Article IV — RIGHT-OF-WAY MANAGEMENT

Except as expressly provided in this chapter 31, the provisions of chapter 23 of this Code, and all Town administrative rules and regulations developed pursuant to chapter 23, as now existing or as hereafter amended, shall apply to all work performed by or on behalf of a state franchise holder in any public rights- of-way.

(Ord. No. 2163, 8-4-08)

(a)

Prior to commencing any work for which a permit is required by chapter 23 of this Code, a state franchise holder shall apply for and obtain a permit in accordance with the provisions of chapter 23. A permit application is complete when the state franchise holder has complied with all applicable laws and regulations, including but not limited to all Town administrative rules and regulations, and all applicable requirements of division 13 of the California Public Resources Code, section 21000 et seq. (the California Environmental Quality Act).

(b)

The Director shall either approve or deny a state franchise holder's application for any permit required under chapter 23 of this Code within sixty (60) days of receiving a complete permit application from the state franchise holder.

(c)

If the Director denies a state franchise holder's application for a permit, the Director shall, at the time of notifying the applicant of denial, furnish to the applicant a detailed explanation of the reason or reasons for the denial.

(d)

A state franchise holder that has been denied a permit by final decision of the Director may appeal the denial to the Council by filing a written notice of appeal in duplicate with the Clerk not more than ten (10) days after the Director's decision is issued. The notice shall state clearly the reasons why the Director's

decision should be overturned. The Council shall only hear the appeal if the notice is filed and all required fees are paid within the ten-day appeal period. Once a notice of appeal has been filed it may be withdrawn by the state franchise holder prior to the distribution of public hearing notices, but not thereafter.

(e)

The appeal shall be heard by the Council within fifty-six (56) days after the date the final decision by the Director was made. The Council may continue from time to time any hearing held by it.

(f)

The Clerk shall set the hearing of the appeal and shall give notice of such hearing in the manner required for the hearings before the Planning Commission. In addition, the Council may give notice of the hearing in such other manner as it wishes.

(g)

The Director shall transmit the entire record concerning the permit application to the Council.

(h)

When hearing the appeal, the Council shall consider the record and such additional evidence as may be offered by anyone and may affirm, modify or reverse, in whole or in part, the determination appealed from, or make and substitute such other determination as is warranted, or may remand to the Director for further review and determination. The state franchise holder bears the burden of proof before the Council to prove that one or more reasons exist on the appeal for reversing or modifying the Director's decision. The standards of chapter 29 governing the discretion of the reviewing body shall apply to actions of the Council.

(i)

Any decision of the Council modifying, in whole or in part, the order, requirement, decision, determination, interpretation, or ruling appealed from, or making and substituting another decision or determination, requires the concurrence of a majority of the membership of the Council.

(j)

If the Council decides to modify or reverse the decision of the Director on any appeal, the resolution shall specify one (1) or more of the following:

(1)

Where there was error or abuse of discretion on the part of the Director; or

(2)

The new information that was submitted to the Council during the appeal process that was not readily and reasonably available for submission to the Director; or

(3)

An issue or policy over which the Director did not have discretion to modify or address, but which is vested in the Council for modification or decision.

(k)

If the only or predominant reason for modifying or reversing the decision of the Director is the availability of new information as defined in subsection (j)(2) above, it is the policy of the Town that the permit application will be returned to the Director for review in light of the new information unless the new information has minimal effect on the application.

(l)

The decision of the Council upon the appeal will be expressed by a written resolution. The Council will forthwith transmit copies of the resolution to the original applicant, the appellant, and the Planning Commission.

(m)

The issuance of a permit is not a franchise, and does not grant any vested rights in any location in the public rights-of-way, or in any particular manner of placement within the rights-of-way. Without limitation, a permit to place cabinets and similar appurtenances aboveground may be revoked and the permittee required to place facilities underground, upon reasonable notice to the permittee.

(Ord. No. 2163, 8-4-08)

Except as expressly provided in this chapter 31, nothing in this chapter 31 shall relieve a state franchise holder from complying with chapter 23 (Streets and Sidewalks), chapter 27 (Utilities) and chapter 29 (Zoning) of the Town Code.

(Ord. No. 2163, 8-4-08)