Article XX Utility Facilities, Permits and Regulations

[R.O. 1998 § 400.980; Ord. No. 2501 §4, 10-10-2007]

As used in this Article, the following terms shall have the following meanings:

The City's Director of Public Services or such other person designated to administer and enforce this Article.

A network or system or any part thereof used for providing or delivering a service and consisting of one (1) or more lines, pipes, irrigation systems, wires, cables, fibers, conduit facilities, cabinets, poles, vaults, pedestals, boxes, appliances, antennas, transmitters, radios, towers, gates, meters, appurtenances or other equipment.

FACILITIES PERMIT

A permit granted by the City for placement of facilities on private property.

PERSON

An individual, partnership, limited liability corporation or partnership, association, joint stock company, trust, organization, corporation or other entity, or any lawful successor thereto or transferee thereof.

SERVICE

Providing or delivering an economic good or an article of commerce, including, but not limited to, gas, telephone, cable television, Internet, open video systems, video services, alarm systems, steam, electricity, water, telegraph, data transmission, petroleum pipelines, sanitary or stormwater sewerage or any similar or related service, to one (1) or more persons located within or outside of the City using facilities located within the City.

Section 400.985 Facilities Permits.

[R.O. 1998 § 400.985; Ord. No. 2501 §4, 10-10-2007; Ord. No. 2569 §2, 10-9-2008]

Any person desiring to place facilities on private property must first apply for and obtain a facilities permit in addition to any other permit, license, easement, franchise or authorization required by law. The Director may design and make available standard forms for such applications, requiring such information as allowed by law and as the Director determines in his or her discretion to be necessary and consistent with the provisions of this Article and to accomplish the purposes of this Article. Each application shall at minimum contain the following information, unless otherwise waived by the Director:

The name of the person on whose behalf the facilities are to be installed and the name, address and telephone number of a representative whom the City may notify or contact at any time [i.e., twenty-four (24) hours per day, seven (7) days per week] concerning the facilities;

A description of the proposed work, including a site plan and such plans or technical drawings or depictions showing the nature, dimensions, location and description of the facilities, their location and their proximity to other facilities that may be affected by their installation.

Each such application shall be accompanied by an application fee approved by the City to cover the cost of processing the application.

Application Review And Determination.

The Director shall promptly review each application and shall grant or deny the application within thirty-one (31) days. Unless the application is denied pursuant to Subsection (C)(4) hereof, the Director shall issue a facilities permit upon determining that the applicant:

Has submitted all necessary information;

Has paid the appropriate fees; and

Is in full compliance with this Article and all other City ordinances. The Director may establish procedures for bulk processing of applications and periodic payment of fees to avoid excessive processing and accounting costs.

It is the intention of the City that proposed facilities will not impair public safety, harm property values or significant sight lines or degrade the aesthetics of the adjoining properties or neighborhood and that the placement and appearance of facilities on private property should be minimized and limited in scope to the extent allowed by law to achieve the purposes of this Section. To accomplish such purposes, the Director may impose conditions on facilities permits, including alternative landscaping, designs or locations, provided that such conditions are reasonable and necessary, shall not result in a decline of service quality and are competitively neutral and non-discriminatory.

An applicant receiving a facilities permit shall promptly notify the Director of any material changes in the information submitted in the application or included in the permit. The Director may issue a revised facilities permit or require that the applicant reapply for a facilities permit.

The Director may deny an application, if denial is deemed to be in the public interest, for the following reasons:

Delinquent fees, costs or expenses owed by the applicant;

Failure to provide required information;

The applicant being in violation of the provisions of this Article or other City ordinances;

For reasons of environmental, historic or cultural sensitivity as defined by applicable Federal, State or local law;

For the applicant's refusal to comply with reasonable conditions required by the Director; and

For any other reason to protect the public health, safety and welfare, provided that such denial does not fall within the exclusive authority of the Missouri Public Service Commission and is imposed on a competitively neutral and non-discriminatory basis.

Permit Revocation And Ordinance Violations.

The Director may revoke a facilities permit without fee refund after notice and an opportunity to cure, but only in the event of a substantial breach of the terms and conditions of the permit or this Article. Prior to revocation, the Director shall provide written notice to the responsible person identifying any substantial breach and allowing a reasonable period of time not longer than thirty (30) days to cure the problem, which cure period may be immediate if certain activities must be stopped to protect the public safety. The cure period shall be extended by the Director on good cause shown. A substantial breach includes, but is not limited to, the following:

A material violation of the facilities permit or this Article;

An evasion or attempt to evade any material provision of the permit or this Article or the perpetration or attempt to perpetrate any fraud or deceit upon the City or its residents;

A material misrepresentation of fact in the permit application;

A failure to complete facilities installation by the date specified in the permit, unless an extension is obtained or unless the failure to complete the work is due to reasons beyond the applicant's control; and

A failure to correct, upon reasonable notice and opportunity to cure as specified by the Director, work that does not conform to applicable national safety ordinances, industry construction standards or the City's pertinent and applicable ordinances including, but not limited to, this Article, provided that City standards are no more stringent than those of a national safety ordinance.

Any breach of the terms and conditions of a facilities permit shall also be deemed a violation of this Article and in lieu of revocation the Director may initiate prosecution of the ROW user for such violation.

Appeals And Alternative Dispute Resolution.

Any person aggrieved by a final determination of the Director may appeal in writing to the City Administrator within five (5) business days thereof. The appeal shall assert specific grounds for review and the City Administrator shall render a decision on the appeal within fifteen (15) business days of its receipt affirming, reversing or modifying the determination of the Director. The City Administrator may extend this time period for the purpose of any investigation or hearing deemed necessary. A decision affirming the Director's determination shall be in writing and supported by findings establishing the reasonableness of the decision. Any person aggrieved by the final determination of the City Administrator may file a petition for review pursuant to Chapter 536, RSMo., as amended, in the Circuit Court of the County of St. Louis. Such petition shall be filed within thirty (30) days after the City Administrator's final determination.

On agreement of the parties and in addition to any other remedies, any final decision of the City Administrator may be submitted to mediation or binding arbitration.

In the event of mediation, the City Administrator and the applicant shall agree to a mediator. The costs and fees of the mediator shall be borne equally by the parties and each party shall pay its own costs, disbursements and attorney fees.

In the event of arbitration, the City Administrator and the applicant shall agree to a single arbitrator. The costs and fees of the arbitrator shall be borne equally by the parties. If the parties cannot agree on an arbitrator, the matter shall be resolved by a three (3) person arbitration panel consisting of one (1) arbitrator selected by the City Administrator, one (1) arbitrator selected by the applicant or ROW user and one (1) person selected by the other two (2) arbitrators, in which case each party shall bear the expense of its own arbitrator and shall jointly and equally bear with the other party the expense of the third arbitrator and of the arbitration. Each party shall also pay its own costs, disbursements and attorney fees.

Section 400.990 Facilities Regulations.

[R.O. 1998 § 400.990; Ord. No. 2501 §4, 10-10-2007]

The following general regulations apply to the placement and appearance of facilities:

Facilities shall be placed underground, except when other similar facilities exist above ground or when conditions are such that underground construction is impossible, impractical or economically unfeasible as determined by the City and when in the City's judgment the aboveground construction has minimal aesthetic impact on the area where the construction is proposed. Facilities shall not be located so as to interfere, or be likely to interfere, with any public facilities or use of public property.

Facilities shall be located in such a manner as to reduce or eliminate their visibility. Non-residential zoning districts are preferred to residential zoning districts. Preferred locations in order of priority in both type districts are:

Thoroughfare landscape easements;

Rear yards; and

Street side yards on a corner lot behind the front yard setback. Placements within side yards not bordered by a street or within front yards are discouraged.

Facilities shall be a neutral color and shall not be bright, reflective or metallic. Black, gray and tan shall be considered neutral colors, as shall any color that blends with the surrounding dominant color and helps to camouflage the facilities. Sight-proof screening, landscape or otherwise, may be required for facilities taller than three (3) feet in height or covering in excess of four (4) square feet in size. Such screening shall be sufficient to reasonably conceal the facility. A landscape plan identifying the size and species of landscaping materials shall be approved by the Director prior to installation of any facility requiring landscape screening. The person responsible for the facilities shall be responsible for the installation, repair or replacement of screening materials. Alternative concealment may be approved by the Director to the extent it meets or exceeds the purposes of these requirements.

Facilities shall be constructed and maintained in a safe manner and so as to not emit any unnecessary or intrusive noise and in accordance with all applicable provisions of the Occupational Safety and Health Act of 1970, the National Electrical Safety Code and all other applicable Federal, State or local laws and regulations.

No person shall place or cause to be placed any sort of signs, advertisements or other extraneous markings on the facilities, except such necessary minimal markings approved by the City as necessary to identify the facilities for service, repair, maintenance or emergency purposes or as may be otherwise required to be affixed by applicable law or regulation.

If the application of this Subsection excludes locations for facilities to the extent that the exclusion conflicts with the reasonable requirements of the applicant, the Director shall cooperate in good faith with the applicant to attempt to find suitable alternatives, but the City shall not be required to incur any financial cost or to acquire new locations for the applicant.

Any person installing, repairing, maintaining, removing or operating facilities, and the person on whose behalf the work is being done, shall protect from damage any and all existing structures and property belonging to the City and any other person. Any and all rights-of-way, public property or private property disturbed or damaged during the work shall be repaired or replaced and the responsible person shall immediately notify the owner of the fact of the damaged property. Such repair or replacement shall be completed within a reasonable time specified by the Director and to the Director's satisfaction.

The applicant shall provide written notice to all property owners within one hundred eighty-five (185) feet of the site at least forty-eight (48) hours prior to any installation, replacement or expansion of its facilities. Notice shall include a reasonably detailed description of work to be done, the location of work and the time and duration of the work.

At the City's direction, a person owning or controlling facilities shall protect, support, disconnect, relocate or remove facilities, at its own cost and expense, when necessary to accommodate the construction, improvement, expansion, relocation or maintenance of streets or other public works or to protect the ROW or the public health, safety or welfare.

If a person installs facilities without having complied with the requirements of this Article or abandons the facilities, said person shall remove the facilities and if the person fails to remove the facilities within a reasonable period of time, the City may, to the extent permitted by law, have the removal done at the person's expense.

Facilities shall be subject to all other applicable regulations and standards as established as part of the City Code including, but not limited to, building codes, zoning requirements and the Rights-of-Way Usage Code in addition to the regulations provided herein.