[Added 7-24-2008 by Ord. No. 855; amended 11-13-2014 by Ord. No. 945]
This article shall be known as and may be cited as the "Whitemarsh
Township Right-of-Way Ordinance."
This article is established for the following purposes:
A.
To assist the Township in managing its public rights-of-way in accordance
with applicable law;
B.
To regulate the erection, construction, reconstruction, installation,
operation, maintenance, repair and removal of facilities, as defined
herein, 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.
To provide the Township with appropriate compensation for occupation
and use of the Township's public rights-of-way, consistent with this
article and applicable law.
A.
The Township Manager, or his designated representative, shall serve
as the single point of contact within the Township for all persons
regulated under this article.
B.
The Township Manager shall coordinate all contacts with other Township
departments as necessary to facilitate issuance of any and all permits
required by the Code of the Township of Whitemarsh.
C.
The Township Manager shall coordinate the preparation of all policies
and forms as necessary for the implementation of this article with
the approval of the Board of Supervisors.
Terms used in this article shall have the following meanings,
whether or not the terms are capitalized. Unless otherwise expressly
stated, terms not defined in this article shall be construed consistent
with Title 47 of the United States Code and, if not defined therein,
with their common and ordinary meaning.
Poles, wires, cables, equipment, and other facilities located
above the surface of the ground, including their underground supports
and foundations. Such term does not include private driveways, newspaper
vending machines, street banners, canopies or other minor obstructions
located in the rights-of-way.
A person that (directly or indirectly) owns or controls,
is owned or controlled by, or is under common ownership or control
with another person.
The Cable Communications Policy Act of 1984, as amended by
the Cable Television Consumer Protection and Competition Act of 1992
and the Telecommunications Act of 1996, and as hereafter amended (47
U.S.C. § 521 et seq., as hereafter amended).
Right-of-way use authorization required pursuant to the Cable
Act and the Township Code for any cable franchise issued by the Township.
Right-of-way use authorization pursuant to this article authorizing
a person to own, construct, operate and maintain a cable system to
provide cable service within the Township.
A person providing or offering to provide cable service over
a cable system within the Township as that term is defined in the
Cable Act.
The one-way transmission to subscribers of video programming
or other programming service and subscriber interaction, if any, which
is required for the selection or use of such video programming or
other programming service.
Facilities consisting of a set of closed transmission paths
and associated signal generation, reception, and control equipment
that is designed to provide cable service which includes video programming
and which is provided to multiple subscribers within the Township,
but such term does not include i) a facility that serves only to retransmit
the television signals of one or more television broadcast stations;
ii) a facility that serves subscribers without using any right-of-way;
iii) a facility of a common carrier which is subject, in whole or
in part, to the provisions of Title II of the Communications Act of
1934, as amended, except that such facility shall be considered a
cable system [other than for purposes of 47 U.S.C. § 541(c)]
to the extent such facility is used in the transmission of video programming
directly to subscribers, unless the extent of such use is solely to
provide interactive on-demand services; iv) an open video system that
complies with 47 U.S.C. § 573; or v) any facilities of any
electric utility used solely for operating its electric utility system.
A reference to a cable system refers to any part thereof. This definition
of "cable system" shall in no way be deemed to circumscribe or limit
the valid authority of the Township to regulate or authorize the facilities
and/or services of any other telecommunications provider or other
person that owns, constructs, operates, or maintains facilities in
the right-of-way.
The Communications Act of 1934, 47 U.S.C. § 151
et seq., as amended and as hereafter amended.
A condition that i) constitutes a clear and immediate danger
to the health, welfare, or safety of the public or ii) has caused
or is likely to cause facilities in the rights-of-way to be unusable
and result in loss of the services provided.
Conduit, pipes, cables, wires, lines, towers, optic fiber,
poles, associated equipment and appurtenances, and any other facilities
located in the right-of-way and designed, constructed, and/or used,
by telecommunications providers, public utilities, or other persons
for transmitting, transporting, or distributing communications, telecommunications,
electricity, natural gas or manufactured gas, oil, gasoline, steam,
or any other form of energy, signal or substance. The term "facility"
or "facilities" does not include "wireless telecommunications facilities"
as defined below.
A right-of-way use authorization pursuant to this article
that authorizes a person to own, construct, operate and maintain a
cable system to provide cable service within the Township.
A cable franchise agreement.
A person that is issued a franchise by the Township.
The offering of a capability for generating, acquiring, storing,
transforming, processing, retrieving, utilizing, or making available
information via telecommunications (whether over a cable system, telecommunications
system, open video system, or any other type of facilities), and includes
electronic publishing, but does not include any use of any such capability
for the management, control, or operation of a telecommunications
system or the management of a telecommunications service.
All non-tower wireless communications facilities, including
but not limited to antennas and related equipment. Non-tower WCF shall
not include support structures for antennas and related equipment.
The recipient of a right-of-way use permit, cable franchise or other right-of-way use authorization that is issued by the Township pursuant to this article, and persons holding existing franchises, special ordinances, or other authorizations that are subject to the transitional provisions set forth in § 103-46.
Corporations, companies, associations, joint-stock companies,
firms, partnerships, limited liability companies, and other entities;
municipal, industrial development, housing, redevelopment, and other
authorities and corporations established pursuant to statutes of the
Commonwealth of Pennsylvania; and individuals, provided that "person"
does not include or apply to the Township or to any department or
agency of the Township.
The written regulations, standards, operations and/or courses
of action established by the Township to implement the provisions
of this article.
The commonwealth administrative agency, or lawful successor
thereto, authorized to regulate and oversee public utilities and telecommunications
providers and telecommunications services in the Commonwealth of Pennsylvania,
to the extent provided by law.
Shall be defined as that term is defined in the Pennsylvania
Code as of the effective date of this article, and as hereafter amended.
The surface of and space above and below any real property
in the Township in which the Township, Montgomery County, or the commonwealth
has a regulatory interest or interest as a trustee for the public,
as such interests now or hereafter exist, including, but not limited
to, all streets, highways, avenues, roads, alleys, sidewalks, tunnels,
viaducts, bridges, skyways, or any other public place, area or property
under the control of the Township, and any unrestricted public or
utility easements established, dedicated, platted, improved or devoted
for utility purposes but excluding lands other than streets that are
owned by the Township. The phrase "in the right(s)-of-way" means "in,
on, over, along, above and/or under the right(s)-of-way."
A right-of-way use permit or cable franchise issued pursuant
to this article.
A right-of-way use permit issued pursuant to this article.
A permit for excavation of a street for the construction
or installation of facilities in any right-of-way in the Township,
including but not limited to installation of underground conduit,
ducts, manholes, handholes, and/or appurtenances thereto, or any other
type of underground facilities; for construction or erection of poles;
for installing fiber optic or other cable(s) in already installed
conduit or ducts; for maintenance activities that involve such construction,
installation, or erection; or otherwise for the installation or construction
of facilities in any right-of-way.
Any telecommunications service, cable service, video programming
service, information service, utility service (including, but not
limited to, electric, gas, water, or steam service), or other form
of service provided by means of facilities located in the right-of-way.
A strip of land or part thereof within the right-of-way,
whether dedicated or not, that is intended or used for vehicular and
pedestrian traffic. The phrase "in the(a) street(s)" means "in, on,
over, along, above and/or under the street(s)."
Any cable system, telecommunications system, or integral
part thereof.
The transmission, between or among points specified by the
user, of information of the user's choosing, without change in the
form or content of the information as sent and received.
The plant, equipment and property within the Township used
to transmit, receive, distribute, provide or offer telecommunications
service.
A person who provides telecommunications service over telecommunications
facilities.
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.
A system that offers telecommunications service.
Any structure that is used for the purpose of supporting
one or more antennas, including, but not limited to, self-supporting
lattice towers, guy towers and monopoles, utility poles and light
poles and hub facilities for distributed antenna systems.
The Code of the Township of Whitemarsh, Montgomery County,
Pennsylvania.
The person engaged by the Township to perform engineering
services on behalf of the Township.
All real property now or hereafter owned by the Township,
whether in fee ownership or other interest.
All construction work performed by the Township or any of
its Departments, either with its own personnel or under contract,
including repair, alteration, replacement, or maintenance of facilities
owned, operated, maintained, or controlled by the Township or for
which the Township is responsible.
As applied to a right-of-way use permit and/or the facilities
authorized thereby, the assignment, transfer, or other disposition,
directly or indirectly, by sale, lease, merger, consolidation, or
other act, by operation of law or otherwise, of any interest, in whole
or in part, in the ROW use authorization, including, but not limited
to, actual control over the ROW use authorization. Any transaction
(whether between affiliated entities or unaffiliated entities) which
results in any change, in any manner, of ownership or control (including,
but not limited to, financial control and actual control) of the permittee,
the facilities authorized thereby, or the capacity, transmission capacity,
or bandwidth of the facilities or system, or such ownership or control
of any affiliated entities having ownership or control of the permittee,
where such ownership or control is 25% or more of the total ownership
or control interest shall be considered a transfer of interest.
Utility and telecommunications facilities located under the
surface of the ground, excluding the underground foundations or supports
for aerial facilities.
The antennas, nodes, control boxes, towers, poles, conduits,
ducts, pedestals, electronics and other equipment used for the purpose
of transmitting, receiving, distributing, providing, or accommodating
wireless telecommunications services.
Except as otherwise provided in this article, no person shall
own, construct, operate and/or maintain facilities in any right-of-way
of the Township to provide or to enable others to provide services
to persons or areas in the Township or outside the Township without
a right-of-way use authorization. The types of right-of-way use authorization
are a right-of-way use permit and a cable franchise.
A.
Permit required; term and scope of permit.
(1)
No person, other than a franchisee, may own, construct, operate and/or
maintain facilities that occupy the right-of-way without first obtaining
a ROW use permit. Any ROW use permit shall be subject to such conditions
as the Township may from time to time establish and shall otherwise
conform to the requirements of this article and applicable law. A
ROW use permit shall be for a term of one year. A ROW use permit and
the rights, benefits and permissions conferred thereby shall apply
to the entire geographic area of the Township.
(2)
Any person wishing to construct, operate and/or maintain wireless telecommunications facilities, such as tower-based WCFs or non-tower WCFs, that occupy the rights-of-way is not required to obtain a ROW use permit pursuant to this article but is required to comply with all of the applicable terms and conditions of the Township's Wireless Telecommunications Facilities Ordinance, codified at Chapter 116, Article XXXIX, of the Township Code.
B.
Approval by Township. A ROW use permit shall be authorized only by
the Township and shall not become effective unless or until so authorized.
In addition to the other requirements contained herein, the applicant
shall demonstrate:
(1)
That it has a history of compliance with applicable law and regulation
relating to the management, construction and maintenance of facilities
in streets and rights-of-way, wherever located; and
(2)
That it possesses all licenses, permits, authorizations, and other
permissions required by the Federal Communications Commission, the
PUC, the Commonwealth of Pennsylvania and the Township as a condition
of its using the right-of-way and furnishing the services and operating
the facilities proposed by the applicant.
C.
Security. Each permittee shall furnish to the Township, at the permittee's
expense, an irrevocable letter of credit or other form of financial
security, in such form as required by the Township in consultation
with the Township Solicitor. Such financial security shall be provided
by a reputable financial institution licensed to do business in the
Commonwealth of Pennsylvania. The letter of credit or other form of
financial security shall be in the amount of $100,000. The security
shall be a continuing obligation during the entire term of the right-of-way
use permit.
D.
Insurance. Each permittee shall, at all times during the entire term
of the right-of-way use permit, maintain and require its contractors
and subcontractors to maintain insurance, with a reputable insurance
company authorized to do business in the Commonwealth of Pennsylvania
and which has an A.M. Best rating (or equivalent) no less than "A"
indemnifying the Township from and against any and all claims for
injury or damage to persons or property, both real and personal, caused
by the construction, installation, operation, maintenance or removal
of permittee's system or facilities in the rights-of-way. The amounts
of such coverage shall be as determined by the Township by regulation.
The Township shall be designated as an additional insured under each
of the insurance policies required by this section. The permittee
shall not cancel any required insurance policy without obtaining alternative
insurance in conformance with this section. Permittee shall provide
the Township with at least 30 days' advance written notice of any
material changes or cancellation of any required insurance policy.
E.
Indemnification. Each permittee shall, at its sole cost and expense,
indemnify, defend and hold harmless the Township, its elected and
appointed officials, employees and agents, at all times against any
and all claims for personal injury, including death, and property
damage arising in whole or in part from, caused by or connected with
any act or omission of the permittee, its officers, agents, employees
or contractors arising out of, but not limited to, the construction,
installation, operation, maintenance or removal of permittee's system
or facilities in the rights-of-way. Each permittee shall defend any
actions or proceedings against the Township in which it is claimed
that personal injury, including death, or property damage was caused
by the permittee's construction, installation, operation, maintenance
or removal of permittee's system or facilities in the rights-of-way.
The obligation to indemnify, hold harmless and defend shall include,
but not be limited to, the obligation to pay judgments, injuries,
liabilities, damages, reasonable attorneys' fees, reasonable expert
fees, court costs and all other costs of indemnification.
F.
Application for right-of-way use permit. Application for a ROW use
permit shall be in such form and shall include such information as
the Township determines by regulation. Within a reasonable period
of time not to exceed 60 days after receiving a complete application
hereunder, the Township shall make a determination approving or denying
the application. Determinations to grant or deny an application shall
be made on a nondiscriminatory and competitively neutral basis. If
the application is denied, the determination shall include the reasons
for denial. The application fee, which shall be paid at the time of
the filing of the application, shall be in the amount determined by
the Township and authorized by resolution of the Township Board of
Supervisors. The application fee shall be sufficient to reimburse
the Township for the actual costs of Township staff time and other
resources that are required and may be adjusted by resolution of Township
Board of Supervisors.
G.
As-built maps. Each person applying for a ROW use permit shall submit
to the Township two paper copies and one electronic copy of as-built
map or maps and engineering specifications as set forth in the policies
and procedures depicting and certifying the location of all its existing
facilities within the right-of-way. Such electronic and paper maps
and engineering specifications shall be submitted with the application.
If the maps are not provided electronically in the required format,
then the person shall reimburse the Township for the cost of converting
paper maps into electronic form or the cost of converting electronic
maps in another format into the required format.
H.
Right to inspect. The Township shall have the right to inspect all
of the facilities of the permittee, including aerial facilities and
underground facilities, to ensure health and safety with respect to
such facilities, other facilities, the rights-of-way and any other
public or private property, and to determine compliance with the terms
of this article and other applicable laws and regulations. Permittees
are required to cooperate with all such inspections and to provide
information requested by the Township as part of the inspection.
I.
Use authorized. No ROW use permit shall confer any exclusive right
or privilege to occupy or use the right-of-way for any purpose, or
explicitly or impliedly preclude or affect the Township's right to
authorize use of the right-of-way by other persons to own, construct,
operate, maintain, and/or provide the same or different facilities
or services, or for any other purposes as the Township determines
appropriate, or affect the Township's right to constrict, operate
or maintain any type of facilities itself or offer any type of services
in the right-of-way, or authorize or excuse any person from securing
such further easements, leases, permits or other approvals as may
be required by applicable law or regulation to occupy and use the
right-of-way; or convey any right, title or interest in any right-of-way
greater or other than an agreement only to use and occupy the right-of-way
for the limited purposes and terms provided in the ROW use permit;
or be construed as any warranty of title.
J.
Owner's consent. No ROW use permit expressly or impliedly authorizes a permittee to provide any services to, or install any facilities on, any private property without the owner's consent or to use publicly or privately owned poles, ducts or conduits without a separate agreement with the owners thereof for such use. It is an affirmative violation of this article to post bills, signs and other advertisements upon utility poles or private property except as authorized in Chapter 116 of the Township's Code.
K.
Substantially similar terms. ROW use permits and renewals entered
into after the effective date of this article shall contain substantially
similar terms which, taken as a whole upon consideration of all of
its material terms and upon consideration of the nature of the services
to be authorized and other relevant characteristics of applicants,
do not provide substantially more or less favorable terms and conditions
than those required of other permittees.
A.
Persons already authorized to use the right-of-way. Any person holding
a permit or other authorization from the Township to own, construct,
operate, and/or maintain facilities in the right-of-way to provide
services may continue to conduct those activities expressly authorized
until the earlier of the following: i) the conclusion of the present
term of its existing authorization or ii) 120 days after the effective
date of this article, provided that in the case of a cable franchise,
such authorization shall continue until the expiration of the current
term of the cable franchise. Notwithstanding the foregoing, such persons
(with the exception of cable franchisees) shall apply for a superseding
ROW use permit pursuant to this article within 90 days after the effective
date of this article and shall be subject to the terms and conditions
of this article.
B.
Pending applications. Applications for an authorization to occupy
or use the right-of-way that are pending on the effective date of
this article shall be subject to this article. A person with a pending
application shall submit additional information to comply with the
requirements of this article and applicable regulations of the Township
governing applications within 30 days from the effective date of this
article.
C.
Persons operating without right-of-way use authorization. Any person
that owns or operates any facilities currently located in the right-of-way,
the construction, operation, or maintenance of which is not currently
authorized, but is required to be authorized under this article, shall
have 90 days from the effective date of this article to file one or
more applications for a ROW use authorization. Any person timely filing
such an application shall not be subject to penalties for failure
to hold such a ROW use authorization, provided that said application
remains pending. Nothing herein shall relieve any person of any liability
for its failure to obtain any permit or other authorization required
under other provisions of this article or Township ordinances or regulations,
and nothing herein shall prevent the Township from requiring removal
of any facilities installed in violation of this article or Township
ordinances or regulations.
A.
Franchise required.
(1)
No person may own, construct, operate or maintain a cable system
within the Township or provide cable service over a cable system without
a cable franchise issued by the Township.
(2)
To the extent permitted by law, facilities used to provide telecommunications
service, information service or any form of services similar to cable
service, that are also used to provide cable service, shall be subject
to this article and shall also require a right-of-way use permit pursuant
to this article.
B.
Effect of authorization.
(1)
A cable franchise shall not confer any authority to provide any form
or type of telecommunications service or information service in addition
to the cable service authorized by the franchise. To the extent permitted
by law, a separate right-of-way use permit pursuant to this article,
in addition to the cable franchise, shall be required before any franchisee
is permitted to use facilities in the right-of-way to furnish any
form or type of telecommunications service or information service.
(2)
In the event of a conflict between the provisions of this article
and a cable franchise agreement in effect on the effective date of
this article, the provisions of the cable franchise agreement shall
govern.
A.
Renewal of right-of-way use permit.
(1)
Application. A person desiring to renew a ROW use permit shall file
an application with the Township for renewal of its authorization,
which shall include all information and documents required for an
initial application and any other information required by the Township
by regulation.
(2)
Determination. Within a reasonable period of time not to exceed 60
days after receiving a complete application for renewal of a ROW use
permit, the Township shall make a determination accepting or denying
the renewal application. If the renewal application is denied, the
determination shall include the reasons for nonrenewal. Determinations
to grant or deny a renewal application shall be made on a nondiscriminatory
and competitively neutral basis.
B.
Transfer of interest in authorization. No transfer of interest in
any ROW use permit or the facilities authorized thereby may take place
without the prior written consent of the Township. Such consent shall
be granted provided that the transfer of interest is consistent with
the terms and conditions of the permittee's ROW use permit and this
article and that the proposed transferee agrees in writing to be bound
by such terms and conditions. In addition:
(1)
The permittee and the proposed transferee of a ROW use permit or
the facilities authorized thereby shall provide, in addition to all
information required by applicable law and regulation, such other
information as the Township may reasonably require by regulation in
order to determine whether the transfer of interest satisfies the
requirements of this subsection.
(2)
Upon receipt of all information required herein, and any other information
required by regulation, the Township shall, within a reasonable period
of time not to exceed 60 days, review and either approve or deny the
requested transfer. If the application is denied, the determination
shall include the reasons for denial. Determinations to grant or deny
an application to assign or transfer shall be made on a nondiscriminatory
and competitively neutral basis.
C.
Renewal and transfer costs. All permittees shall, within 30 days
after the Township's written demand therefor, reimburse the Township
for all costs and expenses incurred by the Township in connection
with any renewal or transfer of a right-of-way use permit. Such costs
and expenses shall include, but not be limited to, engineering review,
inspections, attorneys' fees, expert fees and other related expenses.
A.
Road opening permits. No person shall perform any street excavation
in the rights-of-way or perform curb and/or sidewalk construction
replacement or repair without first obtaining a road opening permit
and paying a permit fee pursuant to this article.
B.
Construction standards. All construction, installation, maintenance,
and operation of facilities in the ROW shall conform to the requirements
of the following publications, as from time to time amended, and such
additional or different standards and specifications as the Township
may from time to time establish by regulation: the Pennsylvania Department
of Transportation Publication Form 408, National Electrical Code,
and the National Electrical Safety Code and Township regulations (collectively,
the "Whitemarsh Township ROW Construction Standards").
C.
Security. Each person performing construction in the ROW shall obtain,
at the permittee's expense, an irrevocable letter of credit or other
form of financial security, in the amount of $100,000, in such form
as required by the Township in consultation with the Township Solicitor.
Such security shall be executed by a reputable surety company licensed
to do business in the Commonwealth of Pennsylvania.
D.
Right to inspect facilities. The Township may inspect the construction
or installation of any facilities, including both aerial and underground
facilities, and any construction or repair activity to ensure health
and safety with respect to such facilities, other facilities, the
rights-of-way and any other public or private property, and determine
compliance with the terms of this article and other applicable laws
and regulations. Permittees are required to cooperate with all such
inspections and to provide information requested by the Township as
part of the inspection.
E.
Interference with the rights-of-way. No permittee may locate or maintain
facilities in such a manner as to interfere with the use of the right-of-way
by the Township, the general public or other persons authorized to
construct, install, operate or maintain facilities in the rights-of-way.
F.
Relocation or removal of facilities. Within 60 days following written
notice from the Township, or such longer period as the Township determines
is reasonably necessary or such shorter period in the case of an emergency,
a permittee shall, at its own expense, temporarily or permanently
remove, relocate, change or alter the position of any facilities within
the right-of-way whenever the Township, consistent with applicable
PUC regulations, shall have determined that such removal, relocation,
change or alteration is reasonably necessary under the following circumstances:
(1)
The construction, repair, maintenance or installation of any Township
or other public improvement in the right-of-way;
(2)
The operations of the Township or other governmental entity in the
right-of-way;
(3)
Vacation of a street or the release of a utility easement; or
(4)
An emergency as determined by the Township.
G.
Coordination of construction activities. By December 1 of each year,
each right-of-way use permittee shall provide the Township with a
schedule (including plans and projected start and finish dates for
each project) of its planned construction activities for the following
year which may affect the rights-of-way. The schedule shall depict
all construction activities the permittee is committed to perform
within the year. All ROW construction locations, activities and schedules
of permittees shall be coordinated with each other and with the Township's
planned ROW construction activities, as directed by the Township,
to minimize public inconvenience and disruption and prevent damage
to public and private property. A person that fails to comply with
this subsection may, in the Township's reasonable discretion, be denied
road opening permits until the Township determines the person is in
compliance.
H.
Abandonment. Except as otherwise provided for under this article,
a person may abandon any facilities or property in the rights-of-way
only after receiving written approval of the Township, following written
notice to the Township of the intent to abandon. If the Township receives
notice of intent to abandon from such a person, or if the Township
determines (after investigation, notice to the owner or other responsible
person, and an opportunity to be heard) that facilities or property
are abandoned, the Township may determine that the safety, functioning
or use of the right-of-way and/or other facilities in the right-of-way
will be adversely affected by the abandonment. If the Township makes
this determination, the Township may require the person to remove
the facilities and property by a specified date or the Township may
remove the facilities and property and charge the person for all costs
and expenses associated with such removal.
I.
Damage to facilities or property. A permittee, including any contractor
working for the permittee, shall avoid damage to any facilities and/or
public or private property. If any facilities and/or public or private
property are damaged by the permittee, including any contractor working
for the permittee, the permittee shall promptly repair and restore
such property within 10 business days. The permittee shall utilize
the Pennsylvania One Call System prior to any disturbance of the rights-of-way
and shall adhere to all other requirements of the Pennsylvania Underground
Utility Line Protection Act.
J.
Field marking. Each permittee shall field-mark the locations of its
underground facilities upon request by other permittees or the Township,
consistent with the requirements of the Pennsylvania One Call System
and at no cost to the Township.
K.
Pole extensions. Aerial facilities shall be installed only on existing
poles in compliance with the Township's public works, zoning and planning
codes and regulations. Pole extension arms may not be used unless
the Township determines in writing that adequate space is not present
on the poles and such extensions do not unsafely burden or present
a safety hazard to the rights-of-way. Aerial facilities may not be
installed or constructed by adding to the height of existing poles
without the express written permission of the Township. Permittees
may be required to place their facilities underground where the Township
determines that adequate space is not present on existing poles.
L.
Aboveground appurtenances. Persons may place appurtenances above
the ground in the right-of-way only if such appurtenances are approved
by the Township and are so placed that they do not interfere with
pedestrian and vehicular traffic and the line-of-sight for traffic
in the rights-of-way.
M.
Prohibition against road cuts; permits.
[Added 7-9-2020 by Ord.
No. 1001]
(1)
After any road has been constructed, reconstructed, or paved under
Township contract or under permit, a five-year prohibition against
new road cuts on the constructed, reconstructed, or repaved portion
of the road will be in effect. In the event of an emergency, any road
cuts will require that the cutting entity, at its sole cost and expense,
mill and overlay the entire lane of travel in the vicinity of the
road cut, for a minimum distance of 30 feet in each direction from
the cut area. If such cut involves both lanes of travel, the milling
and overlay must extend the entire cartway width in the vicinity of
the road cut for a minimum distance of 30 feet in each direction from
the cut area.
(2)
The Township Engineer may grant exemptions to this prohibition in
order to facilitate development on adjacent properties, provide for
emergency repairs to subsurface facilities, provide for underground
service connections to adjacent properties, or allow the upgrading
of underground utility facilities. When granting exceptions to this
prohibition, the Township Engineer may impose conditions determined
appropriate to ensure the rapid and complete restoration of the road
and the surface paving. Repaving may include base and subbase repairs
or other related work as needed and may include up to full-width surface
paving of the roadway.
(3)
All permits for road cuts are issued at the discretion of the Township.
A.
Compensation for right-of-way use. Every ROW use permit is subject
to the Township's right to fix annually a fair and reasonable compensation
to be paid for use and occupancy of the right-of-way. Such compensation
for right-of-way use shall be directly related to the Township's actual
right-of-way management costs including but not limited to, the costs
of issuing the permit and the administration and performance of all
reviewing, inspecting, permitting, supervising and other ROW management
activities by the Township; and
B.
Annual right-of-way management fee. Each permittee that is not a
franchisee shall pay an annual fee to the Township to compensate the
Township for its costs incurred in connection with reviewing, permitting,
inspecting and supervising the ongoing use and occupancy of the right-of-way.
The annual right-of-way management fee shall be determined by the
Township and authorized by resolution of Township Board of Supervisors
and shall be based on the Township's actual ROW management costs as
applied to such permittee. This Annual ROW Management Fee shall not
be adjusted for at least two years from the effective date of this
article, except for purposes of inflation as determined by the National
Consumer Price Index published by the United States Department of
Labor. Any adjustments to the fee subsequent to two years from the
effective date shall be authorized by resolution of Township Board
of Supervisors, shall be based on the Township's actual ROW management
costs as applied to such permittee and shall be implemented only after
providing at least 30 days' prior written notice to all then-current
permittees. The costs recovered under this subsection shall not include
costs recovered by any other fee provided in this chapter or in related
chapters.
A.
Penalties. Any person violating any provision of this article shall
be subject, upon conviction thereof, to a fine not exceeding $1,000,
for each and every offense, together with attorneys' fees and costs,
and in default of the payment thereof, imprisonment for not more than
90 days. A separate and distinct violation shall be deemed to be committed
each day on which a violation occurs or continues to occur. In addition
to an action to enforce any penalty imposed by this article and any
other remedy at law or in equity under this article, the Township
may apply to a Court of Common Pleas for an injunction or other appropriate
relief at law or in equity to enforce compliance with or restrain
violation of any provision of this article. In the case of an emergency
that is discovered by the Township or reported to the Township, the
Township shall notify the permittee via the permittee's emergency
telephone number. In the event that the permittee does not repair
the emergency within six hours, the Township may repair the emergency
at the permittee's expense, which expense shall be reimbursed to the
Township by the permittee upon written notice from the Township.
B.
Determination of violation. In the event a determination is made
that a person has violated any provision of this article or a right-of-way
use permit, such person shall be provided written notice of the determination
and the reasons therefor. Except in the case of an emergency, the
person shall have 30 days to cure the violation. If the nature of
the violation is such that it cannot be fully cured within such time
period, the Township may, in its reasonable judgment, extend the time
period to cure, provided that the person has commenced to cure and
is diligently pursuing its efforts to cure. If the violation has not
been cured within the time allowed, the Township may take any and
all actions authorized by this article and/or Pennsylvania law and
regulations, including, without limitation, termination of a ROW permit,
following notice to the permittee and an opportunity to be heard.
A.
Proprietary information. If a permittee considers information it
is obligated to provide to the Township under this article to be a
business or trade secret or otherwise proprietary or confidential
in nature and desires to protect the information from disclosure,
then the permittee shall mark such information as proprietary and
confidential. Subject to the requirements of the Right-to-Know Act
of 2009, 65 P.S. § 67.101 et seq., as amended, and other
applicable law, the Township shall exercise reasonable good faith
efforts to protect such proprietary and confidential information that
is so marked from disclosure. The Township shall provide notice to
the permittee in the following circumstances: i) if the Township receives
a request for disclosure of such proprietary and confidential information
and the Township Solicitor determines that the information is or may
be subject to disclosure under applicable law or ii) if the Township
Solicitor determines that the information should be disclosed in relation
to its enforcement of this article or the exercise of its police or
regulatory powers. In the event the permittee does not obtain a protective
order barring disclosure of the information from a court of competent
jurisdiction within 30 days following receipt of the Township's notice,
then the Township may disclose the information without further notice
to the permittee.
B.
Leased facilities. Subject to the provisions of this article and
with prior written approval of the Township, a permittee shall have
the right to furnish any facilities for which it has the applicable
authorization in the right-of-way to another person for the latter's
use in constructing or operating its own facilities in the right-of-way,
provided that:
(1)
The permittee furnishing its facilities to another shall first deliver
to the Township written verification that there is a fully signed
and executed lease, rental agreement, or other agreement with such
other person pursuant to which the facilities are to be furnished;
and
(2)
The person to which the facilities are furnished shall comply with
all of the requirements of this article and other applicable laws
and policies and procedures, including but not limited to obtaining
an appropriate right-of-way use authorization from the Township prior
to its construction or operation of its facilities, and if such permittee
does not comply with the foregoing requirements, the Township may
determine its facilities to be unauthorized facilities.
C.
Duty to provide information. Within 10 days of a written request
from the Township, each permittee shall furnish the Township with
information sufficient to demonstrate the following: that the permittee
has complied with all requirements of this article; that all fees
and taxes due the Township in connection with the services and facilities
provided by the permittee have been properly paid by the permittee;
and any other information reasonably related to the permittee's obligations
pursuant to this article.
D.
Right to inspect records. The Township shall have the right, upon
30 days' written notice and during normal business hours, to inspect
all documents, records, maps and other pertinent information maintained
by the permittee that relate directly to the terms and conditions
of this article.
E.
No substitute for other required permissions. No ROW use authorization
or ROW use permit includes, means, or is in whole or part a substitute
for any other permit or authorization required by the laws and regulations
of the Township for the privilege of transacting and carrying on a
business within the Township or any permit or agreement for occupying
any other property of the Township.
F.
No waiver. The failure of the Township to insist on timely performance
or compliance by any permittee holding a right-of-way use authorization
shall not constitute a waiver of the Township's right to later insist
on timely performance or compliance by that permittee or any other
permittee holding such a right-of-way use authorization. The failure
of the Township to enforce any provision of this article on any occasion
shall not operate as a waiver or estoppel of its right to enforce
any provision of this article on any other occasion, nor shall the
failure to enforce any prior ordinance or Township Code provision
affecting the right-of-way, any facilities, or any user or occupant
of the right-of-way act as a waiver or estoppel against enforcement
of this article or any other provision of applicable law.
G.
Policies and procedures. The Township is authorized to establish
such written policies and procedures consistent with this article
as the Township deems necessary for the implementation of this article.
H.
Police powers. The Township, by granting any permit or taking any
other action pursuant to this article, does not waive, reduce, lessen,
or impair the lawful police powers vested in the Township under applicable
federal, state and local laws and regulations.
