HomeMy WebLinkAbout4464 Ordinance - Amending PMC Chapter 15.100 Small Cell Tower Deployment within the Public Right-of-WayORDINANCE NO. 4464
AN ORDINANCE of the City of Pasco, Washington,
Amending Ordinance No. 4415; and Amending PMC Chapter
15.100 "Small Cell Tower Deployment Within the Public Right -
of -Way"
WHEREAS, the City having adopted Ordinance No. 4415 to facilitate the implementation
of broadband services within the City; and
WHEREAS, the enactment of Ordinance No. 4415 was done in haste to meet the Federal
Communications Declaratory Ruling and Order effective on January 14, 2019; and
WHEREAS, since its adoption, corrections and other minor changes have been identified
to clarify the application of this Ordinance. NOW, THEREFORE,
THE CITY COUNCIL OF THE CITY OF PASCO, WASHINGTON, DO ORDAIN
AS FOLLOWS:
Section 1. That Chapter 15.100 entitled "Small Cell Tower Deployment Within the
Public Right -of -Way" of the Pasco Municipal Code shall be amended and shall read as follows:
Chanter 15.100
SMALL CELL TOWER DEPLOYMENT WITHIN THE PUBLIC RIGHT OFWAY
Sections:
15.100.010
Purpose and Goal.
15.100.020
Permitted Communications Facility— Administrative Review.
15.100.030
Action on Administrative Review Applications.
15.100.040
Review Process.
15.100.050
Development Standards — Small Wireless Facilities.
15.100.060
Design Standards — Small Wireless Facilitates.
15.100.070
Target Areas.
15.100.080
Grant of Permit.
15.100.090
Exceptions.
15.100.100
Violations of this Chapter.
15.100.010 PURPOSE AND GOAL.
A) The purpose of this Chapter is to provide a process for permitting the deployment
of small cell and microcell technology within the City of Pasco. The goals of this Chapter are:
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1) To provide a permitting system for service providers to acquire a Franchise
to utilize the public right -or -way and a permit to deploy small cell technology within the
City's right-of-ways.
2) Establish target areas within which specific design standards are applicable
to preserve the historic and aesthetic nature of the neighborhoods.
3) Establish design standards for facilities in both target areas and non -target
areas within the City.
4) Secure for the City the opportunity for utilization of smart city initiative
platforms to enhance municipal purposes.
5) Provide for an expedited process of review and permitting.
B) Service providers who seek to utilize the public right-of-way for small cell
deployment in order to provide wireless communication, data transmission, or other related
services to the citizens of the City must have a valid Franchise as required by PMC 15.40 and a
Small Cell Permit to deploy the technology. Entities with Franchises who wish to utilize small
cell deployment to upgrade or expand their services shall utilize the process set forth in this Chapter
aFA for implementing Small Cell Permits to deploy their technology and obtain design approval
of specific installations. The Small Cell Permit process administers deployment under the
Franchise. The Franchise application, and application for small cell permit, shall be processed
concurrently, together with any required State Environmental Policy Act (SEPA) review
concurrently as one Master Permit within the meaning of RCW 35.99.010(3) and RCW 35.99.030.
15.100.020 PERMITTED COMMUNICATIONS FACILITY - - ADMINISTRATIVE
REVIEW.
A) Permitted Uses. The following uses within the public right-of-way shall be a
permitted use, subject to administrative review only and issuance of a Small Cell Permit. All such
uses shall be in accordance with all other applicable revisions of this Chapter:
1) Collocation of a small wireless facility or a Collocation that qualifies as an
eligible facilities request;
2) Modification of a pole, tower, or support structure, or replacement of a pole,
for Collocation of a communications facility that qualifies as an eligible facilities request,
or involves a small wireless facility that does not exceed the maximum size limitations as
provided in Section 15.100.030100.050. All other modifications or replacements that
exceed these limitations are subject to securing a Special Use Permit as required by PMC
25.20086.
3) Construction of a new pole or a monopole tower (but no other type of tower)
to be used for Collocation of small wireless facilities that does not exceed the maximum
height set forth in PMC 15.100030100.050.
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4) Construction of a communications facility, other than those set forth above,
involving the installation of coaxial, fiber optic or other cabling, that is installed
underground (direct, buried, or in conduit) or aboveground between two or more poles, or
a pole and a tower and/or support structure, and related equipment and appurtenances.
5) Joint location within or upon an existing communications facility within the
pre -approved, or previously approved facility location or target areas as defined by this
Chapter and meeting the design specifications provided herein.
B) Permit Required. No person shall place a facility described above in the public
right-of-way without first filing an application for same and obtain a permit therefor, except as
otherwise expressly provided in this Chapter.
C) Proprietary or Confidential Information of Applicant. The City shall make
accepted applications publicly available to the extent required by RCW 42.56 (Public Records
Act). Applicant shall designate portions of its application materials that it reasonably believes
contains proprietary or confidential information as "proprietary" or "confidential" by clearly
marking each portion of such materials accordingly. In the event of a public records request for
such marked materials, the City shall provide the applicant notice to seek Court protection of such
records pursuant to RCW 42.56.540.
D) Administrative Review Application Requirements. The application shall be made
by the applicable service provider or its duly authorized representative and shall contain the
following:
1) The applicant's name, address, telephone number, and e-mail address
including emergency contact information for the applicant.
2) The names, addresses, telephone numbers, and e-mail addresses of all
consultants, if any, acting on behalf of the City with respect to the filing of the application.
3) Specific location information including GIS coordinates for all facilities,
and a general description of the proposed work and the purposes and intent of the proposed
facility. The scope and detail of such description shall be appropriate to the nature and
character of the work to be performed, with special emphasis on those matters likely to be
affected or impacted by the work performed.
4) Detailed construction drawings regarding the proposed facility.
5) Conduit and/or ground -mounted equipment necessary for and intended for
use in the deployment shall also be specified regardless of whether the additional facilities
are to be constructed by the applicant or leased from an infrastructure provider.
6) To the extent the proposed facility involves Collocation on a pole, tower, or
support structure, a structural report performed by a duly licensed engineer evidencing that
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the pole, tower, or support structure will structurally support the Collocation (or that the
pole, tower, or support structure will be modified to meet the structural requirements) in
accordance with applicable codes.
7) For any aboveground facilities, visual depictions or representations, if not
included in the construction drawings, and for new aboveground facilities before and after
photo simulations.
8) If a preapproved facility location capable of joint location exists wi
within 300 feet of the specific location iefefmatien identified in subsection 3) above, the
applicant shall determine whether space is available for the applicant's small wireless
facility and provide demonstrated technical evidence justifying the applicant's failure to
utilize such site.
E) Ordinary Maintenance and Replacement. An application shall not be required for
ordinary maintenance and replacement, other than to the extent required for such work within the
right-of-way, including but not limited to, street opening permit, right-of-way permit, electrical
permit, and street closure permit.
F) Information Updates. Any material change to information contained in an
application shall be submitted in writing to the City within thirty (30) days after the change
necessitating the amendment.
G) Applicable Fees and Rates. All applications required by this Chapter shall be
accompanied by the fees which shall include:
1) Application fee.
2) Make-ready fees and rates including annual right-of-way occupancy rate,
3) Annual attachment rate as defined under PMC 3.35.115 3.^� o;.10r
15.100.030 ACTION ON ADMINISTRATIVE REVIEW APPLICATIONS.
A) Review of Small Wireless Facilities Applications. The
rights granted under a Franchise are implemented through the issuance of Small Cell Permits
which, when in conformance with the applicable provisions of this Chapter, shall be issued on
nondiscriminatory terms and conditions. The Franchise application may be accompanied by one
or more applications for a Small Cell Permit to deploy small cells. An initial Franchise and all
related Small Cells Permit applications shall be processed concurrently as one Master Permit. See
RCW 35.99.010(3) for the definition of "Master Permit."
1) The Director may approve Small Cell Permit application submitted in
compliance with this Chapter. The Director may approve batched applications of up to
twenty (20) sites specified in one Small Cell Permit application for processing. The
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Director may approve up to ten (10) additional sites in order to consider small cell sites
within one logical service area in one application.
2) Issuance of a Small Cell Permit to install a small cell deployment shall be
contingent upon approval of a Franchise or the possession of a valid Franchise.
3) If more than one application for a Small Cell Permit is submitted by an
applicant, they shall be considered in the order received. If multiple applications are
submitted on the same date, the applicant shall indicate which application should be
considered first. All Small Cell Permits which are submitted in conjunction with a
Franchise application shall be considered as one Master Permit.
(a) PROVIDED, HOWEVER, that an applicant with an existing
Franchisee may, at the applicant's sole discretion, elect to utilize the expedited
review process set forth in PMC 15.100.040(E).
(b) Any element of a deployment which qualifies as either an Eligible
Facilities Request or a Collocation shall 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.
4) The Director may approve, deny, or conditionally approve all or any portion
of the sites proposed in the Small Cell Permit application.
5) Any application for a Franchise or Small Cell Permit which contains an
element which is not exempt from SEPA review shall comply with the mitigation
conditions of any applicable Mitigated Declaration of Nonsignificance (MDNS) or shall
simultaneously apply with the requirements of Chapter 43.21 C RCW and PMC Title 23.
6) RF Certification. The applicant shall submit a sworn affidavit signed by an
RF Engineer with knowledge of the proposed project affirming that the small cell
deployment will be compliant with all FCC and other governmental regulations in
connection with human exposure to radio frequency emissions for every frequency at
which the small cell facility will operate. If facilities necessary to the Small Cell
Deployment are to be provided by another Franchisee, then the a_....tl C --Al Depj
to be provided by w Franehises, then the Small Cell Deployment in the initial
Franchise or in a subsequent Small Cell Permit shall be conditioned on an RF Certification
showing the cumulative impact of the RF emissions on the entire installation.
7) Regulatory Authorization. Issuance of the Use Permit for the facilities shall
also be contingent upon the applicant's provision of proof of FCC and other regulatory
approvals required to provide the service(s) or utilize the technologies sought to be
installed.
15.100.040 REVIEW PROCESS. The following provisions relate to applications for a
Franchise and/or Small Cell Permit for small cell deployments:
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A) Timing for Review.
1) Application. The Director shall within ten (10) days of receiving an
application determine and notify the applicant whether the application is complete; or if an
application is incomplete, the City must specifically identify the missing information, and
may toll the approval as provided below. The applicant may resubmit the completed
application within twenty (20) days without additional charge, and the subsequent review
will be limited to the specifically identified missing information subsequently completed,
except to the extent material changes to the proposed facility have been made by the
applicant (other than those requested or required by the City). In which case, a new
application and application fee must be submitted.
2) Completion for Review. Within sixty (60) days of the date of determination
of the completed application, the Director shall approve, approve with modifications, or
deny an application for a Collocation, and ninety (90) days for an application for a new
communications facility structure.
3) Tolling. Other than tolling the time for review resulting from an incomplete
application, review may only be tolled by mutual agreement between the applicant and the
City.
4) The Director must advise the applicant in writing of its final decision, and
in the final decision document the basis for a denial, including specific code provisions
and/or regulations on which the denial was based. The decision to deny the application
shall be in writing and supported by substantial evidence contained in a written record,
publicly released, and sent to the applicant. The written decision, supported by such
substantial evidence, shall constitute final action by the City. The review period or "shot
clock" shall run until the written decision, supported by substantial evidence, is released
and sent to the applicant contemporaneously. The applicant may cure the deficiencies
identified by the Director and resubmit the application within thirty (30) days of the denial
without paying an additional application fee unless denial was issued due to noncompliance
with design guidelines or other requirements under this Chapter (in which case, a new
application fee must be paid). The Director shall approve or deny the revised application
within thirty (30) days of receipt of the revised application. The subsequent review by the
Director shall be limited to the deficiency cited in the original denial and any material
changes to the application made to cure any identified deficiencies.
5) If the Director fails to act on an application within the review period
provided in subsection 6) above, the applicant shall immediately provide the Director
written notice that the time period for acting has lapsed, and the Director then has twenty
(20) days after receipt of such notice when within which to render '-s-a_written decision.
Iif the Director fails to do so, the application is then deemed approved by passage of time
and operation of law. The applicant shall provide notice to the Director at least seven (7)
days prior to beginning construction or Collocation pursuant to a permit issued to a deemed
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approved application, and such notice shall not be construed as an additional opportunity
for objection by the Director or other entity to the deployment.
6) Any party with standing aggrieved by decision of the Director, may appeal
the decision pursuant to PMC Chapter 2.501-4.
B) Review of Facilities.
1) Review of the site locations proposed by the applicant shall be governed by
the provisions of this Chapter, State law, and Federal statutes and regulations, as well as
applicable case law. Applicants for Franchises and the Small Cell Permits (Master Permits)
which implement the Franchise shall be treated in a competitively neutral and non-
discriminatory manner with other service providers utilizing supporting infrastructure
which is functionally equivalent, that is, service providers whose facilities are similarly
situated in terms of structure, placement or cumulative impacts. Franchise and Small Cell
Permit review under this Chapter shall neither prohibit nor have the effect of prohibiting
the ability of an applicant to provide telecommunications services.
2) Review of eligible facilities requests. Notwithstanding any of the
provisions of this Chapter, the City shall approve within sixty (60) days of the
determination of a completed application and may not deny applications for eligible
facilities requests according to the procedures established under 47 CFR 1.40001(c).
C) Underground Utility Requirements. Compliance with nondiscriminatory
undergrounding requirements that prohibit electric, telecommunications, and cable providers from
installation a of vertical or pole structures in the public right-of-way without prior discretionary
review and approval in areas zoned for single-family residential and downtown commercial shall
be required, provided, however, such requirement shall not prohibit the replacement of existing
structures. Horizontal runs shall be placed underground in all areas where electric,
telecommunications, and cable lines are underground, unless otherwise approved by the Director,
or designee, in connection with temporary installations. The above requirements are
supplementary to those requirements for undergrounding as provided in Chapter 15.70.
D) Sufficient Available Right -of -Way. The City shall have the power to establish
reasonable limitations on the placement of new or additional facilities within specific congested
segments of the public right-of-way if there is insufficient space to accommodate all of the requests
of applicants to safely and efficiently occupy the right-of-way. The City shall strive to the extent
possible to accommodate all existing users and potential users of the public right-of-way, but shall
be guided primarily by considerations of the public interest, the public's need for the particular
utility or other service, the width and physical condition of the public right-of-way, the time of
year with respect to essential utilities, the protection of existing facilities in the public right-of-
way, and future plans for public improvements (including right-of-way widening), and
development projects which have been determined to be in the public's interest.
E) Expedited Review. An applicant that has an existing Franchise, or a pending
Franchise application electing to seek expedited review for the location of one or more small
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wireless facilities on a previously approved communications facility having the capacity to house
joint location of multiple wireless providers meeting the development standards provided in PMC
15.100.050 and PMC 15.100.060, and provided the RF certification and the regulatory
authorization as required by PMC 15.100.030(6) and PMC 15.100.030(7) shall be granted a small
cell permit within thirty (30) days of a completed application and proof of compliance with the
requirements above.
15.100.050 DEVELOPMENT STANDARDS — SMALL WIRELESS FACILITIES.
A) Maximum Size of Permitted Use. Small wireless facilities and new, modified, or
replacement poles, towers, and support structures (subject to the further limitation for replacement
of support structure as defined in PMC 15.10.025(AD)) to be used for Collocation of small wireless
facilities may be placed in the public right-of-way as a permitted use in accordance with Section
15.100.020 subject to the following requirements:
1) Each new, modified, or replaced pole, tower, or support structure installed
in the public right-of-way shall not:
(a) Exceed five (5) feet above the tallest existing pole, tower, or support
structure (not exceeding fifty (50) feet) as of the effective date of this Chapter, and
located within five hundred (500) feet of the new proposed pole, support structure.
(b) Exceed ten (10) feet on any utility distribution pole where required
by the electrical utility separation requirements; or
(c) Exceed fifty (50) feet above ground level, whichever is greater.
(d) Be no closer than three hundred (300) feet from an existing
communications facility_ within any residential zone target area or location where
due to the nature and character of the neighborhood such saturation would be
incompatible with nearby land uses, impact traffic safety, and other uses of the
right-of-way: and be not unreasonably burdensome to the applicant
B) Minor Deviations,
1) The Director may authorize minor deviations in the Small Cell Permit from
the dimensional design and concealment technologies referenced in the Franchise or design
standard.
2) A deviation in height of the pole up to ten (10) feet above the height of the
existing pole, by the Franchise may be permitted.
3) Deviations in the dimensions or volume of small cell facilities which do not
exceed the cumulative total provided by the definition of a small cell facility in RCW
80.36.375 may be considered a minor deviation when an applicant replaces components of
an existing, approved small cell facility. Similarly, the addition of antennae on a pole, not
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to exceed a cumulative total of six (6) cubic feet shall be considered a minor deviation.
Provided, however, that in each instance the new or revised facilities shall not defeat the
concealment features set by the City's generally applicable pole design standard adopted
pursuant to the Franchise.
4) Small Cell Permits to install facilities seeking approval of minor deviations
shall be processed within ninety (90) days of receipt of a complete application mad or final
approval of a Franchise, whichever occurs last.
5) The decision of the Director to approve a Small Cell Permit with a minor
deviation, if any, shall be final.
C) Significant Deviations. Any request for significant deviations from the approved
small cell facilities design designated in the Franchise, Small Cell Permit or City's design
standards shall be considered under the provisions of PMC 25.20086 "Special Permits", and if
applicable, pursuant to the 4meli*ess timelines established by Chapter 15.100. An applicant
seeking approval of a new pole or a replacement pole in a restricted zone or undergrounded areas,
shall be subject to the same review process pursuant to Chapter 25.20086 PMC.
D) Subject to the City's rights to additional ducts or conduits provided by RCW
35.99.070, leasing of excess space in ducts, conduits, and on a pole is a matter between interested
parties (subject to any applicable pole attachment regulations and any other applicable statutory,
regulatory or contractual obligations); however, lessees of such physical facilities must still
comply with the terms of this Chapter, unless otherwise expressly exempted by the City.
E) Discretionary Review Requirements. Unless an applicant seeks to install a
communication facility that conforms to the specific uses, size, height, and separation limitations
as set forth above, or involves ordinary maintenance, repairs and replacement, the application shall
be subject to the provisions of PMC 25.20086 "Special Permits", and subject to the City's design
standards and regulations applicable to the construction or placement of such facilities.
F) Additional Right -of -Way Franchise Standards. In addition to the standards
provided in this Chapter, any permit issued under this Chapter shall be subject to the requirements
of PMC 15.70.
G) Limitations on Location. No small wireless facility maybe located upon any traffic
control device, traffic signal poles, poles supporting traffic or pedestrian flashers, beacons or signs,
or any wireless facility which would impede the visibility of a traffic control device or create a
hazard to other users of the right-of-way.
15.100.060 DESIGN STANDARDS — SMALL WIRELESS FACILITIES. In addition
to those standards defined by PMC 15.10.025(AG) and PMC 15.100.050, small wireless facility
structures, communications facilities and wireless facilities shall conform to the design standards
for small cell tower deployment adopted by the City and incorporated herein by this reference as
Exhibit A.
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15.100.070 TARGET AREAS: »
whefe the City has identified the afeas having histefie valtie, expended signifleant pubhe
developed ift aes"o design, or whefe adding new stfuetures in the fight of way ean prese
The target areas are designated as follows:
A) Downtown Target Area: including that area west of the west side of Tacoma
Street; east of the west side of 10t' Avenue; north of the south side of Columbia Street and south
of the south side of Bonneville Street;
B) Court Street/Sylvester Streets Target Area: including from west of the west side of
1" Avenue and to east of the west side of Road 40;
C) 20a' Avenue Target Area: including both sides of Pearl Street and north of Lewis
Street and also south of Lewis Street and north of "A" Street;
D) 3'" Avenue Target Area: including both sides from south of the roundabout and to
the north of Columbia Street;
E) 4a' Avenue Target Area: including both sides from south of the SR 12 Overpass
and to the north of "A" Street;
F) Lewis Street Target Area: Including both sides from west of 20' Avenue and to
east of the US 395 off -ramp; and
G) The I-182 Corridor Target Area: As defined in PMC 25.130.020.
15.100.080 GRANT OF PERMIT.
A) Authority Granted - - No Property Right or Other Interest Created. A permit from
the City authorizes an applicant to undertake only certain activities in accordance with this
Chapter, and does not create a public right or grant authority to the applicant to impinge on the
rights of others who may already have an interest in the public right-of-way.
B) Duration. No permit for construction issued under this Chapter shall be valid for a
period longer than twelve (12) months unless construction has been commenced within twelve
(12) months of issuance of the permit, and is thereafter diligently pursued to completion.
C) No Master Permit, Franchise, or Small Cell Permit may be assigned, transferred,
sublet or licensed for the use of any other entity without the prior written consent of the City which
will not be unreasonably denied, conditioned, or withheld subject to those transfers as may be
permitted by PMC 15.70.320.
15.100.090 EXCEPTIONS. Notwithstanding anything to the contrary in this Chapter,
the following facilities are not subject to the provisions of this Chapter:
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A) Antennas used by residential households solely for broadcast radio and television
receptions.
B) Satellite antennas used solely for residential or household purposes.
C) Television and AM/FM radio broadcast towers and associated facilities.
15.100.100 VIOLATIONS OF THIS CHAPTER. Violations of this Chapter shall
constitute a Class 1 civil infraction which each day of violation constituting a separate offense. In
addition to the remedy provided herein, the City may seek all remedies available in law or equity
including injunctive relief and damages, including reasonable attorney fees and costs.
Section 2. 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 21" day of October, 2019.
Matt Watkins, Mayor
ATTEST:
c ��C
Debra Barham, City Clerk
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Eric
AS TO
City Attorney