§ 32-26. Right-of-way use permit.

(a)

Permit requirement.

(1)

Except as otherwise provided, no ROW-user may excavate any right-of-way or conduct any construction, alteration, repair, reconstruction, or restoration of facilities located within the right-of-way or disrupt, obstruct, or otherwise work in the right-of-way without first having obtained the appropriate right-of-way permit.

(2)

ROW-users performing routine service operations between 7:00 a.m. and 7:00 p.m. that do not disrupt traffic for more than four hours and do not involve excavation of the right-of-way are required to obtain an annual right-of-way permit and otherwise must comply with this article. No ROW-users other than those described in this subsection may obtain an annual permit.

(3)

ROW-users performing work in or disrupting the right-of-way due to an emergency must obtain a permit. If, due to an emergency, it is necessary for the ROW-user to perform work in the right-of-way immediately and it is impractical for the ROW-user to get the appropriate permit before doing the work, the work may be performed and the required permit shall be obtained as soon as possible during the next unified government working day.

(4)

A right-of-way permit shall be valid only for the dates and area of the right-of-way and work specified in the permit. No permittee may work in or disrupt the right-of-way outside the area specified in the permit or beyond the date or dates specified or do work not described in the right-of-way permit unless the permittee:

a.

Makes a supplementary application for another right-of-way permit before the expiration of the initial permit; and

b.

Is granted a new right-of-way permit or a permit extension.

(5)

At all times permittees shall have their right-of-way permits available at the work site for inspection by the unified government engineer and other unified government employees.

(6)

Before receiving a right-of-way permit, the applicant must show proof of any necessary permit, license, certification, grant, registration, franchise agreement, or any other authorization required by any appropriate governmental entity, including, but not limited to, the unified government, the FCC, or the KCC.

(7)

Any ROW-user who is found to have worked or to be working in or disrupting the right-of-way without a permit will be directed to stop work and shall stop work until a permit is acquired. The only exception allowed is for emergency repair work. The permit fee for a ROW-user who has been working in or disrupting the right-of-way without a permit in violation of this section shall be doubled. The enhanced fee is in addition to any fine that may be levied as a result of a conviction for violation in municipal court.

(b)

Permit applications.

(1)

Regular applications.

a.

Application for a right-of-way permit shall be submitted to the unified government engineer either by the ROW-user or by the person who will do the work or excavation in or disruption of the right-of-way. Before an application may be submitted, the applicant shall attend a pre-application conference, unless waived by the unified government engineer.

b.

Right-of-way permit applications shall contain the following information:

1.

Applicant's name and address and, if applicable, the ROW-user for whom the work is being done;

2.

Identification of the location where the proposed project will be done;

3.

A description of the proposed project;

4.

A description of transmission medium and evidence that space is available if locating in or on existing facilities, if applicable;

5.

Identification of specific trees, structures, improvements, facilities proposed to be removed, relocated, adjusted, or otherwise affected by the proposed project; and

6.

Any other information requested by the unified government.

c.

Right-of-way permit applications shall be considered complete only upon:

1.

Compliance with the registration requirements of this article;

2.

Submission of a completed permit application form, including all required attachments;

3.

Submission of scaled drawings showing the location and area of the proposed project and the location of all existing and proposed facilities at such location if applicant is not a service provider;

4.

Submission of drawings prepared by a state-licensed professional engineer showing the location and area of the proposed project and the location of all existing and proposed facilities along the proposed construction route if applicant is a service provider;

5.

Submission of a traffic control plan;

6.

Presentation of evidence that the applicant has notified all service providers located in the right-of-way where the applicant intends to work of the applicant's proposed work and has given such other service providers an opportunity to review the applicant's plans if the applicant intends to excavate the right-of-way;

7.

Compliance with the insurance and bond requirements of this article; and

8.

Payment of all money due to the unified government for permit fees and costs, for prior excavation or disruption fees and costs, for any loss or damage or expense suffered by the unified government because of the applicant's prior excavations or disruptions of the right-of-way, or for any emergency actions taken by the unified government, unless the payment of such money is in dispute and timely appealed as provided hereafter.

d.

Permittees must report to the unified government engineer any changes in the information submitted on or with their permit applications within 15 days of such change.

e.

If an applicant has submitted an application for a permit for the installation, construction, maintenance or repair of multiple facilities, that applicant may not submit another application for a permit for the installation, construction, maintenance or repair of multiple facilities until the first application has been approved or denied. This provision may be waived by the unified government engineer.

f.

All applications shall be processed within the timeframes required by state and federal law.

(2)

Joint applications.

a.

Applicants may apply jointly for permits to excavate the right-of-way at the same time and place.

b.

Applicants who apply jointly for a right-of-way permit may share in the payment of the permit fee. Applicants must agree among themselves as to the portion each shall pay.

(3)

Supplementary applications. Any permittee who wishes to excavate or disrupt an area greater than that which is specified in the permit or wishes to work in or disrupt the right-of-way for a longer time than that specified in the permit or wishes to do work not described in the permit must:

a.

Make application for a permit extension and pay any additional fees required; and

b.

Grant a new right-of-way permit or permit extension.

(c)

Right-of-way permit fees.

(1)

The amount of the right-of-way permit fees shall be set by the county administrator and shall be subject to all state and federal fee limitations.

(2)

An application shall not be deemed submitted unless the permit fee is paid.

(3)

The right-of-way permit fee shall include, but not be limited to:

a.

A permit and inspection fee;

b.

An amount for the excavation costs associated with the decrease in the useful life of the pavement caused by an excavation, if applicable;

c.

An amount for repair and restoration costs; and

d.

An amount for the disruption costs associated with disrupting the right-of-way, including delay in completion of the work, if applicable.

(4)

No right-of-way permit shall be issued prior to the payment of the permit fee, unless other billing arrangements have been made with the office of the unified government engineer.

(5)

No right-of-way permit shall be issued if any previous right-of-way permit fees due under this article remain unpaid by an applicant.

(6)

Fees paid for a right-of-way permit that is subsequently revoked by the unified government engineer are not refundable.

(7)

A renewal or extension of a right-of-way permit shall require another fee in an amount to be set by the county administrator.

(8)

The permit fee for a ROW-user who has been working in or disrupting the right-of-way without a permit in violation of this article shall be doubled.

(9)

The unified government or the city board of public utilities (BPU) is exempt from payment of fees under this article.

(10)

The unified government engineer may waive fees for other governmental entities pursuant to a written agreement between the unified government and such other governmental entity.

(11)

The unified government may also charge and collect any necessary repair and restoration costs.

(d)

Issuance of permit.

(1)

If the unified government engineer determines that the applicant has satisfied the requirements of this article, the unified government engineer shall issue a right-of-way permit.

(2)

The unified government engineer may impose reasonable conditions upon the issuance of a right-of-way permit and the performance of the permittee in order to protect the public health, safety, and 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.

(3)

Issued permits are nontransferable.

(e)

Denial of permit. The unified government 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, and 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. Any denial of a wireless communications antenna, tower or related facilities shall, in accordance with federal and state law, be made in writing and supported by substantial evidence contained in a written record issued contemporaneously with said decision. The unified government engineer, at his discretion, may consider all relevant factors including, but not limited to:

(1)

The extent to which the right-of-way space where the permit is sought is available;

(2)

The competing demands for the particular space in the right-of-way;

(3)

The availability of other locations in the right-of-way or in other rights-of-way for the facilities of the applicant;

(4)

The applicability of any ordinance or other regulations that affect location of facilities in the right-of-way;

(5)

The degree of compliance of the applicant with the terms and conditions of its franchise, this article, and other applicable ordinances and regulations;

(6)

The degree of disruption to surrounding communities and businesses that will result from the use of that part of the right-of-way;

(7)

The balancing of costs of disruption to the public and damage to the right-of-way against the benefits to that part of the public served by the construction in the right-of-way;

(8)

Whether the applicant maintains a current registration with the unified government;

(9)

Whether the issuance of a right-of-way permit for the particular dates and times requested would cause a conflict or interfere with an exhibition, celebration, festival, or other event, or with another ongoing or planned public improvement. In exercising this discretion, the unified government engineer shall be guided by the safety and convenience of anticipated travel by the public over the right-of-way.

(f)

Revocation of permit.

(1)

Permittees hold right-of-way permits issued pursuant to this article as a privilege and not as a right. The unified government reserves its right, as provided herein, to revoke any right-of-way permit, without refund of the permit fee, in the event of a substantial breach of the terms and conditions of any law or the terms and conditions of the right-of-way permit. Any revocation of a wireless communications antenna, tower or related facilities shall, in accordance with federal and state law, be made in writing and supported by substantial evidence contained in a written record issued contemporaneously with said decision. A substantial breach shall include, but not be limited to, the following:

a.

The violation of any material provision of the right-of-way permit;

b.

An evasion or attempt to evade any material provision of the right-of-way permit, or the perpetration or attempt to perpetrate any fraud or deceit upon the unified government or its citizens;

c.

Any material misrepresentation of any fact in the permit application;

d.

The failure to maintain the required bond or insurance;

e.

The failure to complete the work in a timely manner;

f.

The failure to correct a condition indicated on an order issued pursuant to this article;

g.

Repeated traffic control violations; or

h.

Failure to repair facilities damaged in the right-of-way.

(2)

If the unified government engineer determines that the permittee has committed a substantial breach of any law or condition placed on the right-of-way permit, the unified government engineer shall make a written demand upon the permittee to remedy such violation. The demand shall state that the continued violation may be cause for revocation of the permit or legal action if applicable. Further, a substantial breach will allow the unified government engineer, at his discretion, 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 calendar days of receiving notification of the breach, the permittee shall contact the unified government engineer with a plan, acceptable to the unified government engineer, for correction of the breach. The permittee's failure to contact the unified government engineer, to submit an acceptable plan, or to reasonably implement the approved plan shall be cause for immediate revocation of the right-of-way permit. If a dangerous condition exists requiring immediate action, the unified government engineer may order the permittee to stop work or to take measures to correct the dangerous condition immediately.

(3)

If a right-of-way permit is revoked, the permittee shall also reimburse the unified government for the unified government's reasonable costs, including administrative costs, restoration costs, and the costs of collection and reasonable attorneys' fees incurred in connection with such revocation.

(g)

Appeals process.

(1)

Whenever a person shall deem himself aggrieved by any decision or action taken by the unified government engineer, the person may file an appeal to the county administrator within ten calendar 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).

(2)

The persons shall be afforded a hearing on the matter before the county administrator or his designated representative within 30 days of filing the appeal.

(3)

In cases of applicability or interpretation of the rules, the county administrator may revoke such decision or action taken by the unified governmental engineer.

(4)

In cases where compliance with such decision or action taken by the unified government engineer would cause undue hardship, the county administrator 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 county administrator 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.

(5)

Pending a decision of the county administrator, the order of the unified government engineer shall be stayed, unless the unified government engineer determines that such actions will pose a threat to public safety or the integrity of the public infrastructure.

(6)

If a person still deems himself aggrieved after the appeal to the county administrator, such person shall have 30 days after the effective date of the county administrator's final decision to institute an action in the District Court of Wyandotte County, Kansas.

(Code 1988, § 32-26; Ord. No. O-104-00, § 6, 11-16-2000; Ord. No. O-114-00, §§ 1—4, 12-21-2000; Ord. No. O-16-03, §§ 4—6, 5-1-2003; Ord. No. O-64-16 , § 1, 10-27-2016)