Loading...
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 Ordinance No. 6707 December 3, 2018 Page 1 of 9 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, Ordinance No. 6707 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 1A... WANCY . �.. . � . - 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 Ordinance No. 6707 December 3, 2018 Page 4 of 9 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 Ordinance No. 6707 December 3, 2018 Page 5 of 9 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. Ordinance No. 6707 December 3, 2018 Page 6 of 9 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. Ordinance No. 6707 December 3, 2018 Page 7 of 9 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. Ordinance No. 6707 December 3, 2018 Page 8 of 9 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. Ordinance No. 6707 December 3, 2018 Page 9 of 9