Chapter 12.18
EXCAVATION IN THE CITY RIGHT-OF-WAY

Sections:

12.18.010    Definitions.

12.18.020    Excavation permits.

12.18.030    Permit application, review, and approval.

12.18.040    Permit fees.

12.18.050    Right-of-way restoration.

12.18.060    Inspection.

12.18.070    Other obligations.

12.18.080    Revocation or suspension and appeal.

12.18.090    Work done without a permit.

12.18.100    Penalty.

12.18.010 Definitions.

The definitions set forth in Section 12.16.010 apply to this chapter. (Ord. 2564-19 § 3 (part), 2019)

12.18.020 Excavation permits.

A.    Excavation Permit Required. Except as otherwise provided in this chapter or elsewhere in this code, no person shall excavate any right-of-way, city-owned property, or land in which the city has an easement interest without first having obtained an excavation permit from the city engineer. For city-owned property, a person who wishes to excavate on a portion of the land not located in the right-of-way shall enter into an easement, entry agreement pursuant to Section 2.80.010, license agreement, or similar type of agreement with the city before applying for a permit. The terms and provisions of such agreement 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 Section 12.15.010; the terms of any such agreement shall prevail in the event of any conflict with the code provisions. 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. No permit shall be required when the excavation is part of a project or work subject to an executed development agreement or subdivider’s agreement with the city.

B.    Area and Dates Specified. The excavation permit shall specify the completion date for the work and the area of the work. No permittee may perform any work or excavate outside the area or dates specified in the permit, except as provided herein. 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 without first having obtained an extension from the city engineer. A permittee shall request an extension before the expiration of the initial permit. The city engineer has the sole discretion to determine whether an extension should be granted. (Ord. 2592-20 §§ 8, 9 (part), 2020: Ord. 2564-19 § 3 (part), 2019)

12.18.030 Permit application, review, and approval.

A.    Application Information. An application for a permit shall be filed with the city engineer and shall contain, and will not be considered complete without, unless federal or state regulations require otherwise, the following information:

1.     Applicant’s name, street address, email address, and telephone number.

2.    Certificate(s) of insurance compliant with the city’s standards, which are set forth in Section 12.17.070(D)(14).

3.    Execution of an indemnification agreement with the terms set forth in Section 12.17.070(D)(5) and included in the application form prescribed by the city.

4.    Evidence that the applicant has registered with the city under Section 12.16.020 as applicable.

5.    Identification in detail of the location of the proposed project and any affected right-of-way, public utility easements, public trees, the location of all existing and proposed facilities or improvements within the project area, installation details, traffic control plans, proposed project dates, proposed excavations, and an explanation of how the project differs from plans submitted with registration, along with other details requested by the city engineer.

6.    A description of the proposed use(s) of the facilities or improvements to be installed in the right-of-way.

7.    If the proposed project involves the installation of a new or extension of an existing utility pole or tower in the right-of-way, the applicant must include all of the following:

a.    Scaled drawings of the proposed utility pole or tower and all proposed attachments and related facilities;

b.    Except in the case of a utility pole or tower extension, evidence sufficient to demonstrate that the applicant is prohibited from using an existing utility pole or tower (either owned by the applicant or a third party) because such use is technically infeasible, economically prohibitive, or prohibited by law;

c.    If the utility pole or tower exceeds a height of fifty (50) feet, the applicant shall also provide the following information:

i.    A description of the ice build-up mitigation techniques to be used where the utility pole or tower is adjacent to a sidewalk or other pedestrian walkway;

ii.    Evidence sufficient to demonstrate that the greater height is required to accomplish the applicant’s purposes; and

iii.    Evidence sufficient to demonstrate that the utility 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 or towers in nearby right-of-way;

d.    A structural analysis stamped by a professional engineer licensed in Wisconsin.

8.    Any other information as requested by the city engineer.

9.    The applicant shall indicate if any federal or state rules apply to the processing of the application, citation to the specific rule, and the basis for that conclusion.

10.    Applicable permit fees and costs as set forth in this chapter.

B.    Review and Approval. The city engineer shall review the application and plans submitted and issue or refuse to issue a permit based on the provisions of Section 12.18.080 within sixty (60) days of receiving a complete application in compliance with any applicable federal or state laws based on the type of facility, unless the city engineer and the applicant agree, in writing, to a longer review period. Any application indicating it is submitted under Wisconsin Statutes will be denied if it is incomplete to avoid automatic approval under the provisions of Section 66.0404, Wisconsin Statutes, while waiting for additional information from the applicant.

C.    Joint Applications.

1.    Joint Application. Registrants may jointly apply for permits to excavate the right-of-way or place facilities at the same place and time.

2.    Joint Projects with City. Registrants who join in a scheduled excavation performed by the city, whether the registrant has submitted a joint or a single application, are not required to pay the degradation portion of the permit fee.

3.    Shared Fees. Registrants who apply for permits for the same excavation may share in the payment of the permit fee. Registrants must agree among themselves as to the portion each will pay and indicate the same on their applications. (Ord. 2564-19 § 3 (part), 2019)

12.18.040 Permit fees.

A.    Permit Fee Calculation. The total permit fee shall be calculated by adding the administrative cost, restoration deposit, inspection deposit, and degradation fee, if applicable. The common council shall establish the excavation and facilities placement permit fee from time to time by resolution for each of the categories:

1.    Administrative. The city engineer’s estimate of time to review the permit and plans.

2.    Restoration Deposit. The city engineer’s estimate of the cost to restore the right-of-way.

3.    Inspection Deposit. The estimated cost for inspecting the interim and completed work and shall include inspections within and outside the pavement areas of the right-of-way and the size of the project.

4.    Degradation Fee. The general formula for computing the degradation fee for projects involving excavation of paved right-of-way shall be the cost per square yard for street, overlay, and seal coat multiplied by the appropriate depreciation rate for that street multiplied by the area of the patch. Depreciation schedules shall be calculated by the city engineer by type of street. The area of the patch shall generally be square and calculated by adding two feet to each side of the anticipated street cut and then, at the option of the city engineer, extending to the full pavement lane width.

B.    (Repealed by Ord. 2592-20).

C.    Payment of Permit Fees. No permit shall be issued until payment of applicable fees and deposits is received. If the cost of inspection exceeds the inspection deposit amount, the applicant or permittee shall pay the difference within thirty (30) days of demand or be subject to penalty or revocation of the permit.

D.    Refundability. Administrative and degradation fees are nonrefundable. The city shall deduct inspection fees from the inspection deposit; any remaining deposit shall be returned after the city completes its final inspection. The restoration deposit shall be held until the city approves the restoration of the right-of-way and may be held until the expiration of the guarantee period as set forth in Section 12.18.050(C). (Ord. 2592-20 §§ 10, 11, 2020; Ord. 2564-19 § 3 (part), 2019)

12.18.050 Right-of-way restoration.

A.    The permittee must complete the work and restore the general area of the work, right-of-way, and the surrounding areas, including the paving, its base, turf, and landscaping, to city specifications and permit conditions, if any, within the dates specified in the permit.

B.    The city engineer shall prescribe the manner and extent of the restoration either in written general procedures, on a case-by-case basis, or both.

C.    Guarantees. The permittee shall guarantee its restoration work for twenty-four (24) months following its completion. During this period, the permittee shall, upon written notification from the city engineer, correct all defective restoration work using the method required by the city engineer. The correction work shall be completed within ten business days of the receipt of the notice from the city engineer, not including days during which work cannot be done due to circumstances beyond the permittee’s control or when work was prohibited as unseasonable or unreasonable under Section 12.18.070(B).

D.    Failure to Restore. If the permittee fails to restore the right-of-way in accordance with city specifications or permit conditions, or fails to satisfactorily and timely complete corrections to restoration work required by the city engineer during the guarantee period, the city or its designee may perform such work. In that event, the permittee shall pay to the city, within thirty (30) days of date of invoice, the cost of restoring the right-of-way. The city may utilize the restoration deposit to pay the costs of restoration.

E.    City Restoration. A permittee may request to have the city restore the right-of-way. If the permittee requests to have the city restore the right-of-way, the city may accept or reject the request in its sole discretion. If the city accepts, the permittee must still submit all fees and deposits. If the deposits are insufficient to cover the costs, the permittee will be billed for the city’s costs and shall pay the amount thereof within thirty (30) days of date of invoice. (Ord. 2564-19 § 3 (part), 2019)

12.18.060 Inspection.

A.    Standards. The permittee shall perform all work, install, maintain, or remove all facilities in the right-of-way, and connect any utilities according to city specifications and/or in accordance with the conditions specified in the permit.

B.    Notice of Completion. When work under any permit issued hereunder is completed, the permittee shall notify the city engineer. The permittee shall certify, on forms provided by the city engineer, either that the work was completed in conformance with the plans and drawings approved by the city engineer when issuing the permit or shall submit as-built plans and drawings and list the ways in which the as-built plans and drawings differ from the approved plans and drawings. If the excavation of the right-of-way begins later or ends sooner than the date given on the permit, the permittee shall notify the city engineer of the actual commencement and end dates as soon as this information is known.

C.    Site Inspection. The permittee shall make the work site available to the city inspector and to all others as authorized by law for inspection at all reasonable times during the execution of and upon completion of the work.

D.    Restoration. The city inspector shall inspect the area of the work and accept the restoration when it is determined that proper restoration has been made.

E.    Authority of City Engineer. At any time, the city engineer may order the immediate cessation of any work that poses a threat to the life, health, safety, or well-being of the public. The city engineer may issue an order to the permittee to correct 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. Within ten business days after issuance of the order, the permittee shall present proof to the city engineer that the violation has been corrected. If such proof has not been presented within the required time, the city engineer may revoke the permit pursuant to Section 12.18.080. (Ord. 2592-20 § 12, 2020; Ord. 2564-19 § 3 (part), 2019)

12.18.070 Other obligations.

A.    Compliance with Other Laws. Obtaining an excavation permit in 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 city, 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 does the work.

B.    Prohibited Work. Except in an emergency or with the approval of the city engineer, no right-of-way excavation may be done when the ground is frozen or when conditions are unreasonable for such work. (Ord. 2592-20 § 13, 2020; Ord. 2564-19 § 3 (part), 2019)

12.18.080 Revocation or suspension and appeal.

A.    The city engineer may refuse to issue a permit or may revoke, suspend, or refuse to extend an existing permit if he or she finds any of the grounds stated below. The city engineer’s decision shall be in writing and shall state the reasons for the action taken.

1.    The applicant or permittee is required by Section 12.16.020 to be registered and has not done so;

2.    The permit application is incomplete unless federal or state regulations provide otherwise;

3.    The applicant or permittee is seeking to perform work not included in its construction and major maintenance plan required under Section 12.16.030, which work was reasonably foreseeable by the applicant or permittee at the time the plan was filed;

4.    The applicant or permittee is seeking to perform work that does not meet the standards set forth in one or more provisions of this chapter;

5.    Issuance of a permit for the requested date would interfere with an exhibition, celebration, festival, or other city-sponsored or approved event;

6.    Misrepresentation of any fact by the applicant or permittee;

7.    Prior failure of the applicant or permittee to maintain required deposits or insurance;

8.    Prior failure of the applicant or permittee to complete work within permitted time;

9.    The proposed activity is contrary to the public health, safety or welfare;

10.    The extent to which space is available in the right-of-way for which the permit is sought;

11.    The competing demands for the particular space in the right-of-way;

12.    The availability of other usable locations in the right-of-way or in other rights-of-way for the facilities of the permittee or applicant;

13.    If the permittee or applicant proposes to install a new pole in the right-of-way, the availability of other existing poles or towers owned by the permittee or applicant or by a third party;

14.    The applicability of ordinances or other regulations of the right-of-way that affect location of facilities in the right-of-way;

15.    The condition and age of the right-of-way and whether and when it is scheduled for total or partial reconstruction;

16.    The director of parks, recreation and forestry or his or her designee has not approved the issuance of the permit pursuant to Section 12.28.050; or

17.    The applicant or permittee is otherwise not in full compliance with the requirements of this code or state or federal law.

B.    Appeal to Administrative Appeals Board. Any person adversely affected by the decision of the city engineer may appeal that decision to the administrative appeals board, which may decide the issues de novo, and whose written decision will be the final decision of the city. The city elects not to be governed by Chapter 68, Wisconsin Statutes, in whole for an appeal under this chapter.

C.    Deadline to Appeal. Appeals must be filed within ten business days of the written decision of the city engineer. An extension may not be granted where extension would result in approval of the application by operation of law. (Ord. 2564-19 § 3 (part), 2019)

12.18.090 Work done without a permit.

A.    Emergency Situations.

1.    In an emergency, a person may proceed to take whatever actions are reasonably necessary to respond to the emergency; provided, that those actions do not unreasonably interfere with any city, other registrant’s, or the public’s use of the right-of-way. The person may not excavate to make permanent repairs without first obtaining a permit. Within two business days after the occurrence of the emergency, the person shall apply for the necessary permits, pay the associated fees, and otherwise fully comply with the requirements of this chapter.

2.    The city may take whatever action it deems necessary to protect the public safety as a result of the emergency, the cost of which shall be billed to the registrant, regardless of whether the facilities are damaged by natural forces or by a third party.

B.    Nonemergency Situations. Except in an emergency, any person who, without first having obtained the necessary permit, excavates in a right-of-way must subsequently register, if not already registered, and apply for a permit and shall, in addition to any penalties prescribed by ordinance, pay double the normal fee for such permit, deposit with the city engineer the fees necessary to correct any damage to the right-of-way, and comply with all other requirements of this chapter. If an after-the-fact permit application is denied, the person shall discontinue use of its facilities and immediately remove them from the right-of-way. (Ord. 2564-19 § 3 (part), 2019)

12.18.100 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 § 3 (part), 2019)