Town council approves request to forgo underground work for Overlook project

In a unanimous vote on Sept. 16, the Windsor Town Council approved a request from the developer of the Overlook subdivision to remove the requirement to underground existing overhead utilities along Windsor Road. The council also approved the final map for the 5.9-acre, 12 residential lot subdivision, accepted the easement and authorized the subdivision improvement agreement.

Councilmember Bruce Okrepkie recused himself from the report and the motion due to a conflict of interest.

The map approval and the subdivision improvement agreement could have both been consent calendar items, however, developer Phil Richardson’s request to change to undergrounding requirement condition of approval required a public hearing and a council vote.

Before the council could receive the agenda item report and discuss the items at hand, Councilmember Deb Fudge made an announcement regarding a campaign donation she and Mayor Dominic Foppoli received from the Overlook developer.

“Sometime last week I unexpectedly received a campaign donation from Phil Richardson. It was unsolicited. He is the developer of the Overlook subdivision and it was not on my radar that this was coming up today. I understand that Dominic is in the same position and Dominic conferred with our attorney about whether this was a conflict of interest or not — and after I speak I will have our attorney reaffirm that — but Dominic and I talked and because even though there is no conflict of interest we did both accept the checks and we did deposit them and we did 497 forms. We followed all the laws but we have decided that because of the perception of this item that we are both going to donate the money we received to Windsor charities and not use the money within our campaigns,” Fudge said.

Both Fudge and Foppoli said they will wait until after the campaign to make the donations.

The town attorney, Jose Sanchez, explained why the donations do not pose a conflict of interest.

“Campaign donations are treated differently under the Political Reform Act. You have no conflict of interest under the Political Reform Act with campaign contributions,” Sanchez said. “The bottom line is as councilmembers when you receive campaign contributions when you’re sitting as councilmembers on a council meeting and an item comes before you, you do not have a Political Reform Act conflict.”

Termination of undergrounding requirement

According to the town’s planning and building department and staff analysis, six power poles would remain if they’re not undergrounded. If undergrounding were to still be required there would be three poles in the public right of way on Windsor Road and the addition of an extra pole in order to connect utilities.

The approximate cost of undergrounding the overhead utilities came in around $550 per foot of utility line, a total project cost of $412,500. Both of these factors helped prompt the developer’s request.

Windsor Vice Mayor Esther Lemus pointed out that previous requests from the developer in 2012 and 2016 to forgo the undergrounding were denied.

“It appears that now staff’s analysis has changed, why has that changed?” Lemus asked.

Carl Euphrat, a senior civil engineer with the town of Windsor, said town staff did take the previous requests into consideration but had to consider some other factors as well.

“We do concur that the costs to place existing overhead lines underground have risen substantially over the last few years. We also took a closer look as to how many poles would remain if the undergrounding took place and the realization that there are still poles to remain in the public right of way along the project frontage,” he said.

Several residents who spoke during public comment expressed concerns that not requiring the undergrounding work would create an unnecessary fire safety risk.

“We keep talking about being fire safe and being careful and we keep saying that undergrounding utilities are what’s going to make us much safer and yet they are not done and nobody wants to start them … and so to come in now and say that we have a project that needed underground utilities but we’re not going to start now we’re going to wait until later is kicking the can further down the road, it’s not making us safer,” one resident said.

She said the requirement should be kept and met as in the original agreement.

Another resident agreed and said undergrounding as many overhead utilities as possible would be beneficial for the town and its safety.

Councilmembers felt that since undergrounding work would still leave several other poles above ground and would add a pole, approving the developer’s request would be the most sensicle path forward.

Lemus, who visited the Overlook site earlier this year with the developer and Councilmember Sam Salmon, said to her it does not make sense to underground the utilities at this particular site.

“When I was out there my initial impression was, ‘Wow, it doesn’t make sense’ (to underground the area),” she said. “I understand the request, and given the rural nature of the area and that there were already all of these poles up and that some would remain up, my initial impression was it didn’t make sense to underground there because of that location … I have to trust the staff’s analysis … I am going to support this modification.”

Fudge, who has known the developer Richardson for 25 years, recognized that undergrounding work is a costly endeavor.

“What changed my mind when we were analyzing this was not only are three poles still going to remain on the west side, but the whole corridor will still have poles. We were asking him to take down four poles and then add a pole and that is just ridiculous to me to put a pole back on the same side of Windsor Road and so this came down to common sense,” Fudge said.

She added that had the project been anywhere in the middle of town and not on the edge of town adjacent to a golf course, she would have wanted the undergrounding. Fudge said she is willing to not underground this particular location.

Salmon echoed both Fudge and Lemus’ comments, “Undergrounding of utilities is costly and it is necessary in many areas. The problem with this is I realize that we are still going to have wires on the other side of the road on the west side, the county side. There doesn’t appear to be, at least in the near future, development of those parcels on the west side, so we’ll have wires remaining. I do see some benefit of undergrounding the wires at Overlook, but it is not the kind of benefit that we may want to add to the cost of development.”

Salmon suggested asking Richardson if he’d be willing to commit to taking part of the money that he’d save from not undergrounding at the Overlook site and provide it to the town so the town could have the funding to do undergrounding near Old Redwood Highway.

However, Sanchez said the concern with having something like that imposed, even if it is voluntary, is that you then may have to weather the stormy seas in regards to sets of laws that come with those types of fees and negotiations.

“If we were dealing with a development agreement then there is a lot of back and forth of negotiations and a lot of these things are possible, but when we’re just dealing with a final map and these kind of conditions of approval we’re really looking at the four corners of the code of what is allowed and what findings can we make and nowhere does it allow the latitude of, ‘If you’re going to save this much can you put it in this fund.’ We as lawyers end up getting the concern that at some point down the line is somebody going to say ‘You imposed that fee illegally.’ Those are some of the concerns. There are also precedent setting concerns,” Sanchez explained.

Foppoli agreed with his colleague’s views towards the request to remove the undergrounding requirement and following the public hearing and council comments the item was approved unanimously.

To view the report on the item from town staff, visit: https://windsor-ca.granicus.com/player/clip/1179?view_id=2&meta_id=72231&redirect=true.