Chapter 12.15
EXCAVATION AND PLACEMENT OF FACILITIES IN THE CITY RIGHT-OF-WAY
Sections:
12.15.010 Findings, purpose, and applicability.
12.15.050 Designation of corridors and limitation of space.
12.15.060 Removal and relocation.
12.15.080 Storage and disposal of property.
12.15.090 Interference with other facilities during municipal construction.
12.15.110 Emergency notification.
12.15.010 Findings, purpose, and applicability.
In the exercise of its police powers, the city has priority over all other uses of the right-of-way. The purpose of this chapter and Chapters 12.16, 12.17, 12.18, and 12.19 is to provide the city with a process for managing and uniform standards for acting upon requests for the placement of facilities within the right-of-way, city-owned property, and land in which the city has an easement interest consistent with the city’s obligation to promote the public health, safety, and welfare; to manage the right-of-way, its property, its utilities, and its structural integrity; and to ensure that the public’s use is not obstructed or incommoded by the use of the right-of-way, city-owned property, or land in which the city has an easement interest for placement of facilities. The provisions of this chapter are applicable to any registration, excavation, or facilities placement in the right-of-way, on city-owned property, or land in which the city has an easement interest. All references in this chapter to “right-of-way” shall also apply to city-owned property and land in which the city has an easement interest unless specifically noted otherwise. For city-owned property, the terms and provisions of an easement, license agreement, or similar type of agreement between the city and any person may be more stringent than the relevant portions of this title, but cannot be less stringent unless the common council finds that a less stringent agreement is in the city’s best interests and does not conflict with the provisions of this section; the terms of any such agreement shall prevail in the event of any conflict with the code provisions. (Ord. 2592-20 § 1, 2020: Ord. 2564-19 § 1 (part), 2019)
12.15.020 Administration.
The city engineer and his/her designee are responsible for the administration of this chapter and Chapters 12.16, 12.17, 12.18, and 12.19. (Ord. 2564-19 § 1 (part), 2019)
12.15.030 Definitions.
The definitions set forth in Sections 12.16.010 and 12.17.010 apply to this chapter. (Ord. 2564-19 § 1 (part), 2019)
12.15.040 Nondiscrimination.
In establishing the rights, obligations, and conditions set forth in this chapter and Chapters 12.16, 12.17, 12.18, and 12.19, the city’s intent is to treat each applicant and right-of-way user in a competitively neutral and nondiscriminatory manner, to the extent required by law, while taking into account the unique technologies, situation, and legal status of each applicant or request for use of the right-of-way. (Ord. 2564-19 § 1 (part), 2019)
12.15.050 Designation of corridors and limitation of space.
A. Corridors.
1. The city engineer 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 will be placed within the right-of-way in the future. All permits issued by the city involving the installation or replacement of facilities shall designate the proper corridor for the facilities at issue consistent with the city engineer’s assignment.
2. Any person who has facilities in the right-of-way in a position at variance with the corridors established by the city 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 city 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 person.
B. Limitation of Space. To protect health, safety, and welfare, or when necessary to protect the right-of-way and its current use, the city engineer 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 requests. In making such decisions, the city engineer 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 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 city plans for public improvements and development projects determined to be in the public interest. (Ord. 2564-19 § 1 (part), 2019)
12.15.060 Removal and relocation.
A. Requirement. Except as prohibited by state or federal law, a person must promptly and at his or her own expense, with due regard for seasonal working conditions, permanently remove and relocate its facilities in the right-of-way whenever the city orders such removal and relocation and shall restore the right-of-way in accordance with city standards. The city may order removal and relocation to prevent the facility from interfering with a present or future city use of the right-of-way; a public improvement undertaken by the city; an economic development project in which the city has a financial interest or investment; when the public health, safety, or welfare require it; when the facility is abandoned; when necessary to prevent interference with the safety and convenience of ordinary travel over the right-of-way; or when the applicant is in violation of any provision of this chapter or Chapter 12.16, 12.17, 12.18, or 12.19. Notwithstanding the foregoing, a person shall not be required to remove or relocate its facilities from any right-of-way that has been discontinued or vacated in favor of a nongovernmental entity unless and until that entity pays the reasonable costs of removal or relocation to the person.
B. Order. The order for removal and relocation shall be in writing and include a description of the items to be removed and a reasonable due date for facility removal. The order shall be personally served or sent via certified mail, return receipt requested, to the facility owner or operator, registrant, or permittee.
C. City’s Right to Perform Removal. In the event that a person does not remove its facilities as ordered in this section, the city or its designee may perform the removal and bill the facility owner or operator, registrant, or permittee for the costs of removal. All costs shall be paid within thirty (30) days of the date of invoice. (Ord. 2564-19 § 1 (part), 2019)
12.15.070 Restoration.
In the event that a person removes or is required to remove a facility and/or relocate a facility from the right-of-way pursuant to Section 12.15.060, or a person causes damage due to his/her activities in the right-of-way related to facilities, towers, or utility poles, the person must restore the right-of-way to its prior condition in accordance with city specifications. If the person fails to make the restoration required by this section, the city or its designee may perform the restoration and bill the facility owner or operator, registrant, or permittee for the costs of removal. All costs shall be paid within thirty (30) days of the date of invoice. (Ord. 2592-20 § 2, 2020: Ord. 2564-19 § 1 (part), 2019)
12.15.080 Storage and disposal of property.
If the city removes a facility, the city shall store the aforementioned facility for thirty (30) days after taking possession of it. At the end of thirty (30) days, if the owner has not claimed the facility, the city may discard it, retain it, or sell it with all proceeds benefitting the city. (Ord. 2564-19 § 1 (part), 2019)
12.15.090 Interference with other facilities during municipal construction.
When the city performs work in the right-of-way and finds it necessary to maintain, support, shore, or move a registrant’s facilities, the city shall notify the local representative. The registrant or local representative shall meet with the city’s representative within one business day of notice and coordinate the protection, maintenance, supporting, and/or shoring of the registrant’s facilities. The registrant shall accomplish any needed work within seventy-two (72) hours from meeting, unless the city agrees to a longer period. In the event that the registrant does not maintain, support, shore, or move its facilities within the required time period, the city or its designee may perform the work and bill the registrant for the cost of the work. If the registrant completes the work outside the required time period, the city may bill the registrant for any additional costs the city incurs due to the delay caused by registrant. All costs shall be paid within thirty (30) days of the date of invoice. (Ord. 2564-19 § 1 (part), 2019)
12.15.100 Abandonment.
A. Cessation of Use. In the event that a permitted facility within the right-of-way is not in use for a continuous period of sixty (60) days or longer, the permittee must promptly notify the city and do one of the following:
1. Provide information satisfactory to the city engineer that the permittee’s obligations for its facilities under this chapter have been lawfully assumed by another permittee; or
2. Remove its facilities from the right-of-way within one year and perform the required restoration under Section 12.15.070, unless the city engineer waives this requirement or provides a later deadline, and post a bond or provide payment sufficient to reimburse the city for reasonably anticipated costs to be incurred in removing the facilities and undertaking restoration.
B. Abandoned Facilities. Facilities of a permittee who fails to comply with subsection (A) of this section and which, for one year, remain 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 city may, at its option:
1. Abate the nuisance and recover the cost of removal, restoration, and storage of removed facilities from the permittee or the permittee’s successor in interest;
2. Take possession of the facilities; and/or
3. Require removal of the facilities by the permittee or the permittee’s successor in interest.
C. Public Utilities. A public utility that is required to follow the provisions of Section 196.81, Wisconsin Statutes, must seek authorization from the PSCW to discontinue or abandon its facilities within ninety (90) days. (Ord. 2564-19 § 1 (part), 2019)
12.15.110 Emergency notification.
A person shall immediately call 911 when any emergency regarding its facilities or excavation occurs. (Ord. 2564-19 § 1 (part), 2019)
12.15.120 Public records.
Applications are public records that may be made publicly available pursuant to state and federal public records law. Notwithstanding the foregoing, the applicant may designate portions of the application materials that it reasonably believes contain proprietary or confidential information by clearly marking each portion of such materials accordingly, and the city shall endeavor to treat the information as proprietary and confidential, subject to applicable state and federal public records law and the city’s determination that the applicant’s request for confidential or proprietary treatment of the application materials is reasonable. The city shall not be required to incur any costs to protect the application from disclosure. (Ord. 2564-19 § 1 (part), 2019)
12.15.130 Record retention.
All permittees and registrants shall retain full and complete copies of all permits and other regulatory approvals issued in connection with the facility, which includes without limitation all conditions of approval, approved plans, resolutions, and other documentation associated with the facilities permit, registration, or regulatory approval. In the event the city cannot locate any such full and complete permits, registrations, or other regulatory approvals in its official records, and the permittee fails to retain full and complete records in the permittee’s files, any ambiguities or uncertainties that would be resolved through an examination of the missing documents will be conclusively resolved in favor of the city. (Ord. 2564-19 § 1 (part), 2019)
12.15.140 Penalty.
Any person, firm, partnership, or corporation who violates any part of this chapter shall be subject to the penalty and enforcement provisions in Chapter 1.12. (Ord. 2564-19 § 1 (part), 2019)