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HomeMy WebLinkAbout4E, Planning Case 11-018 - Approval of the Right-of-Way Maintenance OrdinanceDEN HILLS Request for Council Action Prepared By: Meagan Beekman, City Planner Council Meeting Date: October 10, 2011 Planning Case 11 -018 — Approval of the Right -of -Way Maintenance Ordinance Budgeted Amount: NA Actual Amount: NA Funding Source: NA Recommendation: Approve Ordinance 2011 -009, amending the City's Maintenance of the Right -of -Way Ordinance, as presented in the October 10, 2011, report to the City Council. Approve publication of a summary of Ordinance 2011 -009. Supporting Documents: 1. Memorandum from Meagan Beekman, dated October 10, 2011. 2. July 18, 2011, Council Work Session Minutes. 3. Chapter 3, Excerpts — Black -lined Version. 4. Ordinance 2011 -009, and Publication Summary. ARpErHILLs MEMORANDUM DATE: October 10, 2011 TO: Honorable Mayor and City Councilmembers Patrick Klaers, City Administrator FROM: Meagan Beekman, City Planner 49 Michelle Olson, Parks and Recreation Manager SUBJECT: Planning Case #: 11 -018 Applicant: City of Arden Hills Request: City Code Amendment — Chapter 3, Maintenance of the ROW Requested Action Approve Ordinance 2011 -009, amending the City's Maintenance of the Right -of -Way Ordinance, as presented in the October 10, 2011, report to the City Council. Approve publication of a summary of Ordinance 2011 -009. Background At their December 20, 2010, work session, the Council directed Staff to produce a ROW Ordinance that addresses the rights and responsibilities of residents, as well as the City, in the maintenance of the boulevards that separate roadways and adjacent properties. The current ROW Ordinance is in Chapter 3 and does not specify regulations for the maintenance of the ROW by adjacent property owners; rather, it outlines the regulations and permitting procedures for utility companies and others who do work, or excavate, in the ROW. 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. City of Arden Hills City Council Meeting for October 10, 2011 P: I Planning\Planning CasesI2011111 -018 - ROW Management Ordinance (Pending) I07 -18 -11 - CC Work Session - Memo.doc 2 At the July 18, 2011, City Council work session, Staff presented a draft of a new section of Chapter 3 that would address the concerns raised at the December meeting. The Council discussed the ordinance, suggested revisions, and directed Staff to bring the item back at a regular Council meeting. The minutes from this meeting are included as Attachment A. Discussion Typical ROW dedications are 60 feet in width, though most roads are around 30 feet wide. As a result, there are usually ten to fifteen feet of unimproved, or boulevard, area between the edge of a roadway and the adjacent private property. Cities use this boulevard area for snow storage, placing of utilities, sidewalks, and drainage. Even though the boulevard is part of the dedicated ROW, it is the responsibility of adjacent property owners to maintain this area, in addition, adjacent property owners are allowed to place certain items in the ROW that do not conflict with the City's use of it. Such items include driveways, mailboxes, certain plantings, invisible fences, etc. The purpose of the proposed ordinance is to clarify what items residents may place in the boulevard in front of their properties, and what items are prohibited. The ordinance also outlines the requirements for tree planting in the ROW, and clarifies that residents are responsible for the maintenance and, when necessary, removal of trees in the ROW adjacent to their properties. In sum, the proposed 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. Since the July work session, Staff has revised the new ordinance in accordance with Council comments. A black -lined version of the proposed ordinance has been included as Attachment B. Please note that only those sections of Chapter 3 proposed to be amended have been included with this report because of the length of the Chapter. The bulk of Chapter 3 deals with the use of the ROW by utility companies, and others, doing large scale excavation and other work. The proposed ordinance amendment impacts four sections of the City Code: 1. Add Section 360.30 to Chapter 3 addressing the maintenance of the ROW; 2. Remove language that pertains to maintenance of the ROW from Chapter 7 and consolidate it into Chapter 3 within the new Section 360.30; City of Arden Hills City Council Meeting for October 10, 2011 P: IPlanning\Planning Cases12011111 -018 - ROW Management Ordinance (Pending)107- 18 -11- CC Work Session - Memo.doc 3 3. Amend Sections 360.03 and 360.04 in Chapter 3, adding definitions, and clarifying the scope of the ROW ordinance Requested Action Approve Ordinance 2011 -009, amending the City's Maintenance of the Right -of -Way Ordinance, as presented in the October 10, 2011, report to the City Council. Approve publication of a summary of Ordinance 2011 -009. Attachments A. July 18, 2011, Council Work Session Minutes B. Chapter 3, Excerpts — Black -lined Version C. Ordinance 2011 -009, and Publication Summary City of Arden Hills City Council Meeting for October 10, 2011 P: I Planning\ Planning Cases12011111 -018 - ROW Management Ordinance (Pending)I07-1 8-11 - CC Work Session - Memo.doc Attachment A July i8, 2011, Council Work Session Minutes iii DIEN HILLS City of Arden Hills City Council Meeting for October 10, 2011 July 18, 2011, Council Work Session Minutes Right -of -Way Ordinance City Planner Beekman stated that 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. Chapter 3 does not specify regulations for the maintenance of the ROW by adjacent property owners. City Planner Beekman stated that 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. City Planner Beekman explained that 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 a question about who planted a tree, the City takes the responsibility of removing it when necessary. She explained that 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? City Planner Beekman stated that the consensus of the Council at that work session was that the maintenance of the ROW 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. City Planner Beekman added that 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. City Planner Beekman stated that 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 ROW; 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 ROW. City Planner Beekman explained that Staff has included a draft ROW Maintenance Ordinance for Council review and 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. Councilmember Holmes suggested there be a clear definition of ROW included in the ordinance and that the definition also state the difference between improved and unimproved ROW. She also questioned the width of ROW and how a resident knows that information. City Planner Beekman explained that it is the responsibility of the property owner to determine their property lines. Sometimes the City has a plat map available, but if there is none, or if the property owner can't find the property pins, they will have to have a surveyor establish the location of the property lines. Councilmember Tamble asked if that language is in the Code. City Planner Beekman stated she is not sure whether or not it is included but she also stated that the ROW varies from one road to another. She added that the property owner actually owns to the center of the ROW. The streets are dedicated to the City, not deeded. Councilmember Holden was concerned about the sections of the new code referring to permits being issued by a specific staff member. She suggested that all such references be changed to read "the City" will issue such permits. Councilmember Holmes suggested that Section D under Subdivision 3 be revised to state more clearly that such costs will be the responsibility of the property owner. Discussion ensued regarding the number of diseased trees in the City; there are approximately 70, 50 of which are currently the City's responsibility to remove. Councilmember Holden asked if this proposed ordinance amendment passes, would property owners then be expected to cover the cost of those diseased trees already identified by the City. Parks and Recreation Manager Olson explained that the diseased trees must be removed within a specific time period once they've been identified. By the time this ordinance amendment has passed, the diseased trees will have been required to be removed. Councilmember Holmes asked about rain gardens located in the ROW. City Planner Beekman explained that rain gardens are not considered significant landscaping and there haven't been any problems related to rain gardens. Discussion ensued and it was determined that rain gardens should be added to Subdivision 2, Item Al . Councilmember Tamble expressed concern about the statement on Page 3 of 15 requiring spacing of 75 feet between trees being planted. He thought that could be reduced to 40 feet but will discuss it further with Staff. After further discussion, the Council consensus was that Staff should present this amendment at a regular Council meeting. Attachment B Chapter 3, Excerpts — Black-lined Version --2kRp..E._.\if HILLS City of Arden Hills City Council Meeting for October 10, 2011 City of Arden Hills Chapter 3 Licenses and Regulations Section 360 - Rights -of -Way 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-wordsrlAbandoned Facility =" means a 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 "A pplicant." ,. Aany person requesting permission to excavate or obstruct a right -of -way. C. "City." .. . . 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 tThe State Public Utilities Commission. E. The-words-"Congested Right-of-Way„2-m-eans-a---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 3 -1 Adopted December 17, 2001 City of Arden Hills Chapter 3 Licenses and Regulations 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. `Construction Performance Bond" ..ny 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 aA, 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. 'h vo "Degradation Cost" subject to Minnesota Rules 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 3 -2 Adopted December 17, 2001 City of Arden Hills Chapter 3 Licenses and Regulations I. restoration shown in plates 1 to 13, set forth in Minnesota Rules parts 7819.9900 to 7819.9950. The "Degradation Fee ==- `he 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. T- - "Inspector" .ny person authorized by the City to carry out inspections related to the provisions of this section. K. Delay Penalty-' �lhe 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," -iu.esiiirH,JA 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'' y A.ny tangible asset used to install, repair, or maintain facilities in any right -of -way. N. cavate. 2 - n To dig into or in any way remove or physically disturb or penetrate any part of a right -of -way. 3 -3 Adopted December 17, 2001 City of Arden Hills Chapter 3 Licenses and Regulations 0. The words "Excavation Permits" means tThe 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. Q. The-words--q-Excavation Permit Fee. "" Money paid to the City by an applicant to cover the costs as provided in Subsection 360.12. The-wer-dsFacilityn or "Facilities "' f any tangible asset in the right -of -way required to provide utility service. R. .. Five -Year Project Plano,"" shows projects adopted by the City for construction within the next five years. S. The w or "High Density Corridors "" means aA 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. - "Hole = "" eu n excavation in the pavement, with the excavation having a length less than the width of the pavement. U. The words "Local Representative. "" 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. 3 -4 Adopted December 17, 2001 City of Arden Hills Chapter 3 Licenses and Regulations V. W. T e wo d "Management Costs "" means t he 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 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. The-word---q-Obstruct. IL-means-4T° 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." 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 - . ~ ir-- "Obstruction Permit Fee. 2 Money paid to the City by a permittee to cover the costs as provided in Subsection 360.11. 3 -5 Adopted December 17, 2001 City of Arden Hills Chapter 3 Licenses and Regulations Z. The --w s-"Patch "or iTatching,n-Ineans Aa method of pavement replacement that is temporary in nature. A "Patch" consists of: 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. r Pavement. " ans ny 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 The meaning given "right -of -way permit" in M.S. § 237.162, as amended from time to time. CC. The word "Permittee" moans 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-wor-d—ktPerson,2—ineans-aAn 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. T. Probation. " rams *The status of a person that has not complied with the conditions of this section. 3 -6 Adopted December 17, 2001 City of Arden Hills Chapter 3 Licenses and Regulations FF. T- e words "`Probationary Period," : ,one year from the date that a person has been notified in writing that they have been put on probation. GG. Theword-AiRegistranti any person who: HH. II. 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. The words "Restore' or R R estoration. " s 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. T 61 "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. JJ. Right -of -Way Permit. Either the excavation permit or the obstruction permit, or both, depending on the context, required by this section. KK. The words "Public Right -of -Way Public. "means- tAhe area dedicated to public use, in the publicthe—City has a dedicatedn interest, for Y!� which travel purposes and public utility, 3 -7 Adopted December 17, 2001 City of Arden Hills Chapter 3 Licenses and Regulations infrastructure. In addition to the roadwa T City. A right-of-way ma r include but is not limited to curbs sidewalks, boulevards, lighting, and drainage accommodations. ; - 1. Right-of-Way, improved. The portion of the public right-of- way that contains roads and/or sidewalks for public use. 2. Right-of-Way, unimproved. The portion of the public right-of- wav that is not being actively used for roadway and/or sidewalks, also referred to as the boulevard. 66 P • • A ; ; * LL. The-words-‘ARight-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. TheiverService21- or iiUtility Service,n _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; 3 - 8 Adopted December 17, 2001 City of Arden Hills Chapter 3 Licenses and Regulations 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. NN. .. e-ords"Supplementary Application ". a.t .n 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. PP. T s- "Temporary Surface. " means t' he 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. '. evor - `Trench. " sr-aAn excavation in the pavement, with the excavation having a length equal to or greater than the width of the pavement. 3 -9 Adopted December 17, 2001 City of Arden Hills Chapter 3 Licenses and Regulations QQ. The words `Telecommunication Right -of -Way User. r" 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. RR. The words 4Two -Year Project Plan„." shows 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. 3 -10 Adopted December 17, 2001 City of Arden Hills Chapter 3 Licenses and Regulations 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 planting-er—maintaining ; the unimproved portion of the right of way between their property and the edge of the pavement of a roadway deemed to use or occupy the right-of-way. Such persons shall conform to the provision in Section 360.30. shall not be Nothing 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. 360.30 Maintenance of the Right-of-Way. Subd. 1. Purpose. The right-of-way is public or private land dedicated for public use for the purposes of pedestrian and vehicular movement, snow storage, road reconstruction projects, drainage, and utilities. The area dedicated for public use generally includes both improved (paved) and unimproved (landscaped) portions of land. Property owners adjacent to the right-of-way are responsible for maintaining the unimproved portion of the right-of-way. The City of Arden Hills has adopted this Section to ensure the integrity of its streets, to ensure 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. 3-11 Adopted December 17, 2001 City of Arden Hills Chapter 3 Licenses and Regulations 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 boulevard, between a person's property and the edge of the improved portion of the right -of -way, and the maintenance activities do not impede the City's use of the right -of- w=y 1. Planting and maintaining perennial and /or annual flowers, shrubberies, gardens, and rain gardens; 2. Installing and maintaining private driveways, sidewalks, curb and gutter, or parking lots, which are allowed with an approved permit from the City; 3. Installing and maintaining mail boxes in conformance with Federal Post Office 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 boulevard, between a person's property and the edge of the improved portion of the right - of -way: 3 -12 Adopted December 17, 2001 City of Arden Hills Chapter 3 Licenses and Regulations 1. Placement of above - ground fences; 2. Placement of retaining walls without a permit; 3. Placement of large boulders within fifteen (15) feet of the edge of the pavement; or 4. Placement of other major landscaping improvements or obstructions, as determined by the City, 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. B. C. Maintain the boulevard between their property and the improved portion of the right -of -way. 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 3 -13 Adopted December 17, 2001 City of Arden Hills Chapter 3 Licenses and Regulations D. E. 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. 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. The adjacent property owner is responsible for the cost of removing trees located in the right -of -way. 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 City. If a driveway approach is not maintained in this manner, 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 Rights of the City. The City maintains the right to plant, prune, maintain, remove, or perform any other arboricultural practices as deemed necessary by the City on all public property and in the right -of -way. 360.32 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 3 -14 Adopted December 17, 2001 City of Arden Hills Chapter 3 Licenses and Regulations 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 twenty -five (25) 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 ten (10) 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 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. 3 -15 Adopted December 17, 2001 Attachment C Ordinance 2011-009, and Publication Summary City of Arden Hills City Council Meeting for October 10, 2011 Ordinance 2011 -009 STATE OF MINNESOTA COUNTY OF RAMSEY CITY OF ARDEN HILLS ORDINANCE 2011 -009 AN ORDINANCE ADDING SECTION 360.30, AMENDING SECTIONS 360.03 AND 360.04, AND OMITTING SECTION 710.01 OF THE CITY CODE The Arden Hills City Council hereby ordains that Section 710.01 of the City Code shall be omitted in its entirety, Section 360.30 be added, and Sections 360.03 and 360.04 be hereby amended as follows: Section 360 - Rights -of -Way 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. 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. B. Applicant. Any person requesting permission to excavate or obstruct a right -of -way. C. City. The City of Arden Hills, Minnesota. For purposes of Subsection 360.28, City means its elected Officials, officers, employees and agents. Page 1 of 15 Ordinance 2011 -009 D. Commission. The State Public Utilities Commission. E. 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 (3), as amended from time to time, over a continuous length in excess of 500 feet. F. Construction Performance Bond. 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. 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 Page 2 of 15 Ordinance 2011 -009 need to reconstruct such right -of -way earlier than would be required if the excavation or disturbance did not occur. H. Degradation Cost subject to Minnesota Rules 7819.1100. 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 Minnesota 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. J. Inspector. Any person authorized by the City to carry out inspections related to the provisions of this section. K. Delay Penalty. The penalty imposed as a result of unreasonable delays in right -of -way excavation, obstruction, patching or restoration as established by permit. L. 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. M. Equipment. Any tangible asset used to install, repair, or maintain facilities in any right -of -way. Ordinance 2011 -009 N. Excavate. To dig into or in any way remove or physically disturb or penetrate any part of a right -of -way. O. Excavation Permit. 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. Excavation Permit Fee. Money paid to the City by an applicant to cover the costs as provided in Subsection 360.12. Q. Facility or Facilities. Any tangible asset in the right -of -way required to provide utility service. R. Five -Year Project Plan. Shows projects adopted by the City for construction within the next five years. S. 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. T. Hole. An excavation in the pavement, with the excavation having a length less than the width of the pavement. U. 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 section. Ordinance 2011 -009 V. Management 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 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. 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. X. Obstruction Permit. 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. Obstruction Permit Fee. Money paid to the City by a permittee to cover the costs as provided in Subsection 360.11. Z. Patch or Patching. A method of pavement replacement that is temporary in nature. A "Patch" consists of: Ordinance 2011 -009 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. 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. BB. Permit. The meaning given "right -of -way permit" in M.S. § 237.162, as amended from time to time. CC. Permittee. Any person to whom a permit to excavate or obstruct a right -of -way has been granted by the City under this section. DD. 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. EE. Probation. The status of a person that has not complied with the conditions of this section. FF. Probationary Period. One year from the date that a person has been notified in writing that they have been put on probation. GG. Registrant. Any person who: Ordinance 2011 -009 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. 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. II. 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. JJ. Right -of -Way Permit. Either the excavation permit or the obstruction permit, or both, depending on the context, required by this section. KK. Right -of -Way, Public. An area dedicated to public use, in which the public has a dedicated interest, for travel purposes and public utility infrastructure. In addition to the roadway, a right -of -way may include, but is not limited to, curbs, sidewalks, boulevards, lighting, and drainage accommodations. 1. Right -of -Way, improved. The portion of the public right -of- way that contains roads and /or sidewalks for public use. 2. Right -of -Way, unimproved. The portion of the public right -of- way that is not being actively used for roadway and /or sidewalks, also referred to as the boulevard. Ordinance 2011 -009 LL. Right -of -Way User. 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. Service or Utility Service. 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. Ordinance 2011 -009 NN. 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. 00. 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. PP. Trench. An excavation in the pavement, with the excavation having a length equal to or greater than the width of the pavement. QQ. Telecommunication Right -of -Way User. 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. RR. Two -Year Project Plan. Shows projects adopted by the City for construction within the next two years. Ordinance 2011 -009 360.04 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. Persons maintaining the unimproved portion of the right of way between their property and the edge of the pavement of a roadway shall not be deemed to use or occupy the right -of -way. Such persons shall conform to the provision in Section 360.30. Nothing 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. 360.30 Maintenance of the Right -of -Way. Subd. 1. Purpose. The right -of -way is public or private land dedicated for public use for the purposes of pedestrian and vehicular movement, snow storage, road reconstruction projects, drainage, and utilities. The area dedicated for public use generally includes both improved (paved) and unimproved (landscaped) portions of land. Property owners adjacent to the right -of -way are responsible for maintaining the unimproved portion of the right -of -way. The City of Arden Hills has adopted this Section to ensure the integrity of its streets, to ensure appropriate use of the Page 10 of 15 Ordinance 2011 -009 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 boulevard, between a person's property and the edge of the improved portion of the right -of -way, and the maintenance activities do not impede the City's use of the right -of- way: 1. Planting and maintaining perennial and /or annual flowers, shrubberies, gardens, and rain gardens; 2. Installing and maintaining private driveways, sidewalks, curb and gutter, or parking lots, which are allowed with an approved permit from the City; 3. Installing and maintaining mail boxes in conformance with Federal Post Office 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. Page 11 of 15 Ordinance 2011 -009 B. The following activities shall not be deemed maintenance of the right - of -way, and shall be prohibited within the boulevard, between a person's property and the edge of the improved portion of the right - of -way: 1. Placement of above - ground fences; 2. Placement of retaining walls without a permit; 3. Placement of large boulders within fifteen (15) feet of the edge of the pavement; or 4. Placement of other major landscaping improvements or obstructions, as determined by the City, 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. B. Maintain the boulevard between their property and the improved portion of the right -of -way. 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. Page 12 of 15 Ordinance 2011 -009 C. D. E. 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. 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. The adjacent property owner is responsible for the cost of removing trees located in the right -of -way. 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 City. If a driveway approach is not maintained in this manner, 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 Rights of the City. The City maintains the right to plant, prune, maintain, remove, or perform any other arboricultural practices as deemed necessary by the City on all public property and in the right -of -way. 360.32 Placement of Trees in the Right -of -Way Page 13 of 15 Ordinance 2011 -009 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 twenty -five (25) 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 ten (10) 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 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. Page 14 of 15 Ordinance 2011-009 Effective Date. This Ordinance shall become effective the day following its publication. Adoption Date. Passed by the City Council of the City of Arden Hills the 10th Day of October 2011. ATTEST: PATRICK KLAERS CITY ADMINISTRATOR Publication Date: October 10, 2011 DAVID GRANT, MAYOR Page 15 of 15 CITY OF ARDEN HILLS COUNTY OF RAMSEY STATE OF MINNESOTA SUMMARY OF ORDINANCE NO. 2011-009 On the 10th day of October, 2011, the Arden Hills City Council adopted Ordinance No. 2011 -009, and by at least four /fifths affirmative votes pursuant to Minn. Stat. §412.191, Subd. 4, directed that a summary of Ordinance 2011 -009 be published. The omission of Section 710.01, the addition of Section 360.30, and the revision of Sections 360.03 and 360.04 of the City Code are collectively known as Ordinance 2011 -009 entitled "Maintenance of the Right -of- Way ". The purpose of the amendments is to clarify the rights and responsibilities of both the City and residents for the maintenance of the boulevard, between roadways and adjacent property. The amended regulations will go into effect on October 20, 2011. A full copy of Ordinance 2011 -009 is available for inspection by any person during regular business hours at the office of the City Administrator, 1245 West Highway 96, Arden Hills, Minnesota 55112.