CHAPTER 52: WORK WITHIN TOWN RIGHTS-OF-WAY;
UTILITIES; ENCROACHMENT PERMITS
Section
   52.01   Purpose and intent
   52.02   General conditions for use of rights-of-way
   52.03   Encroachment permit required
   52.04   Exemptions and requirements
   52.05   Unlawful to do work without authorization; emergency
   52.06   Application requirements
   52.07   Additional requirements for wireless support structures, wireless communications facilities, and any other wireless communications facility, small wireless facility or micro wireless facility located in the PROW
   52.08   Enforcement provisions
   52.09   Fees, agreements and licenses
   52.10   Definitions
§ 52.01 PURPOSE AND INTENT.
   (A)   The Board of Commissioners of the town (referred to in this chapter as the "Board" and the "Town" finds that:
      (1)   Extremely limited space exists in the public rights-of-way (PROW) that requires diligent responsible management including but not limited to responsible proper siting policies;
      (2)   Protecting the public safety in and near the PROW is of paramount concern:
      (3)   The facilities that use and occupy the PROW often pose significant concerns regarding the health, safety, public welfare, protecting the nature and character of the town and its neighborhoods and for the environmental effects of work and facilities in the PROW. The town recognizes that facilitating the development of the responsible policies regarding the use of the PROW can be an economic development asset to the town and of significant benefit to the town and its residents. To assure that regulations governing the use of the PROW are reasonable and balanced, the town is adopting a single, comprehensive set of regulations governing the PROW.
   (B)   The intent of this chapter is to:
      (1)   Minimize the physical impact of facilities on the limited space of the PROW;
      (2)   Minimize the impact of facilities on the community;
      (3)   Protect the nature and character of the community to the extent reasonably possible;
      (4)   Establish a fair and efficient process for review of and action on applications;
      (5)   Facilitate the processing of applications;
      (6)   Assure tax payers' money is not used to subsidize application-related costs normally and traditionally borne by the applicant;
      (7)   Assure prompt and efficient review of applications;
      (8)   Determine any environmental impacts associated with the location, construction and modification of facilities located in the PROW; and protect the health, safety and welfare of the town, its citizens, residents and visitors; and to
      (9)   Establish procedures to: monitor work in the PROW; permit encroachments in the town's PROW; monitor and permit the use of town's property as applicable.
(Ord. 17-12, passed 9-18-2017)
§ 52.02 GENERAL CONDITIONS FOR USE OF RIGHTS-OF-WAY.
   (A)   Rights-of-way in the town may be controlled by North Carolina Department of Transportation (NCDOT), private parties and/or the town. The town issues and/or monitors work and/or encroachments in the town's rights-of-way. The town may own property in NCDOT'S rights-of-way. Encroachment permits or agreements are required to attach or use any town property.
   (B)   The right to perform work in the PROW and the ability to maintain facilities in the PROW are allowed subject to the conditions below, as supplemented by those set forth in other sections of this chapter, standards adopted by the Department, and requirements contained in permits and/or other authorizations.
      (1)   An encroachment permit does not convey any legal right title, or interest in the public way. Persons doing work in the public way and users may need to obtain approvals from persons with property interests in the property.
      (2)   A permit or authorization does not limit the town's exercise of its regulatory, police, government, legislative, or contracting authority. Town retains all rights it has to use all portions of public rights-of-way for its purposes not prohibited by law. If a permit or authorization conflicts with the terms of another permit or authorization or with the town code, the stricter of the applicable provisions shall control. The stricter provision shall not control, however, if a later-issued permit, authorization or ordinance explicitly and specifically states that particular terms are to override prior, less strict terms in an authorization.
      (3)   The town and its officials, officers, and employees are not liable for any direct, indirect or consequential damages that result when facilities in the public way are damaged during the construction, installation, inspection, maintenance, use or repair of public improvements that have received town funding or that are installed pursuant to a contract with the town.
      (4)   Users and persons who cause work to be done in the public way shall pay for all damage that results, directly or indirectly, from work performed for their benefit in the PROW, and for the installation, repair, maintenance, and operation of their facilities in the PROW.
      (5)   An encroachment permit creates no third-party rights against the town and is intended only for the benefit of the person receiving the permit or authorization.
      (6)   Persons doing work in the PROW shall not interfere with existing town utilities, such as infrastructure for water and sewer, the natural and constructed stormwater system, and traffic signals and associated lines, or the repair or replacement of such systems. Persons doing work in the PROW shall apply for an encroachment permit at least ten working days to locate and mark any existing town utility lines prior to initiating work. Damage to town utilities or other infrastructure shall be paid for by the person or user contracting for the work that resulted in such damage. If an encroachment permit is not required, persons doing work in the PROW shall also give the town Public Works Department ten working days' notice to locate and mark any existing town utility lines prior to initiating work. In addition, persons will give the Department a second notice 24-hours before doing any work in the PROW as required by division (B)(15)) below.
      (7)   Persons and users performing work in the public way shall ensure worker, traffic, and pedestrian safety and shall ensure that all work is performed in accordance with industry standards. Compliance with all federal, state, and local regulations, and all federal, state, local and industry codes and standards is required. These include but are not limited to compliance with the Occupational Safety and Health Act; compliance with the National Electrical Code and National Electrical Safety Code; compliance with fiber optic installation standards and telecommunication industry standards; compliance with plumbing and pipe installation codes and standards; and compliance with standards and codes for traffic safety and lane closures. Persons and users shall provide all equipment and personnel necessary to meet applicable regulations, codes, and standards and shall furnish additional equipment or personnel if requested by the town.
      (8)   The Department shall have the discretion to approve, deny, alter, and condition all proposed locations of facilities in the public way, and to determine whether placement, if allowed, shall be above ground or below ground.
      (9)   Wires, fiber, and similar conduit shall generally be located underground. A user that wishes to place such facilities above ground shall demonstrate to the town's satisfaction why above ground placement is necessary.
      (10)   The town recommends that facilities shall be located in existing ducts if such ducts are available and practicable to use. Applicants shall take reasonable steps to procure the right to use existing ducts.
      (11)   A user shall demonstrate to the Department's satisfaction that sufficient space exists in the public way for its proposed facilities without interfering with existing or planned public projects, and that placement of the facilities will not unduly disrupt use of the public way or negatively impact the condition of the public way.
      (12)   The town may require a user to post written notice of proposed work or activities along the public way impacted and/or to distribute notices to individual properties located along the public way.
      (13)   Users shall give the Department all information it requests regarding the installation of facilities upon completion. Such information may include, but is not limited to as-built or other maps, which shall be furnished in the form required by the Department, and changes to planned locations that were necessary to avoid pre-existing infrastructure.
      (14)   A person or user that conducts excavation or other activities that disturb the public rights-of-way or plantings within the public rights-of-way or facilities within the public way shall restore the area to a functional condition equivalent to that it was in prior to the disturbance. The restoration shall include, but is not limited to, installation of pavement, resurfacing nearby areas, grading other surface areas, restoring below ground areas, planting and landscaping, replacing curb ramps to current standard, and repairing improvements and facilities.
      (15)   Users shall contact the Public Works Department at least 24 hours prior to actual work performed in the right-of-way except in the case of an emergency.
      (16)   To the extent permitted by North Carolina law, the town may require a performance bond for work to be done in the PROW.
      (17)   A user shall at its own cost relocate its facilities within a time determined in the discretion of the town if the town determines in its discretion that the facilities were placed in the PROW without first obtaining permission from the town and the facilities:
         (a)   Interfere with the use of the public way, or the provision of services to town residents;
         (b)   Interfere with the repair or maintenance of any town-maintained utility; or
         (c)   Will impede the construction of a project funded in part with public funds, or a project to be dedicated to the public upon completion.
(Ord. 17-12, passed 9-18-2017)
§ 52.03 ENCROACHMENT PERMIT REQUIRED.
   Prior to performing work or placing facilities within a public right-of-way in the town, a user may be required to obtain a license and must obtain an encroachment permit issued by the Public Works Department. (Encroachment permits are also called work permits.) A user shall acquire an encroachment permit from the Public Works Department for the following activities:
   (A)   Excavation or restoration within the public way, including, but not limited to, construction of new portions of the public way;
   (B)   Cutting, moving, or alteration of any pavement, paver (for example, brick or stone), pipe, conduit, pole, meter, fire hydrant facility, or other equipment or structure owned by the town, or attachment to such objects;
   (C)   Installation or repair of facilities within the public way including but not limited to placing facilities on other facilities already located in the public way;
   (D)   Construction of private streets (including but not limited to paving and gutters), sidewalks, or alleys;
   (E)   Installation or repair of facilities for the conveyance of water, sewer, or stormwater;
   (F)   Installation or repair of facilities for electrical, gas, video, internet, telephone, cable, telecommunications, television, or other information or data transfer service to customers within the town;
   (G)   Work in the rights-of-way that affects traffic patterns, either permanently or temporarily;
   (H)   Make ready work. The town shall provide estimates for any make-ready work necessary to enable the town utility pole to support the requested collocation, including pole replacement if necessary, within 60 days after receipt of a complete application. Make-ready work, including any pole replacement, shall be completed within 60 days of written agreement on the cost of the work;
   (I)   Attachments to town property in NCDOT or other rights-of-way; and
   (J)   The Town Board may approve agreements for the use of town property that substitute for encroachment permits, such as the lease of space on a water tower.
(Ord. 17-12, passed 9-18-2017)
§ 52.04 EXEMPTIONS AND REQUIREMENTS.
   The Public Works Department (the "Department") may exempt its contractors or the North Carolina Department of Transportation (NCDOT) from particular requirements in §§ 52.01 through 52.06 when substantial compliance has been assured through the town's contracting system, or, in the case of NCDOT, where the need for state infrastructure on town roads, or a joint undertaking by the town and NCDOT, or the use of state controlled areas of the public way makes the application of such requirements unreasonable.
(Ord. 17-12, passed 9-18-2017)
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