[Adopted at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
In the exercise of governmental functions the Village has priority over all other uses of the public rights-of-way. The Village desires to anticipate and minimize the number of obstructions and excavations taking place therein and to regulate the placement of facilities in the rights-of-way to ensure that the rights-of-way remain available for public services and safe for public use. The taxpayers of the Village bear the financial burden for the upkeep of the rights-of-way, and a primary cause for the early and excessive deterioration of its rights-of-way is the frequent excavation by persons who locate facilities therein.
The Village finds increased use of the public rights-of-way and increased costs to the taxpayers of the Village and that these costs are likely to continue into the foreseeable future.
The Village finds that occupancy and excavation of its rights-of-way causes costs to be borne by the Village and its taxpayers, including but not limited to:
Administrative costs associated with public right-of-way projects, such as registration, permitting, inspection and supervision, supplies and materials.
Management costs associated with ongoing management activities necessitated by public right-of-way users.
Repair or restoration costs to the roadway associated with the actual excavation into the public right-of-way.
Degradation costs, defined as depreciation caused to the roadway in terms of decreased useful life, due to excavations into the public rights-of-way.
In response to the foregoing facts, the Village hereby enacts this article relating to administration of and permits to excavate, obstruct and/or occupy the public rights-of-way. This article imposes reasonable regulations on the placement and maintenance of equipment currently within its rights-of-way or to be placed therein at some future time. It is intended to complement the regulatory roles of state and federal agencies.
The purpose of this article is to provide the Village with a legal framework within which to regulate and manage the public rights-of-way and to provide for recovery of the costs incurred in doing so. This article provides for the health, safety and welfare of the residents of the Village as they use the rights-of-way of the Village, as well as ensuring the structural integrity of the public rights-of-way.
The following definitions apply in this article. References hereafter to "sections" are, unless otherwise specified, references to sections in this article. Defined terms remain defined terms whether or not capitalized.
- Any person requesting permission to excavate, obstruct and/or occupy a right-of-way.
- The Public Works Committee of the Village.
- The decrease in the useful life of the paved portion of the right-of-way, excluding the sidewalk right-of-way, caused by an excavation of the right-of-way, resulting in the need to reconstruct such right-of-way earlier than would be required if the excavation did not occur.
- A condition that poses a clear and immediate danger to life or health, or of a significant loss of property, or requires immediate repair or replacement in order to restore service to a customer.
- The Village Engineer or his/her designee.
- To dig into or in any way remove or physically disturb or penetrate any part of a right-of-way.
- All equipment owned, operated, leased or subleased in connection with the operation of a service or utility service and shall include but is not limited to poles, wires, pipes, cables, underground conduits, ducts, manholes, vaults, fiber optic cables, lines and other structures and appurtenances.
- When used in conjunction with "right-of-way," means over, above, within, on or under a right-of-way.
- LOCAL REPRESENTATIVE
- A local person or persons, or designee of such person or persons, authorized by a registrant to accept service and to make decisions for that registrant regarding all matters within the scope of this article.
- To place any object in a right-of-way so as to hinder free and open passage over that or any part of the right-of-way.
- Any person to whom a permit to occupy, excavate or obstruct a right-of-way has been granted by the Village under this article.
- A corporation, company, association, firm, partnership, limited liability company, limited liability partnership and individuals and their lessors, transferees and receivers.
- PREQUALIFIED CONTRACTOR
- A contractor approved by the Committee on an annual basis to work in the right-of-way.
- PUBLIC UTILITY
- Has the meaning provided in § 196.01(5), Wis. Stats.
- Any person who has registered with the Village to have its facilities located in any right-of-way.
- To perform construction work necessary to make the right-of-way usable for travel according to Committee specifications, or to restore equipment to an operable condition.
- RESTORE or RESTORATION
- The process by which an excavated right-of-way and surrounding area, including pavement and foundation, is reconstructed, per Committee specifications.
- The surface and space above and below an improved or unimproved public roadway, highway, street, bicycle lane and public sidewalk in which the Village has an interest, including other dedicated rights-of-way for travel purposes.
- The Village of Maple Bluff, Wisconsin, a Wisconsin municipal corporation.
The Director of Public Works or his/her designee is responsible for the administration of the rights-of-way and the permits and ordinances related thereto.
Each person who has, or seeks to have, facilities located in any right-of-way shall register with the Village Administrator and pay the fee set forth in § 192-20. Registration will consist of providing application information and paying a registration fee. This section shall not apply to those persons who have facilities in the right-of-way pursuant to a franchise or other agreement.
No person may construct, install, maintain, repair, remove, relocate or perform any other work on, or use any equipment or any part thereof in, any right-of-way unless that person is registered with the Village Administrator or is a prequalified contractor.
Nothing herein shall be construed to repeal or amend the provisions of a Village ordinance requiring persons to plant or maintain the tree lawn in the area of the right-of-way between their property and the street curb or pavement, construct sidewalks or driveways or other similar activities. Persons performing such activities shall not be required to obtain any permits under this article.
The information provided to the Village Administrator at the time of registration shall include but not be limited to the following:
Each registrant's name, Diggers' Hotline registration certificate number, address and e-mail address, if applicable, and telephone and facsimile numbers.
The name, address and e-mail address, if applicable, and telephone and facsimile numbers of a local representative. The local representative or designee shall be available at all times. Current information regarding how to contact the local representative in an emergency shall be provided at the time of registration.
A certificate of insurance on a form prescribed by the Committee.
If the registrant is a corporation, a limited liability company (LLC) or limited liability partnership (LLP), a copy of any certificate required to be filed under Wisconsin Statutes as recorded and certified by the Secretary of State.
A copy of the registrant's certificate of authority from the Wisconsin Public Service Commission or other applicable state or federal agency where the person is lawfully required to have such certificate from said Commission or other state or federal agency.
Execution of an indemnification agreement in a form prescribed by the Committee.
The registrant shall keep all of the information listed above current at all times by providing to the Village Administrator information as to changes within 15 working days following the date on which the registrant has knowledge of any change.
The Village shall charge an annual registration fee in an amount as set by the Village Board to recover the costs incurred by the Village for processing and updating registration information.
It is in the best interests of all affected parties to attempt to coordinate construction in the public right-of-way whenever it is reasonably possible. Therefore, periodic reporting by the registrant of known construction plans will be useful to achieve this objective.
Every registrant shall, at the time of registration and no later than January 1 of each year, file a construction and major maintenance plan with the Village Administrator. The Village Administrator shall make available at the time of registration, and on January 15 of each year, the Committee's construction and major maintenance plan. The registrant's plan and the Committee's plan shall be submitted on a form prescribed by the Committee and shall contain the information determined by the Committee to be necessary to facilitate the coordination and reduction in the frequency of excavations of rights-of-way. The plan shall include, but shall not be limited to, the following information:
By February 15 of each year the Village Administrator will have available for inspection in his/her office a composite list of all projects of which the Village Administrator has been informed in the annual plans. All registrants are responsible for keeping themselves informed of the current status of this list.
Thereafter, by February 1, each registrant may change any project in its list and must notify the Village Administrator of all such changes in said list. The Village Administrator will make all such changes available for inspection in his/her office. Notwithstanding the foregoing, a registrant may at any time join in a project of another registrant listed by the other registrant or undertake any maintenance or construction project not listed in the registrant's plan.
Excavation permit required. Except as otherwise provided in this article or other chapters of the Maple Bluff Code, no person shall excavate any right-of-way without first having obtained an excavation permit from the Committee. A copy of any permit issued under this article shall be made available at all times by the permittee at the indicated work site and shall be available for inspection by the Director of Public Works upon request.
Excavation permit application. Application for a permit shall be made to the Village Administrator. Permit applications shall contain and will be considered complete only upon compliance with the requirements of the following provisions:
Registration with the Village Administrator if required by this article.
Submission of a completed permit application form, including all required attachments, and scaled drawings showing the location and area of the proposed project and the location of all existing and proposed facilities that are part of applicant's proposed project.
Payment of all money due to the Village for:
Applicable permit fees and costs as set forth below;
The Committee shall not deny an applicant an excavation permit because of a dispute between the Village and the applicant related to Subsection B(3)(b) or (c) if:
The excavation permit fee shall be established by the Village Board in an amount sufficient to recover the costs incurred by the Village. This fee shall recover administrative and inspection costs, as well as degradation costs should the permittee choose to repair rather than restore the right-of-way. Payment of said fees shall be collected prior to issuance of the permit. However, the Director of Public Works may, with the advice and consent of the Village Administrator, establish a fee collection process from governmental agencies and private utilities in order to expedite the permitting system and recognize that certain excavations are deemed emergencies.
Waiving of fees. Fees shall not be waived unless the work involved is a direct result of the Director of Public Works' demand that a plant owned by a utility be removed or relocated or unless waived by the Public Works Committee on appeal.
The minimum fee for each excavation permit shall be set by the Village Board. Excavation permits for utility work in new subdivisions and within the limits of public works projects, where the work is undertaken prior to the installation of pavement, shall only be charged the minimum fee. The fee for a permit issued after commencing work, except in cases of emergency as determined by the Village President, shall be double the fees set forth herein. This permit fee shall be in addition to any forfeiture provided elsewhere in this article.
For those permit applications which provide for a substantial undertaking of excavation within the public right-of-way attended by disruption of the general public and traffic, the Village President is authorized to assess the actual cost of the Village employees' time engaged in the review and inspection of the anticipated work multiplied by a factor determined by the Village President to represent the Village's cost for statutory expense, benefits, insurance, sick leave, holidays, vacation and similar benefits, overhead and supervision, said factor not to exceed 2.0, plus the cost of mileage reimbursed to Village employees which is attributed to the work, plus all consultant fees associated with the work at the invoiced amount plus 10% for administration.
Village exemption. The Village and its contractors shall not pay degradation fees for excavations due to general government functions.
Permit fees paid for a permit that the Committee has revoked are not refundable.
The permittee shall be required to repair the public right-of-way to Committee specifications, subject to inspection and acceptance by the Committee, and to pay a degradation fee, as per Subsection C, unless the permittee elects to restore the right-of-way pursuant to Subsection D. In addition to repairing its own work, the permittee must repair the general area of the work and the surrounding areas, including the paving and its foundations, to the specifications of the Committee. The Committee shall inspect the area of the work and accept the work when it determines that proper repair has been made, per specifications of the Committee.
Guarantees. The permittee guarantees its work and shall maintain it for 36 months following its completion. During this period it shall, upon notification from the Committee, correct all work to the extent necessary, using the method required by the Committee. Said work shall be completed within 10 calendar days of the receipt of the notice from the Committee, not including days during which work cannot be done because of circumstances constituting force majeure.
Failure to repair/restore. If the permittee fails to repair/restore the right-of-way in the manner and to the condition required by the Committee or fails to complete satisfactorily and timely all work required by the Committee, the Committee at its option may do such work. In that event the permittee shall pay to the Village, within 30 days of billing, the cost of repairing/restoring the right-of-way.
Degradation. The general formula for computing the degradation fee shall be the cost per square yard for street, overlay and seal coat multiplied by the appropriate depreciation rate for that street multiplied by the area of the patch. The area or the patch shall be calculated by adding one foot to each side of the actual street cut. The degradation fee schedule is provided in Figure 1 on file at the office of the Clerk-Treasurer.
Restoration in lieu of repair and degradation. The permittee may elect to restore the excavation and surrounding pavement in lieu of repair and a degradation fee. The restoration shall be in accordance with the Standard Specifications for Public Works Construction and the plans and specifications of the Committee. The permittee shall then also comply with Subsections A and B.
Notice of completion. When the work under any permit hereunder is begun and completed, the permittee shall notify the Committee.
Site inspection. The permittee shall make the work site available to the Committee and to all others as authorized by law for inspection at all reasonable times during the execution of and upon completion of the work.
Authority of Committee. At the time of inspection the Village may order the immediate cessation of any work which poses a threat to the life, health, safety or well-being of the public. The Village may issue an order to the registrant or permittee for any work that does not conform to the applicable Village standards, conditions or codes. The order shall state that failure to correct the violation will be cause for revocation of the permit. Within 10 days after issuance of the order, the registrant or permittee shall present proof to the Committee that the violation has been corrected. If such proof has not been presented within the required time, the Committee may revoke the permit pursuant to § 192-28.
The cost of trimming trees around facilities is an ongoing cost to the Village. The specific cost will be determined and a fee to offset those costs may be assessed in the future.
Obtaining a permit to excavate and/or occupy the right-of-way does not relieve permittee of its duty to obtain all other necessary permits, licenses, and authority and to pay all fees required by any other Village, county, state, or federal rules, laws or regulations. A permittee shall comply with all requirements of local, state and federal laws. A permittee shall perform all work in conformance with all applicable codes and established rules and regulations and is responsible for all work done in the right-of-way pursuant to its permit, regardless of who does the work.
The Committee may refuse to issue a permit or may revoke, suspend or refuse to extend an existing permit if it finds any of the following grounds:
The applicant or permittee is required to be registered and has not done so.
Issuance of a permit for the requested date would interfere with an exhibition, celebration, festival or other event.
Misrepresentation of any fact by the applicant or permittee.
Failure of the applicant or permittee to maintain required bonds and/or insurance.
Failure of the applicant or permittee to complete work in a timely manner.
The proposed activity is contrary to the public health, safety or welfare.
The extent to which right-of-way space where the permit is sought is available.
The competing demands for the particular space in the right-of-way.
The availability of other locations in the right-of-way or in other rights-of-way for the facilities of the permittee or applicant.
The applicability of ordinances or other regulations of the right-of-way that affect location of facilities in the right-of-way.
Discretionary issuance. The Committee may issue a permit where issuance is necessary to:
Appeals. Any person aggrieved by a decision of the Public Works Committee revoking, suspending, refusing to issue or refusing to extend a permit may file a request for review with the Village Board. A request for review shall be filed within 10 days of the decision being appealed. Following a hearing, the Village Board may affirm, reverse or modify the decision of the Public Works Committee.
Each registrant shall immediately notify the Village by verbal notice on an emergency phone number provided by the Village of any event regarding its facilities that it considers to be an emergency. The registrant may proceed to take whatever actions are necessary to respond to the emergency. Within two business days after the occurrence of the emergency the registrant shall apply for the necessary permits, pay the fees associated therewith and otherwise fully comply with the requirements of this article.
If the Village becomes aware of any emergency regarding a registrant's facilities, the Committee may attempt to contact the local representative of each registrant affected, or potentially affected, by the emergency. The Village may take whatever action it deems necessary to protect the public safety as a result of the emergency, the cost of which shall be borne by the registrant whose facilities occasioned the emergency.
Nonemergency situations. Except in an emergency, any person who, without first having obtained the necessary permit, excavates a right-of-way must subsequently obtain a permit and shall, in addition to any penalties prescribed by ordinance, pay double the normal fee for said permit, pay double all the other fees required by this article or other chapters of the Maple Bluff Code, deposit with the Committee the fees necessary to correct any damage to the right-of-way and comply with all of the requirements of this article.
Undergrounding. Unless in conflict with state or federal law, except when existing aboveground facilities are used, the installation of new facilities and replacement of old facilities shall be done underground or contained within buildings or other structures in conformity with applicable codes.
Limitation of space. The Committee may prohibit or limit the placement of new or additional facilities within the right-of-way if there is insufficient space to accommodate all of the requests of persons to occupy and use the right-of-way. In making such decisions, the Committee shall strive to the extent possible to accommodate all existing and potential users of the right-of-way but may prohibit or limit the placement of new or additional facilities when required to protect the public health, safety or welfare.
Attachment to bridges. Whenever an applicant or permittee under this section requests permission to attach pipes, conduits, cables or wires to any Village bridge structure, the applicant shall pay a fee as set by the Village Board upon the granting of such permission to help defray administrative expense in the analysis and inspection of such installation. The owner of such pipes, conduits, cables or wires shall be entitled to no compensation for removal or relocation of the same in the case of repair, removal, or replacement of said bridge structure by the Village.
A registrant must, promptly and at its own expense, permanently remove and relocate its facilities in the right-of-way whenever the Village, acting in its governmental capacity, requests such removal and relocation. If requested, the registrant shall restore the right-of-way. Notwithstanding the foregoing, a person shall not be required to remove or relocate its facilities from any right-of-way which has been vacated in favor of a nongovernmental entity unless and until the reasonable costs thereof are first paid to the person therefor.
When the Village performs work in the right-of-way and finds it necessary to maintain, support, shore, or move a registrant's facilities, the Village shall notify the local representative. The registrant shall meet with the Village's representative within 24 hours and coordinate the protection, maintenance, supporting and/or shoring of the registrant's facilities. The registrant shall accomplish the needed work within 72 hours, unless the Village agrees to a longer period.
In the event that the registrant does not proceed to maintain, support, shore or move its facilities, the Village may arrange to do the work and bill the registrant, said bill to be paid within 30 days.
A registrant which has determined to discontinue its operations in the Village must either:
Provide information satisfactory to the Committee that the registrant's obligations for its facilities under this article have been lawfully assumed by another registrant; or
Submit to the Committee a proposal and instruments for dedication of its facilities to the Village. If a registrant proceeds under this subsection, the Village may, at its option:
Accept the dedication for all or a portion of the facilities;
Require the registrant, at its own expense, to remove the facilities in the right-of-way at ground or above ground level; or
Require the registrant to post a bond or provide payment sufficient to reimburse the Village for reasonably anticipated costs to be incurred in removing the facilities.
However, any registrant which has unusable and abandoned facilities in any right-of-way shall remove them from that right-of-way within two years, unless the Committee waives this requirement.
Unused facilities. Facilities of a registrant which fails to comply with Subsection A(1) and which, for two years, remain unused shall be deemed to be abandoned. Abandoned facilities are deemed to be a nuisance. In addition to any remedies or rights it has at law or in equity the Village may, at its option, abate the nuisance, take possession of the facilities, or require removal of the facilities by the registrant or the registrant's successor in interest.
Public utilities. This section shall not apply to a public utility, as defined by § 196.01(5), Wis. Stats, that is required to follow the provisions of § 196.81, Wis. Stats.
The Village, by the granting of a permit to excavate, obstruct and/or occupy the right-of-way or by registering a person under this article, does not surrender or to any extent lose, waive, impair, or lessen the lawful powers and rights which it has now or which may be hereafter granted to the Village under the Constitution and Statutes of the State of Wisconsin to regulate the use of the right-of-way by the permittee, and the permittee by its acceptance of a permit to excavate, obstruct and/or occupy the right-of-way or of registration under this article:
Agrees that all lawful powers and rights, regulatory powers, or police powers or otherwise as are or the same may be from time to time vested in or reserved to the Village shall be in full force and effect;
Shall be subject to the regulatory and police powers of the Village to adopt and enforce general ordinances necessary to the safety and welfare of the public; and
Is deemed to agree to comply with all applicable general law and ordinances enacted by the Village pursuant to such powers.