ARTICLE 2. RIGHT OF WAY MANAGEMENT
20-201 Definitions.
For purposes of this article, the following words and phrases shall have the meaning given herein:
“Abandoned Facilities” means above-grade Facilities owned by a ROW-user that remain unused for six (6) months or below-grade Facilities owned by a ROW-user that remain unused for two (2) years.
“Applicant” means any Person requesting permission to occupy, lease or operate Facilities using the Right-of-way, or to Excavate any area within the Right-of-way.
“City” means the City of Newton, Kansas, a municipal corporation and any authorized representative.
“City Engineer” means the City Engineer of the City of Newton, Kansas, or any authorized representative. The City Engineer may delegate any or all of the duties within this Ordinance.
“Construct” means and includes install, erect, build, affix or otherwise place any fixed structure or object, in, on, under, through or above the Right-of-way.
“Day” means calendar Day unless otherwise specified.
“Driveway Approach” means any improved surface connecting private property to a public street.
“Emergency” means a condition that (a) poses a clear and immediate danger to life or health or of a significant loss of property; or (b) requires immediate Repair or replacement in order to restore service to a user.
“Excavate” means and includes any cutting, digging, excavating, tunneling, boring, grading or other alteration of the surface or subsurface material or earth in the Right-of-way.
“FCC” means Federal Communications Commission.
“Facility” or “Facilities” means lines, pipes, irrigation systems, wires, cables, conduit Facilities, ducts, poles, towers, vaults, pedestals, boxes, appliances, antennae, transmitters, gates, meters, appurtenances, wireless communications Facilities or other equipment.
“Governing Body” means the City Commission of the City of Newton, Kansas.
“Governmental Entity” means any county, township, city, town, village, school district, library district, road district, drainage or levee district, sewer district, water district, fire district or other municipal corporation, quasi-municipal corporation or political subdivision of the State of Kansas or of any other state of the United States and any agency or instrumentality of the State of Kansas or of any other state of the United States.
“KCC” means the Kansas Corporation Commission.
“Minor Street Privilege” means any authorized or permitted private right in, on, under, or over public streets, alleys, or ways, separate and distinct from the general public use of streets, alleys, and ways. As used in this article, the term shall not apply to the approved short-time use of public space in connection with building construction, nor shall it apply to a public utility operating under a franchise granted by the City. Minor Street Privilege shall include the installation of break-away mailbox supports approved by the postmaster general. Mailbox supports can be buried no more than twenty-four (24) inches, and cannot be larger than four (4) inches by four (4) inches if made of wood, or have a diameter of more than two (2) inches if made of standard steel or aluminum pipe. All mailbox supports should break away if struck by a vehicle, and the mailbox should be securely attached to the support to prevent separation from the support if struck.
“Pavement” means and includes cement concrete Pavement, asphalt concrete Pavement, asphalt treated road surfaces or any aggregate material.
“Permit Fee” means the fee charged by the City to recover its cost incurred for Right-of-way management, including, but not limited to, administrative costs associated with assisting applicants; issuing, processing, and verifying Right-of-way Permit applications; inspecting job sites and Restoration of improvements; determining the adequacy of Right-of-way Restoration; revoking Right-of-way Permits; and other costs the City may incur in managing the provisions of this article.
“Permittee” means any Person to whom a Right-of-way Permit is issued to perform excavation or work regulated by this article in a Right-of-way.
“Person” means any natural or corporate Person, business association or business entity including, but not limited to, a partnership, a sole proprietorship, a political subdivision, a public or private agency of any kind, a utility, a successor or assign of any of the foregoing, or any other legal entity.
“Public Improvement” means any project undertaken by the City for the construction, reconstruction, maintenance, or Repair of any public infrastructure, and including without limitation, Streets, alleys, bridges, bikeways, Sidestrips, sidewalks, sewers, drainage Facilities, traffic control devices, Street lights, public Facilities, public buildings or Public Lands.
“Public Lands” means any real property owned or leased by the City that is not Right-of-way.
“Repair” means the temporary construction work necessary to make the Right-of-way useable.
“Repair and Restoration Costs” means those costs associated with Repairing or restoring the public Right-of-way because of damage caused by the ROW-user or its contractors or subcontractors in the Right-of-way.
“Restoration” means the process by which an excavated Right-of-way and surrounding area, including Pavement and foundation, is returned to the same condition, or better, that existed before the commencement of the work.
“Right-of-way” means the area of real property in which the City has a dedicated or acquired Right-of-way interest in the real property. It shall include the area on, below, or above the present and future Streets, alleys, avenues, roads, highways, or boulevards dedicated or acquired as Right-of-way. The term does not include property owned or held by the City but not typically considered Right-of-way.
“Right-of-way Permit” or “Permit” means the authorization to perform any work, action or excavation regulated by this article within a Right-of-way.
“Routine Service Operation” means a work activity that does not require excavation with mechanical equipment and that makes no material change to the Facilities; is performed on existing Facilities to ensure the safe, continued operation of the system; and does not disrupt traffic.
“ROW-user” means a Person, its successors and assigns, that uses the Right-of-way for purposes of work; excavation; provision of services, whether public or private; or to install, Construct, maintain, Repair Facilities thereon, but shall not include ordinary vehicular or pedestrian traffic or any Governmental Entity that has entered into an agreement with the City regarding the use and occupancy of the City’s Right-of-way.
“Sidestrip” means the area between a property line and the Street curb, sometimes called boulevard, parkway, tree-shelf or snow-shelf.
“Street” means curb and gutter, Pavement and sub-grade of a City residential, collector or arterial roadway.
(Code 1975, Sec. 20-201; Ord. 4952-17)
20-202 Administration.
The City Engineer is the principal City official for administration of Right-of-way Permits for work and excavations made in the Right-of-way. All work done under the Permits issued in compliance with this Article shall be done under the direction and supervision of the City Engineer. The City Engineer is authorized to make such rules, regulations and specifications with respect to permitting, materials, design standards and method of construction regarding projects subject to this Article. The City Engineer may delegate any or all the duties hereunder.
(Ord. 3596; Ord. 4667-08; Ord. 4952-17)
20-203 Requirements of right-of-way users.
All ROW-users must conform their activities to the requirements established by the City Engineer.
(Code 1975, Sec. 20-203; Ord. 4952-17)
20-204 Americans with disabilities act.
Restoration of public infrastructure, including without limitation, sidewalks, handicap ramps, and Pavement, shall conform to the requirements of the Americans with Disabilities Act (ADA), as set forth in the “ADAAG Manual, Americans with Disabilities Act Accessibility Guidelines,” developed by the U.S. Architectural and Transportation Barriers Compliance Board (The U.S. Access Board), latest edition. The Permittee is responsible for work beyond the Permittee’s work zone that may be necessary to meet ADA requirements in the Permittee’s work zone.
(Code 1975, Sec. 20-204; Ord. 4667-08; Ord. 4952-17)
20-205 Permit requirement.
No Person shall Construct, maintain, or permit in or on the portion of the public Right-of-way to which such land is adjacent, any fixed structure, material or object without having obtained a Right-of-way Permit from the City. Except as otherwise provided, no ROW-user may Excavate any Right-of-way or conduct any Repair, construction, or reconstruction of Facilities located within the Right-of-way without first having obtained a Right-of-way Permit from the City. This requirement shall not apply to:
(Code 1975, Sec. 20-205; Ord. 4667-08; Ord. 4952-17)
20-206 Permits; emergency situations.
As described herein, an Emergency situation shall not exempt ROW-users from obtaining a Right-of-way Permit for applicable work activities. If, due to an Emergency, it is necessary for the ROW-user to immediately perform work in the Right-of-way and it is impractical for the ROW-user to first get the appropriate Permit, the work may be performed and the required Permit shall be obtained as soon as possible.
(Ord. 3617; Ord. 4667-08; Ord. 4931-16; Ord.4935-17; Ord. 4952-17)
20-207 Display of permits, notification requirments.
Right-of-way Permits issued by the City shall be available at all times at the worksite for inspection by the City Engineer, City employees and the public. Prior to the commencement of excavation, the Permittee shall identify and locate any buried Facilities to be spray painted according to the Uniform Color Code required by Kansas One Call. At the discretion of the City Engineer, the Permittee may be required to provide advance notice to the occupants of all properties within two hundred feet (200’) of the excavation with as much advanced notice as required by the City Engineer. Door hangers shall be sufficient to satisfy such notification requirement.
If vehicle or pedestrian traffic is affected, it shall be the responsibility of the Permittee to notify the Newton Police Department and Newton Fire/EMS of the schedule and location of such excavation prior to the commencement of such excavation.
The ROW-user shall participate in any joint planning, construction and advance notification of Right-of-way work, including coordination and consolidation of Street-cut work as directed by the City Engineer. In addition, the ROW-user shall cooperate with other ROW-users and the City for the best, most efficient, most aesthetic and least obtrusive use of the Right-of-way, consistent with safety, and to minimize traffic and other disruptions, including Street cuts.
(Ord. 4952-17)
20-208 Work without Permit.
Except in the case of Emergency work, any ROW-user who is found to be working in the public Right-of-way without a Permit will be ordered to stop work until a Permit is acquired and properly made available for inspection at the worksite.
Any Permittee found to be working without providing for required safety and traffic control will be ordered to stop work until the appropriate measures are implemented.
Except as provided for in an Emergency situation, a ROW-user found to have worked or be working in the Right-of-way without having obtained a Permit shall pay a fee double the amount of any applicable established fee. The City shall also charge and collect any necessary Repair and Restoration Costs to the ROW-user.
(Ord. 4952-17)
20-209 Permit Applications.
Application for a Right-of-way Permit shall be submitted to the City Engineer by the ROW-user.
Right-of-way Permit applications shall contain and be considered complete only upon receipt of the following:
The following information shall be provided when requested by the City Engineer:
(Ord. 4952-17)
20-210 Waiver of Right-of-way Permit Fees and Costs.
All fees are non-refundable, but shall be subject to all state and federal fee limitations. The Right-of-way Fee shall be waived:
(Ord. 4952-17)
20-211 Issuance of Permit.
If the City Engineer determines that the Applicant has satisfied the requirements of this article, the City Engineer shall issue a Right-of-way Permit. The City Engineer may impose reasonable conditions upon the issuance of a Right-of-way Permit and the performance of the Permittee to protect the public health, safety or welfare, to ensure the structural integrity of the Right-of-way, to protect the property and safety of other users of the Right-of-way, and to minimize the disruption and inconvenience to the traveling public; any such conditions shall be in writing upon or attached to the Permit.
(Ord. 4952-17)
20-212 Denial of Permit.
The City Engineer may deny a Permit or prohibit the use or occupancy of a specific portion of the Right-of-way to protect the public health, safety or welfare, to prevent interference with the safety and convenience of ordinary travel over the Right-of-way, or when necessary to protect the Right-of-way and its users. The City Engineer may consider all relevant factors including but not limited to:
Notwithstanding the foregoing, the City Engineer may exercise discretion in issuing a Right-of-way Permit in any case where the Permit is necessary to:
The City Engineer shall not issue a Right-of-way Permit for encroachments in the Right-of-way for private purposes that create a safety hazard or would be deemed a nuisance pursuant to the City Code.
Any denial of a wireless communications antenna, tower, or related Facilities shall, in accordance with federal and state law, be made in writing, and be supported by substantial evidence contained in the written record issued contemporaneously with said decision.
(Ord. 4952-17)
20-213 Revocation of Permit.
Permittees hold Right-of-way Permits issued pursuant to this article as a privilege and not as a right. The City reserves the right, as provided herein, to revoke any Right-of-way Permit without refund of any Fee in the event of a substantial breach of the terms and conditions of this article or the Right-of-way Permit. A substantial breach shall include, but not be limited to the following:
If the City Engineer determines that the Permittee has committed a substantial breach of any law or condition placed on the Right-of-way Permit, the City Engineer shall make a written demand upon the Permittee to remedy such violation. The demand shall state that failure to remedy a violation may be cause for revocation of the Permit or legal action. Further, a material breach will allow the City Engineer to place additional or revised conditions on the Right-of-way Permit, specifically related to the manner in which the breach is cured by the Permittee. Within five (5) Days of receiving notification of a substantial breach, the Permittee shall contact the City Engineer with a plan acceptable to the City Engineer, for correction of the breach. Permittee’s failure to contact the City Engineer, Permittee’s failure to submit an acceptable plan, or Permittee’s failure to reasonably implement the approved plan shall be cause for immediate revocation of the Right-of-way Permit.
If a Right-of-way Permit is revoked, the Permittee shall also reimburse the City for the City’s reasonable costs, including administrative costs, Restoration costs and the costs of collection and reasonable attorney’s fees incurred in connection with such revocation.
Nothing in this section shall limit the right of the City Engineer to revoke a Permit issued hereunder, with or without notice to the Permittee, in the event the City Engineer finds that acts or omissions of the Permittee pose a substantial and immediate danger to the public.
(Ord. 4952-17)
20-214 Existing Facilities.
ROW-Users are required to provide detailed maps of their Facilities located in the Right-of-way to the City upon request.
(Ord. 4952-17)
20-215 Permitted Work.
The Permittee shall identify and locate any underground Facilities in conformance with the Kansas Underground Utility Damage Prevention Act “Kansas One Call” system, and notice shall be provided directly to the City of Newton Department of Public Works and all applicable utility entities.
The Permittee shall be liable for any damages to underground Facilities due to excavation work prior to obtaining location of such Facilities, or for any damage to underground Facilities that have been properly identified prior to excavation. The Permittee shall not make or attempt to make Repairs, relocation or replacement of damaged or disturbed underground Facilities without the approval of the owner of the Facilities.
All Facilities and other appurtenances laid, constructed and maintained by the Permittee shall be laid, constructed and maintained in accordance with acceptable engineering practices and in full accord with any and all applicable engineering codes adopted or approved by the City and in accordance with applicable statutes of the State of Kansas, as well as the rules and regulations of the KCC and any other local, state, or federal agency having jurisdiction.
(Ord. 4952-17)
20-216 Use of the Right-of-Way.
The ROW-user’s presence in the Right-of-way shall, in all matters, be subordinate to the City’s use or occupation of the Right-of-way. The City may reserve sufficient space within the Right-of-way for future Public Improvements. Without limitation of its rights, the City expressly reserves the right to exercise any and all governmental powers now or hereafter vested in or granted to the City.
ROW-users shall coordinate the placement of Facilities in a manner that does not interfere with any Public Improvement and does not compromise the public health, safety, or welfare, as reasonably determined by the City. Where placement is not regulated, the Facilities shall be placed with adequate clearance from such Public Improvement so as not to impact or be impacted by such Public Improvement.
(Ord. 4952-17)
20-217 Protection of the Public.
It shall be the responsibility of each ROW-user to take adequate measures to protect and defend its Facilities in the Right-of-way from harm and damage. The City shall not be liable for any damage to or loss of any of the ROW-user’s Facilities within the Right-of-way as a result of or in connection with any construction, excavation, grading, filling or work of any kind, including Public Improvements by or on the behalf of the City, except to the extent caused by the negligent acts or omissions of the City.
ROW-users shall be responsible to the City and its agents, representatives, and authorized contractors for all damages incurred including, but not limited to delay damages, Repair costs, down time, construction delays, penalties or other expenses of any kind arising out of the failure of the ROW-user to timely perform any of its obligations under this article to the extent caused by the acts or omissions of the ROW-user.
Whenever a ROW-user shall Excavate any Street, sidewalk, alley, driveway approach or other Right-of-way, it shall be the ROW-user’s duty to maintain an adequate passage for vehicles and pedestrians across or around the excavation until it is filled and Repairs are completed as provided by the Permit or this article.
Any Excavation left open overnight with the Right-of-way shall be protected and secured. The Permittee assumes the sole responsibility for maintaining proper barricades, plates, safety fencing or lights as required from the time of opening of the excavation until the excavation is surfaced and opened for travel.
(Ord. 4952-17)
20-218 Transporting Structures.
Upon the appropriate request of any Person having satisfied City procedure and ordinances, ROW-users shall remove, raise, or lower their Facilities temporarily to permit the moving of houses or other structures. The expense of such temporary removal, raising or lowering shall be paid by the Person requesting the same, and the ROW-user may require such payment in advance.
(Ord. 4952-17)
20-219 Removal of Encroachment.
The City Engineer may cause to be removed any encroachment in the Right-of-way that creates a hazard to the public health, safety, or welfare, and the cost of such removal and Restoration of the Right-of-way shall be borne by the ROW-user.
(Ord. 4952-17)
20-220 Abandonment and Unusable Facilities.
A ROW-user owning Abandoned Facilities in the Right-of-way is required to:
Facilities of a ROW-user who fails to comply with this section, and whose above-grade Facilities remain unused for six (6) months or below-grade Facilities for two (2) years, shall be deemed to be abandoned unless, after the City has made a good faith effort to contact such ROW-user, the City receives confirmation that the ROW-user intends to use the Facilities. Abandoned Facilities are deemed to be a nuisance. The City may exercise any or all remedies or rights it has by law or in equity, including, but not limited to, (i) abating the nuisance, (ii) taking possession and ownership of the Facility and restoring it to a useable function, or (iii) requiring the removal of the Facility by the ROW-user.
(Ord. 4952-17)
20-221 ROW-User’s Right to Sell, Transfer, Lease, Assign, Sublet or Dispose.
Except as provided hereafter, the ROW-user shall not sell, transfer, lease, assign, sublet or dispose of its Facilities, or any portion thereof, that is located in City Right-of-way, or any right, title or interest in the same, or transfer any rights granted by the City to any other Person either by forced sale or by ordinary sale, consolidation or otherwise, without notice to the City. No notice to the City shall be required for a transfer in trust, mortgage, or other similar instrument, in whole or in part, to secure an indebtedness, or for a pro forma transfer to a corporation, partnership, or other entity controlling, controlled by or under common control with the ROW-user.
(Ord. 4952-17)
20-222 Appeals Process.
Whenever a ROW-user shall deem itself aggrieved by any decision or action taken by the City, such ROW-user may file an appeal to the City Manager within ten (10) Days of the date of notice of such decision or action; provided, this section shall not apply to any Person who is availing themselves of the appeal provisions set forth in K.S.A. 66-2019(h)(6).
The appellant shall be afforded a hearing on the matter before the Governing Body within thirty (30) Days of filing the appeal. In cases of applicability or interpretation of the rules, the Governing Body may revoke such decision or action taken by the City. In cases where compliance with such decision or action taken by the City would cause undue hardship, the Governing Body may extend the time limit of such decision or action, or may grant exceptions to, or waive requirements of, or grant a variance from the specific provisions of rules. The Governing Body shall give due consideration to the purposes of the rules in preserving public safety and convenience, integrity of public infrastructure, and the operational safety and function of the public Right-of-way.
Pending a decision of the Governing Body, the order of the City Engineer shall be stayed, unless the City Engineer determines that such action will pose a threat to public safety or the integrity of the public infrastructure.
If a ROW-user deems itself aggrieved after the appeal to the Governing Body, such ROW-user may, within thirty (30) Days after the effective date of the Governing Body’s final decision, commence an action in a court of competent jurisdiction.
(Ord. 4952-17)
20-223 Curb cuts for Driveway Approaches; Permit required.
Additional requirements applicable to curb cutting for Driveway Approaches shall be as follows:
(Ord. 4952-17)
20-224 Federal, State and City Jurisdiction.
This article shall be construed in a manner consistent with all applicable federal, state, and local laws. Notwithstanding any other provisions of this article to the contrary, the construction, operation and maintenance of the ROW-user’s Facilities shall be in accordance with all laws and regulations of the United States, the state and any political subdivision thereof, or any administrative agency thereof, having jurisdiction. In addition, the ROW-user shall meet or exceed the most stringent technical standards set by regulatory bodies, including the City, now or hereafter having jurisdiction. The ROW-user’s rights are subject to the police powers of the City to adopt and enforce ordinances necessary to the health, safety, or welfare of the public. The ROW-user shall comply with all applicable laws and ordinances enacted pursuant to that power.
(Ord. 4952-17)
20-225 Municipal projects.
Nothing in this Article will be so construed as to prohibit the backfill of excavations, repair and replacement of surfaces in the performance of street, sewer and waterline and other improvement projects under the direction of the City Engineer.
(Ord. 4952-17)
20-226 Penalties.
Any violation of the provisions of this Article shall be punishable as a Class C violation under the Uniform Public Offense Code as adopted by the City. Every Day that this article is violated shall constitute a separate offense.
The violation of any provision of this article is hereby deemed to be grounds for revocation of any Right-of-way Permit and license to operate with the City. The City shall have the authority to maintain civil suits or actions in any court of competent jurisdiction for the purpose of enforcing the provisions of this article. In addition to any other remedies, the City may maintain an injunction, mandamus or other appropriate action or proceeding to prevent violation of this article.
(Ord. 4952-17)
20-227 Permit Fees.
However, no fee shall be charged for the obstruction of a sidewalk, Sidestrip, parking lane, traffic lane, or alley, when the obstruction is for a duration of two (2) hours or less. Further, the City Engineer is authorized to waive any portion of the temporary obstruction fee when in the interest of the public health, safety and welfare.
(Ord. 4952-17)
20-228 Repair of pavement, curb, gutters and sidewalks, backfills.
All costs and expenses for pavement, curb and gutters and sidewalk cuts and excavations shall be the responsibility of the permit holder. All backfilling of excavations and repair or replacement of pavement, curb and gutters and sidewalks permitted under this Article shall be carried out by the City’s street division.
(Ord. 4952-17)