Loading...
RIGHT-OF-WAY REGULATIONS
(A) To provide for the health, safety and welfare of its citizens, and to ensure the integrity of its streets and the appropriate use of the rights-of-way, the city 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 subchapter of this code relating to right-of-way permits and administration. This subchapter 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 subchapter, persons excavating and obstructing the rights-of-way will bear financial responsibility for their work. Finally, this subchapter provides for recovery of out-of-pocket and projected costs from persons using the public rights-of-way.
(C) This subchapter 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”), as they may be amended from time to time, and the other laws governing applicable rights of the city and users of the right-of-way. This subchapter shall also be interpreted consistent with Minn. Rules parts 7819.0050 through 7819.9950 and Minn. Rules Ch. 7560 where possible. To the extent any provision of this subchapter 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 subchapter 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.
(Prior Code, § 8-11-1)
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.
(Prior Code, § 8-11-2)
For the purpose of this subchapter, 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 or by the city. A facility is considered ABANDONED after 12 months of non-use.
ANTI-ICING. The application of a liquid deicer prior to the onset of a snow event.
APPLICANT. Any person requesting permission to excavate or obstruct a right-of-way.
CITY. The city of Monticello, Minnesota. For purposes of § 94.28, CITY also means the city’s 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 that is owned privately or by a local government unit.
COMMISSION. The state’s 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 M.S. § 216D.04, subd. 3, as it may be amended from time to time, over a continuous length in excess of 500 feet.
CONSTRUCTION PERFORMANCE BOND. Any of the following forms of security provided at the permittee’s option:
(1) Individual project bond;
(2) Cash deposit;
(3) Security of a form listed or approved under M.S. § 15.73, subd. 3, as it may be amended from time to time;
(4) Letter of credit, in a form acceptable to the city;
(5) Self-insurance, in a form acceptable to the city; and
(6) 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.
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 the right-of-way earlier than would be required if the excavation or disturbance did not occur.
DEGRADATION COST. Subject to Minn. Rules part 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 Minn. 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.
DEICER. Any substance used to melt snow and ice or used for its anti-icing effects.
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 and Engineering of the city.
DEPARTMENT INSPECTOR. Any person authorized by the city to carry out inspections related to the provisions of this subchapter.
DIRECTOR. The Director of the Department of Public Works of the city, or his or her designee.
EMERGENCY. A condition that:
(1) Poses a danger to life or health, or of a significant loss of property; or
(2) 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 which, pursuant to this subchapter, 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 the permit.
EXCAVATION PERMIT FEE. Money paid to the city by an applicant to cover the costs as provided in § 94.12.
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 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 the 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 subchapter.
MANAGEMENT COSTS or RIGHTS-OF-WAY MANAGEMENT COSTS.
(1) The actual costs a 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.
(2) MANAGEMENT COSTS do not include:
(a) Payment by a telecommunications right-of-way user for the use of the public right-of-way;
(b) 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
(c) The fees and cost of litigation relating to the interpretation of this section or M.S. § 237.163, as it may be amended from time to time, or any ordinance enacted under those sections, or the local unit of government’s fees and costs related to appeals taken pursuant to M.S. § 237.163, subd. 5, as it may be amended from time to time.
MICRO WIRELESS FACILITY. 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.
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 which, pursuant to this subchapter, 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 § 94.12.
PATCH or PATCHING.
(1) A method of pavement replacement that is temporary in nature.
(2) 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 beyond the edges of the excavation in all directions.
(3) A PATCH is considered full restoration only when the pavement is included in the city’s five-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 M.S. § 237.162, as it may be amended from time to time.
PERMITTEE. Any person to whom a permit to excavate or obstruct a right-of-way has been granted by the city under this subchapter.
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. 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. (Note: this definition does not include other public grounds that may be the subject of other city requirements.)
REGISTRANT. Any person who:
(1) Has or seeks to have its equipment or facilities located in any right-of-way; or
(2) In any way occupies 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 state’s Public Utilities Commission rules.
RESTORE or RESTORATION. The process by which an excavated right-of-way and surrounding area, including pavement and foundation and turf, is returned to the same condition and life expectancy that existed before excavation.
RIGHT-OF-WAY (ROW) PERMIT. The excavation permit, the obstruction permit, or the small wireless facility permit, or all types of ROW PERMIT authorized by law or ordinance, depending on the context, required by this subchapter.
RIGHT-OF-WAY USER.
(1) A telecommunications right-of-way user as defined by M.S. § 237.162, subd. 4, as it may be amended from time to time; or
(2) 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 or UTILITY SERVICE. Includes:
(1) Those services provided by a public utility as defined in M.S. § 216B.02, subds. 4 and 6, as it may be amended from time to time;
(2) Services of a telecommunications right-of-way user, including transporting of voice or data information;
(3) Services of a cable communications systems as defined in M.S. Ch. 238, as it may be amended from time to time;
(4) Natural gas or electric energy or telecommunications services provided by the city;
(5) Services provided by a cooperative electric association organized under M.S. Ch. 308A, as it may be amended from time to time; and
(6) Water and sewer, including service laterals, steam, cooling, or heating services.
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.
SMALL WIRELESS FACILITY. Includes:
(1) 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, 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
(b) 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.
(2) A micro wireless facility.
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.
(1) 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.
(2) A cable communication system defined and regulated under M.S. Ch. 238, as it may be amended from time to time, and telecommunications activities related to providing natural gas or electric energy services, a public utility as defined in M.S. § 216B.02, as it may be amended from time to time, a municipality, a municipal gas or power agency organized under M.S. Ch. 453 or Ch. 453A, as they may be amended from time to time, or a cooperative electric association organized under M.S. Ch. 308A, as it may be amended from time to time, are not TELECOMMUNICATIONS RIGHT-OF-WAY USERS for the purposes of this section and M.S. § 237.163, as it may be amended from time to time, except to the extent these entities are offering wireless services.
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-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 years.
UTILITY POLE. A pole that is used in whole or in part to facilitate telecommunications or electric service.
WIRELESS FACILITY.
(1) Equipment at a fixed location that enables the provision of wireless services between user equipment and a wireless service network, including:
(a) Equipment associated with wireless service;
(b) A radio transceiver, antenna, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration; and
(c) A small wireless facility.
(2) WIRELESS FACILITY does not include:
(a) Wireless support structures;
(b) Wireline backhaul facilities; or
(c) Coaxial or fiber-optic cables:
1. Between utility poles or wireless support structures; or
2. That are not otherwise immediately adjacent to or 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 a cable service under 47 U.S.C. § 522, clause (6).
WIRELESS SUPPORT STRUCTURE. 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.
WIRELINE BACKHAUL FACILITY. A facility used to transport communications data by wire from a wireless facility to a communications network.
(Prior Code, § 8-11-3) (Ord. 790, passed 10-10-2022)
(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.
(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.
(Prior Code, § 8-11-5)
(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 at all times. Current information regarding how to contact the local representative in an emergency shall be provided at the time of registration; and
(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, or a form of self-insurance acceptable to the city; and
(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;
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;
3. 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;
4. Requiring that the city be notified 30 days in advance of cancellation of the policy or material modification of a coverage term;
5. Indicating comprehensive liability coverage, automobile liability coverage, worker’s 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 subchapter;
6. The city may require a copy of the actual insurance policies;
7. If the person is a corporation, a copy of the certificate is required to be filed under M.S. Ch. 302A, as it may be amended from time to time, as recorded and certified to by the Secretary of State; and
8. A copy of the person’s order granting a certificate of authority from the state’s Public Utilities Commission or other applicable state or federal agency, where the person is lawfully required to have the certificate from the Commission or other state or federal agency.
(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 15 days following the date on which the registrant has knowledge of any change.
(Prior Code, § 8-11-6)
Loading...