[Ord. No. 1723 §4(A), 12-10-2007]
The following terms shall have the following meanings unless
otherwise defined by context:
CITY ADMINISTRATOR
The City Administrator or such other person designated to
administer and enforce this Chapter.
FACILITIES
A network or system or any part thereof used for providing
or delivering a service and consisting of one (1) or more lines, pipes,
irrigation systems, wires, cables, fibers, conduit facilities, cabinets,
poles, vaults, pedestals, boxes, appliances, antennas, transmitters,
radios, towers, gates, meters, appurtenances or other equipment.
FACILITIES PERMIT
A permit granted by the City for placement of facilities
on private property.
PERSON
An individual, partnership, limited liability corporation
or partnership, association, joint stock company, trust, organization,
corporation or other entity or any lawful successor thereto or transferee
thereof.
SERVICE
Providing or delivering an economic good or an article of
commerce including, but not limited to, gas, telephone, cable television,
Internet, open video systems, video services, alarm systems, steam,
electricity, water, telegraph, data transmission, petroleum pipelines,
sanitary or stormwater, sewerage or any similar or related service
to one (1) or more persons located within or outside of the City using
facilities located within the City.
[Ord. No. 1723 §4(B), 12-10-2007]
A. Any person
desiring to place facilities on private property must first apply
for and obtain a facilities permit, in addition to any other building
permit, license, easement, franchise or authorization required by
law. The City Administrator may design and make available standard
forms for such applications, requiring such information as allowed
by law and as the City Administrator determines in his or her discretion
to be necessary and consistent with the provisions of this Chapter
and to accomplish the purposes of this Chapter. Each application shall
at minimum contain the following information, unless otherwise waived
by the City Administrator:
1. The
name of the person on whose behalf the facilities are to be installed
and the name, address and telephone number of a representative whom
the City may notify or contact at any time (i.e., twenty-four (24)
hours per day, seven (7) days per week) concerning the facilities;
2. A description
of the proposed work, including a site plan and such plans or technical
drawings or depictions showing the nature, dimensions and description
of the facilities, their location and their proximity to other facilities
that may be affected by their installation.
B. Each
such application shall be accompanied by an application fee approved
by the City to cover the cost of processing the application.
C. Application Review And Determination.
1. The
City Administrator shall promptly review each application and shall
grant or deny the application within thirty-one (31) days. Unless
the application is denied pursuant to Subparagraph (4) hereof, the
City Administrator shall issue a facilities permit upon determining
that the applicant:
a. Has
submitted all necessary information,
b. Has
paid the appropriate fees, and
c. Is
in full compliance with this Chapter and all other City ordinances.
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The City Administrator may establish procedures for bulk processing
of applications and periodic payment of fees to avoid excessive processing
and accounting costs.
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2. It is
the intention of the City that proposed facilities will not impair
public safety, harm property values or significant sight lines or
degrade the aesthetics of the adjoining properties or neighborhood
and that the placement and appearance of facilities on private property
should be minimized and limited in scope to the extent allowed by
law to achieve the purposes of this Section. To accomplish such purposes
the City Administrator may impose conditions on facilities permits,
including alternative landscaping, designs or locations, provided
that such conditions are reasonable and necessary, shall not result
in a decline of service quality and are competitively neutral and
non-discriminatory.
3. An applicant
receiving a facilities permit shall promptly notify the City Administrator
of any material changes in the information submitted in the application
or included in the permit. The City Administrator may issue a revised
facilities permit or require that the applicant reapply for a facilities
permit.
4. The
City Administrator may deny an application, if denial is deemed to
be in the public interest, for the following reasons:
a. Delinquent
fees, costs or expenses owed by the applicant;
b. Failure
to provide required information;
c. The
applicant being in violation of the provisions of this Chapter or
other City ordinances;
d. For
reasons of environmental, historic or cultural sensitivity as defined
by applicable Federal, State or local law;
e. For
the applicant's refusal to comply with reasonable conditions required
by the City Administrator; and
f. For
any other reason to protect the public health, safety and welfare,
provided that such denial does not fall within the exclusive authority
of the Missouri Public Service Commission and is imposed on a competitively
neutral and non-discriminatory basis.
D. Permit Revocation And Ordinance Violations.
1. The
City Administrator may revoke a facilities permit without fee refund
after notice and an opportunity to cure, but only in the event of
a substantial breach of the terms and conditions of the permit or
this Chapter. Prior to revocation the City Administrator shall provide
written notice to the responsible person identifying any substantial
breach and allowing a reasonable period of time not longer than thirty
(30) days to cure the problem, which cure period may be immediate
if certain activities must be stopped to protect the public safety.
The cure period shall be extended by the City Administrator on good
cause shown. A substantial breach includes, but is not limited to,
the following:
a. A
material violation of the facilities permit or this Chapter;
b. An
evasion or attempt to evade any material provision of the permit or
this Chapter or the perpetration or attempt to perpetrate any fraud
or deceit upon the City or its residents;
c. A
material misrepresentation of fact in the permit application;
d. A
failure to complete facilities installation by the date specified
in the permit, unless an extension is obtained or unless the failure
to complete the work is due to reasons beyond the applicant's control;
and
e. A
failure to correct, upon reasonable notice and opportunity to cure
as specified by the City Administrator, work that does not conform
to applicable national safety ordinances, industry construction standards
or the City's pertinent and applicable ordinances including, but not
limited to, this Chapter, provided that City standards are no more
stringent than those of a national safety ordinance.
2. Any
breach of the terms and conditions of a facilities permit shall also
be deemed a violation of this Chapter and in lieu of revocation the
City Administrator may initiate prosecution of the applicant or the
facilities owner for such violation.
E. Appeals And Alternative Dispute Resolution.
1. Any
person aggrieved by a final determination of the City Administrator
may appeal in writing to the Board of Aldermen within five (5) business
days thereof. The appeal shall assert specific grounds for review
and the Board of Aldermen shall render a decision on the appeal within
fifteen (15) business days of its receipt affirming, reversing or
modifying the determination of the City Administrator. The Board of
Aldermen may extend this time period for the purpose of any investigation
or hearing deemed necessary. A decision affirming the City Administrator's
determination shall be in writing and supported by findings establishing
the reasonableness of the decision. Any person aggrieved by the final
determination of the Board of Aldermen may file a petition for review
pursuant to Chapter 536, RSMo., as amended, in the Circuit Court of
Gasconade County, Missouri. Such petition shall be filed within thirty
(30) days after the Board of Aldermen's final determination.
2. On agreement
of the parties and in addition to any other remedies, any final decision
of the Board of Aldermen may be submitted to mediation or binding
arbitration.
a. In
the event of mediation, the Board of Aldermen and the applicant shall
agree to a mediator. The costs and fees of the mediator shall be borne
equally by the parties and each party shall pay its own costs, disbursements
and attorney fees.
b. In
the event of arbitration, the Board of Aldermen and the applicant
shall agree to a single arbitrator. The costs and fees of the arbitrator
shall be borne equally by the parties. If the parties cannot agree
on an arbitrator, the matter shall be resolved by a three (3) person
arbitration panel consisting of one (1) arbitrator selected by the
Board of Aldermen, one (1) arbitrator selected by the applicant or
facilities owner and one (1) person selected by the other two (2)
arbitrators, in which case each party shall bear the expense of its
own arbitrator and shall jointly and equally bear with the other party
the expense of the third (3rd) arbitrator and of the arbitration.
Each party shall also pay its own costs, disbursements and attorney
fees.
[Ord. No. 1723 §4(C), 12-10-2007]
A. The following
general regulations apply to the placement and appearance of facilities:
1. Facilities
shall be placed underground, except when other similar facilities
exist above ground or when conditions are such that underground construction
is impossible, impractical or economically unfeasible, as determined
by the City and when in the City's judgment the above ground construction
has minimal aesthetic impact on the area where the construction is
proposed. Facilities shall not be located so as to interfere, or be
likely to interfere, with any public facilities or use of public property.
2. Facilities
shall be located in such a manner as to reduce or eliminate their
visibility. Non-residential zoning districts are preferred to residential
zoning districts. Preferred locations in order of priority in both
type districts are:
a. Thoroughfare
landscape easements,
c. Street
side yards on a corner lot behind the front yard setback. Placements
within side yards not bordered by a street or within front yards are
discouraged.
3. Facilities
shall be a neutral color and shall not be bright, reflective or metallic.
Black, gray and tan shall be considered neutral colors, as shall any
color that blends with the surrounding dominant color and helps to
camouflage the facilities. Sight-proof screening, landscape or otherwise,
may be required for facilities taller than three (3) feet in height
or covering in excess of four (4) square feet in size. Such screening
shall be sufficient to reasonably conceal the facility. A landscape
plan identifying the size and species of landscaping materials shall
be approved by the City Administrator prior to installation of any
facility requiring landscape screening. The person responsible for
the facilities shall be responsible for the installation, repair or
replacement of screening materials. Alternative concealment may be
approved by the City Administrator to the extent it meets or exceeds
the purposes of these requirements.
4. Facilities
shall be constructed and maintained in a safe manner and so as to
not emit any unnecessary or intrusive noise and in accordance with
all applicable provisions of the Occupational Safety and Health Act
of 1970, the National Electrical Safety Code and all other applicable
Federal, State or local laws and regulations.
5. No person
shall place or cause to be placed any sort of signs, advertisements
or other extraneous markings on the facilities, except such necessary
minimal markings approved by the City as necessary to identify the
facilities for service, repair, maintenance or emergency purposes
or as may be otherwise required to be affixed by applicable law or
regulation.
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If the application of this Subsection excludes locations for
facilities to the extent that the exclusion conflicts with the reasonable
requirements of the applicant, the City Administrator shall cooperate
in good faith with the applicant to attempt to find suitable alternatives,
but the City shall not be required to incur any financial cost or
to acquire new locations for the applicant.
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B. Any person
installing, repairing, maintaining, removing or operating facilities,
and the person on whose behalf the work is being done, shall protect
from damage any and all existing structures and property belonging
to the City and any other person. Any and all rights-of-way, public
property or private property disturbed or damaged during the work
shall be repaired or replaced and the responsible person shall immediately
notify the owner of the fact of the damaged property. Such repair
or replacement shall be completed within a reasonable time specified
by the City Administrator and to the City Administrator's satisfaction.
C. The applicant
shall provide written notice to all property owners within one hundred
eighty-five (185) feet of the site at least forty-eight (48) hours
prior to any installation, replacement or expansion of its facilities.
Notice shall include a reasonably detailed description of work to
be done, the location of work and the time and duration of the work.
D. At the
City's direction, a person owning or controlling facilities shall
protect, support, disconnect, relocate or remove facilities, at its
own cost and expense, when necessary to accommodate the construction,
improvement, expansion, relocation or maintenance of streets or other
public works or to protect the ROW or the public health, safety or
welfare.
E. If a
person installs facilities without having complied with the requirements
of this Chapter or abandons the facilities, said person shall remove
the facilities and if the person fails to remove the facilities within
a reasonable period of time, the City may, to the extent permitted
by law, have the removal done at the person's expense.
F. Facilities
shall be subject to all other applicable regulations and standards
as established as part of the City Code including, but not limited
to, building codes, zoning requirements and rights-of-way management
regulations in addition to the regulations provided herein.