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PC Packet 04.17.18 AGENDA HUTCHINSON PLANNING COMMISSION Tuesday,April 17, 2018 5:30 p.m. 1.CALL TO ORDER 5:30 P.M. 2.PLEDGE OF ALLEGIANCE 3.CONSENT AGENDA A.CONSIDERATION OF MINUTES DATED MARCH 20, 2018 4.PUBLIC HEARINGS A.CONSIDERATION OF A CONDITIONAL USE PERMIT TO AMEND THE PLANNED DEVELOPMENT DISTRICTAND VACATION OF EASEMENTSFOR SOUTHFORK RIDGE THIRD ADDITION. B.CONSIDERATION OF A CONDITIONAL USE PERMIT FOR AN ELECTRONIC RECYCLING FACILITY, STORAGE FACILITY AND RD OUTDOOR STORAGE, LOCATED AT 540 3AVE NW. C.CONSIDER REVISIONS TO CHAPTER 90; RIGHT-OF-WAY MANAGEMENT D.CONSIDER REVISIONS TO CHAPTER 154.119; TELECOMMUNICATIONS 5.NEW BUSINESS 6.UNFINISHED BUSINESS 7.COMMUNICATION FROM STAFF A.Upcoming Meetings 8.ADJOURNMENT MINUTES HUTCHINSON PLANNING COMMISSION Tuesday,March 20, 2018 5:30 p.m. 1.CALL TO ORDER 5:30P.M. The March 20, 2018Planning Commission meeting was called to order by Chair Faheyat 5:30p.m. Members in bold were present Chair Fahey,Vice Chair Wick,Commissioner Garberg,Commissioner Lofdahl,Commissioner Hantge andCommissioner Forcier. Also present were Dan Jochum,City Planner,Kent Exner, City Engineer, John Olson, City Public Works,John Paulson, City Environmental Specialist,Marc Sebora,City Attorneyand Andrea Schwartz, City of Hutchinson Permit Technician 2.PLEDGE OF ALLEGIANCE 3.CONSENT AGENDA A.CONSIDERATION OF MINUTES DATED JANUARY 16, 2018. Motion by Commissioner Wirt,Second by Commissioner Lofdahl.Motion approved. Motion to Approve–Motion to Reject 4.PUBLIC HEARINGS A.CONSIDERATION OF A PRELIMINARY AND FINAL PLAT AND VACATION OF EASEMENT FOR GARBERS ADDITION TO FAIRWAY ESTATES, LOCATEDAT 1424 AND 1428 HERITAGE AVE NW. Dan Jochum, City Planner addressed the Commission. Mr. Jochum reviewed the application as outlined in the Commission’s packets. Mr. Jochum noted that these lots are in the ShorelandDistrict, and with that only being able to cover 25% of the property with impervious surface. Making the lot larger will help with the size of the home being built on this lot and not going over the allowed percentage. Mr. Jochum reviewed the future assessment liabilitysection of the staff report and noted totake off staff recommendation #4 knowing that this is currently a private streetso assessments will not be affected by the size of these lots. Also to highlight staff recommendation #5, thata Gopher State One Call shall be made to make sure there are no utilities installed down the center of these 2 lots. Minutes Hutchinson Planning Commission March 20, 2018 Page 2 Commissioner Lofdahl questioned the SAC and WAC billing. Mr. Jochum noted that he had previously spoke to City Engineer Kent Exner and there will only be one SAC and WAC billing for the lot when it is combined. Motion by Commissioner Hantge,second by Commissioner Forcierto close hearing at 5:40p.m.There were no public persons present at the meeting and no written correspondencesent to the City officesregarding this application. Motion by Commissioner Lofdahlto approvewith staff recommendations# 1-5, eliminating #4. Second by Commissioner Garberg.Motion approved. Item will be on City Council consent agenda on 03/27/2018. Motion to close hearing –Motion to approve with staff recommendations–Motion to reject 5.NEW BUSINESS There was talk of the retaining wall on the Hotel Project in regard to the two walls having different design.There was nothing written in the permit issued by the Planning Commission. We will try to make note of this for future projects. 6.UNFINISHED BUSINESS 7.COMMUNICATION FROM STAFF A.Upcoming Meetings Dan Jochum noted that we have 2applicationsfor theAprilPlanning Commission meetingat this time. 8.ADJOURNMENT Motion by Commissioner Wirt, Second by Commissioner Hantgeto adjourn at 5:43 p.m. DIRECTORS REPORT –PLANNING DEPARTMENT To:Hutchinson Planning Commission From:Dan Jochum, Planning Director and City of Hutchinson Planning Staff Date:April 12,2018, forApril 17, 2018, Planning Commission Meeting Application:Consideration of a Conditional Use Permit to Amend Planned Development Districtand Vacation of Easements Applicant:GusWurdell, Owner:Security Bank & Trust Co. CONDTIONAL USE PERMIT AND VACATION OF EASEMENTS The applicant is requesting approval of two items for Southfork Ridge Third Addition, including: 1.Conditional Use Permit to amend the PDD to reduce the minimum front yard setbacks from 25 to 20-feet on 11 lots. This request is to allow larger units to beconstructed on the lots.In addition, the interior lot line setbacks for 12 lots are proposed to be zero feet to accommodate twin homes. 2.Vacation of easements along fourlot lines to allow construction of twin homes in what currently is easement area. The development plans for this site have been revised several times over the years. The development was originally platted for twinhomes;however,it was later changed to detached cottage homes.This proposal is a combination of twin homes and single-family homes. Conditional Use Permitand Vacation of Easements Southfork Ridge Third Addition Planning Commission –4/17/18 Page 2 GENERAL INFORMATION Existing Zoning:R-3PD(Medium-High DensityPlanned Development District) Property Location:Southfork Ridge Third Addition Lot Size:.12 to .27acres Existing Land Use:Primarily vacantresidential lots and approximately six single- family homes. Adjacent Land Use:Residential AdjacentZoning:R-3 PD (Medium-High Density Planned Development District) Comprehensive Land Use Plan:Low Density Residential Neighborhood (2 to 4 units per acre) Zoning History:Southfork Ridge Third Addition is a replat of the original Southfork Ridge plat. The originalplat was designed and platted forconstruction of twin homes.In 2005, Southfork Ridge Third Addition was replatted toreestablish drainage and utility easements andallow cottage homes, rather than twin homes. The Planned Development District was originally approved with 8-foot side yard setbacks. In 2007, the PDD was again amended to accommodate twin homes and the side yardsetbacks were reduced from 8 feet to 6 feet. Applicable Regulations:Section 154.070and City Charter Section 13.05 Analysis: Mr. Wurdell is requesting a Conditional Use Permit to amend the planned development district to reduce the following setbacks: Block 1, Lots 3-6 reduce side yard setback to 0 feet on interior lot lines between lots 3/4 and 5/6 to accommodate a common wall on twin homes. Block 2, Lots 1-8 reduce side yard setback to 0 feet on interior lot lines between lots 1/2, 3/4, 5/6, and 7/8 to accommodate a common wall on twin homes. Block 2, Lots 5-8 reduce front yard setback from 25’ to 20’ to be consistent with lots 1-4 on this block. Block 3, Lots 2-8 reduce front yard setback from 25’ to 20’ to be consistent with block 2 across the street. Conditional Use Permitand Vacation of Easements Southfork Ridge Third Addition Planning Commission –4/17/18 Page 3 The R-3 PD allowsfor dimensional standards for lots to be set on a lot by lot basis and “to encourage a more creative approach in the utilization of land which may be characterized by special features of the geography, topography, size or shape of a particular property; and to provide a compatible and stable environment in harmony with that of the surrounding area. Conformance to the site plan is requiredandchanges are processed through an amendment to the PDD” (Section 154.070, Hutchinson Zoning Ordinance). Staff did discuss the requested 20-footsetback request at length. There were some concerns that the shorter driveways due to the reduced setback to 20 feet may affectthe trail/sidewalk facility on the south side of Grant Ave SEdue to vehicles in the driveway overhanging the trail/sidewalk. However, after discussion it was noted that 20 feet is the length of a typical parking stall and would provide enough room for parking one vehicle in the driveway without blocking the trail/sidewalk facility. It wasalso made clear that blocking trails/sidewalks in any part of town is not permitted and this situation would be treated no differently. In addition, easements requestedto be vacated between lots 3 and 4 of block 1 and lots 5 and 6 of block 1. Vacating the easements will allow twin homes to be built that have a zero lot line and a shared wall on the property line. Separate water and sewer services are required per lot. There is a tile on the south property line. The developer must verify therewill be not be any construction over the storm sewer line on the south edge of the plat. Conditional Use Permit: The Conditional Use Permit (CUP) is needed to amend the Planned Development District. The following are standards for granting a conditional use permit: (a)The proposed building or use at the particular location requested is necessary or desirable to provide a service or a facility which is in the interest of the public convenience and will contribute to the general welfare of the neighborhood or community; (b)The proposed building or use will not have a substantial or undue adverse effect upon adjacent property, the character of the neighborhood, traffic conditions, utility facilities and other matters affecting the public health, safety and general welfare; and (c)The proposed building or use will be designed, arranged and operated so as to permit the development and use of neighboring property in accordance with the applicable district regulations. Recommendation: Staff recommends approval of the Conditional Use Permit and Vacation of Easementswith the following conditions: 1.Individual lots may not exceed 50% lot coverage requirement. Conditional Use Permitand Vacation of Easements Southfork Ridge Third Addition Planning Commission –4/17/18 Page 4 2.Removal or relocation of any services will be at the owner’s expense. 3.Separate water and sewer services will be required for each lot. 4.Applicant shall verify that there will be no building over any stormsewer lines. 5.Ensure all necessary drainage and utility easements are in place and re-establish these easements if they were previously vacated and don’t conform to this plan. 6.The conditional use permit shall remain in effect as long as the conditions required by the permit are observed. DIRECTORS REPORT –PLANNING DEPARTMENT To:Hutchinson Planning Commission From:Dan Jochum, Planning Director and City of Hutchinson Planning Staff Date:April 12,2018, forApril 17, 2018, Planning Commission Meeting Application:Consideration of a Conditional Use Permit for a Recycling Facility, Storage Facility and Outdoor Storage Applicant:Jeffrey Krueger Owner:Albee Property Management CONDTIONAL USE PERMIT The applicant has applied for a Conditional Use Permit to operate a recycling facility within the rd building at 540 3Avenue NW, as well as outdoor storage related to the recycling facility and a storage facility. Conditional Use Permitand Vacation of Easements Southfork Ridge Third Addition Planning Commission –4/17/18 Page 2 GENERAL INFORMATION Existing Zoning:I/C –Industrial/Commercial District rd Property Location:540 3Ave NW Lot Size:1.95 acres Existing Land Use:Industrial Warehouse Facility Adjacent Land Use:Industrial and Parkland AdjacentZoning:I/C –Industrial/Commercial District Comprehensive Land Use Plan:Industrial Zoning History:Aconditional use permit was grantedin 1981 for a building addition. In 1994 a conditional use permit was granted for a cold storage warehouse. In 2007 theconditionaluse permits from 1981 and 1994 were reviewed due to not meeting conditions set forth. In 2014 a conditional use permit was applied for to allow for outdoor storage but this CUP application was later withdrawn. Applicable Regulations:Section 154.066and 154.175 Analysis: The applicant is seeking three different approvals within this Conditional Use Permit application. 1) CUP to establish recycling use in buildingas required by I/C zoning district in which all uses are conditional uses. 2) Outdoor storage related to the recycling facility. 3) Outdoor storage, which would consist of approximately 25 shipping containers that could be rented out as “storage units”. 1.Conditional Use Permit to Establish Recycling Use in Building This request would establish the recycling facility as a Conditional Use in the I/C zoning district. Previously this building had been used by a plating company and used for general storage.It should also be noted that the recycling facility has been in operation at this location for over a year.Therecycling use fits within the intent and purpose of the I/C Zoning District, therefore staff recommends that the recycling use be established for the storage and recycling of items within the building.Any items that would be stored outside will be discussed in number two below.TheBuilding Official and Fire Chief will have to inspect the buildingand ensure building and fire codes are being met with this use.In addition, staff recommends that the access to this propertyjust east of Montana St. be closed becauseof its proximity to Montana St. Staff had previously discussed closing this access withprevious building owners but it was never closed. There appears to be more than adequate access off of Montana St. for the western side of this property. Conditional Use Permitand Vacation of Easements Southfork Ridge Third Addition Planning Commission –4/17/18 Page 3 2.Conditional Use Permit to Allow for Outdoor Storage Staff has concerns about outdoor storage for a facility such as this. There have been two other recycling facilities in Hutchinson and each hashad numerous complaints regardingoutdoor storage and the appearance ofthe property. Currently there are shipping containers and other miscellaneous items being stored without screening. Staff proposes that any items being stored outside are behind a fully enclosed fence that is at least 7 feet tall. All items being stored outside must not be visible from outside the fence. The applicant canwork with staff regardingthe location of this fenced in area. 3.Conditional Use Permit to Allow for a Storage Useon the Property Staff is comfortable with permitting storageinside the existing buildings on-site if the buildings meet all applicablefire and building codes related to storage occupancy. However, staff has several concerns related to additional storage on-site. The applicant submitted a rough sketch of the sitethat included the new area proposed to be used for storage. The new storage area is proposed to be south of the existing building and would consistent of “storage containers”that typically are used in the shipping industry. These containers are 8’wide, 8’tall, and 20’long.These structuresdon’t fallunder the buildingcode because they are under 200 square feet andthey are defined as accessory structures under the zoning code. Staff has serious concerns about having this many accessory structures being utilized for storage purposes in Hutchinson. One of the major concerns is aesthetics, while there is screening from the south from large trees these containers still likely would be visible from Montana St/Hwy 7. Additionally,another concernis that thecontainers will be placed on gravel and will be accessed by an 8’gravel drive aisle. If these storage containers are going to be rented to the publicthezoning ordinance requires paved/improved parkinglots and drive aisles.Eight feet is not wide enough to accommodatemore than one vehicle to use the drive aisle at a time or room enough for emergency vehicles to access thestorage units in case of fire, etc. Finally, another concern is stormwater management. This property is located within the shoreland district, which allows for 25% impervious surface coverage. The site is likely already at or over the 25%,impervious coverage limit meaning stormwater ponding would be needed in orderto accommodate more impervious surface on site. Due to these concerns, staff is recommending that the CUP not include a storage component outside of the current buildings for the reasons stated above.In addition, the existing storage containers on-site should be moved inside the buildings or taken off site. To summarize, staff is comfortable recommending a CUP to establish the recycling use and storage use inside the existingbuildings on-site. Staff is opposed to any open storage of items outside on the side, including storage containers for any reason.Any items stored outside shall be screened by a fence of no less than 7 feet in height and the applicant shall work with staff on the location of this fence and obtainproper permits for this fence.The items stored outside should be shorter than 7 feet as to remain screened at all times. Conditional Use Permitand Vacation of Easements Southfork Ridge Third Addition Planning Commission –4/17/18 Page 4 Conditional Use Permit: The Conditional Use Permit (CUP) is needed to establish the recycling useand for outdoor storage. The following are standards for granting a conditional use permit: (a)The proposed building or use at the particular location requested is necessary or desirable to provide a service or a facility which is in the interest of the public convenience and will contribute to the general welfare of the neighborhood or community; (b)The proposed building or use will not have a substantial or undue adverse effect upon adjacent property, the character of the neighborhood, traffic conditions, utility facilities and other matters affecting the public health, safety and general welfare; and (c)The proposed building or use will be designed, arranged and operated so as to permit the development and use of neighboring property in accordance with the applicable district regulations. Recommendation: Staff recommends approval of the Conditional Use Permit with the following conditions: 1.Recycling is established as an allowable use of the property subject to all applicable zoning and building codes, including outdoor storage. rd 2.The access to the site from 3Ave NW nearest to Montana St. shall be closed. 3.The Building Official and Fire Chief shall inspect the property within 60 days of the Conditional Use Permit being approved to ensure compliance with applicable codes. 4.Outdoor storage will be allowed only if it is fully enclosedand screened from view. Items stored outside shall be stored behind a fence at least 7 feet highand not be visible from outside the fence. The applicant shall work with City staff regarding the location of anyproposed fencing. 5.Storage containers are prohibited on-site unless they are within a building. 6.No additional impervious surface shall be added to the lot, including gravelunless a comprehensive site plan and stormwater plan are completed for the site. 7.The conditional use permit shall remain in effect as long as the conditions required by the permit are observed. DIRECTORS REPORT –PLANNING DEPARTMENT To:Hutchinson Planning Commission From:John Paulson andDan Jochum, AICP Date:April 12, 2018, for April 17,2018Planning Commission Meeting RE:Right-of-Way Ordinance and Telecommunication Ordinance Revisions Overview As you may recall, from time to time the Planning Commission reviews many of the ordinances the City has adopted. City staff has been in the process of reviewingand revisingthe City Right- of-Way Ordinance and the Telecommunication Ordinance for the past several months. Theneed to review these documents arose from legislation at the State level last legislative session relative to Small Cell Technology. Small Cell is the next wave of cell phone technology that includes small cell antennas located on utility polesand structures of similarscale to utility poles to help meet the demand for cellular and more importantly,data,that today’s smart phones require.The new legislation dealt withthis technology being located within public right-of-way. It took severalmonths of review from the League of MN Cities and various other groups to decipher what the legislation actually met for local government. Sincethen,guidance has been provided by various groups such as the League of MN Cities and staffhas revised our existing telecommunication ordinance to cover Small Cell Technologywithin the right-of-way, as well as outside it. We also used thisas an opportunity to clean up our Right-Of-Way Ordinance (Chapter 90). Please see the attachedordinances. Staff understands much ofthis is very technicaland John Paulson will do his best to give an overview of these ordinances.This is also an opportunity to obtain input from the public and cell providers during the public hearing. Please let Staff know if you have any questions. Thank you. ORDINANCE NO. 18-0783 AN ORDINANCE TO ENACT A NEW CHAPTER OF THE CODE OF ORDINANCES TO ADMINISTER AND REGULATE THE PUBLIC RIGHTS-OF-WAY IN THE PUBLIC INTEREST, AND TO PROVIDE FOR THE ISSUANCE AND REGULATION OF RIGHT-OF-WAY PERMITS. THE CITY COUNCIL OF THE CITY OF HUTCHINSON, MINNESOTA ORDAINS: Chapter 90 of the Code of Ordinances is hereby repealed in its entirety, and is replaced by the following new Chapter 90 to read as follows: CHAPTER 90 RIGHT-OF-WAY MANAGEMENT § 90.01. Findings, Purpose, and Intent. To provide for the health, safety and welfare of its citizens, and to ensure the integrity of its streets and the appropriate use of the rights-of-way, the City strives to keep its rights-of-way in a state of good repair and free from unnecessary encumbrances. Accordingly, the City hereby enacts this new chapter of this code relating to right-of-way permits and administration. This chapter imposes reasonable regulation on the placement and maintenance of facilities and equipment currently within its rights-of-way or to be placed therein at some future time. It is intended to complement the regulatory roles of state and federal agencies. Under this chapter, persons excavating and obstructing the rights-of-way will bear financial responsibility for their work. Finally, this chapter provides for recovery of out-of-pocket and projected costs from persons using the public rights-of-way. This chapter shall be interpreted consistently with 1997 Session Laws, Chapter 123, substantially codified in Minnesota Statutes Sections 237.16, 237.162, 237.163, 237.79, 237.81, and 238.086 (the "Act") and 2017 Session Laws, Chapter 94 amending the Act and the other laws governing applicable rights of the City and users of the right-of-way. This chapter shall also be interpreted consistent with Minnesota Rules 7819.0050 7819.9950 and Minnesota Rules Chapter 7560 where possible. To the extent any provision of this chapter cannot be interpreted consistently with the Minnesota Rules, that interpretation most consistent with the Act and other applicable statutory and case law is intended. This chapter shall not be interpreted to limit the regulatory and police powers of the City to adopt and enforce general ordinances necessary to protect the health, safety and welfare of the public. § 90.02. Election to Manage the Public Rights-of-Way Pursuant to the authority granted to the City under state and federal statutory, administrative and common law, the City hereby elects, pursuant Minn. Stat. 237.163 subd. 2(b), to manage rights-of-way within its jurisdiction. § 90.03. Definitions. The following definitions apply in this chapter of this code. References hereafter to "sections" are, unless otherwise specified, references to sections in this chapter. Defined terms remain defined terms, whether or not capitalized. Abandoned Facility. A facility no longer in service or physically disconnected from a portion of the operating facility, or from any other facility, that is in use or still carries service. A facility is not abandoned unless declared so by the right-of-way user. Applicant. Any person requesting permission to excavate, obstruct, or operate a small wireless facility in a right-of-way. City. The City of Hutchinson, Minnesota. For purposes of Section 90.28, City also means the Cityelected officials, officers, employees and agents. City Engineer. The City Engineer of the public works department of the City, or his or her designee. Collocate or Collocation. To install, mount, maintain, modify, operate, or replace a small wireless facility on, under, within, or adjacent to an existing wireless support structure or utility pole that is owned privately, or by the City or other governmental unit to minimize obstructions and impacts in the Right-of-Way. Commission. The State Public Utilities Commission. Congested Right-of-Way. A crowded condition in the subsurface of the public right-of-way that occurs when the maximum lateral spacing between existing underground facilities does not allow for construction of new underground facilities without using hand digging to expose the existing lateral facilities in conformance with Minnesota Statutes, section 216D.04 subdivision 3, over a continuous length in excess of five hundred (500) feet. Department. The department of public works of the City. Emergency. A condition that: (A) poses a danger to life or health, or of a significant loss of property; or (B) requires immediate repair or replacement of facilities in order to restore service to a customer. Equipment. Any tangible asset used to install, repair, or maintain facilities in any right-of-way. Excavate. To dig into or in any way remove or physically disturb or penetrate any part of a right-of-way. Excavation permit. The permit which, pursuant to this chapter, must be obtained before a person may excavate in a right-of-way. An Excavation permit allows the holder to excavate that part of the right-of-way described in such permit. Excavation permit fee. Money paid to the City by an applicant to cover the costs as provided in Section 90.13. Facility or Facilities. Any tangible asset in the right-of-way required to provide Utility Service. Hole. An excavation in the pavement, with the excavation having a length less than the width of the pavement. Local Representative. A local person or persons, or designee of such person or persons, authorized by a registrant to accept service and to make decisions for that registrant regarding all matters within the scope of this chapter. Management Costs. The actual costs the City incurs in managing its rights-of-way, including such costs, if incurred, as those associated with registering applicants; issuing, processing, and verifying right-of-way or small wireless facility permit applications; inspecting job sites and restoration projects; maintaining, supporting, protecting, or moving user facilities during right- of-way work; determining the adequacy of right-of-way restoration; restoring work inadequately performed after providing notice and the opportunity to correct the work; and revoking right-of- way or small wireless facility permits. Management costs do not include payment by a telecommunications right-of-way user for the use of the right-of-way, unreasonable fees of a third-party contractor used by 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 90.31 of this chapter. Micro Wireless Facility. A small wireless facility that is no larger than 24 inches long, 15 inches wide, and 12 inches high, and whose exterior antenna, if any, is no longer than 11 inches. Obstruct. To place any tangible object in a right-of-way so as to hinder free and open passage over that or any part of the right-of-way. Obstruction Permit. The permit which, pursuant to this chapter, must be obtained before a person may obstruct a right-of-way, allowing the holder to hinder free and open passage over the specified portion of that right-of-way, for the duration specified therein. Obstruction Permit Fee. Money paid to the City by a permittee to cover the costs as provided in Section 90.13 Patch or Patching. A method of pavement replacement that is temporary in nature. A patch consists of: (A) the compaction of the subbase and aggregate base, and (B) the replacement, in kind, of the existing pavement for a minimum of two feet beyond the edges of the excavation in all directions. Pavement. Any type of improved surface that is within the public right-of-way and that is paved or otherwise constructed with bituminous, concrete, aggregate, or gravel. Permit. Has the meaning given "right-of-way permit" in Minnesota Statutes, section 237.162. Permittee. Any person to whom a permit to excavate or obstruct a right-of-way has been granted by the City under this chapter. Person. An individual or entity subject to the laws and rules of this state, however organized, whether public or private, whether domestic or foreign, whether for profit or nonprofit, and whether natural, corporate, or political. Registrant. Any person who: (A) has or seeks to have its equipment or facilities located in any right-of-way, or (B) in any way occupies or uses, or seeks to occupy or use, the right-of-way or place its facilities or equipment in the right-of-way. Restore or Restoration. The process by which an excavated right-of-way and surrounding area, including pavement and foundation, is returned to the same condition and life expectancy that existed before excavation. Restoration Cost. The amount of money paid to the City by a permittee to achieve the level of restoration according to plates 1 to 13 of Minnesota Public Utilities Commission rules. Public Right-of-Way or Right-of-Way. The area on, below, or above a public roadway, highway, street, cartway, bicycle lane, multi-use trail or public sidewalk in which the City has an interest, including other dedicated rights-of-way for travel purposes and utility easements of the City. A right-of-way does not include the airwaves above a right-of-way with regard to cellular or other nonwire telecommunications or broadcast service. Right-of-Way Permit. Either the excavation permit or the obstruction permit, or both, depending on the context, required by this chapter. Right-of-Way User. (A) A telecommunications right-of-way user as defined by Minnesota Statutes, section 237.162, subd. 4; or (B) a person owning or controlling a facility in the right-of-way that is used or intended to be used for providing utility service, and who has a right under law, franchise, ordinance, or as authorized by the City to use the public right-of-way. Service or Utility Service. Includes: (A) those services provided by a public utility as defined in Minn. Stat. 216B.02, subds. 4 and 6; (B) services of a telecommunications right-of-way user, including transporting of voice or data information; (C) services of a cable communications systems as defined in Minn. Stat. Chapter. 238; (D) natural gas or electric energy or telecommunications services provided by the City; (E) services provided by a cooperative electric association organized under Minn. Stat., Chapter 308A; and (F) water, and sewer, including service laterals, steam, cooling or heating services. Service Lateral. An underground facility that is used to transmit, distribute or furnish gas, electricity, communications, or water from a common source to an end-use customer. A service lateral is also an underground facility that is used in the removal of wastewater from a customer's premises. Small Wireless Facility. (A) A wireless facility that meets both of the following qualifications: (1) each antenna is located inside an enclosure of no more than six (6) cubic feet in volume or could fit within such an enclosure; and (2) all other wireless equipment associated with the small wireless facility provided such equipment is, in aggregate, no more than twenty eight (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. (B) A micro wireless facility. Supplementary Application. An application made to excavate or obstruct more of the right- of-way than allowed in, or to extend, a permit that had already been issued. Temporary Surface. The compaction of subbase and aggregate base and replacement, in kind, of the existing pavement only to the edges of the excavation. It is temporary in nature except when the replacement is of pavement included in the City's two-year plan, in which case it is considered full restoration. Trench. An excavation in the pavement, with the excavation having a length equal to or greater than the width of the pavement. Telecommunications Right-of-Way User. A person owning or controlling a facility in the right-of-way, or seeking to own or control a facility in the right-of-way that is used or is intended to be used for providing wireless service, or transporting telecommunication or other voice or data information. For purposes of this chapter, a cable communication system defined and regulated under Minn. Stat. Chap. 238, and telecommunication activities related to providing natural gas or electric energy services, a public utility as defined in Minn. Stat. Sec. 216B.02, a municipality, a municipal gas or power agency organized under Minn. Stat. Chaps. 453 and 453A, or a cooperative electric association organized under Minn. Stat. Chap. 308A, are not telecommunications right-of-way users for purposes of this chapter except to the extent such entity is offering wireless service. Utility Pole. A structure that is: (A) owned or operated by: (1) a public utility; (2) a communications service provider; (3) a municipality; (4) an electric membership corporation; or (5) a rural electric cooperative; (B) and is designed and used to: (1) carry lines, cables, or wires for telephone, cable television, or electricity; or (2) provide lighting. Wireless Facility. Equipment at a fixed location that enables the provision of wireless services between user equipment and a wireless service network, including equipment associated with wireless service, a radio transceiver, antenna, coaxial or fiber-optic cable, regular and backup power supplies, and a small wireless facility, but not including wireless support structures, wireline backhaul facilities, or cables between utility poles or wireless support structures, or not otherwise immediately adjacent to and directly associated with a specific antenna. Wireless Service. Any service using licensed or unlicensed wireless spectrum, including the use of Wi-Fi, whether at a fixed location or by means of a mobile device, that is provided using wireless facilities. Wireless service does not include services regulated under Title VI of the Communications Act of 1934, as amended, including cable service. Wireless Support Structure. 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. § 90.04 Administration. The City Engineer is the principal City official responsible for the administration of the rights-of- way, right-of-way permits, and the ordinances related thereto. The City Engineer may delegate any or all of the duties hereunder. § 90.05. Registration and Right-of-Way Occupancy. (A) Registration. Each person who occupies or uses, or seeks to occupy or use, the right-of- way or place any equipment or facilities in or on the right-of-way, including persons with installation and maintenance responsibilities by lease, sublease or assignment, must register with the City. Registration will consist of providing application information (B) Registration Prior to Work. No person may construct, install, repair, remove, relocate, or perform any other work on, or use any facilities or any part thereof, in any right-of-way without first being registered with the City. (C) Exceptions. Nothing herein shall be construed to repeal or amend the provisions of a City ordinance permitting persons to: (1) Plant or maintain boulevard plantings or gardens in the area of the right-of-way between their property and the street curb. Persons planting or maintaining boulevard plantings or gardens 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 chapter. However, nothing herein relieves a person from complying with the nuisance provisions of Hutchinson City Code or Minn. Stat. Chap. 216D, Gopher One Call Law. (2) Enter into a franchise agreement with the City. § 90.06. Registration Information. (A) Information Required. The information provided to the City at the time of registration shall include, but not be limited to: (1) Each registrant's name, Gopher One-Call registration certificate number, address and e-mail address, if applicable, and telephone and facsimile numbers. (2) 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. (3) A certificate of insurance or self-insurance: (a) Verifying that an insurance policy has been issued to the registrant by an insurance company licensed to do business in the State of Minnesota, or a form of self-insurance acceptable to the City; (b) Verifying that the registrant is insured against claims for personal injury, including death, as well as claims for property damage arising out of the; (i) use and occupancy of the right-of-way by the registrant, its officers, agents, employees and permittees, and (ii) placement and use of facilities and equipment in the right-of-way by the registrant, its officers, agents, employees and permittees, including, but not limited to, protection against liability arising from completed operations, damage of underground facilities and collapse of property; (c) Naming the City as an additional insured as to whom the coverages required herein are in force and applicable and for whom defense will be provided as to all such coverages; (d) Requiring that the City be notified thirty (30) days in advance of cancellation of the policy or material modification of a coverage term; and (e) Indicating comprehensive liability coverage, automobile liability coverage, workers compensation and umbrella coverage established by the City in amounts sufficient to protect the City and the public and to carry out the purposes and policies of this chapter. (f) The City may require a copy of the actual insurance policies. (g) If the person is a corporation, a copy of the certificate is required to be filed under Minn. Stat. Sec. 300.06 as recorded and certified to by the Secretary of State. (h) A copy of the person's order granting a certificate of authority from the Minnesota Public Utilities Commission or other authorization or approval from the applicable state or federal agency to lawfully operate, where the person is lawfully required to have such authorization or approval from said commission or other state or federal agency. (B) Notice of Changes. The registrant shall keep all of the information listed above current at all times by providing to the City information as to changes within fifteen (15) days following the date on which the registrant has knowledge of any change. § 90.07. Permit Requirement. (A) 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 City to do so. It is a misdemeanor to construct or reconstruct a sidewalk, curb and gutter, driveway, roadway surfacing, small wireless facilities, or place obstructions in any street or other public property in the City without a permit. (1) Right-of-Way Excavation Permit. An excavation permit is required by a registrant to excavate that part of the right-of-way described in such permit and to hinder free and open passage over the specified portion of the right-of-way by placing facilities described therein, to the extent and for the duration specified therein. (2) Right-of-Way Obstruction Permit. An obstruction permit is required by a registrant to hinder free and open passage over the specified portion of right-of-way by placing equipment described therein on 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 project. (3) Right-of-Way 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. (B) Permit Exceptions. A right-of-way permit is not required for: (1) A City employee acting within the course and scope of his or her employment; (2) A contractor acting within the course and scope of a contract with the City; or (3) A franchisee acting within the course and scope of its franchise from the City or other permission or authorization from the City. (C) Permit Extensions. No person may excavate or obstruct the right-of-way beyond the date or dates specified in the permit unless (1) such person makes a supplementary application for another right-of-way permit before the expiration of the initial permit, and (2) a new permit or permit extension is granted. (D) Permit Display. Permits issued under this chapter shall be conspicuously displayed or otherwise available at all times at the indicated work site and shall be available for inspection by the City. § 90.08. Permit Applications. Application for a permit is made to the City. Right-of-way permit applications shall contain, and will be considered complete only upon compliance with, the requirements of the following provisions: (A) Registration with the City pursuant to this chapter; (B) Submission of a completed permit application form, including all required attachments, and scaled drawings showing the location and area of the proposed project and the location of all known existing and proposed facilities. (C) Payment of money due the City for: (1) permit fees, estimated restoration costs and other management costs; (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, collocation fees, or other charges, if applicable. § 90.09. Issuance of Permit; Conditions. (A) Permit Issuance. If the applicant has satisfied the requirements of this chapter, the City shall issue a permit. (B) Conditions. The City may impose reasonable conditions upon the issuance of the permit and the performance of the applicant thereunder to protect the health, safety and welfare or when necessary to protect the right-of-way and its current use. In addition, a permittee shall comply with all requirements of local, state and federal laws, including but not limited to Minnesota Statutes §§ 216D.01 - .09 (Gopher One Call Excavation Notice System) and Minnesota Rules Chapter 7560. (C) Small Wireless Facility Conditions. In addition to (B) Conditions above, the erection or installation of a wireless support structure, the collocation of a small wireless facility, or other installation of a small wireless facility in the right-of-way, shall be subject to the following conditions: (1) A small wireless facility shall only be collocated on the particular wireless support structure, under those attachment specifications, and at the height indicated in the applicable permit application. (2) No new wireless support structure installed within the right-of-way shall exceed fifty (50) feet in height without the Cityprovided 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 fifty (50) feet in height with a structure of the same height subject to such conditions or requirements as may be imposed in the applicable permit. (3) No wireless facility may extend more than ten (10) feet above its wireless support structure. (4) Where an applicant proposes to install a new, or replace an existing utility pole for use as a, wireless support structure in the right-of-way, the City may impose separation requirements between such structure and any existing wireless support structure or other facilities in and around the right-of-way. (5) Where an applicant proposes collocation on a decorative wireless support structure, sign or other structure not intended to support small wireless facilities, the City may impose reasonable requirements to accommodate the particular design, appearance or intended purpose of such structure. (6) Where an applicant proposes to replace a wireless support structure, the City may impose reasonable restocking, replacement, or relocation requirements on the replacement of such structure. (7) Maintenance and Modifications (a) Coordination of Maintenance and Equipment Upgrade Activities - Prior to telecommunication right-of-way user engaging in planned or routine maintenance activities, or equipment upgrades concerning small wireless facility equipment attached to a City, County, or Utility owned pole, telecommunication right-of- way user shall provide twenty (20) days advance notice to the City in order to coordinate such maintenance activities or other public safety functions. Telecommunication right-of-way user shall obtain a Small Wireless Facility Permit prior to engaging in any maintenance or equipment upgrade activities in the right-of-way regardless of pole ownership . Such twenty (20) day advance notice shall not be required in the case of an emergency. (b) Prior to making any future modifications to the small wireless facility described in Section 10 (A) above, other than maintenance and repair of site specific small wireless facility equipment as provided in the Small Wireless Facility Collocation Agreement, telecommunication right-of-way user shall file a Right-of-Way Small Wireless Facility Permit Application with the City describing the proposed modifications. The City shall review the Right-of-Way Small Wireless Facility Permit Application pursuant to the terms and conditions in the Small Wireless Facility Collocation Agreement, and if approved such Right-of-Way Small Wireless Facility Permit Application shall be attached as an Exhibit and made a part hereto. Any additional site modifications shall be incorporated hereto in the same manner. (8) All Small Wireless Facility installations on an historic building, site, or within an historic district shall be stealth installations subject to the review of the Minnesota State Historic Preservation Office (SHPO) in order to satisfy that the installations are compatible with the regulations applicable to the historic building, site or district. Lessee shall implement design concepts, and the use of camouflage or stealth materials, as necessary in order to achieve compliance with SHPO review, the City and other applicable regulations as amended. Further, Lessee acknowledges that under City regulations, all installations on City property or right-of-way are subject to review by SHPO. Prior to submitting a Right-of-Way Small Wireless Facility Permit Application, Lessee shall meet with SHPO to discuss any potential design modifications appropriate for the installation. (9) All Small Wireless Facility installations within the right-of-way shall be allowed in all zoning districts and by conditional use permit in the following zoning districts: (a) R-1, single-family residential; (b) R-2, medium density residential; (c) R-3, medium-high density residential; (d) R-4, high density residential; (e) R-5, manufactured home park; any residential planned unit development. (D) Small Wireless Facility Collocation 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 fees in accordance with M.S. §237.162, Subd. 6(g) and the City fee schedule as they may be amended from time to time, and: (1) Up to $150 per year for rent to collocate on the City structure. (2) $25 per year for maintenance associated with the collocation; (3) A monthly fee for electrical service as follows: (a) $73 per radio node less than or equal to 100 maximum watts; (b) $182 per radio node over 100 maximum watts; or (c) The actual costs of electricity, if the actual cost exceed the foregoing. The standard collocation agreement shall be in addition to, and not in lieu of, the required right-of-way 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 right-of-way small wireless facility permit does not supersede, alter or affect any then- existing agreement between the City and applicant, § 90.10 Action on Right-of-Way Small Wireless Facility Permit Applications. (A) Deadline for Action. The City shall approve or deny a right-of-way small wireless facility permit application within ninety (90) days after filing of such application. The right-of-way small wireless facility permit, and any associated building permit application, shall be deemed approved if the City fails to approve or deny the application within the review periods established in this section. (B) Consolidated Applications. An applicant may file a consolidated right-of-way small wireless facility permit application addressing the proposed collocation of up to fifteen (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: (1) are located within a two-mile radius; (2) consist of substantially similar equipment; and (3) are to be placed on similar types of wireless support structures. In rendering a decision on a consolidated permit application, the City may approve some small wireless facilities and deny others, but may not use denial of one or more permits as a basis to deny all small wireless facilities in the application. § 90.11. Permit Fees. (A) Excavation Permit Fee. The City shall impose an excavation permit fee in an amount sufficient to recover management costs. (B) Obstruction Permit Fee. The City shall impose establish an obstruction permit fee in an amount sufficient to recover management costs. (C) Small Wireless Facility Permit Fee. The City shall impose a small wireless facility permit fee in an amount sufficient to recover: (1) management costs, and; (2) City engineering, make-ready, and construction costs associated with collocation of small wireless facilities. (D) Payment of Permit Fees. No right of way permit shall be issued without payment of all applicable permit fees. The City may allow applicant to pay such fees within thirty (30) days of billing. (E) Non Refundable. Permit fees that were paid for a permit that the City has revoked for a breach as stated in Section 90.23 are not refundable. (F) Application to Franchises. Unless otherwise agreed to in a franchise, management costs may be charged separately from and in addition to the franchise fees imposed on a right- of-way user in the franchise. § 90.12. Right-of-Way Patching, Restoration, and Construction (A) Timing. The work to be done under the right-of-way permit, and the patching and restoration of the right-of-way as required herein, must be completed within the dates specified in the permit, increased by as many days as work could not be done because of circumstances beyond the control of the permittee or when work was prohibited as unseasonal or unreasonable under Section 90.17. (B) Patch and Restoration. Permittee shall patch its own work. The City may choose either to have the permittee restore the right-of-way or to restore the right-of-way itself. (1) City Restoration. If the City restores the right-of-way, permittee shall pay the costs thereof within thirty (30) days of billing. Upon receipt of the Right-of-Way Permit Application, the City Engineer shall cause investigation to be made as he or she may deem necessary to determine estimated cost of repair, such as backfilling, compacting, resurfacing and replacement, and the conditions as to the time of commencement of work, manner of procedure and time limitation upon the excavation. The foregoing estimated costs shall include permanent and temporary repairs due to weather or other conditions, and the cost of the investigation shall be included in the estimate. Payment of the estimated costs shall be made before the permit is issued. If, following such restoration, the pavement settles due to permittee's improper backfilling, the permittee shall pay to the City, within thirty (30) days of billing, all costs associated with correcting the defective work. (2) Permittee Restoration. If the permittee restores the right-of-way itself, all construction and reconstruction of roadway surfacing, sidewalk and curb and gutter improvements, including curb cuts, shall be strictly in accordance with specifications and standards on file in the office of the City Engineer and open to inspection and copying there. The specifications and standards may be amended from time to time by the City, but shall be uniformly enforced. (C) Sidewalk, Curb and Gutter; Construction. Methods of procedure: (1) Primary responsibility. It is the primary responsibility of the owner of property upon which there is abutting any sidewalk to keep and maintain that sidewalk in safe and serviceable condition. (2) Notice; no emergency. Where, in the opinion of the City Engineer, no emergency exists, notice of the required repair or reconstruction shall be given to the owner of the abutting property. The notice shall require completion of the work within ninety (90) days, and shall be mailed to the owner or owners shown to be owners on the records of the county officer who mails tax statements. (3) Notice; emergency. Where, in the opinion of the City Engineer, an emergency exists, notice of the required repair or reconstruction shall be given to the owner of the abutting property. The notice shall require completion of the work within ten days, and shall be mailed to the owner or owners shown to be owners on the records of the county officer who mails tax statements. (4) Failure of owner to reconstruct or make repairs. If the owner of the abutting property fails to make repairs or accomplish reconstruction as herein required, the City Engineer shall report that failure to the Council and the Council may order the work to be done under its direction and the cost thereof assessed to the abutting property owner as any other special assessment. (5) Abutting or affected property owners may contract for, construct or reconstruct roadway surfacing, sidewalk or curb and gutter in accordance with this section if advance payment is made therefor or arrangements for payment considered adequate by the City are completed in advance. (6) With or without petition by the methods set forth in the Local Improvement Code of Minnesota Statutes, M.S. Ch. 429, as it may from time to time be amended. (D) Curb Setback. (1) Permit required. It is a misdemeanor for any person to hereafter remove, or cause to be removed, any curb from its position abutting upon the roadway to another position without first making application to the Council and obtaining a permit therefor. (2) Agreement required. (a) No permit shall be issued until the applicant, and the abutting landowner if other than the applicant, shall enter into a written agreement with the City agreeing to pay all costs of constructing and maintaining the setback area in at least as good condition as the abutting roadway, and further agreeing to demolish and remove the setback and reconstruct the area to its previous condition at the expense of the landowner, or his or her heirs or assigns, if the area ever, in the City becomes a public hazard. (b) This agreement shall be recorded in the office of the County Recorder, and shall run with the adjoining land. (3) SignpostingCity and erected and maintained at the expense of the adjoining landowner in all setback areas of this type now in use or hereafter constructed. It is unlawful for any person to park other than at an angle in these setback areas, as angle parking is described and allowed in this code of ordinances. (4) Public rights preserved. Setback parking areas shall be kept open for public parking, and the abutting landowner shall at no time acquire any special interest or control of or in these areas. (E) Standards. The permittee shall perform excavation, backfilling, patching and restoration according to the standards and with the materials specified by the City and shall comply with Minnesota Rule 7819.1100. (F) Duty to Correct Defects. The permittee shall correct defects in patching or restoration performed by permittee or its agents. The permittee upon notification from the City, shall correct all restoration work to the extent necessary, using the method required by the City. Said work shall be completed within five (5) calendar days of the receipt of the notice from the City, not including days during which work cannot be done because of circumstances constituting force majeure or days when work is prohibited as unseasonable or unreasonable under Section 90.17. (G) Failure to Restore. If the permittee fails to restore the right-of-way in the manner and to the condition required by the City, or fails to satisfactorily and complete all restoration required by the City in a timely manner, the City at its option may do such work. In the event that work is not performed in accordance therewith, or shall cease or be abandoned without due cause, the City may, after giving notice to the holder of the permit of its intention to do so, correct the work, fill the excavation and repair the public property, and the cost thereof shall be paid by the person holding the permit. (H) Cost Adjustment. Within sixty (60) days following completion of the permanent repairs, the City Engineer shall determine actual costs of repairs, including cost of investigation, and prepare and furnish to the permit holder an itemized statement thereof and claim additional payment from, or make refund (without interest) to, the permit holder, as the case may be. (I) Alternate Method of Charging. In lieu of the above provisions relating to cost and cost adjustment for street openings, the City may charge on the basis of surface square feet removed, excavated cubic feet or a combination of surface square feet and excavated cubic feet, on an established unit price uniformly charged. § 90.13. Joint Applications. (A) Joint application. Registrants may jointly apply for permits to excavate or obstruct the right-of-way at the same place and time. (B) Shared fees. Registrants who apply for permits for the same obstruction or excavation, which the City does not perform, may share in the payment of the obstruction or excavation permit fee. In order to obtain a joint permit, registrants must agree among themselves as to the portion each will pay and indicate the same on their applications. (C) With City projects. Registrants who join in a scheduled obstruction or excavation performed by the City, whether or not it is a joint application by two or more registrants or a single application, are not required to pay the excavation or obstruction and degradation portions of the permit fee, but a permit would still be required. § 90.14. Supplementary Applications. (A) Limitation on Area. A right-of-way permit is valid only for the area of the right-of-way specified in the permit. No permittee may do any work outside the area specified in the permit, except as provided herein. Any permittee which determines that an area greater than that specified in the permit must be obstructed or excavated must before working in that greater area (i) make application for a permit extension and pay any additional fees required thereby, and (ii) be granted a new permit or permit extension. (B) 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 submitted before the permit end date. § 90.15. Other Obligations. (A) 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 the City or other applicable rule, law or regulation. A permittee shall comply with all requirements of local, state and federal laws, including but not limited to Minnesota Statutes, Section 216D.01-.09 (Gopher One Call Excavation Notice System) and Minnesota Rules Chapter 7560. 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. (B) Prohibited Work. Except in an emergency, and with the approval of the City, no right-of- way obstruction or excavation may be done when seasonally prohibited or when conditions are unreasonable for such work. (C) Interference with Right-of-Way. A permittee shall not so obstruct a right-of-way that the natural free and clear passage of water through the gutters or other waterways shall be interfered with. Private vehicles of those doing work in the right-of-way may not be parked within or next to a permit area, unless parked in conformance with City parking regulations. The loading or unloading of trucks must be done solely within the defined permit area unless specifically authorized by the permit. (D) Trenchless excavation. As a condition of all applicable permits, permittees employing trenchless excavation methods, including but not limited to Horizontal Directional Drilling, shall follow all requirements set forth in Minnesota Statutes Chapter 216D and Minnesota Rules Chapter 7560 and shall require potholing or open cutting over existing underground utilities before excavating, as determined by the City Engineer. (E) Obstructions in Right-of-Way. It is a misdemeanor for any person to place, deposit, display or offer for sale, any fence, goods or other obstructions upon, over, across or under any street without first having obtained a written permit from the Council, and then only in compliance in all respects with the terms and conditions of that permit, and taking precautionary measures for the protection of the public. An electrical cord or device of any kind is hereby included, but not by way of limitation, within the definition of an obstruction. (1) Fires. It is a misdemeanor for any person to build or maintain a fire upon a right-of- way. (2) Dumping in Streets. (a) It is a misdemeanor for any person to throw or deposit in any street any nails, dirt, glass or glassware, cans, discarded cloth or clothing, metal scraps, garbage, leaves, grass or tree limbs, paper or paper products, shreds or rubbish, oil, grease or other petroleum products, or to empty any water containing salt or other injurious chemical thereon, except for leaves raked into the gutter line specifically for and in compliance with a municipal leaf pick up program. (b) It is a violation of this section to haul any material of this type, inadequately enclosed or covered, thereby permitting the same to fall upon streets. (c) It is also a violation of this section to place or store any building materials or waste resulting from building construction or demolition on any street without first having obtained a written permit from the City. (3) Signs and Other Structures. It is a misdemeanor for any person to place or maintain a sign, advertisement or other structure in any street without first having obtained a written permit from the City. In a district zoned for commercial or industrial enterprises, special permission allowing an applicant to erect and maintain signs overhanging the street may be granted upon terms and conditions as may be set forth in the zoning or construction provisions in Title XV of this code of ordinances. (4) Placing Snow or Ice in a Roadway or on a Public Sidewalk or Trail. (a) It is a misdemeanor for any person not acting under a specific contract with the City, or without special permission from the City Administrator, to remove snow or ice from private property and place the same in any roadway. Snow or ice on driveways, sidewalks and the like shall not be pushed across traveled portions of roadways and may only be stored on private property or on rights-of-way adjacent to the private property. The City may assess the cost of removal of snow or ice against the affected property owner pursuant to the provisions of § 90.34, (C) of this chapter. (b) Where permission is granted by the City Administrator, the person to whom that permission is granted shall be initially responsible for payment of all direct or indirect costs of removing the snow or ice from the street or sidewalk. If not paid, collection shall be by civil action or assessment against the benefitted property as any other special assessment. (F) Uses of Right-of-Way. Purpose: Rights-of-way provide many public benefits, including providing for placement of utilities, roadway safety and maintenance, and access to and protection of private property. Therefore, the City of Hutchinson regulates utilization of rights-of-way to retain these and other public benefits of rights-of-way. (1) Authority, permission and procedure. Upon an application duly made to the City Administrator and reviewed and recommended by the City Engineer, the Council may, in its discretion, grant special permission whereby on-street parking or the use of City owned parking lots or ramps or public sidewalks may be temporarily or permanently prohibited or restricted for private reasons and purposes (including, but not limited to, establishment of private or leased parking, loading zones or benches) at places, on terms and for consideration as the Council may deem just and equitable. In establishing the amount of the consideration to be paid to the City, the Council shall consider the amount of space, location thereof, if any, public inconvenience and hazards to persons or property. Upon complaint of any aggrieved person at any time and by reason of any specific special permission so granted, the Council shall, at its next regular meeting after receipt of the complaint, call a hearing thereon to be held least ten days prior to the hearing. After the hearing, the Council shall by resolution decide whether to terminate, continue or redefine the terms of the permission, and the decision shall be final and binding on all persons directly or indirectly interested therein; except that, the Council may, on its own motion, reconsider the same. (2) Permanent and semi-permanent fixtures in rights-of-way require a franchise from the City. Franchise agreements for permanent or semi-permanent fixtures must be approved by the City Council. Other uses of rights-of-way may be regulated by permit or ordinance as the Council sees fit. (3) Permanent and semi-permanent fixtures shall include, but are not limited to, the following: (a) Fixtures that are affixed to the ground by posts or foundations. (b) Fixtures not affixed to the ground, but of size, mass, and/or dimension that may adversely affect the public function of the right-of-way. (c) Fixtures specifically exempt from the definition of permanent or semi-permanent fixtures include: (i) Traffic control devices placed by a road authority, as defined by Minnesota Statute 160.02. (ii) Boulevard trees and landscaping features approved by a road authority. (iii)Fixtures required to provide municipal utilities. (4) Permanent and semi-permanent fixtures shall conform to the following requirements: (a) After placement of a fixture, there shall remain at least six (6) feet of unobstructed sidewalk in commercial districts and four (4) feet of unobstructed sidewalk in residential and industrial districts where sidewalk exists. In all cases where trails exist, ten (10) feet of unobstructed trail shall remain. (b) Fixtures shall not block any traffic control device and shall not exceed thirty (30) inches in height within the sight triangle area, defined as: that triangular area formed by the hypotenuse of measurements twenty-five (25) feet each direction from the intersection of corner property lines. A greater distance may be required as determined by the City. (c) Fixtures shall not pose unreasonable safety hazards because of the type of materials, objects or property placed within rights-of-way. (d) Fixtures shall not unreasonably restrict other necessary or beneficial uses of rights-of-way. (e) Nothing herein shall prohibit: (i) The repair of fixtures and related appurtenances placed within rights-of-way by existing franchisees, a road authority, or municipal utilities. (ii) The placement of mailboxes approved by the United States Postal Service. (iii)The placement of driveways and accesses to private property otherwise permitted. (5) Maintenance of rights-of-way. (a) Work to maintain properties within rights-of-way is allowed by the City and franchisees, as governed by Code Section 90.04. (b) Materials, objects or property may be placed in rights-of-way by the City or under permit from the City in association with community and special events. (c) Landscape restoration by the City and franchisees shall consist of restoring disturbed areas within rights-of-way with turf grasses. (6) Other uses of rights-of-way. (a) No use of rights-of-way shall cause a nuisance, hazard, danger, or sight obstruction for any traffic, vehicles, pedestrians, or bicyclists using the right-of- way. The City may at its discretion remove, or order to be removed, at the owners expense, any property causing such nuisance, hazard, danger or sign obstruction and/or require appropriate warnings be placed. (b) The owner of property placed within rights-of-way shall be liable for any damage, theft, vandalism, etc. of any fixture, item, object or property placed within rights-of-way or any damage caused thereby. The owner of any such property so placed shall hold the City harmless in any claims therefor. (7) Unlawful acts. It is unlawful for any person to park or otherwise infringe upon a grant of right under this section, when clearly and distinctly marked or signposted. It is unlawful for any person not granted such a right to assert the same, or for any grantee of such a right to exceed the same under claim thereto. (8) Condition. Before granting any permit under any of the provisions of this section, the Council may impose insurance or bonding conditions thereon as it, considering the projected danger to public or private property or to persons, deems proper for safeguarding those persons and property. The insurance or bond shall also protect the City from any suit, action or cause of action arising by reason thereof. (9) Curb and Gutter, Street and Sidewalk Painting or Coloring. It is unlawful for any person to paint, letter or color any street, sidewalk or curb and gutter for advertising purposes, or to paint or color any street, sidewalk or curb and gutter for any purpose, except as the same may be done by City employees acting within the course or scope of their employment; provided, however, that, this provision shall not apply to uniformly coloring concrete or other surfacing, or uniformly painted house numbers, as that coloring may be approved by the City Administrator. § 90.16. Denial or Revocation of Permit. (A) Reasons for Denial. The City may deny a permit for failure to meet the requirements and conditions of this chapter or if the City determines that the denial is necessary to protect the health, safety, and welfare or when necessary to protect the right-of-way and its current use. (B) Procedural Requirements. The denial or revocation of a permit must be made in writing and must document the basis for the denial. The City must notify the applicant 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 thirty (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 thirty (30) days after submission. § 90.17. Installation Requirements. (A) Standards for Installation. The excavation, backfilling, patching and restoration, and all other work performed in the right-of-way shall be done in conformance with Minnesota Rules 7819.1100 and 7819.5000 and other applicable local requirements, in so far as they are not inconsistent with the Minnesota Statutes, Sections 237.162 and 237.163. Installation of service laterals shall be performed in accordance with Minnesota Rules Chapter 7560 and these ordinances. Service lateral installation is further subject to those requirements and conditions set forth by the City in the applicable permits and/or agreements referenced in Section 90.24 (B) of this ordinance. (B) Requirement of Sewer and Water Laterals. No petition for the improvement of a street shall be considered by the Council if the petition contemplates constructing therein any part of a pavement or stabilized base, or curb and gutter, unless all sewer and water main installations shall have been made therein, including the installation of service laterals to the curb, if the area along the street will be served by those utilities installed in the street. (C) Sewer System Service and Water Main Service Laterals. No sewer system shall be hereafter constructed or extended unless service laterals to platted lots and frontage facing thereon shall be extended simultaneously with construction of mains. (D) Waiver. The Council may waive the requirements of this section only if it finds the effects thereof are burdensome and upon notice and hearing as the Council may deem necessary or proper. § 90.18. Inspection. (A) Notice of Completion. When the work under any permit hereunder is completed, the permittee shall furnish a notice of completion or have a final inspection performed by the City. (B) Site Inspection. Permittee shall make the work-site available to the City and to all others as authorized by law for inspection at all reasonable times during the execution of and upon completion of the work. The City Engineer shall inspect improvements as deemed necessary or advisable. Any work not done according to the applicable specifications and standards shall be removed and corrected at the expense of the permit holder. Any work done hereunder may be stopped by the City Engineer if found to be unsatisfactory or not in accordance with the specifications and standards, but this shall not place a continuing burden upon the City to inspect or supervise this type of work. (C) Authority of City Engineer. (1) At the time of inspection, the City Engineer may order the immediate cessation of any work which poses a serious threat to the life, health, safety or well-being of the public. (2) The City Engineer may issue an order to the permittee for any work that does not conform to the terms of the permit or other applicable standards, 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 permittee shall present proof to the City Engineer that the violation has been corrected. If such proof has not been presented within the required time, the City Engineer may revoke the permit pursuant to Section 90.23. § 90.19. Work Done Without a Permit. (A) Emergency Situations. Each registrant shall immediately notify the City Engineer of any event regarding its facilities that it considers to be an emergency. The registrant may proceed to take whatever actions are necessary to respond to the emergency. Excavators' notification to Gopher State One Call regarding an emergency situation does not fulfill this requirement. Within two (2) business days after the occurrence of the emergency, the registrant shall apply for the necessary permits, pay the fees associated therewith, and fulfill the rest of the requirements necessary to bring itself into compliance with this chapter for the actions it took in response to the emergency. If the City becomes aware of an emergency regarding a registrant's facilities, the City will attempt to contact the local representative of each registrant affected, or potentially affected, by the emergency. In any event, the City may take whatever action it deems necessary to respond to the emergency, the cost of which shall be borne by the registrant whose facilities occasioned the emergency. (B) 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 and, as a penalty, pay double the normal fee for said permit, pay double all the other fees required by the City code, deposit with the City the fees necessary to correct any damage to the right-of-way, and comply with all of the requirements of this chapter. § 90.20. 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 City of the accurate information as soon as this information is known. § 90.21. Revocation of Permits. (A) Substantial Breach. The City reserves its right, as provided herein, to revoke any right-of- way permit without a fee refund, if there is a substantial breach of the terms and conditions of any statute, ordinance, rule or regulation, or any material condition of the permit. A substantial breach by permittee shall include, but shall not be limited to, the following: (1) The violation of any material provision of the right-of-way permit; (2) 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; (3) Any material misrepresentation of fact in the application for a right-of-way permit; (4) The failure to complete the work in a timely manner, unless a permit extension is obtained or unless the failure to complete work is due to reasons beyond the permittee's control; or (5) The failure to correct, in a timely manner, work that does not conform to a condition indicated on an order issued pursuant to Section 90.20. (B) Written Notice of Breach. If the City determines that the permittee has committed a substantial breach of a term or condition of any statute, ordinance, rule, regulation or any condition of the permit, the City shall make a written demand upon the permittee to remedy such violation. The demand shall state that continued violations may be cause for revocation of the permit. A substantial breach, as stated above, will allow the City, at its discretion, to place additional or revised conditions on the permit to mitigate and remedy the breach. (C) Response to Notice of Breach. Within twenty-four (24) hours of receiving notification of the breach, permittee shall provide the City with a plan, acceptable to the City, that will cure the breach. Permittee's failure to so contact the City, or permittee's failure to timely submit an acceptable plan, or permittee's failure to reasonably implement the approved plan, shall be cause for immediate revocation of the permit. (D) 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. § 90.22. Mapping Data. (A) Information Required. Each registrant and permittee shall provide mapping information required by the City in accordance with Minnesota Rules 7819.4000 and 7819.4100. Within ninety (90) days following completion of any work pursuant to a permit, the permittee shall provide the City Engineer accurate maps and drawings certifying the "as-built" location of all equipment installed, owed and maintained by the permittee. Such maps and drawings shall include the horizontal and vertical location of all facilities and equipment and shall be provided consistent with the City's electronic mapping system, when practical or as a condition imposed by the City Engineer. Failure to provide maps and drawings pursuant to this subsection shall be grounds for revoking the permit holder's registration. (B) Service Laterals. All permits issued for the installation or repair of service laterals, other than minor repairs as defined in Minnesota Rules 7560.0150 subpart 2, shall require the permittee's use of appropriate means of establishing the horizontal locations of installed service laterals and the service lateral vertical locations in those cases where the City Engineer reasonably requires it. Permittees or their subcontractors shall submit to the City Engineer evidence satisfactory to the City Engineer of the installed service lateral locations. Compliance with this Chapter and with applicable Gopher State One Call law and Minnesota Rules governing service laterals installed after December 31, 2005 shall be a condition of any City approval necessary for: (1) payments to contractors working on a public improvement project including those under Minnesota Statutes Chapter 429 and, (2) City approval under development agreements or other subdivision or site plan approval under Minnesota Statutes Chapter 462. The City Engineer shall reasonably determine the appropriate method of providing such information to the City. Failure to provide prompt and accurate information on the service laterals installed may result in the revocation of the permit issued for the work or future permits to the offending permittee or its subcontractors. § 90.23. Location and Relocation of Facilities. (A) Placement, location, and relocation of facilities must comply with the Act, with other applicable law, and with Minnesota Rules 7819.3100, 7819.5000 and 7819.5100, to the extent the rules do not limit authority otherwise available to cities. (B) Undergrounding. Unless otherwise agreed in a franchise or other agreement between the applicable right-of-way user and the City, Facilities in the right-of-way must be located or relocated and maintained underground in accordance with Section 153.084 of the City Code. (C) Corridors. The City may assign a specific area within the right-of-way, or any particular segment thereof as may be necessary, for each type of facilities that is or, pursuant to current technology, the City expects will someday be located within the right-of-way. All excavation, obstruction, or other permits issued by the City involving the installation or replacement of facilities shall designate the proper corridor for the facilities at issue. Any registrant who has facilities in the right-of-way in a position at variance with the corridors established by the City shall, no later than at the time of the next reconstruction or excavation of the area where the facilities are located, move the facilities to the assigned position within the right-of-way, unless this requirement is waived by the City for good cause shown, upon consideration of such factors as the remaining economic life of the facilities, public safety, customer service needs and hardship to the registrant. (D) Nuisance. One year after the passage of this chapter, any facilities found in a right-of- way that have not been registered shall be deemed to be a nuisance. The City may exercise any remedies or rights it has at law or in equity, including, but not limited to, abating the nuisance or taking possession of the facilities and restoring the right-of-way to a useable condition and assessing the costs to the property owner. (E) Limitation of Space. To protect health, safety, and welfare, or when necessary to protect the right-of-way and its current use, the City shall have the power to prohibit or limit the placement of new or additional facilities within the right-of-way. In making such decisions, the City shall strive to the extent possible to accommodate all existing and potential users of the right-of-way, but shall be guided primarily by considerations of the public interest, the public's needs for the particular utility service, the condition of the right-of-way, the time of year with respect to essential utilities, the protection of existing facilities in the right-of-way, and future City plans for public improvements and development projects which have been determined to be in the public interest. § 90.24 Pre-excavation Facilities Location. In addition to complying with the requirements of Minn. Stat. 216D.01-.09 ("One Call Excavation Notice System") before the start date of any right-of-way excavation, each registrant who has facilities or equipment in the area to be excavated shall mark the horizontal and vertical placement of all said facilities the maximum extent practicable. Any registrant whose facilities are less than twenty (20) inches below a concrete or asphalt surface shall notify and work closely with the excavation contractor to establish the exact location of its facilities and the best procedure for excavation. § 90.25. Damage to Other Facilities. When the City does work in the right-of-way and finds it necessary to maintain, support, or move a registrant's facilities to protect it, the City shall notify the local representative as early as is reasonably possible. The costs associated therewith will be billed to that registrant and must be paid within thirty (30) days from the date of billing. Each registrant shall be responsible for the cost of repairing any facilities in the right-of-way which it or its facilities damage. 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. § 90.26. Right-of-Way Vacation. Reservation of right. If the City vacates a right-of-way that contains the facilities of a registrant, the registrant's rights in the vacated right-of-way are governed by Minnesota Rules 7819.3200. § 90.27. Indemnification and Liability By registering with the City, or by accepting a permit under this chapter, a registrant or permittee agrees to defend, indemnify, and hold the City harmless from any liability for injury or damage arising out of the action of the applicant in performance of the work, or any expense whatsoever incurred by the City incident to a claim or action brought or commenced by any person arising therefrom.and in accordance with the provisions of Minnesota Rule 7819.1250. § 90.28. Abandoned and Unusable Facilities. (A) Discontinued Operations. A registrant who has determined to discontinue all or a portion of its operations in the City must provide information satisfactory to the City that the registrant's obligations for its facilities in the right-of-way under this chapter have been lawfully assumed by another registrant. (B) Removal. Any registrant who has abandoned facilities in any right-of-way shall remove it from that right-of-way if required in conjunction with other right-of-way repair, excavation, or construction, unless this requirement is waived by the City. § 90.29. Appeal. A right-of-way user that: (A) has been denied registration; (B) has been denied a permit; (C) has had a permit revoked; (D) believes that the fees imposed are not in conformity with Minn. Stat. § 237.163, Subd. 6; or (E) disputes a determination of the City Engineer regarding Section 90.24 (B) of this ordinance may have the denial, revocation, fee imposition, or decision reviewed, upon written request, by the City Council. The City Council shall act on a timely written request at its next regularly scheduled meeting, provided the right-of-way user has submitted its appeal with sufficient time to include the appeal as a regular agenda item. A decision by the City Council affirming the denial, revocation, or fee imposition will be in writing and supported by written findings establishing the reasonableness of the decision. § 90.30 Reservation of Regulatory and Police Powers City to adopt and enforce general ordinances as necessary to protect the health, safety and welfare of the public. § 90.31. Severability. If any portion of this chapter is for any reason held invalid by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions thereof. Nothing in this chapter precludes the City from requiring a franchise agreement with the applicant, as allowed by law, in addition to requirements set forth herein. § 90.32. Ice and Snow on Public Sidewalks and Trails (A) Ice and snow a nuisance. All snow and ice remaining upon public sidewalks and trails is hereby declared to constitute a public nuisance and shall be abated by the owner or tenant of the abutting private property within 24 hours after the snow or ice has ceased to be deposited. The owner or tenant shall provide a minimum four feet of clearance on the sidewalk or trail adjacent to their property. (B) City to remove snow and ice; property owner to be billed. The City may cause to be removed from all public sidewalks and trails, beginning 24 hours after snow or ice has ceased to fall, all snow or ice which may be discovered thereon, and it shall keep a record of the cost of that removal and the private property adjacent to which accumulations were found and removed. The owner of the property from which the accumulations were removed shall be invoiced for payment of those services in the same manner of all City invoices for services. (C) Cost of removal to be assessed. Should the bill for removal services remain unpaid, the City Administrator shall, upon direction of the Council and on receipt of the information provided for in (B) above, extend the cost of the removal of snow or ice as a special assessment against the lots or parcel of ground abutting on walks which were cleared, and these special assessments shall at the time of certifying taxes to the County Auditor be certified for collection as other special assessments are certified and collected. (D) Civil suit for cost of removal. The City Administrator shall, in the alternative, upon direction of the Council, bring suit in a court of competent jurisdiction to recover from the persons owning land adjacent to which sidewalks and trails were cleared, as provided in (B) above, the cost of the clearing and the cost and disbursement of a civil action therefor. (E) City Administrator to report sidewalks cleared. The City Administrator shall present to the Council at its first meeting after snow or ice has been cleared from the sidewalks as provided in (B) above the report of the City thereon, and shall request the Council to determine by resolution the manner of collection to be used as provided in (C) or (D) above. § 90.33 Violations. Every person violates a section, division or provision of this chapter when he or she performs an act thereby prohibited or declared unlawful, or fails to act when that failure is thereby prohibited or declared unlawful and, upon conviction thereof, shall be punished as follows. (A) Where the specific section, division or provision specifically makes violation a misdemeanor, the person shall be punished as for a misdemeanor; where a violation is committed in a manner or under circumstances so as to endanger or be likely to endanger any person or property, the person shall be punished as for a misdemeanor; where the person stands convicted of violation of any provision of this chapter, exclusive of violations relating to the standing or parking of an unattended vehicle, within the immediate preceding 12-month period for the third or subsequent time, the person shall be punished as for a misdemeanor. (B) As to any violation not constituting a misdemeanor under the provisions of division (A) above, the person shall be punished as for a petty misdemeanor. (C) Continuing violation. Each day that any person continues in violation of this section shall be a separate offense and punishable as such. EFFECTIVE DATE OF ORDINANCE. This ordinance shall take effect upon its adoption and publication. This Ordinance was passed by the City Council of the City of Hutchinson on the ___ day of ___ 2018. ATTEST: _______________________________ _________________________________ Matt Jaunich, City Administrator Gary Forcier, Mayor Date of Publication: month day, 2018 TITLE AND SUMMARY OF ORDINANCE NO. 18-0783 The following Ordinance is hereby published by title and summary: 1. Title of Ordinance: Right-of-Way Management An Ordinance to Enact Title 9, Chapter 90 of the City of Hutchinson Code of Ordinances, Right-of-Way Management. 2. Summary of Ordinance: This ordinance repeals existing Title 9, Chapter 90 of the Hutchinson City Code, and enacts a new Chapter 90 to administer and regulate the public rights-of-way in the public interest, and to provide for the issuance and regulation of right-of-way permits in the chapter. This Chapter applies in the City of Hutchinson, Minnesota and to persons outside the City who are, by contract or agreement with the City, users of rights-of-way in the City. Except as otherwise provided herein, the City Engineer shall administer, implement, and enforce the provisions of this Chapter. This Ordinance shall take effect upon publication in accordance with the Hutchinson City Charter. 3. Availability of Ordinance: A complete, printed copy of this Ordinance is available for inspection by any person during regular business hours in the office of the City Clerk, This Ordinance was passed by the City Council of the City of Hutchinson on the ___ day of ___ 2018. ATTEST: _______________________________ _________________________________ Matt Jaunich, City Administrator Gary Forcier, Mayor Date of Publication: month day, 2018 Ordinance No. 18-0784 AN ORDINANCE AMENDING CHAPTER 154 (ZONING) OF THE CITY OF HUTCHINSON CODE OF ORDINANCES ADDING LANGUAGE IN SECTION 154.119 (TELECOMMUNICATIONS); THE CITY COUNCIL OF THE CITY OF HUTCHINSON, MINNESOTA ORDAINS: Notice of hearing was duly given and publication of said hearing was duly made and was made to appear to the satisfaction of the City Council that it would be in the best interests of the City to amend the Telecommunications Ordinance to add language in Section 154.119 of the City Code as follows: § 154.119 TELECOMMUNICATIONS ORDINANCE (A) Purpose and intent. In order to accommodate the communication needs of the residents, business and industry while protecting the health, safety and general welfare of the City, the following regulations are imposed in order to: (1) Facilitate the use of wireless communication services, television and radio antennas, for residents, business and industry of the City; (2) Minimize adverse effects of towers through careful design and site standards; (3) Avoid potential damage to adjacent properties from tower or antenna failure through structural standards and setback requirements; and (4) Maximize the use of existing and approved towers and buildings to accommodate new wireless telecommunication antennas in order to reduce the number of towers needed to serve the community; and (5) To regulate access to and ongoing use of public right-of-way and facilities, such as water tanks, building roof tops, lighting masts and other structures by telecommunications providers for their telecommunications facilities. (B) Definitions (1) are the wires, cables, generators, air conditioning units, and other equipment or facilities that are used with Antennas. (2) state-of-the-art design techniques used to blend the object into the surrounding environment and to minimize the negative aesthetic impacts (to be further defined in the review process). Examples of aesthetic design techniques include architecturally screening roof mounted antennas and accessory Equipment; integrating Telecommunications Facilities into architectural elements; nestling Telecommunications Facilities into the surrounding landscape so that the topography or vegetation reduces their view; using the location that would result in the least amount of visibility to the public, minimizing the size and appearance of the Telecommunications Facilities; and designing Towers to appear other than as Towers, such as light poles, power poles, flag poles, and trees.. (3) is any person or entity who files an application for any permit or is party to any lease agreement required by this Ordinance for the construction, replacement, installation, or alteration of wireless communication facility or any component thereof. (4) is any exterior transmitting or receiving device mounted on a Tower, Monopole, building, or other structure and used in communications that radiate or capture electromagnetic waves, digital signals, analog signals, radio frequencies(excluding radar signals), lightning rod. (5) is any new or existing Tower, building, water tower, or electric transmission tower carrying over 200 kilo volts of electricity that can be used for the location of Antennas without increasing the height or mass of the existing structure. (6) shall mean and refer to the person(s), party or entity, owning and/or operating the transmission equipment proposed in an application. (7) shall mean and refer to the City of Hutchinson or the authorized agent as designated by the City Council of the City of Hutchinson. (8) Collocation is the sharing of structures by two or more wireless service providers on a single support structure or otherwise sharing a common location. (9) Easement is a legal interest in real property that transfers a partial property right to the holder of the easement authorizing a person or party to use the land or property of another for a particular purpose. (10) refers to but is not limited to a radio, electrical, structural, civil, or mechanical engineer, licensed by the State of Minnesota. (11) is a specified area at the base of or near a Telecommunication Facility, Tower, or Antenna that can contain an enclosed structure or open platform within which are housed, among other things, batteries, generators, air conditioning units, wireless communications or electrical equipment, or other Accessory Equipment, which may be connected to the Telecommunications Facility, Tower or Antenna by cable. (12) Inventory of Small Wireless Facilities refers to an accurate and current inventory of all Small Wireless Facilites approved by Lessor pursuant to this Lease Agreement, including sites that become inactive for any reason. (13) Landline Broadband Backhaul Transport Service refers to a fiber or other high- speed landline communications transport service contracted by Lessee from a third-party provider that interconnects with the Base Station Equipment at the Point-of-Demarcation and provides transport service back to Lessee's network. (14) is the party who rents land or property from a lessor. The lessee is also known as the "tenant", and must uphold specific obligations as defined in the lease agreement and by law. (15) is the owner of an asset that is leased under an agreement to the lessee. The lessee makes one-time or periodic payments to the lessor in return for the use of the asset. The lease agreement is binding on both the lessor and the lessee, and spells out the rights and obligations of both parties. (16) Micro Wireless Facility. A small wireless facility that is no larger than 24 inches long, 15 inches wide, and 12 inches high, and whose exterior antenna, if any, is no longer than 11 inches. (17) is a structure composed of a single spire used to support telecommunications equipment having no guy wires or ground anchors. (18) a person or entity who holds a permit issued pursuant to this Ordinance for a Telecommunications Facility. (19) Point of Demarcation is the point of where the Transmission Media of a Small Wireless Facility terminates and interconnects with broadband backhaul transmission facilities, whether provided by landline or wireless communications infrastructure. (20) is a structure which is owned by a governmental agency or utility company and which may be/can be used to support illumination devices or lines and other equipment carrying electricity or communications. (21) the propagation of radio waves is described through the modeling of the different physical mechanisms (free-space attenuation, atmospheric attenuation, vegetation and hydrometer attenuation, attenuation by diffraction, building penetration loss, etc). This modeling is necessary for the conception of telecommunications systems and, once they have been designed, for their actual field deployment. Propagation models are implemented in engineering tools for the prediction different parameters useful for the field deployment of systems, for the study of the radio coverage (selection of the emission sites, frequency allocation, powers evaluation, antenna gains, polarization) and for the definition of the interferences occurring between distant transmitters. (22) are any satellite dishes, television Antennas, radio Antennas, amateur radio Antennas, and similar communication transmission/reception devices and associated Accessory Equipment that are a permitted accessory use within a residential district. (23) Right-of-Way (ROW) or Public Right of Way is the actual physical land area within a route that is acquired for a specific purpose, such as a transmission line or roadway.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. (24) means a wireless telecommunication facility with antennas located on the roof of a building or on top of a structure and consisting of antennas, support structures and accessory equipment, but are adequately screened so as not to appear as stand-alone devices above the top of the roof line. (25) "Small Wireless Facility". A wireless facility defined as a low-power radio access facility, together with associated antennas, Transmission Media, mounting and mechanical equipment, capacity that meets all of the following qualifications: a. each antenna is located inside an enclosure of no more than six cubic feet in volume or could fit within such an enclosure; and b. 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. c. a micro wireless facility. (26) is defined as a raised source of light usually mounted on a pole and constituting one of a series spaced at intervals along a public street or highway used to illuminate a public area, usually urban. Also referred to as a streetlamp. (27) refers to Antennas, Accessory Equipment, or Towers. (28) are the structures and equipment which make up a telecommunications network. Telecommunications facilities are defined by Federal Standard 1037C as the following: a) A fixed, mobile, or transportable structure, including (1) all installed electrical and electronic wiring, cabling, and equipment and (2) all supporting structures, such as utility, ground network, and electrical supporting structures. b) A network provided service to users or the network operating administration. c) A transmission pathway and associated equipment. d) In a protocol applicable to a data unit, such as a block or frame, an additional item of information or a constraint encoded within the protocol to provide the required control. e) A real property entity consisting of one or more of the following: a building, a structure, a utility system, pavement, and underlying land. (29) is any of the following: a ground or roof mounted pole; spire; free standing, self-supporting lattice or monopole structure; or combination thereof taller than fifteen (15) feet, including but not limited to supporting lines, cables, wires, braces, and masts, intended primarily for the purpose of mounting an Antenna, meteorological device, or similar apparatus above grade (except amateur radio Antennas). (30) are electrically operated colored signaling devices positioned at road intersections, pedestrian crossings, and other locations to control conflicting flows of traffic. (31) Transmission Media is all of the Lessee's radios, antennas, transmitters, wires, fiber optic cables, and other wireless transmission devices that are part of the Small Wireless Facility. (32) refers to any personal wireless services as defined in the Federal Communications Act of 1996, including FCC licensed commercial wireless Telecommunications services such as cellular, personal communication services (PCS), specialized mobile radio (SMR), enhanced specialized mobile radio (ESMR), global system of mobile communication (GSM), paging and similar services that currently exist or may be developed. (33) Utility Pole is a structure that is: (1) owned or operated by: (a) a public utility; (b) a communications service provider; (c) a municipality; (d) an electric membership corporation; (e) a rural electric cooperative; or (f) municipal utility; and (2) designed and used to: (a) carry lines, cables, or wires for telephone, cable television, or electricity; or (b) provide lighting. (C) Permit required (1) Permit required. Prior to any construction of installation activities, a telecommunications provider planning to install, construct or operate telecommunications facilities in the City shall apply for a telecommunications application and obtain a building permit and, if required, a conditional use permit pursuant to this section Ordinance as applicable. (2) Building and Design Standards and Allowed Locations for Telecommunications Facilities. All Telecommunications Facilities shall be constructed and maintained in accordance with the following standards: A. Existing Telecommunication Facilities: 1.Existing Telecommunications Facilities located on or attached to existing structures, prior to the adoption of this Ordinance, are regulated by the provisions of the zoning district for each such parcel. Once the leases for existing Telecommunication Facilities expire or are otherwise terminated, the owner of the Telecommunication Facilities shall apply for a permit under this Ordinance and those existing Telecommunications Facilities shall be required to conform to all requirements of this Ordinance for new Telecommunication Facilities. The City may, among other remedies, require relocation of equipment, at the Telecommunication Facilities expense, to permitted areas under this Ordinance. B. New Telecommunications Facilities: 1. New Telecommunications Towers shall be located only on parcels owned and controlled by the City without a conditional use permit, with the exact location on such parcels determined at the sole discretion of the City. If a new Tower cannot be located on a City parcel the Applicant shall provide radio propagation analysis as noted in 2.a) below to demonstrate need of the new Tower location. 2.Antennas shall be located on a new or replacement Tower at the locations permitted for Telecommunications Facilities only if the Applicant complies with the following requirements, in addition to the other requirements of this Ordinance: a) Unless the Applicant is a provider of Wireless Communications, tThe Applicant shall provide an analysis prepared by a radio or electrical engineer demonstrating that the proposed location of the Antennas is necessary to meet the coverage and/or capacity needs of its system. The Applicant shall provide a network map describing all of the that provide any coverage All Applicants shall provide documentation prepared by a radio or electrical engineer to show the Antennas would not cause interference with other existing or approved Telecommunications Equipment. The Applicant shall also pay the reasonable expenses of a radio or electrical engineer retained by the b) The new or replacement Telecommunications Facilities shall use Stealth Design techniques as approved by the City. Economic considerations or hardships shall not be the sole justification for failing to provide Stealth Design techniques. c) The new or replacement Tower and Antenna, including attachments other than lightning rods, shall not exceed 150 feet in height, measured from grade. The City may, but shall not be required to, increase this height up to 190 feet if the Entity finds the increase in height would not have a significant visual impact, would not have a negative property value impact on surrounding properties because of proximity, topography or screening by trees or buildings or would accommodate two or more users. The City may waive this height limitation for a Tower and/or Antenna if used wholly or partially for essential public services, such as public safety. d) New Towers must comply and be marked and lighted in accordance with existing FAA and MnDOT Aeronautics rules. 3.A new Antenna may be attached to an existing public utility structure, utility pole or street light pole outside of thewithin a right-of-way if: a) The Antenna does not extend more than fifteen (15) feet above the top of the existing utility structure. b) The Antenna is no larger than three (3) cubic feet and has no individual surface larger than four (4) square feet. c) The Antenna extends outward from the utility structure no more than three (3) feet. d) There is no ground mounted equipment. d) There is no interference with public safety communications or with the original use of the public utility structure. e) The Applicant agrees that the Antenna must be removed and relocated, expense, when the City or utility requires the removal, and relocation, or reconditioning of the public utility structure. f) The Telecommunications Permit Application and all necessary agreements permitting the use of public property are approved. g) Its inclusion/attachment does not exceed the facilities structural capacity. h) Note: no equipment will be allowed on fiberglass light poles. Right-of- way installations are permitted for Small Wireless Facilities in accordance with the requirements of Chapter 90 of the Hutchinson City Code. 4. a) A new wireless support structure will require a written plan for construction that demonstrates the use of aesthetics as defined in the definitions and approved by the City; includes the total height and width of the wireless facility and wireless support structure, including cross section and elevation, footing, foundation and wind speed details; a structural analysis indicating the capacity for future and existing antennas, including a geotechnical report and calculations for the foundations capacity; the identity and qualifications of each person directly responsible for the design and construction; and signed and sealed documentation from a professional engineer that shows the proposed location of the wireless facility and wireless support structure and all easements and existing structures within two hundred (200) feet of such wireless facility or wireless support structure. b) Substantial modification of an existing wireless facility or wireless support structure requires the following: 1) An application with the name, business address, and point of contact for the applicant; 2) The location of the proposed or affected wireless support structure or wireless facility; and 3) A construction plan that describes the proposed modifications to the wireless support structure and all equipment and network components, including antennas, transmitters, receivers, base stations, power supplies, cabling, and related equipment. (3) Telecommunications Permit Application. Telecommunications providers shall apply for a permit on an application form obtained from the City. A telecommunications provider shall file three copies of the applications with the City. Applications shall be complete and include all information required by this ordinance section existing and proposed facilities. (4) Public Data. The contents of all telecommunications permit applications and any other documents supporting the application may be classified as public data and as such may be released in accordance with the Minnesota Data Practices Act or other applicable regulation or court order. (5) Application Fee and Escrow. The application shall be accompanied by a one-time non- refundable application fee in the amount identified on the application form. At the discretion of the City, an escrow fee will may communications consultant, such as an interference analysis and intermodulation study. The set annually by the City Council. The Applicant shall also pay the expenses of a third-party engineer's service or technical study as required by the City. (6) Additional Information. The City may request an applicant to submit such additional information as the City deems reasonably necessary or relevant. The applicant shall comply with all such requests within reasonable deadlines for such additional information established by the City. (D) Amateur radio antenna towers. The construction or erection of towers supporting amateur radio antennas shall be a permitted use in all zoning districts, subject to the following requirements: (1) This type of tower requires a building permit; (2) This type of tower shall be allowed only in the rear yard of residentially zoned properties. If there is insufficient space within the rear yard to erect the tower and any related guy wires, then the property owner may apply for a conditional use permit to erect a tower in another yard (front or side); (3) This type of tower shall not exceed 75 feet in height, except by conditional use permit; (4) This type of tower shall conform to the accessory structure setback for the district in which it is located: (5) Amateur radio antenna towers shall be installed in accordance with the instructions furnished by the manufacturer of the tower model. Antennas mounted on a tower may be modified and changed at any time so long as the published allowable load on the tower is not exceeded and the structure of the tower (6) This type of tower shall be exempt from the requirements of divisions (E) (R) of this section. (E) Antennae Mounted on Roofs, Walls, and Existing Towers. The placement of wireless telecommunication antennae on roofs, walls and existing towers must be approved by the City, provided the antennae meet the requirements of this section ordinance, and after submittal and approval of all permits, applications, fees and information identified in Section B of this ordinance. (F) Tower Locations. Antennas on a public structure or existing structures are allowed in all districts by resolution approved by the City, without a conditional use permit. However, all antenna installations must comply with the requirements of this ordinance. Towers not exceeding 75 feet in height may be erected after the issuance of a building permit, without a conditional use permit. However, all tower installations must comply with the requirements of this ordinance. All towers shall be of a monopole construction and subject to the regulations listed in Chapter 151 of the City Code, regarding airport zoning. Towers exceeding 75 feet in height shall be allowed only by conditional use permit and shall only be allowed in the following zoning districts: (1) C-1, neighborhood convenience commercial district; (2) C-2, automotive service commercial district: (3) C-3, central commercial district; (4) C-4, fringe commercial district; (5) C-5, conditional commercial district; (6) I/C, industrial/commercial district; (7) I-1, light industrial park district; (8) I-2, heavy industrial district; and (9) BP, business park district. (G) Tower setbacks. The following setbacks shall apply in the listed districts. (1) In C-1, C-2, C-3, C-4, C-5, BP, I/C, I-1 and I-2 districts, the setback of the tower shall be at a ratio of one foot of setback for every two feet of height of tower (i.e., a 100-foot tower would require a 50-foot setback from all property lines and the street right-of-way). (2) In the event that any portion of the property directly abuts a district zoned R-1, single-family residential; R-2, medium density residential; R-3, medium-high density residential; R-4, high density residential; R-5, manufactured home park; any residential planned unit development; or A-1, agricultural or R-1, rural residential in the Joint Planning Area; the setback to these districts shall be at a ratio of one foot for every one foot of height of structure (i.e., a 100-foot tower would require a 100-foot setback from any property line which is residentially or agriculturally zoned). (H) Collocation requirements. All commercial towers erected, constructed or located within the City shall comply with the following requirements. (1) A proposal for a new commercial tower shall not be approved unless the applicant has provided proof that the proposed tower cannot be accommodated on an existing or approved tower or building within a one-mile search radius of the proposed tower due to one or more of the following reasons: A. The antenna would exceed the structural capacity of the existing or approved tower or building, as documented by a qualified and licensed professional engineer, and the existing or approved tower cannot be reinforced, modified or replaced to accommodate planned or equivalent equipment at a reasonable cost; B. The antenna would cause interference materially impacting the usability of other existing or planned antenna at the tower or building as documented by a qualified and licensed professional engineer, and the interference cannot be prevented at a reasonable cost; C. Existing or approved towers and building within the search radius cannot accommodate the planned antenna at a height necessary to function reasonably as documented by a qualified and licensed professional engineer; or D. Other unforeseen reasons that make it unfeasible to locate the planned antenna equipment upon an existing or approved tower or building. (2) Any proposed commercial tower shall be designed, structurally, electronically and in all respects, to accommodate both the applicant additional users if the tower is over 100 feet in height or, for at least one additional user, if the tower is over 75 feet in height. Towers must be designed to allow for future rearrangement of antennas upon the tower and to accept antennas mounted at varying heights. (I) Structural and landscaping requirements. Proposed or modified towers and antennas shall meet the following design requirements: (1) Towers and antennas shall be designed to blend into the surrounding environment through the use of color and camouflaging architectural treatment, except in instances where the color or markings are dictated by federal or state authorities, such as the Federal Aviation Administration: (2) Commercial towers shall be of a monopole design unless the City determines that an alternative design would better blend into the surrounding environment. Towers must be self- supporting without the use of wires, cables, beams, or other means; (3) Landscaping plans for the base of the tower must be submitted with the application of the conditional use permit, or building permit, should a conditional use permit not be needed. These plans must be compatible with the surrounding character of the area and must be approved either by the City prior to the issuance of the conditional use permit or building permit; and Screening plans, as may be required by the City, and reviewed shall be inclusive of the following: A. When used, walls or fences must provide for full visual screening of accessory buildings or storage areas, as viewed from residential areas and state and county roads; B. The materials used for constructing the wall or fence shall be specified in the site plan and shall meet the requirements of this ordinance; C. Berms, if used, shall be constructed with a slope not to exceed 3:1 and shall be covered with sod or other landscape material sufficient to prevent erosion of the berm. D. Trees, hedges or other vegetative materials, when used, must provide at 75 percent (75%) screening capacity throughout the year. Such screening must also conform to all vegetative setback requirements of the Hutchinson Zoning Ordinance. (J) Construction Requirements. Proposed or modified towers and antennas shall meet the following construction requirements: (1) All antennae, towers, and accessory structures shall comply with all applicable provisions of this ordinance. (2) Towers shall be certified by a qualified and licensed professional engineer to conform to the current structural standards and wind loading requirements of the Minnesota State Building Code and Electronics Industry Association. (3) No part of any antenna or tower nor any lines, cable, equipment, wires, or braces in connection with either shall at any time extend across or over any part of the right-of-way, public street, highway, sidewalk, or property line. (4) Towers and associated antennae shall be designed to conform to accepted electrical engineering methods and practices and to comply with the provisions of the National Electrical Code. (5) All signed and remote control conductors of low energy extending substantially horizontally above the ground between a tower or antenna and a structure, or between towers, shall be above the ground at all points, unless buried underground. (6) As applicable to its location, with final determination by the City, towers affixed to the ground shall include security fencing to discourage access by unauthorized persons. (7) Tower locations should provide the maximum amount of screening possible of off-site views of the facility. Existing on-site vegetation shall be preserved to the maximum extent practicable. The area around the base of the tower and any accessory structures shall be landscaped and/or screened. The tenant must maintain, in good and healthy condition, at all times, all landscaping attendant to the wireless telecommunications facility, including landscaping of the public right-of-way. Any dead or dying landscaping must be promptly replaced or rehabilitated. See Section I of this ordinance. (K) Resolution of Interference. The installation and operation of new antennas, towers, and associated facilities shall not cause harmful interference to pre-existing telecommunication system broadcast or reception, whether they be commercial or residential. Telecommunications providers shall, at their own expense, maintain any equipment in a safe condition, in good repair and in a manner so as not to conflict with the use of the surrounding premises. If within 60 days from the initial installation and operation of any new antenna system, the City receives notice of interference from an adjacent property, additional study and remedy may be required. The applicant shall be responsible for the expenses incurred in any independent validation of interference, provided, however, should the independent analysis conclude that the interference objections were valid; the new antenna facility owner shall be responsible for any independent validation fees. If new facilities are found to cause impermissible interference, the new tenant shall take all measures reasonably necessary to correct and eliminate the interference. If the interference cannot be eliminated within 30 days, the new facility owner shall immediately cease operating its facility until the interference has been eliminated. (L) Tower Lighting. Towers shall be required to meet Federal Aviation Administration (FAA) and Federal Communications Commission (FCC) requirements and shall not be artificially lighted unless required by the Federal Aviation Administration to do so. If the tower does require artificial lighting, a letter stating this need and a description of the lighting shall be provided to the City prior to approval. The lighting, unless required by the FAA to be otherwise, must be diffused. (M) Lights and Other Attachments. No antenna or tower shall have affixed or attached to it in any way, except during time of repair or installation, any lights, reflectors, flashers, or other illuminating device, except as required by the Federal Aviation Administration (FAA) or the Federal Communications Commission (FCC), nor shall any tower have constructed on, or attached to, in any , or like structure, except during periods of construction or repair. (N) Accessory Utility Buildings. All utility buildings and structures accessory to a tower shall be architecturally designed to blend in with the surrounding environment and shall meet the minimum setback requirements of the zoning district in which the tower site is located. Ground mounted equipment shall be screened from view by suitable vegetation, except where a design of non-vegetative screening better reflects and complements the architectural character of the surrounding neighborhood. (O) Maintenance Requirements. (1) The yard area in front of the fences and walls shall be trimmed and maintained in a neat and attractive manner. (2) Repairs to damaged areas of walls or fences shall be made within thirty (30) days of sustaining said damage. (3) Areas left in a natural state and vegetative screening areas shall be properly maintained in a well-kept condition. (4) Diseased, dying, or dead vegetative screening elements shall be removed and then replaced, at a minimum, with healthy plants of the same size required when first planted. (P) Abandoned or Unused Towers and Antennas. Abandoned or unused towers or portions of towers shall be removed as follows: (1) All abandoned or unused towers and associated facilities shall be removed within six months of cessation of operations at the site unless a time extension is approved by the Planning Commission. In the event that a tower is not removed within six months of cessation of operations at a site, the tower and associated facilities may be removed by the City, and the costs of removal assessed against the property; or (2) Unused portions of towers above a manufactured connection shall be removed within six months of the time of antenna location. The replacement of portions of a tower previously removed requires the issuance of a new conditional use permit. (Q) Public Safety Telecommunication Interference. Commercial wireless telecommunications services shall not interfere with public safety telecommunications. Before the introduction of new service or changes in existing services, telecommunication providers shall notify the City at least ten days in advance of any changes and allow the City to monitor interference levels during the testing process. (R) Signs and Advertising. The use of any portion of a tower for signs, other than warning or equipment information signs, is prohibited. (S) Additional Submittal Requirements. In addition to information listed elsewhere in this section, conditional use permit applications for towers shall include the following supplemental information: (1) A report from a qualified and licensed professional engineer which: A. Describes the general tower height and design including a cross-section and elevation; B. Documents the height above grade for all potential mounting positions for collocated antennas and the minimum separation distances between antennas. This information can be general in scope, with specific documentation to be submitted with the building permit application; C. accommodate; D. s stamp, registration number, and signature; and E. Additional information necessary to evaluate the request. (2) For all commercial towers, a letter of intent committing the tower owner and his or her successors to allow the shared use of the tower if an additional user agrees in writing to meet reasonable terms and conditions for shared use; (3) If the tower exceeds 200 feet, a letter of approval from the Federal Aviation Administration (FAA); (4) A letter from the FAA if artificial lighting is deemed necessary; and (5) Recommendation for approval by the Municipal Airport Commission. (T) Satellite Dishes. Satellite dishes greater than one meter in diameter shall be allowed only by a conditional use permit in all districts. Design plans shall include provisions for screening and shall be submitted with the conditional use permit application. (U) Small Wireless Facilities. (1) Small Wireless Facility Plan. A. Small Wireless Facility Submissions. The applicant shall submit a preliminary site plan to the City, for review and approval. The applicant shall also submit an application which shall include: (i) photographs or accurate renderings, including correct colors and exact dimensions, of each type of proposed small wireless facility; (ii) a statement signed by a professional engineer licensed in the State of Minnesota stating that the proposed facilities comply with all applicable Federal Communications Commission regulations, including, without limitation, regulations pertaining to the emission of radio frequency radiation; and (iii) such additional information as the planning director may reasonably require in order to determine whether the requirements of this section are met. The application and site plan for the Small Wireless Facility shall be approved only if the following minimum standards are met: 1. The Small Wireless Facility may encompass multiple sites. 2. The Small Wireless Facility shall be substantially concealed from view by means of painting, tinting, or use of camouflage or stealth materials to match the surface of the building or other structure to which they are affixed or by other suitable methods, such as by flush-mounting or integration into the design elements of the building or structure. 3. Electrical power and battery backup cabinets shall, to the extent practicable, be roof-mounted or otherwise located so as not to be visible from a public street or, where not practicable as determined by the City, such equipment shall be appropriately screened by landscaping or other means minimizing visibility from a public street. 4. The placement of Small Wireless Facilities may be approved by the City, provided the antenna meets the requirements of this ordinance, and after submittal and approval of all permits, applications, fees and information identified in Section BC of this ordinance. Small Wireless Facilities on a public structure or existing structures are allowed by conditional use permit in residentially zoned areas if they are located on public or institutional property.are allowed in all districts by resolution approved by the City, without a conditional use permit. However, all antenna installations must comply with the requirements of this ordinance, and Chapter 90 when installed within the right- of-way. 5. At such time that the Small Wireless Facility ceases to be used for communications purposes for three (3) consecutive months, the applicant shall remove the Small Wireless Facility from the property. If the applicant fails to remove the Small Wireless Facility within 30 days of written notice from the zoning administrator, the director of development and permits or designee, through his or her own agents or employeesCity, shall be authorized to remove the Small Wireless Facility and assess all charges incurred in such removal on the applicant. 6. Small Wireless Facility installations are permitted uses in the following zoning districts; a) C-1, neighborhood convenience commercial district; b) C-2, automotive service commercial district: c) C-3, central commercial district; d) C-4, fringe commercial district; e) C-5, conditional commercial district; f) I/C, industrial/commercial district; g) I-1, light industrial park district; h) I-2, heavy industrial district; and i) BP, business park district. 7. All Small Wireless Facility installations shall be allowed only by conditional use permit in the following zoning districts; a) GT, Gateway b) MXD, Mixed Use District 8. Special requirements based on whether Small Wireless Facility is affixed to a building or pole: a) Building-mounted: 1). The Small Wireless Facility may be attached to any building that is at least twenty (20) feet in height as measured from the ground level; 2). When attached to such building, the Small Wireless Facility shall be affixed at least eighteen (18) feet in height as measured from the ground level. b) Pole-mounted: 1). The Small Wireless Facility shall be mounted on a pole that supports an athletic field or parking lot light, street light or utility line. Such pole shall be at least fifteen (15) feet in height as measured from the ground level. Note: fiberglass poles, poles for traffic lights or traffic signal systems cannot be used and are prohibited for the mounting of any antennas or telecommunications equipment without first obtaining a right-of- way permit and collocation agreement from the City; 2). Height Restrictions. All Small Wireless Facility installations shall be in compliance with height restrictions applicable to poles and other structures in certain overlay zoning districts. In all other zoning areas, Small Wireless Facilities shall not be installed at a height exceeding thirtyfifty (3050) feet. 3). The Small Wireless Facility shall not protrude outward more than two (2) feet from the pole on which it is mounted; 4). There shall be no more than one (1) Small Wireless Facility per pole; 5). The antenna is located inside an enclosure of no more than six cubic feet in volume or could fit within such an enclosure. the diameter or width of the pole on which it is mounted 6). Security - construction of a Small Wireless Facility on existing utility poles must be installed in a manner that will not allow the public to come into physical contact with the equipment or create injury. Equipment must be mounted securely and include electrical surge protection, safety cable connector locks, no sharp edges, or any other potential hazards. B. Placement of Small Wireless Facility in the Right-of-Way. Small Wireless Facilities in the right-of-way shall comply with the process and standards in Chapter 90 of Hutchinson City Code.The following Standards shall apply for the placement of Small Cell Technology in the public right-of-way, or on a public road, City easement or any other City property. A. The City will determine whether the location (and any existing pole) identified by the applicant as a Small Cell Site is within the City Right-of-Way. If it is not, the request would be outside the scope of the Lease Agreement as the City would not have authority to approve the Small Cell Site Application. B. In determining whether to allow the installation of a Small Cell Technology Wireless Support Structure within the right-of-way, the City shall consider the following factors and make a determination if it is appropriate: 1. Demonstrated need for the Small Cell Technologies within the geographic area requested by a radio propagation study in order to deliver adequate service; 2. Proof that all co-location sites in the area of need are/were pursued and have been denied; or that there does not exist the ability to co-locate using existing structures. The Applicant must demonstrate all actions taken to achieve colocation. 3. The character of the area in which the Small Cell Technology Wireless Support Structure is requested, including evidence of surrounding properties and uses; 4. Stealth Technology, if any, proposed to be utilized by the Applicant, or proof that Stealth Technology is either: (a) unnecessary; or (b) cannot be used. 5. Proof that the proposed Small Cell Technology Wireless Support Structure is the minimal physical installation that will achieve 6. The safety and aesthetic impact of any proposed Small Cell Technology Wireless Support Structure, related accessory equipment, and/or Equipment Compound. (2) Ownership of the Pole. The Lessor will determine the ownership of the pole identified for installation of Small Cell Equipment. (3) Site Eligibility. Lessor shall determine whether a requested City street light pole or the location for the installation for a new pole is eligible as a Small Cell Site based on space availability or other considerations. In addition, Lessor must determine whether public safety considerations prevent eligibility of a street light pole as a Small Cell Site. Concerning a request to install a new pole, Lessor shall determine whether City policies and availability of Right-of-Way prevent the pole installation at the requested location. (4) Structural Capacity. For any proposed installation on an existing pole, the applicant must provide evidence that the pole has adequate structural capacity to carry the additional loading from the proposed installation. The City may retain the services of an independent technical expert at the documentation. (5) Historic Preservation. All Small Cell Site installations on an historic building, site, or within an historic district shall be stealth installations subject to the review of the Minnesota State Historic Preservation Office (SHPO) in order to satisfy that the installations are compatible with the regulations applicable to the historic building, site or district. Lessee shall implement design concepts, and the use of camouflage or stealth materials, as necessary in order to achieve compliance with SHPO review, the City and other applicable regulations as amended. Further, Lessee acknowledges that under City regulations, all installations on Public Rights-of-Way are subject to review by SHPO. Prior to submitting a Small Cell Site Application, Lessee shall meet with SHPO to discuss any potential design modifications appropriate for the installation. (6) Review Criteria. All Small Cell Site Applications requesting access to a City street light pole must include a load bearing study to determine whether the attachment of Small Cell Equipment may proceed without pole modification or whether the installation will require pole re-enforcement or replacement. If pole re-enforcement or replacement is necessary, applicant shall provide engineering design and specification drawings demonstrating the proposed alteration to the pole. Engineering documents will be review to determine: A. compliance with contractual requirements under this Lease Agreement; B. no interference with City public safety radio system, traffic signal light system, or other communications components; C. inclusion of appropriate design of stealth components necessary to comply with historic preservation requirements or aesthetic design elements for downtown attachments; and D. compliance with City pole attachment regulations for street light poles, including replacement of Utility electric meter with dual meters. (7) Determine Compliance with any other Applicable Requirements. As appropriate, the City or their designee shall require Lessee to make design modifications in order to comply with applicable contractual, regulatory, or legal requirements. Failure to make the requested design modifications shall result in an incomplete Small Cell Site Application, which may not be processed under this Lease Agreement. (8) Approval of Application. Upon finding that the Small Cell Site Application is complete and in compliance with all applicable requirements as outlined above, the City shall consider such Small Cell Site application. The approval of the Small Cell Site Application requesting to attach to a City light pole, or to install a new pole, shall authorize Lessee to proceed to obtain an excavation Permit from the City. Lessee shall comply with the requirements and pay all appropriate Minnesota standard promulgated ROW Permit fees. Upon obtaining a ROW Permit, Lessee may proceed to install the Small Cell Equipment in coordination with any affected City departments. Approval of a Small Cell Site Application related to the use of a utility pole, or a pole owned by any other third-party, shall authorize Lessee to proceed with attachment process applicable to the pole owner and in accordance with the pole owner's regulations proceed to obtain a ROW Permit. Again, Lessee shall proceed with the Small Cell Equipment installation in coordination with any affected City departments. Upon completion of the installation, Lessee shall notify the City, or their designee, in writing and provide a picture of said installation to be included in the Small Cell Site Application records. (9) Repair of Public Right-of-Way. The tenant must repair, at its sole cost and expense, any damage (including, but not limited to, subsidence, cracking, erosion, collapse, weakening, or loss of lateral support) to City streets, sidewalks, walks, curbs, gutters, trees, parkways, street light poles, utility lines and systems, underground utility lines and systems, or sewer lines and systems, that results of a wireless telecommunications facility. In the event the tenant fails to complete said repair within the number of days stated on a written notice from the City, the City may cause said repair to be completed and invoice the tenant for all costs incurred by the City as a result of such repair. The tenant must promptly pay any costs so invoiced. (V) EFFECTIVE DATE AND APPLICABILITY TO EXISTING FACILITIES. All Wireless Telecommunications Facilities existing on or before July 1, 2009, shall be allowed to continue as they presently exist, as legally permitted non-conforming uses. Such facilities shall be used or repaired without having to comply with the Ordinance. Any material modification, including changes that could result in interference, additional structural loading, or aesthetics of an existing Telecommunications Facility, will require review and permitting in compliance with this Ordinance. EFFECTIVE DATE OF ORDINANCE. This ordinance shall take effect upon its adoption and publication. This Ordinance was passed by the City Council of the City of Hutchinson on the ___ day of ___ 2018. ATTEST: _______________________________ _________________________________ Matt Jaunich, City Administrator Gary Forcier, Mayor Date of Publication: month day, 2018 TITLE AND SUMMARY OF ORDINANCE NO. 18-0784 The following Ordinance is hereby published by title and summary: 1. Title of Ordinance: Telecommunications Ordinance An Ordinance to Amend Title 15, Chapter 154, Section 119 of the City of Hutchinson Code of Ordinances, Telecommunications Ordinance. 2. Summary of Ordinance: This ordinance amends Title 15, Chapter 154, Section 119 of the Hutchinson City Code, which sections sets forth uniform requirements for telecommunications in the chapter. This Chapter applies in the City of Hutchinson, Minnesota and to persons outside the City who are, by contract or agreement with the City, users of telecommunications in the City. Except as otherwise provided herein, the City Engineer shall administer, implement, and enforce the provisions of this Chapter. This Ordinance shall take effect upon publication in accordance with the Hutchinson City Charter. 3. Availability of Ordinance: A complete, printed copy of this Ordinance is available for inspection by any person during regular business hours in the office of the City Clerk, This Ordinance was passed by the City Council of the City of Hutchinson on the ____ day of ____, 2018. ATTEST: _______________________________ _________________________________ Matt Jaunich, City Administrator Gary Forcier, Mayor Date of Publication: month day, 2018