The URL can be used to link to this page

02/25/1997 - City Council SpecialAGENDA SPECIAL CITY COUNCIL MEETING Tuesday February 25, 1997 5:00 P.M. Municipal Center Community Room I. ROLL CALL & ADOPTION OF AGENDA II. VISITORS TO BE HEARD III. JOINT MEETING WITH ADVISORY PLANNING COMMISSION TO REVIEW TRUCKING COMMITTEE FINDINGS IV. REVIEW "DRAFT" RIGHT-OF-WAY ORDINANCE V. 1997 WORK PROGRAM (continued from 1/28/97 City Council workshop) VI. OTHER BUSINESS VII. ADJOURNMENT L:: TO: FROM: DATE: MEMO city of eagan HONORABLE MAYOR & CITY COUNCILMEMBERS CITY ADMINISTRATOR HEDGES FEBRUARY 21, 1997 SUBJECT: SPECIAL CITY COUNCIL MEETING/FEBRUARY 25,1997 A Special City Council meeting is scheduled for Tuesday, February 25. 1997 in the Municipal Center Community Room. As a special note, City Councilmembers Awada and Wachter will be interviewing architects from 2:30 until 5:00 p.m. preceding the workshop meeting on Tuesday. JOINT MEETING WITH ADVISORY PLANNING COMMISSION TO REVIEW TRUCKING COMMITTEE FINDINGS The first 1'/z hours of the work session is set aside to meet jointly with the Advisory Planning Commission to: 1) discuss the trucking committee findings, a process that has been coordinated by the Planning Commission at the direction of the City Council and 2) to have a general discussion that includes any other business items that may be pertinent with the Planning Commission and the City Council. The Advisory Planning Commission will excuse themselves to the City Council Chambers for their monthly meeting. For background information on the trucking committee findings, a memo that was sent to the Advisory Planning Commission for their February 13 workshop session is enclosed on pages __,� through /Q. For a copy of the findings and discussion at the February 13 meeting, please refer to pages through /--4 . The Economic Development Commission, at their meeting held on Thursday, February 13, is requesting the opportunity to review truc ng from an economic development perspective. For a copy of that memo, refer to pagq' f `4 , �._ DIRECTION TO BE GIVEN: It would be appropriate for the City Council to determine how and when the results of the trucking committee findings should be presented at a regular City Council meeting. If the Council directs the EDC to provide its input, the process should include enough time for that commission to evaluate and include any recommendations and findings to the City Council. RIGHT-OF-WAY ORDINANCE The City Council has discussed the pros and cons of local government managing its public rights-of-way. The issue has been discussed jointly with the City Councils of Eagan and Burnsville along with the Telecommunications Commission in 1996. The League of Minnesota Cities has developed a model ordinance and participated in the ongoing lawsuit between L.S. Fest and the City of Redwood Falls on behalf of all Minnesota cities. Since Congress deregulated the telecommunications industry. local governments are faced with the public policy question of who is responsible for right-of-way management. Assistant to the City Administrator Hohenstein has been coordinating the franchise renewals and the right- of-way management issue. Given the fact that the City has already been contacted by Brooks Fiber. who is proposing the installation of fiber optic cable in Eagan and a loop in the northern industrial park area of Eagan. policy issues pertaining to right-of-way management need some direction by the City Council. For additional background information. refer to pages -/'5- through for a copy of a memo prepared by Assistant to the City Adminsitrator Hohenstein thaf addresses several policy- issues that have been discussed in staff meetings that have included the City Administrator. Director of Public Works. Cable Coordinator. City's Telecommunications Attorney Tom Creighton. City Attornev Mike Dougherty- and Assistant to the City Administrator Hohenstein. DIRECTION TO BE GIVEN: Staff is looking for direction from the City Council on whether an ordinance should be prepared concerning ROW management and to provide direction on each of the seven policy issues. 1997 WORK PROGRAM At the January 28. 1997 City Council workshop, there was discussion regarding the 1997 work program memo prepared by the City Administrator. With some time restrictions and the absence of City Councilmember Aw-ada. it was decided to delay further discussion on this item until a future workshop. Enclosed on pages through ?� is another copy of the memo the City Administrator distributed to t� City Council for the January 28 workshop on this item.. Also enclosed on pagE i.�" a copy of the minutes that pertain to the 1997 work program portion of the January- 28 meeting. DIRECTION TO BE GIVEN: To provide direction to the City Administrator and staff regarding various goals the City Council would like addressed in 1997. OTHER BUSINESS There are no items for Other Business. /S;' Thomas L. Hedges City Administrator city of eagan TO: Chair Carla Heyl and Advisory Planning Commission Members FROM: Pamela Dudziak, Associate Planner DATE: February 11, 1997 RE: Trucking Study In October of 1996, the APC established a subcommittee to solicit additional public input on the trucking study and draft policy through a series of informal work sessions. The first work session was held on November 18, 1996, with subsequent sessions on January 13 and January 27, 1997. In a related effort, the Eagan Small Business Association coordinated several meetings during the same time frame which focused on transportation issues along the Hwy. 13 corridor. City staff and elected officials were invited to attend. The subcommittee report summarizes comments from the residents and industrial property and business owners who participated in the work sessions and the meeting organized by the Small Business Association. In addition to the issues and suggested solutions raised by these parties, the APC should may wish to emphasize city-wide concerns and issues in its recommendations to the City Council. Below is a list of some items the APC may want to consider. • Impact of truck traffic on transportation system and associated costs • Balance use of industrial land • Balanced tax base and job base 0 City's role in the regional economy MEMORANDUIM TO: Advisory Planning Commission FROM: Trucking Study Subcommittee DATE: February 11. 1997 RE: Trucking Study BACKGROUND OF POLIO' DEVEL PMENT city of eagan Following the directive by the Cite Council last summer, the Advisory Planning Commission ( APC) discussed the trucking related land use issues at its July and August 1996 workshops. An update was presented and input solicited from the City Council at its meeting on Jul} 30. 1996. In these each discussions regarding trucking related issues , the APC and City Council generally identified parameters for the trucking study. The identified parameters included protecting residential areas from the negative impacts of trucking businesses. providing clear guidance to businesses or developers as to the most suitable locations for trucking firms in the city, and achieving balanced development and use of the citv's industrial land base. After several workshop discussions and with these objectives in mind, the APC provided initial policy direction which was incorporated into a draft trucking policy. The APCs intent was to solicit input from the public and industry representatives. The draft policy accomplished that by providing something which the public and industry representatives could react to before any further effort was made by the city to revise existing regulations or develop new regulations. The draft policy was presented to the APC at its September workshop, and a public hearing to consider the policy was scheduled for October 22, 1996. Approximately 350 notices for the public hearing were mailed to owners of industrially zoned or guided property as well as to residential neighborhoods which had been impacted by trucking proposals within the previous year. At the public hearing on October 22, 1996. the APC recommended that a small discussion group be established to examine the issues in greater detail and provide the Commission with recommendations in lieu of a formal public hearing. A volunteer list of those in attendance who wished to be part of the work group was compiled. Subcommittee Report to the APC Trucking Study APC Workshop, February 13, 1997 PUBLIC MEETINGS TO GAIN INPUT Paee 2 The first work session was held on November 18, 1996. About 25 people were in attendance, and the comments focused primarily on the areas of Hwy. 149, Yankee Doodle Road and Lone Oak Road. Two more work sessions for this group were held in January 1997. Although representation by the industrial property and business owners in the Hwy. 13 corridor area was small at these meetings, their concerns about transportation were brought to city staff s attention through several meetings coordinated by the Eagan Small Business Association which occurred during the same time frame. Detailed notes from both series of meetings are attached with this report. Following the initial work session, a list of issues and concerns was compiled (see attached). Specific issues could be grouped into the following themes: safety, truck access to principal arterials, impact of noise and fumes on adjacent properties, scope of policy, evaluation of potential future ordinance amendments, and code compliance. Many of the issues were not specifically related to trucking, but rather dealt with transportation in general (i.e. capacity, access, safety, etc.) The second work session was largely an informational session during which the list of issues was presented to participants, and city staff answered questions regarding funding for transportation and roadway improvements, the status of current transportation studies and projects, and the role of MN/DOT, the Metropolitan Council, and the County. The final work session involved breaking into two smaller groups to refine the issues and identify potential solutions. One group focused on the Hwy. 149 corridor and another on Hwy. 13 and the area of Lone Oak Road west of I -35E. Although both residents and industrial property and business owners were represented at this meeting, the Hwy. 149 group consisted of primarily of property and business owners, and the Hwy. 13/Lone Oak Road group was comprised entirely of residents. CONCLUSIONS Reaction to the draft policy was strongest from owners of industrial land and existing businesses. They thought the draft policy was too far reaching and feared it would make future expansion impossible or would render their property unsalable or unusable. They were especially concerned about any mention of using distance between uses as a way to mitigate adverse impacts. There was also concern that a single blanket policy or set of requirements would not make sense and would be ineffective in addressing the real issues when applied in specific instances in different areas of the city. There are some general themes which recurred throughout the discussions. First, industrial land owners, business owners and residents expressed a desire for highway improvements to increase .N. Subcommittee Report to the APC Trucking Study APC 'W'orkshop, February 13, 1997 Page 33 capacity, safety and efficiency. Second, participants acknowledged that proximity of differing land uses creates potential for incompatibilities and conflicts. Third, industrial land owners and business owners want the city to be clear and consistent with the rules for development and expansion. Finally, residents want protection from the adverse impacts of noise, fumes and light. and especially do not want trucks driving in front of their homes. More detailed information from the discussions are listed below. 1. Potential for conflicts - The proximity of differing land uses creates the potential for conflicts, especially when new uses are established on vacant land. For example, the Bur Oak Hills neighborhood which was established in an area of industrial zoning. under the airport flight path and with highways on the north and west sides. As nearby- vacant industrial properties develop, the conflicts between these uses are becoming more pronounced. In another example, one industrial business and land owner expressed concern at the city's future North Park being sited amidst industrial property without direct connection to residential areas. ?. Transportation improvements - Roadway expansions are needed to address safety concerns and capacity issues. Highways 13 and 149 are state highwa}'s. and experience heavy use for a two-lane undivided highway. Turning movements are difficult at uncontrolled intersections because of the amount of through traffic. Trucks are large and accelerate more slowly and use up roadway capacity more quickly. On these two corridors, there appeared to be general agreement that turn lanes. enforcement of speed limits. warning signs for "slow down'heavy truck traffic," and additional signals are intermediate measures that can improve safety. 3. Im acts are generated both on- and off-site - Both on-site and off-site impacts should be considered in evaluating a particular development. Residents expressed concerned about noise and fumes generated from trucks, especially from moving traffic passing near their homes, but also from on-site operations where truck related facilities are located near residential areas. In evaluating a proposal, the marginal impact of the specific operational activities of the use should be considered. 4. Miti ation of adverse impacts - The question was raised about mitigation policies and whether the burden of mitigation should fall on the producer or the receptor; or whether the order of development rather than the type of use should determine who bears the burden. Although industrial land owners are not opposed to employing landscaping and sensitive site design to buffer between uses and mitigate adverse impacts, they felt strongly that setbacks are inefficient and ineffective, especially where there is a large right of way between the two uses. Subcommittee Report to the APC Trucking Study APC Workshop, February 13, 1997 Page 4 5, ClariLv and consistency in develo mens regulation - The city needs to be clear and consistent in its application of the rules. Clarity and consistency in the rules for development creates expectations and assurances for all parties as to what uses are allowed and under what circumstances and conditions. This theme was expressed most frequently by industrial land owners. At the same time, industrial property and business owners acknowledged that a single set of rules may not always achieve the intended objective when applied in different situations under different circumstances and therefore, flexibility in the rules is also needed. 6. Rezoning and marketability_- Any rezoning should be carefully evaluated and include market studies to determine whether the new zoning is supported by the market. Industrial property and business owners expressed that changing the zoning for the southern part of Eagandale Corporate Center to BP (Business Park) may be appropriate, but for the property along the west side of Hwy. 149 where the presence of a state highway, a railroad and existing businesses such as Gopher Smelting all constrain the uses for which the property is marketable. 7. Access_manaaement - Management of highway access along Highways 149 and 13 will be a challenge in the future. While industrial property and business owners would prefer to maintain independent full access to the highways, consolidation of accesses along these corridors may be necessary for safety and efficiency. 8. Designating truck routes - Lone Oak Road west of Pilot Knob Road is a residential area. This stretch is signed to direct truck traffic to other routes and relies on voluntary compliance to keep trucks off Lone Oak Road. Residents oppose the use of this stretch of Lone Oak Road for truck traffic, but voluntary compliance does not always work. Use of roads in Mendota Heights is needed to solve Eagan's problems. Industrial property and business owners indicated that providing more alternative acceptable routes for truck traffic can reduce the amount of truck traffic on any one route. 9. "Good neighbor" policy - Residents and representatives of trucking related businesses both concluded that voluntary cooperation and compliance is needed to work with neighbors to address and resolve issues and conflicts without sole reliance on city regulations. POTENTIAL CITY RESPONSES Recognizing that incompatibilities between uses exist, and that public buyout of incompatible properties is not a viable option, the city's goal is to improve coexistence between residential and industrial uses. The following is a list of ideas which were generated by the participants in this process as potential solutions or suggested city responses to the identified issues and concerns. These potential solutions can be categorized as addressing three broad categories of issues: 1) Subcommittee Report to the APC Trucking Study APC Workshop. February 13, 1997 land use conflicts, 2) transportation improvements, and 3) clarity and consistency in city regulations and actions. This list is presented to the Advisors. Planning Commission for discussion and a recommendation to the City Council. Land Use Conflicts Paee 5 a. Explore ways to improve disclosure about city's comprehensive plans for an area to potential home purchasers (1) b. City Council and Advisory- Parks, Recreation and Natural Resources Commission should engage in public discussion about North Park (1) c. Develop reasonable landscaping and buffering design guidelines. including public and private streetscaping. between conflicting uses (1, 3.4) d. Expand the scope of corridor studies to include identification of opportunities for streetscaping and noise mitigation, both public and private, and to explore other options to improve buffering (2• 3. 4.) Conduct market studies with property- owners for selected properties not currently developed on the perimeter of residential.'industrial zones to determine the feasibility of uses other than trucking and outdoor storage (6) f. Reguide and rezone to BP the property east of Lexington Avenue and north of Yankee Doodle Road consisting of the south 80 acres of the Dart property (Maplewood Acres) (6) Transportation Improvements g. Work with state, county and city to improve signage as a short-term measure to direct traffic flow and enhance safety (2) - h. City Council should work with Dakota County- to prohibit truck use of Lone Oak Road between Hwy. 13 and Pilot Knob Road (3, 8) i. Examine feasibility- of providing more direct access to I-494 from Hwy. 13 (2. 8) Subcommittee Report to the APC Trucking Study APC Workshop, February 13, 1997 Page 6 j. Solicit programming and funding for trunk highway improvements through a major cooperative public and private effort (2) k. Expand the scope of corridor studies to include identifying opportunities for streetscapng and noise mitigation, both public and private, and to explore other options to improve buffering (?, 3, 4,) 1. Complete corridor studies and follow through with improvements (2, 7) Claritv and Consistencv of City R ulations and Actions m. Continue to review industrial zoning code for opportunities to clarify under what circumstances or in what locations certain uses may be permitted or conditional, and to clarify conditions and the problems they are designed to address (l, 5) n. Correct inconsistencies in landscaping and buffering requirements of zoning code for industrial properties (4, 5) o. Decision makers should clearly identify the basis for their decisions and distinguish between similar cases when the outcomes are different (5) Attachments: Draft Police Issues List Minutes and Notes From Meetines Miscellaneous Other Correspondence 9 MEMO TO: Thomas Hedges, City Administrator FROM: Lisa Freese, Senior Planner DATE: February 21, 1997 SUBJECT: Trucking Land Use Policy/Transportation Study The Advisory Planning Commission trucking policy subcommittee brought a report back to the full APC at the February 13, 1997 Workshop. At that workshop several members of the public provided comments to the APC and those comments are in the workshop summary provided in your packet. Through the APC discussions and public input process it has become clear that problems associated with the location of trucking related businesses are much more than a land use issue. This discussion has brought to the forefront several significant transportation issues. The APC is forwarding the subcommittee report to the City Council and is requesting further guidance regarding land use and development standards. It was the consensus of the APC not to bring forward a recommendation regarding the draft APC truck policy that was developed in September 1996, but rather to seek further Council direction on potential city responses to the conclusions drawn from the public input process. They specifically are requesting guidance from the City Council regarding whether or not to pursue any of the potential city responses. They feel that it would be appropriate for the APC to be involved in changing the zoning of properties or clarifying the development standards in the code pertaining to setbacks, buffering and landscaping. They feel these efforts should be focused in those transitional areas where residential and industrial properties are abutting or adjacent to each other. They also feel it would be beneficial to have the Economic Development Commission review the APC subcommittee conclusions and comment to the City Council on the economic issues associated with the trucking industry in the City. Lisa J. Freese, Senior Planner Attachments: APC Trucking Subcommittee Report dated February 11, 1997 Summary of February 16, 1997 ***DRAFT*** ADVISORY PLANNING COMMISSION WORKSHOP SUMMARY Eagan, Minnesota February 13,1997 A workshop of the Advisory Planning Commission was held on Thursday, February 13, 1997 at 6:30 p.m. Members present were Chair Carla Heyl. Steve Burdorf. Larry Frank, Mark Miller, Peggy Carlson, Paul Bakken, and Kurt Augustin (.Alternate). Absent was Jerry Segal. Also present were Senior Planners Lisa Freese and Mike Ridley, Associate Planner Pam Dudziak, and Public Works Director Tom Colbert. Trucking Study Subcommittee Report About 15 members of the public were present. Associate Planner Dudziak gave a summary of the report, and Senior Planner Freese added a few comments about the map dated February 13, 1997. Public Works Director Colbert gave a brief summary and update of the Hwy. 139 corridor study. He added that MnDOT had recently approved installation of a signal at Hwy. 13 and Blackhawk Road, conditioned upon resolving jurisdictional issues. Chair Carla Heyl then asked for comments from the public. Karen Flood, resident on Lone Oak Road: • Concerned about safety • "Good neighbor" policy has been only partially effective Chuck Thorkildson, a resident of the Bur Oaks neighborhood: • Concerned about air quality issues related to trucking operations and traffic • Concerned that map shows residential parcel south of Bur Oaks for further study • What is an appropriate "buffer"? Roadway should not be considered a buffer. • They hear trucks at UPS 24 hours a day. Noise can be measured by installing microphones. Jack Hoeschler and Gary Santoorjian (Dart Transit): • Objective is to establish a functional buffer between uses • Consider putting buffering features near receptor, not just around generator • Feels other industrial property owners in the Hwy. 149 area would horrified if the city considered any rezoning • Dart is receptive to rezoning perimeter lots of property on YD Rd./Lexington Ave. to BP • "Trucking boundary" doesn't work, too large of a range of trucking activities and difficult to define "good" versus "bad" trucking • North Park is an example that City should give more forethought in land use decision and be careful about not setting up disparate uses and thus inviting conflict as was done when Bur Oaks was approved in an industrial area in the airport flight path and surrounded by highways • Current problems stem from decisions made years ago about land use and City needs to recognize reality of existing conditions. It is impossible for City to fix problems now by limiting uses. • Need factual information to support City actions- there is nothing factual to support a distance setback • ?deed to distinguish between different types of trucking uses and activities ***DRAFT*** B.J. Larson, resident on Yankee Doodle Road: • Where will money come from to fund retrofitting landscaping to existing development? • Why does tree mitigation fee paid by a developer go to citywide fund and why can't those fees be guaranteed for use in the immediate area of development for which mitigation was provided? • A park is needed north of YD Rd. because of the large amount of industrial land; conflict of uses is not inherent in the case of North Park John Young (ESBA and EDC) • Is BP zoning the solution? Uses allowed in BP, although cannot include outdoor storage, may, generate more traffic and noise • Ames Construction in Burnsville is a good example of buffering and the site is '4 surrounded by residential Commissioner Larry Frank: • Questioned whether increasing residential setbacks from major highways is necessary when all over the region. new homes are being built near highways • Establishing a buffer nearer receptor makes sense • Establishing larger setback requirements may present question of taking • Ring Road bridge should be lower priority than health and safety, City should work to correct existing safety problems on Hwy. 13 and Hwy. 149 first. Commissioner Steve Burdorf: • Asked if Dart Transit had gone to MnDOT to solicit improvements to Hwy. 149. Jack Hoeschler responded no, but they would be willing to do so • Hwy. 149 should remain a state highway, and he does not support the idea of a turnback Chair Carla Heyl: • In addition to considering the issues and .suggestions solicited from the public and presented in the report, the City needs to address the broader issues outlined in the staff cover merino dated ?d11197 • What role does the Council envision for the trucking industry in the City's future? • Need to study what other uses could go in these areas and what their impacts might be - other uses may have greater negative impacts than trucking The APC asked for direction from the City Council on transportation and land use conflicts and performance standards for development and indicated it would be appropriate to involve the Economic Development Commission in looking at the economic role of the trucking industry. Commissioner Burdorf move, and Commissioner Carlson seconded, a motion to sent the report to the Council, and requested that the Council give guidance to the APC on land use and development standards that the council desires the APC to investigate further and the EDC should provide guidance to the Council and the APC regarding economic impacts of trucking. All approved in favor. 4 —city of eagan TO: CITY ADMINISTRATOR HEDGES FROM: ASSISTANT TO THE CITY ADMINISTRATOR HOHENSTEIN DATE: FEBRUARY 20, 1997 I L 1:4 AI -W SUBJECT: EDC REQUEST - OPPORTUNITY FOR INPUT FOR CITY TRUCKING STUDY At its meeting of February 13, the Economic Development Commission received a briefing on the City's Trucking Study, the history of the study and the draft study report which will be one of the topics of Tuesday's joint meeting of the City Council and Advisory Planning Commission. In its discussion, the Commission noted that in addition to the land use issues, it is likely that there are economic development issues which the Council may wish to consider in its final review of this matter. In particular, there may be impacts on local trucking firms and jobs, impacts on industries associated with or relying on trucking and the adequacy of the local infrastructure. As a consequence, the EDC is requesting Council authorization for the Commission to make a recommendation and provide input to the APC for the Trucking Study. The Commission is requesting up to sixty days to complete this additional review. If given this direction, the Commission intends to notice industry representatives and hold a special meeting on March 13. It would focus its review on economic development issues such as the retention, expansion and attraction of appropriate industries and living wage jobs and the community facilities and infrastructure necessary to encourage such development. It would not be the intention of the Commission to duplicate the APC's review of land use and physical development issues. ACTION REQUESTED OF THE CITY COUNCIL: To approve or deny authorization for the Economic Development Commission to take up to sixty days to make a recommendation and provide input on the economic development aspects of the City's Trucking Study. Please let me know if you have any questions concerning this request. Q�r_l I 4_L:VCf �s As tant to the City Administrator _ city of eagan CITY ADMIN15TKATOR HEDGES ASSISTANT TO THE CITY ADMINISTRATOR HOHENSTEIN FEBRUARY 20, 1997 SUBJECT: CITY COUNCIL BRIEFING - RIGHT OF WAY MANAGEMENT The purpose of this memo is to provide the City Council with background information concerning developments in the area of local management of public rights of way and to request direction regarding the City of Eagan's needs pertaining to users of those rights of way. It is likely that such direction would result in the preparation and consideration of an ordinance to protect the interests of Eagan's citizens while offering a level playing field to firms which need to locate equipment in the right of way to conduct their business. BACKGROUND Local governments have long provided public rights of way largely for public transportation. Over time, these rights of way also became logical locations for a number of utilities. Because these utilities were generally considered to be in the public interest and many of them over time became regulated monopolies, they were permitted to occupy the public right of way along with public utilities such as sewer, water and storm sewer facilities. Most of the facilities within the public rights of way have also been subject to franchises which permit local governments to set reasonable standards concerning the location of equipment, restoration of damage, responsibilities of parties in the event of construction and other construction standards. The primary exception to local franchise requirements ias been in the area of telephone service. The deregulation of the telecommunications industry has introduced a substantial number )f additional service providers wanting to occupy the rights of way. At least some of ;hese firms will be telephone companies with the historic exemption from franchise •equirements. Others will be telecommunications firms and may be in a gray area with •espect to franchising. At the same time, the deregulation of the electric and gas utility ndustries introduces the probability of overbuilding of redundant, competitive utility )roviders. While such utilities remain subject to franchise requirements, it will be mportant that the same rules with respect to the use of the rights of way apply to all isers. IS While Eagan is different from the central cities and older suburbs in that it tends to have wider rights of way and less need for utility providers to excavate streets and sidewalks for all utility installations, public rights of way are limited in their capacity to accommodate large numbers of utility facilities. In time, the increased number of users wanting to be in the rights of way will conflict with one another and with the maintenance of public utilities. In deregulating the telecommunications industry, Congress specifically recognized the need for and authority of local governments to manage the public rights of way in the public interest. The question facing cities around the country is how best to do this without creating unreasonable barriers to the users of the rights of way. The fundamental issues and challenges associated with the topic are outlined in the attached fact sheet prepared by the City Engineers' Association of Minnesota (Appendix A). PREVIOUS DIRECTION AND LMC ACTIVITIES The City Councils of Eagan and Burnsville discussed this issue together with the Telecommunications Commission in 1996. At that time, City staff was given direction to investigate the implementation of a Right of Way Management Ordinance for the City of Eagan. Staff and legal counsel have reviewed this issue and have monitored two significant activities associated with it. The first has been the development of a model ordinance by the League of Minnesota Cities and the City Engineers' Association and the second is the ongoing lawsuit between USWest and the City of Redwood Falls. Both of these relate to the telecommunication's industry's concern that local regulation not result in a patchwork of local requirements varying from city to city. The League's model ordinance has been intended to provide cities with a consistent basis for local management of rights of way and to reduce the need for each community to reinvent the wheel and independently defend its ordinance. The completion and release of the model ordinance has been hindered however by the Appeals Court ruling that certain aspects of the Redwood Falls Right of Way Ordinance are unlawful. While the LMC has expressed an intention to appeal the matter to the Supreme Court, recent efforts by the League are focused at the Legislature which is considering parameters for local regulation in this session (Appendix B). CENTRAL ISSUE City staff concurs with the League's position that local regulations should be consistent and that legislation is likely to come forward which will clarify local authority. Unfortunately, construction season is approaching and firms have expressed an intention to begin installing new cables and equipment around the Twin Cities as soon as possible. Eagan has already been contacted by Brooks Fiber which proposes to install fiber optic cable in Eagan in a loop along Highway 149, Lone Oak Road, Eagandale Boulevard, Corporate Center Drive and Pilot Knob Road. If other cities are an indication, Brooks may be the first of a number of firms approaching the City in the upcoming building season. Therefore, the primary issue before the City is whether to move forward with the / (D preparation of an ordinance based on the current draft of the LMC/CEAM model ordinance or to wait for legislative action which may result in a law which takes effect well into this year's building season. Enacting an ordinance with the best information currently available would allow the City to enter the building season with construction standards in place and the responsibility of the parties defined. It appears feasible to draft an ordinance which permits City management of the rights of way under current law that does not contain the contested aspects of the Redwood Falls ordinance (Appendix C). Such an ordinance would necessarily address the health, safety and welfare of the community. Specifically, it would address such things as permit requirements, mapping and reporting obligations, standards for location and installation of equipment and lines, relocation of equipment, removal of abandoned equipment, right of way restoration, other obligations and remedies and recovery of costs. At such time as a statute is enacted, any differences between the two could be corrected by amending the ordinance. In the alternative, the City could withhold approval of its own ordinance until legislation is passed.. Because the Telecommunications Act permits cities to manage, but not preclude, entry to the rights of way, Brooks and any other firms could move forward in the meantime with simple right of way access permits from the responsible agencies. Absent an ordinance outlining the City's specific interests, such firms would site their facilities as they see fit. If the Council determines that it would be beneficial to move forward with an ordinance at this time, direction should be provided with respect to several policy issues. POLICY ISSUES 1. Applicability to Users of the Rights of Way - The model ordinance anticipates that it will be applicable to all users of the rights of way including not only telecommunications providers, but also private utilities. While private utilities may also be regulated by local franchises, the City may wish to have the same standards with respect to right of way use addressed in the ordinance to insure a level playing field. Franchises can address the unique aspects of the individual utilities separately. There is also an increasing incidence of private installation of lines for multiple site firms not wishing to use public telecommunications lines. Since such installations create the same health, safety and welfare concerns, it may be appropriate to apply the ordinance to these users as well. Issue: Should an ordinance apply to all users of the rights of way? 2. Design and Construction Standards - All installations of private facilities should meet applicable codes and industry standards. Many cities also wish to limit the unnecessary introduction of visual obstructions associated with multiple users of the rights of way. To achieve this, a typical requirement is that all new transmission and service lines be placed underground, unless the applicant can prove that it is not technically feasible to do so or that it would be unnecessarily disruptive to the public to do so. Issue: Should an ordinance require underground installation of lines and equipment wherever feasible? 3. Applicability to All Rights of Way - In addition to City rights of way, many service providers will make use of the state and county rights of way through Eagan. While it is not appropriate for the City to "manage" these rights of way, it may be desirable to have the same design and construction standards throughout the City. Issue: To the extent that it is possible, should an ordinance provide for such construction standards as undergrounding new lines and equipment when feasible throughout the City, regardless of the property owner? 4. Co -location and Common Trenching - Since part of the purpose of an ordinance would be to minimize disruption in the right of way and to maximize the orderliness and capacity of the right of way, it may be advisable to create incentives in the ordinance to co -locate or common trench lines and equipment when feasible. In the same way, it may be worthwhile to have incentives for firms to complete their installation work in association with City, county or state projects when the surface will be disturbed or the street opened anyway. Issue: Should an ordinance include means to encourage co -location, common trenching and coordination with municipal projects when feasible? 5. Responsibility for Accurate Mapping - Since it will be essential to have an accurate depiction of the location and elevation of all lines and equipment in the right of way, an ordinance will likely place responsibility for accurate mapping of the planned and as -built facilities with the right of way user. The consequences for inaccurate mapping may create service disruptions in Eagan and other communities or it may create a public safety threat as with the gas main explosion in the Dayton's Bluff area of St. Paul. An ordinance and permit process may need to address not only the responsibility of the applicant, but also attempt to protect the City in the event that inaccurate information results in damages to third parties. Issue: Should an ordinance identify penalties for inaccurate mapping and provide means to protect the City in the event that inaccurate mapping results in consequences for third parties? 6. Plant Relocation and Removal of Abandoned Facilities - As with utility franchises, users of the right of way under an ordinance would likely be required to relocate their lines and equipment at their own expense if it is required by a public improvement. This most often arises in road reconstruction or utility installation situations. It may also be appropriate to set standards for the removal of abandoned facilities. While it will be some time from now, as the rights of way r, become full, this may be a simple issue of space. In other circumstances, it may raise public safety issues. For example, a number of cities have reported costly delays in projects caused by the discovery of gas lines in excavations which later tum out to be abandoned, but have to be treated as if they are active. Issue. Should an ordinance address the removal of abandoned facilities as an obligation of the applicant and should it provide for financial guarantees that such removal will occur? 7. Recovery of Costs - The debate at the legislature will likely define what costs focal governments can recover in connection with activities in rights of way. At the present time, the industry does not oppose the recovery of administrative or inspections costs or additional costs of restoration of the right of way. Considerable debate does revolve around right of way user fees or occupancy fees, however. Whether the Council ultimately decides to implement permit fees or go further and implement user fees; it may be appropriate to craft an ordinance which reserves those rights at least until a statute is in place, even if they are not ultimately implemented. Issue: Should the ordinance reserve the right to charge permit fees and/or user fees in anticipation of a statute in this regard? If the Council directs preparation of an ordinance, staff and legal counsel will incorporate direction on these issues, develop a timeline for consideration, notify current and proposed users of the rights of way of the opportunity to participate in the process and schedule the item for Council consideration. Ass tant to the City Administrator * DRAFT II (CEAM 10/4/86)i League of Minnesota Cities MODEL ORDINANCE MANAGING THE PUBLIC RIGHTS OF WAY Summary Explanation I. PROBLEM. The public rights-of-way are corridors that were originally designed for transportation purposes and the conveyance of necessary public utilities. The space below the surface is a limited resource used by both public and private utilities. Over the years the demand for the use of this limited space has increased dramatically and the expected street life has been reduced thus increasing costs to the public significantly. The deregulation of the telecommunications industry is the latest example of the increasing demand being placed on the city rights-of-way. Each company wants to install a separate system in the public right-of-way (ROW), thus: 1) Demands to occupy the usable space threaten to exceed the limited space available in the existing ROW. 2) Because the systems are installed in shallow trenches, the street surface is restored in narrow "ribbons." This type of installation results in a shortening of the original design life of the street. This degradation results in the reduction in the quality of the street and an increase in costs to the property taxpayers. 3) The subsurface infrastructure is becoming increasingly complex, unless carefully managed and coordinated, additional street cuts and longer duration of street openings during the installation or repair of facilities will occur. These additional delays and detours will create additional hazards, obstructions, and cause inconvenience for motorists, businesses and residents. 4) Costs to all utilities in the ROW will increase significantly due to the greater care that is necessary when working in, around, over and under multiple utilities. Existing laws allow cities powers to protect and manage this scarce and valuable resource as well as preserve the ability for cities to recoup costs for these expenses. Many cities have adopted ordinances to protect their rights of way however, the telecommunications industry has argued that separate city ordinances defined by political boundaries significantly hinder their ability to provide services. II. OBJECTIVE. To provide an ordinance that can be adopted by cities across the state that allows cities to be good stewards on behalf of all our citizens: 1) By managing the ROW space above and below the surface to ensure safe and economical access to the City -owned water, storm drain and sanitary sewer systems; 2) By managing the paved street system to maximize the financial investment and ensure the structural integrity, quality and safety of the streets while minimizing obstructions and disruptions to the motoring public, businesses and residents alike; 3) By managing the space below the surface to ensure safe and economical access; 4) By minimizing the costs of maintenance, for ALL current and future users of the rights-of-way; 5) By addressing industry concerns about consistency among municipalities; and 6) by providing a method of reimbursement for the use of the rights-of-way that levels the playing field for both franchised and non -franchised utilities and protects property taxpayers while protecting public health, safety and convenience. a� Ill. SUMMARY OF PROPOSED ORDINANCE Public ROW users must register and pay a fee to cover costs of administration including among other things the costs of planning, record keeping, permit issuance, inspection, and management. Users without franchises must also commit to paying a reasonable fee for rights-of-way use set in the ordinance to level the playing field with franchised providers and reimburse taxpayers for a fair and proportional share of the city's investment in acquisition, development, and protection of the right-of- way. Proceeds collected are dedicated for acquisition, development, repair, replacement, and protection of public rights-of-way. Each rights-of-way user must provide best estimates of construction and major maintenance plans for five future years and the beginning and ending dates of all projects to be commenced during the next calendar year. This is to facilitate coordination and reduce frequency of ROW obstructions and excavations. In addition, ROW users must provide location and other data on current facilities. Future or reconstructed facilities will generally be required to be placed in identified corridors. Provision is made for dealing with unused and abandoned facilities. Provides for excavation and obstruction permits and fees. Excavation permits allow city administration of excavations and assure proper reconstruction. Obstruction permits and fees encourage minimization of disruption of surface traffic by giving incentives to coordinate street excavation with other scheduled projects and by decreasing the time the street is left open. Fees are dedicated to cover costs including administration, record keeping, permit issuance, inspection, and for acquisition, development, repair, replacement, and protection of public rights-of-way. ai ONS�i "WAR _72f, LMC-1 of Minnaaota Cities�� Cities promoting exceJ%nce Number 5 13.iietin February 5, 1997 Committee hears the practical side of rights of way management Tim Busse The House Regulated Industries and Energ) Committee continued their discussion of right of way manage- ment on Tuesday, this time hearing directly from the city officials most directly affected by the entire issue. Engineers John Maczko of St. Paul and Leonard Krumm of Minneapolis were joined by Redwood Falls City Admin- istrator Jeff Weldon and Engineer Ron Mannz in describing the practical realities of working in the rights of way. A management issue Weldon told the committee that even though his city is at the center of the current court battle, it's not as simple as Redwood Falls vs. US West. "This isn't a telecommunications issue, this is a right of way manage- ment issue," Weldon said. "The rights of way are a limited resource, and cities are responsible for making sure that resources is properly maintained." Weldon described the "land rush" occurring in Redwood Falls and in mam other cities across the state where utilities are installing cable or conduit beyond their current needs in anticipation of future demand. NAlile the planning could help reduce the number of future street cuts, it makes the problem of congestion that much worse now. Krumm used slides to dramati- cally illustrate the growing under- ground maze of telephone cables, electrical wires. gas pipes and city - owned water, sewer and storm drain pipes in downtown Minneapolis. He told the committee that utility com- pany lines often set in the way when cit) workers have to repair sewer or other city facilities underground, raising of the cost of those repairs. Maczko reported that St. Paul has 31 different utilities in the right of way - not just telecommunications. Maintaining structural integrity Speaking for the City Engineers Association of Minnesota (CEAM), Krumm and :Maczko told the commit- tee how difficult it was to maintain structural intemiy in streets that have been cut and patched. Krumm showed slide after slide of "ribbon cuts" -- often no more than 18 inches wide running the length of many cite blocks. Krumm said the patches made Page 3 — Surplus grows Page 4 — Spring floods? The state budget surplus grew by $81.5 million during November and December. The snow will eventually melt, and cities need to think now about Federal flood insurance. to repair the street to its original condition simply don't do the loo "No engineer in the w orld w ould say that this street is repaired to its original condition," Krumm told the committee, pointing to an patch less than two feet wide. "You can't pack the soil in a patch this wide. That patch will eventually fail." In addition to the obvious direct impacts, such as the cost of street repairs and infrastructure. CEANI is concerned with the less obvious indirect impacts of rights of way work. Maczko told the committee of in- creased risk for workers in a crowded right of way, increased congestion and delays for drivers, and increased air and noise pollution. He also described the increased liability that results when thick copper lines are replaced by thin. fiber optic lines carrying a staggering amount of information. ":A worker with a shovel couldn't cut through copper this thick." Ala zko said as he held a piece of 10 inch conduit above his head. "But a sbo\cl could easily cut this" he said as he held up a typical fiber optic cable. n,y thicker than a garden hose. Maczko also told the committee that CEAINJ agrees with industry arguments against different nghts of wav management ordinances in each city. Maczko said the work done b\ the League and CEAM on a model ordinance would help avoid that ,\pe of situation. He said that work - continues tiskcontinues cin the ordinance in re sponte to the recent Appeals Court del inion. and that the ordinance should be available soon. !t L 1 1-4 A League of Afinnesota Cities Cities promoting excellence Number 2 nv vv proposal seeks the middle ground Cities PY.Ileti*n Joel Jamnik League staff recently obtained a *,copy of a draft telecommunications bill requested by the Chair of the House Regulated Industries Committee, Representative Loren Jennings. According to Representative Jennings. the bill is a first attempt to find a middle ground between cities and utilities with regard to the use of public rights of way. The bill provides that a city may, by ordinance, require any person seeking to excavate or obstruct a city right of way for the purpose of provid- ing utility services to register with the city and obtain a use permit to do so. It also provides that a city may, by ordinance, require any person seeking to excavate or obstruct a city right of way for the purpose of providing utility services to obtain an excavation or obstruction permit to do so. Because the bill draft was modeled after existing and proposed city ordinances, the draft does not seem to apply to counties or townships, a point which will likely be addressed by broadening the bill to include other political subdivisions in addition to cities. Utility services include tele- graph, telephone, telecommunications, fiber-optic communications, cable communications. and fire and alarm communications. Use permits are meant to allow a user to use and occupy a city right of way, or to use any equipment located in a city right of way, for the purpose of operating the user's business. Excavation and obstruction permits are meant to grant permission to a utility to hinder free and open passage over the specified portion of a city right of way to the extent and for the duration specified in the permit. The draft bill provides that a city may charge a permit fee for use permits which is calculated to recoup the city's administrative costs caused by the use of the city's right of way. Cities could also charge a fee for excavation or obstruction permits, which is calculated to recoup the city's administrative and degradation costs cause by the excavation or obstruction of the city's right of way. These fees are cost based, and cover only the direct and indirect costs of the proposed use or obstruction, including the accelerated depreciation of the street. Acquisition costs or fair market property values would not seem to be allowed under the draft for establishing the charge to use or occupy the public asset. j Page 3—Newly Elected ; Page 5—Cities Spend Wisely Time is running out. Register now Each city budget decision is as for the 1997 Conference for Newly unique as the city itself. See page Elected Officials. 5 for examples. z3 January 15, 1991 The bill draft contemplates that fees for both permits would be limited to no more than an as yet unspecified amount per square foot per city resident per month of use or obstruction. This provision, as explained by the author, is intended to recognize the difference between certain cities. Representative Jennings indicated that he isn't fully comfortable with this particular limitation because it doesn't seem to provide enough flexibility for indi- vidual situations and may become a minimum or floor rather than a maximum or ceiling for local fees. The bill expressly states that a city may not charge any other fee for the provision of utility services unless specifically authorized to do so by state or federal law. This provision is intended to overturn the Redwood County District Court's recognition of cities' authority to charge franchise fees as well as some cities' efforts to minimize interference with traffic by charging a "disruption fee" based on the length of time of the obstruction and the number of vehicles forced to detour or avoid the obstruction. The bill contains additional authority to require performance and removal bonds or security from utilities, registration information. and permit administration procedures. A significant feature of the bill would require the Minnesota Public Utilities Commission to adopt uniform statewide standards and rules to be enforced by the local authorities which must include, at a minimum: ROW continued on page 6 W31 '97 P3: c1 E Lit mL11i'LS,— - h."11 e �vith POG t rk *1"e adopted a policy chit calls for the After maadbV ft eiticle -ft Price " � of the Price of (3ovettment as It '(430ernrnent reWition: prittaer" in applies to lord ggvrsratnettta: But alms Galas Brriic64 You ` Y dih* dao because oar state and !local go*+raa- marts are � timmo Orta of �3ovcrawn Imo) aoua�a good Elate,! pliumitig tool. shareii rev+atares and shed tesponst- In fict,;11-Was intended;io bE fool to ii ea ra state lorul govena- bilifaes, tiro Price of(lov=uoae t would incomplete if i< fogWed Q* on i6w rovlerrues over tioWfof long-term t=oe zbsveaues. planniri j6d policy Aikiug. .1 iipforpunately, ifie lav✓ is rot WeyB to remedy !ways ; zng used as,intended, the Fom on tang-te%m trwrds for of ictvcrnment iS �otrietirsl�Gs r-makht3. PqP can be oaeful ibeing usbd Ito try to iurl�ose, levyttmits to help Citizens !clad policy makers =sad to rachet down' I •luting bye decide whether they should scale back itidividt;�i local gove�riniaeiiM, r ard- or iaczease gaverurncni r+espnusibilities, ;joss orte' needs of tlic affected; s but it is as an accurite measure of short-term local govert'ao'ient rrveatres. 6eornmutitties. But,; fci vadety of c�iaasass;!}!re Price of bover'autetit is not 7iie data used for ttorppropsrty tax jsa act'Ate measnrc bfishort-term local > s, like tees ono enWprise fund ' �overrurterii revenue decisions. revenues, are two- to, hates fiears old. Bic' se of the misuse of the Price T sate has to l?ro]e ton -tax ' ;;of' (3av ' ru law, city officials revenues bested on those older mrmbom R-96% eottttnwid h"M MIR 1 • S�atewide Minirfwm stwiduds of V versality and - intcrrortnec6ity; is • description of the p�drinit Ir;ttoedures said regttitrrttento; • . ,leruuctrnn' rmquir+eiYient; • PrCvisiotts`l6iensure that all ;Q gviders of.silwlar utility 'services are subiect to similar cMMe is ' • rJ iforin qoft, 6IL400 and 'aha hty standsifda dnsuriag that s62, authori66 miain comal ivfr tate use~ Of atgtiipment and fac`lilities Iocc' & sd on or 1i public Pmpperty aiw, jptlblic rigtts of • >lifotrn iratrd ardx flat6ill -e dopheiHon of equipment ;.W facilities located on public ;property or irl public rig6 of • VOY that arc T"exury dor xonstrxting,; operating, main- jrnming, offeririi, Or deliv Was zany utility scrrrices; and • Procedures fbr `the sjtpeditlous Moludons oi•tiisPuttrt between and !teal author•i- tliw, Wn appesl to the aada- 'mi�cR. The draft bill, which has not yet been intt9004 is e±vailable from the League's fax liburuy,_ (612) 215-4039. the League's Rigfa of Way Task Fond met Friday tlo iiisouss the Leap's -espouse to the draft, while taste foto members were rot able b eomp)ote a thorough inview of the draft due to tate short time between receipt of the bill and tits taste fart meeting, members were rftved to we'tast tate draft recognizes city aothprky over rights of way. however, soarantial eortoem was volod iwer Rite limita- tion to specific direct and irr k&I costs -taloa' chart the value of the asset to the user, and tate projected role of alae Mirmetsoo Public Utilities Commission. P.2 This mean char if tm-tox revanies dip in a year, cities am likely to kvy more to make up for the shortUl. 7be POO memm will show an irictnese in total city revenues.'i;tae wror.vill act be corrected until the actual non -tax mveauc daps art available two to thm ytM down the road. In addition, $ince POO measures statewide avetWo, individual local govanmdats should not be jttW by tate state. POG cat offer uxfirl bftr motion to local policy mdcen and taxpayem who dwid decide the pnaper level of taxation in their individual c onumnities given their unique circumstances. Ma more Rwad% bald of txxes. POO does not measure state laid to local gavel Ments as load revetnros. 'X'bmfcre, if the stale were to cut IAA aid cities welt to fnccease their levies to maim up the difference, the POG measure would show incased city revenues even though the tAl dollars cities spend would amain constant. Switching POO to a spending focus would r'egaim that actual local govern- ment sperulirtg data would teed to be. Collected in a more timel3+ riierrneir than the two to three year 4 that ctttre dy exists. A,mead POG to r4fied cbm That may affect spending. Revenue targets should reflect dunges in service responsibilities and demand Arjxx- otiong, population Smyth, and swWb- ing re"sibilitties from one levet of government m another ahWW be accoomted for.'htis okay best be dome in the to rgel-setting process. improve the !tame and rereaue measures. 'Ib give polky makers and citizens a better picture of the 6=W out-of-pocket cost of goven=ritM the price measure should iaick de personal incrotm sources that are Cavendy excluded such as pensloors, capital pins, and corporate ptof>ts.'llse Legislamm should also recoesidex imloding hi,g w education tuition and some other user fees in poveram"Sw revenues if Poo is to remain focused on revenue rather than spendin& r pad g. LMC Cities B� 01-31-97 03:' APPENDIX C St. Paul adopts right of way ordinance Ann Higgins On Wednesday. December 4, the St. Paul City Council adopted new controls that will give the public works department the authority necessary to regulate and issue permits for use of public rights of way. The new regula- tions will help the city reduce multiple entries and damage from repeated excavation. The cite council voted unani- mously to adopt changes to city ordinances that: • Provide for reasonable conditions and performance requirements to protect public health. safety and welfare: • Establish excavation. restoration, user and obstruction requirements: • Authorize the cite to charge fees related to the cost insuring structural integrity and repair of its rights of way. and providing incentives to keep streets, alleys, sidewalks, etc.. free of unnecessary obstructions --including costs incurred as a result of rapid deterioration (degradation) of the streets. In addition. a third ordinance establishes terns and conditions for the grant of a franchise to telecommunica- tions companies providing services within the city. The ordinance is in compliance with specific provisions in the St. Paul City Charter which require that all companies using the public right of way to provide telecommunica- tions services to be granted a franchise for that purpose. The city council agreed that the ordinances are necessary to address incrcasing concerns over the early and severe deterioration of streets as a result of multiple entries into the right of way. The ordinances are intended to restore the balance between the financial burden placed on local property taxpayers and the costs which should be paid by companies using public rights of way profiting from the services they deliver. The cities of St. Paul and Minne- apolis have agreed to work with utilities. cable and phone companies as December 18, 1996 well as private fiber contractors and city departments that use public rights of way in the development of a fee structure that is to be presented to both city councils for their approval within 90 days. Meetings will be held in January with industry representatives to arrive at the rationale and level of fees to be charged. Specifics of the St. Paul ordinance include the creation of a Utility Coordination Committee to be com- posed of those providers which have equipment in the right of way. The commission will recommend ways in which greater care can be taken to improve construction activities and to provide information to the city on issues related to right of way manage- ment and costs. The ordinances require that users pay a $1 user fee, pay a removal bond that would cover a portion of the cost of removing equipment and restoring the right of way, and include a number of other registration requirements. Ir Court of Appeals hears arguments in Redwood Falls rights of way case Ann Higgins League of Minnesota Cities attorney Carla Hey] argued in support of local authority to regulate use of public rights of way before the Minnesota Court of Appeals on Thursday, December 18. Representing the City of Redwood Falls and the concerns of LMC member cities, Hey] asked the Court to uphold a May 31 district court decision that validated the city's authority to adopt and enforce a local ordinance to manage a valuable public asset. US West attorney Jeffrey Bork presented the case for the telecommunications giant. The Minnesota Department of Public Service and the Minnesota Public Utilities Commission filed a joint amicus brief in the case, and also argued in support of US West. During his rebuttal argument. Bork gave a surprising endorsement to St. Paul's recently enacted rights of way ordinance. In objecting to the fees imposed in Redwood Falls, Bork noted that the fees in the St. Paul ordinance are more to US West's liking because the fees are designed to recover city costs. The Court of Appeals has 90 days to choose between one of three possible outcomes. The Court could: • Uphold the District Court decision; • Return the case to district court where Redwood Falls would have to show evidence that the ordinance requirements are reasonable and explain how the requirements relate to the safe and convenient use of the right of way; • Rule that the MPUC has control over all matters of the construction of lines and that cities don't have the authority to require a franchise or charge franchise fees when regulation telecommunications companies. The three-judge panel reviewing the case questioned Hey] on the context in which the decision is to be rendered. Their questions indicated their interest in how the city's exercise of regulatory authority (encasement in concrete, indemnifi- cation. charging of fees to recover costs, etc.) related to local responsibility for public safety and the convenient use of the rights of way. Heyl pointed out that the legal issue before the court -- whether cities have the authority to adopt these reasonable regulations -- is actually quite narrow. She noted that Redwood Falls and theLeague have claimed all along that Minnesota law allows cities to adopt reasonable controls over the use of public thorough- fares. Hey] also noted that US West appears to be asking for less regulation than other companies. such as electric and gas utilities. which are subject to such local requirements. ^ f Page 5 C�� J M"'F "V- 4M;...,a Cilias Cilias FrVM&t "==&"W Number 4 IBLiletin January 29, 1991 Appeals Court reverses Redwood Falls case Joel Jamnik The Minnesota Court of Appeals today reversed the District Court in the US VVESTiCity of Redwood Falls case, ruling that cities do not have authority to franchise telephone companies and may not require a telephone company to place its fiber optic cables in concrete duct bank. The court determined that cities retain only limited authority regarding the placement or location of telephone equipment or facilities, and may not charge a franchise fee or impose construction standards on telephone companies. "We're obviously disappointed, and we certainly disagree with the Appeals Court's ruling;' said Jim Miller. League of Minnesota Cities Executive Director. "lt's clear. now more than ever, that the legislature needs to address critical issues of local control of rights of way management, cost recovery and fair and equitable treatment of rights of way users, including telecommunications providers.' The League is currently reviewing the Appeals Court opinion to deter- mine whether to appeal the decision to the Minnesota Supreme Court. Page 3 — Governor's Budget "Rights of way are a public asset, paid for and maintained by tax dollars;" said Miller. "Profit-making companies should not have carte blanch use of a public asset with no responsibility or compensation to the tax payer for that use." Facts of the case The case is the result of a 1990 Redwood Falls ordinance that granted US NEST a franchise to use city streets. The ordinance required US VEST to pay an annual franchise fee for installing telephone lines in the city's rights of way and pay an annual easement fee for each location of telephone line construction. The ordinance also required US West to place their fragile fiber optic telephone lines in a concrete duct or agree to limit the liability of any person cutting a fiber optic telephone line to $2,000. In 1995, US WEST refused to comply with the ordinance provisions and Redwood Falls denied an excava- tion permit for a fiber optic line leading to the city of Morton. US West sued Redwood Falls, and asked the District Court to prevent the city from enforcing the ordinance. In late May, the District Court dismissed the US WEST complaint and US WEST appealed. Page 7 — Conference Change Governor Arne Carlson's 1998-99 The location of the St. Paul budget includes four items cities Conference for Newly Elected need to keep an eye on. Officials has changed. Q�7 The Appeals Court decision One of the arguments in this case has centered around whether cities have the authority to issue franchises: In the early 1900s, the Legislature authorized cities to regulate and franchise public service corporations. including telephone companies. In 1915, the Legislature provided for state regulation of telephone compa- nies, but never revised the pre%ious statutes granting city authority. The Appeals Court concluded that "although these statutes continue to authorize gas and electric franchises. they no longer govern telephone franchises" Judge James Harten reasoned that the 1915 statute "eN,- dences a legislative intent to abolish the right of municipalities to require a franchise from a telephone company... our conclusion that the city has no authority to require a telephone franchise effectively resolves the associated issue regarding the city's easement requirements." The court further concluded that although the 1915 statute expressly retained the authority for cities to regulate the location of structures or equipment on, above, or below streets, alleys and public grounds, "[t]his limited authority to regulate the location of telephone lines does not encompass the city's requirement that US WEST encase its fiber optic lines in concrete duct or otherwise agree to a limitation of liability:" l JAN 31„ 197 02:32PM LEAGUE OF MN CITIES P.I mc - IDA YFAX Vol-2,No.4 FR) CEO "" 8"' A weekdy legislative updsts from the League of Minrusaota Chies January 31, 1997 League to appeal Redwood Falls decision Legislation readied by League, MTA The league will challenge this week's Appeals Court decision which reversed the District Court In the LOS WEST/City of Redwood Falls case. The next venue will be the Minnesota Supreme Court. "We're obviously disappointed, and we certainly disagree with the Appeals Court's ruling,' said Jim Miller, League of Minnesota Cities Executive Director. "It's dear: now more than ever. that the legislature needs to address critical issues of local control of rights of way management, cost recovery and fair and equitable treatment of rigtlts of way users, including telecommunications providers.' Earlier this week, the Minne- sota Court of Appeals ruled that cities do not have authority to franchise telephone companies and may not require a telephone company to place Its fiber optic cables In a concrete duct bank. Logislative a e4vides Despite the Appeals Court ruling and imminent League appeal, the rights of way issue will ultimately be decided by the legWature. To date, H.F. 322 (Jennings) Is the only right of way bill to be Introduced. However, committees in both the House and Senate heats background testimony on rights of way and will likely con- sider additional lbr mal legislation as early as next week. Miller testified before both the House Regulated Industries & Energy Commitbw and the Senate Jobs, Energy and Community Develop- ment Committee in the past 10 days. Industry representatives also ,presented their side of the issue before the committees. The League Is currently working on draft legislation that will clarify city roles and responsibili- ties in managing the rights of way, According to sources, the Minne- sota Telephone Association has a bill ready that mirrors the onerous Colorado laws. In Colorado, the home state of US West, cities are allowed to issue permits but basically have no other rights to manage the public rights of way, Pick up the Trane, give `em a call Listed below are the Representatives and Senators on the Commit- tees that will hear ROW legislation. While we don't know exactly what that legislation will took like, please contact your iegisators and; • Express your strong displeasure with the Appeals Court decision. - Encourage them to consider the concerns of cities and local tax payers. • Highlight examples of rights of way management problems in your city. House Regulated Industrie 6i Senaln Jobs, Energy and Fr wuy Commr6mse emmw" Development Jennings (chair) 2WO518 Novak (chelr} 204334 Delmont (vice) 2964226 Kelley, S.P.(via) 267-6065 ozment 296.4308 Anderson 296-5537 Anderson, I. 298-4936 Beckman 20&6713 Arxierson, B. 296-6063 Fredsik*son 2954138 63relling 29&5387 Higgins 296-4302 Hausman 296-3824 Janezich 296-8017 Hitty 2964308 Johnon, O.H. 287-8062 Holsten 296.3018 Johnson, D.J. 296.88E 1 Kahn 298-4257 Johnson, J.B. 296.63419 Kelso 298-1072 Kelly, R. C. 296.6286 Kappendreyer 2W4748 Lesewski 296.4126 Olson, E. 296-4285 Limmer 298-2159 Olen, M. 2064237 Metwn 2WA370 Osskop 296-9236 Murphy 2964264 Pelowski 294-8837 ourods 296.5981 Ackerman 29&9303 Psriseau 296.5252 Wagenius 298-4200 Runbeck 298-1263 WON 296-5185 screevei 298-3903 Workman 296-5063¢, Aar Awe rVemud" PA 0* fthAms 1'e i w"4 C.IM1rw da mabo efow Lagwe dif R-973% Clan In"Owaw"MAI Rdadow t[ 01-31-97 02:44PM P002 #18 city of Cagan TO: HONORABLE MAYOR & CITY COUNCILMEMBERS FROM. CITY ADMINISTRATOR HEDGES DATE: JANUARY 9,1997 SUBJECT: WORK PROGRAMTRIORITIZE GOALS FOR 1997 MEMO As we look toward a new year, there are a number of goals that have been suggested by the City Council to work on during the calendar year. It is suggested that these goals, and any other the City Council would like to include, be discussed at a special work session and the appropriate priority be established for each of the goals. The discussion and prioritization will provide certain boundaries and direction for the City Administrator and Department Heads. It is suggested that we have a work session in late January, followed by a retreat to further address the specifics and then provide a timeframe for implementation. The following are goals the City Administrator has recorded as a result of listening to City Council discussion this fall and recognizing other issues that will need the attention of the City Council and management team. Legislative Program—The month of January will be busy with legislative meetings, including the Dakota County Legislative Delegation, MLC, AMM and LMC. The legislation regarding the comprehensive guide plan/zoning conformance is a high priority. Consider more meetings with the City's Legislative Delegation. 2. D -II Study --Following notification to all property owners who have land classified as D -II (comprehensive guide plan), the City will work with these property owners to determine whether there is a mutual interest to rezone/ comp guide the property to D-1 (single-family use). 3. Information Technology—The internal network system began for City departments in late 1996. Pians for 1997 include a collaborative effort with Eagan High School to produce an active web site. City information will be made available on the Internet, i.e. City odes, public meeting information, etc. E-mail will also be used as a means of communication. 4. Public Access Programming—City Councilmembers have expressed a desire to review the pros and cons of assuming full responsibilities for public access from the franchisee to the Cities of Eagan and Burnsville. Efforts could be made to coordinate service with the schools. 5. Public Utility Franchise Renewals—As a result of deregulation, local governments have concern about the management of public rights-of- way. The renegotiation of franchises and 'regulation" of public rights-of- way are public policy issues. Samples of rights-of-way ordinances are available from the cable association, LMC and the City of St. Paul. 6. Community Visioning Process—In an effort to plan for the future, consideration has been given to a visioning process where City government will collaborate with other governmental jurisdictions and the community through a visioning process. This is an opportunity to strategize how the City can continue to work as a partner with other jurisdictions and agencies to best serve its citizen base. 7. Elected Officials Forum—City Councilmember Masin has suggested January 23 as a possible date for another elected officials forum, similar to the one that was held in June, 1996. There were elected officials from Dakota County, local schools; our State legislative delegation and City Council present to discuss youth and other issues of common interest. 8. Neighborhoods—Create a City link with neighborhoods to improve how communications and information about local government flows throughout the community. Comprehensive Guide Plan/Zoning Ordinance Update --A restudy of the comprehensive guide plan and zoning ordinance is a major priority for 1997. This process could be linked with the community visioning and neighborhood reach -out. 10. Trucking Study—The trucking study was implemented in 1996 and is proceeding through a process that involves the trucking industry and or neighborhoods in Northern Eagan. The next meeting is scheduled for January 13 with the industry, users and neighborhoods. 11. Organizational Redefinition—Due to information technology, a constant reminder of the term 'reinventing government,' a review of how City government is performing service delivery to citizens, the number of employees and responsibilities will be reviewed as a part of the next budgeting process. a � 12. Three Year Budget—To provide greater fiscal planning, a three-year budget will be introduced during 1997 for calendar years 1998-2000. 13. Retreat—During February, the Council and management team traditionally holds a retreat to review goals and a work program for the remainder of the year. 14. Senior Housing Objectives—A second senior housing project will be given further consideration during 1997 at either the Oak Woods of Eagan site on Cliff Road or at a new site located on Town Centre Drive, south of the Eagan Mann Theater complex. 15. Other—There are other issues that require public policy direction by the City Council that are not considered major goals or work programs: Membership in NIC—From time to time the City has given consideration to membership in the National League of Cities organization. The community has benefited by its elected officials attending the National League of Cities Conferences, we continue to receive the newsletters and there is a question as to whether we should become a full member. The Economic Development Partnership—There is public policy direction necessary as it relates to the Economic Development Partnership. • Annual Report—There has been some expressed interest by staff about condensing the rather lengthy annual report into a meaningful eight to ten page report to share with our citizens. This report would provide information to our citizens regarding the previous year of activities (service delivery) and the goals the Council has established for the current year. 1. have attached a copy of the City's Mission Statement which should be reviewed on an annual basis. Your staff, as always, looks forward to a new year and is ready for meeting the many challenges that go with being a major public service provider. To paraphrase the rather esteemed Dr. John Carver, who leads many elected official leadership training sessions, the management team can be most effective when there are certain boundaries established. As City Administrator, it would be helpful to review these goals and provide some boundaries and expectations as to what staff is to perform, including timetables, etc. � L=� a "=====— City Administra & Attachment TLH/vmd CITY OF EAGAN VISION STATEMENT VIEW OF MISSION The City of Eagan exists to serve the needs and interests of its present and future citizens by providing quality public services, personal and property protection, a healthy environment, a stable tax base, attractive amenities, a sense of community and ethical representation. The City will endeavor to reflect community values in an effective, responsible, efficient and visionary manner. VIEW OF CONSTITUENTS The City of Eagan considers everyone with whom it interacts as a constituent and as a customer. First and foremost among these customers is its citizens. To serve its customers, the City is committed to equal representation, personal dignity, the value of diverse opinions, democratic participation and the importance of honest feedback. In its interactions with citizens and all other constituents, the City of Eagan is committed to the qualities of fairness, openness and responsiveness. Quality customer service will be central to all interactions with the City. VIEW OF SERVICE DELIVERY The City of Eagan is committed to being responsive in meeting the needs of the community within the fiscal parameters -the -community will support. Services will be provided effectively and efficiently for the quality and level of service desired by the public, through the employment of highly -qualified, creative, dedicated employees and the application of the highest standards of responsible fiscal management. VIEW OF QUALITY OF LIFE The City of Eagan encourages the maintenance and enhancement of all aspects of its quality of life. This includes its commitment to economic opportunity, educational excellence, efficient service delivery, environmental integrity, recreational .variety, attractive neighborhoods and community pride. VIEW OF THE ENVIRONMENT The City of Eagan will proactively protect its natural environment. The land, water and air, as well as the things which live in them and on them, are important assets to be preserved and enhanced for our own enjoyment and well-being and that of future generations. The City's role with respect to the environment shall be that of active steward and conservator. Pollution, abuse of the environment and unnecessary modifications of the environment will be opposed. The City, collectively and individually, will endeavor to maintain the environment, mitigate impacts on it and enhance it to the extent possible. 3 1 VIEW OF DEVELOPMENT The City of Eagan is committed to encouraging and fostering orderly, high-quality development and redevelopment. - The City will maintain a balanced variety of housing types, diversity of commercial and industrial development and effective integration of land use types. Eagan is planned to bee a fully developed city in the future and efforts will be made to effect that growth in a rational, deliberate manner in the best interests of all residents, both present and future. The City will maintain its standards while recognizing the need to be sufficiently flexible and creative to permit quality development to occur. VIEW OF ECONOMIC VITALITY The City of Eagan recognizes the need to foster an attractive and desireable business environment in order to ensure employment opportunities for its citizens, a strong tax base, retail services for its citizens and economic opportunities for entrepreneurs. The City of Eagan will encourage the formation of head of household jobs, clean industries, economic diversity, commercial stability and effective relationships with the regional, state, national and international economies. VIEW OF ROLE IN THE REGION AND STATE The City of Eagan recognizes the importance and value of intercommunity and intergovernmental relationships in the advancement of the interests of its constituents. In this regard, the City is committed to active participation in activities and organizations which further these interests. The City is further committed to balancing its interests with the needs of the region and the state and will conduct its affairs in a manner that recognizes the interests of its neighbors. VIEW OF IMAGE The City of Eagan will encourage community identity and community and neighborhood pride by fostering an image of quality in its built environment and excellence in its services and amenities. VIEW OF THE FUTURE The City of Eagan recognizes that its future is shaped by the decisions made today. It is also bounded by current circumstances and their dynamics over time. While growth and economic vitality continue, services must continually adapt over time to meet the changing needs of a diverse population, technological change and a global, service -based economy. To meet these needs, the City must plan with vision, encourage balanced services and welcome orderly change. EAGAN SPECIAL CITY COUNCIL MEETING MINUTES; JANUARY 28, 1997 PAGE 3 WORK PROGRAM/GOALS FOR 1997 City Administrator Hedges stated that there are a number of goals that have been suggested by the City Council to work on during calendar year 1997. The purpose for reviewing the draft work program for 1997 is to generate discussion so at a future meeting the City Council can prioritize the goals. He stated that some of the goals listed include projects the staff is currently working on such as the D -II Study, information technology, the Trucking Study and senior housing objectives. The City Administrator further stated that it would be helpful if members of the City Council have goals they would like added to the list for discussion that they be shared with the City Council at this meeting or a future workshop. City Councilmember Blomquist stated that it is difficult to discuss a comprehensive work program with a member of the City Council missing and suggested that any direction regarding a work program and adoption of goals be continued until the entire City Council is present. She further stated that there are three (3) immediate goals that should be given consideration and they are 1) provide specific direction to the advisory commissions on their goals for this calendar year; 2) the Comprehensive Guide Plan update and the proposed Comprehensive Guide Plan/zoning legislation is a critical priority; and 3) the City Council needs to provide leadership direction to staff. Mayor Egan stated that the 1997 budget process provides a guideline for spending and staffing levels and, in many cases, requires a zero base analysis to determine if certain jobs are replaced. City Councilmember Wachter commended the budget process stating that despite the growth in programs and population the tax capacity rate has been reduced in the past two (2) years. He further stated that he is committed to keeping taxes down which is an important goal for 1997. City Councilmember Blomquist stated that her reason for asking questions and analyzing the bills is to determine whether certain expenditures are necessary and further if the City might consider a more efficient purchasing program that would provide greater efficiencies and savings. She further stated that it would be helpful to review the spending by department. City Councilmember Masin stated that the budget is broken out by department and reviewed closely by the City Council when the budget is prepared in the fall of each year. City Councilmember Wachter stated that he supports the concept of a condensed annual report to share with the community. He suggested that this be given a high priority for 1997 to include an annual report to the citizens for 1996. City Councilmember Blomquist stated that the D -II Study and Comprehensive Guide Plan will be given joint consideration during 1997. City Councilmember Wachter stated that additional analysis should be given to the Borchert Ingersoll property if the City is to continue consideration for ownership of North Park. He further stated that he is concerned about the ground water and soil contaminants which may not be conducive as a City parkland. City Administrator Hedges stated that he is planning a meeting with Carl Neu who has provided the facilitation at the last three (3) City Council management retreats. City Councilmember Blomquist stated that she is concerned about the cost for a retreat and whether a facilitator is necessary. Mayor Egan stated that using an outside facilitator has been an excellent process during the past several years. City Councilmember Wachter stated that he has appreciated the objectivity a facilitator provides for the Council/staff retreats. City Councilmember Masin stated that the visioning process could be an element if there is consensus to move ahead with the program in 1997. City Councilmember Blomquist stated that the most important consideration is to be a team and get back in step as a community. City Councilmember Wachter stated that he continues to have concerns about the City joining the Dakota County Economic Development Partnership. He further stated that the money should be spent 33 EAGAN SPECIAL CITY COUNCIL MEETING MINUTES, JANUARY 28, 1997 PAGE 4 locally. Mayor Egan stated that he would normally agree; however, $5,400 of the total $6,400 membership in the Partnership is for GIS services and will be spent whether the City is or is not a member of that organization. He stated for the $1,000 difference he would like to participate in the Partnership in 1997 and evaluate the effectiveness when the 1998 budget is developed this coming fall. City Councilmember Wachter stated that he was not in agreement with the Partnership's request to contact large business in Eagan and ask for their participation and membership in the Partnership. He further stated that there is so much emphasis on membership and, in his opinion, very little known results. Mayor Egan stated that he met with the EDC and they are supporting the partnership which is an important consideration for the City Council. He further stated that he is familiar with goals the Partnership has to support training opportunities for those in the job market. Mayor Egan further stated that there is a problem with ongoing communication by the Partnership which he would like to see improved during the next calendar year. City Councilmember Masin stated that she would like to see the City continue with the Dakota County Economic Development Partnership during 1997 by being an active member and participant and then evaluate the City's benefit at the end of this year. City Councilmember Blomquist stated that since she was appointed as the City Council's representative she will attend the meetings and provide her opinion about the cost benefit of the Partnership to the City. City Administrator Hedges stated that unless he is otherwise advised by the City Council the City will be a full member of the Dakota County Economic Development Partnership for 1997 with the understanding that $5,400 of the $6,400 membership dues is received in value for GIS services. Mayor Egan thanked the City Administrator for the work program outline for 1997 and with the consensus of the City Council directed the prioritization of goals for the work program to be considered at a workshop in late February. City Councilmember Blomquist suggested that the Mission Statement be revised to a paragraph which is more useful for use throughout the community. Mayor Egan stated that he is supportive of a retreat and would like to consider a date that would avoid any conflict with City Councilmember Awada's pregnancy due date in early March. OTHER BUSINESS There were no items for other business. The meeting adjourned at approximately 7:30 p.m. Date City Clerk TLH