[HISTORY: Adopted by the City of Isanti 7-20-2021 by Ord. No. 759. Amendments
noted where applicable.]
A.
To provide for the health, safety, and welfare of its citizens, and
to ensure the integrity of its streets and the appropriate use of
the rights-of-way, the City of Isanti strives to keep its rights-of-way
in a state of good repair and free from unnecessary encumbrances.
B.
The City of Isanti hereby enacts this chapter relating to right-of-way
and small cell wireless permits and administration. This chapter imposes
reasonable regulation on the placement and maintenance of facilities
and equipment currently within its rights-of-way or to be placed therein
at some future time. It is intended to complement the regulatory roles
of state and federal agencies. Under this chapter, persons constructing
within, excavating and obstructing the rights-of-way will bear financial
responsibility for their work. Finally, this chapter provides for
recovery of out-of-pocket and projected costs from persons using the
public rights-of-way.
C.
This chapter shall be interpreted consistently with Minn. Stat. §§ 237.16,
237.162, 237.163, 237.79, 237.81, and 238.086 (the "Act"), and the
other laws governing applicable rights of the City and users of the
right-of-way. This chapter shall also be interpreted consistent with
Minnesota Rules 7819.0050 - 7819.9950 and Minnesota Rules Chapter
7560 where possible. To the extent any provision of this chapter cannot
be interpreted consistently with the Minnesota Rules, that interpretation
most consistent with the Act and other applicable statutory and case
law is intended. This chapter shall not be interpreted to limit the
regulatory and police powers of the City to adopt and enforce general
ordinances necessary to protect the health, safety, and welfare of
the public.
Pursuant to the authority granted to the City under state and
federal statutory, administrative and common law, the City hereby
elects, pursuant to Minn. Stat. § 237.163 Subd. 2(b), to
manage rights-of-way within its jurisdiction.
The following definitions apply in this chapter. References
hereafter to "sections" are, unless otherwise specified, references
to sections in this chapter. Defined terms remain defined terms, whether
or not capitalized.
A facility no longer in service or physically disconnected
from a portion of the operating facility, or from any other facility,
that is in use or still carries service. A facility is not abandoned
unless declared so by the right-of-way user.
Any person requesting permission to excavate or obstruct
a right-of-way or requesting permission to co-locate a small cell
wireless facility.
The City of Isanti, Minnesota. For purposes of § 257-29, "City" also means the City's elected officials, officers, employees, and agents.
To install, mount, maintain, modify, operate, or replace
a small wireless facility on, under, within, or adjacent to an existing
wireless support structure or utility pole that is owned privately,
or by the City or other governmental unit.
The State of Minnesota Public Utilities Commission.
A crowded condition in the subsurface of the public right-of-way
that occurs when the maximum lateral spacing between existing underground
facilities does not allow for construction of new underground facilities
without using hand digging to expose the existing lateral facilities
in conformance with Minn. Stat. § 216D.04, Subd. 3, over
a continuous length in excess of 500 feet.
Any of the following forms of security provided at permittee's
option and approved by the City:
Individual project bond;
Cash deposit;
Security of a form listed or approved under Minn. Stat. § 15.73,
Subd. 3;
Letter of credit, in a form acceptable to the City;
Self-insurance, in a form acceptable to the City;
A blanket bond for projects within the City, or other form of
construction bond, for a time specified and, in a form, acceptable
to the City.
The penalty imposed as a result of unreasonable delays in
right-of-way excavation, obstruction, patching, or restoration as
established by permit.
The Public Works or Engineering Department of the City of
Isanti.
A condition that:
Any tangible asset used to install, repair, or maintain facilities
in any right-of-way.
To dig into or in any way remove or physically disturb or
penetrate any part of a right-of-way.
Any tangible asset in the right-of-way required to provide
utility service.
A document listing projects adopted by the City for construction
within the next five years.
A designated portion of the public right-of-way within which
telecommunications right-of-way users having multiple and competing
facilities may be required to build and install facilities in a common
conduit system or other common structure.
An excavation in the pavement, with the excavation having
a length less than the width of the pavement.
A local person or persons, or designee of such person or
persons, authorized by an applicant or permittee to accept service
and to make decisions for that applicant or permittee regarding all
matters within the scope of this chapter.
The actual costs the City incurs in managing its rights-of-way, including such costs, if incurred, as those associated with registering applicants; issuing, processing, and verifying right-of-way or small wireless facility permit applications; inspecting job sites and restoration projects; maintaining, supporting, protecting, or moving user facilities during right-of-way work; determining the adequacy of right-of-way restoration; restoring work inadequately performed after providing notice and the opportunity to correct the work; and revoking right-of-way or small wireless facility permits. Management costs do not include payment by a telecommunications right-of-way user for the use of the right-of-way, unreasonable fees of a third-party contractor used by the City including fees tied to or based on customer counts, access lines, or revenues generated by the right-of-way or for the City, the fees and cost of litigation relating to the interpretation of Minnesota Session Laws 1997, Chapter 123; Minn. Stat. § 237.162 or 237.163; or any ordinance enacted under those sections, or the City fees and costs related to appeals taken pursuant to § 257-31 of this chapter.
To place any tangible object in a right-of-way so as to hinder
free and open passage over that or any part of the right-of-way.
A method of pavement replacement that is temporary in nature.
A patch consists of the compaction of the subbase and aggregate base,
and the replacement, in kind, of the existing pavement for a minimum
of two feet beyond the edges of the excavation in all directions.
A patch is considered full restoration only when the pavement is included
in the City's five-year project plan.
Any type of improved surface that is within the public right-of-way
and that is paved or otherwise constructed with bituminous, concrete,
aggregate, or gravel.
The permit which, pursuant to this chapter, must be obtained
before a person may excavate or obstruct in a right-of-way or co-locate
a small cell wireless facility. A permit allows the permittee to work
in that part of the right-of-way and do such work described and approved
in such permit.
Money paid to the City by an applicant to cover the costs as provided in § 257-11.
Any person to whom a permit to excavate, obstruct or co-locate
in the right-of-way has been granted by the City under this chapter.
An individual or entity subject to the laws and rules of
this state, however organized, whether public or private, whether
domestic or foreign, whether for profit or nonprofit, and whether
natural, corporate, or political.
The status of a person that has not complied with the conditions
of this chapter.
One year from the date that a person has been notified, in
writing, that they have been put on probation.
The area on, below, or above a public roadway, highway, street,
alley, bicycle path, or public sidewalk in which the City has an interest,
including other dedicated rights-of-way for travel purposes and utility
easements of the City. This includes all public grounds. A right-of-way
does not include the airwaves above a right-of-way or public grounds
with regard to cellular or other non-wire-telecommunications or broadcast
service.
The amount of money paid to the City by a permittee to achieve
the level of restoration according to Plates 1 to 13 of Minnesota
Public Utilities Commission Rules.
The process by which an excavated right-of-way and surrounding
area, including pavement and foundation, is returned to the same condition
and life expectancy that existed before excavation.
Either the excavation permit or the obstruction permit, or
small wireless facility, depending on the context, required by this
chapter.
A telecommunications right-of-way user as defined by Minn. Stat.
§ 237.162, Subd. 4; or
A person owning or controlling a facility in the right-of-way
that is used or intended to be used for providing utility service,
and who has a right under law, franchise, or ordinance to use the
public right-of-way.
An underground facility that is used to transmit, distribute
or furnish natural gas, electricity, communications, and water from
a common source to an end-use customer. A service lateral is also
an underground facility that is used in the removal of wastewater
from a customer's premises.
Includes:
Those services provided by a public utility as defined in Minn.
Stat. § 216B.02, Subd. 4 and 6;
Services of a telecommunications right-of-way user, including
transporting of voice or data information;
Services of a cable communications systems as defined in Minn.
Stat. Chapter 238;
Natural gas or electric energy or telecommunications services
provided by the City;
Services provided by a cooperative electric association organized
under Minn. Stat. Chapter 308A; and
Water and sewer, including service laterals, steam, cooling,
or heating services.
A wireless facility that meets both of the following qualifications:
Each antenna is located inside an enclosure of no more than
six cubic feet in volume or could fit within such an enclosure; and
All other wireless equipment associated with the small wireless
facility is, in aggregate, no more than 28 cubic feet in volume, not
including electric meters, concealment elements, telecommunications
demarcation boxes, battery backup power systems, grounding equipment,
power transfer switches, cutoff switches, cable, conduit, vertical
cable runs for the connection of power and other services, and any
equipment concealed from public view within or behind an existing
structure or concealment.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. II)]
An application made to excavate or obstruct more of the right-of-way
than allowed in, or to extend, a permit that had already been issued.
A person owning or controlling a facility in the right-of-way,
or seeking to own or control a facility in the right-of-way that is
used or is intended to be used for providing wireless service, or
transporting telecommunication or other voice or data information.
For purposes of this chapter, a cable communication system defined
and regulated under Minn. Stat. Chapter 238 and telecommunication
activities related to providing natural gas or electric energy services,
a public utility as defined in Minn. Stat. § 216B.02, a
municipality, a municipal gas or power agency organized under Minn.
Stat. Chapter 453 and 453A, or a cooperative electric association
organized under Minn. Stat. Chapter 308A are not telecommunications
right-of-way users for purposes of this chapter except to the extent
such entity is offering wireless service.
The compaction of subbase and aggregate base and replacement,
in kind, of the existing pavement only to the edges of the excavation.
It is temporary in nature except when the replacement is of pavement
included in the City's two-year plan, in which case it is considered
full restoration.
An excavation in the pavement, with the excavation having
a length equal to or greater than the width of the pavement.
Shows projects adopted by the City for construction within
the next two years.
A pole that is used in whole or in part to facilitate telecommunications
or electric service.
Equipment at a fixed location that enables the provision
of wireless services between user equipment and a wireless service
network, including equipment associated with wireless service, a radio
transceiver, antenna, coaxial or fiber-optic cable, regular and backup
power supplies, and a small wireless facility, but not including wireless
support structures, wireline backhaul facilities, or cables between
utility poles or wireless support structures, or not otherwise immediately
adjacent to and directly associated with a specific antenna.
Any service using licensed or unlicensed wireless spectrum,
including the use of Wi-Fi, whether at a fixed location or by means
of a mobile device, that is provided using wireless facilities. Wireless
service does not include services regulated under Title VI of the
Federal Communications Act of 1934, as amended, including cable service.
A new or existing structure in a right-of-way designed to
support or capable of supporting small wireless facilities, as reasonably
determined by the City. Also referred to as a "pole."
The City Administrator or her/his designee is the principal
City official responsible for the administration of the rights-of-way,
right-of-way permits, small cell wireless permits and the ordinances
related thereto. The City Administrator or her/his designee may delegate
any or all of the duties hereunder.
A.
Permit required. Except as otherwise provided in this code, no person
may obstruct or excavate any right-of-way, or install or place facilities
in the right-of-way, without first having obtained the appropriate
right-of-way work or small cell wireless permit from the City to do
so.
B.
Right-of-way work permits cover the following activities:
(1)
Excavation. A right-of-way permit is required by a registrant to
excavate that part of the right-of-way described in such permit and
to hinder free and open passage over the specified portion of the
right-of-way by placing facilities described therein, to the extent
and for the duration specified therein.
(2)
Obstruction. A right-of-way permit is required by a registrant to
hinder free and open passage over the specified portion of right-of-way
by placing equipment described therein on the right-of-way, to the
extent and for the duration specified therein. An additional permit
for obstruction is not required if a person already possesses a valid
right-of-way permit for excavation with the same project.
C.
Small cell wireless/pole attachment permits cover the following activity:
(1)
A small cell wireless/pole attachment permit is required to erect
or install a wireless support structure, to co-locate a small wireless
facility, or to otherwise install a small wireless facility in the
specified portion of the right-of-way, to the extent specified therein,
provided that such permit shall remain in effect for the length of
time the facility is in use, unless lawfully revoked.
D.
Permit extensions. No person may excavate or obstruct the right-of-way
beyond the date or dates specified in the permit unless such person
makes a supplementary application for another right-of-way permit
before the expiration of the initial permit, and a new permit or permit
extension is granted.
E.
Delay penalty. In accordance with Minnesota Rules 7819.1000, Subp. 3, and notwithstanding Subsection B of this section, the City shall establish and impose a delay penalty for unreasonable delays in right-of-way excavation, obstruction, patching, or restoration.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. II)]
F.
Permit display. Permits issued under this chapter shall be conspicuously
displayed or otherwise available at all times at the indicated work
site and shall be available for inspection by the City.
Application for a permit is made to the City. Right-of-way permit
applications shall contain, and will be considered complete only upon
compliance with, the requirements of the following provisions:
A.
Submission of a completed permit application form, including all
required attachments, and scaled drawings showing the location and
area of the proposed project and the location of all known existing
and proposed facilities.
B.
Payment of money due the City for:
(1)
Permit fees, estimated restoration costs, and other management costs;
(2)
Prior obstructions or excavations;
(3)
Any undisputed loss, damage, or expense suffered by the City because
of applicant's prior excavations or obstructions of the rights-of-way
or any emergency actions taken by the City;
(4)
Franchise fees or other charges, if applicable.
C.
Payment of disputed amounts due the City by posting security in an
amount equal to the disputed amount, in a form approved by the City,
or by depositing the disputed amount in an escrow account.
D.
Posting an additional or larger construction performance bond for
additional facilities when an applicant requests an excavation permit
to install additional facilities and the City deems the existing construction
performance bond inadequate under applicable standards.
Prior to placing, installing, modifying, relocating or removing
a small wireless facility or wireless support structure in the ROW,
or to co-locating a wireless facility on an existing wireless support
structure in the ROW, the operator shall obtain a permit from the
City. The City may require additional information as reasonably necessary
to evaluate the application and the impact of the proposed installation(s)
on the public health, safety and welfare or on use or management of
the ROW.
A.
Proof of agent designation (if applicable). If the applicant is serving
as an agent of a small wireless operator, the applicant must provide
written documentation of the agent designation signed by the operator.
B.
Map. The applicant must include an aerial map showing the location
of the proposed or existing support structure to which the small wireless
facility is proposed to be attached, or from which a small wireless
facility is proposed to be removed.
C.
Photo simulations. For all applications to locate small wireless
facilities in the ROW, the applicant shall provide photo simulations
from at least two reasonable line-of-site locations near the proposed
project site. The photo simulations must be taken from the viewpoints
of the greatest pedestrian or vehicular traffic.
D.
Consolidated applications. An applicant seeking to construct, modify,
co-locate or replace more than one small wireless facility or more
than one wireless support structure within the City may file a consolidated
application for up to 15 small wireless facility requests or wireless
support structure requests, provided the requests grouped on a consolidated
application only address substantially the same type of small wireless
facilities or substantially the same type of wireless support structures,
and provided that all small wireless facilities in the application
are located within a two-mile radius. (NOTE: The City may treat each
request individually during application review and processing and
when issuing a determination or applying these guidelines.)
E.
Site and other plans and structural calculations. The applicant must
include fully dimensioned site plans, elevation drawings and structural
calculations that depict any known existing wireless facilities with
all existing transmission equipment and other improvements, the proposed
facility with all proposed transmission equipment and other improvements,
and the legal boundaries of the existing right-of-way and any associated
access and utility easements. Fully dimensioned site plans shall indicate
the spacing from existing curb, driveways, sidewalks, light poles
and any other poles or appurtenances.
F.
Full description of number and dimensions of facilities and/or structures
to be installed. The applicant must include a full description of
the number and dimensions of all small wireless facilities proposed
to be installed and the wireless support structure, either new or
existing, to be utilized for each small wireless facility. For all
equipment proposed to be installed, the applicant must include: 1)
the manufacturer's name and model number; 2) physical dimensions,
including without limitation, height, width, depth and weight with
mounts and other necessary hardware; and (3) the ambient noise level
generated from the equipment, if any.
G.
Owner's authorization. For any application to attach a small wireless
facility to a wireless support structure that is not owned by the
City, the applicant must submit evidence sufficient to show that either:
1) the applicant owns the proposed support structure; or 2) the applicant
has obtained the owner's written authorization to file the application.
A.
Deadline for action. The City shall approve or deny a small wireless
facility permit application within 90 days after filing of such application.
The small wireless facility permit, and any associated building permit
application, shall be deemed approved if the City fails to approve
or deny the application within the review periods established in this
section.
B.
Consolidated applications.
(1)
In rendering a decision on a consolidated permit application, the
City may approve some small wireless facilities and deny others, but
may not use denial of one or more permits as a basis to deny all small
wireless facilities in the application.
C.
Tolling of deadline. The ninety-day deadline for action on a small
wireless facility permit application may be tolled if:
(1)
The City receives applications from one or more applicants seeking
approval of permits for more than 30 small wireless facilities within
a seven-day period. In such case, the City may extend the deadline
for all such applications by 30 days by informing the affected applicants,
in writing, of such extension.
(2)
The applicant fails to submit all required documents or information
and the City provides written notice of incompleteness to the applicant
within 30 days of receipt of the application. Upon submission of additional
documents or information, the City shall have 10 days to notify the
applicant, in writing, of any still-missing information.
(3)
The City and a small wireless facility applicant agree, in writing,
to toll the review period.
A.
Permit issuance. If the applicant has satisfied the requirements
of this chapter, the City shall issue a permit.
B.
Conditions. The City may impose reasonable conditions upon the issuance
of the permit and the performance of the applicant thereunder to protect
the health, safety, and welfare or when necessary to protect the right-of-way
and its current use. In addition, a permittee shall comply with all
requirements of local, state, and federal laws, including but not
limited to Minn. Stat. §§ 216D.01 to 216D.09 (Gopher
One Call Excavation Notice System) and Minnesota Rules Chapter 7560.
C.
Small wireless facility conditions. In addition to Subsection B, the erection or installation of a wireless support structure, the co-location of a small wireless facility, or other installation of a small wireless facility in the right-of-way, shall be subject to the following conditions:
(1)
A small wireless facility shall only be co-located on the particular
wireless support structure, under those attachment specifications,
and at the height indicated in the applicable permit application.
(2)
No new wireless support structure installed within the right-of-way
shall exceed 50 feet in height without the City's written authorization,
provided that the City may impose a lower height limit in the applicable
permit to protect the public health, safety and welfare or to protect
the right-of-way and its current use, and further provided that a
registrant may replace an existing wireless support structure exceeding
50 feet in height with a structure of the same height subject to such
conditions or requirements as may be imposed in the applicable permit.
(3)
No wireless facility may extend more than 10 feet above its wireless
support structure.
(4)
Where an applicant proposes to install a new wireless support structure
in the right-of-way, the City may impose separation requirements between
such structure and any existing wireless support structure or other
facilities in and around the right-of-way.
(5)
Where an applicant proposes co-location on a decorative wireless
support structure, sign or other structure not intended to support
small wireless facilities, the City may impose reasonable requirements
to accommodate the particular design, appearance or intended purpose
of such structure.
(6)
Where an applicant proposes to replace a wireless support structure,
the City may impose reasonable restocking, replacement, or relocation
requirements on the replacement of such structure.
D.
Limitations. While the City fully intends to apply the guidelines established in Chapter 257 uniformly to all small wireless facility applications, there may be circumstances where not every specific guideline may be met. In this case, City staff will use its reasonable discretion in approving small wireless facilities permit applications that deviate from the strict application of this chapter.
A.
A small cell wireless facility shall only be co-located on a small
wireless support structure owned or controlled by the City, or any
other City asset in the right-of-way, after the applicant has executed
a standard small wireless facility co-location agreement with the
City.
B.
The standard co-location agreement shall be in addition to, and not
in lieu of, the required small cell wireless permit; provided, however,
that the applicant shall not be additionally required to obtain a
license or franchise in order to co-locate. Issuance of a small cell
wireless permit does not supersede, alter or affect any then-existing
agreement between the City and applicant.
A.
Excavation. The City shall impose a right-of-way work permit fee
in an amount sufficient to recover City management costs for excavations.
The fee shall be per the City Fee Schedule.
B.
Obstruction. The City shall impose a right-of-way work permit fee
in an amount sufficient to recover City management costs for obstructions
(unless combined with a permit for excavations).
C.
Street cutting. The City shall impose fees for street cutting and
require an escrow in addition to the right-of-way work permit per
the City Fee Schedule.
D.
Small wireless facility. The City shall impose a small cell wireless
permit fee for a small wireless facility in an amount sufficient to
recover:
(1)
Management costs; and
E.
Payment of permit fees. No excavation permit or obstruction permit
shall be issued without payment of excavation or obstruction permit
fees. The City may allow applicant to pay such fees within 30 days
of billing.
F.
Nonrefundable. Permit fees that were paid for a permit that the City has revoked for a breach as stated in § 257-21 are not refundable.
G.
Application to franchises. Unless otherwise agreed to in a franchise,
management costs may be charged separately from and in addition to
the franchise fees imposed on a right-of-way user in the franchise.
A.
Timing. The work to be done under the excavation permit, and the patching and restoration of the right-of-way as required herein, must be completed within the dates specified in the permit, increased by as many days as work could not be done because of circumstances beyond the control of the permittee or when work was prohibited as unseasonal or unreasonable under § 257-15.
B.
Patch and restoration. The permittee shall patch its own work. The
City may choose either to have the permittee restore the right-of-way
or to restore the right-of-way itself.
(1)
City restoration. If the City restores the right-of-way, the permittee
shall pay the costs thereof within 30 days of billing. If, following
such restoration, the pavement settles due to permittee's improper
backfilling, the permittee shall pay to the City, within 30 days of
billing, all costs associated with correcting the defective work.
(2)
Permittee restoration. If the permittee restores the right-of-way
itself, it shall at the time of application for an excavation permit
post a construction performance bond in accordance with the provisions
of Minnesota Rules 7819.3000.
C.
Standards. The permittee shall perform excavation, backfilling, patching,
and restoration according to the standards and with the materials
specified by the City and shall comply with Minnesota Rules 7819.1100.
D.
Duty to correct defects. The permittee shall correct defects in patching or restoration performed by permittee or its agents. The permittee upon notification from the City, shall correct all restoration work to the extent necessary, using the method required by the City. Said work shall be completed within five calendar days of the receipt of the notice from the City, not including days during which work cannot be done because of circumstances constituting force majeure or days when work is prohibited as unseasonable or unreasonable under § 257-15.
E.
Failure to restore. If the permittee fails to restore the right-of-way
in the manner and to the condition required by the City, or fails
to satisfactorily and timely complete all restoration required by
the City, the City at its option may do such work. In that event the
permittee shall pay to the City, within 30 days of billing, the cost
of restoring the right-of-way. If the permittee fails to pay as required,
the City may exercise its rights under the construction performance
bond.
A.
Joint application. Applicants may jointly apply for permits to excavate
or obstruct the right-of-way at the same place and time.
B.
Shared fees. Applicants who apply for permits for the same obstruction
or excavation, which the City does not perform, may share in the payment
of the obstruction or excavation permit fee. In order to obtain a
joint permit, applicants must agree among themselves as to the portion
each will pay and indicate the same on their applications.
C.
With City projects. Applicants who join in a scheduled obstruction
or excavation performed by the City, whether or not it is a joint
application by two or more registrants or a single application, are
not required to pay the excavation or obstruction and degradation
portions of the permit fee, but a permit would still be required.
A.
Limitation on area. A right-of-way or small cell wireless permit
is valid only for the area of the right-of-way specified in the permit.
No permittee may do any work outside the area specified in the permit,
except as provided herein. Any permittee which determines that an
area greater than that specified in the permit must be obstructed
or excavated must, before working in that greater area, make application
for a permit extension and pay any additional fees required thereby,
and be granted a new permit or permit extension.
B.
Limitation on dates. A right-of-way or small cell wireless permit
is valid only for the dates specified in the permit. No permittee
may begin its work before the permit start date or, except as provided
herein, continue working after the end date. If a permittee does not
finish the work by the permit end date, it must apply for a new permit
for the additional time it needs, and receive the new permit or an
extension of the old permit before working after the end date of the
previous permit. This supplementary application must be submitted
before the permit end date.
A.
Compliance with other laws. Obtaining a right-of-way or small cell
wireless permit does not relieve the permittee of its duty to obtain
all other necessary permits, licenses, and authority and to pay all
fees required by the City or other applicable rule, law or regulation.
A permittee shall comply with all requirements of local, state and
federal laws, including but not limited to Minn. Stat. §§ 216D.01
to 216D.09 (Gopher One Call Excavation Notice System) and Minnesota
Rules Chapter 7560. A permittee shall perform all work in conformance
with all applicable codes and established rules and regulations, and
is responsible for all work done in the right-of-way pursuant to its
permit, regardless of who does the work.
B.
Prohibited work. Except in an emergency, and with the approval of
the City, no right-of-way obstruction or excavation may be done when
seasonally prohibited or when conditions are unreasonable for such
work.
C.
Interference with right-of-way. A permittee shall not so obstruct
a right-of-way that the natural free and clear passage of water through
the gutters or other waterways shall be interfered with. Private vehicles
of those doing work in the right-of-way may not be parked within or
next to a permit area, unless parked in conformance with City parking
regulations. The loading or unloading of trucks must be done solely
within the defined permit area unless specifically authorized by the
permit.
D.
Trenchless excavation. As a condition of all applicable permits,
permittees employing trenchless excavation methods, including but
not limited to horizontal directional drilling, shall follow all requirements
set forth in Minn. Stat. Chapter 216D and Minnesota Rules Chapter
7560 and shall require potholing or open cutting over existing underground
utilities before excavating, as determined by the Director.
A.
Reasons for denial. The City may deny a permit for failure to meet
the requirements and conditions of this chapter or if the City determines
that the denial is necessary to protect the health, safety, and welfare
of the public or when necessary to protect the right-of-way and its
current use.
B.
Procedural requirements. The denial or revocation of a permit must
be made in writing and must document the basis for the denial. The
City must notify the applicant or right-of-way user, in writing, within
three business days of the decision to deny or revoke a permit. If
an application is denied, the right-of-way user may address the reasons
for denial identified by the City and resubmit its application. If
the application is resubmitted within 30 days of receipt of the notice
of denial, no additional application fee shall be imposed. The City
must approve or deny the resubmitted application within 30 days after
submission.
The excavation, backfilling, patching and restoration, and all other work performed in the right-of-way shall be done in conformance with Minnesota Rules 7819.1100 and 7819.5000 and other applicable local requirements, in so far as they are not inconsistent with the Minn. Stat. §§ 237.162 and 237.163. Installation of service laterals shall be performed in accordance with Minnesota Rules Chapter 7560 and these ordinances. Service lateral installation is further subject to those requirements and conditions set forth by the City in the applicable permits and/or agreements referenced in § 257-22B of this chapter.
A.
Notice of completion. When the work under any permit hereunder is
completed, the permittee shall furnish a completion certificate in
accordance with Minnesota Rules 7819.1300 if requested by the City.
B.
Site inspection. The permittee shall make the work site available
to the City and to all others as authorized by law for inspection
at all reasonable times during the execution of and upon completion
of the work if requested by the City.
C.
Authority of City.
(1)
At the time of inspection, the City Administrator or designee may
order the immediate cessation of any work which poses a serious threat
to the life, health, safety, or well-being of the public.
(2)
The City Administrator or designee may issue an order to the permittee for any work that does not conform to the terms of the permit or other applicable standards, conditions, or codes. The order shall state that failure to correct the violation will be cause for revocation of the permit. Within 10 days after issuance of the order, the permittee shall present proof to the Director that the violation has been corrected. If such proof has not been presented within the required time, the City Administrator or designee may revoke the permit pursuant to § 257-21.
A.
Emergency situations.
(1)
Each facility owner shall immediately notify the City Administrator
or designee of any event regarding its facilities that it considers
to be an emergency. The facility owner may proceed to take whatever
actions are necessary to respond to the emergency. Excavators' notification
to Gopher State One Call regarding an emergency situation does not
fulfill this requirement. Within two business days after the occurrence
of the emergency, the facility owner shall apply for the necessary
permits, pay the fees associated therewith, and fulfill the rest of
the requirements necessary to bring itself into compliance with this
chapter for the actions it took in response to the emergency.
(2)
If the City becomes aware of an emergency regarding right-of-way
facilities, the City will attempt to contact the local representative
of each facility owner affected, or potentially affected, by the emergency.
In any event, the City may take whatever action it deems necessary
to respond to the emergency, the cost of which shall be borne by the
facility owner whose facilities occasioned the emergency.
B.
Nonemergency situations. Except in an emergency, any person who,
without first having obtained the necessary permit, obstructs or excavates
a right-of-way must subsequently obtain a permit and, as a penalty,
pay additional fees required by the City, deposit with the City the
fees necessary to correct any damage to the right-of-way, and comply
with all of the requirements of this chapter.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. II)]
If the obstruction or excavation of the right-of-way begins
later or ends sooner than the date given on the permit, the permittee
shall notify the City of the accurate information as soon as this
information is known.
A.
Substantial breach. The City reserves its right, as provided herein,
to revoke any right-of-way permit without a fee refund, if there is
a substantial breach of the terms and conditions of any statute, ordinance,
rule or regulation, or any material condition of the permit. A substantial
breach by the permittee shall include, but shall not be limited to,
the following:
(1)
The violation of any material provision of the right-of-way permit.
(2)
An evasion or attempt to evade any material provision of the right-of-way
permit, or the perpetration or attempt to perpetrate any fraud or
deceit upon the City or its citizens.
(3)
Any material misrepresentation of fact in the application for a right-of-way
permit.
(4)
The failure to complete the work in a timely manner, unless a permit
extension is obtained or unless the failure to complete work is due
to reasons beyond the permittee's control.
B.
Written notice of breach. If the City determines that the permittee
has committed a substantial breach of a term or condition of any statute,
ordinance, rule, regulation, or any condition of the permit, the City
shall make a written demand upon the permittee to remedy such violation.
The demand shall state that continued violations may be cause for
revocation of the permit. A substantial breach, as stated above, will
allow the City, at its discretion, to place additional or revised
conditions on the permit to mitigate and remedy the breach.
C.
Response to notice of breach. Within 24 hours of receiving notification
of the breach, the permittee shall provide the City with a plan, acceptable
to the City, that will cure the breach. The permittee's failure to
so contact the City, or the permittee's failure to timely submit an
acceptable plan, or the permittee's failure to reasonably implement
the approved plan shall be cause for immediate revocation of the permit.
Further, the permittee's failure to so contact the City, or the permittee's
failure to submit an acceptable plan, or the permittee's failure to
reasonably implement the approved plan shall automatically place the
permittee on probation for one full year.
D.
Cause for probation. From time to time, the City may establish a
list of conditions of the permit, which if breached will automatically
place the permittee on probation for one full year, such as, but not
limited to, working out of the allotted time period or working on
right-of-way grossly outside of the permit authorization.
E.
Automatic revocation. If a permittee, while on probation, commits
a breach as outlined above, the permittee's permit will automatically
be revoked and the permittee will not be allowed further permits for
one full year, except for emergency repairs.
F.
Reimbursement of City costs. If a permit is revoked, the permittee
shall also reimburse the City for the City's reasonable costs, including
restoration costs and the costs of collection and reasonable attorneys'
fees incurred in connection with such revocation.
A.
Information required. Each permittee shall provide mapping information
required by the City in accordance with Minnesota Rules 7819.4000
and 7819.4100. Following completion of any work pursuant to a permit,
the permittee shall provide the City Administrator or designee accurate
maps and drawings certifying the "as-built" location of all equipment
installed, owned, and maintained by the permittee upon request. Such
maps and drawings shall include the horizontal and vertical location
of all facilities and equipment and shall be provided consistent with
the City's electronic mapping system, when practical or as a condition
imposed by the City Administrator or designee. Failure to provide
maps and drawings pursuant to this subsection may be grounds for denying
future permit applications.
B.
Service laterals. All permits issued for the installation or repair
of service laterals, other than minor repairs as defined in Minnesota
Rules 7560.0150, Subp. 2, shall require the permittee's use of appropriate
means of establishing the horizontal locations of installed service
laterals and the service lateral vertical locations in those cases
where the City Administrator or designee reasonably requires it. Permittees
or their subcontractors shall submit to the City Administrator or
designee evidence satisfactory to the City Administrator or designee
of the installed service lateral locations. Compliance with this subsection
and with applicable Gopher State One Call law and Minnesota Rules
governing service laterals installed after December 31, 2005, shall
be a condition of any City approval necessary for:
(1)
Payments to contractors working on a public improvement project,
including those under Minn. Stat. Chapter 429; and
(2)
City approval under development agreements or other subdivision or
site plan approval under Minn. Stat. Chapter 462. The City Administrator
or designee shall reasonably determine the appropriate method of providing
such information to the City. Failure to provide prompt and accurate
information on the service laterals installed may result in the revocation
of the permit issued for the work or the denial of future permits
to the offending permittee or its subcontractors.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. II)]
A.
Placement, location, and relocation of facilities must comply with
the Act, with other applicable law, and with Minnesota Rules 7819.3100,
7819.5000, and 7819.5100, to the extent the rules do not limit authority
otherwise available to the City.
B.
Corridors.
(1)
The City may assign a specific area within the right-of-way, or any
particular segment thereof as may be necessary, for each type of facility
that is or, pursuant to current technology, the City expects will
someday be located within the right-of-way. All excavation, obstruction,
or other permits issued by the City involving the installation or
replacement of facilities shall designate the proper corridor for
the facilities at issue.
(2)
Any person who has facilities in the right-of-way in a position at
variance with the corridors established by the City shall, no later
than at the time of the next reconstruction or excavation of the area
where the facilities are located, move the facilities to the assigned
position within the right-of-way, unless this requirement is waived
by the City for good cause shown, upon consideration of such factors
as the remaining economic life of the facilities, public safety, customer
service needs, and hardship to the facility owner.
C.
Limitation of space. To protect the health, safety, and welfare of
the public, or when necessary, to protect the right-of-way and its
current use, the City shall have the power to prohibit or limit the
placement of new or additional facilities within the right-of-way.
In making such decisions, the City shall strive to the extent possible
to accommodate all existing and potential users of the right-of-way,
but shall be guided primarily by considerations of the public interest,
the public's needs for the particular utility service, the condition
of the right-of-way, the time of year with respect to essential utilities,
the protection of existing facilities in the right-of-way, and future
City plans for public improvements and development projects which
have been determined to be in the public interest.
In addition to complying with the requirements of Minn. Stat.
§§ 216D.01 to 216D.09 ("One Call Excavation Notice
System"), before the start date of any right-of-way excavation, each
permittee who has facilities or equipment in the area to be excavated
shall mark the horizontal and vertical placement of all said facilities.
Any permittee whose facilities are less than 20 inches below a concrete
or asphalt surface shall notify and work closely with the excavation
contractor to establish the exact location of its facilities and the
best procedure for excavation.
A.
Most preferable locations. The following are the most preferred areas
for new small wireless facilities in the order of preference [(1)
being most preferable]:
B.
Co-location preference. It is the City's strong preference that whenever
an applicant proposes to place a new small wireless facility that
the applicant co-locate the same on existing wireless support structures.
D.
Consideration of alternate locations. The City reserves the right
to propose an alternate location for a small wireless facility and/or
wireless support structure to the location proposed in the application
within 100 feet of the proposed location or within a distance that
is equivalent to the width of the ROW in or on which the small wireless
facility and/or wireless support structure is proposed, whichever
is greater, which the operator shall use if it has the right to use
the alternate location on reasonable terms and conditions and the
alternate location does not impose technical limits or additional
costs.
E.
Guidelines on placement. The City desires to promote cleanly organized
and streamlined facilities using the smallest and least intrusive
means available to provide wireless services to the community. Generally,
a small wireless facility and/or wireless support structure shall
match and be consistent with the materials and finish of the wireless
support structure, adjacent City poles, and of the surrounding area
adjacent to their location. In the absence of adjacent City poles,
the wireless support structure shall match the materials and finish
of the adjacent utility poles. The following additional guidelines
on placement shall apply:
(1)
Small wireless facilities and wireless support structures shall be
located no closer than 150 feet away, radially, from another small
wireless facility and wireless support structure.
(2)
A combination wireless support structure and streetlight pole should
only be located where an existing pole (usually Connexus Energy or
East Central Energy) can be removed and replaced, or at a new location
where it has been identified that a streetlight is necessary.
(3)
Small wireless facilities and wireless support structures shall be
located in a manner that does not impede, obstruct, or hinder usual
public pedestrian or vehicular travel or public safety on a ROW.
(4)
Small wireless facilities and wireless support structures shall be
located in a manner that does not obstruct the legal use of a ROW
by a utility provider.
(5)
Small wireless facilities and wireless support structures shall be
located in a manner that does not violate the Federal Americans with
Disabilities Act.
(6)
Small wireless facilities and wireless support structures shall be
located in a manner that does not negatively impact the structural
integrity of the associated wireless support structure.
(7)
Small wireless facilities and wireless support structures shall be
located in alignment with existing trees to the extent there are boulevard
trees to be in alignment with, utility poles, and streetlights.
(8)
Small wireless facilities and wireless support structures shall be
located equal distance between trees when possible, with a minimum
of 15 feet separation such that no proposed disturbance shall occur
within the critical root zone of any tree.
(9)
Small wireless facilities and wireless support structures shall be
located with applicable clearance from existing utilities.
(10)
Small wireless facilities and wireless support structures shall
be located so as not to be located along the frontage of any building
deemed to be of historic significance on a federal, state, or local
level.
(11)
Small wireless facilities and wireless support structures shall
not be located within vision triangles at street intersections.
(12)
New wireless poles shall not be located directly in front of
any existing residential, commercial or industrial structure. (Figure
1)
(13)
To the greatest extent possible, new wireless poles shall be
located in line with existing lot lines or an equidistance from any
two existing structures. In areas of the City where multiple poles
abut each other and/or where no side lot setback requirements exist,
new wireless poles shall not be located directly in front of an entrance
or window of any existing structure. (Figure 2).
|
Figure 1 - Example of Acceptable Location Between Residential
Homes:
 |
|
Figure 2 - Example of Acceptable Location Between Commercial
Buildings:
 |
F.
Limitations. While the City fully intends to apply the guidelines
established in this policy uniformly to all small wireless facility
applications, there may be circumstances where not every specific
guideline may be met. In these cases, City staff will use its reasonable
discretion in approving small wireless facilities permit applications
that deviate from the strict application of this policy.
A.
Antennas.
(1)
Each small wireless antenna shall be located entirely within a shroud
or canister type enclosure.
(2)
The diameter of the antenna enclosure at its widest point should
not be wider than two times the diameter of the top of the wireless
support structure. The enclosure shall not exceed six cubic feet in
volume.
(3)
All antenna enclosures shall either be mounted to the top of the
wireless support structure pole and aligned with the center line of
the wireless support structure, or mounted to the side of the wireless
support structure such that the vertical center line of the antenna
enclosure shall be parallel with the wireless support structure with
the height of the side mounted antenna being at a location on the
wireless support structure noted in the application and approved by
the City, but at least 10 feet above ground level at its lowest point.
Antennas must not exceed the building height requirements in their
respective zoning district by more than 10 feet, with a maximum height
of 50 feet.
(4)
Tree "topping" or the improper pruning of trees is prohibited. Any
proposed pruning or removal of trees, shrubs or other landscaping
already existing in the ROW must be noted in the application and must
be approved by the City.
B.
Cables and wires. All cables, wires and connectors related to the
small wireless facility must be fully concealed on the wireless support
structure and shall match the color of the wireless support structure.
There shall be no external cables and wires related to the small wireless
facility hanging off or otherwise exposed on the wireless support
structure.
C.
Colors. All colors shall match the background of any wireless support
structure that the facilities are located upon, including equipment
cabinets. Notwithstanding the foregoing, in the case of existing wooden
utility poles, finishes of conduit shall be zinc, aluminum or stainless
steel, or colored to match those metal finishes, and equipment cabinets
shall be the color of brushed aluminum.
D.
Equipment enclosures/concealment/maintenance.
(1)
Equipment enclosures, including electric meters, shall be as small
as possible, but in no event larger than 28 cubic feet in volume.
Ground-mounted equipment shall incorporate concealment elements into
the proposed design matching color and materials of the wireless support
structure, unless other materials or colors are approved by the City.
Concealment may include, but shall not be limited to, landscaping,
strategic placement in less obtrusive locations and placement within
existing or replacement street furniture.
(2)
Radio equipment shall be fully enclosed within an equipment cabinet
or concealed within the antenna shroud enclosure matching the color
and materials of the wireless support structure, unless other materials
or colors are approved by the City.
(3)
Landscaping concealing equipment enclosures shall be planted in such
quantity and size such that one-hundred-percent screening is achieved
within two years of installation.
(4)
All equipment enclosures shall be maintained in good condition. They shall be completely sealed with a secured access. The small cell company and/or right-of-way user must take reasonable care and measures to prevent damage to their facilities. Open, broken or unsealed enclosures shall be considered a public nuisance under City Code Chapter 216.
E.
Signage; logos; lights; decals; cooling fans.
(1)
Signage. The small wireless facility permittee shall post its name,
location identifying information, and emergency telephone number in
an area on the cabinet of the small wireless facility that is visible
to the public. Signage required under this section shall not exceed
four inches by six inches, unless otherwise required by law (e.g.,
radio-frequency (RF) ground notification signs) or the City. If no
cabinet exists, the signage shall be placed at the base of the pole.
(2)
Lights. New small wireless facilities and wireless support structures
shall not be illuminated, except in accord with state or federal regulations,
or unless illumination is integral to the camouflaging strategy such
as design intended to look like a streetlight pole.
(3)
Logos/decals. The small wireless facility operator/permittee shall
remove or paint over unnecessary equipment manufacturer decals. The
color shall match or shall be as approved by the City. Small wireless
facilities and wireless support structures shall not include advertisements
and may only display information required by a federal, state or local
agency. The small wireless facility operator/permittee shall utilize
the smallest and lowest visibility RF warning sticker required by
government or electric utility regulations. Placement of the RF sticker
shall be as close to the antenna as possible.
(4)
Cooling fans. In residential areas, the small wireless facility operator/permittee
shall use a passive cooling system. In the event that a fan is needed,
the small wireless facility operator/permittee shall use a cooling
fan with a low noise profile.
When the City does work in the right-of-way and finds it necessary
to maintain, support, or move a permittee's facilities to protect
it, the City shall notify the local representative as early as is
reasonably possible. The costs associated therewith will be billed
to that permittee and must be paid within 30 days from the date of
billing. Each permittee shall be responsible for the cost of repairing
any facilities in the right-of-way which it or its facilities damage.
Each permittee shall be responsible for the cost of repairing any
damage to the facilities of another permittee caused during the City's
response to an emergency occasioned by that permittee's facilities.
Reservation of right. If the City vacates a right-of-way that
contains the facilities of a permittee, the permittee's rights in
the vacated right-of-way are governed by Minnesota Rules 7819.3200.
By accepting a permit under this chapter, a permittee agrees
to defend and indemnify the City in accordance with the provisions
of Minnesota Rules 7819.1250.
A.
Discontinued operations. A permittee who has determined to discontinue
all or a portion of its operations in the City must provide information
satisfactory to the City that the permittee's obligations for its
facilities in the right-of-way under this chapter have been lawfully
assumed by another permittee.
B.
Removal. Any permittee who has abandoned facilities in any right-of-way
shall remove it from that right-of-way if required in conjunction
with other right-of-way repair, excavation, or construction, unless
this requirement is waived by the City.
An applicant or permittee that has been denied a permit; has
had a permit revoked; believes that the fees imposed are not in conformity
with Minn. Stat. § 237.163, Subd. 6; or disputes a determination
of the City Administrator or designee regarding provisions of this
chapter may have the denial, revocation, fee imposition, or decision
reviewed, upon written request, by the City Council. The City Council
shall act on a timely written request at its next regularly scheduled
meeting, provided the right-of-way user has submitted its appeal with
sufficient time to include the appeal as a regular agenda item. A
decision by the City Council affirming the denial, revocation, or
fee imposition will be in writing and supported by written findings
establishing the reasonableness of the decision.
A permittee's rights are subject to the regulatory and police
powers of the City to adopt and enforce general ordinances as necessary
to protect the health, safety, and welfare of the public.
If any portion of this chapter is for any reason held invalid
by any court of competent jurisdiction, such portion shall be deemed
a separate, distinct, and independent provision and such holding shall
not affect the validity of the remaining portions thereof. Nothing
in this chapter precludes the City from requiring a franchise agreement
with the applicant, as allowed by law, in addition to requirements
set forth herein.
