By Myrna Trauntvein
Times-News Correspondent
Mona's engineer wrote an email to all city council members and the mayor.
"I have some thoughts on the Davies easement," said Richard Hatfield, Mona City Engineer.
"First, I listened to the Planning and Zoning minutes and found that the final recommendation was for the Davies' to place their fence on the easement line, rather than the property line," said Hatfield.
This recommendation was based on the perception that a public utility easement needs to be free of any obstacle, including fences.
However, he said, Utah Code 54-3- 27 identifies some of the rights and responsibilities of the property owners and the utility companies.
In 54-3- 27(1)(b), it states that a public utility easement means the area on a recorded plat map or other recorded document that is dedicated to the use and installation of public utility facilities.
It further states in 54-3- 27(2)(a)--That a public utility easement provides a public utility with: (i) the right to install, maintain, operate, repair, remove, replace, or relocate public utility facilities; and (ii) the rights of ingress and egress within the public utility easement for public utility employees, contractors, and agents.
In 54-3- 27(2)(b), notwithstanding Subsection (3), a public utility shall restore or repair, at the expense of the public utility, any fence, grass, soil, shrubbery, bushes, flowers, other low level vegetation, sprinkler system, irrigation system, gravel, flat concrete, or asphalt damaged or displaced from the exercise of the easement rights described in Subsection (2)(a).
It continues, he said, with 54-3- 27(3) which said that except as provided in Subsection (2)(b), if a property owner places improvements to land that interfere with the easement rights described in Subsection (2)(a), the property owner shall bear the risk of loss or damage to those improvements resulting from the exercise of the easement rights described in Subsection (2)(a).
Second, the Code also defines a 'Protected Utility Easement', which, in most cases, is a recorded document, between a property and a utility company that usually has a bunch of conditions in the language.
"I don't see any indication that the Davies/Carlton easement is a protected utility easement," said Hatfield. "In fact, on the Kay Country plat, it is platted as a utility easement."
"According to the Code, I believe that a property owner has the right to install a fence on their property line, even if it lies within a public utility easement," Hatfield said. "You can see this in subdivisions all throughout the state."
Modern subdivisions are required to plat a public utility easement around all of the parcels (much like the Kay Country plat) and property owners legally install fences on the property line.
"In fact, it can be deduced that fences, shrubbery, bushes, flowers, other low level vegetation, sprinkler systems, irrigation systems, gravel, flat concrete, and/or asphalt all has the legal right to be within a public easement and if a utility company uses the easement they will need to restore all of these items, if disturbed," said Haley.
If improvements outside these items (sheds, buildings, large trees, etc.) are placed within a public utility easement, the property owner will have to incur the cost to replace them, if damaged by a utility company performing legal activities.
"Fourth, I think the safest ground for the city to stand on is to allow the fence to be constructed on the property line," said Hatfield. "If a utility owner needs to install, maintain, operate, repair, remove, replace, or relocate their utility they will need to consider the cost to repair any damages."
"We've been spending a lot of time on the utility easement and I wanted to provide some information on the walkway easement and the possibility of vacating it," he said.
Once again, he said he would refer to State Code: Title 17-27a- 609.5 which spells out the process for vacating an easement:
"First, someone (likely the Davies') will need to petition the city to vacate the walkway easement," he said. "The petition will need to have the name, address and signature of each property owner within 300 feet of the easement.
The city would then hold a public hearing and evaluate the petitioner's request to determine if there is good cause to vacate the easement and that the public interest or any person will not be materially injured by the vacation of the easement.
If the motion to vacate the easement passes, an ordinance, granting the petition, may be adopted.
