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Home My WebLink About9.a. Text Amendment to City Code Regulating Small Wireless Facilities within Right-of-Way EXECUTIVE SUMMARY City Council Regular Meeting: November 21, 2017 AGENDA SECTION: AGENDA ITEM: Case 17-40-TA Text Amendment to City Code New Business Regulating Small Wireless Facilities within Right-of-Way. PREPARED BY: Kyle Klatt, Senior Planner AGENDA NO. 9.a. ATTACHMENTS: Summary Publication Resolutions, Draft APPROVED BY: LJM Ordinance Amending Zoning Ordinance, Draft Ordinance Amending Right-of-Way Management Ordinance, Memorandum from City Attorney’s Office, Adopted Amendments to State Statutes, Planning Commission Minutes (Excerpt), League of MN Cities Fact Sheet, League of MN Cities Facilities Example RECOMMENDED ACTION: The Planning Commission recommends the City Council adopt the following motions: 1) Motion to adopt an ordinance amending Title 4, Chapter 2 of the City Code to regulate small wireless facilities within public rights-of-way. 2) Motion to adopt an ordinance amending the Zoning Ordinance to regulate small wireless facilities in residential and non-residential districts. 3) Motion to approve Resolution Approving Summary Publication of Ordinance No. 2017-05. 4) Motion to approve Resolution Approving Summary Publication of Ordinance No. B-265 SUMMARY The City Council is being asked to consider amendments to the 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 provide cities with the ability to regulate these facilities, and staff is recommending that the City of Rosemount adopt draft language proposed by the City Attorney’s office to regulate small wireless facilities. PLANNING COMMISSION REPORT The Planning Commission reviewed the proposed ordinance amendments at its October 24, 2017 meeting. 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 that have a land use component directly related to the Planning Commission’s responsibilities in its advisory capacity. The Commission therefore conducted a public hearing concerning the zoning ordinance amendments and reviewed the proposed general City Code amendments as well. As part of its presentation to the Planning Commission, staff provided some additional background information concerning the recent state legislative action for small wireless facilities. In particular, staff noted that the facilities allowed under the ordinance are relatively small in size at no more than six cubic feet for any antenna or antenna enclosure. A typical enclosure meeting this requirement would be 2’ by 2’ by 2’, or roughly the size of a new paper box. The ordinance also allows equipment associated with the wireless facility to be located within public right-of-way provided all equipment is no more than 28 cubic feet in size (which would generally be the size of a typical electrical utility box found in the right-of-way). Finally, staff noted that the maximum height of a facility could be no more than 50 feet in height. As a point of reference, the wood electrical poles along Highway 42 are 75 feet in height. Staff explained that after further reviewing the ordinance with the City Attorney’s office, the City Attorney recommended removing any requirements concerning co-location that were proposed in the draft ordinance because such provisions were not authorized under the state statutes. At the request of the Dakota County Transportation Department, staff also proposes an additional provision preventing the placement of a wireless facility on any traffic control signal. In addition to these changes, the Commission recommended minor edits to improve the readability of the document. The Planning Commission conducted a public hearing to consider the proposed ordinance amendments; no one spoke during the hearing. The Commission adopted a motion to recommend approval of the ordinance amendments with two revisions proposed by staff and other minor amendments as noted during the meeting. The motion passed unanimously (4-0). After the Commission meeting, staff received several minor edits from a Planning Commissioner to correct punctuation and grammatical issues. These minor edits have been incorporated into the final drafts presented to the City Council. 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 also be able to utilize poles or similar structures owned by the City for these facilities. The statutes 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.  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. 2  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 League’s 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 prohibit wireless facilities from locating on a traffic control signal due to the sensitive public safety issues associated with these signals. 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. The inclusion of these provisions was supported by the Planning Commission and has been reviewed by the City Attorney’s office. 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. CONCLUSION & RECOMMENDATION Staff and 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. 3 COUNTY OF DAKOTA STATE OF MINNESOTA RESOLUTION NO. 2017 - RESOLUTION APPROVING SUMMARY PUBLICATION OF ORDINANCE NO. 2017 - 05 WHEREAS, the City has adopted the above referenced ordinance; and WHEREAS, the verbatim text of the ordinance is cumbersome, and the expense of publication of the complete text is not justified; and WHEREAS, Minnesota Statutes §412.191, subd. 4, allows publication by title and summary in the case of lengthy ordinances or those containing charts or maps; and WHEREAS, the following summary clearly informs the public of the intent and effect of the ordinance. NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Rosemount that the following summary is hereby approved for official publication in lieu of the entire ordinance: SUMMARY PUBLICATION ORDINANCE NO. 2017 - 05 AN ORDINANCE REGULATING TO AMEND TITLE 4, CHAPTER 2 OF THE CITY CODE TO REGULATE SMALL WIRELESS FACILITIES WITHIN PUBLIC RIGHT-OF-WAY On November 21, 2017, the Rosemount City Council adopted an ordinance designated as Ordinance No. 2017 – 05, the title of which is stated above. The purpose of the ordinance is to allow wireless providers to deploy small wireless facilities within the public right-of-way, and also be able to utilize poles or similar structures owned by the City for these facilities. The ordinance includes application requirements for permitting of such facilities along with the review standards small wireless facilities. Copies of the ordinance are available for public inspection in the office of the City Clerk during normal business hours or upon request by calling 651-322-2003. /s/ Clarissa Hadler, City Clerk BE IT FURTHER RESOLVED, that the City Clerk is directed to keep a copy of the ordinance in her office at City Hall for public inspection and to post a full copy of the ordinance in a public place in the City for a period of two weeks. Adopted by the City Council of the City of Rosemount, Minnesota this 21st day of November, 2017. William H. Droste, Mayor ATTEST: Clarissa Hadler, City Clerk COUNTY OF DAKOTA STATE OF MINNESOTA RESOLUTION NO. 2017 - _____ RESOLUTION APPROVING SUMMARY PUBLICATION OF ORDINANCE NO. B-265 WHEREAS, the City has adopted the above referenced ordinance; and WHEREAS, the verbatim text of the ordinance is cumbersome, and the expense of publication of the complete text is not justified; and WHEREAS, Minnesota Statutes §412.191, subd. 4, allows publication by title and summary in the case of lengthy ordinances or those containing charts or maps; and WHEREAS, the following summary clearly informs the public of the intent and effect of the ordinance. NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Rosemount that the following summary is hereby approved for official publication in lieu of the entire ordinance: SUMMARY PUBLICATION 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 On November 21, 2017, the Rosemount City Council adopted a zoning ordinance designated as Ordinance No. B-265, the title of which is stated above. The purpose of the ordinance is to add small wireless facilities within public rights-of-way as either a permitted or conditional use within the City’s various zoning districts. Copies of the ordinance are available for public inspection in the office of the City Clerk during normal business hours or upon request by calling 651-322-2003. /s/ Clarissa Hadler, City Clerk BE IT FURTHER RESOLVED, that the City Clerk is directed to keep a copy of the ordinance in her office at City Hall for public inspection and to post a full copy of the ordinance in a public place in the City for a period of two weeks. Adopted by the City Council of the City of Rosemount, Minnesota this 21st day of November, 2017. William H. Droste, Mayor ATTEST: Clarissa Hadler, City Clerk 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: 2 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. 3 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. 4 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 5 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'), without using hand digging to expose the existing lateral facilities . 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. Formatted: Font: 11 pt, No underline, Font color: Auto Formatted: All caps DIRECTOR. The director of the department of public works of the city, or her or his designee. 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 Formatted: Font: Not Bold Formatted: Font: 11 pt, No underline, Font color: Auto Formatted: Font: 11 pt, No underline, Font color: Auto Formatted: Font: 11 pt, No underline, Font color: Auto 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 Formatted: All caps Formatted: All caps Formatted: Font: (Default) Garamond, 10.5 pt Formatted: List Paragraph, Numbered + Level: 1 + Numbering Style: A, B, C, … + Start at: 1 + Alignment: Left + Aligned at: 0.25" + Indent at: 0.5" Formatted: Font: (Default) Garamond, 10.5 pt Formatted: List Paragraph Formatted: List Paragraph, Add space between paragraphs of the same style, Numbered + Level: 1 + Numbering Style: A, B, C, … + Start at: 1 + Alignment: Left + Aligned at: 0.25" + Indent at: 0.5" 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, whether provided by 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. Specific examples include 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. Formatted: All caps Formatted: All caps Formatted: All caps Formatted: All caps 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. f. The city may require a copy of the actual insurance policies. g. 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. h. 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 certificate from said commission or other state or federal agency. 4. 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 of 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 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. Formatted: Not Highlight 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 owingdisputed. 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. Formatted: Not Highlight 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. No wireless facility may be installed on a traffic control signal. 5. Where an applicant proposes to install a new wireless support structure in the right-of-way, said structure may not be located closer than 500 feet to an existing wireless support structure or other facilities in and around the right of way. 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 Formatted: List Paragraph, Outline numbered + Level: 1 + Numbering Style: A, B, C, … + Start at: 1 + Alignment: Left + Aligned at: 0" + Indent at: 0.25" Formatted: Font: (Default) Garamond, 10.5 pt Formatted: Indent: Left: 0.5", Space After: 10 pt, Line spacing: Multiple 1.15 li, No bullets or numbering Formatted ... 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Formatted: Font: (Default) Garamond, 10.5 pt Formatted: Indent: Left: 0.25" 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 establish 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 establish impose the 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; Formatted: Font: (Default) Garamond, 10.5 pt Formatted: List Paragraph, Outline numbered + Level: 1 + Numbering Style: A, B, C, … + Start at: 1 + Alignment: Left + Aligned at: 0" + Indent at: 0.25" Formatted: List Paragraph, Indent: Left: 0.25" Formatted: Font: (Default) Garamond, 10.5 pt Formatted: List Paragraph, Outline numbered + Level: 1 + Numbering Style: A, B, C, … + Start at: 1 + Alignment: Left + Aligned at: 0" + Indent at: 0.25" Formatted: Font: (Default) Garamond, 10.5 pt Formatted: List Paragraph, Outline numbered + Level: 2 + Numbering Style: 1, 2, 3, … + Start at: 1 + Alignment: Left + Aligned at: 0.25" + Indent at: 0.5" Formatted: Font: (Default) Garamond, 10.5 pt Formatted: List Paragraph, Outline numbered + Level: 2 + Numbering Style: 1, 2, 3, … + Start at: 1 + Alignment: Left + Aligned at: 0.25" + Indent at: 0.5" Formatted: Font: (Default) Garamond, 10.5 pt Formatted: List Paragraph, Outline numbered + Level: 2 + Numbering Style: 1, 2, 3, … + Start at: 1 + Alignment: Left + Aligned at: 0.25" + Indent at: 0.5" Formatted: Indent: Left: 0.25" Formatted: List Paragraph, Outline numbered + Level: 1 + Numbering Style: A, B, C, … + Start at: 1 + Alignment: Left + Aligned at: 0" + Indent at: 0.25" Formatted: List Paragraph, Indent: Left: 0.25" Formatted: Font: (Default) Garamond, 10.5 pt Formatted: List Paragraph, Outline numbered + Level: 2 + Numbering Style: 1, 2, 3, … + Start at: 1 + Alignment: Left + Aligned at: 0.25" + Indent at: 0.5" Formatted: Font: (Default) Garamond, 10.5 pt Formatted: List Paragraph, Outline numbered + Level: 2 + Numbering Style: 1, 2, 3, … + Start at: 1 + Alignment: Left + Aligned at: 0.25" + Indent at: 0.5" Formatted: Font: (Default) Garamond, 10.5 pt Formatted: List Paragraph, Outline numbered + Level: 2 + Numbering Style: 1, 2, 3, … + Start at: 1 + Alignment: Left + Aligned at: 0.25" + Indent at: 0.5" Formatted: Font: (Default) Garamond, 10.5 pt Formatted: Normal, No bullets or numbering Formatted: Font: (Default) Garamond, 10.5 pt Formatted: Normal, No bullets or numbering Formatted 2. city engineering, make-ready, and construction costs associated with collocation of small wireless facilities. B.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. C.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. D.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. E.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, Formatted: Font: (Default) Garamond, 10.5 pt Formatted: Normal, No bullets or numbering Formatted Formatted: Font: 11 pt, No underline, Font color: Auto Formatted: Font: 11 pt, No underline, Font color: Auto Formatted: Not Highlight Formatted: Font: 11 pt, No underline, Font color: Auto 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 to the City 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 Formatted: List Paragraph, Outline numbered + Level: 1 + Numbering Style: A, B, C, … + Start at: 1 + Alignment: Left + Aligned at: 0" + Indent at: 0.25" Formatted: Font: (Default) Garamond, 10.5 pt Formatted: List Paragraph, Indent: Left: 0.25" Formatted: List Paragraph, Outline numbered + Level: 1 + Numbering Style: A, B, C, … + Start at: 1 + Alignment: Left + Aligned at: 0" + Indent at: 0.25" Formatted: Font: (Default) Garamond, 10.5 pt Formatted: Font: 11 pt, No underline, Font color: Auto Formatted: Not Highlight Formatted: Font: 11 pt, No underline, Font color: Auto 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. Formatted: Not Highlight Formatted: Font: 11 pt, No underline, Font color: Auto 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. Formatted: Not Highlight Formatted: Not Highlight 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. Formatted: Not Highlight 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 Formatted: Font: 11 pt, No underline, Font color: Auto Formatted: Not Highlight Formatted: Font: 11 pt, No underline, Font color: Auto, Not Highlight Formatted: Not Highlight Formatted: Font: 11 pt, No underline, Font color: Auto, Not Highlight Formatted: Not Highlight Formatted: Font: 11 pt, No underline, Font color: Auto, Not Highlight Formatted: Not Highlight Formatted: Font: 11 pt, No underline, Font color: Auto, Not Highlight Formatted: Not Highlight ATTEST: Clarissa Handler, City Clerk Published in the Rosemount Town Pages the _____ day of ______________, 2017. 1 504123vVS105-3 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). & 2 504123vVS105-3 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. 3 504123vVS105-3 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 504123vVS105-3 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. 5 504123vVS105-3 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) 504123vVS105-3 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 504123vVS105-3 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: 504123vVS105-3 (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 504123vVS105-3 (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 504123vVS105-3 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 504123vVS105-3 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. 504123vVS105-3 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, 504123vVS105-3 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. 504123vVS105-3 (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 504123vVS105-3 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. PLANNING COMMISSION REGULAR MEETING MINUTES OCTOBER 24, 2017 PAGE 1 I. Regular Meeting Call to Order: Pursuant to due call and notice thereof, the Regular Meeting of the Planning Commission was held on Tuesday, October 24, 2017. Chair Kenninger called the meeting to order at 6:30 p.m. with Commissioners VanderWiel, Mele, and Freeman. Commissioner Clements was absent. Also in attendance were Community Development Director Lindquist, Senior Planner Klatt, Planner Nemcek, and Recording Secretary Bodsberg. The Pledge of Allegiance was said. Additions to Agenda: None. Audience Input: None. Consent Agenda: a. Approval of the September 26, 2017 Regular Meeting Minutes. MOTION by Freeman. Second by VanderWeil. Ayes: 4. Nays: 0. Public Hearing: 5.a. Text Amendment to City Code Regulating Small Wireless Facilities within Right-of-Way. (17-40-TA) Senior Planner Klatt gave a brief summary of the staff report for the Planning Commission. Commissioner Freeman questioned if staff had pictures available. Commissioner VanderWeil inquired about a couple texts specific questions. The public hearing opened at 6:53 pm. Public Comments: None. MOTION by Mele to close the public hearing. Second by Freeman. Ayes: 4. Nays: 0. Motion Passes. The public hearing was closed at 6:56 pm. Additional Comments: Senior Planner Klatt Chair Kenninger stated that the three recommended edits MOTION by VanderWeil 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. Second by Freeman. Ayes: 4. Nays: 0. Motion Passes. small cell wireless: unregulated access to public assets? problem: Private wireless and cellular service providers are pushing legislation (HF739/SF561) that would allow unregulated access to public right-of-way for installation of “small cell wireless” equipment and distributed antenna systems. • These for-profit companies would be the only unregulated industry allowed unfettered access to this public asset. • Automatic approval provided by this legislation ties the hands of cities who are responsible for managing these public spaces and considering elements of public health, safety, and aesthetics. • The legislation limits, and in some cases eliminates, cities’ cost recovery options for maintaining the public assets these companies are accessing. • The legislation would supersede many existing zoning ordinances and comprehensive plans that cities have enacted and planned for over the years. “Cities must balance the need to facilitate these emerging technologies with the needs of the local community.” DID YOU KNOW? Wireless is an important part of our state’s communications infrastructure, but it is a complement, not a substitute for high-speed broadband access in Greater Minnesota cities. background: This small cell technology is being deployed in urban areas to address increased data usage and to eventually deploy a new 5G cellular network. league of minnesota citiescity issue fact sheet 2017 ©2017 League of Minnesota Cities. All Rights Reserved. for more information: Laura Ziegler Senior Intergovernmental Relations Liaison Phone: (651) 281-1267 Email: lziegler@lmc.org www.lmc.org/wirelessfacts Without review process With review process league-supported solution: • The League supports making wireless providers telecommunication right-of-way (ROW) users with the same rights and privileges of other ROW users. An Example of a Small Cell Photo courtesy of Shelly Hanson