CHAPTER 3

BUILDING REGULATIONS

   ARTICLE 3.01 GENERAL PROVISIONS

   (Reserved)

   ARTICLE 3.02 BUILDING CODE*

   Sec. 3.02.001     Adopted

There is hereby adopted for the purpose of establishing rules and regulations for the construction, alteration, removal, demolition, equipment, use and occupancy, location and maintenance of buildings and structures, including permits and penalties, that certain building code known as the International Building Code, 2012 edition. One copy of the code shall be on file at city hall and the same is hereby adopted and incorporated as fully as if set out at length herein. (Ordinance 901-2013 adopted 11/12/13)

   Sec. 3.02.002     Permits and certificates

(a)     It shall be unlawful for any person, firm or corporation to commence the construction, enlargement or structural alteration of any building in the city or use or occupy same without first applying for and securing a building permit or to use or occupy the same without first securing a certificate of occupancy and compliance from the building official. Application shall be made on forms furnished by the office of the building official. (1997 Code, sec. 3.102)

(b)     The city shall require a registered architect to prepare the plans and specifications for a new building intended for education, assembly, or office occupancy whose construction costs exceed one hundred thousand dollars ($100,000.00) and shall present such plans and specifications upon application for a building permit. (1997 Code, sec. 3.102; Ordinance 749-2001 adopted 4/10/01)

   Sec. 3.02.003     Building permit fees; certificate of occupancy

Section 33.1 of the zoning ordinance requires building permits and establishes the method for application. Building permit fees are as provided for in the fee schedule. A certificate of occupancy shall be required when commercial use changes and for a residence vacant for more than 90 days. The certificate of occupancy shall be issued by the building inspector and shall include the building inspection, electrical inspection, plumbing inspection, and fire protection. (1997 Code, sec. 3.103(a))

   Sec. 3.02.004     Issuance of building permits

Building permits shall be issued by the building official and/or his designee after review of permit applications. (1997 Code, sec. 3.103(b))

   Sec. 3.02.005     Penalties

(a)     All the foregoing amounts shall be doubled in the event that the permit called for in section 33 of the comprehensive zoning ordinance and this article is not received before work commences.

(b)     It shall be unlawful for any person, firm, or corporation to violate the provisions of this article. Any violation of said article shall be deemed a misdemeanor, and any person, firm or corporation convicted thereof shall be fined any sum not exceeding the maximum amount permitted by state law, and each and every day is a separate offense.

(1997 Code, sec. 3.103(c))

   ARTICLE 3.03 ELECTRICITY*

   Division 1. Generally

   Sec. 3.03.001     Short title

This article shall be known and may be cited as the electrical regulations of the city. (1997 Code, sec. 3.201)

   Sec. 3.03.002     Code adopted

The standards, rules and regulations provided in the 2011 National Electrical Code, are hereby adopted as the rules and regulations to govern and to be observed and followed in all electrical wiring, installation, repair, alteration, operation and maintenance of electrical wiring systems, apparatus, and fixtures and the same are hereby made a part of this article as full, and to the same extent as if copied herein in full. The National Electrical Code is subject, however, to the deletions, amendments and additions herein provided. A copy of said National Electrical Code referred to herein is on file in the office of the building official for reference and inspection and the same is hereby adopted and made a part of this article to the same extent as if set out herein in full. In the event of a conflict between the terms of this article and the 2011 edition of the National Electrical Code, the terms of this article shall control. (Ordinance 901-2013 adopted 11/12/13)

   Sec. 3.03.003     Amendments

The following shall be considered amendments to the International Electrical Code: (Ordinance 749-2001 adopted 4/10/01)

(1)     A minimum of one hundred (100) amps capacity on all permanent service and entrance is required on all new installations. A minimum No. 3 wire size if using copper. (Ordinance 825-2007 adopted 8/14/07)

(2)     Aluminum wire may be used only on the line side of the service entrance meter and must be underground wire only. Minimum wire size of any aluminum wire used under this provision shall be no. 1 AWG, and said wire shall be used only with approved insulation. Use of aluminum wire on the load side of the service entrance meter and from any point thereafter is expressly prohibited.

(3)     At any time flexible metal conduit longer than four (4) feet in length is installed, a grounded conductor no smaller than the circuit must also be installed for use therewith.

(1997 Code, sec. 3.203)

   Sec. 3.03.004     Scope

All electrical work installed within the city shall be installed in conformity with the provisions of this article, and it is hereby declared to be unlawful for any person, firm, or corporation to install any electrical work in violation of the provisions of this article. (1997 Code, sec. 3.204)

   Sec. 3.03.005     Definitions

As used in this article, the following words shall have the meanings respectively ascribed to them:

Apprentice. A person who is learning the trade of an electrician and who works only under the direct supervision of a “master” or “journeyman” electrician.

Electrical inspector. An individual who has been designated by the city council as an electrical inspector.

Electrical work.

(1)     All wiring, circuits, fixtures, appurtenances, and appliances for a supply of electrical power, for all personal, domestic, and commercial services in and about buildings or other structures where persons live, work, or assemble; all wiring, circuits, fixtures, appurtenances, and appliances outside such buildings or structures connecting the building with the source of electricity;

(2)     The installation, repair, and maintenance of all wiring, circuits, fixtures, appurtenances, and appliances in and about buildings or structures where persons live, work, or assemble, for a supply of electricity; and

(3)     All other activities, installations, or measures incidental to the distribution of electrical energy which are covered, regulated, or in any fashion controlled by this code.

Journeyman electrician. Any person who has received and holds a current and valid journeyman electrician license.

Master electrician. Any person who has received and holds a current and valid master electrician license.

(1997 Code, sec. 3.205)

   Sec. 3.03.006     Responsibility for safe work

The electrical regulations of this code shall not be construed to relieve from or lessen the responsibility or liability of any person owning, operating, or installing electrical conductors, devices, appliances, fixtures, apparatus, motors, or equipment, for damages to persons or buildings caused by any defect therein by reason of the inspection herein authorized; nor shall the city be held liable for any damages by reason of the enforcement of this code. (1997 Code, sec. 3.206)

   Sec. 3.03.007     Evidence of safe condition

Conformity of electrical equipment and installations with provisions of this article and the International Electrical Code shall be prima facie evidence that such equipment and installations are in safe condition, provided that such conformity does not conflict with this article or any other ordinance of the city or any state or federal laws or regulations. (1997 Code, sec. 3.207; Ordinance adopting Code)

   Sec. 3.03.008     Unused equipment

All unused electrical equipment within or on public or private buildings or premises shall be removed if such equipment, in the opinion of the electrical inspector, constitutes a hazard or danger to life or property. (1997 Code, sec. 3.208)

   Sec. 3.03.009     Electrical fences prohibited

Electrically charged fences of any type shall not be installed or used within the corporate limits of the city. (1997 Code, sec. 3.209)

   Sec. 3.03.010     Homeowner's rights

(a)     Nothing herein contained shall prohibit any homeowner from personally installing electrical conductors or equipment within his own home, provided that the owner shall file with the electrical inspector approved plans and specifications if requested to do so by the electrical inspector, satisfy the electrical inspector as to his ability to install electric wiring, apply for and secure a permit, pay required inspection fees, do work in accordance with this article, apply for an inspection, and receive a certificate of approval.

(b)     Personal installation by a homeowner under these homeowner rights shall be by himself, for himself, on his own home, or any single-family dwelling owned by him, without compensation, and no person shall be employed to assist him in any way in such work.

(1997 Code, sec. 3.211)

   Sec. 3.03.011     Penalty for violation

Any person, firm, or corporation who shall violate any of the provisions of this article or who shall fail to comply with the requirements of this article or of the electrical code hereby adopted shall be deemed guilty of a misdemeanor and upon conviction shall be fined in any sum in accordance with the general penalty found in section 1.01.009 of this code, and each and every day's continuance of any violation of the provisions of this article shall constitute and be deemed a separate offense. In case of any such violation of any of the terms or provisions of this article by any corporation, the officers and agents and person or persons actually performing the work for such corporation shall be subject to the penalties herein provided. (1997 Code, sec. 3.212)

   Secs. 3.03.012–3.03.020     Reserved

   Division 2. Electrical Inspector

   Sec. 3.03.021     Office created; qualifications

(a)     There is hereby established the office of city electrical inspector, who shall be appointed by the mayor and such appointment confirmed by the city council and shall receive such compensation as shall be provided by said council. (1997 Code, sec. 3.213)

(b)     Irrespective of any language contained in any building, electrical, plumbing, gas or other utility code adopted by the city to the contrary, no qualifications for an inspector shall be required beyond those required by the ordinance establishing said office within this code, unless otherwise required by state law. (Ordinance 791-2004 adopted 6/87/04)

   Sec. 3.03.022     Duties

It shall be the duty of the city electrical inspector to enforce the provisions of this article, either individually or acting by and through his duly authorized agents. The city electrical inspector is hereby authorized and directed to regulate and supervise generally all electrical apparatus and the stringing, placing and attaching of electric lights and power of any nature whatsoever, now or hereafter placed, in and in any manner directly attached to any building or any tent or similar structure in the city, and to inspect and reinspect all such electrical apparatus, machinery, and wires which they consider to be of sufficient importance or hazard to require such inspection, so as to prevent fires, accidents, or injuries to persons or property, and to cause all such electrical apparatus, machinery and wires to be so constructed, placed, supported and guarded as not to cause fire or accident or endanger life or property; and any and all such electrical apparatus, machinery and wires now existing or hereafter placed shall be subject to such inspections and supervision. He shall keep complete and permanent records of all permits issued, inspections made, findings and dispositions of any exceptions, and other official work performed in accordance with provisions of this article. He shall perform all the other functions of the office of electrical inspection as prescribed by this article or by administrative order. (1997 Code, sec. 3.214)

   Sec. 3.03.023     Authority

(a)     The administration and enforcement of this code is assigned to and shall be the responsibility of the electrical inspector, who shall have the following powers and duties:

(1)     To enforce the provisions of this code and to file complaints in municipal court against persons who violate any of these provisions.

(2)     To enter any house or premises to examine any electrical wiring or installation of electrical wiring, fixtures, or equipment therein, in the performance of his official duties, where such entry is authorized by provisions of this code or necessary to the administration of provision of this code and authorized by law.

(3)     To order the electric service disconnected where improper or defective wiring exists or where electrical construction or equipment has been installed without a permit as required in this article.

(4)     To order compliance with provisions of this article where a change of occupancy occurs in a building which requires changes or alterations to existing wiring.

(5)     To disconnect electrical service in cases of emergency where necessary for safety of persons or property or where electrical equipment may interfere with the work of the fire department.

(6)     To attach to electrical equipment or electrical meters any official notice or seal to prevent the use of electricity; and it shall be unlawful for any person to use such seal or break, change, destroy, tear, mutilate, cover, or otherwise deface or injure any such official notice or seal posted by any electrical inspector.

(7)     To order all persons to cease and desist doing any work being done without a permit where a permit is required or where such work is otherwise being done in violation of this chapter.

(b)     It shall be unlawful for any person to interfere with the electrical inspector in the discharge of his duties or to prevent or in any manner attempt to prevent him from carrying out the provisions of this article. Further, the city council may, from time to time, designate one (1) person as assistant electrical inspector who shall have the same powers and duties as the electrical inspector, but shall act as a temporary inspector and shall only issue a temporary permit until work can be approved by the city electrical inspector.

(1997 Code, sec. 3.215)

   Sec. 3.03.024     Service of notices and orders

When any order or notice is issued pursuant to the provisions of this code to any person who cannot be found after reasonable search, then such order or notice may be served by posting it in a conspicuous place upon the premises occupied by such person, or upon the premises where the defects are alleged to exist. Such posting of the order or notice shall be considered equivalent to personal service of such order or notice. An order or notice sent by mail in a sealed envelope with postage prepaid and directed to the address of the electrical contractor, owner, lessee, or occupant of the premises shall be equivalent to personal service of such notice or order. (1997 Code, sec. 3.216)

   Secs. 3.03.025–3.03.040     Reserved

   Division 3. Registration

   Sec. 3.03.041     Scope

This division shall be applicable to and control the fees and charges to be collected by the city for the first year's registration and subsequent annual renewals of all applicable electrical contractors as herein enumerated, provided that nothing herein shall be deemed to revoke or repeal any fee or charge heretofore or hereafter imposed by ordinance or resolution of the city applicable to any license or other activity not herein specifically provided for.

   Sec. 3.03.042     Definitions

In this division:

Electrical contracting. The business of designing, installing, erecting, repairing, or altering electric wiring or conductors to be used for light, heat, power or signaling purposes. The term includes the installation or repair of ducts, raceways or conduits for the reception or protection of wires or conductors and the installation or repair of any electrical machinery, apparatus or system used for electrical light, heat, power or signaling.

Electrical contractor. A person engaged in electrical contracting. An “electric contractor” is considered to be a licensed master electrician, licensed master sign electrician and licensed residential wireman, and they are the only contractors permitted to make application for a permit with the city and to register with the city as an electrical contractor. All other electricians such as journeyman electricians, journeyman sign electricians and apprentices are permitted only to work under the supervision of the responsible master licensee and therefore are not required to register with the city.

Electrical sign contracting. The business of designing, manufacturing, installing, connecting, reconnecting, or servicing an electric sign, cold cathode, neon gas tubing, or outline gas tubing, or altering electric sign wiring or conductors either inside or outside of the building.

Electrical work. Any labor or material used in installing, maintaining or extending an electrical wiring system and the appurtenances, apparatus or equipment used in connection with the use of electrical energy in, on, outside or attached to a building, residence, structure, property or premises. The term includes service entrance conductors as defined by the most recently adopted electrical code.

Electric sign contractor. A person engaged in electrical sign contracting.

Residential wireman. A person licensed under chapter 1305 of title 8 of V.T.C.A., Occupations Code who may only perform electrical installations in single-family and multifamily dwellings not exceeding four stories.

   Sec. 3.03.043     First year registration and annual renewal registration of electrical contractors

(a)     A person commits an offense if the person performs electric work within the city without first registering with the inspection department of the city, and the registration must be renewed annually on registration forms provided for by the city that includes the following information:

(1)     Name of the contractor including his/her business name, address and phone number.

(2)     Type of service provided for by the contractor, including but not limited to electrical work, electrical contracting and electrical sign contracting.

(3)     State licensing number including date of expiration, when applicable.

(4)     Proof of certificate of insurance as provided for under the particular state licensing law that applies.

(5)     Insurance bonding number on the insurance policy, when applicable.

(6)     Proof of licensing, insurance and/or insurance bonding requirements are required before the first year registration and/or annual renewal is approved by the city inspection department

(7)     Date of expiration of all insurance requirements must be included on the registration application.

(8)     Any other pertinent information regarding the contractor and the nature of his/her business when it is deemed appropriate by the city's building official or his/her designee.

(b)     The city's building official or his/her designee must approve all first year registrations and/or renewals of registration before they are considered official registration of contractors for the city.

(c)     All first year registrations and subsequent annual renewals of registrations for persons, firms or corporations for the purpose of this division that are required to be licensed or bonded in order to perform services in the city are known as contractors, and such contractors are required to be registered with the city annually under the established provisions of this division.

(d)     A registration under this division shall be valid for one year from the date of the initial registration, providing that the expiration of all required licenses and bonds correspond with the one-year time frame; otherwise registrations are only valid through the date of the expiration of the applicable license, certificate of insurance and/or insurance bond, whichever applies.

(e)     All subsequent annual renewals must be filed with the inspection department of the city within 30 days from the date of the initial first year registration application or annual renewal date, whichever applies.

(Ordinance adopting Code)

   Sec. 3.03.044     Fees

(a)     Each successful applicant for an electrician's license shall pay the registration and renewal fees as provided for in the fee schedule.

(b)     The initial registration fee herein enumerated and required by this division shall be delivered to the city secretary within thirty (30) days after the applicant is notified that he has passed the examination or has otherwise qualified for a license. All fees collected by the city secretary shall be paid to the general fund of the city.

(1997 Code, sec. 3.236; Ordinance adopting Code)

   Secs. 3.03.045–3.03.070     Reserved

   Division 4. Permits and Inspections

   Sec. 3.03.071     Permits required

(a)     No individual, firm, or corporation shall enter upon the job site of any erection, construction, alteration, or change-out of any electrical installation, machinery, work or wiring in the city until a permit has been issued by the city electrical inspector, covering each installation to be made, and when required by the said electrical inspector, plans and specifications for the proposed work must be filed with him before the permit is granted.

(b)     No permit will be required for the installation of wires to operate electrical bells, gas lighting apparatus, house enunciators, burglar alarms, telephone, telegraph, district messenger, watch clock, fire alarms, or other similar instruments, if current operating same is less than twenty-five (25) volts potential.

(c)     When any wiring or apparatus is installed in such a manner that the same could be used for electric light and power purposes, under the provisions of this article it shall be deemed that the wiring or apparatus is to be used for such light and power purposes and inspection made as provided for such.

(1997 Code, sec. 3.243)

   Sec. 3.03.072     Application for permit

On written application made to the city electrical inspector by any person, partnership, or corporation who has secured a license as hereinbefore stated, it shall be the duty of the city electrical inspector to issue a permit authorizing each person to install electrical wiring as set forth in the application. (1997 Code, sec. 3.244)

   Sec. 3.03.073     Permit fees

(a)     Fees to be paid to the city for the installation of electrical equipment shall be as provided for in the fee schedule.

(b)     After the first inspection is made, there may be a charge, as provided for in the fee schedule, for each additional inspection the electrical inspector is required to make because of defective workmanship or faulty material at any one job. In the event that work is begun before the permit called for by this article is issued, then all of the fees called for above shall be doubled.

(1997 Code, sec. 3.245)

   Sec. 3.03.074     Permit for temporary installation

When for good and sufficient cause it is necessary to have electricity on any installation before a permanent certificate can be issued, the city electrical inspector, may, if all parts to which current is applied are in safe and satisfactory condition, issue a temporary certificate. Provided, further, that a temporary service, if installed satisfactory to the electrical inspector, will not be permitted to make connections to permanent service until a permanent certificate has been issued. Provided, further, that before said temporary certificate is issued, the party requesting same shall pay to the city an amount as provided for in the fee schedule. The temporary certificate then received shall be in force for a period of thirty (30) days from its issuance, and if not complete within sixty (60) days no other permit shall be issued. (1997 Code, sec. 3.246)

   Sec. 3.03.075     Denial of permit

The electrical inspector is hereby given authority to refuse a permit for the installation of electric wiring, as herein provided, or for any additions or extensions to any building where, in his estimation, the existing wiring or proposed wiring to be done is unsafe or not in accordance with the provisions of this article. If, after a permit is issued, the work installed under such permit for any reason does not comply with the regulations of this article, the electrical inspector shall refuse to issue a certificate of inspection. (1997 Code, sec. 3.247)

   Sec. 3.03.076     Authorization for connection

It shall be unlawful for any public service company serving the city to hook up to any new building or tent outdoor wiring of any nature, kind or description without first obtaining a clearance from the electrical inspector. Whenever service is discontinued to any commercial building for any cause whatsoever for a period of three (3) months or more, or residence for twelve (12) months or more, except nonpayment of bill, clearance will be necessary before reconnecting. This means anytime a commercial building is vacated for any reason, the electrical inspector must satisfy himself that there have not been any changes or additions made to wiring of such building that might create a fire hazard by overloading of circuits from any other cause. (1997 Code, sec. 3.248)

   Sec. 3.03.077     Inspection required

The electrical inspector must, in all cases, inspect any electrical wiring within the corporate limits of the city within twenty-four (24) hours of receipt of notice from the electrical contractor. (Holidays and Sundays shall not be included in this time.) (1997 Code, sec. 3.249)

   Sec. 3.03.078     Notice of conformance and nonconformance

On inspecting the wiring in any building, the electrical inspector shall leave a tag or notice attached to service. This notice shall state clearly whether the wiring is approved or is to be kept open for correction; and if wiring is to be kept open for further inspection no person shall lathe, ceil or in any manner conceal any wiring until they are informed that such wiring has been approved by the electrical inspector. It shall be the duty of the electrical inspector to immediately notify the electrical contractor of said defects, and defects must be corrected within twenty-four (24) hours from said notice. (1997 Code, sec. 3.250)

   Sec. 3.03.079     Change of wiring notice

It shall be the unlawful for any owner, contractor, or workman other than the electrical contractor or contracting electrician to, in any manner, interfere with any electrical wiring being installed in or on any building. If, in the course of erection of a building, the wiring is in such a position as to interfere with its erection or completion, as called for by plans, notice shall immediately be given the person installing the wiring and the needed change shall be made by such person. (1997 Code, sec. 3.251)

   ARTICLE 3.04 PLUMBING*

   Division 1. Generally

   Sec. 3.04.001     State plumber's license required

It shall be unlawful for any person, except the owner or occupant of the premises, performing the work with their own hands, to engage in the business of installing any plumbing or gas fittings within the city, without having, at the time said work is performed, a valid plumber's license issued by the state. (1997 Code, sec. 3.301)

   Sec. 3.04.002     Inspection of pipes required prior to covering

No water, gas, soil, drain or vent pipe shall be covered from view or concealed until after the work has been tested, inspected and approved by the plumbing inspector of the city. If any part of the work is covered before being so inspected and approved, it shall be uncovered at the expense of the person performing such work; this is to apply to and be binding on the owner or occupant of said premises as well to any other person performing such work. The fees for inspecting such work are to be paid by the person performing such work. (1997 Code, sec. 3.302)

   Sec. 3.04.003     Plumbing permit fees

Plumbing permit fees shall be charged as provided for in the fee schedule. (Ordinance 951-2016 adopted 1/12/16)

   Secs. 3.04.004–3.04.030     Reserved

   Division 2. Plumbing Code

   Sec. 3.04.031     Adopted

There is hereby adopted by reference as the plumbing code of the city, the International Plumbing Code 2012 edition (and such subsequent codes, amendments and supplements thereof) and the same is hereby made a part of this article as fully and to the same extent as if copied herein in full. One copy of the code shall be on file at city hall and the same is hereby adopted and incorporated as fully as if set out at length herein. (Ordinance 901-2013 adopted 11/12/13)

   Sec. 3.04.032     Amendments

The city plumbing code, as established in section 3.04.031, is amended as follows:

Section 8.1, Organization of board, subsection (4) is amended to read: “The city director of public utilities.”

Subsection 9.1.5, Persons who may obtain permit, subsection (1) is amended to read: “Any plumber licensed by the state board of plumbing examiners.”

Subsection 9.2.2, Table of fees. This subsection is amended by changing the first line to read: “For issuing each permit, $5.00.”

Subsection 9.2.3, Minimum Fee. Irrespective of the table of fees contained above, the minimum permit and inspection fees shall be six dollars ($6.00).

Subsection 9.2.4, Double charge. In the event that work unlawfully begins before the issuance of the permit called for by this article, then the fees called for in the foregoing sections shall be doubled.

Subsection 9.3.2, Drainage and vent system tests. This subsection is deleted completely.

Subsection 9.3.4, Building sewer test. This subsection is deleted completely.

Subsection 9.3.5, Gas system test, is amended to read: “The test on house piping shall be made by closing all openings and subjecting the pipes to an air pressure that will support a column of mercury ten (10) inches in height. If this column of mercury is supported by the air pressure for at least fifteen (15) minutes (thirty (30) minutes for dial gauge), during periods of constant temperature, the piping shall be considered tight. A final test shall be made for final inspection.”

Subsection 9.3.9, Final inspections, is amended by deleting subsection 9.3.9(2) completely.

Subsection 12.1.4 is amended so as to delete type M copper tubing, and is further amended by the substitution of type L copper tubing for type M in subsection 12.1.4.

(1997 Code, sec. 3.402)

   ARTICLE 3.05 INTERNATIONAL GAS CODE

The provisions of the International Gas Code, 2003 edition, are hereby adopted, and the same are hereby made a part of this article as fully and to the same extent as if copied herein in full. Three (3) certified copies shall be on file in the office of the city secretary and shall extend over and govern, except as otherwise provided in this article, the installation of all gas piping and gas appliances installed, altered or repaired within the city. (1997 Code, art. 3.500; Ordinance 749-2001 adopted 4/10/01; Ordinance adopting Code)

   ARTICLE 3.06 INTERNATIONAL RESIDENTIAL CODE*

The provisions of the International Residential Code, 2003 edition, are hereby adopted, and the same are hereby made a part of this article as fully and to the same extent as if copied herein in full. A certified copy of this code shall be on file in the office of the city secretary. (Ordinance 749-2001 adopted 4/10/01; Ordinance adopting Code)

   ARTICLE 3.07 INTERNATIONAL MECHANICAL CODE

   Sec. 3.07.001     Adopted

The provisions of the International Mechanical Code, 2003 edition, are hereby adopted, and the same are hereby made a part of this article as fully and to the same extent as if copied herein in full. A certified copy of this code shall be on file in the office of the city secretary. (Ordinance 749-2001 adopted 4/10/01; Ordinance adopting Code)

   Sec. 3.07.002     Permit fees

Mechanical permit fees shall be charged as provided for in the fee schedule. (Ordinance 951-2016 adopted 1/12/16)

   ARTICLE 3.08 INTERNATIONAL ENERGY CONSERVATION CODE*

   Sec. 3.08.001     Adopted

The provisions of the International Energy Conservation Code, 2003 edition, are hereby adopted, and the same are hereby made a part of this article as fully and to the same extent as if copied herein in full. A certified copy of this code shall be on file in the office of the city secretary. (Ordinance adopting Code)

   Sec. 3.08.002     Amendments

The International Energy Conservation Code adopted in section 3.08.001 is amended as follows: Compliance with the International Energy Conservation Code shall be voluntary. (Ordinance adopting Code)

   ARTICLE 3.09 SUBSTANDARD BUILDINGS

   Sec. 3.09.001     Title

This article shall be commonly referred to as the city's substandard building ordinance. (Ordinance 857-2010 adopted 7/–/10)

   Sec. 3.09.002     Purpose; findings

(a)     Findings. There exists in the city, buildings used for residential and nonresidential purposes that are substandard in structure and maintenance. Inadequate light and air, insufficient protection against fire, lack of proper heating and unsanitary conditions constitute a menace to the health, safety and welfare of the citizens of the city.

(b)     Purpose. This article is adopted so the city council may promote the public health, safety, and general welfare within the city through the regulation of substandard and dangerous buildings or structures. By requiring the repair and/or demolition of substandard and dangerous buildings and structures, the city council seeks to protect property values and prevent bodily injury, death, and property damage within the city limits.

(Ordinance 938-2015 adopted 5/12/15)

   Sec. 3.09.003     Definitions

As used in this article, the following terms shall be defined as follows:

Appraised value. The value given the structure by the county tax assessor's office.

Building. Any structure of any kind or any part thereof, erected for the support, shelter or enclosure of persons, animals, chattel or property of any kind.

(Ordinance 857-2010 adopted 7/–/10)

Building code. The International Building Code as adopted by the city. (Ordinance 938-2015 adopted 5/12/15)

Building inspector. The person appointed by the city to conduct periodic inspections of buildings and structures to ensure that the same are being maintained in a manner consistent with prescribed building codes of the city and not in violation of this article.

City. The City of Winnsboro, Texas.

City council. The governing body of the city.

Diligent effort. Best or reasonable effort to determine the identity and address of an owner, a lienholder, or a mortgagee including a search of the following records:

(1)     County real property records of the county in which the building is located;

(2)     Appraisal district records of the appraisal district in which the building is located;

(3)     Records of the secretary of state;

(4)     Assumed name records of the county in which the building is located;

(5)     City tax records; and

(6)     City utility records.

(Ordinance 857-2010 adopted 7/–/10)

Electrical code. The National Electrical Code as adopted by the city.

Fire code. The International Fire Code as adopted by the city.

Manufactured home. A structure, constructed on or after June 15, 1976, transportable in one or more sections, which in the traveling mode is eight body feet or more in width or 40 body feet or more in length, or when erected on site, is 320 or more square feet, and which is built on a permanent chassis and designed to be used as a dwelling with or without a permanent foundation when connected to the required utilities, and includes the plumbing, heating, air-conditioning and electrical systems.

Mechanical code. The International Mechanical Code as adopted by the city.

(Ordinance 938-2015 adopted 5/12/15)

Minimum housing standards. Those standards found in the city's adopted standard building, electrical, plumbing, gas, mechanical, existing building and fire prevention codes and any other housing and structure regulations adopted under chapter 214, Local Government Code. (Ordinance 857-2010 adopted 7/–/10)

Mobile home. A structure that was constructed before June 15, 1976, transportable in one or more sections, which in the traveling mode is eight body feet or more in width or 40 body feet or more in length, or when erected on site, is 320 or more square feet, and which is built on a permanent chassis and designed to be used as a dwelling with or without a permanent foundation when connected to the required utilities, and includes the plumbing, heating, air-conditioning and electrical systems. (Ordinance 938-2015 adopted 5/12/15)

Owner. Any person, agent, firm, corporation, or other entity named in the real property records of the county where the building is located as owning the property. (Ordinance 857-2010 adopted 7/–/10)

Plumbing code. The International Plumbing Code as adopted by the city. (Ordinance 938-2015 adopted 5/12/15)

Structure. That which is built or constructed, an edifice or building of any kind, or any piece of work artificially built or composed of parts joined together in some definite manner, or any part thereof. (Ordinance 857-2010 adopted 7/–/10)

Travel trailer. A structure having no foundation other than a permanent chassis with wheels, which is 12 body feet or less in width, and is less than 40 body feet in length and is designed to be used as a dwelling with or without a permanent foundation. The term “travel trailer” includes folding, hardtop campers transported behind a motor vehicle, truck mounted campers attached to and transported behind a motor vehicle or pickup, recreational vehicles, campers, converted buses, tent trailers, tents or similar devices used for temporary, portable housing or similar types of temporary dwellings intended for short-term occupancy, travel and/or recreation. (Ordinance 938-2015 adopted 5/12/15)

   Sec. 3.09.004     Declaration of nuisance

Any building or structure requiring repair, removal or demolition, as described and defined herein below and all buildings or structures within the city which because of their condition are unsafe, unsanitary or otherwise dangerous to the health, safety and general welfare of the citizens of the city are hereby declared to be a public nuisance and unlawful and subject to the provisions of this article regarding repair, removal or demolition. (Ordinance 857-2010 adopted 7/–/10)

   Sec. 3.09.005     Inspection and enforcement

(a)     General.

(1)     Administration. The building inspector is hereby authorized to enforce the provisions of this article. The building inspector shall have the power to render interpretations of this article and to adopt and enforce rules and supplemental regulations in order to clarify the application of its provisions. Such interpretations, rules and regulations shall be in conformity with the intent and purpose of this article.

(2)     Inspection. An inspection shall be made of every building located within the city which is suspected of being in violation of this article. The building inspector and/or fire marshal or their designee, is hereby authorized to conduct inspections of buildings suspected of being in violation of this article and take such actions as may be required to enforce the provisions of this article.

(3)     Right of entry. When it is necessary to make an inspection to enforce the provisions of this article, or when the building inspector or his designee has a reasonable cause to believe there exists in a building or upon a premises a condition which is contrary to or in violation of this article which makes the building or premises unsafe, dangerous or hazardous, the building inspector or his designee may enter the building or premises at reasonable times to inspect or perform the duties imposed by this article, provided that if such building or premises be occupied then credentials be presented to the occupant and entry requested. If such building or premises be unoccupied, the building inspector or his designee shall first make a reasonable effort to locate the owner or other person having charge or control of the building or premises and request entry. If entry is refused, the building inspector shall have recourse to the remedies provided by law to secure entry.

(4)     Report. It shall be the duty of all city employees to make a report in writing to the building official of all buildings or structures, which they believe, are, may be or are suspected to be dangerous buildings. Such reports are to be made within a reasonable time after the discovery of such buildings or structures.

(b)     Abatement of dangerous or substandard buildings. All buildings or portions thereof which are determined after inspection by the building inspector to be dangerous or substandard as defined by this article are hereby declared to be public nuisances and shall be abated by repair, vacation, demolition, removal or securing in accordance with the procedures specified in this article.

(c)     Violations. It shall be unlawful for any person, firm or corporation to erect, construct or use, occupy or maintain any building that is deemed herein to be a nuisance or cause or permit the same to be done in violation of this article.

(d)     Inspection authorized. All buildings within the scope of this article and all construction or work for which a permit is required shall be subject to inspection by the building inspector.

(Ordinance 938-2015 adopted 5/12/15)

   Sec. 3.09.006     Standards

The following standards shall be utilized in determining whether a building should be ordered repaired, removed or demolished:

(1)     The building or structure is liable to partially or fully collapse. Whenever any portion or member or appurtenance thereof is likely to fail or to become detached or dislodged, or to collapse and thereby injure persons or damage property.

(Ordinance 857-2010 adopted 7/–/10; Ordinance 938-2015 adopted 5/12/15)

(2)     The building or structure was constructed or maintained in violation of any provision of the city's building code, or any other applicable ordinance or law of the city, county, state, or federal government.

(3)     Any wall or other vertical structural members list, lean or buckle to such an extent that a plumbline passing through the center of gravity falls outside of the middle one-third (1/3) of its base.

(4)     The foundation or the vertical or horizontal supporting members are twenty-five (25) percent or more damaged or deteriorated.

(5)     The nonsupporting coverings of walls, ceilings, roofs, or floors are fifty (50) percent or more damaged or deteriorated.

(6)     The structure has improperly distributed loads upon the structural members, or the structural members have insufficient strength to be reasonably safe for the purpose used.

(7)     The structure of any part thereof has been damaged by fire, water, earthquake, wind, vandalism, or other cause to such an extent that it has become dangerous to the public, health, safety and welfare.

(8)     The structure does not have adequate light, ventilation, or sanitation facilities as required by the city.

(Ordinance 857-2010 adopted 7/–/10)

(9)     The structure has inadequate facilities for egress in case of fire or other emergency:

(A)     Has insufficient stairways, elevators, fire escapes or other means of ingress or egress.

(B)     Whenever any door, aisle, passageway, stairway or other means of exit is not of sufficient width or size or is not so arranged as to provide safe and adequate means of exit in case of fire or panic.

(C)     Whenever the walking surface of any aisle, passageway, stairway or other means of exit is so warped, worn, loose, torn or otherwise unsafe as to not provide safe and adequate means of exit in case of fire or panic.

(Ordinance 938-2015 adopted 5/12/15)

(10)     The structure, because of its condition, is unsafe, unsanitary, or dangerous to the health, safety or general welfare of the city's citizens including all conditions conducive to the harboring of rats or mice or other disease carrying animals or insects reasonably calculated to spread disease. (Ordinance 857-2010 adopted 7/–/10)

(11)     Any building that is dilapidated, substandard or unfit for human habitation and a hazard to the public health, safety and welfare.

(12)     Any building that, regardless of its structural condition, is unoccupied by its owners, lessees or other invitees and is unsecured from unauthorized entry to the extent that it could be entered or used by vagrants or other uninvited persons as a place of harborage or could be entered or used by children.

(13)     Any building that is boarded up, fenced or otherwise secured in any manner if:

(A)     The building constitutes a danger to the public even though secured front entry; or

(B)     The means used to secure the building are inadequate to prevent unauthorized entry or use of the building in the manner described by subsection (12) above.

(14)     Whenever any building, because of obsolescence, dilapidated condition, deterioration, damage, inadequate exits, lack of sufficient fire-resistive construction, faulty electric wiring, gas connections or heating apparatus or other cause, is determined by the fire marshal to be a fire hazard.

(15)     Whenever any building is in such a condition as to make a public nuisance known to the common law or in equity jurisprudence.

(16)     Whenever any portion of building remains on a site after the demolition or destruction of the building.

(17)     Whenever any building is abandoned so as to constitute such building or portion thereof an attractive nuisance or hazard to the public.

(18)     Whenever a building, used or intended to be used for dwelling purposes, because of inadequate maintenance, dilapidation, decay, damage, faulty construction or arrangement, inadequate light, air or sanitation facilities, or otherwise, is determined by the building inspector to be unsanitary, unfit for human habitation or in such a condition that is likely to cause sickness or disease for reasons including but not limited to the following:

(A)     Lack of or improper water closet, lavatory, bathtub or shower in a dwelling unit or facilities plumbed in such a manner to potentially cause a cross connection to the public water system.

(B)     Lack of or improper kitchen sink in a dwelling unit or plumbed in such a manner to potentially cause a cross connection to the public water system.

(C)     Lack of hot and cold running water to plumbing fixtures in a dwelling unit.

(D)     Lack of adequate heating facilities.

(E)     Lack of or improper operation of required ventilating equipment.

(F)     Lack of minimum amounts of natural light and ventilation required by the building code.

(G)     Room and space dimensions less than required by the building code.

(H)     Lack of required electrical lighting.

(I)     Excessive dampness of habitable rooms to the extent to potentially to cause toxic mold.

(J)     Infestation of insects, vermin or rodents.

(K)     General dilapidation or improper maintenance.

(L)     Lack of connection to required sewage disposal system.

(M)     Lack of adequate garbage and rubbish storage and removal facilities.

   Sec. 3.09.007     Determination by building inspector

When the building inspector has inspected or caused to be inspected any building and has found and determined the building is substandard, the building inspector may take any or all of the following actions, as he or she deems appropriate:

(1)     Issue notice to the record owner that the building is substandard and must be repaired or demolished;

(2)     Issue citation(s) for violation(s) of this article;

(3)     Secure the building if permitted by section 3.09.014 below; or

(4)     Recommend to the city council that abatement proceedings be commenced pursuant to section 3.09.008 below.

   Sec. 3.09.008     Public hearing for abatement of a substandard building

(a)     Commencement of proceedings. When the building inspector has found and determined a building is a substandard building, the building inspector shall commence proceedings to cause the repair, vacation, relocation of occupants, removal, demolition or securing of the building.

(b)     Public hearing to be held. Except when the city council finds that a building is likely to immediately endanger persons or property, a public hearing before the city council shall be held to determine whether a building complies with the standards set out in section 3.09.006 above. If the city council determines the building constitutes an immediate danger, the procedures set forth in section 3.09.014 below shall be followed.

(c)     Notice. Not less than ten (10) days prior to the date on which the hearing is set the building inspector shall issue a notice of the public hearing directed to the record owner of the building, and to all mortgagees and lienholders. The city shall use diligent efforts to determine the identity and address of any owner, lienholder or mortgagee of the building through searching the county real property records in which the building is located; appraisal district records of the appraisal district in which the building is located; records of the Secretary of State; assumed name records of the county in which the building is located; tax records of the city; and utility records of the city. The notice shall contain:

(1)     The name and address of the record owner;

(2)     The street address or legal description sufficient for identification of the premises upon which the building is located;

(3)     A statement that the building inspector has found the building to be substandard or dangerous, with a brief and concise description of the conditions found to render the building dangerous or substandard under the provisions of section 3.09.006 above;

(4)     A statement that the owner, lienholder or mortgagee will be required to submit at the hearing proof of the scope of any work that may be required to comply with this article, and the time it will take to reasonably perform the work;

(5)     Notice of the time and place of the public hearing; and

(6)     A statement that if the building is found to be in violation of this article, the city council may order that the building be vacated, secured, repaired, removed or demolished within a reasonable time.

(d)     Additional notice of public hearing. Prior to the public hearing, the city may file a copy of the notice mailed pursuant to subsection (c) in the official public records of real property in the county in which the property is located. If such notice is not filed of record, each identified mortgagee and lienholder must be notified of any abatement order issued by the city council at the public hearing, prior to any remedial action by the city.

(e)     Burden of proof. At the public hearing, the owner, lienholder or mortgagee has the burden of proof to demonstrate the scope of any work that may be required to comply with this article, and the time it will take to reasonably perform the work.

(f)     Conduct of public hearing. At the public hearing, the owner of the building and all other interested persons may make their appearance and be heard. Any evidence may be received and considered by the city council. The hearing may be adjourned from day to day or continued upon a majority vote of the city council, in compliance with the Open Meetings Act.

   Sec. 3.09.009     Order of the city council

(a)     Findings of the city council. If the city council by a majority vote finds upon evidence presented at the public hearing, that the building is in violation of the standards set out in section 3.09.006, the city council may order that the building be repaired, vacated, removed or demolished, secured, or the occupants relocated by the owner, mortgagee or lienholder within a reasonable time, as herein.

(b)     Time allowed to complete work.

(1)     The order must require the owner, lienholder or mortgagee of the building to within 30 days:

(A)     Secure the building from unauthorized entry; and/or

(B)     Repair, remove or demolish the building unless the owner or lienholder establishes at the hearing that the work cannot reasonably be performed within 30 days.

(2)     If the city council allows the owner, lienholder or mortgagee more than thirty (30) days to repair, remove or demolish the building, the city council shall establish specific time schedules for the commencement and performance of the work and shall require the owner, lienholder or mortgagee to secure the property in a reasonable manner from unauthorized entry while the work is being performed, as determined by the city council.

(3)     The city council may not allow the owner, lienholder or mortgagee more than ninety (90) days to repair, remove or demolish the building or fully perform all work required to comply with the order unless the owner lienholder or mortgagee:

(A)     Submits a detailed plan and time schedule for the work at the hearing; and

(B)     Establishes at the hearing that the work cannot be reasonably completed within ninety (90) days because of the scope and complexity of the work.

(4)     If the city council allows the owner, lienholder or mortgagee more than ninety (90) days to complete any part of the work required to repair, remove or demolish the building, the city council shall require the owner, lienholder or mortgagee to regularly submit progress reports to the building official to demonstrate that the owner, lienholder or mortgagee has complied with the time schedules established for commencement and performance of the work. The order may require that the owner, lienholder or mortgagee appear before the city council or the building official to demonstrate compliance with the time schedules.

(c)     Contents of order. The order of the city council must contain at minimum:

(1)     An identification which is not required to be a legal description, of the building and the property on which it is located;

(2)     A description of the violation of minimum standards present in the building;

(3)     A description of the ordered actions, including a statement that the owner may repair, if feasible, or demolish or remove at his option;

(4)     A statement that the city will vacate, secure, remove or demolish the building or relocate the occupants of the building if the ordered action is not taken within the time allowed, and charge the cost to the property;

(5)     If the city council has determined that the building will endanger persons or property and that the building is a dwelling with 10 or fewer dwelling units, a statement that the city may repair the building and charge the costs to the property if the ordered action is not taken within the time allowed.

   Sec. 3.09.010     Notice of order of city council

(a)     After the public hearing the building inspector shall promptly mail by certified mail, return receipt requested, or personally deliver a copy of the order to the owner of the building and to any lienholder or mortgagee of the building. The city shall make a diligent effort to discover each owner, mortgagee and lienholder having an interest in the building or property on which the building is located.

(b)     In addition to the order, each identified mortgagee or lienholder shall be sent a notice containing:

(1)     An identification of the building and property on which it is located (this does not have to be a legal description);

(2)     A description of the violation of this article; and

(3)     A statement that the municipality may demolish the building if the ordered action is not taken.

(c)     If the notice is returned “refused” or “unclaimed,” the validity of the notice is not affected and the notice shall be deemed delivered.

(d)     Within ten (10) days after the date that the order is issued, the city shall:

(1)     File a copy of the order in the office of the city secretary; and

(2)     Publish a notice in a newspaper of general circulation in the city (and where the building is located) stating:

(A)     The street address or legal description of the property;

(B)     The date of the hearing;

(C)     A brief statement indicating the results of the order; and

(D)     Instructions as to where a complete copy of the order may be obtained.

(e)     The order may be filed in the official public records of real property in the county in which the property is located.

   Sec. 3.09.011     Enforcement of the order of city council

(a)     If order not complied with, city may take action. If the owner, mortgagee or lienholder has failed to repair, remove or demolish the building or take other ordered action within the allotted time, the city, may repair, remove or demolish said building or relocate the occupants at its own expense, provided however:

(1)     The city may not act to remove or demolish a building until after the city council has found:

(A)     That such defects or conditions exist to the extent that the life, health, property or safety of the public or the occupants of the building are endangered; and

(B)     The building is infeasible of repair; or

(C)     There is no reasonable probability that the building will be repaired within a reasonable period of time if additional time is given.

(2)     Any repair, alteration or improvement made to a building by the city will only be to the extent necessary to bring the building into compliance with the minimum housing standards and only if the building is a residential building with ten (10) or fewer dwelling units;

(3)     In the event there are mortgagors or lienholders, the city may only repair, remove or demolish the building after allowing the lienholder or mortgagee an additional 30 days after the time prescribed in the order has expired to complete the required work.

(b)     Posting of notice to vacate building. If the order requires vacation or if compliance is not had with the order within the time specified therein, the building official is authorized to require that the building be vacated. Notice to vacate shall be mailed by certified mail, return receipt requested to the occupant of the building and it shall be posted at or upon each entrance to the building and shall be in substantially the following form:

“SUBSTANDARD BUILDING

DO NOT ENTER

UNSAFE TO OCCUPY

It is a misdemeanor to occupy this

building or to remove or deface this notice.

___________________

Building Inspector

City of Winnsboro”

(c)     Remedial action by city. Any repair or demolition work or securing of the building shall be accomplished and the cost thereof paid and recovered in the manner hereinafter provided. Any surplus realized from the sale of such building, or from the demolition thereof, over and above the cost of demolition and cleaning of the lot, shall be paid over to the person or persons lawfully entitled thereto.

(d)     Failure to obey order. Any person to whom an order pursuant to section 3.09.009 is directed who fails, neglects or refuses to comply with such order shall be guilty of a misdemeanor and may be prosecuted in municipal court in addition to any other remedies available to the city provided herein.

(e)     Interference prohibited. No person shall obstruct, impede or interfere with any officer, employee, contractor or authorized representative of the city or with any person who owns or holds any estate or interest in the building which has been ordered repaired, vacated, demolished, removed or secured under the provisions of this article; or with any person to whom such building has been lawfully sold pursuant to the provisions of this article, whenever such officer, employee, contractor or authorized representative of the city, person having an interest or estate in such building, or purchaser is engaged in the work of repairing, vacating and repairing, or demolishing, removing or securing any such building pursuant to the provision of this article, or in performing any necessary act preliminary to or incidental to such work or authorized or directed pursuant to this article.

(f)     Permit required. Any work closure, repair, removal or demolition by the property owner or any lienholder or mortgagee or their agents must be performed pursuant to valid unexpired permits issued by the city. All permits issued pursuant to an order of the city council shall expire upon expiration of the time for compliance set forth in the order.

(g)     Cleanup. Cleanup of property after building demolition or removal is a follows:

(1)     Within thirty (30) days after any building or structure is demolished or removed from any lot or tract of land, all debris must be removed from the property.

(2)     All holes or depressions in the ground must be filled to grade level.

(3)     All lumber, pipes and other building materials must be removed from the property or stored in such a manner that they are not a hazard to safety and do not create a condition where rats are likely to live or mosquitoes likely to breed.

(4)     All pipes and conduits must be removed from above grade and must be removed or sealed below grade.

(5)     All piers, pilings, steps and other appurtenances must be removed above grade.

   Sec. 3.09.012     Performance of work by the city

(a)     Procedure. When any work of repair, removal, demolition or securing is to be performed by the city pursuant to the provisions of any order of the city council, the work may be accomplished by city personnel or by private contract as may be deemed necessary. Rubble and debris shall be removed from any premises and the lot cleaned if removal or demolition is ordered. The building or building materials may be sold if removal or demolition is ordered, and the proceeds shall be used to offset other costs of the work.

(b)     Costs. The cost of such work shall be paid from city funds and shall constitute a special assessment and a lien against such property to secure payment thereof together with ten percent (10%) interest on such amount from the date on which the work is performed.

(c)     Repair to minimum standards only. The city may repair the building at its own expense and assess the expenses on the land on which the building stands or is attached to only to the extent necessary to bring the building into compliance with minimum standards.

   Sec. 3.09.013     Assessment of lien, recovery of cost of closure

(a)     Expenses incurred; lien. When the city incurs expenses to repair, remove or demolish a building, the city may assess the expenses on and obtain a lien against the property on which the building is located. The lien arises and attaches to the property when the city has the lien recorded and indexed with the county clerk in which the property is located. The notice shall contain:

(1)     The name and address of the owner, if that information can be determined with a reasonable effort;

(2)     A legal description of the real property on which the building was located;

(3)     The amount of expense incurred by the city;

(4)     The balance due; and

(5)     The date on which said work was done or improvements made.

(b)     Notice filed in county records. The city secretary shall file the notice of lien along with a copy of the order of abatement issued by the city council in the deed records of the county in which the premises are located.

(c)     Personal obligation of property owner. The expenses incurred by the city as set forth in the sworn account of the building official shall be a personal obligation of the property owner in addition to a priority lien upon the property. The city attorney may bring an action in any court of proper jurisdiction against the owner or property to recover the costs incurred by the city.

(d)     Lien shall be valid and privileged. The city shall have a privileged lien on such lot, lots, or other premises or real estate upon which said building was located, to secure the expenditure so made, subordinate only to tax liens as provided by law. It is further provided that for any such expenditure suit may be instituted and foreclosure of said lien may be made in the name of the city; and the statement of expenses so made, as aforesaid, or a certified copy thereof, shall be prima facie proof of the amount expended for such work or expense.

(e)     Assessment must be paid. No utility service, building, permit or certificate of occupancy shall be allowed on any such property until the assessment is paid and such lien is released by the city.

(f)     Release of lien. The lien is extinguished if the property owner or another person having an interest in the legal title to the property reimburses the city for the expenses with interest of ten percent (10%) per annum from the date the work was performed, the building inspector shall execute a release of lien which shall be filed in the county deed records.

   Sec. 3.09.014     Additional authority to secure certain substandard buildings prior to public hearing and secure, demolish, repair or remove certain dangerous buildings

(a)     Securing of unoccupied, substandard building. Notwithstanding any other provisions of this article the city may secure a building if the building inspector determines:

(1)     That the building violates the minimum standards set forth in section 3.09.006 above; and

(2)     That the building is unoccupied or is occupied only by persons who do not have the right of possession to the building.

(b)     If building creates immediate danger. Notwithstanding any other provisions of this article, if the city council finds that a building is likely to immediately endanger persons or property the city council may:

(1)     Order the owner of the building, the owner's agent or the owner or occupant of the property on which the structure is located to repair, remove or demolish the structure or the dangerous part of the structure, within a specified time; or

(2)     Repair, remove or demolish the structure or the dangerous part of the structure, at the expense of the municipality, on behalf of the owner of the structure or the owner of the property on which the structure is located, and assess the repair, removal or demolition expenses on the property on which the structure was located.

(c)     Before the eleventh (11th) day after the date the building is secured pursuant to subsection (a) above, or action is ordered pursuant to subsection (b)(1) above, or the building is repaired, removed or demolished pursuant to subsection (b)(2) above, the building inspector shall give notice to the owner by:

(1)     Personally serving the owner with written notice;

(2)     Depositing the notice in the United States mail addressed to the owner at the owner's post office address;

(3)     Publishing the notice at least twice within a ten (10) day period in a newspaper of general circulation in the county in which the building is located, if personal service cannot be obtained and the owner's post office address is unknown; or

(4)     Posting the notice on or near the front door of the building if personal service cannot be obtained and the owner's post office address is unknown; and

(5)     In addition to the above, depositing notice in the United States mail to all lienholders and mortgagees who can be determined from a reasonable search of instruments on file in the office of the county clerk.

(d)     The notice must contain:

(1)     An identification, which is not required to be a legal description, of the building and the property on which it is located;

(2)     A description of the violation of the minimum standards present in the building;

(3)     A statement that the city will secure or has secured, as the case may be, the building, or that the city has taken or will take the action ordered pursuant to subsection (b) of this section;

(4)     An explanation of the owner's entitlement to request a hearing about any matter relating to the city's securing, removing, demolishing or repairing of the building.

(e)     The city council shall conduct a hearing at which the owner may testify or present witnesses or written information about any matter relating to the city's securing, repairing, removing or demolishing of the building if, within thirty (30) days after the date the city has taken action pursuant to subsections (b)(1) or (2) of this section, the owner files with the city a written request for the hearing. The hearing shall be conducted within twenty (20) days after the date the request is filed.

(f)     If the city incurs expenses under this section, such expenses incurred shall be a personal obligation of the property owner in addition to a priority lien upon the property, and costs shall be recovered as provided by section 3.09.012 and 3.09.013 of this article.

(g)     It shall be unlawful to fail to comply with an order issued pursuant to this section.

   Sec. 3.09.015     Penalty for violation

(a)     Civil penalty authorized. In addition to any other enforcement authority provided for by law, the city council may by order at an administrative hearing, assess a civil penalty against a property owner as provided for herein for failure to comply with an order issued by the city council pursuant to section 3.09.009 of this article.

(1)     Civil remedies. A property owner violating any provision of this article shall, upon conviction, be fined a sum not exceeding one thousand dollars ($1,000.00) each and every day of violation, or, if the owner shows the property is the owner's lawful homestead, in an amount not to exceed ten dollars ($10.00) per day for each violation.

(b)     Showing required. The civil penalty may be assessed if it is shown at the administrative hearing that:

(1)     The owner was notified of the requirements of this article and the owner's need to comply with the requirements; and

(2)     After notification, the owner committed an act in violation of this article or failed to take action necessary for compliance with this article.

(c)     Notice of administrative hearing. Not less than ten (10) days prior to the date on which the administrative hearing is set, the property owner shall be sent a notice of the hearing by certified mail/return receipt requested. The notice shall contain:

(1)     A copy of the order issued by the city council pursuant to section 3.09.009 of this article;

(2)     A statement that the building inspector has determined that the property owner committed an act in violation of that order, or failed to take an action necessary for compliance with that order;

(3)     A statement that at the administrative hearing the city council may assess a civil penalty not to exceed $1,000.00 a day for each violation or, if the owner shows that the property is the owner's lawful homestead, in an amount not to exceed $10.00 a day for each violation; and

(4)     Notice of the time and place of the hearing.

(d)     Copy of order filed with district clerk. If such a civil penalty is assessed, the city secretary shall file a certified copy of the order containing such amount and duration of the penalty with the county district clerk's office no later than three (3) working days after such order.

(e)     Other remedies.

(1)     The remedies provided herein shall be available to the city in addition to any penal or other remedy provided by law or equity which the city, state, or any other person may provide to remedy the unsafe building condition.

(2)     The city may bring a civil action in a court of competent jurisdiction to collect the amount due plus all associated costs and fees.

   Sec. 3.09.016     Authority not limited

Notwithstanding all other provisions of this article, nothing herein shall be deemed a limitation on the duty of the city to summarily order the demolition of any building or structure where it is apparent that the immediate demolition of such building or structure is necessary to the protection of life, property or general welfare of the people in the city.

   Sec. 3.09.017     Liability

Neither the city nor any authorized agent acting under the terms of this article shall be liable or have any liability by reason of orders issued or work done in compliance with the terms of this article.

(Ordinance 938-2015 adopted 5/12/15)

   ARTICLE 3.10 FLOOD DAMAGE PREVENTION*

   Sec. 3.10.001     Statutory authorization

The legislature of the state has in the Flood Control Insurance Act, Texas Water Code, section 16.315, delegated the responsibility of local governmental units to adopt regulations designed to minimize flood losses. Therefore, the city does ordain as follows.

   Sec. 3.10.002     Findings of fact

(a)     The flood hazard areas of the city are subject to periodic inundation, which results in loss of life and property, health and safety hazards, disruption of commerce and governmental services, and extraordinary public expenditures for flood protection and relief, all of which adversely affect the public health, safety and general welfare.

(b)     These flood losses are created by the cumulative effect of obstructions in floodplains which cause an increase in flood heights and velocities, and by the occupancy of flood hazard areas by uses vulnerable to floods and hazardous to other lands because they are inadequately elevated, floodproofed or otherwise protected from flood damage.

   Sec. 3.10.003     Statement of purpose

It is the purpose of this article to promote the public health, safety and general welfare and to minimize public and private losses due to flood conditions in specific areas by provisions designed to:

(1)     Protect human life and health;

(2)     Minimize expenditure of public money for costly flood control projects;

(3)     Minimize the need for rescue and relief efforts associated with flooding and generally undertaken at the expense of the general public;

(4)     Minimize prolonged business interruptions;

(5)     Minimize damage to public facilities and utilities such as water and gas mains, electric, telephone and sewer lines, streets and bridges located in floodplains;

(6)     Help maintain a stable tax base by providing for the sound use and development of floodprone areas in such a manner as to minimize future flood blight areas; and

(7)     Ensure that potential buyers are notified that property is in a flood area.

   Sec. 3.10.004     Methods of reducing flood losses

In order to accomplish its purposes, this article uses the following methods:

(1)     Restrict or prohibit uses that are dangerous to health, safety or property in times of flood, or cause excessive increases in flood heights or velocities;

(2)     Require that uses vulnerable to floods, including facilities, which serve such uses, be protected against flood damage at the time of initial construction;

(3)     Control the alteration of natural floodplains, stream channels, and natural protective barriers, which are involved in the accommodation of floodwaters;

(4)     Control filling, grading, dredging and other development, which may increase flood damage;

(5)     Prevent or regulate the construction of flood barriers which will unnaturally divert floodwaters or which may increase flood hazards to other lands.

   Sec. 3.10.005     Definitions

Unless specifically defined below, words or phrases used in this article shall be interpreted to give them the meaning they have in common usage and to give this article its most reasonable application.

Alluvial fan flooding. Flooding occurring on the surface of an alluvial fan or similar landform which originates at the apex and is characterized by high-velocity flows; active processes of erosion, sediment transport, and deposition; and unpredictable flow paths.

Apex. A point on an alluvial fan or similar landform below which the flow path of the major stream that formed the fan becomes unpredictable and alluvial fan flooding can occur.

Appurtenant structure. A structure which is on the same parcel of property as the principal structure to be insured and the use of which is incidental to the use of the principal structure.

Area of future conditions flood hazard. The land area that would be inundated by the 1-percent-annual chance (100 year) flood based on future conditions hydrology.

Area of shallow flooding. A designated AO, AH, AR/AO, AR/AH, or VO zone on a community's flood insurance rate map (FIRM) with a 1-percent or greater annual chance of flooding to an average depth of 1 to 3 feet where a clearly defined channel does not exist, where the path of flooding is unpredictable and where velocity flow may be evident. Such flooding is characterized by ponding or sheet flow.

Area of special flood hazard. The land in the floodplain within a community subject to a 1-percent or greater chance of flooding in any given year. The area may be designated as zone A on the flood hazard boundary map (FHBM). After detailed rate-making has been completed in preparation for publication of the FIRM, zone A usually is refined into zones A, AO, AH, A1-30, AE, A99, AR, AR/A1-30, AR/AE, AR/AO, AR/AH, AR/A, VO, V1-30, VE or V.

Base flood. The flood having a 1-percent chance of being equaled or exceeded in any given year.

Base flood elevation (BFE). Elevation shown on the flood insurance rate map (FIRM) and found in the accompanying flood insurance study (FIS) for zones A, AE, AH, A1-A30, AR, V1-V30, or VE that indicates the water surface elevation resulting from the flood that has a 1% chance of equaling or exceeding that level in any given year - also called the base flood.

Basement. Any area of the building having its floor subgrade (below ground level) on all sides.

Breakaway wall. A wall that is not part of the structural support of the building and is intended through its design and construction to collapse under specific lateral loading forces, without causing damage to the elevated portion of the building or supporting foundation system.

Critical feature. An integral and readily identifiable part of a flood protection system, without which the flood protection provided by the entire system would be compromised.

Development. Any manmade change to improved and unimproved real estate, including but not limited to buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations or storage of equipment or materials.

Elevated building. For insurance purposes, a nonbasement building, which has its lowest elevated floor, raised above ground level by foundation walls, shear walls, posts, piers, pilings, or columns.

Existing construction. For the purposes of determining rates, structures for which the “start of construction” commenced before the effective date of the FIRM or before January 1, 1975, for FIRMs effective before that date. “Existing construction” may also be referred to as “existing structures.”

Existing manufactured home park or subdivision. A manufactured home park or subdivision for which the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including, at a minimum, the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads) is completed before the effective date of the floodplain management regulations adopted by a community.

Expansion to an existing manufactured home park or subdivision. The preparation of additional sites by the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads).

Flood or flooding. A general and temporary condition or partial or complete inundation of normally dry land areas from:

(1)     The overflow of inland or tidal waters.

(2)     The unusual and rapid accumulation or runoff of surface waters from any source.

Flood elevation study. An examination, evaluation and determination of flood hazards and, if appropriate, corresponding water surface elevations, or an examination, evaluation and determination of mudslide (i.e., mudflow) and/or flood-related erosion hazards.

Flood hazard boundary map (FHBM). An official map of a community, issued the administrator, where the boundaries of the flood, mudslide (i.e., mudflow) related erosion areas having special hazards have been designated as zones A, M, and/or E.

Flood insurance rate map (FIRM). An official map of a community, on which the Federal Emergency Management Agency has delineated both the special flood hazard areas and the risk premium zones applicable to the community.

Flood insurance study (FIS). See flood elevation study.

Flood protection system. Those physical structural works for which funds have been authorized, appropriated, and expended and which have been constructed specifically to modify flooding in order to reduce the extent of the area within a community subject to a “special flood hazard” and the extent of the depths of associated flooding. Such a system typically includes hurricane tidal barriers, dams, reservoirs, levees or dikes. These specialized flood modifying works are those constructed in conformance with sound engineering standards.

Floodplain or floodprone area. Any land area susceptible to being inundated by water from any source (see definition of flooding).

Floodplain management. The operation of an overall program of corrective and preventive measures for reducing flood damage, including but not limited to emergency preparedness plans, flood control works and floodplain management regulations.

Floodplain management regulations. Zoning ordinances, subdivision regulations, building codes, health regulations, special purpose ordinances (such as a floodplain ordinance, grading ordinance and erosion control ordinance) and other applications of police power. The term describes such state or local regulations, in any combination thereof, which provide standards for the purpose of flood damage prevention and reduction.

Floodproofing. Any combination of structural and nonstructural additions, changes, or adjustments to structures which reduce or eliminate flood damage to real estate or improved real property, water and sanitary facilities, structures and their contents.

Floodway. See regulatory floodway. [sic]

Functionally dependent use. A use, which cannot perform its intended purpose unless it is located or carried out in close proximity to water. The term includes only docking facilities, port facilities that are necessary for the loading and unloading of cargo or passengers, and shipbuilding and ship repair facilities, but does not include long-term storage or related manufacturing facilities.

Highest adjacent grade. The highest natural elevation of the ground surface prior to construction next to the proposed walls of a structure.

Historic structure. Any structure that is:

(1)     Listed individually in the National Register of Historic Places (a listing maintained by the Department of Interior) or preliminarily determined by the Secretary of the Interior as meeting the requirements for individual listing on the National Register;

(2)     Certified or preliminarily determined by the Secretary of the Interior as contributing to the historical significance of a registered historic district or a district preliminarily determined by the Secretary [of the Interior] to qualify as a registered historic district;

(3)     Individually listed on a state inventory of historic places in states with historic preservation programs which have been approved by the Secretary of Interior; or

(4)     Individually listed on a local inventory of historic places in communities with historic preservation programs that have been certified either:

(A)     By an approved state program as determined by the Secretary of the Interior; or

(B)     Directly by the Secretary of the Interior in states without approved programs.

Levee. A manmade structure, usually an earthen embankment, designed and constructed in accordance with sound engineering practices to contain, control, or divert the flow of water so as to provide protection from temporary flooding.

Levee system. A flood protection system which consists of a levee, or levees, and associated structures, such as closure and drainage devices, which are constructed and operated in accordance with sound engineering practices.

Lowest floor. The lowest floor of the lowest enclosed area (including basement). An unfinished or flood resistant enclosure, usable solely for parking of vehicles, building access or storage in an area other than a basement area is not considered a building's lowest floor; provided that such enclosure is not built so as to render the structure in violation of the applicable nonelevation design requirement of section 60.3 of the National Flood Insurance Program regulations.

Manufactured home. A structure transportable in one or more sections, which is built on a permanent chassis and is designed for use with or without a permanent foundation when connected to the required utilities. The term “manufactured home” does not include a “recreational vehicle.”

Manufactured home park or subdivision. A parcel (or contiguous parcels) of land divided into two or more manufactured home lots for rent or sale.

Mean sea level. For purposes of the National Flood Insurance Program, the North American Vertical Datum (NAVD) of 1988 or other datum, to which base flood elevations shown on a community's flood insurance rate map are referenced.

New construction. For the purpose of determining insurance rates, structures for which the “start of construction” commenced on or after the effective date of an initial FIRM or after December 31, 1974, whichever is later, and includes any subsequent improvements to such structures. For floodplain management purposes, “new construction” means structures for which the “start of construction” commenced on or after the effective date of a floodplain management regulation adopted by a community and includes any subsequent improvements to such structures.

New manufactured home park or subdivision. A manufactured home park or subdivision for which the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including at a minimum, the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads) is completed on or after the effective date of floodplain management regulations adopted by a community.

Recreational vehicle. A vehicle which is:

(1)     Built on a single chassis;

(2)     400 square feet or less when measured at the largest horizontal projections;

(3)     Designed to be self-propelled or permanently towable by a light duty truck; and

(4)     Designed primarily not for use as a permanent dwelling but as temporary living quarters for recreational, camping, travel, or seasonal use.

Riverine. Relating to, formed by, or resembling a river (including tributaries), stream, brook, etc.

Special flood hazard area. See area of special flood hazard.

Start of construction. For other than new construction or substantial improvements under the Coastal Barrier Resources Act (Pub. L. 97-348), includes substantial improvement and means the date the building permit was issued, provided the actual start of construction, repair, reconstruction, rehabilitation, addition placement, or other improvement was within 180 days of the permit date. The actual start means either the first placement of permanent construction of a structure on a site, such as the pouring of slab or footings, the installation of piles, the construction of columns, or any work beyond the stage of excavation; or the placement of a manufactured home on a foundation. Permanent construction does not include land preparation, such as clearing, grading and filling; nor does it include the installation of streets and/or walkways; nor does it include excavation for basement, footings, piers or foundations or the erection of temporary forms; nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or not part of the main structure. For a substantial improvement, the actual start of construction means the first alteration of any wall, ceiling, floor, or other structural part of a building, whether or not that alteration affects the external dimensions of the building.

Structure. For floodplain management purposes, a walled and roofed building, including a gas or liquid storage tank, that is principally above ground, as well as a manufactured home.

Substantial damage. Damage of any origin sustained by a structure whereby the cost of restoring the structure to its before damaged condition would equal or exceed 50 percent of the market value of the structure before the damage occurred.

Substantial improvement. Any reconstruction, rehabilitation, addition, or other improvement of a structure, the cost of which equals or exceeds 50 percent of the market value of the structure before “start of construction” of the improvement. This term includes structures, which have incurred “substantial damage,” regardless of the actual repair work performed. The term does not, however, include either:

(1)     Any project for improvement of a structure to correct existing violations of state or local health, sanitary, or safety code specifications which have been identified by the local code enforcement official and which are the minimum necessary to assure safe living conditions; or

(2)     Any alteration of a “historic structure,” provided that the alteration will not preclude the structure's continued designation as a “historic structure.”

Variance. A grant of relief by a community from the terms of a floodplain management regulation. (For full requirements see section 60.6 of the National Flood Insurance Program regulations.)

Violation. The failure of a structure or other development to be fully compliant with the community's floodplain management regulations. A structure or other development without the elevation certificate, other certifications, or other evidence of compliance required in section 60.3(b)(5), (c)(4), (c)(10), (d)(3), (e)(2), (e)(4), or (e)(5) is presumed to be in violation until such time as that documentation is provided.

Water surface elevation. The height, in relation to the North American Vertical Datum (NAVD) of 1988 (or other datum, where specified), of floods of various magnitudes and frequencies in the floodplains of coastal or riverine areas.

   Sec. 3.10.006     Lands to which this article applies

The article shall apply to all areas of special flood hazard within the jurisdiction of the city.

   Sec. 3.10.007     Basis for establishing the areas of special flood hazard

The areas of special flood hazard identified by the Federal Emergency Management Agency in the current scientific and engineering report entitled, “The Flood Insurance Study (FIS) for Wood County, Texas and Incorporated Areas,” dated September 3, 2010, with Flood Insurance Rate Map (FIRM), dated September 3, 2010; Flood Insurance Rate Map (FIRM), City of Winnsboro, Texas, Wood and Franklin Counties, dated December 7, 1982; “The Flood Insurance Study (FIS) for Hopkins County, Texas and Incorporated Areas,” dated March 17, 2011, with accompanying Flood Insurance Rate Maps dated March 17, 2011, and any revisions thereto are hereby adopted by reference and declared to be a part of this article.

   Sec. 3.10.008     Establishment of development permit

A floodplain development permit shall be required to ensure conformance with the provisions of this article.

   Sec. 3.10.009     Compliance

No structure or land shall hereafter be located, altered, or have its use changed without full compliance with the terms of this article and other applicable regulations.

   Sec. 3.10.010     Abrogation and greater restrictions

This article is not intended to repeal, abrogate, or impair any existing easements, covenants, or deed restrictions. However, where this article and another ordinance, easement, covenant, or deed restriction conflict or overlap, whichever imposes the more stringent restrictions shall prevail.

   Sec. 3.10.011     Interpretation

In the interpretation and application of this article, all provisions shall be:

(1)     Considered as minimum requirements;

(2)     Liberally construed in favor of the governing body; and

(3)     Deemed neither to limit nor repeal any other powers granted under state statutes.

   Sec. 3.10.012     Warning and disclaimer of liability

The degree of flood protection required by this article is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. On rare occasions greater floods can and will occur and flood heights may be increased by manmade or natural causes. This article does not imply that land outside the areas of special flood hazards or uses permitted within such areas will be free from flooding or flood damages. This article shall not create liability on the part of the community or any official or employee thereof for any flood damages that result from reliance on this article or any administrative decision lawfully made hereunder.

   Sec. 3.10.013     Designation of the floodplain administrator

The mayor or designee is hereby appointed the floodplain administrator to administer and implement the provisions of this article and other appropriate sections of 44 CFR (Emergency Management and Assistance - National Flood Insurance Program regulations) pertaining to floodplain management.

   Sec. 3.10.014     Duties and responsibilities of the floodplain administrator

Duties and responsibilities of the floodplain administrator shall include, but not be limited to, the following:

(1)     Maintain and hold open for public inspection all records pertaining to the provisions of this article.

(2)     Review permit application to determine whether to ensure that the proposed building site project, including the placement of manufactured homes, will be reasonably safe from flooding.

(3)     Review, approve or deny all applications for development permits required by adoption of this article.

(4)     Review permits for proposed development to assure that all necessary permits have been obtained from those federal, state or local governmental agencies (including section 404 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. 1334) from which prior approval is required.

(5)     Where interpretation is needed as to the exact location of the boundaries of the areas of special flood hazards (for example, where there appears to be a conflict between a mapped boundary and actual field conditions) the floodplain administrator shall make the necessary interpretation.

(6)     Notify, in riverine situations, adjacent communities and the state coordinating agency which is the Texas Water Development Board (TWDB) and also the Texas Commission on Environmental Quality (TCEQ), prior to any alteration or relocation of a watercourse, and submit evidence of such notification to the Federal Emergency Management Agency.

(7)     Assure that the flood carrying capacity within the altered or relocated portion of any watercourse is maintained.

(8)     When base flood elevation data has not been provided in accordance with section 3.10.007, the floodplain administrator shall obtain, review and reasonably utilize any base flood elevation data and floodway data available from a federal, state or other source, in order to administer the provisions of sections 3.10.0173.10.020.

   Sec. 3.10.015     Permit procedures

(a)     Application for a floodplain development permit shall be presented to the floodplain administrator on forms furnished by him/her and may include, but not be limited to, plans in duplicate drawn to scale showing the location, dimensions, and elevation of proposed landscape alterations, existing and proposed structures, including the placement of manufactured homes, and the location of the foregoing in relation to areas of special flood hazard. Additionally, the following information is required:

(1)     Elevation (in relation to mean sea level), of the lowest floor (including basement) of all new and substantially improved structures;

(2)     Elevation in relation to mean sea level to which any nonresidential structure shall be floodproofed;

(3)     A certificate from a registered professional engineer or architect that the nonresidential floodproofed structure shall meet the floodproofing criteria of section 3.10.018(2);

(4)     Description of the extent to which any watercourse or natural drainage will be altered or relocated as a result of proposed development;

(5)     Maintain a record of all such information in accordance with section 3.10.014(1).

(b)     Approval or denial of a floodplain development permit by the floodplain administrator shall be based on all of the provisions of this article and the following relevant factors:

(1)     The danger to life and property due to flooding or erosion damage;

(2)     The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner;

(3)     The danger that materials may be swept onto other lands to the injury of others;

(4)     The compatibility of the proposed use with existing and anticipated development;

(5)     The safety of access to the property in times of flood for ordinary and emergency vehicles;

(6)     The costs of providing governmental services during and after flood conditions including maintenance and repair of streets and bridges, and public utilities and facilities such as sewer, gas, electrical and water systems;

(7)     The expected heights, velocity, duration, rate of rise and sediment transport of the floodwaters and the effects of wave action, if applicable, expected at the site;

(8)     The necessity to the facility of a waterfront location, where applicable;

(9)     The availability of alternative locations, not subject to flooding or erosion damage, for the proposed use.

   Sec. 3.10.016     Variance procedures

(a)     The appeal board, as established by the community, shall hear and render judgment on requests for variances from the requirements of this article.

(b)     The appeal board shall hear and render judgment on an appeal only when it is alleged there is an error in any requirement, decision, or determination made by the floodplain administrator in the enforcement or administration of this article.

(c)     Any person or persons aggrieved by the decision of the appeal board may appeal such decision in the courts of competent jurisdiction.

(d)     The floodplain administrator shall maintain a record of all actions involving an appeal and shall report variances to the Federal Emergency Management Agency upon request.

(e)     Variances may be issued for the reconstruction, rehabilitation or restoration of structures listed on the National Register of Historic Places or the State Inventory of Historic Places, without regard to the procedures set forth in the remainder of this article.

(f)     Variances may be issued for new construction and substantial improvements to be erected on a lot of 1/2 acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, providing the relevant factors in section 3.10.015(b) of this article have been fully considered. As the lot size increases beyond the 1/2 acre, the technical justification required for issuing the variance increases.

(g)     Upon consideration of the factors noted above and the intent of this article, the appeal board may attach such conditions to the granting of variances as it deems necessary to further the purpose and objectives of this article (section 3.10.003).

(h)     Variances shall not be issued within any designated floodway if any increase in flood levels during the base flood discharge would result.

(i)     Variances may be issued for the repair or rehabilitation of historic structures upon a determination that the proposed repair or rehabilitation will not preclude the structure's continued designation as a historic structure and the variance is the minimum necessary to preserve the historic character and design of the structure.

(j)     Prerequisites for granting variances:

(1)     Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.

(2)     Variances shall only be issued upon:

(A)     Showing a good and sufficient cause;

(B)     A determination that failure to grant the variance would result in exceptional hardship to the applicant; and

(C)     A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances.

(3)     Any application to which a variance is granted shall be given written notice that the structure will be permitted to be built with the lowest floor elevation below the base flood elevation, and that the cost of flood insurance will be commensurate with the increased risk resulting from the reduced lowest floor elevation.

(k)     Variances may be issued by a community for new construction and substantial improvements and for other development necessary for the conduct of a functionally dependent use provided that:

(1)     The criteria outlined in subsections (a)–(i) above are met; and

(2)     The structure or other development is protected by methods that minimize flood damages during the base flood and create no additional threats to public safety.

   Sec. 3.10.017     General standards

In all areas of special flood hazards the following provisions are required for all new construction and substantial improvements:

(1)     All new construction or substantial improvements shall be designed (or modified) and adequately anchored to prevent flotation, collapse or lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy;

(2)     All new construction or substantial improvements shall be constructed by methods and practices that minimize flood damage;

(3)     All new construction or substantial improvements shall be constructed with materials resistant to flood damage;

(4)     All new construction or substantial improvements shall be constructed with electrical, heating, ventilation, plumbing, and air-conditioning equipment and other service facilities that are designed and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding;

(5)     All new and replacement water supply systems shall be designed to minimize or eliminate infiltration of floodwaters into the system;

(6)     New and replacement sanitary sewage systems shall be designed to minimize or eliminate infiltration of floodwaters into the system and discharge from the systems into floodwaters; and

(7)     On-site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding.

   Sec. 3.10.018     Specific standards

In all areas of special flood hazards where base flood elevation data has been provided as set forth in sections 3.10.007, 3.10.014(8), or 3.10.019(c), the following provisions are required:

(1)     Residential construction. New construction and substantial improvement of any residential structure shall have the lowest floor (including basement), elevated to 2 feet above the base flood elevation. A registered professional engineer, architect, or land surveyor shall submit a certification to the floodplain administrator that the standard of this subsection as proposed in section 3.10.015(a)(1), is satisfied.

(2)     Nonresidential construction. New construction and substantial improvements of any commercial, industrial or other nonresidential structure shall either have the lowest floor (including basement) elevated to 2 feet above the base flood level or together with attendant utility and sanitary facilities, be designed so that below the base flood level the structure is watertight with walls substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydrodynamic loads and effects of buoyancy. A registered professional engineer or architect shall develop and/or review structural design, specifications, and plans for the construction, and shall certify that the design and methods of construction are in accordance with accepted standards of practice as outlined in this subsection. A record of such certification which includes the specific elevation (in relation to mean sea level) to which such structures are floodproofed shall be maintained by the floodplain administrator.

(3)     Enclosures. New construction and substantial improvements, with fully enclosed areas below the lowest floor that are usable solely for parking of vehicles, building access or storage in an area other than a basement and which are subject to flooding shall be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwaters. Designs for meeting this requirement must either be certified by a registered professional engineer or architect or meet or exceed the following minimum criteria:

(A)     A minimum of two openings on separate walls having a total net area of not less than 1 square inch for every square foot of enclosed area subject to flooding shall be provided.

(B)     The bottom of all openings shall be no higher than 1 foot above grade.

(C)     Openings may be equipped with screens, louvers, valves, or other coverings or devices provided that they permit the automatic entry and exit of floodwaters.

(4)     Manufactured homes.

(A)     Require that all manufactured homes to be placed within zone A on a community's FIRM shall be installed using methods and practices that minimize flood damage. For the purposes of this requirement, manufactured homes must be elevated and anchored to resist flotation, collapse, or lateral movement. Methods of anchoring may include, but are not limited to, use of over-the-top or frame ties to ground anchors. This requirement is in addition to applicable state and local anchoring requirements for resisting wind forces.

(B)     Require that manufactured homes that are placed or substantially improved within zones A1-30, AH, and AE on the community's FIRM on sites:

(i)     Outside of a manufactured home park or subdivision;

(ii)     In a new manufactured home park or subdivision;

(iii)     In an expansion to an existing manufactured home park or subdivision; or

(iv)     In an existing manufactured home park or subdivision on which a manufactured home has incurred “substantial damage” as a result of a flood;

be elevated on a permanent foundation such that the lowest floor of the manufactured home is elevated to 2 feet above the base flood elevation and be securely anchored to an adequately anchored foundation system to resist flotation, collapse, and lateral movement.

(C)     Require that manufactured homes be placed or substantially improved on sites in an existing manufactured home park or subdivision with zones A1-30, AH and AE on the community's FIRM that are not subject to the provisions of subsection (4) of this section be elevated so that either:

(i)     The lowest floor of the manufactured home is at 2 feet above the base flood elevation; or

(ii)     The manufactured home chassis is supported by reinforced piers or other foundation elements of at least equivalent strength that are no less than 36 inches in height above grade and be securely anchored to an adequately anchored foundation system to resist flotation, collapse, and lateral movement.

   Sec. 3.10.019     Standards for subdivision proposals

(a)     All subdivision proposals including the placement of manufactured home parks and subdivisions shall be consistent with sections 3.10.001, 3.10.002, and 3.10.003 of this article.

(b)     All proposals for the development of subdivisions including the placement of manufactured home parks and subdivisions shall meet floodplain development permit requirements of sections 3.10.008, 3.10.015; and the provisions of sections 3.10.0173.10.020 of this article.

(c)     Base flood elevation data shall be generated for subdivision proposals and other proposed development including the placement of manufactured home parks and subdivisions which is greater than 50 lots or 5 acres, whichever is lesser, if not otherwise provided pursuant to section 3.10.007 or section 3.10.014(8) of this article.

(d)     Base flood elevation data, with the establishment of a floodway, shall be generated by a detailed engineering study for all zone A areas, within 100 feet of the contour lines of zone A areas, and other streams not mapped by FEMA, as indicated on the community's FIRM.

(e)     All subdivision proposals including the placement of manufactured home parks and subdivisions shall have adequate drainage provided to reduce exposure to flood hazards.

(f)     All subdivision proposals including the placement of manufactured home parks and subdivisions shall have public utilities and facilities such as sewer, gas, electrical and water systems located and constructed to minimize or eliminate flood damage.

   Sec. 3.10.020     Penalties for noncompliance

No structure or land shall hereafter be constructed, located, extended, converted, or altered without full compliance with the terms of this article and other applicable regulations. Violation of the provisions of this article by failure to comply with any of its requirements (including violations of conditions and safeguards established in connection with conditions) shall constitute a misdemeanor. Any person who violates this article or fails to comply with any of its requirements shall upon conviction thereof be fined not more than $2,000.00 for each violation, and in addition shall pay all costs and expenses involved in the case. Each day a violation occurs is a separate offense. Nothing herein contained shall prevent the city from taking such other lawful action as is necessary to prevent or remedy any violation.

(Ordinance 867-2011 adopted 3/8/11)

   ARTICLE 3.11 SIGNS IN DOWNTOWN BUSINESS DISTRICT*

   Sec. 3.11.001     Purpose

(a)     The purpose of this article is to establish clear and unambiguous verbiage pertaining to signs in the downtown district of the city to provide an attractive community, foster traffic safety, and enhance the effective communication and exchange of ideas and commercial information. The purpose is also to allow for the legitimate needs of commerce and is not intended to limit creativity on the part of the sign designer.

(b)     The city hereby finds the following legislative facts:

(1)     The proliferation of signs creates commercial confusion and makes it difficult for travelers and motorists to locate the goods and services they seek.

(2)     A reasonable limitation on the height of signs is necessary to prevent potential windstorm damage, injury or death. See zoning ordinance no. 773-2003, section 26, in exhibit B to chapter 14.

(3)     Excessive height in signs creates clutter and the establishment of a reasonable maximum height for signs will allow effective communication.

(4)     Reasonable provisions pertaining to size, scale, location, design, lighting, permanency, and maintenance are necessary to preserve and improve the appearance and character of downtown, to avoid traffic problems caused by distracting signs or structures in close proximity to streets, which compete with traffic signs and signals for the attention of the motorists, and to prevent deterioration, disregard and abandonment of signs or structures.

(c)     The city recognizes that signs are necessary for visual communication for public convenience, and businesses and other activities have the right to identify themselves by using signs that are incidental to the use on the premises where the signs are located. The city herein seeks to provide a reasonable balance between the right of a person to identify his or her business or activity, and the rights of the public to be protected against safety hazards that result from the unrestricted proliferation, location and construction of signs.

   Sec. 3.11.002     Downtown district designation

(a)     This section specifies the area described below:

(1)     Bordered on the South at KCS Railroad Tracks.

(2)     North at Pine Street.

(3)     East at Chestnut Street.

(4)     West at Mill Street.

(b)     All buildings in or facing the downtown district are included.

   Sec. 3.11.003     Definitions

All other verbiage. In the case of any definition not listed below or where verbiage is questioned and needs definition or clarification, a reasonable definition will be determined and interpreted by of the city administrator or their designee.

Alley sign. A sign used to identify the alley entrance to a building or business.

Animated sign. A sign designed or programmed so as to seem alive and moving employing visible moving parts, changing images and/or changing colors. This includes televisions, projector screens, and computer monitors of all types and sizes.

Architectural features. Ornamentation or decorative features attached to or protruding from or otherwise accentuating an exterior wall.

Attached sign. Any sign attached to, applied on or supported by any part of a building (such as a wall, roof, window, canopy, awning, arcade, or marquee) which encloses or covers usable space and does not extend more than 12 inches from the building facade.

Awning sign. A rigid roof-like cover extending out from the wall of a building to provide cover over windows or doors, that is supported by the exterior wall of the building, and that may include a type that can be retracted, folded, or collapsed against the face of a supporting building. A sign placed directly on top of the awning.

Banner. A temporary sign, either attached or freestanding, with or without characters, letters, illustrations, or ornamentations, applied to cloth, paper, flexible plastic or fabric of any kind, attached to the exterior structure or freestanding on the site with temporary fastening devices such as rope, string, wire, twine, or similar materials, which is in addition to the permitted permanent signs, announcing a special event for a business, i.e., business openings, grand openings, sales or promotion events.

Billboard. A sign, including the supporting structure, that advertises products or services not sold, manufactured or distributed on the premises on which the sign is located. The following additional definitions apply to billboards:

(1)     Back-to-back sign. A billboard consisting of two sign facings oriented in opposite directions with not more than two faces per sign facing.

(2)     Double faced sign. A billboard with two adjacent faces oriented in the same direction and not more than 10 feet apart at the nearest point between the two faces.

(3)     Embellishments. Any feature such as a cutoff, neon or plastic letters, clock, electric device, and space extension, which is added to a billboard.

(4)     Facing. The area or display surface of a billboard upon which advertising is affixed or painted and visible in one direction at one time.

(5)     Freestanding sign. A billboard erected on a freestanding framework supported and affixed by one or more uprights or braces in or upon the ground.

(6)     Multiple-faced sign. A billboard comprised of sections which rotate to display a series of advertisements, each advertisement being displayed for at least six (6) seconds continuously without movement; the duration of movement of sections between advertisements not exceeding two (2) seconds.

(7)     V Type sign. A sign structure which consists of two sign facings placed at angles to each other, oriented in different directions and not exceeding 10 feet apart at the nearest point to each other.

(8)     Billboards are not allowed in the downtown district.

Canopy. Any nonrigid material such as fabric or flexible plastic, that is supported by or stretched over a frame, that is attached to an exterior wall, and that may include a type that can be retracted, folded, or collapsed against the face of a supporting building.

Canopy sign. A sign that is an integral part of the canopy, which is painted on or applied to the canopy.

Directional traffic-control sign. A sign utilized as a traffic-control device in off-street parking or access areas.

Electronic message sign. A sign utilizing changeable copy messages through internal illumination by light emitting diodes (LEDs) or other light sources.

Elevation (building elevation). The building elevation is the exterior street view of the building (front, side, back) on a two-dimensional plane.

Facade. The portion of any exterior elevation on the building extending from the grade to parquet, wall, or eaves, and the entire width of the building elevation which are adjacent to the front on any right-of-way.

Flag/pennant. A piece of fabric of distinctive design that is used as identification, as a signaling device or as a decoration.

Frieze. A flat area surrounded by architectural features dedicated to sign placement.

Hanging sign. A sign attached to underneath the canopy or awning.

Individual letters, numbers and/or symbols. Used to create signage or identification of a building or business.

Inflatable sign. A sign manufactured of plastic, cloth, canvas, or other flexible or light fabric, inflated with air, secured to the ground, does not float, does not move freely in the wind, and does not exceed 30 feet in height.

Low profile (monument) sign. A sign with a permanent foundation that is not attached to a building, but is a stand-alone sign. A freestanding sign, of which the foundation and supports are at least 80% as wide as the sign copy area and where the sign copy area is attached to the base and located close to the ground. Low profile or monument signs shall not extend more than 4 feet (48 inches) in height and 8 feet (96 inches) in length in the downtown district.

Mural. Artwork applied to the wall of a building that covers all or substantially the entire wall and depicts a scene or event of natural, social, cultural, or historic significance. Excludes any commercial message.

Neon sign. A sign containing a colorless, odorless, gaseous element contained in a vacuum tube.

Nuisance sign. Any sign which annoys and disturbs, or which is illuminated to an intensity to cause glare or brightness to a degree that could constitute a hazard or nuisance. Nuisance signs shall include, but not be limited to, the following:

(1)     Signs containing statements, words, or pictures of an obscene, indecent, or immoral character, such as will offend public morals or decency.

(2)     Signs which imitate an official traffic sign or signal, or which contain the words ‘stop,' ‘go slow,' ‘caution,' ‘danger,' ‘warning,' or similar words.

(3)     Signs which are of a size, location, movement, content, coloring, or manner of illumination which may be confused with or construed as a traffic-control device, which hide from view any traffic or street sign or signal, or which obstruct the view in any direction at a street or road intersection.

(4)     Signs that are unsafe or unsecured, abandoned, or maintained in a dilapidated condition.

(5)     A light setup in a prominent position to attract attention to that location.

(6)     Inflatable signs and balloons, if located within a multifamily or nonresidential district.

(7)     Flashing, fluttering, undulating swinging, rotating, or otherwise moving signs.

(8)     Three dimensional or statuary signs.

(9)     Streamers.

(10)     Snipe signs - An off-premises sign that is tacked, nailed, posted, pasted, glued, or otherwise attached to trees, poles, fences, or other objects.

Pole sign. A sign on a freestanding pole, not attached to the building with at least eight (8) feet of clearance from the ground to the bottom of the frame of the sign.

Portable sign. A movable sign with wheels or skids that is larger than a sandwich board as defined in section 3.11.021. See section 3.11.015 for exceptions to portable signs being permitted in the downtown district.

Primary sign. The most dominate sign on the building.

Projection sign. A sign attached to and placed perpendicular to a building facade.

Real estate, finance and construction sign. An attached sign erected upon a property for the purpose of advertising same for sale or lease, or advertising the furnishing of interim or permanent financing for a project, or for the furnishing of labor, materials or the practice of crafts on the jobsite.

Roof sign. An outdoor sign erected, constructed, or maintained on the roof of a building or which is wholly dependent upon a building for support, and which projects above the point of a building.

Sandwich board. Any sign designed for placement on the sidewalk, of “A” frame construction, and generally two-sided. The sign may have wheels but must be in compliance with section 3.11.021.

Sign. Any written or graphic representation, decoration, form, emblem, trademark, flag, banner, or other feature or device of similar character that is used for the communication of commercial information.

(1)     Is a structure or any part thereof, including the roof or wall of a building, or a freestanding wall or fence;

(2)     Is written, printed, projected, painted, constructed or otherwise placed or displayed upon or designed into a building, board, plate, canopy, awning or upon any material, object or device whatsoever;

(3)     By reason of its form, color, wording, symbol design, illumination or motion attracts or is designed to attract attention to the subject thereof, or is used as a means of identification, advertisement or announcement;

(4)     A sign shall be considered to be a single display surface, a double-faced display surface, or display device containing elements clearly organized, related and composed to form a unit. Where matter is displayed in a random manner without organized relationship of elements or where there is reasonable doubt about the relationship of elements, each element shall be considered to be a single sign; provided, however, that the display of merchandise through glass windows in any zone where such merchandise may be sold in the ordinary course of business shall not constitute a sign or signs.

Sign emissions. Any sign that emits sound, odor or visible matter.

Vehicle sign. A sign that identifies a vehicle used for a particular business; however, not when the primary use of the vehicle is that of a sign.

Wall sign. A sign that is either painted or permanently attached to the front, side or rear of a building.

Window sign. A sign painted or applied to a window or door glass intended for permanent use.

   Sec. 3.11.004     Alley signs

Applies only to those businesses that need to identify an alley entrance to a building. Permit required.

   Sec. 3.11.005     Attached signs

(a)     An attached sign shall advertise only the name of the business or services available within the building to which the sign is attached.

(b)     The size of attached signs shall be limited to one (1) square foot per front foot of property upon which the same is placed; however, under no circumstances shall such sign exceed three hundred (300) square feet in area. If the lot on which the building is located has multiple right-of­way frontage, each street frontage shall be counted for purposes of determining attached sign allowance. Said signage is to be applied (distributed) on the sides of the building where facing directly adjacent to the public right-of-way. Alternate signage is allowed on sides of the building not adjacent to the public right-of-way not to exceed 32 square feet.

(c)     Permit required.

   Sec. 3.11.006     Awning signs

Awning signs must conform to a size of 1.5 square feet for every 1 foot of facade width. Permit required.

   Sec. 3.11.007     Banners

(a)     Banners shall not exceed thirty (30) feet.

(b)     Banners shall not be placed over the street or right-of-way; except by permit.

(c)     Banners must be on the property where the business being advertised is located.

(d)     Banners shall not obscure windows or architectural details.

(e)     Banners may not be placed on commercial property for a time period to exceed the duration of the event advertised but in no circumstances may a banner be displayed in excess of thirty (30) days.

(f)     Permit required.

   Sec. 3.11.008     Sign permits

(a)     Permits shall be issued by the city upon receipt of a properly completed application which demonstrates that the applicant's request is in accordance with the provisions of the city's building code and zoning ordinance. The application must contain a drawing showing the proposed dimensions, location and appearance of the sign. Once approved, applicant must also provide city with a photo of the sign for which the application was submitted. Issuance of a permit shall be at the city administrator's discretion.

(b)     A permit shall be required for the following types of signs:

(1)     Attached signs.

(2)     Alley signs.

(3)     Awning signs.

(4)     Banners.

(5)     Hanging signs.

(6)     Murals.

(7)     Primary sign.

(8)     Projecting sign.

(9)     Sandwich boards.

(10)     Wall signs.

(11)     Window signs.

(12)     Signage depicted from the collaboration of individual letters or words.

(c)     No permit shall be required for the following signs:

(1)     Directional traffic-control signs.

(2)     Real estate, finance and construction signs.

(3)     Noncommercial signs: Political signs.

(4)     Open/close signs.

(5)     Political signs governed by the terms of section 216.903 of the Texas Local Government Code.

   Sec. 3.11.009     Directional traffic-control signs

Directional traffic-control signs may be utilized as traffic-control devices in off-street parking areas. No directional traffic-control sign shall be permitted within or upon the right-of-way of any public street unless its construction, design, and location have been approved by the city administrator.

   Sec. 3.11.010     Exempt signs

The following signs are exempt from the requirements of this article:

(1)     Temporary signs erected by private property owners for the purpose of warning of a dangerous defect or condition, or other hazard to the public.

(2)     Temporary decorations or displays, if they are clearly incidental to and are customarily and commonly associated with any national, or local celebration. Temporary decorations or displays not associated with any national, or local celebration but used solely for decorative purposes must be removed after 45 calendar days or within three (3) days at the end of event celebrated, whichever comes first.

(3)     Outdoor advertising display signs for sponsors of charitable events held on public properties. These signs may be displayed for the duration of the event or not more than three (3) days. These include banners related to the event.

(4)     Security signs.

(5)     Balloons and/or other gas filled objects not to exceed twenty (20) feet in height and shall be used solely for decorative purposes. Must be removed after 45 days or within three (3) days at end of event, whichever comes first.

(6)     City banners.

(7)     Historic building markers.

   Sec. 3.11.011     Hanging signs

Hanging signs shall be allowed when such signs have a minimum clearance of 6'8" (80 inches - American Disabilities Act (code 1102.5)) from the sidewalk and does not extend beyond 50% of awning or canopy width . Permit required.

   Sec. 3.11.012     Individual letters

(a)     Individual letters placed on a building facade or window are permitted.

(b)     Permit required. However, permits are not required for each letter.

   Sec. 3.11.013     Murals

Murals may be applied only to sidewalls of buildings. A permit is required.

   Sec. 3.11.014     Neon signs

(a)     Exterior neon signs are not all owed.

(b)     Interior neon signs, including, open/close signs are permitted.

(c)     No permit is required for interior open/close signs.

   Sec. 3.11.015     Portable signs

Portable signs are not permitted within the designated downtown district of the city without a special exception for instances such as necessity and special events.

   Sec. 3.11.016     Primary signs - sign frieze

(a)     Refers to a turn-of-the-century building.

(b)     A sign frieze shall be located above the transom and below the second floor window.

(c)     Sign size shall not exceed 105 square feet for every one (1) foot of facade.

(d)     Signs shall not obscure or compete with architectural details of the building.

(e)     Permit required.

   Sec. 3.11.017     Prohibited signs

The following signs shall be prohibited in the designated downtown district, as defined by this article, unless a special exception is granted due to instances such as necessity or paramount operational importance or in the case the sign is of permanent stature and is damaged or destroyed and will be replaced with the exact or greater integrity as was implemented before. For definitions, please refer to section 3.11.003:

(1)     Portable billboards.

(2)     Portable signs.

(3)     Rooftop signs.

(4)     Exterior neon signs.

(5)     Individual business customer parking signs - reserving public parking spaces.

(6)     Handmade or nonprofessional signs.

(7)     Neglected or abandoned signs.

(8)     Nuisance signs - see definitions in section 3.11.003.

(9)     Inflatable signs and balloons, if located within a multifamily or nonresidential district.

(10)     Sign emissions.

(11)     Mirrors.

(12)     Over-the-street banners (by permit only).

(13)     Beacons.

(14)     Flashing, fluttering, undulating, swinging, rotation, or otherwise moving signs.

(15)     Signs, temporary or otherwise, affixed to a tree or utility pole.

(16)     Off-premises advertising signs, except as expressly permitted in this section.

(17)     Three-dimensional or statuary signs.

(18)     Streamers.

(19)     Snipe signs - An off-premises sign that is tacked, nailed, posted, pasted, glued, or otherwise attached to trees, poles, stake fences, or other objects.

   Sec. 3.11.018     Projecting signs

Projecting signs shall provide a minimum clearance of 8 feet between the sidewalk surface and the bottom of the sign and shall be no more than 4 feet in height and in no case project more than one-half of the sidewalk width. Permit required.

   Sec. 3.11.019     Real estate/finance/construction signs

(a)     Only one of each, real estate, finance or construction sign may be shown per building location.

(b)     Displayed real estate, finance, or construction signs shall be maintained by the persons in control of the premises so as to remain erect and in good repair.

(c)     Displayed sign shall be removed by the property owner or other person in control of the premises if this sign is damaged, broken or incapable of remaining erect.

(d)     Such signs must be removed by the owner or person in control of the premises when either the property has sold or been leased or when performance under the construction contract or subcontract has been completed.

(e)     In all cases, financing and construction signs shall be removed prior to issuance of a certificate of occupancy.

(f)     Permits not required.

   Sec. 3.11.020     Roof signs

Roof signs are not permitted in the downtown district.

   Sec. 3.11.021     Sandwich board signs

(a)     Sandwich boards should be limited to 48 inches in height and 24 inches in width.

(b)     Sandwich boards should not obstruct pedestrian traffic flow or the cosmetic integrity of surrounding buildings and region. All American Disabilities Act requirements shall be met including requirements for pedestrian access. The minimum clear width of a pedestrian access route shall be 48 inches exclusive of the width of the curb. This includes signs, merchandise, benches, tables, etc.

(c)     Sandwich board signs must be displayed only in front of the business advertised. Signs must be properly anchored (temporarily) or weighted against wind.

(d)     Chalkboards may be used for daily changing messages.

(e)     Permit required.

   Sec. 3.11.022     Wall signs

Signs permanently attached to the front, side or rear of a building. Not the primary sign. Permit required.

   Sec. 3.11.023     Window signs

Window signs shall cover no more than 30% of the total glass areas of the windows on which they are placed. Permit required.

   Sec. 3.11.024     Nonconforming signs

(a)     Within the city there exists signs which were lawful before this article was enacted, amended or otherwise made applicable, but do not now conform to the regulations. It is the intent of this article to permit such nonconforming signs.

(b)     If fire, the elements, or some other cause destroys a sign, it may not be rebuilt except to conform to the requirements of this article.

(c)     Once nonconforming signs are removed, all sign replacements must conform to the requirements of this article.

   Sec. 3.11.025     Variances

The city council shall have jurisdiction to hear requests for a special exception from the terms of this article. There are no special exception fees. The city council shall be authorized to grant a special exception at their discretion from the terms hereof if they find:

(1)     That the strict enforcement of this article would create a substantial hardship to the applicant; and

(2)     That the granting of the special exception would preserve the spirit and intent of these guidelines, and would serve the general interests of the public and the applicant.

   Sec. 3.11.026     Americans with Disabilities Act

(a)     All signage must comply with the Americans with Disabilities Act.

(b)     Banners, signs and decorations of any type may not be hung on the ADA sidewalk rails at any time.

   Sec. 3.11.027     Permit fees

A one-time permit fee shall be paid in accordance with the fee schedule on file with the city secretary.

   Sec. 3.11.028     Electronic variable message sign placement

Lighted/electronic variable signs which face the front window of a business must be at least seven (7) feet from that window if the sign is at any angle less than 90 degrees relative to that window.

(Ordinance 986-2018 adopted 6/12/18)

   ARTICLE 3.12 VACANT BUILDING REGISTRATION

   Sec. 3.12.001     Purpose

There is hereby adopted rules and regulations regarding vacant structures in the designated main street district and historic district. This article shall be known and may be cited as the vacant building regulations.

   Sec. 3.12.002     Definitions

The following words, terms, and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Designated main street district. Located as adopted or hereafter amended by the city council.

Historic district. An area designated as such through approved means by city council, state or federal authority, and as previously defined and adopted in this code.

Historic landmark. An individual structure or property which has been designated as such through approved means by city council, state or federal authority, and as previously defined and adopted in this code.

Lawful activity. That which the structure was built for or intended to be used for. No building shall be used primarily for storage of personal or business items.

Owner. Any person, agent, firm, partnership or corporation having a legal interest in the property.

Secured. All accessible means of ingress and egress to the vacant structure, including but not limited to all exterior doorways and windows are locked so as to prevent unauthorized entry.

Structure. That which is built or constructed.

Temporarily secured. All accessible means of ingress and egress to the vacant structure, including but not limited to all exterior doorways and windows are covered with plywood (or other appropriate material) which has been nailed or bolted in place so as to prevent unauthorized entry.

Vacant structure. All lawful activity has ceased, or reasonably appears to have ceased for 30 days.

   Sec. 3.12.003     Applicability and administration

(a)     This article shall apply to all vacant structures, as defined herein, which are now in existence or which may hereafter be constructed or converted from other uses and which are within the central business district, all historic districts, and all vacant designated landmarks.

(b)     The city administrator or his designee is authorized to administer and enforce the provisions of this article.

(c)     The city administrator or his designee shall have the authority to render interpretations of this title and to adopt policies and procedures in order to clarify the application of its provisions. The city administrator or his designee, at his sole discretion, may also enter into an agreement with a registered property owner to obtain compliance with this article by a date certain.

   Sec. 3.12.004     Registration required

(a)     The vacant structure property owner shall have 90 days in which to register from the date written notice is issued to the property owner. Written notice shall be issued to the vacant structure property owner by means of personal service, or by first class mail to their last known address according to the county appraisal district records, and by posting on the property. Should mailings be returned undeliverable a notice published once in the local newspaper shall serve as notice to the property owner.

(b)     The city administrator or his designee may consider provided evidence the property is listed for sale or lease for fair market value and for a reasonable length of time for purposes of extending the length of time before the property must be registered.

(c)     Upon the issuance of notice to register vacant property, owners shall register with the city administrator or his designee and provide the following information:

(1)     The address and legal description of the property.

(2)     The current name, physical address, mailing address, telephone number and email information for any owner(s) with an ownership interest in the property. Corporations or corporate entities shall submit the same information pertaining to their registered agent.

(3)     The contact information for a local manager of the properties and/or improvements located on said property, as applicable.

(4)     Owner must submit proof of insurance of the building to the city prior to the issuance of a certificate of registration for any vacant building designated for nonresidential uses, the owner shall procure and keep in full force and effect at all times during the registration term, commercial general liability and property insurance coverage, with minimum combined bodily injury (including death) and property damage limits of not less than $1,000,000.00 for each occurrence and $2,000,000.00 annual aggregate.

(5)     Complete the comprehensive plan of action form, provided to the city, detailing a timeline for correcting violations, rehabilitation, and maintenance while vacant, and future use of the structure. The plan of action must be updated every six (6) months.

(6)     A complete floor plan of the property for use by first responders in the event of a fire or other catastrophic event.

(7)     Vacant structure property owners shall provide written notice to the city, including a copy of the deed, of a change in:

(A)     Ownership of the property;

(B)     Contact information for either the owner or the designated manager. Written notice must be provided to the city no later than 30 days after said changes have occurred.

(C)     Continued annual registration of the property by the vacant structure property owner is required until said structure is deemed occupied and in compliance with all relevant code requirements by the city.

   Sec. 3.12.005     Registration fees

Vacant structure property owners shall tender an annual registration and inspection fee of $500.00 for each vacant property. The registration fee shall be pro-rated for the first time a property is registered with the city. Subsequent annual registration fees shall be due and postmarked no later than January 31st of each year.

   Sec. 3.12.006     Property manager or agent

(a)     Vacant structure property owners must designate a local manager for said properties and include the relevant contact information for the designated manager upon registering the property with the city. The property manager shall serve as agent for the property owner for purposes of accepting legal service; however, the vacant property owner remains personally liable in criminal prosecutions for code violations.

(b)     The property manager or agent must be available at the number listed at all times in the event of an emergency or catastrophe.

   Sec. 3.12.007     Standard of care for vacant property

The standard of care, subject to approval by the city administrator or his designee, shall include, but is not limited to:

(1)     Protective treatment. All exterior surfaces, including but not limited to, doors, door and window frames, cornices, porches, trim, balconies, decks and fences, shall be maintained in good condition, weathertight and in such condition so as to prevent the entry of rodents and other pests. All exposed wood or metal surfaces subject to rust or corrosion, other than decay resistant woods or surfaces designed for stabilization by oxidation shall be protected from the elements and against decay or rust by periodic application of weather coating materials such as paint or similar surface treatment. All surfaces with rust or corrosion shall be stabilized and coated to inhibit future rust and corrosion. Oxidation stains shall be removed from exterior surfaces. All siding, cladding and masonry joints, a well as, those between the building envelope and the perimeter of windows, doors and skylights, shall be maintained weather resistant and watertight.

(2)     Premises identification. The property shall have address numbers placed in a position to be plainly legible and visible from the street or road fronting the property. These numbers shall contrast with their background. Address numbers shall be Arabic numerals or alphabet letters. Numbers shall be a minimum of 4 inches (102 mm) high with a minimum stroke width of 0.5 inch (12.7 mm).

(3)     Structure. All structural members and foundation shall be maintained free from deterioration, and shall be capable of safely supporting the imposed loads.

(4)     Exterior walls. All exterior walls shall be kept in good condition and shall be free from holes, breaks, and loose or rotting materials. Exterior walls shall be maintained weatherproof and properly surface coated where necessary to prevent deterioration.

(5)     Interior and exterior areas. The property must be kept free of junk, trash, debris or combustible materials.

(6)     Vegetation and landscaping. Shall be maintained in good and healthy condition.

(7)     Roof and drainage. The roof and flashing shall be sound, tight and not have defects that admit rain. Roof drainage shall be adequate to prevent accumulation, dampness or deterioration. Roof drains, gutters and downspouts shall be maintained in good repair, free from obstructions and operational.

(8)     Decorative features. All cornices, belt courses, corbels, applications, wall facings and similar decorative features shall be maintained in good repair with proper anchorage and in a safe condition.

(9)     Overhang extensions and awnings. All overhang extensions including, but not limited to canopies, marquees, signs, awnings, and fire escapes shall be maintained in good repair and be properly anchored and supported as to be kept in a sound and safe condition.

(10)     Stairways, decks, porches and balconies. Every exterior stairway, deck, porch and balcony, and all appurtenances attached thereto, shall be maintained structurally sound, in good repair, with proper anchorage and capable of supporting the imposed loads.

(11)     Handrails and guards. Every exterior handrail and guard shall be firmly fastened and capable of supporting normally imposed loads and shall be maintained in good condition.

(12)     Window, skylight and door. Every window, storefront, skylight and exterior door part, including but not limited to the frame, the trim, window screens and hardware shall be kept in sound condition and good repair. All broken or missing windows shall be replaced with glass and secured in a manner so as to prevent unauthorized entry. All broken or missing doors shall be replaced with appropriately sized doors which shall be secured to prevent unauthorized entry. All glass shall be maintained in sound condition and good repair. All exterior doors, door assemblies and hardware shall be maintained in good condition and secured. Locks at all exterior doors, exterior attic access, windows, or exterior hatchways shall tightly secure the opening. Windows and doors shall not be secured by plywood or other similar means mounted on the exterior except as a temporary securing measure, and the same shall be removed within a period of time designated by the city administrator or his designee.

(13)     Repairs. All repairs shall be subject to approval by the city. All required permits and final inspections prior to and/or following repairs shall be in accordance with applicable laws and rules.

(14)     Violation. Failure to maintain the vacant property to the standard of care specified by the city is a violation of this article.

   Sec. 3.12.008     Fee waivers

All fee waivers must be applied for, using the forms provided, on an annual basis, and are subject to approval by the city administrator. A fee waiver is only valid for twelve (12) months.

(1)     Property which has been devastated by a catastrophe such as fire or flood: the owner has 30 days to register from the date of the disaster but may be exempt from the fees. This exemption is for the duration of one year from the date of the catastrophe; thereafter all applicable fees are due.

(2)     A property owner who is indigent must register and is otherwise subject to this article but may be exempt from the fees.

(3)     (A)     Representatives of a property owner who is deceased or is no longer legally competent must register the property and are otherwise subject to this article but may be exempt from the registration fees.

(B)     If representatives of the property owner cannot be identified and provisions of this article are required to be carried out by the city to protect the property, then the city reserves the right to make corrections and charge the cost to the owner(s) by filing appropriate liens with the county clerk.

(4)     Where the owner of the property has obtained a building permit and is progressing in an expedient manner to prepare the premises for occupancy, the owner must register the property and is otherwise subject to this article but may be exempt from the registration fees.

   Sec. 3.12.009     Jurisdiction, enforcement and penalties

(a)     Written notice of violation will precede the issuance of a criminal citation, in which the vacant property owner will be given a reasonable length of time, as determined by the city administrator or his designee, to remedy the violation. Written notice shall be issued to the vacant structure property owner by means of personal service, or by first class mail to their last known address according to the county appraisal district records, and by posting on the property.

(b)     Failure to register with the city after written notice to the vacant structure property owner, as is hereinafter specified, is a violation of this article.

(c)     Violation of this article is a class C misdemeanor.

(1)     This is a strict liability offense in which no mental state is required.

(2)     The fine for this offense may not exceed five hundred dollars the maximum amount allowed by state statute.

(d)     Administrative, civil, and criminal enforcement are alternative remedies which may be sought independently of each other. Criminal prosecution may occur regardless of pursuit of civil or administrative remedies and vice versa.

(Ordinance 924-2015 adopted 2/10/15)

   ARTICLE 3.13 RIGHT-OF-WAY MANAGEMENT

   Division 1. General Provisions

   Sec. 3.13.001     Title; policy and purpose

(a)     This article may be known and cited as the right-of-way management ordinance for the city.

(b)     The city enacts these regulations to manage the public right-of-way, to ensure public health, safety and welfare and to promote the most efficient use of the right-of-way first and foremost for the traveling public, and also for water and sewer uses and for utility uses designed to benefit the citizens of the city, including such uses as have been recognized in statutory and common law in the state.

   Sec. 3.13.002     Construction; governing law; venue

(a)     This article shall be construed under and in accordance with the laws of the state and the city charter and city code to the extent that such charter and codes are not in conflict with or in violation of the Constitution and laws of the United States or the state. All obligations of the parties hereunder are performable in Dallas County, Texas.

(b)     All provisions of this article shall apply to all persons involved with the right-of-way, all work performed therein, any facilities maintained therein or any other matter as applicable.

   Sec. 3.13.003     Scope

This article shall be effective within the geographical limits of the city, including any areas subsequently annexed by the city.

   Sec. 3.13.004     Definitions

The definitions in this section apply to all of this article.

Abandon. The facilities installed in the right-of-way (including by way of example but not limited to: poles, wires, conduit, manholes, handholes, cuts, network nodes and node support poles, or portion thereof) that have been left by provider in an unused or nonfunctioning condition for more than 120 consecutive calendar days unless, after notice to provider, provider has established to the reasonable satisfaction of the city that the applicable facilities, or portion thereof, is still in active use.

Access line.

(1)     Unless the commission adopts a different definition under section 283.003, a unit of measurement representing:

(A)     Each switched transmission path of the transmission media that is physically within a public right-of-way extended to the end-use customer's premises within the municipality, that allows the delivery of local exchange telephone services within a municipality, and that is provided by means of owned facilities, unbundled network elements or leased facilities, or resale;

(B)     Each termination point or points of a nonswitched telephone or other circuit consisting of transmission media located within a public right-of-way connecting specific locations identified by, and provided to, the end-use customer for delivery of nonswitched telecommunications services within the municipality; or

(C)     Each switched transmission path within a public right-of-way used to provide central office-based PBX-type services for systems of any number of stations within the municipality, and in that instance, one path shall be counted for every 10 stations served; and

(2)     May not be construed to include interoffice transport or other transmission media that do not terminate at an end-use customer's premises or to permit duplicate or multiple assessment of access line rates on the provision of a single service.

Ancillary. Secondary, supporting, or subordinate.

Antenna. Communications equipment that transmits or receives electromagnetic radio frequency signals used in the provision of wireless services.

Applicable codes.

(1)     Uniform building, fire, electrical, plumbing, or mechanical codes adopted by a recognized national code organization; and

(2)     Local amendments to those codes to the extent not inconsistent with this article.

Applicant. A person submitting an application or proposal to the city for a license, franchise, permit or notice to install facilities or equipment or work in the right-of-way.

Application or proposal. Are synonymous for the purposes of this article. An “application” or “proposal” means the process by which the applicant submits a request and indicates a desire to be granted a license, permit or franchise for all, or a part, of the city. An “application” or “proposal” includes all written documentation, and official statements and representations, in whatever form, made by an applicant to the city.

Assignment of an authorization or transfer of an authorization. Any transaction or action which effectively or actually transfers the authorization or franchise or changes operational or managerial control from one (1) person or entity to another.

Authorization or agreement to use the right-of-way. A negotiated privilege pursuant to an agreement between the city in its discretion and a person, allowing a person to occupy any portion of a street, right-of-way, or easement owned or controlled by the city, and may be for a limited period of time or for a specific purpose.

Certificated telecommunications provider. A person who has been issued a certificate of convenience and necessity, certificate of operating authority, or service provider certificate of operating authority by the commission to offer local exchange telephone service or a person who provides voice service.

City. The City of Winnsboro, Texas or its lawful successor, and includes the city council.

City administrator. The city administrator or designee.

City council or council/franchising authority. The city council or its lawful successor, which is the governing body for the city.

Collocate and collocation. The installation, mounting, maintenance, modification, operation, or replacement of network nodes in a public right-of-way on or adjacent to a pole.

Commission. The public utility commission of the state.

Communications network. A component or facility that is, wholly or partly, physically located within a public right-of-way and that is used to provide video programming, cable, voice, or data services.

Concealment or camouflaged. Any wireless facility or pole that is covered, painted, disguised, or blended in to its environment or otherwise hidden or kept from sight such that the wireless facility blends into the surrounding environment and is visually unobtrusive. A concealed or camouflaged wireless facility or pole also includes any wireless facility or pole conforming to the surrounding area in which the wireless facility or pole is located and may include, but is not limited to hidden beneath a facade, blended with surrounding area design, painted to match the supporting area, or disguised with artificial tree branches.

Consumer price index. The annual revised consumer price index for all urban consumers for the state, as published by the Federal Bureau of Labor Statistics.

DAS or distributed antenna system. Shall be included as a type of network node and have the same meaning as “network node.”

Decorative pole. A streetlight pole specially designed and placed for aesthetic purposes and on which no appurtenances or attachments, other than specially designed informational or directional signage or temporary holiday or special event attachments, have been placed or are permitted to be placed according to nondiscriminatory municipal codes.

Design district. An area that is zoned, or otherwise designated by municipal code, and for which the city maintains and enforces unique design and aesthetic standards on a uniform and nondiscriminatory basis.

Disaster emergency or disaster or emergency. An imminent, impending, or actual natural or humanly induced situation wherein the health, safety, or welfare of the residents of the city is threatened, and includes, but is not limited to any declaration of emergency by city, state or federal governmental authorities.

Easement. Refers to or shall include any public easement or other compatible use, whether created by dedication or by the other means, for uses which include public utility purposes or any other purpose whatsoever. “Easement” may include a private easement used for the provision of utilities, depending upon usage.

FCC or Federal Communications Commission. The federal administrative agency, or lawful successor, authorized to oversee cable television and other multi-channel regulation on a national level.

Fiber able or fiber optic cable. A form of communication transmission that uses light to send data, high quality video and sound.

Franchise expiration. The date of expiration, or the end of the term of a franchise.

Franchise fee. The user fee or charge that the city requires as payment for using the streets, rights-of-way, public ways, and easements of the city.

Franchise or franchise agreement. The initial authorization, or subsequent renewal granted by the city in order for a person to construct, operate, and maintain a system in all, or part, of the city right-of-way.

Gross receipts. Any and all compensation which is derived from the operation of the system, and which is attributable to the systems operations within the city as allowed by law.

Highway right-of-way. Right-of-way adjacent to a state or federal highway.

Historic district. An area that is zoned or otherwise designated as a historic district under municipal, state, or federal law.

Law. Common law or a federal, state, or local law, statute, code, rule, regulation, order, or ordinance.

Local. Within the geographical boundaries of the city.

Local exchange telephone service. Has the meaning assigned by section 51.002, Utilities Code.

Macro tower. A guyed or self-supported pole or monopole greater than the height parameters prescribed by section 284.103 and that supports or is capable of supporting antennas.

Mayor. The mayor for the city.

Micro network node. A network node that is not larger in dimension than 24 inches in length, 15 inches in width, and 12 inches in height, and that has an exterior antenna, if any, not longer than 11 inches.

Municipally-owned utility pole. A utility pole owned or operated by a municipally owned utility, as defined by section 11.003, Utilities Code, and located in a public right-of-way.

Municipal park. An area that is zoned or otherwise designated by municipal code as a public park for the purpose of recreational activity, and includes means the various properties used for such purpose under the direction, control and supervision of the city.

MUTCD. Manual of Uniform Traffic-Control Devices.

Network node. Equipment at a fixed location that enables wireless communications between user equipment and a communications network. The term:

(1)     Includes:

(A)     Equipment associated with wireless communications;

(B)     A radio transceiver, an antenna, a battery-only backup power supply, and comparable equipment, regardless of technological configuration; and

(C)     Coaxial or fiber-optic cable that is immediately adjacent to and directly associated with a particular collocation; and

(2)     Does not include:

(A)     An electric generator;

(B)     A pole; or

(C)     A macro tower.

Network provider.

(1)     A wireless service provider; or

(2)     A person that does not provide wireless services and that is not an electric utility but builds or installs on behalf of a wireless service provider:

(A)     Network nodes; or

(B)     Node support poles or any other structure that supports or is capable of supporting a network node.

Node support pole. A pole as defined by chapter 284 of the Texas Local Government Code.

Park. The same meaning as “municipal park.”

Permit. A document issued by the city authorizing installation, removal, modification and other work for equipment or facilities in accordance with the approved plans and specifications.

Person. Any individual, corporation, business, trust, estate, partnership, association of two (2) or more persons having a joint common interest, governmental agency, or other legal entity. From context within sections of this article, it refers to persons using, applying or seeking to use the right-of-way.

Pole. A service pole, municipally owned pole, node support pole, or other utility pole, and shall include network node support pole.

Provider. The same meaning as “network provider.”

Public right-of-way management ordinance. This article of the city code and includes all other city ordinances that comply with chapter 284 of the Local Government Code.

Right-of-way, public way or public right-of-way or public rights-of-way or rights-of-way.

(1)     The surface of, and the space above and below a public street, road, highway, freeway, land, path, public way or place, alley, court, boulevard, parkway, drive, or other easement now or hereafter held by the city (including any street, as defined, which is acquired by eminent domain) for the purpose of public travel and shall include other easements or rights-of-way now or hereafter held by the city (including any easements or rights-of-way acquired by eminent domain) which shall, with their proper use and meaning, entitle the city or utility provider, with proper authorization, to use thereof for the purpose of installing or transmitting utilities over poles, wires, cable, conductors, ducts, conduits, viaducts, manholes, amplifiers, appliances, attachments, and other property as may ordinarily be necessary.

(2)     The term does not include a private easement or the airwaves above a public right-of-way with regard to wireless telecommunications.

Service pole. A pole, other than a municipally-owned utility pole, owned or operated by a municipality and located in a public right-of-way, including:

(1)     A pole that supports traffic-control functions;

(2)     A structure for signage;

(3)     A pole that supports lighting, other than a decorative pole; and

(4)     A pole or similar structure owned or operated by a municipality and supporting only network nodes.

Small cell. Included as a type of network node and have the same meaning as “network node.”

State. The State of Texas.

Street. Only the portion of the right-of-way with a specially prepared surface used for vehicular travel, which surface may be concrete, asphalt, or other material commonly used to prepare a surface for vehicular travel, and is limited to the area between the inside of the curb (when there is a curb) to the inside of the opposite curb, and does not include the curb area or the area between the two parallel edges of the surface used for vehicular travel where there is no curb. A street is generally part of, but less than, or smaller in width than, the size or width of the right-of-way. Right-of-way includes the sidewalks and utility easements and street does not include a sidewalk or utility easement. A street does not include the curb, sidewalk, ditch, if any are present either at time of permitting or if added later.

SWPPP. Stormwater pollution prevention plan.

TAS. Texas Accessibility Standards.

Thoroughfare. The same meaning as “street.”

Traffic signal. Any device, whether manually, electrically, or mechanically operated by which traffic is alternately directed to stop and to proceed.

Transport facility. Each transmission path physically within right-of-way, extending with a physical line from a network node directly to the network, for the purpose of providing backhaul for network nodes.

Underground district or underground requirement area or underground area. An area where poles, overhead wires, and associated overhead or above ground structures have been removed and buried or have been approved for burial underground pursuant to municipal ordinances, zoning regulations, state law, private deed restrictions, or other public or private restrictions, that prohibit installing aboveground structures in a public right-of-way.

U.S.C. United States Code.

User. A person or organization that owns, places or uses facilities occupying the whole or a part of a public street or right-of-way, depending on the context.

Utility pole. A pole that provides:

(1)     Electric distribution with a voltage rating of not more than 34.5 kilovolts; or

(2)     Services of a telecommunications provider, as defined by section 51.002 of the Utilities Code.

Voice service. Voice communications services provided through wireline facilities located at least in part in the public right-of-way, without regard to the delivery technology, including internet protocol technology. The term does not include voice service provided by a commercial mobile service provider as defined by 47 U.S.C. section 332(d).

Wireless facilities. “Micro network nodes,” “network nodes,” and “node support poles” as defined in Texas Local Government Code chapter 284.

Wireless service. Any service, using licensed or unlicensed wireless spectrum, including the use of wi-fi, whether at a fixed location or mobile, provided to the public using a network node.

Wireless service provider. A person that provides wireless service to the public.

   Sec. 3.13.005     Unauthorized use of public rights-of-way

(a)     The city may institute all appropriate legal action to prohibit any person from knowingly using the public rights-of-way unless the person has complied with the terms of this division.

(b)     This article shall not be construed as imposing upon the city or any official or employee any liability or responsibility for damages to any person injured by the performance of any work for which a permit is issued hereunder, nor shall the city or any official or employee thereof be deemed to have assumed any such liability or responsibility by reason of inspections authorized hereunder, the issuance of any permit or the approval of any work.

   Secs. 3.13.006–3.13.030     Reserved

   Division 2. Right-of-Way Management

   Sec. 3.13.031     Right-of-way construction

No person shall commence or continue with the construction, installation or operation of facilities within the right-of-way in the city except as provided by the ordinances of the city and the directives of the city administrator. All construction activity in city right-of-way will be in accordance with this article.

   Sec. 3.13.032     Authorization; registration; compensation and fees

(a)     Registration.

(1)     In order to protect the public health, safety and welfare, all users of the right-of-way will register with the city.

(2)     Registration and permits will be issued in the name of the person who will own the facilities.

(3)     Registration and permits are not authorizations to install facilities in the rights-of-way, such authorization must be through municipal franchise or license or municipal agreement, except when otherwise required by state law.

(4)     Registration must be renewed every five (5) years. For utilities with a current franchise or license, the franchise or license will be evidence of renewal. If a registration is not renewed and subject to sixty-day notification to the owner, the facilities of the user will be deemed to have been abandoned.

(5)     When any information provided for the registration changes, the user will inform the city of the change no more than thirty (30) days after the date the change is made.

(6)     Registration shall include:

(A)     The name of the user of the right-of-way;

(B)     The name, address and telephone number of people who will be contact person(s) for the user;

(C)     The name, address and telephone number of any contractor or subcontractor, if known, who will be working in the right-of-way on behalf of the user;

(D)     The name(s) and telephone number of an emergency contact who shall be available twenty-four (24) hours a day and said emergency contact shall be employed by and have binding and decision-making authority for the owner of the facilities;

(E)     Insurance.

(i)     Prior to construction in the right-of-way, an applicant must provide, and users must maintain, acceptable proof of liability insurance in the total amount of six million dollars ($6,000,000.00); one million dollars ($1,000,000.00) primary plus five million dollars ($5,000,000.00) umbrella if requested by the owner of the facilities, or other provisions as acceptable to the city administrator. The city reserves the right to review the insurance requirements and to reasonably adjust insurance coverage and limits when the city administrator determines that changes in statutory law, court decisions, or the claims history of the industry or the applicant or user require adjustment of the coverage.

(ii)     The coverage must be on an “occurrence” basis and must include coverage for personal injury, contractual liability, premises liability, medical damages, underground, explosion and collapse hazards.

(iii)     Each policy must include a cancellation provision in which the insurance company is required to notify the city in writing not fewer than thirty (30) days before canceling, failing to renew, or reducing policy limits.

(iv)     The applicant shall file the required original certificate of insurance prior to any commencement of work. The certificate shall state the policy number; name of the insurance company; name and address of the agent or authorized representative of the insurance company; name, address and telephone number of insured; policy expiration date; and specific coverage amounts. The city may accept a certificate of insurance or the city may require another form of legally binding proof of insurance.

(v)     An insurer has no right of recovery against the city. The required insurance policies shall protect the person and the city. The insurance shall be primary coverage for losses covered by the policies.

(vi)     The policy clause “other insurance” shall not apply to the city if the city is an insured under the policy.

(F)     Bonds.

(i)     Applicant or applicant's contractor, at city's option, shall file an annual surety bond which will be valid each year construction will occur through one (1) full year after the completion of the construction from a surety company authorized to do business in the state in the amount of the estimated amount of the cost to restore the right-of-way for the work anticipated to be done in that year, in the event the applicant leaves a job site in the right-of-way unfinished, incomplete or unsafe or other provisions as acceptable to the city administrator.

(ii)     The above requirements may be met by utilities with a current franchise or license if their current franchise or license adequately provides for insurance or bonds or provides an indemnity in favor of the city.

(G)     Indemnity.

(i)     To the extent allowed by state law, each person placing facilities in the public rights-of-way shall agree to promptly defend, indemnify and hold the city harmless from and against all damages, costs, losses or expenses (i) for the repair, replacement, or restoration of city's property, equipment, materials, structures and facilities which are damaged, destroyed or found to be defective as a result of the person's acts or omissions, (ii) from and against any and all claims, demands, suits, causes of action, and judgments for (a) damage to or loss of the property of any person (including, but not limited to the person, its agents, officers, employees and subcontractors, city's agents, officers and employees, and third parties); and/or (b) death, bodily injury, illness, disease, loss of services, or loss of income or wages to any person (including, but not limited to the agents, officers and employees of the person, person's subcontractors and city, and third parties), arising out of, incident to, concerning or resulting from the negligent or willful act or omissions of the person, its agents, employees, and/or subcontractors, in the performance of activities pursuant to this division.

(ii)     This indemnity provision shall not apply to any liability resulting from the negligence of the city, its officers, employees, agents, contractors, or subcontractors.

(iii)     The provisions of this indemnity are solely for the benefit of the city and are not intended to create or grant any rights, contractual or otherwise, to any other person or entity.

(7)     The above requirements may be met by utilities with a current franchise or license if their current franchise or license adequately provides for insurance or bonds or provides an indemnity in favor of the city.

(8)     Failure to maintain registration requirements. In addition to all other legal penalties, including criminal penalties; failure to register or to maintain and update registration information may result in denial of a permit application or removal of facilities.

(b)     Authorization.

(1)     Municipal authorization or agreement shall be required, except when clearly preempted by state law. Nothing in this article shall be considered to grant authorization to any user. When any state law authorizing right-of-way use is struck down, preempted, declared to be invalid or void, in whole or in part, the user relying upon said law for authorization shall seek separate authorization or shall cease using the right-of-way.

(2)     When municipal authorization or agreement is required, permit for construction work may not be submitted until said authorization or agreement is obtained.

(3)     Municipal authorization does not extend to the use of any property or facilities other than the right-of-way.

(4)     Municipal authorization does not address or allow the use of third party facilities in the right-of-way and is limited as described in the authorization.

(5)     This article does not constitute or create authority to place, reconstruct, or alter facilities in, on, or over the public rights-of-way, and said authority must be obtained by separate instrument in accordance with this section or by operation of other laws.

(c)     Compensation and fees.

(1)     Municipal right-of-way use shall be compensated as required by the state constitution, state law, franchise, license or other agreement.

(2)     The city may structure due dates on payments in such a manner so as to be administratively efficient.

(3)     Application fees, as allowed by state law, for work or installations in the right-of-way shall be the fees set by the city council. Such fees may be set by ordinance, resolution, in the budget or by any other lawful means.

Failure to pay application fees, or failure of any payment to properly process shall result in the denial or withdraw of a permit.

   Sec. 3.13.033     Construction in the right-of-way

(a)     No person shall perform any construction or installation of facilities in the right-of-way without first obtaining a construction permit, except as provided herein. The permit will be in the name of the person who will own the facilities to be constructed. The permit must be completed and signed by a representative of the owner of the facilities to be constructed.

(1)     Emergency responses related to existing facilities may be undertaken without first obtaining a permit; however the city should be notified in writing within two (2) business days of any construction related to an emergency response; including a reasonably detailed description of the work performed in the right-of-way and an updated map of any facilities that were relocated, if applicable.

(2)     The phrase “construction or installation of facilities” does not include the installation of facilities necessary to initiate service to a customer's property, or repair or maintenance of existing facilities unless such repair or maintenance requires the breaking of pavement; the closure of a nonresidential traffic lane; excavation or boring.

(b)     The permit shall state to whom it is issued, location of work, location of facilities, dates and times work is to take place and any other conditions set out by the city administrator or designee.

(c)     The person requesting a permit will provide the city administrator or designee with documentation in the format specified by the city administrator describing:

(1)     The proposed, approximate location and route of all facilities to be constructed or installed and the applicant's plan for right-of-way construction should be shown on a set of scaled dimensioned construction plans, plan/profile sheet, a street view and an aerial map. Said plans should indicate the current right-of-way lines and any existing city facilities. Said plans shall show any proposed underground conduit, type of casing pipe required, if applicable, overhead lines, network nodes, ancillary equipment, or any other facilities to be installed. The drawings shall show a cross sectional profile, identify all existing utilities and any existing or potential utility conflicts.

(2)     For installation of any proposed pole applicant shall provide sectional detail showing depth of anchor, scaled dimensional drawings of the proposed pole, as well as any other proposed equipment associated with the proposed installation, and shall indicate spacing from existing curb, driveways, sidewalk, light poles, and any other poles or appurtenances.

(3)     All applications shall include a before and after street view image. The after-image needs to include any proposed poles and all proposed attachments, and any associated or ancillary equipment, whether attached or standalone.

(4)     If the project is within the state right-of-way, the applicant must provide evidence of a permit or permission from the state.

(5)     If a city pole or poles or light structure or structures will be used or will be in the area of the proposed construction, the pole or poles or light structure or structures will be identified. No electric meter shall be mounted on a city pole or light structure.

(6)     Provider/applicant shall use 240 voltage when connecting to any city infrastructure and provide key to meter upon installation.

(7)     All plans shall reflect that no facilities to be installed will obstruct an existing or planned sidewalk, walkway, bicycle lane or lane of vehicular traffic.

(8)     Engineering plans which will be on a scale of one (1) inch equals fifty (50) feet unless otherwise approved by city administrator.

(9)     Detail of the location of all right-of-way and utility easements which applicant plans to use.

(10)     Detail of all existing city utilities in relationship to applicant's proposed route.

(11)     Detail of what applicant proposes to install, such as network nodes, poles, pipes, size, number of inner ducts, valves, or other facilities.

(12)     Detail of plans to remove and replace asphalt or concrete in streets (include city standard construction details).

(13)     Drawings of any bores, trenches, handholes, manholes, switch gear, transformers, pedestals, network nodes, micro-network nodes, or other facilities, including depth located in public right-of-way.

(14)     Handhole and/or manhole typical of type of manholes and/or handholes applicant plans to use or access.

(15)     Complete legend of drawings submitted by applicant.

(16)     If paper copies are required, five (5) sets of engineering plans must be submitted with permit application.

(17)     The name, address and phone numbers of the contractor or subcontractor who will perform the actual construction, including the name and telephone number of an individual with the contractor who will be available at all times during construction. Such information shall be required prior to the commencement of any work.

(18)     The construction and installation methods to be employed for the protection of existing structures, fixtures, and facilities within or adjacent to the right-of-way, and the dates and times work will occur, all of which (methods, dates, times, and other applicable information) are subject to approval of the city administrator or designee.

(19)     A statement that the requirements of section 3.13.032 - “authorization; registration; compensation and fees” are met.

(20)     A traffic-control plan approved by the city administrator, which shall specify the traffic-control measures to be provided, SWPPP, and trench safety plan may also be required based on the proposed scope of work. An approved traffic-control plan shall be required any time work will require traffic lane closures or sidewalk closures, regardless of whether a permit is required.

(21)     No projecting attachments shall be less than eight (8) feet above the ground, if not projecting toward the street. If an attachment is projecting toward the street, the attachment shall be installed no less than sixteen (16) feet above the ground.

(22)     Any proposed work that involves the installation of facilities that will utilize radio frequencies shall not cause any interference with city public safety radio system, traffic signal light system or other city communications systems or components, regardless of whether or not a permit is required. The right-of-way user shall provide evidence in a form acceptable to the city that the proposed installation will be compatible with said city systems and will not cause any interference with the city public safety radio system, traffic signal light system or other city communications systems or components. No installation shall be allowed to be installed or to remain in the right-of-way that causes any such interference.

(23)     The plans shall demonstrate that all federal and state laws and city ordinances will be obeyed, and that all sections of this article, including division 3 “design manual” will be complied with as applicable. Construction in right-of-way adjacent to a school shall be required to follow all state law requirements, including the requirements in the Educational Code regarding work on school grounds, including but not limited to chapters 21 and 22, as applicable.

(d)     All construction and installation in the right-of-way shall be in accordance with the permit for the facilities. The city administrator or designee shall be provided access to the work and to such further information as he or she may reasonably require to ensure compliance with the permit.

(e)     A copy of the construction permit and approved engineering plans shall be maintained at the construction site and made available for inspection by the city administrator or designee at all times when construction or installation work is occurring.

(f)     All construction or installation work authorized by permit must be completed in the time specified in the construction permit. If the work cannot be completed in the specified time periods, the permittee may request an extension from the city administrator or designee. The city administrator or designee will use best efforts to approve or disapprove a request for permit as soon as possible.

(g)     A copy of any permit or approval issued by federal or state authorities for work in federal or state right-of-way located in the city, if requested by the city administrator and a copy of written permission for work in railroad right-of-way from the applicable railroad if requested by the city administrator.

(h)     A request for a permit must be submitted at least ten (10) working days before the proposed commencement of work in the request, unless waived by the city administrator or designee.

(i)     Requests for permits will be approved or disapproved by the city administrator or designee within a reasonable time or receiving all the necessary information. The city administrator or designee will use best efforts to approve or disapprove a request for permit as soon as possible.

(j)     The city administrator or the applicant can request a preconstruction meeting with the permittee and their construction contractor.

(k)     Permit applications are required for construction on new, replacement or upgrading of the company's facilities in the right-of-way either aerial or underground.

(l)     The failure of a person to request and obtain a permit from the city prior to performing any of the above listed activities in, or over any right-of-way, except in an emergency, will subject the person to a stop-work order from the city and enforcement action pursuant to the city's code.

(m)     If the person receiving the permit fails to act upon the permit within one hundred eighty (180) calendar days of issuance, the permit shall become invalid, and the person will be required to obtain another permit.

(n)     If state or federal law provides that a permit is not required for certain work to be done, then a person proposing to do such work shall be required to provide notice two (2) working days prior to performing such work. The following requirements must be met, even if no permit is required pursuant to state or federal law:

(1)     Certification of a state registered professional engineer that the drawings, plans and specifications submitted with the application comply with applicable technical codes, rules, regulations, and publicly disclosed design specifications establishes in the city's right-of-way management requirements, including the design manual are required.

(2)     Work shall follow all other requirements and directives from the city administrator, including but not limited to the excavation ordinance, alley excavation drawing requirements, specifications for utility excavation, requirements for approach - curb - walk, public walk detail, requirements for curb - gutter, circular driveway specifications, requirements in regard to basement driveway designs, requirements regarding sewer taps, and the use of city forms, including concrete and excavation bond forms, excavation permit application (water/sewer tap) and the forms required under this article.

   Sec. 3.13.034     Construction and maintenance standards

(a)     The following shall be required when facilities are constructed in the right-of-way, regardless of whether a permit is required, and, to the extent applicable, for as long as the facilities remain in the right-of-way.

(1)     The city must be notified twenty-four (24) hours in advance that construction is ready to proceed by the right-of-way user, their contractor or representative. The right-of-way user or contractor must previously have called for any needed locations for right-of-way facilities. At the time of notification, the right-of-way user will inform the city administrator of the number (or other information) assigned from the one-call system. The provider must have previously contracted the city and obtained all needed locational information for city utilities.

(2)     All construction shall be in conformance with all city codes and applicable local, state and federal laws and must be done in a good and workmanlike manner and in accordance with all applicable sections of this article.

(3)     Three by three (3 × 3) feet information signs stating the identity of the person doing the work, telephone number and permittee's identity and telephone number shall be placed at the location where construction is to occur forty-eight (48) hours prior to the beginning of work in the right-of-way and shall continue to be posted at the location during the entire time the work is occurring. An informational sign will be posted on public right-of-way one hundred (100) feet before the construction location commences and each one hundred (100) feet thereafter, unless other posting arrangements are approved or required by the city administrator.

(4)     Erosion control measures (e.g. silt fence) and advance warning signs, markers, cones and barricades must be in place before work begins.

(5)     Lane closures on major thoroughfares will be limited after 8:30 a.m. and before 4:00 p.m. unless the city administrator grants prior approval. Arrow boards will be required on lane closures, with all barricades, advanced warning signs and thirty-six (36) inch reflector cones placed according to the specifications of the city administrator and must be in accordance with the filed lane closure plan approved by the city administrator.

(6)     Permittees are responsible for the workmanship and any damages by a contractors or subcontractors. A responsible representative of the permittee will be available to city staff at all times during construction.

(7)     Permittee shall be responsible for stormwater management erosion control that complies with city, state and federal guidelines. Requirements shall include, but not be limited to, silt fencing around any excavation that will be left overnight, silt fencing in erosion areas until reasonable vegetation is established, barricade fencing around open holes, and high erosion areas will require wire backed silt fencing. Upon request permittee may be required to furnish documentation submitted or received from federal or state government.

(8)     Permittee or contractor or subcontractor will notify the city administrator immediately of any damage to other utilities, either city or privately owned.

(9)     It is the city's policy not to cut streets or sidewalks; however, when a street or sidewalk cut is required, prior approval must be obtained by the city administrator and all requirements of the city administrator shall be followed. Repair of all street and sidewalk removals must be made promptly to avoid safety hazards to vehicle and pedestrian traffic.

(10)     Installation of facilities must not interfere with city utilities, in particular gravity dependent facilities.

(11)     New facilities must be installed to a depth approved by the city administrator.

(12)     All directional boring shall have locator place bore marks and depths while bore is in progress. The boring method and bore pit locations shall be identified. Locator shall place mark at each stem with paint dot and depth at least every other stem.

(13)     The working hours in the rights-of-way are 9:00 a.m. to 4:00 p.m., Monday through Friday. Work that needs to be performed after 4:00 p.m. Monday through Friday must be approved in advance. Any work performed on Saturday must be approved twenty-four (24) hours in advance by the city administrator. Directional boring is permitted only Monday through Friday 9:00 a.m. to 4:00 p.m., unless other hours are approved in advance. No work will be done on Sundays or city holidays, except for emergencies.

(14)     People working in the right-of-way are responsible for obtaining line locates from all affected utilities or others with facilities in the right-of-way prior to any excavation. Use of the geographic information system or the plans of records does not satisfy this requirement.

(15)     Permittee will be responsible for verifying the location, both horizontal and vertical, of all facilities. When required by the city administrator, permittee shall verify locations by pot holing, hand digging or other method approved by the city administrator prior to any excavation or boring with the exception of work involving lane closures, as discussed above.

(16)     Placement of all manholes and/or hand holes must be approved in advance by city administrator. Handholes or manholes will not be located in sidewalks, unless approved by the city administrator.

(17)     Locate flags shall not be removed from a location while facilities are being constructed.

(18)     Construction which requires pumping of water or mud shall be contained in accordance with city ordinances and federal and state law and the directives of the city administrator.

(19)     All facilities installed in the right-of-way shall be in earth tone colors or in colors that blend with the surroundings, or if on a service pole or municipally owned pole shall match the color and finish of the pole, or must be approved by the city.

(20)     All facilities installed in the right-of-way shall be capable of being identified through a GIS shape file or other means as acceptable to the city administrator or designee. Said identification shall be provided at the time of application and shall be visible on the facilities when installed.

(21)     Above-ground wires shall be located on only one side of the right-of-way.

(22)     The right-of-way user or contractor must obtain any needed permits for electrical work and provide sealed engineered drawings for conduit size, circuit size, calculations for amperage, or any other required information. Provider shall be responsible for obtaining any required electrical power service to any installation. Any such electrical supply must be separately metered and must match city infrastructure voltage.

(23)     Right-of-way users shall complete construction as expeditiously as possible and lane closures or work that inconveniences the traveling public shall be minimized. Lane closures shall not last longer than four (4) hours, unless a different period of time is shown on the permit.

(24)     Right-of-way work shall be completed in the amount of time shown on the permit; but if no completion time is shown on the permit the work shall be complete in not more than one (1) year.

(25)     All right-of-way work and facilities installed shall be done in a good workman like manner; shall meet all applicable codes; shall be maintained and kept in good repair and shall be aesthetically pleasing.

(26)     All efforts shall be made to avoid or minimize negative visual impact to the surrounding area and to enhance the safety requirement for vehicles and pedestrians, particularly in areas where small children or other vulnerable members of the population may be located.

(27)     Installations which require ancillary ground equipment with a footprint of twenty-five (25) square feet or more shall be spaced at least 300 feet apart.

(28)     The name, address and phone numbers of the contractor or subcontractor who will perform the actual construction, including the name and telephone number of an individual with the contractor who will be available at all times during construction. Such information shall be required prior to the commencement of any work.

(29)     A statement that the requirements of section 3.13.032 “authorization; registration; compensation and fees” are met.

(30)     A traffic-control plan, which shall specify the traffic-control measures to be provided, SWPPP, and trench safety plan may also be required based on the proposed scope of work. An approved traffic-control plan shall be required any time work will require traffic lane closures or sidewalk closures, regardless of whether a permit is required.

(31)     A traffic-control plan approved by the city administrator, which shall specify the traffic-control measures to be provided, SWPPP, and trench safety plan may also be required based on the proposed scope of work. An approved traffic-control plan shall be required any time work will require traffic lane closures or sidewalk closures, regardless of whether a permit is required.

(32)     Any proposed work that involves the installation of facilities that will utilize radio frequencies shall not cause any interference with city public safety radio system, traffic signal light system or other city communications systems or components, regardless of whether or not a permit is required. The right-of-way user shall provide evidence in a form acceptable to the city that the proposed installation will be compatible with said city systems and will not cause any interference with the city public safety radio system, traffic signal light system or other city communications systems or components. No installation shall be allowed to be installed or to remain in the right-of-way that causes any such interference.

(b)     To the extent applicable, the above requirements shall continue during the entire time that the installed facilities remain in the right-of-way.

   Sec. 3.13.035     Plans of record

(a)     Right-of-way users will provide the city administrator or designee with plans of record showing installed and final location of facilities within ninety (90) days of completion of facilities in the right-of-way. Users which have facilities in the right-of-way existing as of the date of this article who have not provided “plans of record” plans shall provide one (1) quarter of the information concerning facilities in city right-of-way within one (1) year after the passage of the article and one (1) quarter each six (6) months thereafter. The plans shall be provided to the city with as much detail and accuracy as required by the city administrator. All the requirements specified for the plans submitted for the initial permit, as set forth in section 3.13.033, shall be submitted and updated in the plans of record. The detail and accuracy will concern issues such as location, size of facilities, materials used, and any other health, safety and welfare concerns. The detail will not include matters such as capacity of lines, customers, or competitively sensitive details. Submittal of “plans of record” shall be in digital format.

(b)     This requirement, or portions of this requirement, may be waived by the city administrator for good cause.

(c)     If the release of the location of any utilities, including water and sewer, or of plans of record submitted under this section would jeopardize public safety, the information shall be considered confidential. In addition, if plans of record submitted under this section include information expressly designated by the right-of-way user as a trade secret or other confidential information protected from disclosure by state law, the city may not disclose that information to the public without the consent of the right-of-way user, unless otherwise compelled by an opinion of the attorney general pursuant to the Texas Public Information Act, as amended, or by a court having jurisdiction of the matter pursuant to applicable law. This section may not be construed to authorize a right-of-way user to designate all matters in its plans of record as confidential or as trade secrets.

(d)     User shall maintain accurate maps and other appropriate records of its facilities and equipment as they are actually constructed in the rights-of-way, including, upon request, the use of Auto CAD/GIS digital format. User will provide additional maps to the city upon request.

   Sec. 3.13.036     Conformance with public improvements

Whenever by reasons of widening or straightening of streets, water or sewer line projects, or any other public works or city projects, (e.g. install or improve storm drains, water lines, sewer lines, or any other public works or city project). It shall be deemed necessary by the governing body of the city to remove, alter, change, adapt, or conform the underground or overhead facilities of a right-of-way user to another part of the right-of-way, such alterations shall be made by the owner of the facilities at their expense (unless provided otherwise by state law or a franchise in effect on August 26, 1999, until that franchise expires or is otherwise terminated or is amended or the tariff is changed) within the time limits set by the city administrator working in conjunction with the owner of the facilities, or if no time frame can be agreed upon, within ninety (90) days from the day the notice was sent to make the alterations, unless a different schedule has been approved by the city administrator or designee. Facilities not moved after ninety (90) days or the time set forth in the notice shall be deemed abandoned and may be removed in accordance with section 3.13.042 “abandoned facilities.”

   Sec. 3.13.037     Improperly installed facilities

(a)     Any person doing work in the city right-of-way shall properly install, repair, upgrade and maintain facilities.

(b)     Facilities shall be considered to be improperly installed, repaired, upgraded or maintained if:

(1)     The installation, repairs, upgrade or maintenance endangers people;

(2)     The facilities do not meet the applicable city codes;

(3)     The facilities are not capable of being located using standard practices;

(4)     Underground facilities that are installed less than twenty-four (24) inches in depth;

(5)     Facilities or construction in regard to placement of said facilities that remains incomplete or hazardous after construction work is finished or time for completion has passed, including but not limited to holes in paved areas or ground, handholes or manholes that are improperly sealed, and broken equipment or any other incomplete or hazardous condition;

(6)     The facilities are not located in the proper place at the time of construction in accordance with the directions provided by the city administrator.

(c)     Facilities will be considered improperly installed if said facilities utilize radio frequencies and cause any interference with city public safety radio system, traffic signal light system or other communications components.

   Sec. 3.13.038     Restoration of property

(a)     Users of the right-of-way shall restore property affected by construction of facilities to a condition that is equal to or better than the condition of the property prior to the performance of the work. Restoration must be approved by the city administrator.

(b)     Restoration must be to the reasonable satisfaction of the city administrator and the property owner. The restoration shall include, but not be limited to:

(1)     Replacing all ground cover with the type of ground cover damaged during work or better either by sodding or seeding, as directed by the city administrator;

(2)     Installation of all manholes and handholes, as required;

(3)     Backfilling all bore pits, potholes, trenches or any other holes shall be filled in daily, unless other safety requirements are approved by the city administrator;

(4)     Leveling of all trenches and backhoe lines;

(5)     Restoration of excavation site to city specifications; and

(6)     Restoration of all landscaping, ground cover, and sprinkler systems.

(c)     All locate flags shall be removed during the clean-up progress by the permittee or contractor at the completion of the work.

(d)     Restoration must be made in a timely manner as specified by approved city schedules and to the satisfaction of city administrator or designee. If restoration is not satisfactory and performed in a timely manner all work in progress, except that related to the problem, including all work previously permitted but not complete may be halted and a hold may be placed on any permits not approved until all restoration is complete.

(e)     If a person fails to restore property as set out in this section, the city shall give five (5) days written notice to the person at the address shown on the permit. If the person does not initiate repairs during the five day period, or fails to complete the repairs within thirty (30) days thereafter the city may elect to repair such portion of the right-of-way as may have been disturbed by the person, its contractors, or agents at the cost of the person performing the right-of-way work. These time periods may be shortened or waived in cases of a threat to public health, safety or welfare. Upon receipt of an invoice from the city, the person will reimburse the city for the costs so incurred no later than thirty (30) calendar days from the date of the city invoice.

(f)     Should the city reasonably determine, within two (2) years from the date of the completion of the repair work, that any of the said restoration work failed to meet the existing standards of the city, the person shall perform such additional restoration work to the satisfaction of the city, subject to all city remedies.

(g)     Notwithstanding any of the above sections, if the city determines that the failure of the person to properly repair or restore the right-of-way constitutes a threat to the public health, safety or welfare, the city may undertake emergency repairs and restoration efforts. The city may attempt to provide emergency notice to the person responsible, but is not obligated to do so. The right-of-way user shall promptly reimburse the city for all costs incurred by the city within thirty (30) calendar days from the date of the city invoice.

   Sec. 3.13.039     Revocation or denial of permit

(a)     If any of the provisions of this division are not followed, a permit may be revoked by the city administrator or designee. If a person has not followed the terms and conditions of this division in work done pursuant to a prior permit, new permits may be denied or additional terms required.

(b)     If a permit is denied upon initial submission for incompleteness or for an issue which is capable of correction, the applicant may complete or correct the application and resubmit the application. Applications not resubmitted within thirty-one (31) calendar days shall be considered withdrawn.

   Sec. 3.13.040     Appeal from denial or revocation of permit

(a)     An applicant may appeal from denial or revocation of permit to the city administrator. Appeal shall be filed with the city secretary within five (5) calendar days from the date of the decision being appealed.

(b)     A denial or revocation will be upheld unless a person can show that there is an error and that the person was following all of the requirements of this division and all right-of-way engineering requirements.

   Sec. 3.13.041     Inspections

The city may perform inspections of any right-of-way work, including installations, maintenance, modifications or any other right-of-way work, whether such work is subject to permit requirements or allowed to be done without a permit. The city may perform visual inspections of any right-of-way work located in the right-of-way as the city deems appropriate without notice. If the inspection requires physical contact with right-of-way work, the city may provide the right-of-way user with notice prior to said inspection. Right-of-way user may have a representative present during such inspection. In the event of an emergency situation, the city may, but is not required to, notify the right-of-way user prior to the inspection. The city may take any needed action to remediate an emergency. The city shall notify the right-of-way user as soon as practical after said remediation.

   Sec. 3.13.042     Abandoned facilities

(a)     Duty to remove. A person that has placed facilities in the right-of-way shall remove said facilities and related equipment when such facilities are abandoned regardless of whether or not it receives notice from the city.

(b)     Time for removal.

(1)     The city may notify the person that said facilities must be removed immediately when necessary to ensure public health, safety, and welfare.

(2)     If immediate removal is not required, the removal must be completed within the time set forth in the written notice to remove from the city and if no time is set out, then within ninety (90) days for the facilities and related equipment being abandoned.

(3)     If the facilities are not removed after the 90 day notice to remove, the city may remove the facilities thirty (30) days after notice of a final finding of abandonment.

(4)     When a person removes, or abandons permanent structures in the right-of-way, the person shall notify the city administrator in writing of such removal or abandonment and shall file with the city administrator the location and description of each facility and ground equipment removed or abandoned.

(5)     The city administrator may require the person to complete additional remedial measures necessary for public safety and the integrity of the right-of-way.

(c)     Deemed abandoned. Facilities may be deemed abandoned as set out in this article. Additionally, facilities may be deemed abandoned if:

(1)     A person does not relocate facilities as set out in section 3.13.036 “conformance with public improvements.”

(2)     A person does not correct or abate improperly installed facilities as set out in section 3.13.037 “improperly installed facilities.”

(3)     A person fails to maintain the registration requirements set forth in section 3.13.032 “authorization; registration; compensation and fees.”

(4)     A person utilizing the right-of-way cannot be found or contacted.

(5)     A person utilizing the right-of-way fails to pay the required compensation.

(6)     A person utilizing the right-of-way fails to comply with the requirements of this article after being given due notice of any deficiencies. The notice requirement shall only apply to persons who have maintained the required registration as set out in section 3.13.032 “authorization; registration; compensation and fees” and are capable of being contacted.

   Sec. 3.13.043     Underground installation preferred

(a)     The underground placement of facilities is encouraged.

(b)     Facilities shall be installed underground where existing utilities are already underground.

(c)     Underground conduits and ducts shall be installed in the public rights-of-way between the adjacent property line and curbline unless otherwise directed by the city.

(d)     Conduits and ducts shall be installed parallel with the curbline and cross the public rights-of-way perpendicular to the public rights-of-way centerline unless otherwise directed by the city.

(e)     Ducts and conduits shall be installed by trenchless excavation or directional boring whenever commercially economical and practical. Trenchless excavation shall be used to place facilities under paved public rights-of-way centerline unless otherwise directed by the city.

   Sec. 3.13.044     As-built maps and records

User shall maintain accurate maps and other appropriate records of its facilities and equipment as they are actually constructed in the rights-of-way, including, upon request, the use of Auto CAD/GIS digital format. User will provide additional maps to the city upon request.

   Sec. 3.13.045     Courtesy and proper performance

User shall make citizen satisfaction a priority in using the right-of-way. User shall train its employees to be customer service-oriented and to positively and politely interact with citizens when dealing with issues pertaining to its facilities and related ground equipment in the right-of-way. User's employees shall be clean, courteous, efficient, and neat in appearance and committed to offering the highest quality of interaction with the public. If, in the opinion of the city administrator or designee, user is not interacting in a positive and polite manner with citizens, the city administrator may request user to take all remedial steps to conform to these standards.

   Sec. 3.13.046     Drug policy

It is the policy of the city to achieve a drug-free workforce and workplace. The manufacture, distribution, dispensation, possession, sale, or use of illegal drugs or alcohol by user's employees, contractors, subcontractors, subnetwork provider's, or vendors while on city premises is prohibited.

   Sec. 3.13.047     Tree maintenance

User, its contractors, and agents shall provide written notice to the city administrator before trimming trees hanging in the right-of-way. The city shall not be liable for any damages, injuries, or claims arising from user's actions under this section.

   Sec. 3.13.048     Signage

(a)     User shall post and maintain legible identification showing its name, location identifying information, and emergency telephone number in an area on a cabinet of a facility that is visible to the public. Signage required under this section shall not exceed 4" x 6", unless otherwise required by law (e.g. RF ground notification signs) or the city administrator.

(b)     Except as required by law or by the utility pole owner, user shall not post any other signage or advertising on the facilities or equipment.

   Sec. 3.13.049     Graffiti abatement

As soon as practical, but not later than fourteen (14) calendar days from the date user receives notice thereof, user shall remove all graffiti on any of its facilities and related ground equipment located in the right-of-way and shall restore to the previous condition or better. The foregoing shall not relieve the user from complying with any city graffiti or visual blight ordinance or regulation.

   Sec. 3.13.050     Alternate means or method; waiver

(a)     A person may file a request with the city administrator to use alternate means or methods in right-of-way construction or maintenance. In determining whether any requirement under this section may be waived or if an alternate method or means may be used, the city administrator may consider all reasonable factors, including but not limited to:

(1)     Whether the requirement or the alternate means or method or waiving the requirement would subject the person or persons or public to an unreasonable increase in risk;

(2)     Whether the requirement or the alternate means or method or waiving the requirement would subject the person or persons or public to an unreasonable increase of service interruption;

(3)     Whether the requirement or the alternate means or method or waiving the requirement would subject the person or persons or public to an unreasonable increase in potential for liability for accidents;

(4)     Whether the requirement or the alternate means or method or waiving the requirement would subject the person or persons or public to an unreasonable delay in construction;

(5)     Whether the requirement or the alternate means or method or waiving the requirement would subject the person or persons or public to an unreasonable delay in availability of services; or

(6)     To any other unreasonable technical or economic burden.

(b)     There shall be no right to receive permission to use an alternative means or method and denial by the city administrator shall be final.

   Sec. 3.13.051     Orderly use of the right-of-way by multiple users

(a)     In the exercise of governmental functions, the city has first priority over all other uses of the rights-of-way. Traffic uses shall be considered as the primary use and the city reserves the right to lay sewer, water, gas and other pipe lines or cables and or cables and conduits, and to do underground and overhead work, including attachments, restructuring or changes in aerial or underground facilities in, across, along, over, or under a public street, alley or right-of-way and to change the curb, sidewalks of the grade of streets. Uses should be designed so as to cause the least interference with traffic, including signalization.

(b)     The city shall assign the location in or over the rights-of-way among competing users of the rights-of-way with due consideration to the public health, safety and welfare considerations of each user type, and to the extent the city can demonstrate that there is limited space available for additional users, may limit new users or require removal of abandoned or obsolete facilities, as allowed under state or federal law.

(c)     If the city authorizes abutting landowners to occupy space under the surface of any street, alley or rights-of-way, the grant to an abutting landowner shall be subject to the rights of the previously authorized users of the public rights-of-way. If the city closes or abandons a public right-of-way that contains a portion of a person's facilities, the city may close or abandon such right-of-way subject to the right of the person, provided said facilities have not been abandoned and provided the person is a registered user of the right-of-way.

   Secs. 3.13.052–3.13.060     Reserved

   Division 3. Design Manual

   Sec. 3.13.061     Purpose

(a)     This design manual is for maintenance of, siting and criteria for the installation of wireless facilities, including micro network nodes, network nodes, node support poles and related ground equipment and applies to any and all maintenance, siting, installations, collocations, or other placement of, in, over or under the public rights-of-way of network nodes, node support poles, micro network nodes, distributed antenna system(s), microwave communications or other wireless facilities, by whatever nomenclature, whether they are installed pursuant to chapter 284 of the Local Government Code or installed pursuant to an agreement to use the right-of-way or authorization or installed as may otherwise be allowed by state law.

(b)     The city enacts these design requirements and guidelines in order to meet its fiduciary duty to its citizens, and to give assistance and guidance to network providers in the safe, aesthetically pleasing, efficient, and timely installation of facilities.

   Sec. 3.13.062     Prohibited or restricted areas for wireless facilities in the right-of-way

(a)     Prohibited: municipal parks and residential areas. A network provider may not install a new node support pole in the following locations:

(1)     In a municipal park; or

(2)     In right-of-way that is adjacent to a street that is:

(A)     Not more than fifty (50) feet wide at average width, measuring vehicular traveled portion only as set out in the definition of “street” and the measurement does not include intersection and refers only to the main traveled portion measured at mid-block or mid-point between intersections; and

(B)     Adjacent to developed or undeveloped single-family residential lots, other multifamily residential area or land that is designated for residential use by zoning or deed restrictions.

(3)     Construction in right-of-way adjacent to a school is prohibited, unless all contractors, subcontractors, or other workers follow all statutory requirements in the Educational Code regarding work on school grounds, including but not limited to chapters 21 and 22.

(b)     Prohibited: undergrounding district.

(1)     Above ground structures shall not be installed in an underground district or underground requirement area, except as provided herein.

(2)     A network provider shall comply with nondiscriminatory undergrounding requirements, including municipal ordinances, zoning regulations, state law, private deed restrictions, and other public or private restrictions, that prohibit installing aboveground structures in a public right-of-way without first obtaining the appropriate zoning, land use approval or other required approval.

(3)     In addition to areas designated in this article, future areas may be designated from time-to-time by the city as underground required areas by any means, including but not limited to means such as ordinances, resolutions, or filed plats. If an area is converted from an area that allows overhead lines to one that prohibits overhead lines, all subsequent installations shall meet the requirements for an underground district.

(4)     If a location is designated by the city to be underground required area, then a network provider's permit for the location of the micro network node, network node, node support pole, and related ground equipment at such location will be automatically revoked, with removal of said the micro network node, network node, node support pole, and related ground equipment at such location within 90 days of such designation, or as otherwise allowed for the transition of other overhead facilities.

(c)     Restricted: historic district and design districts.

(1)     A network provider must obtain advance written approval from the city before collocating network nodes or installing node support poles in a design district with decorative poles or in an area of the city zoned or otherwise designated as a design district or historic district.

(2)     Concealment required.

(A)     As a condition for approval of network nodes or node support poles in design districts with decorative poles or in a historic district, concealment measures are required for network nodes or node support poles or related ground equipment or any portion of the nodes, poles, or equipment.

(B)     Said concealment measures shall minimize the impact to the aesthetics in a historic district or design district.

(3)     Network provider shall comply with and observe all applicable city, state, and federal laws and requirements, including historic preservation laws and requirements.

(d)     Collocation will not be allowed on decorative poles in any district.

(e)     Historic landmarks. Network provider is discouraged from installing a network node or node support pole within 300 feet of a historic site or structure or historic landmark recognized by the city, state or federal government (see, for example, and not limited to section 442.001(3) of the Texas Government Code, and 16 U.S.C. section 470), as of the date of the submission of the permit.

(f)     Designated areas.

(1)     The council may designate an area as a historic district, design district or underground district at any time.

(2)     Underground district. Any area that meets the definition of underground district or underground requirement area. An area does not need to be designated by this article to be considered to be within an underground district. Such designation does not require a zoning case. Any area declared to be an underground district by city council or any area that meets the definition of underground district or underground requirement area shall be subject to all requirements and protections for an underground district.

(3)     Design district.

(A)     Design district number 1, known as the cultural arts district or the downtown business district is approximately described as including the following area: bordered on the south side by and including Carnegie Street, bordered on the north by Locust Street bordered on the east by Chestnut Street and bordered on the west by Mill Street.

(B)     The city council may designate an area as a design district at any time. Design districts are not limited to those designated above and an area does not need to be designated in this article to be considered to be within a design district. Such a designation does not require a zoning case. Any area designated by city council as a design district or any area that meets the definition of a design district shall be subject to all requirements and protections for a design district.

(4)     Historic district.

(A)     Historic district number 1 is located on both sides of West Myrtle Street from South Mill Street to South Post Oak Street.

(B)     The city council may designate an area as a historic district at any time. Historic districts are not limited to those set out above and an area does not need to be designated by this article to be considered to be within a historic district. Such designation does not require a zoning case. Any area declared to be a historic district by city council or any area that meets the definition of historic district shall be subject to all requirements and protections for a historic district.

(g)     Defense.

(1)     It shall be a defense to the above requirements prohibiting or restricting location of facilities in a park, residential area, historic district, design district, underground district or collocating on a decorative pole that the network provider obtained advance written approval or waiver of restrictions from the city before collocating new network nodes or installing new node support poles or ground equipment in a prohibited or restricted location. In any prosecution herein for such prohibition or violation of any restrictions, it shall be an affirmative defense to have an agreement with the city that approved such location or waived the applicable restriction.

(2)     If an agreement is granted to locate in a prohibited location, the network provider shall be required, as a condition for approval of new network nodes or new node support poles in a prohibited location, to install reasonable design or concealment measures for the new network nodes or new node support poles. Therefore, any request for installations in a prohibited location, must be accompanied with concealment measures in the permit applications.

(3)     The city requests that a network provider explore the feasibility of using certain camouflage measures to improve the aesthetics of the network nodes, node support poles, or related ground equipment, or any portion of the nodes, poles, or equipment, to minimize the impact to the aesthetics in all locations of the city.

(h)     Private deed restrictions and property owners association rules. A network provider installing a network node or node support pole in a public right-of-way described above shall comply with private deed restrictions and other private restrictions in the area that apply to those facilities.

(i)     Ground equipment.

(1)     Ground equipment shall be minimal and the least intrusive at all sites.

(2)     In order to maximize line of sight at street corners and intersections and minimize hazards at those locations, ground equipment may not be installed within 250 feet of a street corner or street intersection.

(3)     Ground equipment may not be installed at street corners or intersections within a visibility triangle.

(4)     Ground equipment shall not be installed near a driveway.

(j)     Each permit application shall designate if the requested area for installation is within one a residential area, a municipal park, an underground district or underground requirement area or a historic district or a design district.

   Sec. 3.13.063     Preferred location

(a)     The following locations, in the order listed, are the preferred locations for installation of poles or wireless facilities:

(1)     Industrial areas.

(2)     Areas designated by the city as a highway rights-of-way area, provided that such areas are not adjacent to a municipal park, residential area, historic district, design district or any prohibited area set out above.

(3)     Retail and commercial areas, provided such areas are not in a prohibited location, such as an underground district, design district or historic district.

(b)     In the absence of state law or an agreement or municipal authorization providing otherwise, network nodes shall be restricted to preferred locations set out in this division.

   Sec. 3.13.064     Order of preference regarding attachment to existing facilities

(a)     The following shall be the order of preference for the attachment of network nodes to existing facilities, beginning with most preferred location and ending with least preferred location. In addition to the preference set out by the city, existing facilities may be owned by third parties and may not be available for attachment of facilities or may require authorization from other parties.

(b)     Order of preference from most preferable to least preferable.

(1)     Most preferable. Existing telephone or electrical lines between existing utility poles. Micro network nodes shall only be lashed on existing telephone or electrical lines between existing utility poles (electric poles or telephones poles), with notice to the pole owner as required by the Federal Pole Attachment Act, and not placed on utility poles, node support poles or service poles.

(2)     Preferable. Existing utility poles (electric poles or telephones poles), shall be the preferred support facility for network nodes and related ground equipment.

(3)     Least preferable. Municipal service poles, which shall require an agreement with the city. Municipal service poles includes (in order of preference):

(A)     Nondecorative street lights.

(B)     Traffic signal structures. Network nodes may only be attached to traffic signal structures when such installation will not interfere with the integrity of the facility and will not interfere with the safety of the public. Any installation of network node facilities on any traffic signal structures shall:

(i)     Be encased in a separate conduit than the traffic light electronics;

(ii)     Have a separate electric power connection than the traffic signal structure;

(iii)     Shall not puncture or drill into the structure; and

(iv)     Have a separate access point than the traffic signal structure.

(C)     Other municipal service pole use is discouraged.

(4)     New node support poles shall also be least preferred. Collocation shall generally be preferred over new poles. New poles shall not be installed in prohibited areas and shall only be allowed in restricted areas to the extent all requirements are followed or a waiver is granted. Any new poles shall be camouflaged to the extent allowed by law as set out in this article.

(c)     Ground equipment should be minimal and the least intrusive.

(d)     In the absence of state law or an agreement or municipal authorization providing otherwise, network nodes, if allowed, shall be restricted to most preferable locations set out in this section and shall be prohibited in the least preferable.

   Sec. 3.13.065     Placement requirements

(a)     A network provider shall construct and maintain network nodes and node support poles in a manner that does not:

(1)     Obstruct, impede, or hinder the usual travel or public safety on a public right-of-way;

(2)     Obstruct the legal use of a public right-of-way by other utility providers;

(3)     Violate nondiscriminatory applicable codes;

(4)     Violate or conflict with the municipalities publicly disclosed public right-of-way management ordinance or this design manual.

(5)     Violate the federal Americans with Disabilities Act of 1990 (42 U.S.C. section 12101 et seq.).

(b)     Network node facilities shall be installed in accordance with section 3.13.069 and all other applicable requirements of this article.

(c)     Right-of-way.

(1)     Network nodes installation shall follow all applicable requirements of this article, including sections 3.13.0343.13.040.

(2)     Network node facilities, node support poles and related ground equipment shall be placed, as much as possible, within two (2) feet of the outer edge of the right-of-way line.

(3)     Node support poles and related ground equipment shall not impede pedestrian or vehicular traffic in the right-of-way.

(4)     No protrusion from the outer circumference of the existing structure or pole shall be more than two (2) feet.

(d)     Parks. For the safety of park patrons, particularly small children, and to allow full line of sights near park property, the network provider shall not install ground equipment in a right-of-way that is within a park or within 250 feet of the boundary line of a park. The network provider may request a waiver of the requirement that such equipment not be within 250 feet of a park from the board of adjustment.

(e)     There shall be no more than one (1) network node on any one pole.

   Sec. 3.13.066     Camouflage required when possible

(a)     Camouflage is required by the city when wireless facilities are allowed, as set forth above, in design districts with decorative poles or in historic districts.

(b)     It is the city's preference that all new node support poles be camouflaged, except those located in an area zoned or predominantly industrial or in a designated highway district area.

(c)     Companies shall submit their proposal for camouflage with the permit application.

   Sec. 3.13.067     General requirements

(a)     Confirmation of noninterference with city safety communication networks.

(1)     The network provider shall provide analysis that the proposed network node shall not cause any interference with city public safety radio system, traffic signal light system, or other city safety communications components.

(2)     It shall be the ongoing responsibility of the network provider to evaluate, prior to making application for permit and while network nodes remain in the right-of-way, the compatibility between the existing city infrastructure and provider's proposed network node. A network node shall not be installed in a location that causes any interference and any network node that causes destructive interference post-installation shall correct such interference or be removed and shall follow all federal regulations regarding interference.

(3)     Network nodes shall not be allowed on city's public safety radio infrastructure.

(b)     Size limits.

(1)     Network providers shall provide detailed drawings, with calculations to show strict conformity to the size limitations as set forth in this article.

(2)     To the extent authorization is provided by franchise or license, the franchise or license controls.

(3)     To the extent authorization is provided by state law which sets out size limits, the size limits in the state law control.

(4)     If authorization is provided through a state law with no size limits, or other authorization with no size limits, the size limits of this section shall control.

(5)     Unless otherwise provided by state law or municipal authorization, license, franchise or agreement, the following maximum size limits are applicable (required):

(A)     Micro network node dimensions - maximum length: 24 inches; maximum width 15 inches; maximum height 12 inches.

(B)     Network node shall not exceed the size limits set out in chapter 284 of the Local Government Code, without specific city authorization, regardless of whether or not the provider claims authority under chapter 284 or a different state statute.

(C)     Pole height not higher than ten feet in height above the tallest existing utility pole within 500 linear feet of a new pole or fifty-five (55) feet, whichever is least.

(D)     Ground equipment, separate from the pole, may not be higher than three feet six inches (3'6") from grade, wider than three feet six inches (3'6").

(E)     When not otherwise set out in this ordinance or in a municipal authorization, the size limits shall be less than or equal to the size limits set forth for structures or equipment in chapter 284 of the Local Government Code, where applicable.

(F)     Size limits may be reduced when necessary for public health, safety or welfare.

(c)     Size limits provided by state law are only applicable for so long as required by state law. If said state law is found to be repealed, struck down, preempted or invalid, in whole or in part, the standards required by the city, either in the municipal authorization or an amendment to the municipal authorization or the directives of the city or this article, shall be required and such standards shall be subject to individualized review.

(d)     Concealment. The network node facilities shall be concealed or enclosed as much as possible in an equipment box, cabinet, or other unit that may include ventilation openings. External cables and wires hanging off a pole shall be sheathed or enclosed in a conduit, so that wires are protected and not visible or visually minimized to the extent possible.

(e)     New node support pole spacing.

(1)     New node support poles shall be at a minimum 300 feet from a utility pole or another node support pole to minimize the hazard of poles adjacent to road ways and to minimize effect on property values and aesthetics on the area, unless a lesser distance is approved by the city administrator.

(2)     New poles shall be placed a minimum of 5 feet from a street curb or travel lane and 18 inches from a sidewalk to minimize the potential of being struck by a motor vehicle or bicycle.

(3)     New poles shall be placed on breakaway anchor bolt supports or bases to minimize the impact severity to motor vehicles that strike the pole.

(f)     Minimize ground equipment concentration. In order to minimize negative visual impact to the surrounding area, the city's designee may deny a request for a proposed location if the network provider installs network node ground equipment where existing ground equipment already occupies a footprint of 25 square feet or more.

(g)     Allowed colors. Colors shall meet the requirements set out in section 3.13.034(a)(19).

(h)     If any network node facilities, node support poles or ground equipment is installed in a location that is not in accordance with the plans approved by the city administrator and impedes pedestrian or vehicular traffic or does not comply or otherwise renders the right-of-way noncompliant with applicable laws, including the American Disabilities Act, then network provider shall remove the network node facilities, node support poles or ground equipment.

(i)     Ground equipment.

(1)     Ground equipment should be minimal and the least intrusive. To minimize any obstruction, impediment, or hindrance to the usual travel or public safety on a public right-of-way the maximum line of sight required to add to safe travel of vehicular and pedestrian traffic and in order to maximize that line of sight at street corners and intersections and to minimize hazards at those locations, ground equipment may not be installed within 250 feet of a street corner or a street intersection.

(2)     Ground equipment near municipal parks. For the safety of municipal park patrons, particularly children, and to allow full line of sights near municipal park property, the network provider shall not install ground equipment in a right-of-way that is within a park or within 250 feet of the boundary line of a park, unless approved by the city administrator in writing.

(3)     To enhance the safety requirements of line of sight of pedestrians, particularly small children, the city's designee may deny a request for a proposed location if the network provider installs network node ground equipment where existing ground equipment within 300 feet already occupies a footprint of twenty-five (25) square feet or more.

(4)     Ground equipment shall not be installed in such a manner as to interfere with a sight visibility triangle.

(j)     Municipal service poles:

(1)     An agreement shall be required for all installations on municipal service poles and all such installations shall be in accordance with the agreement.

(2)     Installations on all service poles shall have an industry standard pole load analysis completed and submitted to the municipality with each permit application indicating that the service pole to which the network node is to be attached will safely support the load.

(3)     Height of attachments.

(A)     All attachments on all service poles shall be at least 8 feet above grade;

(B)     If a network node attachment is projecting toward the street, for the safety and protection of the public and vehicular traffic, the attachment shall be installed no less than sixteen (16) feet above the ground; and

(C)     Meet all applicable requirements of state law and this article.

(4)     Installations on all traffic signal structures must not interfere with the integrity of the facility in any way that may compromise the safety of the public and must be in accordance with the agreement with the city. Installation of network node facilities on any traffic signal structures shall:

(A)     Be encased in a separate conduit than the traffic light electronics;

(B)     Have a separate electric power connection than the traffic signal structure;

(C)     Have a separate access point than the traffic signal structure;

(D)     Shall not puncture or drill into the structure;

(E)     Shall not be installed on the mast arm; and

(F)     Meet all other requirements of state law and this article.

(5)     Installations on street signage. Installations on all street signage structures must not interfere with the integrity of the facility in any way that may compromise the safety of the public and must be in accordance with the agreement with the city. Installation of network node facilities on any street signage structures that has electrics shall:

(A)     Be encased in a separate conduit than any city signage electronics;

(B)     Have a separate electric power connection than the signage structure;

(C)     Have a separate access point than the signage structure;

(D)     Meet all other requirements of state law and this article.

   Sec. 3.13.068     Electrical supply

(a)     Network provider shall be responsible for obtaining any required electrical power service to the micro network node, network node facilities, node support poles and ground equipment. The city shall not be liable to the network provider for any stoppages or shortages of electrical power furnished to the micro network node, network node facilities, node support poles or ground equipment, including without limitation, stoppages or shortages caused by any act, omission, or requirement of the public utility serving the structure or the act or omission of any other tenant or network provider of the structure, or for any other cause beyond the control of the city.

(b)     Network provider shall not allow or install generators or back-up generators in the right-of-way.

   Sec. 3.13.069     Installation and inspections

(a)     Installation.

(1)     Network provider shall, at its own cost and expense, install the micro network node, network node facilities, node support poles and related ground equipment in a good and workmanlike manner and in accordance with the requirements promulgated by the city administrator, as such may be amended from time-to-time. Network provider's work shall be subject to the regulation, control and direction of the city administrator.

(2)     All work done in connection with the installation, operation, maintenance, repair, modification, and/or replacement of the micro network node, network node facilities, node support poles and related ground equipment shall be in compliance with any agreement with the city as applicable and all applicable laws, ordinances, codes, rules and regulations of the city, county, state, and the united states (“laws”).

(b)     Standard pole load analysis on attachments to a service pole. All applications for permits to collocate and or attach to any service pole must have included in its permit application a completed industry standard pole load analysis performed and sealed by an engineer licensed by the state that indicates that the service pole to which the network node is to be attached will safely support the load. Such analysis shall also address safety of pole and attachments in regard to wind loads, collision with motor vehicle,[.]

(c)     Inspections. The city administrator may perform visual inspections of any micro network node, network node, node support pole or related ground equipment located in the right-of-way as the city administrator deems appropriate without notice. If the inspection requires physical contact with the micro network node, network node, node support poles or related ground equipment, the city administrator shall provide written notice to the network provider within five (5) business days of the planned inspection. Network provider may have a representative present during such inspection.

(d)     No installations shall be placed on the mast arm of a traffic-control signal.

   Sec. 3.13.070     Requirements in regard to removal, replacement, maintenance and repair

(a)     Removal or relocation by network provider.

(1)     If the network provider removes or relocates a micro network node, network node facilities, node support pole or related ground equipment at its own discretion, it shall notify the city administrator in writing not less than ten (10) business days prior to removal or relocation. Network provider shall obtain all permits required for relocation or removal of its micro network node, network node facilities, node support poles and related ground equipment prior to relocation or removal.

(2)     The city shall not issue any refunds for any amounts paid by network provider for micro network node, network node facilities, node support poles or related ground equipment that have been removed.

(3)     Any abandoned or obsolete micro network node, network node, node support pole or other related equipment shall be removed in strict accordance with this article and all other applicable ordinances and state law.

(4)     Network provider shall remove micro network node, network node facilities, node support pole or related ground equipment when such facilities are abandoned regardless of whether or not notice is received from the city. Such removal must occur within ninety (90) days from the date of abandonment, unless additional time is allowed by the city. The network provider shall provide advance written notice of such removal which must be received by the city at least two (2) working days prior to the removal, except in case of emergency. Such notice shall specify the location and description of each micro network node, network node facilities, node support pole or related ground equipment to be removed.

(5)     The city administrator may require the network provider to complete additional remedial measures necessary for public safety and the integrity of any city facilities and the right-of-way.

(b)     Removal or relocation required for city project.

(1)     A network provider shall relocate or adjust micro network node, network node, node support pole and related ground equipment in a public right-of-way in a timely manner in accordance with section 3.13.036 and without cost to the municipality managing the public right-of-way.

(2)     Pursuant to state law and as a condition for occupancy of the right-of-way, the network provider may be required by the city to remove or relocate any of its facilities, including but not limited to, its micro network node, network node, node support pole and related ground equipment, or any portion thereof from the right-of-way, and network provider shall, at the city administrator's direction, remove or relocate the same at network provider's sole cost and expense, whenever the city administrator reasonably determines that the relocation or removal is needed as set out in section 3.13.036.

(3)     If network provider fails to remove or relocate the micro network node, network node, node support pole or related ground equipment, or portion thereof as requested by the city administrator within 90 days of network provider's receipt of the request, then the city shall be entitled to remove the micro network node, network node, node support pole or related ground equipment, or portion thereof at network provider's sole cost and expense, without further notice to network provider, and network provider shall, within 30 days following issuance of invoice for the same, reimburse the city for its reasonable expenses incurred in the removal (including, without limitation, overhead and storage expenses) of the micro network node, network node, node support pole or related ground equipment, or portion thereof.

(c)     Removal required by city for safety or due to imminent danger; or for improper permitting or licensing.

(1)     Network provider shall, at its sole cost and expense, promptly disconnect, remove, or relocate the applicable micro network node, network node, node support pole and related ground equipment within the time frame and in the manner required by the city administrator if the city administrator reasonably determines that the disconnection, removal, or relocation of any part of a micro network node, network node, node support pole and related ground equipment:

(A)     Is necessary to protect the public health, safety, welfare, or city property;

(B)     The micro network node, network node, node support pole and related ground equipment, or portion thereof, is adversely affecting proper operation of streetlights or city property; or

(C)     Network provider fails to obtain all applicable licenses, permits, and certifications required by law for its micro network node, network node, node support pole and related ground equipment, or use of any location under applicable law.

If the city administrator reasonably determines that there is imminent danger to the public, then the city may immediately disconnect, remove, or relocate the applicable micro network node, network node, node support pole and related ground equipment at the network provider's sole cost and expense.

(2)     The city administrator shall provide 90 days written notice to the network provider before removing a micro network node, network node, node support pole and related ground equipment under this section, unless there is imminent danger to the public health, safety, and welfare.

(3)     Network provider shall reimburse city for the city's actual cost of removal of micro network node, network node, node support pole and related ground equipment within 30 days of receiving the invoice from the city.

(d)     Restoration. Network provider shall repair any damage to the right-of-way, or any facilities located within the right-of-way, and the property of any third party resulting from network provider's removal or relocation activities (or any other of network provider's activities hereunder) within 10 calendar days following the date of such removal or relocation, at network provider's sole cost and expense, including restoration of the right-of-way and such property to substantially the same condition as it was immediately before the date network provider was granted a permit for the applicable location or did the work at such location (even if network provider did not first obtain a permit), including restoration or replacement of any damaged trees, shrubs or other vegetation. Such repair, restoration and replacement shall be subject to the sole, reasonable approval of the city administrator.

(e)     Network provider responsible. Network provider shall be responsible and liable for the acts and omissions of network provider's employees, temporary employees, officers, directors, consultants, agents, affiliates, subsidiaries, subnetwork provider's and subcontractors in connection with the installations of any micro network node, network node, node support pole and related ground equipment, as if such acts or omissions were network provider's acts or omissions.

   Sec. 3.13.071     Requirements upon abandonment

(a)     Upon abandonment or upon being deemed abandoned, network provider has a duty to promptly remove its facilities from the right-of-way. Notice from the city is not a prerequisite to the requirement for removal.

(b)     If the network provider does not promptly remove its facilities removal procedures as set out in section 3.13.042 may be followed.

   Sec. 3.13.072     General provisions

(a)     All requirements of this article, including division 2, shall be met as applicable.

(b)     No city allocation of funds for removal and storage. All costs of any removal or storage of micro network node, network node, node support pole and related ground equipment, as authorized under this division, shall be the responsibility of the network provider and the city is not required to expend any funds to meet the requirements of the network providers. Any funds expended by the city due to an emergency or failure of a person to abide by these requirements shall be reimbursed to the city.

(c)     Ownership. No part of a micro network node, network node, node support pole and related ground equipment erected or placed on the right-of-way by network provider will become, or be considered by the city as being affixed to or a part of, the right-of-way. All portions of the micro network node, network node, node support pole and related ground equipment constructed, modified, erected, or placed by network provider on the right-of-way will be and remain the property of the network provider and may be removed by the network provider at any time, provided the network provider shall notify the city administrator prior to any work in the right-of-way.

(d)     Size limits.

(1)     Network providers shall provide detailed drawings, with calculations to show strict conformity to the size limitations as set forth in this article or state law with each application, notice of work to be performed or request for a permit for each location; provided, however, where possible providers are encouraged to reduce the size of installed facilities.

(2)     The size limits in this article are only applicable for so long as required by state law. If chapter 284 of the Local Government Code is found to be repealed, struck down, preempted or invalid, in whole or in part, the standards required by the city, either in the municipal authorization or an amendment to the municipal authorization or the directives of the city or this division then such standards shall be subject to individualized review.

   Sec. 3.13.073     Insurance, indemnity, bonding and security deposits

Insurance, indemnity, bonding and security deposits shall be in strict accordance with the city's rights-of-way management ordinance, and other applicable ordinances, except to the extent not consistent with state law.

   Sec. 3.13.074     Design manual - updates

Placement or modification of micro network node, network node, node support pole and related ground equipment shall comply with the city's design manual at the time the permit for installation or modification, and as said design manual may be approved or amended from time-to-time.

   Secs. 3.13.075–3.13.090     Reserved

   Division 4. Exemption Process

   Sec. 3.13.091     Administrative hearing - request for exemption

(a)     Should any person utilizing or proposing to utilize the right-of-way desire to request an exemption from a specific standard set forth in this article, and section 9A-26 [section 3.13.036] is not applicable, the person may request an administrative hearing before a board of appeals. The zoning board of adjustment shall act as the board of appeals for a request for exemption under this article.

(b)     Any person requesting an exemption from any of the requirements shall file such a request with the city administrator within fifteen (15) calendar days from the time that need for an exemption arose. If an exemption is requested prior to construction, the request should be submitted prior to filing for a permit.

(c)     An exemption shall only be granted if:

(1)     Such exemption is not contrary to the public interest;

(2)     Such exemption will not increase the burden on the right-of-way or other right-of-way users;

(3)     Such exemption shall not increase the right-of-way management or administrative duties for city staff;

(4)     The exemption shall fit within the spirit of this division; and

(5)     The application of this article in the particular circumstances would create an unnecessary hardship.

(d)     It shall take an affirmative vote of four (4) members of the board to grant the exemption.

(Ordinance 967-2017 adopted 8/8/17)