HomeMy WebLinkAbout6707ORDINANCE NO. 6 7 0 7
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF AUBURN, WASHINGTON, RELATING TO
TELECOMMUNICATIONS INFRASTRUCTURE, AND
ADOPTING NEW CHAPTER 20.14, SMALL
WIRELESS FACILITIES IN THE PUBLIC RIGHT-OF-
WAY; PROVIDING FOR SEVERABILITY; AND
ESTABLISHING AN EFFECTIVE DATE
WHEREAS, in 1934, Congress enacted the Communications Act of 1934,
creating the Federal Communications Commission ("FCC') and granting it
authority over common carriers engaged in the provision of interstate or foreign
communications services; and
WHEREAS, in 1996 Congress enacted Pub. L. No. 104-104, 110 Stat. 70
(the "1996 Act'), amending the Communications Act of 1934 and implementing
regulations applicable to both wireless and wireline communications facilities for
the purpose of removal of barriers to entry into the telecommunications market
while preserving local government zoning authority except where specifically
limited under the 1996 Act; and
WHEREAS, in the 1996 Act, Congress imposed substantive and procedural
limitations on the traditional authority of state and local governments to regulate
the location, construction, and modification of wireless facilities and incorporated
those limitations into the Communications Act of 1934; and
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December 3, 2018
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WHEREAS, in September of 2018, the FCC adopted its Declaratory Ruling
and Third Report and Order, concerning processing of applications by local
governments for the deployments of small wireless facilities; and
WHEREAS, the City is adopting regulations establishing local requirements
for the location, construction, and modification of small wireless facilities within the
City rights-of-way and;
WHEREAS, the City wishes to manage the use of the Right of Way; and
WHEREAS, the City Council finds that the proposed regulations are
reasonable, necessary, and in the public interest;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, DO ORDAIN as follows:
Section 1. Adoption of New City Code Chapter 20.14. Auburn City
Code Chapter 20.14, Small Wireless Facilities in the Public Right of Way is
adopted as shown in Exhibit A.
Section 2. Implementation. The Mayor is authorized to implement
those administrative procedures necessary to carry out the directions of this
legislation.
Section 3. Severability. The provisions of this ordinance are
declared to be separate and severable. The invalidity of any clause, sentence,
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December 3, 2018
Page 2 of 9
paragraph, subdivision, section or portion of this ordinance, or the invalidity of the
application of this ordinance to any person or circumstance will not affect the
validity of the remainder of this ordinance, or the validity of its application to other
persons or circumstances.
Section 4. Effective date. This Ordinance will take effect and be in
force five days from and after its passage, approval and publication as provided by
law.
INTRODUCED:
PASSED:
APPROVED:
DEC 17 2018
DEC 17 2018
DEC 17 2018
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ATTEST:
Shawn Campbell, MMC, City Clerk
APPROVED AS TO FORM:
Steven L. Gross, City Attorney
Published: ao , a o o S egrttAs�` "�
Ordinance No. 6707
December 3, 2018
Page 3 of 9
Exhibit A
Chapter 20.14
SMALL WIRELESS FACILITIES WITHIN THE PUBLIC RIGHTS-OF-WAY
Sections:
20.14.010
Overview.
20.14.020
Application for small wireless facilities permits.
20.14.030
Implementation — Small wireless facilities permits.
20.14.040
Small wireless facility permit review process.
20.14.050
Deviations.
20.14.060
Small wireless facility approvals and processes.
20.14.070
Additional review procedures.
20.14.080
Compliance with federal processing limitations.
20.14.090
Design Standards.
20.14.100
Non-interference.
20.14.110
Facility Removal.
20.14.010 Overview.
A. Service providers or any other persons or entities who seek to use the
public right-of-way for small wireless facilities deployment to provide
personal wireless service, data transmission, or other related services, must have
a valid franchise under Chapter 20.06 ACC to use the right-of-way and a small
wireless facility permit to deploy that technology at each proposed location. Entities
with franchises who wish to use a small wireless facility deployment to upgrade or
expand their existing services, will use the processes set forth in this chapter to
obtain approval of specific installations. An entity without a franchise will apply for
a franchise as well as a small wireless facility permit for its initial deployment, and
the applications will be processed concurrently.
B. Nothing in this chapter revises or diminishes the rights and obligations of
an existing franchise.
C. Small wireless facilities deployment elements that require SEPA review
may use these processes only in conjunction with SEPA review.
D. For purposes of this chapter, "small wireless facilities" are defined as
facilities that meet the following conditions:
The facilities:
i. are mounted on structures 50 feet or less in height, including
their antennas as defined in 47 CFR 1.1320(d), or
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December 3, 2018
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ii. are mounted on structures no more than 10 percent taller
than other adjacent structures, or
iii. do not extend existing structures on which they are located
to a height of more than 50 feet or by more than 10 percent, whichever is greater;
and
2. Each antenna associated with the deployment, excluding
associated antenna equipment (as defined in the definition of antenna in 47 CFR
1.1320(d)) is no more than three cubic feet in volume; and
3. All other wireless equipment associated with the structure,
(including the wireless equipment associated with the antenna and any pre-
existing associated equipment on the structure), is no more than 28 cubic feet in
volume; and
4. The facilities do not require antenna structure registration under
Code of Federal Regulations, Title 47, Part 17; and
5. The facilities are not located on Tribal lands, as defined under 36
CFR 800.16(x); and
6. The facilities do not result in human exposure to radiofrequency
radiation in excess of the applicable safety standards specified in 47 Code of
Federal Regulations 1.1307(b); and
7. The facilities are currently located or are proposed to be located
within the public right-of-way. For facilities currently located or proposed to be
located on private property, please see ACC Chapter 18.31. For facilities currently
located or proposed to be located on public property or facilities, please see ACC
Chapter 20.08.
20.14.020 Application for small wireless facilities permits.
For locations in the public right-of-way, the Director of Public Works
("Director") is charged with administration of small wireless facilities deployments
and other small wireless facilities permit review processes for use of public right-
of-way established under this Chapter.
Unless previously provided with an application for a franchise, the following
information will be provided by all applicants seeking to use small wireless facilities
deployment:
A. Specific locational information, including GIS coordinates of all proposed
facilities, and
B. Specific design information and plans, addressing poles or other support
structures, attachments, conduit, and any ground -mounted equipment, and
C. A narrative addressing how the proposed plans are consistent with the
franchise exhibit(s), if applicable, or otherwise meet the design requirements of
this chapter, and otherwise as required within the ACC, and
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December 3, 2018
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D. A concealment plan demonstrating how the proposed small wireless
facilities comply with the City of Auburn Engineering Design Standards, and
E. Provision of proof of Federal Communications Commission and other
regulatory approvals required to provide the service(s) or use the technologies
sought to be installed, and
F. Provision of proof that the proposed facilities will not interfere with the
City's automated meter (AMI), telemetry (SCADA), automated light meter facilities,
or other City communication facilities, and
G. Provision of proof from pole or structure owners that the additional load
of small wireless facilities can be accommodated by the poles or structures or if
the City is the pole or structure owner, proof of compliance with ACC Chapter
20.08, and
H. Any other information determined by the Director to be necessary for
processing the application.
Permits issued under this Chapter will not supplant any other permits
required under federal or state law, or the Auburn City Code, including but not
limited to, ACC Chapter 12.24 and 13.32 A.
20.14.030 Implementation — Small wireless facilities permits.
The rights granted under a franchise are implemented through the issuance
of small wireless facilities permits. The franchise application, required under
Chapter 20.06 ACC, may be accompanied by one or more applications for a small
wireless facilities permit to deploy small wireless facilities. An initial franchise and
any related small wireless facilities permit applications will be processed
concurrently.
A. Up to five (5) sites may be specified in one small wireless facilities permit
application for processing.
B. Issuance of a small wireless facilities permit to install small wireless
facilities will be contingent upon approval of a franchise under Chapter 20.06 ACC,
or the possession of a valid franchise.
C. Any element of a deployment that qualifies as an eligible facilities request
under 47 Code of Federal Regulations Section 1.40001 will be specifically
designated by the applicant and may be addressed separately by the Director in
order to comply with the shot clocks established by federal law.
D. The Director may approve, deny, or conditionally approve all or any
portion of the sites proposed in a small wireless facilities permit application. Any
denial of an application under this Chapter must be made in writing and be
supported by substantial evidence.
E. Any application for a small wireless facilities permit that contains an
element that is not exempt from SEPA review, will simultaneously submit a SEPA
Environmental Checklist under Chapter 43.21 C RCW and Chapter 16.06 ACC.
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December 3, 2018
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F. The City recognizes that the Federal Telecommunications Act of 1996
gives the Federal Communications Commission sole jurisdiction in the field of
regulation of electromagnetic radio frequency emissions and small wireless
facilities that meet Federal Communications Commission standards will not be
conditioned or denied on the basis of radio frequency or electromagnetic frequency
impacts. Applicants for small wireless facilities will be required to provide the City
information on the projected power density of the facility and compliance with the
Federal Communications Commission requirements.
20.14.040 Small wireless facility permit review process.
The following provisions relate to applications for a small wireless facility
permit:
A. Federal law. Review of the site locations proposed by the applicant will
be governed by the provisions of 47 U.S.C. § 253 and 47 U.S.C. § 332 and
applicable regulations and case law. Applicants will be treated in a competitively
neutral and nondiscriminatory manner with other service providers whose facilities
are similarly situated in terms of structure, placement, or cumulative impacts.
Small wireless facilities permit review under this chapter will neither prohibit nor
have the effect of prohibiting the ability of an applicant to provide
telecommunications services.
B. Concealment. The City will permit small wireless facility deployment on
existing or replacement poles or structures conforming to the City's generally
applicable pole design standards, the City's Engineering Design and Construction
Standards, the concealment element plan approved as part of the small wireless
facilities permit(s), and consistent with the relevant franchise exhibit (if applicable).
Small wireless facilities may not be expanded unless the expansion does not
defeat the facility's required concealment elements.
C. The Director will review applications for small wireless facilities permits
for consistency with relevant franchise exhibits and design standards.
D. Small wireless facilities permits to install facilities will be processed within
the time frames set by applicable federal regulations.
E. The decision of the Director to approve a small wireless facility permit will
be final and is not subject to appeal under city code or further legislative review.
20.14.050 Deviations.
Any request for deviations from the approved small cell facilities design
designated in the franchise, or any previously approved small wireless facility
permit, will be considered a new small wireless facilities permit request. An
applicant seeking approval of a deviation from an approved small wireless facilities
permit will apply for a new small wireless facilities permit.
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December 3, 2018
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20.14.060 Small wireless facility approvals and processes.
Approval of a small wireless facility permit and/or other approval referenced
in this chapter are conditioned on the following requirements:
A. Satisfy applicable bulk requirements, such as noise and light regulations.
B. Comply with adopted design and concealment standards as provided by
the City's Engineering Design and Construction Standards.
C. Obtain the written approval of the owner of any pole or structure for the
installation of its facilities on such pole or structure. Approval of a franchise under
Chapter 20.06 ACC does not authorize attachment to City -owned poles or other
structures.
D. Unless specifically provided for in a franchise, obtain a lease or other
applicable authorization from the City to use City owned poles, ground space or
infrastructure for the installation of any small wireless facility, or to locate any new
ground-based structure, base station, or other attendant equipment on City right-
of-way.
E. Comply with all city construction standards and state and federal codes
when operating in the right-of-way and obtain a required permit to enter the right-
of-way for construction.
20.14.070 Additional review procedures.
Small wireless facilities in shorelines management zones or
environmentally critical areas are subject to review as provided in
Chapters 16.08 and/or 16.10 ACC.
20.14.080 Compliance with federal processing limitations.
Review of small wireless facilities permits will comply with the provisions of
47 CFR Part 1, subpart U, if applicable. Applications will be reviewed,
completeness determined, and the time frame tolled as provided in this chapter
and Chapter 20.06 ACC.
20.14.090 Design Standards.
All small wireless facilities will be constructed or installed according to
applicable Federal Communications Commission (FCC), Federal Aviation
Administration (FAA), state and city regulations and standards, including the City
of Auburn Engineering Design and Construction Standards.
20.14.100 Non-interference.
Wireless facilities of any kind will not interfere with any emergency,
communication, or utility infrastructure systems of the City.
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December 3, 2018
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A. If the City notifies service providers that their equipment is potentially
interfering with public safety communications equipment, the providers will
cooperate and coordinate with the City and among themselves to investigate and
mitigate the interference, if any, utilizing the procedures set forth in the
joint wireless industry — public safety "Best Practices Guide, released by the FCC
in February 2001, including the "Good Engineering Practices," as may be amended
or revised by the FCC from time to time.
B. If any service provider or facility owner fails to cooperate with the City in
complying with the owner's obligations under this section or if the FCC makes a
determination of radio frequency interference with the City communications
equipment, the owner who fails to cooperate and/or the owner of the facility or
facilities which caused the interference will be responsible, upon FCC
determination of radio frequency interference, for reimbursing the City for all costs
associated with ascertaining and resolving the interference, including but not
limited to any engineering studies obtained by the City to determine the source of
the interference. For the purposes of this subsection, failure to cooperate will
include failure to initiate any response or action as described in the "Best Practices
Guide" within 24 hours of the City's notification.
20.14.110 Facility Removal.
A small wireless facility will be removed:
A. Within 180 days of the date the facility's use is discontinued, it ceases to
be operational, the permit is revoked; or if the facility falls into disrepair and is not
maintained, within 90 days of a notice from the City to effect repairs and
maintenance to the satisfaction of the City. The owner and/or operator of a facility
will notify the City upon the discontinued use of a particular facility; however,
B. If the owner and/or operator fails to remove the facility as required then
the facility is a nuisance and subject to appropriate legal proceeding.
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December 3, 2018
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