(a) Modification or waiver of requirements. It is within the City Manager's reasonable discretion to modify or waive any portion of this chapter, if in his or her judgment, such requirements are not necessary or appropriate to protect the city's interests and the purposes and intent of this chapter.
(b) Appeal and variance process. Within 14 calendar days of a written decision of the City Manager regarding any requirements of this chapter, a service provider may appeal the decision to, or apply for a variance from, the Planning Commission. The Planning Commission shall hold a hearing on the appeal or requested variance no later than 30 days from receiving the service provider's written appeal or request for the variance pursuant to the procedures established by the Planning Commission. In determining the merits of the appeal or variance application, the Planning Commission shall consider all relevant factors including, but not limited to: the purpose of the City Manager's decision or requirement from which a variance is requested; whether the decision or requirement is necessary or appropriate to protect the interests of the city; the health, safety and general welfare of the city's residents, the general public, and properties in the city; the purposes and intent of this chapter; and the extent of the hardship, economic or otherwise, the service provider will bear if the appeal or variance is not granted. The Planning Commission shall make findings of fact and issue a written decision setting forth the reasons for granting or denying the appeal or variance. The decision of the Planning Commission is the final decision of the city on the appeal or variance request.
(c) Preemption by state and federal law. Except as may be preempted by applicable state or federal laws, rates, regulations, and orders, this chapter shall apply and be controlling over each service provider with facilities in the public rights-of-way.
(d) Exemption for city-owned or operated facilities. Except as otherwise required by law, nothing in this chapter shall be construed to apply the provisions of this chapter to facilities owned or operated by the city or any of its operations.
(e) Recovery of city costs. Any city costs related to a service provider's use of the public right-of-way and recovered pursuant to this chapter from the performance bond, letter of credit and/or construction bond, or in any other manner, shall be considered public way fees as that term is defined in Ohio R.C. Chapter 4939 and shall be assessed by the City Manager in accordance with Chapter 4939 and any other applicable law.
(f) Private facilities. Persons using the city's public right-of-way for facilities that provide service not available to the general public shall obtain consent from the city pursuant to § 1050.02, register pursuant to § 1050.03, obtain a construction permit (if applicable) pursuant to § 1050.08 and comply with all provisions of this chapter.
(g) Application to existing code provisions. In the event of a direct conflict between any provision of this chapter and any other section of the city's codified ordinances, the provisions of this chapter shall apply.
(h) Severability. If any section, subsection, sentence, clause, phrase, or other portion of this chapter, or its application to any person, is, for any reason, declared invalid, in whole or in part by any court or agency of competent jurisdiction, that decision shall not affect the validity of the remaining portions hereof.
(Ord. 08-O-2455, passed 3-18-2008)