholders in the development process. Although the
company does not waive its rights under COMAR, Pepco remains committed to working
with Montgomery County and developers to implement the County's vision for transit­
oriented and pedestrian-friendly development. We hope the
T&E
committee and
ultimately the County Council as a whole, will give the attached amendments full
consideration.
A representative from my office will attend the
T&E
committee work sessions on this
matter. If you have any questions about Pepco's position on this topic, please contact
Charles Washington, Manager, Government Affairs in my office at 202-872-2132.
/J~~v~.L1~~-
cc: Montgomery County Council
Enclosures
Sjncgerely.
If
(j)