[Adopted 8-16-2006 by Ord. No. 350]
The purpose of this Right-of-Way Article (hereinafter
referred to as "the article") is to:
A. Assist West Deer Township (hereinafter referred to
as "the Township") in managing its public rights-of-way with respect
to telecommunications services providers in accordance with applicable
law;
B. Regulate the erection, construction, reconstruction,
installation, operation, maintenance, repair and removal of a telecommunications
system in, upon, along, across, above, over, under or in any manner
connected with the public rights-of-way, of the Township, as now or
in the future may exist; and
C. Provide the Township with appropriate compensation
for occupation and use of the Township's rights-of-way for a telecommunications
system and for the cost of regulating providers of telecommunications
services on a competitively neutral and nondiscriminatory basis consistent
with this article and applicable law.
Unless the context specifically indicates otherwise,
the meanings of the terms used in this article shall be as follows:
APPLICANT
The person who has applied for a right-of-way permit or a
construction permit.
APPLICATION
The form prescribed by the Township which the applicant must
complete in order to obtain a right-of-way or construction permit.
CONSTRUCTION
The building, erection or installation in, on, over or under
a right-of-way. It does not include, as part of the ordinary course
of business, maintenance or repair of existing aerial cables or equipment
in a right-of-way or a single line extension from equipment in the
right-of-way.
CONSTRUCTION PERMIT
The written authorization granted by the Township to an applicant
in order to perform construction in a right-of-way.
EMERGENCY
A condition that poses a clear and immediate danger to life
or health, or significant loss of property.
EQUIPMENT
Any tangible property located or proposed to be located in
a right-of-way, including, but not be limited to, wires, lines, cables,
conduits, pipes, supporting structures or other facilities.
MAINTENANCE
Work of a minor nature that will keep an existing condition
from failure or decline.
PERSON
Any individual, firm, partnership, association, corporation,
company or other business entity.
RESTORE or RESTORATION
The process by which a right-of-way is returned to a state
that is as good as or better than its condition before construction.
RIGHT-OF-WAY or PUBLIC RIGHT-OF-WAY
The surface and space in, on and above any real property
in which the Township has an interest in law or in equity, including,
but not limited to, any public street, boulevard, avenue, road, highway,
easement, freeway, alley, court or any other place, other than real
property owned in fee by the Township.
RIGHT-OF-WAY PERMIT or PERMIT
A written authorization granted by the Township to an applicant
for use of the rights-of-way in the Township for wires, lines, cables,
conduits, pipes, supporting structures and other facilities.
TELECOMMUNICATIONS
The transmission, between or among points specified by the
user, of information of the user's choosing, without change in form
or content of the information sent and received.
TELECOMMUNICATIONS SERVICES
The offering of telecommunications for a fee directly to
the public, or to such classes of users as to be effectively available
directly to the public, regardless of the facilities used.
Except in cases of emergency, before commencing
any activity in the rights-of-way that is expected to last more than
45 hours in duration, a person must notify the Township of the activity
and the general nature of the project. The activity referred to in
this section pertains to any activity, including, but not limited
to, construction or maintenance activity.
[Amended 4-20-2016 by Ord. No. 408]
A. Each new and renewing applicant for a right-of-way
permit shall include with its application an application fee in the
amount as set forth from time to time by resolution of the Board of
Supervisors. This fee shall be directly related to the Township's
costs in reviewing the application (excluding expert costs) and managing
the rights-of-way with respect to each permit holder. Such costs in
managing the rights-of-way include, but are not limited to, costs
of maintaining the rights-of-way; costs of degradation of streets
and right-of-way property; administrative costs related to the rights-of-way;
traffic control costs pertaining to work in the rights-of-way; and
inspection costs. This fee will not be refunded in the event the application
is denied. If the application is granted, the application fee will
apply to the full term of the right-of-way permit of one year.
B. Each applicant for a construction permit shall include
with its application an application fee in the amount as set forth
from time to time by resolution of the Board of Supervisors. This
fee shall be directly related to the Township's costs in reviewing
the application and determining time, place and manner restrictions
on the construction activity. If the application for a construction
permit is denied, this fee shall not be refunded. If the application
is granted, then the applicant shall also pay, within 30 days of the
presentation of a statement, the Township's actual costs directly
related to the applicant's construction project based on the hourly
rate established by resolution of the Board of Supervisors. Such actual
costs include, but are not limited to, costs of disruption and rerouting
of traffic, inspection costs and administrative costs. A construction
permit shall apply to a specific construction project in the Township,
and each succeeding construction project shall require the issuance
of a separate construction permit.
C. Extraordinary expenses. In addition to the fees set
forth above, a permit holder shall pay, within 30 days of the presentation
of a statement, any extraordinary or unusual expenses reasonably incurred
by the Township as a result of the permit holder's use of the rights-of-way,
provided that the Township notifies the permit holder of the expected
expenses prior to them being incurred and provides the permit holder
with an opportunity to mitigate such expenses. Examples of extraordinary
or unusual costs include, but are not limited to, the cost of obtaining
and operating a backhoe, dump truck or other heavy equipment used
to repair the right-of-way, overtime or special pay for public safety
personnel and/or the cost of hazardous waste cleanup or other emergency
services. The statement of such expenses presented to the permit holder
shall be directly related to the Township's actual costs.
D. In the event that payment of any of the fees identified
above is not made upon submission of the application or by the date
due, the applicant or permit holder shall pay a late payment penalty
of simple interest at an annual percentage rate of 10% of the total
amount past due. Such penalty shall be in lieu of any other monetary
penalty. Acceptance of payment under this section shall not in any
way limit or waive the Township's right to suspend or terminate the
permit according to the terms of this article.
A right-of-way permit may be transferred or
assigned, upon 30 days' written notice to the Township, provided that
the transferee/assignee agrees in writing, prior to the transfer or
assignment, to comply with all of the obligations and requirements
contained in this article.
[Amended 4-20-2016 by Ord. No. 408]
Any person, partnership or corporation who or
which has violated or permitted the violation of any provision of
this article, upon being found liable therefor in a civil enforcement
proceeding commenced by the Township, shall pay a judgment of not
more than $600, plus all court costs. No judgment shall commence or
be imposed, levied or payable until the date of the determination
of a violation by a Magisterial District Judge. If the defendant neither
pays nor timely appeals the judgment, the Township may enforce the
judgment pursuant to the applicable rules of civil procedure, at which
time, in addition to any penalties, the violator shall be liable for
any attorneys’ fees and costs incurred by the Township. Each
day that a violation continues or each section of this article which
shall be found to have been violated shall constitute a separate violation.
The Township, by granting any permit under this
article, does not waive, lessen, impair or surrender the lawful police
powers vested in the Township under applicable federal, state and
local laws pertaining to the regulation or use of the rights-of-way.
The provisions of this article shall be imposed
upon and enforced against all persons requiring a permit for the provision
of telecommunications services or construction of a telecommunications
system within the Township.