Town of Cottage City, MD Streets and Sidewalks

[Amended 10-12-2016 by Ord. No. 2016-08; 3-13-2019 by Emergency Ord. No. 2019-02]

Adoption of County Law. The Cottage City Commission hereby adopts by reference herein the ordinance, as amended from time to time, entitled "The Road Ordinance of Prince George's County, Maryland" codified in Subtitle 23 of the Prince George's County Code, and further adopts herein, minimum standards for street construction and repairs applicable to utility companies installing or maintaining utility facilities or improvements in the public ways as found in a document known as the "Prince George's County Policy and Specification for Utility Installation and Maintenance," as amended, sometimes referenced herein as the "County Specifications Manual," incorporated by reference herein as Appendix A and made available for inspection at Town Hall, as well as the Prince George's County Specifications and Standards for Roadways and Bridges, and the MDOT SHA Standard Specifications for Construction and Materials. Any references to officials or agents of the county government found in county law adopted herein shall be construed to apply to the applicable officials or agents of Town government.

Regulatory scope; definitions; installation and restoration standards; WSSC.

(1)

Except as otherwise stated in this chapter, from and after the effective date of this chapter, no person, or entity including but not limited to a private or public utility company, or contractor shall grade, install, cut, construct, or reconstruct any surface material, subsurface material, paving, drainage structure, curb, gutter, sidewalk, driveway entrance, retaining wall, step, equipment, cable, pole, tower or any other structure within the right-of-way of any public street, road, highway, avenue, lane, alley, or public way under the jurisdiction of the Town unless said person or entity shall first obtain a permit from the Town Manager or his designee, and comply with all applicable provisions of this chapter and referenced law.

(2)

The following definitions apply to this section:

ANTENNA

That part of a wireless telecommunications facility designed to radiate or receive RF signals or electromagnetic waves for the provision of services, including, but not limited to, cellular, paging, personal communications services and microwave communications.

COLLOCATION

The same as defined by the FCC in 47 CFR § 1.40001(b)(2), as may be amended, which defines that term as the mounting or installation of transmission equipment on an eligible pole for the purpose of transmitting or receiving RF signals for communications purposes. As an illustration and not a limitation, the FCC's definition effectively means "to add" and does not necessarily refer to more than one wireless telecommunication facility installed at a single site.

COMMUNICATIONS FACILITY

Collectively, the equipment at a fixed location or locations within a Town right-of-way that enables communications services, including:

(a)

Radio transceivers, antennas, coaxial, fiber-optic or other cabling, power supply, backup battery, and comparable equipment, regardless of technological configuration; and

(b)

All other equipment associated with any of the foregoing. A communications facility does not include the pole, tower or support structure to which the equipment is attached.

COMMUNICATIONS SUPPORT STRUCTURE

A pole located in the Town right-of-way or proposed to replace an existing pole in the right-of-way to which communications facilities, such as small cells or other communications facilities, are attached or proposed or intended to be attached.

FCC

The Federal Communications Commission.

INVESTOR-OWNED UTILITY POLE

A utility pole that is not owned by the Town.

PERMITTEE

The person that receives a permit to work in or install facilities, equipment or structures in the right-of-way under this chapter and the person that owns facilities, equipment or structures permitted to be installed under this chapter, including the permittee's officials, employees, agents, and contractors.

POLE

A single shaft of wood, steel, concrete, or other material typically at least 26 feet tall and capable of supporting the equipment mounted thereon in a safe and adequate manner, including an investor-owned utility pole.

Radio frequency or electromagnetic waves between 30 kHz and 300 GHz in the electromagnetic spectrum range.

SUBSTANTIAL CHANGE

The same as defined by the FCC in 47 CFR § 1.40001(b)(7), as may be amended, and as applicable to facilities in the public right-of-way, which defines that term as a collocation or modification that:

(a)

Increases the overall height more than 10% or 10 feet (whichever is greater);

(b)

Increases the width more than six feet from the edge of the communications structure;

(c)

Involves the placement of any new enclosures on the ground when there are no existing ground-mounted enclosures;

(d)

Involves the placement of any new ground-mounted enclosures that are 10% larger in height or volume than any existing ground-mounted enclosures;

(e)

Involves excavation or deployment of equipment outside the area in proximity to the installation and other wireless communications equipment already deployed on the ground;

(f)

Would defeat the existing concealment elements of the communications support structure as determined by any uniform guidelines promulgated by the Commission or the Town Manager or her designee; or

(g)

Violates a prior condition of approval of a permit for the site.

UTILITY

An organization franchised by the Town, county or state government or otherwise authorized by law to install, operate and maintain facilities in public rights-of-way for the purpose of distribution of fuel or energy, for communication, or the distribution of a public water supply and collection and conveyance of sanitary sewage or stormwater.

(3)

The technical standards for acceptable temporary and permanent utility patching in flexible asphalt pavement shall be the same as those found in Standards 300.18 and 300.19, along with the mill and overlay requirements for roadways under the five-year moratorium period, Attachment 6, as published in the County Specifications Manual.

(4)

Communications structures or facilities. A permit shall not be issued for a proposed structure or facility when the location selected in the application is in an area where there is an overconcentration of structures or facilities in, on or over the right-of-way, as determined by the Town Manager or her designee or in the Town Manager's or her designee's reasonable discretion and judgment. Any pole, equipment box, or other structure installed in a Town right-of-way must:

(a)

Comply with all structural and safety standards specified in this chapter and by the Town Manager in the permit conditions or any uniform guidelines promulgated by the Cottage City Commission by resolution;

(b)

Not obstruct pedestrian or vehicular traffic flow or sight lines;

(c)

Comply with the Americans with Disabilities Act;

(d)

If a pole, be at least 26 feet in height or comparable height with existing utility poles, but not exceed 50 feet above ground level;

(e)

If a replacement of an existing pole, not exceed the height of the existing pole by more than 10 feet;

(f)

If an equipment box (ground mounted), not exceed a size of 28 cubic feet and, if located in the floodplain, shall be elevated on platforms, and subject to other placement requirements established by the Town Manager in the permit conditions or any uniform guidelines promulgated by the Cottage City Commission by resolution;

(g)

Not obstruct parking, including preventing persons from entering and exiting vehicles parked in the right-of-way and in such manner that will not interfere with the use of other property;

(h)

Have a color and finish determined in consultation with the Town Manager or her designee or any uniform guidelines promulgated by the Cottage City Commission by resolution to minimize visual impact to the neighborhood, taking into consideration any historic area or site designations; and

(i)

Comply with such other requirements and conditions as the Town Manager may determine are appropriate. In the event that strict compliance with any provision of this chapter or any uniform guidelines promulgated by the Commission, as applied to a specific proposed communications facility or structure, would effectively prohibit the provision of services, the Town Manager may grant a limited, one-time exemption from strict compliance. Communications facilities and support structures, wires, cables, fixtures, and other equipment shall be installed and maintained in substantial compliance with the requirements of the National Electric Code, and all FCC, state, and local regulations.

(5)

Antennae and other attachments. No person shall install any attachment to a pole or other structure in the Town right-of-way without first obtaining a permit from the Town. All attachments to structures in the Town right-of-way must:

(a)

For each pole, have an equipment box (pole mounted) or boxes no greater in collective size than six cubic feet in volume or the volume established by the Town Manager or designee or any uniform guidelines promulgated by the Cottage City Commission by resolution;

(b)

Have a color and finish determined in consultation with the Town Manager or her designee to minimize visual impact to the neighborhood, taking into consideration historic area or site designations;

(c)

If an antenna, be attached to an existing pole or replacement pole and be demonstrated to be the least visible antenna possible to accomplish the coverage objectives and be screened, shrouded, or concealed, or treated to minimize visual and acoustic impact, as determined in consultation with the Town Manager or her designee, taking into consideration any historic area or site designations or any Cottage City Commission promulgated guidelines. Antenna elements shall be flush mounted, to the extent reasonably feasible. All antenna mounts shall be designed so as not to preclude possible future collocation by the same or other operators or carriers. Antennas shall be situated so as to reduce visual and acoustic impact without compromising their function.

(d)

Comply with such other requirements and conditions as the Town Manager or her designee may determine are necessary and appropriate. All wires, cables, fixtures, and other equipment shall be installed and maintained in substantial compliance with the requirements of the National Electric Code, and all FCC, state, and local regulations.

(6)

Pursuant to § 27-101 et seq. of the Public Utilities Article of the Annotated Code of Maryland, the Washington Suburban Sanitary Commission ("WSSC"), as a state agency, is generally considered exempt from this section; however, WSSC is required by statute to repair and leave the public roadway in the same or a superior condition to that existing before the public roadway was disturbed and furthermore to pay all costs for returning the public roadway to the same or superior condition.

Completion and acceptance of improvements, installations or repairs. Unless otherwise stated in this chapter, work permitted in an approved permit shall be completed within 120 days or the permit lapses. Upon completion, any construction, improvements, repairs, installations or other activity as certified by the Town as being in full compliance with this chapter and the County Specifications Manual, as applicable, and notification thereof to the Town, the road, sidewalk, or whatever work was performed in the right-of-way shall be deemed to be accepted for maintenance by the Town from and after the acceptance date. Privately-owned equipment, investor-owned utility poles or other public entity-owned infrastructure including communications support structures or facilities shall not be accepted for maintenance by the Town.

Permit required, fees, application forms, review deadlines and records.

(1)

A permit as required by this section obtained from the Town Manager or his designee may be issued, the regulatory fees for which shall be established herein or amended by the Commission by written resolution adopted from time to time. Any applicant obtaining a Town construction permit involving abutting real property, in addition to any permits required of this section, shall receive a credit for any additional permits issued under this section.

(2)

Unless the Commission establishes such fees or fee schedule by resolution, all applicable fees found in county law as incorporated herein shall be comparable to or shall be calculated pursuant to the applicable county provision or County Specifications Manual using the Town's version of the utility permit fee calculation sheet, which is a modified attachment of said County Specifications Manual. Except as provided for in Subsection E, for communications facilities and structures, the various permit fees are initially established as follows:

(a)

Special utility permit fee. This permit typically covers completely new utility pipeline or facility construction and includes an administrative and inspection fee, a moratorium fee, if applicable, and any required engineering fee as follows:

[i]

Administrative and inspection fee: A $250 flat or lump sum fee, plus $2 per linear feet of installed utility within the paved area, $0.50 per linear feet for underground work outside the improved roadway, or plus $0.20 per liner feet for aerial utility facility installations;

[ii]

Moratorium or impact fee: $10 per linear foot of roadway cut paid for disturbance of streets less than five years old since paving; and

[iii]

Engineering fees: A variable lump sum as described in Subsection G.

(b)

Maintenance utility permit fee. This permit typically covers routine maintenance or repairs of existing facilities, which may be paid upon issuance or on a quarterly or other periodic basis in the form of an escrow account, and includes an application and processing fee, an administration and inspection fee and any engineering fees as follows:

[i]

Application and processing fee: $250;

[ii]

Administrative and inspection fee: $125 for small cuts (i.e., < 100 square feet), $300 for large cuts including other fees as further described in Section 3.3.2 of the County Specifications Manual; and

[iii]

Engineering fees: A variable lump sum as described in Subsection G.

(c)

Extension fee. The special utility permit shall be issued for a standard duration of 90 calendar days. A $100 fee shall be paid to extend the duration of a special utility permit.

(3)

Any forms, applications, form letters, schedules, documents, worksheets, templates, or permit fee calculation sheets prepared or used by the county government pursuant to county law, as incorporated by reference in this section, may be modified for use by an applicant, subject to further modification and approval by the Town for conformity to this section, when applying for any permits required by this section. The permit application may include and require any additional data and detail required by any uniform guidelines promulgated by the Cottage City Commission by resolution, or as required by the Town Manager or his or her designee.

(4)

The Town Manager or his or her designee shall obtain and maintain photographs of the proposed and finished work areas in order to document the before and after condition of the effected municipal property. These photographs shall be maintained by the Town records custodian with the permit file pursuant to the Town's approved records retention schedule.

(5)

An applicant may be required to obtain multiple permits (e.g., a special or maintenance utility permit to dig in the right-of-way and a communications facilities or communications support structures permit to install and operate a small cell) issued under this chapter depending on the scope of the installation or disturbance to the right-of-way.

(6)

Notwithstanding anything in this section to the contrary, permit applications including communications facilities or communications support structures shall be reviewed and a decision rendered according to the following time periods, or "shot clocks" as required by federal law:

(a)

Minor change applications (i.e., collocate small cell infrastructure on an existing pole) shall be reviewed and rendered within 60 days of the date of filing.

(b)

Substantial change applications (i.e., place small cell infrastructure on a newly installed pole) shall be reviewed and rendered within 90 days of the date of filing.

Fees charged for permit applications for communications facilities or communications support structures shall be as follows:

(1)

An initial nonrecurring fee of $500 for a single up-front application that includes up to five communications facilities (e.g., collocated small cells), with an additional $100 for each communications facility added beyond five; and

(2)

A nonrecurring fee of $1,000 for a new or extended communications support structure or pole (i.e., not a collocation) intended to support one or more communications facility; and

(3)

A recurring annual fee of $270 per communications facility (e.g., a communications support facility having five collocated small cells or antennae incurs a $1,350 annual fee) per year to cover permitted access to the right-of-way ("ROW") or access including the attachment to Town-owned structures located in the ROW. A permittee who allows or agrees to collocation on or within its communications support facility located in the Town ROW by another person, contractor, or lessee shall notify the Town and said other person or entity shall make application for a permit under this chapter. The Town may require a separate franchise or right-of-way use agreement in lieu of the recurring annual fee provided for in this subsection.

Authority to hire Town Engineer to supervise or inspect street improvements. The Town Manager is authorized to employ the services of an engineer for purposes of supervising or inspecting any street improvements or installations described in this section, and may require as a condition of granting a permit under this section that all street improvements or installations be subject to the supervision or inspection of the Town's designated engineer.

Engineering fee. In making application for authorization and a permit as provided in this section, the applicant shall designate whether or not the work will be performed under the supervision of his own licensed engineer. If the applicant has the service of his own engineer, he shall, in addition, pay to the Town the sum of 3% of the total cost of such improvements to cover the actual expense of inspection of the improvements by the Town. If the applicant does not have the services of an engineer, he shall pay to the Town the sum of 6% of the total cost of such improvements to cover the expense of preparing plans and specifications and for supervision and inspection of the improvements by the Town. Any surplus or unused balance of this fee shall be refunded to the applicant once the project is certified and accepted by the Town. Should the Town incur additional costs for engineering services exceeding the amounts stated herein, the Town Manager may invoice the permittee after giving reasonable notice and an opportunity to alter the extent of its maintenance project or improvements, if practical. These fee requirements are in addition to the various permit fees established by this section and which altogether or in part may be waived or modified by the Commission by written resolution, or motion recorded in the journal.

Sunday and holiday work.

(1)

No work shall be permitted on Sunday, except in cases of emergency, and then only to such extent as it is absolutely necessary and with written permission of the Town Manager. The permit holder shall not be permitted to work on any days which are legal Town holidays as designated by the Commission, unless granted permission by the Town Manager. If a permittee desires to work on any such legal holidays, permission shall be sought from the Town Manager in writing at least three days in advance of such holiday. The request shall state the place where such work is to be conducted.

(2)

Work hours. No work shall be performed after 6:00 p.m. or before 7:00 a.m. without prior written approval by the Town Manager.

Responsibility for damages; indemnification, compliance; installation removals.

(1)

The permit holder shall assume all responsibility for damages sustained to persons or property due to the carrying on of his work, and shall be responsible for all accidents to persons and property, saving the Town harmless from all damages resulting from any accidents which may occur to the construction operations. The permittee is responsible for the repairs of damages prior to release of any applicable bond. If the Town is made a party to any action because of the granting of a permit to the permit holder the permit holder shall be required to pay all costs and fees incurred by the Town, including the legal fees of the Town Attorney or other legal counsel.

(2)

Any operator, owner or permittee who owns or operates communications facilities or communications support structures in the right-of-way shall indemnify, protect, defend, and hold the Town and its elected officials, officers, employees, agents, and volunteers harmless against any and all claims, lawsuits, judgments, costs, liens, losses, expenses, fees to include reasonable attorney fees and costs of defense, proceedings, actions, demands, causes of action, liability and suits of any kind and nature, including personal or bodily injury or death, property damage or other harm for which recovery of damages is sought, to the extent that it is caused by the negligence of the operator who owns or operates communications facilities and communications support services in the right-of-way, any agent, officer, director, representative, employee, affiliate, or subcontractor of the operator, or their respective officers, agents, employees, directors, or representatives while installing, repairing, or maintaining facilities in the right-of way.

(3)

Anything installed in the Town right-of-way without a permit or in violation of the terms and conditions of a permit or otherwise is abandoned shall be removed upon demand by the Town, and the Town shall have the authority to remove the installation or structure and restore the right-of-way and charge the cost of the removal and restoration to the person that caused the installation or disturbance.

(4)

If applicable state, county or federal standards and regulations are amended, the owners of a communications facility, or communications support structure governed by this chapter shall bring any facilities and/or structures into compliance with the revised standards and regulations within six months of the effective date of the standards and regulations, unless a different compliance schedule is mandated by the regulating agency. Failure to bring facilities and/or communications support structures into compliance with any revised standards and regulations shall constitute grounds for removal at the owner's expense.

(5)

The operator, owner or permittee shall remove and relocate the permitted improvements, infrastructure, communications facility and/or support structure at the operator's sole expense to accommodate construction of a public improvement project by or for the Town.

Compliance with safety requirements of the Town Manager.

(1)

The person or entity to whom a permit is issued pursuant to this section and any agents, servants and subcontractors shall comply with all written requirements of the Town Manager directed to the permittee, either before or during the course of construction or work, which are deemed necessary in the interest of public safety or for the avoidance of unnecessary inconvenience to the public during such construction.

(2)

The permittee shall have the legal duty to provide for the following, whether or not included in the written requirements of the Town Manager:

(a)

Proper lighting and barricading of excavations or other hazards at all times;

(b)

Adequate access, including snow removal from the road to driveways and sidewalks abutting occupied residences;

(c)

Control of dust conditions, as directed by the inspector;

(d)

Correction of muddy or soft subgrade by placement of temporary gravel or stone thereon;

(e)

Prompt removal of any dirt and debris from streets in and adjacent to the work area during the construction period, as directed by the inspector;

(f)

Other measures, as directed by the inspector or Chief of Police, to ensure the public safety.

Conflict of laws and waivers. Except as otherwise provided in this section, in any case where a provision of this chapter is found to be in conflict with a provision of any road construction, zoning, building, grading, housing, fire, safety, health or any other ordinance or Code of this Town, Prince George's County, or the State of Maryland existing on the effective date of this section, the provision which establishes the higher standard for the promotion and protection of the health, safety and welfare of the public shall prevail. The Commission may expressly grant waivers from the strict application of this section.

Approval of the Planning Commission, Sanitary Commission of Prince George's County or other entities. If any design for anticipated work covered by the application for a permit required by this chapter requires further approval by the Maryland-National Capital Park and Planning Commission, Washington Suburban Sanitary Commission, "Miss Utility," the Maryland Department of the Environment, the Prince George's County Department of Environmental Resources or the Prince George's County Soil Conservation District, the applicant shall certify to the Town that the proposed application for work has been properly approved by said agencies or entities and that the work shall conform to all other applicable Town, county, state and federal laws, rules, regulations and ordinances.

Penalties for violation.

(1)

Any person or entity making street improvements or repairs as described in this section without first obtaining the authorization and permit, in violation of the provisions of this section, which is declared to be a misdemeanor, shall, upon conviction thereof, be subject to a fine of not more than $1,000 or imprisonment of not more than six months, or both.

(2)

The following violations of this section shall be considered municipal infractions:

(a)

Knowingly submitting a false or incomplete permit application;

(b)

Failure to respond to a corrective order issued by a Town official or inspector;

(c)

Construction which does not comply with an approved plan, specification or permit;

(d)

Working on work days or during work hours prohibited by this section;

(e)

Working during the period of a stop-work order; and

(f)

All other violations of provisions of this section.

(3)

Except as stated in Subsection M(1), violations of this section shall be considered a municipal infraction and are subject to the maximum fine for a municipal infraction permitted by the Town Charter. Each day a violation continues is deemed a separate offense and is subject to an additional citation and fine.

(4)

In addition to any other fine, penalty, or remedy, a violator may be required to remove or restore, within five calendar days of the date of notification of the violation, any structure, alteration, addition or excavation, erected or commenced, and constituting the basis of the violation, and if so required, upon expiration of such five days, each additional day during which that person shall not have so removed or restored the same, shall constitute a further and separate violation subject to such fine.

(5)

The Town also may correct or abate any such condition, or discrepancy at the violator's expense and, after obtaining a judgment from the court, certify any costs thereof to the County Finance Office to be collected in the same manner as taxes.

Administrative and judicial review.

(1)

A decision of the Town Manager or other official of the Town under this section may be appealed for error to the Cottage City Commission.

(2)

Except as stated herein, any person aggrieved by a decision of the Cottage City Commission with regard to an application for a permit filed under the provisions of this section and who appeared before the Cottage City Commission in person, by an attorney, or in writing, shall have the right to appeal the decision of the Commission to the Circuit Court for Prince George's County, Maryland under the provisions of Title 7, Chapter 200, of the Maryland Rules of Procedure.

(3)

Denial of a refund of any fee paid to the Town as required by this chapter may be appealed pursuant to Title 13 of the Tax-General Article of the Annotated Code of Maryland to the Maryland Tax Court.

(4)

The Town shall advise the applicant in writing of its final decision supported by substantial evidence, findings and conclusions of law.

(5)

The provisions of this section are declared separate and severable. If any clause, sentence, paragraph, subdivision, or portion of this section or the application thereof to any person or circumstance is held to be invalid, it shall not affect the validity of the remainder of this section or the validity of its application to other persons or circumstances.