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AUTHORIZATION OF ENCROACHMENTS IN THE PUBLIC WAY
The purposes for and intentions behind this division are as follows:
(A) The public ways are valuable public resources that have required, and will continue to require, substantial investment by the town; and
(B) The town desires to structure and implement a fair and orderly process for the application for, and granting of, authorization for private parties to occupy and use public ways, consistent with applicable law, and which appropriately accounts for the varied reasons that private parties seek such authorization.
(C) The town desires to minimize inconvenience and disruption to the public, provide for the orderly and efficient use of the public ways now and in the future, and preserve adequate capacity for existing and future uses of the public ways.
(D) The town intends to exercise, to the fullest extent permitted by applicable law, its authority in regulating the occupation and use of public ways.
(Ord. passed 9-17-2019)
(A) Except for minor encroachments, which do not require written authorization, it shall be a violation of this article for any person to encroach upon any public way or town property without first receiving written authorization to do so from the Administrator pursuant to this chapter.
(B) All persons that operate utilities that the town may franchise under the authority of G.S. 160A-319 shall apply for a franchise to be approved by the Town Council in accordance with the Town Charter. Authorization to encroach upon a public way may be granted through the terms of an appropriate franchise agreement.
(C) In situations not governed by a franchise agreement, authorization to encroach shall be granted in appropriate cases through the terms of a non-exclusive, revocable encroachment permit or encroachment agreement, signed by the applicant and the Town Manager, using whatever form the town devises and is approved by the Town Attorney for that purpose.
(D) The Administrator shall develop standards and requirements for authorizations, including but not limited to franchises, licenses, permits, and other approvals, and may attach conditions to such authorizations. The Administrator may also develop standards and requirements for doing work in the public way when an authorization is not required.
(E) The Administrator shall charge such fees as are authorized by the Town Council for applications for authorizations; review of information and plans; issuance of authorizations; inspections and re-inspections; maintenance of facilities in the public way; and for any other town review, oversight, or administration of proposed, ongoing, or completed activities within the purview of this chapter. The Administrator may allow persons to establish and fund escrow accounts or other accounts with the town to which fees may be charged.
(Ord. passed 9-17-2019)
(A) Application for authorization to encroach upon a public way shall be submitted to the Administrator on whatever form is devised for that purpose.
(B) The applicant shall provide the following information concerning the proposed encroachment:
(1) Identification of the public way at issue;
(2) A description of the items the person desires to install in the public way and the purposes those items would serve. No authorization shall be granted for new equipment or facilities that are not expressly and individually identified at the time of the application, including the specific location and design characteristics of each facility.
(3) A description of how items shall be installed, including whether any excavation in the public way will be required;
(4) Whether installation of the relevant items will disrupt traffic flow or otherwise interfere with the use of any public way, and if so, what precautions the applicant intends to take to minimize that disruption and to protect human safety;
(5) A site plan with sufficient detail to show the proposed locations of the items the applicant seeks to install in the public way, including any manholes or overhead poles, the size, type and proposed depth of any conduit or other enclosures, and the proximity of the applicant's items, if installed, to all existing poles, utilities, sidewalks, pavement, telecommunications or cable systems, and other improvements existing in the relevant public ways;
(6) A proposed construction schedule, duration, and sequence;
(7) A description of any insurance the person has, or would obtain if granted authorization to encroach on the relevant public street or street rights-of-way, that will cover the proposed activities in the public street or street rights-of-way;
(8) The name, address and telephone number of the person the town may contact concerning the application; and
(9) Such other information as the Administrator may determine to be necessary or appropriate to evaluate the application or otherwise in furtherance of the public interest.
(C) Business and other commercial applicants shall submit the following additional information:
(1) A general description of the applicant's business; and
(2) A description of the services, if any, the applicant proposes to provide to others through the infrastructure proposed to be installed in the public way, identifying also the geographic scope in which such services would be provided, and to whom they would be provided.
(D) Any person who must also receive a franchise from the town for their intended business or activity may provide the information set forth above in their franchise application.
(E) The Administrator may reject any application to encroach upon a public way that is incomplete or otherwise fails to comply with the terms of this chapter or other applicable law.
(Ord. passed 9-17-2019)
(A) The authority to grant a private party authorization to encroach upon a public way shall be exercised by the Administrator. In the Administrator's discretion, however, any application for authorization to encroach may be submitted to the Town Council for review and decision, with or without a recommendation from the Administrator. In such cases, the grant of authority, if given, will be made by adoption of a resolution by the Town Council. In any case, the grant of such authority shall be conditioned upon such terms as shall be specified in the relevant encroachment or franchise agreement.
(B) The Administrator may make such investigations and take or authorize the taking of such other steps as the Administrator deems necessary or appropriate to consider and act upon applications to encroach upon a public way.
(C) The Town Council may set a public hearing to give the public an opportunity to comment on an application to encroach upon a public way.
(Ord. passed 9-17-2019)
(A) In deciding whether to grant any application for authorization to encroach upon any public way, the Administrator may consider such factors as it deems appropriate and in the public interest, provided such factors are consistent with applicable law, including without limitation:
(1) The willingness and ability of the applicant to meet construction and physical requirements and to abide by all lawful conditions, limitations, requirements and policies with respect to the encroachment;
(2) The ability of the applicant to maintain the property of the town in good condition throughout the term of the relevant franchise or encroachment agreement;
(3) Any services or uses of the public ways that may be precluded by the grant of the requested authorization to encroach, and the adverse impact of the proposed encroachment on the efficient use of the public streets and street rights-of-way at present and in the future;
(4) The adequacy of the terms and conditions of the proposed encroachment or franchise agreement to protect the public interest, consistent with applicable law; and
(5) Any other factors or considerations that are deemed pertinent.
(B) Consistent with applicable law, the Administrator may develop and implement policies and requirements to ensure that the public ways have sufficient capacity reasonably to accommodate existing and future uses in a rational and efficient manner. In evaluating an applicant for the right to encroach upon a public way, the Administrator may consider an applicant's proposals for addressing capacity needs and compliance with town policies and requirements in that regard.
(Ord. passed 9-17-2019)
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