ADVISORY TASK FORCE ON RIGHT-OF-WAY RULES
Large Group and Policy Committee Notes
Tuesday, September 30, 1997
The large group meeting began with sub-group presentations.
Mapping group.
Group decided to compile a list of recommendations in the spirit of the legislation.
Members recognized that current available standards don't have applications to ROW users yet and that we're not at a point of standardization for ROW users and units of government. Thus, the development of a uniform mapping system for statewide use does not appear to be possible at this time.
Worked on developing rules regarding the types of information ROW users can and should provide to local units of government when they apply for a permit:
Policy statement
Location and approximate depth of main
Type and size of facility
Map legend
As-built drawings including changes made during the project; this is a new duty imposed on ROW users to provide maps both at the time of application and also as-built upon completion.
Group will take its recommendation to the Reviser's office for initial language.
While there may be some minor outstanding issues, the group has nothing major left to do.
High Density Corridor (HDC)
Identified four potential areas to work in:
Process for declaring a crowded ROW (CROW) and for establishing a HDC
Factors leading-up to declaration of a CROW
When a city would install a HDC
The financing of a HDC
Group discussed the mechanics of declaring a CROW – cities need affirmative
findings of fact – and the criteria.
Group also considered the consequences of declaring a CROW:
Construction of a HDC
Would establishment of a HDC require relocation of existing users
or just new entrants?
Financing and cost recovery
How would we mandate use of a duct bank?
Indemnification
Group discussed four issues:
Indemnification/Cross indemnification – cities and industry still far apart.
Limitation of liability – regarding actions of the city when passing
telecommunications and other utilities; cities don't want to be liable.
Abandoned equipment and removal – working on a definition of what constitutes
abandoned equipment and what kind of event would trigger the need to remove
the equipment. Of the four issues, this one is closest to resolution.
Performance bonds – did not discuss in small group.
Construction Standards
Group reviewed definitions.
Determined level of construction required:
Up to five years – a greater requirement exists for restoration;
Five years to Replacement Plan – just the lane needs to be restored; and
Street in Replacement Plan – just a patch is required.
Group also addressed degradation.
Construction Standards and Policy Committees met separately.
Next week's schedule is the 7th and 8th at the LOMC. Look to web page for agenda.
Policy Committee
Industry members provided feedback on the Model Right-of-Way Ordinance.
The cities listened to industry's comments and agreed to come-back next time with
their response and prepared to discuss the areas of agreement and disagreement.
Industry identified the following concerns:
Should avoid Executive Summary, Notes, and Findings and Purpose.
Sec. 1.02. Definitions.
Model Ordinance definitions should conform to statute where appropriate;
Definitions should be deleted that don't conform with the statute.
Discussion ensued regarding application of Model Ordinance to cities. Mediator
suggested adding clarifying language in the Preamble that the ordinance applies
to everyone.
Sec. 1.05. Registration and Right-of-Way Occupancy
Subd. 3. Exceptions. Needs One Call cross-reference for consistency.
Sec. 1.06. Registration Information
Subd. 1. Information Required.
(c) (2) and (3) Is evidence of liability insurance more than utilities can
readily provide? Cities want insurance and indemnity.
(f) Too broad
Does the registration go on forever or does it expire?
Section 1.07. Reporting Obligations
Subd. 1. Operations. (b) Problems identified with filing Five-year Plans with the city.
Subd. 2. Additional Next-year Projects. Strike or make conform to statute.
Section 1.08. Permit Requirement
Subd. 3. Disruptive Fee. If this is intended to be a penalty, then it needs to be
reworded.
Subd. 4. Permit Display. Industry and cities agreed that permits should be available
on work-sight.
Section 1.09 Permit Applications.
(b) Concern about "all existing;" does this mean retroactive? Cities responded
that this meant to the extent you know and in the form you have.
(c) (3) and (4) – raise numerous questions. Cities described intent as any outstanding
unpaid bills.
(d) Restoration Bond should be changed to Performance Bond; also we should wait and
see what comes out of committee on this.
Section 1.10. Issuance of permit; conditions
Subd. 2. Conditions. Should cross-reference statute.
Section 1.11. Permit Fees.
Determine a way so cities can be audited.
Subd. 3. Payment of Permit Fees. Cities lack statutory authority for the probation
concept.
Section 1.12. Right-of-Way Repair and Restoration
Subd. 2. Repair and Restoration. Three issues: maintenance; patch and repair;
and restoration.
Issue of 36 month warranty or maintenance obligation
Change "Repair" to "Patch" since patch is defined as repair.
Some concern over restoration bond verses performance bond.
Subd. 3. Standards. Construction standards will address this area.
Subd.. 5. Failure to Restore. It's either/or; cross-reference statute.
Section 1.15. Other Obligations.
Subd. 1. Compliance With Other Laws. How can one city require a fee in another
city? Also, "a permittee" should be changed to " a permittee or its agents."
Subd. 2. Prohibited Work. Language should either be tightened-up or taken out.
Subd. 3. Interference with Right-of-Way. This section may deal with statewide
standards.
Section 1.16. Denial of permit.
Subd. 1. Mandatory Denial. This section goes too far and gives too much
discretionary authority to the cities, as particularly evident in (c), (d),
(e), and (f).
(g) Take out "discretion;" instead propose words that insert a
reasonableness standard.
Subd. 2. Permissive Denial. Does not conform with Statute and gives too much
discretion to cities; it undoes what Statute provides.
(h) City engineers can say they don't want competition if it means tearing-up
the street. This section may allow abuse of discretion. Industry proposes
adoption of Statute language that allows for due process and puts the burden
on the person who wants to deny the permit.
In the Act, Subd. 5 lays out the appeal process. This should be included in
the Model ROW Ordinance since it puts the appeal process into language.
Section 1.17. Installation Requirements.
Wait on this section since it represents a work in progress.
Does this conform with applicable standards and codes?
Section 1.18. Inspection.
Subd. 2. Site Inspection. Concern was expressed that non-trained people
will try to enforce things they don't know anything about.
Subd. 3. Authority of Director. This paragraph requires the need to separate out
where it's a serious threat and where it's not serious.
Section 1.19. Work Done Without a Permit.
Subd. 1. Emergency Situations. Need to have a workable definition for "Emergency"
or a cross-reference.
Section 1.21. Revocation of Permits.
Subd. 1. Substantial Breach. Industry stated a substantial problem with the first
sentence and requested its removal.
Subd. 3. Response to Notice of Breach. Imposes new duties on permittee.
Subd. 4. Cause for Probation. Preference would be to throw-out Probation.
Subd. 5. Automatic Revocation. This says that your permit should be revoked
before you've been proven guilty.
Cities asked industry to come back with recommendation on how to deal with bad actors.
Section 1.22. Mapping Data.
Let Mapping Group work through this and then conform with their recommendation.
Section 1.23. Location of Equipment.
Subd. 1. Undergrounding. This is a big issue with electric utilities.
Subd. 2, 3, and 4. High Density Corridor Sub-group issues.
Section 1.24. Relocation of Equipment.
Equipment or Facilities?
This section gives new power to city engineers and there exists concern
about the abuse of this authority.
The language is too broad and needs to be tightened.
Section 1.25. Pre-Excavation Equipment Location.
Suggested that this be moved to Engineering group.
Section 1.26. Damage to Other Equipment.
Questioned to what circumstances does this apply and not apply as well as
interaction with One Call.
Industry argued that everyone in ROW is responsible for their own facility;
if someone damages someone else's facility, they fix and pay. Cities say
if they damage, they don't have to fix.
Cities will take back and review in light of One Call.
It was the mediator's opinion that an ALJ would look at the issue of
equal treatment and the burden would be on the city to show why they
should be treated differently.
Sec. 1.27. Right-of-Way Vacation.
Subd. 1 and 2 give new powers.
This section was drafted with some ambiguity.
Sec. 1.28. Indemnification and Liability.
This section comes under the Indemnification sub-group and should follow
the group's recommendation.
Sec. 1.29. Future Uses.
Problem with first sentence which says that the City is not liable.
Sec. 1.30. Abandoned and Unusable Equipment.
What is the default disposition?
Definition being developed in indemnity group.
Sec. 1.32. Severability.
This raises difficult problems; there shouldn't be severability if it
allows cities to pick and choose what they want to apply to them.
Updated October 13, 1997