HomeMy WebLinkAbout5.a. PC ExecSumm Small Wireless Facilities in ROW 10-24-17EXECUTIVE SUMMARY
Planning Commission Meeting Date: October 24, 2017
Tentative City Council Meeting Date: November 21, 2017
AGENDA ITEM: Case 17-40-TA Text Amendment to City Code
Regulating Small Wireless Facilities within Right-of-Way.
AGENDA SECTION:
Public Hearing
PREPARED BY: Kyle Klatt, Senior Planner AGENDA NO. 5.a.
ATTACHMENTS: Draft Ordinance Amending Zoning
Ordinance, Draft Ordinance Amending Right-
of-Way Management Ordinance,
Memorandum from City Attorney’s Office,
Adopted Amendments to State Statutes
APPROVED BY: KJL
RECOMMENDED ACTION: Motion to recommend the City Council approve amendments
to the Right-of-Way Management Ordinance and Zoning Ordinance pertaining to small
wireless facilities within right-of-way
SUMMARY
The Planning Commission is being asked to consider amendments to the Rosemount City Code to regulate
small wireless facilities within right-of-way throughout the community. The proposed amendments are
necessary to bring the City’s ordinances up to date with recent changes to Minnesota State Statutes by the
State Legislature that now require Cities to allow telecommunication and cable companies to install small
wireless facilities within City right-of-way. The revised statutes do provide Cities with the ability to regulate
these facilities, and staff is recommending that the City adopt draft language proposed by the City Attorney’s
office to regulate small wireless facilities.
BACKGROUND
The attached memorandum from the City Attorney’s office includes a brief narrative describing the action
taken by the State Legislature along with a more thorough summary of the statutory amendments for small
wireless facility deployment within right-of-way. The main purpose of the legislation is to allow wireless
providers to deploy small wireless facilities within the City’s right-of-way, and to also be able to utilize poles
or similar structures owned by the City for these facilities. The statutes do allow the City to determine
whether or not an existing pole or structure can accommodate a small wireless facility, and further allows the
City to reject such proposals when they would interfere with public health, safety, or welfare. Some of the
key points from this legislation:
Small wireless antennae must be six cubic feet or under to qualify under the ordinance, and any
support equipment cannot exceed 28 cubic feet.
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A support structure (pole) for such facilities may not exceed 50 feet in height, or 10 feet above an
existing pole that is being used. The City may allow for higher structures at its discretion.
The City may require a colocation agreement with carriers locating on City infrastructure, and can
also collect rent and fees associated with such an agreement.
The City must take action on requests for small wireless facilities within 90 days, with allowances to
extend this review period under certain circumstances.
The revised statutes specify that small wireless facilities are allowed as a permitted use in all zoning
districts; however, the City may make such uses a conditional use in a district or area zoned for
single-family residential uses.
The City can require spacing requirements between new poles or other wireless support structures.
Please note that the City will need to amend two different sections of the City Code in order to implement
the recommended changes. The first section to be amended is the City’s Right-of-Way Management
ordinance located in Chapter 2 of the City Code. The revisions drafted by the City Attorney use the League
of Minnesota Cities model ROW ordinance as a basis for the changes; staff has adopted these changes for
the City of Rosemount’s ROW ordinance (which follows the leagues model very closely). The second
section that must also be revised is the City’s Zoning Ordinance in order to list “small wireless facilities
within right-of-way” as either a permitted or conditional use in the City’s various zoning districts. Staff has
drafted two separate ordinances for consideration by the Planning Commission to amend both of these
sections.
The proposed ordinances follow the draft language from the Attorney’s office very closely; however, Staff is
recommending two specific additions to the draft as follows:
1) To require colocation on an existing facility unless an applicant can demonstrate the need for a new
support structure within a right-of-way.
2) To specify a minimum separation requirement of 500 feet between a new wireless support structure
and any existing small wireless facility or support structure, but with a provision that allows the City
to approve a lesser separate distance if the applicant can demonstrate a need for a new facility due to
a coverage or capacity issue.
Staff has reached out to the City Attorney’s office to discuss these proposed modifications, but has not been
able to review the proposed language with the City Attorney prior to the Planning Commission packet being
completed. Because the City’s “Commercial Antenna” ordinance includes specific requirements and criteria
for co-location of antennas, staff is also looking into adding similar provisions to the draft right-of-way
ordinance. If there is any feedback from the Attorney concerning these changes prior to the meeting, staff
will present any recommended changes during the Planning Commission meeting.
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Legal Authority. Although text amendments are considered legislative actions that provide the City with a
fair amount of discretion in adopting them, the Minnesota State Legislature has revised the state law to limit
municipalities’ ability to restrict small wireless facilities from its right-of-way. In this case, the City can adopt
standards to regulate such uses as long as the language does not conflict with state statutes. The City
Attorney’s office has drafted code amendments that are intended to fully comply with state law while
providing the City with review authority where allowed.
Although the Planning Commission does not generally review amendments to the City’s Streets and Public
Property Ordinance, the proposed revisions include zoning ordinance revisions and other City Code
amendments have a land use component that is directly related to the Planning Commissions responsibilities
in its advisory capacity.
CONCLUSION & RECOMMENDATION
Staff is recommending that the Planning Commission recommend approval of the proposed amendments to
the City’s Right-of-Way Management Ordinance and Zoning Ordinance to regulate small wireless facilities
within right-of-way.
CITY OF ROSEMOUNT
COUNTY OF DAKOTA
STATE OF MINNESOTA
ORDINANCE NO. B-265
AN ORDINANCE TO AMEND THE ROSEMOUNT ZONING ORDINANCE TO
REGULATE SMALL WIRELESS FACILITIES WITHIN PUBLIC RIGHTS-OF-WAY IN
RESIDENTIAL AND NON-RESIDENTIAL DISTRICTS
THE CITY COUNCIL OF THE CITY OF ROSEMOUNT, MINNESOTA, ORDAINS that
Ordinance B, adopted September 19, 1989, entitled “City of Rosemount Zoning Ordinance,” is
hereby amended as follows:
Section 1. Rosemount Zoning Ordinance B, Section 11-4-1: Agricultural District is hereby
amended as follows:
D. Conditional Uses:
Small Wireless Facilities within Right-of-Way, subject to the regulations contained in Title 4,
Chapter 2 of this code.
Section 2. Rosemount Zoning Ordinance B, Section 11-4-2: Agricultural Preserve District is
hereby amended as follows:
D. Conditional Uses:
Small Wireless Facilities within Right-of-Way, subject to the regulations contained in Title 4,
Chapter 2 of this code.
Section 3. Rosemount Zoning Ordinance B, Section 11-4-3: Rural Residential District is hereby
amended as follows:
D. Conditional Uses:
Small Wireless Facilities within Right-of-Way, subject to the regulations contained in Title 4,
Chapter 2 of this code.
Section 4. Rosemount Zoning Ordinance B, Section 11-4-4: Very Low Density Residential
District is hereby amended as follows:
D. Conditional Uses:
Small Wireless Facilities within Right-of-Way, subject to the regulations contained in Title 4,
Chapter 2 of this code.
Section 5. Rosemount Zoning Ordinance B, Section 11-4-5: Low Density Residential District is
hereby amended as follows:
D. Conditional Uses:
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Small Wireless Facilities within Right-of-Way, subject to the regulations contained in Title 4,
Chapter 2 of this code.
Section 6. Rosemount Zoning Ordinance B, Section 11-4-6: Low Density Residential District is
hereby amended as follows:
D. Conditional Uses:
Small Wireless Facilities within Right-of-Way, subject to the regulations contained in Title 4,
Chapter 2 of this code.
Section 7. Rosemount Zoning Ordinance B, Section 11-4-7: Moderate Density Residential
District is hereby amended as follows:
D. Conditional Uses:
Small Wireless Facilities within Right-of-Way, subject to the regulations contained in Title 4,
Chapter 2 of this code.
Section 8. Rosemount Zoning Ordinance B, Section 11-4-8: Medium Density Residential
District is hereby amended as follows:
D. Conditional Uses:
Small Wireless Facilities within Right-of-Way, subject to the regulations contained in Title 4,
Chapter 2 of this code.
Section 9. Rosemount Zoning Ordinance B, Section 11-4-9: High Density Residential District
is hereby amended as follows:
D. Conditional Uses:
Small Wireless Facilities within Right-of-Way, subject to the regulations contained in Title 4,
Chapter 2 of this code.
Section 10. Rosemount Zoning Ordinance B, Section 11-4-10: Convenience Commercial
District is hereby amended as follows:
B. Permitted Uses:
Small Wireless Facilities within Right-of-Way, subject to the regulations contained in Title 4,
Chapter 2 of this code.
Section 11. Rosemount Zoning Ordinance B, Section 11-4-11: Downtown District is hereby
amended as follows:
B. Permitted Uses:
Small Wireless Facilities within Right-of-Way, subject to the regulations contained in Title 4,
Chapter 2 of this code.
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Section 12. Rosemount Zoning Ordinance B, Section 11-4-13: Highway Commercial District is
hereby amended as follows:
B. Permitted Uses:
Small Wireless Facilities within Right-of-Way, subject to the regulations contained in Title 4,
Chapter 2 of this code.
Section 13. Rosemount Zoning Ordinance B, Section 11-4-14: General Commercial District is
hereby amended as follows:
B. Permitted Uses:
Small Wireless Facilities within Right-of-Way, subject to the regulations contained in Title 4,
Chapter 2 of this code.
Section 14. Rosemount Zoning Ordinance B, Section 11-4-15: Business Park District is hereby
amended as follows:
B. Permitted Uses:
Small Wireless Facilities within Right-of-Way, subject to the regulations contained in Title 4,
Chapter 2 of this code.
Section 15. Rosemount Zoning Ordinance B, Section 11-4-15-1: Light Industrial District is
hereby amended as follows:
B. Permitted Uses:
Small Wireless Facilities within Right-of-Way, subject to the regulations contained in Title 4,
Chapter 2 of this code.
Section 16. Rosemount Zoning Ordinance B, Section 11-4-16: General Industrial District is
hereby amended as follows:
B. Permitted Uses:
Small Wireless Facilities within Right-of-Way, subject to the regulations contained in Title 4,
Chapter 2 of this code.
Section 17. Rosemount Zoning Ordinance B, Section 11-4-16-1: Heavy Industrial District is
hereby amended as follows:
B. Permitted Uses:
Small Wireless Facilities within Right-of-Way, subject to the regulations contained in Title 4,
Chapter 2 of this code.
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Section 18. Rosemount Zoning Ordinance B, Section 11-4-17: Waste Management District is
hereby amended as follows:
B. Permitted Uses:
Small Wireless Facilities within Right-of-Way, subject to the regulations contained in Title 4,
Chapter 2 of this code.
Section 19. Rosemount Zoning Ordinance B, Section 11-4-18: Public and Institutional District is
hereby amended as follows:
B. Permitted Uses:
Small Wireless Facilities within Right-of-Way, subject to the regulations contained in Title 4,
Chapter 2 of this code.
Section 20. Rosemount Zoning Ordinance B, Section 11-4-20: Industrial Park District is hereby
amended as follows:
B. Permitted Uses:
Small Wireless Facilities within Right-of-Way, subject to the regulations contained in Title 4,
Chapter 2 of this code.
Section 21. EFFECTIVE DATE. This Ordinance shall be in full force and effect from and
after its passage and publication according to law.
ENACTED AND ORDAINED into an Ordinance this 21st day of November, 2017.
CITY OF ROSEMOUNT
________
William H. Droste, Mayor
ATTEST:
Clarissa Hadler, City Clerk
Published in the Rosemount Town Pages this ____ day of __________, 2017.
CITY OF ROSEMOUNT
COUNTY OF DAKOTA
STATE OF MINNESOTA
ORDINANCE NO. 2017 -
AN ORDINANCE TO AMEND TITLE 4, CHAPTER 2 OF THE CITY CODE TO
REGULATE SMALL WIRELESS FACILITIES WITHIN PUBLIC RIGHTS-OF-WAY
THE CITY COUNCIL OF THE CITY OF ROSEMOUNT, MINNESOTA ORDAINS
AS FOLLOWS:
Section 1. Title 4, Chapter 2 of the Rosemount City Code is amended as follows
4-2-1: FINDINGS, PURPOSE, AND INTENT:
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 strives to keep its rights of way in a state of good repair and free from
unnecessary encumbrances.
Accordingly, the city hereby enacts this chapter relating to right of way 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 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.
This chapter shall be interpreted consistently with 1997 session laws, chapter 123, substantially codified in
Minnesota statutes, sections 237.16, 237.162, 237.163, 237.79, 237.81, and 238.086 (the "act") and 2017 Session
Laws, Chapter 94 amending 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 through 7819.9950
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. (Ord. XI.30, 12-4-2007, eff. 1-1-2008)
4-2-2: ELECTION TO MANAGE THE PUBLIC RIGHTS OF WAY:
Pursuant to the authority granted to the city under state and federal statutory, administrative and common law, the
city hereby elects, pursuant to Minnesota statutes 237.163, subdivision 2(b), to manage rights of way within its
jurisdiction. (Ord. XI.30, 12-4-2007, eff. 1-1-2008)
4-2-3: DEFINITIONS:
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.
ABANDONED FACILITY: 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.
APPLICANT: Any person requesting permission to excavate or obstruct a right of way.
CITY: The city of Rosemount, Minnesota. For purposes of section 4-2-27 of this chapter, "city" means its elected
officials, officers, employees and agents.
COLLOCATE OR COLLOCATION. 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.
COMMISSION: The state public utilities commission.
CONGESTED RIGHT OF WAY: 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
Minnesota statutes, section 216D.04, subdivision 3, over a continuous length in excess of five hundred feet (500').
CONSTRUCTION PERFORMANCE BOND: Any of the following forms of security provided at permittee's
option:
A. Individual project bond;
B. Cash deposit;
C. Security of a form listed or approved under Minnesota statutes, section 15.73, subdivision 3;
D. Letter of credit, in a form acceptable to the city;
E. Self-bond, in a form acceptable to the city;
F. 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.
G. A permittee may submit a single bond covering all projects done by that company.
DEGRADATION: A decrease in the useful life of the right of way caused by excavation in or disturbance of the
right of way, resulting in the need to reconstruct such right of way earlier than would be required if the excavation
or disturbance did not occur.
DEGRADATION COST: Subject to Minnesota rules 7819.1100, means the cost to achieve a level of restoration,
as determined by the city at the time the permit is issued, not to exceed the maximum restoration shown in plates 1
to 13, set forth in Minnesota rules parts 7819.9900 to 7819.9950.
DEGRADATION FEE: The estimated fee established at the time of permitting by the city to recover costs
associated with the decrease in the useful life of the right of way caused by the excavation, and which equals the
degradation cost.
DELAY PENALTY: The penalty imposed as a result of unreasonable delays in right of way excavation,
obstruction, patching, or restoration as established by permit.
DEPARTMENT: The department of public works of the city.
DEPARTMENT INSPECTOR: Any person authorized by the city to carry out inspections related to the
provisions of this chapter.
EMERGENCY: A condition that: a) poses a danger to life or health or of a significant loss of property; or b)
requires immediate repair or replacement of facilities in order to restore service to a customer.
EQUIPMENT: Any tangible asset used to install, repair, or maintain facilities in any right of way.
EXCAVATE: To dig into or in any way remove or physically disturb or penetrate any part of a right of way.
EXCAVATION PERMIT: The permit that, pursuant to this chapter, must be obtained before a person may
excavate in a right of way. An excavation permit allows the holder to excavate that part of the right of way
described in such permit.
EXCAVATION PERMIT FEE: Money paid to the city by an applicant to cover the costs as provided in section
4-2-11 of this chapter.
FACILITY OR FACILITIES: Any tangible asset in the right of way required to provide utility service.
FIVE YEAR PROJECT PLAN: Shows projects adopted by the city for construction within the next five (5) years.
HIGH DENSITY CORRIDOR: 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.
HOLE: An excavation in the pavement, with the excavation having a length less than the width of the pavement.
LOCAL REPRESENTATIVE: A local person or persons, or designee of such person or persons, authorized by a
registrant to accept service and to make decisions for that registrant regarding all matters within the scope of this
chapter.
MANAGEMENT COSTS: 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; Minnesota statutes, section 237.162 or 237.163; or any ordinance enacted under those sections,
or the city fees and costs related to appeals taken pursuant to section 4-2-29 of this chapter.
OBSTRUCT: 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.
OBSTRUCTION PERMIT: The permit that, pursuant to this chapter, must be obtained before a person may
obstruct a right of way, allowing the holder to hinder free and open passage over the specified portion of that right
of way, for the duration specified therein.
OBSTRUCTION PERMIT FEE: Money paid to the city by a permittee to cover the costs as provided in section
4-2-11 of this chapter.
PATCH OR PATCHING: A method of pavement replacement that is temporary in nature. A patch consists of: a)
the compaction of the subbase and aggregate base, and b) the replacement, in kind, of the existing pavement for a
minimum of two feet (2') 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 (5) year project plan.
PAVEMENT: 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.
PERMIT: Has the meaning given "right of way permit" in Minnesota statutes, section 237.162.
PERMITTEE: Any person to whom a permit to excavate or obstruct a right of way has been granted by the city
under this chapter.
PERSON: 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.
PUBLIC RIGHT OF WAY OR RIGHT-OF-WAY : The area on, below, or above a public roadway, highway,
street, cartway, bicycle lane 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. A right of way does not include the airwaves above a right
of way with regard to cellular or other nonwire telecommunications or broadcast service.
REGISTRANT: Any person who: a) has or seeks to have its equipment or facilities located in any right of way, or
b) in any way occupy or uses, or seeks to occupy or use, the right of way or place its facilities or equipment in the
right of way.
RESTORATION COST: 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.
RESTORE OR RESTORATION: 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.
RIGHT OF WAY PERMIT: Either the excavation permit or the obstruction permit, or both, depending on the
context, required by this chapter.
RIGHT OF WAY USER: A. A telecommunications right of way user as defined by Minnesota statutes, section
237.162, subdivision 4; or B. 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.
SERVICE LATERAL: An underground facility that is used to transmit, distribute, or furnish gas, electricity,
communications, or 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.
SERVICE OR UTILITY SERVICE: Includes: a) those services provided by a public utility as defined in
Minnesota statutes 216B.02, subdivisions 4 and 6; b) services of a telecommunications right of way user, including
transporting of voice or data information; c) services of a cable communications systems as defined in Minnesota
statutes, chapter 238; d) natural gas or electric energy or telecommunications services provided by the city; e)
services provided by a cooperative electric association organized under Minnesota statutes, chapter 308A; and f)
water, and sewer, including service laterals, steam, cooling or heating services.
SMALL WIRELESS FACILITY. A wireless facility that meets both of the following qualifications:
A. each antenna is located inside an enclosure of no more than six cubic feet in volume or could fit within
such an enclosure; and
B. all other wireless equipment associated with the small wireless facility provided such equipment 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.
SUPPLEMENTARY APPLICATION: 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.
TELECOMMUNICATIONS RIGHT OF WAY USER: 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 Minnesota statutes, chapter 238, and
telecommunication activities related to providing natural gas or electric energy services, a public utility as defined in
Minnesota statutes, section 216B.02, a municipality, a municipal gas or power agency organized under Minnesota
statutes, chapters 453 and 453A, or a cooperative electric association organized under Minnesota statutes, chapter
308A, are not telecommunications right of way users for purposes of this chapter except to the extent such entity
is offering wireless service.
TEMPORARY SURFACE: 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 (2) year plan, in which case it is considered full restoration.
TRENCH: An excavation in the pavement, with the excavation having a length equal to or greater than the width
of the pavement.
TWO YEAR PROJECT PLAN: Shows projects adopted by the city for construction within the next two (2) years.
(Ord. XI.30, 12-4-2007, eff. 1-1-2008)
UTILITY POLE. A pole that is used in whole or in part to facilitate telecommunications or electric service.
WIRELESS FACILITY. 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.
WIRELESS SERVICE. 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 Communications Act of 1934, as amended,
including cable service.
WIRELESS SUPPORT STRUCTURE. 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.
4-2-4: ADMINISTRATION:
The city engineer is the principal city official responsible for the administration of the rights of way, right of way
permits, and the ordinances related thereto. The city engineer may delegate any or all of the duties hereunder.
(Ord. XI.30, 12-4-2007, eff. 1-1-2008)
4-2-5: REGISTRATION AND RIGHT OF WAY OCCUPANCY:
A. Registration: Each person who occupies or uses, or seeks to occupy or use, the right of way or place any
equipment or facilities in or on the right of way, including persons with installation and maintenance
responsibilities by lease, sublease or assignment, must register with the city. Registration will consist of
providing application information and paying a registration fee.
B. Registration Prior To Work: No person may construct, install, repair, remove, relocate, or perform any other
work on, or use any facilities or any part thereof, in any right of way without first being registered with the
city.
C. Exceptions: Nothing herein shall be construed to repeal or amend the provisions of a city ordinance
permitting persons to plant or maintain boulevard plantings or gardens in the area of the right of way between
their property and the street curb. Persons planting or maintaining boulevard plantings or gardens shall not be
deemed to use or occupy the right of way, and shall not be required to obtain any permits or satisfy any other
requirements for planting or maintaining such boulevard plantings or gardens under this chapter. However,
nothing herein relieves a person from complying with the provisions of the Minnesota statutes, chapter 216D,
Gopher One Call law or other provisions of this code. (Ord. XI.30, 12-4-2007, eff. 1-1-2008)
4-2-6: REGISTRATION INFORMATION:
A. Information Required: The information provided to the city at the time of registration shall include, but not be
limited to:
1. Each registrant's name, Gopher One Call registration certificate number, address and e-mail address, if
applicable, and telephone and facsimile numbers.
2. The name, address and e-mail address, if applicable, and telephone and facsimile numbers of a local
representative. The local representative or designee shall be available in person or by telephone at all
times. Current information regarding how to contact the local representative in an emergency shall be
provided at the time of registration.
3. A certificate of insurance or self-insurance:
a. Verifying that an insurance policy has been issued to the registrant by an insurance company licensed
to do business in the state of Minnesota, or a form of self-insurance acceptable to the city;
b. Verifying that the registrant is insured against claims for personal injury, including death, as well as
claims for property damage arising out of the: 1) use and occupancy of the right of way by the
registrant, its officers, agents, employees and permittees, and 2) placement and use of facilities and
equipment in the right of way by the registrant, its officers, agents, employees and permittees,
including, but not limited to, protection against liability arising from completed operations, damage of
underground facilities and collapse of property;
c. Naming the city as an additional insured as to whom the coverages required herein are in force and
applicable and for whom defense will be provided as to all such coverages;
d. Requiring that the city be notified thirty (30) days in advance of cancellation of the policy or material
modification of a coverage term; and
e. Indicating comprehensive liability coverage, automobile liability coverage, workers' compensation and
umbrella coverage established by the city in amounts sufficient to protect the city and the public and to
carry out the purposes and policies of this chapter.
4. The city may require a copy of the actual insurance policies.
5. If the person is a corporation, a copy of the certificate is required to be filed under Minnesota statutes
300.06 as recorded and certified to by the secretary of state.
6. A copy of the person's order granting a certificate of authority from the Minnesota public utilities
commission or other authorization or approval from the applicable state or federal agency to lawfully
operate, where the person is lawfully required to have such authorization or approval from said
commission or other state or federal agency.
7. An updated and current plat or drawing showing the location of all existing underground utilities and
appurtenances located within state highways, county roads, city streets, alleys, public grounds and
easements.
B. Notice Of Changes: The registrant shall keep all of the information listed above current at all times by
providing to the city information as to changes within fifteen (15) days following the date on which the
registrant has knowledge of any change. (Ord. XI.30, 12-4-2007, eff. 1-1-2008)
4-2-7: REPORTING OBLIGATIONS:
A. Operations: Each registrant shall, at the time of registration and by March 1 of each year, file a construction
and major maintenance plan for underground facilities with the city. Such plan shall be submitted using a
format designated by the city and shall contain the information determined by the city to be necessary to
facilitate the coordination and reduction in the frequency of excavations and obstructions of rights of way.
The plan shall include, but not be limited to, the following information:
1. The locations and the estimated beginning and ending dates of all projects to be commenced during the
next calendar year (in this section, a "next year project"); and
2. To the extent known, the tentative locations and estimated beginning and ending dates for all projects
contemplated for the five (5) years following the next calendar year (in this section, a "5 year project").
The term "project" in this section shall include both next year projects and five (5) year projects.
By March 1 April 1of each year, the city will have available for inspection in the city's office a composite
list of all projects of which the city has been informed of the annual plans. All registrants are responsible
for keeping themselves informed of the current status of this list.
Thereafter, by May 1 March 1, each registrant may change any project in its list of next year projects, and
must notify the city and all other registrants of all such changes in said list. Notwithstanding the
foregoing, a registrant may at any time join in a next year project of another registrant listed by the other
registrant.
B. Additional Next Year Projects: Notwithstanding the foregoing, the city will not deny an application for a right
of way permit for failure to include a project in a plan submitted to the city if the registrant has used
commercially reasonable efforts to anticipate and plan for the project. (Ord. XI.30, 12-4-2007, eff. 1-1-2008)
4-2-8: PERMIT REQUIREMENT:
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
permit from the city to do so.
1. Excavation Permit: An excavation 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 Permit: An obstruction 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 obstruction permit is not required if a person already
possesses a valid excavation permit for the same project.
3. Small Wireless Facility Permit. A small wireless facility permit is required by a registrant to erect or install
a wireless support structure, to collocate 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.
B. Permit Extensions: No person may excavate or obstruct the right of way beyond the date or dates specified in
the permit unless: 1) such person makes a supplementary application for another right of way permit before
the expiration of the initial permit, and 2) a new permit or permit extension is granted.
C. Delay Penalty: In accordance with Minnesota rule 7819.1000, subdivision 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. The delay penalty shall be established from time to time by
city council resolution.
D. 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. (Ord. XI.30, 12-4-2007, eff. 1-
1-2008)
4-2-9: PERMIT APPLICATIONS:
Application for a permit is made to the city. The city requires a digital image file (pdf, jpg, etc.) and three (3) hard
copies of the plan for the permit. Right of way permit applications shall contain, and will be considered complete
only upon compliance with, the requirements of the following provisions:
A. Registration with the city pursuant to this chapter.
B. 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.
C. 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.
D. Payment of disputed amounts due the city by posting security or depositing in an escrow account an amount
equal to at least one hundred ten percent (110%) of the amount owing.
E. Posting an additional or larger construction performance bond for additional facilities when applicant requests
an excavation permit to install additional facilities and the city deems the existing construction performance
bond inadequate under applicable standards. (Ord. XI.30, 12-4-2007, eff. 1-1-2008)
4-2-10: ISSUANCE OF PERMIT; CONDITIONS:
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. (Ord. XI.30, 12-4-2007, eff. 1-1-2008)
C. Small Wireless Facility Conditions. In addition to subdivision B, the erection or installation of a wireless
support structure, the collocation 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 collocated 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. A small wireless facility must utilize an existing support structure within the right-of-way unless the
applicant can demonstrate that the proposed small wireless facility cannot achieve the requested
capacity/coverage on an existing structure.
5. 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.
a. A new wireless support structure must be a minimum of 500 feet from an existing small wireless
facility or wireless support structure. A lesser distance may be approved by the City upon
demonstration of the need for an additional facility due to a coverage/capacity issue.
6. Where an applicant proposes collocation 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.
7. 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. Small Wireless Facility Agreement. A small wireless facility shall only be collocated 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 collocation agreement with the city. The standard collocation
agreement may require payment of the following:
1. Up to $150 per year for rent to collocate on the city structure.
2. $25 per year for maintenance associated with the collocation;
3. A monthly fee for electrical service as follows:
a. $73 per radio node less than or equal to 100 maximum watts;
b. $182 per radio node over 100 maximum watts; or
c. The actual costs of electricity, if the actual cost exceed the foregoing.
The standard collocation agreement shall be in addition to, and not in lieu of, the required small wireless
facility permit, provided, however, that the applicant shall not be additionally required to obtain a license or
franchise in order to collocate. Issuance of a small wireless facility permit does not supersede, alter or affect
any then-existing agreement between the city and applicant,
4-2-10.5: ACTION ON SMALL WIRELESS FACILITY PERMIT APPLICATIONS:
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. An applicant may file a consolidated small wireless facility permit application
addressing the proposed collocation of up to 15 small wireless facilities, or a greater number if agreed to by a
local government unit, provided that all small wireless facilities in the application:
1. are located within a two-mile radius;
2. consist of substantially similar equipment; and
3. are to be placed on similar types of wireless support structures.
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 90-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 the application. Upon submission of additional
documents or information, the city shall have ten 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.
4-2-11: PERMIT FEES:
A. Excavation Permit Fee: The city shall impose an excavation permit fee in an amount sufficient to recover the
following costs:
1. The city management costs;
2. Degradation costs, if applicable.
B. Obstruction Permit Fee: The city shall impose an obstruction permit fee and shall be in an amount sufficient
to recover the city management costs.
C. Subd. 3. Small Wireless Facility Permit Fee. The city shall impose a small wireless facility permit fee in an
amount sufficient to recover:
1. management costs, and;
2. city engineering, make-ready, and construction costs associated with collocation of small wireless facilities.
D. 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 thirty (30) days of
billing.
E. Nonrefundable: Permit fees that were paid for a permit that the city has revoked for a breach as stated in
section 4-2-21 of this chapter are not refundable.
F. 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.
G. Fee Resolution: Fees will be set from time to time by resolution by city council. (Ord. XI.30, 12-4-2007, eff. 1-
1-2008)
4-2-12: PATCHING AND RESTORATION:
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 section 4-2-15 of this chapter or if the permittee is granted a
new permit or extension.
B. Patch And Restoration: 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, permittee shall pay the costs thereof within thirty
(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 thirty (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 rule 7819.3000.
3. Degradation Fee In Lieu Of Restoration: In lieu of right of way restoration, a right of way user may elect
to pay a degradation fee. However, the right of way user shall remain responsible for patching and the
degradation fee shall not include the cost to accomplish these responsibilities.
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 rule 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 (5) working
days of the receipt of the notice from the city (or such longer period as is specified by the city in the notice),
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 section 4-2-15 of this chapter.
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 thirty (30) days of billing,
the cost of restoring the right of way. If permittee fails to pay as required, the city may exercise its rights under
the construction performance bond. (Ord. XI.30, 12-4-2007, eff. 1-1-2008)
4-2-13: JOINT APPLICATIONS:
A. Joint Application: Registrants may jointly apply for permits to excavate or obstruct the right of way at the
same place and time.
B. Shared Fees: Registrants 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, registrants must agree among themselves as to the portion each will pay and indicate the same on their
applications.
C. With City Projects: Registrants who join in a scheduled obstruction or excavation performed by the city,
whether it is a joint application by two (2) 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 is still required. (Ord.
XI.30, 12-4-2007, eff. 1-1-2008)
4-2-14: SUPPLEMENTARY APPLICATIONS:
A. Limitation On Area: A right of way 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 that determines that an area greater than that specified in the permit must be obstructed or
excavated must before working in that greater area: 1) make application for a permit extension and pay any
additional fees required thereby, and 2) be granted a new permit or permit extension.
B. Limitation On Dates: A right of way 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. (Ord. XI.30, 12-4-2007, eff. 1-1-2008)
4-2-15: OTHER OBLIGATIONS:
A. Compliance With Other Laws: Obtaining a right of way permit does not relieve 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, Minnesota statutes, section 216D.01 through .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
Minnesota statutes, 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. (Ord. XI.30, 12-4-
2007, eff. 1-1-2008)
4-2-16: DENIAL OR REVOCATION OF PERMIT:
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 or when
necessary to protect the right of way and its current use. (Ord. XI.30, 12-4-2007, eff. 1-1-2008)
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.
4-2-17: INSTALLATION REQUIREMENTS:
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,
insofar as they are not inconsistent with the Minnesota statutes, sections 237.162 and 237.163. Installation of
service laterals shall be performed in accordance with Minnesota rules chapter 7560 and this code. 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 subsection 4-2-22B of this chapter. Utility companies must install dual mains in
all new projects.
All traffic control will comply with the latest "Mn/DOT Field Traffic Control Manual". (Ord. XI.30, 12-4-2007,
eff. 1-1-2008)
4-2-18: INSPECTION:
A. Notice Of Completion: When the work under any permit hereunder is completed, the permittee shall furnish a
completion certificate in accordance with Minnesota rule 7819.1300.
B. Site Inspection: 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.
C. Authority Of Director:
1. At the time of inspection, the director may order the immediate cessation of any work that poses a serious
threat to the life, health, safety or well-being of the public.
2. The director 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 ten (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 director may revoke the permit pursuant to section 4-2-21 of
this chapter. (Ord. XI.30, 12-4-2007, eff. 1-1-2008)
4-2-19: WORK DONE WITHOUT A PERMIT:
A. Emergency Situations: Each registrant shall immediately notify the director of any event regarding its facilities
that it considers to be an emergency. The registrant must 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 (2) business days after the occurrence of the emergency, the registrant 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.
The permittee requirements shall not apply if the repair is caused by another permittee's work in the right of
way.
If the city becomes aware of an emergency regarding a registrant's facilities, the city will attempt to contact the
local representative of each registrant 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 registrant 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 double the normal fee for said permit, pay double all the other fees required by this code, deposit with the
city the fees necessary to correct any damage to the right of way, and comply with all of the requirements of
this chapter. (Ord. XI.30, 12-4-2007, eff. 1-1-2008)
4-2-20: SUPPLEMENTARY NOTIFICATION:
If the obstruction or excavation of the right of way begins later or ends sooner than the date given on the permit,
permittee shall notify the city of the accurate information as soon as this information is known. (Ord. XI.30, 12-4-
2007, eff. 1-1-2008)
4-2-21: REVOCATION OF PERMITS:
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 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; or
5. The failure to correct, in a timely manner, work that does not conform to a condition indicated on an
order issued pursuant to section 4-2-18 of this chapter.
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 five (5) working days of receiving notification of the breach, permittee
shall provide the city with a plan, acceptable to the city, that will cure the breach. Permittee's failure to so
contact the city, or permittee's failure to timely submit an acceptable plan, or permittee's failure to reasonably
implement the approved plan, shall be cause for immediate revocation of the permit.
D. 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 attorney fees and other
consultant fees incurred in connection with such revocation. (Ord. XI.30, 12-4-2007, eff. 1-1-2008)
4-2-22: MAPPING DATA:
A. Information Required: Each registrant and permittee shall provide mapping information required by the city in
accordance with Minnesota rules 7819.4000 and 7819.4100. Within one calendar year following completion of
any work pursuant to a permit, the permittee shall provide the director accurate maps or drawings certifying
the "as built" location of all equipment installed, owned and maintained by the permittee in both digital and
hard copy. As built drawings shall be submitted in the following three (3) forms:
1. Digital: CAD or GIS (dwg or shp).
2. Digital: Image file (pdf, jpg, etc.).
3. Hard copy.
Such maps or 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 director. Failure to provide maps or drawings pursuant to this subsection shall be grounds for
revoking the permit holder's registration.
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, subpart 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 director reasonably requires it. Permittees or their subcontractors shall submit to the
director evidence satisfactory to the director 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 Minnesota statutes, chapter 429,
and 2) city approval of performance under development agreements, or other subdivision or site plan approval
under Minnesota statutes, chapter 462. The director 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 for future permits to the
offending permittee or its subcontractors.
C. As Builts: As builts will be required in hard copy and electronically if the project permitted deviates two feet
(2') or more from the original plans submitted to the city. Failure to submit an as built will be a certification by
the permittee that the project as constructed does not deviate two feet (2') or more from the original plan
submitted. (Ord. XI.30, 12-4-2007, eff. 1-1-2008)
4-2-23: LOCATION AND RELOCATION OF FACILITIES:
A. Compliance: 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 cities.
B. Corridors: 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.
Any registrant 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 in writing 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 registrant.
C. Nuisance: One year after the passage of this chapter, any unregistered facilities that are found in the right of
way and that are required by this chapter to be registered shall be deemed to be a nuisance. The city may
exercise any remedies or rights it has at law or in equity, including, but not limited to, abating the nuisance or
taking possession of the facilities and restoring the right of way to a usable condition.
D. Limitation Of Space: To protect health, safety, and welfare, 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 that have been determined to be in the public interest.
(Ord. XI.30, 12-4-2007, eff. 1-1-2008)
4-2-24: PREEXCAVATION FACILITIES LOCATION:
In addition to complying with the requirements of Minnesota statutes 216D.01 through .09 ("one call excavation
notice system") before the start date of any right of way excavation, each registrant who has facilities or equipment
in the area to be excavated shall mark the horizontal and the approximate vertical placement (or assumed vertical
placement if accurate data is not available) of all said facilities. Any registrant whose facilities are less than twenty
inches (20") 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. (Ord. XI.30, 12-4-2007, eff. 1-1-
2008)
4-2-25: DAMAGE TO OTHER FACILITIES:
The provisions of Minnesota statutes 216D shall apply to all situations involving damages to facilities during
excavation operations. Each registrant shall be responsible for the cost of repairing or the value of damage to any
facilities in the right of way that it or its facilities damage. This provision includes costs for damages to boulevard
amenities, such as trees, landscaping, irrigation systems and invisible fences, placed by property owners. It is the
registrant's responsibility to provide immediate notice of such damages to the affected property owners. Each
registrant shall be responsible for the cost of repairing any damage to the facilities of another registrant caused
during the city's response to an emergency occasioned by that registrant's facilities. (Ord. XI.30, 12-4-2007, eff. 1-
1-2008)
4-2-26: VACATION:
If the city vacates a right of way that contains the facilities of a registrant, the registrant's rights in the vacated right
of way are governed by Minnesota rules 7819.3200. (Ord. XI.30, 12-4-2007, eff. 1-1-2008)
4-2-27: INDEMNIFICATION AND LIABILITY:
By registering with the city, or by accepting a permit under this chapter, a registrant or permittee agrees to defend
and indemnify the city in accordance with the provisions of Minnesota rule 7819.1250. (Ord. XI.30, 12-4-2007, eff.
1-1-2008)
4-2-28: ABANDONED AND UNUSED FACILITIES:
A. Discontinued Operations: A registrant who has determined to discontinue all or a portion of its operations in
the city must provide information satisfactory to the city that the registrant's obligations for its facilities in the
right of way under this chapter have been lawfully assumed by another registrant.
B. Removal: Any registrant 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. (Ord. XI.30, 12-4-2007, eff. 1-1-2008)
4-2-29: APPEAL:
A right of way user that: a) has been denied registration; b) has been denied a permit; c) has had a permit revoked;
d) believes that the fees imposed are not in conformity with Minnesota statutes, section 237.163, subdivision 6; or
e) disputes a determination of the director regarding subsection 4-2-22B 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 within forty five (45) days of receipt, 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. (Ord. XI.30, 12-4-2007, eff. 1-1-2008)
4-2-30: SEVERABILITY:
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. (Ord. XI.30, 12-4-2007, eff. 1-1-2008)
4-2-31: WAIVER:
The city may waive any or all requirements of sections 4-2-5, 4-2-6, 4-2-7, 4-2-8, 4-2-9, 4-2-10, 4-2-11 and 4-2-22
of this chapter if compliance is not deemed reasonably necessary in the discretion of the city administrator or the
administrator's designee, to serve the purposes of this chapter. The decision of the administrator not to waive any
such requirements is not subject to appeal to the city council. Waiver of the provisions of sections 4-2-5, 4-2-6, 4-
2-7 and 4-2-22 of this chapter may be rescinded by the city administrator at any time upon written notice to the
person subject to the requirement. (Ord. XI.30, 12-4-2007, eff. 1-1-2008)
4-2-32: FRANCHISE REQUIRED:
After May 27, 2005, no permits will be issued for installation of gas pipes and mains to entities that do not hold a
current franchise from the city. This prohibition does not apply to installation of gas transmission mains that are
not designed, intended or used for local service or local distribution, or to installation of gas pipes and mains to
serve areas of the city to which existing gas franchisees cannot or will not extend service. (Ord. XI.30, 12-4-2007,
eff. 1-1-2008)
Section 2. EFFECTIVE DATE. This Ordinance shall be in full force and effect from and after
its passage and publication according to law.
[Underlined material is new. Stricken material is deleted.]
ENACTED AND ORDAINED into an Ordinance this 21st day of November, 2017.
CITY OF ROSEMOUNT
______________________
William H. Droste, Mayor
ATTEST:
Clarissa Handler, City Clerk
Published in the Rosemount Town Pages the ____ day of _______________, 2017.
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Kennedy Offices in
Minneapolis
Saint Paul
St. Cloud
470 U.S. Bank Plaza
200 South Sixth Street
Minneapolis MN 55402
(612) 337-9300 telephone
(612) 337-9310 fax
www.kennedy-graven.com
Affirmative Action Equal Opportunity Employer
Graven
CHARTERED
MEMORANDUM
TO: Clients
FROM: Bob Vose, Jim Strommen, and Andrew Biggerstaff
DATE: July 19, 2017
RE: Right-of-Way (“ROW”) Ordinance Amendments; Small Wireless Facilities
Attached to this memorandum are the proposed amendments to the League of Cities
Model (“ROW”) Ordinance that is likely to be substantially similar to your city’s ROW
ordinance – but not identical. Therefore, each city must conform the changes we
provide to its ROW ordinance.
The ROW Ordinance amendments incorporate verbatim or slightly modified language
from Minnesota Statutes, Sections 237.162 and 237.163 (“Act”) as expanded in the
2017 Legislative Session to allow the deployment of “small wireless facilities” in the
ROW. We have also included the Session law changes to the Act, and reference the
statutory cite in the ROW Ordinance amendments.
As you know, state law gives “telecommunications right of way users” the right to install
facilities in the ROW and use the ROW for the delivery of their services. This right is
subject to local governmental authority to manage the ROW by permitting. Local
governments must affirmatively elect to manage the ROW by adopting a ROW
ordinance, and we assume that your city has previously opted to utilize the Act, as
required under Section 237.163, subd. 2 (b). Under such ROW ordinances, use of the
ROW may be conditioned or denied if necessary to protect public health, safety, or
welfare, and that broad protection remains applicable to small wireless facilities.
Moreover, many of the Minnesota Rules governing utility ROW use found in Minn. R.
ch. 7819 will apply to small wireless facilities.
It is important to note that the 2017 Session Law amendments were the product of
negotiations between wireless and cable industry representatives, representatives of
municipalities and organizations including the League – much of it at the end of the
Session. So while our recommended changes attempt to “track” the resulting statutory
amendments closely to avoid future disputes, in some cases, the statutory amendments
are ambiguous or unclear. Thus, some of our recommended changes reflect our
interpretation regarding the scope of municipal authority the legislature has granted vis-
à-vis “small wireless facilities.” For questions, please contact Bob Vose (612-337-9275),
Jim Strommen (612-337-9233) or Andrew Biggerstaff (612-337-9276).
&
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Summary of Statutory Amendments Re: Small
Wireless Facility Deployment in the Right-of-Way
1. Governed by Minnesota ROW Law
The term “telecommunications right-of-way user” has now been amended to include
persons deploying facilities to provide “wireless service,” a newly defined term. This and
other changes generally entitle wireless providers to use ROW.
• Wireless providers may deploy a “small wireless facility” or a “wireless support
structure” in the ROW. These are both newly defined terms.
o In order to be “small,” the proposed deployment must meet statutorily-limited
size requirements- each antenna must be no more than six cubic feet, and all
associated equipment, excluding certain types of equipment (back-up
generator, for example), must either be concealed or less than 28 cubic feet.
o In order to be an authorized support structure, any proposed new pole cannot
exceed the littlest of 50 feet or 10 feet above an existing pole that is being
replaced unless the LGU allows a greater height.
• LGUs may deny permits for new small cell facilities or wireless support structures
based on reasonable health, welfare and safety concerns.
• One of the wireless industry’s primary goals was to require that poles or similar
structures owned by the LGU in the ROW (light poles, for example) be made
available for the attachment of small wireless facilities. The new amendments,
however, do not make all LGU-improvements in the ROW a part of the ROW
available for private use. The law instead expressly allows an LGU to determine
whether a particular pole or other structure in the ROW was designed to support
proposed wireless equipment or is capable of doing so. The LGU may deny a
wireless provider access to a particular facility based on this determination or other
public health, safety or welfare concerns.
• An LGU may also condition a permit on health, welfare and safety concerns, on
“reasonable accommodations for decorative wireless support structures or signs,” or
upon “any reasonable restocking, replacement, or relocation requirements” for a new
wireless support structure in the ROW.
• LGUs may also impose separation requirements (distance minimums) between new
poles or other wireless support structures.
• Municipal electric utility poles and facilities are exempt from the bill. About 125 cities
have municipal utilities.
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2. Zoning
• Another primary industry goal was to require that small wireless facilities be made a
Permitted use in all ROWs regardless of the underlying zoning district in which the
ROW is located. The statutory amendments make small wireless facilities and
associated wireless support structures a permitted use in all ROWs, but LGUs may
make such facilities or structures a special or conditional use in ROW located “in a
district or area zoned for single-family residential use or within a historic district.”
• LGUs are prohibited from adopting a moratorium on the processing and issuance of
small wireless facility permits. This provision is effective immediately except that it
becomes effective on January 1, 2018 for any LGU that had not enacted a ROW
ordinance as of May 18, 2017.
3. Application Process
• LGUs may require permits for placement of new wireless structures or collocation of
small wireless facilities in the ROW.
• An LGU has 90 days to issue or deny a permit. The failure to timely act results in the
permit being “deemed approved” and “the permit is automatically issued.” The
deadline can be extended for 30 days if:
o the LGU receives applications for 30 or more sites within a 7 day period, or:
o The application is incomplete and the LGU delineates the missing information
within 30 days of receipt.
Written notice of any extension must be provided to the applicant.
• Applicants may file up to 15 permit applications simultaneously as long as the
requested sites are within a 2 mile radius, consist of substantially similar equipment,
and are to be placed on similar structures. LGUs may approve or deny applications
individually or collectively.
• A denial must be in writing and state the basis for denial. The LGU must notify the
applicant in writing within 3 business days of the decision. The applicant may cure
the deficiencies noted and reapply. If such re-application is made within 30 days of
denial no additional fee may be imposed and a further decision must be made within
30 days of receipt.
• LGUs may not require wireless providers to supply information provided in an earlier
application for a small wireless facility if such info is specifically referenced in the
current application. LGUs also may not require information “not reasonably
necessary to review a permit application for compliance with generally applicable
and reasonable health, safety, and welfare regulations” or demonstrate compliance
4
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with applicable FCC regulations “governing radio frequency exposure,” or otherwise
demonstrate compliance with the new law.
4. Rent and Fees
• The wireless industry’s most important goal was to obtain the right to use LGU-
owned facilities in the ROW for little or no rent. The legislature did not agree,
however, and the new amendments allow the imposition of rent of up to $150
annually, plus $25 for maintenance, for each site. Additional fees may be imposed if
the wireless provider uses LGU-purchased electricity rather than separately
metering. This payment arrangement would presumably be reflected in an
attachment agreement governing the provider’s attachments to the LGU’s facilities.
• LGUs remain entitled to recover ROW management costs, a defined term, from
wireless providers using the ROW via permit fees. However, “unreasonable fees of a
third-party contractor” cannot be recovered. Such fees barred as unreasonable
include “any third-party contractor fee tied to or based upon customer counts,
access lines, revenue generated by the telecommunications right-of-way user, or
revenue generated for a local government unit.”
5. NO PUC Rules or Dispute Resolution
• The PUC has promulgated rules governing underground installation of
telecommunications and other utility infrastructure in the ROW. The PUC is
authorized to administratively adjudicate disputes arising out of an LGU’s
interpretation or application of these rules.
The new amendments do not explicitly authorize the PUC to promulgate new rules
regarding installation of wireless facilities in the ROW including, particularly, how
attachments to LGU facilities must be made. Thus, we do not believe that the PUC
will have any adjudicative role regarding wireless installations in ROW , as it does
involving the ROW users established in the original Act.
• LGUs are authorized to require separate agreements with wireless providers
governing attachments to the LGU’s poles or other facilities. The new law provides:
No later than six months after the effective date of this act or three months after
receiving a small wireless facility permit application from a wireless service
provider, a local government unit that has elected to set forth terms and
conditions of collocation in a standard small wireless facility collocation
agreement shall develop and make available an agreement that complies with
the requirements of this section and section 237.162. A standard small wireless
facility collocation agreement shall be substantially complete….
We understand that the League is working on a template agreement which will be made
readily available on the League’s website.
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Steps Required to Implement New Law
The work our clients will need to do to accommodate the new small cell wireless law
depends, in part, on the terms of the local ROW ordinance, zoning provisions, ROW
application process, and standard practices. But it is apparent that a number of steps
will need to be taken. These likely include:
1. Amendment of the ROW ordinance to include provisions specific to the
installation of wireless facilities on existing poles or similar facilities, and
addressing the potential installation of new “wireless support structures;” i.e.
poles. (Amendments included with this document)
2. Amendment of the zoning ordinance or code to make small wireless a permitted
use in all ROW but, potentially, a conditional use in ROW located in residential
zones. (Such amendments are not included with this document)
3. Preparation of a template agreement governing attachment of wireless facilities
to municipal poles or other infrastructure in the ROW. The rent and the
maintenance fee requirements will be addressed in this template agreement.
(The League is preparing a model template agreement)
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CHAPTER 94--S.F.No. 1456
ARTICLE 9
TELECOMMUNICATIONS
Section 1.
Minnesota Statutes 2016, section 237.162, subdivision 2, is amended to read:
Subd. 2.
Local government unit.
"Local government unit" means a county, home rule charter or statutory city, or town, or
the Metropolitan Council.
EFFECTIVE DATE.
This section is effective the day following final enactment.
Sec. 2.
Minnesota Statutes 2016, section 237.162, subdivision 4, is amended to read:
Subd. 4.
Telecommunications right-of-way user.
(a) "Telecommunications right-of-way user" means a person owning or controlling a
facility in the public right-of-way, or seeking to own or control a facility in the public right-
of-way, that is used or is intended to be used for providing wireless service, or transporting
telecommunications or other voice or data information.
(b) A cable communication system defined and regulated under chapter 238, and
telecommunications activities related to providing natural gas or electric energy
services whether provided by, a public utility as defined in section 216B.02, a municipality, a
municipal gas or power agency organized under chapter 453 or 453A, or a cooperative
electric association organized under chapter 308A, are not telecommunications right-of-way
users for the purposes of this section and section 237.163, except to the extent these entities
are offering wireless services.
EFFECTIVE DATE.
This section is effective the day following final enactment.
Sec. 3.
Minnesota Statutes 2016, section 237.162, subdivision 9, is amended to read:
Subd. 9.
Management costs or rights-of-way management costs.
(a) "Management costs" or "rights-of-way management costs" means the actual costs a
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local government unit incurs in managing its public rights-of-way, and includes 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 equipment during
public 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.
(b) Management costs do not include:
(1) payment by a telecommunications right-of-way user for the use of the public right-
of-way,;
(2) unreasonable fees of a third-party contractor used by a local government unit as part
of managing its public rights-of-way, including but not limited to any third-party contractor
fee tied to or based upon customer counts, access lines, revenue generated by the
telecommunications right-of-way user, or revenue generated for a local government unit; or
(3) the fees and cost of litigation relating to the interpretation of this section or
section 237.163 or any ordinance enacted under those sections, or the local unit of
government's fees and costs related to appeals taken pursuant to section 237.163, subdivision
5.
EFFECTIVE DATE.
This section is effective the day following final enactment.
Sec. 4.
Minnesota Statutes 2016, section 237.162, is amended by adding a subdivision to read:
Subd. 10.
Collocate.
"Collocate" or "collocation" means to install, mount, maintain, modify, operate, or
replace a small wireless facility on, under, within, or adjacent to an existing wireless support
structure that is owned privately or by a local government unit.
EFFECTIVE DATE.
This section is effective the day following final enactment.
Sec. 5.
Minnesota Statutes 2016, section 237.162, is amended by adding a subdivision to read:
Subd. 11.
Small wireless facility.
"Small wireless facility" means:
(1) a wireless facility that meets both of the following qualifications:
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(i) each antenna is located inside an enclosure of no more than six cubic feet in volume
or, in the case of an antenna that has exposed elements, the antenna and all its exposed
elements could fit within an enclosure of no more than six cubic feet; and
(ii) all other wireless equipment associated with the small wireless facility, excluding
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, is in aggregate no more than 28 cubic feet in volume; or
(2) a micro wireless facility.
EFFECTIVE DATE.
This section is effective the day following final enactment.
Sec. 6.
Minnesota Statutes 2016, section 237.162, is amended by adding a subdivision to read:
Subd. 12.
Utility pole.
"Utility pole" means a pole that is used in whole or in part to facilitate
telecommunications or electric service.
EFFECTIVE DATE.
This section is effective the day following final enactment.
Sec. 7.
Minnesota Statutes 2016, section 237.162, is amended by adding a subdivision to read:
Subd. 13.
Wireless facility.
(a) "Wireless facility" means equipment at a fixed location that enables the provision of
wireless services between user equipment and a wireless service network, including:
(1) equipment associated with wireless service;
(2) a radio transceiver, antenna, coaxial or fiber-optic cable, regular and backup power
supplies, and comparable equipment, regardless of technological configuration; and
(3) a small wireless facility.
(b) "Wireless facility" does not include:
(1) wireless support structures;
(2) wireline backhaul facilities; or
(3) coaxial or fiber-optic cables (i) between utility poles or wireless support structures,
504123vVS105-3
or (ii) that are not otherwise immediately adjacent to or directly associated with a specific
antenna.
EFFECTIVE DATE.
This section is effective the day following final enactment.
Sec. 8.
Minnesota Statutes 2016, section 237.162, is amended by adding a subdivision to read:
Subd. 14.
Micro wireless facility.
"Micro wireless facility" means a small wireless facility that is no larger than 24 inches
long, 15 inches wide, and 12 inches high, and whose exterior antenna, if any, is no longer
than 11 inches.
EFFECTIVE DATE.
This section is effective the day following final enactment.
Sec. 9.
Minnesota Statutes 2016, section 237.162, is amended by adding a subdivision to read:
Subd. 15.
Wireless service.
"Wireless service" means 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 Communications Act of 1934, as amended, including a cable service under
United States Code, title 47, section 522, clause (6).
EFFECTIVE DATE.
This section is effective the day following final enactment.
Sec. 10.
Minnesota Statutes 2016, section 237.162, is amended by adding a subdivision to read:
Subd. 16.
Wireless support structure.
"Wireless support structure" means a new or existing structure in a public right-of-way
designed to support or capable of supporting small wireless facilities, as reasonably
determined by a local government unit.
EFFECTIVE DATE.
This section is effective the day following final enactment.
504123vVS105-3
Sec. 11.
Minnesota Statutes 2016, section 237.162, is amended by adding a subdivision to read:
Subd. 17.
Wireline backhaul facility.
"Wireline backhaul facility" means a facility used to transport communications data by
wire from a wireless facility to a communications network.
EFFECTIVE DATE.
This section is effective the day following final enactment.
Sec. 12.
Minnesota Statutes 2016, section 237.163, subdivision 2, is amended to read:
Subd. 2.
Generally.
(a) Subject to this section, a telecommunications right-of-way user authorized to do
business under the laws of this state or by license of the Federal Communications
Commission may construct, maintain, and operate small wireless facilities, conduit, cable,
switches, and related appurtenances and facilities along, across, upon, above, and under any
public right-of-way.
(b) Subject to this section, a local government unit has the authority to manage its public
rights-of-way and to recover its rights-of-way management costs. Except as provided in
subdivisions 3a, 3b, and 3c, the authority defined in this section may be exercised at the
option of the local government unit. The exercise of this authority and is not mandated under
this section. A local government unit may, by ordinance:
(1) require a telecommunications right-of-way user seeking to excavate or obstruct a
public right-of-way for the purpose of providing telecommunications services to obtain a
right-of-way permit to do so and to impose permit conditions consistent with the local
government unit's management of the right-of-way;
(2) require a telecommunications right-of-way user using, occupying, or seeking to use
or occupy a public right-of-way for the purpose of providing telecommunications services to
register with the local government unit by providing the local government unit with the
following information:
(i) the applicant's name, gopher state one-call registration number under
section 216D.03, address, and telephone and facsimile numbers;
(ii) the name, address, and telephone and facsimile numbers of the applicant's local
representative;
(iii) proof of adequate insurance; and
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(iv) other information deemed reasonably necessary by the local government unit for the
efficient administration of the public right-of-way; and
(3) require telecommunications right-of-way users to submit to the local government
unit plans for construction and major maintenance that provide reasonable notice to the local
government unit of projects that the telecommunications right-of-way user expects to
undertake that may require excavation and obstruction of public rights-of-way.
(c) A local government unit may also require a telecommunications right-of-way user
that is registered with the local government unit pursuant to paragraph (b), clause (2), to
periodically update the information in its registration application.
(d) Notwithstanding sections 394.34 and 462.355, or any other law, a local government
unit must not establish a moratorium with respect to:
(1) filing, receiving, or processing applications for right-of-way or small wireless
facility permits; or
(2) issuing or approving right-of-way or small wireless facility permits.
(e) A telecommunications right-of-way user may place a new wireless support structure
or collocate small wireless facilities on wireless support structures located within a public
right-of-way, subject to the approval procedures under this section and, for collocation on
wireless support structures owned by a local government unit, the reasonable terms,
conditions, and rates set forth under this section. A local government unit may prohibit,
regulate, or charge a fee to install wireless support structures or to collocate small wireless
facilities only as provided in this section.
(f) The placement of small wireless facilities and wireless support structures to
accommodate small wireless facilities are a permitted use in a public right-of-way, except
that a local government unit may require a person to obtain a special or conditional land use
permit to install a new wireless support structure for the siting of a small wireless facility in a
right-of-way in a district or area zoned for single-family residential use or within a historic
district established by federal or state law or city ordinance as of the date of application for a
small wireless facility permit. This paragraph does not apply to areas outside a public right-
of-way that are zoned and used exclusively for single-family residential use.
EFFECTIVE DATE.
This section is effective the day following final enactment, except that paragraph (d) is
effective January 1, 2018, for a local government unit that has not enacted an ordinance
regulating public rights-of-way as of May 18, 2017.
Sec. 13.
Minnesota Statutes 2016, section 237.163, is amended by adding a subdivision to read:
Subd. 3a.
Small wireless facility permits; general.
504123vVS105-3
(a) A local government unit:
(1) may require a telecommunications right-of-way user to obtain a permit or permits
under this section to place a new wireless support structure or collocate a small wireless
facility in a public right-of-way managed by the local government unit;
(2) must not require an applicant for a small wireless facility permit to provide any
information that:
(i) has previously been provided to the local government unit by the applicant in an
application for a small wireless permit, which specific reference shall be provided to the
local government unit by the applicant; and
(ii) is not reasonably necessary to review a permit application for compliance with
generally applicable and reasonable health, safety, and welfare regulations, and to
demonstrate compliance with applicable Federal Communications Commission regulations
governing radio frequency exposure, or other information required by this section;
(3) must ensure that any application for a small wireless facility permit is processed on a
nondiscriminatory basis; and
(4) must specify that the term of a small wireless facility permit is equal to the length of
time that the small wireless facility is in use, unless the permit is revoked under this section.
(b) An applicant may file a consolidated permit application to collocate up to 15 small
wireless facilities, or a greater number if agreed to by a local government unit, provided that
all the small wireless facilities in the application:
(1) are located within a two-mile radius;
(2) consist of substantially similar equipment; and
(3) are to be placed on similar types of wireless support structures.
In rendering a decision on a consolidated permit application, a local government unit may
approve a permit for some small wireless facilities and deny a permit for others, but may not
use denial of one or more permits as a basis to deny all the small wireless facilities in the
application.
(c) If a local government unit receives applications within a single seven-day period
from one or more applicants seeking approval of permits for more than 30 small wireless
facilities, the local government unit may extend the 90-day deadline imposed in subdivision
3c by an additional 30 days. If a local government unit elects to invoke this extension, it must
inform in writing any applicant to whom the extension will be applied.
(d) A local government unit is prohibited from requiring a person to pay a small wireless
facility permit fee, obtain a small wireless facility permit, or enter into a small wireless
facility collocation agreement solely in order to conduct any of the following activities:
(1) routine maintenance of a small wireless facility;
(2) replacement of a small wireless facility with a new facility that is substantially
504123vVS105-3
similar or smaller in size, weight, height, and wind or structural loading than the small
wireless facility being replaced; or
(3) installation, placement, maintenance, operation, or replacement of micro wireless
facilities that are suspended on cables strung between existing utility poles in compliance
with national safety codes.
A local government unit may require advance notification of these activities if the work will
obstruct a public right-of-way.
(e) Nothing in this subdivision affects the need for an entity seeking to place a small
wireless facility on a wireless support structure that is not owned by a local government unit
to obtain from the owner of the wireless support structure any necessary authority to place
the small wireless facility, nor shall any provision of this chapter be deemed to affect the
rates, terms, and conditions for access to or placement of a small wireless facility or a
wireless support structure not owned by a local government unit. This subdivision does not
affect any existing agreement between a local government unit and an entity concerning the
placement of small wireless facilities on local government unit-owned wireless support
structures.
(f) No later than six months after the effective date of this act or three months after
receiving a small wireless facility permit application from a wireless service provider, a local
government unit that has elected to set forth terms and conditions of collocation in a standard
small wireless facility collocation agreement shall develop and make available an agreement
that complies with the requirements of this section and section 237.162. A standard small
wireless facility collocation agreement shall be substantially complete. Notwithstanding any
law to the contrary, the parties to a small wireless facility collocation agreement may
incorporate additional terms and conditions mutually agreed upon into a small wireless
facility collocation agreement. A small wireless facility collocation agreement between a
local government unit and a wireless service provider is considered public data not on
individuals and is accessible to the public under section 13.03.
(g) An approval of a small wireless facility permit under this section authorizes the
installation, placement, maintenance, or operation of a small wireless facility to provide
wireless service and shall not be construed to confer authorization to (1) provide any service
other than a wireless service, or (2) install, place, maintain, or operate a wireline backhaul
facility in the right-of-way.
(h) The terms and conditions of collocation under this subdivision:
(1) may be set forth in a small wireless facility collocation agreement, if a local
government unit elects to utilize such an agreement;
(2) must be nondiscriminatory, competitively neutral, and commercially reasonable; and
(3) must comply with this section and section 237.162.
EFFECTIVE DATE.
This section is effective the day following final enactment.
504123vVS105-3
Sec. 14.
Minnesota Statutes 2016, section 237.163, is amended by adding a subdivision to read:
Subd. 3b.
Small wireless facility permits; placement.
(a) A local government unit may not require the placement of small wireless facilities on
any specific wireless support structure other than the wireless support structure proposed in
the permit application.
(b) A local government unit must not limit the placement of small wireless facilities,
either by minimum separation distances between small wireless facilities or maximum height
limitations, except that each wireless support structure installed in the right-of-way after the
effective date of this act shall not exceed 50 feet above ground level, unless the local
government unit agrees to a greater height, subject to local zoning regulations, and may be
subject to separation requirements in relation to other wireless support structures.
(c) Notwithstanding paragraph (b), a wireless support structure that replaces an existing
wireless support structure that is higher than 50 feet above ground level may be placed at the
height of the existing wireless support structure, unless the local government unit agrees to a
greater height, subject to local zoning regulations.
(d) Wireless facilities constructed in the right-of-way after the effective date of this act
may not extend more than ten feet above an existing wireless support structure in place as of
the effective date of this act.
EFFECTIVE DATE.
This section is effective the day following final enactment.
Sec. 15.
Minnesota Statutes 2016, section 237.163, is amended by adding a subdivision to read:
Subd. 3c.
Small wireless facility permits; approval.
(a) Except as provided in subdivision 4, a local government unit shall issue a small
wireless facility permit to a telecommunications right-of-way user seeking to install a new or
replacement wireless support structure for a small wireless facility, or to collocate a small
wireless facility on a wireless support structure in a public right-of-way. In processing and
approving a small wireless facility permit, a local government unit may condition its
approval on compliance with:
(1) generally applicable and reasonable health, safety, and welfare regulations consistent
with the local government unit's public right-of-way management;
(2) reasonable accommodations for decorative wireless support structures or signs; and
(3) any reasonable restocking, replacement, or relocation requirements when a new
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wireless support structure is placed in a public right-of-way.
(b) A local government unit has 90 days after the date a small wireless facility permit
application is filed to issue or deny the permit, or the permit is automatically issued. To toll
the 90-day clock, the local government unit must provide a written notice of incompleteness
to the applicant within 30 days of receipt of the application, clearly and specifically
delineating all missing documents or information. Information delineated in the notice is
limited to documents or information publicly required as of the date of application and
reasonably related to a local government unit's determination whether the proposed
equipment falls within the definition of a small wireless facility and whether the proposed
deployment satisfies all health, safety, and welfare regulations applicable to the small
wireless facility permit request. Upon an applicant's submittal of additional documents or
information in response to a notice of incompleteness, the local government unit has ten days
to notify the applicant in writing of any information requested in the initial notice of
incompleteness that is still missing. Second or subsequent notices of incompleteness may not
specify documents or information that were not delineated in the original notice of
incompleteness. Requests for information not requested in the initial notice of
incompleteness do not toll the 90-day clock. Parties can mutually agree in writing to toll the
90-day clock at any time. Section 15.99 does not apply to this paragraph or paragraph (c).
For the purposes of this subdivision, "toll the 90-day clock" means to halt the progression of
days that count towards the 90-day deadline.
(c) Except as provided in subdivision 3a, paragraph (c), a small wireless facility permit
and any associated encroachment or building permit required by a local government unit, are
deemed approved if the local government unit fails to approve or deny the application within
90 days after the permit application has been filed, unless the applicant and the local
government unit have mutually agreed in writing to extend the 90-day deadline.
(d) Nothing in this subdivision precludes a local government unit from applying
generally applicable and reasonable health, safety, and welfare regulations when evaluating
and deciding to approve or deny a small wireless facility permit.
EFFECTIVE DATE.
This section is effective the day following final enactment.
Sec. 16.
Minnesota Statutes 2016, section 237.163, subdivision 4, is amended to read:
Subd. 4.
Permit denial or revocation.
(a) A local government unit may deny any application for a right-of-way or small
wireless facility permit if the telecommunications right-of-way user does not comply with a
provision of this section.
(b) A local government unit may deny an application for a right-of-way permit if the
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local government unit determines that the denial is necessary to protect the health, safety, and
welfare or when necessary to protect the public right-of-way and its current use.
(c) A local government unit may revoke a right-of-way or small wireless facility permit
granted to a telecommunications right-of-way user, with or without fee refund, in the event
of a substantial breach of the terms and conditions of statute, ordinance, rule, or regulation or
any material condition of the permit. A substantial breach by a permittee includes, but is not
limited to, the following:
(1) a material violation of a provision of the right-of-way or small wireless facility
permit;
(2) an evasion or attempt to evade any material provision of the right-of-way or small
wireless facility permit, or the perpetration or attempt to perpetrate any fraud or deceit upon
the local government unit or its citizens;
(3) a material misrepresentation of fact in the right-of-way or small wireless facility
permit application;
(4) a failure to complete 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; and
(5) a failure to correct, in a timely manner, work that does not conform to applicable
standards, conditions, or codes, upon inspection and notification by the local government
unit of the faulty condition.
(d) Subject to this subdivision, a local government unit may not deny an application for
a right-of-way or small wireless facility permit for failure to include a project in a plan
submitted to the local government unit under subdivision 2, paragraph (b), clause (3), when
the telecommunications right-of-way user has used commercially reasonable efforts to
anticipate and plan for the project.
(e) In no event may a local government unit unreasonably withhold approval of an
application for a right-of-way or small wireless facility permit, or unreasonably revoke a
permit.
(f) Any denial or revocation of a right-of-way or small wireless facility permit must be
made in writing and must document the basis for the denial. The local government unit must
notify the telecommunications right-of-way user in writing within three business days of the
decision to deny or revoke a permit. If a permit application is denied, the telecommunications
right-of-way user may cure the deficiencies identified by the local government unit and
resubmit its application. If the telecommunications right-of-way user resubmits the
application within 30 days of receiving written notice of the denial, it may not be charged an
additional filing or processing fee. The local government unit must approve or deny the
revised application within 30 days after the revised application is submitted.
EFFECTIVE DATE.
This section is effective the day following final enactment.
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Sec. 17.
Minnesota Statutes 2016, section 237.163, subdivision 6, is amended to read:
Subd. 6.
Fees.
(a) A local government unit may recover its right-of-way management costs by
imposing a fee for registration, a fee for each right-of-way or small wireless facility permit,
or, when appropriate, a fee applicable to a particular telecommunications right-of-way user
when that user causes the local government unit to incur costs as a result of actions or
inactions of that user. A local government unit may not recover costs from a
telecommunications right-of-way user costs or an owner of a cable communications system
awarded a franchise under chapter 238 caused by another entity's activity in the right-of-way.
(b) Fees, or other right-of-way obligations, imposed by a local government unit on
telecommunications right-of-way users under this section must be:
(1) based on the actual costs incurred by the local government unit in managing the
public right-of-way;
(2) based on an allocation among all users of the public right-of-way, including the local
government unit itself, which shall reflect the proportionate costs imposed on the local
government unit by each of the various types of uses of the public rights-of-way;
(3) imposed on a competitively neutral basis; and
(4) imposed in a manner so that aboveground uses of public rights-of-way do not bear
costs incurred by the local government unit to regulate underground uses of public rights-of-
way.
(c) The rights, duties, and obligations regarding the use of the public right-of-way
imposed under this section must be applied to all users of the public right-of-way, including
the local government unit while recognizing regulation must reflect the distinct engineering,
construction, operation, maintenance and public and worker safety requirements, and
standards applicable to various users of the public rights-of-way. For users subject to the
franchising authority of a local government unit, to the extent those rights, duties, and
obligations are addressed in the terms of an applicable franchise agreement, the terms of the
franchise shall prevail over any conflicting provision in an ordinance.
(d) A wireless service provider may collocate small wireless facilities on wireless
support structures owned or controlled by a local government unit and located within the
public roads or rights-of-way without being required to apply for or enter into any individual
license, franchise, or other agreement with the local government unit or any other entity,
other than a standard small wireless facility collocation agreement under subdivision 3a,
paragraph (f), if the local unit of government elects to utilize such an agreement.
(e) Any initial engineering survey and preparatory construction work associated with
collocation must be paid by the cost causer in the form of a onetime, nonrecurring,
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commercially reasonable, nondiscriminatory, and competitively neutral charge to recover the
costs associated with a proposed attachment.
(f) Total application fees for a small wireless facility permit must comply with this
subdivision with respect to costs related to the permit.
(g) A local government unit may elect to charge each small wireless facility attached to
a wireless support structure owned by the local government unit a fee, in addition to other
fees or charges allowed under this subdivision, consisting of:
(1) up to $150 per year for rent to occupy space on a wireless support structure;
(2) up to $25 per year for maintenance associated with the space occupied on a wireless
support structure; and
(3) a monthly fee for electricity used to operate a small wireless facility, if not
purchased directly from a utility, at the rate of:
(i) $73 per radio node less than or equal to 100 max watts;
(ii) $182 per radio node over 100 max watts; or
(iii) the actual costs of electricity, if the actual costs exceed the amount in item (i) or (ii).
EFFECTIVE DATE.
This section is effective the day following final enactment.
Sec. 18.
Minnesota Statutes 2016, section 237.163, subdivision 7, is amended to read:
Subd. 7.
Additional right-of-way provisions.
(a) In managing the public rights-of-way and in imposing fees under this section, no
local government unit may:
(1) unlawfully discriminate among telecommunications right-of-way users;
(2) grant a preference to any telecommunications right-of-way user;
(3) create or erect any unreasonable requirement for entry to the public rights-of-way by
telecommunications right-of-way users; or
(4) require a telecommunications right-of-way user to obtain a franchise or pay for the
use of the right-of-way.
(b) A telecommunications right-of-way user need not apply for or obtain right-of-way
permits for facilities that are located in public rights-of-way on May 10, 1997, for which the
user has obtained the required consent of the local government unit, or that are otherwise
lawfully occupying the public right-of-way. However, the telecommunications right-of-way
user may be required to register and to obtain a right-of-way permit for an excavation or
obstruction of existing facilities within the public right-of-way after May 10, 1997.
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(c) Data and documents exchanged between a local government unit and a
telecommunications right-of-way user are subject to the terms of chapter 13. A local
government unit not complying with this paragraph is subject to the penalties set forth in
section 13.08.
(d) A local government unit may not collect a fee imposed under this section through the
provision of in-kind services by a telecommunications right-of-way user, nor may a local
government unit require the provision of in-kind services as a condition of consent to use the
local government unit's public right-of-way or to obtain a small wireless facility permit.
(e) Except as provided in this chapter or required by federal law, a local government
unit shall not adopt or enforce any regulation on the placement or operation of
communications facilities in the right-of-way where the entity is already authorized to
operate in the right-of-way, and shall not regulate or impose or collect fees on
communications services except to the extent specifically provided for in the existing
authorization, and unless expressly required by state or federal statute.
Sec. 19.
Minnesota Statutes 2016, section 237.163, is amended by adding a subdivision to read:
Subd. 9.
Authorized contractors.
(a) Nothing in this section precludes a telecommunications right-of-way user from
authorizing another entity or individual to act on its behalf to install, construct, maintain, or
repair a facility or facilities owned or controlled by the telecommunications right-of-way
user.
(b) A local government unit is prohibited from imposing fees or requirements on an
authorized entity or individual for actions on behalf of a telecommunications right-of-way
user that are in addition to or different from the fees and requirements it is authorized to
impose on the telecommunications right-of-way user under this section.
EFFECTIVE DATE.
This section is effective the day following final enactment.
Sec. 20.
Minnesota Statutes 2016, section 237.163, is amended by adding a subdivision to read:
Subd. 10.
Exemptions.
(a) Notwithstanding any other provision in this chapter, this section does not apply to a
wireless support structure owned, operated, maintained, or served by a municipal electric
utility.
(b) Subdivisions 3a, 3b, 3c, and subdivision 6, paragraphs (d) through (g), and
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subdivision 7, paragraph (e), do not apply to the collocation or regulation of small wireless
facilities issued a permit by a local government unit before the effective date of this act under
an ordinance enacted before May 18, 2017, that regulates the collocation of small wireless
facilities.
EFFECTIVE DATE.
This section is effective the day following final enactment.