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Engineering process | Preliminary Design | Municipal Consent

Municipal Consent process

Municipal consent risk management

A municipality is a statutory or home rule charter city.

Municipal consent is a municipality’s approval of MnDOT’s final layout for a project on a trunk highway when state statute requires that approval. The approval is by a resolution passed by the elected council of the municipality.

Municipal consent risk management is a process with the intention of reducing the risks associated with obtaining municipal consent.

Projects that require municipal consent

You must obtain municipal approval for any trunk highway project that results in any of the following within a municipality:

  • Alteration of access (opening and closing access points directly with the trunk highway, but not opening or closing medians)
  • Increase or decrease in traffic capacity (increasing or reducing the number of through lanes, but not other lanes such as turn lanes or auxiliary lanes)
  • Acquisition of permanent right of way (permanent right of way includes the acquisition of permanent easements, e.g. drainage easements)

Exceptions

Regardless of impacts to access, capacity, or right of way, you are not required to obtain municipal consent for maintenance activities or construction or installation of:

The term “other safety measures” refers to traffic safety measures. Adding a turn lane is an example of a traffic safety, but replacing a structurally deficient or fracture-critical bridge is not.  Some examples include safety improvements for pedestrian/Americans with Disabilities (ADA) facilities and roundabouts.

Safety improvements for pedestrian/ADA facilities

You do not need to obtain municipal consent for projects on which the only trigger for municipal consent is the acquisition of minor amounts of right of way for safety improvements to comply with ADA or further MnDOT’s goal of providing safe, accessible pedestrian facilities.

The ADA is a federal act that requires MnDOT to provide accessible pedestrian facilities. MnDOT projects often include improvements to comply with ADA and help reach MnDOT’s goal of providing safe and accessible pedestrian facilities. The Minnesota statutory definition of “pedestrian” includes any person in a wheelchair (See Minnesota Statutes, section 169.011, subdivisions 53 and 93).

MnDOT often needs minor amounts of right of way for safe and accessible pedestrian facilities.  Although acquisition of permanent right of way is one of the statutory triggers of obtaining municipal consent, Minnesota Statutes, section 161.163 subdivision 2 includes a traffic safety exception to the municipal consent requirement. Improvements that are necessary to provide safe, accessible pedestrian facilities are traffic safety measures and are thus safety exceptions to municipal consent. These safety improvements include curb ramps, accessible sidewalks and ramps, pedestrian refuge areas, areas for safe pedestrian movement, and pedestrian-operated warning devices.

Roundabouts, Reduced Conflict Intersections (RCIs), and Restricted Crossing U-Turns (RCUTS)

Roundabouts, RCIs, and RCUTs are safety measures that regulate traffic and are therefore exceptions that do not require municipal consent, even if they require acquisition of permanent right of way.

Submittal letter and attachments

Right of way

The layout for municipal consent must show right of way limits. These limits can be approximate, which allows you to submit the request earlier than if you waited for exact limits to submit the layout. Although you can make minor adjustments to the layout the city approved, you must resubmit for city approval any portion of the layout where the state makes changes to the amount of permanent right of way acquisition (which includes permanent easements).

Procedures

Only request municipal consent from a city if you are required to do so.

The law states that you must submit the layout to the city “before final decisions are reached so that meaningful early input can be obtained from the municipality.”

The following sections outline the procedure for obtaining municipal consent.

Requesting municipal consent

Step 1

The district submits the final layout to the city with a letter request city approval. The letter includes a good faith cost estimate of the city’s share of the project’s cost and the following items in an attached letter or report:

  • Project purpose
  • Route location
  • Short description of the proposed design of the highway
  • Any additional supporting data
Step 2

The city schedules and holds a public hearing within 60 days of the submittal. The city must schedule the hearing within 15 days of receiving MnDOT’s request and must give a 30-day public notice for that hearing.

Step 3

The city passes a resolution approving or disapproving the layout within 90 days of the public hearing. If the city has not passed a resolution disapproving the layout 90 days after the date of the public hearing, the layout is deemed approved.

Step 4

If the city disapproves the layout, decide whether to:

  • Meet the city’s condition(s), assuming the city would approve the project with those conditions
    • You would write a letter to the city indicating this decision and attached a revised layout with the change(s)
    • This would end the municipal consent process
  • Go to the appeal process
  • Step the project (do not build the project, or scale it down so that you no longer need municipal consent)
Step 5

If you alter access, capacity, or right of way after the layout is approved, you must re-submit the changed portion of the final layout for the city’s approval. The city does not have to hold another public hearing and has 60 days to approve or disapprove the changed portion of the layout.

City approval

The city’s review of the layout is limited to the project elements in the final layout that are within the boundaries of that city; it cannot impose conditions on its approval that involve anything outside the city limits.

The city can approve the layout by either providing a formal approval resolution (see Sample Resolution) or by not passing a resolution to disapprove the project within 90 days of the public hearing.

Unless MnDOT later alters access, capacity, or right of way, the city has one opportunity to exercise its approval or disapproval of the final layout. Once the city approves the layout, it cannot rescind that approval, so the approval is final. If a city disapproves the layout with conditions and MnDOT notifies the city in writing (with a copy of the revised layout) that it agrees to those conditions, then MnDOT has obtained municipal consent.

The municipal consent statute applies to changes on “any route on the trunk highway system lying within any municipality” (Minnesota Statutes, section 161.164, subdivision 1). If a highway borders a city and only a portion of the highway is completely within the city limits, you must still obtain municipal consent for any access, capacity, or right of way changes that occur within the city. If the changes that would trigger the municipal consent process are on the side of the highway that is outside the city limits, municipal consent is not required and you will not have to request it from that city.

City disapproval

If the city disapproves the project with conditions for approval, you can choose to meet the city’s conditions and obtain the city’s approval as the previous section describes. Doing so is not a resubmittal for further consideration. If the city disapproves the final layout without conditions, or MnDOT chooses not to meet the proposed conditions of a city disapproval with conditions, MnDOT can either stop the project (or scale it back so that municipal consent is no longer a requirement) or begin the appeal process.

The appeal process is the same for interstate and non-interstate projects, except the Commissioner is not bound by the appeal board’s recommendations when the project is on an interstate highway.

If you will be going through the appeal process, your first step will be to establish an appeal board of three members. The Commissioner appoints one member, the City Council appoints one member, and the Commissioner and City Council must agree upon the third member. If the parties cannot agree to a third member, the Commissioner refers the selection to the Chief Justice of the Supreme Court, who then has 14 days to appoint the third member.

The Commissioner then refers the final layout to the appeal board. The appeal board then has 30 days to hold a hearing at which the Commissioner and the City Council present their cases for or against approval of the layout. The appeal board must make its recommendation within 60 days of the hearing. The board can recommend to:

  • Approve the layout
  • Approve the layout with modifications
  • Disapprove the layout

The appeal board can also make additional recommendations consistent with state and federal law as it deems appropriate. The board must submit a written report of its findings and recommendations to the Commissioner and the City Council. 

Suggestions for obtaining municipal consent

Early communication

Discuss the project with the city early to understand their concerns and determine how quickly they are willing to go through the process. You should also discuss the layout early with the Geometrics Design Unit to ensure that you have all of their input and will not receive changes from them later that would warrant significant changes. 

You can sometimes use a Memorandum of Understanding (MOU) if you are working early in the process. The MOU puts down all the issues in writing and each party signs it. Although an MOU is not legally binding, it helps clarify issues and describes what each party is willing to commit to do.

Good faith cost estimate

Although municipal consent and cooperative agreements are separate processes, the municipal consent submittal to the city must include a good faith estimate of all the project costs that the city will pay. At a later date, the cooperative agreement will detail these costs.

Communicate with the city before you request municipal consent. Find out what, if any, add-ons the city may want (aesthetics, utility work, etc.) and clearly explain what items the city will pay and what their maintenance responsibilities will be.

Work with the Cooperative Agreements Unit to create a good faith estimate. Create a checklist of all city costs that you will include in this estimate.

Before requesting municipal consent, meet with the city again to go over the layout and the city's share of construction costs and maintenance obligations. Make sure the city understands its responsibilities.

Schedule building for municipal consent

If time allows, use the full, 260-day municipal consent activity duration (or more). If doing so is not feasible, determine the amount of time you will need using the following guidelines. 

Low-risk projects

For a low-risk project, you may want to schedule completion of municipal consent 90 days before project turn in or sooner. If everything proceeds perfectly, you may be able to obtain municipal consent in 31 days, but scheduling 45 to 90 days is typical for low-risk projects.

Medium-risk projects

The statutory duration for municipal consent without appeal is 150 days. If the project has some risk regarding municipal consent but there is no likelihood of using the appeal process or making layout changes, use a minimum duration of 150 days. If there is a possibility the city will request changes, add enough time to the 150 days to accommodate making changes in the layout and final plan.

Right of way acquisition/impact on schedule

Determine how right of way issues may affect municipal consent. If potential changes would affect construction limits and/or right of way acquisition, schedule municipal consent to finish before the right of way process starts. You can contact your District Right of Way Engineer/Land Management Supervisor to find out how long the right of way process will take for your project. 

You may be able to compress the schedule if there is little risk of changes affecting right of way. In this case, schedule municipal consent to finish just before offers are made for right of way acquisition. Talk to your District Right of Way Engineer/Land Management Supervisor to find out when that is. Final design and some right of way work will probably need to proceed before you obtain municipal consent.

If you have a schedule where you complete municipal consent after starting the right of way process or final plan work, involve all affected stakeholders and carefully assess risks. The more likely it is that the municipal consent process could change the right of way need, the more important it will be to adhere to a normal schedule.

High risk projects/appeal process

Use the full municipal consent duration of 260 days or more if the project is high risk or you expect to go through the municipal consent appeal process.

Accelerated projects

The guidance above applies to template schedules.  Some projects, especially those that are design-build, get behind and need a recovery schedule.  If a normal schedule will not work, create an accelerated schedule. 

Creating and accelerated schedule frequently involves significant risk.  Involve all affected stakeholders, do a risk analysis for the affected parts of the schedule, and identify risk mitigation.  Some options for accelerating the schedule include:

  • Adjusting the municipal consent process:
    • Seek the city’s cooperation for a fast-track process
    • Discuss waiving municipal consent with the city after consulting with the Office of Chief Counsel
  • Change the schedule:
    • Reorganize some sequential activities so they occur in parallel
    • Work with the Geometrics Unit to advance staff approval of the layout
    • Find other activities with durations you can reduce
    • Add resources

State municipal consent statutes

Other guidance