Xcel Energy pulls plug on flags, other decorations
The festive holiday season — and the high-flying, decorative banners and flags that often go along with it — extends into January and beyond every year.
But the number of street- lights dressed way down for this holiday season in cities across Colorado could be dramatically increased as of Jan. 1 because of a recent, wide-ranging new directive handed down by Xcel Energy earlier this year.
In a broad letter sent to franchise communities in May, the utility company wrote, “Xcel Energy can no longer permit or approve the installation of banners, flags, decorations, or other non-permitted attachments on our facilities.”
It further stated: “All attachments, including banner arms, must be removed by December 31, 2012.”
“This is a significant issue,” said Clint Kinney, Fruita city manager. “We rely on them. This came as a surprise to us that Xcel would be doing it.”
Kinney said the city displays “decorative and directional” banners on streetlight poles throughout town. Some stay up year-round; others are put up around seasonal holidays.
Sam Mamet, executive director of the Colorado Municipal League, said the issue has been a topic of conversation among member cities since Xcel dropped the broad directive on cities in May.
“You can go down any community Main Street in Colorado, and you’re going to see banners,” Mamet said. “It’s just been a matter of course for forever and a day.”
Xcel does not dispute that the poles have been used this way in the past. Instead, it is pegging its new directive on policy language dating to the 1950s “that specifically bans attachments that are not related to police use,” the letter states.
Ken Fellman, an attorney with Denver-based Kissinger and Fellman, P.C., who specializes in working with local governments on telecommunications and utilities issues, disputes the interpretation of the policy language.
He called Xcel’s arguments “tortured reasoning” and said that from the policy standpoint, “Either (all attachments are) prohibited, or they’re not prohibited. Xcel is picking and choosing.”
Xcel spokesman Mark Stutz wrote in an email to The Daily Sentinel that while there has been no change in policy, “there are many reasons for stronger enforcement — the primary issues are safety, reliability and liability.”
Fellman contends all three issues that Xcel raises are contentious.
Regardless of the soundness of Xcel’s legal footing, cities across the state are struggling with the lack of specificity that often exists about who owns the poles themselves, city to city.
As Kinney notes, when developers build a project, they give the city a bill of sale for all of the infrastructure they install in the subdivision.
“We’ve got bills of sale showing us that we own streetlights,” Kinney said. “We know we own some. We know they own some. And we’re going to have to sit down and settle out who owns what.”
Fellman describes another situation that has happened with a few of his municipal clients. He said cities in the past have requested to use Xcel’s poles to hang things, but Xcel required that the cities purchase special, more expensive poles if they wanted to use them for attachments.
“Now Xcel is saying you can’t use the poles that we made you pay more for,” Fellman said.
Another “outrageous” aspect, as Fellman sees it: Xcel is proposing that cities pool their resources and figure out a way to purchase from Xcel poles on which they would like to hang banners or other attachments.
The catch is that Xcel may charge cities “up to five figures” just to determine a purchase price for the poles, according to Fellman.
One Colorado city, Black Hawk, has been proactive on the issue. It recently passed a municipal ordinance that says the city has the authority to make attachments to facilities in public rights-of-way, as long as safety is not compromised.
Other cities could follow suit, but for now, many are sitting on the sidelines waiting for the dust to settle — and not hanging new banners on light poles in the interim.
The Colorado Municipal League’s Mamet said Xcel has, to its credit, reached out to cities to discuss their specific situations.
“There is definite agitation in the system around the state on this, and I’m hopeful that Xcel and our municipalities can resolve this,” Mamet said.
“Because it has certainly generated a great deal of confusion.”
Fellman said despite Xcel’s offers to discuss the matter, the utility has yet to budge on its hardened position. He said litigation may be unavoidable.
In addition to Fruita, the cities of Grand Junction and Rifle and the town of Palisade have all used Xcel structures in the past to hang banners and signs, Xcel said.