Dover City Zoning Code

TITLE NINE

Use District Provisions

1141.01 INTERPRETATION OF REGULATIONS; UNLISTED USES.

The permitted and conditional uses for each district are shown on the tables contained in Sections 1141.02 and 1141.03. The interpretation of uses given in categorical terms shall be as defined in Chapter 1121 of this Code.

(Ord. 13-05. Passed 3-21-05.)

1141.02 SPECIAL AND RESIDENCE DISTRICT PERMITTED AND CONDITIONAL USES

PERMITTED USES

“S-1" Special	“R-1" Suburban Residence	“R-2" Low Density Residence	“R-3" Medium Density Residence	“R-4" High Density Residences and Offices	“R-5" Manufactured Home Residence
Parks	Single-family dwelling	Single-family dwelling	Single-family dwelling	Single-family dwelling	Single-family dwelling
Public uses	Public uses	Public uses	Duplex	Duplex
Semipublic uses	Semipublic uses	Semipublic uses	Multiple-family dwelling	Multiple-family dwelling
Essential services	Public service facility	Plant cultivation	Public uses	Public uses
Accessory uses	Essential services	Essential services	Semipublic uses	Semipublic uses
Conservation & highway interchange areas	Accessory uses	Accessory uses	Essential service	Essential service
Noncommercial recreational facility	Noncommercial recreational facilities		Accessory uses	Accessory uses
Agriculture & forestry	Agriculture & forestry
Plant cultivation	Plant cultivation			Rooming & boarding houses
				Institutions & banks
				Regional offices
				Insurance & real estate offices
				Personal services
				Professional activities

CONDITIONAL USES REQUIRING BOARD APPROVAL

“S-1" Special	“R-1" Suburban Residence	“R-2" Low Density Residence	“R-3" Medium Density Residence	“R-4" High Density Residences and Offices	“R-5" Manufactured Home Residence
Public service facility	Cemetery	Duplex	Public service facility	Noncommercial recreational facilities	Agriculture
Restricted commercial recreation facility	Specialized animal raising & care	Public service facility	Home occupations	Nursery schools	Duplex multi-family
Cemetery	Oil & gas wells	Noncommercial recreational facility	Rooming & boarding houses	Nursing homes
Airports	Sand & gravel extraction	Home occupations	Conversion of dwellings	Home occupations
Specialized animal raising & care	Home occupations	Green spaces	Nursing homes	Conversion of dwellings
Sand & gravel extraction			Noncommercial recreation facility	Mortuaries
			Insurance and real estate activities	Business services
			Mobile home parks	Public service facility
			Personal services	Plant cultivation
			Professional services	Restaurants and taverns
			Plant cultivation Uses authorized by Section 1121.561	Uses authorized by Section 1121.561

(Ord. 24-19. Passed 5-6-19.)

1141.03 BUSINESS AND INDUSTRIAL DISTRICT PERMITTED AND CONDITIONAL USES.

PERMITTED USES

“B-1" Local or Community Shopping Center	“B-2" Highway or General Business	“B-3" Central Business	“M-1" Restricted Industrial	“M-2" General Industrial
Retail goods:	Retail business	Retail business	Restricted manufacturing	General manufacturing
Food	Personal services	Personal services	Printing & publishing	Manufacturing, sale & storage of building materials
Apparel	Business services	Business services	Research & testing facilities	Transport & trucking terminals
Hardware	Professional activities	Professional activities	Public service facilities	Wholesale business
Home furnishings	Offices & banks	Commercial schools	Essential services	Warehousing
Eating & drinking	Restaurants & taverns	Offices & banks	Accessory uses	Sand & gravel extraction
Services:	Motel & hotels	Restaurants & taverns	Agriculture	Agriculture
Professional	Entertainment facilities	Automotive sales & repair	Automotive sales and repair	Food processing
Personal	Essential services	Hotels & motels	Construction related businesses	Grain elevators
Business	Accessory uses	Entertainment facilities	Self-service storage facilities	Offices
Financial	Automotive sales & repairs	Mortuaries	Indoor shooting ranges	Restricted manufacturing
Entertainment	Mortuaries	Public uses		Automotive sales and repair
Essential services	Shopping centers	Semipublic uses		Accessory uses
Accessory uses	Convenience shopping centers	Social activities		Construction related businesses
Shopping centers	Gasoline and service stations	Essential services		Self-service storage facilities
Convenience shopping centers	Printing and publishing	Convenience shopping centers		Indoor shooting ranges
	Bakeries and dairies	Accessory uses
		Printing and publishing
		Bakeries and dairies
	Uses authorized by Section 1121.561	Social activities and uses authorized by Section 1121.561	Uses authorized by Section 1121.561	Uses authorized by Section 1121.561

CONDITIONAL USES REQUIRING BOARD APPROVAL

“B-1" Local or Community Shopping Center	“B-2" Highway or General Business	“B-3" Central Business	“M-1" Restricted Industrial	“M-2" General Industrial
Gasoline stations	Semipublic uses	Gasoline stations	Food processing	Restaurants
Drive-in banks
Drive-in banks	Wholesale business	Wholesale business	Furniture manufacturing	Mineral extraction, storage & processing
Public uses	Sale or storage of building material	Drive-in commercial uses	Wholesale business	Auto & metal salvage operations
Semipublic uses	Food processing	Animal hospitals or clinics	Bakeries & dairies	Stockyards
Multiple dwellings	Animal hospitals & clinics	Recreational facilities	Retail services	Slaughterhouses
Noncommercial recreational facility	Noncommercial recreational facility	Tourist homes	Personal services	Petroleum refining & storage
Nursery schools	Nursery schools	Sale or storage of building material	Business service	Oil & gas wells
Nursing home	Public uses	Upper story residences	Professional activities	Printing and publishing
Automotive sales and repair	Construction related businesses	Multiple dwellings	Commercial schools
Mortuaries	Social activities	Noncommercial recreational facility	Offices and banks	Specialized animal raising and care
Construction related businesses	Multiple dwellings	Nursery schools	Restaurants and taverns	Research and testing facilities
Social activities	Nursing home	Nursing home	Entertainment facilities	Offices and banks
Self-service storage facilities	Transportation truck terminals	Shopping centers	Noncommercial recreational facility	Personal services
Indoor shooting ranges	Skill games businesses, adult oriented arcades, internet gaming cafes, sweepstakes businesses	Warehousing facilities	Public and semipublic uses	Business service
	Self-service storage facilities	Skill games businesses, adult oriented arcades, internet gaming cafes, sweepstakes businesses	Social activities	Professional activities
	Indoor shooting ranges	Self-service storage facilities	Restaurants and taverns	Commercial schools
		Indoor shooting ranges	Entertainment facilities	Noncommercial recreational facility
		Research and testing laboratories		Public and semipublic uses
				Social activities
				Retail services

PERMITTED USES

“H-1"

Health Services District

Public Use

Semi-Public Use

Essential Services

Accessory Uses

Hospitals

Clinics

Medical Offices

Dental Offices

CONDITIONAL USES REQUIRING BOARD APPROVAL

“H-1" Health Services District

Nursing Homes

Professional Health Care-related offices

(Ord. 25-82. Passed 5-3-82; Ord. 13-05. Passed 3-21-05; Ord. 35-09. Passed 7-6-09; Ord. 52-10. Passed 11-15-10; Ord. 59-10. Passed 12-6-10; Ord. 59-10. Passed 12-6-10; Ord. 8-17. Passed 5-17-17; Ord. 24-19. Passed 5-6-19; Ord. 31-19. Passed 6-17-19; Ord. 26-20. Passed 9-8-20.)

1141.04 NONCONFORMING USES.

(a) Any lawful use of any dwelling, building, structure or land existing at the effective date of this Zoning Ordinance may be continued, even though such use does not conform to the provisions thereof.

(b) Subject to the provisions of subsection (c), below, whenever the use of a building or land shall become nonconforming through a change in this Zoning Ordinance or a change in the district boundaries, such use may be continued, and may be changed to another nonconforming use of the same or of a more restricted classification.

(c) A nonconforming use of a building or land, or portions thereof, which are hereafter voluntarily discontinued for a continuous period of two years or more, shall not again be used except as in conformity with the regulations of the district in which such building or land is located.

(d) Any building arranged, intended or designed for a nonconforming use, the construction of which has been started at the time of the passage of this Zoning Ordinance, but not completed as of the date of passage hereof, may be completed and put into such nonconforming use, provided it is done within one year after the effective date of the within Zoning Ordinance.

(e) Except as otherwise provided in this section, no nonconforming building or structure shall be moved, extended, enlarged or altered, and no nonconforming use of land shall be expanded, except when authorized by the Board of Zoning Appeals in accordance with the provisions of this chapter.

(1) The Board may permit the extension of a use or building into a more restricted district immediately adjacent thereto, but not more than twenty-five feet beyond the dividing line of the two districts, under such conditions as will safeguard development in the more restricted district.

(2) In any event the Board shall permit the movement, extension or expansion of a nonconforming use to any applicant who demonstrates that a failure to obtain permission to use the property in the nonconforming manner will remove all economic viability from the property at issue

(3) In any event the Board shall permit the movement, extension or expansion of a nonconforming structure to any applicant who demonstrates that failure to obtain permission to move, extend or expand the structure will result in practical difficulties for the landowner.

(f) If no structural alterations are made, a nonconforming use of a building may be changed to another nonconforming use of the same or a more restricted classification without prior authorization by the Board. Whenever a nonconforming use has been changed to a more restricted use or to a conforming use, such use shall not thereafter be changed to a less restricted use. The nonconforming use of a building may be extended throughout those parts thereof which were manifestly arranged or designed for such use at the time of the adoption of this Zoning Ordinance.
(Ord. 13-05. Passed 3-21-05.)

(g) Structural alterations to existing, nonconforming single family or duplex residence dwellings may be made without the prior approval of the Board in any of the following circumstances:

(1) If the improvement is being made to more nearly conform with other dwellings in the district; or

(2) If structural alterations are being made in order to comply with or improve sanitary, health and safety conditions or requirements on any such dwelling. In such case, said alteration or additions may not project beyond the sideline or wall of the existing dwelling, and in no instance come closer than three feet to any side lot line or ten feet from any rear lot line. The addition or structural alteration shall not increase the total floor area of said single family dwelling by more than fifty square feet.

(h) The Board may permit the temporary use of a structure or premises in any district for a purpose or use that does not conform to the regulations prescribed elsewhere in this Zoning Ordinance for the district in which it is located, provided that such use is of a temporary nature and does not involve the erection of a substantial structure. A Zoning Certificate for such use shall be granted in the form of a temporary and revocable permit, pursuant to the terms of Chapter 1125, for not more than a twelve month period, subject to such conditions as will safeguard the public health, safety, convenience and general welfare.

(i) A nonconforming building which has been damaged by fire, explosion, act of God or the public enemy, may be repaired or reconstructed and used as before the time of the damage, provided such repairs or reconstruction are commenced within one year of the date of such damage.

(j) Nonconforming trailers or mobile homes located on a lot in any district other than an “R-3" district, once removed, shall not be relocated on such lot.

(Ord. 13-05. Passed 3-21-05; Ord. 60-08. Passed 1-5-09.)

1141.05 CONDITIONAL USES.

(a) The Board of Zoning Appeals shall have the power to hear and decide in accordance with the provisions of this Zoning Ordinance, applications, filed as provided in Chapter 1125, for Conditional Uses. In considering an application for conditional use, the Board shall give due regard to the nature and condition of all adjacent uses and structures. In authorizing a conditional use, the Board may impose such requirements and conditions with respect to location, construction, maintenance and operation, in addition to those considerations expressly stipulated in the Dover City Zoning Ordinance for the particular conditional use or special exception as the Board may deem necessary for the protection of adjacent properties and the public interest.

(b) In determining whether to grant a request for a conditional use for property within any Residential or Special district as provided for in Section 1141.02, the Board shall consider effect that the proposed use would have on the health, safety and welfare of the City of Dover and its residents, including, but not limited to the following factors:

(1) The effect that the location and size of the proposed use, and the nature and intensity of the operations involved or conducted in connection with the proposed use, will have on the general character of the existing neighborhood;

(2) The effect that the location, size, nature and intensity of the operations contemplated by the proposed use will have upon pedestrian and vehicular traffic in the immediate and surrounding neighborhood;

(3) Whether the location, physical properties, and nature of the proposed use are such so as to interfere with the use and development of adjacent land or buildings, or impair the value thereof.

(c) In determining whether to grant a request for conditional use for property within any Business or Industrial district as provided for in Section 1141.02, the Board shall consider effect that the proposed use would have on the health, safety and welfare of the City of Dover, including, but not limited to the following factors:

(1) The effect that the location, size, nature and intensity of the operations contemplated by the proposed use will have upon pedestrian and vehicular traffic in the immediate and surrounding neighborhood;

(2) Whether the nature, location, size and site layout of the proposed use directly conflicts with the general character of the commercial or industrial district in which it is situated;

(3) Whether the location, physical properties and nature of the proposed use are such so as to interfere with the use and development of adjacent land or buildings or impair the value thereof; and

(4) Whether the location, physical properties, and nature of the proposed use are such so as to subject nearby residential dwellings to hazardous or dangerous materials, fumes, or other byproducts of the proposed use.

(d) The Board shall award a conditional use permit to any applicant who demonstrates that failure to obtain permission to use the property in the conditional manner proposed will result in the removal of all economic viability of the property.

(e) When an application is filed with the Board of Zoning Appeals for a conditional use permitting a mobile home park in an area zoned “R-3", the Board will recommend whether to grant said application to the Dover City Council. Said recommendation shall be considered by City Council in determining whether to grant a conditional use permit for such purpose. No request for a conditional use permit for the use of property as a mobile home park shall be granted unless formally approved by Dover City Council. A request for a conditional use permitting a mobile home park in an “R-3" zone shall be considered denied if not acted on by Council within ninety days following the issuance of the recommendation provided for herein.

(Ord. 13-05. Passed 3-21-05.)

1141.06 VARIANCES.

(a) The Board shall have the power to authorize upon appeal in specific cases, filed as provided in the Dover City Zoning Ordinances, such variances from the provisions or requirements of said Zoning Ordinances as will not be contrary to the public interest so that the spirit of said Zoning Ordinances shall be observed and substantial justice shall be done. In granting a variance, the Board may impose such conditions as it may deem necessary to protect the public health, safety and well being, and in furtherance of the purposes and intent of said Zoning Ordinances.

(b) When determining whether or not to award a variance from the requirements of the Dover City Zoning Ordinances, the Board shall consider the following factors:

(1) Whether the existing Dover City Zoning Ordinances create a situation in which the applicant is unable to yield a reasonable return or enjoy any beneficial use of the property without the variance requested;

(2) Whether the variance requested requires a significant departure from the City of Dover Zoning Ordinances;

(3) Whether the essential character of the neighborhood where the variance is sought, will be substantially altered if said variance is granted;

(4) Whether the owners of land adjoining the property for which the variance is sought will be suffer a substantial detriment;

(5) Whether the award of the variance sought would adversely affect the delivery of governmental services, including, but not limited to, the provision of water, sewer, garbage collection or fire protection;

(6) Whether the applicant’s predicament giving rise to the request for a variance can be feasible obviated through a method other than the issuance of a variance;

(7) Whether the applicant for the variance purchased the property with knowledge of the zoning restriction that gave rise to the request for the variance; and

(8) Whether the spirit and intent of the zoning restriction giving rise to the request for the variance will be substantially preserved if the variance requested is granted.

(c) With due consideration of the totality of the circumstances, including the factors listed in subsection (b) above, the Board shall grant an application for a variance to the area requirements and restrictions of the Dover City Zoning Ordinances, only if the applicant demonstrates that such area requirements and restrictions impose a practical difficulty upon the applicant. For purposes of the within provision, the term “area requirements and restrictions”, shall include, but not be limited to, provisions set forth in the Dover City Zoning Ordinances relating to setback, height, frontage, percentage of lot coverage, minimum lot area, minimum floor area, and yard requirements and restrictions.

(d) With due consideration of the totality of the circumstances, including the factors listed in subsection (b) above, the Board shall grant an application for a variance to the use requirements and restrictions of the Dover City Zoning Ordinances, only if the applicant demonstrates that a failure to obtain the variance requested will remove all economic viability of the property. For purposes of the within provision, the term, “use requirements and restrictions”, shall include, but not be limited to, the provisions set delineated in Sections 1141.02 and 1141.03 relating to the particular manner that property may be put to use. The application for a conditional use shall not be considered a request for a use variance, but shall be determined pursuant to the terms set forth in Section 1141.05.

(e) No request for a variance shall be granted unless the Board determines that the condition or situation applicable to the affected property, and/or the intended use thereof, is not so general or recurrent in nature as to make reasonably practicable the formulation of a general regulation for such condition, situation or use.

(Ord. 13-05. Passed 3-21-05.)

(f) Lapse of Variances.

(1) A variance, once granted, shall not be withdrawn or changed unless there is a change of circumstances, or if, after the expiration of one year, no substantial construction is done in accordance with the terms and conditions for which such variance was granted. If the person who received the variance or the subsequent owner of the land have not completed substantial construction within that one year, the variance shall expire and the land reverts to its prior zoning and use restriction under the Dover Codified Ordinances; unless, the person or subsequent owner of the land requests within the initial twelve months or the second twelve month extension, a twelve month extension of the variance from the Board of Zoning Appeals. The extension may be granted without a hearing. One additional twelve- month extension (for a maximum of two twelve month extensions) may be granted. After the expiration of three years from the grant of the variance, and only if the person or subsequent owner appropriately requested the extensions, noted herein, the variance shall lapse and any rights to deviate from the zoning and use restrictions of the Dover Codified Ordinances granted by the variance shall terminate and expire.

(2) Whenever the Board of Zoning Appeals grants a variance, it is granted subject to the time restrictions stated in this subsection and a copy of this subsection shall be deemed part of any variance so granted. A copy of this subsection shall be provided to the applicant at the time the variance is granted. (Ord. 67-09. Passed 1-4-10.)

1143.01 PERFORMANCE REQUIREMENTS; ENFORCEMENT.

(a) Performance Requirements. No land or building in any district shall be used or occupied in any manner so as to create any dangerous, injurious, noxious or otherwise objectionable element or condition unless the following performance requirements are observed:

(1) Fire and explosive hazards. Any activity involving the use of or storage of flammable or explosive materials shall be protected by adequate fire-fighting and fire-suppression equipment and by such safety devices as are normally used in the handling of any such material. Such hazards shall be kept removed from adjacent activities to a distance which is compatible with the potential danger involved.

(2) Radioactivity or electrical disturbance. No activity shall emit dangerous radioactivity at any point, or electrical disturbance adversely affecting the operations at any point of any equipment other than that of the creator of such disturbance.

(b) Enforcement Provisions.

(1) All uses existing on the effective date of this Zoning Ordinance shall be exempt from the performance requirements of this section.

(2) The Administrative Officer shall refer any use or proposed use which may violate performance requirements to the Board of Zoning Appeals for review. (Ord. 40-63. Passed 12-12-63.)

1143.02 MOBILE HOME COMMUNITIES.

(a) No mobile homes, trailers or similar portable residential structures shall be permitted to locate in the Municipality except as a mobile home community in an “R-3" District.

(b) A mobile home community shall conform to the following requirements:

(1) Contain a minimum of six acres.

(2) Provide an adequate supply of pure water and a system of collective sanitary sewers and sewage treatment and disposal facilities.

(3) Provide a clearly defined minimum area of 4,000 square feet including a minimum width of forty feet for each mobile home or trailer.

(4) Provide a minimum fifteen-foot clearance between individual mobile homes or trailers, and a fifty-foot setback from any property line bounding the mobile home community.

(5) All mobile home spaces shall abut upon a driveway of not less than twenty feet in width, which shall have unobstructed access to a private or public street.

(6) A safe, usable recreation area shall be conveniently located in each mobile home community and shall not be less than ten percent of the gross area of the tract.

(7) Conform to all City and State Health Department requirements.

(8) Mobile home parks shall be effectively screened on all sides by means of walls, fences or plantings. Walls or fences shall be six feet to eight feet in height without advertising thereon. In lieu of such wall or fence, a strip of land not less than fifteen feet in width, and planted and maintained with an evergreen hedge or dense planting of evergreen shrubs not less than six feet in height, may be substituted.

(Ord. 40-63. Passed 12-12-63.)

1143.03 RECREATIONAL VEHICLE PARKING AND STORAGE.

(a) Definitions. For the purposes of this section, words shall have the following meanings:

(1) "Recreational vehicle" means any vehicle or equipment designed for or primarily used as a camper, motor home, horse trailer, watercraft, off road vehicle, snowmobile or any non-commercial trailer.

(2) "Park" means to place a recreational vehicle for the purposes of convenient departure from or return to the vehicle in connection with a planned trip, outing or vacation, including the processes of loading or unloading the vehicle and preparation of the vehicle.

(3) "Store" means to place a recreational vehicle for the purposes of preserving, protecting and securing it for a period in excess of twenty- four hours.

(b) Garage Parking and Storage. Any such recreational vehicle may be parked or stored in a parking garage on the "R" (residential) zoning lot if such vehicle is of such a size as to permit it to be conveniently stored in such a garage with the garage door closed.

(c) Other Recreational Vehicle Storage and Parking. One recreational vehicle may be stored or seasonally parked on a lot in an "R" (Residential) Zoning District subject to the requirements of this section and the following conditions:

(1) From April 1 to November 15 in any calendar year, one such recreational vehicle may be parked in a front yard on a vehicle access driveway or hard surfaced parking area.

(2) If no recreational vehicle is otherwise stored on a "R" zoning district lot, then one such recreational vehicle may be stored on the zoning lot in the rear yard or the side yard.

(d) Front Yard Requirements. Any recreational vehicle parked in a front yard shall comply with the following requirements:

(1) Such vehicle shall be parked in the vehicular access driveway or hard surfaced parking area.

(2) Such vehicle shall be parked as close to the main building line as is possible and no nearer than ten feet to any public right of way or any sidewalk or established pedestrian walkway.

(e) Rear Yard Requirements. Any recreational vehicle parked or stored in a rear yard shall comply with the following requirements:

(1) Such vehicle shall be stored no nearer than ten feet to the main structure on the lot or adjoining rear lot line, and no nearer than five feet to any side lot line.

(2) The grading of the lot shall not be altered, and the drainage of the area shall not be obstructed or altered.

(f) Side Yard Requirements. Any recreational vehicle parked or stored in a side yard or front yard in a residential district shall be no nearer than five feet to any side lot line. No recreational vehicle shall be parked on a side lot that faces the side street on a corner lot.

(g) General Requirements. Any recreational vehicle stored or parked in any residential zoning district shall comply with the following requirements.

(1) No such recreational vehicle shall be parked or stored on a public or private street, alley, unopened grass alley, tree lawn or sidewalk, as is referred in Section 331.38.

(2) No such recreational vehicle shall have fixed connections to electricity, water, gas or sanitary sewer facilities, nor shall any such recreational vehicle at any time be used for living or housekeeping purposes on the zoning lot.

(3) Any such recreational vehicle shall be kept in good repair and in working condition, with current license plate, unless stored in a parking garage.

(h) Except for DCO 351.14 (b) (4), and notwithstanding any other provision of the Dover Codified Ordinances, no recreational vehicle shall be used as a residence or living quarter in the City of Dover unless it is in a recreational vehicle park or community approved by the Dover Planning Commission. (Ord. 3-19. Passed 3-4-19.)

1143.04 MOTELS AND MOTOR HOTELS.

Motels and motor hotels shall comply with the sanitary regulations prescribed by the City health authorities, the regulations of the Building Code and as may otherwise by required by law, and in addition shall comply with the following regulations:

(a) Any lot to be used for a motel shall not be less than two acres in area and shall contain not less than 2,000 square feet of land area per sleeping unit. All buildings and structures shall be at least fifty feet distant from the front and side lot lines. The buildings and structures on the lot shall not occupy in the aggregate more than twenty-five percent of the area of the lot.

(b) All areas not used for access, parking, circulation, buildings and services shall be completely and permanently landscaped and the entire site maintained in good condition. (Ord. 40-63. Passed 12-12-63.)

1143.05 BILLBOARDS AND SIGNS. (REPEALED)

See Chapter 1331.

1143.06 COMMUNITY DEVELOPMENT PROJECTS.

(a) The owner of any tract of land may submit to the Planning Commission a detailed site plan of the proposed area at a scale of 200 feet to the inch or larger, including functions and type of structures, density in number of families per acre, percent of lot coverage and other comparable details as the Commission may require for review of the proposal. The Commission shall hold a public hearing before making recommendations to Council. If the Commission approves the plans, they shall be submitted to Council for consideration and action. The approval and recommendations of the Commission shall be accompanied by a report stating the reasons for approval of the application and specific evidence and facts showing that the proposed community development project meets with the following conditions as determined by the Planning Commission:

(1) The property adjacent to the area included in the plan will not be adversely affected.

(2) The plan is consistent with the intent and purposes of this Zoning Ordinance to promote public health, safety, morals, and general welfare.

(3) The use of the land shall be similar to the uses permitted in the district in which the plan is located.

(4) The average lot per family contained in the site, exclusive of the area occupied by streets, will not be less than the lot area per family required in the district in which the development is located.

(b) If the Planning Commission and Council approve the plans, a Zoning Certificate may be issued, even though the use of land, the location and height of buildings to be erected in the area and the yards and open spaces contemplated by the plan do not conform in all respects to the district regulations of the district in which it is located.

(Ord. 57-14. Passed 12-1-14.)

1143.07 INTEGRATED SHOPPING CENTERS.

(a) Preliminary Plan.

(1) The owner of a tract of land, located in any district at or near a proposed shopping center which is shown on the Land Use Plan and containing not less than six acres, may submit to the Planning Commission for its review a preliminary plan for the use and development of such tract of land for an integrated shopping center. The Commission shall review the proposal and make recommendations on it to Council.

(2) In accepting such plan for review, the Commission must be satisfied that the proponents of the shopping center are financially able to carry out the proposed project, that they intend to start construction within one year of the approval of the project and necessary change in zoning and that they intend to complete it within a reasonable time as determined by the Commission.

(b) Location, Size and Character of Development. Prerequisites for plan approval shall be as follows:

(1) The need for the proposed development has been demonstrated by means of market studies and such other evidence as the Planning Commission may require.

(2) The proposed shopping center is located so that reasonably direct traffic access is supplied from principal thoroughfares and where congestion will not likely be created by the proposed center, or where congestion will be alleviated by presently projected improvement of access thoroughfares.

(3) The plan provides for a shopping center consisting of one or more groups of establishments in buildings of integrated and harmonious design, together with adequate and properly arranged traffic and parking facilities and landscaping which will fit harmoniously into and will have no adverse effects upon the adjoining or surrounding development.

(c) Permitted Uses. The uses permitted in an integrated shopping center shall be the kinds of uses permitted in a "B-1" District.

(d) Regulations. The following regulations shall apply to a shopping center:

(1) Building heights. No building shall exceed two stories or thirty-five feet in height, except as modified by Section 1153.03.

(2) Yards. No building shall be less than fifty feet distant from any boundary of the tract on which the shopping center is located. The center shall be permanently screened from all adjoining properties located in any "R" District by a solid wall or compact evergreen hedge at least six feet in height. Such wall or hedge shall be placed at least five feet from the property line.

(3) Tract coverage. The ground area occupied by all the buildings shall not exceed, in the aggregate, twenty-five percent of the total area of the lot or tract.

(4) Customer parking space. Notwithstanding any other requirements of this Zoning Ordinance, there shall be provided one off-street parking space for each one hundred square feet of rental floor space, not including basement storage space.

(5) Loading space. Notwithstanding any other requirements of this Zoning Ordinance, there shall be provided one off-street loading or unloading space for each 10,000 square feet, or fraction thereof, of aggregate floor space of all buildings in the center. At least one-third of the spaces required shall be sufficient in area and vertical clearance to accommodate trucks of the tractor-trailer type.

(6) Access drives and illumination of parking areas. Access drives and illumination of parking areas shall be so arranged as to reflect the light away from adjoining premises in any "R" District.

(7) Signs. Each center shall be permitted two free-standing signs, not over thirty feet in height, having a maximum total area of one hundred square feet and located not closer than ten feet to any street line and not closer than one hundred feet to the adjoining lot line. A single identification pylon or similar structure of a height in excess of thirty feet and in harmony with the design of the buildings shall be permitted. All signs within the center shall be controlled by written agreement between the owners and tenants of the center, or otherwise, to avoid excessive advertising and ensure a harmonious appearance to the center as a whole. All signs shall conform to the distance requirements from property lines for the buildings in the center.

(e) Submission and Approval of Final Development Plan.

(1) Upon determination by the Planning Commission that the proposed shopping center, as shown by the preliminary plan, appears to conform to the requirements of this section and all applicable requirements of this Zoning Ordinance, the proponents shall prepare and submit a final development plan, which plan shall incorporate any changes or modifications required or suggested by the Commission.

(2) If the final development plan is found to comply with requirements set forth in this section and other applicable provisions of this Zoning Ordinance, the Planning Commission shall hold a public hearing and submit such plan with its report and recommendations, together with the required application by the proponents of the necessary change in zoning classification of the site of the proposed center, to Council, which shall hold a public hearing on both the development plan and application for a change in zoning.

(3) Following a public hearing, Council may modify the plan consistent with the intent and meaning of this Zoning Ordinance and may rezone the property to the classification permitting the proposed center, for development in substantial conformity with the final plan as approved by Council.

(4) After the final development plan has been approved by Council, and in carrying out this plan, adjustments or rearrangements of buildings, parking areas, entrances, heights or yards may be requested by the proponents, and provided such requests conform to the standards established by the final development plan and this Zoning Ordinance, such adjustments or rearrangements may be authorized by Council.

(Ord. 40-63. Passed 12-12-63.)

1143.08 "M-1" RESTRICTED INDUSTRIAL DISTRICTS.

The following regulations, conditions and procedures shall apply to the development of properties for permitted and conditional uses in "M-1" Restricted Industrial Districts:

(a) Preliminary Plan.

(1) The owner of a tract of land located in any district where or near where a proposed restricted industrial area is shown on the future Land Use Plan, containing not less than six acres, may submit to the Planning Commission for its review a preliminary plan for the use and development of such tract of land for industrial uses permitted in accordance with the provisions of this Zoning Ordinance. The Commission shall review the proposal and make recommendations on it to Council.

(2) In accepting such plan for review, the Planning Commission must be satisfied that the proponents of the office or industrial development are financially able to carry out the proposed project; that they intend to start construction within one year of the approval of the project and intend to complete it within a reasonable time as determined by the Commission.

(b) Location and Character of Development.

(1) The proposed office or industrial development shall be located so that reasonably direct traffic access is supplied from principal thoroughfares and where congestion will not likely be created by the proposed development, or where such congestion will be obviated by presently projected improvements of access thoroughfares, by demonstrable provisions in the plan for proper entrances and exits and by internal provisions for traffic and parking.

(2) The plan shall provide for an office or industrial development consisting of one or more buildings of integrated and harmonious design, together with adequate and properly arranged traffic and parking facilities and landscaping, which will be an attractive development and which will fit harmoniously into and will have no adverse effects upon the adjoining or surrounding development.

(c) Permitted Uses. The uses permitted in an "M-1" District will be those office buildings and industrial and related uses listed in Section 1141.03.

(d) Regulations. The following regulations shall apply to office and industrial developments in "M-1" Districts:

(1) Building heights. No building shall exceed three stories or forty-five feet in height, except as modified by Section 1153.03.

(2) Yards. No building shall be less than fifteen feet distant from any boundary of the tract on which the office or industrial development is located. Loading and storage shall be permanently screened from all adjoining properties located in any "R" District by building walls or a solid wall or compact evergreen hedge at least six feet in height. All intervening spaces between the street pavement and the right-of-way line and intervening spaces between buildings, drives, parking areas and improved areas shall be landscaped with trees and plantings and properly maintained at all times.

(3) Parking space. Notwithstanding any other requirements of this Zoning Ordinance, there shall be provided one off-street space for each three employees on the maximum working shift. Parking areas shall not be located closer than twenty-five feet to any adjoining lot line in any "R" or "B" District and shall be set back at least fifty feet from the street right-of-way line. The parking area shall be graded for proper drainage and improved so as to provide a durable and dustfree surface.

(4) Loading space. Notwithstanding any other requirements of this Zoning Ordinance, there shall be provided off-street loading or unloading space sufficient in area and vertical clearance to accommodate the maximum number of trucks and tractor-trailers anticipated at any one time.

(5) Access drives and illumination of parking areas. Access drives and illumination of parking areas shall be so arranged as to reflect the light away from adjoining premises in any "R" District.

(6) Signs. Signs for office and industrial developments shall be limited to wall type signs on the principal building, except that a small freestanding identification and directional sign not over fifteen square feet in area may be erected at entrances to the office or industrial development. If signs are illuminated, the source of light shall not be visible.

(e) Submission and Approval of Final Development Plan.

(1) Upon determination by the Planning Commission that the proposed office or industrial development, as shown by the preliminary plan, appears to conform to the requirements of this section and all other applicable requirements of this Zoning Ordinance, the proponents shall prepare and submit a final development plan, which plan shall incorporate any changes or modifications required or suggested by the Commission.

(2) If the final development plan is found to comply with requirements set forth in this section and other applicable provisions of this Zoning Ordinance, the Planning Commission shall hold a public hearing and submit such plan, with its report and recommendations, together with the required application for a Zoning Certificate, to Council, which shall hold a public hearing on the proposed development plan.

(3) Following the public hearing, Council may modify the plan, consistent with the intent and meaning of this Zoning Ordinance and authorize the issuance of a Zoning Certificate.

(4) After the final development plan has been approved by Council, and in the course of carrying out this plan, adjustments or rearrangements of buildings, parking areas, entrances, heights or yards may be requested by the proponents, and, provided such requests conform to the standards established by the final development plan and this Zoning Ordinance, such adjustments or rearrangements may be authorized by the Planning Commission. (Ord. 40-63. Passed 12-12-63.)

1143.09 PRIVATE SWIMMING POOLS.

(a) A private swimming pool means any pool, pond, lake or open tank, where swimming is normally permitted, not located within a completely enclosed building, and containing or normally capable of containing water to a depth at any point greater than one and one-half feet, and having a surface area of 200 square feet or more.

(b) No such swimming pool shall be allowed in any “R” District except as an accessory use, and unless it complies with the following conditions and requirements:

(1) The pool is intended and is to be used solely for the enjoyment of the occupants of the principal use of the property on which it is located.

(2) Such pool, including any walks or paved areas or accessory structures adjacent thereto shall not be located closer to the property line than authorized by the setback requirements of Section 1151.02 and shall be at least ten feet to the rear foundation of the main building.

(3) The swimming pool, or the entire property on which it is located, shall be walled or fenced to prevent uncontrolled access by young children from the street or from adjacent properties. Such fence or wall shall be not less than four feet in height and maintained in good condition, with a gate and lock. Alternately, the swimming pool may be constructed or situated in such a way that there is no less than a four foot barrier, deck, rigid side or other construction that is equivalent to a fence or barrier that has a four foot height. (Example include four foot high rigid sided above ground pools with the ladder removed and stored away from the pool when not in use, or decks around above ground pools at least four feet in height in which access is blocked in such a way that is equivalent to or greater than a four foot high fenced enclosure).

(4) The swimming pool shall not be located under any electric lines or utility lines. The movement of any such utility lines in order to accommodate a swimming pool shall be at the expense of the property owner.

(5) Under no circumstance shall an in ground pool of any dimension be exempt from the minimum four foot height fencing requirement noted in subsection (b)(3) of this section.

(6) Any swimming pool that is defined by this section as an accessory use, based on being of a minimum dimension of 200 square feet, shall count toward the lot coverage requirements of Section 1151.02.

(Ord. 37-11. Passed 11-7-11.)

1143.10 COMMUNITY OR CLUB SWIMMING POOLS.

"Community or club swimming pool" means any pool constructed by an association of property owners, or by a private club, for use and enjoyment by members of the association or club and their families. Community and club swimming pools are permitted in all districts, but shall comply with the following conditions and requirements:

(a) The pool is intended solely for the enjoyment of the members, families and guests of members of the association or club under whose ownership or jurisdiction the pool is operated.

(b) The pool and accessory structures thereto including the areas used by the bathers, shall not be closer to the property line of the property on which it is located than that allowed by the setback requirements of Section 1151.02.

(c) The swimming pool and all of the area used by the bathers shall be so walled or fenced as to prevent uncontrolled access by children from the street or adjacent properties. The fence or wall shall not be less than four feet in height and maintained in good condition.

(d) The swimming pool shall not be located under electric lines or utility lines. The movement of any such utility lines in order to accommodate a swimming pool, shall be at the expense of the property owner. (Ord. 40-83. Passed 7-5-83.)

1143.11 CONVERSION OF DWELLINGS.

In "R-3" and "R-4" Districts a residence may be converted to accommodate an increased number of dwelling units, provided:

(a) The yard dimensions meet the yard dimensions required by the zoning regulations for new structures in that district.

(b) The lot area per family is equal to the lot area requirements for new multi- family structures in that district.

(c) The number of square feet of living area per family unit is not less than that which is required for new construction in that district.

(Ord. 40-63. Passed 12-12-63.)

1143.12 TEMPORARY BUILDINGS; TRAILERS AND COMMERCIAL VEHICLES.

Temporary buildings, trailers, and commercial vehicles used in conjunction with construction work shall not be permitted in any district except that the same shall be permitted only during the period that construction work is in progress on the premises where so stored. Any such temporary buildings, trailers, or commercial vehicles shall be removed upon completion of the construction work in question.

(Ord. 17-05. Passed 4-18-05.)

1143.13 COAL, CLAY AND OTHER MINERAL EXTRACTION, STORAGE AND PROCESSING.

The extraction and processing of minerals in an "M-2" District shall be conducted in accordance with the requirements of this section, and other sections of this Zoning Ordinance inconsistent with this section shall have no application to mineral extraction and processing in an "M-2" District.

(a) Existing Operations. The provisions of this section shall not apply to existing buildings, structures and areas utilized for the extraction and processing of minerals prior to the enactment of this Zoning Ordinance, except that the extension of any existing extraction operations shall not be conducted closer than 300 feet to any lot line in any "R", "B" or "M-1" District, and not closer than one hundred feet to any lot line in any "S" or "M-2" District, except that in no case shall extraction operations be conducted within 500 feet of a structure used for human occupancy. Owners of buildings, structures and excavations on tracts of land where no further extractions or processing is contemplated shall comply with the requirements of subsection (e) of this section.

(b) Extension of Existing or New Operations. The extension of any existing or new extraction operations shall not take place closer than fifty feet to the right of way of any public street or road.

(c) Control of Objectionable Elements. The owners and operators of existing and proposed extraction industries shall minimize the harmful effects on water supply, stream pollution and degrees of noise and vibration upon surrounding properties in accordance with the customary and accepted practices of the extraction industry.

(d) New Operations and Major Expansion of Existing Operations.

(1) The operator of a proposed extraction and processing operation in an area outside an established "M-2" District, or the operator of an existing extraction and processing operation where an expansion is contemplated beyond the established limits of an "M-2" District, shall submit to the Planning Commission for approval, copies of plans showing the proposed location and type of buildings or structures to be erected and the areas from which minerals are to be extracted. The plans shall show the type of restoration or re-use contemplated for the land upon completion of the extraction and processing operation.

(2) Proposed operations and major expansion of existing operations for the extraction and processing of minerals shall provide off-street parking and loading facilities sufficient to meet personnel and operating requirements at all times.

(3) Buildings and structures used for the processing of minerals shall be located at a minimum distance of 300 feet from any "S", "R" or "B" District. Mineral extraction operations shall not be conducted closer than 300 feet to any lot line in any "R", "B" or "M-1" District, and not closer than one hundred feet to any lot line in any "S" or "M-2" District, except that in no case shall extraction operations be conducted within 500 feet of a structure used for human occupancy. Owners of buildings, structures and excavations on tracts of land where no further extraction or processing is contemplated shall comply with the requirements of subsection (e) of this section.

(4) Where the proposed operations abut any "S-1", "R", "B" or "M-1" District, a landscaped intervening border of not less than fifty feet shall be provided and maintained in a satisfactory natural state. Such border shall be planted with trees or shrubs to provide an eventual screen. Portions of the border not planted with trees or shrubs shall be seeded.

(5) Border plantings. Along all right-of-way or property lines, prior to the beginning of any intended excavations, there shall be planted and maintained at least two staggered rows of evergreens of an approved species not more than eight feet apart in the row and not closer than five feet to the right-of-way or property line. In lieu of evergreens, such other suitable plantings may be made as may be agreeable to the Planning Commission.

(6) These screening requirements as listed in subsections (d)(4) and (5) of this section shall be considered minimum requirements and may be modified by the mutual agreement of the extractors, property owners and the Board of Zoning Appeals or, if along a right-of-way line, the Planning Commission. It is not intended that the extractors, at their option, and with the consent of the Board of Zoning Appeals, may not level the whole area for farming, reforestation or, if the occasion arises, for a sanitary landfill in presently extracted areas.

(7) Upon determination by the Planning Commission that proposed buildings and structures and the extraction and processing of minerals as shown on the submitted plans conform to the requirements of this section and other applicable provisions of this Zoning Ordinance, the Commission shall submit the plans and the application for a zone change, together with its report and recommendations, to Council, which shall hold a public hearing on both the proposal as shown by the plans and the application for any required change in zoning.

(8) Following the public hearing, Council may require modifications in the plans, consistent with the intent and meaning of this Zoning Ordinance and may approve any required rezoning of property to an "M-2" classification.

(e) Abandoned Buildings, Structures and Excavations. Buildings and structures for which no further use is contemplated in the extraction and processing of minerals, and for which no other acceptable use is practicable or feasible, shall be demolished and removed. Excavated areas shall be regraded to remove abrupt and precipitous slopes and quarry banks and planted with appropriate plant material. Where such grading is impracticable because of rock formations, the excavated area shall be enclosed by a six-foot fence which shall be maintained in good condition.

(f) Proposed Location of Allied Industries. The operator of a proposed industry which uses the products of the mineral extraction and processing industry in its manufacturing process, and therefore desires to locate in an "M-2" District adjacent to an existing processing plant in order to have direct delivery from such processing plant by conveyor belts or otherwise, shall submit a plan of the proposed development to the Board of Zoning Appeals for approval.

(Ord. 40-63. Passed 12-12-63.)

1143.14 AUTO AND METAL SALVAGE OPERATIONS (JUNK YARDS). (REPEALED)

EDITOR’S NOTE: Former Section was repealed by Ordinance 35-17.

1143.15 STORAGE TANKS PROHIBITED.

(a) Gasoline and Other Petroleum Storage Tanks. Gasoline and other petroleum product storage tanks of over forty gallons capacity are hereby prohibited from all residential districts. (Ord. 35-17. Passed 11-20-17.)

1143.16 MANUFACTURED HOME COMMUNITIES.

(a) No manufactured homes or similar residential structures shall be permitted to locate in the Municipality except as a manufactured home community in an “R-5" District.

(b) A manufactured home community shall conform to the following requirements:

(1) Contain a minimum of six acres.

(2) Have municipal water and sewer facilities, and all other utilities normally provided by the municipality.

(3) Provide a clearly defined minimum lot area of 5,000 square feet, including a minimum width of fifty feet for each manufactured home, not to exceed five lots per acre when the gross area of the community is used to make the subject ratio determination.

(4) Provide a minimum twenty foot clearance between individual homes, and a twenty-five foot setback from any property line bounding the manufactured home community.

(5) All manufactured home spaces shall abut upon a driveway which shall have an unobstructed access to a private street.

(6) A safe, usable recreation area shall be conveniently located in each manufactured home community and shall not be less than ten percent of the gross area of the tract.

(7) Conform to all City and State of Ohio Health Department requirements.

(8) Manufactured home communities shall be effectively screened on all sides by means of walls, fences or plantings. Walls or fences shall be six feet to eight feet in height without advertising thereon. In lieu of such wall or fence, a strip of land not less than fifteen feet in width, and planted and maintained with an evergreen hedge or dense planting of evergreen shrubs not less than six feet in height, may be substituted.

(9) Private streets in manufactured home communities shall conform to the same requirements designated for public streets in Chapter 1109, Design Standards, and in Chapter 1111, Minimum Required improvements. Entrance and exit streets shall have a minimum sixty foot width with a 36 foot pavement and all other streets shall have a minimum fifty foot width with a thirty foot pavement. (Ord. 44-98. Passed 8-10-98.)

(10) Manufactured homes located in R-5 Zoning Districts may be erected on concrete pads or pillars in lieu of being installed on a permanent perimeter, wall foundation.

(11) Manufactured homes located in R-5 Zoning Districts shall have roofs with a minimum pitch of 4 to 12 (4" vertical to 12" horizontal).

(12) Manufactured homes located in R-5 Zoning Districts shall have exterior walls constructed with a minimum of 2" by 6" framing grade lumber or better material. All exterior walls shall also be covered with OSB wood composite board or better material.

(13) Manufactured homes located in R-5 Zoning Districts shall have interior walls constructed with a minimum of 2" by 4" framing structure or other HUD approved framing structure covered by a minimum of ½” drywall.

(14) Separate structure storage units shall be no larger than ten percent (10%) of the floor space of the dwelling or 100 square feet, whichever is less. Storage units shall be constructed of similar or better quality material on the exterior of the structure then that of the principal dwelling.

(15) No dwelling unit shall have any exposed towing mechanism, undercarriage or chassis. (Ord. 62-98. Passed 10-5-98.)

1143.17 SELF-SERVICE STORAGE FACILITIES.

(a) Zoning of Self-Service Storage Facilities. Self-service storage facilities shall be a permitted use only in M-1 and M-2 designated districts as established in Section 1141.03 of the Codified Ordinances. Self-service storage facilities shall be conditionally permitted only in B-1, B-2 and B-3 designated districts as established in Section 1141.03 of the Codified Ordinances.

(b) Screening Requirements. In the event that property is used for the operation of a self-storage facility, and in the further event that said property is contiguous to property designated by the Dover Codified Ordinances as being in a non-industrial district, then such property shall be provided with effective screening without advertising thereon. Such screening shall consist of a dense evergreen hedge or a solid, natural finish wood fence, and shall not be less than six or more than eight feet in height.

(Ord. 13-01. Passed 4-16-01.)

1143.18 RV PARKS AND COMMUNITIES.

(a) For the purposes of this chapter, a recreational vehicle (RV) is defined as a motor home or motor vehicle which normally includes living spaces and amenities found in a home, such as kitchen, bathroom and sleeping quarters. They are not to be confused with mobile homes or mobile home communities, which are defined in Sections 1121.47 and 1143.02.

(b) No person shall dwell in a recreational vehicle in the Municipality unless its located in an RV Park or Community approved by the City of Dover Planning Commission. No RV is permitted to be used as living quarters anywhere in the Municipality, whether located separately or congregated with others which total less than five in number.

(c) No RV Park or Community of similar development shall be permitted to locate in the Municipality except as a conditional use in an M-2 zoned district requiring Zoning Board of Appeals approval. A RV Park or Community shall be added as a conditional use under Section 1141.03 in an M-2 General Industrial District.

(d) An RV Park or Community must conform to the following requirements approved by the City Planning Commission:

(1) Contain a minimum of six acres.

(2) Provide for municipal water and sewer facilities, and all other utilities normally provided by the Municipality.

(3) Provide a clearly defined minimum area of 4,000 square feet, including a minimum lot width of forty feet for each RV.

(4) Provide for the installation of paved City streets or private drives with adequate street lighting and directional signage.

(5) Each RV slip or pad must be of concrete construction and designed with a minimum of fifteen foot clearance between adjacent RV slips or pads which shall be used to locate the RV upon.

(6) All RV spaces shall abut upon a driveway of not less than twenty feet in width and length, which shall have unobstructed access to a private or public street.

(7) Provide for a fifty foot setback from any slip or pad to any property line bounding the RV Park or Community.

(8) Conform to all City and State Health Department requirements.

(9) RV Parks or Communities shall be effectively screened on all sides by means of walls, fences or plantings. Walls and fences shall be six feet to eight feet in height without advertising thereon. In lieu of such wall or fence, a strip of land not less than fifteen feet in width, and planted and maintained with an evergreen hedge or dense planting of evergreen shrubs or other ornamental shrubbery as approved by the Dover Building and Zoning Codes Administrator with input from the Dover Architectural Review Board.

(Ord. 35-13. Passed 8-5-13.)

1145.01 DEFINITIONS.

(a) "Mobile home" means any structure that has a title. Except as provided in subsection (d), no mobile home, trailer or similar portable residential structure shall be permitted to locate in the Municipality except as in a mobile home community in an R-3 District under Section 1143.02 (Mobile Home Communities).

(b) "Modular home" is a prefabricated building or house that consists of multiple sections called modules, which differ from mobile homes and manufactured homes in that they do not have axles or a frame and do not have a title. They are typically transported to their site by means of flat-bed trucks and must rest on or be anchored to the outer perimeter of a frost free minimum eight inch (8") width permanent foundation. Modular homes are permitted in R-2, R-3, and R-4 Residential Districts and must conform to Section 1151.02 (Height, Lot Area and Floor Area Minimum Requirements). Modular Homes are also permitted in M-2 Districts for use in temporary construction yards and facilities.

(c) "Manufactured home" means any structure having been prefabricated and designed away from the site and conforms to the R-5 Zoning Requirements of Section 1151.02. Manufactured Homes may also be used and erected in M-2 Districts.

(d) "Temporary Construction Yards and Facilities" means a yard or facility the purpose of which is to provide the facilities, buildings, warehouses, training facilities and other necessary adjuncts to the provision of construction work necessary for a temporary construction project that is not located on the parcel, or the immediate vicinity, of the parcel where the temporary construction yards or facilities are located.

(e) "Temporary Construction Project" means a construction project that is intended to provide for the construction, building, maintenance, reconstruction of highways, pipelines, utilities, buildings, and other improvements in Dover, Tuscarawas County, or any of the surrounding environs that will likely last for a period of up to three years from the inception of the project.

(f) In an M-2 zoned district, mobile homes, modular homes and manufactured homes shall be allowed and to be permitted to be used for any lawful construction related purpose including, but not limited to, offices, warehouses, employee use facilities (other than lodging), training, or safety related uses for a period of up to twenty-four months, with the right to extend the use for additional six-month periods upon notice to the Dover Building and Zoning Codes Administrator while the construction project(s) continue.

(Ord. 36-15. Passed 9-21-15; Ord. 8-21. Passed 4-5-21.)

1145.02 LOCATION.

Mobile homes shall be permitted in "Temporary Construction Yards and Facilities" in M-2 zoned areas and in R-3 Conditional Use areas only. Modular homes and manufactured homes shall be permitted in "Temporary Construction Yards and Facilities" in M-2 zoned areas and in R-5 zoned areas.

(Ord. 36-15. Passed 9-21-15; Ord. 8-21. Passed 4-5-21.)

1145.03 EXCEPTIONS AND MODIFICATIONS.

(a) Manufactured homes located in R-5 zoning districts may be erected on concrete pads or piers in lieu of only being installed on a permanent perimeter, wall foundation.

(b) Manufactured homes located in R-5 zoning districts shall have roofs with a minimum pitch of 4 to 12 (4" vertical to 12" horizontal).

(c) Manufactured homes located in R-5 zoning districts shall have exterior walls constructed with a minimum of 2" X 6" framing grade lumber or better material. All exterior walls shall also be covered with OSB wood composite board or better material.

(d) Manufactured homes located in R-5 zoning districts shall have interior walls constructed with a minimum of 2" X 4" framing covered with a minimum of ½" drywall or better material.

(e) Modular homes and manufactured homes may also be erected in M-2 zoned districts in "Temporary Construction Yards and Facilities".

(Ord. 36-15. Passed 9-21-15; Ord. 8-21. Passed 4-5-21.)

1145.04 INTERMODAL CONTAINERS

Intermodal containers (also known as shipping containers) are prohibited within all residential zoned districts. Intermodal containers cannot be used to construct a modular home or manufactured home within a residential zoned district.

(Ord. 8-21. Passed 4-5-21.)

1147.01 PURPOSE.

The purpose of this Chapter is to protect the health, safety and welfare of the public while not unreasonably interfering with the development of the competitive wireless telecommunication market place through the establishment of requirements for the installation of Wireless Communication Facilities.
(Ord. 73-00. Passed 1-2-01.)

1147.02 OBJECTIVES.

The following are the City’s objectives:

(a) To comply with the Telecommunications Act of 1996 including any follow-on rules and/or rule interpretations by the appropriate state, federal agencies and the courts.

(b) To work proactively with the various wireless telecommunications service providers to ensure rapid and reliable deployment of their services and technologies while minimizing the negative impacts on the City

(d) Encourage the location of towers in non-residential areas and public property.

(e) Minimize the total number of towers throughout the community.

(f) Strongly encourage the joint use of new and existing tower sites as a primary option rather than construction of additional single use towers.

(g) Encourage the owners and operators of wireless towers and antennas to locate them, to the extent possible, in areas where the adverse impact on the community is minimal.

(h) Encourage owners and operators of Wireless Communication Facilities and antennas to configure them in a way that minimizes the adverse impact of the towers and antennas through careful design, siting, landscape screening, and innovative camouflaging techniques to be sure that, to the greatest extent feasible, that wireless towers and antennas and ancillary facilities are compatible with surrounding land users.

(i) Consider the public health and safety of Wireless Communication Facilities.

(j) Avoid potential damage to adjacent properties caused by Wireless Communication Facilities by ensuring such structures are soundly and carefully designed, constructed, modified, maintained and removed.

(k) To make available appropriate City owned property and structures for Wireless Communication Facilities.
(Ord. 73-00. Passed 1-2-01.)

1147.03 DEFINITIONS.

For purposes of the Chapter, the following terms, phrases, words and their derivations shall have the meanings given herein. When not inconsistent with the context, words used 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. All capitalized terms used in the definition of any other term shall have their meaning as otherwise defined in this Section. The words “shall” and “will” are mandatory and “may” is permissive. Words not defined shall be given their common and ordinary meaning.

(a) Antenna: means any exterior apparatus used for transmitting and receiving, mounted on a tower, alternative tower structure, building or structure and used in communications that radiate or capture electromagnetic waves, digital signals, analog signals, radio frequencies (excluding radar signals), wireless telecommunications signals or other communication signals.

(b) Antenna Tower: means any structure that is designed and constructed primarily for the purpose of supporting one or more antennas for telephone, radio and similar communication purposes. The term includes radio and television transmission towers, microwave towers, common-carrier towers, cellular telephone towers, antenna tower alternative structures, and the like. The term also includes the structure and any support thereto.

(c) Antenna Tower Alternative Structure: means man made trees, clock towers, bell steeples, and similar alternative-design mounting structures that substantially camouflage or conceal the presence of antennas or towers such that one would not identify the structure as an antenna tower.

(d) Antenna Tower Height: means, when referring to a tower or other structure within the provisions of this Chapter, the distance measured from the average grade plane of the antenna tower base to the highest point on the tower or other structure, including any antenna and additional height required for co-location. Lightning rods up to six (6) feet in length and 1.25 inches in diameter may extend above the maximum height measured. When roof-mounted, antenna tower height shall be measured from the average grade plane of the building to the highest point on the tower or other structure, including any antenna and additional height required for co-location.

(e) Average Grade Plane: means a reference plane representing the average of finished ground level adjoining the structure or building at all exterior surfaces.

(f) Backhaul Network: means the lines that connect a provider's towers/cell sites to one or more cellular telephone switching offices, and/or long distance providers, or the public switched telephone network.

(g) City: means the City of Dover, Ohio

(h) Code: means the Code of Ordinances of the City.

(i) Co-location: means the use of Wireless Communication Facilities by more than one wireless communications provider.

(j) Conditional Use: in accordance with Section 1121.20 of the Codified Ordinances of the City of Dover, hereby incorporated by reference, a conditional use means a conforming use of buildings and land which, by the nature of it, requires review by the Board as set forth in Section 1127.03 of the Codified Ordinances of the City of Dover in order to determine its effect upon adjacent existing uses.

(k) Council: means the City Council.

(l) Director: means the Safety-Service Director of the City or any designee.

(m) Engineer: means a registered professional engineer licensed in the State of Ohio to provide any information of an engineering nature whether civil, electrical or mechanical.

(n) Equipment Shelter/Building: means the structure in which the electronic receiving and transmission equipment associated with a wireless telecommunications facility is housed.

(o) FAA: means the Federal Aviation Administration.

(p) FCC: means the Federal Communications Commission.

(q) Facility: See Wireless Communication Facility.

(r) Force Majeure: means a strike, acts of God, acts of public enemies; administrative, judicial or regulatory orders or regulations of any kind of the United States of America and/or the State of Ohio or any of their departments, agencies or political subdivisions; riots epidemics, landslides, lightning, earthquakes, fires, tornadoes, storms, floods, civil disturbances, explosions, partial or entire failure of utilities or any other cause or event not reasonably within the control of the disabled party, but only to the extent that the disabled party notifies the other party as soon as practicable regarding such force majeure.

(s) Institutional Property: means property owned or used by institutions such as churches, parks, libraries, municipal government, hospital and utilities.

(t) Monopole: means a single pole with no above ground lateral support from secondary structural members in either tension or compression.

(u) No-impact Wireless Communication Facility: means a facility which is either: (1) virtually invisible to the casual observer, such as an antenna behind louvers on a building, or inside a steeple or similar structure, or (2) camouflaged so as to blend in with its surroundings to such en extent that it is indistinguishable by the casual observer from the structure on which it is placed or the surroundings in which it is located, such as a flagpole serving as an antenna.

(v) Open Space: means land presently devoted to, or that is later designated as, conservation or recreational purposes and/or land designated by a municipality to remain undeveloped (may be specified on a zoning map).

(w) Permitted Use: is any such Wireless Communication Facility located in a specified location or zoning district within the City designated as a permitted use location in this Chapter such as those facilities to be located on Public Property.

(x) Person: is any natural persons, firm, partnership, association, corporation, company, or other legal entity, private or public, whether for profit or not-for-profit.

(y) Personal Communications Services Tower: See Wireless Communication Facility

(z) Preexisting Towers and Preexisting Antenna: means any tower or antenna for which a building permit has been properly issued prior to the effective date of this Chapter, including permitted towers or antennas that have not yet been constructed so long as such approval is current and not expired.

(aa) Public Property: means real estate owned, leased, or otherwise controlled by the City or the School District.

(bb) Stealth Design: means any communications facility that is designed to blend into the surrounding environment. Examples of stealth facilities may include, but are not limited to, antenna tower alternative structures, architecturally screened roof-mounted antennas, building-mounted antennas painted to match the existing structure, antennas integrated into architectural elements, antennas and monopoles surrounded or obscured by existing and/or proposed trees and landscaping and antenna structures designed to look like light poles.

(cc) Tower: See Antenna Tower/Wireless Communication Facility

(dd) Wireless Communication Facility: is an all encompassing term that includes towers, poles, cables, wires, lines, wave guides, antennas, microwave dishes and/or any other equipment or facilities associated with the transmission or reception of communications as authorized by the FCC which a person seeks to locate or have installed upon a tower or antenna support structure. However, the term Wireless Communication Facilities shall not include:

(1) Any satellite earth station antenna two meters or less in diameter or less that is located in an area zoned industrial or commercial

(2) Any satellite earth station antenna one meter or less in diameter, regardless of zoning category;

(3) Antennas used by amateur radio operators or those used for television reception on residential homes.
(Ord. 73-00. Passed 1-2-01.)

1147.04 APPLICABILITY.

All towers, antenna support structures and Wireless Communication Facilities, any portion of which are located within the City, are subject to this Chapter. The provisions of this Chapter are to be supplemented by specific regulations for the zoning districts in which such towers, support structures and Wireless Communication Facilities are located. Except as provided in this Chapter, any use being made of a pre-existing tower or antenna support structure on the effective date of this Chapter (herein referred to as “Nonconforming Structures”) shall be allowed to continue, even if in conflict with this Chapter. All re-construction or modifications to a Nonconforming Structure being undertaken shall be required to conform to the provisions of this Chapter.

(a) New Towers and Antennas: All new tower and antenna sites and facilities within City of Dover shall be subject to these regulations.

(b) Preexisting Towers or Antennas: Preexisting towers or preexisting antennas shall not be required to meet the requirements of this Chapter other than the requirements of Section 1147.05(b)(1)C., D., E., Section 1147.17 and 1147.18. No additions, alterations or modifications shall be made to any preexisting wireless communication towers or antennas facilities that do not comply with this Chapter without Planning Commission review and approval except for repairs and routine maintenance.
(Ord. 73-00. Passed 1-2-01.)

1147.05 GENERAL AND DESIGN REQUIREMENTS.

(a) Wireless Communication Facilities are either permitted uses or conditional uses in a variety of zoning districts contingent on a number of requirements being met. Specifically such facilities are permitted uses in the zoning districts as so indicated in the following Sections of this Chapter and as found on the Official Zoning Map of the City. Said facilities shall be permitted uses in all other districts on any public or institutional property owned by the City, County, State of Ohio or School District subject to all other requirements of this Chapter.

(b) The following use regulations shall apply to all Wireless Communication Facilities services antennas and towers regardless of the zoning district in which they are to be located. The following requirements may be supplemented with specific regulations applicable to permitted and conditional uses or by specific regulations for nonresidential and residential districts as set forth in this Chapter:

(1) General requirements:

A. The maximum Tower or Antenna Height permitted within the City is two hundred (200) feet. The Director may waive this requirement depending on the requirements of the zoning district in which the facility is to be located and the surrounding environment of the location for the facility.

B. A Wireless Communication Facility tower or antenna as defined in this Chapter that is mounted to an existing communications tower (whether such communications tower is for personal communications services uses or not), smoke stack or water tower or other tall structure, shall be permitted uses in all zoning districts of the City of Dover. Wireless Communication Facilities antennas may also be located on the top of buildings, which are themselves no less than thirty-five (35) feet in height. Such facilities may be approved by the Director as an accessory use to any commercial, professional, office or institutional structure provided:

1. The Wireless Communication Facility is designed to be as unobtrusive as possible, and; Shall match or be compatible with, the structure on which it is located, and;

2. The Wireless Communication Facility does not extend more than twenty-five (25) feet above the highest point of the supporting structure, and;

3. The Wireless Communication Facility complies with all applicable FCC and FAA regulations, and;

4. The Wireless Communication Facility complies with all applicable building codes and any additional equipment or structure is fully screened and located in accordance with the underlying zoning district requirements.

5. Any Wireless Communication Facility and its appurtenances located on the roof of a building are to be set back one (1) foot from the edge of the roof of said building for each one (1) foot in height of the Wireless Communication Facility. However this setback requirement shall not apply to antennas less than two (2) inches in diameter, which are mounted to the sides of any antenna, support structures and which do not protrude more than six (6) inches from the side of such antenna support structure.

a. The setback mentioned in this Subsection does not apply to any Wireless Communication Facility that is located on an elevator penthouse of said building, provided, that such facility meets applicable FCC and FAA requirements.

C. Historic Structures/Downtown District: Any application to locate any Wireless Communication Facility, tower or antenna on a building or structure that is listed on a historic register, or is in a historic district or Downtown District, shall be subject to review by the City which shall review the aesthetic or architectural impact of the proposed facility location.

D. Wireless towers and antennas sites shall not be located in any single family or multifamily residential zoning district with the exception of public property, institutional property or open spaces as defined in this Chapter. In all cases such towers or antennas shall not be located any closer than the height of the tower plus one hundred (100) feet) to any single family or multifamily dwelling.

E. All other uses ancillary to the wireless tower or antenna including, but not limited to, business offices, maintenance depots, and material and vehicle storage are prohibited from the site.

F. The location of the tower and appurtenant structures shall comply with all natural resource protection standards established in the zoning district in which the tower is to be located, including any requirements for floodplains, wetlands and steep slopes.

G. City Use of Facilities: As a condition of approval of the Wireless Communication Facility, the City shall have the right to install and maintain, free of charge, upon any such Wireless Communications Facility appropriate antennas and receivers solely for government use for emergency services purposes, provided that such use and maintenance does not unreasonably interfere with the operation of such Wireless Communication Facilities.

Each Permittee shall cooperate with the City in the development of a facility use agreement for City use of such facilities to accommodate the City's reasonably disclosed requirements in this regard. Copies of such agreements hereunder shall be filed with the City.

(2) Design requirements:

A. All towers shall be of Monopole construction. Lattice towers and guyed towers are prohibited. The lattice or guyed tower restrictions may be waived by the Director with concurrence of the Planning Commission, if the proposed facility is compatible with the requirements of the zoning district in which said facility is to be located.

B. Towers shall maintain a galvanized steel finish, noncontrasting gray or similar color that will minimize its visibility. The City reserves the right to require that these towers be of an appropriate color so as to reduce visual obtrusiveness. If required by the FAA, towers may be painted pursuant to FAA or ODOT requirements.

C. All new and replacement wireless towers or antennas in the City shall be an approved design. If an antenna is installed on a structure other than a tower, the antenna and supporting electrical and mechanical equipment must be a neutral color that is identical to, or closely compatible with, the color of the supporting structure so as to make the antenna and its supporting equipment as unobtrusive as possible as determined by the Planning Commission.

D. License or Lease: In all cases a license or lease authorizing a wireless tower or antenna to be located on public property must be approved by the City Council.

E. Antennas mounted on utility poles or light poles: The equipment cabinet or structure associated with the Wireless Communication Facility shall be located according to the following:

1. The equipment cabinet or structure shall be designed to minimize its visual impact and shall be screened in accordance with the zoning requirements in the district in which it is located.

2. The maximum height of the equipment cabinet or structure will be in conformance with the zoning district in which said cabinet or structure is located.

F. Co-Location: As a condition of issuing a permit to construct and operate a tower in the City, the owner/operator of the tower is required to allow co-location until said tower has reached full antenna capacity, but in no event shall the tower be:

1. Able to accommodate fewer than one (1) additional antenna for one (1) additional provider.

2. Antenna towers are not permitted to be built to a height which exceeds the applicant's service need as substantiated by the testimony of a radio frequency engineer.

3. If the tower must be extended in the future to accommodate co-location, the initial tower foundation must be designed to support this co-location capacity, and the tower must be designed to accommodate this extension capability.

4. The antenna tower setback defined in subsection H., below must be based on the ultimate co-location tower height planned. This ultimate height must be specified on the drawings submitted. Tower height shall not be extended until co-locators are installed.

5. Agreement to this provision must be included in the lease by the landowner, if different from the owner/operator of the wireless tower or antenna. Written documentation must be presented to the Planning Commission evidencing that the landowner of the property on which the tower is to be located has agreed to the terms of this Section as well as the requirements, regulations and standards established in this Chapter.

6. As an additional condition of issuing the permit to construct and operate the wireless tower or antenna in the City, the owner/operator of the tower is required to sign a statement that all disputes with future providers concerning co-location and the terms and conditions of co-location shall be submitted to commercial arbitration under a system selected by the parties but if the parties are unable to agree, then under the auspices of the Commercial Arbitration Provisions of the American Arbitration Association.

7. Public Property First: To encourage the locations of wireless telecommunications facilities on publicly owned property, the City shall undertake the review and identification of such properties that the City determines are suitable for such use. The City shall regularly update such information and make it available to the public.

a. Persons locating Wireless Communication Facilities upon such identified publicly owned properties shall be exempt from requirements stated herein regarding presentation of proof that facilities owned by other persons or in other locations is not available, provided however persons locating such facilities on publicly owned property shall remain subject to the provision that any such facility must be capable of supporting at least one (1) additional wireless facility owned by other persons.

b. In addition, person locating Wireless Communication Facilities on publicly owned property identified by the City for such uses, shall be exempt from the requirements for written documentation from property owners as specified in subsection (b)(2)F.5. above.

G. Separation: There shall be a separation of at least one quarter (1/4) mile between new antenna towers. The Director or designee may waive this requirement for the purposes of clustering of towers and placement of towers on electric high-tension towers or if the tower being considered for co-location is not capable of supporting additional antennas.

H. Setbacks and Lot Area: Wireless Communication Facilities shall meet the minimum yard setback requirements as set forth in the Zoning Code for the Zoning District in which the antenna and/or tower is proposed to be located. The lot on which the facility is located shall meet all lot area requirements for that Zoning District and as defined by this Chapter. Setback distances shall be measured from the property line on which the Wireless Communication Facility is located to the closest point on the perimeter of the antenna tower, excluding guy wires and other similar miscellaneous stabilizers.

I. Service Equipment: All cable, conduit, piping, equipment and miscellaneous devices serving wireless telecommunication facilities shall be either buried or concealed within the structures involved, except when otherwise required by the Ohio Basic Building Code and the National Electric Code.

J. Accessory Structures: All principal structures, accessory structures, buildings, shelters and equipment enclosures, together with supporting development including, but not limited to, fence enclosures, driveways, gates and miscellaneous pavement serving and supporting the operation of the antenna tower(s) and antenna(s) shall meet the following requirements:

1. Compatibility: All development including, but not limited to, buildings, shelters, enclosures, driveways, gates and miscellaneous pavement shall meet the zoning standards of the underlying zone and be shall be consistent with the Codified Ordinances of the City of Dover.

2. Underground equipment shelters will be required where appropriate screening of such shelters cannot be accomplished.

K. Storage: Outdoor storage of any supplies, vehicles or equipment related to the use of the facility is prohibited unless it is permitted in the zoning district in which the Wireless Communication Facility is to be located.

L. Fences: Fencing should be appropriate for the area in which the tower or antenna is to be located and compatible with the surrounding environment and the applicable City codes. No impact facilities are not subject to this requirement. Use of barbwire is permitted if compatible with the applicable zoning requirements and surrounding land uses where the Wireless Communication Facility is to be located. Use of razor wire as part of any fencing is prohibited. The City reserves the right to require specific fencing in any visibility sensitive areas.

M. Landscape: A landscaped buffer area compatible with the surrounding environment and the zoning district in which the facility is to be located shall be provided. If the tower or antenna is to be located in close proximity to a residential district, the Director may require landscaping consistent with that adjacent area. Such landscaping may include, but not be limited to: (1) A landscape buffer of not less than ten (10) feet in depth shall be placed between the wireless tower or antenna and the public rights-of-way, residential zoning districts, and any adjacent residential uses when the wireless facility is ground based. (2) The ten (10) foot landscape buffer shall consist of a tight screen fence of hardy evergreen shrubbery not less than six (6) feet in height. The landscaping shall be continuously maintained and any dead material shall be promptly removed and replaced with living material of the same species. Additional landscaping buffers may be required by the Director to meet the goals of the City and to be consistent with the surrounding area. No impact facilities and rooftop facilities are not subject to this requirement.

N. Illumination: Except as required by law, a wireless tower or antenna shall not be illuminated and lighting fixtures or signs shall not be attached to the antenna or tower. If lighting is required by FAA regulations, white strobe lights shall not be permitted at night unless the FAA permits no other alternative. If lighting is required, the lighting alternatives and design chosen must cause the least disturbance to the surrounding view. Lighting for security purposes shall be permitted at the Wireless Communication Facility with prior approval of the Director.

O. Advertising/Signs: No advertising or signs shall be permitted on any Wireless Communication Facility.

P. Security: No Trespassing signs shall be posted around the Wireless Communication Facility with a telephone number of a person to contact in the event of an emergency.

Q. Certification: Towers and antennas shall be designed and sealed by a registered professional engineer in accordance with the provisions of the Ohio Basic Building Code and the National Electric Code.

R. Building Codes; Safety Standards: The owner of a Wireless Communication Facility as defined in this Chapter shall ensure that said facility is maintained in compliance with standards contained in all applicable state or local building codes and the applicable standards for such facilities published by the Electronic Industry Association as now exist or may hereafter be amended. If, upon inspection, the City determines that the facility fails to comply with any such codes or standards and constitutes a danger to persons or property, then upon written notice being provided to the owner of the facility, said owner shall have thirty (30) days to bring said facility into compliance with such codes and standards. Failure to bring said facility into compliance within the said thirty (30) days shall constitute grounds for the removal of the facility at the owner’s expense.

S. License to Operate: Owners and operators of Wireless Communication Facilities shall submit copies of all franchises, certifications, licenses, and permits required by law for the design, construction, location and operation of Wireless Communication Facilities within the City. Owners and operators shall be required to maintain same and to provide evidence of renewal or extension thereof when requested by the City.

(Ord. 73-00. Passed 1-2-01.)

1147.06 PURPOSE.

(a) Permitted Use Locations: Any location or zoning districts designated in this Chapter as a permitted use location, a no impact antenna facility as defined in the Chapter and all such facilities proposed to be on public property shall be principally permitted locations for Wireless Communication Facilities when such uses are undertaken in accordance with the provisions of this Chapter.

(b) Conditional Use Locations: Wireless Communication Facilities shall be a conditional use in any of the locations so designated in this Chapter and on the Official Zoning Map of the City when such use is implemented in accordance with the provisions of this Chapter.
(Ord. 73-00. Passed 1-2-01.)

1147.07 APPROVAL PROCEDURE FOR PERMITTED USE.

(a) General permitted locations and uses identified in this Chapter and on the Official Zoning Map of the City shall not require the approval of the City Council except where the tower height exceeds the height restrictions for the zoning district in which it is located or is to be located. If the tower height exceeds that permitted in the zoning district in which it is to be located it shall be considered a conditional use as defined in this Chapter.

(b) All proposed Wireless Communication Facilities must meet the design standards as set out in Section 1147.05(b)(2).

(d) When a Wireless Communication Facility is a permitted use and City Council has waived its review authority pursuant to this Chapter, the Director shall approve the final tower design, the final design of an accessory building, shelters and enclosures for compliance with this Chapter prior to the issuance of a permit. The Director may require additional plans, design modifications, material specification changes and impose conditions of approval that are deemed necessary to ensure compatibility of the tower and any accessory buildings with the surrounding area.
(Ord. 73-00. Passed 1-2-01.)

1147.08 APPROVAL PROCEDURES FOR CONDITIONAL USES.

(a) In accordance with the provisions of this Chapter, conditional use approval for all Wireless Communication Facilities shall be required for all locations so designated in this Chapter and on the Official Zoning Map of the City. Co-location of antennas on a single tower, antennas attached to existing structures or buildings, towers located in Industrial Districts or replacement towers to be constructed at the site of a current tower are permitted uses and shall not be subject to the conditional use permitting process.

(1) The applicant shall demonstrate that the tower must be located where it is proposed in order to service the applicant’s service area.

(2) If the tower is located on property with another principal use, the applicant shall present documentation that the owner of the property supports the application and that vehicular access, if provided to the facility, does not interfere with the principal parking or vehicular traffic on the site.

(3) The applicant shall present a site/landscaping plan showing the specific location of the facility on the site, location of existing trees and other significant site features and indicating the type and location of plant materials used to screen the facility and the proposed color of the facility.

(4) The applicant must present a signed statement stating that the applicant agrees to allow for the potential co-location of additional Wireless Communication Facilities by other providers on the applicant’s structure or within the same site location.

(b) Planning Commission Review: A Wireless Telecommunication Facility shall not be constructed or erected except upon issuance of a permit by the City after approval by the Planning Commission. The Planning Commission shall conduct a public hearing with advanced notice of said hearing published in a newspaper of general circulation in the City. The applicant shall notify, by certified mail, all property owners within a distance equal to four (4) times the proposed tower height, rounded to the nearest ten (10) foot increment, from any part of the subject property on which the tower is to be located. A dimension of five (5) feet shall be rounded up to the next ten (10) foot increment. The foregoing requirement of public notice and hearing may be waived by the Director for the construction of a new antenna on an existing structure which application does not require the construction of a new tower or associated facilities.

(1) In granting conditional use approval, the Planning Commission may impose conditions to the extent the Commission concludes that such conditions are necessary to minimize any adverse effect of the proposed tower or antenna on adjoining properties.

(2) Any information of an engineering nature that the applicant submits, whether civil, mechanical or electrical, shall be certified by an Ohio licensed professional engineer.

(3) An applicant for a conditional use shall submit the information described in this Section and a non-refundable fee as established by the City to reimburse the City for the costs of reviewing and providing legal notice for the application.

(c) City Council Review: Approval of the permit by the Planning Commission will become effective only following a review and public hearing by the City Council. The requirement of a public hearing before City Council may be waived by the Director if either:

(1) The application is for co-location on an existing antenna tower or

(2) The application is for location on an existing building and is otherwise implemented in accordance with the provisions of this Chapter.

(d) Notification: The applicant shall notify all of the owners of the location proposed for the tower and all owners of land within the area described and in the manner described in Section 1147.08(b) of the time and place of the public meeting at which such application will be considered.

(e) Any decision to deny a request to place, construct or modify a Wireless Communication Facility and/or tower shall be in writing and supported by evidence contained in a written record of the Planning Commission.
(Ord. 73-00. Passed 1-2-01.)

1147.09 SUBMITTAL REQUIREMENTS.

Permit applicants for Wireless Communication Facilities shall submit the information in accordance with the following requirements:

(a) Survey of Existing Conditions: A survey of the property to be leased to or otherwise under the control of the applicant or operator shall be prepared by a surveyor licensed to practice in the State of Ohio. This survey shall indicate all observable physical features on the site and on property abutting the site, ownership of the property and of all property abutting the site, underground and overhead utilities, easements, deed restrictions, property line bearing and distances. Topography at two (2) foot intervals shall be shown for the entire property or within at least one hundred fifty (150) foot radius of the tower, whichever is less. Spot elevations may be used when contour intervals are impractical.

(b) Legal Description: Legal description of the parent tract and leased parcel if applicable.

(c) Site Development Proposal: A scaled site plan and specifications of no less than one inch equals one hundred (100) feet shall be submitted clearly indicating the location of all new and existing underground and overhead facilities. The plan shall indicate all land uses and buildings that are within two hundred (200) feet of the proposed facility. This shall include, but not be limited to, the proposed tower, antenna and associated buildings, uses and structures on the same and adjacent properties, underground and overhead utilities, and exterior lighting.

Adjacent roadways, proposed means of access, parking and other information deemed necessary by the Planning Commission for a review of the application shall also be shown. Setback dimensions shall show the distance between each property line and the closest point on the perimeter of the tower structure, excluding guy wires and other similar miscellaneous stabilizers whose collapse would not endanger surrounding property.

(d) Grading and Landscaping Plan: A proposed site grading and landscape plan showing specific landscape materials and species proposed. Land contours shall be shown at two-foot intervals and the surface drainage concept shall be indicated for the entire property, or within at least a one hundred and fifty (150) foot radius of the tower, whichever is less. Spot elevations may be substituted where contour elevations are impractical. All appurtenances shall be aesthetically and architecturally compatible with the surrounding environment.

(e) Antenna and Towers: Plans, elevation drawings and material specifications for all proposed Antenna tower and antenna.

(f) Buildings: Building plans, elevation drawings and material specifications for all proposed buildings, structures, fences, walls and gates.

(g) Fence Plan: Shall include a plan and elevations drawn to scale together with a material specification for all security enclosures. Use of barbwire is permitted if compatible with the applicable zoning requirements and surrounding land uses where the Wireless Communication Facility is to be located. Use of razor wire as part of any fencing is prohibited. The City and co-locators shall have reasonable access. No fence shall be required on the top of a building or other structure if access to the roof or top of said structure is secure. The City reserves the right to require specific fencing in any visually sensitive areas.

(h) Certification of Compliance: A written certification from the owner or operator of the Wireless Communication Facility that said facility is in compliance with all applicable federal, state, county and local laws including FCC regulations for non-ionizing electromagnetic radiation (NIER).

(i) Co-Location Statement: A notarized statement by a registered professional engineer hired by the applicant that verifies that construction of the tower will accommodate co-location of additional antennas for future use and also states the ultimate height needed for the co-location capacity required.

(j) Lease Agreement: For all facilities to be located on City owned or any public property, a copy of the proposed antenna tower site lease agreement including all easements and access rights.

(k) Inventory:

(1) List of Applicant Locations: Each applicant for an antenna and/or tower shall provide to the Planning Commission an inventory of its existing towers, antennas, or sites approved for towers or antennas, that are within the jurisdiction of the City or within two (2) miles of the border thereof, including specific information about the location, height, and design of each tower.

(2) Specification of Backhaul Providers: Identification of the entities providing the backhaul network for the tower(s) or antenna(s) described in the application and other Wireless Communication Facility sites owned or operated by the applicant within the City.

(l) Justification: A description of the suitability of the use of existing towers, other structures or technology not requiring the use of the proposed new tower. New towers shall be approved only when other preferable alternatives are not available. The applicant must demonstrate to the reasonable satisfaction of the Director that no existing tower, structure or other alternative is available to fulfill the communication requirements. Such evidence may include, but not be limited to, the following:

(1) Existing facilities not available. A demonstration that a technically suitable location is not reasonably available on an existing tower, building or structure, or;

(2) Existing towers or structures do not have sufficient height to meet applicant’s engineering requirements, or have insufficient structural strength to support applicant’s proposed antenna and related equipment, or;

(3) The applicant’s proposed antenna would cause frequency interference with the antenna on the existing tower or structures, or the antenna on the existing towers or structures would cause interference with the applicant’s proposed antenna, or;

(4) The fees, costs, or contractual provisions required by the owner of the existing structure in order to share the existing tower or structure are unreasonable. Costs exceeding new tower development are presumed to be unreasonable, or;

(5) Co-location rejected. If another tower is technically suitable the applicant must show that the applicant has made a written offer to allow the owner to co-locate an antenna on another property within the City owned by the applicant on reciprocal terms and the offer was not accepted.

(m) Radio Frequency (RF) Engineer Testimony: Testimony shall be made by a radio frequency engineer at all required public hearings and he/she shall attest to the engineering need for the tower height regulated.
(Ord. 73-00. Passed 1-2-01.)

1147.10 REQUIREMENTS FOR RESTRICTED MANUFACTURING (M-1) AND GENERAL MANUFACTURING (M-2).

Wireless Communication Facilities are permitted uses in all Industrial Districts of the City indicated as: Restricted Manufacturing (M-1) and General Manufacturing (M-2) on the Official Zoning Map of the City. The Wireless Communication Facility shall meet all requirements of the applicable Code for the district in which it is located and in addition shall meet the following requirements:

(a) Combined with another use or existing structure or building: A Wireless Communication Facility is permitted on property with an existing use or on an existing structure or building subject to the following:

(1) Existing; future use: The existing use, future use at the location can be any permitted use and need not be affiliated with the wireless communications provider. The Wireless Communication Facility will not be considered as an addition to the existing structure or an addition to the value of a nonconforming facility.

(2) Minimum setback requirements: The setback requirement for the Wireless Communication Facilities, which include a tower to support, shall be the height of the tower or antenna proposed. Such setback shall apply to all elements of the Wireless Communication Facility including equipment shelters and other above ground appurtenances. The Director may consider reduced setbacks when the Wireless Communication Facility abuts similarly zoned property.

(3) Maximum height when the wireless communication facility is to be attached to an existing structure or building: No portion of any Wireless Communication Facility shall extend more than twenty-five (25) feet above that portion of the building or structure on which it is located.

(4) Maximum tower height: The maximum tower height is two hundred (200) feet. The Director may waive this requirement if the height of the proposed tower is compatible with the zoning of the district in which the tower is to be located and meets FAA requirements.

(5) Equipment shelters: Any equipment shelter associated with a Wireless Communication Facility not located within an existing building shall be effectively screened in accordance with the zoning requirements of the district in which it is located and conform to the minimum lot size and setback for the zoning district in which it is to be located.

(6) Maximum size of equipment shelter: Four hundred (400) square feet for a single equipment shelter, or, if there is more than one equipment shelter, eight hundred (800) square feet.

(7) Access: Service access to the facility shall, whenever feasible, be provided along the existing driveways and shall not interfere with the principal parking or vehicular traffic on the site

(8) Automation: The Wireless Communication Facility shall be fully automated and unattended on a daily basis, and shall be visited only for periodic and necessary maintenance except during periods of construction or during and emergency.

(9) Fencing and landscaping: Fencing and landscaping will be in accordance with this Chapter and any zoning requirements of the district in which the facilities are to be located.

(b) Sole Use on a Lot: A Wireless Communication Facility is permitted as a sole use on a lot subject to the following requirements:

(1) Maximum tower height: The maximum tower height is two hundred (200) feet. The Director may revise this requirement if the height of the proposed tower is compatible with the zoning of the district in which the tower is to be located and meets FAA requirements.

(2) Setback: The Wireless Communication Facility shall be set back a minimum distance of the height of the proposed Wireless Communication Facility from any R-1, R-2, R-3, R-4 and R-5 Residential District lot line as shown on the Official Zoning Map of the City. Such setback requirements shall also apply to all elements of the Wireless Communication Facility including equipment shelters and other ground appurtenances.

(3) Maximum size of equipment shelter: Four hundred (400) square feet for a single equipment shelter, or, if there is more than one equipment shelter, eight hundred (800) square feet.

(4) Access: Service access to the facility shall, whenever feasible, be provided along the existing driveways and shall not interfere with the principal parking or vehicular traffic on the site.

(5) Automation: The Wireless Communication Facility shall be fully automated and unattended on a daily basis, and shall be visited only for periodic and necessary maintenance except during periods of construction or during an emergency.

(6) Fencing and landscaping: Fencing and landscaping will be in accordance with this Chapter and any zoning requirements of the district in which the facilities are to be located.
(Ord. 73-00. Passed 1-2-01.)

1147.11 REQUIREMENTS FOR FACILITIES LOCATED IN AN OPEN SPACE, ATHLETIC FIELD OR PARKS INDICATED AS SPECIAL S-1.

A Wireless Communication Facility is permitted on land that has been established as permanent open space, athletic field or a park subject to the following requirements:

(a) The open space, athletic field or park shall be owned by the municipality, county or State government; a homeowners association; a charitable organization; or a private, nonprofit conservation organization

(b) Maximum tower height: two hundred (200) feet including the antenna.

(c) Equipment Shelter: the maximum size of the equipment shelter shall not exceed four hundred (400) square feet, or if there is more than one equipment shelter, eight hundred (800) square feet.

(d) Minimum Setback: the tower shall be set back from any residential zoning district lot line the height of the tower plus one hundred (100) feet. Such setback requirements shall also apply to all elements of the Wireless Communication Facility including equipment shelters and other ground appurtenances.

(e) Access: Service access to the facility shall, whenever feasible, be provided along the existing driveways and shall not interfere with the principal parking or vehicular traffic on the site.

(f) The Wireless Communication Facility shall be fully automated and unattended on a daily basis, and shall be visited only for periodic and necessary maintenance except during periods of construction or during an emergency.

(g) Fencing and landscaping will be in accordance with this Chapter and any zoning requirements of the district in which the facilities are to be located.

(Ord. 73-00. Passed 1-2-01.)

1147.12 REQUIREMENTS FOR PUBLIC PROPERTY INDICATED AS SPECIAL (S-1).

Wireless Communication Facilities are permitted uses in all Public Property. The Director shall review all such requests with consideration given to the public health, welfare and safety of the citizens of Dover. Said Wireless Communication Facility shall meet all requirements of this Chapter and the applicable Code for the zoning district in which they are to be located. In addition the Wireless Communication Facility shall meet all of the following requirements:

(a) Ownership: The property shall be owned by the municipality as defined in Section 1147.03 of this Chapter.

(b) Minimum Setback Requirements: The tower or antenna shall be located no closer than the height of the tower plus one hundred (100) feet to a single family or multifamily residence. Such setback shall apply to all elements of the Wireless Communication Facility including equipment shelters and other above ground appurtenances.

(c) Equipment Shelter: The maximum size of the equipment shelter shall not exceed four hundred (400) square feet, or if there is more than one equipment shelter, eight hundred (800) square feet.

(d) Access: Vehicular access to the equipment shelter shall not interfere with the parking or traffic pattern for the principal site.

(e) Automation: The Wireless Communication Facility shall be fully automated and unattended on a daily basis, and shall be visited only for periodic and necessary maintenance except in the case of an emergency.

(f) Attachment to Existing Structures: The following requirements shall apply if the Wireless Communication Facility is attached to an existing structure or building:

(1) Maximum height: No portion of any Wireless Communication Facility shall extend more than twenty-five (25) feet above that portion of the building or structure on which it is located.

(2) Equipment shelters: Any equipment shelter associated with a Wireless Communication Facility not located within an existing building shall be effectively screened in accordance with the zoning requirements of the district in which it is located.

(g) Public Property: Applicants proposing to locate Wireless Communication Facilities on Public Property as defined in this Chapter are exempt for certain co-location requirements as set forth in Section 1147.05(b)(2)F.7.a. and b.

(h) Fencing and Landscaping: Fencing and landscaping will be in accordance with this Chapter and any zoning requirements of the district in which the facilities are to be located.

(i) S-1 District: Wireless Communication Facilities are not permitted to be located in any Special S-1 zoning area indicated as a Cemetery on the Official Zoning Map of the City of Dover.
(Ord. 73-00. Passed 1-2-01.)

1147.13 REQUIREMENTS FOR LOCAL OR COMMUNITY SHOPPING CENTERS (B-1), HIGHWAY OR GENERAL COMMERCIAL (B-2) AND CENTRAL BUSINESS (B-3).

Wireless Communication Facilities are conditional uses within all (B-1) Local or Community Shopping Centers and (B-2) Highway or General (B-3) and Central Business (B-3) zoning districts as shown on the Official Zoning Map of the City. The Wireless Communication Facility shall meet all requirements this Chapter and the applicable Code for the district in which it is located and in addition shall meet all of the following requirements:

(a) Maximum Tower Height: If the antenna or tower is to be located in any commercial zoning district, it shall be a conditional use and the maximum height of the tower shall not exceed one hundred and fifty (150) feet. However, antennas that are attached to existing buildings or structures that are permitted uses in the zoning district may be allowed as a permitted use as stated in subsection (f) below. Such facilities may be enclosed within an existing tower structure or building or may be located on other existing structures such as flagpoles or utility poles. Exceptions are placement on any property having an institutional use (such as a: church, park, library, municipal/government, hospital, school or utility) in which case the maximum tower height shall not exceed one hundred and fifty (150) feet.

(b) Minimum Setback Requirements: The setback requirement for the Wireless Communication Facilities, which include a tower to support the antenna, is the height of the tower or antenna proposed. Such setback shall apply to all elements of the Wireless Communication Facility including equipment shelters and other above ground appurtenances. The City may consider reduced setbacks when the Wireless Communication Facility abuts similarly zoned property.

(c) Equipment Shelter: the maximum size of the equipment shelter shall not exceed four hundred (400) square feet, or if there is more than one equipment shelter, eight hundred (800) square feet.

(d) Access: Vehicular access to the equipment shelter shall not interfere with the parking or traffic pattern for the principal site.

(f) Located on an Existing Building or Structure: Antennas are permitted uses when attached to existing buildings or structures that are permitted uses in the zoning district in which the antenna is to be located. The following requirements shall apply if the Wireless Communication Facility is attached to an existing structure or building:

(1) Maximum height: No portion of any Wireless Communication Facility shall extend more than twenty-five (25) feet above that portion of the building or structure on which it is located.

(g) Fencing and landscaping: Fencing and landscaping will be in accordance with this Chapter and any zoning requirements of the district in which the facilities are to be located.
(Ord. 73-00. Passed 1-2-01.)

1147.14 REQUIREMENTS FOR SUBURBAN RESIDENTIAL DISTRICTS (R-1), LOW DENSITY RESIDENTIAL (R-2), MEDIUM DENSITY RESIDENTIAL (R-3), HIGH DENSITY RESIDENTIAL (R-4), OR MANUFACTURED HOUSING RESIDENTIAL (R-5).

Wireless Communication Facilities that include towers are not permitted in any R-1, R-2, R-3, R-4 or R-5 Residential Districts as shown on the Official Zoning Map of the City with the exception of placement on any property having an institutional use (such as a: church, park, library, municipal/government, school or utility. Any facilities to be located within the Health Care Services District (H-1) are subject to Section 1147.15 of this Chapter). However, antennas that are attached to existing buildings or structures that are permitted uses in the zoning district may be allowed as a permitted use. In applying for a permit for a Wireless Communication Facility in any residential district, the applicant must present substantial evidence demonstrating why is not technically feasible to locate said facility in a more appropriate non-residential zone. Once these efforts have been exhausted, the Wireless Communication Facility may be located in a residential district subject to the following conditions:

(a) Conditional Use Approval: The applicant shall comply with all the requirements of this Chapter regarding such conditional use approval including requirements set forth in Section 1147.05, Section 1147.08 and Section 1147.09 of this Chapter.

(b) Automation: The Wireless Communication Facility shall be fully automated and unattended on a daily basis, and shall be visited only for periodic and necessary maintenance except in emergency situations.

(c) Access: Vehicular access to the site and equipment shelter shall not interfere with the existing parking or the traffic pattern of the principal use of the site.

(d) Antenna- Combined with a Nonresidential Use: An antenna may be attached to a nonresidential building or structure that is a permitted use in the zoning district in which the facility is to be located. Such buildings or structures include, but are not limited to, churches, a municipal or governmental building or facility, agricultural building and a building or structure owned by a utility. The following conditions shall be met:

(1) Maximum height: The antenna shall not extend more than twenty-five (25) feet above the existing building or structure.

(2) Equipment shelter: If the applicant proposes to locate the telecommunications equipment in a separate equipment shelter, the equipment shelter shall comply with all of the zoning requirements of the zoning district in which it is to be located and meet the following requirements:

A. The separate equipment shelter shall comply with the minimum setback requirements of the zoning district.

B. The maximum size of the separate equipment shelter shall not exceed four hundred (400) square feet, or, if there is more than one separate equipment shelter, eight hundred (800) total square feet.

C. An appropriate buffer yard or planting may be required as set forth in Section 1147.05 of this Chapter.

(e) Tower located on a Nonresidential-Use Property: A Wireless Communication Facility tower to support an antenna may be located on a property with a nonresidential use when such property is a permitted use within the zoning district under consideration. Such property shall include, but not be limited to; churches, schools, municipal or governmental buildings, facility or structures, agricultural use and utility use. The following conditions shall apply:

(1) Maximum height: The tower shall not exceed one hundred fifty (150) feet in height including the antenna.

(2) Setback: The tower shall be set back from any residential property line that abuts a R-1, R-2, R-3, R-4 or R-5 residential lot by the height of the tower plus one hundred (100) feet.

(3) Conditional Use Approval: The applicant shall comply with all the requirements of this Chapter regarding such conditional use approval including requirements set forth in Section 1147.05, Section 1147.08 and Section 1147.09 of this Chapter.

(4) Automation: The Wireless Communication Facility shall be fully automated and unattended on a daily basis, and shall be visited only for periodic and necessary maintenance except in emergency situations.

(5) Access: Vehicular access to the site and equipment shelter shall not interfere with the existing parking or the traffic pattern of the principal use of the site.

(6) Equipment shelter: If the applicant proposes to locate the telecommunications equipment in a separate equipment shelter, the equipment shelter shall comply with all of the zoning requirements of the zoning district in which it is to be located and meet the following requirements:

A. The separate equipment shelter shall comply with the minimum setback requirements of the zoning district.

B. The maximum size of the separate equipment shelter shall not exceed four hundred (400) square feet, or, if there is more than one separate equipment shelter, eight hundred (800) total square feet.

C. An appropriate buffer yard or planting may be required as set forth in Section 1147.05 of this Chapter.

(f) Antenna Located on a Residential Building: An antenna for a Wireless Communication Facility may be attached to a mid or high-rise apartment building that is permitted in the zoning district subject to the following conditions:

(1) The maximum height of the antenna will not extend more than twenty- five (25) feet above the existing building.

(2) Access: Vehicular access to the site and equipment shelter shall not interfere with the existing parking or the traffic pattern of the principal use of the site.

(3) Equipment shelter: If the applicant proposes to locate the telecommunications equipment in a separate equipment shelter, the equipment shelter shall comply with all of the zoning requirements of the zoning district in which it is to be located and meet the following requirements:

A. The separate equipment shelter shall comply with the minimum setback requirements of the zoning district.

B. The maximum size of the separate equipment shelter shall not exceed four hundred (400) square feet, or, if there is more than one separate equipment shelter, eight hundred (800) total square feet.

C. An appropriate buffer yard or planting may be required as set forth in Section 1147.05 of this Chapter.

(g) Tower located in an Open Space, Athletic Field or Park: A Wireless Communication Facility tower is permitted on land designated as Open Space, Athletic Field or Park within a residential district in accordance with the provisions in Section 1147.11.

(h) Fencing and Landscaping: Fencing and landscaping will be in accordance with this Chapter and any zoning requirements of the district in which the facilities are to be located.
(Ord. 73-00. Passed 1-2-01.)

1147.15 REQUIREMENTS FOR HEALTH CARE SERVICES DISTRICT (H-1).

Wireless Communication Facilities that are proposed to be located within the Health Care Services District are a permitted use provided that the following conditions are complied with:

(a) The applicant shall provide the City with a signed and notarized statement from a Registered Professional Engineer that the Wireless Communication Facility that is proposed to be located on any property within the Health Care Service District within the City of Dover will not cause undue interference with any life saving medical care devices that are to be used now or in the future within any medical care facility. Any such Wireless Communication Facilities that are shown to cause such interference will be forthwith removed from the Health Services District location at the operator’s expense.

(b) Facility located on a Health Services District H-1 Property: A Wireless Communication Facility tower to support an antenna may be located on a H-1 property with a nonresidential use when such property is a permitted use within the zoning district under consideration. The following conditions shall apply:

(1) Maximum height: The tower shall not exceed one hundred fifty (150) feet in height including the antenna.

(2) Setback: The tower shall be set back from any residential property line that abuts a R-1, R-2, R-3, R-4 or R-5 residential lot by the height of the tower plus one hundred (100) feet.

(3) Automation: The Wireless Communication Facility shall be fully automated and unattended on a daily basis, and shall be visited only for periodic and necessary maintenance except in emergency situations.

(4) Access: Vehicular access to the site and equipment shelter shall not interfere with the existing parking or the traffic pattern of the principal use of the site.

(5) Equipment shelter: If the applicant proposes to locate the telecommunications equipment in a separate equipment shelter, the equipment shelter shall comply with all of the zoning requirements of the zoning district in which it is to be located and meet the following requirements:

A. The separate equipment shelter shall comply with the minimum setback requirements of the zoning district.

B. The maximum size of the separate equipment shelter shall not exceed four hundred (400) square feet, or, if there is more than one separate equipment shelter, eight hundred (800) total square feet.

C. An appropriate buffer yard or planting may be required as set forth in Section 1147.05 of this Chapter.

(c) Antenna located on a Health Services District Building: An antenna for a Wireless Communication Facility may be attached to a building that is permitted in the zoning district subject to the following conditions:

(1) Maximum height: The maximum height of the antenna will not extend more than twenty-five (25) feet above the existing building.

(2) Access: Vehicular access to the site and equipment shelter shall not interfere with the existing parking or the traffic pattern of the principal use of the site.

A. The separate equipment shelter shall comply with the minimum setback requirements of the zoning district.

B. The maximum size of the separate equipment shelter shall not exceed four hundred (400) square feet, or, if there is more than one separate equipment shelter, eight hundred (800) total square feet.

C. An appropriate buffer yard or planting may be required as set forth in Section 1147.05 of this Chapter.

(4) Fencing and landscaping will be in accordance with this Chapter and any zoning requirements of the district in which the facilities are to be located.
(Ord. 73-00. Passed 1-2-01.)

1147.16 CERTIFICATION OF REGISTERED PROFESSION ENGINEER.

Prior to action by the City specified in this Chapter, the City may require a review/report by an independent registered professional engineer engaged by the City and paid for by the applicant pursuant to its reimbursement of City expenses pursuant to this Chapter. Among other things, the engineer may review and recommend changes to the written certification of the applicant's engineer filed pursuant to this Chapter, may review and recommend changes to the applicant’s propagation studies showing the necessity for the location of the tower, and may review and recommend changes to the structural integrity, electrical integrity and electrical safety of the Wireless Communication Facility in its projected uses so as to assure the protection of the health, safety and welfare of the citizens of the City.

(Ord. 73-00. Passed 1-2-01.)

1147.17 REIMBURSEMENT OF EXPENSES.

The applicant shall be responsible for all expenses incurred by the City for any technical engineering services deemed necessary by City Council, the City Attorney, and the Planning Commission and the Director to perform the reviews required by this Chapter.

(Ord. 73-00. Passed 1-2-01.)

1147.18 DENIAL OF REQUEST.

(a) Any decision to deny a request to place, construct or modify a wireless tower or antenna shall be in writing and supported by substantial evidence contained in a written record of the proceedings of the Planning Commission, Director and City Council, if applicable.

(b) If a location request is denied pursuant to this Section, the applicant shall be entitled to file an appeal in accordance with the existing appeal procedures for the City that are hereby incorporated by reference into this Chapter.
(Ord. 73-00. Passed 1-2-01.)

1147.19 PERMIT.

A Wireless Communication Facility may not be constructed or erected except where located in compliance with this Chapter. The Director Commission, or a designee, shall authorize the issuance of permits required by the Chapter and shall collect the fees therefore.

(Ord. 73-00. Passed 1-2-01.)

1147.20 TIME LIMITATION FOR BEGINNING OF CONSTRUCTION.

After issuance of a permit to construct a wireless tower or antenna, the permit holder shall begin construction within one hundred-eighty (180) days and shall complete construction within three hundred sixty (360) days or the permit and approval shall expire. In the case of Public Property, the Director, or a designee, shall require the permit holder and site owner to certify that if construction is not commenced within one hundred-eighty (180) days or completed within three hundred sixty (360) days that the site shall be available for another Wireless Communication Facility; provided, however, that should such delay in beginning or completing construction be due to force majeure, the delayed party shall take all necessary and reasonable steps to overcome the force majeure and shall keep the City advised of the reason for the delay and the steps being taken to reduce the delay. If the delay is due to force majeure, the City and the delayed party shall agree to a new construction date which new date shall then be subject to the time limits as stated in this Section.
(Ord. 73-00. Passed 1-2-01.)

1147.21 STATE OR FEDERAL REQUIREMENTS.

All towers/antennas must meet or exceed current standards and regulations of the FAA, the FCC, and any other agency of the state or federal government with the authority to regulate towers and antennas. If such standards and regulations are changed, then the owners of the towers and antennas governed by this Chapter shall so notify the City and shall bring such facilities into compliance with such revised standards and regulations within ninety (90) days of the effective date of such standards and regulations, unless a different compliance schedule is mandated by the controlling state, county or federal agency. Failure to bring such towers and antennas into compliance with said revised standards and regulations shall constitute grounds for the removal of the tower or antenna at the owner or operator’s expense.

(Ord. 73-00. Passed 1-2-01.)

1147.22 ABANDONMENT OF TOWER.

All providers utilizing wireless towers or antennas shall present a report to the Director, or a designee, notifying them of any wireless tower or antenna located in the City whose use will be discontinued and the date this use will cease. If at any time the use of said facility is discontinued for one hundred-eighty (180) days, the Director may declare the facility abandoned (excluding any dormancy period between construction and the initial use of the facility). The facility’s owner/operator will receive written notice from the City or its designee and be instructed to either reactivate the facility’s use within one hundred-eighty (180) days, or dismantle or remove the facility. In the case of a multi-use tower, this provision shall not become effective until all of the users cease to use the tower. However, the City may cause the abandoned portions of the systems on the multi-use tower to be removed in accordance with this Section.

(a) Removal: The owner or operator shall agree to remove a nonfunctioning facility within one hundred-eighty (180) days of ceasing its use and return the site to its pre-exiting condition.

(b) Notice Requirements: The City must provide the tower or antenna owner or operator ninety (90) days notice and an opportunity to be heard before the Planning Commission before the City can initiate removal of the facility. After such notice the City shall have the authority to initiate proceedings either to acquire the tower and any appurtenances attached thereto at the then fair market value, or in the alternative, to order the demolition of said tower and all appurtenances.

(c) Public Hearing: The City shall provide the tower owner with the right to a public hearing before the Planning Commission which public hearing shall follow the ninety (90) days notice required in subsection (b) hereof. All interested parties shall be allowed an opportunity to be heard at the public hearing.

(d) Acquisition/ Removal of Tower: After a public hearing is held pursuant to subsection (c) hereof, the Planning Commission may order the acquisition or demolition of the tower. The City shall also exercise its rights related to any bonding requirements stated in subsection (e) hereof.

(e) Bond: The owner or operator shall be required as a condition of issuance of a permit to post a cash or surety bond acceptable to the City Attorney of not less than one hundred dollars ($100.00) per vertical foot from natural grade of the Wireless Communication Facility. Said bond shall warrant that an abandoned, obsolete or destroyed Wireless Communication Facility will be removed within one hundred-eighty (180) days of cessation of use and abandonment. If the Wireless Communication Facility is not removed within one hundred-eighty (180) days of cessation of use or abandonment, the owner or operator shall forfeit this bond, but the obligation to remove the Wireless Communication Facility and restore the site to its pre-existing condition shall remain. In the event that said facility is not removed within one hundred-eighty (180) days of cessation of operations at a site, the facilities may be acquired or removed by the City and the costs of removal assessed against the property or recovered by other legal means from the owner or operator. Any co-locator shall be required to additionally execute such bond, as principal, to insure that the bond will be in place during the period of time that the co-locator occupies the tower.

(Ord. 73-00. Passed 1-2-01.)

1147.23 NONCONFORMING USES.

(a) Conforming Use: Towers that are constructed, and antennas that are installed in accordance with the provisions of this Chapter shall be deemed to constitute the conforming uses or structures even when such new facilities are being added to a non-conforming installation.

(b) Pre-existing Towers: Pre-existing towers shall be allowed to continue their usage as they presently exist. Routine maintenance (including replacement with a new tower of like construction and height serving the same purpose) shall be permitted on such pre-existing towers. A replacement tower must be constructed within one hundred-eighty (180) days following any removal of the initial facility. New construction other than routine maintenance on a pre-existing tower shall comply with the provisions of this Chapter.

(c) Rebuilding Damaged or Destroyed Non-conforming Towers or Antennas: Bona fide non-conforming towers or antennas that are damaged or destroyed may be rebuilt. The type, height, and location of the tower onsite shall be of the same type as the original facility. If there are any changes contemplated in the previous design the owner of any such facility must submit the said changes to the Planning Commission for review and approval. Should the Planning Commission fail to act on the owner’s request within a period of sixty (60) Days the request will be deemed granted. Any permits to rebuild the facility shall comply with the then applicable building codes and shall be obtained within one hundred-eighty (180) days from the date the facility is damaged or destroyed. If no permit is obtained or if said permit expires, the tower or antenna shall be deemed abandoned as specified in this Chapter; provided that such delay is not caused by force majeure as defined in this Chapter.

(Ord. 73-00. Passed 1-2-01.)

1147.24 CIVIL ACTION.

Whenever any person fails, neglects or refuses to comply with any order of the Planning Commission, Director or City Council under the provisions of this Chapter, or when any building or other structure is used or occupied so as to be in violation of or not in conformity with any provision of this Chapter, the City may, institute an appropriate action in law or in equity to prevent any violation of this Chapter or to prevent the occupation or use of such building or other structure.
(Ord. 73-00. Passed 1-2-01.)

1147.25 CUMULATIVE REMEDIES.

The exercise of the rights and remedies granted in this Chapter shall in no way preclude or limit the City from exercising any other right or remedy now or hereafter granted to it under the laws of Ohio or the ordinances of the City.
(Ord. 73-00. Passed 1-2-01.)

1147.26 SEVERABILITY.

If any provision of this Chapter or the application thereof is held invalid, such invalidity shall not affect the other provisions or applications of this Chapter, which can be given, effect without the invalid provisions or application. Should any such provisions later be determined to be valid said provision shall thereupon return to full force and effect and shall thereafter be binding on the City and all owners or operators of Wireless Communication Facilities within the City.
(Ord. 73-00. Passed 1-2-01.)

1147.27 REPEAL OF ORDINANCES IN CONFLICT.

All other ordinances of the City of Dover or portions thereof, which conflict with this or, any part of this Chapter are hereby repealed.
(Ord. 73-00. Passed 1-2-01.)

1147.28 PROCEDURE FOR DISTRICT DESIGNATION.

City Council, in accordance with the procedures for amending Zoning set forth in the Codified Ordinances of the City of Dover, may designate any additional area, after review and recommendation by the Director, for a Wireless Communication Facility. Such review shall include all requirements set forth in the existing procedures for properly changing Zoning Requirements and Districts that are hereby incorporated by reference into this Chapter. Such review may include, but not be limited to, the following considerations:

(a) The area is a non-residential zone with surrounding buildings and equipment that will obscure the Wireless Communication Facility from view.

(b) The area includes internal tree masses and/or buildings that will obscure a Wireless Communication Facility from view.

(c) The area contains an existing building or structure that can accommodate stealth designed antenna and tower installation.
(Ord. 73-00. Passed 1-2-01.)

1147.29 LIABILITY.

In the case of all leases concerning Public Property the following provisions shall apply:

(a) Hold Harmless: An owner or operator of a Wireless Communication Facility shall indemnify and hold harmless the City of Dover as set forth in its lease at all times during the life of said lease and will pay all damages and penalties which the City may be required to pay as a result of granting said lease to the owner or operator of Wireless Communication Facilities.

(b) Insurance: An owner or operator of Wireless Communication Facilities shall, at all times, during the lifetime of its lease carry and require its contractors and subcontractors to carry public liability, property damage, worker’s compensation, and vehicle insurance in such form and amount as shall be determined by the City as set forth in the lease agreement. The City, its officers, boards, and commissions, elected officials, agents, and its employees shall be named as additional insureds. Insurance coverage should be obtained from an Insurance Carrier with an insurance industry rating of no less than “A” from A. M. Best and shall be licensed to do business in the State of Ohio. All required insurance coverage shall provide for thirty (30) days written notice to the City of any material alteration or cancellation of such coverage. In the case of cancellation of said insurance coverage the owner or operator of said Wireless Communication Facilities shall provide written notice to the City of adequate replacement insurance coverage within thirty (30) days of such material alteration and/or notice of cancellation. Failure of the owner or operator to provide adequate insurance coverage, as evidenced by a certificate of such coverage, to the City within sixty (60) days after execution of a lease shall render such lease null and void.
(Ord. 73-00. Passed 1-2-01.)

1147.30 PENALTIES.

Any person violating any provision of this Chapter shall be deemed, upon conviction of the first offense, guilty of a misdemeanor of the third degree and shall be fined not more than five hundred dollars ($500.00) or imprisoned not more than sixty (60) days or both. Any person convicted of a subsequent violation of this Chapter shall, upon conviction, be deemed guilty of a misdemeanor of the first degree and shall be fined not more than one thousand dollars ($1,000.00) or imprisoned not more than six (6) months or both. Such person shall be deemed guilty of a separate offense for each and every day or portions thereof during which any violation of any of the provisions of this Chapter is committed, permitted or continued.

(Ord. 73-00. Passed 1-2-01.)

1147.31 FORCE MAJEURE.

Any delay, preemption, or the failure of the parties to perform under the terms and conditions of this Agreement caused by factors beyond the parties’ reasonable control, such as an act of God, labor dispute, war or government administrative or judicial order or regulation, shall not result in default under the terms and conditions of this Agreement. Performance under the terms and conditions of this Agreement shall be excused for the period of time under which such condition(s) continues. Provided, however, that each party shall give notice to the other party concerning such delays, preemption or failure to perform and, each party shall exercise all reasonable efforts to cure any such delays and the cause thereof.

(Ord. 73-00. Passed 1-2-01.)

1149.01 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.

ACCESSORY EQUIPMENT. Any equipment used in conjunction with a Wireless Facility or Wireless Support Structure. Accessory Equipment includes utility or transmission equipment, power storage, generation or control equipment, cables, wiring and equipment cabinets.

ANTENNA. Communications equipment that transmits or receives radio frequency signals in the provision of Wireless Service.

APPLICANT. Any person applying for a Right- Of-Way Occupancy Permit hereunder.

BEST EFFORTS. The best reasonable efforts under the circumstances, taking into consideration, among other appropriate matters, all applicable laws, regulations, safety, engineering and operational codes, expedition, available technology and human resources and cost.

CABLE OPERATOR, CABLE SERVICE and FRANCHISE have the same meaning as set forth in the "Cable Communications and policy Act of 1984, 98 stat. 2779, 47 U.S.C.A. 522.

CHAPTER. Chapter 1149 of the Codified Ordinances of the City, as amended from time to time, and any regulations adopted hereunder.

CITY. The City of Dover, Ohio.

COLLOCATION. The mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signals for communication purposes. To install, mount, maintain, modify, operate or replace wireless facilities on a wireless support structure.

CONFIDENTIAL/PROPRIETARY INFORMATION. All information that has been either identified or clearly marked as Confidential/Proprietary Information by the provider prior to any submission. Information that is considered by a Provider to be either trade secret, confidential and/or proprietary, or information that upon public disclosure would be highly likely to place critical portions of a Provider's System in material danger of vandalism, sabotage, or an act of terrorism, all may be marked as Confidential/Proprietary Information by a Provider when submitted. Upon receipt of such clearly marked Confidential/Proprietary Information from a Provider, the City shall endeavor, in accordance with the requirements of ORC Chapter 149 (the Ohio Public Records Act), to use all the same reasonable measures and exercise the same degree of care that the City uses to protect its own information of such a nature from disclosure to third parties. In the event that the City receives a request from a third party for disclosure of information a Provider has clearly marked as Confidential/Proprietary Information, then the City shall respond as required by ORC Chapter 149 but will attempt to use all reasonable means to notify the Provider as soon as possible.

CONSTRUCT. Includes, but not be limited to, digging, boring, tunneling, trenching, excavating, obstructing, installing wires, installing conduit, installing pipes, installing transmission lines, installing poles, installing signs or installing Facilities, other than landscaping, ornamental plantings in, on, above, within, over, below, under or through any part of the Right-Of-Way. Construct shall also include the act of opening and/or cutting into the surface of any paved or improved surface that is any part of the Right-Of-Way.

CONSTRUCTION. Includes, but not limited to, the act or process of digging, boring, tunneling, trenching, excavating, obstructing, installing wires, installing conduit, installing pipes, installing transmission lines, installing poles, installing signs or installing Facilities, other than landscaping, ornamental plantings in, above, within, over, below, under or through any part of a Right-Of-Way. Construction shall also include e act of opening and/or cutting into the surface of any paved or improved surface that is part of the Right-Of-Way.

CONSTRUCTION BOND. A bond posted to ensure proper and complete Construction and/or repair of a Facility and the affected Right-Of-Way pursuant to a Permit.

COUNCIL. The legislative body of the City.

DECORATIVE POLE. A pole, arch, or structure other than a street light pole placed in the public way specifically designed and placed for aesthetic purposes and on which no appurtenances or attachments have been placed. This does not include structures for electric lighting, specially designed informational or directional signage, or temporary holiday or special event attachments.

DISTRIBUTED ANTENNA SYSTEM. A network or facility to which all of the following apply:

(1) It distributes radio frequency signals to provide Wireless Service,

(2) It meets the height and size characteristics of a Small Cell Facility, as defined herein,

(3) It consists of the following:

A. Remote Antenna nodes deployed throughout a desired coverage area,

B. A high-capacity signal transport medium connected to a central hub site,

C. Equipment located at the hub site to process or control the radio frequency signals through the Antennas.

(4) It conforms to the size limitations specified in City's Standards or is otherwise consistent with section 4939 of the Ohio Revised Code to the extent it is in effect.

ELIGIBLE FACILITIES REQUEST. As defined in federal law, in 47 U.S.C. 1455(a)(2), any request for modification of an existing wireless tower or base station that involves;

(1) Collocation of new transmission equipment,

(2) Removal of transmission equipment, or

(3) Replacement transmission equipment.

EMERGENCY. A condition that poses a clear and immediate danger to life or health, or a significant loss of property.

FACILITY(IES). Any tangible thing located in any Right-Of-Way within the City; but shall not include boulevard plantings, ornamental plantings or gardens planted or maintained in the Right-Of-Way between a Person's property and the street edge of pavement.

FORCE MAJEURE. A strike, act of God, act of public enemy, 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 noncompliance with the provisions hereof.

GENERAL RIGHT-OF-WAY OCCUPANCY PERMIT. Shall have the meaning set forth in Section 1149.03(b)(1).

GOVERNMENTAL PURPOSES. Those purposes classified as governmental under Ohio law, as well as water utility service, sanitary sewer service, electric service, storm sewers, automatic meter reading service, and any other City utility service to the extent such other City utility service is provided to City Facilities.

HISTORIC DISTRICT.

(a) A building, property, or site, or group of building, properties, or sites that are either listed in the national register of historic places or formally determined eligible for listing by the keeper of the national register, or designated a historic district as defined in section 149.311 of the Ohio Revised Code.

(b) An "overlay zone"

(1) That has been established by the Municipality at least sixty days prior to the relevant application;

(2) For which the special public interest to be protected is the preservation and protection of historic and architecturally valuable districts and neighborhoods or archaeologically significant resources according to uniform design standards; and

(3) For which Municipality maintains and enforces objective standards that are published in advance and applied on a uniform and nondiscriminatory basis.

MICRO WIRELESS FACILITY. A Small Cell Facility that is not more than twenty-four (24) inches in length, fifteen (15) inches in width, and twelve (12) inches in height and that does not have an exterior antenna more than eleven (11) inches in length suspended on cable strung between wireless support structures.

MICRO WIRELESS FACILITY OPERATOR. A Public Utility or Cable Operator that operates a Micro Wireless Facility.

MINOR MAINTENANCE PERMIT. A Permit, which must be obtained before a Person can perform minor maintenance, as set forth in Section 1149.12, in or on the Right-Of-Way.

MUNICIPAL ELECTRIC UTILITY. Has the same meaning as set forth in section 4928.01 of the Ohio Revised Code.

MUNICIPAL ELECTRIC UTILITY POLE. A Utility Pole, as defined herein, that is owned or operated by the Municipal Electric Utility.

OHIO MANUAL OF UNIFORM TRAFFIC CONTROL DEVICES (OMUTCD). The uniform system of traffic control devices promulgated by the Ohio Department of Transportation pursuant to Ohio R.C. 4511.09.

PERMIT. A Construction Permit or a Minor Maintenance Permit, as the context requires.

PERMIT COST. All direct, incidental and indirect costs actually incurred or realized by the City for Permit issuance, permit oversight and pavement degradation resulting from Construction activity.

PERMIT FEE. Money paid to the City for a Permit to Construct in the Rights of Way as required by Chapter 1149.

PERMITTEE. Any person issued a Right-Of-Way Occupancy Permit pursuant to this chapter to use or occupy all or a portion of the Right-Of-Way in accordance with the provisions of this chapter and said Right-Of-Way Permit.

PERSON. Any natural person or any association, firm, partnership, joint venture, corporation, or other legally recognized entity, whether for-profit or not-for-profit.

PUBLIC PROPERTY. Any real property owned by the City or easements held or used by the City, other than a Right-Of-Way.

PUBLIC UTILITY. Any company described in section 4905.03 of the Ohio Revised Code, except in divisions (B) and (I) of that section, which company also is a "Public Utility" as defined in section 4905.02 of the Ohio Revised Code and regulated by the Public Utilities Commission of Ohio; and includes any electric supplier as defined in section 4933.81 of the Ohio Revised Code.

REGISTRATION MAINTENANCE FEE. The money paid to the City to maintain a Right-Of-Way Occupancy Permit and compensate the City for all actual costs incurred by the City in the management, administration and control of the Right-Of-Way of the City, and which are not reasonably recoverable by the City through Construction Permit Fees or other approved recovery mechanisms.

REGULATION. Any rule adopted by the Mayor or Service Director pursuant to the authority of this chapter, and the procedure set forth in Section 1149.10, to carry out its purpose and intent.

RESIDENTIAL PURPOSES. Residential use of Right-Of-Way for such uses as mailboxes, trees, decorative purposes or any curb cuts and driveways, and as may be further defined in the regulations.

RESTORATION. The process and the resultant effects by which a Right-Of-Way is returned to a condition as good as or better than its condition immediately prior to the Construction. Restoration shall occur in accordance with the Rules and Regulations as may be enacted or amended from time to time.

RIGHT-OF-WAY. 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 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 Occupancy 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 natural gas, electric, cable television, communications or other utility services as set forth in any Right-Of-Way Occupancy Permit. RIGHT-OF-WAY shall not include private easements or public property, except to the extent the use or occupation of public property is specifically granted in a Right-Of-Way Occupancy Permit or by regulation.

RIGHT-OF-WAY OCCUPANCY PERMIT. The non-exclusive grant of authority to use or occupy all or a portion of the City's Rights-Of-Way granted pursuant to this chapter.

RIGHT-OF-WAY RELATED COSTS. All documented direct, incidental, and indirect costs actually borne by the City for the control, management and administration of the Rights-Of-Way.

SMALL CELL FACILITY. A Wireless Facility that meets the City's standards or is consistent with the requirements of section 4939 of the Ohio Revised Code to the extent it is in effect, including but not limited to both of the following:

(1) Each Antenna associated with the Facility is located inside an enclosure of not more than six (6) cubic feet in volume, or, in the case of an Antenna that has exposed elements, the Antenna and all of its exposed elements could fit within an enclosure of not more than six (6) cubic feet in volume.

(2) All other Wireless Equipment associated with the Facility is cumulatively not more than twenty-eight (28) cubic feet in volume. The calculation of equipment volume shall not include electric meters, concealment elements, telecommunications demarcation boxes, grounding equipment, power transfer switches, cut-off switches, and vertical cable runs for power and other services.

(3) If the Facility were placed on a Wireless Support Structure, the increased height would not be more than ten (10) feet or the overall resulting height would be no more than fifty (50) feet.

SMALL CELL FACILITY OPERATOR. A wireless service provider, or its designated agent, or cable operator of its designated agent, or a video service provider or its designated agent, that operates a small cell facility and provides wireless service as defined in the Section 4939 of the Ohio Revised Code, to the extent it is still in effect. This includes a wireless service provider, cable operator or a video service provider that provides information services as defined in 110 Stat. 59, 47 U.S.C. 153(20) and services that are fixed in nature of use unlicensed spectrum.

SUPPLEMENTARY APPLICATION. Any application made to Construct on or in more of the Rights of Way than previously allowed, or to extend a Permit that had already been issued.

TRENCHLESS TECHNOLOGY. Includes, but is not limited to, the use of directional boring, horizontal drilling, microtunneling and other techniques in the Construction of underground portions of Facilities which result in the least amount of disruption and damage to Rights of Way as possible.

UNDERGROUND DISTRICT. A group of buildings, properties, or sites in which the Municipality, at least sixty (60) days prior to the relevant application, has required all communications and electric lines in the specified geographic area to be placed underground, and for which the Municipality maintains and enforces objective standards that are published in advance and applied on a uniform and nondiscriminatory basis. [The Underground Districts in existence or otherwise established as of the date hereof are set forth in Exhibit A hereto.]

UNDERGROUND FACILITY(IES). All lines, cables, conduits, pipes, posts, tanks, vaults and any other Facilities which are located wholly or partially underneath Rights of Way.

UNUSED FACILITY(IES). Facilities located in the Rights of Way which have remained unused for twelve (12) months and for which the Provider is unable to provide the City with a credible plan detailing the procedure by which the Provider intends to begin actively using such Facilities within the next twelve (12) months, or that it has a potential purchaser or user of the Facilities who will be actively using the Facilities within the next twelve (12) months, or that the availability of such Facilities is required by the provider to adequately and efficiently operate its System.

UTILITY POLE. A structure that is designed for, or used for the purpose of, carrying lines, cables, or wires for electric or telecommunications service. This does not include structures owned or operated by a Municipal Electric Utility ("Municipal Electric Utility Poles"), street signs, or decorative poles.

WIRELESS FACILITY. Equipment at a fixed location that enables wireless communications between user equipment and a communications network. This includes equipment associated with wireless communications, radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies and comparable equipment (regardless of technological configuration), and Small Cell Facilities. This does not include the structure or improvements on under, or within which the equipment is located, and coaxial or fiber-optic cable that is between wireless support structures or utility poles or that is otherwise not immediately adjacent to or directly associated with a particular antenna.

WIRELESS SERVICE. Any services using licensed or unlicensed wireless spectrum, whether at a fixed location or mobile, provided to the public using Wireless Facilities.

WIRELESS SERVICE PROVIDER. A person who provides wireless service as defined in Section 4927.01(A)(20) of the Ohio Revised Code, to the extent it is still in effect.

WIRELESS SUPPORT STRUCTURE. A pole, such as a monopole, either guyed or self- supporting, street light pole, traffic signal pole, a fifteen-foot or taller sign pole, or Utility Pole capable of supporting Small Cell Facilities. For purposes of requesting consent for Micro Wireless Facility activity "Wireless Support Structure" excludes:

(1) A Municipal Electric Utility Pole, or other facility owned or operated by a Municipal Electric Utility; and

(2) A utility pole or other facility used to supply traction power to public transit systems including railways, trams, streetcars, and trolleybuses;

WORK PERMIT or CONSTRUCTION PERMIT. Permit to perform work in, on, above, within, over, below, under, or through any part of the public way, including, but not limited to the act or process of digging, boring, tunneling, trenching, excavating, obstructing, or installing, as well as the act of opening and cutting into the surface of any paved or improved surface that is part of the public way. (Ord. 11-22. Passed 2-7-22.)

1149.02 PURPOSE AND SCOPE OF CHAPTER.

(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 Occupancy Permit issued pursuant to this chapter does not take the place of any franchise, license, or permit which may be additionally required by law, including any required by City ordinance. A Right-Of-Way Occupancy Permit issued pursuant to this chapter also does not grant pole attachment rights or preclude the need to enter into a public and/or private pole attachment agreements. 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; provided, however, that no Permittee holding a valid Right-Of-Way Permit shall be required to obtain a franchise for any type of services rendered by said Permittee for which the City did not require a franchise at the time said Permittee's permit was last issued or renewed. Should there be a direct conflict between the provisions of this chapter and a valid franchise, the provisions of the franchise shall prevail; provided, however, that additional obligations shall not be construed as a conflict.

(d) The City's policy regarding Rights-Of-Way is:

(1) To promote the utilization of Rights-Of-Way for the public health, safety and welfare and to promote economic development in the City;

(2) To promote the availability of a wide range of utility, telecommunication and other services, including the rapid deployment of new technologies and innovative services to the City's residents and taxpayers at reasonable costs;

(3) To promote cooperation among the Permittees and the City in the occupation of Rights-Of-Way, and work therein, in order to minimize public inconvenience during Right-Of-Way work, and eliminate wasteful, unnecessary or unsightly duplication of Facilities;

(4) To promote public safety and protect public property;

(5) To ensure adequate public reimbursement of costs the City has incurred for private use of the Rights-Of-Way, including the regulation thereof;

(6) To promote and require reasonable accommodation of all uses of Rights-Of-Way, and when all requests for Right-Of-Way use cannot be accomplished, to give priority for use of Rights-Of-Way, in the order indicated, from highest to lowest, to the following users:

A. The City for governmental purposes;

B. Another governmental entity for governmental purposes with the City's concurrence, or other governmental use required by law;

C. General Right-Of-Way Occupancy Permittees and proprietary uses by the City;

(7) To assure that Applicants have the financial, technical and managerial resources to comply with this chapter and the provisions of any Right-Of-Way Occupancy Permit issued hereunder; for purposes of this chapter, an Applicant possessing valid certification from the Public Utilities Commission of Ohio, including certification pursuant to Ohio R.C. 4933.81 et seq., and is recognized on the rolls of the Public Utilities Commission of Ohio as a regulated utility or of a Cable Operator possessing a valid franchise awarded pursuant to the Cable Communications Policy Act of 1984, for the services to be provided by the Facilities subject to this chapter shall be presumed to possess the requisite financial, technical and managerial resources.

(8) To ensure that access to and occupancy or use of the public Right-Of-Way advances the state of Ohio policies specified in sections 4927.02, 4928.02, and 4929.02 of the Ohio Revised Code.

(9) To expedite the installation and operation of Micro and smaller Wireless Facilities in order to facilitate the deployment of advanced Wireless Service throughout the state of Ohio.

(e) All Right-Of-Way Occupancy 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. (Ord. 11-22. Passed 2-7-22.)

1149.03 PROHIBITION; TYPES OF PERMITS.

(a) Unless otherwise permitted pursuant to the City of Dover, Ohio Codified Ordinances, each Person who occupies, uses or seeks to occupy or use the Right-Of-Way to use, occupy, construct, own or operate structures or Facilities located in, under or over the Right-Of-Way or any public property with the City, shall apply for and obtain a Right-Of-Way Occupancy Permit pursuant to Chapter 1149. Any Person owning, operating or maintaining structures or Facilities in the Right-Of-Way without a Right-Of-Way Occupancy Permit, including Persons operating under a permit, license or franchise issued by the City prior to the effective date of Chapter shall apply for and obtain a Right-Of-Way Occupancy Permit from the City, unless exempted by Chapter 1149. Application will consist of providing the information set forth in Chapter 1149 and as reasonably required by the Mayor.

(b) Permits shall not be required for the following uses:

(1) Carts;

(2) Landscaping (may require a Right-Of-Way work permit from Mayor, service director, or designee);

(3) Right angle signs and sidewalk signs;

(4) Awnings; and

(5) Residential purposes, so long as, in the opinion of the City Manager, the residential use:

A. Has received or will receive all other necessary permits, including any required by these Codified Ordinances;

B. Is not inconsistent with policy of the City;

C. Does not adversely affect the public health, safety or welfare; and

D. Does not materially interfere with the other lawful use of the Right-Of-Way. The Mayor or designee shall adopt regulations controlling and further defining residential purposes and to otherwise implement the determinations to be made under this section. Such regulations shall, among other matters, specify that the owner of Facilities that hold title to such Facilities solely as a result of a leaseback, defined as the sale or transfer of property by a Permittee to another person contemporaneously followed by the leasing of the property to the Permittee on a long-term basis, that are not operated or controlled by said lessor, and are operated or controlled by the Permittee, are not considered to be using, occupying, owning or operating such Facilities, for purposes of this chapter, solely as a result of such leaseback.

(1) General Right-Of-Way Occupancy Permit: A Right-Of-Way Occupancy Permit granted to persons who desire and are granted authority to utilize Rights-Of-Way generally for business purposes, including the provision of utility, cable television, telecommunications or other services to the City, its residents and taxpayers;

(2) Nothing in this chapter should be construed to preclude the City from requiring any person offering any natural gas, electric, cable television, telecommunications or other utility services for which the City may lawfully require a franchise, to acquire a franchise upon the expiration of any Right-Of-Way Occupancy Permit issued hereunder.

(d) Any such Right-Of-Way Occupancy Permit may also allow the use of specified public property for the uses set forth in the Right-Of-Way Occupancy Permit and in this chapter.

(e) Each Right-Of-Way Occupancy 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 regulations.

(f) Unless otherwise set forth herein, Right-Of-Way Occupancy Permits or the rights of a Permittee thereunder are not transferable without the prior express written approval of the Mayor, upon written request. Such request shall contain evidence that the proposed transferee has the financial, technical and managerial resources to comply with the obligations of this chapter and its Right-Of-Way Occupancy Permit and shall be granted if such transferee has such resources. In making said determination, a proposed transferee shall be presumed to possess the requisite financial, technical and managerial resources if said transferee possesses a valid certification from the Public Utilities Commission of Ohio, including certification pursuant to Ohio R.C. 4933.81, et seq., and is recognized on the rolls of the Public Utilities Commission of Ohio as a regulated utility or of a Cable Operator possessing a valid franchise awarded pursuant to the Cable Communications Policy Act of 1984, for the services to be provided by the Facilities subject to this chapter. The Mayor shall adopt regulations providing procedures for transfer of Right-Of-Way Occupancy Permits that shall include provisions providing that (i) all requests for transfer shall be deemed approved if the Mayor does not disapprove the same within thirty (30) days of receipt of the completed written transfer request; and (ii) transfer to affiliates under common ownership and control with the Permittee shall not require approval, so long as the Mayor is provided thirty (30) days written notice of such transfer.

(g) Any Facilities or part of a Facility found in a Right-Of-Way for which a Right-Of-Way Occupancy Permit has not been obtained shall be deemed to be a nuisance and an unauthorized use of the Right-Of-Way. The City may exercise any remedies or rights it has at Law or in equity, including, but not limited to abating the nuisance; taking possession of the Facilities and/or non-complying portion of such Facility; and/or prosecuting the violator.

(h) The Mayor shall adopt regulations controlling and further defining residential purposes and to otherwise implement the determinations to be made under this section. Such regulations shall, among other matters, specify: (i) that the owner of Facilities that hold title to such Facilities solely as a result of a leaseback, defined as the sale or transfer of property by a Permittee to another person contemporaneously followed by the leasing of the property to the Permittee on a long-term basis; and (ii) are operated or controlled by the Permittee, are not considered to be using, occupying, owing or operating such Facilities, for purposes of this chapter, solely as a result of such leaseback.

(Ord. 11-22. Passed 2-7-22.)

1149.04 APPLICATION PROCEDURE; APPEAL.

(a) Applications for General Right-Of-Way Occupancy Permits or amendments or renewals thereof shall be filed in such form and in such manner as these regulations require, along with an application fee of two hundred dollars ($200.00) on the initial application and fifty dollars ($50.00) renewal fee each year thereafter. The information provided to the City at the time of application shall include but not be limited to:

(1) Each Applicant's name, legal status (i.e. partnership, corporation, etc.), street address and e-mail address, if applicable, and telephone and facsimile numbers; and

(2) The name, address and e-mail address and telephone and facsimile numbers of a representative. The representative shall be available at all times. Current information regarding how to contact the representative in an Emergency shall be provided at the time of Application and shall be updated as necessary to assure accurate contact information is available to the City at all times; and

(3) A certificate of insurance where required to be provided to meet the requirements of Section 1149.19(b) shall:

A. Verify that an insurance company licensed to do business in the State of Ohio has issued an insurance policy to the Applicant;

B. Verify that the Applicant is insured on an occurrence basis against claims for personal injury, including death, as well as claims for property damage arising out of the use and occupancy of the Right-Of-Way by the Applicant, its officers, agents, employees and contractors; and placement and use of Facilities in the Right-Of-Way by the Applicant, its officers, agents, employees and contractors, including, but not limited to, protection against liability arising from any and all operations, damage of Underground Facilities and collapse of property;

C. Name the City, its elected officials, officers, employees, agents and volunteers as an additional insured as to whom the comprehensive general liability and completed operation and products liability insurance required herein are in force and applicable and for whom defense will be provided as to all such coverage, as is required within this Section 1149.19(b);

D. Require that the City be notified thirty (30) days in advance of cancellation of, or coverage changes in, the policy. The liability insurance policies required by this Section 1149.19(b) shall contain the following endorsement:

"It is hereby understood and agreed that this policy may not be diminished in value, canceled nor the intention not to renew be stated, until thirty (30) days after receipt by the City, by registered mail, return receipt requested, of a written notice addressed to the Director of Public Service or her/his designee of such intent to cancel, diminish or not to renew."

Within thirty (30) days after receipt by the City of said notice, and in no event later than five (5) days prior to said cancellation, the Permittee (or Applicant) shall obtain and furnish to the Director of Public Service a certificate of insurance evidencing replacement insurance policies.

(4) Documentation that Applicant or Permittee maintains standard workers' compensation coverage as required by Law. Similarly, Permittee shall require any subcontractor to provide workers' compensation coverage in amounts required by Law for all of the subcontractor's employees.

(5) If the Person is a corporation, upon specific request of the City, a copy of the certificate of incorporation (or its legal equivalent) as recorded and certified to by the secretary of state (or legal equivalent) in the state or country in which incorporated.

(6) A copy of the Person's certificate of authority from the PUCO and/or the FCC and/or FERC, if the Person is lawfully required to have or actually does possess such certificate from said commission(s).

(7) Upon request of the City, a narrative (or if applicable PUCO/FCC/FERC application information) describing Applicant's proposed activities in the City including credible information detailing Applicant's financial, managerial, and technical ability to fulfill Applicant's obligations under Chapter 1149 and carry on Applicant's proposed activities.

(b) The Mayor, service director or designee, shall determine if the application is in order and shall, within thirty (30) days of the receipt of a completed application, issue a written report regarding such application. The report shall recommend that the City's Designated Committee (Consisting of Superintendent & Assistant Superintendent of the Electric Field Department as well as Service Director & the Building Inspector) shall deny or grant the Right-Of-Way Occupancy Permit, subject to any appropriate terms and conditions, in accordance with the criteria set forth in this chapter. The Mayor's report shall be served upon the Applicant by mail along with a notice of when City's Designated Committee will consider the same. The City's Designated Committee shall then consider such recommendation and make a final determination, as to whether or not such Right-Of-Way Occupancy Permit should be granted and, if so, upon what terms and conditions. City's Designated Committee shall make a final determination within sixty (60) days of receipt of the completed application by the mayor or his designee. Should the City receive a number of requests for consent for small cell facilities or wireless support structures to the extent it is likely to result in difficulty processing, the City may toll the requests consistent with Section 4939.036 of the Ohio Revised Code. The term of each such General Right-Of-Way Permit for Wireless Support Structure attachments shall be for ten (10) years from issuance, or such lesser term as the Applicant requests. There is a presumption of renewal following the initial ten-year term for successive five-year terms, subject, however to any terms providing for early termination or nonrenewal for cause or by mutual agreement or to safeguard the public health, safety, and welfare.

(c) Any Applicant may appeal the failure of the Mayor to recommend an application be granted upon terms and conditions acceptable to the Applicant, to the Mayor or his designee. In order to perfect such appeal, the Applicant shall file, within ten (10) days of the Mayor's determination or recommendation, or within thirty (30) days of the filing of the application if the Mayor or his designee has taken no action, an appeal to the Mayor. The Mayor shall then review the matter and after affording the Applicant an opportunity to be heard either in person or in writing, render a final recommendation that shall be submitted to City's Designated Committee within fifteen (15) days of the Mayor's receipt of the request for an appeal unless such period is waived by the Applicant. City's Designated Committee shall consider the appeal request after receiving the Mayor's recommendation. Except to the extent otherwise appealable by law, the City's Designated Committee decision shall be final. If a request for consent is denied for an activity described in section 4939.031 of the Ohio Revised Code, the reasons for denial, required under this division, shall be provided to the Applicant in writing, and shall set forth the reasons for denying the request for consent in a manner supported by substantial, competent evidence, and the denial of the request shall not unduly discriminate against the Applicant.

(Ord. 11-22. Passed 2-7-22.)

1149.05 CRITERIA FOR GRANTING PERMITS.

(a) A General Right-Of-Way Occupancy Permit shall be granted to an Applicant upon a determination that:

(1) The granting of the Right-Of-Way Occupancy Permit will contribute to the public health, safety or welfare in the City;

(2) The granting of the Right-Of-Way Occupancy Permit will be consistent with the policy of the City as set forth in Section 1149.02(d);

(3) The Applicant is not delinquent on any Right-Of-Way permit fees, or costs owed the City for Right-Of-Way related activity and, except in the case of entities subject to the jurisdiction and recognized on the rolls of the Public Utilities Commission of Ohio as a regulated utility or of a Cable Operator possessing a valid franchise awarded pursuant to the Cable Communications Policy Act of 1984, 98 Stat. 2779, 47 U.S.C.A. 541, has the requisite financial, managerial and technical ability to fulfill all its obligations hereunder;

(4) The Applicant's Right-of-Way Occupancy Permit would not be granted for placement of a Small Cell Facility or Wireless Support Structure aboveground, in an area that has been designated solely for undergrounding; and,

(5) The Applicant of the Right-Of-Way Occupancy Permit is in compliance with the City's written design guidelines to match the aesthetics and character of the immediate area including other ground-mounted Small Cell Facilities, the location of Small Cell Facilities on Wireless Support Structures, appearance and concealment measures, meets the design or concealment measures required for a Historic District, and the design and appearance of the Wireless Support Structure including height requirements.

(b) A Right-Of-Way Occupancy Permit shall not convey equitable or legal title in the Right-Of-Way. A Right-Of-Way Occupancy Permit is only the nonexclusive, limited right to occupy Right-Of-Way in the City, for the limited purposes and for the limited period stated in the Right-Of-Way Occupancy Permit and in accordance with Chapter 1149 of the Code. The rights to occupy the Right of Way may not be subdivided or subleased; provided, however, that two or more Permittees may collocate Facilities in the same area of the Right-Of-Way so long as each such Person complies with the provisions of Chapter 1149. Collocating Permittees may file a joint application for a Construction Permit. A Right-Of-Way Occupancy Permit does not excuse a Permittee from obtaining appropriate access or pole attachment agreements before collocating its Facilities on Facilities of others, including the City's Facilities. A Right-Of-Way Occupancy Permit does not excuse a Permittee from complying with any provisions of the Code or other applicable Law.

(c) The Mayor, or his designee, may impose such lawful conditions on the granting of a permit as reasonably required to be consistent with the criteria set forth in this section and to promote the policy of the City set forth in Section 1149.02(d).

(Ord. 11-22. Passed 2-7-22.)

1149.06 OBLIGATIONS OF PERMITTEES; CONDITIONS OF PERMITS.

(a) In addition to the other requirements set forth herein and in the regulations each Permittee, except for residential purposes, shall:

(1) Use its best efforts to cooperate with other Permittees and the City for the best, most efficient, and least obtrusive use of Rights-Of-Way, consistent with safety, and to minimize traffic and other disruptions, including street cuts;

(2) Have a copy of the permit and associated plans on the job site at all times;

(3) 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 any such emergency work requiring excavation or other interference with the flow of traffic, as may be required by Chapter 1149 and this Chapter and as may be more specifically set forth in regulations promulgated pursuant to this chapter, and provided further, that mandatory joint planning shall not require the exchange or provision of trade secrets or competitively sensitive materials or information;

(4) Reasonably cooperate with other Permittees in the utilization of, construction in and occupancy of private Rights-Of-Way within the City, but only to the extent the same is consistent with the grant thereof, is not additionally burdensome to any property owner or unreasonably burdensome to the Permittee;

(5) Upon reasonable written notice of not less than sixty (60) days, except in an emergency threatening the public health, safety or welfare, and at the direction of the Mayor, or his designee, and at the Permittee's sole cost, to the extent permitted by Ohio law, promptly remove or rearrange Facilities as necessary, as further specified in the regulations: (i) during any construction, repair or modification of any street, sidewalk, city utility or other public improvement; (ii) as part of the Mayor, or his designee's determination, to the extent permitted by Ohio law, 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, provided that such determination is reasonable and a part of an overall improvement plan or project; (iii) 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 (iv) for any other reasonable cause as determined by the Mayor, or his designee, pursuant to Section 1149.14(b) to the extent permitted by Ohio law; however, nothing in this division shall be interpreted as foreclosing any rights that any Permittee has pursuant to Ohio R.C. Title 49 to file an application with the Public Utilities Commission of Ohio under any applicable provision of R.C. Title 49, in order to recover the costs associated with the relocation of any Facilities pursuant to this division;

(6) Provide information relating to a Permittee's Facilities and operations within the Rights- Of-Way in such form as to allow for the accurate assessment of the quantity of a utility's infrastructure in the public Rights-Of-Way; for a Right-Of-Way work permit, Permittee shall provide a detailed plan, as delineated in Chapter 1149, of the proposed work. Upon a proper request by a Permittee demonstrating that any portion of the information required constitutes a "trade secret" pursuant to Ohio law, or that the material should remain confidential pursuant to any other provision of local, state, or federal law, the material shall be treated as confidential and not subject to public disclosure. In no event will the City allow any person involved with the City's telecommunications service access to information a Permittee has designated "confidential" or "proprietary";

(7) Perform all work, construction, maintenance or removal of structures and Facilities within the Rights-Of-Way, including tree trimming, in accordance with good engineering and construction practice including any appropriate safety codes and in accordance with the regulations and use its best efforts to repair and replace any street, curb or other portion of the Rights-Of-Way within the disturbed area of the work area, or Facilities or structure located therein, to a condition to be determined by the Mayor to be adequate under current standards, on file with the City Engineer, 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 regulations adopted hereunder or under Chapter 1149. Each occupant of the Right-Of-Way that may make a street cut shall file with the City standards for repair of street cuts that shall be approved or denied by the City Engineer within sixty (60) days after filing. If the street cut standards are denied the Right-Of-Way, the occupant must amend its proposed standards to meet the City's requirements prior to making any street cuts. Each Right-Of-Way Applicant shall amend its street cut standards from time to time as required by good engineering practice. If a street cut repair fails, the Right-Of-Way occupant responsible for the street cut shall repair the street cut until such time as the City repaves the streets. No Right-Of-Way occupant shall be responsible to repair a street cut damaged by a cause other than the repair made by the Right-Of-Way occupant;

(8) Register, or cause to be registered, its Facilities with underground reporting services as set forth in the regulations;

(9) Use its best efforts to cooperate with the city in any emergencies involving the Rights-Of-Way in such manner as the regulations shall require, including the maintenance of a 24-hour emergency contact;

(10) Field identify, using distinct identification, all structures and Facilities in areas of the Rights-Of-Way designated for construction or related activities in accordance with the regulations, provided that the regulations shall require that the field identifications utilize, to the greatest extent possible, customary industry standards for such identification; and

(11) Designate a single point of contact for all purposes hereunder, as well as comply with such other contact and notice protocols as the regulations require.

(b) Each Permittee shall assure that any subcontractor or other person performing any work or service in the Rights-Of-Way on behalf of said Permittee will comply with all applicable provisions of this chapter and its Right-Of-Way Permit and will identify the Permittee for whom such contractor 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. (Ord. 11-22. Passed 2-7-22.)

1149.07 PERMIT FEES AND AUDITING.

(a) Any cable television provider that has a valid franchise to operate a cable television system within the City shall not be liable for any additional Right-Of-Way Occupancy Permit fees over and above any cable television franchise fees specified in its cable television franchise for uses of Rights-Of-Way directly related to the uses for which such cable television provider holds a cable 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 subsection (b) of this section. If the amount due under division (B) of this section is more than said cable franchise fees, then the cable television provider 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 subsection (b) of this section.

(1) In addition to any fees charged pursuant to Chapter 1149, all General Right-Of-Way Occupancy Permittees shall pay an annual fee, for each calendar year, as compensation for the City's cost to manage, administer and control the Right-Of-Way and maintain each general Right-Of-Way Occupancy Permit. Every Permittee shall pay to the City General Occupancy Right-Of-Way fees beginning January 1, 2017. Fees shall be determined and assessed to Permittees and other persons using and occupying the Rights-Of-Way in accordance with the following process and formula:

A. The City by January 31 of each year shall calculate all actual and incurred costs associated with Rights-Of-Way management, administration and control for the previous calendar year that the City incurred and was not able to reasonably recover through permit fees or other recovery mechanisms for each Permittee.

B. The City shall invoice each permittee based on the actual costs incurred by the City for Right-Of-Way management for that Permittee per subsection (a)(1)A. of this section. This shall be the Permittee's then-current General Right-Of-Way Occupancy Permit fee.

C. Registration fees shall be invoiced to permittees on or about February 1 of each calendar year and shall be due thirty (30) days following receipt.

D. To the extent taxes or other assessments are imposed by taxing authorities on the use of City property as a result of a Permittee's use or occupation of the Rights-Of-Way, the Permittee shall be responsible for payment of such taxes. Such payments shall be in addition to any other fees payable pursuant to this chapter and shall not be considered an offset to, or in lieu of the Right-Of-Way Permit fees.

(2) All Right-Of-Way related fees collected through this chapter and Chapter 1149 shall be deposited in a separate fund to be utilized for the offset of municipal costs associated with the management and control of the public Right-Of-Way.

(b) All fees pursuant to this chapter shall be paid by check, money order or wire transfer to the City of Dover, Ohio.

(c) Each General Right-Of-Way Occupancy Permittee shall maintain books, records, maps, documents and other evidence directly pertinent to its calculation of payments to the City. The Mayor, or his designee, the City Auditor or either's designated agents shall have reasonable access to any books, records, maps, documents and other evidence for inspection, copying and audit relative to the quantity of infrastructure in the public Right-Of-Way to the extent necessary to assure that the payments hereunder are accurate and that all Right-Of-Way Occupancy Permittees fully comply with the provisions of this chapter and their respective Right-Of-Way Permits. Upon a proper request by a Permittee demonstrating that any portion of the information required constitutes a trade secret pursuant to Ohio R.C. 133.61 through 133.69, or shall remain confidential pursuant to any local, state, or federal law or regulation, the material shall be treated as confidential and not subject to public disclosure.

(Ord. 11-22. Passed 2-7-22.)

1149.08 MICRO WIRELESS FACILITY.

(a) This section establishes terms and conditions for the use of the public Right-Of-Way for Wireless Service Providers' Micro Wireless Facilities through the attachment to Wireless Support Structures as established in City's Standards or Section 4939 of the Ohio Revised Code, which is incorporated herein by reference as if fully set forth.

(b) Under the provisions of this section, a Micro Wireless Facility Operator may establish, under certain specified conditions as set forth in City's Standards, consistent with Revised Code Chapter 4939, Wireless Service through a Distributed Antenna System, a Small Cell Facility and related Wireless Facilities. The City will review those requests following the criteria and schedule set forth in Revised Code 4939.

(c) Additionally, the City will also review any request to attach any Micro Wireless Facilities to a Municipal Electric Utility Pole and shall grant such requests only if the attachment to a Municipal Electric Utility Pole serves the public health, welfare and safety. The City shall deny all requests to attach Micro Wireless Facilities to Municipal Electric Utility Poles if such attachment would not serve to further the public health and welfare, would create a safety problem, or would interfere with the conduct of any municipal operation.

(d) Where not in direct conflict with Chapter 4939 of the Ohio Revised Code, the application procedure, permit fees, and auditing procedures outlined in this Chapter 1149 shall be applicable to applications to establish Micro Wireless Facilities. Each individual Micro Wireless Facility will require a separate Right-Of-Way Occupancy Permit.

(e) Any request for a ROW Occupancy Permit for a Micro Wireless Facility will comply with the City's design guidelines as set forth in Chapter and meet the requirements for design or concealment measures in an Historic District.

(f) No Micro Wireless Facility may be placed above ground in the Right-of-Way in the City's designated undergrounding area as described in Design Guidelines and Requirements.

(Ord. 11-22. Passed 2-7-22.)

1149.09 JOINT PLANNING AND CONSTRUCTION.

(a) In order to promote the purposes of this chapter and the policy set forth herein, the Municipality shall perform an administrative review for all Right-Of-Way Occupancy Applications including the location or installation of new, modified or replacement poles and/or support structures and the Collocation of Small Wireless Facilities and equipment on Poles or Support Structures. Review factors, in addition to location, shall include the size, shape, color, texture, and materials of the structures and attachments. Such regulations shall not, however, require a Permittee to divulge trade secrets or other competitively sensitive confidential information, release of which would cause material injury to the Permittee. Such regulations shall also require any confidential information of a Permittee in the possession of the City be treated as such, to the extent such information does not legally constitute a public record.

(1) The Municipality may require that a proposed Small Wireless Facility or new, modified, or replacement Pole be designed to not be significantly more readily apparent or plainly visible (to a reasonable person of ordinary sensibilities) than existing facilities, structures, equipment, and Poles located within five hundred (500) linear feet on the same ROW as the subject Small Wireless Facility, Pole, or Support Structure.

(2) Where Small Wireless Facilities are determined to be appropriate, the use of reasonable stealth and concealment treatments, low-profile equipment and control boxes, and screening may be required to avoid significant negative impacts on the character and visual aesthetics of the area. However, such requirements may be waived by the Municipality upon a showing that the particular location of a Small Wireless Facility does not warrant stealth or concealment treatments or imposes an excessive expense. The waiver shall be granted or denied within forty-five (45) days after the date of the request.

(3) Supplemental Review Districts identified in Exhibit A Design Guidelines and Requirements as the Historic District - Zone 3 and Underground District - Zone 2 may be subject to a higher level of review.

(4) The Municipality may maintain a Design Manual which sets forth additional aesthetic, design, concealment, and stealth requirements applicable to Small Wireless Facilities. The Design Manual may also, but need not, set forth examples of Small Wireless Facility deployments that the Municipality deems to comply with this Ordinance and provide a means for pre-approval of designs that are suitable for a particular location, even if not strictly compliant with the design, placement, and aesthetic requirements of this Ordinance provided the design otherwise serves the goals of this Ordinance. Exhibit A Design Guidelines & Requirements may be amended from time to time by way of a duly enacted resolution.

(b) Maximum Size of Permitted Use.

(1) New Small Wireless Facilities (including any related Antenna) in the ROW may not extend more than five (5) feet above an existing pole in place as of the effective date of this chapter, or for Small Wireless Facilities (including any related Antenna) on a new Pole, above the height permitted for a new Pole pursuant to this section.

(2) Each new, modified, or replacement Pole installed in the ROW may not exceed the greater of five (5) feet in height above the tallest existing Pole in place as of the effective date of this chapter located within five hundred (500) feet of the new, modified, or replacement Pole in the same ROW, if a compatible pole height cannot be determined, then a maximum of forty (40) feet above ground level shall be used.

(3) For Applications to place Poles in residential zoning districts to deploy Small Wireless Facilities, the Municipality may propose an alternate location in the ROW within two hundred fifty (250) feet of the location set forth in the Application, and the Wireless Provider shall use the Municipality's proposed alternate location unless the location is not Technically Feasible or imposes significant additional costs. The Wireless Provider shall certify that it has made such a determination in good faith, based on the assessment of an engineer licensed in Ohio, and it shall provide a written summary of the basis for such determination.

(4) Collocation is not allowed on a Decorative Pole less than twenty (20) feet in height.

(5) New Poles are not permitted in a corridor where there are existing Poles that can be used, modified, or replaced to allow the proposed Collocation, unless the Applicant can demonstrate that:

A. It is not Technically Feasible to use, modify, or replace such existing Poles; or

B. Such use, modification, or replacement would impose significant additional costs on the Wireless Provider, as certified by the Wireless Provider in good faith and based on the assessment of an engineer licensed in Ohio along with a written summary of the basis for the certification; or

C. A new Pole may be placed in a manner that will cause no more interference with the ROW and will have no more of an impact on the overall appearance of the corridor and on adjoining properties than would the use, modification, or replacement of an existing Pole.

(c) Supplemental Review Districts. Collocated Small Wireless Facilitates and new, modified, or replacement Poles or Support Structures located in Supplemental Review Districts shall be subject to the compliant provisions pertaining to design and aesthetic standards in the ordinance establishing the Supplemental Review District(s) in addition to the requirements of this chapter. In addition, the following rules shall apply within the Supplemental Review Districts.

(1) Underground Districts. A Wireless Provider shall comply with reasonable and nondiscriminatory requirements that prohibit the installation of Poles in the ROW in an Underground District where:

A. No less than sixty days prior to the submission of the Application, the Municipality has required all such lines to be placed underground;

B. Poles the Municipality allows to remain are made available to Wireless Providers for the Collocation of Small Wireless Facilities and may be replaced by a Wireless Provider to accommodate the Collocation of Small Wireless Facilities in compliance with this Ordinance; and

C. A Wireless Provider is allowed to install a new Pole when it is not able to provide Wireless Services by Collocating on a remaining Pole or Support Structure.

Nothing in this section shall prohibit the use or replacement of existing Poles or Support Structures in Underground Districts for the Collocation of Small Wireless Facilities subject to appropriate design and concealment measures and a finding that such use or replacement does not increase the height of the Pole or Support Structure by more than three (3) feet.

For any such Application to install a new Pole in an Underground District, the City may propose an alternate location in the ROW within two hundred fifty (250) feet of the location set forth in the Application. The Wireless Provider shall use the City’s proposed alternate location unless the location is not Technically Feasible or imposes significant additional costs. The Wireless Provider shall certify that it has made such a determination in good faith, based on the assessment of an engineer licensed in Ohio, and it shall provide a written summary of the basis for such determination. For Small Wireless Facilities installed before the City establishes an Underground District, the City shall either permit Wireless Providers to

maintain the Small Wireless Facilities in place or permit the Wireless Provider to replace the associated Pole within fifty (50) feet of the prior location. In the latter case, the Wireless Provider shall allow other Communications Service Providers with attachments on the existing Pole to place those attachments on the replacement Pole under the same or reasonably similar fees, rates, terms, and conditions as applied to those attachments on the existing Pole.

(2) Historic and Underground Districts. The City may require reasonable, Technically Feasible, nondiscriminatory, and technologically neutral design and aesthetic requirements, stealth requirements, height limitations of no less than forty feet, and/or concealment measures in a Underground District or Historic District. For Applications to place Poles in a Underground District or a Historic District to deploy Small Wireless Facilities, the City may propose an alternate location in the ROW within two hundred fifty (250) feet of the location set forth in the Application. The Wireless Provider shall use the City’s proposed alternate location unless the location is not Technically Feasible or imposes significant additional costs. The Wireless Provider shall certify that it has made such a determination in good faith, based on the assessment of an engineer licensed in Ohio, and it shall provide a written summary of the basis for such determination.

This section may not be construed to limit a City’s authority to enforce historic preservation zoning regulations consistent with the preservation of local zoning authority under Chapter 1341 of the Codified Ordinances, the requirements for facility modifications under Small Cell Design Guidelines and Requirements Exhibit A, or the National Historic Preservation Act of 1966 (54 U.S.C. Section 300101 et seq.), and the regulations adopted to implement those laws.

(d) Appeals, Special Exceptions, and Variance Requirements. Appeals of administrative decisions and requests for special exceptions and variances from the provisions of this chapter, when strict application would result in an unnecessary hardship or in the inability to deploy needed Small Wireless Facilities, shall be heard and decided by the Board of Zoning Appeals or equivalent board for Supplemental Review Districts. An Applicant seeking a special exception to construct a new Decorative Pole, Pole, or Support Structure to Collocate a Small Wireless Facility in an Underground District shall demonstrate, including certification through an engineer, that it has diligently attempted to locate the proposed Decorative Pole, Pole, Support Structure, or Small Wireless Facility outside of the Underground District and that placement of the Decorative Pole, Pole, Support Structure, or Small Wireless Facility within the Underground District is necessary to provide the needed wireless coverage or capacity, and one or more of the following conditions exist supporting a Special Exception:

(1) No existing Pole or Support Structure is located within the location search radius or to the extent a Pole or Support Structure is located within the search radius, such Pole or Support Structure:

A. Is not available for Collocation under commercially reasonable rates, terms, and conditions;

B. Cannot accommodate the Collocation of the Small Wireless Facility and meet the technical requirements necessary to deliver adequate wireless service coverage or capacity; or

C. Would require modifications exceeding the height limitation imposed in Small Cell Design Guidelines and Requirements Exhibit A; or

(2) The only available option to deliver adequate wireless service coverage or capacity in the search radius requires modifications to an existing Pole or Support Structure exceeding the height limitation imposed in Small Cell Design Guidelines and Requirements Exhibit A or the installation of a new Pole or Support Structure for Collocation of a Small Wireless Facility, or

(3) The applicant has demonstrated other circumstances that, in the reasonable discretion of the applicable review body, warrant a special exception or variance.

The Applicant shall abide by the design, stealth, and concealment treatments imposed as conditions of the special exception.

(e) Existing Supplemental Review Districts. [Supplemental Review Districts approved by the City as of the effective date of this chapter are listed in Small Cell Design Guidelines and Requirements Exhibit A.] Nothing in this chapter shall prohibit or otherwise limit the City from establishing additional Supplemental Review Districts, provided however, that facilities and structures for which a Permit was approved or deemed approved pursuant to this chapter prior to the establishment of the additional Supplemental Review District remain subject to the provisions of this chapter, including routine maintenance and replacement of those facilities and structures as set out herein. If a Wireless Provider voluntarily replaces such facilities in a manner that does not comply Small Cell Design Guidelines and Requirements Exhibit A Ordinance, or if a Wireless Provider voluntarily relocates such facilities, such replacement or relocation is subject to the then-existing provisions and requirements of the additional Supplemental Review District.

(f) Decorative Poles. Subject to the City’s ability to deny an Application as set forth in this chapter, a Wireless Provider must be permitted to Collocate on or replace Decorative Poles when necessary to deploy a Small Wireless Facility.

(1) The City may require the Collocation on a Decorative Pole or the replacement of a Decorative Pole to reasonably conform to the design aesthetics of the original Decorative Pole, provided these requirements are Technically Feasible.

(2) For Applications to Collocate Small Wireless Facilities on Decorative Poles or to replace Decorative Poles to deploy Small Wireless Facilities, the City may propose an alternate location in the ROW within two hundred fifty (250) feet of the location set forth in the Application. The Wireless Provider shall use the City’s proposed alternate location unless the location is not Technically Feasible or imposes significant additional costs. The Wireless Provider shall certify that it has made such a determination in good faith, based on the assessment of an engineer licensed in Ohio, and it shall provide a written summary of the basis for such determination.

(g) Repair of Damage. A Wireless Provider shall repair all damage to the ROW directly caused by the activities of the Wireless Provider in the ROW and shall restore the ROW to its condition before the damage occurred. If within thirty (30) calendar days after written notice the Wireless Provider fails to the extent practicable in the reasonable judgment of the City to restore the ROW to its condition prior to the damage in compliance with this subsection, the City may, at the sole discretion of the City , restore the ROW to such condition and charge the applicable party the reasonable, documented cost of the restoration, plus a penalty not to exceed five hundred dollars ($500.00) provided; however, that the Wireless Provider may request additional time to make such repairs, and the City shall not unreasonably deny such a request. The City may suspend the ability of the Wireless Provider to receive any new Permits from the City until the Wireless Provider has paid the amount assessed for such restoration costs. The City shall not suspend such ability of any Applicant that has deposited the amount in controversy in escrow pending an adjudication of the merits of the dispute.

(Ord. 11-22. Passed 2-7-22.)

1149.10 CONSTRUCTION PERMITS.

(a) Construction Permit Requirement. Except as otherwise provided in the Code, no Person may Construct in any Right-Of-Way without first having obtained a Construction Permit as set forth below. This requirement shall be in addition to any requirement set forth in Chapter 1149 of the Code.

(1) A Construction Permit allows the Permittee to Construct in that part of the Right-Of-Way described in such Construction Permit and to obstruct travel over the specified portion of the Right-Of-Way by placing Facilities described therein, to the extent and for the duration specified therein.

(2) A Construction Permit is valid only for the dates and the area of Rights-Of-Way specified in the Construction Permit.

(3) No Permittee may Construct in the Right-Of-Way beyond the date or dates specified in the Construction Permit unless such Permittee:

A. Submits a Supplementary Application for another Construction Permit before the expiration of the initial Construction Permit; and

B. Is granted a new Construction Permit or Construction Permit Extension.

(4) Original Construction Permits issued pursuant to this Section 1149.10 shall, when possible, be conspicuously displayed at all times at the indicated work site and shall be available for inspection by Inspectors and authorized City personnel. If the original Construction Permit involves work conducted simultaneously at multiple locations, each location shall display a photocopy of the original Construction Permit. If the original Construction Permit is not conspicuously displayed at the indicated work site, then upon request, the original Construction Permit must be produced within twelve (12) hours or the first earliest Business Hour, whichever is later. For purposes of this Section, Business Hour shall mean the hours between 8:00 a.m. and 5:00 p.m. during a Business Day.

(b) Construction Permit Applications.

(1) Application for a Construction Permit shall be made to the Service Director.

(2) All Construction Permit Applications shall contain, and will be considered complete only upon compliance with the requirements of the following provisions:

A. Credible evidence that the Applicant (where required) has been issued a Right-Of-Way Occupancy Permit or proof that the Applicant has written authority to apply for a Construction Permit on behalf of a party that has been issued a Right-Of-Way Occupancy Permit;

B. Submission of a completed Construction Permit Application in the form required by the Service Director, including, but not limited to, all required attachments and dated drawings showing the location and area of the proposed project, number and location of street cuts, and the location of all then known existing and proposed Facilities of the Applicant or Permittee within the proposed project area. All drawings, plans and specifications submitted with the Application shall comply with applicable technical codes, Rules and Regulations and be certified as to being in such compliance by trained technical personnel acceptable to the Service Director. The mapping data is only required to be at the "Atlas" level of detail necessary for the

City to reasonably determine the location of the Permittee's Facilities in the Right-Of-Way. The City reserves the right, in circumstances that the Service Director considers unique, complex or unusual, to request that certain submitted drawings, plans and specifications be accompanied by the certification of a registered licensed professional engineer;

C. A City approved traffic control plan demonstrating the protective measures and devices that will be employed, consistent with the OMUTCD, to prevent injury or damage to Persons or property and to minimize disruptions to efficient pedestrian and vehicular traffic;

D. If the Applicant wants to install new Facilities, if specifically requested by the Service Director, evidence that there is no surplus space and evidence that the Applicant has received an appropriate Permit and is adhering to the City's Rules and Regulations; and

E. If Applicant is proposing an above ground installation on existing poles within the Right-Of-Way, the applicant shall provide credible information satisfactory to the City to sufficiently detail and identify:

(i) The size and height of the existing poles;

(ii) Based on the Facilities currently on the existing poles and if specifically requested by the Service Director, the excess capacity currently available on such poles before installation of Applicant's Facilities; and

(iii) Based on the Facilities currently on the existing poles and if specifically requested by the Service Director, the excess capacity for like or similar Facilities that will exist on such poles after installation of Applicant's Facilities.

F. If the Applicant proposes to install new poles within the Right-Of-Way, the Applicant shall provide:

(i) Credible evidence, if specifically requested by the Director of Public Works, satisfactory to the City that there is no excess capacity on existing poles or in existing underground systems;

(ii) Credible evidence to the City that it is not financially and/or technically practicable for the Applicant to make an underground installation or locate its Facilities on existing poles;

(iii) The location, size, height, color, and material of the proposed poles; and

(iv) Credible evidence satisfactory to the City that the Applicant will adhere to all the applicable Laws concerning the installation of new poles.

G. If Applicant is proposing an underground installation in existing ducts or conduits within the Right-Of-Way, the Applicant shall provide Credible information satisfactory to the City to sufficiently detail and identify:

(i) Based on the existing Facilities, the excess capacity for like or similar Facilities currently available in such ducts or conduits before installation of Applicant's Facilities; and

(ii) Based on existing Facilities, the excess capacity for like or similar Facilities that will exist in such ducts or conduits after installation of Applicant's Facilities.

H. If Applicant is proposing an underground installation within new ducts or conduits to be constructed within the Right-Of-Way, the Applicant must provide Credible information satisfactory to the City to sufficiently detail and identify:

(i) The location, depth, size, and quantity of proposed new ducts or conduits; and

(ii) The excess capacity for like or similar equipment that will exist in such ducts or conduits after installation of Applicant's Facilities.

I. A preliminary Construction schedule and completion date; and

J. Payment of all money due to the City for:

(i) Permit Fees;

(ii) Any loss, damage, or expense suffered by the City as a result of Applicant's prior Construction in the Right-Of-Way or any Emergency actions taken by the City;

(iii) Any Right-Of-Way Occupancy Permit issued to the Applicant/Person whose Facilities are being Constructed; and

(iv) Any other money due to the City from the Applicant/Person whose Facilities are being Constructed

K. In addition to the above requirements, Applicant must comply with all applicable construction guidelines.

L. When a Construction Permit is requested for purposes of installing additional Facilities or any part of a Facility, the posting of a Construction Bond and Removal Bond, acceptable to the City and subject to Chapter 1149, for the additional Facilities or any part of a Facility is required.

M. Upon request, the Service Director may modify or waive the information requirements if they are not necessary in evaluating the Construction Permit application. The Service Director may request applicable and pertinent additional information if it is necessary in evaluating the Construction Permit application.

(c) Issuance of Permit; Conditions. If the City determines that the Applicant has satisfied the requirements of Chapter and the Construction Permit process, the Service Director shall issue a Construction Permit subject to the provisions of this Section 1149.10(c)(2). The City may impose reasonable conditions upon the issuance of the Construction Permit and the performance of the Permittee thereunder in order to protect the public health, safety and welfare, to insure the structural integrity of the Right-Of-Way, to protect the property and safety of other users of the Right-Of-Way, and to minimize the disruption and inconvenience to the traveling public.

(d) Construction Permit Fees.

(1) The City shall annually calculate Construction Permit Fees and appropriately revise any prior year's Construction Permit Fees based upon the formula and calculations described in this Section 1149.l5(d). Construction Permit Fees shall remain in effect until the City's next annual modification of the Construction Permit Fees.

(2) The City, on or about January 1st of each year, shall calculate all the actual and incurred Construction Permit issuance, inspection, oversight, enforcement and regulation costs for the previous calendar year including the value of the degradation and reduction in the useful life of the Right-Of-Way that will result from Construction that takes place therein. "Degradation and the reduction in the useful life" for the purpose of this Section means the accelerated depreciation of the Right-Of-Way caused by Construction in or disturbance of the Right-Of-Way, resulting in the need to reconstruct or repair such Right-Of-Way earlier than would be required if the Construction did not occur.

(3) The City, on or about January 1st of each year; shall total all the Construction Permit Fee receipts received in accordance with the scheduled fees required by the prior year's Construction Permit Fees for the previous calendar year.

(4) The City shall divide the calculated costs referenced in Section 1149.10(d)(2) herein, by the total Construction Permit Fees received as referenced in Section 1149.10(d)(3) herein, to arrive at a numerical factor representing the previous year's cost versus receipts analysis.

(5) The City shall multiply the then currently codified Construction Permit Fees by the numerical factor as referenced in Section 1149.15(d)(4) herein, to calculate revised Permit Fees for the new calendar year.

(6) The City shall act, on or about January 31st of each year, in accordance with the results of Section 1149.15(d)(5), to codify new annual Permit Fees by separate legislation enacted by Council by appropriately increasing or decreasing the previous year's Permit Fees. Revised Permit Fees shall be effective upon passage. Any Permit requests pending on the date of any annual Permit Fee modification shall be subject to all new Permit Fees as modified.

(7) Except as provided in subsection Section 1149.15(d)(8) herein, no Construction Permit shall be issued without payment of Construction Permit Fees except to the City (exclusive of its enterprise fund agencies which shall be required to obtain Construction Permits) which shall be exempt. Construction Permit Fees that were paid for a Permit that the City has revoked due to breach and in accordance with the terms of Sections 1149.10 or 1149 13(e) are not refundable.

(8) The City Auditor may permit a Permittee to make quarterly payments of Construction Permit Fees based upon the Permittee's financial condition and past payment history. The quarterly payment shall be due and payable within thirty (30) days after the end of the quarter. The City Auditor may revoke this permission due to a change in financial condition, late payment, or other just cause.

(e) Joint Applications. Applicants are encouraged to submit joint Applications for Construction Permits to work in the Right-Of-Way at the same place and time. Joint Applicants shall have the ability to divide amongst themselves, in proportions the parties find appropriate, any applicable Construction Permit Fees.

(Ord. 11-22. Passed 2-7-22.)

1149.11 CONSTRUCTION, RELOCATION AND RESTORATION.

(a) Utility Engineering Study Required.

(1) Prior to commencement of any initial Construction, extension, or relocation of Facilities in the Right-Of-Way, except for repair, maintenance or replacement with like Facilities or relocations requested or caused by a third party (excluding the City) or another Permittee, a Permittee shall conduct a utility engineering study on the proposed route of Construction expansion or relocation unless the Service Director issues a written exception. Where such Construction and/or relocation is requested or caused by a third party, every Permittee located within the Right-Of-Way at issue or involved with the work shall use all Best Efforts to cooperate and assist any other Permittee or person who is directed by the City to perform the required utility engineering study. A utility engineering study consists of, at minimum, completion of the following tasks:

A. Secure all available "as-built" plans, plats and other location data indicating the existence and approximate location of all Facilities along the proposed Construction route.

B. Visibly survey and record the location and dimensions of any Facilities along the proposed Construction route, including, but not limited to, manholes, valve boxes, utility boxes, posts and visible street cut repairs.

C, Determine and record the presence and precise location of all Underground Facilities the Applicant or Person on whose behalf the Permit was applied for owns or controls in the Right-Of-Way along the proposed route. Upon request of the Service Director, a Permittee shall also record and identify the general location of all other Facilities in the Right-Of-Way along the proposed route. For the purposes of this Section, general location shall mean the alignment of other Facilities in the Right-Of-Way but shall not necessarily mean the depth of other Facilities in the Right-Of-Way.

D. Plot and incorporate the data obtained from completion of the tasks described in Section 1149.11(a)(1)A. - C. herein, on the Construction Permittee's proposed route maps and Construction plans.

E. Where the proposed location of Facilities and the location of existing Underground Facilities appear to conflict on the plans drafted in accordance with Section 1149.11(a)(1)D., Permittee has the option of either utilizing non-destructive digging methods, such as vacuum excavation, at the critical points identified to determine as precisely as possible, the horizontal, vertical and spatial position, composition, size and other specifications of the conflicting Underground Facilities, or re-designing the Construction plans to eliminate the apparent conflict. Unless waived by the Director of Public Works, a Permittee shall not excavate more than a three (3) feet by three (3) feet square hole in the Right-Of-Way to complete this task.

F. Based on all of the data collected upon completion of the tasks described in this section, adjust the proposed design to avoid the need to relocate other Underground Facilities.

(2) The Service Director may modify the scope of the utility engineering study as necessary depending on the proposed Construction plans.

(b) Copy to City. Upon completion of the tasks described in Section 1149.11(a) above, the Construction Permittee shall submit, if necessary labeled in accordance with the requirements of Ohio R.C. 1020.06(B), the proposed route maps and Construction Plans, with the results of the utility engineering study, in the most advanced format (including, but not limited to electronic and/or digital format) then currently being used by the Permittee that the City is capable of reading (or readily converting to a readable form). The mapping data is only required to be at the "Atlas" level of detail necessary for the City to reasonably determine the location of the Permittee's Facilities in the Right-Of-Way. The Permittee shall supply the mapping data on paper if the Service Director determines that the format currently being used by the Permittee is not capable of being read by the City.

(c) Qualified Firm. All utility engineering studies conducted pursuant to this section shall be performed by the Permittee if in the discretion of the Service Director the Construction Permittee is qualified to complete the project itself. Alternatively, utility engineering studies shall be performed by a firm specializing in utility engineering that is approved by the City.

(d) Cost of Study. The Permittee shall bear the cost of compliance with Section 1149.11(a)-(c).

(e) Construction Schedule. Unless otherwise provided for in Chapter 1149 or in the Rules and Regulations, or unless the Service Director waives any of the requirements of this Section due to unique or unusual circumstances, a Permittee shall be required to submit a written Construction schedule to the City five (5) Working Days before commencing any work in or about the Right-Of-Way, and shall further notify the City not less than one (1) Working Day in advance of any excavation in the Right-Of-Way. This Section shall apply to all situations with the exception of circumstances under Section 1149.13(d)(l) (Emergency Situations) and Section 1149.12 (Minor Maintenance) herein.

(f) Location of Facilities.

(1) The placement of new Facilities and replacement of old Facilities, either above ground or underground, shall be completed in conformity with applicable Laws and the City's Rules and Regulations.

(2) The City shall have the power to prohibit or limit the placement of new or additional Facilities within the Right-Of-Way if the Right-Of-Way is full, or if the area is designated solely for undergrounding in accordance with Section 4939.0314 of the Ohio Revised Code. In making such decisions, the City shall strive to the extent possible to accommodate all existing and potential users of the Right-Of-Way, but shall be guided primarily by considerations of the public health, safety and welfare, the condition of the Right-Of-Way, the time of year with respect to essential Utilities, the protection of existing Facilities in the Right-Of-Way, future City and County plans for public improvements, development projects which have been determined to be in the public interest and nondiscriminatory and competitively neutral treatment among Permittees.

(g) Least Disruptive Technology. All Construction or maintenance of Facilities shall be accomplished in the manner resulting in the least amount of damage and disruption of the Right-Of-Way. Specifically, every Permittee when performing underground Construction, if technically and/or technologically feasible and not economically unreasonable, shall utilize Trenchless Technology, including, but not limited to, horizontal drilling, directional boring, and microtunneling. In addition, all cable, wire or fiber optic cable installed in the subsurface Right-Of-Way pursuant to Chapter 1149 may be required to be installed in conduit, and if so required, no cable, wire or fiber optic cable may be installed pursuant to Chapter 1149 using "direct bury" techniques.

(h) Special Exceptions. The City may grant a special exception to the requirements of Sections 1149.11(f) and 1149.11(g) if a Permittee, upon application, demonstrates with written evidence that:

(1) The exception will not create any threat to the public health, safety or welfare;

(2) Permittee demonstrates that the increased economic burden and the potential adverse impact on the Permittee's Construction schedule resulting from the strict enforcement of the requirement actually or effectively inhibits the ability of the Permittee to provide Services in the City.

(3) The Permittee demonstrates that the requirement unreasonably discriminates against the Permittee in favor of another Person.

(4) The requirements requested by the City herein create an unreasonable economic burden for the Permittee that outweighs any potential benefit to the City.

(i) Relocation of Facilities.

(1) A Permittee shall as promptly as reasonably possible and at its own expense, permanently remove and relocate its Facilities in the Right-Of-Way whenever the City finds it necessary to request such removal and relocation. In instances where the City requests removal and/or relocation, the City shall waive all applicable Construction Permit Fees. Upon removal and/or relocation, the Permittee shall restore the Right-Of-Way to the same or better condition it was in prior to said removal or relocation. If existing poles are required to be removed and/or relocated, then the existing poles will be replaced with poles of the same or similar size. In accordance with Law, the Service Director may request relocation and/or removal in order to prevent unreasonable interference by the Permittee's Facilities with:

A. A public improvement undertaken or approved by the City;

B. The public health, safety, and welfare, or when necessary to prevent interference with the safety and convenience of ordinary travel over the Right-Of-Way; or

C. The sale, conveyance, vacation, or narrowing of all or any part of a Right-Of-Way.

(2) Notwithstanding the foregoing, a Permittee who has Facilities in the Right-Of-Way subject to a vacation or narrowing that is not required for the purposes of the City, shall have a permanent easement in such vacated portion or excess portion in conformity with Ohio R.C. 723.041.

(3) If, in the reasonable judgment of the City, a Permittee fails to commence removal and/or relocation of its Facilities as designated by the City, within thirty (30) days after the City's removal order, or if a Permittee fails to substantially complete such removal, including all associated repair of the Right-Of-Way of the City, within twelve (12) months thereafter, then, to the extent not inconsistent with applicable Law, the City shall have the right to:

A. Declare that all rights, title and interest to the Facilities belong to the City with all rights of ownership, including, but not limited to, the right to connect and use the Facilities or to effect a transfer of all right, title and interest in the Facilities to another Person for operation; or

B. Authorize removal of the Facilities installed by the Permittee in, on, over or under the Right-Of-Way of the City at Permittee's cost and expense, by another Person; however, the City shall have no liability for any damage caused by such action and the Permittee shall be liable to the City for all reasonable costs incurred by the City in such action; and

C. To the extent consistent with applicable Law, any portion of the Permittee's Facilities in, on, over or under the Right-Of-Way of the City designated by the City for removal and not timely removed by the Permittee shall belong to and become the property of the City without payment to the Permittee, and the Permittee shall execute and deliver such documents, as the City shall request, in form and substance acceptable to the City, to evidence such ownership by the City.

(j) Pre-Excavation Facilities Location. Before the start date of any Right-Of-Way excavation, each Permittee who has Facilities located in the area to be excavated shall, to the best of its ability, mark the horizontal and approximate vertical placement of all its Facilities. All Permittees shall also notify and work closely with the excavation contractor in an effort to establish the exact location of its Facilities and the best procedure for excavation.

(k) Right-Of-Way Restoration.

(1) The work to be done under the Permit, and the Restoration of the Right-Of-Way as required herein, weather permitting, must be completed within the dates specified in the Permit. In addition to its own work, the Permittee must restore the general area of the work, and the surrounding areas, including trench backfill, paving and its foundations in accordance with the Code and Rules and Regulations. If a Permittee is unable to timely complete the restoration of Right-Of-Way due to unreasonable inclement weather conditions, the Permittee shall complete the restoration of the Right-Of-Way as soon as weather conditions make it possible to do so and upon said completion notify the City.

(2) In approving an Application for a Construction Permit, the City may choose either to have the Permittee restore the Right-Of-Way or alternatively to restore the Right-Of-Way itself if the Permittee has in the past not abided by requirements of Chapter 1149.

(3) If the City allows a Permittee to restore the Right-Of-Way, the Permittee may at the time of Application for a Construction Permit be required to post a Construction Bond in an amount determined by the City to be sufficient to cover the cost of restoring the Right-Of-Way to its approximate pre-excavation condition. If, twelve (12) months after completion of the Restoration of the Right-Of-Way, the City determines that the Right-Of-Way have been properly restored, the surety on the Construction Bond shall be released.

(4) The Permittee shall perform the work according to the standards and with the materials specified by the City. The City shall have the authority to prescribe the manner and extent of the Restoration and may do so in written procedures of general application or on a case-by-case basis. The City in exercising this authority shall be guided by the following standards and considerations: the number, size, depth and duration of the excavations, disruptions or damage to the Right-Of-Way; the traffic volume carried by the Right-Of-Way; the character of the neighborhood surrounding the Right-Of-Way; the pre-excavation condition of the Right-Of-Way; the remaining life-expectancy of the Right-Of-Way affected by the excavation; whether the relative cost of the method of Restoration to the Permittee is in reasonable balance with the prevention of an accelerated depreciation of the Right-Of-Way that would otherwise result from the excavation, disturbance or damage to the Right-Of-Way; and the likelihood that the particular method of Restoration would be effective in slowing the depreciation of the Right-Of-Way that would otherwise take place. Methods of Restoration may include, but are not limited to, patching the affected area, replacement of the Right-Of-Way base at the affected area, and in the most severe cases; milling, overlay and/or street reconstruction of the entire area of the Right-Of-Way affected by the work.

(5) By restoring the Right-Of-Way itself, the Permittee guarantees its work and shall maintain it for twelve (12) months following its completion. During this twelve (12) month period, it shall, upon notification from the Service Director, correct all Restoration work to the extent necessary using the method required by the Service Director. Weather permitting, said work shall be completed within five (5) calendar days of the receipt of the notice from the Service Director, unless otherwise extended by the Service Director.

(6) If the Permittee fails to restore the Right-Of-Way in the manner and to the condition required by the City or fails to satisfactorily and timely complete all repairs required by the City, the City, at its option, may do such work. In that event, the Permittee shall pay to the City, within thirty (30) days of billing, the Restoration cost of restoring the Right-Of-Way and any other costs incurred by the City. Upon failure to pay, the City may call upon any bond or letter of credit posted by Permittee and/or pursue any and all legal and equitable remedies.

(7) If the work to be done under the Permit is being done at the same location and the same period of time as work by the City and/ or another Permittee(s), then the Service Director may reasonably apportion the Restoration responsibility among the City, Permittees and/or other Persons.

(l) Damage to Other Facilities.

(1) Each Permittee shall be responsible for the cost of repairing any City-owned Facilities in the Right-Of-Way which the Permittee or its Facilities damage.

(2) In the case of an Emergency, and if possible after reasonable efforts to contact the Permittee seeking a timely response, when the City performs work in the Right-Of-Way and finds it necessary, as may be allowed by Law, to maintain, support, or move a Permittee's Facilities to protect those Facilities, the costs associated therewith will be billed to that Permittee and shall be paid within thirty (30) days from the date of billing. Upon failure to pay, the City may pursue all legal and equitable remedies in the event a Permittee does not pay, or the City may call upon any bond or letter of credit posted by the Permittee and pursue any and all legal or equitable remedies. Each Permittee shall be responsible for the cost of repairing any damage to the Facilities of another Permittee caused during the City's response to an Emergency occasioned by that Permittee's Facilities.

(m) Right-Of-Way Vacation. If the City sells or otherwise transfers a Right-Of-Way which contains the Facilities of a Permittee, such sale or transfer shall be subject to any existing easements of record and any easements required pursuant to Ohio R.C. 723.041.

(n) Installation Requirements. The excavation, backfilling, Restoration, and all other work performed in the Right-Of-Way shall be performed in conformance with all applicable Laws, Rules and Regulations, other standards as may be promulgated by the Service Director.

(o) Inspection. When the Construction under any Permit hereunder is completed, the Permittee shall notify the Service Director.

(1) The Permittee shall make the Construction site available to the Inspector and to all others as authorized by Law for inspection at all reasonable times during the execution and upon completion of the Construction.

(2) At the time of inspection, the Inspector may order the immediate cessation of any work which poses a serious threat to the life, health, safety or well-being of the public, violates any law or which violates the terms and conditions of the Permit and/or Chapter 1149.

(3) The Inspector may issue an order to the Permittee for any work which does not conform to the Permit and/or applicable standards, conditions or codes. The order shall state that failure to correct the violation will be cause for revocation of the Permit. The order may be served on the Permittee at pursuant to Section 1149.28(d). An order may be appealed to the Service Director. The decision of the Service Director may be appealed to the Mayor whose decision shall be final. If not appealed, within ten (10) days after issuance of the order, the Permittee shall present proof to the Service Director that the violation has been corrected. If such proof has not been presented within the required time, the Service Director may revoke the Permit pursuant to Section 1149.13(e).

(p) Other Obligations.

(1) Obtaining a Construction Permit does not relieve Permittee of its duty to obtain all other necessary Permits, licenses, and authority and to pay all fees required by any other Laws.

(2) Permittee shall comply with all requirements of all Laws, including the Ohio Utility Protection Service.

(3) Permittee shall perform all work in conformance with all applicable Laws and standards and is responsible for all work done in the Right-Of-Way pursuant to its Permit, regardless of who performs the work.

(4) No Right-Of-Way obstruction or excavation may be performed when seasonally prohibited or when conditions are unreasonable for such work, except in the case of an Emergency as outlined in Section 1149.13(d)(1).

(5) Permittee shall not obstruct a Right-Of-Way so that the natural free and clear passage of water through the gutters or other waterways shall be interfered with. The Service Director may waive this requirement if it is technically or economically unreasonable in the circumstances.

(6) Private vehicles other than necessary Construction vehicles may not be parked within or adjacent to a Permit area. The loading or unloading of trucks adjacent to a Permit area is prohibited unless specifically authorized by the Permit.

(q) Undergrounding Required. Where not otherwise required to be placed underground by Chapter 1149 and in accordance with Ohio R.C. 4939.0314(G) to the extent it is in effect a Permittee shall locate Facilities underground at the request of an adjacent property owner, provided that such placement of Facilities underground is consistent with the Permittee's normal construction and operating standards and that the additional costs of such undergrounding over the normal aerial or above ground placement costs of identical Facilities are home directly by the property owner making the request. A Permittee, under any circumstance shall, upon the reasonable request of the City, always use Best Efforts to place Facilities underground. Where technically possible and not economically unreasonable or unsafe (based upon the technology employed and Facilities installed), all Facilities to be installed by a Permittee under the Right-of-Way shall be installed in conduit.

(Ord. 11-22. Passed 2-7-22.)

1149.12 MINOR MAINTENANCE PERMIT.

(a) Right-Of-Way Minor Maintenance Permit Requirement. No Person shall perform Minor Maintenance of Facilities in the Right-Of-Way without first having obtained a Right-Of-Way Minor Maintenance Permit as set forth in this Chapter. Minor Maintenance means: (i) the routine repair or replacement of Facilities with like Facilities not involving Construction and not requiring traffic control for more than two (2) hours at any one location; (ii) the routine repair or replacement of Facilities with like Facilities not involving Construction and taking place on thoroughfares and arteries between the hours of 9:00 A.M. and 3:00 P.M.; (iii) the routine repair or replacement of Facilities with like Facilities not involving construction on all Right-Of-Ways, other than thoroughfares and arterials, that does not impede traffic and is for a period of less than eight (8) contiguous hours; (iv) Construction other than on thoroughfares and arterials that takes less than eight (8) contiguous hours to complete, does not impede traffic and does not involve a pavement cut; (v) minor and/or non-material vegetation management/tree pruning. The Service Director may adopt Rules and Regulations pursuant to Section 1149.18 that clarify the definition of Minor Maintenance and/or provide a process for a Permittee to determine whether particular activity constitutes Minor Maintenance.

(1) A Right of Way Minor Maintenance Permit allows the Right of Way Minor Maintenance Permittee to perform all minor maintenance in any part of the Right-Of-Way as required.

(2) A Right-Of-Way Minor Maintenance Permit is valid from the date of issuance until revoked by the Service Director.

(3) A Right-Of-Way Minor Maintenance permit must be displayed or upon request produced within twelve (12) business hours.

(4) A Right-Of-Way Minor Maintenance Permit by itself shall under no circumstances provide a Permittee with the ability to cut pavement without seeking additional authority from the Service Director.

(b) Right-Of-Way Minor Maintenance Permits Are Not Required For: The routine maintenance of Wireless Facilities, or the replacement of Wireless Facilities with Wireless Facilities that are consistent with the City's current design guidelines and are either substantially similar to the existing Wireless Facilities or the same size or smaller than the existing Wireless Facilities.

(c) Right-Of-Way Minor Maintenance Permit Applications. Application for a Right-Of-Way Minor Maintenance Permit shall be made to the Service Director. In addition to any information required by the Director of Public Works, all Right-Of-Way Minor Maintenance Permit Applications shall contain, and will only be considered complete upon compliance with the following provisions:

(1) Credible evidence that the Applicant has obtained a Right-Of-Way Occupancy Permit or proof that the Applicant has written authority to apply for a Right-Of-Way Minor Maintenance Permit on behalf of a party that has been issued a Right-Of-Way Occupancy Permit.

(2) Submission of a completed Right-Of-Way Minor Maintenance Permit Application in the form required by the Service Director.

(3) A statement that the Applicant will employ protective measures and devices that, consistent with the OMUTCD, will prevent injury or damage to Persons or property and to minimize disruptions to the efficient movement of pedestrian and vehicular traffic.

(d) Issuance of Right of Way Minor Maintenance Permits; Conditions.

(1) If the Service Director determines that the Applicant has satisfied the requirements of this Chapter and the Right of Way Minor Maintenance Permit process, the Service Director shall issue a Right-Of-Way Minor Maintenance Permit subject to the provisions of this Chapter.

(2) The City may impose reasonable conditions, in addition to the Rules and Regulations enacted by the Service Director, upon the issuance of the Right-Of-Way Minor Maintenance Permit and the performance of the Right of Way Minor Maintenance Permittee thereunder in order to protect the public health, safety, and welfare, to insure the structural integrity of the Right-Of-Way, to protect the property and safety of other users of the Right-Of-Way, and to minimize the disruption and inconvenience to the traveling public.

(e) Right-Of-Way Minor Maintenance Permit Fees. The Service Director shall not charge a fee for the issuance of the Right of Way Minor Maintenance Permit but may revoke the Right-Of-Way Minor Maintenance Permit as any other Permit may be revoked under this Chapter.

(Ord. 11-22. Passed 2-7-22.)

1149.13 ENFORCEMENT OF PERMIT OBLIGATION.

(a) Mandatory Denial of Permit. Except in the case of an Emergency, no Permit will be granted:

(1) To any Person who has not yet made an Application;

(2) To any Person who has outstanding debt owed to the City unless payment in full has been placed in an escrow account approved by the City Auditor;

(3) To any Person as to whom there exists grounds for the revocation of a Permit; or

(4) If, in the discretion of the Service Director, the issuance of a Permit for the particular date and/or time would cause a conflict or interfere with an exhibition, celebration, festival, or any other event. The Service Director, in exercising this discretion, shall be guided by the safety and convenience of ordinary travel of the public over the Right-Of-Way, and by considerations relating to the public health, safety and welfare.

(b) Permissive Denial of Permit. The Service Director may deny a Permit in order to protect the public health, safety and welfare, to prevent interference with the safety and convenience of ordinary travel over the Right-Of-Way, or when necessary to protect the Right-Of-Way and its users.

(1) The Service Director, in his/her discretion, may consider one or more of the following factors:

A. The extent to which Right-Of-Way space where the Permit is sought is available;

B. The competing demands for the particular space in the Right-Of-Way;

C. The availability of other locations in the Right-Of-Way or in another Right-Of-Way for the proposed Facilities;

D. The applicability of Chapter 1149 or other regulations of the Right-Of-Way that affect location of Facilities in the Right-Of-Way;

E. The degree of compliance of the Permittee with the terms and conditions of its Right-Of-Way Occupancy Permit, Chapter 1149, and other applicable ordinances and regulations;

F. The degree of disruption to surrounding communities and businesses that will result from the use of that part of the Right-Of-Way;

G. The condition and age of the Right-Of-Way, and whether and when it is scheduled for total or partial re-construction;

H. The balancing of the costs of disruption to the public and damage to the Right-Of-Way, against the benefits to that part of the public served by the expansion into additional parts of the Right-Of-Way; or,

I. Whether such Applicant or its agent has failed within the past three (3) years to comply, or is presently not in full compliance with, the requirements of Chapter 1149 or, if applicable, any other Law.

(2) Under no circumstances will open cutting take place on a newly constructed street within twenty-four (24) months after construction completion or a newly reconstructed street within twenty-four (24) months of reconstruction completion, except where:

A. An Emergency situation requires that an open cut is necessary;

B. Vital services to resident(s) or business(es) are needed or have been cut off and there is no reasonable alternative (such as jacking or boring) in supplying or restoring such services; or

C. The Service Director determines it is in the best interests of the City that such an open cut take place.

(1) Notwithstanding the provisions of Section 1149.13(a)(1) and Section 1149.13(a)(2), the Service Director may issue a Permit in any case where the Permit is necessary;

A. To prevent substantial economic hardship to a customer of the Permit Applicant, if established by Credible evidence satisfactory to the City;

B. To allow such customer to materially improve its Service; or

C. To allow a new economic development project to be granted a Permit under this section.

(2) To be granted a Permit under this Section, the Permit Applicant must not have had knowledge of the hardship, the plans for improvement of Service, or the development project when it was required to submit its list of next year projects.

(d) Work Done Without a Permit in Emergency Situations.

(1) Each Permittee shall, as soon as is practicable, immediately notify the Service Director of any event regarding its Facilities which it considers to be an Emergency. The Permittee may proceed to take whatever actions are necessary in order to respond to the Emergency. Within five (5) business days, unless otherwise extended by the Service Director, after the occurrence or discovery of the Emergency (whichever is later), the Permittee shall apply for the necessary Permits, pay the fees associated therewith and fulfill the rest of the requirements necessary to bring itself into compliance with Chapter 1149 for any and all actions taken in response to the Emergency. In the event that the City becomes aware of an Emergency regarding a Permittee's Facilities, the City shall use Best Efforts to contact the Permittee or the Representative of each Permittee affected, or potentially affected, by the Emergency. In any event, the City may take whatever action it deems necessary in order to respond to the Emergency, the cost of which shall be borne by the Permittee whose Facilities caused the Emergency.

(2) Except in the case of an Emergency, any Permittee who Constructs in, on, above, within, over, below or through a Right-Of-Way without a· valid Permit must subsequently obtain a Permit, pay double the normal fee for said Permit, pay double all the other fees required by the Code, deposit with the City the fees necessary to correct any damage to the Right-Of-Way and comply with all of the requirements of Chapter 1149.

(e) Revocation of Permits.

(1) Permittees hold Permits issued pursuant to the Code as a privilege and not as a right. The City reserves its right, as provided herein, to revoke any Permit, without refunding any fees, in the event of a substantial breach of the terms and conditions of any Law, or any provision or condition of the Permit. A substantial breach by Permittee shall include, but shall not be limited to, any of the following:

A. The violation of any provision or condition of the Permit;

B. An evasion or attempt to evade any provision or condition of the Permit, or the perpetration or attempt to perpetrate any fraud or deceit upon the City or its citizens;

C. Any material misrepresentation of fact in the Application for a Permit;

D. The failure to maintain the required Construction or Removal Bonds and /or insurance;

E. The failure to obtain and/or maintain, when required, a Right-Of-Way Occupancy Permit;

F. The failure to complete the Construction in a timely manner; or

G. The failure to correct a condition of an order issued pursuant to Section 1149.11(o)(3)

(2) If the Service Director determines that the Permittee has committed a substantial breach of a term or condition of any Law or any condition of the Permit, the Service Director shall serve a written demand upon the Permittee to remedy such violation. The demand shall state that continued violations may be cause for revocation of the Permit. Upon a substantial breach, as stated above, the Service Director may place additional or revised conditions on the Permit.

(3) By the close of the second business day following receipt of notification of the breach, Permittee shall contact the Service Director with a plan, acceptable to the Service Director, for its correction. Permittee's failure to so contact the Service Director, or the Permittee's failure to submit an acceptable plan, or Permittee's failure to reasonably implement the approved plan, shall be cause for immediate revocation of the Permit.

(4) If a Permittee commits a second substantial default as outlined above, Permittee's Permit will automatically be revoked, and the Permittee will not be allowed further Permits for up to and including one (1) full year, except for Emergency repairs.

(5) If a Permit is revoked, the Permittee shall also reimburse the City for the City's reasonable costs, including Restoration costs and the costs of collection and reasonable attorneys' fees incurred in connection with such revocation. (Ord. 11-22. Passed 2-7-22.)

1149.14 CONSTRUCTION AND REMOVAL BONDS.

(a) Construction Bond. Prior to the commencement of any Construction, a Construction Permittee, excluding the County, shall deposit with the Service Director an irrevocable, unconditional letter of credit and/or surety bond in an amount determined by the Service Director to be appropriate based upon fair and reasonable criteria. Unless a Construction default, problem or deficiency involves an Emergency or endangers the safety of the general public, the Service Director shall serve written notice to the Construction Permittee detailing the Construction default, problem or deficiency. If the Service Director determines that correction or repair of the Construction default, problem or deficiency has not occurred or has not been substantially initiated within ten (10) calendar days after the date following service and notification and detailing the Construction default, problem or deficiency, then the City may attach the letter of credit or surety bond. Upon attachment, written notice shall be served on the Construction Permittee by the Service Director.

(b) Removal Bond. Upon issuance of a Right-Of-Way Occupancy Permit and continuously thereafter, and until one hundred twenty (120) days after a Permittee's Facilities have been removed from the Right-Of-Way, (unless the Service Director notifies the Permittee that a reasonably longer period shall apply), a Permittee shall deposit with the Service Director and maintain an irrevocable, unconditional letter of credit or surety bond in an amount equal to or greater than One hundred thousand dollars (US$100,000.00), the Service Director shall make all reasonable efforts to allow Permittee a period of five (5) calendar days after serving notification in writing to correct or repair any default, problem or deficiency prior to the Service Director attachment of the letter of credit or surety bond regarding the removal of Facilities. Upon attachment, written notice shall be provided to the Permittee by the Service Director.

(c) Blanket Bond. In lieu of the Construction Bond required by Section 1149.14(a) and the Removal Bond required by Section 1149.14(b), Permittee may deposit with the Director of Public Services an irrevocable, unconditional letter of credit and/or surety bond in the amount of five million dollars (US$5,000,000.00). Unless a Construction default, problem or deficiency involves an Emergency or endangers the safety of the general public, the Service Director shall make all reasonable effort to allow Permittee a period of five (5) calendar days after sending notification in writing to correct or repair any default, problem or deficiency prior to Service Director's attachment of the letter of credit or surety bond.

(d) Self Bonding. In lieu of the Construction Bond required by Section 1149.14(a), the Removal Bond required by Section 1149.14(b) and the Blanket Bond required by Section 1149.19(c), those Permittees maintaining a book value in excess of fifty million dollars (US $50,000,000.00) may submit a statement to the Service Director requesting to self-bond. If approval to self-bond is granted, a Permittee shall assure the City that such self-bonding shall provide the City with no less protection and security than would have been afforded to the City by a third-party surety providing Permittee with the types and amounts of bonds detailed in the above-named Sections. This statement shall include:

(1) Audited financial statements for the previous year;

(2) A description of the Applicant's self-bonding program; and,

(3) Other applicable and pertinent information as reasonably requested by the Director of Public Works.

(e) Purposes. The bonds required by this section, and any self-bonding to the extent it has been permitted, shall serve as security for:

(1) The faithful performance by the Permittee of all terms, conditions and obligations of Chapter 1149;

(2) Any expenditure, damage, or loss incurred by the City occasioned by the Permittee or Permittee's violation of Chapter 1149 or its failure to comply with all rules, regulations, orders, Permits and other directives of the City issued pursuant to Chapter 1149; and

(3) The payment of all compensation due to the City, including Permit Fees;

(4) The payment of premiums (if any) for the liability insurance required pursuant to Chapter ;

(5) The removal of Facilities from the Right-Of-Way pursuant to Chapter 1149;

(6) The payment to the City of any amounts for which the Permittee is liable that are not paid by its insurance or other surety; and,

(7) The payment of any other amounts which become due to the City pursuant to Chapter 1149 or the Law.

(f) Form. The bond documents required by this Section and any replacement bond documents shall contain the following endorsement: "It is hereby understood and agreed that this bond may not be canceled or not renewed by the surety nor the intention to cancel or not to renew be stated by the surety until ninety (90) days after completion of Construction of the Facilities and, notwithstanding the foregoing, shall in no case be canceled or not renewed by the surety until at least ninety (90) days' written notice to City of surety's intention to cancel or not renew this bond.

(Ord. 11-22. Passed 2-7-22.)

1149.15 REPORTING REQUIREMENTS.

(a) Construction and Major Maintenance Plan. Each Permittee shall, at the time of initial Application and by January 1 of each following year, file a Construction and Major Maintenance Plan with the Director of Public Service. Such Construction and Major Maintenance Plan shall be provided for all geographical areas requested by the Director of Public Service, up to and including the entire geographical area of the City. It shall be submitted using a format(s) mutually agreeable to the Permittee and the City and shall contain the information determined by the Director of Public Service to be necessary to facilitate the coordination and reduction in the frequency of Construction in the Right-Of-Way. The Construction and Major Maintenance Plan shall include, but not be limited to all currently scheduled and/or anticipated Construction projects for the next calendar year, and if none are scheduled or anticipated then the Plan shall so state. The Permittee shall use its Best Efforts in supplying this information and shall update the Construction and Major Maintenance Plan on file with the Director of Public Service whenever there is a material change in scheduled and/or anticipated Construction projects. In an effort to assist Permittees with the completion of their annual Construction and Major Maintenance Plan, the Director of Public Service, on or before October 1st of each year, will send each Permittee's Representative a descriptive narrative (and any mapping information reasonably available) for all the planned Right of Way improvements and/or scheduled maintenance that the City then currently intends to undertake during the next calendar year. The City may, in its sole discretion, update and/or modify the descriptive narrative and mapping information provided.

(b) Mapping Data. With the filing of its Application for a Right-Of-Way Occupancy Permit, a Permittee shall be required to accurately inform the City of the number of miles (rounded up to the nearest mile) of Right-Of-Way the Permittee then currently occupies and begin submitting to the City all information that currently exists and which can be provided regarding the location of its Facilities in the Right-Of-Way in hard copy or in the most advanced format (including, but not limited to, electronic and/or digital format) then currently being used by the Permittee that the City is capable of reading or readily converting to a readable form. Unless otherwise required by Section 1149.10(b), a Permittee shall have up to one (1) year from the date of the Permittee's initial filing of an Application for a Right-Of-Way Occupancy Permit to completely submit all the mapping data in the entire geographical area of the City which it owns or over which it has control that are located in any Right-Of-Way of the City. The mapping data is only required to be at the "Atlas" level of detail necessary for the City to reasonably determine the location of the Permittee's Facilities in the Right-Of-Way. Any time after the issuance of a Right-Of-Way Occupancy Permit, and upon the reasonable request of the Director of Public Service, a Permittee shall be required to provide to the City any additional location information for any Facilities which it owns or over which it has control that are located in any Right-Of-Way of the City required by the City. Any and all actual direct, incidental and indirect costs incurred by the City during the process of reviewing, inputting and/or converting a Permittee's mapping information to comport with the City's then current standard format (whether electronic or otherwise) shall be directly billed to, and must be timely remitted by, the Permittee. Failure to pay such mapping costs within sixty (60) days of receipt of an invoice shall subject an Applicant or Permittee to revocation of its Right-Of-Way Occupancy Permit and the penalties of Section 1149.99. Further, each Permittee that has been issued a Right-Of-Way Occupancy Permit shall accurately inform the City on or before each subsequent January 1st of the number of miles (rounded up to the nearest mile) of Right-Of-Way the Permittee's then occupied as of the immediately previous December 1st. The Director of Public Service may, in the future, adopt additional specifications and further define or modify the mapping data requirements under this section for reasons including, but not limited to, changes in technology or the Law regarding public disclosure of a Permittee's mapping information. When the City modifies and/or amends

the mapping data requirements, the City shall use Best Efforts to avoid unreasonably increasing the burden to the Permittees that may be associated with satisfying the amended mapping requirements. When the mapping requirements of Section 1149.15(b) are amended, each Permittee shall be served with a copy of the new specifications or modifications by regular U.S. Mail to the representative identified in each Right-Of-Way Occupancy Permit; provided, however, that any failure of any Permittee to actually receive such notice shall not in any way affect the validity or enforceability of said specifications or modifications.

(c) Exemption from Disclosure. In the event that the City receives a request from a third party for the disclosure of information a provider has clearly marked as Confidential/Proprietary Information, the City shall respond in accordance with Ohio R.C. Chapter 149. However, the City will endeavor to notify the Permittee of any such request prior to making the subject document(s) available for inspection or copying, at which point it will be the Permittee's sole and exclusive responsibility to take whatever steps it deems necessary to protect such documents from disclosure.

(Ord. 11-22. Passed 2-7-22.)

1149.16 COMPENSATION.

(a) As compensation for the City's costs to administer Chapter 1149, manage, administer and control the Right-Of-Way and maintain each Right-Of-Way Occupancy Permit issued, every Permittee shall pay to the City a Registration Maintenance Fee. The Registration Maintenance Fee shall be determined and assessed to Permittees and other Persons operating or otherwise using and occupying the Right-Of-Way in accordance with the following process and formula:

(1) The City by February 28th of each year, shall calculate all actual and incurred costs associated with Right-Of-Way management, administration and control for the previous calendar year that the City was not able to reasonably recover through Construction Permit Fees or other recovery mechanisms provided for in Chapter 1149.

(2) Permittees and Applicants, as required in Section 1149.15(b), shall accurately inform the City upon application for a Right-Of-Way Occupancy Permit and on or before each subsequent January 1st of the number of miles (rounded up to the nearest mile) of Right-of-Way the Permittee's Facilities occupied as of the immediately previous December.

(3) The City shall total the entire number of miles of Right-Of-Way reported as being used or occupied by all Permittees.

(4) The City shall divide the calculated costs referenced in Section 1149.16(a)(1) by the total number of miles of Right-Of-Way reported as being used or occupied by all Permittees as referenced in Section 1149.16(a)(3) to arrive at a per-mile cost number.

(5) The City shall then multiply each Permittee's mileage calculation as referenced in Section 1149.16(a)(2) by the per-mile cost calculation referenced in Section 1149.16(a)(4). The product shall be a Permittee's annual Registration Maintenance Fee.

(6) The City shall perform its annual calculation of Registration Maintenance Fees following receipt of the Permittees required December mileage report. Registration Maintenance Fees shall be invoiced to Permittees on or about March 1 of each calendar year and shall be due thirty (30) days following receipt.

(7) Cable companies operating under non-exclusive Cable Franchises for the purposes of providing Cable Service, Video Services Permittee operating under a VSA for the purpose of providing Video Services, and Permittees of Open Video System services, which compensate the City under other mechanisms in an amount equal to or greater than the Annual Registration Maintenance Fee that would normally be required for their Right of Way use in The City, shall have the mileage of the Right-Of-Way they use and/or occupy included in the calculations described in Section 1149.16, but shall not be required to contribute to the recovery of Right-Of-Way Costs as defined by Chapter 1149 with the exception of Permit Costs.

(8) The City may by separate legislation enacted by City Council on or about February 28th of each year, in accordance with the results of Section 1149.16(a)(4), enact an initial and thereafter a new annual Registration Maintenance Fee (per mile) by appropriately increasing or decreasing the previous year(s) Registration Maintenance Fee (per mile). Revised Registration Maintenance Fees shall be effective upon passage.

(b) Timing. Registration Maintenance Fees shall be paid each calendar year in accordance with Section 1149.16(a)(6). Registration Maintenance Fees shall be paid in full for the first year of the registration as a condition of the Right-Of-Way Occupancy Permit becoming effective. Fees may be prorated from the effective date of the Right-Of-Way Occupancy Permit to the end of the calendar year if less than one (1) full year.

(c) Taxes and Assessments. To the extent taxes or other assessments are imposed by any taxing authority or community authority on the use of City property as a result of a Permittee's use or occupation of the Right-Of-Way, the Permittee shall be responsible for payment of such taxes or assessments. Such payments shall be in addition to any other fees payable pursuant to Chapter 1149 and shall not be considered an offset to, or in lieu of, the fees and charges listed in Chapter 1149. The Registration Maintenance Fee is not in lieu of any tax, fee, or other assessment except as specifically provided in Chapter 1149, or as required by applicable Law.

(d) Interest on Late Payments. In the event that any Registration Maintenance Fee is not paid to the City by April 1, the Permittee shall pay a monthly late charge of one percent (1 %) of the unpaid balance for each month or any portion thereof for which payment is not made.

(e) No Accord and Satisfaction. No acceptance by the City of any Registration Maintenance Fee shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such acceptance of such Registration Maintenance Fee payment be construed as a release of any claim the City may have for additional sums payable.

(Ord. 11-22. Passed 2-7-22.)

1149.17 CITY USE OF FACILITIES.

(a) Except for traffic control Facilities and Facilities in place as of the effective date of this Chapter, Facilities that are the subject of other agreements between the City and a Permittee, or as otherwise provided by law, the City shall not install or maintain upon any poles and within any underground pipes or conduits or other Facilities of any general Right-Of-Way Occupancy Permittee, any Facilities desired by the City for the City's use without the consent of such Permittee unless: (i) such installation and maintenance is lawful and consistent with good engineering and construction practice and all appropriate safety codes; (ii) such installation and maintenance does not unreasonably and materially interfere with existing and future operations of the Permittee; (iii) such installation and maintenance is not unduly burdensome to such Permittee; (iv) the City enters into an agreement with the Permittee which specifies other appropriate and reasonable terms and conditions, including compensation based upon the City's proportionate cost of the Right-Of-Way, and including compensation governing the use of Permittee's Facilities; and (v) the City's use is non-discriminatory. Each Permittee shall cooperate with the City in the development of a facility use agreement for such City Facilities. 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. Copies of all agreements hereunder shall be filed with the Mayor or his designee.

(Ord. 11-22. Passed 2-7-22.)

1149.18 ADOPTION OF REGULATIONS.

(a) In accordance with the provisions of subsection (c) of this section, the Mayor may promulgate regulations, as the Mayor or his designee deems appropriate from time to time, to carry out the express purposes and intent of this chapter.

(b) Such regulations shall not materially increase the obligations of any Permittee hereunder. In promulgating such regulations, including those related to Section 1149.06, the Mayor shall, among other appropriate factors, consider the costs of Permittee compliance as an important factor in determining the appropriateness of the regulations.

(c) The Mayor shall promulgate proposed regulations by forwarding legislation for City Council's consideration. Each General Right-Of-Way Occupancy Permittee shall be served with a copy of the proposed regulations by certified U.S. mail; provided, however, that any failure of any Permittee to actually receive such notice shall not in any way affect the validity or enforceability of such regulation. Any person, including any Permittee, may file specific written comments or objections on the proposed regulations within a thirty (30)-day period after publication of notice of intent in a publication of general circulation (hereinafter "comment period"). The proposed regulations shall become effective thirty (30) days after adoption by City Council, unless such regulation is modified or rejected by City Council.

(d) The City Council may adopt emergency regulations to be immediately effective, when the City Council determines the same to be appropriate or required by the public health, safety or welfare; provided, however, that any such regulation shall nonetheless be subject to the comment and review process as set forth in subsection (d) of this section.

(Ord. 11-22. Passed 2-7-22.)

1149.19 INDEMNITY; INSURANCE.

(a) Except for 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 and its agents, officers, elected officials, employees, volunteers, and subcontractors from and against all damages, costs, losses or expenses:

(1) For the repair, replacement, or restoration of City property, equipment, materials, structures and Facilities which are damaged, destroyed or found to be defective as a result of such Permittee's acts or omissions; and

(2) From and against any and all claims, demands, suits, causes of action, and judgments:

A. For damage to or loss of the property of any Person, and/or the death, bodily injury, illness, disease, worker's compensation, loss of services, or loss of income or wages to any Person;

B. Arising out of, incident to, concerning or resulting from the act or omissions of such Permittee, its agents, employees, and/or subcontractors, in the performance of activities pursuant to such Right-Of-Way Occupancy Permit, no matter how, or to whom, such loss may occur.

(3) The requirement to defend, indemnify and hold harmless shall not extend to the negligence of the City or its agents, elected officials, officers, employees, volunteers and subcontractors, to the extent that the existence of such negligence shall be proven to exist.

(b) Except for Right-Of-Way Occupancy 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 follows:

(1) Comprehensive general liability insurance to cover liability, bodily injury, and property damage must be maintained. Coverage must be written on an occurrence basis, with the following minimum limits of liability and provisions, or their equivalent:

A. Bodily injury:

Each occurrence - one million dollars (US$1,000,000.00)

Annual aggregate - three million dollars (US$3,000,000.00)

B. Property damage:

Each occurrence - one million dollars (US$1,000,000.00)

Annual aggregate - three million dollars (US$3,000,000.00)

C. Personal Injury:

Annual aggregate - three million dollars (US$3,000,000.00)

D. Completed operations and products liability shall be maintained for six (6) months after the termination of a Right-Of-Way Occupancy Permit.

E. Property damage liability insurance shall include coverage for the following hazards: E - explosion, C - collapse, U - underground.

(2) Comprehensive auto liability insurance: Comprehensive auto liability insurance to cover owned, hired, and non-owned vehicles must be maintained. Applicant may maintain comprehensive auto liability insurance as part of Applicant's comprehensive general liability insurance, however, said insurance is subject to approval by the Director of Public Service or his/her designee. Coverage must be written on an occurrence basis, with the following limits of liability and provisions, or their equivalent:

A. Bodily injury:

Each occurrence - one million dollars (US$1,000,000.00)

Annual aggregate - three million dollars (US$3,000,000.00)

B. Property damage:

Each occurrence - one million dollars (US$1,000,000.00)

Annual aggregate - three million dollars (US$3,000,000.00)

(3) Additional insurance: The City reserves the right to require any other insurance coverage it deems necessary after review of any proposal submitted by Applicant.

(4) Self-insurance: Those Applicants maintaining a book value in excess of fifty million dollars (US$50,000,000.00) may submit a statement requesting to self-insure. If approval to self-insure is granted, Applicant shall assure the City that such self-insurance shall provide the City with no less than would have been afforded to the City by a third-party insurer providing Applicant with the types and amounts of coverage detailed in this Section. This statement shall include:

A. Audited financial statements for the previous year;

B. A description of the Applicant's self-insurance program;

C. A listing of any and all actions against or claims made against Applicant for amounts over one million dollars (US$1,000,000.00) or proof of available excess umbrella liability coverage to satisfy all total current claim amounts above fifty million dollars (US$50,000,000.00); and,

D. The Director of Public Service may modify or waive these requirements if they are not necessary in determining the sufficiency of the self-insurance. The Director of Public Service may request applicable and pertinent additional information if it is necessary in determining the sufficiency of the self-insurance.

(c) The Permittee shall also provide documentation they maintain standard workers' compensation coverage as required by Law. Similarly, Permittee shall require any subcontractor to provide workers' compensation coverage in amounts required by Law for all of the subcontractor's employees.

(d) The City's examination of, or failure to request or demand, any evidence of insurance in accordance with subsection (b) hereof shall not constitute a waiver of any requirement of this section and the existence of any insurance shall not limit Applicant's obligations under subsection (b) hereof.

(e) If the Permittee is a corporation, upon request of the City, Permittee shall provide a copy of the certificate of incorporation (or its legal equivalent) as recorded and certified to by the secretary of state (or legal equivalent) in the state or country in which incorporated.

(Ord. 11-22. Passed 2-7-22.)

1149.20 DISCONTINUANCE OF OPERATIONS, ABANDONED AND UNUSED FACILITIES.

(a) Except for Right-Of-Way Occupancy Permittees for residential purposes, when the permit so allows, any Right-Of-Way Occupancy Permittee that intends to discontinue or is discontinuing its operations of any Facilities within the Rights-Of-Way shall first:

(1) Submit a written notice to the Mayor, describing the portion of the Facilities to be discontinued and abandoned, any plan for securing the same and the proposed date of abandonment, which date shall not be less than sixty (60) days from the date such notice is submitted to the Mayor or provide information satisfactory to the Mayor that the Right-Of-Way Occupancy Permittees' obligations for its Facilities in the Right-Of-Way under this section and any other sections in the Chapter have been lawfully assumed by another Right-Of-Way Occupancy Permittee;

(2) Submit a written proposal to re-use its Facilities in a manner that promotes the City's goals of providing innovative and economic solutions to efficiently and economically utilize limited Right-Of Way capacity. Such proposal must be approved or denied by the Mayor. The Mayors denial of a proposal to re-use its Facilities shall be made in writing and describe the reasons for such a denial. The denial may be appealed by the Right-Of-Way Occupancy Permittee to the Mayor. The decision of the Mayor shall be final;

(3) Submit a written proposal for abandonment of Facilities in place indicating why good engineering practice would support this type of solution. The Mayor must approve or deny said proposal. The Mayor's denial of a proposal to abandon Facilities in place shall be done in writing and describe the reasons for such a denial. The denial may be appealed by the Right-Of-Way Occupancy Permittee to the Mayor. The decision of the Mayor shall be final;

(4) Completely remove all specifically identified portion(s) of its Facilities in a manner acceptable to the City within a reasonable amount of time if the City believes that there exists a reasonable justification for such removal; or

(5) Submit to the City within a reasonable amount of time and in accordance with Ohio R.C. 4905.20 and 4905.21, a proposal for transferring ownership of its Facilities to the City. If a Right-Of-Way Occupancy Permittee proceeds under this clause, the City may, at its option where lawful: (i) purchase the Facilities; or, (ii) unless a valid removal bond has already been posted, require the Right-Of-Way Occupancy Permittee to post a bond in an amount sufficient to reimburse the City for reasonably anticipated costs to be incurred in removing the Facilities.

(b) Facilities of a Right-Of-Way Occupancy Permittee who fail to comply with this section and which remain unused Facilities shall be deemed to be abandoned. Abandoned Facilities are deemed to be a nuisance. The City may exercise any remedies or rights it has at Law or in equity, including, but not limited to:

(1) Abating the nuisance;

(2) Taking possession of the Facilities and restoring them to a useable condition subject to a finding of the PUCO pursuant to the requirements of Ohio R.C. 4905.20 and 4905.21; or

(3) Requiring removal of the Facilities by the Right-Of-Way Occupancy Permittee or by the Right-Of-Way Occupancy Permittee's surety.

(c) If the City requires a Right-Of-Way Occupancy Permittee to remove unused Facilities in any Right-Of-Way, the City shall use reasonable efforts to direct that this removal occur in conjunction with other scheduled excavations of the Right-Of-Way. If the City abates the nuisance it may take all action necessary to recover its costs and to abate said nuisance, including but not limited to, those methods set forth in Ohio R.C. §715.261. The City shall have no liability for any damage caused by such action and the Permittee shall be liable to the City for all reasonable costs incurred by the City in such action.

(Ord. 11-22. Passed 2-7-22.)

1149.21 REVOCATION.

(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 subsection (b) of this section, any Right-Of-Way Occupancy Permit in the event such Permittee violates any material provision of this chapter, its Right-Of-Way Occupancy Permit, Chapter 1149.

(b) The Mayor shall give a Permittee thirty (30) days prior written notice of an intent to revoke said Permittee's Right-Of-Way Occupancy 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 Mayor to remedy the stated violation, the Mayor may rescind said notice of revocation. If the Permittee does not cure the stated violation or other cause or undertake efforts satisfactory to the Mayor to remedy the stated violation, the Mayor 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 Occupancy Permit. Unless otherwise required by law, the decision of the City Council shall be final.

(c) Unless otherwise permitted by the Mayor or required by law, if a Right-Of-Way Occupancy Permit is revoked, all Facilities located in the Rights-Of-Way or located upon public property pursuant to such permit shall be removed and/or abandoned at the sole expense of the Permittee subject to applicable law, including but not limited to Ohio R.C. 4905.20 and 4905.21.

(Ord. 11-22. Passed 2-7-22.)

1149.22 RESERVATION OF RIGHTS.

(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 non-proprietary City utility, including street lighting, telecommunications 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 or 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 regulations.

(Ord. 11-22. Passed 2-7-22.)

1149.23 TEMPORARY MOVEMENT OF FACILITIES.

(a) 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 weeks written notice by the Mayor to the Permittee, the Permittee shall, at the expense of the person requesting the temporary removal of such Facilities, comply with the Mayor's request; provided that the Permittee's expense has been reasonably secured by the person so requesting.

(Ord. 11-22. Passed 2-7-22.)

1149.24 ASSIGNMENT OR TRANSFER OF OWNERSHIP; RENEWAL.

(a) A Right-Of-Way Occupancy Permit shall not be assigned or transferred, either in whole or in part, other than to an Affiliate, without the prior written consent of the City, which consent shall not be unreasonably withheld. Any assignment or transfer of Right-Of-Way Occupancy Permit, including an assignment or transfer by means of a fundamental corporate change, requires the written approval of the City. For purposes of this section, fundamental corporate change means the sale or transfer of a controlling interest in the stock of a corporation or the sale or transfer of all or a majority of a corporation's assets, merger (including a parent and its subsidiary corporation), consolidation or creation of a subsidiary corporation. For the purposes of this section, fundamental partnership change means the sale or transfer of all or a majority of a partnership's assets, change of a general partner in a limited partnership, change from a limited to a general partnership, incorporation of a partnership, or change in the control of a partnership.

(b) The parties to the assignment or transfer of Right-Of-Way Occupancy Permit shall make a written request to the City for its consent in the form of the Right-Of-Way Occupancy Permit Application. The City shall reply in writing within sixty (60) days of actual receipt of the request and shall indicate its approval of the request or its determination that a public hearing is necessary. City may conduct a public hearing on the request within thirty (30) days of such determination if it determines that a sale or transfer of the Right-Of-Way Occupancy Permit adversely affects the City.

(c) Notice of a hearing shall be given fourteen (14) days prior to the hearing by publishing notice thereof once in a newspaper of general circulation in the City. The notice shall contain the date, time and place of the hearing and shall briefly state the substance of the action to be considered by City.

(d) The City will review the qualifications (including, but not limited to legal, technical and financial where appropriate) of the proposed assignee or transferee and terms of the existing Right-Of-Way Occupancy Permit. City will make its decision in writing setting forth any conditions for assignment or transfer. Within one hundred and twenty (120) days of actual receipt of the request for assignment or transfer, the City shall approve or deny such assignment or transfer request in writing.

(e) In no event shall a transfer or assignment of ownership or control be ultimately acceptable to the City without transferee or assignee requesting and being issued a replacement Right-Of-Way Occupancy Permit within ninety (90) days of transfer or assignment.

(f) Notwithstanding anything to the contrary, no such consent or approval shall be required for a transfer or assignment to any Person controlling, controlled by or under the same common control of the original holder of the Right-Of-Way Occupancy Permit.

(Ord. 11-22. Passed 2-7-22.)

1149.25 FORECLOSURE AND RECEIVERSHIP.

(a) Upon the filing of any voluntary or involuntary petition under the Bankruptcy Act by or against the Permittee, or any action for foreclosure or other judicial sale of the Permittee's Facilities located within the Right-Of-Way, the Permittee shall promptly notify the Mayor, Service Director, and Auditor of such fact.

(Ord. 11-22. Passed 2-7-22.)

1149.26 UNAUTHORIZED USE OF RIGHT-OF-WAY.

(a) No Person shall use the Right-Of-Way to operate any Facility that has not been authorized by the City in accordance with the terms of Chapter 1149 and been issued a Right-Of-Way Occupancy Permit.

(b) No Person shall place or have placed any Facilities in, on, above, within, over, below, under, or through the Right-Of-Way, unless allowed under Chapter 1149 or having been issued a Right-Of-Way Occupancy Permit.

(c) Each and every unauthorized use shall be deemed to be a violation and a distinct and separate offense. Each and every day any violation of Chapter 1149 continues shall constitute a distinct and separate offense.

(d) No Person shall fail to comply with the provisions of Chapter 1149. Each and every failure to comply shall be deemed a distinct and separate offense. Each and every day any violation of Chapter 1149 continues shall constitute a distinct and separate offense.

(e) The violation of any provision of Chapter shall be unlawful and a misdemeanor offense. The penalty for any violation of Chapter 1149 shall be as provided in Section 1149.99.

(f) The Permittee shall not be relieved of its obligation to comply with any of the provisions of its Right-Of-Way Occupancy Permit or this chapter by reason of any failure of the City to enforce prompt compliance.

(Ord. 11-22. Passed 2-7-22.)

1149.27 GENERAL PROVISIONS.

(a) Non-exclusive Remedy. The remedies provided in Chapter 1149 are not exclusive or in lieu of other rights and remedies that the City may have at Law or in equity. The City is hereby authorized at any time to seek legal and equitable relief for actual or threatened injury to the public Right-Of-Way, including damages to the Right-Of-Way, whether caused by a violation of any of the provisions of Chapter 1149 or other provisions of the Code.

(b) Severability. If any section, subsection, sentence, clause, phrase, or portion of Chapter 1149 is for any reason held invalid or unconstitutional by any court or administrative agency of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions thereof. If a regulatory body or a court of competent jurisdiction should determine by a final, non-appealable order that any Permit, right or any portions of this section are illegal or unenforceable, then any such Permit or right granted or deemed to exist hereunder shall be considered as a revocable Permit with a mutual right of either party to terminate without cause upon giving sixty (60) days written notice to the other. The requirements and conditions of such a revocable Permit shall be the same requirements and conditions as set forth in the Permit, right or registration, respectively, except for conditions relating to the term of the Permit and the right of termination. If a Permit or right shall be considered a revocable Permit as provided herein, the Permittee must acknowledge the authority of the City to issue such revocable Permit and the power to revoke it.

(c) Reservation of Regulatory and Police Powers. The City, by the granting of a Permit or by issuing a Right-Of-Way Occupancy Permit pursuant to Chapter 1149, does not surrender or to any extent lose, waive, impair, or lessen the lawful powers and rights, which it has now or may be hereafter vested in the City under the Constitution and Laws of the United States, State of Ohio and under the Charter of the City to regulate the use of the Right-Of-Way. The Permittee by its acceptance of a Permit, or Permittee by applying for and being issued a Right-Of-Way Occupancy Permit, is deemed to acknowledge that all lawful powers and rights, regulatory power, or police power, or otherwise as now are or the same as may be from time to time vested in or reserved to the City, shall be in full force and effect and subject to the exercise thereof by the City at any time. A Permittee or Permittee is deemed to acknowledge that its rights are subject to the regulatory and police powers of the City to adopt and enforce general ordinances necessary to the safety and welfare of the public and is deemed to agree to comply with all applicable general Laws and ordinances enacted by the City pursuant to such powers.

(d) Method of Service. Any notice or order of the Director of Service or Mayor shall be deemed to be properly served if a copy thereof is:

(1) Delivered personally;

(2) Successfully transmitted via facsimile transmission to the last known fax number of the person to be served;

(3) Left at the usual place of business of the person to whom it is to be served upon and with someone who is eighteen (18) years of age or older;

(4) Sent by certified, preposted U.S. mail to the last known address;

(5) If the notice is attempted to be served by certified, preposted U.S. mail and then returned showing that the letter was not delivered, or the certified letter is not returned within fourteen (14) days after the date of mailing, then notice may be sent by regular, preposted, first-class U.S.; or

(6) If the notice is attempted to be served by regular, first class U.S. mail, postage prepaid, and the letter is then returned showing that the letter was not delivered or is not returned within fourteen (14) days after the date of mailing, then notice shall be posted in a conspicuous place in or about the structure, building, premises or property affected by such notice.

(e) Applies to All Permittees. Chapter 1149 shall apply to all Permittees and all Permittees unless expressly exempted.

(f) Police Powers. All Persons' rights are subject to the police powers of the City to adopt and enforce ordinances necessary to the health, safety and welfare of the public. All persons shall comply with all applicable Laws enacted by the City pursuant to its police powers. In particular, all persons shall comply with City zoning and other land use requirements pertaining to the placement and specifications of Facilities.

(g) Compliance. No Person shall be relieved of its obligation to comply with any of the provisions of Chapter 1149 by reason of any failure of the City to enforce prompt compliance.

(h) Force Majeure. In the event any Person's performance of any of the terms, conditions or obligations required by Chapter 1149 is prevented by a cause or event not within such Person's control, such inability to perform shall be deemed excused and no penalties or sanctions shall be imposed as a result thereof. For the purpose of this section, causes or events not within the control of a Permittee shall include, without limitation, acts of God, strikes, sabotage, riots or civil disturbances, failure or loss of, explosions, acts of public enemies, and natural disasters such as floods, earthquakes, landslides, and fires.

(i) No Warranty. The City makes no representation or warranty regarding its right to authorize the Construction of Facilities on any particular Rights-Of-Way. The burden and responsibility for making such determination shall be upon the Person installing Facilities in the Rights-Of-Way.

(j) Captions. The captions and headings in this Chapter are for convenience and reference purposes only and shall not affect in any way the meaning or interpretation of this Chapter. (Ord. 11-22. Passed 2-7-22.)

1149.28 PENALTY.

(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) For failure to comply with any other provision of this chapter, the penalty shall be a civil forfeiture, payable to the City, in an amount up to five hundred dollars ($500.00) per day for each day of violation. In addition, for failure to timely comply with a notice by the Mayor or his designee to remove or rearrange Facilities pursuant to Section 1149.06, 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 or liquidated damages charged the City by its contractors occasioned thereby, shall be imposed.

(2) A five percent (5%) late fee, accrued monthly, shall be assessed to all delinquent Right-Of-Way Occupancy Permit fees. Delinquent Permit Fees may result in the denial of future Right-Of-Way work permits.

(b) Any Permittee may be excused for violations of this chapter and its Right-Of-Way permit due to force majeure.

(Ord. 11-22. Passed 2-7-22.)

1149.99 CRIMINAL VIOLATION.

(a) Any Persons who intentionally or with reckless indifference to the consequences violates Chapter 1149 shall be guilty of;

(1) On First offense, a minor misdemeanor;

(2) On Second offense, a 4th degree misdemeanor

(3) On the Third and each subsequent offense, a misdemeanor of the 3rd degree.

(b) Each day constitutes a separate violation;

(d) Fines and other penalties are defined in Ohio R.C. 2929.28, and as amended, in the future. (Ord. 11-22. Passed 2-7-22.)

Dover City Zoning Code

TITLE NINE

Use District Provisions

1141.01 INTERPRETATION OF REGULATIONS; UNLISTED USES.

(Ord. 13-05. Passed 3-21-05.)

1141.02 SPECIAL AND RESIDENCE DISTRICT PERMITTED AND CONDITIONAL USES

PERMITTED USES

“S-1" Special	“R-1" Suburban Residence	“R-2" Low Density Residence	“R-3" Medium Density Residence	“R-4" High Density Residences and Offices	“R-5" Manufactured Home Residence
Parks	Single-family dwelling	Single-family dwelling	Single-family dwelling	Single-family dwelling	Single-family dwelling
Public uses	Public uses	Public uses	Duplex	Duplex
Semipublic uses	Semipublic uses	Semipublic uses	Multiple-family dwelling	Multiple-family dwelling
Essential services	Public service facility	Plant cultivation	Public uses	Public uses
Accessory uses	Essential services	Essential services	Semipublic uses	Semipublic uses
Conservation & highway interchange areas	Accessory uses	Accessory uses	Essential service	Essential service
Noncommercial recreational facility	Noncommercial recreational facilities		Accessory uses	Accessory uses
Agriculture & forestry	Agriculture & forestry
Plant cultivation	Plant cultivation			Rooming & boarding houses
				Institutions & banks
				Regional offices
				Insurance & real estate offices
				Personal services
				Professional activities

CONDITIONAL USES REQUIRING BOARD APPROVAL

“S-1" Special	“R-1" Suburban Residence	“R-2" Low Density Residence	“R-3" Medium Density Residence	“R-4" High Density Residences and Offices	“R-5" Manufactured Home Residence
Public service facility	Cemetery	Duplex	Public service facility	Noncommercial recreational facilities	Agriculture
Restricted commercial recreation facility	Specialized animal raising & care	Public service facility	Home occupations	Nursery schools	Duplex multi-family
Cemetery	Oil & gas wells	Noncommercial recreational facility	Rooming & boarding houses	Nursing homes
Airports	Sand & gravel extraction	Home occupations	Conversion of dwellings	Home occupations
Specialized animal raising & care	Home occupations	Green spaces	Nursing homes	Conversion of dwellings
Sand & gravel extraction			Noncommercial recreation facility	Mortuaries
			Insurance and real estate activities	Business services
			Mobile home parks	Public service facility
			Personal services	Plant cultivation
			Professional services	Restaurants and taverns
			Plant cultivation Uses authorized by Section 1121.561	Uses authorized by Section 1121.561

(Ord. 24-19. Passed 5-6-19.)

1141.03 BUSINESS AND INDUSTRIAL DISTRICT PERMITTED AND CONDITIONAL USES.

PERMITTED USES

“B-1" Local or Community Shopping Center	“B-2" Highway or General Business	“B-3" Central Business	“M-1" Restricted Industrial	“M-2" General Industrial
Retail goods:	Retail business	Retail business	Restricted manufacturing	General manufacturing
Food	Personal services	Personal services	Printing & publishing	Manufacturing, sale & storage of building materials
Apparel	Business services	Business services	Research & testing facilities	Transport & trucking terminals
Hardware	Professional activities	Professional activities	Public service facilities	Wholesale business
Home furnishings	Offices & banks	Commercial schools	Essential services	Warehousing
Eating & drinking	Restaurants & taverns	Offices & banks	Accessory uses	Sand & gravel extraction
Services:	Motel & hotels	Restaurants & taverns	Agriculture	Agriculture
Professional	Entertainment facilities	Automotive sales & repair	Automotive sales and repair	Food processing
Personal	Essential services	Hotels & motels	Construction related businesses	Grain elevators
Business	Accessory uses	Entertainment facilities	Self-service storage facilities	Offices
Financial	Automotive sales & repairs	Mortuaries	Indoor shooting ranges	Restricted manufacturing
Entertainment	Mortuaries	Public uses		Automotive sales and repair
Essential services	Shopping centers	Semipublic uses		Accessory uses
Accessory uses	Convenience shopping centers	Social activities		Construction related businesses
Shopping centers	Gasoline and service stations	Essential services		Self-service storage facilities
Convenience shopping centers	Printing and publishing	Convenience shopping centers		Indoor shooting ranges
	Bakeries and dairies	Accessory uses
		Printing and publishing
		Bakeries and dairies
	Uses authorized by Section 1121.561	Social activities and uses authorized by Section 1121.561	Uses authorized by Section 1121.561	Uses authorized by Section 1121.561

CONDITIONAL USES REQUIRING BOARD APPROVAL

“B-1" Local or Community Shopping Center	“B-2" Highway or General Business	“B-3" Central Business	“M-1" Restricted Industrial	“M-2" General Industrial
Gasoline stations	Semipublic uses	Gasoline stations	Food processing	Restaurants
Drive-in banks
Drive-in banks	Wholesale business	Wholesale business	Furniture manufacturing	Mineral extraction, storage & processing
Public uses	Sale or storage of building material	Drive-in commercial uses	Wholesale business	Auto & metal salvage operations
Semipublic uses	Food processing	Animal hospitals or clinics	Bakeries & dairies	Stockyards
Multiple dwellings	Animal hospitals & clinics	Recreational facilities	Retail services	Slaughterhouses
Noncommercial recreational facility	Noncommercial recreational facility	Tourist homes	Personal services	Petroleum refining & storage
Nursery schools	Nursery schools	Sale or storage of building material	Business service	Oil & gas wells
Nursing home	Public uses	Upper story residences	Professional activities	Printing and publishing
Automotive sales and repair	Construction related businesses	Multiple dwellings	Commercial schools
Mortuaries	Social activities	Noncommercial recreational facility	Offices and banks	Specialized animal raising and care
Construction related businesses	Multiple dwellings	Nursery schools	Restaurants and taverns	Research and testing facilities
Social activities	Nursing home	Nursing home	Entertainment facilities	Offices and banks
Self-service storage facilities	Transportation truck terminals	Shopping centers	Noncommercial recreational facility	Personal services
Indoor shooting ranges	Skill games businesses, adult oriented arcades, internet gaming cafes, sweepstakes businesses	Warehousing facilities	Public and semipublic uses	Business service
	Self-service storage facilities	Skill games businesses, adult oriented arcades, internet gaming cafes, sweepstakes businesses	Social activities	Professional activities
	Indoor shooting ranges	Self-service storage facilities	Restaurants and taverns	Commercial schools
		Indoor shooting ranges	Entertainment facilities	Noncommercial recreational facility
		Research and testing laboratories		Public and semipublic uses
				Social activities
				Retail services