HomeMy WebLinkAboutOrdinance No. 4474 .1. (b) Ordinance - Public Right-of-way Management
ORDINANCE NO___________
AN ORDINANCE CREATING SECTIONS 9-2-1.1, 9-2-7.5, 9-2-21,
9-2-22, 9-2-23, CREATING CLAUSE (4) OF PARAGRAPH (a) OF
SECTION 9-2-5, CREATING PARAGRAPHS (c) AND (d) OF
SECTION 9-2-7, AMENDING SECTIONS 9-2-8, 9-2-10 AND
PARAGRAPH (b) OF SECTION 9-2-1 OF CHAPTER 9-2 OF
TITLE 9 OF THE ROCHESTER CODE OF ORDINANCES
RELATING TO PUBLIC RIGHT-OF-WAY MANAGEMENT.
THE COMMON COUNCIL OF THE CITY OF ROCHESTER ORDAINS:
Section 1. Section 9-2-1.1 of Chapter 9-2 of the Rochester Code of Ordinances is hereby
created to read as follows:
Sec. 9-2-1.1. – Definitions.
The following definitions and the definitions set forth in Minnesota Statutes section
237.162 apply to this Chapter. References hereafter to "sections" are, unless otherwise
specified, references to sections in this chapter. Defined terms remain defined terms,
whether or not capitalized.
Applicant means any person requesting permission to excavate or obstruct a right-of-
way.
City means the city of Rochester, Minnesota. For purposes of section 1.28, city also
means the City’s elected officials, officers, employees and agents.
Collocate or Collocation means to install, mount, maintain, modify, operate, or replace
a small wireless facility on, under, within, or adjacent to an existing wireless support
structure or utility pole that is owned privately, or by the city or other governmental unit.
Note: See, Minn. Stat. § 237.162, Subd. 10.
Department means the department of public works of the city.
Delay Penalty means the penalty imposed as a result of unreasonable delays in right-of-
way excavation, obstruction, patching, or restoration as established by permit.
Emergency means a condition that (1) poses a danger to life or health, or of a significant
loss of property; or (2) requires immediate repair or replacement of facilities in order to
restore service to a customer.
Equipment means any tangible asset used to install, repair, or maintain facilities in any
right-of-way.
Excavate means to dig into or in any way remove or physically disturb or penetrate any
part of a right-of-way.
Excavation permit means the permit which, pursuant to this chapter, must be obtained
before a person may excavate in a right-of-way. An Excavation permit allows the holder to
excavate that part of the right-of-way described in such permit.
Facility or Facilities means any tangible asset in the right-of-way required to provide Utility
Service.
Local Representative means a local person or persons, or designee of such person or
persons, authorized by a registrant to accept service and to make decisions for that
registrant regarding all matters within the scope of this chapter.
Management Costs means 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 the city
including fees tied to or based on customer counts, access lines, or revenues generated
by the right-of-way or for the city, the fees and cost of litigation relating to the interpretation
of Minnesota Session Laws 1997, Chapter 123; Minnesota Statutes Sections 237.162 or
237.163; or any ordinance enacted under those sections, or the city fees and costs related
to appeals taken pursuant to Section 1.30 of this chapter.
Obstruct means to place any tangible object in a right-of-way so as to hinder free and open
passage over that or any part of the right-of-way.
Obstruction Permit means the permit which, pursuant to this chapter, must be obtained
before a person may obstruct a right-of-way, allowing the holder to hinder free and open
passage over the specified portion of that right-of-way, for the duration specified therein.
Patch or Patching means a 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 Capital Improvement Plan within the next two years.
Permit includes the meaning given "right-of-way permit" in Minnesota Statutes, section
237.162.
Permittee means any person to whom a permit to excavate or obstruct a right-of-way has
been granted by the city under this chapter.
Person means an individual or entity subject to the laws and rules of this state, however
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organized, whether public or private, whether domestic or foreign, whether for profit or
nonprofit, and whether natural, corporate, or political.
Probation means the status of a person that has not complied with the conditions of this
chapter.
Restore or Restoration means the process by which an excavated right-of-way and
surrounding area, including pavement and foundation, is returned to the same condition and
life expectancy that existed before excavation.
Restoration Cost means the amount of money paid to the city by a permittee to achieve the
level of restoration according to plates 1 to 13 of Minnesota Public Utilities Commission rules.
Public Right-of-Way or Right-of-Way means the area on, below, or above a public roadway,
highway, street, cartway, bicycle lane or public sidewalk in which the city has an interest,
including other dedicated rights-of-way for travel purposes and utility easements of the city.
A right-of-way does not include the airwaves above a right-of-way with regard to cellular or
other nonwire telecommunications or broadcast service.
Right-of-Way Permit means either the excavation permit or the obstruction permit, or both,
depending on the context, required by this chapter.
Right-of-Way User means (1) A telecommunications right-of-way user as defined by
Minnesota Statutes, section 237.162, subd. 4; or (2) a person owning or controlling a facility
in the right-of-way that is used or intended to be used for providing utility service, and who
has a right under law, franchise, or ordinance to use the public right-of-way.
Service or Utility Service includes (1) those services provided by a public utility as defined in
Minn. Stat. 216B.02, subds. 4 and 6; (2) services of a telecommunications right-of-way user,
including transporting of voice or data information; (3) services of a cable communications
systems as defined in Minn. Stat. Chapter. 238; (4) natural gas or electric energy or
telecommunications services provided by the city; (5) services provided by a cooperative
electric association organized under Minn. Stat., Chapter 308A; and (6) water, and sewer,
including service laterals, steam, cooling or heating services.
Small Wireless Facility means 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 could fit within such an enclosure; and
ii. all other wireless equipment associated with the small wireless facility provided such
equipment is, in aggregate, no more than 28 cubic feet in volume, not including
electric meters, concealment elements, telecommunications demarcation boxes,
battery backup power systems, grounding equipment, power transfer switches,
cutoff switches, cable, conduit, vertical cable runs for the connection of power and
other services, and any equipment concealed from public view within or behind an
existing structure or concealment.
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Note: Minn. Stat. § 237.162, Subd. 11.
Supplementary Application means an application made to excavate or obstruct more of
the right-of-way than allowed in, or to extend, a permit that had already been issued.
Wireless Facility means any equipment at a fixed location that enables the provision of
wireless services between user equipment and a wireless service network, including
equipment associated with wireless service, a radio transceiver, antenna, coaxial or fiber-
optic cable, regular and backup power supplies, and a small wireless facility, but not
including wireless support structures, wireline backhaul facilities, or cables between utility
poles or wireless support structures, or not otherwise immediately adjacent to and directly
associated with a specific antenna.
Note: Minn. Stat. § 237.162, Subd. 13.
.
Section 2. Section 9-2-7.5 of Chapter 9-2 of the Rochester Code of Ordinances is hereby created
to read as follows:
Sec. 9-2-7.5. Action on Small Wireless Facility Permit Applications.
(a) Deadline for Action. The city shall approve or deny a small wireless facility permit application
within 90 days after filing of such application. The small wireless facility permit, and any
associated building permit application, shall be deemed approved if the city fails to approve
or deny the application within the review periods established in this section.
(b) Consolidated Applications. An applicant may file a consolidated small wireless facility permit
application addressing the proposed collocation of up to 15 small wireless facilities, or a
greater number if agreed to by a local government unit, provided that all small wireless
facilities in the application meet the following conditions:
(1) are located within a two-mile radius;
(2) consist of substantially similar equipment; and
(3) are to be placed on similar types of wireless support structures.
In rendering a decision on a consolidated permit application, the city may approve some small
wireless facilities and deny others, but may not use denial of one or more permits as a basis
to deny all small wireless facilities in the application.
(c) Tolling of Deadline. The 90-day deadline for action on a small wireless facility permit
application may be tolled if:
(1) The city receives applications from one or more applicants seeking approval of permits for
more than 30 small wireless facilities within a seven-day period. In such case, the city
may extend the deadline for all such applications by 30 days by informing the affected
applicants in writing of such extension.
(2) The applicant fails to submit all required documents or information and the city provides
written notice of incompleteness to the applicant within 30 days of receipt the application.
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Upon submission of additional documents or information, the city shall have ten days to
notify the applicant in writing of any still-missing information.
(3) The city and a small wireless facility applicant agree in writing to toll the review period.
Note: Minn. Stat. § 237.163, Subd. 3c.
Section 3. Section 9-2-21 of Chapter 9-2 of the Rochester Code of Ordinances is hereby
created to read as follows:
Sec. 9-2-21. Appeal.
A right-of-way user that:
(1) has been denied a permit;
(2) has had a permit revoked;
(3) believes that the fees imposed are not in conformity with applicable law including Minn.
Stat. § 237.163, Subd. 6; or
(4) disputes a determination of the director, may have the denial, revocation, fee
imposition, or decision reviewed, upon written request, by the city council.
The city council shall act on a timely written request at its next regularly scheduled meeting,
provided the right-of-way user has submitted its appeal with sufficient time to include the appeal
as a regular agenda item. 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.
Section 4. Section 9-2-22 of Chapter 9-2 of the Rochester Code of Ordinances is hereby created
to read as follows:
Sec. 9-2-22. Reservation of Regulatory and Police Powers.
A permittee’s rights are subject to the city charter and the regulatory and police powers
of the city to adopt and enforce general ordinances as necessary to protect the health, safety
and welfare of the public.
Section 5. Section 9-2-23 of Chapter 9-2 of the Rochester Code of Ordinances is hereby created
to read as follows:
Sec. 9-2-23. Severability.
If any portion of this chapter is for any reason held invalid by any court of competent
jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and
such holding shall not affect the validity of the remaining portions thereof. Nothing in this chapter
precludes the city from requiring a franchise agreement with the applicant, as allowed by law, in
addition to requirements set forth herein.
Section 6. Clause (4) of Paragraph (a) of Section 9-2-5 of Chapter 9-2 of the Rochester Code
of Ordinances is hereby created to read as follows:
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Sec. 9-2-5. – Permits.
(4) Small Wireless Facility Permit. A small wireless facility permit is required by any person
wishing to erect or install a wireless support structure, to collocate a small wireless
facility, or to otherwise install a small wireless facility in a portion of the right-of-way as
specified in the permit, provided that such permit shall remain in effect for the length of
time the facility is in use, unless lawfully revoked.
Note: Minn. Stat. § 237.163, Subd. 13.
Section 7. Paragraphs (c) and (d) of Section 9-2-7 of Chapter 9-2 of the Rochester Code of
Ordinances is hereby created to read as follows:
Sec. 9-2-7. – Issuance of permit; conditions.
(c) Small Wireless Facility Conditions. In addition to conditions imposed under paragraph (b),
the erection or installation of a wireless support structure, the collocation of a small wireless
facility, or other installation of a small wireless facility in the right-of-way shall be subject to the
following conditions:
(1) A small wireless facility shall only be collocated on the particular wireless support
structure, under those attachment specifications, and at the height indicated in the applicable
permit application and permit.
(2) No new wireless support structure installed within the right-of-way shall exceed 50
feet in height without the city’s written authorization, provided that the city may impose a lower
height limit in the applicable permit to protect the public health, safety and welfare or to protect
the right-of-way and its current use, and further provided that the applicant may propose to replace
an existing wireless support structure exceeding 50 feet in height with a structure of the same
height subject to such conditions or requirements as may be imposed in the applicable permit.
(3) No wireless facility may extend more than 10 feet above its wireless support
structure.
(4) Where an applicant proposes to install a new wireless support structure in the right-
of-way, the city may impose separation requirements between such structure and any existing
wireless support structure or other facilities in and around the right-of-way.
(5) Where an applicant proposes collocation on a decorative wireless support
structure, sign or other structure not intended to support small wireless facilities, the city may
impose reasonable requirements to accommodate the particular design, appearance or intended
purpose of such structure.
(6) Where an applicant proposes to replace a wireless support structure, the city may
impose reasonable restocking, replacement, or relocation requirements on the replacement of
such structure.
(7) The applicant must follow the City of Rochester’s Public Right of Way Small
Wireless Facility Aesthetic Policy; Requirements and Construction Criteria, available at
https://www.rochestermn.gov/home/showpublisheddocument/23441.
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Note: Minn. Stat. § 237.163, Subd. 3b.
(d) Small Wireless Facility Agreement. A small wireless facility shall only be collocated on a
small wireless support structure owned or controlled by the city or Rochester Public Utilities
(RPU), or any other city or RPU asset in the right-of-way, after the applicant has executed a
standard small wireless facility collocation agreement. The city collocation agreement may
require payment of the following:
(1) Up to $150 per year for rent to collocate on a city structure inflated by 3% annually or
as otherwise set forth in the standard agreement or fee schedule.
(2) $25 per year for maintenance associated with the collocation;
(3) A monthly fee for electrical service as follows:
a. $73 per radio node less than or equal to 100 maximum watts;
b. $182 per radio node over 100 maximum watts; or
c. The actual costs of electricity, if the actual cost exceed the foregoing.
The standard collocation agreement shall be in addition to, and not in lieu of, the required small
wireless facility permit. Issuance of a small wireless facility permit does not supersede, alter or
affect any then-existing agreement between the city or RPU and applicant,
Note: Minn. Stat. § 237.163, Subd. 6(g).
Section 8. Section 9-2-8 of Chapter 9-2 of the Rochester Code of Ordinances is hereby amended
to read as follows:
Sec. 9-2-8. – Permit fees.
The city council shall, by resolution, adopt a fee schedule managed by the director. With
respect to small wireless facility permits, the permit fee shall be in an amount sufficient to recover:
(a) Right-of-way management costs, and;
(b) City engineering make-ready, and construction costs associated with collocation of small
wireless facilities.
Section 9. Section 9-2-10 of Chapter 9-2 of the Rochester Code of Ordinances is hereby
amended to read as follows:
Sec. 9-2-10. – Denial of permit.
(a) The city may deny a permit application if the city determines:
(1) The application fails to meet the requirements and conditions of this chapter;
(2) Denial is necessary to protect the public's health, safety, and welfare;
(3) Denial is necessary to protect the public right-of-way and its current use; or
(4) The applicant has failed to comply with any provision of this chapter within the past
12 months.
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(b) Procedural Requirements. The denial or revocation of a permit must be made in writing
and must document the basis for the denial. The city must notify the applicant in writing within
three business days of the decision to deny or revoke a permit. If an application is denied, the
applicant may address the reasons for denial identified by the city and resubmit its application. If
the application is resubmitted within 30 days of receipt of the notice of denial, no additional
application fee shall be imposed. The city must approve or deny the resubmitted application within
30 days.
Note: Minn. Stat. § 237.163, Subds. 4(c) and 5(f)
Section 10. Paragraph (b) of Section 9-2-1 of Chapter 9-2 of the Rochester Code of
Ordinances is hereby amended to read as follows:
Sec. 9-2-1. – Findings, purpose and intent.
(b) This chapter shall be interpreted consistently with the 1997 Session Laws, chapter 123,
substantially codified in Minn. Stats. §§ 237.16, 237.162, 237.163, 237.79, 237.81, and
238.086 (the "Act") and acts amendatory thereto, including the 2017 Session Laws, chapter
94, and the other laws governing applicable rights to the city and users of the rights-of-way.
This chapter shall also be interpreted consistent with Minn. R. pts. 7819.0050—7819.9950
where possible. To the extent any provision of this chapter cannot be interpreted consistently
with the Minnesota Rules, that interpretation most consistent with the Act and other
applicable statutory and case law is intended. This chapter shall not be interpreted to limit
the regulatory and police powers of the city to adopt and enforce general ordinances
necessary to protect the health, safety and welfare of the public. The city's placement of
public infrastructure consistent with its adopted standards, policies, and practices for the
horizontal and vertical location of its facilities shall be considered compliant with said
Minnesota Rules and shall have priority of location over any other utility proposed or existing
within the right-of-way or utility easements. The term "public infrastructure" shall include, but
not be limited to, roadways, sanitary sewers, water mains, and storm sewers.
Section 11. This ordinance shall become effective from and after its publication.
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PASSED AND ADOPTED BY THE COMMON COUNCIL OF THE CITY OF
ROCHESTER, MINNESOTA, THIS __________ DAY OF _______________, 2022.
___________________________________
PRESIDENT OF SAID COMMON COUNCIL
ATTEST: __________________________
CITY CLERK
APPROVED THIS _____ DAY OF ______________________, 2022.
___________________________________
MAYOR OF SAID CITY
(Seal of the City of
Rochester, Minnesota)
Ord20/9-2.PublicROWManage.docx
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