152-97 OrdinanceRECORD OF ORDINANCES
Dayton Legal Blank Co. roan iv o. avv4o
- - Passed --- ----- - - --- -- - 19
Ordinance No. ____- 152-97
AN ORDINANCE AMENDING THE CODIFIED ORDINANCES OF THE CITY
OF DUBLIN TO ADOPT NEW REGULATIONS THAT ARE CONSISTENT
WITH THE TELECOMMUNICATIONS ACT OF 1996 GOVERNING RIGHT OF
WAY MANAGEMENT IN THE CITY OF DUBLIN
WHEREAS, the City of Dublin, Ohio (the "City") is vitally concerned with the use of the
various Rights-of--Way in the City as such Rights-of--Way are a valuable and limited
resource which must be utilized to promote the public health, safety and welfare including
the economic development of the City; and
WIINREAS, changes in the public utilities and communication industries have increased
the demand and need for access to Rights-of--Way and placement of facilities and structures
therein; and
WHEREAS, it is necessary to comprehensively plan and manage access to, and structures
and facilities in, the Rights-of--Way to promote efficiency, discourage uneconomic
duplication of facilities, lessen the public inconvenience of uncoordinated work in the
Rights-of--Way, and promote public safety; and
WHEREAS, the City has rights under the laws and Constitution of the State of Ohio,
including Article 18, Sections 3 and 4, to regulate public and private entities which use the
Rights-of--Way; and
WHEREAS, the current City of Dublin Code of Ordinances must be amended to enact
chapter 98, establishing aright-of-way policy.
NOW, THEREFORE BE IT ORDAINED by the Council of the City of Dublin, State of
Ohio, ~ of the elected members concurring that:
Section 1: That the Code of Ordinances, are hereby supplemented by the enactment of
Chapter 98, as follows:
.O1 -Definitions.
For purposes of this Chapter, the following terms, phrases, words, and their derivations have
the meanings set forth herein. When not inconsistent with the context, words in the present
tense include the future tense, words in the plural number include the singular number, and
words in the singular number include the plural number. The words "shall" and "will" are
mandatory and "may" is permissive. Words not defined shall be given their common and
ordinary meaning.
A. "Applicant" means any Person applying for aRight-of--Way Permit hereunder.
~ B. "Approved" means approval by the City pursuant to this Chapter or any Service
Agreement adopted hereunder.
C. "Best Efforts" means the best reasonable efforts under the circumstances, taking into
consideration, among other appropriate matters, safety, expedition, available
~; technology and human resources and cost.
D. "Business District Right of Way" or "Dublink Area" means the Right of Way
described in Exhibit A.
E. "Chapter" means Chapter 98 of the Code of Ordinances of the City, as amended from
time to time, and any Administrative Regulations adopted hereunder.
RECORD OF ORDINANCES
Dayton Legal Blank Co. Form No. 30043
~...
Ordinance No._-
F. "City" means the City of Dublin, Ohio.
Pnssed_ --
G. "City Manager" means the Dublin City Manager or his/her designee.
H. "Council" means the legislative body of the City.
-19 -
I. "Force Majeure" means a strike, act of God, act of public enemy, order of any
kind of a government of the United States of America or of the State of Ohio or
any of their departments, agencies or political subdivisions; riot, epidemic,
landslides, lightning, earthquake, fire, tornado, storm, flood, civil disturbance,
explosion, partial or entire failure of a utility or any other cause or event not
reasonably within the control of the party disabled by such Force Majeure, but only
to the extent such disabled party notifies the other party as soon as practicable
regarding such Force Majeure and then for only so long as and to the extent that,
the Force Majeure prevents compliance or causes non-compliance with the
provisions hereof.
J. "General Right-of--Way Permit" shall have the meaning set forth in Section
98.03(B)(1).
K. "Permittee" means any person issued aRight-of--Way Permit pursuant to this
Chapter to use or occupy all or a portion of the Rights-of--Way in accordance with
the provisions of this Chapter and said Right-of--Way Permit.
L. "Person" means any natural person or any association, firm, partnership, joint
venture, corporation, or other legally recognized entity, whether for-profit or not-
for-profit.
M. "Public Property" means any real property owned by the City or easements held
or used by the City, other than aRight-of--Way.
N. "Regulation" or "Administrative Regulations" means any rule adopted by the City
Manager pursuant to the authority of this Chapter, and the procedure set forth in
Section _.10, to carry out its purpose and intent.
O. "Residential Purposes" means residential use of Right-of--Way for such uses as
mailboxes, trees, landscaping, lawn sprinklers, decorative purposes or any curb
cuts and driveways, and as may be further defined in any Administrative
Regulations promulgated pursuant to Section 98.03(A).
P. "Right-of-Way" means the surface of and the space above and below the paved or
unpaved portions of any public street, public road, public highway, public freeway,
public lane, public path, public bikepath, public way, public alley, public court,
public sidewalk, public boulevard, public parkway, public drive and any other land
dedicated or otherwise designated for the same now or hereafter held by the City
which shall, within its proper use and meaning in the sole opinion of the City
Manager, entitle a Permittee, in accordance with the terms hereof and of any
Right-of--Way Permit, to the use thereof for the purpose of installing or operating
any poles, wires, cables, transformers, conductors, ducts, lines, mains, conduits,
vaults, manholes, amplifiers, appliances, attachments or other property or facilities
as may be ordinarily necessary .and pertinent to the provision of utility, cable
television, communications or other services as set forth in any Service Agreement
or any Right-of--Way Permit. Right-of--Way shall not include private easements or
Public Property, except to the extent the use or occupation of Public Property is
RECORD OF ORDINANCES
Dayton Legal Blank Co.
Form No. 30043
Ordinance No.-- -- -- -- - Passed -- -- - - 19- _ -
specifically granted in aRight-of--Way Permit or by Administrative Regulation.
~.
Q. "Right-of--Way Permit" means the non-exclusive grant of authority to use or
occupy all or a portion of City's Rights-of--Way granted pursuant to this Chapter.
R. "Service Agreement" means a valid service agreement, franchise agreement or
operating agreement issued by the City pursuant to the Dublin City Charter, the
Dublin City Codes or Constitution and laws of Ohio or the United States, and
accepted by any Person, pursuant to which such Person may operate or provide
utility, cable television, communication or other such service to consumers within
the City.
S. "Special Right-of--Way Permit" shall have the meaning set forth in Section
98.03(B)(2).
T. "Utility Right of Way Permit" shall have the meaning set forth in Section
98.03(B)(3).
A. The purpose of this Chapter is to provide for the regulation of the use or
occupation of all Rights-of--Way in the City, the issuance of Right-of--Way Permits
to Persons for such use or occupancy and to set forth the policies of the City
related thereto.
B. A Right-of-Way Permit issued pursuant to this Chapter does not take the place of
any Service Agreement, franchise, license, or permit which may be additionally
required by law. Each Permittee shall obtain any and all such additional state,
federal or city franchises, licenses or permits necessary to the operation and
conduct of its business or the occupation or use of any Right-of--Way.
C. The City Manager is hereby directed and empowered to enforce the provisions of
this Chapter.
D. The City's objectives regarding Rights-of--Way is:
1. Promote cooperation among telecommunications service providers and the
City to minimize public inconvenience during ROW work and disruption
of public property; and ensure safe and efficient use of the City's streets,
right of ways, and easements;
2. Promote the availability of a wide range of utility, communications, and
other services, including the rapid deployment of new technologies and
innovative services to City businesses and residents at reasonable costs;
3. Enhance the City's economic development programs;
4. Ensure adequate public compensation for private use of the ROW and
related costs;
5. Promote and require reasonable accommodation of all users of ROW;
6. To comply with the Telecommunications Act of 1996 and all applicable
laws, rules and regulations;
7. To promote the utilization of Rights-of--Way for the public health, safety
and welfare; and,
8. To assure that Applicants have the financial, technical and managerial
resources to comply with this Chapter and the provisions of any Right-of-
RECORD OF ORDINANCES
Dayton Legal Blank Co.
Ordinance No.- --- -- --- -- Passed - - - - 19
Way Permit issued hereunder.
E. All Right-of--Way Permits granted hereunder shall be non-exclusive and no
property right of any nature shall be created by the granting of a Permit under this
Chapter.
F. This Chapter does not apply, and nothing herein should be construed to apply the
provisions of this Chapter, to structures or facilities owned or operated by the City
or any City operations that occupy or use the Rights-of--Way. It is specifically
contemplated, however, that all City Departments or Divisions that utilize the
Rights-of--Way shall carry out their operations in a manner consistent with the
policy set forth in this Chapter, including participation and cooperation in all joint
planning hereunder and identification of structures and facilities located in the
Rights-of--Way.
A. No Person shall use, occupy, construct, own or operate structures or facilities in,
under or over any Rights-of--Way or any Public Property within the City unless
such Person first obtains aRight-of--Way Permit and conforms to the requirements
set forth therein and in this Chapter; provided, however, that Right-of--Way
Permits shall not be required for the following uses:
1. Newspaper Stands;
2. Carts;
3. Sidewalk Cafes;
4. Parking Lots; and
so long as, in the opinion of the City Manager, that such use:
(i)
(ii)
(iii)
(iv)
has received or will receive all other necessary permits;
is not inconsistent with policy of the City;
does not adversely affect the public health, safety or welfare; and
does not materially interfere with other lawful uses of the Right-of-
Way.
The City Manager may adopt Administrative Regulations controlling and further defining
Residential Purposes and to otherwise implement the determinations to be made under this
Section.
B. The following types of Right-of--Way Permits are available:
W
1. General Right-of--Way Permit -Right-of--Way Permit granted to Persons
who desire and are granted authority to utilize Rights-of--Way generally,
except that the Permit shall not permit the holder to use Dublink Area until
such time as the Administrative Regulations are promulgated and effective
pursuant to 98.10 and, provided, however, that nothing in this Chapter or
in any General Right-of--Way Permit shall be construed to authorize the
Permittee to provide any utility, cable television, communications or other
services for which the City may lawfully require a Service Agreement
should the City determine to require the same; and
2. Special Right-of--Way Permit -Right-of-Way Permit granted to a Person for
a specific, limited use, including but not limited to Residential Purposes,
of the Rights-of--Way or a specific portion thereof.
3. Utility Permit -Right of Way Permit granted to a person who is a
traditional monopoly provider of essential services, who possesses a valid
operating agreement and who desire and are granted authority to utilize
Rights of Way generally. As of the date of this Ordinance, gas, electric,
RECORD OF ORDINANCES
Dayton Legal Blank Co. Form No. 30043
Ordinance No.___
Pnssed -- - - 1 ~
w
~*
~..
Irrw
water and sewer are such utilities. The City Manager may adopt
regulations controlling and defining "traditional monopoly provider of
essential services". A Utility Permittee may be granted a waiver of some
or all the requirements by this Ordinance at the discretion of the City
Manager.
C. Any such Right-of--Way Permit may also allow the use of specified Public Property
for the uses set forth in the Right of Way Permit and in this Chapter.
D. Each Right-of-Way Permit shall specify the use or uses for which it is granted and
contain such other non-discriminatory terms and conditions as are appropriate and
as are set forth in the Service Agreement.
E. Right-of-Way Permits or the rights of a Permittee thereunder are not transferable
without the prior express written approval of the City Manager upon a showing that
the recipient has the financial, technical and managerial resources to comply with
the obligations of this Chapter and its Right-of--Way Permit. The City Manager
may adopt Administrative Regulations providing procedures for transfer of Right-
of-Way Permits.
F. No person shall be authorized to occupy the Dublink Area, except as follows:
(i) A person/provider who acquires a General or Utility permit under
the terms of this Ordinance, who has existing facilities in the
Dublink Area on the effective date of this Ordinance shall be
permitted to continue to keep said existing facilities in the Dublink
Area. Any additional facility requirements will be in accordance
with the Administrative Regulations promulgated by the City
Manager.
(ii) A valid holder of a Special Right of Way Permit.
(iii) A valid holder of a General or Utility Permit subject to the
Administrative Regulations promulgated by the City Manager.
A. Applications for a General Right-of--Way Permit by a holder of a Service
Agreement shall be filed in such form and in such manner as the Service
Agreement require. There shall be no application fee. Any Person holding a valid
Service Agreement shall be granted a General Right-of--Way Permit. Such General
Right-of--Way Permit shall be valid so long as the underlying Service Agreement
is valid and the applicable provisions of that Service Agreement, the General
Right-of--Way Permit and of this Chapter are complied with; provided, however,
that such General Right-of-Way Permit shall only entitle the Permittee to utilize the
Rights-of--Way, in accordance with this Chapter, for purposes directly related to
the provision of the specific services for which it has a Service Agreement. Any
other Right-of--Way use by such Permittee shall require a separate or amended
General Right-of--Way Permit issued pursuant to Section 98.04(C).
B. Applications for a Utility Right of Way Permit by a holder of a Service Agreement
shall be filed in such form and in such manner as the Administrative Regulations
require. There shall be no application fee. Any person who is a traditional
monopoly provider of essential services and who holds a valid Service Agreement
shall be granted a Utility Right of Way Permit. Such Utility Permit shall be valid
so long as the underlying Service Agreement is valid and the applicable provisions
of that Service Agreement, the Utility Right-of--Way Permit and of this Chapter are
complied with; provided, however, that such Utility Right-of--Way Permit shall
RECORD OF ORDINANCES
Dayton Legal Blank Co.
Form No. 30043
Ordinance No.----- - -- --- -- Passed------------ - -- - - -19 --
only entitle the Permittee to utilize the Rights-of--Way, in accordance with this
Chapter, for purposes directly related to the provision of the specific services for
which it has a Service Agreement. Any other Right-of--Way use by such Permittee
shall require a separate or amended Utility Right-of--Way Permit issued pursuant
to Section 98.04(C) of this Ordinance.
~'"`
~..
C. All other applications for General Right-of--Way Permits, or amendments or
renewals thereof, shall be filed in such form and in such manner as the
Administrative Regulations require, along with an application fee of One Thousand
Dollars ($1,000.00). The City Manager shall determine if the application is in
order and shall, within forty-five (45) days of the receipt of a complete application,
issue a written report regarding such application. The report shall recommend that
the City Council deny or grant the General Right-of--Way Permit, subject to any
appropriate terms and conditions, in accordance with the criteria set forth in this
Chapter. The City Manager's report shall be served upon the Applicant by regular
U.S. mail along with a Notice of when the City Council will consider the same.
The City Council shall then consider such recommendation and make a final
determination in writing, within sixty (60) days of the City Manager's report, as
to whether or not such General Right-of--Way Permit amendments and/or renewal
should be granted and if so, upon what terms and conditions. The term of each
such General Right-of--Way Permit shall be for five (5) years from acceptance,
unless the Applicant requests a lesser term.
D. An application for a Special Right-of--Way Permit amendment or renewal thereof,
shall be filed in such form and in such manner as the Administrative Regulations
require, along with an application fee of Five Hundred Dollars ($500.00). If the
City Manager determines that the application is in order and that the criteria set
forth in Section 98.05 of this Ordinance have been met, and that the application
should be granted, the City Manager shall, within forty-five (45) days of a receipt
of a completed application, conditionally grant or renew such a Special Right-of-
Way Permit amendment and/or renewal subject to any appropriate terms and
conditions or deny the same. The City Manager's conditional grant, renewal or
denial shall be served upon the Applicant by regular U.S. mail. Such conditional
denial, grant or renewal shall become final unless modified or rejected by the City
Council within thirty (30) days of issuance by the City Manager, or unless
appealed pursuant to Section 98.04(E) of this Ordinance. The term of such Special
Right-of--Way Permit shall be three (3) years from acceptance, unless the Applicant
requests a lesser term. A Special Right-of--Way Permit for Residential Purposes
may be granted for an indefinite term from acceptance, but may be canceled by the
City Manager with sixty (60) days written notice.
E. Any Applicant may appeal the failure of the City Manager to grant aRight-of--Way
Permit, or to recommend it to be granted upon terms and conditions acceptable to
the Applicant, to the City Council. In order to perfect such appeal, the Applicant
shall file, within ten (10) days of the City Manager's determination or
recommendation or within sixty (60) days of the filing of the application if the City
Manager has taken no action, an appeal to the City Council. The City Council
shall then review the matter and render a final determination after affording the
Applicant an opportunity to be heard either in person or in writing. Except to the
extent otherwise appealable by law, the City Council's decision shall be final.
F. Any Right-of--Way Permittee shall, within thirty (30) days of the initial granting
of any Right-of--Way Permit hereunder, (i) file a written acceptance of its Permit
RECORD OF ORDINANCES
Dayton Legal Blank Co. Form No. 30043
~...
...~.
Ordinance No. --- -- -- Passed - - 19
in such form and in such manner as the Administrative Regulations require, and
(ii) if and as applicable, pay apro-rata portion of the fees required by Section
98.07(B) or (C).
A. A General Right-of--Way Permit shall be granted to any Applicant holding a valid
Service Agreement.
B. A Utility Right of Way Permit shall be granted to any applicant holding a valid
Service Agreement and who is a traditional monopoly provider of essential services
as defined by the City Manager.
C. A General or a Special Right-of-Way Permit shall be granted to an Applicant upon
a determination that:
1. The granting of the Right-of--Way Permit will contribute to the public
health, safety or welfare in the City; and
2. The granting of the Right-of--Way Permit will be consistent with the policy
of the City as set forth in Section 98.02(D); and
3. The Applicant is not delinquent on any taxes or other obligations to the City
or Franklin County and has the requisite financial, managerial and technical
ability to fulfill all its obligations hereunder.
A Special Right-of-Way Permit for Residential Purposes may be granted at the City
Manager's discretion if the City Manager finds that granting such Permit will not
be inconsistent with the policy of the City set forth in Section 98.02(D) and the
City policies, ordinances and regulations.
D. The City Manager or the City Council may impose such conditions on the granting
of a Permit as deemed reasonably required to be consistent with the criteria set
forth in this Section 98.05 and to promote the policy of the City set forth in Section
98.02(D).
A. In addition to the other requirements set forth herein and in the Administrative
Regulations each Permittee, shall:
1. Use its Best Efforts to cooperate with other Permittees and the City for the
best, most efficient, most aesthetic and least obtrusive use of Rights-of-
Way, consistent with safety, and to minimize traffic and other disruptions
including street cuts;
2. Participate in such joint planning, construction and advance notification of
Right-of--Way work, excepting such work performed in an emergency;
provided the Permittee uses its Best Efforts to contact the City at the
earliest possible time after beginning such work, as may be required by
Chapter 97 and this Chapter and as may be more specifically set forth in
Administrative Regulations promulgated pursuant to this Chapter;
3. Cooperate with other Permittees in utilization of, construction in and
occupancy of private rights-of--way, but only to the extent the same is
consistent with the grant thereof or is not additionally burdensome to any
property owner;
RECORD OF ORDINANCES
Dayton Legal Blank Co. Form No. 30043
O~~dinance No_____________
Passed_
19- -
4. Upon reasonable written notice of and at the direction of the City Manager,
""'°" and at the Permittee's sole cost, promptly remove or rearrange facilities as
necessary, such as during any construction, repair or modification of any
`'~" street, sidewalk, City utility or other public improvement, or as part of the
City Manager's determination that designated portions of its Rights-of--Way
should accommodate only underground facilities or that facilities should
occupy only one side of a street or other public way, or if an additional or
subsequent City or other public use of Rights-of--Way is inconsistent with
the then current uses of such Permittee or for any other reasonable cause
as determined by the City Manager pursuant to Section 98.14(B) of this
Ordinance.
5. Provide maps and other information relating to a Permittee's facilities and
operations within the Rights-of--Way and compliance with this Chapter in
such form, including digital or other form compatible with any City
geographic information system, as the Administrative Regulations require.
Said maps and information shall, at a minimum, locate, describe and
identify all uses of, and "as built" structures and facilities of such Permittee
in, the Rights-of--Way;
6. Perform all work, construction, maintenance or removal of structures and
facilities within the Right-of--Way, including tree trimming, in accordance
with good engineering and construction practice including any appropriate
~ safety codes and in accordance with the Administrative Regulations and use
its Best Efforts to repair and replace any street, curb or other portion of the
Right-of-Way, or facilities or structure located therein, to a condition to be
determined by the City Manager to be adequate under current standards and
not less than materially equivalent to its condition prior to such work and
to do so in a manner which minimizes any inconvenience to the public, the
City and other Permittees, all in accordance with the Administrative
Regulations adopted hereunder or under City Codes.
7. Register with underground reporting services as set forth in the
Administrative Regulations;
8. Use its Best Efforts to cooperate with the City in any emergencies involving
the Rights-of--Way in such manner as the Administrative Regulations shall
require including the maintenance of a twenty-four (24) hour emergency
contact;
9. Using distinct identification, identify all structures and facilities in the
Rights-of--Way in accordance with the Administrative Regulations; and
10. Designate a single point of contact for all purposes hereunder, as well as
comply with such other contact and notice protocols as the Administrative
Regulations require.
B. Each Permittee shall assure that any subcontractor or other person performing any
~ work or service in the Right-of--Way on behalf of said Permittee will comply with
all applicable provisions of this Chapter and its Right-of--Way Permit and will
i~ identify the Permittee for whom such subcontractor is working. Said Permittee
shall be responsible and liable hereunder for all actions of any such subcontractor
or others as if said Permittee had performed or failed to perform any such
obligation.
_~7 -Permit Fees and Auditing.
A. Except for any fees charged pursuant to the City's Annual Fee Ordinance, General
Right-of--Way Permittees who have a Service Agreement granted by Council shall
RECORD OF ORDINANCES
Dayton Legal Blank Co. Form No. 30043
Ordinance No.---- - --- -- -- Passed - -- 19
not be liable for any additional Right-of--Way Permit fees over and above any
Service Agreement or franchise fees specified in its Service Agreement or franchise
for uses of Rights-of--Way directly related to the uses for which such Permittee
~"' holds its Service Agreement or franchise, so long as the amount of such fees due
~. in each quarter is equal to or greater than the amounts otherwise due the City
... pursuant to Section 98.07(B). If the amount due under Section 98.07(B) is more
than said Service Agreement or franchise fees, then the Permittee shall receive a
credit in each quarter against such amount for all such fees paid in such quarter,
and shall pay the balance to the City as set forth in Section 98.07(E). Regazding
Service Agreements that allow non cable services (as defined in said Service
Agreement) to be provided, the provisioning of non cable services shall be subject
to this Ordinance in all aspects, including all fees.
B. In addition to any fees chazged pursuant to the City's Annual Fee Ordinance, all
General Right-of--Way and Utility Permittees, shall pay an annual fee, for each
calendar yeaz, based upon the miles of Business District Right of Way which the
Permittee occupies or desires to occupy in said calendar year as follows:
Less than one (1) mile $10,000
From one (1) to ten (10) miles $17,500
From eleven (11) to one hundred (100) miles $37,500
From one hundred (100) to five hundred (500) miles $100, 000
Quarterly payments shall be made on or before March 31, June 30, September 30
~,~., and December 31 of the calendaz year.
Vr.. There shall be no fee, other than those set forth in the Annual Fee Ordinance, for
occupation of Right of Way outside of the Business District Right of Way.
C. In addition to any fees chazged pursuant to the City's Annual Fee Ordinance,
Special Right-of--Way Permittees shall pay an annual fee of $2.00 per lineal foot
of Right-of--Way used or occupied, but not less than $1,000. This fee may be
waived for all Special Right-of--Way Permits for Residential Purposes. Such fee
shall be paid in advance for each calendaz yeaz prior to January 31 of such year.
D. Further specification regarding the determination and calculation of the fees set
forth in Sections 98.07 (B) and (C) may be set forth in the Administrative
Regulations.
E. All Fees pursuant to this Chapter shall be paid by check, money order or wire
transfer to the City of Dublin as the Administrative Regulations require.
F. Each General Right-of--Way Permittee shall maintain books, records, maps,
documents and other evidence directly pertinent to its calculation of payments to
the City in accordance with generally accepted accounting principles. The City
!'"" Manager, the City Finance Director or either's designated agents shall have
reasonable access to any books, records, maps, documents and other evidence for
~'"' inspection, copying and audit to the extent necessary to assure that the payments
hereunder are accurate and that all Right-of--Way Permittees fully comply with the
provisions of this Chapter and their respective Right-of--Way Permits.
G. The fees and minimums specified in Sections 98.07(B) and (C) may be modified
or adjusted or waived by Regulation; provided, however, that such fees remain
reasonable and non-discriminatory and that the total revenues to the City generated
by such fees represent not more than a reasonable allocation of the total costs to the
City of planning, regulating, purchasing, maintaining and governing the Rights-of-
RECORD OF ORDINANCES
Dayton Legal Blank Co. Form No. 30043 __
Ordinance No
Passed 19
Way, including any costs of joint planning, joint utility and telecommunications
facilities placed in the Right-of--Way by the City for the future use of Permittees,
enforcement of this Chapter, and related costs and overheads, including but not
limited to an appropriate allocation of the costs of any geographic information
systems utilized by the City.
H. The City Manager may enter into agreements with Permittees under which
Permittees may provide facilities or services, or both, to the City in lieu of all or
a portion of such fees. All such agreements shall be approved by Council.
In order to promote the purposes of this Chapter and the policy set forth herein, the City
Manager shall adopt Administrative Regulations requiring and governing joint planning
and construction for all Right-of--Way Permittees except for Special Right-of--Way
Permittees for Residential Purposes.
The City shall have the right to install and maintain, free of charge, upon any poles and
within any underground pipes or conduits or other facilities of any Service, General or
Special Right-of--Way Permittee, any facilities desired by the City unless (i) such
installation and maintenance unreasonably and materially interferes with existing and future
operations of the Permittee, and (ii) such installation and maintenance would be unduly
burdensome to such Permittee. Each Permittee shall cooperate with the City in planning
and designing its facilities so as to accommodate the City's reasonably disclosed
requirements in this regard.
A. In accordance with the provisions of this Chapter 98, the City Manager may
promulgate Administrative Regulations, as the City Manager deems appropriate
from time to time, to carry out the express purposes and intent of this Chapter,
including Administrative Regulations governing the procedures of the City Council
and permitting process.
B. Such Administrative Regulations shall not materially increase the obligations of any
Permittee hereunder; provided, however, that: 1) the adoption of Administrative
Regulations increasing fees pursuant to Section 98.07(G); 2) the requiring the
placement of facilities in designated portions of the Rights-of--Way underground
pursuant to Section 98.06(A)(4); or, 3) requiring the overbuilding of facilities shall
not be construed as materially increasing the obligations of a Permittee.
C. Within ninety (90) days after the effective date of this Ordinance, the City Manager
shall develop and implement Administrative Regulations by filing the same with
the Clerk of Council for publication. The proposed Administrative Regulations
shall become effective the earliest allowed by law.
A. Except for Special Right-of--Way Permittees for Residential Purposes, each
Permittee shall, as a condition of its Right-of--Way Permit, indemnify, protect and
hold harmless the City from any claim, loss or damage arising in any way from
Permittee's occupation or use of the Right-of-Way, including but not limited to the
construction, operation or maintenance of Permittee's facilities, and from any such
RECORD OF ORDINANCES
Dayton Legal Blank Co. Form No. 30043
Ordinance No. Passed _______________19________ '
Permittee's negligent or wrongful act or omission.
B. Except for Special Right-of--Way Permittees for Residential Purposes, each
Permittee, as a condition of its Permit, shall keep in force a policy or policies of
liability insurance, having such terms and in such amounts as are set forth in the
Administrative Regulations, covering its facilities and operations pursuant to its
Right-of--Way Permit. The City shall be named as an additional insured on such
policy.
A. Except for Special Right-of--Way Permittees for Residential Purposes, any Right-
of-Way Permittee that intends to discontinue use of any facilities within the
Rights-of--Way shall submit a written notice to the City Manager describing the
portion of the facilities to be discontinued and the date of discontinuance, which
date shall not be less than thirty (30) days from the date such notice is submitted
to the City Manager. The Permittee may not remove, destroy or permanently
disable any such facilities after such notice without the written approval of the City
Manager. The Permittee shall remove and secure such facilities as set forth in the
notice unless directed by the City Manager to abandon such facilities in place.
B. Upon such abandonment and acceptance by the City in writing, full title and
ownership of such abandoned facilities shall pass to the City without the need to
pay compensation to the Permittee. The Permittee shall, however, continue to be
responsible for all taxes on such facilities or other liabilities associated therewith,
until the date the same was accepted by the City.
C. Should any Permittee fail, after notice, to remove or rearrange facilities at the City
Manager's request as specified in Section 98.06(A)(4), the City may, at its option
and in addition to the imposition of any penalties or other remedies hereunder,
undertake or cause to be undertaken, such necessary removal or rearrangement.
The City shall have no liability for any damage caused by such removal or
rearrangement and the Permittee shall be liable to the City for all costs incurred by
the City in such removal or rearrangement.
A. In addition to any other rights set out in this Chapter, the City reserves the right
to revoke, in accordance with the procedures set forth in 98.13(B), any Right-of-
Way Permit in the event such Permittee violates any material provision of this
Chapter or its Right-of--Way Permit.
B. The City Manager shall give a Permittee thirty (30) days prior written notice of an
intent to revoke said Permittee's Right-of--Way Permit. Such notice shall state the
reasons for such action. If the Permittee cures the violation or other cause within
the thirty (30) day notice period, or if the Permittee initiates efforts satisfactory to
the City Manager to remedy the stated violation, the City Manager may rescind
said notice of revocation. If the Permittee does not cure the stated violation or
other cause or undertake efforts satisfactory to the City Manager to remedy the
stated violation the City Manager may recommend said Permit be revoked. After
granting the Permittee an opportunity to be heard in person or in writing, the City
Council may revoke the Right-of--Way Permit. Unless otherwise required by law,
the decision of the City Council shall be final.
C. Unless otherwise permitted by the City Manager, if aRight-of--Way Permit is
RECORD OF ORDINANCES
Dayton Legal Blank Co. Form No. 30043
Ordinance No
Passed_____
revoked, all facilities located in the Rights-of--Way or located upon Public Property
pursuant to such Permit shall be removed at the sole expense of the Permittee.
A. Nothing in this Chapter should be construed so as to grant any right or interest in
any Right-of--Way or Public Property other than that explicitly set forth herein or
in a Permit.
B. Nothing in this Chapter shall be construed to prevent the City from constructing,
maintaining, repairing or relocating any City utility, communications or like
facilities; grading, paving, maintaining, repairing, relocating or altering any street,
Public Property or Right-of--Way; or constructing, maintaining, relocating, or
repairing any sidewalk, bikepattar other public work or improvement. To the
extent that such work requires temporary or permanent relocation or rearrangement
of any facilities or structures of any Permittee, such relocating or rearrangement
shall be accomplished at the sole cost of the Permittee in such time and in such
manner as set forth in the Administrative Regulations and in alignment with the
City's 5 year capitol budget process.
In the event it is necessary to move or remove temporarily any of the Permittee's wires,
cables, poles, or other facilities placed pursuant to this Chapter, in order to lawfully move
a large object, vehicle, building or other structure over the streets of the City, upon two
(2) weeks written notice by the City Manager to the Permittee, the Permittee shall, at the
expense of the Person requesting the temporary removal of such facilities, comply with
City Manager's request.
A. Upon the foreclosure or other judicial sale of the Permittee's facilities
located within the Right-of--Way, the Permittee shall notify the City
Manager of such fact and its Permit shall be deemed void and of no further
force and effect.
B. The City shall have the right to revoke, pursuant to the provisions of
Section 98.13 any Right-of--Way Permit granted pursuant to this Chapter,
subject to any applicable provisions of law, including the Bankruptcy Act,
one hundred and twenty (120) days after the appointment of a receiver or
trustee to take over and conduct the business of the Permittee, whether in
receivership, reorganization, bankruptcy or other action or proceeding,
unless such receivership or trusteeship shall have been vacated prior to the
expiration of said one hundred and twenty (120) days, or unless:
1. Within one hundred and twenty (120) days after his election or
appointment, such receiver or trustee shall have fully complied with
all the provisions of the relevant Right-of--Way Permit and of this
Chapter and remedied all defaults thereunder; and,
2. Such receiver or trustee, within said one hundred and twenty (120)
days, shall have executed an agreement, duly approved by the Court
having jurisdiction in the premises, whereby such receiver or trustee
assumes and agrees to be bound by each and every provision of the
relevant Right-of--Way Permit and this Chapter.
RECORD OF ORDINANCES
Dayton Legal Blank Co. Form No. 30043
Ordinance No._____________________..__ Passed___________________________ ___19_____x___
The Permittee shall not be relieved of its obligation to comply with any of the provisions
of its Right-of--Way Permit or this Chapter by reason of any failure of the City or to
enforce prompt compliance.
The captions and headings in this Chapter are for convenience and reference purposes only
and shall not affect in any way the meaning of interpretation of this Chapter.
If any section, subsection, clause or provision or any part thereof of this Chapter shall be
finally adjudicated by a court of competent jurisdiction to be invalid, the remainder shall
be unaffected by such adjudication and all the remaining provisions shall remain in full
force and effect.
A. In addition to any other penalties set forth in this Chapter, and the remedy of
specific performance which may be enforced in a court of competent jurisdiction,
the following penalties shall apply.
1. Any Person or Permittee violating Sections 98.03(A) or 98.12(A), or
failing to pay when due any forfeiture imposed pursuant to 98.99(A)(2),
shall be guilty of a misdemeanor of the fourth (4th) degree. Each day such
violation continues shall be deemed a separate offense.
2. For failure to comply with any other provision of this Chapter, the penalty
shall be a civil forfeiture, payable to the City, in the amount of $500 per
day for each day of violation. In addition, for failure to timely comply
with a notice by the City Manager to remove or rearrange facilities
pursuant to Section 98.06(A)(4), an additional civil forfeiture equal to any
costs incurred by the City as a result of such failure, including but not
limited to any penalties charged the City by its contractors occasioned
thereby, shall be imposed.
B. Any Permittee may be excused for violations of this Chapter and its Right-of--Way
Permit due to Force Majeure.
RECORD OF ORDINANCES
Dayton Legal Blank Co. Form No. 30043
I
Ordinance No.____--------------..__ Passed --------19__.-_ _--
..d~.
S.~inn2
This Chapter shall be effective on April 15, 1998, in order that all Persons occupying the
Rights-of--Way as of the enactment date of this Ordinance may have a reasonable time to
comply herewith and for initial Administrative Regulations to be adopted hereunder.
Passed this ~l ~[~ day of ~ 997
r -Presiding Officer
ATTEST:
Clerk of Council
I hereby certsfy that copies of this Ordnance/Resotutiv~ were posted it
City of Dublin in accordance wstb Season 131.25 of the Ohio Revised Ca
(~j ~ [lark f Co cil, Dublin, .hio
CITY OF DUBLIN ~ ^ ~ O
,~~,
Office of the City Manager
5200 Emerald Parkway
.~> ,
Dublin, Ohio 43017-1006
Phone: 614-761-6570
Fax: 614-761-6512
To: All Members of Dublin City Council
From: Timothy C. Hansley, City Manager
Initiated B Dana L. McDaniel Director of Servi ~~
Y
Date: November 14, 1997
Re: Ordinance 152-97
Attached please find the Telecommunications Consulting Team report which includes a draft of
Ordinance 152-97, "An Ordinance Amending the Codified Ordinance of the City of Dublin to Adopt
New Regulations That Are Consistent with the Telecomm~znications Act of 1996 Governing Right
of Way Management in the City of Dublin." This ordinance will be reformatted prior to the second
reading. We apologize for the late delivery of this report and ordinance. Please contact Dana
McDaniel with any questions regarding the report and/or ordinance. Dana can be reached at:
(home) 717-0861, (pager) 646-6644, or (cellular) 563-0500.
DLM/tb
T:\PER1TB209\WP6l\DOC\DANAVvfEMOS\COUNCIL\RO WPOLIC. W PD
Revocation: City may revoke permits with notice for material violations of this Ordinance.
Reservation of Rights: City reserves the right to require Permittee to relocate or rearrange its facilities.
TemporaryMovement ofFacilities: Permitees must temporarily move facilities to accomodate movement of large vehicles
or structures with two weeks notice.
Foreclosure and Receivership: City shall be notified if Permittee forecloses or of judicial sale of the Permittee's facility
or of receivership. The City reserves the right to revoke permits if receiver does not comply with this Chapter.
Non-Enforcement of Waivers By City: Perxnittee is not relieved of responsibilities herein in the absence of the City's
enforcement.
Captions: Captions are for convenience and shall not effect the meaning of interpretation.
Severability: If any part of this Chapter is found invalid by a court it will not affect the remainder of the Chapter.
Penalties: Non-compliance with this Chapter may result in a misdemeanor of the fourth degree. Civil forfeiture in the
amount of $500 per day. Civil forfeiture equal to any costs incurred by the City. Any Permittee maybe excused due to
Force Majeure.
Effective Date: This Ordinance will be in effect April 15. This will provide adequate time for administrative rules to be
developed.
T:\PER\TB209\WP61\DOC\DANA\MEMOS\COUNCIL\ROWMGf. WPD
CITY OF DUBLIN M e m o
Office of the City Manager
5200 Emerald Parkway
Dublin, Ohio 43017-1006
Phone: 614-761-6570
Fax: 614-761-6512
To: All Members of Dublin City Council
From: Timothy C. Hansley, City Manager 1
Initiated By: Dana L. McDaniel, Director of S~~l
Date: November 25, 1997
Re: High-lights and Reformatting of Ordinance 152-97
Please find attached the properly formatted Ordinance 152-97. No substantive changes have been made to this Ordinance.
This Ordinance, if adopted, will become Chapter 98 of the City of Dublin Code of Ordinances. The following summarizes
the key aspects of this Ordinance for your convenience.
The purpose of this Ordinance is to be uniform, fair, and legally defensible in light of the Telecommunications Act of
96 (TA 96) and meet the following objectives:
1. Promote cooperation among telecommunication service providers and the City to minimise public inconvenience
during ROW work and disruption of public property, and ensure safe and efficient use of the City's streets, right of
ways and easements.
2. Promote the availability of a wide range of utility, communications, and other services, including the rapid deployment
of new technologies and innovative services to City businesses and residents at reasonable costs.
3. Enhance the City's economic development programs.
4. Ensure adequate public compensation for private use of the ROW and related costs, including costs of regulation.
5. Promote and require reasonable accommodation of all uses of ROW.
6. Compliance with TA 96 and state law, thereby minimising the City's exposure to litigation from parties affected by
implementation of this policy.
7. To promote the utilization of Rights-of--Way for the public health, safety and welfare; and,
8. To assure that Applicants have the financial, technical and managerial resources to comply with this Chapter and the
provisions of any Right-of--Way Permit issued hereunder.
Establishes three Right-of Way Permit groups:
1. General Right-of--Way Permit: requires a service agreement to provide any service within the City which uses the
Right-of--Way. Administrative rules will be established regarding the "Dublink" area. Term = 5 years
„„ ,-.
2. Special Right-of--Way Permit: A specific, limited use, i.e. point-to-point fiber, temporary directional signage,
temporary overhead lines, residential uses. Terrn = 3 years
3. Utility Permit: Granted to a traditional monopoly provider of essential services (as per the PUCO) i.e. gas, electric,
water, sewer. May be granted waivers of the Ordinance such as through a Service Agreement (or Operating
Agreement).
DublinkArea defined (See Exhibit A): Only those with permits are allowed in. Existing facilities are grandfathered; new
and additional facilities must use Dublink.
Establishes an Application process and fee. Utility ROW permit: No fee
General ROW permit: $1,000.00
Special ROW permit: $500.00
Criteria for Permits: Must have a valid Service Agreement, consistent with public policy, no delinquent taxes.
Conditions of a Permit: least obtrusive; minimises disruptions; joint planning and construction
emphasized; cooperation desired; remove, relocate ,bury facilities; provide as-built maps (digital); good engineering and
construction practices; proper replacement of infrastructure; register with OUPS; cooperate with City in the case of an
emergency; identify all structures and facilities in the ROW; designate single point of contact; all subcontractors will be
identified and shall comply.
Permit Fees and Auditing: Annual fee Ordinance for administrative processing of daily construction permits, open cuts
etc. is skill in effect. Franchise fees still in effect. Franchise fees for cable services shall be paid as stated in the franchise,
except as noted.
Annual fees will be paid by General and Utility Permittees for the use of the amount of ROW (miles) used in the business
district area (Dublink) per the sliding scale provided in the Ordinance.
No fees will be paid by permittees for use of the ROW in residential areas or those areas outside of Dublink.
Special ROW Permittees will pay $2.00 per lineal foot of ROW used but no less than $1,000. Waivable for residential
uses.
Records must be kept by permittees to show use of ROW and said records maybe audited by the City.
Fees may be waiverable as along as they are consistent, reasonable and non-discriminatory. Said waivers may be awarded
,~,,, for, but not limited to, such exchanges as using Dublink, operating agreements, providing facilities for public use, etc.
Joint Planning and Construction: Administrative Regulations to provide opportunities and/or requirements for joint
planning and construction.
City use of Facilities: City may have access to facilities for City use as long as it does not unreasonably or materially
interfere or cause burden.
Adoption ofAdministrative Regulations: City Manager shall develop and implement administrative rules/regulations to
carry out the intent and purpose of this Chapter. These must be put into place 90 days after effective date of this Ordinance.
Indemnity and Insurance: Permittees (except residential) must hold the City harmless and secure appropriate levels of
insurance.
Removal of Facilities: Requires that City be notified of intent to abandon facilities. City must respond authorizing removal
or City may require facilities to be left in place. City may take ownership of abandoned facility if in the best interest of the
City. City may remove abandoned facilities with no liability and impose penalties to recover costs.
1. To comply with the Telecommunications Act of 1996 to include any of the follow-on rule
malting and/or rule interpretations by the appropriate state and federal agencies and/or
courts.
Dublin's current code addressing wireless towers has served Dublin well. However, significant
changes are needed to comply with the new Act. To date, the City has worked pro-actively with
.-- « the industry with the help of Nexus Teleoommuaications. Several innovative approaches have been
employed over the past year to limit the proliferation of towers and to satisfy the needs of the
~,.,~ industry. This has enabled the City to study and develop Ordinance 147-97, while still complying
with the Act despite our outdated code. Other Cities in this region and nationally have chosen to
impose Moratoriums while they wrestle with how to Dome into compliance with the Act. Staff with
advice from legal Counsel, did not feel this was a safe legal approach. In fact, Moratoriums are
eomiag under heavy stxutiny sad attack by the industry and the Federal Government. Staff believes
Ordinance 147-97 wiU bring the City incompliance with the Act while looking out for the City's
best interests.
2. To work pro-actively with the various wireless telecommunications service providers to
ensure rapid and reliable deployment of their servtces/technologies, while minimizing
negative impacts on the community.
As stated previously, the best defense is perhaps an aggressive offense. As you know, the City has .
employed the services of Nexus Telecommunications, speafically Jan Murphy. By using the
services of someone with many years of experience in locating such facilities, Jan has positioned the
City to pro-actively identify service providers intending to locate in the City, aggressively contact
them, seek to understand their needs, work with them to help identify options and guide their
location efforts, and then help them through the City's processes. We have instituted this pracxice
on a couple situations over the past year and believe this has been well received by the industry and
have every belief it will continue to be. Additionally, this proactive approach creates a more
positive environment and an opportunity to work together for a mutually beneficial outcome.
Ordinance 147-97 is designed to pursue this very tactic of pro-active cooperation yet ret~ia the
ability to scrutinize more sensitive situations.
3. To guide the location of Towers and Wireless Telecommunications Facilities in the City.
Ordinance 147-97 institutes a "graduated zoning approach". This means that the Ordinance
provides an incentive to locate structures in certain zoning districts by lessening the scrutiny and
simplifying the processes required to receive a permit. For example, in industrial zones, to which
towers have always been restric~od, only administrative approval is required. If a tower is desired
in a residential zoning district, the process will undergo the utmost scrutiny and review.
Additionally, the City can guide the location of such facilities by identifying up front, potential
publicly and privately owned sites and existing public and private structures/bulldIngs that best lend
themselves to such purposes. The City has conducted an inventory of such sites and by doing so
in advance, the City can better guide wireless service providers rather than have such sites dictated
to the City.
4. To make available appropriate city owned property and structures for wireless
telecommunications facilities.
At times publicly owned property and/or structures lend themselves to accommodate wireless
towers and/or facilities. The City has demonstrated this with the use of its Avery Road Water
Tower and light pole at Avery Park. These have served as excellent alternatives to new stand-alone
towers thereby helping to reduce the proliferation of towers.
5. To minimize adverse visual impacts of Towers and Wireless Telecommunications Facilities
through careful design, siting, landscaping and innovative camoutiaging techniques.
Ordinance 147-97 addresses these issues thoroughly. The Ordinance encourages "alternative tower
structures" to minimize visual impacts. To some degree the City has employed this tactic by
locating wireless telecommunications facilities on its water tower and light pole (Avery Park).
The City must work proactively with service providers, as previously mentioned, to seek
opportunities to minimize visual impacts.
6. To promote and entourage shared use%-location of Towers and Antenna Support
Structures as a primary option rather than construction of additional single-use towers.
Ordinance 147-97 strongly encourages and incentivizes the eo-location of towers and Antenna
Support Structures. Co-kcatan is the best method to reduce the proliferation of towers throughout
the City. This has been demonstrated at the Veterinary Clinic on Tuller Road where two providers
are k+cated on the same tower~and a third is aggressively considering the site. The ABP tower on
Shier Rings Road can support five providers. Multiple providers can be located on water towers
and on existing buildings where camouflaging techniques can help minimize visual impacts. This
methodology is showing much promise in the City and the industry has been very cooperative and
open minded in considering these options. This Ordinance uses the "graduated zoning approach"
to ease the process where towers and facilities would be more acceptable and tighten the process
where such towers sad fac~ities would be less desirable. This Ordinance imposes height restrictions
and restricts speculative tower building. Also, the Ordinance requires the applicant to prove that
co-location is not possible if a new tower/facility is desired
7. To avoid potential damage to ad3acent properties caused by Towers and Wireless
Telecommunications Facilities by ensuring- such structures are soundly and carefully
designed, constructed, modified, maintained and removed.
Ordinance 147-97 requires towers and wireless telecommunications facilities to be built to proper
codes, painted, fenced, maintained and if not used for a certain period of time to be removed This
will ensure that such facilities do not become any more of an eyesore than they may already be
considered.
8. To the greatest extent feas[ble, ensure that Towers and Wireless Telecommunications
Facilities are compatible with surrounding land uses.
and
9. To the greatest extent feasible, ensure that proposed Towers and wireless
Telecommunications Facigties are designed in harmony with natural settine and in a manner ,,,,,,~
consistent with current development patterns.
The "graduated zoning approach" enables the City to more closely scrutinize the placement and type
of such facilities in the various zoning districts through process requirements. The application of
"alternative tower structures", eo-location, landscaping, painting and fencing requirements through
pro-active cooperation will maximize compatibility with the surrounding land uses.
Ordinance 147-97 is the culmination of several model ordinances to include the MORPC Model
Wireless Teleoommunicatlon Ordinance.
Again, staff recommends Ordinance 147-97 as a means to be in compliance with the
Telecommunications Act of 1996. Council should refer Ordinance 147-97 to the Planning and
Zoning Commission for review and recommendation.
Should you have any questions please direct them to Dana McDaniel H: 717-0861, W: 761-6570
P: 646-6644 or Bobbie Clarke W: 761-6550. Thank you.
Dublin Planning and Zoning Commission
Minutes -November 13, 1997
Page 15 DRAFT
Ms. Clarke said the least sensitive locations will be handled administratively. A middle tier of
sites will be handled by the Board of Zoning Appeals as special permits. The most sensitive
locations will be conditional uses subject to the Planning Commission's discretionary review. The
proposed standards need close scrutiny. She suggested a subcommittee to work through the issues.
Ms. Murphy said 10,000 new towers are estimated nationwide within a few years. She said some
•~ towers are built speculatively, finding customers later. She said at 200 feet, the towers have to be
filed with the FAA. The FAA determines if lighting is needed. Mr. Lecklider would like to
. avoid red flashing lights if possible.
Mr. Banchefsky said there is pending federal legislation which will remove all local control on
this issue. Mr. McDaniel said Dublin is lobbying for local control through its professional
organizations. Mr. Lecklider said local control should be preserved.
Without a vote, it was decided to postpone this zoning code amendment until a subcommittee is
formed to review it throughly. Mr. Peplow and Mr. Sprague volunteered to serve on the
subcommittee. A meeting will be held within the next few weeks.
CITY OF DUBLIN ~ Memo
Department of Service
6351 Shier--Rings Road
Dublin, Ohio 43016-1243
Phone: 614-761-6570
Fax: 614-761-6512
To: All Members of Dublin City Council
From: Timothy C. Hensley, City Manager
Initiated by: Dana L. McDaniel, Director of Service
Bobbie Clarke, Director of Planning
Date: October 28, 1997
Re: Ordinance 147-97 Wireless Telecommunications
As~ you know, the Telecommunications Act of 1996, the accelerating growth of wireless
technology, and the entry of multiple wireless carriers into nearly every significant marketplace,
requires that all cities and other governmental entities re-examine and re~~ssas txisting polides,
ordinances, codes and processes relative to accommodating the wireless Industry in this new
environment. L'!ce all others, the G'Yty of Dublin must reconcile the objectives and rights under law
of the wireless carriers with the community's goals and concerns relating to the placement of
antennas, towers and other structures.
Since the passage of the Telecommunications Act of 1996, staff has assessed its impact on the
community. Perhaps you have concluded from your own reading and from previous brte8ngs by
staff that this impact results in required changes in the City's existing coning code in order to
comply with the Federal Act. As you know from your National League of Cities involvement and
other venues, kcal ~ontng authority is under substantial scrutiny (attack) by the federal government
()~. It will be many court ~ and quite some time before the fight over local ~oning authority
is resolved Therefore, the question is what can and should the City do to comply with the Act
while also protecting the interests of the City?
At the risk of over simplifying, staff be4eves through Its research, attending seminars on the subject,
monitoring actions of other munldpalltles and partidpating in regional forums, the best defense Is
an aggressive offense. The following outlines the objectives the City should pursue. These
objectives are upheld In Ordinance 147-97 (attached):
e~11~
~.
DUBLIN PLANNING AND ZONING COMMISSION
RECORD OF ACTION
November 13, 1997
crr~~ ~-H• uulsi.m
4301i•1236
lieM/tDtk f 14.7f 1 ~SSO
Fmc fl{-7fi-fSff
Ili SiIK www.duhi~.oh.us
The planning and Zoning Commission took the following action at this meeting:
4. Zoning Code Amendment 97-1390RD -Wireless Telecommunications Ordinance 147-97
Bequest; Review and approval of an ordinance to amend the Zoning Code (Chapter 153) to
regulate antenna sites on towers and other antenna support structures necessary for providing
wireless service.
Applicant: City of Dublin, c/o Dana McDaniel, Service Director, 6351 Shier-Rings
Road, Dublin, Ohio 43016.
RPSULT: After discussion, it was decided to postpone this zoning code amendment until a
subcommittee is formed to review it throughly. Mr. Peplow and Mr. Sprague volunteered to
serve on the subcommittee. A meeting will be held within the next'few weeks. There was no
vote taken.
STAFF CERTIFICATION
Barbara M. Clarke
Planning Director
Dublin Planning and Zoning Commission
Minutes -November 13, 1997
Page 14 pRAFT
4. Zoning Code Amendment 97-1390RD -Wireless Telecommunications Ordinance 147-97
Ms. Clarke said Zoning Code amendments require a Commission recommendation. This is draft
"7A", and it is based on the MORPC "model" ordinance. The staff is attempting to modify it to
Dublin'Mr. Sprague processes and standazds. She thanked the Commission for staying past 11:00
p.m.
Dana McDaniel said that Dublin has been involved with the Telecommunications Act of 1996 for
two years, including the work on the MORPC model. He said this amendment will bring Dublin
into federal compliance. The ordinance has ten objectives. The main goal is balancing the federal
requirements with protecting the community from an unaesthetic proliferation of towers.
Mr. McDaniel said Dublin is working pro-actively with this industry and has hired Jan Murphy
of Nexus Telecommunications as a consultant. She works with providers in finding appropriate
sites for their antennae, such as atop the Avery Road water tower. Co-location has been achieved
in several locations.
The ordinance has a graduated approval system. The least sensitive sites will require only
administrative review. The middle tier will require a special permit from the Boazd of Zoning
Appeals, and the highest level of scrutiny will be by the Planning Commission as a conditional
use. Landscaping, fencing, setbacks, and height limits aze included. Camouflaged antennae
receive preferential treatment. He thanked Bridge Kahle and the Planning staff.
Mr. McDaniel said local control is limited and the ordinance relies on incentives and cooperation.
He said the tallest tower can be 200 feet high, but it must support several providers. Ms. Boring
said this sounds too high. The AEP tower on Shier-Rings Road is 200 feet in height, and the
tower at the vet clinic on Tuller Road is about 125 feet tall. Mr. McDaniel said 200 feet is a
fairly low "maximum height", but is tall enough to co-locate several users, thus avoiding a ,,,,,~
proliferation of towers. Ms. Murphy said as technology improves, towers may be lower, perhaps
75-80 feet high, but there will be more of them. As much of the industry converts to a digital
system, the antennas will change, but the existing structures can be reused. She expects more
cooperation in the future from the carvers.
Ms. Boring asked how the 100-foot setback requirement will fit into a residential district. Ms.
Clarke responded there are many residential sites of multiple acres. Ms. Boring asked if deed
restrictions in a neighborhood can prohibit towers. Mr. Banchefsky said no.
Ms. Clarke said the technical aspects of the ordinance need discussion. Dublin currently regulates
too strictly to meet the 1996 Telecommunications Act. However, the community desires local
control to assure towers are not placed in local neighborhoods, or on small lots. The City has an
inventory of all water towers, tall buildings, etc. and is working with the industry to meet its
needs. The draft ordinance makes it easier to share an existing tower than to erect a new one, and
to install a shazed tower rather than having a single user facility. The process will be very easy
for disguised towers, ones which look like a tree in a forest or aze hidden in a church steeple.
~~
Dublin Planning and Zoning Commission
Minutes -December 4, 1997 ~ ~^*~ ~' "
Page 5 ~~
4. Zoning Code Amendment 97-139 ADM -Wireless Telecommunications -Ordinance
147-97
Bobbie Clazke said this amendment is intended to bring Dublin's Code into conformance with
federal law, especially the Telecommunications Act of 1996. Jan Murphy of Nexus
Telecommunications and Dana McDaniel were available for questions. A subcommittee
comprised of Mr. Sprague and Mr. Peplow met with Jan Murphy. Ms. Clazke said Draft 8 is
currently under review. Changes since last month aze indicted by shading and strike-out
delineations.
Ms. Clazke said for the least sensitive sites, such as industrial sites, the process would be
administrative (staff only). The Boazd of Zoning Appeals would heaz requests of a medium
sensitivity as determined by the chart on page 6 of the draft. Proposed towers in residential or
planned districts, for example, would be subject to review by the Planning Commission under the
conditional use regulations. This would be the usual discretionary review.
She said the towers aze not staffed and do not have pazking. The minimum setback from a
property line is 100 feet. The type of tower structure, whether a monopole or lattice design, is
not addressed. She said the draft of last month's minutes were distributed this evening.
Ms. Boring suggested a lower maximum height than 200 feet, for example 100 feet. Ms. Clazke
said 100 feet is probably too limiting for the industry. She said as long as the system is fully
functional, a lower height could be established.
Mr. McDaniel said the 200-foot maximum repeats the MORPC and national code standazds. He
said this seems to be an industry standazd. Local control cannot create a barrier to
communication.
Ms. Clazke suggested that a 200-foot tower could be tied to conditional use review. The City's
goal is the ma~cimize service from any tower, and 200 feet assumed co-locating several providers
on one tower. The vertical separation between different providers is usually 20 feet.
Mr. Harlan asked if service is better for the company at a taller height. Jan Murphy responded
that providers usually build specifically the height they need. The structure may be designed with
the maximum structural strength. All the carriers aze competing with one another, and they tend
to address that company'Mr. Sprague needs. The height varies based upon the rest of the
provider'Mr. Sprague network of other towers. Ms. Murphy said some towers have been built
speculatively.
Ms. Clarke said a category could be added to the chart on Page 6 of the ordinance to address
towers higher than 150 feet as a note that would indicate conditional uses. Because Dublin is
pressuring providers to co-locate, we aze pushing them to add height. For two users, the
maximum height is 130 feet; for three users, 150 feet; and for four users, 200 feet.
Dublin Planning and Zoning Commission
Minutes -December 4, 1997
Page 6
DRAFT
Mr. Harlan asked if four users of the same tower was unusual. Ms. Murphy said two or three
users on one tower is unusual, but it depends upon the municipality of the location as to what is
permitted. Four users per tower are rare.
Mr. Sprague said the absolute minimum distance between co-location tower users was ten feet.
Ms. Murphy said engineers generally prefer a 20-foot vertical separation, but she had seen less.
Mr. Peplow asked if the ordinance had been reviewed by the Law Director. He understood that
the Telecommunications Act tn~ts the providers like the utilities. He asked if this ordinance was
defensible in court. Mr. McDaniel said Mitch Banchefsky and Bridget Kahle were involved
throughout the process. Mr. Banchefsky said he is comfortable with it. It is unique and
innovative, and providers should have no problem adhering to it. However, the FCC could
change the rules completely and change the entire process.
Ms. Chinnici-Zuercher asked subcommittee members Sprague and Peplow for comments. Mr.
Peplow said a wonderful job had been done in preparing this ordinance by Mr. McDaniel and Ms.
Murphy. He was concerned, however, about a 200-foot tower height.
Mr. Sprague said Dublin is to be commended for apro-active stance. He said a system was
needed to guide the location without being burdensome. This is a good balance for all concerned.
Mr. Lecklider agreed and said towers are a necessary evil. He hoped that someday technology
will alleviate them.
Mr. Harlan congratulated Dublin and the staff on being pro-active and innovative.
Mr. Ferrara strongly stressed that location of the towers was his first concern and then their
height.
~~
Mr. Peplow made a motion to approve this Zoning Code amendment, and Mr. Sprague seconded
it. The vote was as follows: Mr. Harlan, yes; Ms. Boring, yes; Ms. Chinnici-Zuercher, yes; Mr.
Ferrara, yes; Mr. Lecklider, yes; Mr. Sprague, yes; and Mr. Peplow, yes. (Approved 7-0.)
..,~
crr~ ~ ~r ul iti,i ~
Division of Planning
"`"'.00 Shkr-Rings Road
n, Ohio 43016-1236
PV1r:,"'f D D: 614-I61-6550
Fmc 614-161.6566
Web Site: www.dubGn.oh.us
DUBLIN PLANNING AND ZONING COMMISSION
RECORD OF ACTION
December 4, 1997
The Planning and Zoning Commission took the following action at this meeting:
4. Zoning Code Amendment 97-1390RD -Wireless Telecommunications Ordinance 147-97
Request: Review and approval of an ordinance to amend the Zoning Code (Chapter 153) to
regulate antenna sites on towers and other antenna support structures necessary for providing
wireless service.
Applicant: City of Dublin, c/o Dana McDaniel, Service Director, 6351 Shier-Rings
Road, Dublin, Ohio 43016.
MOTION: To recommend approval of this Gode amendment.
VOTE: 7-0.
RESULT: This Code amendment will be forwarded to City Council with a positive
recommendation.
STAFF CERTIFICATION
`. ~.
. f;~ i )n l ~l.. ~.
Barbara M. Clarke
Planning Director
AS SUBMITTED TO COUNCIL
FOR MEETING ON ~ 7
Dublin Planning and Zoning Commission
Staff Report -December 4, 1997
Page 16
CASE 4: Zoning Code Amendment 97-139ADM -Wireless Telecommunications -Ordinance
147-97
APPLICANT: City of Dublin, c/o Dana McDaniel, Service Director, 6351 Shier-Rings Road,
Dublin, Ohio 43016.
REQUEST: Review of the proposed changes to the zoning regulations governing wireless
communications, specifically communications towers and antennas, to be consistent
with the Telecommunications Act of 1996.
STAFF CONTACT: Barbara M. Clarke, Planning Director.
UPDATE:
Draft 7A of this Code amendment was informally discussed at the November 13, 1997
Commission meeting. Jim Sprague and George Peplow volunteered their service on a
subcommittee to review the ordinance. They met with Jan Murphy from Nexus (consultant to the
City) and Legal and Planning staff on November 18. Few changes were requested.
Attached is Draft 8 of the Ordinance 147-97 governing wireless communication facilities,
including cellular (and other) towers. The changes are noted as follows: language to be deleted
has a strike out, or line through the text, and new verbiage is shaded. The changes were largely
generated by the Planning staff members in the latest review sessions.
BACKGROUND:
The federal regulations regarding wireless communications were revised last year in the
Telecommunications Act of 1996. All local regulations were subsequently required to be brought
into compliance with the Act. The issue was under study by MORPC, and that organization
presented a model ordinance for local use. Dana McDaniel of the Dublin staff was involved in
that effort and drafted a version that was tailored for use in Dublin. This proposed ordinance has
been under internal review with the assistance of the Law Director's office and an outside ••~
consultant for the last few months.
Currently, cellular towers are limited to 35 feet in height except in industrial districts. Because
Dublin's industrial property is consolidated along US 33, and not spread throughout the
community, this is considered to be an unacceptable local regulation and out of compliance with
the Federal Telecommunications Act. The staff has drafted athree-prong approach to oversight
which involves revising the Dublin Zoning Code. The least restrictive mechanism, requiring a
certificate of zoning compliance issued by the staff, would generally apply to industrial property.
The middle level of regulation would permit such towers, under the special permit regulations,
issued by the Board of Zoning Appeals. The highest level of oversight would be under the
conditional use provisions, utilizing the discretionary power of the Planning and Zoning
Commission.
Please find attached a memo from Tim Hansley and Draft 8 of Ordinance 147-97 for your review.
Staff is requesting a formal recommendation from the Commission at this time. The ordinance
will be scheduled for public hearing on December 15 at City Council if the Commission takes
action at this meeting.
~~
Recommended
Right-of-Way Management Policy
for the City of Dublin
November 13, 1997
Report Prepared for the City of Dublin by the
Telecommunications Project Team:
Dana McDaniel
Greg Dunn
Kim Griffith
Pete Patton
Doug Essman
Table of Contents
Section Page Number
EXECUTIVE SUMMARY
1.0 INTRODUCTION 1
1.1 Telecommunication Needs of the Dublin Community 1
1.2 Need for Right-of--Way Management Policy 1
2.0 LEGAL OVERVIEW 3
3.0 REVIEW OF ALTERNATIVES 4
3.1 Discussion 4
3.2 Recommendation of ROW Management Policy 8
4.0 CITY OF DUBLIN RIGHT OF WAY MANAGEMENT POLICY 8
4.1 Comprehensive Right-Of--Way Ordinance 8
4.2 Conduit Bank System 9
5.0 PRESENT STATUS OF RIGHT OF WAY POLICY •DEVELOPMENT 11
5.1 Right of Way Ordinance I1
5.2 DubLink Conduit Bank System 11
5.3 Completion of Project 12
FIGURES
Figure 1 Right-of--Way Development Decision Flowchart
Figure 2 DubLink Area
ATTACHMENTS
Attachment 1 Telecommunications Planning and Operations in Other Cities
Attachment 2 Comprehensive Right-of--Way Ordinance
Attachment 3 Engineering Considerations
w~
EXECUTIVE SUMMARY
City of Dublin staff and consultants have worked for nearly three (3) years and in a
number of settings to understand and formulate a series of resolutions and options
regarding a variety of telecommunications issues, including management of the City's
Right-of-Way. In the City of Dublin, telecommunications providers are requiring access
to publicly owned Right-of-Way in order to build, maintain, or upgrade the local
infrastructure. The City does not have the regulatory authority to exclude these
companies, nor should it wish to - a variety of telecommunications services are
considered desirable to encourage economic development in the community.
However, the anticipated construction raises concerns that repeated cuts and borings
within the City right-of-way will destroy expensive landscaping and rapidly degrade the
quality and use of the streets through increased maintenance costs, frequency of
resurfacing, and traffic delays. At present, the City has no formal policy or procedure
that adequately addresses the conservation of ROW space and paved surfaces. In April
1994 the City assembled a Telecommunications Project Team to examine the legal,
administrative, and technically feasible right-of-way management options available to the
City, and recommend a comprehensive Right of Way policy. Four alternatives were
considered by the team: 1) no private use of Right-of-Way, 2) a City-owned and
operated utility, 3) a public/private partnership,and 4) management by ordinance.
Based upon review of these alternatives, the Telecommunications Project Team
recommends a combination of alternatives 3 and 4:
^ Enactment of a ROW Ordinance to provide a legal means of managing access to the
publicly owned ROW, and
^ Construction of DubLink, a single-build multi-duct conduit bank system, in Dublin's
business district. All telecommunication providers will be required to use this system.
The combination of ordinance + DubLink system is considered the most effective means
„~,~ of minimizing street cuts and controlling the consumption of ROW space.. All other city
objectives and legal criteria outlined in the attached report are met by this strategy. If
financial or other considerations prevent construction of the Dublink system then the
recommended ordinance will require coordinated construction with overbuild.
Recommended Right-of--Way Management Policy
for the City of Dublin
November 13, 1997
1.0 INTRODUCTION
1.1 Telecommunication Needs of the Dublin Community
Telecommunications services are vital to the economic development of Dublin. The City
presently has a significant number oftelecommunications-reliant businesses, and expects
further demand by the private sector as the Emerald Parkway and other road systems are
completed. These services, which include Internet access and rapid data transmission,
are anecessity- not a luxury. Rapid advances in telecommunications and computing
technology over the last decade have vastly increased the speed, capacity, and geographic
reach of data transmission. The ability to compete in business, conduct research, educate
students, and govern responsibly depends on access to and availability of current
information.
1.2 Need for Right-of-Wav Management Policv
Rising consumer standards and expectations have fueled an explosive growth in demand
for telecommunication services. This demand, coupled with the recent (1996)
deregulation of the telecommunications industry has spurred an increase in service
providers and encouraged other utility providers to expand into this market. In the City
of Dublin, and in municipalities across the country, telecommunications providers are
requiring access to publicly owned right-of--way (ROW) in order to build, maintain, or
upgrade the local infrastructure that connects their customers to the "information
superhighway". The City does not have the regulatory authority to exclude any of these
companies from operating in the Dublin, nor should it wish to. The ability to choose
between multiple service providers will ultimately provide the Dublin residential and
business community with a variety ofcompetitively-priced telecommunications services.
This anticipated construction of telecommunications infrastructure raises a number of
concerns:
1. Despite steps taken recently to acquire more ROW, the publicly-owned ROW will
become a limited resource. Facilities installed by these telecommunications
companies will occupy ROW space adjacent to traditional users of municipal ROW
including gas, sewer, electric, and water services.
Right-of--Way Management Policy Report
November 13, 1997
Page 2
2. Repeated cuts and borings within City ROW has the potential to destroy expensive
landscaping_and rapidly degrade the quality and use. of the streets through increased
maintenance costs, frequency of resurfacing, and traffic delays.
3. The ROW located in the City's business districts will be the primary target of
expansion. The most heavily traveled streets in Dublin will be subject to frequent
disruption.
~~ At present, the City has no formal policy or procedure that adequately addresses the
conservation of ROW space and paved surfaces. A ROW management policy adopted by
"~`~` the City to address these issues should be uniform, fair, legally defensible, and meet the
following objectives:
1. Promote cooperation among telecommunications service providers and the City to
minimize public inconvenience during ROW work and disruption of public property,
and ensure safe and efficient use of the City's streets, right of ways, and easements.
2. Promote the availability. of a wide-range of utility, communications, and other
services, including the rapid deployment of new technologies and innovative services
to City businesses and residents at reasonable costs.
3. Enhance the City's economic development programs.
4. Ensure adequate public compensation for private use of the ROW and related costs,
including costs of regulation.
5. Promote and require reasonable accommodation of all uses of ROW.
6. Compliance with TA 96 and state law, thereby minimizing the City's exposure to
litigation from parties affected by implementation of this policy.
City staff has participated in forums concerning ROW issues since 1994, including the
,~
Mid-Ohio Regional Planning Commission telecommunications committee and asix-city
consortium. Most of these discussions centered on compliance with anticipated
telecommunications regulatory changes and potential for economic development. In
April 1997 the City assembled a Telecommunications Project Team to examine the legal,
administrative, and technically feasible ROW management options available to the City.
The purpose of this team was to develop and recommend a legally defensible ROW
management policy that encourages the growth of telecommunications services in Dublin
while minimizing the impact and disruption of City streets, right of ways, and easements.
This report summarizes the results and recommendations of the Telecommunications
Project Team.
Right-of--Way Management Policy Report
November 13, 1997
2.0 LEGAL OVERVIEW
Page 3
Prior to the passage of the Telecommunications Act of 1996 (TA 96), portions of the
telecommunications industry such as cable television and local telephone existed as
monopolies in most areas of the country. In Dublin, Ameritech was a monopoly provider
ol'telephone services prior to de-regulation, and has most of the customers in this City.
Ameritech has occupied significant portions of the Dublin's ROW for many years.
In 1996 the Public Utilities Commission of Ohio (PUCO) also introduced aspects of
competition to the Local telephone business. The net results of the PUCO's activities and
TA 96 are that there are now 24 telephone companies certified by the PUCO to provide
telephone services in Franklin County.' Five companies are currently in operation:
Ameritech, NextLink, MetroCom AxS (50% owned by Time-Warner), ICG and TCG.
The other companies with permission of the PUCO to operate have not yet deployed
facilities in Franklin County. The new providers desire to get access to the ROW so they
can compete with Ameritech. All new entrants have expressed a desire to serve only the
business market initially.
Each of the companies interested in providing telephone services to customers needs to
occupy portions of the ROW of the municipality they intend to serve. Pursuant to TA 96,
cities are authorized to regulate and manage access to their right of way. The purpose of
the proposed Dublin policy is to regulate the ROW for the safety, health and welfare of
Dublin citizens, but in a manner consistent with TA 96 and State law. TA 96 allows
cities to regulate new telephone companies and the existing telephone companies with the
following conditions:
^ No local regulation can be a barrier to entry,;
^ No local regulation can be discriminatory;
^ Local regulations must be competitively neutral; and
^ Cities may charge fees for use of the ROW and may issue regulations regarding the ,,,,~
ROW, providing such regulations and fees meet the preceding criteria.
The Ohio Constitution, Article XVIII, gives the municipalities the home rule authority to
franchise public utilities including telephone service. Therefore, cities may regulate
occupation of the ROW by telephone companies pursuant to Federal and State law.
Given this legal background, the problem that Dublin faces in the regulation of the ROW
is that new companies must be treated in substantially the same manner as the existing
monopoly telephone provider, Ameritech, which has been operating in Dublin's ROW
for many years with very little regulation. A policy must be crafted which takes into
account the existing situation and the obligation to allow new carriers in the ROW, while
pursuing the previously stated objectives.
` In Ohio, no telephone company may provide telephone service without certification by the PUCO.
~~
~.w
Right-of--Way Management Policy Report Page 4
November 13, 1997
3.0 REVIEW OF ALTERNATIVES
31 Discussion
Figure 1, Right-of--Way Policy Development Decision Flowchart, presents the range of
policy alternatives considered by the Telecommunications Project Team. This section
describes the alternatives shown on the flowchart, analyzes the possible consequences of
each choice, and explains the decision to accept or reject each alternative. The analysis
of these alternatives is based upon "best fit" with the objectives for a ROW policy
presented in Section 1.2, and the legal considerations outlined in Section 2.0.
The City initially had two choices: to do nothing (the "No Further Action" option), or to
develop aRight-of--Way Management Policy that protects and conserves the useful life of
the publicly owned ROW. Doing nothing will lead to multiple providers installing
structures in an uncoordinated fashion. This will directly violate the objectives
previously set forth, and was eliminated from further consideration.
So what care be done to legally meet the City's ROW management policy objectives?
The Telecommunications Study Team considered four (4) alternatives:
1. No private use of the ROW,
2. The City owns & operates a Public Telecommunications Utility,
3. A Private/Public Partnership to deliver services, and
4. Regulate use of ROW by ordinance.
These alternatives were developed based upon the experience of the Telecommunications
Project Team, and in consideration of information collected from other cities in Ohio and
other states as part of the review of these alternatives.2
Alternative l: No Private Use ofROW
Under this alternative, the City of Dublin excludes companies other than providers of
~,..~ essential services, such as gas and electric, from using the publicly owned ROW.
Companies that are not providers of essential services are allowed to keep and use the
facilities they have in place on the effective date of the ordinance. However, these
companies will have to negotiate with private owners to obtain easements for future
installations.
Meets Objectives? This alternative would partially meet one of the City's objectives.
By sharply reducing the number of street cuts needed to install
conduit and other facilities, the disruption of public property would
be minimized (Objective 1). No other objectives would be met.
Legal Issues? ROW incumbents will have significant competitive advantage.
New entrants to market will have considerably greater, if not
z The information obtained from other cities is summarized on a table in Attachment 1.
H
z
w
a.
off
a
~~
wwx
AV
i U Oa
awn a w
~ a' O
~~
U
~~
ww
OA
H
pq
Right-of--Way Management Policy Report Page 5
November 13, 1997
prohibitive expense involved in acquiring private easements, and
may be unable to obtain route access in some areas. This
alternative violates conditions that local regulations must be
competitively neutral, and not a barrier to entry.
Recommendation No further consideration of this alternative.
Alternative 2: City prvr:s/Operates aPublic Telecommunications Utili
Under Alternative 2, the City is responsible for providing telecommunication services to
`~'"~ businesses (and potentially residents) in the City of Dublin. The City secures financing to
design and construct a conduit system, and completes the system with the fiber optic wire
and the electronics to "light" the system. The system includes the "backbone" of conduit
through the business district and connections to individual buildings. Two variations of
this alternative were considered:
Option 1: The City owns and operates the system directly or through a contracted third
party. No -other telecommunications service providers are allowed to build in ROW and
provide services, other than those presently in the ROW artd providing service.
Meets Objectives? This option would meet most of the City's six major ROW
management policy objectives. It would minimize disruption of
public property (part of Objective 1), encourage rapid deployment
of services, and enhance economic development. However, this
option does not promote reasonable accommodation of ROW uses,
and the risk of legal challenge is extremely high.
Legal Issues? Exercise of this option violates several provisions of TA 96. It
creates a barrier to entry for new service providers, and would
prohibit expansion of existing service providers when they reached
capacity; it discriminates between old and new carriers, and
heavily weighs the competitive advantage towards the City-owned
system. Legal challenges could hold up construction of the project
and final delivery of the product, which would not serve the
interests of business demands for telecommunications services.
Other. Considerations: Operating a public utility is the most expensive of all the
alternatives, involving intensive staff requirements to operate and
maintain the system. The City would have to plan for system
obsolescence and network growth, creating a .high degree of
financial risk due to the uncertainty of the timing and degree of
these future investments. However, the potential for revenue
generation is high.
Recommendation: No further consideration of this option due to legal risk.
Right-of-Way Management Policy Report Page 6
November 13, 1997
Option 2: City owns and operates the system directly or through a contracted third
party. Other service providers are allowed to build their own systems and compete with
City.
Meets Objectives? This option would not meet the City's primary objective of
minimizing disruption of the ROW. In addition to the City cutting
streets and trenching, every other service provider entering or
expanding in the community would also be using the ROW.
Legal Issues? If an ordinance were enacted to issue permits and charge for use of
the ROW, this would put the City in the position of regulating its
competitors but not subject to the same requirements. This would
be challenged as discriminatory under TA 96.
Other Considerations Same as first option.
Recommendation No further consideration. This option does not meet the primary
objective and has a high risk of legal challenge.
Alternative 3: Private/Public Partnership to Deliver Services
Under this alternative, the City cooperates with service providers to enable access to City
ROW, but limits its involvement financially and administratively. The City donates a
portion of its ROW for construction of a conduit bank - a compact series of pipes
installed underground used to house telecommunications lines. The conduit bank,
hereinafter identified as the "DubLink system", will be located in the City's main
business areas, or "DubLink Area" as shown on Figure 2. All new and expanding
telecommunications providers are required to use the DubLink system to provide their
services in the DubLink Area. The City sells or leases duct space to service providers,
who install their own fiber, electronics, and connections, and provide services to
businesses. Telecommunications providers have the option of installing lines (under City
permit) in areas requiring service that are outside the DubLink system.
Meet Objectives? This option meets all the ROW Management Policy objectives
outlined in Section 1.2. Fiber optics wire is presently installed in
only a portion of Dublin. City administrators can drastically reduce
the number of street cuts required for the operations of multiple
service providers by installing a conduit bank for their use
(Objective 1). This conduit bank will provide a readily available
pathway through Dublin's commercial areas, promote the
availability and ensure the rapid deployment of
telecommunications services (Objective 2), and enhance economic
development (Objective 3). Use of a conduit bank conserves
ROW space, and promotes the accommodations of all uses of this
space (Objective 5). Objective 4, ensuring compensation for use
of ROW; is not applicable. Since the City is donating the ROW
Right-of--Way Management Policy Report Page 7
November 13, 1997
space for the project, compensation will not be required from
DubLink users. (Compensation for ROW use will be required
outside of the DubLink system- see Section 4.1).
Legal Issues? TA 96 grants cities the right to manage access to the publicly
owned ROW. This control is necessary to protect the integrity of
the ROW by minimizing street cuts and maximizing the ROW
available for other uses. The City of Dublin proposes to manage
access by requiring telephone companies to install their fiber optics
cable and electronics in an adequately sized conduit bank system
(DubLink system) constructed in the business district (DubLink
Area). All telephone companies will be required to use it
whenever facilities expansion occurs in the DubLink Area,
including the incumbent Ameritech. Therefore, the requirement to
use the DubLink system does not discriminate between users or
create a barrier to entry (see Section 2).
Recommendation Construction of a conduit bank is recommended.
Alternative 4: Regulate Use ofROW Th-rough Ordinance
The regulatory approach establishes a permitting system that allows the City to set
conditions for use of the ROW and to receive fair compensation for such use. Within the
DubLink Area, permittees will be required by the City to use the DubLink system. If the
City decided against construction of the conduit bank, then permittees will be required to
coordinate construction of their conduit systems with other users, and overbuild to ensure
capacity for future use.
Meets Objectives? A properly crafted ordinance will address City objectives of
promoting cooperation among telecommunications services
providers and minimizing disruption to the ROW, ensuring
compensation for ROW use, and accommodating all uses.
Legal Issues? Federal regulations preserve a municipality's right to regulate and
charge fees for private use of the public right of way, provided that
local regulations do not constitute a barrier to entry, discriminate
between carriers, or provide a competitive advantage to any
company. State law also supports local regulation of ROW.
Recommendation ~A ROW management ordinance is recommended as the legal
foundation of the City's ROW management policy. The ordinance
presented to City Council includes requirements for use of ROW
located within the business district 1) with the DubLink conduit
bank system and 2) without this system. The ROW management
ordinance is discussed in Section 4.1.
^~.
Right-of--Way Management Policy Report Page 8
November 13, 1997
3.2 Recommendation of ROW Management Policy
In summary, the Telecommunication Study Team recommends:
^ Enactment of a ROW Ordinance to provide a legal means of managing access to the
publicly owned ROW, and
^ Construction of Dublink, a single-build multi-duct conduit bank system.
The combination of ordinance + Dublink system is considered the most effective means
,~ ~ of minimizing street cuts and controlling the consumption of ROW space. All other city
objectives (Section 1.2) and legal criteria (Section 2) are met by this strategy. If financial
or other considerations prevent construction of the Dublink system then the
recommended ordinance will require joint planning, joint construction, and over-building
by a service providers. The ordinance and the conduit bank are further described in
Section 4.0.
4.0 CITY OF DUBLIN RIGHT OF WAY MANAGEMENT POLICY
4.1 Comprehensive Right-Of-Way Ordinance
The primary legal tool used by the City to manage private use of the publicly owned
ROW is a permitting system which grants the Permit holder specific rights of use and
defines the responsibilities of the permit holder. A draft Comprehensive Right of Way
Ordinance is included with this report as Attachment 2. This draft ordinance outlines the
rights and responsibilities of all permit holders. The primary features of this ordinance
are outlined below.
Types of Permits
Persons desiring to use the ROW must apply for one of the following three types of
permits:3
^ General Permit: General uses, including telecommunications services and cable TV
^ Special Permit: Limited, specific use or residential use
^ Utility Permit: Granted to traditional monopoly providers of essential services
(i.e., gas, electric, water, and sewer).
The City will require certain types of ROW users (utilities and cable TV) to obtain an
operating agreement or franchise. Persons who have an operating agreement or franchise
will be granted General or Utility permits, whichever is appropriate for the type of use.
Use of Dublink Area
This ordinance defines a specific area called the Dublink Area, which includes the major
business districts in the City of Dublin (Figure 2). To legally occupy the Dublink Area, a
s A Person means any natural person or any association, firm, partnership, joint venture, corporation, or
other legally recognized entity, whether for-profit not-for-profit.
Right-of--Way Management Policy Report
November 13, 1997
Page 9
Person must be a valid General, Special, or Utility permit. In the event it is determined
that the DubLink system is not in the best interests of the City, occupants of DubLink
Area ROW will be required to conduct joint planning, joint construction, and over build
facilities for future users.
Compensation for Use of ROW
Fees will be charged to applicants and ROW users that represent a reasonable allocation
of the total costs to the City of planning, regulating, purchasing, maintaining, and
governing the ROW. These fees include aone-time flat rate application fee (waived for
holders of operating agreements or franchises who have already paid as least as much as
the .application fee to obtain the operating agreement or franchise), an annual permit fee
based upon the number of miles of infrastructure built, and fees currently paid for plan
review and inspection. Performance bonds and warrantees for street cuts/borings will
also be required.
Responsibilities of Permittees
Permittees will be required to:
^ Use the DubLink System, if DubLink is built;
^ Cooperate with other Permittees and participate in joint planning, construction and
advance notification of RDW work;
^ Provide maps and other information related to facilities;
^ Perform all work in accordance. with good engineering and construction practice;
^ Minimize inconvenience to public, city, other Permittees;
^ Register with underground reporting services;
^ Cooperate with City in an emergency;
o Designate a single point of contact; and
^ Comply with movement and burial requirements.
4.2 Conduit Bank Svstem
Physical Description
A conduit bank system will provide the housing for telecommunications services
delivered in the City of Dublin's DubLink Area.4 The system will be installed over the
30.5 mile route shown on Figure 2, and consist of:
^ A multi-duct conduit bank system plus room above these ducts for future capacity;
^ Manholes positioned every 800 feet for access or at building locations; and
^ Concrete encasement where required to protect the system from freeze/thaw
conditions or other stresses.
Other engineering considerations are outlined in Attachment 3
Use of DubLink Conduit Bank Svstem
Providers of telecommunications and cable services will be required to use the City's
DubLink system to provide their services in the City's DubLink Area. They will not be
a The conduit bank system will not be used to carry fluids, or provide gas or electric services.
.~
Right-of--Way Management Policy Report Page 10
November 13, 1997
allowed to install conduit outside of conduit bank unless they intend to service an area
outside of the DubLink route/area, such as in residential areas. Under these
circumstances, service providers will be permitted,. as described by ordinance, to build
outside of the City's system.
Benefits of Conduit Bank Svstem
Construction of the multi-conduit system, legally backed by ordinance, clearly benefits
the City, business community, and Dublin residents:
^ The City manages use of the ROW, receives compensation for its use, increases
corporate taxes stimulated by economic development, and minimizes ongoing
aesthetically unpleasing conditions.
o The Dublin business community gains access to a variety of competitively priced
cutting-edge telecommunications services, and a potential to improve their
competitive position because of access to these services.
^ Dublin residents are subject to fewer traffic disruptions from repeated street cuts, pay
for fewer roadway improvements, and may also reap the benefits of stimulated
economic development through employment opportunities.
Telecommunications service providers also have the potential to benefit from the system:
^ Facilities are pre-built. Once the system is installed, they will be able to deliver
services to business customers almost immediately ("rapid deployment").
^ The City doesn't prohibit expansion. Provider's can leave the DubLink loop and. get
access to residential areas, or other areas where the DubLink system doesn't go, and
build as demand requires.
^ The system is more secure than single-build systems. Parts will be concrete-encased,
and if all conduit is located in the same area, companies are going to be more
sensitive to digging around these lines.
^ The system is competitively neutral. Everybody has to use it, except for service
providers, such as Ameritech, who already have facilities with capacity in the ROW.
,..,, To expand their system in the DubLink Area, companies like Ameritech will have to
use the DubLink system like all other providers.
~„„ ~ ^ The cost to buy into the conduit system should be competitive with or cheaper than
separate builds. Companies share cost of construction and other costs associated with
ROW access.
Potential Disadvantages of Conduit Bank Svstem
There are a number of potential disadvantages of using the DubLink system to manage
access to the DubLink Area. Any one or a combination of these factors could ultimately
prevent construction of the system if not resolved.
There may not be enough service_providers interested in nurchasin~ capacity to make
Dublink economically feasible. Revenues obtained from selling or leasing conduits to
service providers will be used to pay finance costs. If finance costs are split between
too few service provides, the cost of participation could be greater than that of
separately-built facilities.
Right-of--Way Management Policy Report page 11
November 13, 1997
2. The requirement to use a conduit bank sets a precedent. This creates uncertainties for
potential users assessing the impact of this system on present and future operations.
They have no examples of use in other communities to review because it hasn't been
done before. Uncertainties may cause potential users to delay decisions to buy or
lease space in the conduit bank system. The City must have the commitment of
buyers in order to secure financing for the system.
Ameritech is required by the PUCO to lease excess capacity to its competitors at a
rate that is considerably cheaper $0.65 ftl than the estimated lease rate for the
conduit bank system. No other carrier is subject to this requirement. Ameritech must
be able to obtain relief from this provision in order for the project to go forward.
There is no incentive for Ameritech's competitors to buy or lease space in the duct
system as long as there is cheap capacity to lease from Ameritech. There is no
incentive for Ameritech to buy or lease space in the system if this extends a
competitive advantage to other service providers.
4. Extended delays in construction of the system caused by deliberations on this s s
may constitute a barrier to entry. At present, telecommunications companies are not
being allowed to build their systems or provide services in Dublin. Delays favor the
incumbent service provider.
Service providers may not want to purchase an entire length of 30-mile conduit.
Service providers may wish to target only certain businesses, or particular geographic
sections of the business community. The system may have to be built in stages. This
will require further coordination between service providers and the City to design the
system.
6. The conduit system must be cheaper to purchase or lease than single build-facilities.
The conduit system must present a clear economic advantage to potential users in
order to obtain the commitment for occupancy that is needed to obtain financing.
5.0 PRESENT STATUS OF RIGHT OF WAY POLICY DEVELOPMENT
(November 1997)
5.1 Right of Way Ordinance
A Comprehensive Right-of--Way Management Ordinance has been drafted and is attached
(Attachment 2).
5.2 DubLink Conduit Bank System
A Request for Information/Request for Quotation (RFURFQ) for construction and
financing of a 9-duct, 30.5-mile conduit system was prepared by the Telecommunications
Project Team and published on July 22, 1997. Of the two bid responses received by the
~~
Right-of--Way Management Policy Report Page 12
November 13, 1997
City, the Fishel Company (Fishel) of Columbus, Ohio presented the lowest estimated
costs and complied with the letter and intent of the RFURFQ. The Director of Service
has since entered into negotiations with Fishel to further develop details concerning
ownership, maintenance, costs, and financing. Potential users of the conduit system are
also involved in discussions with the City to delineate their concerns and requirements.
~.-~ 5.3 Completion of Proiect
~, Final definition the physical, administrative, and financial components of the DubLink
conduit bank system depends upon timely input from the intended users on their location
preferences and willingness to commit to the project. Location preferences will
determine the feasibility of building the entire 30..5-mile system during one construction
period or building the system in phases. Costs for a phased approached would then have
to be developed, and financial agreements obtained.
r~
rl
~+
a~
8
v
h'
d
r
V
i.
.C
..,
a
O
CC
~r
0
O
.~
C
a
c
0
U
..r
C
V
a~
H
o c
~ ~
~ a ~
~ a, .~; ~ ~
•
•
..~
~ ~i
>, . ~ ~; ~
~ N
j, ~
O v
~'-
~ ~.~~.
• ~ N .~0
O ~ ~ ~
~ ~ w ~
~
~
p ,== O
~ U ~ b~A ,
~
~ Q
~ bq
'~
3 •
U
o ~° ~ •~..
w ~ C L1.
s ~
' ~
~ V
`~
~
i
_ _
U~ p t
>
V ~
O ,
_ p y 'O
~ ~ _N ~ U N ~ ~ ~
• N
V~ v~'i ..O
~ U O ~
•~ N~ O
•~ ~ N
y ~ O
O
~ ~~ ~ ~ ~
~ ~
~ t'"
O
~ ~ O
v
C
~
~, ~'
~n tti
~
Q»
~ ~
U ~ ~ c
~
~ .~ ~..
Ov
~ t.
~
~
•
O .U bOA y ~ ~O ~ b~A ~ c0 •~ ~ O
~ • ~ O ~ ~ C~ • ~ '~ ~ ~ ..d rn
>,0 3~ ~~~ 3 ~~ ~ ~ ~
v~~ de w°~ d tn~ w rr~ a
3 w ~ d ~,
~ _~
O ~~~ ~
U '°
~ d ~ ~
C. G ~ U
L ~ ~ ~
a ~ v ~
w N
~
,
L o ~ ~ a>
~~~~~ ~~~ ~03~~
ox a~ ~ w
~ ~
.
~
~ ~ v
~
~
$ r% ~ ~ a~
i a
i
V] H
~ ~+ ... ~
~ N ~
~ N y
N
~ N
aV
~`' O s. ~
t~ ~ ~
`° x
a. a
xw
~. -
•-
7 ~ ? 7 ?
v ~
w
° ~ ~ ~ O op ~ ~ 0 3
U ~ ~
~~ ~
~•~~ ~ ~ 3 ~
'"fi x °on
~ o •-- ~ a~ ~;
~ ~ .
o o ~ ~ y+
30 ~v~ v~c~v~ c.~ caw ~~ r~C7 ~,
w~ C7x
1~
~.. _ .. ~ ~w .: ~. ~.
a~
U
~.
S
Q
...
C
0
~.
o a,
U O
ti
w
C bA
•~
~~ a
Q ~
0
~s
U
..~
~,'
O
U
_~
U
~ ~
U ~
U
~
N
~--~ •
•
-v
~ a. ~
3 •*-
Q- ; ~
a
~
S :~
' '~ ~
~ v
+~
. ~ o~io
~ .
~ v ~
~ ~ ..
~
C ~ ~ . o as a~ ¢,
• ~ ~
.O .
w ~ ~ b N Q,
d in
~ ~ U
N~ ~ ~
~ N p
V N
~ ~
c
~
• ~ s..
•
V X U ~ U ~ ~ ~ ~ U ~ ~ ~
"t7 .... ~ p p cn
s~.
O p U .~ y~ "~ p p U ~ c~ ,.O O
~ p ~ p bA p . C
• c~ U ~ U O, • ~n
U
~ ~n vii
~ ~ ~ ~ ~
~ ~
° ~ c~ U
o ~
~ -.
'~ s
.. ~ U
a., a ~ ~, °'
x ~ ° ~ . U ° a ~
i ~
O y w
'~°a
~o
~~+~ ~ ~
a ~ ~ ~ ~
~ U
L
~ W O
j„ Z7 ~
4.
N
"
~
L.
U
~'
L.
N
~ N U1
cC ~ }'
4.
~
O
'~
~
x ~
U
C ~ ~ ~ -~ ~
' .~, " ~ C ~ ~ ~ ti N ~ ti ~ .~ O ~
~ '~
v 'm ~ ~ C cG ~ ~ O N ' ~ ~ rn ~ c~ "
~
v ~ O t7
ca
~_ £
.
~
>
~
~
~
~
~
~
$ v~
' a
i a
i a
i a
i a
i
.'".
G ~ .
`~ ~ ~' y r' ~ ~' vi ~ ti ~ ai
v
~
~
~
~
~
p 0~
V
~ -r
~
F++ rr
.
x ~
+
x ~
r+
x
>~i ~
h
w
.~
~ ~
r r/~
fs.
bQ 1
~ w..
~
w
~
~ ~--~
~
~
w
.
U ,
~ Rs" ~ .
.~ ~ ~ ~
j, ~ U ~ ~ ~ ~ cC ~ _ ~ CJ
,..,.a > O W U Q U CA CA ~ U ~-,
f
Attachment 3
ENGINEERING CONSIDERATIONS
The following engineering considerations were submitted in the RFURFQ to develop
project costs:
1. Basic Design and Construction Information
^ The route is approximately 30.5 miles in distance.
^ Manhole spacing will be 800 feet.
o All road crossings will be cut and repair.
^ The route will be concrete encased:
^ Where minimum conduit depth cannot be maintained
^ Where conduits pass under roads, driveways, or railroads
^ Where bend points may be subject to stress
^ The average. conduit depth will be 5 feet.
^ The average manhole depth will be 10 feet, bottom of manhole.
^ All surfaces are to be restored, including roadways, sidewalks, sodded areas, etc.
All Right-of--Way's will be provided by the City of Dublin.
All engineering drawings will be the responsibility of the successful contractor. As built
drawings will be required.
2. Manholes- Detailed Design and Construction Information
^ All manholes will be priced as Type "A":
Length: 12 feet
Width: 6 feet
Head Room: 7 feet
Cubic Feet: 504
^ All manholes will have 1 - 18 inch Collar.
^ All manholes will have a Type "B" Frame and Cover.
^ All manholes will be pre-cast wherever possible.
^ Concrete strength shall be 3,500 psi or greater.
^ All manholes will be equipped with galvanized interior hardware. This hardware
shall consist of
Bonding inserts and struts for racking (Racking for each duct will be provided.)
Pulling eyes at least 7/8 inch in diameter
Sump at least 8 inches in diameter
Entry ladder.
Right-of--Way Management Policy Report Attachment 3, page 2
November 13, 1997
3. Conduits: Detailed Design and Construction Information
Standards for conduit design shall follow ~1TT systems practice 919-240-400 All conduit
shall be type "B" plastic (PVC), 4 inch in diameter.
• Duct bank shall be sized at 9 - 4 inch standard
• Optional costs will be provided for 6 and 12 duct sizes, respectively.
• Each manhole shall have 2, 4-inch ducts stubbed out 10 feet and capped for future
use.
• All conduits shall be installed with pull rope.
• All conduit is intended for use as "Communications Networks". There will be no
high voltage present in the system.
All construction activity will be coordinated with the City of Dublin. Specific
departments will be identified prior to construction.
- ,
.~