(A) Health and safety. To provide for the health, safety, and well-being of its citizens, and to ensure the structural integrity of its streets and the appropriate use of the right-of-way, the city strives to keep its right-of-way in a state of good repair and free from unnecessary encumbrances. Although the general population bears the financial burden for the upkeep of the right-of-way, a primary cause for the early and excessive deterioration of its right-of-way is frequent excavation.
(1) Right-of-way obstruction is a source of frustration for merchants, business owners, and the general population which must avoid these obstructions or change travel or shopping plans because of them and has a detrimental effect on commerce. Persons whose equipment is within the right-of-way are the primary cause of these frequent obstructions.
(2) The city holds the rights-of-way within its geographical boundaries as an asset in trust for its citizens. The city and other public entities have invested millions of dollars in public funds to build and maintain the rights-of-way. It also recognizes that some persons, by placing their equipment in the right-of-way and charging the citizens of the city for goods and services delivered thereby, are using this property held for the public good. Although such services are often necessary or convenient for the citizens, such persons receive revenue and/or profit through their use of public property.
(3) As a result of all these intrusions in the right-of-way, it is necessary for the city to establish a system of documenting what is placed in the rights-of-way within its municipal boundaries and to serve as a central record agency to inform its citizens and the other public entities of the facilities that have been placed in the right-of-way that is held in trust for them.
(B) Permits and administration.
(1) In response to the foregoing facts, the city hereby enacts this new chapter relating to right-of-way permits and administration, together with making necessary revisions to other provisions of this code of ordinances. This chapter imposes reasonable regulations on providers of electricity, light, heat, cooling energy, liquid, and gaseous fuels; information and communication service; and sewer and water lines and connection to them to the public that place and maintain facilities or equipment currently within the city’s rights-of-way or to be placed therein at some future time.
(2) It is intended to complement the regulatory roles of state and federal agencies. Under this chapter, persons disturbing and obstructing the rights-of-way will bear a fair share of the financial responsibility for their integrity. Finally, this chapter provides for recovery of out-of-pocket and projected costs from persons using the public right-of-way and adopts the standards developed by the Public Utilities Commission (PUC) on maximum restoration requirements, Minn. Rules pts. 7819.5000 through 7819.9950.
(C) Reimbursement payments. In addition to the foregoing recovery of costs and regulation of use, the Council determines that there is an existing and legitimate state and local public policy, which authorizes the city to require payments as reimbursement or return to the public for the use value of the public rights-of-way from those who obtain revenue or profits from such use. This reimbursement is provided for and defined in this section as the “user fee”. This fee does not apply to the repair, replacement or reconstruction of an existing facility. Telecommunication facilities are exempt from a user fee by state statute.
(D) Public interest and welfare. The Council finds that it is in the public interest to provide for the payment of a user fee by all persons who use and occupy the right-of-way to pay an annual lease if not a franchised entity apportioned equally among them all for the value and benefit of using such right-of-way.
(E) Legislative power. In these situations, the Council desires to exercise its lawful police power and common law authority, and all statutory authority which is available to it, including but not limited to, the powers conferred on it under M.S. §§ 216B.36, 222.37, 237.16, 301B.01, 410.09, and 412.221, subd. 6, 23, and 32, as they may be amended from time to time. The Council finds and determines that the public interest will be best protected by adopting this chapter conferring the right to occupy the right-of-way in return for payment as authorized by law.
(F) Not a rate. The Council finds and determines that the user fee authorized by this chapter is not and is not intended to be a rate as that term is defined in M.S. § 216B.02, subd. 5, as it may be amended from time to time. Such user fee is not a fee for a service that is provided to the customer or a person using the right-of-way, but is rather a fee paid for the right of that person to operate in the public right-of-way, and to maintain the equipment of a utility in the right-of-way in the city.
(G) Notification requirement. Registrants shall be notified of any proposed ordinance changes prior to adoption by the Council.
(2006 Code, § 14.01) (Ord. 196, Third Series, passed 4-14-2015)