A. General Provisions.
1. Purpose and Findings.
a. Purpose.
(1) In the exercise of governmental functions the Village has priority over all other uses of the public rights-of-way. The Village desires to anticipate and minimize the number of obstructions and excavations taking place therein and to regulate the placement of facilities in the rights-of-way to ensure that the rights-of-way remain available for public services and safe for public use. The taxpayers of the Village bear the financial burden for the upkeep of the rights-of-way and a primary cause for the early and excessive deterioration of its rights-of-way is the frequent excavation by persons who locate facilities therein.
(2) The purpose of this Section is to provide the Village a legal framework within which to regulate and manage the public rights-of-way, and to provide for recovery of the costs incurred in doing so. This Section provides for the health, safety and welfare of the residents of the Village as they use the rights-of-way of the Village, as well as to ensure the structural integrity of the public rights-of-way.
b. Findings.
(1) The Village finds increased use of the public rights-of-way and increased costs to the taxpayers of the Village and that these costs are likely to continue into the foreseeable future.
(2) The Village finds that occupancy and excavation of its rights-of-way causes costs to be borne by the Village and its taxpayers, including but not limited to:
(a) Administrative costs associated with public right-of-way projects, such as permitting, inspection and supervision, supplies and materials.
(b) Management costs associated with ongoing management activities necessitated by public right-of-way users.
(c) Repair or restoration costs to the roadway associated with the actual excavation into the public right-of-way.
(d) Depreciation caused to the roadway in terms of decreased useful life, due to excavations into the public rights-of-way.
2. In response to the foregoing facts, pursuant to Wis. Stat. ss. 61.34, 61.36, 196.58, and any other statute granting the Village the power to manage and control its rights-of-way and the utilities operating in the Village, the Village hereby enacts this Section of the Municipal Code, relating to administration of and permits to excavate, obstruct and/or occupy the public rights-of-way. This section imposes reasonable regulations on the placement and maintenance of equipment currently within its rights-of-way or to be placed therein at some future time. It is intended to complement the regulatory roles of state and federal agencies.
B. Definitions. The following definitions apply in this Section. References hereafter to “sections” are unless otherwise specified references to subsections in this Section. Defined terms remain defined terms whether or not capitalized.
“Applicant” means any person requesting permission to excavate, obstruct and/or occupy a right-of-way.
“Village” means the Village of Rochester, Wisconsin, a Wisconsin municipal corporation.
“Emergency” means a condition that poses a clear and immediate danger to life or health, or of a significant loss of property; or requires immediate repair or replacement in order to restore service to a customer.
“Engineer” means the Village Engineer or his/her designee.
“Excavate” means to dig into or in any way remove or physically disturb or penetrate any part of a right-of-way.
“Facilities” means all equipment owned, operated, leased or subleased in connection with the operation of a service or utility service, and shall include but is not limited to poles, wires, pipes, cables, cabinets, boxes, underground conduits, ducts, manholes, vaults, fiber optic cables, lines, and other structures and appurtenances.
“In,” when used in conjunction with “right-of-way,” means over, above, within, on or under a right-of-way.
“Local representative” means a local person or persons, or designee of such person or persons, authorized by an applicant or permittee to accept service and to make decisions for that applicant or permittee regarding all matters within the scope of this Chapter.
“Obstruct” means to place any object in a right-of-way so as to hinder free and open passage over that or any part of the right-of-way.
“Permittee” means any Person to whom a permit to occupy, excavate or obstruct a right-of-way has been granted by the Village under Chapter 6 of this Code.
“Person” means corporation, company, association, firm, partnership, limited liability company, limited liability partnership or other entity and individuals and their lessors, transferees, assignees and receivers.
“Public Utility” has the meaning provided in Wis. Stat. s. 196.01(5).
“Restore” or “Restoration” means the process by which an excavated right-of-way and surrounding area, including pavement and foundation is reconstructed, per the Standard Specifications for Public Works Construction and Public Works Manager specifications.
“Right-of-Way” means the surface and space above and below an improved or unimproved public roadway, highway, street, bicycle lane and public sidewalk in which the Village has an interest, including other dedicated rights-of-way for travel purposes.
C. Administration. The Public Works Manager and the Village Clerk, or their designees, are responsible for the administration of the rights-of-way, and the permits and ordinances related thereto.
1. Requirements for Right-of-Way Occupancy.
a. Each person who has, or seeks to have, facilities located in any right-of-way shall meet the requirements set forth herein.
b. No person may construct, install, maintain, repair, remove, relocate or perform any other work on, or use any equipment or any part thereof in any right-of-way unless that person meets the requirements set forth herein.
c. Nothing herein shall be construed to repeal or amend the provisions of a Village ordinance requiring persons to plant or maintain the parkway in the area of the right-of-way between their property and the street curb or pavement or other similar activities. Persons performing such activities shall not be required to obtain any permits under this Chapter.
2. Reporting Obligations. It is in the best interests of all affected parties to attempt to coordinate construction in the public right-of-way whenever it is reasonably possible. Therefore, periodic reporting by persons intending to work in the right-of-way of known construction plans will be useful to achieve this objective.
a. Every person intending to work in the right-of way shall, no later than January 1 of each year, file a construction and major maintenance plan with the Public Works Manager. The Public Works Manager shall make available at the time of such filing, and on January 15 of each year the Village’s construction and major maintenance plan. The person’s plan and the Village’s plan shall be submitted on a form prescribed by the Public Works Manager and shall contain the information determined by the Public Works Manager to be necessary to facilitate the coordination and reduction in the frequency of excavations of rights-of-way. The plan shall include, but shall not be limited to, the following information:
(1) The locations and the estimated beginning and ending dates of all projects planned to be commenced during the next calendar year; and
(2) The tentative locations and estimated beginning and ending dates for all projects contemplated for the two years following the next calendar year.
b. By February 15 of each year, the Public Works Manager will have available for inspection in his or her office a composite list of all projects of which the Public Works Manager has been informed in the annual plans. All persons are responsible for keeping themselves informed of the current status of this list.
c. Thereafter, by February 1, each person may change any project in its list and must notify the Public Works Manager of all such changes in said list. The Public Works Manager will make all such changes available for inspection in his or her office. Notwithstanding the foregoing, a person may at any time join in a project of another person listed by the other person or undertake any maintenance or construction project not listed in person’s plan.
D. Permit to Excavate in Right-of-Way Required.
1. Excavation Permit Required. Except as otherwise provided in this chapter or other chapters of the Village of Rochester Municipal Code, no person shall excavate any right-of-way without first having obtained an excavation permit from the Public Works Manager. A copy of any permit issued under this Chapter shall be made available at all times by the Permittee at the indicated work site and shall be available for inspection by the Village upon request.
2. Excavation Permit Application. Application for a permit shall be made to the Public Works Manager. Permit applications shall contain, and will be considered complete only upon compliance with the requirements of the following provisions:
a. Applicant Information. The information provided to the Public Works Manager at the time of application shall include, but not be limited to:
(1) Each applicant’s name, Diggers Hotline registration certificate number, address and e-mail address, if applicable, and telephone and facsimile numbers. If the applicant intends to hire a contractor, the name and contact information for the contractor shall be provided, but the applicant shall be liable for the requirements herein.
(2) The name, address and e-mail address, if applicable, and telephone and facsimile numbers of a local representative. The local representative or designee shall be available at all times. Current information regarding how to contact the local representative in an emergency shall be provided at the time of application.
(3) A certificate of insurance on a form prescribed by the Public Works Manager, naming the Village of Rochester as an additional insured, or a cash or performance bond, in an amount determined by the Village Engineer, if the Public Works Manager has reasonable grounds to question the financial responsibility or compliance ability of the applicant.
(4) Execution of an indemnification agreement in a form prescribed by the Public Works Manager.
(5) If the applicant regularly performs work in the Village rights-of-way, the applicant may provide the information required in subsections (1) through (4) herein annually, provided that the applicant shall be liable to keep said information up-to-date and shall notify the Public Works Manager within 10 calendar days following the date on which the applicant has knowledge of any change. If applicable, the applicant’s insurer shall be required to notify the Village 30 days prior to a cancellation or reduction of coverage or limits.
b. Submission of a completed permit application form, including all required attachments, and scaled drawings showing the location and area of the proposed project and the location of all existing and proposed facilities that are part of applicant’s proposed project, whether above- or below-ground.
c. Payment of all money due to the Village for:
(1) Applicable permit fees and costs as set forth below;
(2) Subject to section 6-6.D.2.d., unpaid fees or costs due for prior excavations; or
(3) Subject to section 6-6.D.2.d, any loss, damage, or expense suffered by the Village because of applicant’s prior excavations of the rights-of-way or any emergency actions taken by the Village.
d. The Public Works Manager shall not deny an applicant an excavation permit because of a dispute between the Village and the applicant, related to sections 6-6.D.2.c(1) or (3) if:
(1) The dispute has been adjudicated in favor of the applicant;
(2) The dispute is the subject of any appeal filed by the applicant and no decision in the matter has as yet been rendered.
e. The Public Works Manager may deny an applicant a permit pursuant to the provisions of this Section. See specifically subsection s. 6-6.I.
3. Excavation Permit Fee. The Excavation Permit Fee shall be established by the Village Board in an amount sufficient to recover the costs incurred by the Village. This fee shall recover administrative and inspection costs. Payment of said fees shall be collected prior to issuance of the permit. However, the Village Clerk may, with the advice and consent of the Village Board, establish a fee collection process from governmental agencies and private utilities in order to expedite the permitting system and recognize that certain excavations are deemed emergencies.
4. Waiving of Fees. Fees shall not be waived unless the work involved is a direct result of the Public Works Manager’s demand that a plant owned by a utility be removed or relocated or unless waived by the Finance Committee on appeal.
5. For those permit applications which provide for a substantial undertaking of excavation within the public right-of-way attended by disruption of the general public and traffic, the Public Works Manager is authorized to assess the actual cost of a Village employee’s time engaged in the review and inspection of the anticipated work multiplied by a factor determined by the respective department to represent the Village’s cost for statutory expense, benefits, insurance, sick leave, holidays, vacation and similar benefits, overhead and supervision, said factor not to exceed 2.0, plus the cost of mileage reimbursed to Village employees which is attributed to the work, plus all consultant fees associated with the work at the invoiced amount plus ten percent for administration, except as may be limited by Wis. Stat. s. 66.0628.
6. Village Exemption. The Village and its contractors shall not pay permit fees for excavations due to general government functions.
7. Permit fees paid for a permit that the Public Works Manager has revoked are not refundable.
E. Right-of-Way Work; Locating Wires; Restoration.
1. Working in the Right-of-Way.
a. Frozen ground. No openings shall be permitted when the ground is frozen in any Village street, sidewalk or parking area between November 15 and April 1 except where necessary or in an emergency as determined by the Public Works Manager.
b. Removal of paving. In opening any street or other public way, all paving or ballasting materials shall be saw cut and removed with the least possible loss of or injury to surfacing materials and, together with the excavated material from trenches, shall be placed so as to cause the least practicable inconvenience to the public and permit free flow of water along gutters. All pavement shall be straightedge or saw cut in a straight line, on all sides of the opening to a minimum depth of two inches.
c. State and county trunk highways. Notwithstanding any other provision to the contrary, state and county trunk highway crossings to install services, laterals, etc., shall be effected through auguring, jacking or tunneling as opposed to making an opening in the highway itself. The applicant shall also obtain the necessary permits from the respective highway commissioners.
d. Protection of the public. Every permittee shall enclose with sufficient barriers each opening which he or she may make in the rights-of-way of the Village. All machinery and equipment shall be locked or otherwise effectively safeguarded from unauthorized use when not being used by the permittee, and/or his or her agents or employees. Amber lights shall be placed at each end of the opening and in other locations necessary to give adequate warning to the traveling public. Except by special permission from the Public Works Manager, no trench shall be excavated more than 250 feet in advance of pipe laying nor left unfilled for more than 500 feet where pipe has been laid. All necessary precautions shall be taken to guard the public effectually from accidents or damage to persons or property through the period of the work.
e. Restoring street surface. In making any opening, the paving materials, sand, gravel and earth or other material moved or penetrated and all surface monuments or hubs shall be removed and replaced as nearly as possible to their original condition or position and the same relation to the remainder as before. Any excavated material which, in the opinion of the Public Works Manager, is not suitable for refilling shall be replaced with approved backfill material. When the sides of the trench will not stand perpendicular, sheathing and braces shall be used to prevent caving. All trench backfilling under pavement, driveways, shoulders and sidewalk shall be of thoroughly compacted granular backfill. All rubbish shall be immediately removed. In refilling the opening, the granular material shall be puddled or laid in layers not more than six inches deep and in each layer rammed, tamped or flushed to prevent caving. No timber, bracing, lagging, sheathing or other lumber shall be left in any trench. All street openings shall have at least eight inches of compacted crushed road gravel placed on the top of the opening and shall have the original surface restored to the same type and thickness.
f. Backfilling trenches. All trenches shall be backfilled within 24 hours after being opened, unless otherwise permitted by the Public Works Manager, and the surface shall be restored within 72 hours after being opened. The Public Works Manager reserves the option to complete restoration of any excavation if the above-mentioned time limits are exceeded, assessing any cost thereof pursuant to section 6-6.E.5.
g. Parkways. Parkways shall be restored with sod or seed.
2. Locating Wire Required. Any person installing a nonconductive main or lateral shall also install a locating wire for marking the location of the main or lateral, as follows:
a. If the main to which the main or lateral is being connected contains a locating wire, the person shall connect one end of the locating wire for the main or lateral to the existing wire located on the stub or the main.
b. If the main to which the main or lateral is being connected does not contain a locating wire, the person shall attach the locating wire for the main or lateral to its junction with the stub or main.
c. The person shall continue the installation of the locating wire for the full length of the main installed, and from the lateral to point where the lateral enters the structure. The person shall continue to run the locating wire vertically up the outside of the structure, from the location where the lateral entered the structure, and shall encase the uppermost four feet (or more) of the vertical portion of the locating wire in a one-inch Schedule 80 PVC conduit, with cap, which shall be accessible and uniform. The conduit shall extend at least four inches above the final grade, and shall hold at least one foot of excess wire. There shall be no plantings at the site that would damage the conduit or locating wire, or prevent the detection of the location of the locating wire.
3. The Permittee shall be required to restore the public right-of-way in accordance with the Standard Specifications for Public Works Construction and Public Works Manager specifications, subject to inspection and acceptance by the Village Engineer. In addition to restoring its own work, the Permittee must restore the general area of the work, and the surrounding areas, including the paving and its foundations, to the Standard Specifications for Public Works Construction and the specifications of the Public Works Manager. The Village Engineer shall inspect the area of the work and accept the work when the Engineer determines that proper restoration has been made, per the Standard Specifications for Public Works Construction and the specifications of the Public Works Manager. The Permittee shall not be required to restore the right-of-way or the general area surrounding the work to a condition which improves the pre-excavation condition.
4. Guarantees. The Permittee shall guarantee its work and shall maintain it for 12 months following its completion. During this period it shall, upon notification from the Public Works Manager, correct all work to the extent necessary, using the method required by the Public Works Manager or the Village Engineer. Said work shall be completed within ten calendar days of the receipt of the notice from the Public Works Manager, not including days during which work cannot be done because of circumstances constituting force majeure.
5. Failure to Restore. If the Permittee fails to restore the right-of-way in the manner and to the condition required by the Village Engineer or the Public Works Manager, or fails to satisfactorily and timely complete all work required by the Public Works Manager, the Village at its option may do such work. In that event the Permittee shall pay to the Village, within 30 days of billing, the cost of restoring the right-of-way.
F. Inspection; As-built Drawings.
1. Notice of Completion. When the work under any permit hereunder is begun and completed, the permittee shall notify the Public Works Manager. Upon completion, the permittee shall submit as-built drawings to the Village if required by the Village.
2. Site Inspection. The permittee shall make the work site available to the Village Engineer and the Public Works Manager and to all others as authorized by law for inspection at all reasonable times during the execution of and upon completion of the work.
3. Authority of Public Works Manager. At the time of inspection the Village may order the immediate cessation of any work which poses a threat to the life, health, safety or well-being of the public. The Village may issue an order to the applicant or permittee for any work that does not conform to the applicable Village standards, conditions or codes. The order shall state that failure to correct the violation will be cause for revocation of the permit. Within ten days after issuance of the order, the applicant or permittee shall present proof to the Public Works Manager that the violation has been corrected. If such proof has not been presented within the required time, the Public Works Manager may revoke the permit pursuant to section 6-6.I.
G. Ongoing Management Fees. The cost of trimming trees or maintaining landscaping around facilities is an ongoing cost to the Village. The specific cost will be determined and a fee to offset those costs may be assessed in the future.
H. Compliance with Other Laws. Obtaining a permit to excavate and/or occupy the right-of-way does not relieve the permittee of its duty to obtain all other necessary permits, licenses, and authority and to pay all fees required by any other Village, County, State, or Federal rules, laws or regulations. A permittee shall comply with all requirements of local, state and federal laws. A permittee shall perform all work in conformance with all applicable codes and established rules and regulations, and is responsible for all work done in the right-of-way pursuant to its permit, regardless of who does the work. If an applicant is required to obtain a franchise or enter into an agreement pursuant to any other section of this Code, it shall do so prior to making application hereunder.
I. Revocations, Suspensions, Refusals to Issue or Extend Permits.
1. The Public Works Manager may refuse to issue a permit or may revoke, suspend or refuse to extend an existing permit if it finds any of the following grounds:
a. The applicant has not submitted the required application materials;
b. Issuance of a permit for the requested date would interfere with an exhibition, celebration, festival or other event;
c. Misrepresentation of any fact by the applicant or permittee;
d. Failure of the applicant or permittee to maintain required bonds and/or insurance;
e. Failure of the applicant or permittee to complete work in a timely manner;
f. The proposed activity is contrary to the public health, safety or welfare;
g. The extent to which right-of-way space where the permit is sought is available;
h. The competing demands for the particular space in the right-of-way.
i. The availability of other locations in the right-of-way or in other rights-of-way for the facilities of the permittee or applicant;
j. The applicability of ordinances or other regulations of the right-of-way that affect location of facilities in the right-of-way;
2. Discretionary Issuance. The Public Works Manager may issue a permit where issuance is necessary:
a. to prevent substantial economic hardship to a customer of the permittee or applicant; or
b. to allow such customer to materially improve its utility service; or
c. to allow the permittee or applicant to comply with state or federal law or Village ordinance or an order of a court or administrative agency.
3. Appeals. Any person aggrieved by a decision of the Public Works Manager revoking, suspending, refusing to issue or refusing to extend a permit may file a request for review with the Village Board. A request for review shall be filed within ten days of the decision being appealed. Following a hearing, the Village Board may affirm, reverse or modify the decision of the Public Works Manager.
J. Work Done Without a Permit.
1. Emergency Situations.
a. Each person shall immediately notify the Village by verbal notice on an emergency phone number provided by the Village of any event regarding its facilities that it considers to be an emergency. The person may proceed to take whatever actions are necessary to respond to the emergency. Within two business days after the occurrence of the emergency the person shall apply for the necessary permits, pay the fees associated therewith and otherwise fully comply with the requirements of this Chapter.
b. If the Village becomes aware of any emergency regarding a person’s facilities, the Public Works Manager may attempt to contact the local representative of each person affected, or potentially affected, by the emergency. The Village may take whatever action it deems necessary to protect the public safety as a result of the emergency, the cost of which shall be borne by the person whose facilities occasioned the emergency.
2. Non-Emergency Situations. Except in an emergency, any person who, without first having obtained the necessary permit, excavates a right-of-way must subsequently obtain a permit, and shall in addition to any penalties prescribed by ordinance, pay double the normal fee for said permit, pay double all the other fees required by this Chapter or other Chapters of the Village of Rochester Municipal Code, deposit with the Public Works Manager the fees necessary to correct any damage to the right-of-way and comply with all of the requirements of this Chapter.
K. Location of Facilities.
1. Placement.
a. Unless in conflict with state or federal law, except when existing aboveground facilities are used, the installation of new facilities and replacement of old facilities shall be done underground or contained within buildings or other structures in conformity with applicable codes.
b. All above-ground structures, cabinets or boxes shall be precisely indicated on the plans submitted pursuant to subsection 6-6.D.2.b., including the size and appearance thereof. The Public Works Manager may require alternative placement of said structures, cabinets or boxes as part of the permitting process if he or she determines that the planned placement interferes with public safety, health or welfare. The Public Works Manager may also reasonably require screening of said structures, cabinets or boxes if he or she determines that the public welfare is harmed by the potential diminution of property values in the area because of the appearance of said structures, cabinets or boxes. No above ground facility, structure, cabinet or box may interfere with the use of the adjacent property.
c. All underground facilities shall be precisely indicated on the plans submitted pursuant to subsection 6- 6.D.2.b. The Public Works Manager may require alternative placement of said facilities as part of the permitting process if he or she determines that said facilities interfere with the public safety, health or welfare. No underground facility may interfere with the use of the adjacent property.
2. Limitation of Space. The Public Works Manager may prohibit or limit the placement of new or additional facilities within the right-of-way if there is insufficient space to accommodate all of the requests of persons to occupy and use the right-of-way. In making such decisions, the Public Works Manager shall strive to the extent possible to accommodate all existing and potential users of the right-of-way, but may prohibit or limit the placement of new or additional facilities when required to protect the public, health, safety or welfare. Basic required municipal uses such as sewer and storm sewer mains and laterals shall be given priority in furtherance of such protection of the public health, safety and welfare.
3. Attachment to Bridges. Whenever an applicant or permittee under this section requests permission to attach pipes, conduits, cables or wires to any Village bridge structure, upon the granting of such permission, the applicant shall pay the actual cost to the Village of the administrative and engineering expense in the analysis and inspection of such installation. The owner of such pipes, conduits, cables or wires shall be entitled to no compensation for removal or relocation of the same in the case of repair, removal, or replacement of said bridge structure by the Village.
L. Relocation of Facilities.
1. Permanent Relocation.
a. A person must, promptly and at its own expense, permanently remove and relocate its facilities in the right- of-way whenever the Village, acting in its governmental capacity for the health, safety or public welfare, requests such removal and relocation. If requested, the person shall restore the right-of-way.
b. Notwithstanding subsection a., a person shall not be required to remove or relocate its facilities from any right-of-way which has been vacated in favor of a non-governmental entity unless and until the person gives written consent to the vacation, or the person fails to use the easements and rights for a period of four years from the date of the vacation, or the reasonable costs of the relocation are first paid to the person therefore, pursuant to Wis. Stat. s. 66.1005(2).
c. A person must, promptly and at its own expense, permanently relocate its facilities in the public right-of- way if the placement or location of the facilities interferes with an adjacent property’s connection to a required utility. A required utility is municipal sewer service and/or a municipal storm water service. The Village mandates connection to said required utilities for the health, safety and welfare of the public, and such connection shall not be considered to be substantially for the benefit of any person other than the Village.
d. A person must, promptly and its own expense, permanently relocate its facilities in the public right-of-way if the right-of-way is being widened or altered for the public health, safety or welfare and the location of the facilities interferes with such widening or alteration.
2. Temporary Relocation.
a. A person must, promptly and at its own expense, temporarily protect, change or relocate its facilities in the right-of-way whenever the Village, acting in its governmental capacity for the health, safety or public welfare, requests such protection, change or relocation. If requested, the person shall restore the right-of-way.
b. A person must, promptly and at its own expense, temporarily protect, change or relocate its facilities in the public right-of-way if the placement or location of the facilities interferes with an adjacent property’s connection to a required utility. A required utility is municipal sewer service and/or municipal storm water service. The Village mandates connection to said required utilities for the health, safety and welfare of the public, and such connection shall not be considered to be substantially for the benefit of any person other than the Village.
M. Interference with Other Facilities during Municipal Construction.
1. When the Village performs work in the right-of-way and finds it necessary to maintain, support, shore, or move a person’s facilities, the Village shall notify the local representative. The person or its representative shall meet with the Village’s representative within 24 hours and coordinate the protection, maintenance, supporting and/or shoring of the person’s facilities. The person shall accomplish the needed work within 72 hours, unless the Village agrees to a longer period.
2. In the event that the person does not proceed to maintain, support, shore or move its facilities, the Village may arrange to do the work and bill the person, said bill to be paid within 30 days.
N. Abandoned Facilities.
1. Discontinued Operations. A person who has determined to discontinue its operations in the Village must either:
a. Provide information satisfactory to the Public Works Manager that the person’s obligations for its facilities under this Chapter have been lawfully assumed by another person; or
b. Submit to the Public Works Manager a proposal and instruments for dedication of its facilities to the Village. If a person proceeds under this clause, the Village may, but shall not be required to:
(1) Accept the dedication for all or a portion of the facilities; or
(2) Require the person, at its own expense, to remove the facilities in the right-of-way at ground or above ground level; or
(3) Require the person to post a bond or provide payment sufficient to reimburse the Village for reasonably anticipated costs to be incurred in removing the facilities.
c. Notwithstanding the above, any person who has unusable and abandoned facilities in any right-of-way shall remove them from that right-of-way within two years, unless the Village Board waives this requirement.
2. Abandoned Facilities. Facilities of a person who fails to comply with subsection 1., and which, for two years, remains unused shall be deemed to be abandoned. Abandoned facilities are deemed to be a nuisance. In addition, to any remedies or rights it has at law or in equity the Village may, but shall not be required to:
a. abate the nuisance and charge the cost of the abatement to the person; or
b. take possession of the facilities; or
c. require removal of the facilities by the person, or the person’s successor in interest.
3. Public Utilities. This subsection N shall not apply to a public utility, as defined by Wis. Stat. s. 196.01(5), that is required to follow the provisions of Wis. Stat. s. 196.81.
O. Reservation of Regulatory and Police Powers. The Village, by the granting of a permit to excavate, obstruct and/or occupy the right-of-way under this Chapter does not surrender or in any extent lose, waive, impair, or lessen the lawful powers and rights, which it has now or maybe hereafter granted to the Village under the Constitution and statutes of the State of Wisconsin to regulate the use of the right-of-way by the permittee; and the permittee by its acceptance of a permit to excavate, obstruct and/or occupy the right-of-way under this Chapter agrees that all lawful powers and rights, regulatory powers, or police power, or otherwise as are or the same may be from time to time vested in or reserved to the Village, shall be in full force and effect and subject to the regulatory and police powers of the Village to adopt and enforce general ordinances necessary to the safety and welfare of the public and is deemed to agree to comply with all applicable general law, and ordinances enacted by the Village pursuant to such powers.
P. Severability. If any section, subsection, sentence, clause, phrase, or portion of this Section is for any reason held invalid or unconstitutional by any court or administrative agency of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions thereof.
Q. Penalty.
Any person who violates this Section or fails to comply with the provisions of this Section shall be subject to a forfeiture of not less than $120 nor more than $600. Each day such violation or failure to comply continues shall be considered a separate offense.