[Ord. No. 3149, 11-15-2022]
The following words, terms, and phrases, when used in this Chapter,
shall have the meanings given to them in this Section, except where
context clearly indicates a different meaning:
Any equipment, materials, apparatuses, devices or facilities
that are:
Declared abandoned by the owner of such equipment or facilities;
No longer in active use, physically disconnected from a portion
of the operating facility or any other facility that is in use or
in service, and the owner or last owner of record maintained by the
City fails to respond within thirty (30) days of written notice that
said facility or equipment is still in use;
No longer capable of being used for the same or similar purpose
for which the equipment, apparatuses or facilities were installed;
Or as otherwise may be defined by applicable law.
Person owning or legally occupying any land abutting a public
right-of-way.
Any person directly impacted by an action or decision of
the City such that the person would have standing in a court of law
to challenge the action.
Any device that transmits and/or receives electromagnetic
wireless radio waves or signals for voice, data or video communications
purposes, including, but not limited to, television, text, AM/FM radio,
microwave, cellular telephone, communications service, or otherwise.
Any person requesting permission to occupy or operate facilities
using the right-of-way, or to work, excavate, or locate facilities
in the right-of-way.
Written document showing the consent of the owner of the
land, facility, structure or equipment housing device for the applicant
seeking to use the right-of-way under this Chapter, including the
terms and conditions which shall include rent, term and notice requirements.
The Board of Aldermen of the City of Parkville, Missouri.
The City of Parkville, Missouri, a municipal corporation
and any duly authorized representative.
The City Engineer of Parkville, Missouri, or an authorized
representative.
The Code of Ordinances of the City of Parkville, Missouri.
The Missouri Public Service Commission.
Transmission via facilities, in whole or in part, of any
writings, signs, signals, pictures, sounds, or other forms of intelligence
through wire, wireless, or other means, including, but not limited
to, any telecommunications service, enhanced service, information
service, or internet service, as such terms are now, or may in the
future, be defined under applicable law, and including all instrumentalities,
facilities, apparatus (communications facilities), and services (among
other things, the receipt, forwarding, and deliver of telecommunications)
incidental to such transmission or designed to directly or indirectly
facilitate or accept such transmission and shall also include "video
services" as defined in Section 67.2677, RSMo. The term "communications
service" does not include the rental of conduit or physical facilities.
Includes construct, install, erect, build, affix or otherwise
place any fixed structure or object, in, on, under, through or above
the right-of-way.
Calendar day unless otherwise specified.
Design and construction standards adopted by the City in Section 404.040 of the Code, as may be amended from time to time.
Reasonable standards as approved by the Director of Public
Works and on file in the office of the City Engineer for any installations
within the right-of-way which may, but are not required, to include
all or any portion of the following or similar codes, standards or
guidelines: Building codes and uniform development ordinances, outside
plant (OSP), utility and contractor industry standards, any Federal,
State or local government agency guidelines and standards such as
MoDOT, or MARC, the Federal Energy Regulatory Commission (FERC) and
the National Telecommunications and Information Administration (NTIA
of USDC), any standards or guidelines developed by the Missouri Association
of Municipal Utilities or other State counterparts, the American Public
Works Association, the American Public Power Association or their
International counterparts, private utility associations such as CTIA
(wireless industry). These design standards shall be in addition to
the Design and Construction Manual of the City and shall include all
the requirements of the Design and Construction Manual.
Director of Public Works, and chief management officer for
maintenance, operations, and safety within the public ROW.
Includes, but is not limited to, the following:
An unexpected or unplanned outage, cut, rupture, leak or any
other failure of an ROW-user facility that prevents or significantly
jeopardizes the ability of a ROW-user to provide service to customers;
An unexpected or unplanned outage, cut, rupture, leak or any
other failure of an ROW-user facility that results or could result
in danger to the public or a material delay or hindrance to the provision
of service to the public if the outage, cut, rupture, leak or any
other such failure of ROW-user facilities is not immediately repaired,
controlled, stabilized or rectified; or
Any occurrence involving an ROW-user facility that a reasonable
person could conclude under the circumstances that immediate and undelayed
action by the ROW-user is necessary and warranted.
Any act by which earth, asphalt, concrete, sand, gravel,
rock or any other material in or on the ground is cut into, dug, uncovered,
removed, tunneled into, bored into, graded, or otherwise displaced,
by means of any tools, equipment or explosives, except that the following
shall not be deemed excavation:
Any de minimis displacement or movement of ground caused by
pedestrian or vehicular traffic;
The replacement of utility poles and related equipment at the
existing general location that does not involve either a street or
sidewalk cut; or
Any other activity which does not disturb or displace surface
conditions of the earth, asphalt, concrete, sand, gravel, rock or
any other material in or on the ground.
Lines, pipes, irrigation systems, wires, cables, conduit
facilities, poles, towers, vaults, pedestals, boxes, appliances, antennas,
transmitters of any kind, gates, meters, appurtenances, duct, culvert,
tube, satellite dish, micro cell, pico cell, repeater, amplifier,
other device capable of assisting in the transmission or distribution
of a service or commodity, or other equipment used for or related
to providing service whether used privately or made available to the
public.
A service provider owning or possessing facilities in the
right-of-way.
Federal Communications Commission.
A negotiated and formal contract setting out the rights and
responsibilities of the ROW user which is for a set amount of time
and includes a franchise fee payable to the City and approved by the
Board of Aldermen of Parkville.
Any County, Township, City, Town, Village, school district,
library district, road district, drainage or levee district, sewer
district, water district, fire district or other municipal corporation,
quasi-municipal corporation or political subdivision of the State
of Missouri or of any other State of the United States and any agency
or instrumentality of the State of Missouri or of any other State
of the United States or of the United States.
The rights and obligations extended by City to an ROW-user
to own, construct, maintain and operate its structures, equipment,
landscaping, furnishings, and facilities within the ROW granted to
an ROW-user by the City upon application for and the granting of a
ROW permit, conditional use waiver and/or license, as may be applicable.
The procedural requirements for excavation and utility safety
established by Section 319.010, RSMo. et seq.
The area between a property line and the street curb or the
edge of pavement, sometimes called boulevards, tree-shelves or snow-shelves.
Includes Portland cement concrete pavement, asphalt concrete
pavement, asphalt treated road surfaces and any aggregate base material.
Any natural or corporate person, business association or
business entity, including, but not limited to, a corporation, a partnership,
a sole proprietorship, a political subdivision, a public or private
agency of any kind, a utility, a successor or assign of any of the
foregoing, or any other legal entity.
Any project undertaken by the City, or its agents, contractors,
or subcontractors, for the construction, reconstruction, maintenance,
or repair of any public infrastructure, and including without limitation,
streets, alleys, curbs, bridges, bikeways, parkways, sidewalks, sewers,
drainage facilities, traffic control devices, street lights, public
facilities, public buildings or public lands; provided that projects
undertaken by the City for the construction, reconstruction, maintenance,
or repair of any public infrastructure funded by, or substantially
by, user fees imposed upon those using the public infrastructure shall
not be deemed "public improvements" and shall not be exempt from the
permit requirements of this Chapter.
Any real property of the City that is not right-of-way.
A right-of-way (ROW) user providing service within the City
that does not have its own facilities in the right-of-way, but instead
uses the right-of-way by interconnecting with or using the network
elements of another ROW-user utilizing the right-of-way, and/or by
leasing excess capacity from a facility based service provider.
The process by which an excavated right-of-way and surrounding
area, including pavement, foundation, and green space is returned
to the same condition that existed before the commencement of the
excavation or work.
Generally public property vested in the City in trust for
the citizens, in fee or easement, to which the public has a right
to access and use for the purpose intended by the dedication, including,
but not limited to, the area on, below or above a public sidewalk,
roadway, highway, street or alleyway in which the City has an ownership
interest or right of management, but not including:
The airwaves above a public right-of-way with regard to cellular
or other non-wire telecommunications or broadcast service;
Easements obtained by utilities or private easements in platted
subdivisions or tracts;
Railroad rights-of-way and ground utilized or acquired for railroad
facilities unless the land or interest therein has been dedicated
to public use; or
Poles, pipes, cables, conduits, wires, optical cables, or other
means of transmission, collection or exchange of communications, information,
substances, data, or electronic or electrical current or impulses
utilized by a utility owned or operated by a governmental entity pursuant
to Ch. 91, RSMo.
The authorization to work, excavate, or locate facilities
in the right-of-way.
A person, its successors and assigns, that uses the right-of-way
for purposes of work, excavation, provision of services, or to install,
construct, maintain, repair facilities, equipment, furnishings, signs,
or structures thereon, above, or adjacent to for use by another identified
entity or person, for which a right-of-way permit and/or a temporary
traffic control permit is required, including, but not limited to,
landowners and service providers. An ROW-user shall not include ordinary
vehicular or pedestrian traffic. Individuals or entities entering
into a license agreement or conditional use waiver are considered
ROW users.
Excavation or work that makes no material change to the facilities
and does not disrupt traffic.
A financial guarantee sufficient as determined by the City
Engineer or designee of the Director of Public Works and in a form
approved by the City Attorney to guarantee that the right-of-way or
other public property will be returned to a condition which is the
same or better than at the time any excavation, construction, modification,
alteration, repair or use takes places or commences.
A commodity provided to a person by means of a delivery system
that is comprised of facilities located or to be located in the right-of-way,
including, but not limited to, gas, telephone, cable television, internet
services, open video systems, fiber optic, data communication service,
alarm systems, steam, electric, water, telegraph, data transmission,
petroleum pipelines, or sanitary sewerage.
Any person that is a provider of a service for or without
a fee that has the requisite certifications and authorizations from
applicable governmental entities, including the FCC, to provide such
service, including, but not limited to, every cable television service
provider, fiber optic/internet service provider, pipeline corporation,
gas corporation, electrical corporation, rural electric cooperative,
telecommunications company, water corporation, heating or refrigerating
corporation or sewer corporation under the jurisdiction of the public
service commission; every municipally owned or operated utility pursuant
to Ch. 91, RSMo., or pursuant to a charter form of government or cooperatively
owned or operated utility pursuant to Ch. 394, RSMo.; every street
light maintenance district; every privately owned utility; and every
other entity, regardless of its form of organization or governance,
whether for profit or not, which in providing a public utility type
of service for members of the general public, utilizes pipes, cables,
conduits, wires, optical cables, poles, or other means of transmission,
collection or exchange of communications, information, substances,
data, or electronic or electrical current or impulses, in the collection,
exchange or dissemination of its product or services through the public
rights-of-way. Service provider includes both facility based service
providers and reseller service providers.
The pavement and sub-grade of a City access, local, collector
or arterial roadway.
Obstructions which impede the use of the right-of-way by
others in any fashion but which are designed to remain less than sixty
(60) days.
The temporary management of motorized and non-motorized traffic
through the use of official traffic control devices, including, but
not limited to, signs, markings, fence, barricades, lights, delineators,
and channelizers, as necessary when the construction, repair, removal,
excavation, work, events, or other activity, whether within or adjacent
to the public right-of-way, impacts normal traffic conditions.
The written authorization for an ROW-user to act in a manner
that narrows, closes, re-directs, or otherwise impacts the normal
flow of vehicular traffic or pedestrian traffic on any public street
or sidewalk.
Types O and A soil as indicated in the USGS Soil Horizon
Chart shall be placed in the top six (6) inches of all excavation
outside of paved areas, including areas that will receive sod. Types
O and A soil is dark nutrient rich topsoil, free of rocks, clods,
and debris that is capable of establishing and sustaining grass.
Any act or omission in violation of any applicable law or
action that are not authorized by any applicable law, including this
Chapter.
The construction, installation, repair or maintenance of
any type of facility within the right-of-way, or alteration of the
right-of-way in any fashion that is not performed by the City or one
(1) of its contractors unless an exemption as provided in this Chapter
applies to the routine maintenance of the facility or alteration.
[Ord. No. 3149, 11-15-2022]
A.
This Chapter is enacted to define the authority of the City and its
officers and employees with regard to use, control and management
of the right-of-way. The right-of-way is a finite valuable public
resource that has required and will continue to require substantial
investment by the City and whose use by third parties or the City
is not unfettered with other restrictions imposed by law. In particular,
this Chapter is enacted to:
1.
Manage the right-of-way (ROW) to allow efficient location of
facilities and maximize services to the citizens of the City and maintain
a uniform design standard on the ROW.
2.
Allow for the maximum utilization of the City's right-of-way
to meet the increasing demands due to technological innovations.
3.
Maintain a competitively-neutral and non-discriminatory policy
to ROW-users and allow the citizens of the City to receive the benefits
of market competition.
4.
Facilitate orderly construction and maintenance of facilities
in the right-of-way, reduce damage to the facilities of ROW-users,
and minimize disruption of service to the citizens of the City.
5.
Encourage responsible construction and maintenance practices
in the City right-of-way.
6.
Ensure proper restoration of the City right-of-way following
construction and maintenance of right-of-way facilities.
7.
Minimize the physical disruption of the right-of-way and maintain
the aesthetic quality throughout the City.
8.
Minimize any impact to vehicular or pedestrian traffic within
the right-of-way.
9.
Maintain the property rights of abutting and adjoining land
and property owners as recognized in Barfield v. Sho-Me Power Electric
Coop, 852 F.3d 795 (8th Cir. 2017), and avoid any enlargement of right-of-way
user rights in right-of-way easement areas over those that were granted
or obtained at the time of acquisition as interpreted by the City
Engineer or Director of Public Works or a competent court of jurisdiction
in a final decision.
10.
Minimize physical disruption of the rights-of-way for other
users, the City, and travelers while maintaining aesthetic quality
throughout the City while also recognizing the rights of abutting
or adjoining land and property owners, including, but not limited
to, landscaping, uninterrupted use of and undamaged private sewer
laterals and waterlines, irrigation systems and storm pipes.
11.
Acknowledge the limit on the use of easements or right-of-way
to the purpose for which they were obtained as required by case law,
Section 523.283, RSMo., and to the extent permitted by law, prohibit
or not affirmatively permit different or new burdens not identified
or compensated for at the time of acquisition.
12.
To the extent permitted or required by law, protect land dedicated
or obtained for a particular purpose or with specific restrictions
of use from encroachments that are unwanted or unauthorized within
the easement or right-of-way or rights of the City as an owner from
utility uses purportedly mandated by regulations, administrative decisions
or legislation that are invalid or which have yet to be determined
to be lawful by a Court of final jurisdiction but are in dispute.
13.
Protect the authority of the City in a manner consistent with Federal and State law, including, but not limited to, statutory grants of authority and Article VI, Section 19 of the Missouri Constitution as amended 1971, and as required by Article III, Section 38(a)(prohibition on gifts or grants of property to private entities), as well as Article VI, Sections 23 and 25 (no grant or aid to corporations of public property), Article X, Section 16 and 21 of the Missouri Constitution and as recognized by various State and Federal courts.
14.
Protect the health, safety and welfare of the citizens of the
City by ensuring all installations and users to the greatest extent
possible are constructed and maintained in accordance with quality
engineering, industry and government standards.
15.
Ensure that attachment agreements are used to establish consent
of entities or persons using the facilities, structures or equipment
housing of others for such entity or person's use of the right-of-way.
16.
Maintain the City and the public's right to charge compensation
for the privilege to use the public and City's property for private
for-profit activities in the future.
17.
Avoid speculative construction and excavation use, or continued
occupation after use ceases, for a structure, facility or equipment,
of the limited, finite right-of-way asset of the City.
18.
Provide for a license for those who are granted a ROW permit
under this Chapter and setting out rights and responsibilities when
there is no separate valid and enforceable franchise granted by the
City for use of the ROW.
19.
Ensure that use of the ROW does not impede or violate the City's
zoning ordinances.
[Ord. No. 3149, 11-15-2022]
A.
Applicability. Except as provided for herein, and where limited by
applicable law, this Chapter shall apply to all excavations and all
use, construction, operation, and maintenance of facilities or structures
in the rights-of-way of the City. No person 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. Because numerous
types of users and uses of the rights-of-way may be subject to various
or changing regulatory schemes under Federal or State law, any such
limitation or qualification that may be applicable to less than all
users and uses of the rights-of-way are not duplicated herein, but
are nevertheless incorporated herein, whenever application is so required
by law, including, but not limited to, applicable provisions of Ch.
67, RSMo., and other applicable State and Federal law.
B.
Preemption. No provision of this Chapter shall apply to any circumstance
in which such application shall be unlawful under valid superseding
Federal or State law and, furthermore, if any Section, Subsection,
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, such provision
shall be automatically interpreted and applied as required by valid
law.
C.
Enforcement. The City may enforce any provision of this Chapter by
any lawful means available to it, including, but not limited to, a
Municipal Court citation or Circuit Court action and shall not be
limited in any fashion as well as utilizing any bond or security provided
to the City to ensure compliance with this Chapter. Should the City
need to file an enforcement action before any court or administrative
body, then the ROW-user or entity whose actions, inactions, or omissions
caused the City to enforce this Chapter shall pay to the City its
full costs, including attorneys' fees for such enforcement action.
D.
Eminent Domain. Nothing herein shall be deemed or construed to impair
or affect, in any way or to any extent, any right the City may have
to acquire the property of the ROW-user through the exercise of the
power of eminent domain, and nothing herein contained shall be construed
to contract away or to modify or abridge, either for a term or in
perpetuity, any power of eminent domain the City may have with respect
to any facility, system or property, or to alter in any way the interest
the City may have in any ROW, easements or other property over which
a structure(s), facilities or equipment may be placed.
[Ord. No. 3149, 11-15-2022]
Acceptance of the terms and conditions of this Chapter may be
acknowledged by the filing of a certificate of acceptance on a form
approved by the City Attorney's office and filing same with the
City Clerk or applying for, and being granted, a permit to construct,
install, repair, replace maintain or otherwise work in the City's
ROW for the purpose of constructing, installing, repairing, replacing,
or maintaining any structure, equipment or facility for any service
as defined herein regardless of the technology used. Upon such acceptance,
the ROW-user shall be bound to the terms and conditions set out herein
and as amended from time to time provided no substantive or material
rights are altered or restricted by such amendments. The granting
and acceptance of a franchise or license notwithstanding, any and
all ROW-users are subject to the City's Codes, including, but
not limited to, this Chapter and its zoning ordinances, State and
Federal law, and holding of a franchise or license shall not excuse
such compliance.
