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(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)
(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)
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)
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)
Except in the event of an emergency, it shall be unlawful to do work in the PROW or maintain facilities in the PROW without the required authorizations/permits that may be necessary. In the event of an emergency, a person may do such work as is necessary to address the emergency, but only the emergency. Application shall immediately be made for necessary authorizations from the town, notwithstanding that work may have started or have been completed and all necessary fees shall be paid.
(Ord. 17-12, passed 9-18-2017)
An application must be filed with the Department for any work other than normal maintenance on or associated with any pole or other support structure, including modification, change or replacement of equipment that would be different in size, weight or appearance than the existing equipment that is not otherwise exempt under this chapter. The following information shall be submitted in an application for an encroachment permit.
(A) Contact information for the user of the public right-of-way and contractors performing the work. Include all contractor's/trade's/professional licenses held and license numbers.
(B) Description of the work to be performed, including the specific location or the requested make ready work.
(C) Construction drawings demonstrating compliance with the Town of Carthage Engineering Specifications and Standard Details, the NCDOT Subdivision Road Manual, and the latest edition of the Manual on Uniform Traffic Control Devices and Chapter 100 Development Ordinance.
(D) Description of all existing infrastructure within the proposed work area and any proposed modification, improvement or movement of infrastructure.
(E) Evidence that the owners of other utilities or encroachers near the new work have been notified.
(F) Proposed work schedule.
(G) Insurance. The town may require persons that do work in the PROW and users to provide insurance by a company authorized to do business in the state, including but not limited to: i) workers' compensation coverage for all employees; ii) employers' liability insurance; iii) commercial general liability; and iv) business auto policy. The town may require that the town, its officials, employees and consultants be named as additional insureds on such insurance policies in that case the applicant shall provide a certificate of insurance. If an applicant has previously damaged town property or has not adequately repaired damaged town property during the past three years, the amount of insurance shall be as determined by the town, in part based on the scope of the work and the tenure or term of occupancy.
(H) To facilitate the preparation and submittal of an application in compliance with this chapter, and thereby expedite the review and permitting of an application, a pre-application meeting may be held.
(I) No permitting of unidentified facilities. No permit or authorization shall be granted for new equipment or facilities that is not expressly and individually identified at the time of the application, including the specific location and design characteristics of each facility.
(J) Site visit. A site visit of each facility or proposed location of a new facility may be conducted to determine the physical condition of the facility or proposed location and to identify any issues of concern, non-compliance with applicable laws, rules and regulations, and any safety issues or concerns.
(K) Installations in the PROW shall be located and constructed to create the least visual impact on the immediate surrounding area and the least physical intrusion and impact on the limited space in the PROW. Such facilities/equipment shall not be constructed in a sight triangle or so close to the curb or edge of pavement that a safety hazard is created. (See § 92.02 of this code.)
(L) Riser cable. All riser or other vertically run cable of any kind attached to a pole or other support structure shall be protected with non-conductive, non-degradable material shall be of a color that matches the color of the pole or other support structure as closely as is reasonably possible.
(M) New and replacement poles or support structures that are not substantial modifications or routine maintenance. An application for a new or replacement pole or support structure must include detailed design criteria, including material composition, aesthetic appearance and a structural adequacy analysis with calculations which must be able to be independently verified using the information submitted by the applicant.
(1) New and replacement installations shall be consistent throughout the town limits;
(2) When feasible and in lieu of installing new poles, new installations shall precipitate replacing an existing distribution pole, secondary pole or streetlight with a pole that meets the standards set forth in this section;
(3) Installations shall be on non-conductive poles;
(4) All wireless facilities and base stations (including radios, network equipment and batteries) shall be: i) enclosed in a pedestal cabinet near the pole; ii) in a pole-mounted cabinet; or iii) under a pole-mounted shroud; and
(5) Equipment installations shall be on poles that meet or exceed current NESC standards and wind and ice loading requirements of the latest edition of TIA 222.
(Ord. 17-12, passed 9-18-2017)
(A) To facilitate the application process and to mitigate application-related costs for applicants, depending upon the scope of the proposed work and its impact, both visual and physical as determined by the Department, applications for small/micro wireless facilities may be submitted in groups of up to 25 facilities in a single application.
(B) No taxpayer subsidization. Taxpayers may not directly or indirectly subsidize applicant's costs.
(C) Maximum permitted height.
(1) On wireless support structures. Utility poles and town utility poles the maximum permitted height is 50 feet above ground level.
(2) Small wireless facilities may extend ten feet above the height of the utility pole, town utility pole or wireless support facility on which they are collocated.
(3) In the R-20, R-10 and R-HD zoning districts, in areas where the existing utilities are installed underground the maximum height is 40 feet above ground level.
(4) On blocks where decorative light or utility poles are installed, collocations may only occur on decorative poles if feasible. New poles shall be of the same design and materials as the decorative poles. (See § 52.03 for information on encroachment on town utility poles.)
(D) Absent a showing by clear and convincing evidence of the need for a greater lateral distance between poles or other support structures in the PROW, the minimum lateral distance between poles or other support structures as measured in any direction shall be 100 feet. This minimum lateral distance shall not be applicable to poles or support structures that support lines or cables crossing a street.
(E) Compliance with NESC and NEC. All electronic attachments to poles or other structures in the PROW shall always be in compliance with the edition of the National Electrical Safety Code (NESC) and the National Electrical Code (NEC) in effect at the later of:
(1) The time the facility was constructed;
(2) The time of the last modification of equipment on the pole or other support structure; or
(3) The edition in effect at the time of the current application.
(F) Service date. Applicants shall attest that small wireless facilitates be activated and placed in service no later than one year from the date the permit is issued.
(G) Abandonment.
(1) Wireless services providers are required to remove an abandoned wireless facility within 180 days of abandonment. Should the wireless services provider fail to timely remove the abandoned wireless facility, the town may cause such wireless facility to be removed and may recover the actual cost of such removal, including legal fees, if any, from the wireless services provider. For the purposes of this section, a wireless facility shall be deemed abandoned at the earlier of the date that the wireless services provider indicates that it is abandoning such facility or the date that is 180 days after the date that such wireless facility ceases to transmit a signal, unless the wireless services provider gives the town reasonable evidence that it is diligently working to place such wireless facility back in service.
(2) This section applies to rights-of-way controlled by the North Carolina Deptartment of Transportation.
(Ord. 17-12, passed 9-18-2017)
(A) Failure to acquire a permit or notify the Department of work in the right-of-way may result in a stop work order. The stop work order shall be in writing and state the conditions under which work may be resumed.
(B) The violation of a stop work order issued pursuant to this section shall constitute a misdemeanor punishable under G.S. §14-4 and may be subject to a civil penalty in the amount of $100 per day. Civil penalties authorized by this section may be assessed against the user on whose behalf work is being performed and against the contractor or subcontractor who is performing such work.
(C) If a user, contractor, or sub-contractor has received a stop work order within the last three months, the user is required to post a bond for up to 125% of the estimated cost of the work.
(D) All of the other provisions of § 10.99 of this code apply to violations of this chapter.
(Ord. 17-12, passed 9-18-2017)
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