HomeMy WebLinkAbout9A - US West Use of Right-of Wa
MEETING DATE:
AGENDA #:
PREPARED BY:
AGENDA ITEM:
DISCUSSION:
CITY COUNCIL AGENDA REPORT
JANUARY 3, 2000
9A
SUESAN LEA PACE, CITY ATTORNEY
CONSIDER APPROVAL OF ORDINANCE OO-XX IMPOSING
AN ISO-DAY MORATORIUM ON THE APPROVAL OF
CONDITIONAL USE PERMITS FOR COMMUNICATION
FACILITIES LOCATED WITHIN THE RIGHT-OF-WAY
At the November 1, 1999 meeting, the City Council considered an
application by U.S. West for a Conditional Use Permit to allow a
communications tower within the right-of-way of CSAH 42 at the
northeastern intersection of CR 21. Attached as Exhibit A to this
Agenda Report is Agenda No. 9A, from City Council's November 1,
1999 meeting. Also attached are copies of the Minutes from that
meeting approved at the City Council's November 15, 1999 meeting.
Agenda Report 9A from the November 1, 1999 meeting fully
addresses the issue of why U.S. West was required to apply for a
Conditional Use Permit. The Planning Commission, consistent with
the staffs recommendation, recommended that the City Council
approve U.S. West's application for a Conditional Use Permit because
the application met the Conditional Use Permit criteria set out in Prior
Lake City Code Section 1108 and the City's Communications Tower
Ordinance set out in City Code Section 1110.
The City Council's action on a Conditional Use Permit is
"quasi-judicia1." Quasi-judicial decisions are those where the City
Council is applying its ordinances to a specific fact situation. Under
Minnesota law, a Conditional Use Permit must be granted if the
applicant meets the specified standards in the zoning ordinance. &x
v. Township of Grow, 206 N.W.2d 19,22 (1973).
At the November 1, 1999 meeting, a citizen addressed the Council
concerning his opposition to the approval of U.S. West's application
for a Conditional Use Permit to install a monopole in the right-of-way.
The opponent alleged that the construction of the monopole would
create a degradation of aesthetic and property values, commented on
the inadequacy of the chosen site and opined that the use is contrary to
the i1:JJ!w1 of Minnesota law. This speaker addressed the visions of the
16200 Ea~le Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245
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Telecommunications Act of 1996, and Minn. Stat. 9237.162, which
deals in relevant part with "telecommunications right-of-way users."
Prior to bringing U.S. West's applications for a Conditional Use
Permit to the City Council, we spent a considerable amount of time
with City staff discussing the extent to which the City can properly
"manage the public right-of-way" concerning "telecommunications
right-of-way users." We also met with representatives from U.S. West
to gain their perspective. Attached to this Agenda Report as Exhibit B
is a copy of Minn. Stat. 9237.162.
There are three basic principles courts apply to the interpretation of
zoning ordinances and [statutes]. First, the terms are construed
according to their plain and ordinary meaning. Second, ordinances are
construed strictly against the City and in favor of the property owner
[in this case U.S. West as the applicant for the Conditional Use
Permit]. Third, ordinances must be considered in light of their
underlying policy goals. These principles are articulated clearly in two
Minnesota cases: Frank's Nursery Sales, Inc. v. City of Roseville, 295
N.W.2d 604 (Minn. 1980), and Medical Services, Inc. v. City of
Savage, 487 N.W.2d 263 (Minn. App. 1992).
We did a great deal of legal analysis before we brought U.S. West's
applications for Conditional Use Permits to the City Counci1.
LEGAL ANALYSIS: The City's ability to regulate telecommunications facilities is regulated
by the Federal Telecommunications Act of 1996. Although the Act
does not altogether preempt local zoning authority, the Act is intended
to protect and facilitate the build-out of various telecommunications
services, wireless services; e.g., cellular telephone, paging, personal
communication systems, ricochet internet service providers, etc.; and
telephone line, coaxial cable or fiber optic cable.
In addition to the Telecommunications Act of 1996, the Minnesota
legislature has enacted a law dealing with local governments'
regulation of the public right-of-way and telecommunications
right-of-way users.
ISSUES:
In my judgment, both the Telecommunications Act of 1996 and Minn.
Stat. 9237.162 define and limit the City of Prior Lake's ability to
regulate the telecommunications industry in general and specifically
the use of the right-of-way by telecommunications right-of-way users.
In order for the City Council and City staff to assure that its zoning
ordinances are not inconsistent with the Telecommunications Act of
1996 and Minn. Stat. 9237.162, a moratorium on telecommunications
facilities may be appropriate to allow the City time to study the issues
and evaluate the City's current zoning ordinances.
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ALTERNATIVES:
REVIEWED BY:
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Few courts have considered the propriety of moratoria on
telecommunication providers. Courts that have considered the issue
have evaluated the length and purpose of the moratorium. Although
the State of Minnesota allows general zoning "moratorium," the
Telecommunications Act requires that municipalities evaluate
applications for telecommunications towers within a "reasonable
period of time after the request is duly filed." In addition, under
Minnesota law the City is required to act on zoning related matters
within 60 days from the time a complete application is filed (with an
allowable extension of an additional 60 days).
In August 1998, the Federal Communications Commission announced
an agreement between the Commission's local and state government
advisory committee, the Cellular Telecommunications Industry
Association, the Personal Communications Industry and the American
Mobile Telecommunications Association that determined that 180
days, in most cases, was a reasonable amount of time to evaluate a
proposal to site a facility. However, under Minnesota's 60-day rule,
U.S. West's Application for a Conditional Use Permit must be
approved or denied by January 13, 2000. Failure to act on their
Conditional Use Permit applications will result in the applications to
be "deemed approved."
Minn. Stat. 9237.162 probably prohibits the City from requiring a
telecommunications provider to obtain a Conditional Use Permit for
the installation of a facility in the right-of-way; however, a local
government unit may "manage its public rights-of-way and [sic]
recover its right-of-way management costs." Minn. Stat. ~ 237.163,
Subd. 2.
Because of the potential conflicts between federal and state laws and
the City's zoning ordinances, the City should adopt a moratorium to
evaluate the treatment of telecommunications facilities as a land use
and reconcile city zoning ordinances to federal and state laws.
Attached is a moratorium ordinance for your consideration.
The City Council has three alternatives:
1. Approve the attached moratorium ordinance;
2. Deny the attached moratorium ordinance; and
3. If the City Council elects not to adopt the moratorium, the City
Council should approve or deny U.S. West's Application for a
Conditional Use Permit as set out in the attached staff report from
Gember I, /r City Council meeting.
anager
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ORDINANCE OO-XX
INTERIM ORDINANCE
REGARDING THE INSTALLATION AND LOCATION OF TELECOMMUNICATIONS
FACILITIES IN THE PUBLIC RIGHT-OF-WAY
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
the United States Congress adopted the Telecommunications Act of 1996 to
protect and promote the deployment and delivery of telecommunications
services and to prohibit barriers affecting competition in the delivery of
telecommunications services; and
Section 704 of the Telecommunications Act of 1996 (the "Act") preserves the
authority of state and local governments over decisions regarding the
placement, construction, and modification of "personal wireless service
facilities" so long as local governments do not "unreasonably discriminate"
among providers of functionally equivalent services and do not adopt
requirements that "prohibit or have the effect of prohibiting" the provision of
personal wireless services; and
the Minnesota legislature adopted Minn. Stat. ~ 237.162 which deals generally
with the right of local governments to regulate "telecommunications
right-of-way users"; and
provisions in the City's zoning ordinance requmng telecommunications
providers in certain instances to obtain Conditional Use Permits for facilities
located within a public right-of-way may be inconsistent with Minn. Stat.
9237.162; and
the Prior Lake City Council has adopted Section 1110 of the Prior Lake City
Code regulating Communication Towers and Antennas in order to protect the
public health, safety and general welfare of the community; and
Section 1110.503 allows the City Council to permit the height of a
communication tower or antenna to exceed the maximum permitted height
subject to approval of a conditional use permit if the applicant can
demonstrate that, by a combination of antenna design, positioning the
structure and/or by screening, the off-site views of the antenna from adjacent
properties are minimized; and
Section 1110.600 (4) states upon approval of a conditional use permit by the
City Council, a tower's setback may be reduced or its location in relation to a
public street varied to allow integration of a tower into an existing structure
16200 Eagle Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245
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WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
such as a church steeple, light pole, power line support device or similar
structure.
Minn. Stat. ~ 462.355, Subd. 4, provides in relevant part:
"If a municipality is conducting studies or has
authorized a study. to be conducted or has held or has
scheduled a hearing for the purpose of considering
adoption or amendment of a comprehensive plan or
official control as defined in Section 462.352, Subd. 15,
. . . the governing body of the municipality may adopt
an interim ordinance applicable to all or part of its
jurisdiction for the purpose of protecting the planning
process and the health, safety and welfare of its
citizens."
the City of Prior Lake requires a reasonable amount of time to conduct studies
and evaluate the legal parameters under which it may regulate
telecommunication providers and to thereafter consider new zoning controls
or amendments to the existing zoning controls in its City Code; and
the City Council of the City of Prior Lake recognizes that Section 704 of the
1996 Act states that local authorities are required to act upon an application
for a facility site within a reasonable period of time; and
the Federal Communications Commission on September 17, 1996 issued Fact
Sheet No.2 titled "National Wireless Facility Siting Policies"; and
Fact Sheet No.2 on page 10 states in relevant part:
"In certain instances, state and local governments may
benefit from a brief, finite period of consideration in
order to set up a process for the orderly handling of
facility's siting requests. These brief periods of
consideration may be most effective if the state or local
government communicates clearly to wireless service
providers a specific duration of the moratorium, the
tasks that the local government entity intends to
accomplish during the moratorium, and the ways in
which the wireless service providers can help the local
government to achieve the stated goals of the
moratorium by, for example, providing additional
information about their needs and about their services."
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE:
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1. A 120-day moratorium is hereby imposed on the installation of any
telecommunication facility in the public right-of-way.
2. This moratorium applies to all "telecommunications right-of-way users" as defined
in Minn. Stat. ~ 237.162, Subd. 4.
3. The City Staff and City Attorney are hereby directed to analyze and reconcile the
provisions of the Telecommunications Act of 1996, Minn. Stat. ~ 237.162, and the
City zoning ordinances as they relate to entities subject to the Telecommunications
Act of 1996 and telecommunication right-of-way users.
4. The City Staff and City Attorney shall meet with and seek input from
telecommunication providers regarding how to manage the public right-of-way as
permitted by Minn. Stat. ~ 237.162.
5. The City Staff and City Attorney shall develop recommendations pursuant to the
above-referenced study and meetings and provide said recommendations regarding
amendments to the City zoning ordinance to the City Council.
6. The City Council shall consider the recommendations of the City Staff and City
Attorney and if appropriate refer proposed amendments to the City's zoning
ordinances to the Planning Commission for their consideration and
recommendation.
7. The recitals set forth above are incorporated herein.
This ordinance shall take effect upon its passage and publication.
Passed by the City Council of the City of Prior Lake this 3rd day of January, 2000.
ATTEST:
City Manager
Mayor
Published in the Prior Lake American on the 8th day of January, 2000.
Drafted By:
City of Prior Lake Planning Department
16200 Eagle Creek Avenue
Prior Lake, MN 55372
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MEETING DATE:
AGENDA #:
PREPARED BY:
REVIEWED BY:
AGENDA ITEM:
DISCUSSION:
CITY COUNCIL AGENDA REPORT
NOVEMBER 1, 1999
9A
JENNI TOVAR, PLANNER
DON RYE, PLANNING DIRECTOR
CONSIDER APPROVAL OF RESOLUTION 99-XX
APPROVING THE CONDITIONAL USE PERMIT FOR A
COMMUNICATION TOWER LOCATED WITHIN THE CSAH
42 RIGHT-OF-WAY
History:
US West has applied for a Conditional Use Permit to allow a
communication tower within the right-of-way of CSAH 42 at the
northeast intersection of CR 21. The property is zoned A
(Agricultural). The County is seeking approval from the City prior to
issuing any permits to the applicant.
The subject site consists of approximately 286 square feet within the
C.R. 42 right-of-way. The proposed monopole height is 81 feet and it
is located approximately 49 feet from the centerline of the traveled
roadway. There is a proposed utility box located on the ground, within
the right-of-way. The box is located within the leased tract and is 3~
feet high, approximately 4 feet by 4 feet square.
Current Circumstances:
On October 11, 1999, the Planning Commission held a public hearing
and recommended the City Council approve the Conditional Use
Permit with conditions. A copy of the draft minutes of the meeting is
attached to this report.
The Issues:
The proposed Conditional Use Permit should be reviewed in
accordance with the criteria found in Section 1108 of the City Code
and Section 1110. Section 1110 is the Communications Tower
ordinance. The criteria are discussed on the following pages.
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16200 Eagle Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245
AN EQUAL OPPORTUNITY EMPLOYER
'.
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City Code 1110.500 Height Restrictions allows for a maximum
height of 112.5 feet and that no tower be in excess height equal to the
distance from the base of the antenna to the nearest overhead electrical
power line. The proposed pole height of 81 feet meets this.
City Code 1110.600 Setbacks allows for a tower's setback to be
reduced or its location in relation to a public street varied to allow the
integration of a tower into an existing or proposed structure such as a
church steeple, power line support device, or similar structure upon
approval of a Conditional Use Permit.
City Code 1110.1200 Co-location requires the applicant for a tower
permit to provide documentation related to co-location. Attached is a
letter dated October 7, 1999 from US West related to co-location.
Basically, the applicant states there are no other possible structures
within their search ring. The tower located on the Jeffer's property to
the west is insufficient structurally to support US West's equipment.
Section 1108.200 of the City Code sets forth the criteria for approval
of a CUP. These criteria and the staff analysis of compliance with
these criteria are set forth below;
1. The use is consistent with and supportive of the goals and
policies of the Comprehensive Plan.
The proposed use preserves the objectives of the existing ordinances.
The Comprehensive Plan designates the adjacent property as C-BO
(Commercial Business Office Park) and R-HD (Residential High
Density). The proposed use is consistent with an objective to
"maintain orderly development of and access to utilities."
2. The use will not be detrimental to the health, safety, morals
and general welfare of the community as a whole.
The proposed communication tower will not be detrimental to health,
safety, morals and general welfare of the community as a whole.
3. The use is consistent with the intent and purpose of the Zoning
Ordinance and the Use District in which the Conditional Use is
located.
The proposed communication tower use is consistent with the A
(Agricultural) zoning district. The proposed setback requires a
conditional use permit in this zoning district.
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4. The use will not have undue adverse impacts on governmental
facilities, services, or improvements which are either existing
or proposed.
The proposed use will not have undue adverse impacts on
governmental facilities, services, or improvements. The roadway is
within the fall zone of the tower and would be temporarily blocked if
the tower should fall to the south.
5. The use will not have undue adverse impacts on the use and
enjoyment of properties in close proximity to the conditional
use.
The proposed monopole will not have undue adverse impacts on the
use and enjoyment of properties in close proximity. The pole is
similar to other structures within the right-of-way such as power poles.
The pole is located approximately 375 feet from the nearest house.
The owner of the property, Don Johnston, objects to the pole being
located in the right-of-way in front of his house. The Planning
Commission empathized with the property owner, but recognized the
pole to be within the right-of-way where other utility poles exist and
where the proposed use is appropriate. If the pole were to fall to the
north, the county has a 50 foot wide unobstructed utility easement to
minimize the impact on private property.
6. The use is subject to the design and other requirements of site
and landscape plans prepared by or under the direction of a
professional landscape architect, or civil engineer registered in
the State of Minnesota, approved by the City Council and
incorporated as part of the conditions imposed on the use by
the City Council.
The landscape ordinance does not apply to this, as it is located within
the right-of-way. From a maintenance point of view, additional
landscaping is not desired within the right-of-way and this utility
service must be treated the same as others such as the telephone
company or electrical company where utility boxes are not required to
be screened.
7. The use is subject to drainage and utility plans prepared by a
professional civil engineer registered in the State of Minnesota
which illustrate locations of city water, city sewer, fire
hydrants, manholes, power, telephone and cable lines, natural
gas mains, and other service facilities. The plans shall be
included as part of the conditions set forth in the Conditional
Use Permit approved by the City Council.
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FISCAL IMPACT:
ALTERNATIVES:
Plans prepared by a registered civil engineer have been submitted.
They will be reviewed as a part of the building pennit application.
The engineering staffhas reviewed the plans submitted.
8. The use is subject to such other additional conditions which the
City Council may find necessary to protect the general welfare,
public safety and neighborhood character. Such additional
conditions may be imposed in those situations where the other
dimensional standards, performance standards, conditions or
requirements in this Ordinance are insufficient to achieve the
objectives contained in subsection 1108.202. In these
circumstances, the City Council may impose restrictions and
conditions on the Conditional Use Permit which are more
stringent than those set forth in the Ordinance and which are
consistent with the general conditions above. The additional
conditions shall be set forth in the Conditional Use Permit
approved by the City Council.
According to Brian Sorenson, Scott County Transportation Engineer,
the proposed pole location meets the county's clear zone requirements
and will more than likely not be located within any future CR 21 right-
of-way. The right-of-way and design for the extension of CR 21 has
yet to be completed, but the pole is clearly located within the CSAH
42 right -of-way. No additional conditions are recommended for the
proposed use other than those listed below.
Conclusion: The Planning Commission concurred with staff and
concluded the proposed tower is consistent with the Conditional Use
Permit criteria and Communication Tower Ordinance. The Planning
Commission felt the use is consistent with other utility poles in the
area and is a reasonable use within the right-of-way and the co-
location requirement has been met. The Planning Commission
recommends approval of this request with the following conditions:
1. The utility equipm~nt box must be located as far from the curb as
possible, but within the right-of-way and leased tract.
2. A building permit is required.
3. A County permit is required. Provide the City with a copy of the
County permit prior to commencing construction.
Budf!et Impact: The construction of the towers will have no fiscal
impact on the City.
The City Council has three alternatives:
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.1 ..
1. Adopt Resolution #99-XX approving the Conditional Use Permit
for US West subject to the listed conditions.
2. Deny the Conditional Use Permit on the basis they are inconsistent
with the purpose and intent of the Zoning Ordinance and/or the
Comprehensive Plan. In this case, the Council should direct the
staff to prepare a resolution with findings of fact for the denial of
these requests.
3. Defer consideration of this item for specific reasons.
RECOMMENDED
MOTION:
Staff recommends alternative #1.
1. A motion and second to approve Resolution 99-XX approving the
Conditional Use P. it, subject to the listed conditions.
REVIEWED BY:
Frank
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CONDITIONAL USE PERMIT
RESOLUTION 99-XX
APPROVING A CONDITIONAL USE PERMIT TO ALLOW A COMMUNICATIONS
TOWER WITHIN THE CSAH 42 RIGHT-OF-WAY FOR US WEST, INC.
MOTION BY: SECOND BY:
WHEREAS, the Prior Lake Planning Commission conducted a public hearing on October
11, 1999, to consider an application from US West Inc. for a Conditional Use
Permit (CUP) for an 81 foot tall communications tower and the City Council
heard the case on November 1, 1999; and
WHEREAS, notice of the public hearing on said CUP has been duly published m
accordance with the applicable Prior Lake Ordinances; and
WHEREAS, the Planning Commission proceeded to hear all persons interested in this
issue and persons interested were afforded the opportunity to present their
views and objections related to the CUP for US West; and
WHEREAS, the Planning Commission and City Council find the CUP for a
Communication Tower located within the CSAH 42 right-of-way for US
West in harmony with existing development in the area surrounding the
project; and
WHEREAS, the Planning Commission and City Council find the proposed CUP is
compatible with the stated purposes and intent of the Zoning Ordinance as
they relate to conditionally permitted uses, and further, that the proposed
CUP meets the criteria for approval of CUP as contained in Section 1108 and
Section 1110 Communication Towers of the Zoning Ordinance.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE:
that it hereby adopts the following findings:
FINDINGS
1. The use is consistent with and supportive of the goals and policies of the
Comprehensive Plan.
2. The use will not be detrimental to the health, safety, morals and general welfare of the
community as a whole.
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16200 Eagle Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245
AN EQUAL OPPORTUNITY EMPLOYER
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3. The use is consistent with the intent and purpose of the Zoning Ordinance and the Use
District in which the Conditional Use is located.
4. The use will not have undue adverse impacts on governmental facilities, services, or
improvements which are either existing or proposed.
5. The use will not have undue adverse impacts on the use and enjoyment of properties in
close proximity to the conditional use.
6. The use is compatible with the general welfare, public safety and neighborhood
character.
BE IT FURTHER RESOL YED, THE CITY COUNCIL OF THE CITY OF PRIOR LAKE
approves the CUP for US West, Inc on the property legally described as follows:
That part of the Southeast Quarter of Section 22, Township 115 North, Range 22 West of the Fifth
Principal Meridian, described as follows:
Commencing at the southeast corner of said Section 22, thence South 89 degrees 10 minutes 17
seconds West along the south line of said Section 22, a distance of 59.46 feet; thence North 00
degrees 49 minutes 43 seconds West a distance of 61.83 feet to the point of beginning of the land
to be described; thence South 89 degrees 10 minutes 17 second West a distance of 21.83 feet;
thence North 00 degrees 49 minutes 43 seconds West a distance of 13,17 feet; thence North 89
degrees 10 minutes 17 seconds East a distance of 21.83 feet; thence South 00 degrees 49
minutes 43 seconds East a distance of 13.17 feet to said point of beginning.
BE IT FURTHER RESOL YED, approval of the CUP, as shown in Exhibit A and on Sheet 2-3,
is subject to the following conditions:
1. The utility equipment box must be located as far from the curb as possible, but
within the right-ol-way and leased tract.
2. A building permit is required.
3. A County permit is required. Provide the City with a copy of the County
permit prior to commencing construction.
CONCLUSION
Based upon the Findings set forth above, the City Council hereby grants a Conditional Use
Permit for US West. The contents of Planning Case File #99-066 are hereby entered into and
made a part ofthe public record and the record of the decision for this case.
Passed and adopted this 1st day of November, 1999.
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Page 2
Mader
Kedrowski
Petersen
Schenck
Wuellner
{Seal}
f:\dept\planning\99files\99cup\99-066\cuprscc.doc
"II" ~ ..
YES
Mader
Kedrowski
Petersen
Schenck
Wuellner
NO
City Manager,
City of Prior Lake
Page 3
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LI).WEST@
Advanced PCS™
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Min294
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PRIVAlE
Not for disclosure outside ofU S WEST Wireless, L.L.C.
Do not distribute or reproduce without pennission from US WEST Wireless, L.L.C.
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USWEST "Wireless L..L~C~ '
US West Wireless L.L.C.
426 North Fairview Avenue
St. Paul, MN 55104
F~: 651-642-6942
October 7,1999
Jane A. Kansier
Planning Coordinator
City of Prior Lake
16200 Eagle Creek Ave. SE.
Prior Lake, MN 55372
Re: MIN294 Monopole in Right of Way near Intersection ofHwy 21& Hwy 42
Prior Lake Planning Commission:
US WEST Wireless is proposing to build a communications pole in the right of way near the intersection ofHwy
21 & Hwy 42. This letter is intended to address your concerns as defined in the Prior Lake zoning code section
1110.1200.
The coverage area includes Highway 42 and Highway 21, as well as the surrounding commer,cial and residential
area within 1.5 miles. The area is in a valley where the elevation varies between roughly 870 feet and 970 feet
AMSL. US WEST Wireless does not currently provide service in this area.
The proposed pole is located near the intersection of Hwy 21 & Hwy 42 at a ground elevation of 869 feet AMSL
and a height of 81 feet. This places the antennas at about 950 feet AMSL. A drive test confrrmed that mounting
our antennas at this elevation in the proposed location would meet our coverage objectives.
Since the tower height is more than 80 feet tall, Prior Lake's zoning code section 1110.1200 part I requires us to
consider collocation options within 1/2 mile of the proposed pole. The only structure that may be capable of
meeting our RF objectives is an 80 foot guyed tower near the dog pound. Unfortunately, the tower's owner
passed away and his estate is in abatement. Since it is unlikely that the tower could support the weight of our
antennas and cables, and the future of the tower is in question,we chose to pursue a monopole in the right of way.
In accordance with Prior Lake's zoning code section 1110.1200 part 3 the proposed pole would be built to
~c~ommodate comparable antennas for at least I additional user.
Respectfully,
~/~~
Scott G. Schecklman
RF Engineer
I hereby certify that this plan, specification or report was prepared by me or under my direct supervision and that I
am a duly Registere rofessional Engineer under the laws of the State of Minnesota.
Date: 10 Jg {94
Registration No: 15408
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i.o 1998 DeLorme. Street Atlas USA
Mag 15.00
Fri Oct 0810:041999
, Scale 1:15,625 (at center)
I 1000 Feet
: I
!: 500 Meters
Guyed Tower
.
------ Local Road
- Major Connector
iltI Point of Interest
Water
Proposed Site
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. US West CSAH 42 Proposed I\I1onopole
Location Map
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Planning Commission Minutes
October n, 1999
Stamson:
. Agreed. The ideal situation would be for U.S. West to put it on the light post at the
High School. It would be revenue for the School and it would not be added height to
any pole. However, the proposal is not unreasonable. They are adding 13 feet to an
existing pole, which is probably the shortest pole in the area. It is not in a residential
area. This pole is not going to stand out in the area as being unusual.
V onhof:
. Concurred with Criego. The City would prefer to see less towers...1?y !ll~ltiple uses.
. It would be more consistent to seek out alternatives. i;.,.,il c. < \~,
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. .~~, , "':;~~ h :;_ ~~."~~~
Kuyken dall :,,'<~:;:1~~~i"':'::'X't"
. Questioned the Telecommunication Act. Fischer felt~tate Statute 337 permltS"tlieii;"
..;~ -~,~.~
usage in the right-of-way. Fischer also said they originally went to the City and did
not feel a Conditional Use was necessary. They ,ate going thrOtlgh the process to
'. ,. '-, ,-\,
appease everyone. None of the other utilities go through a pUP process and are
allowed the height.>,:.::,'~"
. Tovar said utilities are permitted in the'Jjght-of-way. Tbe'6tcliAange is very specific
on communication towers requiring a"qp~ili~;~R~l Use Permiti~~~(ead of going
through the amendment process, U.S. '\Y:c;:st op'te4l9.~go througH the CUP process and
expedite ~;\.,'" ", ,,~;',7~'t~~?;$>
. ..1/'~ ,~ity '''. Y
· The proposed site is on al)I~g:p~le.'t?~ .iP
.._:};~>'"'<-:o _:":_~j _:;~.'.-,
Cramer ..:V',:j l'-\' ~.''''
Questioned who had_~ufuority for thi'decision, state' or local government. A brief
discussion on uti1ity;;pole~"81?-d standards:follow,ec( Rye read the ordinance.
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';;-:'::,1:,_
MOTION BY;l.(Wl(ENDALL;\8.ECOND BY CRAMER, RECOMMENDING CITY
COUNC~:APPROVE:T.HE CONDITIONAL USE PERMIT WITH STAFF'S THREE
CONDItiONS. ~,:'_'<\~ ~/j'
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-4
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Vote taken indicated ayes by Kuykendall, Cramer, Criego, Stamson. Nay by Vonhof.
MOTION CARRIED.
Tovar stated this matter will go before the City Council on November 1, 1999.
ry
B. Case File #99-066 u.s. West Wireless Communications is requesting a
conditional use permit for the construction of a free standing monopole
communication tower located in the right-of-way.
Planner Jenni Tovar presented the Planning Report dated October 11, 1999, on file in the
office of the City Planner.
1:\99files\99plcomm\pcmin\rnnlOI199.doc
5
I T I'
Planning Commission Minutes
October II, 1999
The applicant is proposing to construct a freestanding 81-foot tall monopole within the
County right-of-way. This property is zoned A (Agricultural) and SD (Shoreland
District). Section 1110.600 ofthe City Code requires a Conditional Use Permit for
towers not meeting required setbacks with respect to public roads. Section 1110.500
allows for the pole height not to exceed 112.5 feet.
Staff recommended continuation of this matter to allow the applicant time to"St.l:b.tnit
required documentation relating to co-location as required by Section 1110.12bo~'
,. ~ . .
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Don Johnston, 3960 140th Street, said he owns the property,~#~~~:p.S. Westls'~3!~:,
proposing the tower. Johnston said he is not opposed to toWers O1:any progress, hf~(~f;:t';}-
:~ .?
concern is for property value. U.S. West has some what-of a cavalier attitude. He cifme
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home from vacation and found their testing equipm~I1t~}1~heir P~9P,~[!Y with no approval
nor contact with them whatsoever. He feels U.S. West shog~d.Jaiow\vhere the property
lines are between public and private property. There was ri'o'~fo.logy given for the trash
left on Johnston's property. Johnson questioned how the locanofrwas determined, was
.," .....-:_, ,':.~... ,. '-"'i-<"_.J...,~ ~>
his property the only one considered, and e~e~~~~l Johnston sta~e9Ahe pole will be in
their front yard and feels U.S. West is taking\advan4lge:;9fthe situatIon.
Questions from the com:#tr~eci~ \tf""/?
Cramer questioned Johnston on the existing U.S:,:t\Vest poles across County Road 42.
~~';':':-:: I .:~~'!~".:/
Johnston said U.S. VYest~Jines are W].derground. jip!
'*'""':'::nt,,:.:.:. ",..\l~:.;:I.~E'?",;'~r~y;.~iy
Criego asked to see Johnston's}ion1itoIf'the:map. Johnston stated to avoid more poles he
paid the utility companies to h~Jhe electric lines following the County Road 42
construction.;He als~'pointed outihe,~tersection of County Roads 42 and 21 are going
to be gateway areas. This"pole is going to be less than attractive and very noticeable.
Johnston suggested moving it approximately 200 feet north or 400 west or some other
location 'less obtrusive. Johnston said it would even be better in among the trees.
Comments from the public:
. -',
Cramer questioned Fischer on the existing U.S. West pole on County Road 21 and why
that site was not considered. Fischer said there would be more space on County Road 42
for the equipment. The pole is on private property. Tovar explained the County has
tower and setback requirements. There is a larger right-of-way along County Road 42.
Cramer said he failed to see the point. He is not opposed to the pole, but opposed to the
fact there is an existing central location on U.S. West property. Adding another utility
box would be okay.
Kuykendall questioned the site criteria. Fischer said there were several, topography,
amount of signal and results from dry tests. Kuykendall also expressed concern for
1:\99fi1es\99plcomm\pcmin\rnn I 01 I 99.doc
6
Planning Commission Minutes
October II, 1999
impact on the public and traffic safety. Fischer responded they took all of those issues
into consideration.
Fischer apologized to the Johnstons for the U.S. West's oversight in using Johnston's
private property.
The public hearing was closed.
".."
. ';2X~~~~.~ "
::~::::l;'rom the Commissioners: . t(;/!~~~~\.
. Asked Fischer at a later time, to identify the actual costs,ll.1:gomg through tllls}.,
process. ,,4;;;'- "''''~'t;~~~(;.l
. Emphasize with the property owner but sees no othe7alterna#ve. This is the o'9lYV~ite
in th: public right-of:way. The Teleco~unicaJio~~11ct is~~l~ce. Shifting the
locatIOn a few feet w1l1 not make any dIfference. ',~~,"+,;JJ"jo .9)
. Support the recommendation.
Criego:;~(~~~'~;",- ,,)0~
'h.' "'S:""'~':~'''''-_!'-'''. _ti-Fp
. Believed there are alternative sites. Loc~ti~iF~i;81?f()9t tower3in an Rl District is
sinful on U.S. West's part. They should'~e more\j~~~~itiv~~to the community. U.S.
- - -:..:'r.\-:'7 -. -r.I<.I...J'..
West can fnid other sites. .,They may have"fo.negotiatefor land or pay for land.
.,~,.~<_,t.~.-~ '.""~ 1
. Do not put a tower in fro.iifofsomeone's home.
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Cramer: ,~'~",\ ",!p~:;;-
. There is an altenf~ii~\He in.th~"'area.:iwl;1ich!'~heady has a large utility box. It has
y,....-.',-:.-', ..-,1.,:.;r-"*.__:~;.',...-v,: ..~.,_~.:'lt'~~N>' r'
power poles in the are~f~@1ilar to th"e'karea';by the High School. U.S. West might have
to get ad4i~<?n~,.~,asements;l~9.,~ the County, but they are getting the benefit because
that 10~ation.'-"isa:higl1er elevation. U.S. West already owns the property and does not
have'f~ offend res{detlts ofthe gOInmunity.
. . The alternative property is zoned commercial.
.U.S; West needs to loo~ at an alternative location.
V onhof:
. Questionedstaffoh County setbacks from the roadway. Tovar said she did not know
the County's ordinance. .Rye responded there are design considerations. They are
required to establish a safety zone along side the travel roadway. There are criteria
for that based on the design standards.
. Agreed with Criego and Cramer that there appear to be alternative locations.
Stamson:
. In reviewing the ordinance it appears the intent was to co-locate the poles. The site
meets all the applicable zoning regulation. It is the County's preferred location.
There is no alternative existing tower.
1:\99files\99plcomm\pcmin\rnn I 0 1199 .doc
7
IT
Planning Commission Minutes
October 11. 1999
. It is not ideal to have a pole in front of a home. It is a disadvantage living on a
County Road.
. The intent of a right-of-way is for utilities. That is what the Communication Act is
about, it is a utility like anything else.
1:\99files\99plcomm\pcmin\mn I 01 I 99.doc
8
. '
Planning Commission Minutes
October 11, 1999
Open Discussion:
Cramer:
. Main opposition is there are existing U.S. West poles with major utility box.
. If the utility companies do not share poles, there would be a separate set of poles for
every utility. Combine the utilities and poles and use the existing structures.
Stamson: _
. There is not enough space in the existing easement to site the facility~;,~rhe
"T '''-''":;.:">'
surrounding property is in abatement which makes it difficuIUo..purcli~e. The
,,'~.."l..I'~'vJ~
ordinance requires they attempt to negotiate, not that they have;do. 'c::!:~;1\
Cramer: . ,;i)/:'~'Zc;1 .'''~~/
. Before approving, would like to see something that's3:ys this 'facility will not fit)H the
alternative area. ..,;,"~'>"" \~,
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Kuykendall: "'~.:{~;\..
. Should not be second guessing professional engineers. Tl'lliy~)u.e the experts. Ifthey
say they studied the area and did a 33]~~~~~Q~and feel thi't~s~o alternative, the
Commissioners have no choice. WorkV6th\vha(i~:pr,~sented)V
Cramer: .,'n"''';;~~''<''''~:~?
. This group is to take all~e 'inthfmation andpome up with alevel of common sense.
. There are other locat~pns for thej,ole. There'ls,a resident with the possibility of
having an 81 fooq.<?y,er in his fiont yard. If it\vas just the box, would not object.
";~"':.c\,-.,':'~-;:.r ,,,;;,-
But this is a tower. :Tli~r~ ar~.2~:~~e~;'m,the right-of-way up and down County
Road 42. '<~";-:? '--"~"...;;"jj'
. Object tOJhis"location.'):'"f\
;::;i~~--:;'"Q+10!;;>\. ;, '''''", ,;)"
Kuykendall: ,. , "
..Requested someone from U.S.'West to clarify and convince the Commissioners this is
, ' the only location. ,
. Steve-Mangold, the Regional Real Estate Manager for U.S. West Wireless, 426 North
Fairview;'St. Paul, responded to the Commissioners' concerns. His main points
included:' ,~; J
. This isa County Road, with approval by the County for this site.
. It is iD. the right-of-way.
. The adjacent property is zoned that U.S. West could have a tower up to 113
feet. They are proposing a much lower tower.
. There is an existing high tension distribution line on the north side of the
right-of-way. It is the proper area for their structure.
. U.S. West is using the State Statutes as guidelines.
. It is good business sense for the community.
. U.S. West did not whimsically pick this location. This matter was studied.
1:\99files\99plcomm\pcmin\rnn I 0 1199 .doc
9
~ r
..,--_._-~..-_. r
Planning Commission Minutes
October /1, 1999
. It is at a busy intersection. Not a residential area.
Scott Shuckelman, engineer with U.S. West, explained why this area was selected as the
best site.
MOTION BY KUYKENDALL, SECOND BY STAMSON, TO ADOPT THE
CONDITIONAL USE PERMIT WITH THE SPECIFIC CONDITIONS LIS;r.U;:D BY
,,' ...,!!J'.,.
STAFF IN THE PLANNING REPORT. ' .,,, "
..;j>...... ~ ~..;' ,': . ~ -=-\.
Vote taken indicated ayes by Kuykendall, Stamson and V onhof..N~ys by..'Cri~go and
Cramer. MOTION CARRIED. ',! "'>."'"
.' ';~':L~:':;' ""'~~~~h",
This item will go before the City Council on November ~,;1999. -;"'~~~~:h/
,",.....~';i,.. .......,' '", ",,' ,{IV'"
"v.", .7
Kuykendall suggested U.S. West document the experi~6;ofthe p;~ar,ation for this ~ction.
.r "~";"'~:' _ ..::'"'I"'~
It is a hidden cost to the public and exceeds cost the public l~.no{-a\Va're of.
'~'S:~J~,~':.~'~.
. ~r"~~~
C. Case File #99-079 Amendment to Zoning Ordinant~.ielating to setback
,"c",l,~ ' "'~,"\"V
requirements for residential driveways.itt:~'rL";'':~;i::,.<':~i~
" ""i"t'~,y~~?:~,;"" ,,',;'
Planner Jenni Tovar presented the Planning R~port"dated()~'tgJ>er 11, 1999, on file in the
office of the City Planner. .~~,?~)' '~i:,)/ ,:J:l'
,.,~~~Zl~r!~@~~; ::\ '
The Planning Commissi9~~onsid~;~a this ordin~pe,j1II1endment at a public hearing on
August 9, 1999, and r~cqmmended ~~proval of the~trrdinance. The City Council also
revie,:ed the ord~naiic~8~'~'~~';~~;;~,f~~:~~1,:vhe Council was concer.ne? the c~teria
establIshed by this ordmance\yas not speclfic,;.enough and would result m mconsIstent
decisions, and referred the is~li~ack to the staffto determine ifmore specific criteria
could be developect:':>,. ,.7
The proposed amendment is the same language previously reviewed by the Planning
Commission. Following th,e Council's directive, the staff discussed the proposed criteria
extensively. The staff was 'unable to formulate any additional criteria.
Rye explained 'Yl1ythis issue was brought back with the Duluth Avenue street project.
There were no comments from the public.
Comments from the Commissioners:
Stamson:
. Comfortable with the wording. It is consistent with other areas of the ordinance.
. Support.
1:\99files\99plcomm\pcmin\rnnlOI199.doc 10
.
J e---"-,,,,-
SCOTT COUNTY
PUBLIC WORKS AND LANDS DIVISION
HIGHWAY DEPARTMENT
600 COUNTRY TRAIL EAST
JORDAN, MN 55352-9339
(612) 496-8346
:>
BRADLEY J. LARSON
ASSOCIATE ADMINISTRATOR
October 22, 1999
..
lv'Ir. Don Rye
Prior Lake Plarril1ngDirector
Prior Lake City H~i
16200 Eagle Creek Avenue
Prior Lake, MN 55372
Subject.:
U."'8. West Monopole Tower Proposal
Dear Don:
This is to clarify Scott County Highway Department's involvement and position on the U.S.
West proposal to locate a monopole within County Highway right-of-way a.long CSAH 42. We
were approached by representatives of U.S. Westconceining placement of the monopole in the
CSAH 42 right-of-way immediately west of the CSAH 21 intersection a couple of months ago.
This location was the only location presented.: '. Our comments were that they would need to
contact Prior Lake and get approval based on your ordinances and requirements before we could
take action on an Utility Permit to install the monopole in our right-of-way. We stated that our
main requirement, in addition to any that the City might impose, would be that the pole be
located beyond the safety "Clear Zone" of CSAH 42 traffic.
As to other locations to locate this monopole, none were discussed other than this proposed one.
From our positions, as long as the placement of the monopole is outside the safety "Clear Zone"
and does not interfere with other utilities or highway operations, the actual location along
CSAH 42 or other highways is not an issue.
Please feel free to contact me if you have any questions.
Sincerely,
Bradley 1. Larson, P.E.
Director of Public Works/Highway Engineer
BJL/jkf
E-mail:Barb Marschall, Scott County Commissioner
Jack Witt, Utility Inspector .
C: Don and Terry Johnston, 3960 NW 140th St., Prior Lake
An Equal Opportunity/Safety Aware Employer
I I
City Council Meeting Minutes
November 1,1999
BOYLES: Briefly reviewed the agenda item in connection with the staff report and the action previously
brought to the Council.
MADER: Concerned that townhouse and cluster lots below minimum width standards do not require
specific criteria and are subject only to City Engineer approval. Asked if there is no criteria defined,
doesn't that create the possibility of inconsistency. Suggested providing a minimum setback (Le. not'
less than) rather than leaving the decision to the discretion of the staff member.
KANSIER: Noted that staff felt this was an adequate approach given that townhouse and cluster
developments are subject to stricter guidelines through the preliminary plat process. Is comfortable
with this language because being so specific could not possibly apply to every circumstance. For
example, in the case of the Glynwater development. the design was to eliminate curb cuts and change
the aesthetics of the development by not viewing only big garages from the street.
VOTE: Ayes by Mader, Kedrowski, Petersen, Wuellner and Schenck, the motion carried.
The Council returned to the 7:45 p.m. public hearing (Item 7 A).
Consider Approval of Resolution 99-119 Awarding Bid and Authorizing the Mayor and City
Manager to Execute the City's Standard Contract for the Construction of a Community Park /
Athletic Complex on the Former Busse Property.
BOYLES: Review the agenda item in connection with the staff report and reviewed the bidding process.
items to be completed, and staff recommendation for the bid award.
MOTION BY KEDROWSKI, SECOND BY SCHENCK TO APPROVE RESOLUTION 99-119
AWARDING BID AND AUTHORIZING MAYOR AND CITY MANAGER TO EXECUTE THE CITY'S
STANDARD CONTRACT FOR THE CONSTRUCTION OF A COMMUNITY PARK / ATHLETIC
COMPLEX ON THE FORMER BUSSE PROPERTY.
HOKENESS: Described the proposed park development on the former Busse property. which would
include four softball/baseball fields and four full-sized soccer fields. Also noted the development of
unique natural barriers including run-off ponding, biofilters and berming. Stated that the staff will
continue to work with nearby property owners to address their concerns as the park development
progresses.
VOTE: Ayes by Mader, Kedrowski, Petersen, Wuellner and Schenck, the motion carried.
The Council took a brief recess.
NEW BUSINESS:
Consider Approval of Resolution 99-XX Approving Conditional Use Permit for a Communication
Tower located within the CSAH 42 Right-of-Way.
TOVAR: Discussed the specific location of the monopole, the monopole design, and the conditions of
the CUP approval as recommended by the Planning Commission and staff.
4
City Council Meeting Minutes
November 1,1999
MADER: Asked if the tower on the Jeffers property that has been determined to be structurally unsound
could be reconstructed.
TOVAR: Referred to an October 7th letter from US West as contained in the staff report which states
that it is unlikely that the tower could support the monopole and that it is unclear how long it will take
before the property title can be cleared up.
SCHENCK: Asked if there is a fee imposed by the City or the County.
TOVAR: Noted that a building permit is required, but no usage fee is required, similar to other utilities. '
MADER: Clarified that the statute allows for charge of a usage fee, but only if the fee is proportionate to
the costs associated with maintaining the right-of-way, and if a similar fee has been charged for other
utilities in the past.
BOYLES: Noted that there is an additional complication because this is a County right-of-way.
SCHENCK: Asked what other cities allow these types of monopoles, and to what extent.
Dan FISCHER (representing US West, the applicant): Noted that this application is relatively new to US
West. US West believes this use is consistent with other utilities. The Telecommunications Act does
allow users within the right-of-way. It is even a more consistent use placing the pole in the right-of-way
than locating it in the middle of a field. In utilizing the application, US West is attempting to keep the
design as unobtrusive as possible. Also noted US West's willingness to work with staff as the
ordinance is reviewed for possible revisions in order to maintain specific criteria for allowing the use in
the future.
MADER: Read from the statute which allows cities to regulate the use of multiple and competing
facilities within public rights-of-way. Understood that to mean there was some latitude for the City to
regulate the use.
~: Clarified that a permitting process which was different from that presently required by the
ordinance, although discussed with the US West representatives, was not something staff would or
could commit to, nor did staff imply implement any administrative process whereby these uses would
not come before the Council for consideration. Advised that it is in the Council's best interest to put
policies in place to manage such uses, even though it cannot specifically prohibit them.
SCHENCK: Asked the US West engineer why there is an advantage to putting the monopole in a ditch,
and if the southwest side of CSAH 42 would work.
SCOTT SCHECKLMAN (US West Radio Frequency Engineer): By putting the monopole in the lowest
spot, the signal reaches where it is weakest (i.e. fills up the hole). There is no reason from an RF
perspective that the Jeffers location wouldn't work. US West chose to remain consistent with the other
line of poles in the area and locate the tower at the proposed location.
WUELLNER: Asked about the average distance between poles, and if the tower on the,Jeffers property
is structurally unsound. Also asked about the life of this type of technology.
5
I 1
City Council Meeting Minutes
November 1, 1999
SCOTT SCHECKLMAN: Approximately 1 to 1.5 miles in a suburban area, and slightly farther apart in rural
areas. Also noted upon the structural engineers review of the site, it is unlikely, based upon the size of
the tower, that it could support the monopole. The advantage of radio frequency is that it is much more
reliable and faster than satellite signals. The estimate is that this technology will continue to increase
for the next 10-15 years.
PETERSEN: Concerned about the unsightliness of numerous monopoles. Also noted that to locate the
pole in a ditch has the potential to damage the equipment if vehicles would end up in the ditch during
bad weather.
SCHECKLMAN: Described the strategies to camouflages the antennas as much as possible.
DAVE FISCHER: Discussed the alternative locations researched and why the proposed site was chosen,
including the lack of overhead power lines, space available for the pole, and no need for additional
easements from adjoining property owners.
MADER: Asked if communications companies share poles, and if it would be reasonable for US West to
rebuild the tower on the Jeffers property and combine uses so that there would only be one tower in
the area.
FISCHER: US West has joint use agreements with other power companies. In this case, there was not a
current power company to share a pole with at this location due to the number of wires. Also, with the
Jeffers property in abatement, it is not clear how long until US West could enter into a ground lease
agreement, and what the future of that particular property would be. US West is trying to provide
service as soon as possible.
Mayor MADER asked for public comment.
DONALD JOHNSTON (4960 - 140th Street N.W.): Read a brief statement in opposition to the proposed
monopole tower due to (1) degradation of the aesthetic value of their property and diminution of their
property value; (2) it would open up the management of a whole new use for wireless companies
causing major disruption of the status quo; (3) the site is inadequate in size and easement access; and
(4) the use is contrary to the intent of the statute, which will be revisited in the next legislative session.
Commented that Prior Lake could become an antenna park. Requested Council action denying the
CUP, a 6-month moratorium, or specific restrictions upon approval as to camouflaging the pole to
preserve the aesthetic value of the surrounding residential properties and providing compensation for
diminution in property value.
KEDROWSKI: Does not support the proposal. Believes an action approving the use would open a much
larger issue for the City and set an unfavorable precedent for the community. Concurred that the
ordinance does need to be revisited in order to address these issues.
MADER: Commented that a number of issues have been raised and that there may be possible
alternatives available. Does not support the proposal at this time.
MOTION BY MADER, SECOND BY WUELLNER TO DEFER ACTION ON THIS ITEM TO A
SUBCOMMITTEE FOR FURTHER CONSIDERATION OF THE ISSUES OF THIS USE AS WELL AS
POSSIBLE ORDINANCE AMENDMENTS.
6
City Council Meeting Minutes
November 1, 1999
FISCHER: Requested a decision by the Council be made at this time either in support or denial, so that
US West may consider further action, if necessary.
The Council took a brief recess.
MADER: The City Attorney has advised that the Council has until Jan. 13, 2000 in order to take action
on the Conditional Use Permit.
MADER WITHDREW THE PREVIOUS MOTION, AND COUNCILMEMBER WUELLNER WITHDREW
HIS SECOND.
MOTION BY MADER, SECOND BY WUELLNER TO DEFER ACTION ON THIS ISSUE AND TO
DIRECT STAFF TO SCHEDULE A PLANNING COMMISSION AND CITY COUNCIL WORK SESSION
IN ORDER TO MAKE A RECOMMENDATION ON THIS ISSUE AND POSSIBLE ORDINANCE
AMENDMENTS PRIOR TO THE JAN. 13, 2000 DEADLINE.
VOTE: Ayes by Mader,' Kedrowski, Petersen, Wuellner, and Schenck, the motion carried.
Consider Approval ot Resolution 99-XX Approving the Conditional Use Permit tor a
Communication Tower located within the Candy Cove Right-ot-Way.
MOTION BY MADER, SECOND BY WUELLNER TO DEFER ACTION ON THIS ISSUE AND TO
DIRECT STAFF TO SCHEDULE A PLANNING COMMISSION AND CITY COUNCIL WORK SESSION
IN ORDER TO MAKE A RECOMMENDATION ON THIS ISSUE PRIOR TO THE JAN. 13, 2000
DEADLINE.
VOTE: Ayes by Mader, Kedrowski, Petersen, Wuellner, and Schenck, the motion carried.
Consider Approval of Resolution 99-120 Initiating the Vacation ot a Portion of Red Oaks Road
Adjacent to Lots 27-37, Red Oaks.
BOYLES: Reviewed the agenda item in connection with the staff report, the options available to resolve
the issue, and the recommendation by staff.
MADER: Asked if vacating the roadway eliminates City access for fire and police access.
KANSIER: Noted that the City and remaining property owners must received easements for access from
Ms. Roehr before the vacation would be initiated.
~: The easement agreements that would be acquired prior to initiating the vacation would have to
provide access easements for the City emergency vehicles and the remaining properties. The draft
easements before you are shown as a good faith intent by the property owners to proceed in this
fashion.
MOTION BY WUELLNER, SECOND BY PETERSEN TO APPROVE RESOLUTION 99-XX INITIATING
THE VACATION OF A PORTION OF RED OAKS ROAD ADJACENT TO LOTS 27-37, RED OAKS.
VOTE: Ayes by Mader, Kedrowski, Petersen, Wuellner and Schenck, the motion carried.
7
-~.~------..,....-.__.._..__._~'-_.._.,.~---~---_..-
~ ,
V. 1f.1J:,o~u-.-. ~_.. .--
56; LaW! 1996. c. 340,
123. 4 2. err. May 10.
Hi3tm-iCal. and
)" for "clauses (1) tD
Jbd. 5, inserted temJX>"
cate of authority as an
~n and added an int.en-
.cable state or federal
1 or telephone or tele-
a ground ror revoca-
'J.
n subd. 1, in par. (a),
:ting the commission tD
w~rnment unit under
t€d par. (d), relating tD
,he governing bodies or
1d deleted par. (e). re-
tion requirement5 of a
ommunications carrier
m or operation of fad!-
11l subd. 9, substituted
j" for "with" foUawiDg
rted reference to the
Act of 1996. and made
er municipal fnnch.i.se
: under tenn.9 of laWl
tion. U SWeat Com-
f Redwood Falls, App.
w denied.
j munieipal tnnehi&inlf
idencing legialative in-
unicipalities tD require
company. U S West
:ity of Redwood Falla,
~eview denied.
telephone company to
~ Ii nes in eonerete dud.
of any penon cutting
for purpolle8 ot compa-
..hich company request-
ement ot city tranchiae
my tn enl!llJe itA ftbl!!'
or agree to limitation of
nalerred authority tN"IIr'
r _ _ ___.._____ - - --- ..JJ};l.VJ.J.3....3~...J9
limited retained municipal authority to regulate
location of telephone linea did not encamp.IIB cily'.
requirement that company encase ilB fiber optic
15: 17/ST. 15: 17/NO. 4260632759 P .~2U Ita
Unea in concrete aUct or otnel'WUle agree..... m, -
Uon ollillbilily. U S Weal CommunlcaLlona, Inc. v.
Cit.y or Redwood Falls. App.19'37. 50B N.W.2d 512,
review denied.
E'(~\ "BIT B
237.161. Expired
Historical and StatutOry Notes
Subdivision 6 of lilia section provided ror the expiring. this section was amended by LIIMI 1994.
expiration of this section July 1, 1996. Prior to C!. 534, art... I, ~ L
231.162. Public righ~C-way; definition.
Subdivision 1. Generally. The tenns used in sections 237.162 and 237.163 have the
meanings given to them in this Section.
Subd Z, Local government unit. "Local government unit" means a county, home nlJe
charter or statutory city, or town. ~. -
Subd.. 3. Public right-of-way. "Public right-of-way" meanB th,e area,~, Pelaw, ,a_
a public roadway, highway, street, cartway, bieycle lane, and pubUe sideWa1k1D"'whic-'ij
local government unit has an interest, iPclu~ other dedicated rights-of-way for 'travel
PUl'pOBeS and utility euementa olloc:al govenuneut units. !
A public right-at-way does not include the airwaves above a public right-ot-way with regard
to cellular or other nonwire telecommunications or broadcast service. ,.
SubeL 4. Telecommunications right-of-way 'UHr. "Telecommunic.atioD:l-, ~l1t-of~\YBYI
user' meaD8 a person owning or controlling a facility in the public right-at-way, or seeking to,
own or control a facility in the public right-ot-lVaY, that is used or is intended to ,be UBeci JO~I
transporting telecommunications or other voice or data inlorma . on' A cable communication
system de.firie an regulate un er c pter 238,-and te ecomrnunications activities related to
providing natural gas or electric energy servi~,whether provided by a public utility' as
defined in section 216B.02, a mWlicipality, a m~pa1 gas or power agency organized ~er
chapter 453 or 453A. ora cooperative electric aa80ciation organized under chapter 308A, are
Dot telecommunications right-of-way users for.~ .~~. purposes ot this section and seciiOn
237.163. '.
.:.~ ?~;: :;~ . .
Subd. 5. Excavate. "Excavate" meaDB toctig' into or in any way remove, physically
disturb, or penetrate a part of a public righHf-w8y~ '
Subd. 6. Obatrucl "Obstru.ct" meanB to pl.iU:e~ 'tangible object in a publie right-af-way
so as to hinder tree and open passage over that or"i.Dy'part of the righk>f-way. -
. ( . j - .
Subd. 7. Right~t-way pennit. "Right-of-way'permit" means a pennit to perform work
in a public right-oC-way, whether to excavate or obstruct the right-of-way.
....,.
Subd. 8. Manage the public right-of-way. ,~e the public right-of-way" means the
authority of a local government unit to do any or~'9.f,.the following:--
(1) require registration; ;,; ,."":"
(Z) req~e const.:ruction perfonnance bonds and iDsurance coverage;
(3) establish installation and construction standaros;
(4) establish and define location and relocation requirements for equipment and facilities;
(5) establish coordination and timing requirementBi
(6) require telecommunications right-of-way uaers to submit. for right-oI-way projects
commeneed after May 10, 199'7, whether initiated by a local government unit or any
telecommunications right-of-way user, project. data reasonably neeessary to allow the local
government unit to develop a right-of-way mapping system, sueh as a geographical infonna-
tion mapping systemj
(7) require telecommunication right-of-WJl.Y UI81'II to submit, upon requeat 01 a local
government unit, existing data on the location of the user's facilities occupying the public
right-of-way within the local government unit. The data may be submitted m the form
21
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".~' .;."\.~~,..~:'..~' ."
FROM
,
(THU) 12. 30' 99 15: 1S/ST. 15: 17/NO. 4260632759 P
I 237.162
TELECOMMUNICATIONS
maintained by the user and in a reasonable time after receipt of the request b~ed on the
amount of data requested;
(8) establish right-of-way pennitting requirements Cor street. excavation and obstructionj
(9) establish removal requirements for abandoned equipment or facilities. if required m
conjunction with other right-of-way repair, excavation, or construction; and
nO} impose reasonable penalties for unreasonable delays in construction.
Subd. 9. ~anagement costa or righta-of-way management costs. "Management
costa" or "rights-ot-way management c9sts" means the actual costs a local government unit
incW"S in managing its public rights-of-way, and includes such costs, if incurred, as those
associated with registering applicants; issuing, processing, and verifying right-oC-way permit
applications; inspecting job sites and restoration projects; maintaining, supporting, protect-
ing, or moving user equipment during public right-of-way work; detennining 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 pennits. Management costs
do not include pa.YJIlent by a telecommunications right-at-way user for the use of the public
right-of-way, the fees and cost of litigation relating to the interpretation of this section or
section 237.163 or any ordinance enaeted under those sections, ~r the loc.a1 unit of govern-
ment's fees and costs related to appeals taken pursuant to section 237.163, subdivision 5.
Laws 1997. c. 123,' 3,
Historical and Statutory Notes
rules required under t 237.163, subd. 8, but local
government units may exercise the authority that
existed before Nov, I, 1996, with regard to the
pvweD deac:ribed in that. clawe. until those rules
are adopted.
1991 Lelislation
Laws lW1, Co 123, t 12, provides in part. that
f 3 (enacting this section) is etr~tive May 10,
1957, except. that. subd. 8, d. (3), ill etrective upon
the earlier of March I, 1998, or the adoption of the
237.163. Use and regulation of public righb-of-way
Subdivision 1. Legislative. finding. The legislature ~'ds, and establishes the principle
that, it is in the state's interest that the use and regulation' of public rights-of-way be carried
on in a fair, efficient, competitivelt: neutral, and substantially unifonn manner, while recogniz-
ing such regulation must reflect t e distinct engineering, construction, operation, maintenance
and public and worker safety requirements, and standards applicable to various users of
public righ~f-way. Because of the potential for installation by telecommunication compa-
nies of multiple and competiIig ladlities within the public riR'hts-af-waI9 the le2islature finds
It 18 neceuary to enact the rovisions of this section and section 7.162 to 8 cifieany
au onu 0 governmen umts to re a e use 0 U c n ts-of wa b te ecommuni-
ea ODS ng -0 -way users.
Subd. 2. Generally. (a) Subje~ to this section, a telecommunications right-of-way user
authorized to do business under the laws of this state or by license of the Federal
Communications Commission may construct., maintain, and operate conduit, cable, switches,
and related appurtenances and facilities along, across, upon. above, and under any public
right~f-W'aY.
(b) Subject to this section, a local government unit has the authority to manage' its public
rights-ot-way and to recover its rights-of.,.way, management costs. The authority defined in
this seC!tion may be exercised at the option of the IDeal government unit. The e..'(ercise ot this
authority is not mandated under this section. A local government unit may, by ordinance:
(1) require a t.elecomrnunieations right-of-way user seeking to excavate or obstruct a public
right-of-way for the purpose at providing telecommunications services to obtain a right-of-
way pennit to do so and to impose pennit conditions consistent with the local govenunent
unit's management ot the right-of-way;
(2) require a telecommunications right-of-way user using, occupying, or seeking to use or
occupy II public right-oC-way for the purpose of providing telecommwlicatloIUi services t.o
register with the loeal government unit by providing the local government unit with the.
following inConnation:
22
r 1
3
TI-
ad,
. I
rer
elf;
(
pIa
gO\
unc
(
is
pel"
~
of ~
are;
the
req'
reil:
wa)
per:
(l
a 10
USe
ex~
(c
or c
whe
this
trav
shal
that
SI
appl
com
(b
gaVE
welf
(c
tiom
tern
pern
(l
(2
perp
its Cl
(3
(4,
unI~~
(5)
stane
ofth
FROM "
JMMUN!l,;A'llVl"~
~quest based on the
1 and ob!ltnlction:
lities. Lf' required in
,nd
n.
1St!!" "Management
leal government unit
:f incurred, as those
: right-oC-way pencit
supporting, protect-
ning the adequacy of
providing notice and
, Management costs
the use of the public
on of this section or
local unit of govem-
37.163, subdivision 5.
-;-,163, subd. 8, but local
!rcise the authority that
'96, with regard to the
clause, until those roles
:ablishes the principle
rhts-of-way be carned
~nner, while l'ecogniz:'
peration, maintenance
e to various users of
:omrnunication compa-
'{ the legi31ature finds
2.37,162. to specifically
-way by telecommwli-
ions right-ot-way user
:ense oC the Federa:l
,nduit. cable, switches,
and Wlder any public
Y to manage' its public
Ie authority defined in
t. The exercise of thia
nit may, by ordinance:
lte or obstruct a public
5 t.o obtain a rightr-of-
: the local government
s. or !leeking to ~ or
nunieationA serYleel to
~rnment unit with the.
(THU) 12. 30' 99 15: 19/5T. 15: 17/NO, 4260632759 P ,4 . ,
TELECOMMUNICATIONS ~ 237.163
(i) the applicant's name, gopher state one-call registration number under section 216D.03,
addre88, and telephone and facsimile numbers;
(ii) t.he name, address, and telephone and facsimile numbers of the applicant's local
represenutive;
(ill) proof o( adequate insurance; and
(iv) other infonnation deemed reasonably necessary by the local government unit for the
efficient ad~tration oC the public right-of-way; and
(3) require telecommunications right-oC-way users to submit to the local government unit
pla~ for construction and major maintenance that provide reasonable notice to the local
government unit oC projects that the telecommunications right-of-way user expects to
Wldertake that may require excavation and obstruction of public rights-of-way.
(c) A local government unit may also require a telecommunications right-of-way user that
is registered with the local government unit pursuant to paragraph (b), clause (2), to
periodically update the infonnation in its registration application.
SuM 3. Restoration. (a) A telecommunications right~!-way user, after an excavation
of a public right-of-way, shall provide for restoration of the righ~of-way and surrounding
areas, including the pavement and ita foundation, in the same condition that existed before
the excavation. Local government unita that chooSe to perfonn their own surface restoration
required as a result of the excavation may require telecommunications right.of-way users to
reimburse the reasonable t!osts of that surface restOration. Restoration of the public right-of.
way must be completed within the dates specified in the right-of-way permit, unless the
pennittee obtains a waiver or a new or amended right. or-way permit.
(b) If a telecommunications right-of-way user 'elfi!ctB not to restore the public right-of-way,
a loeal government unit may impose a degradation fee in lieu of restoration to recover costa
associated with a decrease in the useful life of the public right-of-way caused by the
excavation of the right-of-way by a telecommunicatiOnS right-or-way user.
(c) A telecommunications right-of-way user that.:\ti8turbs uncultivated sod" in the eXcavation
or obstruction of a public right-<>f-way shall plant' gn.sses that are native to Minnesota aDd,
wherever practicable, that are of the local eccrtype, as part of the restoration required ~~er
this subdiviaiOD. unless the owner oC the real property over which the public right-of-way
traverses objects. In restoring _the right-of-way,. !he telecommunicatioru5 right-ot-way UBer
shall consult with the department of natural resi)\~~s regarding the species of native grasses
that cowonn to the requiremenu of this paragraph~.'."
Subd..c. Permit denial or revocation. (a) A local government unit may deny aDY
application for a right-of-way pennit if the telecommunications right-oC-way user does not
comply with a provision of this section. . ..
(b) A local government unit may deny an applicatioD for a right-of-way pennit if the local
government writ determines that th~ denial is neeeasary to protect the health. safety, and
welfare or when necessary to protect the public righ~f.way and its current use.
(c) A lccal govl!!rnment unit may revoke a right-of-way permit granted to a teleconununica-
tions right-of-way user, with or without fee refund, in the event of a substantial breach of the
terms and conditions of statute. ordinance, rule, or regulation or any material condition of the
pennit. A substantial breach by a pennittee includes, but is not limited to, .the followin~
(1) a material violation of a provision of the right-of-way pennit;
(2) an evasion or attempt to evade any material provision oC the right-ot-way pennit, or the
perpetration or attempt to perpetrate any fraud or deceit upon the local government unit or
it.s citizens;
(3) a material misrepresentation oC fact in the right-of-way permit applicationj
(4) a railU1'9 to complete work in a timely maimer, UDless a permit extension is obtained or
unless the failure to complete work is due to reaaOD8 beyond the permittel8'S control; and
(6) a failure to correct., in a timely manner, work that does not contonn to appliCJlhle
standards, conditions, or codes, upon inspection and notification by the loeal govenunent UDit
of the Caulty condition.
23
FROM
~
I I I
y ~.J'. .I.U.J
(THU) 12. 30' 99 15; 20/ST. 15; 1 Yt~'r.;\3~~iLf{o(.lH!JU'lUN~
(d) Subject to this subdivision, a local government unit may not deny an application Cor a
right-oC-way pennit Cor Cailure to include a project in a plan 8ubmitted to the local
government unit under subdivision 2, paragraph (b), clause (3), when the telecommunications
right-oC-way user has used commercially reasonable efforts to anticipate and plan for the
project.
(e) In no event may a local government unit unreasonably withhold approval of an
application for a right-oC-way pennit, or unreasonably revoke a permit.
Text of mbd. 5 repealtd effective June JO, 1999.
Subd. 5. Appeal. (a) A telecommunications righHlf-way user that: (1) has been denied
registration; (2) has been denied a right-oC-way permit; (3) has had its right-of-way pennit
revoked; or (4) believes that the fees imposed on the user by the local government unit do not
contorm to the requirements of subdivision 6, may have the denial, revocation, or fee'
imposition reviewed, upon written request; by the governing body of the local government
unit. The governing body of the local government unit shall act on a timely written request
at its next regularly scheduled meeting. A decision by the governing body affinning the
denial, revocation, at' fee imposition must be in writing and supported by written findinp
establishing the reasonableness oC the decision.
(b) Upon affirmation by the governing body of the denial, revocation, or tee impOlition, the
telecommunications right.--of-way user ahall have the right to have the matter resolved by
binding arbitration. Binding arbitration must be before an arbitrator agreed to by both the
local government unit and the telecommunications right-of-way user. It the partie. cannot
agree on an arbitrator, the matter must be resolved by a three-person arbitration panel made
up of one arbitrator selected by the local government unit, one arbitrator selected by the
telecommunications right-of-way user and one person selected by the other two arbitrators.
The COIta and feel of a lingle arbitrator shall be borne equally by the local government unit
and the telecornmunicatioDl right-of-'W8Y user.
In the event there is a third arbitrator, each party shall bear the expense of ita own
arbitrator and shall jointly and equally bear with the o~her party the expense oC the third
arbitrator and of th. arbitration.
Each party to the arbitration shall pay its own costa, disbursements, aDd attorney lees.
Subd. 6. Feea. (a) A local government unit may recover ita right-ai-way management
eolta by impo81Dg a fee for registration, a tee for each right-at-way pennit, or, when
appropriate. a tee applicable to a particular telecommunications right-of-way user when that
user causes the local ~vemment unit to incur costa aa a result of actions or inactioDs of that
user. A local guvenJIueut. wuit way Dot recover D'om a telecommunications right--or-way user
COiti eaused by another entity's adivity in the righ~f-way. '
(b) Feea, or other right-ot-way obligationa, imposed by a local government unit on
te1ecommunicationa right-ot-way uaera under thia section must be:
(1) based on the act;ua] coau incurred by the loc:a1 government unit in managing the public
right-of-way;
(2) based on an allocation among all users of the public right-of-way, including the local
government unit itself, which .shall reflect the proportionate costs imposed on the local
government unit by each oC the various types ot uses oC the public rights-of-way;
(3) imposed on a competitively neutral basis; and
(4) imposed in a manner so that. above-ground u.ses ot public rights-of-way do not bear
costs incurred by the loeal government unit to regulate underground u.ses of public righ~f-
way.
(c) The rights, duties, and obligatiorul regarding the use of the public right-of-way impoeed
under this seetion must be a~Ued to all users of the public right-ot-way, including the local
government unit while reeognizing regwation must reDect the dIstinct engineering, construc-
tion, operation, maint.enanC!e and publie and worker salety requirements, and .ta.ndArdJ
applicable to vanOlla users of the public rightJI-of-way. For Wiers subject to the tJ-anchiBing'
authority of a local government unit, to the extent those rights. duties.. and obligations are.
24 !
FROM
(THU) 12. 30' 99 15: 21/ST, 15: 17/NO, 4260632759 P 7
04/19/99
[REVISOR]
RR/KS
AR2986ST
1 (5) the development by the local government unit of a cost study that includes
2 the allocation of the cost of building and maintaining the high-density corridor,
3 principles of cost recovery, and the allocation of capacity within it, which must be
4 submitted to public hearing and review by the governing body of the local government
5 uni ti and
6 (6) the opportunity for any party providing utility service in the applicable
7 right-of-way to appeal the governing body's adoption of the cost study to the
8 commi55ion.
9 C. Existing telecommunications facilities shall not be relocated to the high-density
10 corridor, unless required pursuant to part 7819.3100.
11 7819.1000 FEES AND PENALTIES.
12 Subpart 1. Pemtit fee. A local government unit that requires a permit for excavation,
13 in or obstruction of the public right-of-way shall make its permit fee schedule available
14 to the public. The permit fee schedule must be established in advance and designed to
15 recover the local government unit's actual costs incurred in managing the public
16 right-of-way.
17 Subp. 2. Allocation of permit fees. Permit fees must be based on an allocation among
18 all users of the public right-of-way, which shall include the local government unit itself,
19 so as to reflect the proportionate costs imposed on the local government unit by each of
20 the various types of users of the public rights-of-way. Although the local government
21 unit must be allocated its proportionate share of permit fees, the local government unit
22 need not transfer funds to pay permit fees.
23 Pennit fees must be allocated in a competitively neutral manner and must be
24 imposed in a manner so that aboveground uses of public rights-of-way do not bear costs
25 incurred by the local government unit to regulate underground uses of public
26 rights-of-way.
7819.1000
6
11 ...