HomeMy WebLinkAboutOrdinances - MC-16-1131 - 07/18/2016 - CONSTRUCTION OF UTILITY FACILITIES IN ROWORDINANCE NO. MC-16-1131
An Ordinance Amending Chapter 21, Streets and Sidewalks, of the City of
McHenry's Municipal Code Regarding Construction of Utility Facilities
in the Rights of Way
WHEREAS, the City of McHenry, McHenry County, Illinois, is a home rule municipality
as contemplated under Article VII, Section 6, of the Constitution of the State of Illinois, and the
passage of this Ordinance constitutes an exercise of the City's home rule powers and functions as
granted in the Constitution of the State of Illinois; and
WHEREAS, the City has the authority to adopt ordinances and to promulgate rules and
regulations that pertain to its government and affairs and governing the use of public rights of
way and that protect the public health, safety, and welfare of its citizens; and
WHEREAS, the City uses the public rights of way within its corporate limits to provide
essential public services to its residents and businesses, including traffic control signals, water,
sanitary sewer and storm sewer; and
WHEREAS, other utility service providers, including electricity, telephone, natural gas
and cable television and video service providers have placed, or from time to time may request to
place, certain utility facilities in the public rights of way within the City; and
WHEREAS, legislatures and regulatory agencies at the state and federal levels have im-
plemented changes in the regulatory framework to enhance competition in the providing of vari-
ous utility services; and
WHEREAS, the combination of legislative and regulatory changes and the development
of new technologies has led additional service providers to seek opportunities to provide services
in the City; and
WHEREAS, these regulatory and technological changes have resulted in demands for ac-
cess to and use of the public rights of way in the City as service providers, particularly in the
video and communications services, attempt to provide new or additional services to compete
with incumbent service providers; and
WHEREAS, unlike prior deregulations of utility services in which incumbent service
providers have been required to make their transmission and/or distribution systems available to
competitors, video and communications services seeking to compete with incumbent service
providers are seeking to install their own facilities for delivering competing video and communi-
cations services; thereby increasing the number of service providers seeking access to and use of
the public rights of way in the City; and
WHEREAS, the public rights of way within the City are a limited public resource held in
trust by the City for the benefit of its citizens and the City has a custodial duty to ensure that the
public rights of way are used, repaired and maintained in a manner that best serves the public
interest; and
Page 1
WHEREAS, the corporate authorities of the City find and determine that it is necessary
and in the best interests of the public health, safety and general welfare to establish uniform
standards and regulations for access to and use of the public rights of way in the City by utility
service providers and other persons and entities that desire to place structures, facilities or
equipment in the public rights of way, so as to (i) prevent interference with the use of streets,
sidewalks, alleys and other public ways and places by the City and the general public, (ii) protect
against visual and physical obstructions to vehicular and pedestrian traffic, (iii) prevent interfer-
ence with the facilities and operations of the City's utilities and of other utilities lawfully located
in public rights of way or property, (iv) protect against environmental damage, including damage
to trees, wetlands, wildlife and other forms of green infrastructure outlined in the McHenry
County Green Infrastructure Plan, from the installation of utility facilities, (v) preserve the char-
acter of the neighborhoods in which facilities are installed, (vi) prevent visual blight, and (vii)
assure the continued safe use and enjoyment of private properties adjacent to utility facilities lo-
cations. The purpose of this section is to also establish requirements for the location of wireless
communication facilities (or "WCF") without prohibiting their location but protecting the health,
safety and welfare of the public in the City's right of way: (i) recognizing the communication
needs of residents and businesses, (ii) establishing appropriate standards for WCF sites in the
City's right of ways, (iii) preserving the existing unique and rural character of the City, (iv) re-
quiring co -location of WCFs, (v) minimizing adverse visual effects of towers and facilities by
establishing setbacks and design standards, (vi) discouraging the creation of new monopole wire-
less communication towers; and
WHEREAS, this Ordinance is enacted in the exercise of the City's home rule powers, the
corporate authorities having determined that the regulation of the use of the public rights of way
in the City is a matter pertaining to the affairs of the City as provided in Article VII, Section 6 of
the Constitution of the State of Illinois of 1970; and
WHEREAS, in addition to the City's power as a home rule municipality, this Ordinance
is adopted pursuant to the provisions of (i) the Illinois Municipal Code, 65 ILCS 5/1-1-1, et seq.,
including, without limitation, Sections 11-20-5, 11-20-10, 11-42-11, I1-42-11.2, 11-80-1, I1-80-
3, 11-80-6, I1-80-7, I1-80-8, 11-80-10, and 11-80-13; (ii) Section 4 of the Telephone Company
Act, 220 ILCS 65/4; (iii) the Illinois Highway Code, including, without limitation, Articles 7 and
9 thereof, 605 ILCS 511-101 et seq.; (iv) the Simplified Municipal Telecommunications Tax Act,
35 ILCS 636/1 et seq., (v) the Cable and Video Competition Law of 2007, 220 ILCS 5/21-100 et
seq., and (vi) Federal Communications Act; and
WHEREAS, this Ordinance establishes generally applicable standards for construction
on, over, above, along, upon, under, across or within the public right of way, and for the use of
and repair of the public right of way; and
WHEREAS, in the enactment of this ordinance, the City has considered a variety of
standards for construction on, over, above, along, under, across, or within, use of and repair of
the public right of way, including, but not limited to, the standards relating to Accommodation of
Utilities on Right of Way of the Illinois State Highway System promulgated by the Illinois De-
partment of Transportation and found at 92 Ill. Adm. Code § 530.10 et seq.; and
WHEREAS, the City finds that it is in the best interest of the City, the public and the util-
ities using the public rights of way to establish a comprehensive set of construction standards and
Page 2
requirements to achieve various beneficial goals, including, without limitation, enhancing the
planning of new utility facilities; minimizing interference with, and damage to, rights of way and
the streets, sidewalks, and other structures and improvements located in, on, over and above the
rights of way; and reducing costs and expenses to the public; and
NOW, THEREFORE, BE IT ORDAINED by the Mayor and City Council of the CITY
OF McHENRY, McHenry County, Illinois, as follows:
SECTION 1: Recitals. The facts and statements contained in the preambles to this Ordi-
nance are found to be true and correct and are hereby adopted as part of this Ordinance.
SECTION 2: Article V, Utilities in the Right -of --Way, in Chapter 21, Streets and Side-
walks, in the Municipal Code, City of McHenry, Illinois, is hereby repealed and shall be replaced
with Chapter 21, Construction of Utility Facilities in the Rights -of --Way, attached hereto and
made a part hereof.
SECTION 3: If any section, paragraph, subdivision, clause, sentence or provision of this
Ordinance shall be adjudged by any Court of competent jurisdiction to be invalid, such judgment
shall not affect, impair, invalidate or nullify the remainder thereof, which remainder shall remain
and continue in full force and effect.
SECTION 4: All ordinances or parts of ordinances in conflict herewith are hereby re-
pealed to the extent of such conflict.
SECTION 5: This Ordinance shall be in full force and effect upon its passage, approval
and publication in pamphlet form (which publication is hereby authorized) as provided by law.
Voting Aye: Condon, Wimmer, Peterson, Curry, Schaefer, Santi, Glab
Voting Nay: None
Absent: None
Abstain: None
APPRO ED *
Nf. dyor Susan E. Low
ATTEST: Ain C
City klerk Ja ce . Jones
Z.9INIIMcHenrvC\kvo710AnanckIMcHdry ROW.ord. docx
Page 3