(A) Provisions apply unless direct conflict exists. The provisions of this section shall apply unless they directly conflict with a tariff, state or federal law, or the provisions of the applicant’s franchise agreement or interlocal agreement with the city.
(B) General application. Unless otherwise prohibited by law, upon the written notice of and at the direction of the City Administrator, a registrant shall relocate or remove facilities, or rearrange aerial facilities, if required by a tariff, state or federal law, a franchise agreement with the city, or the City Administrator in exercising his or her authority under this section.
(C) Coordination. Registrants are encouraged to coordinate the installation, relocation, or removal of their facilities with each other to avoid issues with respect to the location of facilities within the right-of-way.
(D) Appeal. Any party aggrieved by a determination of the City Administrator with respect to the installation, relocation, or removal of a facility may appeal such decision pursuant to § 96.75.
(E) Installation.
(1) Definition. For purposes of this section, the term “INSTALL”, “INSTALLED”, or “INSTALLATION” shall mean placement of new facilities within the right-of-way, including the replacement of existing facilities and the installation and collocation of small wireless facilities. An installation requires the issuance of an installation permit or surface-cut permit.
(2) Procedure. The City Administrator shall notify the applicant if the City Administrator determines that a facility may not be installed as requested by the applicant. Upon determining that a facility may not be installed as requested, the City Administrator shall provide written notice to the applicant as early as practicable and in conformity with any specific applicable notice requirement. The notice shall contain a description of the area affected as well as the reason for the City Administrator’s determination. The City Administrator may issue a permit that is contingent upon certain condition(s) being fulfilled with respect to the criteria contained below.
(3) Criteria. A decision by the city to deny an installation permit or surface-cut permit application must be based on at least one (1) of the following criteria:
(a) It significantly conflicts with the location of existing facilities or facilities that are planned or permitted for installation, or city improvements or facilities that are planned in that area;
(b) It significantly conflicts with the timing of other ongoing activity taking place in the same area of the right-of-way, or with a previously scheduled activity;
(c) It conflicts with the planned grading, re-grading, construction, reconstruction, widening or altering of any right-of-way or the construction, reconstruction, repair, maintenance, or alteration of a public improvement, including, but not limited to, storm sewers, sanitary sewers, and streetlights;
(d) It conflicts with an approved development plan in that geographic area that requires all or certain types of facilities to be located in certain locations, areas, or parts of the right-of-way;
(e) It is an above-ground facility other than a fire hydrant or other city-owned facility, which because of its size presents significant public-safety concerns or violates guidelines or procedures pertaining to aesthetics found in § 96.68 or as otherwise duly authorized by Council or the City Administrator;
(f) It fails to take reasonable measures to disguise or cover the facility as required by the city pursuant to guidelines or procedures pertaining to aesthetics found in § 96.68 or as otherwise duly authorized by Council or the City Administrator;
(g) It conflicts with a requirement contained in the applicant’s franchise agreement or interlocal agreement;
(h) It is located in a type of right-of-way, such as a bicycle lane or path, in which the city has determined that facilities are not to be installed;
(i) It would threaten public health, safety, or welfare or otherwise constitute a violation of the provisions of this subchapter; or
(j) The applicant is not otherwise in material compliance with the provisions of this subchapter.
(4) Reservation of rights. Notwithstanding any other provision in this subchapter, the city specifically reserves the right to order the removal or relocation of any facility installed after the effective date of this subchapter, at no cost to the city, for which an installation permit or surface-cut permit was not obtained.
(5) Preclusion on cutting newly paved surfaces. If any street is about to be resurfaced by the city, on advance written notice from the City Administrator pursuant to § 96.67(C), the registrant shall make any extensions, changes, or installations of or to its facilities ahead of such activity. Registrant shall notify the City Administrator by July 15 of its desire to perform such extensions, changes, or installations, and may be allowed up to ninety (90) additional days to complete the work. If any street is about to be constructed, reconstructed, widened, altered, or paved by the city, upon receipt of final plans from the City Administrator, the registrant shall make any extensions, changes, or installations of or to its facilities ahead of such activity. Depending on the amount of such extensions, changes, or installations to be performed, the registrant may be allowed up to one hundred twenty (120) days to complete the work. If the registrant fails to do such extensions, changes, or installations, it shall be precluded for a period of one (1) year from disturbing such paving without the express permission of the City Administrator. The City Administrator shall only grant such permission upon a sufficient showing by the registrant that undue hardship would be caused if the registrant were not allowed to disturb the pavement and that it shall satisfactorily comply with all other relevant provisions of this subchapter, including the requirements contained in § 96.73(A) pertaining to resurfacing.
(F) Relocations. Unless otherwise prohibited by law, the city shall have the ability to order the relocation of any facility located within the right-of-way. The city shall not normally direct the exact location where that the facility is to be relocated, but instead shall work with the registrant or permittee as part of the permitting process. There shall be no fee associated with a permit required as a result of a relocation ordered by the city.
(1) Public projects. Whenever the city decides to grade, regrade, construct, reconstruct, widen or alter any right-of-way or construct, reconstruct, repair, maintain, or alter a public improvement, including, but not limited to, storm sewers, sanitary sewers and street lights, it shall be the duty of the registrant, when so ordered by the city, to change and relocate its facilities in the right-of-way at no cost to the city so as to conform to the established grade or line of such right-of-way so as not to interfere with such public improvements. However, notwithstanding the above, if as part of said public improvement the city orders that facilities previously and lawfully located above-ground to be relocated underground, the city shall bear the cost for the difference in cost between an aerial and underground facility of the same type, unless an agreement to the contrary is otherwise entered into by the appropriate parties.
(2) Relocation for public safety reasons. If the basis for the city ordering the relocation of a facility is a public-safety concern, the registrant shall relocate the facility at no cost to the city.
(3) Relocations to assist in the placement of other facilities. If the basis for the city ordering the relocation of a facility is to assist in the installation of facilities by another registrant or permittee, the party seeking to install the facilities shall bear the costs of said relocation, unless an agreement is otherwise reached.
(4) Relocations where the cost is borne by the city. Notwithstanding any language in this subchapter to the contrary, unless an agreement to the contrary is otherwise entered into by the appropriate parties, the cost of the following types of relocations shall be borne by the city:
(a) If the reason the city is ordering the relocation is because it has adopted a plan or policy requiring that facilities be placed underground in that location, if, at the time the facility was installed, such a plan was not in place;
(b) If at the time the facility was installed, the location in which the facility is currently sited was not a part of the right-of-way or was not otherwise owned or controlled by the city;
(c) If the city has already ordered that the facility be relocated to comply with a public improvement project, the registrant or party has substantially complied with such order, and the city then orders the registrant or party to relocate that facility to a different area as part of the same project; or
(d) If the city orders the relocation of a facility to accommodate a public-improvement project and the construction of such project is subsequently terminated by the Council.
(G) Removal.
(1) If the city requites a facility that is no longer being used to provide service, as defined below, to be taken out of the right-of-way, such removal shall be pursuant to the requirements of this division (G). However, abandoned sewer and water facilities shall not be required to be removed, but shall be required to be filled and capped.
(2) Definition. A facility shall be considered to be “NO LONGER IN USE” if such facility has not been used to provide service or support the provision of service for a period of one (1) year, or the registrant or the party responsible for the facility has notified the City Administrator that it no longer intends to use the facility. If the city determines that a facility is “NO LONGER IN USE based on the fact that it has not been used for a period of more than one (1) year, the responsible party may petition the City Administrator for a reasonable extension of time based on that party’s desire to use the facility to provide service or to sell or transfer such facility within a reasonable amount of time. Such an extension of time shall not be unreasonably withheld.
(3) Procedure for notification. Any party discontinuing use of a facility shall notify the City Administrator in writing of such discontinued use within thirty (30) days. This notice shall describe the facilities for which the use is to be discontinued and include a statement as to whether the registrant intends to leave the facilities in place for potential future use, remove the facilities, or abandon the facilities in place. The registrant shall remain responsible for the maintenance, repair, and condition of discontinued facilities at all times after its discontinuance.
(4) Criteria and procedure for removal. Upon providing reasonable advanced written notice to the registrant or other responsible party, the City Administrator may order the removal of any facility that has been determined to be “NO LONGER IN USE, if any of the following arise with respect to that facility:
(a) It significandy conflicts with the location of existing facilities or facilities that are planned or permitted for installation, or city improvements or facilities that are planned in that area;
(b) It conflicts with the planned grading, re-grading, construction, reconstruction, widening or altering of any right-of-way or the construction, reconstruction, repair, maintenance, or alteration of a public improvement, including, but not limited to, storm sewers, sanitary sewers, and streetlights;
(c) It conflicts with an approved development plan in that geographic area that requires all or certain types of facilities to be located in certain locations, areas, or parts of the right-of-way;
(d) It conflicts with a requirement contained in that party’s franchise agreement or interlocal agreement;
(e) The current location of the facility threatens public health, safety, or welfare or otherwise constitutes a violation of the provisions of this subchapter; or
(f) It is an above-ground facility that has been determined to be “NO LONGER IN USE” for a period of more than ninety (90) days.
(5) Facilities located underground. Notwithstanding the foregoing, the city shall not order the removal of any underground facility unless the surface above the facility is currently being, or will be, substantially excavated, or the presence of that facility causes an emergency or threatens public health, safety, or welfare. In any event, the removal of such a facility shall be limited to that portion of the facility that actually presents an issue.
(6) Cost of removal. The city shall not bear any portion of the cost of the removal of any facility or filling and capping water or sewer facilities, unless it is part of a city project, and the costs of such removal (or filling and capping) are minimal. Depending on the circumstances, the City Administrator may order that the party responsible for such facility, the party seeking a permit, or both, bear the costs and the responsibility of such removal (or filling and capping). However, in the event that the facility is being removed to accommodate the placement of a non-city facility, the cost of such removal shall be the responsibility of the party or parties applying for the permit, so long as the existing facility was lawfully installed.
(7) In the event the registrant or other responsible party elects to abandon the facility in place and the Council approves such abandonment, the registrant or party shall convey full title and ownership of such abandoned facility to the city in consideration of the abandonment in place and without the need of the city to pay compensation to the registrant, except as otherwise provided by applicable law. The registrant shall, however, continue to be responsible for all taxes on such facilities or other liabilities associated therewith, until the date the same is conveyed to the city.
(8) Should any registrant or other responsible party fail, after notice, to remove a facility (or in in the case of water or sewer facilities, fill and cap abandoned facilities) upon the order of the City Administrator as specified in this section, the city may, at its option and in addition to the imposition of any other remedies hereunder or in a franchise agreement or interlocal agreement with that party, undertake or cause to be undertaken, the removal of the facility. The city shall have no liability for any damage caused by such removal and the registrant or other responsible party shall be liable to the city for all reasonable costs incurred by the city in such removal.
(Ord. 2022-27, passed 12-6-22)