(a) Unless otherwise permitted pursuant to the City of Shelby, Ohio Codified Ordinances, each person who occupies, uses or seeks to occupy or use the right-of-way to use, occupy, construct, own, or operate structures or facilities located in, under or over the right-of-way or any public property with the city, shall apply for and obtain a right-of-way occupancy permit pursuant to this chapter. Any person owning, operating or maintaining structures or facilities in the right-of-way without a right-of-way occupancy permit, including persons operating under a permit, license, or franchise issued by the city prior to the effective date of this chapter shall apply for and obtain a right-of-way occupancy permit from the city, unless exempted by this chapter. Application will consist of providing the information set forth in this chapter and as reasonably required by the Mayor.
(b) Permits shall not be required for the following uses:
(1) Carts;
(2) Landscaping (may require a right-of-way work permit per this chapter);
(3) Right angle signs and sidewalk signs;
(4) Awnings; and
(5) Residential purposes, so long as, in the opinion of the Mayor, the residential use:
A. Has received or will receive all other necessary permits, including any required by these Codified Ordinances;
B. Is not inconsistent with policy of the city;
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 Director shall adopt regulations controlling and further defining residential purposes and to otherwise implement the determinations to be made under this section. Such regulations shall, among other matters, specify that the owner of facilities that hold 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, owning or operating such facilities, for purposes of this chapter, solely as a result of such leaseback.
(c) The following types of right-of-way occupancy permits are available:
(1) General right-of-way occupancy permit: A right-of-way occupancy permit granted to persons who desire and are granted authority to utilize rights-of-way generally for business purposes, including the provision of utility, cable television, telecommunications, or other services to the city, its residents, and taxpayers;
(2) Nothing in this chapter should be construed to preclude the city from requiring any person offering any natural gas, electric, cable television, telecommunications, or other utility services for which the city may lawfully require a franchise, to acquire a franchise upon the expiration of any right-of-way occupancy permit issued hereunder.
(d) Any such right-of-way occupancy permit may also allow the use of specified public property for the uses set forth in the right-of-way occupancy permit and in this chapter.
(e) Each right-of-way occupancy 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.
(f) Unless otherwise set forth herein, right-of-way occupancy permits or the rights of a permittee thereunder are not transferable without the prior express written approval of the Director, upon written request. 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 occupancy permit and shall be granted if such transferee has such resources. In making said determination, a proposed transferee shall be presumed to possess the requisite financial, technical, and managerial resources if said transferee possesses a valid certification from the Public Utilities Commission of Ohio, including certification pursuant to R.C. § 4933.81, et seq., and is recognized on the rolls of the Public Utilities Commission of Ohio as a regulated utility or of a cable operator possessing a valid franchise awarded pursuant to the Cable Communications Policy Act of 1984, for the services to be provided by the facilities subject to this chapter. The Director shall adopt regulations providing procedures for transfer of right-of-way occupancy permits that shall include provisions providing that (i) all requests for transfer shall be deemed approved if the Director 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 Director is provided 30 days written notice of such transfer.
(g) Any facilities or part of a facility found in a right-of-way for which a right-of-way occupancy permit has not been obtained shall be deemed to be a nuisance and an unauthorized use of the right-of-way. The city may exercise any remedies or rights it has at law or in equity, including, but not limited to abating the nuisance; taking possession of the facilities and/or non-complying portion of such facility; and/or prosecuting the violator.
(h) The Director shall adopt regulations controlling and further defining residential purposes and to otherwise implement the determinations to be made under this section. Such regulations shall, among other matters, specify: (i) that the owner of facilities that hold 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; and (ii) 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.
(Ord. 14-2018, passed 9-4-2018)