Township of Newtown, PA Right-of-Way Occupation and Obstruction

The building, erection, or installation in, on or under a right-of-way. It does not include maintenance or repair of equipment in a right-of-way or a single line extension from equipment in the right-of-way. When the construction activities include drilling, boring, driving or tunneling or trenching under, across or through any improved right-of-way, all work (including restoration as set forth in this article) shall be done in accordance with the standards and provisions set forth in 67 Pa. Code § 459.8, as amended. Likewise, any aboveground construction shall be in accordance with 67 Pa. Code § 459.9. All references in the foregoing code sections to the "District Office," the "Department of Transportation" or similar references shall be deemed to be references to the Township.

EMERGENCY

An interruption of service or a condition that poses a clear and immediate danger to life or health or a significant loss of property.

RESTORE OR RESTORATION

The process by which a right-of-way is returned to a state that is as good or better than its condition before construction. (See the reference to 67 Pa. Code § 459.8 under "construction" above.)

RIGHT(S)-OF-WAY

The surface and space in, on, above and below any real property in which the Township has an interest in law or in equity, including, but not limited to, any public highway, street, watercourse, bridge, park, green space, or any other place.

RIGHT-OF-WAY PERMIT or PERMIT

A written authorization granted by the Township to an applicant for use of the public rights-of-way in the Township for the laying of pipes, sewers, drains, conduits, wires, cable, or other facilities of any description, or for making connections therewith or repairs thereto, or for the setting or planting of telegraph, telephone, trolley, electric, light, antenna, or similar poles, or for repairs thereto, or for any other purpose.

TELECOMMUNICATIONS SERVICES

The services involving the transmission of video, data and/or voice communications and/or content, both active and interactive, and associated usage.

TELECOMMUNICATIONS SYSTEM

A system used or to be used to provide telecommunications services and, where permitted by Chapter 172, Zoning, of the Code of the Township of Newtown, shall also include towers, cellular and wireless towers, facilities and equipment, as defined therein.

§ 145-17 Permit compliance.

Except for emergencies, it shall be unlawful for any person or persons, partner, association or corporation to occupy or obstruct any portion of a public highway, street, sidewalk, or other right-of-way with equipment, facilities, supplies, goods, refuse, debris, or other materials, or to allow the branches of trees, shrubs or hedges overhanging or adjacent to the same to obstruct a clear passage of not less than 14 feet above the traveled portion of the highway or street, of not less than 8 feet above the sidewalk, or of not less than the full width of any highway or sidewalk, or for any other purpose without first obtaining from the Township a right-of-way permit and complying with the requirements of the permit, this article, and all applicable federal, state and local laws and regulations.

Whenever the exigencies of public health or safety require emergency use of a right-of-way, and the procurement of a permit prior to such use is impracticable, an application for a right-of-way permit must be filed and the proper fee paid within 48 hours from the time when the emergency use first commenced, and provided further that any person, partnership, association or corporation conducting the emergency use shall do so as though an application for a permit had been filed.

Any obstruction of a public highway, street, sidewalk or other right-of-way shall be removed promptly by the owner of such obstruction or by the adjacent property owner whenever written notice to remove the same is given by the Township. If the owner fails to comply with such notice, the Township shall remove the obstruction and charge the cost thereof to the owner. In default of prompt payment, the Township may file a municipal claim in the amount of such charges.

§ 145-18 Permit application.

Application for a right-of-way permit shall be on a form prescribed by the Township and submitted to the Township in triplicate.

The application shall clearly state the purpose and location of the proposed or actual physical use or occupation of a right-of-way.

The application shall provide a description of the facilities to be installed, work to be performed, or the use of the right-of-way; specific information regarding the equipment to be placed or currently maintained in the right-of-way; and whether the equipment will or does have a detrimental effect on public safety as it relates to the right-of-way. The Township may require such additional information as is necessary to enable it to make a determination regarding the physical use and occupation of the right-of-way by the applicant.

The applicant shall agree to assume all liabilities for all or any damage to persons or property accruing to the public or to the Township which may or might result from the occupying of a public highway, street, sidewalk or other right-of-way.

The application must be signed by a person or by an authorized agent or officer of a partnership, association or corporation, who shall have filed with the Township financial security as shall be approved by the Township Solicitor to save harmless the Township from any and all damages to person or property accruing by reason of the work for which a permit may be issued, and who also shall have filed with the Township a certificate showing that liability insurance is carried in the amount of $1,000,000.

The applicant for a right-of-way permit shall have applied for any and all other regulatory approvals, permits or authorizations from the appropriate federal, state and local authorities, if required. The applicant shall submit written evidence of its receipt of all such approvals, permits or authorizations.

Nothing in this article shall be construed as a waiver of any ordinances or regulations of the Township or the Township's right to require prospective or current right-of-way permit holders to secure and remit payment for any and all required permits or authorizations, and nothing herein shall be construed as permission or authorization to establish telecommunications systems in any right-of-way in contravention of the provisions of Chapter 172, Zoning.

§ 145-19 Permit issuance.

Upon submission of all required application information, the Township shall review such information as follows:

(1)

For new applicants, the Township shall grant or deny applications within 30 days. The Township may impose conditions on the permit regulating the times, locations, and manner of work or construction to preserve public safety.

(2)

For existing permit holders in good standing applying for renewal of a permit, the Township shall grant or deny such applications within 15 days. The Township may impose conditions on the permit regulating the times, locations, and manner of work or construction to preserve public safety.

The Township shall review applications to determine whether a use would have a detrimental effect on public safety as it relates to a right-of-way or would place an undue physical burden on a right-of-way.

In considering an application, the Township may use such outside experts as it deems necessary. In the event the Township deems it necessary to employ an outside expert with respect to a particular application, the reasonable cost of such expert shall be borne by the applicant.

By the acceptance of a right-of-way permit, the applicant agrees to assume any and all liability for all or any damages to person or property accruing to the public or to the Township which may or might result from the opening or excavation.

The issuance of a right-of-way permit for the laying of pipe, conduit, cable, wire, or other facility, or the erection of telegraph, telephone, trolley, electric, light, antenna, or similar poles, shall constitute an agreement on the part of the applicant that it will at any time thereafter, upon notice from the Township, at its own expense, make such change in location or construction of such facility as may be required.

The applicant agrees to file, upon completion of the work, as-built plans in a form acceptable to the Township Engineer.

§ 145-20 Permit term; renewal; suspension.

With the exception of temporary occupations or permits associated with street openings of limited duration, a right-of-way permit shall be issued for a period of one year. Permit holders shall apply for a renewal of a right-of-way permit at least 30 days prior to its expiration.

The term of a right-of-way permit issued for a temporary occupation shall be established by the Township based on the applicant's requested duration as expressed in the application.

The term of a right-of-way permit issued in conjunction with a street opening permit shall run with the term of the street opening permit.

The Township may suspend a right-of-way permit in the event any one or more of the following has occurred:

(1)

The permit holder shall have caused damage to Township property or the right-of-way without the prior consent of the Township (except in the case of an emergency) and without completing proper restoration.

(2)

The permit holder or the permit holder's equipment in the right-of-way has had a detrimental effect on public safety as it relates to the right-of-way.

(3)

The permit holder failed to pay any of the fees required under this article.

(4)

The permit holder failed to comply with construction standards.

(5)

The permit holder failed to indemnify, hold harmless and insure the Township in accordance with the provisions contained in this article.

If the Township has reason to believe that a permit holder has failed to comply with a permit or this article, it shall notify the permit holder in writing. The permit holder shall have 30 days to cure the violation, unless the Township reasonably determines that there is a threat to public safety as a result of noncompliance, in which case the Township may impose a shorter time period to cure the violation.

If a permit holder fails to cure a violation within the specified time period, the Township shall be permitted to immediately suspend the right-of-way permit. The permit holder shall be provided an opportunity to be heard at the next scheduled meeting of the Board of Supervisors.

§ 145-21 Permit fees.

Each new applicant for a right-of-way permit shall include with its application an application fee. 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, inspection costs, administrative costs, costs of maintaining the rights-of-way and costs of degradation of streets and right-of-way property. 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. If the applicant applies for a construction permit concurrently with the application for a right-of-way permit, then the application fee contained herein shall apply to both the right-of-way permit and the construction permit.

Each existing permit holder applying for a renewal of a right-of-way permit shall include with its application an annual fee. Such costs include, but are not limited to, inspection costs, administrative costs, costs of maintaining the rights-of-way and costs of degradation of streets and right-of-way property.

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 police officers or other emergency services. The statement of such expenses presented to the permit holder shall be directly related to the Township's actual costs.

No additional fee is required for a limited-duration right-of-way permit when the application is filed in conjunction with an application for a street opening permit and the applicable fees for the street opening permit are paid.

§ 145-22 Right-of-way management.

The Township shall have the right to limit activity and the placement of new or additional equipment, materials, or facilities in a right-of-way if there is insufficient space to reasonably accommodate all requests to occupy and use the right-of-way.

The Township shall consider requests for occupying and using a right-of-way in the order of receipt of fully completed applications for right-of-way permits.

The Township shall strive, to the extent possible, to accommodate all requests but shall be guided by the physical condition of the right-of-way and whether such use would have a detrimental effect on public safety as it relates to the right-of-way.

The Township shall have the right, but not the obligation, to monitor any equipment or activity located in a right-of-way.

A permit holder shall allow the Township to make inspections of any part of the permit holder's equipment, material, or facilities located in a right-of-way at any time upon three days' notice or, in case of an emergency, upon demand.

§ 145-23 Construction standards.

Before commencing any work in a public right-of-way, a permit holder shall fully comply by registering with Pennsylvania's One Call System pursuant to 73 P.S. § 176 et seq., as may be amended from time to time.

Each permit holder shall use the public right-of-way in a manner consistent and in compliance with the application it submitted to the Township and all applicable federal, state and local laws and regulations.

All occupation of or activity in a public right-of-way must be properly marked by barricades and flashing amber lights so placed as to indicate from the roadway in both directions the exact location and limits of said occupation or activity and at all times must be properly guarded.

Whenever a permit holder damages a public right-of-way or Township property in the right-of-way, the permit holder shall restore such right-of-way or property within a period of 30 days.

A permit holder's use of the right-of-way shall not endanger or interfere with the safety of persons or property within the Township.

All operating, maintenance, construction and repair personnel shall be thoroughly trained in the safe use of all equipment and materials and in the safe operation of vehicles. Such personnel shall follow all safety procedures required by applicable federal, state and local laws and regulations.

The permit holder shall routinely inspect and maintain all work areas and those portions of a right-of-way that it may occupy or obstruct so that conditions that could develop into safety hazards are corrected before they become a hazard.

Except in the case of an emergency, at least seven days prior to the commencement of any use of a right-of-way, a permit holder shall notify nearby residents of such use in a manner which is satisfactory to the Township. The name of the permit holder shall be clearly disclosed to such residents.

All facilities shall be installed, where possible, parallel with existing sewer, water, gas, electric, telephone, cable and other utility lines.

Whenever a permit holder shall cause damage to the right-of-way or to the Township's property in the right-of-way, the permit holder shall restore such right-of-way or property within 30 days, weather permitting.

§ 145-24 Mailbox obstructions.

The Township shall not be responsible for the repair or replacement of any mailbox placed within any public highway, street, sidewalk or other right-of-way. However, to alleviate the possibility of damage due to snowplowing and vehicular traffic, the following guidelines must be complied with:

(1)

Mailboxes must be erected so that the front of curbside boxes is set back 12 inches from the face of the concrete curb. The structure supporting the box must not encroach on this setback distance.

(2)

The bottom of a mailbox must be between 42 inches to 48 inches above the finished road surface.

(3)

Mailboxes and the standards or posts upon which they are erected must be designed and installed to withstand the impact of snow hurled from a passing snowplow.

Mailboxes shall not overhang a public sidewalk.

§ 145-24.1 Sign obstructions.

No sign, other than official Township street or directional signs or street banner signs, shall be erected or maintained within a public right-of-way.

No sign shall project over any public sidewalk, nor shall any sign extend beyond any property line.

§ 145-24.2 Utility poles.

All telegraph, telephone, trolley, electric, light, antenna or similar poles erected within the boundaries of any public highway, street or other right-of-way shall be lettered or stenciled with the initials of the owners or with some other designation of ownership, together with a number for the same. A complete record showing the location and number of each pole shall be filed by the owner or owners of said poles with the Township annually on or before July 1.

The filing of an application and the issuance of a permit for the erection of a telegraph, telephone, trolley, electric, light, antenna or similar pole shall constitute an agreement on the part of the applicant that it will at any time thereafter, upon notice from the Township, at its own expense, make such change in location or construction of such pole as may be required.

§ 145-25 Liability and indemnification.

A permit holder shall, at its sole cost and expense, indemnify and hold harmless the Township and 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 out of the permit holder's use or occupancy of a right-of-way.

A permit holder 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 permit holder's use or occupancy of a right-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, attorneys' fees, reasonable expert fees, court costs and all other costs of indemnification.

A permit holder shall not be required to indemnify and hold the Township harmless for claims caused by the Township's negligence, gross negligence or willful misconduct.

§ 145-26 Insurance.

A permit holder shall, at all times during the life of a right-of-way permit, carry and require its subcontractors to carry liability, property damage, workers' disability, and vehicle insurance in such form and amount as shall be determined by the Township as set forth in the permit. A permit holder shall name the Township as an additional insured on its liability insurance policies.

All required insurance coverage shall provide for 30 days' notice to the Township in the event of material alteration or cancellation of such coverage prior to the effective date of such material alteration or cancellation.

§ 145-27 Reporting requirements.

A permit holder shall annually provide the Township, upon application for renewal of the permit, or upon request, the current maps of the horizontal and vertical locations of its existing facilities and a summary of all additions and deletions of equipment in a right-of-way, unless no changes have occurred in the previous year. If no changes have occurred in the previous year, the permit holder shall so inform the Township.

A permit holder shall submit to the Township such reasonable information directly related to the permit holder's use and occupation of the rights-of-way as the Township may request.

§ 145-28 Permit transfer.

A right-of-way permit may be transferred or assigned, upon 30 days' prior written notice to the Township, provided that the transferee/assignee agrees, in writing, to comply with all the obligations and requirements contained in this article.

Notwithstanding the foregoing, nothing in this article shall create or be construed as granting any applicant or permit holder any interest in real property, nor shall the issuance of any permit be so construed.

§ 145-29 Performance bond.

A permit holder may be required to obtain a performance bond in a reasonable amount set by the Township based on the cost of the use or occupancy of a right-of-way and the extent of the disturbance of such right-of-way. The performance bond shall ensure the permit holder's faithful performance of its construction, maintenance, and safety obligations. The Township may reduce or cancel the bond requirement when construction is completed.

§ 145-30 Permit termination.

In addition to all other rights and powers reserved by the Township, the Township reserves the right to terminate a permit and all rights and privileges of a permit holder for any of the following reasons:

A permit holder fails, after 30 days' prior written notice, to comply with any of the material provisions of the permit or this article.

A permit holder becomes insolvent, unable or unwilling to pay its debts, or is adjudged bankrupt.

All or part of a permit holder's facilities are sold under an instrument to secure a debt and are not redeemed by the permit holder within 90 days from such sale.

A permit holder attempts to or does practice any fraud or deceit in its conduct or relations with the Township under the permit.

The Township condemns all of the property of a permit holder within the Township by the lawful exercise of eminent domain.

The permit holder abandons its facilities.

§ 145-31 Removal of facilities.

Upon expiration or termination of a permit, if the permit is not renewed, the permit holder shall, upon 30 days' prior written notice to the permit holder, remove its facilities from all occupied rights-of-way and shall restore said areas.

If required removal is not completed within six months of notice to do so, the Township may deem any property not removed as abandoned, and the Township may remove it at the former permit holder's expense.

In the event a permit holder installed and/or operated any underground conduit or pipe which is six inches or more in diameter, the permit holder shall fill said conduit or pipe with material in a manner satisfactory to the Township.

During the term of the permit, if a permit holder decides to abandon or no longer use all or part of its facilities, it shall provide the Township with written notice of its decision at least 30 days prior to such decision, which notice shall describe the equipment and its location.

The Township shall have the right to require a permit holder to remove the facilities upon 60 days' prior written notice to the permit holder. If such removal is not completed within six months of such notice, the Township may remove it at the permit holder's expense.

§ 145-32 Violations and penalties.

Any person, partnership, association or corporation who shall violate any of the provisions of this article, or who shall fail to comply with the conditions or requirements of any permit granted in accordance with the provisions of this article, shall, upon conviction thereof, be liable to pay a fine or penalty not exceeding $1,000 for each and every offense.

A new and separate offense shall be deemed to have been committed for each day that a violation exists.

All fines and penalties imposed by this article are recoverable by summary proceedings before any District Justice in the Township, and all suits or actions at law instituted for the recovery thereof are to be in the name and for the use of the Township.