HomeMy WebLinkAbout3B, Right of Way Maintenance Ordinanceiii DEN HILLS
Request for Council Review
Prepared By: Meagan Beekman, City Planner
Michelle Olson, Parks and Recreation
Manager
I Work Session Date: July 18, 2011
B
Right -of -Way Maintenance Ordinance
Discussion Topic:
Review draft ROW Maintenance Ordinance and provide further direction
Supporting Documents:
1. Memorandum from Meagan Beekman and Michelle Olson, dated July 18, 2011.
2. Chapter 3, Right -of -Way Maintenance Ordinance — Black -lined version.
EN HILLS
MEMORANDUM
DATE: July 18, 2011
TO: Honorable Mayor and City Councilmembers
Patrick Klaers, City Administrator
FROM: Meagan Beekman, City Planner
Michelle Olson, Parks and Recreation Manager
SUBJECT: ROW Maintenance Discussion
Background
Staff has been working on revisions to the City Code regarding Right of Way (ROV) based
on a discussion with the City Council at their work session on December 20, 2010. The
current ROW Ordinance is located in Chapter 3 and details regulations and permitting
procedures for utility companies and others that do work within the ROW.
The current ROW Ordinance in Chapter 3 does not specify regulations for the maintenance
of the ROW by adjacent property owners. Chapter 7, which details regulations for trees
and vegetation, does include some regulations pertaining to the planting of trees in the
ROW, but the details are vague and unclear, causing confusion. In addition, Chapter 7
outlines a permitting process for homeowners to plant trees in the ROW; however, this
process is largely not followed by property owners, since most do not seek out permits
prior to planting materials in the ROW.
Questions about the City's role in maintaining trees located in the ROW, otherwise known
as boulevard trees, have been coming up for the past several years. The Public Works
Department handles identifying dead, diseased, and damaged trees in the City that need to
be removed. Presently, when there is question about who planted a tree, the City takes the
responsibility of removing it when necessary.
The City Code does not address definitively who is responsible for boulevard trees when a
permit for the planting of the tree was not issued, even when it is unlikely that the City
planted the tree. Additionally, the Code is silent on what other types of landscaping
materials (i.e.; retaining walls, planters, boulders, plant materials, irrigation systems) are
allowed in the ROW or not. According to the City Attorney, it is within a City's rights to
require items located within the boulevard between the edge of the road and a resident's
property line to be the responsibility of that property owner.
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The December 20, 2010, ROW discussion centered on the following questions:
1. Who is responsible for dead, damaged, or diseased trees /vegetation in the
ROW?
2. Should residents be allowed to plant /place things in the ROW adjacent to their
homes? If so, should a permit be required to do so?
3. What items, if any, should be allowed to be planted or placed in the ROW by
residents?
4. What responsibility or authority should the City have for items placed or
planted in the ROW?
5. As a policy, should the City ever plant trees in the ROW?
The consensus of the Council at the work session was that the maintenance of the right of
way should be the responsibility of the adjacent property owner, and that residents should
be allowed to improve the ROW adjacent to their homes, under certain circumstances,
without the need for a permit.
Discussion
Since the December work session, Staff has researched the policies and regulations of other
communities, interviewed staff of other communities, met with the City Attorney and the
City's Public Works Department. Based on this work, Staff has drafted a possible ROW
Maintenance Ordinance that meets the direction given by Council and the goal of clarifying
the City's ROW regulations. There are three components to the Code revisions related to
the ROW Maintenance Ordinance:
1. Create language within Chapter 3 to address the maintenance of the ROW;
2. Remove or relocate language that pertains to maintenance of the ROW from other
areas of the Code and consolidate it into Chapter 3;
3. Update the City's Shade Tree Ordinance within Chapter 7 to clarify the abatement
procedures and more effectively deal with the removal of diseased trees.
While the revisions to Chapter 7 are important, they are relatively minor, and are separate
from the purpose of this discussion, which is to discuss the revisions to Chapter 3 and the
ROW Maintenance Ordinance. The ROW Maintenance Ordinance involves three key
aspects:
1. Defining the Right of Way;
2. Outlining the responsibilities of residents in terms of maintaining the boulevard
adjacent to their property;
3. Clarifying the City's responsibilities in terms of ensuring the safe and efficient use
of the right of way.
Staff has included a draft ROW Maintenance Ordinance for Council review (Attached).
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Staff is requesting that the Council review the attached draft ordinance and provide
comment and direction on it. Based on the discussion this evening, staff will revise the
draft ordinance and bring it back either for Council approval, or for further discussion.
Because all proposed revisions of the City Code do not impact Chapter 13, the Zoning
Code, these revisions would not require a public hearing, nor review by the Planning
Commission.
Council Action Requested
Review draft ROW Maintenance Ordinance and provide further direction.
July 18, 2011, City Council Work Session
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City of Arden Hills Chapter 3 Licenses and Regulations
Section 360 - Rights -of -Way
360.01 Findings, Purpose and Intent.
Subd. 1. 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.
Subd. 2. Accordingly, the City hereby enacts this section relating to right -of -way
permits and administration. This section 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 section, persons
excavating and obstructing the rights -of -way will bear financial responsibility for
their work. Finally, this section provides for recovery of out -of- pocket and
projected costs from persons using the public rights -of -way.
Subd. 3. This section 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 amended from time to time, and the other laws
governing applicable rights of the City and users of the right -of -way. This section
shall also be interpreted consistent with Minnesota Rules Parts 7819.0050 through
7819.9950 where possible. To the extent any provision of this section 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 section 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.
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City of Arden Hills Chapter 3 Licenses and Regulations
360.02 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 (2)(b), as amended from time to time, to manage
rights -of -way within its jurisdiction.
360.03 Definitions.
Subd. 1. The following definitions apply in this section of this code. References
hereafter to "sections" are unless otherwise specified references to sections in this
section.
Subd. 2. Defined terms remain defined terms whether or not capitalized.
A. The words "Abandoned Facility" means 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.
B. The word "Applicant" means any person requesting permission to
excavate or obstruct a right -of -way.
C. The word "City" means the City of Arden Hills, Minnesota. For
purposes of Subsection 360.28, City means its elected Officials,
officers, employees and agents.
D. The word "Commission" means the State Public Utilities Commission.
E. The words "Congested Right -of -Way" means a crowded condition in
the subsurface of the public right -of -way that occurs when the
maximum lateral spacing between existing underground facilities does
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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 (3), as amended from time to time, over a
continuous length in excess of 500 feet.
F. The words "Construction Performance Bond" means any of the
following forms of security provided at permittee's option:
1. Individual project bond;
2. Cash deposit;
3. Security of a form listed or approved under M.S. § 15.73 (3), as
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; or
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.
G. The word "Degradation" means 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.
H. The words "Degradation Cost" subject to Minnesota Rules 7819.1100
means the cost to achieve a level of restoration as determined by the
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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.
The words "Degradation Fee" means 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.
J. The word "Inspector" means any person authorized by the City to
carry out inspections related to the provisions of this section.
K. The words "Delay Penalty" means the penalty imposed as a result of
unreasonable delays in right -of -way excavation, obstruction, patching
or restoration as established by permit.
L. The word "Emergency" means 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.
M. The word "Equipment" means any tangible asset used to install,
repair, or maintain facilities in any right -of -way.
N. The word "Excavate" means to dig into or in any way remove or
physically disturb or penetrate any part of a right -of -way.
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0. The words "Excavation Permit" means the permit which, pursuant to
this section, 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.
P. The words "Excavation Permit Fee" means money paid to the City by
an applicant to cover the costs as provided in Subsection 360.12.
Q.
The words "Facility" or "Facilities" means any tangible asset in the
right -of -way required to provide utility service.
R. The words "Five -Year Project Plan" shows projects adopted by the
City for construction within the next five years.
S. The words "High Density Corridor" means 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.
T. The word "Hole" means an excavation in the pavement, with the
excavation having a length less than the width of the pavement.
U. The words "Local Representative" means 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 section.
V. The words "Management Costs" means the actual costs the City
incurs in managing its rights -of -way, including such costs, if incurred,
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as those associated with registering applicants; issuing, processing and
verifying right -of -way 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 permits. "Management Costs" do not include
payment by a telecommunications right -of -way user for the use of the
right -of -way, the fees and cost of litigation relating to the
interpretation of Minnesota Session Laws 1997, Chapter 123; M.S. §§
237.162 or 237.163, as amended from time to time, or any ordinance
enacted under those sections, or the City fees and costs related to
appeals taken pursuant to Subsection 360.29.
W. The word "Obstruct" means 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.
X. The words "Obstruction Permit" means the permit which, pursuant
to this section, 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.
Y. The words "Obstruction Permit Fee" means money paid to the City
by a permittee to cover the costs as provided in Subsection 360.11.
Z. The words "Patch" or "Patching" means a method of pavement
replacement that is temporary in nature. A "Patch" consists of:
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1. The compaction of the subbase 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. A "Patch" is considered full restoration only when
the pavement is included in the City's five year project plan.
AA. The word "Pavement" means 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.
BB. The word "Permit" has the meaning given "right -of -way permit" in
M.S. § 237.162, as amended from time to time.
CC. The word "Permittee" means any person to whom a permit to
excavate or obstruct a right -of -way has been granted by the City
under this section.
DD. The word "Person" means 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.
EE. The word "Probation" means the status of a person that has not
complied with the conditions of this section.
FF. The words "Probationary Period" means one year from the date that
a person has been notified in writing that they have been put on
probation.
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GG. The word "Registrant" means 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.
HH. The words "Restore" or "Restoration" means 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.
II. The words "Restoration Cost" means 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.
JJ. The words "Public Right -of -Way" means the area on, below, or above
a public roadway, highway, street, cartway, bicycle lane and 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.
KK. The words "Right -of -Way Permit" means either the excavation
permit or the obstruction permit, or both, depending on the context,
required by this section.
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LL. The words "Right -of -Way User" means:
1. A telecommunications right -of -way user as defined by M.S.
§ 237.162 (4), as 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.
MM. The words "Service" or "Utility Service" includes:
1. Those services provided by a public utility as defined in M.S.
§ 216B.02 (4) and (6), as 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 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 amended from time to
time; and
6. Water, sewer, steam, cooling or heating services.
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NN. The words "Supplementary Application" means 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.
00. The words "Temporary Surface" means 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.
PP. The word "Trench" means an excavation in the pavement, with the
excavation having a length equal to or greater than the width of the
pavement.
QQ.
The words "Telecommunication Right -of -Way User" means 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 transporting telecommunication or other voice or data
information. For purposes of this section, a cable communication
system defined and regulated under M.S. Ch. 238, as amended from
time to time, and telecommunication activities related to providing
natural gas or electric energy services whether provided by a public
utility as defined in M.S. § 216B.02, as amended from time to time, a
municipality, a municipal gas or power agency organized under M.S.
Chs. 453 and 453A, as amended from time to time, or a cooperative
electric association organized under M.S. Ch. 308A, as amended from
time to time are not telecommunications right -of -way users for
purposes of this section.
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City of Arden Hills Chapter 3 Licenses and Regulations
RR. The words "Two -Year Project Plan" shows projects adopted by the
City for construction within the next two years.
360.04 Administration. The City 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 may delegate any or all of the duties hereunder.
360.05 Registration and Right -of -Way Occupancy.
Subd. 1 Registration. Each person who occupies, 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.
Subd. 2 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.
Subd. 3 Exceptions.
•
street curb. Ppersons maintaining
•
the
unimproved portion of the right of way between their property and the improved
portion of the right of way shall not be deemed to use or occupy the right -of -way_
Such persons shall conform to the provision in Section 360.305—and—shall—not—be
•
iNothing herein relieves a person from complying with the provisions of the M.S.
Ch. 216D, Gopher One Call Law, as amended from time to time.
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City of Arden Hills Chapter 3 Licenses and Regulations
360.30 Maintenance of the Right - -of- -Way.
Subd. 1. Purpose. The right -of -way is land dedicated to the City for the purpose of
roads, snow storage, road reconstruction projects, drainage, and utilities. Property
owners own the land to the center of the right -of -way adjacent to their properties,
though the City has a dedicated interest in the right -of -way. The City of Arden Hills
has adopted this Section to ensure the integrity of its streets, to monitor appropriate
use of the right -of -way, and to regulate the private use and maintenance of the
unimproved portion of the right -of -way between an adjacent property and the edge
of the pavement of a roadway, often called a "boulevard ".
Subd. 2. Scope.
A. The following activities shall be deemed maintenance of the right -of-
way, and shall be allowed without a permit, provided the activities are
conducted within the unimproved portion of the right -of -way between
a person's property and the improved portion of the right -of -way, and
the maintenance activities do not impede the City's use of the right -of-
1. Planting and maintaining perennial and /or annual flowers,
shrubberies, or gardens;
2. Installing and maintaining private driveways, sidewalks, curb and
gutter, or parking lots, which are allowed by an approved permit
from the City;
3. Installing and maintaining mail boxes in conformance with
Federal Post Office Regulations;
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Adopted December 17, 2001
City of Arden Hills Chapter 3 Licenses and Regulations
4. Installing and maintaining irrigation systems or below - ground pet
containment systems;
5. Engaging in snow removal activities; or
6. Undertaking activities on behalf of federal, state, county, or city
agencies.
B. The following activities shall not be deemed maintenance of the right -
of -way, and shall be prohibited within the unimproved portion of the
right -of -way between a person's property and the improved portion
of the right -of -way:
1. Placement of above - ground fences;
2. Placement of retaining walls without a permit from the Public
Works Director;
3. Placement of large boulders within fifteen (15) feet of the edge of
the pavement; or
4. Placement of other major landscaping improvements, as defined
by the Public Works Director, within fifteen (15) feet of the edge of
the pavement.
Subd. 3. Responsibility of Private Owners. It shall be the responsibility of the
adjacent property owner to:
A. Maintain the unimproved portion of the right -of -way between their
property and the improved portion of the right -of -way.
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B.
C.
D.
E.
Improvements made within the right -of -way by a property owner are
done so at the property owner's own risk, and may be removed by the
City at the owner's expense. The City is not responsible for damage
to landscaping or other right -of -way improvements resulting from
any activity related to the City's use of the right -of -way.
Allow only those plant materials that do not have characteristics
detrimental to the public welfare, such as susceptibility to disease and
wind damage, or a tendency to interfere with utilities, public
easements, or rights -of -way.
Trim, prune, maintain, and /or remove as necessary, any tree in the
right -of -way adjacent to their property. Trees shall be pruned to
sufficient height to allow free passage of pedestrians and vehicular
traffic: nine (9) feet over sidewalks and sixteen (16) feet over streets.
Trees not properly maintained, or found to be structurally unsound,
may be deemed a public nuisance by the City Forester, and abated in
accordance with Section 602 of the City Code. The City maintains the
right to plant, prune, maintain, remove, or perform any other
arboricultural practices as deemed necessary by the Public Works
Director on all public property, as well as the right -of -way.
Remove any tree in the right -of -way adjacent to their property found
to be diseased or dying by the City Forester, in accordance with
Section 710 of the City Code.
Maintain driveway approaches in a safe condition that does not cause
a maintenance problem, and in a manner that does not interfere with
or obstruct the drainage carried by the adjoining street or the use of
the adjoining street for travel, as determined by the Public Works
Director. If a driveway approach is not maintained in this manner,
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City of Arden Hills Chapter 3 Licenses and Regulations
the City may require the property owner to alter the driveway
approach in order to meet the requirements of this Section. If the
property owner fails to alter the driveway as directed by the City, it
will constitute a public nuisance under Chapter 602.01 and may be
abated under Chapter 602.05 or 602.06.
360.31 Placement of Trees in the Right -of -Way
Subd. 1. Purpose. The planting of trees in areas of the City dedicated for public
streets, which are sometimes referred to in this Section as boulevard trees, is a
matter of public interest. It is the purpose of this Section to provide a procedure for
planting boulevard trees under certain circumstances and subject to certain
regulations as provided by this Section.
Subd. 2. Permitted Varieties. Only the following types of trees shall be permitted
under the provisions of this Section: Hackberry; Norway, Sugar or Red Maple;
Linden; and other species as approved by the City. Under no circumstances shall
cottonwood trees, non - disease resistant elm trees, or any species of ash tree be
planted in the City.
Subd. 3. Space. At the time of planting, trees which will exceed forty (40) feet at the
height of maturity shall be spaced at least seventy -five (75) feet apart.
Subd. 4. Prohibited Locations. Trees shall not be planted in the following manner:
A. Within fifteen (15) feet of the improved portion of the right -of -way;
B. Within twelve (12) feet of any fire hydrant, utility pole or other
fixture.
C. Under or within ten (10) level feet of any overhead wire or over or
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City of Arden Mills Chapter 3 Licenses and Regulations
within ten (10) lateral feet of an underground utility;
D. In such a way that it will now or in the future materially impede the
clear vision area.
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