STATE OF MICHIGAN

COUNTY OF OAKLAND

CHARTER TOWNSHIP OF INDEPENDENCE

ORDINANCE NO. 2019-42-TBD

     AN ORDINANCE TO AMEND THE RIGHT-OF-WAY REGULATIONS IN ARTICLE III OF CHAPTER 42 OF THE INDEPENDENCE CHARTER TOWNSHIP CODE OF ORDINANCES TO ADD A DEFINITION, SPECIFY PENALTIES AND THE RELATIONSHIP OF THE REGULATIONS TO TELECOMMUNICATION AND WIRELESS FACILITIES UNDER CHAPTER 44, AND AMEND PROVISIONS REGARDING REQUIREMENTS, REVIEW, DECISIONS, TERMS, CONDITIONS, AND ENFORCEMENT OF OR FOR DISRUPTION AND USE PERMITS.

THE CHARTER TOWNSHIP OF INDEPENDENCE ORDAINS:

Section 1. ORDINANCE AMENDMENT.

Section 42-52(d) in Division 1 of Article III in Chapter 42 of the Independence Charter Township Code is hereby amended to read as follows:

Sec. 42-52. – Purpose/legislative findings.

(a) – (c) [Unchanged.]

(d)  It is not the intent or purpose of this article to regulate, and the provisions of this article shall not apply to, telecommunication facilities of telecommunication providers, except as may be permitted under Public Act No. 48 of 2002 (MCL 484.3101 et seq.) and in Section 44-430 of this Code.

Section 2. ORDINANCE AMENDMENT.

Section 42-53 in Division 1 of Article III in Chapter 42 of the Independence Charter Township Code is hereby amended by adding the following definition to read as follows:

Sec. 42-53. – Definitions.

Township means the Charter Township of Independence, and unless this Article or resolution of the township board indicates otherwise, means the township supervisor or supervisor’s designee for purposes of reviews, decisions, and administrative or enforcement actions on all permit and ordinance issues.

Section 3. ORDINANCE AMENDMENT.

Division 1 of Article III in Chapter 42 of the Independence Charter Township Code is hereby amended to add Sections 42-54 and 42-55 to read as follows:

Sec. 42-54. Telecommunication and Wireless Facilities.

The regulations in this Article are supplemented by the regulations in Chapter 44 of this Code for Telecommunication and Wireless Facilities in Public Right-of-Way, which shall control to the extent of any conflict with this Article. Except for such a conflict, the regulations in this Article, including the disruption permit and use permit provisions shall apply to applications for and reviews, decisions, terms, conditions, notices, and revocations of permits for telecommunication and wireless facilities under Chapter 44 of this Code.

Sec. 42-55. Violations.

A violation of any Section in this Article or a permit condition shall be a municipal civil infraction. Nothing in this Section shall be construed to limit the remedies available to the Township under a permit or by law for such violations.

Section 4. ORDINANCE AMENDMENT.

Sections 42-80(b), 42-81(e) and (f), 42-83, and 42-88 in Division 2 of Article III in Chapter 42 of the Independence Charter Township Code are hereby amended to read as follows:

Sec. 42-80. – Disruption permit required.

(a) and (c) [Unchanged.]

(b)  Exceptions. This section shall not prohibit those temporary obstructions which are incidental to the expeditious movement of articles and things to and from abutting premises, the lawful operation and parking of vehicles within the part of the township’s right-of-way, nor the lawful and customary use of property by adjoining homeowners for such things as landscaping. In the event of a disruption emergency, including, but not limited to, a natural disaster, war and/or severe weather condition, a person and/or a permittee may disrupt the township’s right-of-way without first receiving a disruption permit from the township; provided, that the township supervisor/superintendent and/or his designee has approved the emergency disruption before the emergency disruption takes place. This section shall not apply to disruptions that comply with the terms and conditions of this Article and any applicable Telecommunications Permit issued under Article III in Chapter 44 of this Code or Wireless Facilities Use Permit issued under Division 3 of this Article and Article II in Chapter 44 of this Code, for which the Road Commission of Oakland County (RCOC) or Michigan Department of Transportation (MDOT) has issued a construction permit, copies of which have been filed with the Township. Such a construction permit issued by RCOC or MDOT shall satisfy the disruption permit requirement under Section 44-430 of this Code for telecommunication facilities.

Sec. 42-81. – Permit application procedures.

(a)  –    (d)  [Unchanged.]

(e)  Except as otherwise provided in this article, Chapter 44 of this Code, or by law, the township shall approve or deny a disruption permit within 90 days from the date the applicant files a completed application for disruption permit with the township clerk’s office. The township shall not unreasonably deny a permit. The 90-day time requirement for the township to make a decision from the date that the applicant files a completed application may be waived and/or extended by both parties if they agree to waive said time period in writing.

(f)  The township may impose conditions on any disruption permit , which conditions shall be limited to the applicant’s disruption activities and shall be necessary to ensure and protect the public health, safety and welfare. The township may require as a condition of the permit that a bond be posted by the applicant, which bond shall not exceed the reasonable costs to ensure that the township’s rights-of-way that are to be disrupted by the applicant are returned and restored to their original condition after the applicant’s disruption of the right-of-way.

Sec. 42-83. – Disruption permit term and extension.

(a)  The disruption permit granted to the permittee by the township shall be for a specified time period established by the township after taking into consideration the information in the permittee’s disruption permit application.

(b)  Prior to the expiration of the term of the disruption permit, a permittee may apply to the township for an extension of the permit, which shall be granted by the township if the permittee demonstrates a substantial hardship for why the disruption activities could not be completed during the term initially established for the disruption permit by the township. For purposes of seeking an extension of its disruption permit, the applicant shall pay an extension application fee in an amount established by resolution of the township board. The township shall have the right to require any additional information necessary for making a determination as to whether an extension should be granted and may impose reasonable conditions on a disruption permit extension.

Sec. 42-88. – Revocation of permit.

In addition to any other rights and/or remedies that the township may have pursuant to this article and any other applicable law, which rights and/or remedies the township may pursue in its sole discretion, the township , if it finds the existence of an imminent threat to the public health, safety or welfare, may order a stoppage of work pending a hearing before the township board, or, the township board may also revoke a permittee’s disruption permit for any of the following reasons, subject to undertaking the revocation procedure in section 42-89:

(1) –     (10)           [Unchanged.]

Section 5. ORDINANCE AMENDMENT.

Sections 42-111(d) and (e), 42-112, 42-113, 42-115(b), and 42-118 in Division 3 of Article III in Chapter 42 of the Independence Charter Township Code are hereby amended to read as follows:

Sec. 42-111. – Use permit—Application procedures.

(a) – (c) [Unchanged.]

(d)  Except as otherwise provided in this article, Chapter 44 of this Code, or by law, the township  shall approve, approve with conditions, or deny a use permit within 90 days from the date the applicant files a completed application for a use permit with the township clerk’s office. Applications to use and/or occupy a township right-of-way that does not abut real property owned by the applicant shall be acted on by the township board. All other use permit applications shall be acted on by the township supervisor.

(e)  The township may impose conditions on any use permit necessary to ensure and protect the public health, safety and welfare limited to the applicant’s use and occupancy of the township’s right-of-way. The township may require as a condition of the use permit that a bond be posted by the applicant, which bond shall not exceed the reasonable costs to ensure that the township’s right-of-way that are used and/or occupied by the applicant are retained and restored to their original condition during and after the applicant’s use and occupancy of the right-of-way.

Sec. 42-112. – Same-Fee.

In addition to the nonrefundable application fee set forth in this division, and any other applicable fees for permits or approvals required by township ordinances and/or other applicable laws, the permittee shall pay for each year that the use permit is in effect on or before the last business day prior to January 1 of each year an annual use permit fee to the township in an amount established from time to time by resolution of the township board. The amount of the use permit fee shall be fair and reasonable, competitively neutral and nondiscriminatory and shall not exceed the fixed and variable cost to the township in maintaining the township’s rights-of-way used and occupied by the permittee. The amount of the annual fee shall be presumed to be in the amount as currently established or as hereafter adopted by resolution of the township board from time to time. If a written challenge or objection to the annual use permit fee is filed by a permittee with the township clerk on or before the date the fee is due and the fee is timely paid, the challenge or objection shall be reviewed for the purpose of determining whether the improvements of a permittee create any more or less impact upon the fixed and variable costs to the township. In making such determination, the township board may take into consideration the following factors:

(1)  The annual fixed and variable cost to the township in maintaining the right-of-way in or under or over which the permittee’s use occurs;

(2)  The total amount of area that the permittee will be using and occupying in the township right-of-way, including, but not limited to, the length in lineal feet of the right-of-way being occupied by the permittee, and the size of improvements authorized to be constructed;

(3)  The frequency and unit cost of monitoring the rights-of-way in or under or over on a regular basis to ensure that the use by permittee conforms with applicable law, ordinance and permit conditions, and that such use has not created the need for public attention;

(4)  The proportionate cost of maintaining and administering records of right-of-way use, including administration to assist in the avoidance of conflicts in the use of the rights-of-way by other users, and auditing of the extent of the permittee’s use;

(5)  Any unique aspects of the permittee’s use or improvements that are likely to increase the cost to the township of the permittee’s use of the rights-of-way; and

(6) Any applicable laws related to the amount of the fee.

Sec. 42-113. – Same—Term and renewal.

(a)  Except as otherwise provided in Chapter 44 of this Code or by law, the first use permit granted to the permittee shall be valid from the date it is issued through December 31 of the tenth year following that date. Thereafter, the permittee may apply to the township for ten-year renewals of its use permit, which renewal periods would run from January 1 to December 31 of each ten-year term. Unless earlier terminated by the permittee and/or the township, a permittee must file an application for renewal of its use permit with the township clerk not less than 120 days before the expiration of the current valid permit and pay a renewal application fee to the township clerk in an amount established by resolution of the township board. The township shall have the right to impose additional reasonable conditions on those use permit renewals it grants, with renewals to be acted on by the same township entity (township board or supervisor) that acted on the original permit.

Sec. 42-115. – Permittee’s use and occupancy of township right-of-way.

(a) and (c) – (i)            [Unchanged.]

(b)  Construction, installation, use and occupancy costs. The construction, installation and location by the permittee of its improvements in the township’s right-of-way, and the permittee’s use and/or occupancy of the township’s rights-of-way, shall conform to and be in compliance in all respects with the construction/building plans, and the operation and use plans submitted to and approved by the township, and all permits issued to the permittee by the township. All costs of the permittee’s construction, installation, maintenance, use and/or operation of its improvements in the township’s rights-of-way, and all of the costs of the permittee’s use and occupancy of the right-of-way shall be the sole responsibility of the permittee and shall be borne entirely by the permittee. All construction and installation of the improvements in the township’s rights-of-way, as well as the permittee’s use and/or occupancy of the rights-of-way, shall be performed by the permittee in compliance with the schedule submitted to and approved by the township and shall be done in a good and workmanlike fashion in accordance with recognized construction industry standards and other applicable industry standards and subject to the required inspection of the township and also subject to the final approval of the township. The construction and installation of the permittee’s improvements in the township’s right-of-way, and its use and occupancy thereof, shall not commence until such time as permittee has obtained all required building permits and other permits and approvals, has paid all applicable fees and has received all required approval of its plans and specifications.

Sec. 42-118. – Revocation of permit.

 In addition to any other rights and/or remedies that the township may have pursuant to this division and any other applicable law, which rights and/or remedies the township may pursue in its sole discretion, the township, if it finds the existence of an imminent threat to the public health, safety or welfare, may order a stoppage of work pending a hearing before the township board, or, the township board may also revoke a permittee’s use permit for any of the following reasons, subject to undertaking the revocation procedure in the next section:

(1) – (10)               [Unchanged.]

Section 6. REPEALER.

All ordinances, parts of ordinances, or sections of the Charter Township of Independence Code of Ordinances in conflict with this Ordinance are repealed only to the extent necessary to give this Ordinance full force and effect.

Section 7. SEVERABILITY.

Should any section, subdivision, clause, or phrase of this Ordinance be declared by the courts to be invalid, the validity of the Ordinance as a whole, or in part, shall not be affected other than the part invalidated.

Section 8. SAVINGS.

All proceedings pending and all rights and liabilities existing, acquired or incurred at the time this Ordinance takes effect, are saved and may be consummated according to the law in force when they were commenced.

Section 9. EFFECTIVE DATE.

This ordinance shall be effective upon publication in the manner prescribed by law.

Section 10. ENACTMENT.

This Ordinance is declared to have been enacted by the Township Board of Trustees of the Charter Township of Independence at a meeting called and held on the _____ day of ________, 2019, and ordered to be given publication in the manner prescribed by law.

Ayes:

Nays:

Abstentions:

Absent:

STATE OF MICHIGAN           )

)               ss.

COUNTY OF OAKLAND         )                               I, the undersigned, the qualified and acting Township Clerk of the Charter Township of Independence, Oakland County, Michigan, do certify that the foregoing is a true and complete copy of the Ordinance adopted by the Board of Trustees of the Charter Township of Independence at a meeting held on the ____ day of _____________, 2019, the original of which is on file in my office.

CHARTER TOWNSHIP OF INDEPENDENCE

By: Barbara A. Pallotta, Clerk

Introduced:              April 9, 2019

Published: April 17, 2019 – Clarkston News

Adopted:

Effective: