§ 53.01  PURPOSE; SCOPE; APPLICABILITY; PRESCRIPTION.
   (A)   Purpose. The purpose of this chapter is to establish policies and procedures for constructing facilities on rights-of-way within the city’s jurisdiction, which will provide public benefit consistent with the preservation of the integrity, safe usage and visual qualities of the city rights-of-way and the city as a whole.
   (B)   Intent. In enacting this chapter, the city intends to exercise its authority over the rights-of-way in the city and, in particular, the use of the public ways and property by utilities, by establishing uniform standards to address issues presented by utility facilities, including, without limitation:
      (1)   Prevent interference with the use of streets, sidewalks, alleys, parkways and other public ways and places;
      (2)   Prevent the creation of visual and physical obstructions and other conditions that are hazardous to vehicular and pedestrian traffic;
      (3)   Prevent interference with the facilities and operations of the city’s utilities and of other utilities lawfully located in rights-of-way or public property;
      (4)   Protect against environmental damage, including damage to trees, from the installation of utility facilities;
      (5)   Protect against increased storm water run-off due to structures and materials that increase impermeable surfaces;
      (6)   Preserve the character of the neighborhoods in which facilities are installed;
      (7)   Preserve open space, particularly the tree-lined parkways that characterize the city’s residential neighborhoods;
      (8)   Prevent visual blight from the proliferation of facilities in the rights-of-way; and
      (9)   Assure the continued safe use and enjoyment of private properties adjacent to utility facilities locations.
   (C)   Facilities subject to this chapter. Except as provided by applicable law, this chapter shall apply to all excavations, use, construction, operation, and maintenance of facilities or structures in the rights-of-way by any person other than the city. No utility shall commence or continue with the operation of any facilities or structures in the rights-of-way, except as provided and in compliance with this chapter.
   (D)   Franchise or license required.
      (1)   Franchise. Except as may be otherwise provided by law, no utility may construct, maintain, own, control or use facilities or structures in the rights-of-way without a binding lawful franchise with the city granting the privilege of locating such facilities on, over, above, along, upon, under, across or within the city’s rights-of-way. In the event of any conflict with, or inconsistency between, the provisions of this chapter and the provisions of any franchise, the provisions of such franchise shall govern and control during the term of such franchise, and any lawful renewal or extension thereof authorized by the city. All utilities claiming to be engaged in the sale of telecommunications at retail pursuant to ILCS Ch. 35, Act 636, §§ 5-1 et seq. must so state by verified application, and provide the city with the applicable resale number as provided in ILCS Ch. 35, Act 636, § 5-45(a).
      (2)   License for incidental use. Persons desiring to install facilities qualifying as merely an incidental use, which includes installation of temporary structures or minor incidental uses in the rights-of-way, such as mailboxes, driveway aprons, ingress or egress facilities, and similar incidental uses, that utilize a small area of the rights-of-way and serves the principal structure, may be permitted without a franchise pursuant to a license issued by the Director. The Director shall have discretion to establish such application, requirements, and conditions applicable to such uses consistent with the purposes of this chapter or as otherwise established by law. Any person granted a license hereunder shall be subject to the applicable requirements of this chapter.
   (E)   Grant and nature of approval; terms and compensation. The authority granted by the city in franchise or license shall be for non-exclusive use of the rights-of-way. Such grant does not in any way limit the continuing authority of the city through the proper exercise of its statutory powers to adopt and enforce ordinances necessary to provide for the health, safety, and welfare of the public. The city specifically reserves the right to grant, at any time, such additional agreements or other rights to use the rights-of-way for any purpose and to any other person, including itself, as it deems appropriate, subject to all applicable laws. The granting of any franchise or license shall not be deemed to create any property interest of any kind in favor of the person, nor shall it create any relationship of agency, partnership, joint venture, or employment between the parties. Except as provided in § 53.03(G), all franchises shall be approved by ordinance or resolution of the City Council on a non-discriminatory basis, provided that the utility is in compliance with all applicable requirements. All licenses may be approved by the Director on a nondiscriminatory basis, provided that the applicant is in compliance with all applicable requirements. Each franchise and license shall include terms of use and be deemed to incorporate the terms of this chapter and other applicable laws of the city, except as may be expressly stated in such franchise or license. Franchise compensation and terms shall be as provided in this code or as may be otherwise lawfully established in the franchise.
   (F)   Conflicts with other chapters. This chapter supersedes all chapters or parts of chapters adopted prior hereto that are in conflict herewith, to the extent of such conflict.
   (G)   Conflicts with state and federal laws; preemption. No provision of this chapter shall apply to any circumstance in which such application shall be unlawful under superseding state or federal law. Furthermore, if any section, division, sentence, clause, phrase, or portion of this chapter is now or in the future superseded or preempted by state or federal law, or found by a court of competent jurisdiction to be unauthorized, that provision shall be automatically interpreted and applied as required by law. In the event that applicable state or federal laws or regulations conflict with the requirements of this chapter, the person or utility shall comply with the requirements of this chapter, to the maximum extent possible without violating  state or federal laws or regulations.
   (H)   Sound engineering judgment. The city shall use sound engineering judgment when administering this chapter and may vary the standards, conditions and requirements expressed in this chapter when the city so determines. Nothing herein shall be construed to limit the ability of the city to regulate its rights-of-way for the protection of the public health, safety and welfare.
   (I)   No warranty. The city makes no express or implied representation or warranty regarding its rights to authorize the installation or construction of facilities on any particular segment of rights-of-way and shall not be liable for any damage therefrom. The burden and responsibility for making all such determinations in advance of construction or installation shall be entirely upon the utility. Such utility shall be wholly liable for any damages to facilities or other property due to excavation, facilities construction, or other ROW work performed prior to obtaining the location of all facilities, without cost or liability to the city. No person shall make or attempt to make repairs, relocation, or replacement of damaged or disturbed facilities or uses without the approval of the owner of such facilities.
   (J)   Use of city or third-party facilities. No franchise or license shall be deemed to grant the right to use facilities or other property owned or controlled by the city or a third party, and no such use shall occur, without the express written consent of such party (on file with the city and subject to other applicable requirements), nor shall any franchise or license excuse such person from first obtaining a pole attachment agreement or other express consent for such right or use before locating on the facilities controlled or owned by the city or a third party.
   (K)   Lease required for public lands. Unless otherwise provided, use or installation of any facilities in non-rights-of-way public property of the city shall be permitted only if a lease agreement or other separate written approval has been negotiated and approved by the city, with such reasonable terms as the city may require.
   (L)   Condition precedent to permit. Unless otherwise required by applicable law, no permit required by this chapter may be issued unless or until such person has a valid franchise or license with the city that authorizes that person’s use of the rights-of- way. Unless prohibited by applicable law, in addition to any other reason provided herein, the Director may deny a permit to any person that does not have a valid franchise or license with the city.
   (M)   Transferability. Except as provided in this chapter or as otherwise required by law, no franchise, license, or permit may be transferred or assigned to a third party without the written application to, and consent of the city, based on the requirements and policies of this chapter. The city shall not unreasonably withhold its consent as provided herein, but any costs incurred shall be paid by the utility to the extent allowed by law.
   (N)   Forfeiture of agreement and privilege. In case of failure on the part of the person or utility, including its successors and assigns, to comply with any of the provisions of this chapter, or the provisions of franchise or license, or if the person or utility, its successors and assigns, should do or cause to be done any act or thing prohibited by or in violation of this chapter, or the terms of the authorization of such use, or otherwise loses authority to provide its service in the city, the person or utility, its successors and assigns, shall forfeit all rights and privileges permitted by this chapter and any franchise or license, and all rights hereunder shall cease, terminate, and become null and void, provided that the forfeiture shall not take effect until the city shall carry out the following proceedings.
      (1)   Before the city declares the forfeiture or revocation of a franchise or license, it shall first serve a written notice upon the person, setting forth in detail the neglect or failure complained of.
      (2)   The person shall have 30 days thereafter, or such other reasonable period established by the City Council, in which to cure the default by complying with the conditions of the franchise or license, and fully remedying any default or violation.
      (3)   If at the end of such period the city determines that the conditions have not been complied with, and that the person did not reasonably and in the public interest require more than 30 days to cure the default, the city shall take action by an affirmative vote of the City Council present at the meeting, and voting to terminate the franchise or license, setting out the grounds upon which the agreement or other authorization is to be forfeited or revoked.
      (4)   Nothing herein shall prevent the city from invoking any other remedy or from declaring immediate forfeiture where the default is incapable of being cured by the utility, including where such defaults or violations have repeatedly occurred.
   (O)   No cause of action against the city. A person or utility shall have no damages remedy or monetary recourse whatsoever against the city for any loss, cost, expense, or damage arising from any of the provisions or requirements of any franchise or license, or because of the enforcement thereof by the city, or from the use of the rights-of-way. Nothing herein shall preclude the person or utility from seeking injunctive or declaratory judgment relief against the city where such relief is otherwise available and the requirements therefor are otherwise satisfied.
   (P)   Review required; use of existing facilities. The design, location, and nature of all facilities shall be subject to the review and approval of the City Engineer. Such review shall be on a non- discriminatory basis in application of city policy, and approvals shall not be unreasonably withheld. All new facilities or structures shall collocate on existing poles or existing conduit, trenches or other facilities, to minimize unnecessary use of rights-of-way space, to reduce potential existing or future interference and obstructions, and to reduce the cost to the public or others therefrom, and to maximize the public’s ability to use and license appropriate private or public uses of the rights-of-way in the public interest (except where preempted by law or where good cause is established as determined by the city applying these objectives). Where existing poles or facilities are available, or exist at or near the proposed use, unless otherwise approved, the applicant must either use such facilities, or file a written request, verified by the applicant, for exception specifying the specific reasons why such facilities are not available or feasible to be used, and addressing the objectives hereof. City height limitations, applicable zoning restrictions, and general city policies with regard to all users of the rights-of-way shall be applicable to all facilities. The City Engineer may establish such regulations or policies as may be deemed necessary or appropriate to effect this provision. For applications for installation of any facility in the rights-of-way, the most restrictive adjacent underlying zoning district classification shall apply unless otherwise specifically zoned and designated on the official zoning map.
      (1)   (a)   No utility may erect, construct, or install new utility poles or other facilities above the surface of the rights-of-way without the written permission of the city based on good cause established by the utility and found by the city. Good cause may be shown by demonstrating the following;
            1.   There exist other utility poles or support structures, proximate to the area, that are located above ground. For purposes of showing good cause under this factor, evidence of good cause for new utility poles shall only be compared to existing utility poles, evidence of good cause for new support structures shall only be compared to existing support structures;
            2.   The proposed underground installation is impossible, impractical, or not technically feasible; or
            3.   When, in the city’s judgment, the proposed utility pole installation will be made at a location, and will employ suitable design and materials, to provide the greatest protection of aesthetic qualities of the proximate area without adversely affecting safety.
         (b)   Where reasonable and appropriate and where adequate rights-of-way exist, the utility shall place above-ground facilities underground in conjunction with city capital improvement projects and/or at specific locations requested by the city provided that such placement is practical, efficient, and economically feasible. The requirements herein shall not prohibit the replacement of existing utility poles.
      (2)   (a)   All small wireless facilities, as defined in ILCS Ch. 50, Act 840, § 10, in the rights-of-way shall comply with the following requirements, in addition to any other design, safety, spacing, or construction requirements as may be outlined in a franchise agreement or the city’s code:
            1.   The maximum height of a small wireless facility that is collocated on a utility pole or support structure shall be no more than ten feet above the utility pole or support structure that such small wireless facility is collocated;
            2.   All written design standards, currently in effect or as may hereafter be adopted by the Director, applicable to the city’s utility poles or support structures shall be followed, along with all stealth, concealment, and any other aesthetic requirements or written design plans applicable to such utility poles or support structures on record, adopted, or in effect within the city, including such stealth, concealment, or other aesthetic requirements for historic landmarks or within a district currently, or hereafter, zoned historic;
            3.   The small wireless facility and any associated equipment permitted shall be painted the same or similar color as the utility pole or support structure upon which the facility and/or equipment is collocated. If good cause is shown for ground-mounted equipment, such ground-mounted equipment associated with a collocated small wireless facility shall be of such design, including color and size, such that it maximally blends in to the built environment of the proximate area;
            4.   New or replacement utility poles or support structures may not exceed the higher of:
               A.    Forty-five feet AGL; or
               B.   Ten feet in height above the tallest existing utility pole, other than a utility pole supporting only wireless facilities, that is in place on the date that an applicant submits an application to the city, that is located within 300 feet of the proposed utility pole or support structure and that is in the same ROW within the jurisdiction of the city; provided, however, that the city may designate which intersecting ROW within 300 feet of the proposed utility pole or support structure shall control the height limitation for such facility; without a special use permit approved by City Council pursuant to §§ 158.095 through 158.102, as may be hereinafter amended;
            5.   A utility must comply with any requirements imposed by any contract between the city and a private property owner that concerns, or relates to, design or construction standards for utility poles located in the rights-of-way;
            6.   No new utility poles or other support structures may be installed within the city’s rights-of-way without the prior approval of the city upon good cause shown for compliance with design and aesthetic requirements. This requirement does not prohibit modification of existing utility poles or support structures to allow for collocation of small wireless facilities. Replacement utility poles shall be permitted as required by applicable law. In such a circumstance requiring a replacement pole for a small wireless facility, replacement utility poles shall be at the sole cost of the utility proposing the replacement utility pole;
            7.   No ground-mounted equipment associated with the small wireless facility will be permitted. Waiver to this requirement may be granted by the City Administrator upon good cause shown that the utility requires ground-mounted equipment to utilize the site for a small wireless facility. If good cause is shown permitting such ground-mounted equipment for a small wireless facility, no other ground-mounted equipment shall be allowed for the utility, or for the particular utility if the person provides only infrastructure-related services for the utility, within 250 feet of that approved ground-mounted equipment;
            8.   The proposed collocation, modification, or replacement of utility poles or support structures where approved pursuant to this franchise, shall cause only the minimum possible interference with the use of the rights-of-way and shall cause only the minimum possible impact upon, and interference with, the rights and reasonable convenience of the property owners who adjoin said rights-of-way;
            9.   The height of all portions of the small wireless facility shall be located at least eight feet above ground level so as not to interfere with pedestrian or vehicle traffic;
            10.   No portions of the small wireless facility shall extend horizontally from the surface of the utility pole or collocated support structure more than 16 inches;
            11.   If the proposed utility pole or support structure the person proposes to locate its small wireless facility on is not structurally sound, but the Director finds such site to be a desired location, the Director can require the person to install a substantially similar utility pole or support structure, at the person’s cost; and
            12.    Notwithstanding the maximum size descriptions which define a small wireless facility contained in ILCS Ch. 50, Act 840, § 10 or otherwise contained in applicable law, the proposed installation or collocation shall endeavor to use the smallest suitable vaults, boxes, equipment enclosures, power pedestals, and/or cabinets then in use by the person, regardless of location, for the particular application.
         (b)   The City Administrator may further waive one or more of these requirements upon good cause shown by the person, and provided a showing that the waiver is the minimum necessary to accomplish the purposes of this division (P), or as otherwise required by applicable law. The burden of proof for any waiver shall be wholly on the person and must be shown by clear and convincing evidence.
   (Q)   Utility responsible for costs. The utility shall be responsible for all reasonable costs borne by the city that are directly associated with the utility’s installation, maintenance, repair, operation, use, and replacement of its facilities in the rights-of-way that are not otherwise accounted for as part of a permit fee established pursuant to this chapter, to the extent permitted by law. All such costs shall be itemized, and the city’s books and records related to these costs shall be made available upon request of the utility.
(1999 Code, § 53.01)  (Ord. 3694, passed 10-18-2010; Ord. 4016, passed 12-4-2017; Ord. 4090, passed 4-1-2019)