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HomeMy WebLinkAboutA002 - Council Action Form dated October 13, 1998 ITEM # 35 DATE: OCTOBER 13,1998 COUNCIL ACTION FORM SUBJECT: RIGHT-OF-WAY MANAGEMENT ORDINANCE BACKGROUND: The City has traditionally been served by monopolies providing various types of utility services. With a limited number of right-of-way users and the cooperation of the various utilities, the City has generally been able to manage the City rights-of-way with few conflicts. The Federal Telecommunications Act of 1996 deregulated the telecommunications industry, which could now lead to multiple providers of telecommunication lines in, over, and under the City's rights-of-way. Advances in communications technology are also leading other entities, such as ISU and the Iowa Communications Network, to install facilities in and across City rights-of-way. Deregulation of electric utilities may add further to the number of right-of-way users. Cities across the state and the nation have responded to these changes by adopting right- of-way management ordinances. These ordinances are designed to make certain that the public's interests are protected while providing for the orderly use of rights-of-way by an increasing number of users. Even though recent state legislation eliminated Iowa cities' ability to charge private utilities for the value of public rights-of-way which they use, it preserved cities' ability to regulate and manage the use of their public rights-of-way. The regulations do allow for the collection of fees for managing the rights-of-way. In response to these changing dynamics, staff has prepared the attached ordinance to regulate and manage use of the City's rights-of-way. Highlights of the ordinance include the following: • Regulated "right-of-way users" are defined as non-City and non-Iowa State University entities which own or operate facilities within City rights-of-way to provide water, drainage, sanitary sewage, electric, steam, gas, or electronic communications services. This includes all cable t.v. and telecommunication providers. • All right-of-way users must register with the City. This includes all City facilities as well as Iowa State University. • Permits to construct specific improvements within City right-of-way are required. These permits involve compliance with all applicable City policies and restoration of right-of-way surfaces. • Right-of-way users themselves are responsible for getting other users to review permit applications for conflicts with their facilities. • Users must provide "as built" records of their utility installations to the Public Works Department. • The City Council may set fees registration and/or permit fees commensurate with costs incurred by the City. Registration fees could be charged to all users, including City utilities. Permit fees would be charged only to non-City and non- I.S.U. users. (Costs of coordination for City activities within the rights-of-way are already charged to the respective utilities.) At the present time, no fees are recommended until staff is able to better understand the extent of time and resources that are necessary to administer the ordinance. However, the proposed ordinance allows the City to initiate one or both of these fees at any time in the future. • The electric utility's control over pole attachments and its ability to set an appropriate pole attachment fee are maintained in this ordinance. • The ordinance grants right-of-way users a revocable license, rather than an easement, to use the City's rights-of-way. The City has retained the right to direct right-of-way users to relocate their facilities when necessary to provide for the construction, repair or maintenance, or installation of any City public improvement. The proposed ordinance includes provisions from many other cities' ordinances, as well as from various model ordinances and agreements. This ordinance is intended to apply to all right-of-way users, with the exception of the City and Iowa State University, including those with franchises, and other state or federal agencies with authorization to provide utility services. Iowa State University is exempted from the permit requirements due to their unique relationship with the City. This relationship stems from the University's ability to make land available for City utility needs and other public uses. While not covered by this ordinance, the acquisition of future property rights with I.S.U. will be negotiated on a case-by-case basis and will be reduced to separate agreements. Implementation of the ordinance requirements will fall to the Engineering Division of the Public Works Department since it is their responsibility to maintain right of way records. Because the right of way user initiating the permit request is required to make contact with all other registered right of way users concerning the proposed project, the initial work for the Engineering Division will be coordination and record keeping. The program demands will be evaluated after one year to determine what, if any, modifications need to be made and if the time required to administer the program requires additional staff. If this is the case, a fee structure to pay for the costs of the program can be initiated. After the Council reviewed the draft ordinance in late June, staff has been in contact with major right of way users to discuss the proposed program. The users had several suggestions for clarification and improvement which are included in the final proposed ordinance. ALTERNATIVES: 1. Approve the ordinance, which will consolidate a number of existing regulations into a single ordinance, as well as further detail the requirements for use of the City's rights of way. This alternative will not involve the implementation of a fee structure at this time. 2. Approve the ordinance, which will consolidate a number of existing regulations into a single ordinance, as well as further detail the requirements for use of the City's rights of way. This alternative would direct the implementation of a fee structure at this time. 3. Reject the ordinance, which will leave the regulations dealing with use of the City's rights of ways somewhat fragmented, and with the expectation of additional users coming forward in the future, control of the rights of way could be compromised. MANAGER'S RECOMMENDATION: It is recommended by the City Manager that the City Council accept alternative number 1 and initiate formal regulation of the City's rights of way by adopting the proposed right of way ordinance without a fee structure at this time. COUNCIL ACTION: