HomeMy WebLinkAbout08-11-1997 Special Council Mtg SPECIAL CITY COUNCIL MEETING
MINUTES
AUGUST 11, t997, 6:30 PM
COUNCIL WORK AREA
I. Introduction
Mayor Booth convened the special City Council meeting at 6:30 PM. The
purpose of the workshop is to discuss the scope of the ordinance, work items
needed to adopt the ordinance, committee assignments, and the moratorium end
date of October 7, 1997.
Councilmembers in attendance included Jeanne Barber, Stacey Brothers, Sue
Singer, Fred Poe, Rick Wagner, and Gene Cerino. Staff in attendance include
Assistant City Attorney Judith Ausman, Finance Director Diane L. Supler,
Associate Planner Keith Nevin, Planning & Community Development Director
Paul Krauss, City Engineer Dennis Dowdy, Parks and Recreation Director Dick
Deal, Senior Planner Bob Sokol, and City Clerk Robin Wohlhueter. Guests in
attendance include Pete Lewis and John Raeder.
II. Federal And State Laws That Apply
Judith Ausman briefly commented upon the Federal Act and its effect on State
law. The Federal Telecommunications Act was passed in 1996 with an overall
intent to encourage development of competition among telecommunication
providers. The legislation is based on the expectation that increasing
competition in the market will protect the consumers from abuses, and the quality
and quantity of services will improve. Further effect of this new legislation is that
telecommunication providers will be digging up the City's right of way, climbing
utility poles, and placing cables in the public right of way and possibly public
. utility easements.
The Telecommunications Act confirms that local governments are empowered to
manage the right of ways and to secure a fair and reasonable compensation for
their use. To secure a fair and reasonable compensation local governments are
required to publicly disclose the compensation, it must be on a competitive and
neutral non discriminatory basis, and the use of public rights of way must also be
on a non discriminatory basis. Articles suggests that local governments may
discriminate by types of providers.
Ms. Ausman referred to a District Court level case in Texas, GST of Tuscon Light
Wave, Inc. vs. the City of Tuscon~ The District Court upheld the flexibility of the
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August 11, 1997
Page No. 2
section regarding the local government authority to manage their right of ways.
The decision also suggests that local governments can consider the burden that
a particular provider may place on the use of its right of way.
The right of way section of the law addresses removal of barriers to entry. Local
governments can manage the right of ways its clear from legislation that no
state, local statute, regulation, or any other requirement may prohibit or have the
effect of prohibiting the ability of any entity to provide any interstate or intrastate
telecommunication service. The Federal Communication Commission can
preempt any state statute or local regulation in this area.
Ms. Ausman discussed personal wireless facilities siting. The
Telecommunications Act preserves local government right to regulate the
placement, construction, and modification of the personal wireless facilities.
Local government cannot deny construction, placement or modification based on
radio frequency emissions if the licensee has complied with all of the FCC
regulations, may not unreasonably discriminate among providers of functional
equalivant services, and cannot prohibit or have the effect of prohibiting the
provision of the personal wireless services. Denials need to be based on a
reasoned approach, and prohibits any discrimination on outright bans on
construction placement and modification of the personal wireless facility. Local
governments are required to act on any request for authorization to place,
construct or modify a personal wireless facility within a reasonable period of time
after the request is filed, taking in account the complexity of the request. Denial
of a request must be in writing and supported by substantial evidence which is
place in the record. The Act provides provisions for those persons who feel have
been denied unfairly or have not received their response timely to go to court.
Any actions regarding radio frequency emissions go to the Federal
Communication Commission.
Discussion center around pole attachments and utility poles. Ms. Ausman
explained the costs and fees associated with using a space is apportioned
according to the number of antennas and uses on the pole, and applied in a non-
discriminatory basis. The Telecommunication Act provides provisions that if
owner intends to modify or alter the pole, then owner has to give notice. If the
local government adds or modifies its existing attachments after receiving
notification of the owner, then they bare a proportionate share of the costs
incurred by owner making such changes to the pole or conduit.
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August 11, 1997
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In conclusion, Ms. Ausman explained in Washington state there is a difference of
opinion as to what type of fees or charges can be imposed. It relates to charging
a franchise fee and the definition of a telephone business according to RCW
82.04.065. The Legal Department is researching that issue, Ms. Ausman's
opinion is that a registration fee is advisable to maintain a database for tracking
facilities.
Councilmember Brothers raised a question with regard to a higher fee for a
telephone business opposed to a franchise fee. Ms. Ausman reiterated that the
Telecommunications Act prohibits discrimination against a prorider by the fees
that are charged.
Finance Director Diane Supler further explained the differences in City revenue
streams as it relates to telecommunications. The difference is those industries
offering services to the citizens of city of Auburn versus those business that want
to site a cellular phone tower. For example, Ms. Supler recalled the Metricore
Agreement, recently reviewed by the Council, where they pay the City of Auburn
$60.00 per pole to attach radio equipment per year. A service provider is
required to pay a 4.5% tax based on providing a service as part of a franchise.
With regard to facilities on City owned property, Ms. Supler discussed research
suggests that the City needs to establish a revenue stream and contractural
protection that prevent contracts from becoming antiquated. Prior
telecommunication ordinances and contracts in Auburn date back to 1985 where
the City realizes $45.00 per month for a cellular site that warrants a current
market value of $650.00 per month. Ms. Supler indicated staff is reevaluating
existing agreements as far back as the 1970's.
Ms. Supler reported it is the intent to obtain additional revenue based on public
property use. Ms, Supler explained the different types of accounting involved for
telecommuncations facilities and services. Imposing an administrative fee is
being studied that represents renegotiation and administration of contract such
as monthly billings. Additionally, they are looking at including cost of living
increases associated as part of an adjustment every three to five years
depending upon whatever the market will bear.
Councilmember Wagner asked whether the City can collect sales tax on sales
made from the city of Auburn via telecommunications. Ms. Supler indicated
other cities are looking at this issue along with other financial questions. For
example, with cell phone use, does the sales tax go to where the billing goes to
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August 11, 1997
Page No. 4
or does it go to where the individual call was made from. How do you audit, how
to get into AT & T records to determine if local governments are getting their fair
share of the money.
III. Review Of the Industry and What to Expect
This item was discussed immediately following Item Number IV.
City Engineer Dennis Dowdy highlighted what the City can expect to see from
the telecommunication providers. The industry will see a continuation of more
mergers, and within the next six months it appears the City will be working with
at least three large entities in the area of telecommunications. Mr. Dowdy
anticipates that there will be more demand for wireless antenna towers, breader
bandwidths to support additional services such as beepers and voice mail which
drives the antenna spacing closer. The City will face challenges to franchise
fees as these companies become stronger and expansion occurs to rural areas
of south king county. The City needs to start thinking about how the
telecommunication ordinance relates to the existing Cable TV ordinance. The
City can expect more trenches in public right of way.
Mr. Dowdy focused his comments on the City's past practice, what the future
may hold with regard to regulation and right of way. Mr. Dowdy provided an
overhead projector illustration of a future street that includes a private utility
easement. The proposed revisions establish standards for traffic utility
easements designated as private utility easement that would be separate from
utility easements. All telecommunication previders requesting an easement from
the City will be required to go underground in new developments back in the
private utility easement area. This will keep telecommunication providers from
trenching and cutting city streets, and keeps the City from imposing a heavy
burden on them to repair those streets at the time they are trenched. Mr. Dowdy
explained even in established neighborhoods it is still more practical to push
underneath the driveways and go behind existing utilities.
IV. Types of City Owned Properties Attractive to Companies
This item was discussed immediately following Finance Director Supler's
comments under Item Number II.
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August 11, 1997
Page No. 5
Associate Planner Keith Nevin explained the Telecommunication Act of 1996
deregulated the telecommunication industry that opened up the market to other
companies to get involved in providing telecommunication service.
The City of Auburn is now required to look at its existing code in order to keep
pace with technology change and market place. A determination was made on
what City code revisions are required. Planning's review included the review of
the subdivision, zoning, nuisance codes. They concluded that the zoning code
required modifications. Within the zoning code staff added performance
standards for noise and light, new definitions, and supplemental development
standards that will apply to new cellular towers with the city.
Mr. Nevin presented a map that identifies locations that could possibly have a
new structure mounted antennas or free standing antennas on towers. Mr.
Nevin pointed out that city owned property is appealing to the telecommunication
providers, Currently, existing towers are in the M-1 and M-2 zones along the 167
corridor. Proposed zoning code amendments include adding additional zones
that will allow free standing antennas such as heavy commercial and public
zones. Mr. Nevin drew attention to public zones areas that include city parks
and watersheds. These areas stand out away from the Mol and M-2 areas.
In answer to a questions raised by Councilmember Brothers, Mr. Nevin
explained the towers are a monopole which is similar to a telephone pole except
it is approximately 80-100 foot in height made of steel with at least one antenna
array. The antenna array is shaped like a triangle and can have two to four
antennas along each side. The proposed zoning amendments further add
requirements for painting and siting to minimize visual impacts. Existing sites in
Auburn were discussed. With regard to the total number of poles that will be
necessary, it is hard to predict due to the change in technology.
V. City Code Review & Revisions
Mr. Dowdy noted existing City codes that will need modifications to achieve
consistency with the Telecommunication Act. The include the Underground
Code regulating aerial and conversion to underground for all utilities; the Cable
TV Code regulating the Cable TV franchise; the Excavation Permit Code that is
widely used today, but does not allow regulation of aerial activity; and the Right
of Way Permit Code. The proposed update to the Auburn City Code will
consider allowing for a formal appeal process such as the Hearing Examiner, in
order that perceived equity among all parties regulated in the City's Right of Way
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August 11, 1997
Page No. 6
Permit Code is achieved. Other revisions include the authority for improving our
standards and publishing standards, minimizing pavement impacts when
feasible, obtain full payment restoration where trenching is essential, mandate
whenever there is a crossing at our street that they go trenchless so that we are
not obstructing traffic unless we have to, minimize construction, protect existing
City utilities, adequate property owner notification, addressing property owner
rights by establishing standards, shared use of trenches, and timely responses.
VI. Issues Assignments by Department
Dennis Dowdy discussed the new elements of the telecommunication ordinance.
The proposed ordinance will consist of a business registration, franchise
agreement requirement, right of way use agreement, and leases of City owned
property. Dennis Dowdy distributed a handout outlining departmental
responsibility in preparation of the proposed ordinance.
VII. Questions/Discussion
Discussion centered around a question raised by Councilmember Brothers
regarding whether extra cable capacity can be constructed for future use.
Dennis Dowdy responded the City plans to encourage telecommunication
providers to install extra conduit with the guarantee that a future user of conduit
would pay back the original provider. The Telecommunications Act requires the
provider to share the extra capacity.
Councilmember Wagner raised a question with regard to the right of way
capacity and agility liability. Dennis Dowdy responded that staff has not looked
at these aspects. Other jurisdictions are looking at different right of way
assessments possibilities for franchises and valuation of the right of way.
Councilmember Poe questioned if the City will be able to charge the same for a
utility easement through private property or public right of way. Mr. Dowdy
directed attention to a main arterial in that they are non-exclusive easements.
Where there is a non-exclusive easement City may be able to require a provider
to install conduit in that easement with all other private utilities. This issue is will
be research further.
Ms. Ausman asked for Council direction with regard to the lease of City owned
properties. Staff will be looking at these issues in the near future and intend to
place the use of City owned property under one central area. Mayor Booth
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Page No. 7
urged the Council to submit any questions or comments to his office review and
comment.
VIII. Adjournment
The meeting was adjourned at 7:30 PM.
Approved this 2nd day of September, 1997.
Charles A. Booth, Mayor Robin Wohlhueter, City Clerk
97M8-11