(A) A person commits an offense if the person places or installs a utility structure within the public right-of-way without a construction permit. In addition, a separate utility structure permit shall be required for structures greater than 65 cubic feet in volume. The utility structure permit shall be considered a part of the construction permit.
(B) Above ground utility structures shall be permitted in accordance with division (A) above and shall meet the following requirements:
(1) Utility structures exceeding two feet in height shall not be placed within any intersection visibility triangle.
(2) Utility structures less than 65 cubic feet in volume, with no dimension greater than six feet, may be placed within the public right-of-way without screening.
(3) Utility structures greater than 65 cubic feet in volume, and less than 240 cubic feet in volume, and less than seven feet in height shall be placed within a public or private utility easement outside the street right-of-way
(4) Utility structures greater than 240 cubic feet in volume or more than seven feet in height shall be located in a private utility easement or other private property.
(5) The placement of the pad shall allow for existing and proposed sidewalks.
(6) Utility structures shall comply with all requirements of other city ordinances and other state and federal laws and regulations. The public service provider shall be responsible for obtaining other permits, as required.
(C) Below ground utility structures shall be permitted in accordance with division (A) above.
(D) (1) In reviewing the utility structure permit application, the city will consider the following:
(a) Size, location and impact of the proposed structure;
(b) The structure's coordination with existing and proposed public facilities; and
(c) Availability of remaining right-of-way.
(2) If the city determines that the proposed utility structure cannot be placed within the right-of-way without adversely affecting the integrity of an existing or future facility owned by the city, or the safety of the traveling public, the city shall have the right to deny the location of a new or replacement utility structure within the said right-of-way and may provide assistance in identifying alternative locations for the utility structure.
(E) A request for a waiver of the location and size requirements may be made to the Director with respect to a particular site for a proposed utility structure.
(1) The request for a waiver must include a detailed justification for the waiver, including the lack of existing sites not within the public right-of-way; alternative sites sought and reviewed; proof that compliance with the requirement is impracticable; and the necessity of the utility structure and its size at the proposed site to provide service.
(2) Within 30 calendar days of receipt of a written request for a waiver, the Director may grant a waiver for good cause.
(3) In making this decision, the Director shall consider:
(a) The availability of other sites not located in the public right-of-way and person's efforts to secure those sites;
(b) The size, location and impact of the proposed utility structure in the right-of-way at the proposed site;
(c) Person's need to provide services to a property or area to be served by the proposed site;
(d) Person's need for the proposed size of the utility structure to provide services to a property or area to be served by the proposed site;
(e) The proximity of other utility structures and person's efforts to collocate at those sites; and
(f) The public health, safety, welfare and convenience.
(4) The Director shall provide written notice to the applicant of a decision regarding a waiver pursuant to this division.
(5) The Director's decision regarding the waiver shall be final.
(F) If a utility structure is proposed to be located on city property other than public right-of-way, the following requirements apply:
(1) The service provider shall submit to the Director a plan showing the facilities proposed to be constructed on city property. The structure shall not be constructed without the city's approval.
(2) Nothing contained herein, however, shall ever be held or construed to confer upon any person the right to place a utility structure upon city property. The city reserves the right, at its sole discretion, to enter into an agreement to allow the placement of a utility structure on city property.
(3) The city shall not be liable for damages or losses of any kind whatsoever by reason of injury to property or person occasioned by the use of any city property. The city shall have no obligations in regard to the maintenance of any improvements within such city property. The public service provider shall defend the city at its cost and expense from all claims and demands arising from the placement or maintenance of the structures.
(4) The use of city property for the placement of a utility structure shall be discontinued and improvements removed within 90 days of notification by the city and the cost of the discontinuation and removal of improvements shall be borne by the owner of the improvement.
(5) The public service provider shall pay city a fee for use of the property based upon the fair market value as determined by the city. In addition to a use fee, the city may, to the extent permitted by law, require the public service provider to provide network connectivity and/or conduit to the city.
(6) The public service provider shall cooperate with other providers in connection with allowing co-location of facilities within the utility structure.
(Ord. 06-2006-46, passed 6-13-06) Penalty, see § 157.99