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2018 03-01 PCP
PLANNING COMMISSION AGENDA CITY OF BROOKLYN CENTER March 1, 2018 1. Call to Order: 7:00 PM 2. Roll Call 3. Approval of Agenda Motion to Approve Planning Commission Meeting Agenda for March 1, 2018 4. Approval of Minutes Motion to Approve the February 15, 2018, Meeting Minutes 5. Chairperson's Explanation The Planning Commission is an advisory body. One of the Commission's functions is to hold public hearings. In the matters concerned in these hearings, the Commission makes recommendations to the City Council. The City Council makes all final decisions in these matters. 6. Planning Application Items None 7. Discussion Items a) Ordinance Relating to Activities within the Right-of-Way, Amending City Ordinance Section 25-1000 (Small Cell Wireless Carriers) b) Follow-up on City Council Work Session (Opportunity Site) – February 20, 2018 8. Other Business None 9. Adjournment PC Minutes 02-15-18 -1- DRAFT MINUTES OF THE PROCEEDINGS OF THE PLANNING COMMISSION OF THE CITY OF BROOKLYN CENTER IN THE COUNTY OF HENNEPIN AND THE STATE OF MINNESOTA FEBRUARY 15, 2018 1. CALL TO ORDER The Planning Commission meeting was called to order by Chair Christensen at 7:02 p.m. 2. ROLL CALL Chair Randall Christensen, and Commissioners Alexander Koenig, Jack MacMillan, Stephen Schonning, Rochelle Sweeney, Susan Tade, and Abraham Rizvi were present. City Planner and Zoning Administrator, Ginny McIntosh, Interim Community Development Director, Michael Ericson, and Michaela Kujawa-Daniels of TimeSaver Off Site Secretarial, Inc., were also present. 3. APPROVAL OF AGENDA – FEBRUARY 15, 2018 There was a motion by Commissioner Sweeney, seconded by Commissioner MacMillan, to approve the agenda for the February 15, 2018, meeting as submitted. The motion passed unanimously. 4. APPROVAL OF MINUTES – JANUARY 11, 2018 There was a motion by Commissioner Schonning, seconded by Commissioner Rizvi, to approve the minutes of the January 11, 2018, meeting as submitted. The motion passed unanimously. 5. ADMINISTER OATH OF OFFICE (to re-appointed commissioners) City Planner and Zoning Administrator Ginny McIntosh administered the Oath of Office to Commissioner Rochelle Sweeney. 6. CHAIRPERSON’S EXPLANATION Chair Christensen explained the Planning Commission’s role as an advisory body. One of the Commission’s functions is to hold public hearings. In the matters concerned in these hearings, the Commission makes recommendations to the City Council. The City Council makes all final decisions in these matters. 7. PLANNING APPLICATION ITEMS None at this time. PC Minutes 02-15-18 -2- DRAFT 8. DISCUSSION ITEMS 8a) 2040 COMPREHENSIVE PLAN PROCESS WITH JENNIFER HASKAMP OF SWANSON HASKAMP CONSULTING (SHC) Jennifer Haskamp introduced this item and provided a presentation on the 2040 Comprehensive Plan. Commissioner Sweeney asked if the vacancy rate for the City is within normal range and expressed her concerns that the City has image problems. She was not convinced that building a lot of apartments will be enough to draw people into the City. Ms. Haskamp stated the vacancy rates vary a lot but the numbers presented are not far off from other surrounding cities. Commissioner Tade asked how the projection numbers are determined. Ms. Haskamp stated the Metropolitan Council looked at city trends at regional and national levels and then made the determinations; she stated it isn’t an exact science. Chair Christensen stated the numbers are confusing as they all seem to be inconsistent. Ms. Haskamp stated that is mainly due to the fact that the numbers take a long time to catch up, as the planning process takes about 10 years to review and add the data. Ms. Haskamp stated she would be providing a SWOT (Strengths, Weaknesses, Opportunities, and Threats) analysis form to fill out and return to her by the next scheduled Planning Commission meeting. She stated the information will be input into a survey engine, which will help formulate goals for the 2040 plan. She stated a project webpage is currently underway and will provide links to the surveys. In an effort to obtain feedback from the community, this page will eventually be opened up to the general public. Chair Christensen stated he wants to make sure input is received from other City Commissions that can offer another point of view and insight. Ms. McIntosh stated they have already made initial contact with some of the other Commissions and she will be following up with them over the next few months. Chair Christensen stated he is curious to understand how Brooklyn Center’s poverty level has been steadily climbing, while Brooklyn Park’s has declined. He stated he would like to know what Brooklyn Park has been doing to contribute to the decline and what Brooklyn Center could learn from that. He stated that seeing Brooklyn Park with a decline in poverty is encouraging. Commissioner Sweeney noted it is important to remember that poverty doesn’t necessarily only apply to young people; it could be seniors who are mostly on a fixed income. She stated those are the people in the community they need to think about when making redevelopment plans so they can try to accommodate housing for that demographic as well. Given the tight timeline to have a draft Comprehensive Plan prepared, Chair Christensen stated he would like the Planning Commission to return their completed documents to Ms. McIntosh by Monday February 26, 2018. PC Minutes 02-15-18 -3- DRAFT 8b) FOOD TRUCKS Ms. McIntosh explained that the current regulation of food trucks in Brooklyn Center was discussed at the City Council Work Session on February 12, 2018. She walked through the presentation from February 12, which included information on current City policies, state policies, what neighboring communities are doing, and noted the complexities of drafting ordinances and the regulation of food trucks in the state of Minnesota. Ms. McIntosh stated the City Council would like City staff to formulate a few conceptual ideas as to how food trucks could be regulated in the City, and ultimately bring it back to City Council for review. She stated the City Council generally supported the idea of having food trucks in the City but would like some ideas on how to proceed. Depending on the progression of this Work Session item, the Planning Commission may eventually become engaged in the process. 8c) PENDING/UPCOMING PLANNING COMMISSION SUBMITTALS Ms. McIntosh stated she received two formal submittals. She stated one of the items is for an indoor storage facility on the City’s 57th and Logan site, and the second is a proposal for a wedding and event center at the site of the former AMF Earle Brown Lanes building, located at 6440 James Circle North. She noted both applicants hope to hold public hearings at the Planning Commission meeting scheduled for March 15, 2018. 8d) CITY COUNCIL WORK SESSION (OPPORTUNITY SITE) Ms. McIntosh explained the special City Council Work Session will take place on February 20, 2018. She noted there will be two developers at the meeting. Each developer will have an hour to present their proposal, and an additional hour will be set aside for City Council to deliberate the proposals. Chair Christensen inquired as to whether they would be in violation of the Open Meetings Act if a quorum of Planning Commissioners was in attendance. He encouraged the Commissioners to join the meeting if they are able. Ms. McIntosh stated she will follow up with City Clerk Sharon Knutson and take the steps necessary to ensure compliance with the public meeting requirements. 9. OTHER BUSINESS Interim Community Development Director Michael Ericson stated that the new Community Development Director’s first day is next Tuesday, February 20. Her name is Meg Beekman, and she most recently worked for the City of Hopkins as their Community Development Coordinator. Mr. Ericson stated he withdrew his application for the permanent Community Development Director position and noted it was with mixed emotions, as the timing just wasn’t right for his life at this time. He stated he will be working to get the new Community Development Director up to speed and will transition to the role of Assistant to the City Manager. He noted to the Commission that he will be around for a while to help with the transition and provide assistance on special projects given all the projects going on. PC Minutes 02-15-18 -4- DRAFT Commissioner Tade thanked Mr. Ericson for all the work he has done. The other Commissioners echoed her thoughts. 10. ADJOURNMENT There was a motion by Commissioner Tade, seconded by Commissioner Sweeney, to adjourn the Planning Commission meeting. The motion passed unanimously. The meeting adjourned at 8:53 p.m. _______________________________ _______________________________ Ginny McIntosh, Secretary Randall Christensen, Chair Regulation of Food Trucks (Mobile Food Units) CC Work Session (02.12.2018) Source: Andrew Zimmern §Food trucks are *only* allowed through issuance of an Administrative Permit §Designed for use around: special and promotional events, temporary outdoor sales, displays of merchandise, charity and fundraiser events, etc. §Typically issued to brick and mortar businesses, non-profits (e.g., churches), and government entities (e.g., fire department, community center) §Food trucks are allowed to operate in conjunction with the approved event §Other than through issuance of an Administrative Permit, food trucks are prohibited from operating within the City of Brooklyn Center on an on-going, regular basis Current City Policy Current City Policy (Cont.) Annual Allowance for Administrative Permits USE PERMIT LIMITATIONS Commercial + Industrial •Two 10-day permits per calendar year •Permits cannot be broken up into smaller increments •Charitable and fundraising activities may be held on commercial or industrial sites-event must be solely for charity or non-profit (no direct benefit to business on site) Church Functions, Civic Events, Charities, and Fundraisers •Unlimited Gasoline Service Stations •Four (4) car wash fundraiser permits per calendar year for fundraising events What is a food truck? ¡According to the Minnesota Department of Health, Minnesota Statutes, section 157.15 defines a mobile food unit (“a food and beverage service establishment that is a vehicle mounted unit”) as: ¡Motorized or trailered, operating no more than 21 days annually at any one place, or operating more than 21 days at any one place with the approval of the regulatory authority as defined in Minnesota Rules, part 4626.0020, subpart 70; or ¡Operated in conjunction with a permanent business licensed under this chapter (157) or chapter 28A of the permanent business by the same individual or company, and readily movable, without dissembling, for transport to another location. The American Planning Association (APA) notes that, “Most localities limit the presence of food trucks to nonresidential districts, and it is common to establish distancing requirements from existing restaurants, residential districts, or other vendors. Most also enact operational standards such as limitations on hours of operation, mandatory access to restrooms, or noise or sanitation requirements to minimize potential negative impacts. Some ordinances also provide for food truck courts, where multiple food trucks gather at one site to provide more of a destination experience.” Food Trucks in General ¡Food trucks are most visible in larger cities, but are popping up in other metropolitan locations ¡In 2010, the City of Minneapolis passed an ordinance allowing mobile food vehicle vendors (including food trucks and carts) to operate in the City §2010: 10 food trucks were licensed §2017: 143 food trucks were licensed ¡Some Minnesota communities have made revisions to their municipal code to provide opportunities for entrepreneurs and small businesses to build up their business ¡Other communities are looking for opportunities to add: §Interest §Vibrancy §Activity §Increased food access (in areas underserved by brick and mortar restaurants) Food Truck Policy in MN ¡In Minnesota, Food Trucks (Mobile Food Units) must comply with local public health department regulations for food service establishments §In Brooklyn Center, food truck vendors would likely check first with the Hennepin County Health Department to determine licensing needs ¡There are many challenges and complexities surrounding licensure of food trucks as there are at least 32 delegated health department agencies operating within State of Minnesota §Common to see food truck vendors in possession of multiple food truck licenses §EXAMPLE: A food truck vendor operating in the cities of Brooklyn Center, Minneapolis, St. Paul, and Brooklyn Park, would likely need licenses from: §Hennepin County Health Department (Brooklyn Center) §City of Minneapolis Health Department (Minneapolis) §Minnesota Department of Health (St. Paul) §City of Brooklyn Park Health Department (Brooklyn Park) §Food trucks selling certain novelty items (e.g., packaged ice cream, convenience food, bakeries) require licensure from the Minnesota Department of Agriculture Food Truck Regulations in MN ¡Other requirements for food truck licensure include compliance with: §Minnesota Food Code §Minnesota State Mechanical Code (Minnesota Rules, Chapter 1346) for gas hook-ups and services §Minnesota State Electrical Code (Minnesota Rules, Chapter 1315) for electrical services, and the presence of a fire extinguisher with a minimum 2A 10 B C rating if required by the State Fire Marshal §Potential additional requirements surrounding: §Source of food, equipment, dishwashing and handwashing facilities, water supply, and waste disposal §Food Safety Training (Required by Hennepin County Health Department and Minnesota Department of Health) Additionally: Hennepin County and Minnesota Department of Health require that a food truck be in one place no more than 21 days per year §Some municipalities have passed ordinances allowing food trucks to stay longer, subject to certain conditions For Example: §Obtain permission from property owner §Food truck is to be at designated location ONLY during operating hours §Restrictions that permit food trucks to operate only in certain areas of the city §Minimum distance requirements for locations near brick and mortar restaurant establishments Food Truck Regulations in MN (Cont.) ¡There is no one way to develop a policy surrounding food trucks (Mobile Food Units) §Some of Brooklyn Center’s neighboring communities: §A llow for on-street trucks, while others require food trucks to be in parking lot locations §L imit the number of food trucks in a designated area, while others do not §Allow for overnight parking on-site under certain conditions §R estrict food trucks to certain areas of the city §R estrict the hours of operation §A llow food trucks only on a temporary basis, while others issue annual licenses (and everything in between) Examples: Golden Valley has 1-3 day, 1 day (residential only), and 4-120 day licenses ¡Some municipalities (e.g., Minneapolis, Brooklyn Park, Golden Valley) have additional setback restrictions regulating the minimum distance a food truck must maintain from a brick and mortar eating establishment, outdoor dining area, school, or main entrance to event center (e.g., Target) ¡Golden Valley has provisions that provide minimum setbacks for food trucks to be from principal and accessory structures ¡Saint Louis Park requires a minimum distance of 30 feet to be maintained from a public road Food Truck Policy in Surrounding Communities Food Truck Policy in Surrounding Communities Source: City of Minneapolis Source: City of Brooklyn Park ¡The Planning Commission held a discussion on the regulation of food trucks in the City of Brooklyn Center at their January 11, 2018, meeting In summary: §Majority of Commission felt that the City of Brooklyn Center would benefit from this type of use §Stressed the importance of keeping the City competitive with surrounding communities §Held a discussion as to how food trucks could serve as a way for businesses to test the market before committing to a community and opening in a restaurant space §Some concerns relating to pricing of food, overall cleanliness, and difficulty in finding them (e.g., on-street) Feedback from Planning Commission Food Trucks (Examples) Sources: Growler Magazine Post Bulletin MPR News PopUpsters Orange County Register The Buchan Group MinnPost (1) Would you like additional information to determine the direction the City should take on the regulation of food trucks (Mobile Food Units)? If so, what information do you require? (2) Are there certain concerns, restrictions, or provisions that the City should consider if it is to license food trucks (Mobile Food Units)? (3) Should the City’s advisory commissions provide input and direction? (4) Given these findings, should staff take further action to draft an ordinance allowing or expanding the presence of food trucks? Policy Issues COUNCIL ITEM MEMORANDUM Our Vision: We envision Brooklyn Center as a thriving, diverse community with a full range of housing, business, cultural and recreational offerings. It is a safe and inclusive place that people of all ages love to call home, and visitors enjoy due to its convenient location and commitment to a healthy environment DATE: February 20, 2018 TO: Curt Boganey, City Manager THROUGH: Mike Albers, P.E., City Engineer FROM: Andrew Hogg, P.E, Assistant City Engineer SUBJECT: An Ordinance Relating to Activities Within the Right-of-Way; Amending City Ordinance Section 25-1000 Recommendation: It is recommended that the City Council consider approval of an Ordinance Relating to Activities Within the Right-of-Way; Amending City Ordinance Section 25-1000. Background: Significant changes in the wireless industry and its related shared wireless infrastructures, along with consumer demand for fast and reliable service on mobile devices, have fueled a frenzy of requests for large and small cell/DAS site development and/or deployment. As a part of this, cities find themselves facing cell industry arguments that federal law requires cities to approve tower siting requests. Private for-profit small cell wireless (SCW) carriers represent the continuation of their nationwide goal to limit cities’ authority to protect the public interest and to influence where SCW technology is installed. The effort also seeks to circumvent Federal and State courts that have consistently agreed that local governments retain their regulatory authority and, when faced with making decisions on placement of towers, antenna or new telecommunication service equipment on City facilities; that cities have the same rights as private individuals have to deny or permit placement of a cellular tower on their property. In Minnesota, to clear up confusion about whether wireless providers represent telecommunications right-of-way users under state law and to address concerns about deployment of small wireless technology, the Legislature amended Minnesota’s Right-of-Way User statutes, or Minnesota ROW Law, in the 2017 legislative session to specifically address small wireless facilities and the support structures on which those facilities may attach. Because of these amendments, effective May 31, 2017, additional specific state statutory provisions apply when cities, through an ordinance, manage their rights-of-way, recover their right-of-way management costs (subject to certain restrictions) and charge rent for attaching to city-owned structures in public rights-of-way. Rent, however, is capped for collocation of small wireless facilities. State law defines “collocate" or "collocation" as a means 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. COUNCIL ITEM MEMORANDUM Our Vision: We envision Brooklyn Center as a thriving, diverse community with a full range of housing, business, cultural and recreational offerings. It is a safe and inclusive place that people of all ages love to call home, and visitors enjoy due to its convenient location and commitment to a healthy environment Because of the recent significant changes in state law and specific requirements for deployment of small wireless facilities that do not apply to other telecommunications right-of-way users, cities should work with their City Attorneys to review and update their ordinances. City staff has been working with the City Attorney to revise the Right-of-Way Ordinance to meet the requirements of the state statues regarding right-of-way while still protecting the City rights to manage their own right-of-way. The Planning Commission will review the ordinance changes and provide a recommendation prior to the March 26, 2018, City Council meeting. Consistent with the City Charter, a first reading to establish a date for a second reading and public hearing to consider the proposed ordinance is requested for March 26, 2018. Budget Issues: There are no budget issues to consider. Strategic Priorities: • Safe, Secure, Stable Community DRAFT 9-6-17 1 506195v2 AMB BR291-4 CITY OF BROOKLYN CENTER Notice is hereby given that a Public Hearing will be held on the ________ day of __________ 2017 at 7 p.m. or as soon thereafter as the matter may be heard at the City Hall, 6301 Shingle Creek Parkway, to consider an ordinance requiring City licenses for transient accommodations. Auxiliary aids for persons with disabilities are available upon request at least 96 hours in advance. Please contact the City Clerk at 763-569-3300 to make arrangements. ORDINANCE NO._______________ AN ORDINANCE AMENDING THE CITY CODE RELATED TO THE REGULATION OF RIGHT OF WAY MANAGEMENT THE CITY COUNCIL OF THE CITY OF BROOKLYN CENTER DOES ORDAIN AS FOLLOWS: Section 1. Brooklyn Center City Code, Chapter 25 is amended by deleting the stricken language and inserting the double-underlined language as follows: RIGHT-OF-WAY MANAGEMENT Section 25-1000. FINDINGS AND PURPOSE. To provide for the health, safety and well-being of its citizens, and to ensure the structural integrity of its streets and the appropriate use of the rights-of-way, the City strives to keep its rights-of-way in a state of good repair and free from unnecessary encumbrances. Although the general population bears the financial burden for the upkeep of the rights-of-way, a primary cause for the early and excessive deterioration of its rights-of-way is frequent excavation. Right-of-way obstruction is a source of frustration for merchants, business owners and the general population which must avoid these obstructions or change travel or shopping plans because of them and has a detrimental effect on commerce. Persons whose facilities are within the right-of-way are the primary cause of these frequent obstructions. The City holds the rights-of-way within its geographical boundaries as an asset in trust for its citizens. The City and other public entities have invested millions of dollars in public funds to build and maintain the rights-of-way. It also recognizes that some persons, by placing their facilities in the right-of-way and charging the citizens of the City for goods and services delivered thereby, are using this property held for the public good. Although such services are often necessary or convenient for the citizens, such persons receive revenue and/or profit through their use of public property. In response to the foregoing facts, the City has enacted this Right-of-Way Management Ordinance relating to right-of-way permits and administration. This Ordinance imposes reasonable regulations on the placement and maintenance of facilities currently within its DRAFT 9-6-17 2 506195v2 AMB BR291-4 rights-of-way or to be placed therein at some future time. It is intended to complement the regulatory roles of state and federal agencies. Under this ordinance, persons disturbing and obstructing the rights-of-way will bear a fair share of the financial responsibility for their integrity. Finally, this Ordinance provides for recovery of out-of-pocket and projected costs from persons using the public rights-of-way. Section 25-1001. DEFINITIONS. The following definitions apply to the Right-of-Way Management Ordinance of this Code. Unless used in a context which indicates otherwise, defined terms remain defined terms whether or not capitalized. a. “Applicant” means any person requesting permission to excavate or obstruct a right- of-way. b. “City” means the City of Brooklyn Center, Minnesota. For purposes of Section 25- 10261027, city includes its elected officials, officers, employees and agents. c. “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. d. “City Cost” means the actual cost incurred by the City for public rights-of-way management; including but not limited to costs associated with registering applicants; issuing, processing, and verifying right-of-way permit applications; creating information and maintaining information on a geographical information system (GIS) mapping system; degradation costs; inspecting job sites and restoration projects; maintaining, supporting, protecting, or moving user facilities during public right-of-way work; providing traffic control due to applicant's neglect or inadequate performance; determining the adequacy of right-of-way restoration; restoring work inadequately performed; and revoking right-of-way permits and performing all other tasks required by this Right of Way Management Ordinance, including other costs the city may incur in managing the provisions of this Right of Way Management Ordinance. e. “Construction Performance Bond” means any of the following forms of security provided at the permittee' s option: 1. Individual project bond ; 2. Cash deposit ; 3. Security of a form listed or approved under Minn. Stat.,§ 15.73, subdivision 3; 4. Letter of credit, in a form acceptable to the Director; 5. Self-insurance, in a form acceptable to the Director; 6. A blanket bond for projects within the City, or DRAFT 9-6-17 3 506195v2 AMB BR291-4 7. Other forms for a construction bond, for a time specified and in a form acceptable to the Director. f. “Degradation” means a decrease in the useful life of the right-of-way caused by excavation in or disturbance of the right-of-way, resulting in the need to reconstruct such right-of-way earlier than would be required if the excavation or disturbance did not occur. g. “Degradation cost” 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 restoration shown in plates 1 to 13, set forth in Minnesota Rules 7819.9900 to 7819.9950. h. “Delay Penalty” means the penalty imposed as a result of unreasonable delays in right-of- way construction. i. “Department” means the Department of Public Works of the City. j. “Department Inspector” means any person authorized by the Director to carry out inspections related to the provisions of this Right of Way Management Ordinance. k. “Director” means the City Manager, or her or his designee. l. “Emergency” means a condition that (1) poses a clear and immediate danger to life or health, or of a significant loss of property; or (2) requires immediate repair or replacement in order to restore service to a customer. m. “Equipment” means any tangible asset used to install, repair, or maintain facilities in any right -of-way. n. “Excavate” means to dig into or in any way remove or physically disturb or penetrate any part of a right-of-way, except horticultural practices of penetrating the boulevard area to a depth of less than 12 inches. o. “Excavation Permit” means the permit which 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” means money paid to the City by an applicant to cover the costs as provided in Section 25-10091010. q. “Facility” means any tangible asset in the right-of-way required to provide Utility Service, but shall not include boulevard plantings or gardens planted or maintained in the right of way between a person’s property and the street edge or curb. DRAFT 9-6-17 4 506195v2 AMB BR291-4 r. “In,” when used in conjunction with “right-of-way,” means over, above, in, within, on or under a right-of-way. s. “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 Right-of- Way Management Ordinance. t. “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. u. “Obstruct” means to place any object in a right-of-way so as to hinder free and open passage over that or any part of the right-of-way. v. “Obstruction Permit” means the permit which 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 by placing equipment described therein on the right-of-way for the duration specified therein. w. “Obstruction Permit Fee” means money paid to the City by a registrant to cover the costs as provided in Section 25-1009 1010. x. “Permittee” means any person to whom a permit to excavate or obstruct a right-of- way has been granted by the City under this Right of Way Management Ordinance. y. “Person” means any natural or corporate person, business association or other business entity including, but not limited to, a partnership, a sole proprietorship, a political subdivision, a public or private agency of any kind, a utility, a successor or assign of any of the foregoing, or any other legal entity which has or seeks to have equipment in any right-of-way. DRAFT 9-6-17 5 506195v2 AMB BR291-4 z. “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. aa. “Registrant” means any person who (1) has or seeks to have its equipment 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 any equipment in the right-of-way. bb. “Repair” means the temporary construction work necessary to make the right-of- way useable for travel. cc. “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 that existed before the commencement of the work. dd. “Restoration Cost” means an amount of money paid to the City by a permittee to cover the cost of restoration. ee. “Right-of-Way” means the surface and space above and below a right-of-way for public roadway, highway, street, cartway, bicycle lane and public sidewalk purposes in which the City has an interest, including other dedicated rights-of-way for travel purposes and utility easements of the city. ff. “Right-of-Way Management Ordinance” means Sections 25-1000 through 25-1032 of this Code. gg. “Right-of-Way Permit” means either the excavation permit or the obstruction permit, or both, depending on the context, required by this Right-of-Way Management Ordinance. hh. “Right-of-Way User” means: a. A telecommunications right-of-way user as defined by Minn. Stat. § 237.162, subdivision 4; or b. A person owning or controlling a facility in the public right-of-way that is used or is 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. ii. “Service” or “Utility Service” includes but is not limited to (1) those services provided by a public utility as defined in Minnesota Statutes 3 216B.02, DRAFT 9-6-17 6 506195v2 AMB BR291-4 Subdivisions 4 and 6; (2) telecommunications, pipeline, community antenna television, fire and alarm communications, water, electricity, light, heat, cooling energy, or power services; (3) the services provided by a corporation organized for the purposes set forth in Minnesota Statutes 3 300.03; (4) the services provided by a district heating or cooling system, and (5) cable communications systems as defined in Minnesota Statutes Chapter 238. jj. “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. kk. “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 has already been issued. ll. “Telecommunications Right of Way User” means a person owning or controlling a facility in the right-of-way, or seeking to own or control a facility in the right-of- way that is used or is intended to be used for providing wireless service, or transporting telecommunication or other voice or data information. For purposes of this chapter, a cable communication system defined and regulated under Minnesota Statutes, Chapter 238, and telecommunication activities related to providing natural gas or electric energy services, whether provided by a public utility as defined in Minnesota Statutes, Section 216B.02, a municipality, a municipal gas or power agency organized under Minnesota Statutes, Chapter 453 and 453A, or a cooperative electric association organized under Minnesota Statutes, Chapter 308A, are not telecommunications right-of-way users for purposes of this chapter except to the extent such entity is offering wireless service. mm. “Unusable Facilities” means facilities in the right-of-way which has remained unused for one year and for which the registrant is unable to provide proof that it has either a plan to begin using it within the next twelve (12) months or a potential purchaser or user of the facilities. DRAFT 9-6-17 7 506195v2 AMB BR291-4 nn. “Utility Pole” means a pole that is used in whole or in part to facilitate telecommunications or electric service. oo. “Wireless Facility” means 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, or 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. pp. “Wireless Service” means 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 cable service. qq. “Wireless Support Structure” means a new or existing structure in a right-of-way designed to support or capable of supporting small wireless facilities, as reasonably determined by the city. Section 25-1002. ADMINISTRATION. The City Manager is the principal City official responsible for the administration of the rights-of-way, right-of-way permits, and the ordinances related thereto. The Manager may delegate any or all of the duties hereunder. Section 25-1003. REGISTRATION AND RIGHT-OF-WAY OCCUPANCY. Subdivision 1. Registration. Each person who occupies, uses, or seeks to occupy or use, the right-of-way or any facilities in the right-of-way, including by lease, sublease or assignment, or who has, or seeks to have, facilities are any right-of-way must register with the Director. Registration will consist of providing application information and paying a registration fee. A person who pays a franchise fee to the City in accordance with a franchise agreement shall be exempt from the payment of permit fees if so provided in the franchise. If the work is to be performed by an agent, contractor or subcontractor on behalf of a registrant, such application shall also be signed or pre-authorized by the registrant. Subdivision 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 Director. Subdivision 3. Exceptions. Nothing herein shall be construed to repeal or amend the provisions of a city ordinance permitting persons to plant or maintain boulevard plantings or DRAFT 9-6-17 8 506195v2 AMB BR291-4 gardens in the area of the right-of-way between their property and the street curb provided and such use is subject to the use of the right-of-way by the City or other Persons for installation and maintenance of facilities. Persons planting or maintaining boulevard plantings or gardens or installing or operating irrigation systems shall not be deemed to use or occupy the right-of- way, and shall not be required to obtain any permits or satisfy any other requirements for planting or maintaining such boulevard plantings or gardens under this Right-of-Way Management Ordinance. However, excavations deeper than 12 inches are subject to the permit requirements of section 25-1006. Registration shall not be required for: a. Private driveways or walkways b. Sewer and water connections serving individual properties c. Equipment of private landowner which is within the right-of-way and between that owner's property and the street curb d. Signs e. Mailboxes f. Street furnishings g. Bus stop benches h. Bus stop shelter i. Use by private landowners of utility easement areas for Facilities that are not inconsistent with the rights of parties entitled to use the easement Any Service or Utility Service provided by a person under a franchise with the City shall register pursuant to this Section, but need not provide the registration information required by Section 25-1004 if such information has been received by the City in the administration of the franchise agreement. In addition, Persons acting as agents, contractors or subcontractors for a registrant which has properly registered or who is exempt from registration shall be exempt from registering under Section 25-1004. Section 25-1004. REGISTRATION INFORMATION. Subdivision 1. Information Required. The information provided to the Director 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. Such other information as the City may require including, but not limited to, proof of adequate public liability insurance. DRAFT 9-6-17 9 506195v2 AMB BR291-4 Subdivision 2. Notice of Changes. The registrant shall keep all of the information listed above current at all times by providing to the Director information as to changes within fifteen (15) days following the date on which the registrant has knowledge of any change. Section 25-1005. REPORTING OBLIGATIONS. Subdivision 1. Operations. Each registrant shall, at the time of registration and by December 1 of each year, file a construction and major maintenance plan with the Director. Such plan shall be submitted using a format designated by the Director and shall contain the information determined by the Director to be necessary to facilitate the coordination and reduction in the frequency of excavations and obstructions of rights-of-way. Reporting shall not be required for projects which are to be undertaken only in conjunction with city projects. The plan shall include, but not be limited to, the following information: a. 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 b. 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”). The term “project” in this Section shall include both Next-year Projects and Five- year Projects. By January 1 of each year the Director will have available for inspection in the Director's office a composite list of all Projects of which the Director has been informed in the annual plans. All registrants are responsible for keeping themselves informed of the current status of this list. Thereafter, by February 1, each registrant may change any Project in its list of Next-year Projects, and must notify the Director 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. Subdivision 2. Additional Next-year Projects. Notwithstanding the foregoing, the Director may, for good cause shown, allow a registrant to submit additional Next-year Projects. Good cause includes, but is not limited to, the criteria set forth in Section 25- 10141015 concerning the discretionary issuance of permits. DRAFT 9-6-17 10 506195v2 AMB BR291-4 Section 25-1006. PERMIT REQUIREMENT. Subdivision 1. Permit Required. Except as otherwise provided in this Code, no person may obstruct or excavate any right-of-way, or install or place facilities in the right-of-way, without first having obtained the appropriate right-of-way permit from the Director 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 equipment 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 facilities described therein on the right-of-way, to the extent and for the duration specified therein. An Obstruction Permit is not required if a Person already possesses a valid Excavation Permit for the same work period. c. Small wireless facility permit. A small wireless facility permit is required by a registrant to erect or install a wireless support structure, to collocate a small wireless facility, or to otherwise install a small wireless facility in the specified portion of the right-of-way, to the extent specified therein, provided that such permit shall remain in effect for the length of time the facility is in use, unless lawfully revoked. d. Exceptions. A permit shall not be required for: a. 1. Signs b. 2. Mailboxes c. 3. Street furnishings d. 4. Bus stop benches e. 5. Bus stop shelter f. 6. Use by private landowners of utility easement areas for Facilities that are not inconsistent with the rights of parties entitled to use the easement Subdivision 2. Permit Extensions. No person may work in or obstruct the right-of-way beyond the date specified in the permit or do any work beyond that specified in the permit unless such person makes a supplementary application for an extension or modification of the work specified in the permit before expiration of the permit, pays a permit extension fee and is granted a permit extension by the Director. The Director may extend the completion of scope of the work if the specified work could not be done because of circumstances beyond the control of the permit holder. Subdivision 3. Delay Penalty. Notwithstanding Subdivision 2 of this Section, even if a new permit or permit extension is granted, the Director shall establish and impose a delay penalty for unreasonable delays in right-of-way excavation, obstruction, repair, or restoration. DRAFT 9-6-17 11 506195v2 AMB BR291-4 Subdivision 4. Permit Display. Permits issued under this Chapter shall be conspicuously displayed at all times at the indicated work site and shall be available for inspection by the Director. Subdivision 5. Antenna Support Structures. Except as otherwise provided, Nno permits will be issued for the erection of structures in the right-of-way for the sole purpose of supporting telecommunications antennas. Permits may be granted for the attachment of telecommunication antennas and ancillary wires and accessories to existing structures in the right-of-way, subject to the following conditions: a. The height of the antenna and related equipment may not extend more than six feet above the top of the previously existing support structure, and b. No antennas may be permitted that have associated or ancillary on-ground equipment in any residential district of the City, and c. The permission of the owner must be demonstrated, and d. Design and location of facilities are subject to review and approval of the Director. Section 25-1007. PERMIT APPLICATIONS. Application for a permit is made to the Director. Right-of-way permit applications shall contain, and will be considered complete only upon compliance with the requirements of the following provisions: a. Registration with the Director pursuant to this Chapter; b. Submission of a completed permit application form, including all required attachments, and scaled drawings showing the specific location and area of the proposed project and the detailed location of all existing and proposed equipment; c. Payment of all money due to the City for 1. permit fees and costs, and any required deposit; 2. prior obstructions or excavations; 3. 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; 4. franchise fees, if applicable. DRAFT 9-6-17 12 506195v2 AMB BR291-4 d. When an excavation permit is requested for purposes of installing additional facilities, and the posting of a construction performance bond for the additional facilities is insufficient, the posting of an additional or larger construction performance bond for the additional facilities may be required. Section 25-1008. ISSUANCE OF PERMIT; CONDITIONS. Subdivision 1. Permit Issuance. If the Director determines that the applicant has satisfied the requirements of this Chapter, the Director shall issue a permit. Subdivision 2. Conditions. The Director may impose reasonable conditions upon the issuance of the permit and the performance of the applicant thereunder to protect the public health, safety and welfare, to ensure the structural integrity of the right-of-way, to protect the property and safety of other users of the right-of-way, and to minimize the disruption and inconvenience to the traveling public. Subdivision 3. Small Wireless Facility Conditions. In addition to subdivision 2, 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 all of the following conditions: a. 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. b. 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 a registrant may 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. c. No wireless facility may extend more than 10 feet above its wireless support structure. d. 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. e. 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. DRAFT 9-6-17 13 506195v2 AMB BR291-4 f. 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. Subdivision 4. 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 any other city asset in the right-of-way, after the applicant has executed a standard small wireless facility collocation agreement with the city. The standard collocation agreement may require payment of the following: a. Up to $150 per year for rent to collocate on the city structure; b. $25 per year for maintenance associated with the collocation; c. A monthly fee for electrical service as follows: 1. $73 per radio node less than or equal to 100 maximum watts; 2. $182 per radio node over 100 maximum watts; or 3. 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, provided, however, that the applicant shall not be additionally required to obtain a license or franchise in order to collocate. Issuance of a small wireless facility permit does not supersede, alter or affect any then-existing agreement between the city and applicant, Subdivision 5. Standards for Construction or Installation. The requirements and standards for facility construction or installation are contained in the General Requirements as specified by the Director. The Director may assign or prohibit specific locations for facilities within the right-of-way, or any particular segment thereof, and may limit the height of above- ground facilities. All excavation, obstruction, or other permits issued by the Director involving the installation or replacement of facilities shall designate the proper location for the facility at issue. The Director may deny a permit application, as provided in Section 25-1014 1014, in the event the proposed location of such facilities is not consistent with the location required by the Director. The Director may revoke a permit, as provided in Section 25-1019, in the event the facilities are installed in a location that is inconsistent with the location designated in the applicable permit. Any registrant whose facilities were previously located in the right-of-way in a position at variance with the locations established by the Director shall, no later than at the time of the next reconstruction or excavation of the area where its facilities are located, move that facility DRAFT 9-6-17 14 506195v2 AMB BR291-4 to its assigned position within the right-of-way, unless this requirement is waived by the Director 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. Section 25-1009. ACTION ON SMALL WIRELESS FACILITY PERMIT APPLICATION. Subdivision 1. 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. Subdivision 2. 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: a. Are located within a two-mile radius; b. Consist of substantially similar equipment; and c. 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. Subdivision 3. Tolling of Deadline. The 90-day deadline for action on a small wireless facility permit application may be tolled if: a. 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. b. 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. Upon submission of additional documents or information, the city shall have ten days to notify the applicant in writing of any still-missing information. DRAFT 9-6-17 15 506195v2 AMB BR291-4 c. The city and a small wireless facility applicant agree in writing to toll the review period. Section 25-10091010. PERMIT FEES. Subdivision 1. Excavation Permit Fee. The Excavation Permit Fee shall be established by the Director in an amount designed to recover the City Management Costs. Subdivision 2. Obstruction Permit Fee. The Obstruction Permit Fee shall be established by the director and shall be in an amount designed to recover the City Management Cost. Subdivision 3. Small Wireless Facility Permit Fee. The city shall impose a small wireless facility permit fee in an amount sufficient to recover: a. Management costs; and b. City engineering, make-ready, and construction costs associated with collocation of small wireless facilities. Subdivision 4. Deposit. The Director may require that a permit application be accompanied by a deposit, in addition to the Permit Fee and Construction Performance Bond, in an amount established by the Director in order to offset any City costs that exceed the amount covered by the Permit Fee. Such additional City costs may include, but are not limited to, inspection costs for consultants or independent contractors, legal fees, and other out of pocket expenses, degradation costs, or restoration costs. The permit fee will cover City staff time spent in the administration of the permit process and in inspection activities. The Director may require an applicant to submit a single deposit in an amount intended to cover all City costs which the Director determines may be incurred during the subsequent twelve (12) month period based on an applicant's construction and major maintenance plan filed in accordance with Section 25- 1005. The Director shall approve all expenses charged against the deposit, and the unused portion thereof shall be returned to the applicant. The Director may periodically require that the deposit amount be replenished as expenses are charged against the deposit. The permit application shall further state that the applicant agrees to reimburse the City for any City costs incurred by the City in excess of the amount of the deposit. Subdivision 5. Payment of Permit Fees. No excavation permit or obstruction permit shall be issued without payment of such fees before the issuance of such a permit. Subdivision 6. Non refundable. Permit fees that were paid for a permit that the Director has revoked for a breach as stated in Section 25-1019 are not refundable. DRAFT 9-6-17 16 506195v2 AMB BR291-4 Subdivision 7. Use of Permit Fees. All obstruction, and excavation, and small wireless facility permit fees shall be used solely for city management, construction, maintenance and repair costs of the right-of-way. Section 25-1010 1011. RIGHT-OF-WAY REPAIR AND RESTORATION. Subdivision 1. Timing. The work to be done under the excavation permit, and the repair 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 as determined by the Director because of extraordinary circumstances beyond the control of the permittee or when work was prohibited as unseasonal or unreasonable under Section 25-1003. In addition to repairing its own work, the permittee must restore the general area of the work, and the surrounding areas, including the paving and its foundations, to the same condition that existed before the commencement of the work and must inspect the area of the work and use reasonable care to maintain the same condition for twelve (12) months following acceptance by the city. Subdivision 2. Repair and Restoration. Permittee shall repair and restore its own work. The permittee shall at the time of application for an excavation permit post a construction performance bond in an amount determined by the Director to be sufficient to cover the cost of restoring the right-of-way to its pre-excavation condition. If, twelve (12) months after completion of the restoration of the right-of-way, the Director determines that the right-of-way has been properly restored, the surety on the construction performance bond shall be released. Permittees with whom the City has a current franchise agreement, or authorized agents, contractors, or subcontractors of that franchise shall not be required to post a construction performance bond. Subdivision 3. Standards. The permitted shall perform repairs and restoration according to the standards and with the materials specified by the Director. The Director shall have the authority to prescribe the manner and extent of the restoration, and may do so in written procedures of general application or on a case-by-case basis . The Director in exercising this authority shall be guided by the following standards and considerations. a. The number, size, depth and duration of the excavations, disruptions or damage to the right-of-way; b. The traffic volume carried by the right-of-way; the character of the neighborhood surrounding the right-of-way; c. The pre-excavation condition of the right-of-way; the remaining life expectancy of the right-of-way affected by the excavation; DRAFT 9-6-17 17 506195v2 AMB BR291-4 d. Whether the relative cost of the method of restoration to the permittee is in reasonable balance with the prevention of an accelerated depreciation of the right- of-way that would otherwise result from the excavation, disturbance or damage to the right-of-way; and e. The likelihood that the particular method of restoration would be effective in slowing the depreciation of the right-of-way that would otherwise take place. Subdivision 4. Guarantees. The permittee guarantees its work and shall maintain it for twelve (12) months following its completion. During this 12-month period it shall, upon notification from the Director, correct all restoration work to the extent necessary, using the method required by the Director. Said work shall be completed within five (5) calendar days of the receipt of the notice from the Director, not including days during which work cannot be done because of circumstances constituting force majeure or days when work is prohibited as unseasonal or unreasonable under Section 25-1013 1014. Subdivision 5. Failure to Restore. If the Permittee fails to restore the right-of-way in the manner and to the condition required by the Director, or fails to satisfactorily and timely complete all restoration required by the Director, the Director 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. Section. 25-1011 1012. JOINT APPLICATIONS. Subdivision 1. Joint Application . Registrants may jointly apply for permits to excavate or obstruct the right-of-way at the same place and time. Subdivision 2. With City Projects. Registrants who join in a scheduled obstruction or excavation performed by the Director, whether or not it is a joint application by two or more registrants or a single application, are not required to pay the obstruction portion of the permit fee for that part of the work which falls within the city project construction limits. The obstruction portion of the fee will be required for work which occurs outside of the city project construction limits and for work within such construction limits which is not completed by the city project completion date. Subdivision 3. Shared Fees. Registrants who apply for permits for the same obstruction or excavation, which the Director does not perform, may share in the payment of the obstruction or excavation permit fee. Registrants must agree among themselves as to the portion each will pay and indicate the same on their applications. DRAFT 9-6-17 18 506195v2 AMB BR291-4 Section 25-1012 1013. SUPPLEMENTARY APPLICATIONS. Subdivision 1. Limitation on Area. A right-of-way permit is valid only for the area of the right-of-way specified in the permit, which shall not exceed one (1) lineal mile of right-of- way. 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 (i) make application for a permit extension and pay any additional fees required thereby, and (ii) be granted a new permit or permit extension. The total area for which a permittee shall be permitted at any one time, pursuant to multiple permits or permit extensions, shall not exceed three (3) lineal miles of right-of-way. Subdivision 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 permit. This supplementary application must be done before the permit end date. Section 25-1013 1014. OTHER OBLIGATIONS. Subdivision 1. Compliance With Other Laws. Obtaining a right-of-way permit does not relieve permittee of its duty to obtain all other necessary permits, licenses, and authority and to pay all fees required by any other City, County, State, or Federal rules, laws or regulations. A permittee shall comply with all requirements of local, state and federal laws, including Minnesota Statutes §§ 216D.0l -.09 (“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. Subdivision 2. Prohibited Work. Except in an emergency, and with the approval of the Director, no right-of-way obstruction or excavation may be done when seasonally prohibited or when conditions are unreasonable for such work. Subdivision 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 may not be parked within or next to a permit area unless authorized by the Director. The loading or unloading of trucks next to a permit area is prohibited unless specifically authorized by the permit. DRAFT 9-6-17 19 506195v2 AMB BR291-4 Section 25-1014 1015. DENIAL OF PERMIT. Subdivision 1. The Director may deny a permit for failure to meet the requirements and conditions of this Right-of-Way Management Ordinance, if the Director determines that denial is necessary to protect the public health, safety and welfare, to prevent interference with the safety and convenience of ordinary travel over the right-of-way or when necessary to protect the right- of-way and its current use. The Director, in his/her discretion, may consider factors including: a. the extent to which right-of-way space where the permit is sought if available; b. the competing demands for the particular space in the right-of-way; c. the availability of other locations in the right-of-way or in other rights-of-way for the equipment of the permit application; d. the applicability of ordinance or other regulations of the right-of-way that affect location of equipment in the right-of-way; e. the degree of compliance of the applicant with the terms and conditions of its franchise, this Right-of-Way Management Ordinance, and other applicable ordinances and regulations; f. the degree of disruption to surrounding communities and businesses that will result from the use of that part of the right-of-way; g. the condition and age of the right-of-way, and whether and when it is scheduled for total or partial reconstruction ; and h. the balancing of the costs of disruption to the public and damage to the right-of- way, against the benefits to that part of the public served by the expansion into additional parts of the right-of-way. i. If, in the discretion of the Director, the issuance of a permit for the particular date and/or time would cause a conflict or interfere with an exhibition, celeb ration, festival, or any other event. Subdivision 2. 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 or right-of-way user in writing within three business days of the decision to deny or revoke a permit. If an application is denied, the right-of-way user 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 after submission. DRAFT 9-6-17 20 506195v2 AMB BR291-4 Section 25-10151016. INSTALLATION REQUIREMENTS. The excavation, backfilling, repair and restoration, and all other work performed in the right-of-way shall be done in conformance with the Brooklyn Center Standard Design Plates as promulgated by the Director and at a location as required by Section 25-1021. Section 25-1016 1017. INSPECTION. Subdivision 1. Notice of Completion. The permittee shall notify the Director upon the completion of the work under any permit and at any stage of the work of the project specified in the permit or standard specifications of the city. Subdivision 2. Site Inspection. Permittee shall make the work-site available to the Director and to all others as authorized by law for inspection at all reasonable times during the execution of and upon completion of the work. Subdivision 3. Authority of Director. 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. The Director may issue an order to the registrant for any work which does not conform to the applicable standard s, conditions or codes. The order shall state that failure to correct the violation will be cause for revocation of the permit. Within ten (10) days after issuance of the order, the registrant shall present proof to the Director that the violation has been corrected. If such proof has not been presented within the required time, the Director may revoke the permit pursuant to Section 25- 1019. Section 25-10171018. WORK DONE WITHOUT A PERMIT. Subdivision 1. Emergency Situations. 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 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 Right-of-Way Management Ordinance for the actions it took in response to the emergency. If the Director becomes aware of an emergency regarding a registrant's equipment, the Director may attempt to contact the local representative of each registrant affected, or potentially affected, by the emergency. In any event, the Director may take whatever action it deems necessary to respond to the emergency, the cost of which shall be borne by the registrant whose equipment occasioned the emergency. Subdivision 2. Non-Emergency Situations. Except in an emergency, any person who, without first having obtained the necessary permit, obstructs or excavates a right-of-way must subsequently obtain a permit, pay double the normal fee for said permit, deposit with the DRAFT 9-6-17 21 506195v2 AMB BR291-4 Director the fees necessary to correct any damage to the right-of-way and comply with all of the requirements of this Right-of-Way Management Ordinance. Section 25-10181019. SUPPLEMENTARY NOTIFICATION. If the obstruction or excavation of the right-of-way begins later or ends sooner than the date given on the permit, permittee shall notify the Director of the accurate information as soon as this information is known. Section 25-10191020. REVOCATION OF PERMITS. Subdivision 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 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; 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 reason's beyond a Permittee’s control; or e. The failure to correct in a timely manner a condition indicated on an order issued pursuant to Section 25-1016. Subdivision 2. Written Notice of Breach. If the Director 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 Director 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. Further, a substantial breach, as stated above, will allow the Director, at his or her discretion, to place additional or revised conditions on the permit. Subdivision 3. Response to Notice of Breach. Within twenty-four (24) hours of receiving notification of the breach, permittee shall contact the Director with a plan, acceptable to the Director, for its correction. Permittee's failure to so contact the Director, or the permittee's failure to submit an acceptable plan, or permittee's failure to reasonably implement the approved plan, shall be cause for immediate revocation of the permit. DRAFT 9-6-17 22 506195v2 AMB BR291-4 Subdivision 4. 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. Section 25-10201021. MAPPING DATA. Subdivision 1. Information Required. Except as provided in Subdivision 2 of this Section, each registrant shall provide to the Director information indicating the horizontal and vertical location, relative to the boundaries of the right-of-way, of all facilities which it owns or over which it has control and which is located in any right-of-way (“Mapping Data”). Mapping Data shall be provided with the specificity and in the format requested by the Director for inclusion in the mapping system used by the Director. Within six (6) months after the acquisition, installation, or construction of additional facilities or any relocation, abandonment, or disuse of existing facilities, each registrant shall supplement the Mapping Data required herein. Each registrant shall, within six (6) months after the date of passage of this Right-of- Way Management Ordinance, submit a plan to the Director specifying in detail the steps it will take to comply with the requirements of this Section. Said plan shall provide for the submission of all Mapping Data for the City as early as may be reasonable and practical, but not later than five (5) years after the date of passage of this Right-of-Way Management Ordinance. Notwithstanding the foregoing, Mapping Data shall be submitted by all registrants for all facilities which is to be installed or constructed after the date of passage of this Right-of- Way Management Ordinance at the time any permits are sought under these ordinances. After six (6) months after the passage of this Right-of-Way Management Ordinance, a new registrant, or a registrant which has not submitted a plan as required above, shall submit complete and accurate Mapping Data for all its facilities at the time any permits are sought under these ordinances. Subdivision 2. Telecommunication Equipment. Information on existing facilities and facilities of telecommunications right-of-way users need only be supplied in the form maintained by the telecommunications right-of-way user. Subdivision 3. Trade Secret Information. At the request of any registrant, any information requested by the Director, which qualifies as a “trade-secret” under Minnesota Statutes 3 13.37(b) shall be treated as trade secret information as detailed therein. With respect to the provision of mapping data, the city may consider unique circumstances from time to time required to obtain mapping data. DRAFT 9-6-17 23 506195v2 AMB BR291-4 Section 25-10211022. LOCATION OF FACILITIES. Subdivision 1. Undergrounding. Unless otherwise permitted by Minnesota Statutes, Section, 2l6B.36, new construction, the installation of new facilities and the replacement of old facilities shall be done underground or contained within buildings or other structures in conformity with applicable codes, except that the Director may approve above ground location and installation that the Director has determined cannot reasonably be placed underground due to expense, nature, or function if there are no unreasonable safety, maintenance, or aesthetic concerns or conflicts with the current use of right-of- way. Subdivision 2. Corridors. The Director may assign specific corridors 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 Director expects will someday be located within the right-of-way. All excavation, obstruction, or other permits issued by the Director involving the installation or replacement of facilities shall designate the proper corridor for the facilities at issue . The City may not require the relocation of existing underground facilities except in the event the City institutes a street improvement project, lawfully imitated and conducted by the City on its own behalf, which necessarily results in a substantial change of elevation and grade for a particular location. In such event, all affected utilities shall be relocated in a manner which minimizes the technical and financial impact to each utility . The City may establish a high density corridor for telecommunications facilities in a manner consistent with the rules and regulations of the Minnesota Public Utilities Commission. Subdivision 3. Limitation of Space. To protect health and safety, the Director shall have the power to prohibit or limit the placement of new or additional facilities within the right-of- way if there is insufficient space to accommodate all of the requests of registrants or persons to occupy and use the right-of-way. In making such decisions, the Director 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. Section 25-10221023. RELOCATION OF EQUIPMENT. A Registrant must promptly and at its own expense, with due regard for seasonal working conditions, permanently remove and relocate its facilities and facilities in the right-of-way whenever the director requests such removal and relocation, and shall restore the right-of-way to the same condition it was in prior to said removal or relocation. DRAFT 9-6-17 24 506195v2 AMB BR291-4 The director may make such request to prevent interference by the Company's equipment or facilities with (I) a present or future City use of the right-of-way, (ii) a public improvement undertaken by the City, (iii) an economic development project in which the City has an interest or investment, (iv) when the public health, safety and welfare require it, or (v) when necessary to prevent interference with the safety and convenience of ordinary travel over the right-of-way. Notwithstanding the foregoing, a person shall not be required to remove or relocate its facilities from any right-of-way which has been vacated in favor of a non-governmental entity unless and until the reasonable costs thereof are first paid to the person therefor. Section 25-10231024. PRE-EXCAVATION EQUIPMENT LOCATION. In addition to complying with the requirements of Minnesota Statutes §§ 216D.0l-.09 (“One Call Excavation Notice System”) before the start date of any right-of-way excavation, each registrant who has facilities in the area to be excavated shall mark the horizontal and approximate vertical placement of all said facilities. Any registrant whose facilities are less that 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. Section 25-10241025. DAMAGE TO OTHER EQUIPMENT. When the Director does work in the right-of-way and finds it necessary to maintain, support, or move a registrant's facilities to protect it, the Director 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. Section 25-10251026. RIGHT-OF-WAY VACATION. Subdivision 1. Reservation of Right. If the City vacates a right-of-way which contains the facilities of a registrant, and if the vacation does not require the relocation of registrant or permittee facilities, the City shall reserve, to and for itself and all registrants having facilities in the vacated right-of-way, the right to install, maintain and operate any facilities in the vacated right-of-way and to enter upon such right-of-way at any time for the purpose of reconstructing, inspecting, maintaining or repairing the same. Subdivision 2. Relocation of Facilities. If the vacation requires the relocation of registrant or permittee facilities; and (a) if the vacation proceedings are initiated by the registrant or permittee, the registrant or permittee must pay the relocation costs; or (b) if the vacation proceedings are initiated by the city, the registrant or permittee must pay the relocation costs unless otherwise agreed to by the city and the registrant or permittee ; or (c) if DRAFT 9-6-17 25 506195v2 AMB BR291-4 the vacation proceedings are initiated by a person or persons other than the registrant or permittee, such other person or persons must pay the relocation costs. Section 25-10261027. INDEMNIFICATION AND LIABILITY. Subdivision 1. Limitation Liability. By reason of the acceptance of a registration or the grant of a right-of-way permit, the City does not assume any liability (a) for injuries to persons, damage to property, or loss of service claims by parties other than the registrant or the City, or (b) for claims or penalties of any sort resulting from the installation, presence, maintenance, or operation of facilities by registrants or activities of registrants. Subdivision 2. Indemnification. By registering with the Director, a registrant agrees, or by accepting a permit under this Chapter, a permittee is required, to defend, indemnify, and hold the City whole and harmless from all costs, liabilities, and claims for damages of any kind arising out of the construction, presence, installation, maintenance, repair or operation of its facilities, or out of any activity undertaken in or near a right-of-way, whether or not any act or omission complained of is authorized, allowed, or prohibited by a right-of-way permit. It further agrees that it will not bring, nor cause to be brought, any action, suit or other proceeding claiming damages, or seeking any other relief against the City for any claim nor for any award arising out of the presence, installation, maintenance or operation of its facilities, or any activity undertaken in or near a right-of-way, whether or not the act or omission complained of is authorized, allowed or prohibited by a right-of-way permit. The foregoing does not indemnify the City for its own negligence except for claims arising out of or alleging the City's negligence where such negligence arises out of or is primarily related to the presence, installation, construction, operation, maintenance or repair of said facilities by the registrant or on the registrant's behalf, including, but not limited to, the issuance of permits and inspection of plans or work. This Section is not, as to third parties, a waiver of any defense or immunity otherwise available to the registrant or to the City; and the registrant, in defending any action on behalf of the City, shall be entitled to assert in any action every defense or immunity that the City could assert in its own behalf To the extent of any inconsistency between this Section 25-10261027 and any franchise, the provisions of the franchise shall control. Section 25-1028. ABANDONED AND UNUSABLE EQUIPMENT. Subdivision 1. Discontinued Operations. A registrant who has determined to discontinue its operations in the City must either: a. Provide information satisfactory to the Director that the registrant's obligations for its facilities in the right-of-way under this Right-of-Way Management Ordinance have been lawfully assumed by another registrant; or DRAFT 9-6-17 26 506195v2 AMB BR291-4 b. Submit to the Director a proposal and instruments for transferring ownership of its facilities to the City. If a registrant proceeds under this clause, the City may, at its option: 1. purchase the facilities; or 2. require the registrant, at its own expense, to remove it; or 3. require the registrant to post a bond in an amount sufficient to reimburse the City for reasonably anticipated costs to be incurred in removing the facilities. Subdivision 2. Abandoned Facilities. Facilities of a registrant who fails to comply with Subdivision 1, and which, for two (2) years, remains unused shall be deemed to be abandoned. Abandoned facilities are 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, (I) abating the nuisance (ii) taking possession of the facilities and restoring it to a useable condition, or (iii) requiring removal of the facilities by the registrant, or the registrant's successor in interest. Subdivision 3. Removal. Any registrant who has unusable and abandoned facilities in any right-of-way shall remove it from that right-of-way during the next scheduled excavation, unless this requirement is waived by the Director. Section 25-1029. RESERVATION OF REGULATORY AND POLICE POWERS. A Permittee’s or registrant’s rights are subject to 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 . Section 25-1030. SEVERABILITY. If any section, subsection, sentence, clause, phrase, or portion of this Right-of-Way Management Ordinance is for any reason held invalid or unconstitutional by any court or administrative agency 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. If a regulatory body or a court of competent jurisdiction should determine by a final, non-appealable order that any permit, right or registration issued under any portions of this Right-of-Way Management Ordinance is illegal or unenforceable, then any such permit, right or registration granted or deemed to exist hereunder shall be considered as a revocable permit with a mutual right in either party to terminate without cause upon giving sixty (60) days written notice to the other. The requirements and conditions of such a revocable permit shall be the same requirements and conditions as set forth in the permit, right or registration, respectively, except for conditions relating to the term of the permit and the right of termination. If a permit, right or registration shall be considered a revocable permit as provided herein, the permittee must acknowledge the authority of the City Council to issue such revocable permit and the power to revoke it. Nothing in this Right-of-Way Management Ordinance precludes the city from requiring a franchise agreement with the applicant, as allowed by law, in addition to requirements set forth herein. DRAFT 9-6-17 27 506195v2 AMB BR291-4 Section 25-1031. APPEALS. Decisions of the Director in the interpretation and enforcement of this Right-of-Way Management Ordinance may be appealed by the applicant, registrant or permittee to the city council by serving written notice of a request for an appeal on the City Manager. The City Manager shall thereupon schedule a public hearing on the appeal before the city council and give notice of the time, place and date of such hearing to the appealing party no less than ten (10) days prior to the hearing. Section 25-1032. WAIVER. The Director may waive any or all requirements of Sections 25- 1003 through 25-1005, 25-1006 through 25-1009, and 25-1020 if compliance is not deemed to be reasonably necessary, in the discretion of the Director, to serve the purposes of this Right-of-Way Management Ordinance. The decision of the Director not to waive any such requirement is not subject to appeal to the city council. Section 25-1021 may be waived as provided therein. Waiver of provisions of Sections 25-1003 through 25-1005 and 25-1020 may be rescinded by the Director at any time upon written notice to the person subject to the requirement. Section 3. Effective Date. This ordinance shall be effective after adoption and thirty days following its legal publication. Adopted this ________ day of _______________ 2017. Mayor ATTEST: City Clerk Date of Publication: Effective Date: (Strikeout indicates matter to be deleted, double underline indicates new matter.) This material is provided as general information and is not a substitute for legal advice. Consult your attorney for advice concerning specific situations. 145 University Ave. West www.lmc.org 9/13/2017 Saint Paul, MN 55103-2044 (651) 281-1200 or (800) 925-1122 © 2017 All Rights Reserved INFORMATION M EMO Cell Towers, Small Cell Technologies & Distributed Antenna Systems Learn about large and small cell tower deployment and siting requests for small cell, small wireless and distributed antenna systems (DAS) technology. Better understand the trend of the addition of DAS, small wireless or small cell equipment on existing utility equipment. Be aware of common gaps in city zoning, impact of federal and state law, reasons for collocation agreements and some best practices for dealing with large and small cell towers, small wireless facilities and DAS. RELEVANT LINKS: I. Deployment of large cell towers or antennas 47 U.S.C. § 253 (commonly known as Section 253 of Telecommunications Act). 47 U.S.C. §332 (commonly known as Section 332 of Telecommunications Act). FCC Website. A cell site or cell tower creates a “cell” in a cellular network and typically supports antennas plus other equipment, such as one or more sets of transceivers, digital signal processors, control electronics, GPS equipment, primary and backup electrical power and sheltering. Only a finite number of calls or data can go through these facilities at once and the working range of the cell site varies based on any number of factors, including height of the antenna. The Federal Communications Commission (FCC) has stated that cellular or personal communications services (PCS) towers typically range anywhere from 50 to 200 feet high. The emergence of personal communications services, the increased number of cell providers, and the growing demand for better coverage have spurred requests for new cell towers, small cell equipment, and distributed antenna systems (DAS) nationwide. Thus, some cellular carriers, telecommunications wholesalers or tower companies, have attempted to quickly deploy telecommunications systems or personal wireless service facilities, and, in doing so, often claim federal law requires cities to allow construction or placement of towers, equipment, or antennas in rights of way. Such claims generally have no basis. Although not completely unfettered, cities can feel assured that, in general, federal law preserves local zoning and land use authority. A. The Telecommunications Act and the FCC 47 U.S.C. § 253 (commonly known as Section 253 of Telecommunications Act). 47 U.S.C. § 332 (commonly known as Section 332 of Telecommunications Act). The Telecommunications Act of 1996 (TCA) represented America’s first successful attempt to reform regulations on telecommunications in more than 60 years, and was the first piece of legislation to address internet access. Congress enacted the TCA to promote competition and higher quality in American telecommunications services and to encourage rapid deployment of new telecommunications technologies. RELEVANT LINKS: League of Minnesota Cities Information Memo: 9/13/2017 Cell Towers, Small Cell Technologies & Distributed Antenna Systems Page 2 FCC website interpreting Telecommunications Act of 1996. The FCC is the federal agency charged with creating rules and policies under the TCA and other telecommunications laws. The FCC also manages and licenses commercial users (like cell providers and tower companies), as well as non-commercial users (like local governments). As a result, both the TCA and FCC rulings impact interactions between the cell industry and local government. The significant changes in the wireless industry and its related shared wireless infrastructures, along with consumer demand for fast and reliable service on mobile devices, have fueled a frenzy of requests for large and small cell/DAS site development and/or deployment. As a part of this, cities find themselves facing cell industry arguments that federal law requires cities to approve tower siting requests. 47 U.S.C. § 253 (Section 253 of Telecommunications Act). 47 U.S.C. § 332(c)(7). FCC 09-99, Declaratory Ruling (Nov. 18, 2009). Companies making these claims most often cite Section 253 or Section 332 of the TCA as support. Section 253 states “no state or local statute or regulation may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.” Section 332 has a similar provision ensuring the entry of commercial mobile services into desired geographic markets to establish personal wireless service facilities. 47 U.S.C. § 253(c)(e) (Section 253 of Telecommunications Act). 47 U.S.C. § 332(c)(7). FCC 09-99, Declaratory Ruling (Nov. 18, 2009). These provisions should not, however, be read out of context. When reviewing the relevant sections in their entirety, it becomes clear that federal law does not pre-empt local municipal regulations and land use controls. Specifically, the law states “[n]othing in this section affects the authority of a state or local government to manage the public rights of way or to require fair and reasonable compensation from telecommunications providers, on a competitively neutral and nondiscriminatory basis, for use of public rights of way …” and that “nothing in this chapter shall limit or affect the authority of … local government … over decisions regarding the placement, construction, and modification of personal wireless service facilities”. Sprint Spectrum v. Mills, 283 F.3d 404 (2nd Cir. 2002). USCOC of Greater Missouri v. Vill. Of Marlborough, 618 F.Supp.2d 1055 (E.D. Mo. 2009). FCC 09-99, Declaratory Ruling (Nov. 18, 2009). Courts consistently have agreed that local governments retain their regulatory authority and, when faced with making decisions on placement of towers, antenna or new telecommunication service equipment on city facilities, they generally have the same rights that private individuals have to deny or permit placement of a cellular tower on their property. This means cities can regulate and permit placement of towers and other personal wireless service facilities, including, in most situations (though some state law restrictions exist regarding regulations of small wireless support structures), controlling height, exterior materials, accessory buildings, and even location. Cities should be careful to make sure that local regulations don’t have the effect of completely banning all cell towers or personal wireless service facilities. Such regulation could run afoul of federal law (not to mention state law as well). RELEVANT LINKS: League of Minnesota Cities Information Memo: 9/13/2017 Cell Towers, Small Cell Technologies & Distributed Antenna Systems Page 3 Vertical Broadcasting v. Town of Southampton, 84 F. Supp.2d 379 (E.D.N.Y. 2000). Some cellular companies try to gain unfettered access to city right of way by claiming they are utilities. The basis for such a claim usually follows one of two themes—either that, as a utility, federal law entitles them to entry; or, in the alternative, under the city’s ordinances, they get the same treatment as other utilities. Courts have rejected the first argument of entitlement, citing to the specific directive that local municipalities retain traditional zoning discretion. B. State law Paging v. Bd. of Zoning Appeals for Montgomery Cty., 957 F.Supp. 805 (W.D. Va. 1997). In the alternative, the argument that a city’s local ordinances include towers as a utility has, on occasion and in different states, carried more weight with a court. To counter such arguments, cities may consider specifically excluding towers, antenna, small cell, and DAS equipment from their ordinance’s definition of utilities. The Minnesota Department of Commerce, in a letter to a wireless infrastructure provider, cautioned one infrastructure company that its certificate of authority to provide a local niche service did not authorize it to claim an exemption from local zoning. The Minnesota Department of Commerce additionally requested that the offending company cease from making those assertions. Letter from Minnesota Department of Commerce to Mobilitie. Minn. Stat. § 237.162 Minn. Stat. § 237.163 Chapter 94, Art. 9, 2017 Regular Session. Minnesota Public Utilities Commission, Meeting Agenda (Nov. 3, 2016). In Minnesota, to clear up confusion about whether wireless providers represent telecommunications right-of-way users under state law and to address concerns about deployment of small wireless technology, the Legislature amended Minnesota’s Right-of-Way User statutes, or Minnesota ROW Law, in the 2017 legislative session to specifically address small wireless facilities and the support structures on which those facilities may attach. Because of these amendments, effective May 31, 2017 additional specific state statutory provisions apply when cities, through an ordinance, manage their rights of way, recover their right-of-way management costs (subject to certain restrictions), and charge rent for attaching to city-owned structures in public rights of way. Rent, however, is capped for collocation of small wireless facilities. State law defines “collocate" or "collocation" as a means 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. Minn. Stat. § 237.162. Minn. Stat. § 237.163 Chapter 94, Art. 9, 2017 Regular Session. The Minnesota ROW Law allows cities to require telecommunications right- of-way users to get a permit for use of the right of way; however, it creates a separate permitting structure for the siting of small wireless facilities. RELEVANT LINKS: League of Minnesota Cities Information Memo: 9/13/2017 Cell Towers, Small Cell Technologies & Distributed Antenna Systems Page 4 Because of the recent significant changes in the state law and the specific requirements for deployment of small wireless facilities that do not apply to other telecommunications right-of-way users, cities should work with their city attorneys to review and update their ordinances. C. Limitations on cities’ authority 1. Federal law Although federal law expressly preserves local governmental regulatory authority, it does place several substantive and procedural limits on that authority. Specifically, a city: USCOC of Greater Missouri v. Vill. Of Marlborough, 618 F.Supp.2d 1055 (E.D. Mo. 2009). Minnesota Towers Inc. v. City of Duluth, 474 F.3d 1052 (8th Cir. 2007). NE Colorado Cellular, Inc. v. City of North Platte, 764 F.3d 929 (8th Cir. 2014) (denial of CUP for tower must be “in writing” but need not be a separate finding from the reasons in the denial). • Cannot unreasonably discriminate among providers of functionally equivalent services. • Cannot regulate those providers in a manner that prohibits or has the effect of prohibiting the provision of telecommunications services or personal wireless services. • Must act on applications within a reasonable time. • Must document denial of an application in writing supported by “substantial evidence.” Smith Comm. V. Washington Cty, Ark., 785 F.3d 1253 (8th Cir. 2015) (substantial evidence' analysis involves whether the local zoning authority's decision is consistent with the applicable local zoning requirements and can include aesthetic reasons). Proof that the local zoning authority’s decision furthers the applicable local zoning requirements or ordinances satisfies the substantial evidence test. Municipalities cannot cite environmental concerns as a reason for denial, however, when the antennas comply with FCC rules on radio emissions. In the alternative, cities can request proof of compliance with the FCC rules. Bringing an action in federal court represents the recourse available to the cellular industry if challenging the denial of a siting request under federal law. Based on the limitations set forth in the federal law on local land use and zoning authority, most often, when cities deny siting requests, the challenges to those denials claim one of the following: FCC 09-99, Declaratory Ruling, Nov. 18, 2009. Tower and Antenna Siting FAQ sheet from FCC. T-Mobile West V. Crow, No. CV08-1337 (D. AZ. Dec. 16, 2009). • The municipal action has the effect of “prohibiting the provision of personal wireless service.” • The municipal action unreasonably discriminates among providers of functionally equivalent services (i.e., cell providers claiming to be a type of utility so they can get the same treatment as a utility under city ordinance). RELEVANT LINKS: League of Minnesota Cities Information Memo: 9/13/2017 Cell Towers, Small Cell Technologies & Distributed Antenna Systems Page 5 2. State law Minn. Stat. § 237.162 Minn. Stat. § 237.163 Chapter 94, Art. 9, 2017 Regular Session. In addition to mirroring some of the federal law requirements, such as the requirement of equal treatment of all like providers, state law permits cities, by ordinance, to further regulate “telecommunications right-of-way users.” Minnesota’s Telecom ROW Law expressly includes wireless service providers as telecommunications right-of-way users, making the law applicable to the siting of both large and small, wire-lined or wireless telecommunications equipment and facilities, in the rights of way. See further discussion of state law restrictions in Section II-A, below . State law places additional restrictions on the permitting and regulating of small wireless facilities and wireless support structure placement. Accordingly, cities should work with city attorneys when drafting, adopting, or amending their ordinance. The Telecom ROW Law still expressly protects local control, allowing cities to deny permits for reasonable public health, welfare, and safety reasons, with no definitions of or limitations on what qualifies as health, welfare, and safety reasons. D. Court decisions Minnesota Towers Inc. v. City of Duluth, 474 F.3d 1052 (8th Cir. 2007). Smith Comm. V. Washington Cty, Ark., 785 F.3d 1253 (8th Cir. 2015). The 8th U.S. Circuit Court of Appeals (controlling law for Minnesota) recognizes that cities do indeed retain local authority over decisions regarding the placement and construction of towers and personal wireless service facilities. Voicestream PCSII Corp. v. City of St. Louis, No. 4:04CV732 (E.D.Mo. August 3, 2005) (city interpretation of city ordinance treats communication facility as a utility). The 8th Circuit also has heard cases where a carrier or other telecommunications company argued they are a utility and should be treated as such under local ordinances. Absent a local ordinance that includes this type of equipment within its definition of utilities, courts do not necessarily deem cell towers or other personal communications services equipment functionally equivalent to utilities. USCOC of Greater Missouri v. Vill. Of Marlborough, 618 F.Supp2d 1055, 1064 (E.D. Mo. 2009) (TCA explicitly contemplates some discrimination amount providers of functionally equivalent services). Additionally, courts have found that the federal law anticipates some disparate application of the law, even among those deemed functionally equivalent. For example, courts determined it reasonable to consider the location of a cell tower when deciding whether to approve tower construction (finding it okay to treat different locations differently), so long as cities do not allow one company to build a tower at a specific location at the exclusion of other providers. RELEVANT LINKS: League of Minnesota Cities Information Memo: 9/13/2017 Cell Towers, Small Cell Technologies & Distributed Antenna Systems Page 6 E. City approaches For regulation of telecommunications right-of- way users, see Appendix A, Sample Ordinances and Agreements. Regulation of placement of cell towers and personal wireless services can occur through an ordinance. The Minnesota ROW Law provides cities with comprehensive authority to manage their rights of way. With the unique application of federal law to telecommunications and the recent changes to state law, along with siting requests for locations both in and out of rights of way, many cities find having a separate telecommunications right-of-way user ordinance (in addition to a right-of-way ordinance) allows cities to better regulate towers and other telecommunications equipment, as well as collocation of small wireless facilities and support structures. Some cities also have modified the definitions in their ordinances to exclude cell towers, telecommunications, wireless systems, DAS, small cell equipment, and more from utilities to counter the cell industry’s requests for equal treatment or more lenient zoning under the city’s zoning ordinances. Minn. Stat. 237.163, Subd. 2 (f). Chapter 94, Art. 9, 2017 Regular Session. In addition to adopting specific regulations, many city zoning ordinances recognize structures as conditional uses requiring a permit (or many of these regulations include a provision for variances, if needed). While cities may require special permits or variances to their zoning for siting of large cell facilities, under state law, small wireless facilities and wireless support structures accommodating those small wireless facilities are deemed a permitted use. The only exception to the presumed, permitted use for small wireless is that a city may require a special or conditional land use permit to install a new wireless support structure in a residentially zoned or historic district. Cities will want to review their zoning to make sure it complies with the Minnesota ROW Law. II. Deployment of small cell technologies and DAS Small cell equipment and DAS both transmit wireless signals to and from a defined area to a larger cell tower. They are often installed at sites that support cell coverage either within a large cell area that has high coverage needs or at sites within large geographic areas that have poor cell coverage overall. RELEVANT LINKS: League of Minnesota Cities Information Memo: 9/13/2017 Cell Towers, Small Cell Technologies & Distributed Antenna Systems Page 7 Situational needs dictate when cell providers use small cell towers, as opposed to DAS technology. Generally, cell providers install small cell towers when they need to target specific indoor or outdoor areas like stadiums, hospitals, or shopping malls. DAS technology, alternatively, uses a small radio unit and an antenna (that directly link to an existing large cell tower via fiber optics). Installation of a DAS often involves cell providers using the fiber within existing utility structures to link to its larger cell tower. Cities sometimes are asked to provide the power needed for the radios, which the city can negotiate into the leasing agreement with the cell provider. A. Additional zoning and permitting needs under state law Minn. Stat. § 237.162. Minn. Stat. § 237.163. Chapter 94, Art. 9, 2017 Regular Session. See Appendix A, Sample Ordinances and Agreements. Historically, many cities’ ordinances address large cell sites, but not small cell towers or DAS. With the recent changes to state law, cities should work with their city attorney to review their ordinances in consideration of the new statutory permit process for the siting of small wireless facilities. See League FAQ on Minnesota 2017 Telecommunication Right of Way User Amendments (July 2017). Cities can charge rent (up to a cap for small wireless siting) under the statute for placement of cell technology or DAS on existing or newly installed support structures, like poles or water towers; and, also, can enter into a separate agreement to address issues not covered by state law or ordinance. Cities should work with their city attorney to get assistance with drafting these agreements and any additional documents, like a bill of sale (for transfer of pole from carrier to city), if necessary. See Appendix A, Sample Ordinances and Agreements The terms and conditions of these agreements, called collocation agreements, for siting of small wireless facilities, most likely will mirror agreements formerly referred to as master licensing agreements, often including provisions such as: • Definitions of scope of permitted uses. • Establishment of right-of-way rental fee (note statutory limitations). • Protection of city resources. • Provision of contract term (note statutory limitations). • Statement of general provisions. • Maintenance and repair terms. • Indemnity provisions. • Insurance and casualty. • Limitation of liability provision. • Terms for removal. RELEVANT LINKS: League of Minnesota Cities Information Memo: 9/13/2017 Cell Towers, Small Cell Technologies & Distributed Antenna Systems Page 8 State law does not require a separate agreement, and some cities have chosen to put these provisions in their ordinance or permit instead. For cities that choose to have a separate agreement in place, they must develop and make that agreement publicly available no later than November 31, 2017 (six months after the effective date of this act) or three months after receiving a small wireless facility permit application from a wireless service provider. The agreement must be made available in a substantially complete form; however, the parties to the small wireless facility collocation agreement can incorporate additional mutually agreed upon terms and conditions. The law classifies any small wireless facility collocation agreement between a local government unit and a wireless service provider as public data, not on individuals, making those agreements accessible to the public under Minnesota’s Data Practices Law. Minn. Stat. § 237.162 Minn. Stat. § 237.163 Chapter 94, Art. 9, 2017 Regular Session. Additionally, the new amendments to Minnesota’s Telecom ROW Law set forth other requirements that apply only to small cell wireless facility deployment. The 2017 amendments changed Minnesota’s ROW Law significantly, the details, of which, can be found in the League’s FAQ on Minnesota 2017 Telecommunication Right of Way User Amendments (July 2017). However, after the amendments, the law now generally provides: See League FAQ on Minnesota 2017 Telecommunication Right of Way User Amendments (July 2017). • A presumption of permitted use in all zoning districts, except in districts zoned residential or historical districts. • The requirement that cities issue or deny small wireless facility requests within 90 days, with a tolling period allowed upon written notice to the applicant, within 30 days of receipt of the application. • An allowance to batch applications (simultaneously submit a group of applications), with the limitation to not exceed 15 small wireless requests for substantially similar equipment on similar types of wireless support structures within a two-mile radius. • Rent not to exceed $150 per year with option of an additional $25 for maintenance and allowances for electricity, if cities do not require separate metering. • The limitation that cities cannot ask for information already provided by the same applicant in another small cell wireless facility application, as identified by the applicant, by reference number to those other applications. • A restriction that the height of wireless support structures cannot exceed 50 feet, unless the city agrees otherwise. • A restriction that wireless facilities constructed in the right of way may not extend more than 10 feet above an existing wireless support structure in place. RELEVANT LINKS: League of Minnesota Cities Information Memo: 9/13/2017 Cell Towers, Small Cell Technologies & Distributed Antenna Systems Page 9 • A prohibition on moratoriums with respect to filing, receiving, or processing applications for right-of-way or small wireless facility permits; or issuing or approving right-of-way or small wireless facility permits. For cities that did not have a right-of-way ordinance in place on or before May 18, 2017, the prohibition on moratoria does not take effect until January 1, 2018, giving those cities an opportunity to enact an ordinance regulating its public rights-of-way. NOTE: These additional state law requirements do NOT apply to collocation on structures owned, operated maintained or served by municipal utilities. Also, the small wireless statutory requirements do not invalidate agreements in place at the time of enactment of the 2017 amendments (May 31, 2017). 47 U.S.C. § 332 (commonly known as Section332 of Telecommunications Act). The siting of DAS or new small cell technologies also must comply with the same restrictions under federal law that apply to large cell sitings. Specifically, a city: FCC 09-99, Declaratory Ruling (Nov. 18, 2009). FCC 14-153, Report & Order (October 21, 2014). • May not unreasonably discriminate among providers of functionally equivalent services. • May not regulate in a manner that prohibits or has the effect of prohibiting the provision of personal wireless services. • Must act on applications within a reasonable time. • Must make any denial of an application in writing supported by substantial evidence in a written record. Because of the complexities in the state law and the overlay of federal regulations, some cities have found it a best practice to adopt or amend a telecommunications right-of-way ordinance separate from their general right-of-way management ordinance. Cities that do not choose to adopt separate ordinances, at a minimum, should work with their attorney to review and amend their existing right-of-way ordinances, if necessary, to accommodate for telecommunications right-of-way users and the recent state law amendments for small wireless facilities. For example, since state law now recognizes small wireless facilities as a permitted use, zoning ordinances that require conditional use permits for these facilities likely will need amending. Minn. Stat. § 237.163, Subd.3a(f). Chapter 94, Art. 9, 2017 Regular Session. See Appendix A, Sample Ordinances and Agreements. Since wireless providers seek to attach their small cell and DAS equipment to city-owned structures, many cities choose to have a separate agreement in place to address terms and conditions not included in ordinances or permits. If the city chooses to do so, the law requires the city to have these agreements available in a substantial form so applicants can anticipate the terms and conditions. Again, cities should work with the city attorney to draft a template agreement governing attachment of wireless facilities to municipally owned structures in the right of way. RELEVANT LINKS: League of Minnesota Cities Information Memo: 9/13/2017 Cell Towers, Small Cell Technologies & Distributed Antenna Systems Page 10 With the nationwide trend encouraging deployment of these new technologies, if a city denies an application, it must do so in writing and provide detailed reasonable findings that document the health, welfare, and safety reasons for the denial. With the unique circumstances of each community often raising concerns about sitings, cities may benefit from proactively working with providers. B. Modifications of existing telecommunication structures Section 6409(a) of the Middle Class Tax Relief and Joe Creation Act of 2012, codified at 47 U.S.C. § 1455. FCC Public Notice AD 12- 2047 (January 25, 2013). If a siting request proposes modifications to and/or collocations of wireless transmission equipment on existing FCC-regulated towers or base stations, then federal law further limits local municipal control. Specifically, federal law requires cities to grant requests for modifications or collocation to existing FCC-regulated structures when that modification would not “substantially change” the physical dimensions of the tower or base station. FCC 14-153, Report & Order (October 21, 2014). The FCC has established guidelines on what “substantially change the physical dimensions” means and what constitutes a “wireless tower or base station.” FCC Public Notice AD 12- 2047 (January 25, 2013). Once small cell equipment or antennas gets placed on that pole, then the pole becomes a telecommunication structure subject to federal law and FCC regulations. Accordingly, after allowing collocation once, the city then must comply with the more restrictive federal laws that allow modifications to these structures that do not substantially change the physical dimensions of the pole, like having equipment from the other cell carriers. FCC Public Notice AD 12- 2047 (January 25, 2013). City of Arlington Texas, et. al. V. FCC, et. al., 133 S.Ct. 1863, 1867 (2013) (90 days to process collocation application and 150 days to process all other applications, relying on §332(c)(7)(B)(ii)). Under this law, it appears cities cannot ask an applicant who is requesting modification for documentation information other than how the modification impacts the physical dimensions of the structure. Accordingly, documentation illustrating the need for such wireless facilities or justifying the business decision likely cannot be requested. Of course, as with the other siting requests, state and local zoning authorities must take prompt action on these siting applications for wireless facilities (60-day shot clock rule). This model ordinance and other information can be found at National Association of Counties Website. Two wireless industry associations, the WIA (formerly known as the PCIA) and CTIA, collaborated with the National League of Cities, the National Association of Counties, and the National Association of Telecommunications Officers and Advisors to: (1) develop a model ordinance and application for reviewing eligible small cell/DAS facilities requests under federal law; (2) discuss and distribute wireless siting best practices; (3) create a checklist that local government officials can use to help streamline the review process; and (4) hold webinars regarding the application process. RELEVANT LINKS: League of Minnesota Cities Information Memo: 9/13/2017 Cell Towers, Small Cell Technologies & Distributed Antenna Systems Page 11 III. Moratoriums The cellular industry often challenges moratoriums used to stall placement of cell towers, as well as small cell/DAS technology, until cities can address regulation of these structures. Generally, these providers argue that these moratoriums do one of the following: • Prohibit or have the effect of prohibiting the provision of personal wireless services. • Violate federal law by failing to act on an application within a reasonable time. Minn. Stat. § 237.163, Subd. 2(d). Chapter 94, Art. 9, 2017 Regular Session. State law now prohibits moratoriums with respect to: (1) filing, receiving, or processing applications for right-of-way or small wireless facility permits; or (2) issuing or approving right-of-way or small wireless facility permits. For cities that did not have an ordinance enabling it to manage its right-of-way on or before May 18, 2017, the prohibition on moratoria does not take effect until January 1, 2018, giving those cities an opportunity to enact an ordinance regulating its public rights-of-way. IV. Conclusion With the greater use of calls and data associated with mobile technology, cities likely will see more new cell towers, as well as small cell technology/DAS requests. Consequently, it would make sense to proactively review city regulations to ensure consistency with federal and state law, while still retaining control over the deployment of structures and the use of rights of way. League of Minnesota Cities Information Memo: 9/13/2017 Cell Towers, Small Cell Technologies & Distributed Antenna Systems Page 12 Appendix A: Sample Ordinances and Sample Agreements Many cities address cell towers in their ordinances already. For informational purposes only, the links below reference some telecommunications facilities ordinances in Minnesota. PLEASE NOTE, these ordinances reflect each city’s unique circumstances and may pre-date the 2017 Legislative Session which, then, would not have considered the amendments to Minn. Stat. §§ 237.162, 237.163 when drafted. Sample Telecommunications Ordinances Revised Model Right-of-Way Ordinance City of Edina (predates 2017 amendments) Ordinance: (Chapter 34: Telecommunications) City of Brainerd Memo to Planning Commission from City Planner, July 13, 2017 Re: Draft Ordinance: Section 35: Anetennas and Towers City of Minneapolis Ordinance: (Amendment to Ordinance to accommodate Small Cell/DAS equipment) CPED Staff Report, City of Minneapolis regarding Amendment City of Bloomington Ordinance: (Part II City Code, Chapter 17: Streets and Rights-of-Way) Ordinance: (No. 2017-16, Amending Section 14.03 of the City Code Concerning the Permit Fee) Permit: Small Cell Permit Sample Collocation Agreement for DAS/Small Call Texas City Attorney Association Addendum to Local Gov. Code, Chapter 283 San Antonio, Texas Boston, Massachusetts San Francisco, California