Focus on New Laws: Right-of-Way Management for Small Wireless Facilities

The final bill language preserves local authority over small cell wireless companies’ access to the public right of way.
(Published Jun 19, 2017)

A new law was enacted during the 2017 legislative session that would allow small cell wireless equipment to be placed on city-owned infrastructure in the public right of way.

As introduced, the bill would have allowed wireless companies unregulated access to the public right of way, but the League strongly opposed the bill and actively negotiated new language to maintain local control. The resulting bill language successfully preserves local authority over access to the public right of way.

The negotiated bill language was included in Chapter 94, the omnibus jobs and economic growth appropriations act. Article 9 describes the new law, and the notable sections are outlined below.

Zoning (Section 14)
Local government units retain ability to deny permits for reasonable public health, welfare, and safety reasons with no definitions or limitations on those reasons. Minimum separation distances are allowed between new wireless support structures.

Permitted use (Section 12)
General presumption of permitted use exists in all zoning districts except for being able to require a conditional use permit for districts zoned residential or historical districts established either by federal law or ordinance. Also, the local government’s ability to deny a permit for public health, welfare, and safety still applies.

Separate agreements between cities and providers (Section 13)
Local government units can still enter into a separate contract with wireless providers. This way, local governments can negotiate different rent amounts (within the confines of the law) and address specific situations, such as indemnity, insurance, waiver of liability, and removal.

Permit fee (Section 3)
There is no cap on right-of-way management costs that are recoverable in permit fees, and the law still grants fees allowed under Minnesota Statutes, section 237.163.

Time frame for responding to permits (Section 15)
The local government has 90 days (which is longer than in other states) to issue or deny a permit, with a tolling period allowed upon written notice to the applicant if notice is given by the government unit within 30 days of receipt of the application.

Numerous permit requests at one time (“batch processing”) (Section 13)
The batch numbers are lower than in other states (15 small wireless facilities) and geographic restrictions apply (must be within a two-mile radius, consist of substantially similar equipment, and be placed on similar types of wireless support structures).

Rent (Section 17)
Rent is allowed and it is not tied to the FCC formula or just costs. The flat amount ($150/year plus $25 maintenance) for rent exceeds any other states’ rent with additional dollars for maintenance and electricity allotted. Cities can still require separate metering.

If electricity is not purchased directly from a utility, the rate is $73/node using less than or equal to 100 watts, $182/node using more than 100 watts, or actual costs if they exceed the flat rates.

Application information (Section 13)
Existing law still applies regarding specific information that can be requested, with one exception. Cities cannot request information from the applicant that the application already provided to the city in another small wireless facility application if the applicant has provided the city with the reference number to their other applications.

Application timeline extension (Section 13)
The number of simultaneous applications a city receives may trigger an extension. Thirty small wireless facilities applications triggers an additional 30 days for review. Cities can get the extension based on that number alone without asking the applicant, but must inform the applicant of the extension.

Height of pole (Section 14)
The height of wireless support structures shall not exceed 50 feet (lesser of either 50-foot pole or 10 feet above highest pole), unless the local government unit agrees to higher heights to match other poles within the vicinity.

Wireless support structure definition (Section 10)
The definition limits a support structure to a new or existing structure that the local government unit deems capable of supporting small wireless facilities.

Moratoriums (Section 12)
The law prohibits moratoriums; however, the Legislature included an extended effective date of Jan. 1, 2018, on the moratorium provision for cities that have not enacted an ordinance regulating public rights of way as of May 18, 2017. This allows those cities time to get ready for the new law.

Exemptions and grandfather clause (Section 20)
All 125 cities with municipal utilities are exempt from this law. This law also does not affect cities with existing agreements before May 31, but the new law will apply to agreements in those cities moving forward.

Next steps for cities
It is recommended that cities take the following actions to ensure compliance with this new law:

  • Work with your city attorney to adopt a right-of-way ordinance, if your city does not have one, or amend your existing right-of-way ordinance to accommodate for telecommunications right of way users. In the alternative, or in addition, adopt a separate telecommunications ordinance to include provisions specific to the installation of wireless facilities on existing poles or similar facilities, and addressing the potential installation of new “wireless support structures.”
  • Whether implemented by amending an existing right-of-way ordinance or adopting a new, separate ordinance, be sure to incorporate the application process requirements noted above.
  • If necessary, amend your zoning ordinance or code to make small wireless a permitted use, with the exception of making it a conditional use in residential zones and historical districts.
  • Work with your city attorney to draft a template agreement governing the attachment of wireless facilities to municipal poles or other infrastructure in the right of way.
  • Educate the decision-makers to make and record reasonable findings documenting health, welfare, and safety reasons for denials.
  • Work with wireless providers on locations.

Read the current issue of the Cities Bulletin

* By posting you are agreeing to the LMC Comment Policy.