[1]
Editor's Note: This ordinance also repealed
former Art. VI, Easements, adopted 2-22-2005 by Ord. No. 2005-008.
A.
Purpose. The purpose of this section is to set forth general regulations applicable to Town rights-of-way and easements. This section is in addition to any other applicable state or federal statutes, rule or order or any other provision of the Ledgeview Municipal Code including the provisions of § 94-19 of this Code. This section is not intended to create any new rights, but instead to create additional enforcement mechanisms for the Town to protect the public interest in Town rights-of-way and easements. The provisions hereof shall not be applicable to 5G networks which shall be subject to the provisions of Sections 47 U.S.C. § 253 and 332 of the Federal Communications Act.
B.
Obstructions prohibited.
(1)
No improvements, including but not limited to structures, monuments, landscaping or trees, shall be erected in a Town right-of-way or easement created for the benefit of the public without the approval of the Zoning Administrator or his or her designee and, where applicable, compliance with the provisions of § 94-19 of this Code.
(2)
Unless such improvements are specifically dedicated
to the Town, any such approval shall be granted subject to a license
or easement agreement recorded in the office of the Brown County Register
of Deeds. If the improvement is located in a public right-of-way,
the agreement shall provide for removal of the improvement at the
sole discretion of the Town Board and that failure of the owner to
remove the structure, monument or landscaping in the time specified
by the agreement, or if necessary due to emergency, the Town may remove
the improvements and charge the cost of doing so to the owner's property
as a special charge under § 66.0627, Wis. Stats.
C.
Ditches and drainageways. No Town ditches or drainageways
shall be filled or otherwise obstructed without approval from the
Department of Public Works.
A.
Purpose.
(1)
The
operation of the Telecommunications Act of 1996 has resulted in increased
use of the public rights-of-way for the location and placement of
communications facilities and equipment resulting increase in costs
to the taxpayers of the Town which costs are likely to escalate in
the future. The excavation and occupancy of the public rights-of-way
causes direct and indirect costs to be borne by the Town and its taxpayers,
including but not limited to administrative costs associated with
public right-of-way projects, such as registration, permitting, inspection
and supervision, supplies and materials; management costs associated
with ongoing management activities necessitated by public right-of-way
user; repair costs to the roadway associated with the actual excavation
into the public right-of-way; and degradation costs defined as depreciation
caused to the roadway in terms of decreased useful life, due to excavations
into the public rights- of-way. The purpose of this section is to
set forth general regulations applicable to Town rights-of-way and
easements.
(2)
This
section is in addition to any other applicable state or federal statute,
rule or order or any other provision of the Ledgeview Municipal Code.
This section is not intended to create any new rights, but instead
to create additional enforcement mechanisms for the Town to protect
the public interest in Town rights-of-way and easements and to impose
reasonable regulations on the placement and maintenance of facilities
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. The Town's authority to enact this section
is pursuant, but not limited, to the following federal, state and
local authority: 47 U.S.C. § 253(c); § 62.11(5),
Wis. Stats.; § 66.045 Wis. Stats; § 66.048, Wis.
Stats.; § 86.16, Wis. Stats.; § 182.017, Wis.
Stats.; § 196.58(1), Wis. Stats.; and § 196.499(1),
Wis. Stats.
(3)
This
section is intended to provide the Town with a legal framework within
which to regulate and manage the public rights-of-way; to provide
for recovery of costs incurred by the Town; and to provide for the
health, safety and welfare of the residents of the Town as they use
the Town rights-of-ways and to ensure the structural integrity of
the Town's public rights-of-way. The Town desires to minimize and
anticipate the number of excavations taking place within Town rights-of-way
and to regulate the placement of facilities within the rights-of-way
to ensure that they remain available for public services. The taxpayers
of the Town bear the financial burden for the upkeep of the rights-of-way.
A primary cause for the early and excessive deterioration of its rights-of-way
is the frequent excavation thereof by persons who locate facilities
therein.
B.
ALTERNATIVE TELECOMMUNICATIONS UTILITY, OTHER
APPLICANT
DEGRADATION
DEPARTMENT
DEPARTMENT INSPECTOR
EMERGENCY
EXCAVATE
FACILITIES
IN
INDEMNIFIED PARTIES
LOCAL REPRESENTATIVE
OBSTRUCT
OCCUPY
PERMITTEE
PERSON
PSC
PUBLIC UTILITY
REGISTRANT
REPAIR
REPAIR BOND
RESTORE or RESTORATION
RESTORATION BOND
RIGHT-OF-WAY
SERVICE
SUPPLEMENTARY APPLICATION
TELECOMMUNICATIONS CARRIER
TELECOMMUNICATIONS PROVIDER
TELECOMMUNICATIONS RIGHTS-OF-WAY USER
TELECOMMUNICATIONS SERVICE
TELECOMMUNICATIONS UTILITY
UNUSABLE FACILITIES
UTILITY SERVICE
Definitions.
The following terms and phrases shall have the following described
meanings:
Shall have the meaning provided in Section 196.01 of the
Wisconsin Statutes.
Any person requesting permission to excavate, obstruct and/or
occupy a right-of-way.
The accelerated depreciation of the 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 Town of Ledgeview Department of Public Works.
Any person authorized by the Department to carry out inspections
related to the provisions of this chapter.
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.
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 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," over, above,
in, within, on or under a right-of-way.
The Town, its officers, boards, committees, commissions,
elected officials, employees, agents and representatives.
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.
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.
To dwell or reside above, on, in, or below the boundaries
of any public rights-of-way.
Any person to whom a permit to excavate or occupy a right-of-way
has been granted by the City under this chapter.
Municipality, corporation, company, association, firm, partnership,
limited liability company, limited liability partnership and individuals
and their lessors, transferees and receivers.
The Wisconsin Public Service Commission.
Shall have the meaning provided in Wis. Stats. § 196.01(5).
Any person who has registered with the Town to have its facilities
located in any right-of-way or to use or seek to occupy or use the
right-of-way or any facilities in a Town right-of-way.
To perform construction work necessary to make the right-of-way
usable for travel, according to Department specifications, or to return
facilities to an operable condition.
A performance bond, a letter of credit, or cash deposit posted
to ensure the availability of sufficient funds to assure that right-of-way
excavation repair work is completed in both a timely and quality manner,
per Department specifications.
The process by which an excavated right-of-way and surrounding
area, including pavement and foundation, is reconstructed according
to Department specifications.
A performance bond, a letter of credit, or cash deposit posted
to ensure the availability of sufficient funds to assure that right-of-way
excavation restoration work is completed in both a timely and quality
manner, per Department specifications.
The surface and space above and below a public roadway, highway,
street, bicycle lane and public sidewalk in which the Town has an
interest, including other dedicated rights-of-way for travel purposes.
Includes municipal sewer and water services and also includes,
except as provided herein, but is not limited to those services provided
by a public utility as defined in Wis. Stats. § 196.01(5);
telecommunications, pipeline, fire and alarm communications, water,
electricity, light, heat, cooling energy, or power services; the services
provided by a district heating or cooling system; and cable service
as defined and regulated under 47 U.S.C. §§ 521 through
573; provided, however, that wireless telecommunications service and
cellular mobile radio telecommunications (CMRS) services as defined
by Section 332(d) of the Federal Communications Act of 1996 [47 U.S.C.
§ 332(d)(1)] are excluded, unless these services have a
presence in the right-of-way.
An application made to excavate or obstruct more of the right-of-way
than allowed in, or to extend, a permit that had already been issued.
Shall have the meaning provided in § 196.01, Wis.
Stats.
Shall have the meaning provided in § 196.01, Wis.
Stats.
A person owning or controlling a facility in the public right-of-way,
or seeking to own or control a facility in the public right-of-way,
that is used or is intended to be used for transporting telecommunication
or other voice or data information. This includes Telecommunications
providers, utilities, ATUs, and carriers. For purposes of this chapter,
a cable television system defined and regulated under § 66.082(2)(d),
Wis. Stats., and telecommunication activities related to providing
natural gas or electric energy services, and which are not offered
for resale as telecommunications services, are not telecommunications
right-of-way users.
The offering for sale or the conveyance of voice, data or
other information at any frequency over any part of the electromagnetic
spectrum, including the sale of service for collection, storage, forwarding,
switching and delivery incidental to such communication and including
the regulated sale of customer premises equipment. "Telecommunications
service" does not include cable television service, wireless service
or broadcast service.
Shall have the meaning provided in § 196.01, Wis.
Stats.
Facilities in the right-of-way which have remained unused
for one year and for which the registrant is unable to provide proof
that it has either a plan to begin using them within the next 24 months
or a potential purchaser or user of the facilities.
Shall have the same meaning as provided in the definition
of "service" hereinabove.
C.
Administration.
The Town Department of Public Works is responsible for the administration
of all Town rights-of-way, and the permits and ordinances related
thereto.
D.
Registration
for right-of-way occupancy.
(1)
Registration.
Each person who occupies, uses, or seeks to occupy or use, the right-of-way
or any facilities in the right-of-way, including by lease, sublease
or assignment, or who has, or seeks to have, facilities located in
any right-of-way shall register with the Department in the manner
provided in this subsection hereof and pay the registration fee required
in this section.
(2)
Registration
prior to work. No person may construct, install, repair, remove, relocate,
or perform any other work on, or use any facilities or any part thereof
in any right-of-way without first being registered with the Department.
(3)
Exceptions.
Nothing herein shall be construed to repeal or amend the provisions
of any ordinance requiring persons to plant or maintain the tree lawn
in the area of the right-of-way between their property and the street
curb, construct sidewalks, install street signs or perform other similar
activities. Persons performing such activities shall not be required
to obtain any permits under this section.
(4)
Registration
information.
(a)
Information required. The applicant shall provide the following information
to the Department at the time of registration on forms provided by
the Department:
[1]
The applicant' s name, Diggers Hotline registration certificate number,
address and e-mail address, if applicable, and telephone and facsimile
numbers.
[2]
The name, address and e-mail address, if applicable, and telephone
and facsimile numbers of the applicant's 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.
[3]
Documentation to demonstrate to the satisfaction of the Town that
the applicant and any subcontractor of the applicant has sufficient
insurance coverage to cover any liability which might arise out of
their presence in the right-of-way.
[4]
If the applicant is a corporation, a LLC or LLP, a certificate of
good standing from the Wisconsin Department of Financial Institutions.
[5]
A copy of the applicant's certificate of authority from the Wisconsin
Public Service Commission or other applicable state or federal agency,
where the applicant is lawfully required to have such certificate
from said commission or other state or federal agency.
[6]
An indemnification agreement in the form prescribed by the Town.
(5)
Information updates. The applicant shall keep the information required in Subsection D(4)(a) above current at all times by providing the Department with any information changes within 15 business days following the effective date of such change.
(6)
Registration
fee. Each registrant shall annually renew its registration or discontinue
and properly abandon its facilities. The Town shall, from time to
time, by resolution, establish the registration fee in an amount sufficient
to recover the costs incurred by the Town for processing registrations.
This fee shall be computed as the average of labor costs, indirect
costs, and other costs associated with registration.
E.
Right-of-way
locations.
(1)
Fall
zone. Poles and other utility structures over 60 feet in height shall
be located so that all residential, commercial, retail or other occupied
buildings are outside the fall radius of the structure.
(2)
Breakaway
zone. Rigid nonbreakaway poles and other utility structures shall
be located a minimum of 10 feet from roadway curbs or shoulders and
behind existing or future sidewalks.
F.
Right-of-way
excavations.
(1)
Excavation
permit requirement. Except as otherwise provided in this chapter or
other chapters of the Town Code, no person shall excavate any right-of-way
or place facilities in a right-of-way that require excavation within
the right-of-way for placement purposes without first having obtained
an excavation permit from the Town. No person shall excavate the right-of-way
or maintain an excavation in the right-of-way beyond the date or area
specified in the excavation permit unless such person makes a supplementary
application for another excavation permit before the expiration of
the initial permit and a new permit or permit extension is granted.
The applicant for an excavation permit must also file and have in
place a right-of-way occupancy registration with the Town.
(2)
Excavation permit application. Application for an excavation permit shall be made to the Department and shall be accompanied by a right-of-way occupancy registration as required under Subsection D herein above and, on forms provided by the Department, contain the following information:
(a)
If the proposed project involves the installation of a pole or tower
in the right-of-way, the applicant must submit scaled drawings of
the proposed pole or tower and all proposed attachments.
(b)
The applicant shall identify in detail the location of the proposed
project and any affected right-of-way, public utility easements, and
the location of all existing and proposed facilities within the project
area in addition to installation details, traffic control plans and
other details requested by the Department.
(c)
If the proposed project involves the installation of a pole or tower
in the right-of-way, the applicant must submit evidence sufficient
to demonstrate that the applicant is prohibited from using an existing
pole or tower (either owned by the applicant or a third party) because
such use is technically infeasible, economically prohibitive, or prohibited
by law.
(d)
If the proposed project involves the installation of a pole or tower
in the right-of-way that is greater than 10 feet taller than existing
poles or towers in nearby right-of-way, the applicant must submit
evidence sufficient to demonstrate that:
[1]
The greater height is required to accomplish the applicant's purposes;
[2]
The applicant is prohibited from using existing poles or towers (either
owned by applicant or a third party) to accomplish its purposes because
such use is technically infeasible, economically prohibitive, or prohibited
by law;
[3]
The pole or tower, due to its height and size, poses no greater danger
to the health, safety, and welfare of the public than existing poles
in nearby right-of-way.
(3)
Excavation
permit fee.
(a)
Excavation fee. All Town right-of-way excavations shall be subject
to a fee as determined by the Town.
(b)
Excavation fee calculation. The excavation permit fee shall be established
by the Town in an amount sufficient to recover the costs incurred
by the Town for each of the following categories as provided herein:
[1]
Administrative: The general formula for computing the administrative
fee shall be the average per-permit costs for labor plus indirect
and other costs as determined by the Town.
[2]
Repair: No repair fee shall be charged; however, the permittee shall
be required to repair the public right-of-way to Town specifications,
subject to inspection and acceptance by the Department, and to pay
a degradation fee.
[3]
Degradation: The general formula for computing the degradation fee
shall be the based on the actual area of trench width multiplied by
length multiplied by the fee per square foot based on the roadway
Paser rating. Minimum trench width shall be two feet.
[4]
Measurements. The fee shall be calculated by adding two feet to each
side of the anticipated street cut and then, at the option of the
Department, extending to the full pavement lane width. Depreciation
schedules shall be provided by type of street.
(c)
Excavation permit fee computation. The total excavation permit fee
shall be calculated as follows: total excavation permit fee = administrative
cost + degradation fee.
(d)
Excavation permit fee schedules. The Town shall establish street
depreciation schedules for each Town road and street. The Department
may recalculate and establish, by resolution, a new street depreciation
schedules and excavation permit fee structure each year.
(e)
Town exemption. The Town and its contractors shall not be subject
to any administrative and degradation fees hereunder.
(f)
Payment of excavation permit fees. No excavation permit shall be
issued without the prior payment of all applicable fees, unless the
applicant shall agree, in writing, to pay such fees within 30 days
of billing therefor.
(g)
Nonrefundable fee. Excavation permit fees paid for an excavation
permit hereunder that has subsequently been revoked by the Department
are not refundable.
(4)
Right-of-way
excavation repair:
(a)
Repair requirements. All right-of-way excavations repairs shall be
subject to the following requirements:
[1]
General. The area of the repair patch shall generally be square.
[2]
Scope of repair. 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.
[3]
Standards. The permittee shall perform repairs according to the specifications
of the Department and in accordance with the conditions specified
in the excavation permit. The Department shall have the authority
to prescribe the manner and extent of the repair and may alter, change
or modify that manner and extent of repair based on its inspection
of the excavation site.
(b)
Repair completion. The work to be done under the excavation permit
issued hereunder with the repair of the right-of-way as required herein,
to be completed by the date specified in the excavation permit. The
completion date may be increased by as many days as work could not
be done because of circumstances beyond the control of the permittee
or when work was prohibited as unseasonable or unreasonable.
(c)
Repair bond. Unless the repairs work is to be done by the Town, the
permittee shall at the time of the issuance of the excavation permit
post a repair bond in an amount determined by the Town to be sufficient
to cover the full cost of repairing the right-of-way to Town specifications.
A repair bond shall be submitted each year with the right-of-way registration
form and associated documentation.
(d)
Repair inspection. The Department shall inspect the area of the work
and accept the work when it determines that proper repair has been
made in accordance with the specifications of the Department. Inspection
hereunder shall be subject to the following:
[1]
Notice of completion. When the work under any permit issued hereunder
is completed, the permittee shall notify the Department.
[2]
Site inspection. The 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.
[3]
Authority of Department. At the time of inspection, the Town may
order the immediate cessation of any work that poses a threat to the
life, health, safety, or well-being of the public. The Town may issue
an order to the registrant for any work that does not conform to the
applicable standards, conditions, or codes. The order shall state
that failure to correct the violation will be cause for revocation
of the permit and the possible call of the repair bond. Within 10
days after issuance of the order, the registrant shall present proof
to the Department that the violation has been corrected. If such proof
has not been presented within the time specified, the Department may
revoke the excavation permit, halt further work on the project and
call the repair bond.
(e)
Guarantees. The Ppermittee guarantees its work and that of its contractors
and subcontractors and shall maintain it for 60 months following its
completion, except for organic material, which shall be maintained
for 12 months. The permittee shall, upon notification from the Department,
correct all repair work to the extent necessary, using the method
required by the Department.
(f)
Town repair. A permittee may request that the Town repair the right-of-way.
If the Town accepts, the permittee shall be billed for the Town's
costs, and shall pay the amount thereof within 30 days of billing.
(g)
Failure to repair. If the permittee fails to repair the right-of-way
in the manner and to the condition required by the Department, or
fails to satisfactorily and timely complete all repair required by
the Department, the Town may, at its option, do such work. The permittee
shall be responsible for payment to the Town, within 30 days of billing,
all costs and expenses incurred by the Town to repair the right-of-way.
If the permittee fails to pay as required, the Town may exercise its
rights under the repair bond.
G.
Joint applications.
(1)
Joint
application. Registrants may jointly apply for permits to excavate
the right-of-way at the same place and time.
(2)
Town
projects. Registrants who join in a scheduled excavation performed
by the Town, whether or not it is a joint application by two or more
registrants or a single application, shall not be required to pay
the degradation portion of the excavation permit fee.
(3)
Shared
fees. Registrants who apply for permits for the same excavation, which
the Department does not perform, may share in the payment of the excavation
permit fee. Registrants must agree among themselves as to the portion
each will pay and indicate the same on their applications.
H.
Supplementary
applications.
(1)
Area
limitations. An excavation permit is valid only for the area of the
right-of-way specified in the permit. No Permittee may perform any
work or excavate outside the area specified in the excavation permit,
except as provided herein. Any permittee that determines that an area
greater than that originally specified in their excavation permit
application or excavation permit must be excavated must, before working
in that greater area, file for and receive an excavation permit extension
on forms provided by the Department as well as pay any additional
fees required thereby before expanding the original excavation or
excavating an area greater than that permitted under the original
excavation permit.
(2)
Limitation
on dates. An excavation permit is valid only for the dates specified
in the permit. No permittee may begin its work before the permit start
date or, except as provided herein, continue working after the end
date specified in the excavation permit. If a permittee does not finish
the work by the permit end date, it must apply for a new permit for
the additional time it needs and receive the new permit or an extension
of the old permit before working after the end date of the previous
permit.
(3)
Supplementary
application fees. A permittee shall pay all administration costs for
any additional permits. A permittee is not required to pay an additional
degradation fee for the same excavation, if such fee has already been
paid on the original permit.
(4)
Supplementary
notification. If the excavation of the right-of-way begins later or
ends sooner than the date given on the excavation permit, the permittee
shall notify the Department, in writing, of the accurate information
as soon as this information is known.
I.
Other obligations.
(1)
Compliance
with other laws. Obtaining a permit to excavate and/or occupy the
right-of-way does not relieve a permittee of its duty to obtain all
other necessary permits, licenses, and authority and to pay all fees
required by any other Town, county, state, or federal rules, laws,
or regulations. A permittee shall comply with all requirements of
local, state, and federal laws and shall perform all work in conformance
with all applicable codes and established rules and regulations. The
permittee is and shall remain responsible for all work done in the
right-of-way pursuant to its permit, regardless of who does the work.
(2)
Prohibited
work. Except in an emergency, or with the approval of the Department,
no right-of-way excavation may be done when seasonally prohibited
or when conditions are unreasonable for such work.
J.
Revocations,
suspensions, refusals to issue or extend permits.
(1)
Grounds.
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:
(a)
The applicant or permittee is required to be registered and has not
done so or the permit application is otherwise incomplete;
(b)
The applicant or permittee is seeking to perform work not included
in its construction and major maintenance plan required on file hereunder,
which work was reasonably foreseeable by the applicant or permittee
at the time said plan was filed;
(c)
Issuance of a permit for the requested date would interfere with
an exhibition, celebration, festival, or other event;
(d)
Misrepresentation of any fact by the applicant or permittee;
(e)
Failure of the applicant or permittee to maintain required bonds
and/or insurance;
(f)
Failure of the applicant or permittee to complete work in a timely
manner;
(g)
The proposed activity is contrary to the public health, safety or
welfare;
(h)
The extent to which space is available in the right-of-way for which
the permit is sought;
(i)
The competing demands for the particular space in the right-of-way
result in insufficient space for the proposed facilities;
(j)
The availability of other locations in the right-of-way or in other
rights-of-way for the facilities of the permittee or applicant;
(k)
If the permittee or applicant proposes to install a new pole or tower
in the right-of-way, the availability of other existing poles or towers
owned by the permittee or applicant or by a third party;
(l)
The applicability of ordinances or other regulations of the right-of-way
that affect location of facilities in the right-of-way;
(m)
The condition and age of the right-of-way, and whether and when it
is scheduled for total or partial reconstruction; or
(n)
The applicant or permittee is otherwise not in full compliance with
the requirements of this chapter or state or federal law.
(2)
Discretionary issuance. Notwithstanding Subsection J(1)(b), the Department may issue a permit where issuance is necessary to:
(a)
Prevent substantial economic hardship to a customer of the permittee
or applicant; or
(b)
Allow such customer to materially improve its public utility service;
or
(c)
Allow the permittee or applicant to comply with state or federal
law or Town ordinance or an order of a court or administrative agency.
(3)
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 first with the Town Administrator and then the Town Board.
A request for review shall be in writing and filed with the Town within
10 days of the date of the decision being appealed.
K.
Work done
without a permit.
(1)
Emergency
situations. Each registrant shall immediately notify the Town by verbal
notice on an emergency phone number provided by the Town 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 section. If the Town becomes aware of an
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 Town 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 registrant
whose facilities occasioned the emergency.
(2)
Nonemergency
situations. Except in an emergency, any person who, without first
having obtained the necessary permit, excavates a right-of-way must
subsequently register and apply for an excavation 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 section or other chapters of the Town Code, 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 section. If a subsequent
permit is denied or is not approved, the registrant shall discontinue
and abandon its facilities.
L.
Location
of facilities.
(1)
Placement
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 existing facilities shall be
placed, located and to the maximum extent possible contained underground
or contained within buildings or other structures in conformity with
all applicable codes.
(2)
Corridors.
(a)
Assignment by Department. The Department may assign specific corridors
within the right-of-way, or any particular segment thereof as may
be necessary, for each type of facility that is or, pursuant to current
technology, the Town expects will someday be located within the right-of-way.
(b)
Relocation. All excavation, obstruction, or other permits issued
by the Town involving the installation or replacement of facilities
shall designate the proper corridor for the facilities at issue consistent
with the corridors established by the Town shall, no later than at
the time of the next reconstruction or excavation of the area where
the facilities are located, move the facilities to the assigned position
within the right-of-way, unless this requirement is waived by the
Town for good cause shown, upon consideration of such factors as the
remaining economic life of the facilities, public safety, customer
service needs and hardship to the registrant.
(3)
Space
limitations. To protect health, safety, and welfare, or when necessary
to protect the right-of-way and its current use, the Department may
prohibit or limit the placement of new, replacement or additional
facilities within the right-of-way if there is insufficient space
to accommodate all of the requests to occupy and use the right-of-way.
In making such decisions, the Town shall strive, to the extent possible,
to accommodate all existing and potential users of the right-of-way,
but shall be guided primarily by considerations of the public interest,
the public's needs for the particular utility service, the condition
of the right-of-way, the time of year with respect to essential utilities,
the protection of existing facilities in the right-of-way, and future
Town plans for public improvements and development projects which
have been determined to be in the public interest.
M.
Removal
or relocation of facilities.
(1)
Removal or relocation order. Except as prohibited by state or federal law, a registrant must promptly, and at its own expense, with due regard for seasonal working conditions, permanently remove and relocate its facilities in the right-of-way upon written direction from the Department directing either removal and relocation. The removal or relocation order from the Department shall identify the factor or factors from Subsection M(2) that necessitate the removal or relocation of the registrant's facilities.
(2)
Factors.
The Department may issue a removal or relocation order to prevent
interference by the registrant's facilities with or on the basis of
any of the following:
(a)
A present or future Town use of the right-of-way;
(b)
A public improvement undertaken by the Town;
(c)
An economic development project in which the Town has an interest
or investment;
(d)
When required for purposes of public health, safety or welfare in
either an emergency or nonemergency situation; or
(e)
When necessary to prevent interference with the safety and convenience
of ordinary travel within the right-of-way.
(3)
Site
restoration. Following removal or relocation of its facilities, the
registrant shall restore the site to its original condition, unless
otherwise directed by the Department.
(4)
Appeals.
Except in an emergency situation, a registrant receiving a removal
or relocation order from the Department shall have a right to appeal
such order. The request for review shall first be reviewed by the
Town Administrator. The Town Administrator's decision may be appealed
in writing to the Town Board. All requests for review shall be in
writing and filed with the Town within 10 days of the date of the
decision being appealed.
(5)
Town
construction. When the Town performs work in the right-of-way and
finds it necessary to maintain, support, shore, or move a registrant's
facilities, the Town shall notify the registrant. Except in an emergency,
the registrant shall meet with the Town within 24 hours to coordinate
the protection, maintenance, supporting, and/or shoring of the registrant's
facilities. Except in an emergency, the registrant shall accomplish
the needed work within 72 hours, unless the Town agrees to a longer
period. In the event that the registrant does not proceed to maintain,
support, shore or move its facilities, the Town may take such action
on its own with all costs thereof and therefor incurred by the Town
to be charged to the registrant.
N.
Indemnification.
By registering with the Town, or by accepting a permit under this
section, a registrant or permittee agrees to indemnify, defend, and
hold harmless the Town and its indemnified parties from and against
all loss or expense, including liability costs and actual reasonable
attorney's fees, by reason of any claim or suit, or of liability imposed
by law upon an indemnified party for damages because of bodily injury,
including death at any time resulting therefrom, sustained by any
person or persons or on account of damages to property, including
loss of use thereof, arising from, in connection with, caused by or
resulting from the registrant's or permittee's acts or omissions in
the exercise of its rights under this section, whether caused by or
contributed to by the Town, its agents or employees.
O.
Abandoned
facilities.
(1)
Discontinued
operations. A registrant who has determined to discontinue its operations
in the Town must either:
(a)
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
(b)
Submit to the Department a proposal and instruments for dedication
of its facilities to the Town. If a registrant proceeds under this
clause, the Town, at its option:
[1]
Accept the dedication for all or a portion of the facilities; or
[2]
Require the registrant, at its own expense, to remove the facilities
in the right-of-way at ground or above ground level; or
[3]
Require the registrant to post a bond or provide payment sufficient
surety to the Town to reimburse the Town for reasonably anticipated
costs to be incurred in removing the facilities.
(2)
Abandoned facilities. Facilities of a registrant who fails to comply with Subsection O(1) above and, for a period of 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 Town may, at its option, upon written notice to the registrant:
(3)
Public
utilities. This subsection shall not apply to a public utility that
is required to follow the provisions of § 196.81, Wis. Stats.
