(a) Unless otherwise permitted pursuant to this code, no person shall use, occupy, construct, own or operate structures or facilities in, under or over any rights-of-way or any public property within the municipality unless such person first obtains a right-of-way permit and conforms to the requirements set forth therein and in this chapter; provided, however, that general or limited right-of-way permits shall not be required for the following uses:
(1) Newspaper stands;
(2) Any use by the municipality;
(3) Awnings approved by the building and zoning department affixed to a structure abutting the rights-of-way; and
(4) Residential purposes, as long as, in the opinion of the administrator, the residential use:
A. Has received or will receive all other necessary permits required under any other chapter of this code;
B. Is consistent with this chapter and the regulations promulgated thereunder;
C. Does not adversely affect the public health, safety or welfare; and
D. Does not materially interfere with the other lawful use of the right-of-way.
The Administrator may adopt regulations controlling and further defining residential purposes and to otherwise implement the determinations to be made under this section.
(5) Other uses not incompatible with the municipality policies as specified in this Chapter 1019 as approved by the Administrator.
(6) The owner of facilities that holds title to such facilities solely as a result of a leaseback, defined as the sale or transfer of property by a permittee to another person contemporaneously followed by the leasing of the property to the permittee on a long term basis, that are not operated or controlled by said lessor, and are operated or controlled by the permittee, are not considered to be using, occupying, owing or operating such facilities, for purposes of this chapter solely as a result of such leaseback so long as the lessee or operator of the facilities has obtained the necessary right-of-way permit authorizing the placement of such facilities in the right-of-way.
(b) The following types of right-of-way permits are available:
(1) General right-of-way permit. Right-of- way permit granted to persons who desire and are granted authority to utilize rights-of-way generally throughout the municipality for business purposes including, but not limited to, the provision of utility, cable television, communications, refuse collection or other services to the municipality, its residents and taxpayers; and
(2) Limited right-of-way permit. Right-of- way permit granted to a person for a specific, limited use of the rights-of-way or a specific portion thereof as further delineated in such permit. A limited right-of-way permit shall not be available to any person for use of more than one mile of right-of-way. Limited right-of-way permits may be granted for any amount of right-of-way to agencies of the government of the United States, the State of Ohio, or its political subdivisions for governmental purposes.
(3) Nothing in this chapter should be construed to preclude the municipality from requiring any person offering any natural gas, electric, cable television, communications or other utility services for which the municipality may lawfully require a franchise, to acquire a franchise upon the expiration of any right-of-way permit issued hereunder.
(c) Any such right-of-way permit may also allow the use of specified public property for the uses set forth in the right-of-way permit and in this chapter.
(d) Each right-of-way permit shall specify the use or uses for which it is granted and contain such other non-discriminatory terms and conditions as are appropriate and as are set forth in the regulations, if such regulations are adopted.
(e) Unless otherwise set forth herein, right-of-way permits or the rights of a permittee hereunder are not transferable without the prior express written approval of the administrator, upon written request. An application for approval of the transfer of a right-of-way permit shall be made to the municipality fiscal officer on forms provided by the municipality. To the extent the request is from a proposed transferee that is:
(1) Is subject to the jurisdiction of the Public Utilities Commission of Ohio;
(2) Possesses a valid certification from the Public Utilities Commission of Ohio, including certification pursuant to R.C. § 4933.81 et seq.; and/or
(3) Is recognized on the rolls of the Public Utilities Commission of Ohio for the services to be provided by the facilities subject to this chapter, then such transferee is not required to provide evidence that the transferee has the financial, technical and managerial resources to comply with the obligations of this chapter and its right-of-way permit. To the extent the request is from a proposed transferee that:
A. Is not subject to the jurisdiction of the Public Utilities Commission of Ohio;
B. Does not possess a valid certification from the Public Utilities Commission of Ohio, including certification pursuant to R.C. § 4933.81, et seq.; and/or
C. Is not recognized on the rolls of the Public Utilities Commission of Ohio for the services to be provided by the facilities subject to this chapter, then such request shall contain evidence that the proposed transferee has the financial, technical and managerial resources to comply with the obligations of this chapter and its right-of-way permit. A transfer request shall be granted if such transferee is either:
1. Subject to the jurisdiction of the Public Utilities Commission of Ohio, possesses a valid certification from the Public Utilities Commission of Ohio, including certification pursuant to R.C. § 4933.81, et seq., and/or is recognized on the rolls of the Public Utilities Commission of Ohio for the services to be provided by the facilities subject to this chapter; or
2. Provides sufficient evidence that the proposed transferee has sufficient financial, technical and managerial resources. The Administrator shall adopt regulations providing procedures for transfer of right-of-way permits that shall include provisions providing that:
(i) All requests for transfer shall be deemed approved if the Administrator does not disapprove the same within 30 days of receipt of the completed written transfer request; and
(ii) Transfer to affiliates under common ownership and control with the permittee shall not require approval, so long as the Administrator is provided 30 days written notice of such transfer. Any permittee may appeal an adverse action of the administrator made pursuant to this section to the Right-of-Way Committee.
(f) There is hereby created a Right-of-Way Committee, consisting of three Council Members comprised of the two members of Council that serve on the Utilities/Wastewater/Service Committee and one other Council Member appointed by the Mayor. The Right-of-Way Committee shall act by majority vote. The Right-of-Way Committee shall select on of its members as chair of the Right-of-Way Committee. The Right-of-Way Committee shall meet as required to perform the following functions:
(1) Approve or deny applications for a general right-of-way permit;
(2) Hear and determine appeals from the municipality administrator's actions with respect to applications for limited rights-of-way appeals;
(3) Hear and determine applications for hardship variances filed by permittees from the strict application of this chapter or the regulations promulgated hereunder, or the actions of the municipality administrator in the interpretation and application of this chapter or the regulations promulgated hereunder.
The Municipality Fiscal Officer shall be the custodian of the records for the Right-of-Way Committee. A record of any hearing before the Right-of-Way Committee shall be made. All actions of the Right-of-Way Committee approving or denying applications, or imposing addition conditions on any permittees, shall be made in writing, and served upon the applicant's at the address set forth in the application.
(Ord. 2714, passed 12-17-07)