HomeMy WebLinkAbout2017-007ORDINANCE NO.2017-007
CITY OF ARDEN HILLS
RAMSEY COUNTY, MINNESOTA
AN ORDINANCE AUTHORIZING SMALL CELL WIRELESS FACILITIES TO BE
LOCATED WITHIN PUBLIC RIGHTS OF WAY AS MANDATED BY THE 2017
LEGISLATURE, AMENDING CHAPTER 3,
SECTION 360, RIGHTS -OF -WAY, OF THE ARDEN HILLS CITY CODE
THE CITY COUNCIL OF THE CITY OF ARDEN HILLS, MINNESOTA, ORDAINS:
SECTION 1. Chapter 3 - Licenses and Regulations, Section 360 — Rights of Way, is
hereby amended in its entirety to read as follows:
Chapter 3 — Licenses and Regulations
JSection 360 - Rights -of -Way
(revised 09/25/17)
0360.01 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 as authorized by law or the City. 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 state telecommunications and right
of way statutes, in particular 1997 Session Laws, Chapter 123, and 2017 Session Laws, Chapter
94, Article 9, 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, as amended from time to time, where
possible. To the extent any provision of this section cannot be interpreted consistently with the
Minnesota Statutes or 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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0360.02 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.
0 360.03 Definitions.
The following definitions apply in this section of this code. References hereafter to "sections"
are unless otherwise specified references to sections in this section. Defined terms remain
defined terms whether or not capitalized.
• 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.
. Applicant. Any person requesting permission to excavate or obstruct a right-of-way.
• City. The City of Arden Hills, Minnesota. For purposes of Subsection 360.28, City means
its elected Officials, officers, employees and agents.
• Collocate or collocation. To install, mount, maintain, modify, operate, or replace a small
wireless facility on, under, within, or adjacent to an existing wireless support structure that is
owned privately or by a local government unit.
• Commission. The State 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. § 21613.04 (3), as amended from time to
time, over a continuous length in excess of 500 feet.
• Construction Performance Bond. Any of the following forms of security provided at
permittee's option:
• Individual project bond;
Cash deposit;
Security of a form listed or approved under M.S. § 15.73 (3), as amended from time to
time;
• Letter of credit, in a form acceptable to the City;
• Self-insurance, in a form acceptable to the City; or
• 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.
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• Degradation. A decrease in the useful life of the right-of-way caused by excavation in or
disturbance of the right-of-way, resulting in the need to reconstruct such right-of-way earlier than
would be required if the excavation or disturbance did not occur.
• 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.
• Inspector. Any person authorized by the City to carry out inspections related to the
provisions of this section.
• 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:
• Poses a danger to life or health, or of a significant loss of property; or
• 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 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.
• Excavation Permit Fee. Money paid to the City by an applicant to cover the costs as
provided in Subsection 360.12.
• Facility or Facilities. Any tangible asset in the right-of-way required to provide utility
service.
• Five -Year Project Plan. Shows projects adopted by the City for construction within the
next five years.
• High Density Corridor. A designated portion of the public right-of-way within which
telecommunications right-of-way users having multiple and competing facilities may be required
to build and install facilities in a common conduit system or other common structure.
• Hole. An excavation in the pavement, with the excavation having a length less than the
width of the pavement.
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• 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.
• 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 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. "Management 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 a local government unit as part of managing
its public rights -of -way, including but not limited to any third -party contractor fee tied to or
based upon customer counts, access lines, revenue generated by the telecommunications right-of-
way user, or revenue generated for a local government unit; 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.
• Micro wireless facility. A small wireless facility that is no larger than 24 inches long, 15
inches wide, and 12 inches high, and whose exterior antenna, if any, is no longer than 11 inches.
• Obstruct. To place any tangible object in a right-of-way so as to hinder free and open
passage over that or any part of the right-of-way.
• Obstruction Permit. The permit which, pursuant to this 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.
• Obstruction Permit Fee. Money paid to the City by a permittee to cover the costs as
provided in Subsection 360.11.
• Patch or Patching. A method of pavement replacement that is temporary in nature. A
"Patch" consists of-
. The compaction of the subbase and aggregate base; and
• 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.
• 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. The meaning given "right-of-way permit" in M.S. § 237.162, as amended from
time to time.
• Permittee. Any person to whom a permit to excavate or obstruct a right-of-way has been
granted by the City under this section.
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• 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.
• Probation. The status of a person that has not complied with the conditions of this section.
• Probationary Period. One year from the date that a person has been notified in writing that
they have been put on probation.
• Registrant. Any person who:
Has or seeks to have its equipment or facilities located in any right-of-way; or
• 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.
• 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 section.
• 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.
• Right -of -Way, improved. The portion of the public right-of-way that contains roads
and/or sidewalks for public use.
• 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.
• Right -of -Way User.
A telecommunications right-of-way user as defined by M.S. § 237.162 (4), as amended
from time to time; or
• 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.
Those services provided by a public utility as defined in M.S. § 21613.02 (4) and (6), as
amended from time to time;
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• Services of a telecommunications right-of-way user, including transporting of voice or
data information;
• Services of a cable communications systems as defined in M.S. Ch. 238, as amended from
time to time;
Natural gas or electric energy or telecommunications services provided by the City;
• Services provided by a cooperative electric association organized under M.S. Ch. 308A,
as amended from time to time; and
• Water, sewer, steam, cooling or heating services.
• Small wireless facility. (1) a wireless facility that meets both of the following
qualifications:
(i) each antenna is located inside an enclosure of no more than six cubic feet in volume
or, in the case of an antenna that has exposed elements, the antenna and all its exposed elements
could fit within an enclosure of no more than six cubic feet; and
(ii) all other wireless equipment associated with the small wireless facility, excluding
electric meters, concealment elements, telecommunications demarcation boxes, battery backup
power systems, grounding equipment, power transfer switches, cutoff switches, cable, conduit,
vertical cable runs for the connection of power and other services, and any equipment concealed
from public view within or behind an existing structure or concealment, is in aggregate no more
than 28 cubic feet in volume; or
(2) a micro wireless facility.
• Supplementary Application. An application made to excavate or obstruct more of the
right-of-way than allowed in, or to extend, a permit that had already been issued.
• Temporary Surface. The compaction of subbase and aggregate base and replacement, in
kind, of the existing pavement only to the edges of the excavation. It is temporary in nature
except when the replacement is of pavement included in the City's two-year plan, in which case
it is considered full restoration.
• Trench. An excavation in the pavement, with the excavation having a length equal to or
greater than the width of the pavement.
• 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 providing wireless service, or 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, a public utility as defined in
M.S. § 21613.02, 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, except to the extent these
entities are offering wireless services.
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• Two -Year Project Plan. Shows projects adopted by the City for construction within the
next two years.
• Utility pole. A pole that is used in whole or in part to facilitate telecommunications or
electric service.
• Wireless facility. (a) Equipment at a fixed location that enables the provision of wireless
services between user equipment and a wireless service network, including:
(1) equipment associated with wireless service;
(2) a radio transceiver, antenna, coaxial or fiber-optic cable, regular and backup power
supplies, and comparable equipment, regardless of technological configuration; and
(3) a small wireless facility.
(b) "Wireless facility" does not include:
(1) wireless support structures;
(2) wireline backhaul facilities; or
(3) coaxial or fiber-optic cables (i) between utility poles or wireless support structures,
or (ii) that are not otherwise immediately adjacent to or directly associated with a specific
antenna.
• Wireless service. Any service using licensed or unlicensed wireless spectrum, including
the use of Wi-Fi, whether at a fixed location or by means of a mobile device, that is provided
using wireless facilities. Wireless service does not include services regulated under Title VI of
the Communications Act of 1934, as amended, including a cable service under United States
Code, title 47, section 522, clause (6).
• Wireless support structure. A new or existing structure in a public right-of-way designed
to support or capable of supporting small wireless facilities, as reasonably determined by a local
government unit.
• Wireline backhaul facility. A facility used to transport communications data by wire from
a wireless facility to a communications network.
0 360.04 Administration.
The City Administrator 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 Administrator
may delegate any or all of the duties hereunder.
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R 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 and obtain any required permits. Registration will consist of providing application
information and paying a registration fee. All fees or charges will be as set by state law or city
fee ordinance.
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 and obtain any required permits.
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.
Q 360.06 Registration Information.
Subd. I Information Required. The information provided to the City at the time of
registration shall include, but not be limited to:
A. Each registrant's name, Gopher One Call registration certificate number, address and e-
mail address if applicable, and telephone and facsimile numbers.
B. The name, address and e-mail address, if applicable, and telephone and facsimile
numbers of a local representative. The local representative or designee shall be available at all
times. Current information regarding how to contact the local representative in an emergency
shall be provided at the time of registration.
C. A certificate of insurance or self-insurance:
1. Verifying that an insurance policy has been issued to the registrant by an insurance
company licensed to do business in the State of Minnesota, or a form of self insurance acceptable
to the City;
2. Verifying that the registrant is insured against claims for personal injury, including
death, as well as claims for property damage arising out of the:
a. Use and occupancy of the right-of-way by the registrant, its officers, agents,
employees and permittees; and
b. Placement and use of facilities and equipment in the right-of-way by the registrant, its
officers, agents, employees and permittees, including, but not limited to, protection against
liability arising from completed operations, damage of underground facilities and collapse of
property;
3. Naming the City as an additional insured as to whom the coverages required herein are
in force and applicable and for whom defense will be provided as to all such coverages;
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4. Requiring that the City be notified thirty (30) days in advance of cancellation of the
policy or material modification of a coverage term;
5. Indicating comprehensive liability coverage, automobile liability coverage, workers
compensation and umbrella coverage established by the City in amounts sufficient to protect the
City and the public and to carry out the purposes and policies of this section.
6. The City may require a copy of the actual insurance policies.
7. If the person is a corporation, a copy of the certificate required to be filed under M.S. §
300.06, as amended from time to time, as recorded and certified to by the Secretary of State.
D. A copy of the person's order granting a certificate of authority from the Minnesota Public
Utilities Commission or other applicable state or federal agency, where the person is lawfully
required to have such certificate from said commission or other state or federal agency.
Subd. 2 Notice of Changes. The registrant shall keep all of the information listed above
current at all times by providing to the City information as to changes within fifteen (15) days
following the date on which the registrant has knowledge of any change.
0 360.07 Reporting Obligations.
Subd. 1 Operations.
A. Each registrant shall, at the time of registration and by December 1 of each year, file a
construction and major maintenance plan for facilities with the City. Such plan shall be
submitted using a format designated by the City and shall contain the information determined by
the City to be necessary to facilitate the coordination and reduction in the frequency of
excavations and obstructions of rights -of -way.
B. The plan shall include, but not be limited to, the following information:
1. The locations and the estimated beginning and ending dates of all projects to be
commenced during the next calendar year (in this section, a "next -year project"); and
2. To the extent known, the tentative locations and estimated beginning and ending dates
for all projects contemplated for the five years following the next calendar year (in this section, a
"five-year project").
3. The term "project" in this section shall include both next -year projects and five-year
projects.
C. By January 1 of each year the City will have available for inspection in the City's office
a composite list of all projects of which the City has been informed of the annual plans. All
registrants are responsible for keeping themselves informed of the current status of this list.
D. Thereafter, by February 1, each registrant may change any project in its list of next -year
projects, and must notify the City and all other registrants of all such changes in said list.
Notwithstanding the foregoing, a registrant may at any time join in a next -year project of another
registrant listed by the other registrant.
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Subd. 2 Additional Next -Year Projects. Notwithstanding the foregoing, the City will not
deny an application for a right-of-way permit for failure to include a project in a plan submitted
to the City if the registrant has used commercially reasonable efforts to anticipate and plan for
the project.
0360.08 Permit Requirement.
Subd. 1 Permit Required. Except as otherwise provided in this code, no person may obstruct
or excavate any right-of-way, or place any facilities or structures within the right-of-way,
without first having obtained the appropriate right-of-way permit from the City to do so.
A. Excavation permit. An excavation permit is required by a registrant to excavate that
part of the right-of-way described in such permit and to hinder free and open passage over the
specified portion of the right-of-way by placing facilities described therein, to the extent and for
the duration specified therein.
B. Obstruction permit. An obstruction permit is required by a registrant to hinder free and
open passage over the specified portion of right-of-way by placing equipment described therein
on, under or over the right-of-way, to the extent and for the duration specified therein.
C. Wireless permit. A wireless permit is required by a registrant to site a new wireless
facility, wireless backhaul line, wireless support structure, small wireless facility, or to collocate
a small wireless facility in a public right of way managed by the City.
Subd. 2 Permit Extensions. No person may excavate or obstruct the right-of-way beyond the
date or dates specified in the permit unless:
A. Such person makes a supplementary application for another right-of-way permit before
the expiration of the initial permit; and
B. A new permit or permit extension is granted.
Subd. 3 Delay Penalty. In accordance with Minnesota Rule 7819.1000 Subpart 3 and
notwithstanding Subd. D of this subsection, the City shall establish and impose a delay penalty
for unreasonable delays in right-of-way excavation, obstruction, patching or restoration. The
delay penalty shall be established by Ordinance adopted by the Council.
Subd. 4 Permit Display. Permits issued under this section shall be conspicuously displayed or
otherwise available at all times at the indicated work site and shall be available for inspection by
the City.
0 360.09 Permit Applications.
Application for a permit is made to the City. Right-of-way permit applications shall contain,
and will be considered complete only upon compliance with the requirements of the following
provisions:
Subd. 1 Registration with the City pursuant to this section;
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Subd. 2 Submission of a completed permit application form, including all required
attachments, and scaled drawings showing the location and area of the proposed project and the
location of all known existing and proposed facilities.
Subd. 3 Payment of money due the City for:
A. Permit fees, estimated restoration costs and other management costs;
B. Prior obstructions or excavations;
C. Any undisputed loss, damage, or expense suffered by the City because of applicant's
prior excavations or obstructions of the rights -of -way or any emergency actions taken by the
City;
D. Franchise fees or other charges, if applicable.
Subd. 4 Payment of disputed amounts due the City by posting security or depositing in an
escrow account an amount equal to at least 110% of the amount owing.
Subd. 5 Posting an additional or larger construction performance bond for additional facilities
when applicant requests an excavation permit to install additional facilities and the City deems
the existing construction performance bond inadequate under applicable standards.
0360.10 Issuance of Permit; Conditions.
Subd. 1 Permit Issuance. If the applicant has satisfied the requirements of this section and
other applicable Code provisions and state and federal laws, the City shall issue a permit unless it
determines that denial is necessary to protect the health, safety and welfare or to protect the
right-of-way and its current use.
Subd. 2 Conditions. The City may impose reasonable conditions upon the issuance of the
permit and the performance of the applicant thereunder to protect the health, safety and welfare
or when necessary to protect the right-of-way and its current use.
360.11 Permit Fees.
Subd. 1 Excavation Permit Fee. The City shall establish, by Ordinance adopted by the
Council, an excavation permit fee in an amount sufficient to recover the following costs:
A. The City management costs;
B. Degradation costs, if applicable.
Subd. 2 Obstruction Permit Fee. The City shall establish, by Ordinance adopted by the
Council, the obstruction permit fee and shall be in an amount sufficient to recover the City
management costs.
Subd. 2a Small Wireless Facility, Support Structure, Collocation Fees. The City shall
establish, by Ordinance adopted by the Council and consistent with state law, Wireless permit
fees in an amount sufficient to recover the City management costs, or in the absence of a fee set
by Ordinance, the fees as authorized and established by law, and specifically by M.S. 237.163, as
amended from time to time.
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Subd. 3 Payment of Permit Fees. No excavation, obstruction permit or wireless permit shall
be issued without payment of permit fees. The City may allow the applicant to pay such fees
within thirty (30) days of billing.
Subd. 4 Non Refundable. Permit fees that were paid for a permit that the City has revoked for
a breach as stated in Subsection 360.21 are not refundable.
Subd. 5 Application to Franchises. Unless otherwise agreed to in a franchise, management
costs may be charged separately from and in addition to the franchise fees imposed on a right-of-
way user in the franchise.
i 360.12 Right -of -Way Patching and Restoration.
Subd. 1 Timing. The work to be done under the excavation permit, and the patching and
restoration of the right-of-way as required herein, must be completed within the dates specified
in the permit, increased by as many days as work could not be done because of circumstances
beyond the control of the permittee or when work was prohibited as unseasonable or
unreasonable under Subsection 360.15.
Subd. 2 Patch and Restoration. The permittee shall patch its own work. The City may choose
either to have the permittee restore the right-of-way or to restore the right-of-way itself.
A. City restoration. If the City restores the right-of-way, permittee shall pay the costs
thereof within thirty (30) days of billing. If, following such restoration, the pavement settles due
to permittee's improper backfilling, the permittee shall pay to the City, within thirty (30) days of
billing, all costs associated with correcting the defective work.
B. Permittee restoration. If the permittee restores the right-of-way itself, it shall at the time
of application for an excavation permit post a construction performance bond in accordance with
the provisions of Minnesota Rule 7819.3000.
C. Degradation fee in lieu of restoration. In lieu of right-of-way restoration, a right-of-way
user may elect to pay a degradation fee. However, the right-of-way user shall remain responsible
for patching and the degradation fee shall not include the cost to accomplish these
responsibilities.
Subd. 3 Standards. The permittee shall perform excavation, backfilling, patching and
restoration according to the standards and with the materials specified by the City and shall
comply with Minnesota Rule 7819.1100.
Subd. 4 Duty to Correct Defects. The permittee shall correct defects in patching, or
restoration performed by permittee or its agents. Pennittee, upon notification from the City, shall
correct all restoration work to the extent necessary, using the method required by the City. Said
work shall be completed within five (5) calendar days of the receipt of the notice from the City,
not including days during which work cannot be done because of circumstances constituting
force majeure or days when work is prohibited as unseasonable or unreasonable under
Subsection 360.15.
Subd. 5 Failure to Restore. If the permittee fails to restore the right-of-way in the manner and
to the condition required by the City, or fails to satisfactorily and timely complete all restoration
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required by the City, the City at its option may do such work. In that event the permittee shall
pay to the City, within thirty (30) days of billing, the cost of restoring the right-of-way. If
permittee fails to pay as required, the City may exercise its rights under the construction
performance bond.
0 360.13 Joint Applications.
Subd. I Joint Application. Registrants may jointly apply for permits to excavate or obstruct
the right-of-way at the same place and time.
Subd. 2 Shared fees. Registrants who apply for permits for the same obstruction or
excavation, which the City does not perform, may share in the payment of the obstruction or
excavation permit fee. In order to obtain a joint permit, registrants must agree among themselves
as to the portion each will pay and indicate the same on their applications.
Subd. 3 With City Projects. Registrants who join in a scheduled obstruction or excavation
performed by the City, whether or not it is a joint application by two or more registrants or a
single application, are not required to pay the excavation or obstruction and degradation portions
of the permit fee, but a permit would still be required.
360.14 Supplementary Applications.
Subd. 1 Limitation on Area. A right-of-way permit is valid only for the area of the right-of-
way specified in the permit. No permittee may do any work outside the area specified in the
permit, except as provided herein. Any permittee which determines that an area greater than that
specified in the permit must be obstructed or excavated must before working in that greater area:
and
A. Make application for a permit extension and pay any additional fees required thereby;
B. Be granted a new permit or permit extension.
Subd. 2 Limitation on Dates. A right-of-way permit is valid only for the dates specified in the
permit. No permittee may begin its work before the permit start date or, except as provided
herein, continue working after the end date. If a permittee does not finish the work by the permit
end date, it must apply for a new permit for the additional time it needs, and receive the new
permit or an extension of the old permit before working after the end date of the previous
pen -nit. This supplementary application must be submitted before the permit end date.
0 360.15 Other Obligations.
Subd. 1 Compliance With Other Laws. Obtaining a right-of-way pen -nit does not relieve
permittee of its duty to obtain all other necessary permits, licenses and authority and to pay all
fees required by the City or other applicable rule, law or regulation. A permittee shall comply
with all requirements of local, state and federal laws, including M.S. §§ 216D.01 through
216D.09, as amended from time to time, (Gopher One Call Excavation Notice System). A
permittee shall perform all work in conformance with all applicable codes and established rules
and regulations, and is responsible for all work done in the right-of-way pursuant to its permit,
regardless of who does the work. A permittee seeking the placement of a new wireless support
structure for the siting of a small wireless facility in a right-of-way as authorized by law, may
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also be required to obtain a conditional use permit under this Code if the siting is proposed in a
district zoned for single-family residential use or within a historic district so designated at the
time of application.
Subd. 2 Prohibited Work. Except in an emergency, and with the approval of the City, no
right-of-way obstruction or excavation may be done when seasonally prohibited or when
conditions are unreasonable for such work.
Subd. 3 Interference with Right -of -Way. A permittee shall not so obstruct a right-of-way that
the natural free and clear passage of water through the gutters or other waterways shall be
interfered with. Private vehicles of those doing work in the right-of-way may not be parked
within or next to a permit area, unless parked in conformance with City parking regulations. The
loading or unloading of trucks must be done solely within the defined permit area unless
specifically authorized by the permit.
Q 360.16 Denial of Permit.
The City may deny a permit for failure to meet the requirements and conditions of state or
federal law, this section or other provisions of City Code, or if the City determines that the denial
is necessary to protect the health, safety, and welfare or when necessary to protect the right-of-
way and its current use. The City shall notify the telecommunications right-of-way user in
writing within three business days of the decision to deny and the basis for the denial. The
applicant may cure the deficiencies identified by the City and resubmit its application. If the
applicant resubmits the application within 30 days of receiving written notice of the denial, it
shall not be charged an additional filing or processing fee. The City shall approve or deny the
revised application within 30 days after the revised application is submitted.
0360.17 Installation Requirements.
The excavation, backfilling, patching and restoration, and all other work performed in the
right-of-way shall be done in conformance with Minnesota Rules 7819.1100 and 7819.5000 and
other applicable local requirements, in so far as they are not inconsistent with the M.S.
§§ 237.162 and 237.163, as amended from time to time.
i 360.18 Inspection.
Subd. 1 Notice of Completion. When the work under any permit hereunder is completed, the
permittee shall furnish a completion certificate in accordance Minnesota Rule 7819.1300.
Subd. 2 Site Inspection. The permittee shall make the work -site available to the City and to
all others as authorized by law for inspection at all reasonable times during the execution of and
upon completion of the work.
Subd. 3 Cessation/Corrective Orders.
A. At the time of inspection the director may order the immediate cessation of any work
which poses a serious threat to the life, health, safety or well-being of the public.
B. The City may issue an order to the permittee for any work which does not conform to
the terms of the permit or other applicable standards, conditions or codes. The order shall state
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that failure to correct the violation will because for revocation of the permit. Within ten (10)
days after issuance of the order, the permittee shall present proof to the City that the violation has
been corrected. If such proof has not been presented within the required time, the City may
revoke the permit pursuant to Subsection 360.21.
0 360.19 Work Done Without a Permit.
Subd. 1 Emergency Situations.
A. Each registrant shall immediately notify the director of any event regarding its facilities
which it considers to be an emergency. The registrant may proceed to take whatever actions are
necessary to respond to the emergency. Within two (2) business days after the occurrence of the
emergency the registrant shall apply for the necessary permits, pay the fees associated therewith
and fulfill the rest of the requirements necessary to bring itself into compliance with this section
for the actions it took in response to the emergency.
B. If the City becomes aware of an emergency regarding a registrant's facilities, the City
will attempt to contact the local representative of each registrant affected, or potentially affected,
by the emergency. In any event, the City may take whatever action it deems necessary to
respond to the emergency, the cost of which shall be borne by the registrant whose facilities
occasioned the emergency.
Subd. 2 Non -Emergency Situations. Except in an emergency, any person who, without first
having obtained the necessary permit, obstructs or excavates or places any facility or structure in
a right-of-way must subsequently obtain a permit, and as a penalty pay double the normal fee for
said permit, pay double all the other fees required by the City code, deposit with the City the fees
necessary to correct any damage to the right-of-way and comply with all of the requirements of
this section.
0360.20 Supplementary Notification.
If the project, obstruction or excavation of the right-of-way begins later or ends sooner than the
date given on the permit, permittee shall notify the City of the accurate information as soon as
this information is known.
0 360.21 Revocation of Permits.
Subd. 1 Substantial Breach. The City reserves its right, as provided herein, to revoke any
right-of-way permit, without a fee refund, if there is a substantial breach of the terms and
conditions of any statute, ordinance, rule or regulation, or any material condition of the permit.
A substantial breach by permittee shall include, but shall not be limited to, the following:
A. The violation of any material provision of the right-of-way permit;
B. An evasion or attempt to evade any material provision of the right-of-way permit, or the
perpetration or attempt to perpetrate any fraud or deceit upon the City or its citizens;
C. Any material misrepresentation of fact in the application for a right-of-way permit;
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D. The failure to complete the work in a timely manner; unless a permit extension is
obtained or unless the failure to complete work is due to reasons beyond the permittee's control;
or
E. The failure to correct, in a timely manner, work that does not conform to a condition
indicated on an order issued pursuant to 360.18.
Subd. 2 Written Notice of Breach. If the City determines that the permittee has committed a
substantial breach of a term or condition of any statute, ordinance, rule, regulation or any
condition of the permit the City shall make a written demand upon the permittee to remedy such
violation. The demand shall state that continued violations may be cause for revocation of the
permit. A substantial breach, as stated above, will allow the City, at his or her discretion, to
place additional or revised conditions on the permit to mitigate and remedy the breach.
Subd. 3 Response to Notice of Breach. Within twenty-four (24) hours of receiving
notification of the breach, the permittee shall provide the City with a plan, acceptable to the City,
that will cure the breach. The permittee's failure to so contact the City, failure to timely submit
an acceptable plan, or failure to reasonably implement the approved plan, shall be cause for
immediate revocation of the permit. Further, the permittee's failure to so contact the City, failure
to submit an acceptable plan, or failure to reasonably implement the approved plan, shall
automatically place the permittee on probation for one (1) full year.
Subd. 4 Cause for probation. From time to time, the City may establish a list of conditions of
the permit, which if breached will automatically place the permittee on probation for one full
year, such as, but not limited to, working out of the allotted time period or working on right-of-
way grossly outside of the permit authorization.
Subd. 5 Automatic Revocation. If a permittee, while on probation, commits a breach as
outlined above, permittee's permit will automatically be revoked and permittee will not be
allowed further permits for one full year, except for emergency repairs. Notice of the revocation
shall be mailed to the permittee within three business days of the decision.
Subd. 6 Reimbursement of City Costs. If a permit is revoked, the permittee shall also
reimburse the City for the City's reasonable costs, including restoration costs and the costs of
collection and reasonable attorneys' fees incurred in connection with such revocation.
Q 360.22 Mapping Data.
Each registrant and permittee shall provide mapping information required by the City in
accordance with Minnesota Rules 7819.4000 and 7819.4100.
l 360.23 Location and Relocation of Facilities.
Subd. 1 Placement, location and relocation of facilities must comply with the Act, with other
applicable law, and with Minnesota Rules 7819.3100, 7819.5000 and 7819.5100, to the extent
the rules do not limit authority otherwise available to cities.
Subd. 2 The City may assign specific area within the right-of-way, or any particular segment
thereof as may be necessary, for each type of facilities that is or, pursuant to current technology,
the City expects will someday be located within the right-of-way. All excavation, obstruction or
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other permits issued by the City involving the installation or replacement of facilities shall
designate the proper corridor for the facilities at issue. Any registrant who has facilities in the
right-of-way in a position at variance with the corridors established by the City shall, no later
than at the time of the next reconstruction or excavation of the area where the facilities are
located, move the facilities to the assigned position within the right-of-way, unless this
requirement is waived by the City for good cause shown, upon consideration of such factors as
the remaining economic life of the facilities, public safety, customer service needs and hardship
to the registrant.
Subd. 3 One year after the passage of this section, any facilities found in a right-of-way that
have not been registered shall be deemed to be a nuisance. The City may exercise any remedies
or rights it has at law or in equity, including, but not limited to, abating the nuisance or taking
possession of the facilities and restoring the right-of-way to a useable condition.
Subd. 4 Limitation of Space. To protect health, safety and welfare or when necessary to
protect the right-of-way and its current use, the City shall have the power to prohibit or limit the
placement of new or additional facilities within the right-of-way. In making such decisions, the
City shall strive to the extent possible to accommodate all existing and potential users of the
right-of-way, but shall be guided primarily by considerations of the public interest, the public's
needs for the particular utility service, the condition of the right-of-way, the time of year with
respect to essential utilities, the protection of existing facilities in the right-of-way, and future
City plans for public improvements and development projects which have been determined to be
in the public interest.
Q 360.24 Pre -excavation Facilities Location.
In addition to complying with the requirements of M.S. §§ 21613.01 through 21613.09, as
amended from time to time, ("One Call Excavation Notice System") before the start date of any
right-of-way excavation, each registrant who has facilities or equipment in the area to be
excavated shall mark the horizontal and vertical placement of all said facilities. Any registrant
whose facilities are less than twenty (20) inches below a concrete or asphalt surface shall notify
and work closely with the excavation contractor to establish the exact location of its facilities and
the best procedure for excavation.
Q 360.25 Damage to Other facilities.
When the City does work in the right-of-way and finds it necessary to maintain, support or
move a registrant's facilities to protect it, the City shall notify the local representative as early as
is reasonably possible. The costs associated therewith will be billed to that registrant and must
be paid within thirty (30) days from the date of billing. Each registrant shall be responsible for
the cost of repairing any facilities in the right-of-way which it or its facilities damages. Each
registrant shall be responsible for the cost of repairing any damage to the facilities of another
registrant caused during the City's response to an emergency occasioned by that registrant's
facilities.
Q 360.26 Right -of -Way Vacation.
If the City vacates a right-of-way which contains the facilities of a registrant, the registrant's
rights in the vacated right-of-way are governed by Minnesota Rules 7819.3200.
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0 360.27 Indemnification and Liability.
By registering with the City, or by accepting a permit under this section, a registrant or
permittee agrees to defend and indemnify the City in accordance with the provisions of
Minnesota Rule 7819.1250.
0360.28 Abandoned and Unusable Facilities.
Subd. 1 Discontinued Operations. A registrant who has determined to discontinue all or a
portion of its operations in the City must provide information satisfactory to the City that the
registrant's obligations for its facilities in the right-of-way under this section have been lawfully
assumed by another registrant.
Subd. 2 Removal. Any registrant who has abandoned facilities in any right-of-way shall
remove it from that right-of-way if required in conjunction with other right-of-way repair,
excavation or construction, unless this requirement is waived by the City.
0 360.29 Appeal.
A right-of-way user that:
Subd. 1 Has been denied registration;
Subd. 2 Has been denied a permit;
Subd. 3 Has had permit revoked; or
Subd. 4 Believes that the fees imposed are invalid, may have the denial, revocation or fee
imposition reviewed, upon written request, by the City Council. The City Council shall act on a
timely written request at its next regularly scheduled meeting. A decision by the City Council
affirming the denial, revocation or fee imposition will be in writing and supported by written
findings establishing the reasonableness of the decision.
l 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, also 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:
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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:
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. 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.
B. 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.
C. Trim, prune, maintain, and/or remove as necessary, any tree in the boulevard between
their property and the improved portion of the right-of-way. 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.
D. Remove any tree in the boulevard between their property and the improved portion of the
right-of-way 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.
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E. 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.
0 360.31 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 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.
SECTION 2. This Ordinance shall become effective immediately upon its passage and
publication according to law.
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eday
PASSED and ADOPTED this of , 2017, by the City Council
of the City of Arden Hills, Minnesota.
CITY OF ARDEN HILLS
By
David Grant, Mayor
ATTEST:
Jul' V-�= �4V44�
anson, City Clerk
Published in theS'h*tM00 Ak4^14115 on 2017.
u,! n
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