[HISTORY: Adopted by the Village Board of the Village of
Fredonia 4-7-2016 by Ord. No. 2016-03. Amendments noted where applicable.]
A.
Purpose and findings.
(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, degradation,
and excavations taking place to regulate the placement of facilities
in the rights-of-way to ensure that the rights-of-way remain available
for public services and are safe for public use, and to ensure that
facilities are timely maintained, supported, protected or relocated
to accommodate reconstruction or repairs. The taxpayers of the Village
bear the financial burden for the upkeep, maintenance and reconstruction
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 Village finds increased use of the public rights-of-way results
in increased costs to the taxpayers of the Village and that these
costs are likely to continue into the foreseeable future.
(3)
The Village finds that the above-ground use of public rights-of-way
creates special and unique public health, safety, and general welfare
concerns for the Village, including, but not necessarily limited to,
traffic safety, sight-line and vision triangle issues, break-away
design consistent with other public utility pole or structure requirements,
public snow plowing and snow storage, property access and public parking,
obstruction to municipal police, fire, and rescue services, and related
issues.
(4)
The Village finds that delays by occupants of the rights-of-ways
in maintaining, supporting, protecting or relocating facilities, if
they impact public construction projects, have the potential to significantly
increase public works project costs borne by the taxpayers. Moreover,
the Village finds that some right-of-way occupants have a history
of delays and nonresponsiveness.
(5)
The Village finds that right-of-way, by definition, is limited in
area, use and availability, and, as a result, requires regulation
and limitation of use and occupancy, subject to all applicable state,
federal, and constitutional laws and regulations and the provision
of all necessary utility services to the public.
(6)
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 registration, 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)
Degradation costs defined as depreciation caused to the roadway
in terms of decreased useful life due to excavations in the public
right-of-way.
(7)
In response to the foregoing facts and findings, the Village hereby
adopts this chapter relating to access to, administration of, and
permits to excavate, obstruct and/or occupy the public rights-of-way.
This chapter imposes reasonable regulations on the placement and maintenance
of equipment currently within its rights-of-way or to be placed therein
in the future. It is intended to complement the regulatory roles of
state and federal agencies.
(8)
The purpose of this chapter is to provide the Village a 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 chapter
provides for the health, safety and welfare of the residents of the
Village as they use the right-of-way of the Village, as well as to
ensure the structural integrity of the public rights-of-way.
B.
APPLICANT
BRIDGE
DEGRADATION
DEPARTMENT
DIRECTOR OF PUBLIC WORKS
EMERGENCY
EXCAVATE
FACILITIES
IN
LOCAL REPRESENTATIVE
MUNICIPAL CODE
OBSTRUCT
PERMITTEE
PERSON
PREQUALIFIED CONTRACTOR
PUBLIC UTILITY
REGISTRANT
REPAIR
RESTORE
RIGHT-OF-WAY
SECTION
VILLAGE
Definitions. The following definitions apply in this chapter. References
hereinafter to "sections" are, unless otherwise specified, references
to sections in this chapter. Defined terms remain defined terms whether
or not capitalized.
Any person requesting permission to excavate, obstruct and/or
occupy a right-of-way.
Any bridge or culvert or series of culverts.
The decrease in the useful life of the paved portion of the
right-of-way, excluding the sidewalk right-of-way, caused by an excavation
of the right-of-way, resulting in the need to reconstruct such right-of-way
earlier than would be required if the excavation did not occur.
The Department of Public Works of the Village.
The Village Director of Public Works or his/her designee.
A condition that (1) poses a clear and immediate danger to
life or health or of a significant loss of property; or (2) requires
immediate repair or replacement in order to restore service to a customer.
To dig into or in any way remove or physically disturb or
penetrate any part of a right-of-way.
All equipment owned, operated, leased or subleased in connection
with the operation of a public service or utility service, and shall
include, but is not limited to, poles, wires, pipes, cables, underground
conduits, ducts, manholes, vaults, fiber optic cables, lines and other
structures and appurtenances.
When used in conjunction with "right-of-way" means over,
above, within, on or under a right-of-way.
A local person or persons, or designee of such person or
persons, authorized by a registrant to accept service and to make
decisions for that registrant regarding all matters within the scope
of this chapter.
The Municipal Code of the Village of Fredonia, as amended.
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.
Any person to whom a permit to occupy, excavate or obstruct a right-of-way has been granted under this chapter or under Chapter 491, Streets and Sidewalks, of the Code.
Corporation, company, association, firm, partnership, limited
liability company, limited liability partnership and individuals and
their lessors, transferees and receivers.
A contractor approved by the Department on an annual basis
to work in the right-of-way.
Has the meaning provided in § 196.01(5), Wis. Stats.
Any person who has registered with the Village to have its
facilities located in any right-of-way.
To perform construction work necessary to make the right-of-way
usable for travel or its intended use according to Department specifications
or to restore equipment to an operable condition.
The process by which the excavated right-of-way and surrounding
area, including pavement and foundation, is reconstructed to Department
specifications.
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.
Without reference to the Municipal Code shall mean a section
within this chapter.
The Village of Fredonia, Wisconsin, a municipal corporation.
C.
Administration. The Director of Public Works or his/her designee
is responsible for administration of the rights-of-way and the permits
and ordinances related thereto.
A.
Each person who has, or seeks to have, facilities located in any right-of-way shall register with the Department and pay the fee set forth in § 444-4. Registration will consist of providing application information and paying a registration fee. This section shall not apply to those persons who have facilities in the right-of-way pursuant to a franchise or other agreement.
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 qualifies as a registrant,
is registered with the Department, or is a prequalified contractor.
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, construct sidewalks or driveways or other
similar activities. Persons performing such activities shall not be
required to obtain any permits under this chapter.
The information provided to the Department at the time of registration,
in order to qualify as a registrant, shall include, but not be limited
to, the following:
A.
Each registrant's name, Diggers Hotline registration certificate
number, address and e-mail address, if applicable, and telephone and
facsimile numbers.
B.
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 registration.
C.
A certificate of insurance on a form prescribed by the Department.
D.
If the registrant is a corporation, an LLC or LLP, a copy of any
certificate required to be filed under Wisconsin Statutes as recorded
and certified by the Secretary of State.
E.
A copy of the registrant's certificate of authority from the
Wisconsin Public Service Commission or other applicable state or federal
agency, where the person is lawfully required to have such certificate
from said Commission or other state or federal agency.
F.
Execution of an indemnification agreement in a form prescribed by
the Department.
G.
The registrant shall keep all of the information listed above current
at all times by providing to the Department information as to changes
within 15 working days following the date on which the registrant
has knowledge of any change.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. II)]
The Department shall charge an annual registration fee in an
amount as set forth in the Village's current Schedule of Fees[1] to recover the costs incurred by the Village for processing
and updating registration information.
[1]
Editor's Note: The Schedule of Fees is on file in the Village
office.
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 the registrant
of known construction plans will be useful to achieve this objective.
A.
Every registrant shall, at the time of registration and no later
than January 1 of each year, file a construction and major maintenance
plan with the Department. The Department shall make available at the
time of registration, if known and approved, the Department's
construction and major maintenance plan. The registrant's plan
and the Department's plan shall be submitted on a form prescribed
by the Department and shall contain the information determined by
the Department 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:
B.
By February 1 of each year, the Department will have available for
inspection in its office a composite list of all projects of which
the Department has been informed in the annual plans. All registrants
are responsible for keeping themselves informed of the current status
of this list.
C.
Thereafter, by February 15, each registrant may change any project
in its list and must notify the Department of all such changes in
said list. The Department will make all such changes available for
inspection in its office. Notwithstanding the foregoing, a registrant
may at any time join in a project of another registrant listed by
the other registrant or undertake any maintenance project not listed
in registrant's plan.
A.
Permit required. Except as otherwise provided in this chapter or
the Municipal Code, no person shall install facilities, excavate,
or otherwise occupy any right-of-way without first having obtained
a permit for same from the Department. 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 Department upon request.
B.
Permit application. Application for a permit shall be made to the
Department. Permit applications shall contain, and will be considered
complete only upon compliance with the requirements of the following
provisions:
(1)
Registration and qualification as a registrant with the Department
if required by this chapter.
(2)
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.
(3)
Payment of all money due to the Village for all of the following:
(a)
Applicable permit fees and costs as set forth below;
The permit fee shall be established by the Department in an
amount sufficient to recover the costs incurred by the Village. This
fee shall recover administrative and inspection costs, excavation
costs, as well as degradation costs, as defined below. Payment of
said fees shall be collected prior to issuance of the permit. However,
the Director of Public Works may 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.
A.
Waiving of fees. Fees shall not be waived unless the work involved
is a direct result of the Director of Public Work's demand that
facilities owned by a utility be removed or relocated or unless waived
by the Village Board upon review of the Director of Public Work's
decision.
B.
Fee schedule.
(1)
The minimum fee for each excavation permit for a single address shall
be as set forth in the Village's current Schedule of Fees. The fee
for a permit issued after commencing work, except in cases of emergency
as determined by the Director of Public Works, shall be double the
fees set forth herein. This permit fee shall be in addition to any
forfeiture provided elsewhere in the Municipal Code.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. II)]
(2)
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 Director of Public Works is
authorized to assess the actual cost of the 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 10% for administration.
C.
Village exemption. The Village and its contractors shall not pay
degradation fees for excavations due to general government functions.
D.
Permit fees paid for a permit that the Department has revoked are
not refundable.
A.
The permittee shall be required to repair the public right-of-way
to Department specifications, subject to inspection and acceptance
by the Department. In addition to repairing its own work, the permittee
must repair the general area of the work, and the surrounding areas,
including the paving and its foundations, to the specifications of
the Department. The Department shall inspect the area of the work
and accept the work when it determines that proper repair has been
made, per specifications of the Department.
B.
Guarantees. The permittee guarantees its work and shall maintain
it for 36 months following its completion. During this period it shall,
upon notification from the Department, correct all work to the extent
necessary, using the method required by the Department. Said work
shall be completed within 10 calendar days of the receipt of the notice
from the Department, not including days during which work cannot be
done due to circumstances constituting force majeure.
C.
Failure to repair/restore. If the Permittee fails to repair/restore
the right-of-way in the manner and to the condition required by the
Department, or fails to satisfactorily and timely complete all work
required by the Department, the Department 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 repairing/restoring the right-of-way.
A.
Notice of completion. When the work under any permit hereunder is
begun and completed the permittee shall notify the Department.
B.
Site inspection. Permittee shall make the work site available to
the Department and to all others as authorized by law for inspection
at all reasonable times during the execution of and upon completion
of the work.
C.
Authority of Department. 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 registrant or permittee for any work that does not conform to 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 10 days after issuance of the order, the registrant or permittee shall present proof to the Department that the violation has been corrected. If such proof is not presented within the required time, the Department may revoke the permit pursuant to § 444-12.
The cost of trimming trees around facilities is an ongoing expense
to the Village. Such costs will be determined and a fee to offset
costs may be assessed against permit holders in the future.
Obtaining a permit to excavate, install and/or occupy the right-of-way
does not relieve 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 performs the work.
A.
The Department 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:
(1)
The applicant or permittee is required to be registered and has not
done so.
(2)
Issuance of a permit or installation of facilities for the requested
date or location would interfere with an exhibition, celebration,
festival or other event.
(3)
Misrepresentation of any fact by the applicant or permittee.
(4)
Failure of the applicant or permittee to maintain required bonds
and/or insurance.
(5)
Failure of the applicant or permittee to complete work in a timely
manner.
(6)
The proposed activity is contrary to the public health, safety or
welfare.
(7)
The proposed activity requires aboveground structures causing safety
issues, including, but not limited to, sight-line safety, vision triangles,
break-away structures, public plowing and snow storage, obstruction
to municipal police, fire, and rescue services, and related issues
with the use of the right-of-way.
(8)
The extent to which right-of-way space where the permit is sought
is available.
(9)
The competing demands for the particular space in the right-of-way.
(10)
The availability of other locations in the right-of-way or in
other rights-of-way for the facilities of the permittee or applicant.
(11)
The applicability of Village ordinances or other regulations
of the right-of-way, including, but not limited to, §§ 86.16
(prohibiting interference with use of highway by the public) and 182.017
(prohibiting poles in front of residence or occupied business), Wis.
Stats., that affect the location, type, height, size and/or use of
facilities in the right-of-way.
B.
Discretionary issuance. The Department 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 ordinances or an order
of a court or administrative agency.
C.
Appeals. Any person aggrieved by a decision of the Department 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 10 days of the decision being appealed. Following
a hearing, the Village Board may affirm, reverse or modify the decision
of the Department.
A.
Emergency situations. Each registrant 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 registrant may proceed to take whatever actions
are necessary to respond to the emergency. Within two business days
after the occurrence of the emergency, the registrant shall apply
for the necessary permits, pay the fees associated therewith and otherwise
fully comply with the requirements of this chapter. If the Village
becomes aware of any emergency regarding a registrant's facilities,
the Department may attempt to contact the local representative of
each registrant affected or potentially affected by the emergency.
The Village may take such action as it deems necessary to protect
public safety as a result of the emergency, the cost of which shall
be borne by the registrant whose facilities occasioned the emergency.
B.
Nonemergency situations. Except in an emergency, any person who,
without first having obtained the necessary permit, excavates, installs
facilities within or otherwise attempts to occupy a right-of-way shall
be subject to a stop-work order or other appropriate legal remedy,
and must subsequently obtain a permit, and shall, in addition to any
penalties prescribed by the Municipal Code, pay double the normal
fee for said permit, pay double all the other fees required by this
chapter or other provisions of the municipal codes, deposit with the
Department the fees necessary to correct any damage to the right-of-way,
and comply with all of the requirements of this chapter.
A.
Underground. 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.
Limitation of space. The Department 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 determination, the
Department 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 public health, safety or welfare.
C.
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, the applicant shall pay a fee in
accordance with the Village's current Schedule of Fees[1] upon the granting of such permission to defray administrative
expense in the analysis and inspection of such installation; applicants
are to reimburse the Village for consultant fees, review time and
administrative costs. 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.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. II)]
[1]
Editor's Note: The Schedule of Fees is on file in the Village
office.
A registrant shall promptly and at its own expense maintain, support, protect or relocate its facilities in the right-of-way whenever the Village, or its agent, acting in its governmental capacity, requests such action to allow for public work in the right-of-way. The Village, or its agent, shall issue a due date for the work to the local representative of not less than 72 hours, which due date shall be reasonable and based upon the actions to be undertaken by the registrant. If requested, the registrant shall restore the right-of-way following the completion of the work. If a registrant fails to perform the actions required herein by the due date, in addition to all other available legal remedies available to the Village, the registrant shall be subject to forfeitures as provided in § 1-4, General penalty, of the Code. Notwithstanding the foregoing, a person shall not be required to remove or relocate its facilities from a right-of-way which has been vacated in favor of a nongovernmental entity unless the reasonable costs thereof are first paid to the person therefor.
In the event that a registrant does not proceed to maintain, support, protect or relocate its facilities as ordered in § 444-15, the Village may arrange to do the work and bill the registrant, said bill to be paid within 30 days of the date of mailing to the registrant.
A.
Discontinued operations. A registrant who has determined to discontinue
its operations in the Village must either:
(1)
Provide information satisfactory to the Department that the registrant's
obligations for its facilities under this chapter have been lawfully
assumed by another registrant; or
(2)
Submit to the Department a proposal and instruments for dedication
of its facilities to the Village. If a registrant proceeds under this
clause, the Village may, at its option:
(a)
Accept the dedication for all or a portion of the facilities;
or
(b)
Require the registrant, at its own expense, to remove the facilities
in the right-of-way at ground or above ground level; or
(c)
Require the registrant to post a bond or provide payment sufficient
to reimburse the Village for reasonably anticipated costs to be incurred
in removing the facilities. However, any registrant who has unusable
and abandoned facilities in any right-of-way shall remove it from
that right-of-way within two years, unless the Department waives this
requirement in writing.
B.
Abandoned facilities. Facilities of a registrant who fails to comply
with Subsection A(1)and which, for two years, remain unused shall
be deemed to be abandoned. Abandoned facilities are deemed to be a
public nuisance. In addition to any remedies or rights it has at law
or in equity, the Village may, at its option (i) abate the nuisance,
(ii) take possession of the facilities, or (iii) require removal of
the facilities by the registrant, or the registrant's successor
in interest.
The Village, by the granting of a permit to excavate, install
facilities within, obstruct and/or occupy the right-of-way, or by
registering a person under this chapter, does not surrender, in any
manner or to any extent lose, waive, impair or lessen the lawful powers
and rights which it now has or which may be 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 or of registration under this chapter, agrees
that all lawful powers and rights, regulatory powers, 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 permittee is
subject to the regulatory and police powers of the Village to adopt
and enforce general ordinances and ordinances necessary to the health,
safety and welfare of the public, and is deemed to agree to comply
with all applicable general ordinances and ordinances enacted by the
Village pursuant to such powers.
Except as otherwise provided herein, and in addition to all other legal remedies available to the Village, any person who violates this chapter or fails to comply with the provisions hereof shall be subject to forfeitures as provided in § 1-4, General penalty, of the Code.
