HomeMy WebLinkAbout4414 Ordinance ORDINANCE NO. "T/47/
AN ORDINANCE of the City of Pasco, Washington,
Amending PMC Chapter 15.40 "Franchises"; Amending PMC
15.60 "Appeal of City Determination"; and Amending PMC
15.10.050 "Determination by City"
WHEREAS, the City, in the management of its right-of-way to balance the primary
purpose of its right-of-ways for vehicular and pedestrian transportation, and at the same time
balancing the need to accommodate the distribution of utilities including wireless technologies
while preserving the natural and aesthetic environment of the City; and
WHEREAS, the City may regulate, on a nondiscriminatory basis, the location of utilizes
within its right-of-ways through the grant of franchise rights to public agencies and private
companies for the distribution of utility services vital to our community; and
WHEREAS, to provide for a common procedure for the application, processing, and
management of franchises to provide for an equitable and equal opportunity for franchise service
providers to have access to the public right-of-ways and preserving for the citizens of the City,
not only a safe and efficient corridor for transportation, but also for the distribution of utility
services. NOW, THEREFORE,
THE CITY COUNCIL OF THE CITY OF PASCO, WASHINGTON, DO ORDAIN
AS FOLLOWS:
Section 1. That Chapter 15.40 entitled "Franchises" of the Pasco Municipal Code
shall be and hereby is amended and shall read as follows:
15.40.010 FRANCHISE REQUIRED. The City reserves the right to authorize right-
of-way uses by utilities and other service providers in order to preserve a safe and efficient
access and transportation circulation, installation and maintenance of publicly-owned utilities
while permitting the location of other utility service providers by way of a Franchise Agreement
consistent with State and Federal laws and the best interest of the City's residents. A Franchise
shall be required of any communications provider or carri- - • : -
in the City utility provider including communications, telecommunications, data transmission,
telecommunications facilities, telecommunications services, and other utility services. Provided,
however, that a Right of Way Use Permit may, with the approval of the City Engineer, be
general public.• An example of such a network or system includes, but is not limited to, a
Ordinance Amending PMC 15.40,PMC 15.60
and PMC 15.10.050-Franchise- 1
B) De minimis uses of public ways, including such uses made in conjunction with a
(Ord. 3287 Sec. 1, 1998.)
15.40.020 RIGHT-OF-WAY USE PERMIT. The Director may grant in lieu of a
Franchise, a right-of-way use permit in the following circumstances:
A) Privately owned telecommunications networks or systems which are operated
solely for purposes other than offering telecommunications services to other persons or the
general public. An example of such a network or system includes, but is not limited to, a
telecommunications network connecting_two business facilities under common ownership or
control,when said facilities are not offered to other business entities or persons.
B) De minimis uses of public ways, including such uses made in conjunction with a
wireless telecommunications facility located entirely upon publicly or privately owned property.
15.40.0230 FRANCHISE TERRITORY. Unless otherwise provide in a franchise, a
franchise granted hereunder shall be limited to the specific geographic area of the City to be
served by the franchisee, and the specific public ways necessary to serve such areas.
15.40.0340 CABLE FRANCHISE. A franchise shall be required for providing cable
service. Cable franchises are governed by the provisions of Chapter 15.95. In the event of any
conflict between Chapter 15.95 and any other provisions of Title 15, the provision of Chapter
15.9 shall be controlling.
15.40.050 SMALL CELL TOWER DEPLOYMENT FRANCHISE. A franchise
shall be required for providing small cell tower deployment service. Small cell tower
deployment franchise are governed by the provisions of Chapter 15.100 and Chapter 15.110.
Application, approval, and granting_of the small cell tower franchise and small cell permits,
collectively a Master Permit, shall be done administratively as provided by those Chapters and
shall not require the approval of the City Council. In the event of any conflict between Chapter
15.100 and Chapter 15.110 and any other provision of this Title, the provisions of those Chapters
shall be controlling.
15.40.060 APPLICATION — CONTENTS. The Director is authorized to establish
an application form or forms appropriate for telecommunications entities, public utilities and
other qualified service providers to apply for a franchise. The form shall contain at a minimum:
A) Information identifying the applicant, its corporate or other organizational
structure, and the agent or individual filling out the application.
B) Property and facility information including, but not limited to:
1) The nature of the application as an application for a new franchise, an
application for renewal or amendment or an application for the transfer of a franchise.
Ordinance Amending PMC 15.40,PMC 15.60
and PMC 15.10.050-Franchise-2
2) A description of the specific services that the applicant expects to provide
within the City including whether the services will be provided to the general public, to
commercial and/or residential customers or to other utilities and service providers.
3) A general description of the facilities to be located in the right-of-way
including,but not limited to,wireline facilities, cable service, telecommunications service
facilities, conduits, pipelines, and other facilities appropriate to the specific utility or
service providers' utilization of the right-of-way.
4) Where appropriate, information relating to pole attachment or lease
agreements with the owners of other facilities located in the right-of-way.
5) Any licenses, certificates or authorizations required from the Federal
Communications Commission, the Washington Utilities and Transportation Commission
and any other Federal or State agency with jurisdiction over the proposed activities to be
conducted in the right-of-way.
6) Information relating to utility taxes including a description of the services
provided and any and all State and local taxes which may apply.
7) The service area for which the franchise is requested, including a map of
the area to be covered by the franchise and specific locations of the initial build out and,
if known, proposes future build out locations including which proposed facilities will be
underground, ground based and/or aerial.
8) Upon request from the City, financial statements prepared in accordance
with generally accepted accounting principles demonstrating the applicant's financial
ability to construct, operate, maintain, relocate and remove its telecommunications
facilities. This provision shall not apply when prohibited by the Federal
Telecommunications Act.
9) A list of all cities or towns in the State of Washington in which the
applicant holds a franchise.
10) Such other information as the Director, in his discretion, shall deem
appropriate.
15.40.070 FEE DEPOSIT. The Director shall establish a fee deposit based upon the
nature of the facility. The fee deposit shall be per PMC Section. 3.07.105. The fee deposit shall
be supplemented from time to time when the actual administrative costs authorized for collection
by the City from the applicant pursuant to RCW 35.21.860 have been exceeded. Failure to make
or supplement a deposit within ten (10) business days of notification of the need to supplement
shall suspend processing of any application and toll any period established for review by this
Chapter or State or Federal law as an incomplete application. Any unexpended portion of the
deposit shall be returned to the applicant when the application has been approved or denied.
Ordinance Amending PMC 15.40,PMC 15.60
and PMC 15.10.050-Franchise-3
15.40.080 COMPLETENESS. Completeness of the application shall be determined
in accordance with this Section. Except for applicationspursuant to Chapter 15.100 and 15.110,
the Director shall review the application for completeness and notify the applicant within twenty
(20) days of submission whether the application is complete, provided, however, that an
applicant may consent to a different completeness review period. A service provider may
resubmit an incomplete application within twenty (20) days of notice by the Director. Failure to
resubmit an application in a timely manner shall be deemed a withdrawal of that application. An
applicant shall be notified in writing of the approval or denial of the application. No application
shall be deemed complete without the fee deposit as required by PMC 3.07.105. The Director
shall make a final decision to approve or deny the franchise application within sixty (60) days for
franchises for small wireless facility applying for a collocation and ninety (90) days for all other
franchise applications..
15.40.090 PUBLIC COMMENT. The City shall provide notice of a complete
application for a franchise on the City's website with a link to the franchise application. This
notice requirement shall also apply to existing franchisees applying for a Small Cell Permit for
small cell deployment. The notice shall include an e-mail contact and telephone number for the
applicant to answer citizen inquiries. The applicant is encouraged to host informational meetings
for the public regarding the deployment. The City shall post meeting notices, if any, for
informational meetings on its website. These meetings are for the public's information and are
neither hearings nor part of any land use appeal process.
15.40.100 TELECOMMUNICATIONS SERVICES — TIME PERIOD FOR
CONSIDERATION.
A) Applications for a franchise for a telecommunications services, other than small
cell franchises and permits, shall be acted upon by the City within ninety (90) days for
collocation on an existing structure; and one hundred and fifty (150) days for deployment on a
new structure commencing on the date the service provider files a complete application and fee
deposit with the City except:
1) With the agreement of the applicant; or
2) Where the franchise requires action of the City Council and such action
cannot reasonably be obtained within the applicable period.
B) The City shall act upon a request for a right-of-way use permit within ninety (90) .
days of receipt of a complete application and permit fee, unless the applicant consents to a
different time period.
15.40.105 ADDITIONAL FRANCHISE REQUIREMENTS. All franchises and
right-of-way use permits issued pursuant to this Chapter shall be subject to the terms and
conditions of PMC Chapter 15.70.
Section 2. That Section 15.10.050 entitled "Determination by City" of the Pasco
Municipal Code shall be and hereby is amended and shall read as follows:
Ordinance Amending PMC 15.40,PMC 15.60
and PMC 15.10.050-Franchise-4
15.10.050 DETERMINATION BY CITY.
A) Right-of-Way Use Permits. Within 90 (90) days after receiving a complete
application for a Right-of-Way Use Permit, the City Engineer or her or his designee shall issue a
written determination granting or denying the permit application in whole or in part. If the
application is denied, the written determination shall include the reason(s) for denial. The
decision to grant or deny an application shall be based upon the following standards:
1) Whenever the applicant has received all requisite licenses, certificates, and
authorizations from the Federal Communications Commission, the Washington Utilities
and Transportation Commission, and any other Federal or State agency with jurisdiction
over the activities proposed by the applicant;
2) The capacity of the public ways to accommodate the applicant's proposed
facilities;
3) The capacity of the public ways to accommodate additional utility, cable,
open video, and telecommunications facilities if the permit is granted;
4) The damage or disruption, if any, of public or private facilities,
improvements, service,travel or landscaping if the permit is granted;
5) The public interest in minimizing the cost and disruption of construction
with the public ways;
6) The service that applicant will provide to the community and region;
7) The effect, if any, on public health, safety and welfare if the permit is
granted;
8) The availability of alternate routes and/or locations for the proposed
facilities;
9) Applicable Federal and State communications laws, regulations and
policies;
10) Such other factors as may demonstrate that the grant to use the public
ways will serve the community interest; and
11) Such other and future factors as may be deemed appropriate by the City.
B) Other Franchises. Other franchises for small cell tower deployment as provided
in PMC 15.40.050, telecommunication franchises as provided in PMC 15.40.100, and all other
franchises shall., within 120 days one hundred fifty (150) days of receiving a complete
application under Pasco Municipal Code Section 15.10.040 for a Franchise, the City shall issue a
Ordinance Amending PMC 15.40,PMC 15.60
and PMC 15.10.050-Franchise-5
written determination granting or denying the application in whole or in part. Prior to granting
or denying a Franchise, the City Council shall conduct a public hearing and make a decision
upon the standards set forth in Pasco Municipal Code Section 15.10.050(A). Pursuant to RCW
35A.47.040, the City Council shall not approve any Franchise hereunder until the next regularly
schedule Council meeting following the public hearing. If the application is denied, the written
determination shall include the reason for denial.
C) Facilities Leases. Recognizing that the City is under no obligation to grant a
Facilities Lease for the use of City property, the City shall strive to consider and take action on
applications for Facilities Leases within ninety (90) days after receiving a complete application
for such a lease. When such action is taken,the City Engineer shall issue a written determination
granting or denying the lease in whole or in part, applying the standards set forth below. If the
lease application is denied,the written determination shall include the reason for denial, if any.
1) The capacity of the City property and public ways to accommodate the
applicant's proposed facilities.
2) The capacity of the City property and public ways to accommodate
additional utility and telecommunications facilities if the lease is granted.
3) The damage or disruption, if any, of public or private facilities,
improvements, service, travel or landscaping if the lease is granted.
4) The public interest in minimizing the cost and disruption of construction
upon City property and within the public ways.
5) The service that applicant will provide to the community and region.
6) The effect, if any, on public health, safety, and welfare if the lease
requested is approved.
7) The availability of alternate routes and/or locations for the proposed
facilities.
8) Whether the applicant is in compliance with applicable Federal and State
telecommunications laws, regulations and policies, including, but not limited to, the
registration requirements administered by the Washington Utilities and Transportation
Commission.
9) The potential for radio frequency and other interference with existing
public and private telecommunications or other facilities located upon the City property.
10) The potential for radio frequency and other interference or impacts upon
residential, commercial, and other uses located within the vicinity of the City property.
Ordinance Amending PMC 15.40,PMC 15.60
and PMC 15.10.050-Franchise-6
11) Such other factors as may demonstrate that the lease to use the City
property will serve the community interest. (Ord. 3287 Sec. 1, 1998.)
Section 3. That Chapter 15.60 entitled "Appeal of City Determination" of the Pasco
Municipal Code shall be and hereby is amended to read as follows:
15.60.010 APPEAL PROCEDURE. An applicant aggrieved by the denial or
conditioning of a Right-of-Way Use Permit, Small Cell Permit, Franchise, Construction Permit,
or the renewal thereof shall have the right to appeal to the City Council as follows Hearing
Examiner pursuant to PMC Chapter 2.19.
A) All appeals filed pursuant to this Section must be filed in writing with the City
Engineer Director within ten(10)working days of the date of the decision appealed from;
B) All appeals filed pursuant to this Section shall specify the error of law of fact, or
new evidence which could not have been reasonably available at the time of the City Engineer's
Director's decision, which shall constitute the basis of the appeal;
C) Upon receipt of a timely written notice of appeal, the ' - •_ -- • •- •-
e tablishedDirector shall note the appeal for hearing before the Hearing Examiner within sixty
(60) days of filing the appeal.
D) All relevant evidence shall be received during the hearing on the appeal;
E) Unless substantial relevant information is presented which was not considered by
the City EngineerDirector, the decision of the City Engineer Director shall be accorded
substantial weight, but may be reversed or modified by the City Council Hearing Examiner if,
after considering all of the evidence in light of the applicable goals, policies, and provisions
hereof, the City Council Hearing Examiner determines that a mistake has been made. Where
substantial new relevant information which was not considered in the making of the decision
appealed from has been presented, the City Council Hearing Examiner shall make its decision
only upon the basis of the facts presented at the hearing of the appeal, or may elect to remand the
matter for reconsideration by the City Engineer Director in light of the additional information.
F) For all appeals decided pursuant to this Section, the City shall provide a record
that shall consist of written fording and conclusions and a taped transcript;
G) Unless otherwise provided by State statute or other law, all actions seeking review
of a final action of the City, whether in the form of an appeal, declaratory judgment action,
petition for writ of review, or other extraordinary writ, or in any other form shall be filed
pursuant to the general appeal period as set forth in Chapter 1.01 of this Code, or are thereafter
barred; and
H) No action to obtain judicial review shall be commenced unless all rights of appeal
provided by this Section are fully exhausted. The cost of transcription of all records ordered
Ordinance Amending PMC 15.40,PMC 15.60
and PMC 15.10.050-Franchise-7
certified by the Court for such review shall be borne by the party seeking such review. A copy
of each transcript prepared by such party shall be submitted to the City for confirmation of its
accuracy. (Ord. 3877, 2008; Ord. 3287 Sec. 1, 1998.)
Section 4. This Ordinance shall take full force and effect five (5) days after its
approval,passage and publication as required by law.
PASSED by the City Council of the City of Pasco, Washington, and approved as
provided by law this ' lay of \Q'"/A Q Y/2019.
Matt Watkins, Mayor
AT ST: APPR D AS TO FORM:
A. /« • 193
Daniela Eric son City Clerk Leland B. Kerr, City Attorney
Ordinance Amending PMC 15.40,PMC 15.60
and PMC 15.10.050-Franchise-8