Section
95.01 Findings, purpose and intent
95.02 Election to manage the public rights-of-way
95.03 Definitions
95.04 Reporting obligations
95.05 Permit requirement
95.06 Permit fees
95.07 Right-of-way patching and restoration
95.08 Joint applications
95.09 Supplementary applications
95.10 Other obligations
95.11 Denial or revocation of permit
95.12 Installation requirements
95.13 Inspection
95.14 Work done without a permit
95.15 Supplementary notification
95.16 Revocation of permits
95.17 Mapping data
95.18 Location and relocation of facilities
95.19 Pre-excavation facilities location
95.20 Damage to other facilities
95.21 Right-of-way vacation
95.22 Indemnification and liability
95.23 Abandoned and usable facilities
95.24 Appeal
95.25 Reservation of regulatory and police powers
(A) To provide for the health, safety and well-being 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.
(B) Accordingly, the city hereby enacts this new chapter of this code 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.
(C) This chapter shall be interpreted consistently with 1997 Session Laws, Chapter 123, substantially codified in M.S. §§ 237.16, 237.162, 237.163, 237.79, 237.81, and 238.086 (the “Act”) and 2017 Session Laws, Chapter 94, as they may be amended from time to time, 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 and Minnesota Rules Chapter 7560, as they be amended from time to time, where possible. To the extent any provision of this chapter cannot be interpreted consistently with the Minnesota Rules, that interpretation most consistent with the Act and other applicable statutory and case law is intended. This chapter shall not be interpreted to limit the regulatory and police powers of the city to adopt and enforce general ordinances necessary to protect the health, safety and welfare of the public.
Pursuant to the authority granted to the city under state and federal statutory, administrative and common law, the city hereby elects, pursuant M.S. § 237.163, subd. 2(b), as it may be amended from time to time, to manage rights-of-way within its jurisdiction.
For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
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 Hoyt Lakes, Minnesota. For purposes of § 95.22, 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.
TWO-YEAR PROJECT PLAN. Shows projects adopted by the city for construction within the next two years.
UTILITY POLE. A pole that is used in whole or in part to facilitate telecommunications or electric service.
(M.S. § 237.162, subd. 12)
WIRELESS FACILITY. Equipment at a fixed location that enables the provision of wireless services between user equipment and a wireless service network, including equipment associated with wireless service, a radio transceiver, antenna, coaxial or fiber-optic cable, regular and backup power supplies, and a small wireless facility, but not including wireless support structures, wireline backhaul facilities, or cables between utility poles or wireless support structures, or not otherwise immediately adjacent to and directly associated with a specific antenna.
(A) Operations.
(1) Each registrant shall, at the time of registration and by December 1 of each year, file a construction and major maintenance plan for facilities with the city. The plan shall be submitted using a format designated by the Director 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.
(2) The plan shall include, but not be limited to, the following information:
(a) 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
(b) To the extent known, the tentative locations and estimated beginning and ending dates for all projects contemplated for the five years following the next calendar year (in this section, a “five- year project”).
(3) The term PROJECT in this section shall include both next-year projects and five-year projects.
(4) By January 1 of each year the city will have available for inspection in the city’s offices a composite list of all projects of which the city has been informed in the annual plans. All registrants are responsible for keeping themselves informed of the current status of this list.
(5) Thereafter, by February 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 changes in the 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.
Except as otherwise provided in the chapter, 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.
(A) Excavation permit. An excavation permit is required by a registrant to excavate that part of the right-of-way described in the 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.
(B) 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.
(C) 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.
(A) Excavation permit fee. The city shall impose an excavation permit fee in an amount sufficient to recover:
(1) Management costs; and
(2) Degradation costs, if applicable.
(B) Obstruction permit fee. The city shall impose an obstruction permit fee in an amount sufficient to recover management costs.
(C) Small wireless facility permit fee. The city shall impose a small wireless facility permit fee in an amount sufficient to recover:
(1) Management costs; and
(2) City engineering, make-ready and construction costs associated with collocation of small wireless facilities.
(D) Payment of permit fees. No excavation permit or obstruction permit shall be issued without payment of excavation or obstruction permit fees. The city may allow the applicant to pay the fees within 30 days of billing.
(E) Nonrefundable. Permit fees that were paid for a permit that the city has revoked for a breach as stated in § 95.16 are not refundable.
(F) Application to franchises. Unless otherwise agreed to in a franchise, management costs may be charged separately from and in addition to the franchise fees imposed on a right-of-way user in the franchise.
(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 extraordinary circumstances beyond the control of the permittee or when work was prohibited as unseasonal or unreasonable under § 95.10.
(B) Patch and restoration. The permittee shall patch its own work. The city may choose either to have the permittee restore the right-of-way or to restore the right-of-way itself.
(1) City restoration. If the city restores the right-of-way, the permittee shall pay the costs thereof within 30 days of billing. If, during the 36 months following the restoration, the pavement settles due to the permittee’s improper backfilling, the permittee shall pay to the city, within 30 days of billing, all costs associated with having to correct 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, as it may be amended from time to time.
(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, as it may be amended from time to time.
(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. The work shall be completed within five calendar days of the receipt of the notice from the city, not including days during which work cannot be done because of circumstances constituting force majeure or days when work is prohibited as unseasonable or unreasonable under § 95.10.
(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 the work. In that event the permittee shall pay to the city, within 30 days of billing, the cost of restoring the right-of-way. If permittee fails to pay as required, the city may exercise its rights under the construction performance bond.
(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 Director, whether or not it is a joint application by two or more registrants or a single application, are not required to pay the obstruction and degradation portions of the permit fee, but a permit would still be required.
(A) Limitation on area.
(1) 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.
(2) Any permittee which determines that an area greater than that specified in the permit must be obstructed or excavated must before working in that greater area:
(a) Make application for a permit extension and pay any additional fees required thereby; and
(b) 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 done before the permit end date.
(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 M.S. § 216D.01-.09 (“Gopher One-Call Excavation Notice System”) and Minnesota Rules Chapter 7460, as they may be amended from time to time. 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 the 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 M.S. Chapter 216D and Minnesota Rules Chapter 7560, as they may be amended from time to time, and shall require potholing or open cutting over existing underground utilities before excavating, as determined by the city.
(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.
(B) Procedural requirements. The denial or revocation of a permit must be made in writing and must document the basis for the denial. The city must notify the applicant or right-of-way user in writing within three business days of the decision to deny or revoke a permit. If an application is denied, the right-of-way user may address the reasons for denial identified by the city and resubmit its application. If the application is resubmitted within 30 days of receipt of the notice of denial, no additional application fee shall be imposed. The city must approve or deny the resubmitted application within 30 days after submission.
The excavation, backfilling, patching and restoration, and all other work performed in the right-of-way shall be done in conformance with Minnesota Rules 7819.1100 and 7819.5000, as they may be amended from time to time, and other applicable local requirements, in so far as they are not inconsistent with the M.S. §§ 237.162 and 237.163, as they may be amended from time to time. Installation of service laterals shall be performed in accordance with Minnesota Rules Chapter 7560, as it may be amended from time to time, and these ordinances. Service lateral installation is further subject to those requirements and conditions set forth by the city in the applicable permits and/or agreements referenced in § 95.17.
(A) Notice of completion. When the work under any permit hereunder is completed, the permittee shall furnish a completion certificate in accordance with Minnesota Rule 7819.1300, as it may be amended from time to time.
(B) Site inspection. The permittee shall make the work-site available to the city and to all others as authorized by law for inspection at all reasonable times during the execution of and upon completion of the work.
(C) Authority of Director.
(1) At the time of inspection, the city may order the immediate cessation of any work which poses a serious threat to the life, health, safety or well-being of the public.
(2) The city may issue an order to the permittee for any work which 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 days after issuance of the order, the permittee shall present proof to the city that the violation has been corrected. If proof has not been presented within the required time, the city may revoke the permit pursuant to § 95.16.
(A) Emergency situations.
(1) Each registrant shall immediately notify the city of any event regarding its facilities which it considers to be an emergency. The registrant may proceed to take whatever actions are necessary to respond to the emergency. Excavators’ notification to Gopher State One Call regarding an emergency situation does not fulfill this requirement. Within two business days after the occurrence of the emergency, the 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 the chapter for the actions it took in response to the emergency.
(2) 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) Non-emergency 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 the permit, pay double all the other fees required by this chapter, 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.
(A) Substantial breach.
(1) 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.
(2) A substantial breach by permittee shall include, but shall not be limited to, the following:
(a) The violation of any material provision of the right-of-way permit;
(b) 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;
(c) Any material misrepresentation of fact in the application for a right-of-way permit;
(d) 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
(e) The failure to correct, in a timely manner, work that does not conform to a condition indicated on an order issued pursuant to § 95.13.
(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 the 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 his or her discretion, to place additional or revised conditions on the permit to mitigate and remedy the breach.
(C) Response to notice of breach. Within 24 hours of receiving notification of the breach, the permittee shall provide the city with a plan, acceptable to the city, that will cure the breach. The permittee’s failure to so contact the city, or the permittee’s failure to submit an acceptable plan, or the permittee’s failure to reasonably implement the approved plan, shall be cause for immediate revocation of the permit. Further, the permittee’s failure to so contact the city, or the permittee’s failure to submit an acceptable plan, or the permittee’s failure to reasonably implement the approved plan, shall automatically place the permittee on probation for one full year.
(D) Cause for probation. From time to time, the city may establish a list of conditions of the permit, which if breached will automatically place the permittee on probation for one full year, such as, but not limited to, working out of the allotted time period or working on right-of-way grossly outside of the permit authorization.
(E) Automatic revocation. If a permittee, while on probation, commits a breach as outlined above, permittee’s permit will automatically be revoked and permittee will not be allowed further permits for one full year, except for emergency repairs.
(F) Reimbursement of city costs. If a permit is revoked, the permittee shall also reimburse the city for the city’s reasonable costs, including restoration costs and the costs of collection and reasonable attorney’s fees incurred in connection with the revocation.
(A) Information required. Each registrant shall provide mapping information required by the city in accordance with Minnesota Rules 78189.4000 and 7819.4100, as they may be amended from time to time. Within 90 days following completion of any work pursuant to a permit, the permittee shall provide the city accurate maps and drawings certifying the “as-built” location of all equipment installed, owed and maintained by the permittee. The maps and drawings shall include the horizontal and vertical location of all facilities and equipment and shall be provided consistent with the city’s electronic mapping system, when practical or as a condition imposed by the city. Failure to provide maps and drawings pursuant to this division (A) 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, as it may be amended from time to time, shall require the permittee’s use of appropriate means of establishing the horizontal locations of installed service laterals and the service lateral vertical locations in those cases where the city reasonably requires it. Permittees or their subcontractors shall submit to the city evidence satisfactory to the city of the installed service lateral locations. Compliance with this division (B) 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 M.S. Chapter 429, as it may be amended from time to time; and
(2) City approval under development agreements or other subdivision or site plan approval under M.S. Chapter 462, as it may be amended from time to time. The city 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 future permits to the offending permittee or its subcontractors.
(A) Generally. 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, as they may be amended from time to time, to the extent the rules do not limit authority otherwise available to cities.
(B) Undergrounding. Unless otherwise agreed in a franchise or other agreement between the applicable right-of-way user and the city, facilities in the right-of-way must be located or relocated and maintained underground in accordance city regulations.
(C) Corridors.
(1) The city may assign a specific area within the right-of-way, or any particular segment thereof as may be necessary, for each type of facilities that is or, pursuant to current technology, the city expects will someday be located within the right-of-way. All excavation, obstruction or other permits issued by the city involving the installation or replacement of facilities shall designate the proper corridor for the facilities at issue.
(2) Any 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 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.
(D) Nuisance. One year after the passage of this chapter, any facilities found in a right-of-way that have not been 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 useable condition.
(E) 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 which have been determined to be in the public interest.
In addition to complying with the requirements of M.S. § 216D.01-.09 (“Gopher One-Call Excavation Notice System”), as it may be amended from time to time, 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 vertical placement of all the facilities. Any registrant whose facilities is less than 20 inches below a concrete or asphalt surface shall notify and work closely with the excavation contractor to establish the exact location of its facilities and the best procedure for excavation.
(A) When the city does work in the right-of-way and finds it necessary to maintain, support or move a registrant’s facilities to protect it, the city shall notify the local representative as early as is reasonably possible. The costs associated therewith will be billed to that registrant and must be paid within 30 days from the date of billing.
(B) Each registrant shall be responsible for the cost of repairing any facilities in the right-of-way which it or its facilities damages. 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.
(A) Discontinued operations. A registrant who has determined to discontinue all or a portion of its operations in the city must provide information satisfactory to the city that the registrant’s obligations for its facilities in the right-of-way under this chapter have been lawfully assumed by another registrant.
(B) Removal. Any registrant who has abandoned facilities in any right-of-way shall remove it from that right-of-way if required in conjunction with other right-of-way repair, excavation, or construction, unless this requirement is waived by the city.
A right-of-way user that has been denied registration, has been denied a permit, has had a permit revoked, believes that the fees imposed are not in conformity with M.S. § 237.163, subd. 6, as it may be amended from time to time, or disputes a determination of the city regarding § 95.16(B) may have the denial, revocation, fee imposition, or decision reviewed, upon written request, by the City Council. The City Council shall act on a timely written request at its next regularly scheduled meeting, provided the right-of-way user has submitted its appeal with sufficient time to include the appeal as a regular agenda item. A decision by the City Council affirming the denial, revocation, or fee imposition will be in writing and supported by written findings establishing the reasonableness of the decision.