(A) Mandatory denial of permit. Except in the case of an emergency, no permit will be granted:
(1) To any person who has not yet made an application; or
(2) To any person who has outstanding debt owed to the Village unless payment in full has been placed in an escrow account approved by the Village Fiscal Officer and the Village Solicitor; or
(3) To any person as to whom there exists grounds for the revocation of a permit; or
(4) If, in the discretion of the Village Engineer, the issuance of a permit for the particular date and/or time would cause a conflict or interfere with an exhibition, celebration, festival, or any other event. The Village Engineer, in exercising this discretion, shall be guided by the safety and convenience of ordinary travel of the public over the rights of way, and by considerations relating to the public health, safety and welfare.
(B) Permissive denial of permit. The Village Engineer may deny a permit in order to protect the public health, safety and welfare, to prevent interference with the safety and convenience of ordinary travel over the rights of way, or when necessary to protect the rights of way and its users.
(1) The Village Engineer, in his or her discretion, may consider one or more of the following factors:
(a) The extent to which rights of way space where the permit is sought is available; and/or
(b) The competing demands for the particular space in the rights of way; and/or
(c) The availability of other locations in the rights of way or in other rights of way for the proposed facilities; and/or
(d) The applicability of Chapter 95 or other regulations of the rights of way that affect location of facilities in the rights of way; and/or
(e) The degree of compliance of the provider with the terms and conditions of its certificate of registration, Chapter 95, and other applicable ordinances and regulations; and/or
(f) The degree of disruption to surrounding communities and businesses that will result from the use of that part of the rights of way; and/or
(g) The condition and age of the rights of way, and whether and when it is scheduled for total or partial re-construction; and/or
(h) The balancing of the costs of disruption to the public and damage to the rights of way, against the benefits to that part of the public served by the expansion into additional parts of the rights of way; and/or
(i) Whether such applicant or its agent has failed within the past three years to comply, or is presently not in full compliance with, the requirements of Chapter 95 or, if applicable, any other law.
(2) Under no circumstances will open cutting take place on a newly constructed street within 24 months after construction completion or a newly reconstructed street within 24 months of reconstruction completion, except where:
(a) An emergency situation requires that an open cut is necessary; and/or
(b) Vital services to resident(s) or business(es) are needed or have been cut off and there is no reasonable alternative (such as jacking or boring) in supplying or restoring such services; and/or
(c) The Village Engineer determines it is in the best interests of the Village that such an open cut take place.
(C) Discretionary issuance of permit.
(a) To prevent substantial economic hardship to a customer of the permit applicant, if established by credible evidence satisfactory to the Village; or
(b) To allow such customer to materially improve its service; or
(c) To allow a new economic development project to be granted a permit under this section.
(2) To be granted a permit under this section, the permit applicant must not have had knowledge of the hardship, the plans for improvement of service, or the development project when it was required to submit its list of next year projects.
(D) Work done without a permit in emergency situations.
(1) Each provider shall, as soon as is practicable, immediately notify the Village Fiscal Officer of any event regarding its facilities which it considers to be an emergency. The provider may proceed to take whatever actions are necessary in order to respond to the emergency. Within five business days, unless otherwise extended by the Village Engineer, after the occurrence or discovery of the emergency (whichever is later), the provider shall apply for the necessary permits, pay the fees associated therewith and fulfill the rest of the requirements necessary to bring itself into compliance with Chapter 95 for any and all actions taken in response to the emergency. In the event that the Village becomes aware of an emergency regarding a provider's facilities, the Village shall use best efforts to contact the provider or the system representative of each provider affected, or potentially affected, by the emergency. In any event, the Village may take whatever action it deems necessary in order to respond to the emergency, the cost of which shall be borne by the provider whose facilities caused the emergency.
(2) Except in the case of an emergency, any provider who constructs in, on, above, within, over, below or through a rights of way without a valid permit must subsequently obtain a permit, pay double the normal fee for said permit, pay double all the other fees required by the code, deposit with the Village the fees necessary to correct any damage to the rights of way and comply with all of the requirements of Chapter 95.
(E) Revocation of permits.
(1) Permittees hold permits issued pursuant to the code as a privilege and not as a right. The Village reserves its right, as provided herein, to revoke any permit, without refunding any fees, in the event of a substantial breach of the terms and conditions of any law, or any provision or condition of the permit. A substantial breach by permittee shall include, but shall not be limited to, the following:
(a) The violation of any provision or condition of the permit; or
(b) An evasion or attempt to evade any provision or condition of the permit, or the perpetration or attempt to perpetrate any fraud or deceit upon the Village or its citizens; or
(c) Any material misrepresentation of fact in the application for a permit; or
(d) The failure to maintain the required construction or removal bonds and/or insurance; or
(e) The failure to obtain and/or maintain, when required, a certificate of registration; or
(f) The failure to complete the construction in a timely manner; or
(g) The failure to correct a condition of an order issued pursuant to § 95.14(O)(3).
(2) If the Village Engineer determines that the permittee has committed a substantial breach of a term or condition of any law or any condition of the permit, the Village Engineer shall serve a written demand upon the permittee to remedy such violation. The demand shall state that continued violations may be cause for revocation of the permit. Upon a substantial breach, as stated above, the Village Engineer may place additional or revised conditions on the permit.
(3) By the close of the second business day following receipt of notification of the breach, permittee shall contact the Village Engineer with a plan, acceptable to the Village Engineer, for its correction. Permittee's failure to so contact the Village Engineer, or the permittee's failure to submit an acceptable plan, or permittee's failure to reasonably implement the approved plan, shall be cause for immediate revocation of the permit.
(4) If a permittee commits a second substantial default as outlined above, permittee's permit will automatically be revoked and the permittee will not be allowed further permits for up to and including one full year, except for emergency repairs.
(5) If a permit is revoked, the permittee shall also reimburse the Village for the Village's reasonable costs, including restoration costs and the costs of collection and reasonable attorneys' fees incurred in connection with such revocation.
(Ord. O-2204-09, passed 10-19-09)