Chapter 12.19
FACILITIES PLACEMENT IN THE CITY RIGHT-OF-WAY

Sections:

12.19.010    Definitions.

12.19.020    Facilities placement permits.

12.19.030    Administration.

12.19.040    Application.

12.19.050    Application processing, refusal to issue, revocation, and appeal.

12.19.060    General standards.

12.19.070    Expiration, removal, and failure to obtain permit.

12.19.080    Penalty.

12.19.010 Definitions.

The definitions set forth in Sections 12.16.010 and 12.17.010 apply to this chapter. (Ord. 2564-19 § 4 (part), 2019)

12.19.020 Facilities placement permits.

A.    Applicability. No person shall place or modify facilities in a right-of-way, on city-owned property, or on land in which the city has an easement interest without first having obtained a facilities placement permit. For city-owned property, a person who wishes to place a facility on a portion of the land not located in the right-of-way shall enter into a license agreement, easement agreement, or similar type of agreement with the city before applying for a permit. The terms and provisions of such agreement may be more or less stringent than the relevant portions of this title and 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.

B.    Exemption. The provisions of this chapter do not apply to the following:

1.    Wireless telecommunications facilities that are subject to the permitting process in Section 12.17.030.

2.    Placement or modification of a facility by city staff or any person performing work under contract with the city.

3.    Modification of an existing facility that makes no material change to the footprint of a facility or to the surface or subsurface of a public street if the activity does not disrupt or impede traffic in the traveled portion of a street and if the work does not change the visual or audible characteristics of the facility.

4.    When the facility placement is part of a project or work subject to an executed development agreement or subdivider’s agreement with the city. (Ord. 2592-20 § 14, 2020; Ord. 2564-19 § 4 (part), 2019)

12.19.030 Administration.

A.    Administrator. The city engineer is responsible for administering this chapter.

B.    Powers. As part of the administration of this chapter, the city engineer may:

1.    Interpret the provisions of this chapter.

2.    Develop forms and procedures for submission of applications for permits consistent with this chapter.

3.    Collect any fee required by this chapter.

4.    Require, as a condition of completeness of any application, notice to members of the public that may be affected by the placement or modification of the facility that is the subject of the permit application.

5.    Establish deadlines for submission of information related to an application and extend or shorten deadlines where appropriate and consistent with state and federal laws and regulations.

6.    Issue notices of incompleteness or requests for information in connection with any permit application.

7.    Select and retain an independent consultant with expertise in utilities to review any issue that involves specialized or expert knowledge in connection with any permit application.

8.    Coordinate and consult with other city staff, committees, and governing bodies to ensure timely action on all other required permits under this code.

9.    Subject to appeal as provided in Section 12.19.050, determine whether to grant, grant subject to conditions, or deny an application.

10.    Take such other steps as may be required to timely act upon permit applications, including issuing written decisions and entering into agreements to mutually extend the time for action on an application. (Ord. 2564-19 § 4 (part), 2019)

12.19.040 Application.

A.    Content. To be considered complete, an application must contain:

1.    All information required pursuant to this chapter.

2.    The name of the applicant (including any corporate or trade name), and the name, address, email address, and telephone number.

3.    A separate and complete description of each proposed facility and the work that will be required to install or modify it, including but not limited to detail regarding proposed excavations, if any; detailed site plans showing the location of the facility and technical specifications for each element of the facility, clearly describing the site and all structures and facilities at the site before and after installation or modification and identifying the owners of such preexisting structures and facilities; and describing the distance to the nearest residential dwelling unit. Before and after three hundred sixty (360) degree photo simulations must be provided for each utility pole, tower, structure, and aboveground equipment.

4.    A copy of the registrant’s certificate of authority from the PSCW or other applicable state or federal agency if the registrant is required to have such a certificate.

5.    To the extent that filing the facilities placement application establishes a deadline for action on any other permit that may be required in connection with the facility, the application must include complete copies of applications for every required permit, including without limitation electrical permits, building permits, traffic control permits, and excavation permits, with all design engineering completed and with all fees associated with each permit.

6.    A certification by a registered and qualified engineer that the installation can be supported by and does not exceed the tolerances of the structure on which it will be mounted and that all elements of the facility comply with applicable safety standards.

7.    Payment of all required fees.

8.    If an applicant contends that denial of the application would prohibit or effectively prohibit the provision of service in violation of federal law, or otherwise violate applicable law, the application must provide all evidence on which the applicant relies in support of that claim. Applicants are not permitted to supplement this evidence if doing so would prevent the city from complying with any deadline for action on an application.

B.    Waivers. Requests for waivers from any requirement of this section shall be made in writing to the city engineer. The city engineer may grant a request for waiver if it is demonstrated that, notwithstanding the issuance of the waiver, the city will be provided with all information necessary to understand the nature of the construction or other activity to be conducted pursuant to the facilities placement permit sought.

C.    Fees. Applicant must provide an application fee, as calculated by the city engineer, which shall include all costs reasonably incurred in reviewing the application, including costs incurred in retaining outside consultants, and an inspection deposit for the cost of inspecting the work. Additionally, if the applicant or permittee seeks to attach a facility to a city-owned structure, the applicant or permittee shall pay an annual fee of two hundred fifty dollars ($250.00) per facility that is located in the city right-of-way, but not city-owned land. (Ord. 2592-20 § 15, 2020; Ord. 2564-19 § 4 (part), 2019)

12.19.050 Application processing, refusal to issue, revocation, and appeal.

A.    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 this code 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 the 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.

B.    Written Decision. In the event that an application is denied, or approved with conditions beyond the standard permit conditions set forth in Section 12.19.060(D), the city engineer shall issue a written decision with the reasons therefor, supported by substantial evidence contained in a written record.

C.    Grounds. The city engineer may refuse to issue, revoke, suspend, or refuse to renew 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 actions 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 place facilities that do not meet the standards set forth in one or more provisions of this chapter;

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

5.    The proposed facility is contrary to the public health, safety, or welfare;

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

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

8.    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;

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

10.    The permittee or applicant failed to comply with the conditions of the permit or applicable federal, state, or local laws, rules, or regulations.

D.    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. An appeal by an infrastructure provider must be taken jointly with the service provider that intends to use the facility. The city elects not to be governed by Chapter 68, Wisconsin Statutes, in whole for an appeal under this chapter.

E.    Deadline to Appeal. All appeals must be filed within ten business days of the written decision of the city engineer. (Ord. 2564-19 § 4 (part), 2019)

12.19.060 General standards.

A.    Generally. Facilities shall meet the minimum requirements set forth in this chapter in addition to the requirements of any other applicable law or regulation.

B.    Regulations. The decisions on facilities permits shall, at a minimum, ensure that the requirements of this chapter are satisfied, unless it is determined that the applicant has established that denial of an application would, within the meaning of federal or state law, prohibit or effectively prohibit the provision of a utility service, or otherwise violate applicable laws or regulations. If that determination is made, the requirements of this chapter and the facilities regulations may be waived, but only to the extent required to avoid the prohibition.

C.    Standards.

1.    Facilities shall be installed and modified in a manner that:

a.    Minimizes risks to public safety;

b.    Ensures that placement of facilities on existing structures is within the tolerance of those structures;

c.    Avoids placement of aboveground facilities or installation of new support structures or equipment cabinets in underground areas in the public right-of-way;

d.    Maintains the integrity and character of the neighborhoods and corridors in which the facilities are located;

e.    Ensures that installations are subject to periodic review to minimize the intrusion on the right-of-way;

f.    Ensures that the city bears no risk or liability as a result of the installations; and

g.    Ensures that applicant’s use does not inconvenience the public, interfere with the primary uses of the right-of-way, including existing utilities, or hinder the ability of the city or other government entities to improve, modify, relocate, abandon, or vacate the right-of-way or any portion thereof, or to cause the improvement, modification, relocation, vacation, or abandonment of facilities in the right-of-way. Specifically, the applicant’s use shall comply with the city’s Public Infrastructure and Development Handbook regarding placement of utilities in the public right-of-way and shall not encroach within five feet of an existing city utility.

2.    No facilities permit shall be issued unless the applicant has immediate plans to use the proposed facility or has a contract with a utility service provider that has immediate plans to use the proposed facility. Facilities permit applicants shall attach their contract with the utility service provider to their facilities permit application.

3.    Installation of new and modification of existing facilities shall meet the following standards:

a.    Facilities and support structures, towers, and utility poles shall not obstruct, impede, or hinder vehicular, pedestrian, or bicycle travel or public safety within the right-of-way, except for authorized temporary lane or sidewalk closures.

b.    Facilities and support structures, towers, and utility poles shall not be located within vision setback lines as set forth in Section 17.112.010(B).

c.    Facilities and support structures, towers, utility poles, and any other ground-mounted equipment shall comply with the requirements of the Americans with Disabilities Act of 1990, as it is from time to time amended.

d.    New facilities and support structures, towers, and utility poles shall not be located directly in front of any existing residential or commercial structure.

e.    Rigid nonbreakaway poles and other support structures or towers shall be located a minimum of ten feet away from roadway curbs or shoulders, underground facilities, and behind existing or future sidewalks.

f.    The height of a facility, support structure, tower, or utility pole may not exceed the greater of fifty (50) feet above ground level or ten feet above the tallest existing support structure, tower, or utility pole that is in place on the effective date of the ordinance codified in this chapter and that is located in the same right-of-way and within five hundred (500) feet of the facility that is the subject of the application. The city engineer may waive this requirement upon consideration of such factors as whether the greater height is necessary and convenient to the provision of utility service to the public and/or will avoid the need for an additional site; whether the proposed facility will be located in a commercial, industrial, or nonresidential area; whether greater separation is required to avoid interference with other equipment on the pole or facility; whether a building or structure is within the fall zone radius of the facility, support structure, tower, or utility pole; and whether nearby buildings are taller than fifty (50) feet.

g.    Equipment mounted to support structures must be a minimum of ten feet above any pedestrian or bicycle thoroughfare or trail and a minimum of twenty (20) feet above any traffic lane.

h.    Unless in conflict with state or federal law, the installation of new facilities and replacements of existing facilities shall be placed underground when proposed in an area where utilities or other equipment in the right-of-way are primarily located underground. In all other areas, facilities shall be placed underground to the extent feasible. All installations shall be in accordance with the State Electrical Code. Additional expense to install and maintain an underground equipment enclosure does not exempt an applicant from this requirement, except where the applicant demonstrates by clear and convincing evidence that this requirement will effectively prohibit the provision of utility services. Nothing in this subsection is intended to require the applicant to install any electric meter underground.

i.    All ground-mounted equipment shall be contained in a secured equipment shroud or cabinet to prevent public safety risks and unauthorized access. Any cables and conduits associated with the equipment shall be concealed from view.

j.    All facilities and support structures, towers, and utility poles shall have subdued colors and nonreflective materials that blend with the materials and colors of the surrounding area and structures.

k.    The owner and/or operator must post an identification sign at each facility, including current owner/operator emergency telephone numbers. The design, materials, colors, and location of the identification signs shall be subject to city review and approval. If at any time a new owner or operator takes over operation of an existing facility, the new owner or operator shall notify the city of the change in operation within thirty (30) days and the required and approved signs shall be updated within thirty (30) days to reflect the name and phone number of the new owner and/or operator. The colors, materials and design of the updated signs shall match those of the required and approved signs. No sign shall be greater than two square feet in size.

l.    Any proposed pruning of trees, shrubs, or other landscaping already existing in the right-of-way must be noted in the application and approved by the city.

D.    Standard Facilities Permit Conditions. All facilities permits under this chapter are issued subject to the following minimum conditions:

1.    Compliance. The permittee shall at all times maintain compliance with all applicable federal, state, and local laws, regulations, and other rules.

2.    Term. A facilities permit shall be valid in perpetuity from the date of issuance unless revoked pursuant to Section 12.17.080(D) or surrendered.

3.    Contact Information. The permittee shall at all times maintain with the city accurate contact information for the permittee and all utility service providers making use of the facility, which shall include a phone number, mailing address, and email address for at least one natural person.

4.    Emergencies. The city shall have the right to support, repair, disable, or remove any elements of the facilities in emergencies or when the facility threatens imminent harm to persons or property.

5.    Indemnification. The permittee, by submitting an application for a facilities permit under this chapter, agrees to indemnify, defend, and hold harmless the city, its elected and appointed officials, officers, employees, agents, representatives, and volunteers (collectively, the “indemnified parties”) from and against any and all suits, actions, legal or administrative proceedings, claims, demands, damages, liabilities, interest, attorneys’ fees, costs, and expenses of whatsoever kind or nature in any manner caused in whole or in part, or claimed to be caused in whole or in part, by reason of any act, omission, fault, or negligence, whether active or passive, of the permittee or anyone acting under its direction or control or on its behalf, even if liability is also sought to be imposed on one or more of the indemnified parties. The obligation to indemnify, defend, and hold harmless the indemnified parties shall be applicable even if the liability results from an act or failure to act on the part of one or more of the indemnified parties. However, the obligation does not apply if the liability results from the sole negligence or willful misconduct of an indemnified party.

6.    Adverse Impacts on Adjacent Properties. The permittee shall undertake all reasonable efforts to avoid undue adverse impacts to adjacent properties and/or uses that may arise from the construction, operation, maintenance, modification, or removal of the facility. At least three business days prior to any construction or placement of the facility, the permittee shall mail a notice to all property owners adjacent to the facility placement location. The notice shall contain the facility’s location, its description and scale image, and an email address and phone number for a representative of the applicant who will be available to answer questions from members of the public about the proposed project.

7.    General Maintenance. The facility and any associated structures shall be maintained in a neat and clean manner and in accordance with all approved plans and conditions of approval.

8.    Graffiti Removal. All graffiti on facilities shall be removed at the sole expense of the permittee within two business days after notification from the city.

9.    Relocation. At the request of the city, pursuant to Section 12.15.060, the permittee shall promptly and at its own expense permanently remove and relocate any facility in the right-of-way.

10.    Abandonment. The permittee shall promptly notify the city whenever a facility has not been in use for a continuous period of sixty (60) days or longer and must comply with Section 12.15.100.

11.    Restoration. A permittee who removes or relocates a facility from the right-of-way must restore the right-of-way in accordance with Section 12.15.070.

12.    Certificate of Insurance. A certificate of insurance with the following minimum insurance limits:

a.    Commercial general liability insurance: one million dollars ($1,000,000.00) per each occurrence, one million dollars ($1,000,000.00) personal and advertising injury, two million dollars ($2,000,000.00) products and completed operations, and two million dollars ($2,000,000.00) general aggregate—all written on an occurrence basis.

b.    Business automobile liability insurance: one million dollars ($1,000,000.00) combined single limit, written on an occurrence basis, for “any auto.”

c.    Worker’s compensation insurance: coverage as required by the state of Wisconsin and employers’ liability insurance with a minimum limit of one hundred thousand dollars ($100,000.00) each accident, five hundred thousand dollars ($500,000.00) disease policy, and one hundred thousand dollars ($100,000.00) disease each employee.

d.    Umbrella liability insurance: five million dollars ($5,000,000.00) each occurrence and five million dollars ($5,000,000.00) general aggregate; the self-insured retention cannot exceed ten thousand dollars ($10,000.00).

e.    A request for waiver from the requirements of this subsection shall be made in writing to the city engineer. The city engineer may grant a waiver request if the city attorney and director of finance and administration or their designees conclude that the applicant’s insurance adequately protects the city from risk and liability. (Ord. 2592-20 § 16, 2020; Ord. 2564-19 § 4 (part), 2019)

12.19.070 Expiration, removal, and failure to obtain permit.

A.    Expiration. Upon expiration of the facilities permit, the permittee must either:

1.    Remove the facility; or

2.    Submit an application to renew the permit at least ninety (90) days prior to its expiration. The facility must remain in place until the renewal application is acted on by the city and any appeals from the city’s decision are exhausted.

B.    Removal and Costs. Upon revocation or surrender of the permit, the facility must be removed within thirty (30) days of receipt of written notice from the city. All costs incurred by the city in connection with the revocation, removal, storage of removed facilities, and right-of-way restoration shall be paid by the person whose permit was revoked or surrendered.

C.    Failure to Obtain Permit. Unless exempted from permitting by Section 12.19.020(B), a facility installed without a permit must be removed within thirty (30) days of receipt of written notice from the city. All costs incurred by the city in connection with the notice, removal, storage of removed facilities, and right-of-way restoration shall be paid by entities who own or control any part of the facility. (Ord. 2592-20 § 17, 2020; Ord. 2564-19 § 4 (part), 2019)

12.19.080 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 § 4 (part), 2019)