Subd. 1. Findings and purpose. 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 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. 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 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 Minn. Rules 7819.0050 - 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. It is the purpose of this section to provide for lawful incidental private use of publicly-owned rights-of-way not inconsistent with public use. 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.
Subd. 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 M.S. § 237.163 Subd. 2(b), to manage rights-of-way within its jurisdiction.
Subd. 3. Definitions. The following definitions apply in this chapter of this code. References hereafter to "sections" are, unless otherwise specified, references to sections in this chapter. Defined terms remain defined terms, whether or not capitalized. The following words, terms and phrases, as used herein, have the following meanings:
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 as determined by the City Engineer.
APPLICANT. Any person requesting permission to excavate or obstruct a right-of-way.
CITY. The City of Shorewood, Minnesota. For purposes of this chapter, CITY means its elected officials, officers, employees and agents.
CITY 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 permit 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. City 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; M.S. §§ 237.162 or 237.163; or any ordinance enacted under those sections, or the city fees and costs related to appeals taken pursuant to § 901.16 of this chapter.
COLLOCATE OR COLLOCATION. To install, mount, maintain, modify, operate, or replace any piece of equipment, including 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 M.S. § 216D.04. Subd. 3, over a continuous length in excess of 500 feet.
CONSTRUCTION PERFORMANCE GUARANTEE. Any of the following forms of security provided at permittee’s option:
(1) Cash deposit;
(2) Letter of credit in a form acceptable to the city.
DEPARTMENT. The city.
DEPARTMENT INSPECTOR. Any person authorized by the city to carry out inspections related to the provisions of this chapter.
DIRECTOR. The city.
DELAY PENALTY. The penalty imposed as a result of unreasonable delays in right-of-way excavation, obstruction, patching, or restoration as established by permit.
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 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 § 901.08 of this code.
FACILITY or FACILITIES. Any tangible asset in the right-of-way required to provide utility service.
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.
LANDSCAPING. The use of living plants to modify an area of land, including ornamental shrubs, plants and flowers. For purposes of this chapter, the definition excludes trees, boulders, other natural obstructions, and manmade features such as fences, structures, patios, parking pads, and the like.
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.
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 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 § 901.08 of this code.
PATCH or PATCHING. A method of pavement replacement that is temporary in nature. A patch is considered full restoration only when the pavement is included in the city's five-year project plan. A patch consists of:
(1) The compaction of the sub-base and aggregate base; and
(2) The replacement, in kind, of the existing pavement for a minimum of two feet beyond the edges of the excavation in all directions.
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.
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.
POLE ATTACHMENT PERMIT. A city required permit for any equipment or appurtenance attached to any pole located in the public way or public ground, whether owned by the city or not.
PUBLIC GROUND. Land owned or otherwise controlled by the city for park, open space, fire lanes, or similar public purpose which are held for public use which land is not a public right-of-way.
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 non-wire telecommunications or broadcast service.
PUBLIC STREET. The improved, traveled or surfaced portion of any public right-of-way or roadway.
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 occupy or uses, or seeks to occupy or use, the right-of-way or place its facilities or equipment in the right-of-way.
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.
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.
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.
(1) A telecommunications right-of-way user as defined by M.S. § 237.162, Subd. 4; 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;
(2) Services of a telecommunications right-of-way user, including transporting of voice or data information;
(3) Services of a cable communications system as defined in M.S. Chapter 238;
(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. Chapter 308A; 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 a common source to an end-use customer. A SERVICE LATERAL is also an underground facility that is used in the removal of wastewater, storm water, or sump pump discharge from a customer's premises.
SMALL WIRELESS FACILITY. A wireless facility that meets both of the following qualifications:
(1) Each antenna is located inside an enclosure of no more than six cubic feet in volume or could fit within such an enclosure; and
(2) All other wireless equipment associated with the small wireless facility provided such equipment is, in aggregate, no more than 28 cubic feet in volume, not including electric meters, concealment elements, telecommunications demarcation boxes, battery backup power systems, grounding equipment, power transfer switches, cutoff switches, cable, conduit, vertical cable runs for the connection of power and other services, and any equipment concealed from public view within or behind an existing structure or concealment.
STORM WATER. Water that originates during precipitation events and snow/ice melt.
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.
TEMPORARY SURFACE. The compaction of sub-base 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.
TELECOMMUNICATION RIGHT-OF-WAY USER. A person or company installing or 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 M.S. Chapter 238, and telecommunication activities related to providing natural gas or electric energy services, a public utility as defined in M.S. § 216B.02, a municipality, a municipal gas or power agency organized under M.S. Chapters 453 and 453A, or a cooperative electric association organized under M.S. Chapter 308A, are not telecommunications right-of-way users for purposes of this chapter, except to the extent such entity is offering wireless services.
UTILITY POLE. A pole that is used in whole or in part to facilitate telecommunications or electric service.
WIRELESS FACILITY. Equipment at a fixed location that enables the provision of wireless services between user equipment and a wireless service network, including equipment associated with wireless service, a radio transreceiver, 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.
(Ord. 552, passed - -2018; Ord. 569, passed 8-26-2019)