Tag: permits

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The Day the FCC Took Broadband out of the Right of Way

Communications infrastructure in right of way

The use of public right of way is regulated by local or state government subject to local and state laws. Typically if a utility wants to install infrastructure in the public right of way, it must apply for and obtain a permit from the  government agency which has jurisdiction over the right of way. The installation and use of that infrastructure is then subject to the terms of that permit. Sometimes the issuance of the permit and the use is also subject to a franchise agreement negotiated between the local government and the utility. Utilities are also installed in utility easements which are designated on recorded plats of subdivisions. Private property owners typically own the underlying land which is subject to this easement. And the installation of the utillity in these easements is regulated by the local government through a permit and sometimes a franchise agreement. There have been additional regulations imposed through telecommunications acts. Often local government is restricted by these state or federal laws on the level of regulation that can be imposed on a public utility. Due to the telecommunications laws I have never heard of a use that was denied and instead have heard of court cases forcing cities to allow broadband companies to install their equipment in the right of way even when that installation was opposed by the city and the public.

Because the right of way and public utility easements are limited in area and because they are designated for public use, private parties are usually not granted permanent use of the right of way. Occasionally, limited uses are allowed such as street seating for restaurants or dog fences or sprinkler systems. In the case of use by a private entity, a legal agreement between the private entity and the local government is executed to permit the use. The local and state government has much more ability to charge fees and establish parameters for the use of public right of way when the applicant is not a utility or telecommunications company.

Keeping all that in mind, I can't help but wonder what will be the consequences of the FCC's net neutrality decision. From what I understand the premise of this action is the FCC is no longer going to define broadband companies as utilities and telecommunications. It appears instead the FCC's official position will be broadband companies are providing information services. Currently all of the major broadband companies have significant infrastructure in the right of way. Does this removal of a designation as a utility/telecommunication company mean local and state government can now regulate them as a private company? How about charge annual fees for use of the public right of way? And what about the infrastructure in public easements on private property? Is it legal for the company to keep its infrastructure in that utility easement? Can private property owners demand removal or payment? The next time a broadband company tries to install its Internet related equipment in my community, will the court again force the city to allow its installation as it did last time? Or since it's no longer a utility or telecommunication company, will the city prevail at denying the company access to the right of way?

With all the discussion online about the upcoming FCC decision, I've been surprised to see only one article touching on these issues and questions. The author of that article, "Ajit Pai's Net Neutraility Shell Game," suggested this reclassification will not take place and that this action by the FCC is only a ploy to force lawmakers into a position to concede even more power to broadband companies through additional telecommunication legislation. But if the FCC does end up moving forward with what they propose, I would expect eventually some local agency will test the legality of a broadband company's right to occupy the right of way. And if that litigation is found to have merit, permitting of right of way becomes a whole new playing field. 

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Do you have a permit for that Pokemon?

Pokemon Screen with PokeStops

Pokemon Screen with PokeStopsAbout five years ago I wrote a blog post about augmented reality and the concerns a city might have over its potential impacts to a community (see Adding Augmented Reality to Your Zoning Ordinance). But I had not noticed the types of issues discussed in that post actually occuring until this week after the release of the incredibly popular Pokemon Go game. If you have not yet heard about the game, it is an app you install on your phone which represents you on a map of your location and allows you to capture Pokemon who randomly spawn while you move through your environment. As with most games, you level up and collect objects as your Pokemon collection grows. There is also virtual infrastructure supporting the game such as PokeStops typically located at points of interest in a community. PokeStops gift you objects when you visit them and spin the stop on your phone. They can also be set up to attract Pokemon. Other fixed objects in the game are Pokemon Gyms where your Pokemon can battle other Pokemon.

So what is the big deal and how does this relate to zoning? The issue people are having is not only the location of the random spawns of Pokemon, but also the placement of the fixed objects, particularly the gyms. The company which owns the game makes the final determination of where these all occur – they don't need to ask permission from a property owner or the city to place their virtual objects. So there have been reports of Pokemon showing up in places that appear to be on private property, and people are trespassing to catch those Pokemon. While this might be an occasional issue with a random person showing up, the more serious problem reported appears to be with the placement of the gyms. Both the gyms and the PokeStops have the potential to attract crowds of 30 or more people at a time.People playing Pokemon

To get an idea of the concerns gyms and the resulting crowds are causing, here's a Tweet from a person who lives in a home in a renovated church on which a gym has been placed.

If you read through @boonerang's Twitter feed, you will see questions raised about impacts to property value and hours of operation. At what point do the impacts become significant enough to warrant the need for government regulation? And if regulation is imposed, will it be through permits? zoning?Right now, it appears the company is the sole decision maker on whether or not that gym remains at this person's house. While they have offered a method by which someone can report an issue with a gym, the removal is totally at their discretion. Should the local government have the ability to require its removal?

The other topic I have not yet seen explored is the potential problems with the type of virtual content. Pokemon Go is a G-rated game with cute little characters and objects. What if someone launches a more adult game with much more adult content? Someone who might tolerate a cute little Pokemon might not feel comfortable with X-rated content appearing on their property, even if it is only virtual. Should adult use zoning ordinances also apply to virtual content to ensure it does not get placed within so many feet of a school or church? And if so, how would the city regulate this and address complaints? A city employee downloading and installing something like Pokemon Go to check on placement of objects might be tolerated, but would downloading and use of something much more adult be allowed even if only used for regulatory purposes?

The world is definitely changing. And now that augmented reality has actually shown up in the form of cute little creatures, it will be interesting to see if or how cities and other government entities address the use of their virtual spaces. The legal questions which might first need to be answered are do property owners have ownership of the virtual space within the geospatial coordinates of their property and does government have the authority to regulate virtual content within the geospatial coordinates of their boundaries?

(The photos in this post show a location where people hang out to catch Pokemon. The one photo is everyone playing and the other is a screenshot showing the gym and PokeStops at this location. The pink petals around the PokeStops indicate people have placed lures there to attract more Pokemon.) 

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A Day in the Life of a Civil Engineer – Day 29

Day 29

Automatic Meter Reading Research

For about a year we've been researching automatic meter read (AMR) systems. Because our neighboring communities to the north and south have also been going through this process, we decided to combine our efforts and collaborate on the research. So as a group we've met with several vendors over the course of the past year. Today we all got together to summarize our findings and to discuss where we go from here. We decided to call in one of the vendors to discuss a few of the options we thought about pursuing. Although I think the AMR technology is awesome and very much enjoy researching the options, what has really been rewarding has been the opportunity to work with the other cities on this project. Like my co-workers, the staff in these cities are very knowledgeable, professional, and great to work with.

Special Service Areas (SSA)

Later in the day a few of our staff met to continue the discussion about creating an SSA for a certain area in our community. Again, these SSAs help provide a funding vehicle for improving  a specific subdivision. Although we dont' always levy taxes in each SSA, it's still good to have it in place in case the neighborhood needs to have maintenance or work done within the common areas of their subdivision.

Permits and Development

One of the utilities in our area is still trying to get a line installed in our downtown area. They submitted a new plan showing where they want to install their line, but they showed no other utilities on the drawing. So I had to let them know I cannot really review it without knowing where the other utilities are. On Monday, I'll have to make a copy of our utility maps for that area and send them to the utility so they can add them to the drawings. I also worked a little bit with a development that has re-submitted plans for review. We are still waiting for them to resolve the location of the electric so I could not move forward with their approval this week. Hopefully it will be resolved next week so I can complete by review.

 

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A Day in the Life of a Civil Engineer – Day 28

Day 28

Utility in our Right of Way with No Permit

Today I spent a little more time looking into the utility that was placed in our right of way with no permit. We went out into the field to measure how far off the road the concrete handholes were poured. For most of the length, the road has a rural section (no curb and gutter – only gravel shoulders). The edge of the concrete was 9", 12", and 18" from the edge of pavement at the three handholes. 

After looking into the property documents in that area, I also realized that the owner of the utility owns land north of the roadway so at least a quarter mile of the line could have been placed further off the road on their own property. Also, about another quarter mile was placed along right of way that is only for the use of roadway – not utilities. This is a common mistake unfortunately made by engineers who do not understand property ownership. What the engineer missed here is that in rural areas most land owners with property adjacent to roadways actually own to the center of the road. And the owners have given an easement to the public for roadway purposes only. So if you are designing a utility  like water mains or sanitary sewers and plan to have them installed in this apparent "right of way," you still need to arrange for the property owner to grant an easement for the utility because it has no relationship to roadway use. Of course, my supervisor and other staff members in our office realized this, but the consultant designing this project must not have.

So, I am not yet sure how this will all be resolved. We have set up a meeting to discuss it further.

Looking down on a weir in a restrictor

People Messing with Drainage

So after gathering more information about the permit issue, I spent some time with other staff members looking at a restrictor structure where someone had altered the height of the overflow. We aren't sure when this happened and only realized it after residents started complaining about failed flared end sections. One of our staff members figured it out by researching the subdivision plans which were dated in the 1970s then arranging to have some elevations taken on the structure. Through his efforts, he determined the height had been raised by about 6 inches which makes sense because as you look around the pond, each end section is submerged by about 6 inches. The person who raised the weir seems to have done so by trying to first use concrete blocks and then placing wood wrapped in a rubber membrane. You can see the result of their work in the photo to the left. This is a view looking down from the top of the structure. After a few of us visited the structure today, we came up with a solution of cutting the wood down to the design height. This allows us to quickly resolve the situation with minimal cost and disruption. We still are surprised that someone would take it upon themselves to raise the design level of a retention pond in a subdivision.

Inlet Removal and Replacement

Later in the day, I met with a contractor who was going to pave around an inlet we removed and replaced earlier in the year. We had done this to help encourage water to flow into this inlet rather than continue to travel down the road and down properties lying adjacent to and sloping away from the roadway. Unfortunately our work will not allow for the capture of all the water flowing down the road and onto the properties. But since the properties along the road slope down from the road at a significant grade to a creek, there's only so much we can do to keep the water completely on the road.

Developments and Parking Lots

At the end of the day I had the opportunity to participate in a discussion with a developer about some property in our city. It was a great meeting, and because the developer knew a lot about our city, I was able to learn many things. Later in the evening, one of our staff engineers and I attended a planning commission meeting. The group was considering our request to change zoning on a specific parcel in our downtown and allow for the use of a parking lot in that same block. After the project engineer testified and explained our project, the commission asked questions about the project then approved our request. This will now go forward for council consideration and hopefully approval.

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A Day in the Life of a Civil Engineer – Day 24

Day 24

Backhoe

Safety Meeting

Today was the first Thursday of the month and that means safety meeting day! The whole public works staff attends the monthly safety meeting, and the topic today was backhoe safety. If I get a chance I'll put up a post on it later this week because it was interesting and probably would make a good article.

Cemetery Maintenance

After learning about how to safely operate and transport backhoes, we met with someone who provides cemetery services. Right now we have one person who is responsible for all the maintenance in the two cemeteries we own. We do have some summer help, but there's still a lot of work to be done. And when our help goes back to school, we are back down to one person. Several members of the public have indicated they want increased maintenance services so we are looking at ideas for meeting their requests. One idea is to bid out the maintenance and see if it is cheaper to hire it out than use staff members. During the meeting today we learned about what services companies provide and what other cemeteries they take care of. At this point we are just researching. Our city council will have to make the final decision on whether or not we bid this out or continue to use staff.

Overweight vehicles

Something strange did happen during the morning. Someone called me to complain about getting a ticket from our police for having an overweight vehicle. He also wanted to ask me several questions about this. It was a little difficult answering all of them because our office only handles issuing permits for overweight vehicles. The police enforce the overweight vehicle limits on our streets. I did read him the ordinance explaining we do not allow any trucks over 6 tons on roads unless indicated otherwise and told him the ordinance was available online. So he paraphrased what I said to mean that he, as a landscaper, was not allowed to provide services to residents in our community. I tried to explain this was not what I said and that he could solve the problem by distributing his load between two vehicles to get it below 6 tons and that I've seen other companies doing this. But he did not seem to think this would be an option. I also tried to suggest taking his setup to a truck scale and working with the loading to get it below 6 tons. But he didn't know where a scale was and having only been here for two years, I wasn't sure where the closest one was either. 

He also asked many more questions that were more related to how the police ticket and how they determine when a load is overweight, but I could not answer him since we do not deal with that in my office. He was also frustrated because he must have called other cities and they gave him information that was different from what we were giving him. I tried to explain every city has different ordinances so that's probably why he was getting different answers from different cities. I offered to find out how we could issue him an overweight permit so he could legally drive his load on the streets, but he didn't want me to ask about the process. He kept suggesting we are only issuing tickets to drive up revenue, and he said it was a stupid law. Then he got angry and hung up on me.

Emergency Utility Work

Then right before lunch I received a call from a utility company asking for verbal approval to perform an emergency repair in our downtown. These make me nervous because it's difficult to quickly assess the situation and think of everything that needs to be determined in order to proceed with something like this. But the person said the work would only be in the parkway and was desperately needed because the whole area of the city south of the downtown had no service. So after he promised to be safe and use proper traffic control and restore the area within a couple days, I told him it was ok to proceed. After I got in from lunch, one of the engineers asked me who gave approval for a utility to bore under the railroad. What? I explained what I had given approval for. Then one of the other staff members and I decided to go visit the work site. Meanwhile the person who had asked for the approval called back and said he had no idea it was going to go under the railroad. So he agreed to meet us there. In the end, it all worked out. They ended up calling the railroad, and two guys from the railroad showed up to flag and assist. Our locator marked out what he needed to locate. And they started digging. Because I had to deal with all this, I ended up missing a meeting with a landscaper for our parking lot, but the project engineer was able to go instead.

Rating the Roads

Then we all finished up the day checking out the road conditions in the next area of town to be inspected. 

 

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A Day in the Life of a Civil Engineer – Day 22

Day 22

Parking Lot Planning

This morning a couple of us discussed the parking lot we are planning to build in our downtown. The project engineer for the job submitted the necessary documents to our planning department for the planning commission hearing we will have Sept. 8th. I also talked to a landscaper who will put together a preliminary landscape design for the lot and set up a meeting with him on site for this Thursday. The project engineer touched base with our lighting consultant to make sure we would have a preliminary lighting plan done in time for the hearing. And finally I reviewed the revisions we had all made to the agreement with one of the property owners from whom we will be getting easements for a portion of the lot.

Road Project

The contractor has been in this week finishing up some minor work on this year's road project. And the project engineer and our technician have been measuring quantities like crazy. But now is the time when our thoughts begin to turn to next year's road project. So today I set up some times this week for us to drive the roads. During this "road trip" we rate the roads, note the ones that could possibly be crackfilled, and check out any other issues or problems. It's the one time of the year we can really take a comprehensive view of all the  roads at once. I also updated the ratings in our GIS for the roads we improved this year and printed out maps to use during our drive.

Permit Review

I finalized the review of a small project someone had proposed for a commercial development in the city. Then I sent out the approval letter to the developer and a few staff members. Tomorrow I will work on another permit we have in that includes a stormwater permit application.

Sign installation

Water Main Project

During the morning, I also researched the property ownership for a parcel through which we would like to place a new water main. Then I contacted the business to set up a meeting with them to discuss the possibility of the city getting an easement.

Street Sign Upgrade Requirements Rescinded

Our city administrator also sent out a letter today that indicates we will probably not have to upgrade our signs to meet the new retroreflectivity requirements by the date that had been set by the FHWA. Instead we can upgrade the sign at the time of replacement. This will save a significant amount of money for many agencies. Here's a link to the press release by the U.S. DOT: 

http://www.dot.gov/affairs/2011/fhwa4311.html

 

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