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LUTC PKT 11-15-1999November 15, 1999 5!30 pm 'City of Federal Way City Council Land Use/Transportation Commltt'ee City Hall Council Chambers MEETING AGENDA 2. 3. 4. 5. CALL TO ORDER APPROVAL OF MINUTES PUBLIC COMMENT (3 minutes) COMMISSION COMMENT BUS1NESS ITEMS A. 1999 Asphalt Overlay Project Finalization B. SW 340th Street & Hoyt Road SW Intersection Improvements Project Acceptance/ Retainage Release C. 2000 Street Sweeping Service Contract Award D. Telecommunications Ordinance Action Salloum/10 mi, Action Salloum/10 min Action Salloum/10 rain Action Clark/20 rain FUTURE MEETING AGENDA ITEMS Open Cut of ROW vs Boring Endangered Species Act Update 7. ADJOURN Committee Metnbers: Phil Watkins, Chair deanne Burbidge Mar), Gates City Staff: Stephen Clifton, Director, Community Development Services Sand3, Lyle, Administrative Assistant 2.53.661.4116 1 ~LU-TRANS\nov 15LUA NoVember 4, 1999 5:30pm City of Federal~Way .~ City COUncil Land Use/T. rans~rtafion Committee .. City Hall Council Chambers SUMMARY In attendance: Committee members Phil Watkins (Chair), Jeanne Burbidge and Mary Gates; Council Member Linda Kochmar; City Manager David Mosely; Director of Community Development Services Stephen Clifton; Public Works Director Cary Roe; Assistant City Attorney Bob Sterbank; Deputy Director of Community Development Services Kathy McClung; Deputy Public Works Director Ken Miller; Principal Planner Greg Fewins; Surface Water Manager Jeff Pratt; Street Systems Manager Marwan Salloum; Senior Planner Margaret Clark; Code Compliance Officers Martin Nordby and Betty Cruz; Planning Intern Joel Howitt; Administrative Assistant Sandy Lyle; Contract Planner Tim McHarg. 1. CALL TO ORDER The meeting was called to order at 5:30 by Chairman Watkins. 2. APPROVAL OF MINUTES The minutes of the October 18, 1999, meeting were approved as presented. 3. PUBLIC COMMENT There was no additional public comment on non-agenda items. 4. COMMISSION COMMENT There was no additional comment from any of the City Commissions. 5. BUSINESS ITEMS 1998 Asphalt Overlay Project Acceptance/Retainage Release - The 1998 Street Overlay authorized funding (including contingency) was not expended and the City Council authorized Public Works staff to add Schedule E1 and G back into the contract if the funding allowed. The project completion date was extended to 1999 due to weather conditions. The Committee m/s/c recommendation of approval to the City Council of the 1998 Asphalt Overlay Project, in the amount of $1,900,029.52, as complete. Military Road South/South 304th Street Traffic Signal Improvements Project Acceptance/Retainage Release - The Committee m/s/c recommendation of acceptance to the City Council of the Scocollo Construction, Inc., Military Road South and South 304th Street and Traffic Signal Improvements Project, in the amount of $904,268.74 as complete. Legislative Rezone - Terry Wood, agent for Dick Butko, requested that the City initiate a legislative rezone of property located generally north of SW 320th Street, south of SW 316th Street, east of 8~h Avenue SW and west of 3rd Place SW. Legislative rezones are reviewed by the Planning Commission for recommendation to the City Council Requests for legislative rezones can be initiated by the City council or Council Committee, or requested by the Planning Commission, City staff or any interested person including applicants, citizens, Hearing Examiner and staff of other agencies. No comprehensive plan amendment is required for this rezone. This rezone action can occur at anytime without impacting the comprehensive plan process. The area encompassed by the applicant's request provides logical boundaries, is surrounded by zoning of comparable or higher zoning density, is consistent with the comprehensive plan and appears to be served by adequate urban services. The Committee m/s/c recommendation to the City Council of approval of moving ahead with analysis of density, infrastructure, services and potential impacts of a legislative rezone. o Minor Sign Code Amendment - A number of multi-tenant business centers within the medium profile category contain single, separate pads or parcels. Many of these single tenants currently have their own freestanding signs. When the Sign Code ammortizes on February 28,2000, a single sign at many of these multi-tenant complexes will be allowed. The intent of this amendment is to reduce confusion for the business operator and/or property owner, clarify the code as it relates to a common development situation, and provide a reasonable option for those sites to have appropriate business identification without adding to the problem of sign clutter. A number of proprietors including Lisa Keefer-Hale, owner of the Car Care Center property, Bruce Salmon of Novus, and Angela Kopf spoke in favor of measures that would allow increased signage. The Committee m/s/c recommendation of approval of the Minor Sign Code amendment to the City Council at the November 16, 1999, meeting. The Committee also advised any business facing hardship regarding sign replacement to discuss the sign incentive program with Debra Coates, the City's Economic Development Executive. Telecommunications Ordinance - The Committee heard a detailed staff presentation which addressed telecommunications issues. Information including definition of terms, pictures of actual facilities being used in the City, and their location depicted on the City map were discussed. The Committee felt adequately prepared to tour the City prior to meeting again on November 15, 1999, to view wireless facilities currently in use. Shoreline Changes - The Shoreline Ordinance was returned to the Land Use/Transportation Committee to approve language changes that were made by the Department of Ecology. The language changes did not substantially change the content of the original Ordinance. The Committee m/s/c recommendation of approval to the City Council at the November 16, 1999, meeting. South 320th Street Streetscape Issues - As redevelopment occurs, questions had been raised regarding the mounting height of light poles, orientation of poles toward the street vs orientation to the sidewalk, and placement of electrical outlets on the poles. The Committee discussed decisions previously made regarding street design guidelines and decided that pole height could vary slightly. The Public Works Director should have administrative privilege to make the appropriate decision. Otherwise, the street design guidelines would be adhered to and there would be no change in orientation of the poles. Pole placement would be consistent with the new poles on South 312th Street. OTHER Staff reported on the Sensitive Areas Ordinance workshop that was held on November 3, 1999, at the request of the City Council. The workshop was moderated by City Manager David Moseley and attended by staff and concerned citizens. Participants proposed clarifying language and some substantive changes. Staff is willing to meet with Committee members to discuss those suggestions at the convenience of the Committee. FUTURE MEETINGS The next meeting will be held at 5:30pm in City Council Chambers on Monday, November 15, 1999, following a 3:00pm field trip into the community to view various styles and placement of wireless facilities. ADJOURN The meeting was adjourned at 8:00pm. I:\LU-TRANS\NOV4LUS CITY DATE: TO: FROM: SUBJECT: Novemberl0, 1999 Phil Wa&ins, Chair Land Use/Transportation Committee Marwan Salloum, Street Systems Manager 2000 Street Sweeping Service Contract BACKGROUND Three (3) bids were received and opened on November 8, 1999 at 10:10 a.m. for the 2000 Street Sweeping Service. The bids for the 2000 Street Sweeping Service are as follows: Action Service McDonough & Sons Best Parking Lot Service Total $62,742.40 $69,731.80 $76,200.00 Engineer's Estimate (Budgeted AmounO $69,605. O0 The lowest responsive, responsible bidder is Action Service with a total bid of $62,742.40 for both Schedules which is $6,862.60, or 10% below Engineer's Estimate (Budgeted Amount). .RECOMMENDATION: Place the following recommendations on the December 7,1999 Council Consent agenda for approval: 1) Award the 2000 Street Sweeping Service to Action Service, the lowest responsive, responsible bidder, in the amount of $62,742.40. 2) Authorize the City Manager to execute the contract. MS:ms K:\LUTC\ 1999\STSWEEP00.award CITY OF~ DATE: TO: FROM: SUBJECT: November 8, 1999 Phil Watkins, Chair Land Use/Transportation Committee Marwan Salloum, Street Systems Manager AG 99-85; 1999 Asphalt Overlay Project Acceptance and Retainage Release BACKGROUND Prior to release of retainage on a Public Works construction project, the City Council must accept the work as complete to meet State Department of Revenue and State Department of Labor and Industries requirements. The above referenced contract with Lakeside Industries, Inc. is complete. The final construction contract amount is $1,626,380.36. This is $131,738.35 below the $1,758,118.71 (including contingency) budget that was approved by the City Council on May 18, 1999. Due to fact that the 1999 Street Overlay authorized funding (including contingency) was not expended and the City Council authorized Public Works Staff to add schedule H (Lakota Junior High) back in to the contract if the funding allows, schedule H (Lakota Junior High) was added in to the contract. Staff will be present at the November 15th Land Use & Transportation meeting to answer any questions the Committee might have. RECOMMENDATION Place the following item on the December 7, 1999 Council Consent Agenda for approval: 1. Final acceptance of the completed 1999 Asphalt Overlay Project, constructed by Lakeside Industries, Inc., in the amount of $1,626,380.36, as complete. MS:ms cc: Cathy Rafanelli, Management Services Project file AG 99-85 Day file K: \LUTC\ 1999\99overly. fin CITY OF~ DATE: TO: FROM: SUBJECT: November 9, 1999 Phil Watkins, Chair Land Use/Transportation Committee Marwan Salloum, Street Systems Manager AG 99-69; SW 340th Street at Hoyt Road SW Intersection Improvement Acceptance and Retainage Release BACKGROUND Prior to release of retainage on a Public Works construction project, the City Council must accept the work as complete to meet State Department of Revenue and State Department of Labor and Industries requirements. The above referenced contract with Transtech Electric, Inc. is complete. The final construction contract amount is $243,855.17. This is $31,594.29 below the $275,449.46 (including contingency) budget that was approved by the City Council on March 26, 1999. Staff will be present at the November 15th Land Use & Transportation meeting to answer any questions the Committee might have. RECOMMENDATION Place the following item on the December 7, 1999 Council Consent Agenda for approval: Final acceptance of the completed SW 340th Street at Hoyt Road SW Intersection Improvement Project, constructed by Transtech Electric, Inc., in the amount of $243,855.17, as complete. MS:ms cc: Cathy Rafanelli, Management Services Project file AG 99-69 Day file K:\LUTC\ 1999\Hoyt-sw340.fin CITY OF FEDERAL WAY MEMORANDUM November 8, 1999 To: Land Use/Transportation Committee (LUTC) FROM: Stephen Clifton, AICP, Director of Community Development Services Margaret H. Clark, AICP, Senior Planner Tim McHarg, Contract Planner SUmECT: Proposed Personal Wireless Service Facilities Federal Way City Code Text Amendments This is a follow up to the November 4, 1999 Land Use Transportation Committee (LUTC) meeting. At that time, Tim Mcharg, Contract Planner gave the LUTC an overview of the existing Personal Wireless Service Facilities (PWSFs) code provisions and also an overview of the proposed amendments. Based on a request from the LUTC, we will be conducting a tour of selected sites of PWSFs starting at 3:00 p.m on Monday, November 15, 1999. The tour will be followed by the regular LUTC meeting starting at 5:30 p.m. in Council Chambers. Please find attached the following which was previously provided to you for the November 4, 1999 LUTC meeting. 1. October 28, 1999 Staff Report 2. List of Exhibits accompanying Staff Report Exhibit A Draft Ordinance Amending the FWCC text Exhibit B Map of Existing and Proposed Personal Wireless Service Facilities Exhibit C Site Photographs of Existing Personal Wireless Service Facilities Exhibit D Distribution List 3. November 4, 1999 Correspondence from Pamela Krueger, Perkins Coie 4. September 14, 1999 Correspondence from Pamela Krueger, Perkins Coie (previously handed out at the September 14, 1999 LUTC meeting) For background purposes and in order to decrease copying costs, two binders containing the PWSF materials distributed for the September 14, 1999 LUTC meeting will be available in the City Council Conference Room. Should you have any questions prior to the November 15, 1999 LUTC meeting, please call Margaret Clark, Senior Planner at (253) 661-4111. I:\TELECOIv[I 11599LT.wpd/November 8, 1999 CITY OF FEDERAL WAY MEMORANDUM DATE: To: FROM: SUBJECT: October 28, 1999 Land Use/Transportation Committee (LUTC) Stephen Clifton, AICP, Director of Community Development Services Margaret H. Clark, AICP, Senior Planner Joel Howitt, Planning Intern Tim McHarg, Contract Senior Planner Proposed Personal Wireless Service Facility Federal Way City Code Text Amendments BACKGROUND The current City of Federal Way Personal Wireless Services Facilities (PWSF) review process, siting priorities, and development standards were established on September 19, 1997, through the adoption of Ordinance No. 97-300. The PWSF Ordinance was codified as Section 22-967 of the Federal Way City Code (FWCC). As part of its regular review of development regulations, staff has identified several aspects of the regulatory framework for PWSFs that are in need of amendment. This is due largely to rapidly changing telecommunications technology and the resulting siting preferences of the telecommunications industry. Attached as ExhibitA is a Draft Ordinance that identifies the proposed text amendments to the FWCC regarding personal wireless services facilities. The draft ordinance has been prepared in "line-in/line-out" format, with str;&ee',:ts (proposed deletions) and underline (proposed additions) indicated. Please note that subsequent to the Planning Commission's recommendation for approval of the Draft Ordinance that identifies the proposed text amendments to the FWCC regarding PWSFs, staff consulted furtl~r with the Public Works Department regarding collocation of PWSFs on structures within public rights-of-way. The Public Works Department supported collocation of PWSFs on structures within public rights-of-way, provided specific conditions were met reg,arding functional impacts to the rights-of-way. City of Federal Way LUTC Report PWSF FWCC Text Amendments October 28, 1999 Page I Therefore, the Draft Ordinance attached as Exhibit A contains two alternatives for revision of FWCC Section 22-966(d)(5), which addresses requirements for collocation of PWSFs on structures within public rights-of-way. The two alternatives have been presented in side-by- side columns for purposes of comparison. In response to your comments and direction received at the September 14, 1999, LUTC meeting, the following materials are attached for your review: Exhibit B: Exhibit C: Map of Existing and Proposed Personal Wireless Service Facilities Site Photographs of Existing Personal Wireless Service Facilities, including the following facilities: personal Wireless Type of PWSF Location Address Provider 1. Metricom Pole-Top Unit Existing structure in Approximately at the the public right-of- southeast comer of 1 st way. Way South and South 334~h Street. 2. Western Wireless Minor Facility Existing structure in East of 1st Way South the BPA trail, and south of SW 332nd Street. 3a. US West PCS; and, 3a. Minor Facility; and, Existing structure in Northeast comer of 21st 3b. Puget Sound Energy 3b. AMR "Cell-Master" the public right-of- Avenue SW and SW Control Station way. 325th Street. 4a. AT&T and, 4a. Monopole; and, 4a. RS 9.6 zoning Federal Way Fire 4b. Multiple Other 4b. Multiple Minor district; and, Station #39; 31617 1st Providers Facilities 4b. Existing Avenue South. broadcast, relay, and transmission towers. 5. Western Wireless Minor Facility RM-1800 zoning 30838 14~ Avenue district on existing South. Note: the adjacent Airtouch building. Monopole is on another property and is a separate PWSF. 6. Sprint Lattieg Tower BC zoning district. 1741 South 356th Street. City of Federal Way LUTC Report PWSF FWCC Text Amendments October 28, !999 Page 2 II REASON FOR COUNCIL ACTION FWCC Chapter 22, Zoning, Article IX, Process VI Review, establishes a process and criteria for text amendments. Consistent with Process VI review, amendments to the FWCC text must be approved by the City Council based on a recommendation from the Planning Commission. III PLANNING COMMISSION RECOMMENDATION As indicated below in Section IV-- Procedural Summary of this staff report, the Planning Commission conducted a public hearing on the proposed text amendments to the FWCC regarding personal wireless services facilities on July 21, 1999. The public hearing was continued to August 18, 1999. After conclusion of the continued public hearing, pursuant to FWCC, Section 22-535, the Planning Commission considered the proposed text amendments in light of the decisional criteria outlined below in Section V of this report. By a unanimous vote of the membership present (5-0), the Planning Commission recommended that the City Council adopt the FWCC text amendments regarding PWSFs as outlined in Exhibit A. IV. PROCEDURAL SUMMARY July 21, 1999: August 18, 1999: September 14, 1999: November 4, 1999: Planning Commission Public Hearing Continuation of Planning Commission Public Hearing LUTC Meeting LUTC Meeting V. DECISIONAL CRITERIA FWCC Section 22-523 provides criteria for text amendments. The following section analyzes the compliance of the proposed PWSF text amendment with the criteria provided by FWCC Section 22-523. The city may amend the text of Chapter 22, Zoning, only if it finds that: City of Federal Way LUTC Report PWSF FWCC Text Amendments October 28, 1999 Page 3 (1) The proposed amendment is consistent with the applicable provisions of the comprehensive plan; The proposed FWCC text amendments regarding PWSFs are consistent with, and substantially implement, the following comprehensive plan goals and policies: L UG2 Develop an efficient and timely development review process based on a public/private partnership. L UP 4 Maximize efficiency of the development review process. LUP 6 Conduct regular reviews of development regulations to determine how to improve upon the development review process. PUG2 Work with private utility companies to allow them to provide service in a way that balances cost-effectiveness with environmental protection, aesthetic impact, public safety, and public health. PUG 4 Ensure that development regulations are consistent with public service obligations imposed upon private utilities by Federal and State Law. PUP 3 The City should work to encourage, to the extent possible, the supply of all utilities to existing and new homes, offices, industrial, and commercial buildings. PUP 4 The City encourages the joint use of trenches, conduits, or poles, so that utilities may coordinate expansion, maintenance, and upgrading facilities with the least amount o fright-of-way disruption. PUP 17 The City should require that site-specific utility facilities such as antennas and sub-stations are reasonably and appropriately sited and screened to mitigate adverse aesthetic impacts. PUP 19 The City should modify the zoning regulations to address the Siting, screening, and design standards for wireless~cellular facilities, sub-stations, and antenna facilities in such a manner as to allow for reasonable and predictable review while minimizing potential land use and visual impacts on adjacent prot~erties. City of Federal Way LUTC Report PWSF FWCC Text Amendments October 28, 1999 Page 4 (2) The proposed amendment bears a substantial relationship to public health, safety, or welfare; and The proposed FWCC text amendments will result in improved environmental and land use review processes, siting prioritization, and development standards for PWSFs, which have a direct relationship to the public health, safety, and welfare. (3) The proposed amendment is in the best interest of the residents of the city. The proposed FWCC text amendment will improve the compatibility of PWSFs with surrounding land uses and to minimize land use conflicts between PWSFs and surrounding land uses through appropriate environmental and land use review processes, siting prioritization, and development standards. VI COUNCIL ACTION Pursuant to FWCC, Section 22-537(c), after consideration of the Planning Commission report, and, at its discretion, holding its own public hearing, the City Council shall by majority vote of its total membership take the following action: 1. Approve the proposed FWCC text amendment by ordinance; 2. Modify and approve the proposed FWCC text amendment by ordinance; 3. Disapprove the proposed FWCC text amendment by resolution; or Remand the proposed FWCC text amendment back to the Planning Commission for further proceedings. If this occurs, the City Council shall specify the time within which the Planning Commission shall report back to the City Council on the proposed FWCC text amendment. LIST OF EXHIBITS Exhibit A Exhibit B: Exhibit C: Exhibit D: Draft Ordinance Amending the FWCC Text Map of Existing and Proposed Personal Wireless Service Facilities Site Photographs of~xi§ting Personal Wireless Service Facilities Distribution List I:~DOC UMENTXTelecom\Staff Report doc City of Federal Way LUTC Report PWSF FWCC Text Amendments October 28, 1999 Page 5 DRAFT CITY OF FEDERAL WAY ORDINANCE NO. 99 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, AMENDING CHAPTER 22 (ZONING) OF THE FEDERAL WAY MUNICIPAL CODE PERTAINING TO SITING AND DEVELOPMENT STANDARDS AND REVIEW PROCESSES FOR PERSONAL WIRELESS COMMUNICATION FACILITIES WHEREAS, Section 704 of the Federal Telecommunications Act of 1996 preserves local zoning authority over decisions regarding the placement, construction, and modification of personal wireless service facilities, provided that regulation not discriminate among providers of functionally equivalent services nor prohibit, or have the effect of prohibiiing, the provision of personal wireless services; and, WHEREAS, the Federal Telecommunications Act of 1996 and RCW 80.36.375 restricts and partially preempts a city's authority to regulate personal wireless service facilities; and, WHEREAS, personal wireless services facilities comprise a rapidly growing segment of the utilities and communications sector and have merit and value for the community and region as a whole; and, WHEREAS, personal wireless services facilities are supportive of the public health, safety, and welfare in that they provide useful portable communication services for personal convenience, business, and emergency purposes; and, WHEREAS, the City of Federal Way is concerned that future decisions regulating the siting and development of personal wireless services facilities, without appropriate standards and review processes, may adversely effect the public health, safety, and welfare of residents of the City of Federal Way; and, WHEREAS, the City of Federal Way reviewed potential impacts from the Personal Wireless Services Facilities Code Amendment Ordinance in compliance with the State Environmental Policy Act; and,'~ WHEREAS, the Personal Wireless Services Facilities Code Amendment Ordinance will implement and is consistent with the Federal Way COmprehensive Plan; and, WHEREAS, the Planning Commission conducted a duly noticed public hearing on the draft Personal Wireless Services Facilities Code Amendment Ordinance and forwarded a recommendation of approval to the City Council; and, DRAFT ORDINANCE NO. 99- , PAGE 1 October 27, 1999 DRAFT WHEREAS, the City Council finds that the Personal Wireless Services Facilities Code Amendment Ordinance is consistent with the intent and purpose of the Federal Telecommunications Act of 1996 and RCW 80.36.375. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, IN REGULAR SESSION, DOES HEREBY ORDAIN AS FOLLOWS: Section 1. The purpose of this Ordinance is to amend the Federal Way City Code to satisfy the following basic needs: A. To provide appropriate standards and review processes for decisions regulating the siting and development of personal wireless services facilities; and, B. To be consistent with and implement the Federal Communications Act of 1996 and RCW 80.36.375. Section 2. Section 22-1 of the Federal Way City Code is hereby amended to incorporate the following definitions in alphabetical order: Abandoned personal wireless service facili~ shall mean a PWSF that meets the following: (1) Operation has voluntarily ceased for a period of 60 or more consecutive days; or, (2) The effective radiated power of an antenna has been reduced by 75 percent for a period of 60 or more consecutive days; or, (3) The antenna has been relocated at a point less than 80 percent of the height of the support structure; or, (4) The number of transmissions from an antenna has been reduced by 75 percent for a period of 60 or more consecutive days. Cell-on-Wheels (C-O-W),shall mean a mobile temporary personal wireless service facility. ' Ternporar_¥ Personal Wireless Service Facili~ shall mean a personal wireless service facility which is to be placed in use for a limited period of time, is not deployed in a permanent manner, and does not have a permanent foundation. DRAFT ORDINANCE NO. 99- , PAGE 2 October 27, 1999 A Z Z © A, Z < ~z © A ;Z .< Z © Z < Z Z © 8~ ; , ~ ...... ~ ~ou~=~ I = l~ ~ I I I%1 I~1 I I I I~1 I~1 I~1 I~1~ ~Ee,:~'~ ~ c ~ z 0 O~ ~ PAGEj4~GF~ DRAFT PAGE/_!_q A Section 14. Section 22-966 of the Federal Way City Code is hereby amended to read as follows: Sec. 22-966. Personal wireless service facilities (PWSF). (a) Purpose. This section addresses the issues of location and appearance associated with personal wireless service facilities. It provides adequate siting opportunities through a wide range of locations and options which minimize safety hazards and visual impacts sometimes associated with wireless communications technology. The siting of facilities on existing buildings or structures, collocation of several providers' facilities on a single support structure, and visual mitigation measures are required, unless otherwise allowed by the city, to maintain neighborhood appearance and reduce visual clutter in the city. (b) Definitions. Any words, terms or phrases used in this section which are not otherwise defined shall have the meanings set forth in section 22-1 of this Code. (c) Exemptions. The following antennas and facilities are exempt from the provisions of this section and shall be permitted in all zones consistent with applicable development standards as outlined in the Use Zone Charts, Article XI, District Regulations: Wireless communication facilities used by federal, state, or local public agencies for temporary emergency communications in the event of a disaster, emergency preparedness, and public health or safety purposes. (2) Industrial processing equipment and scientific or medical equipment using frequencies regulated by the FCC; provided such equipment complies with all applicable provisions of Section 22-960, Rooftop Appurtenances, and Chapter 22, Article XIII, Division 5, Height. (3) Citizen band radio antennas or antennas operated by federally licensed amateur ("ham") radio operators; provided such antennas comply with all applicable provisions of Section 22-960, Rooftop Appurtenances, and Chapter 22, Article XIII, Division 5, Height. (4) Satellite dish antennas less than two meters in diameter, including direct-to-home satellite services, when used as a secondary use of the property; provided such antennas comply .with all applicable provisions of Section 22-960, Rooftop Appurtenances, a'~d i2hapter 22, Article XIII, Division 5, Height. (5) Automated meter reading (AMR) facilities for the purpose of collecting utility meter data for use in the sale of utility services, except for whip or other antennas greater than two (2) feet in length; provided the AMR facilities are within the scope of activities permitted under a valid franchise agreement between the utility service provider and the city. DRAFT ORDINANCE NO. 99- , PAGE 14 October 27, 1999 DRAFT (6) Routine maintenance or repair of a wireless communication facility and related equipment excluding structural work or changes in height, dimensions, or visual impacts of the antenna, tower, or buildings; provided that compliance with the standards of this chapter are maintained. (cO(d) Prioritized locations. The following sites shall be the required order of locations for proposed PWSFs, including antenna and equipment shelters, "~n!es: tSe c:.ty elects to modify **'~---~ v--~--~-~-~---~:~;*;~*;~ In ~proposing a PWSF in a p~icul~ location, the applicant shall ~alyze the feasibili~ of locating the proposed PWSF in each of the higher priority locmions ~d docment, to the city's satisfaction, why a locafiening ~e PWSF in each higher prioriW location ~ or zone is not engpro se .Inor ero re rence, ................................... ; the ~ prioritized locations for PWSFs ~e as follows: (1) Structures located in the BPA trail: A PWSF may be located Oon any existing support structure currently located in the easement upon which are located U.S. Department of Energy/Bonneville Power Administration ("BPA") Power Lines regardless of underlying zoning. (2) Existing broadcast, relay and transmission towers: A PWSF may be located Oon any existing site or tower where a legal wireless telecommunication facility is currently located regardless of underlying zoning. If an existing site or tower is located within a one mile radius of a proposed PWSF location, the applicant shall document why collocation on the existing site or tower is not being proposed, regardless of whether the existing site or tower is located within the iurisdiction of the city. (3) Publicly-used structures: If the city consents to such location, attac-hed-m a PWSF may be located on existing public facilities within all zoning districts, such as water towers, utility structures, fire stations, bridges, and other public buildings witSJn al! ....... e, ......... , provided the public facilities are not located within public rights-of-way. (4) Appropriate t¢business, commercial~ and city center zoned sites: ~ o;, ...... ,4 r ......... k ~,4 ,~ .... ~ ..... , ....... ;,,~ d office ..... A PWSF may be located on private buildings or structures within appropriate business, commercial, and city center zoning districts. The preferred order of zoning d~stncts for th~s category of s~tes ~s as follows: BP--Business Park CP- 1--Corporate Park OP through OP-4--Office Park DRAFT ORDINANCE NO. 99- , PAGE 15 October 27, 1999 DRAFT CC-C--City Center Core CC-F--City Center Frame BC--Community Business (5) Appropriate public rights-o_f-wa¥:~- Planning Commission Recommendation: Revised Staff Recommendation: For the purposes of this section, appropriate public rights-of-way shall be defined as including those public rights-of-way with functional street classifications of principal arterial, minor arterial, and principal collector. A PWSF may be located on existing structures in appropriate public rights-of-way. Structures proposed for location of PWSFs shall be separated by at least 330 linear feet. There shall be no more than one PWSF located on an existing structure. Existing structures in appropriate public rights-of-way shall not be eligible for submittal of a use process application for placement of a PWSF for one year from the date of the completion of construction or alteration. Location of a PWSF on an existing structure in an appropriate public right-of-way shall require a right-of-way permit in addition to the required use process approval. The preferred order of functional street classifications for this category of sites is as follows: For the purposes of this section, appropriate public rights-of-way shall be defined as including those public rights-of-way with functional street classifications of principal arterial, minor arterial, .and principal collector. A PWSF may be located on existing structures in appropriate public rights-of-way. Structures proposed for location of PWSFs shall be separated by at least 330 linear feet. The preferred order of functional street classifications for this category of sites is as follows: Principal Arterial Minor Arterial Principal Collector If the PWSF is proposed to be located in an appropriate public right-of-way and the surrounding uses or zoning are not the same, that portion of the right-of-way with the most intensive use and/or zoning shall be the ~ Subsequent to the Planning Commission's recommendation for approval of the Draft Ordinance which identifies the proposed text amendments to the Zoning Code regarding personal wireless services facilities, Staff consulted further with the Public Works Department regarding collocation of PWSFs on structures within public rights-of- way. The Public Works Department supported collocation of PWSFs on structures within public rights-of-way, provided specific conditions were~met regarding functional impacts to the rights-of-way. Therefore, this Draft Ordinance contains two alternatives for revision of FWCC Sec. 22-966(d)(5), which addresses requirements for collocation of PWSFs on structures within public rights-of-way. The two alternatives have been presented in side-by-side columns for purposes of comparison. DRAFT ORDINANCE NO. 99- , PAGE 16 October 27, 1999 DRAFT Principal Arterial Minor Arterial Principal Collector If the PWSF is proposed to be located in an appropriate public right-of-way and the surrounding uses or zoning are not the same, that portion of the right- of-way with the most intensive use and/or zoning shall be the preferred location. If the PWSF is proposed to be located in an appropriate public right-of-way and surrounding uses or zoning are the same, the preferred location shall be that portion of the right-of-way with the least adverse visual impacts. preferred location. If the PWSF is proposed to be located in an appropriate public right-of-way and surrounding uses or zoning are the same, the preferred location shall be that portion of the right-of-way with the least adverse visual impacts. Existing structures in appropriate public rights-of-way shall not be eligible for submittal of a use process application for placement of a PWSF for one year from the date of the completion of construction or alteration of the structure. Location of a PWSF on an existing structure in an appropriate public right-of-way shall require a right-of-way permit in addition to the required use process approval. There shall be no more than one PWSF located on an existing structure, unless approved by the director of community development services. PWSFs may be collocated on existing structures in appropriate public rights-of-way subject to meeting all of the following standards: The PWSFs and equipment enclosures shall be located and designed to minimize adverse visual and aesthetic impacts to surrounding land uses and structures. The PWSFs and equipment enclosures shall be located and designed to minimize visual and functional impacts to the public right-of-way. The cumulative effects of collocated PWSFs and equipment enclosures shall not adversely impact the visual character of surrounding land uses and structures or the function of the public DRAFT'ORDINANCE NO. 99- , PAGE 17 October 27, 1999 DRAFT right-0f-way~ t-'J,-',rcxr~ If the applicant demonstrates to the city's satisfaction that it is not technically possible to site in a prioritized location, the city reserves the right to approve alternative site locations if a denial would be in violation of the 1996 Telecommunications Act, as determined by the city. Sec. 22-967. Development Standards t~ra ~x Dovc!aFment standards. The following development standards shall be followed in the design, siting, and construction of a personal wireless service facility. PWSFz shall be screened cr cmmaufiaged t~zoug5 emp!aying tke best available u°e o compa e matgr:a s, ......... , ..... , ............ H ....... , ~:": ..... isiN!ity aft~e facility ,iewed fram panic o+.~=+ (-2-) a(~_) Building or structure mounted PWSFs not in the right of way. PWSFs may-b~ mounted on ~m,ar-esid~at4~ existing buildings and structures not located in a public right-of-way shall conform to the following development standards ,,.a=.~..~. (1) The PWSF shall consist only of the following types of facilities: a. The PWSF consists cfa A microcell or a minor facility; or, bo A PWSF that exceeds the minor facility thresholds for number of antennas, dimensions, and/or area, but creates no more adverse impacts than a minor facility, as determined by the director of community development services, subject to meeting all of the following standards: The facility shall not create substantially more adverse visual impact than a minor facility; and, ii. The equipment cabinet for the PWSF shall meet all requirements of FWCC 22-967(e); and, o.o 111. The maximum size of the PWSF panels and number of antennas shall be determined by the director of community development services, based on the specific proiect location, surrounding environment, and potential visual impacts; and, iv. The PWSF shall comply with all other applicable standards of the DRAFT ORDINANCE NO. 99- , PAGE 18 October 27, 1999 DRAFT FWCC. The combined antennas and supporting structure shall not may extend mor-e4han up to, but not exceed, 15 feet above the existing or proposed roof or other structure regardless of whether the existing structure is in conformance with the existing maximum height of the underlying zone as outlined in the Use Zone Charts, Article XI, District Regulations. Antennas may be mounted to rooftop appurtenances provided they do not extend beyond 15 feet above the roof proper. The antennas are mounted on the building or structure such that they are located and designed to minimize visual and aesthetic impacts to surrounding land uses and structures and shall, to the greatest extent practical, blend into the existing environment pursuant to Section 967(d). Panel and parabolic antennas shall be c-omptetet-y screened from residential views and public rights-of-way unless meeting the provision of section 22-960(b)(2). (b) PWSFs located on structures within appropriate public rights-of-way. These facilities shall conform to the following development standards: (1) The PWSF shall consist only of the following types of facilities: a. The PWSF ~^"s;s% efa A microcell or a minor facility; or, A PWSF that exceeds the minor facility thresholds for number of antennas, dimensions, and/or area, but creates no more adverse impacts than a minor facility, as determined by the director of community development services, subiect to meeting all of the following standards: The facility shall not create substantially more adverse visual impact than a minor facility; and, ii. The equipment cabinet for the PWSF shall meet all requirements of FWCC 22-967(e) and FWCC 22-967(f)g and, 111. The maximum size of the PWSF panels and number of antennas shall be determined by the director of community development services, based on the specific project location, surrounding en~ro'nment, and potential visual impacts; and, iv. The PWSF shall comply with all other applicable standards of the FWCC. (2) The combined antennas may extend up to, but not exceed, 15 feet above the existing structure. This distance may be increased by the minimum necessary_ DRAFT ORDINANCE NO. 99- , PAGE 19 October 27, 1999 DIL4FT additional height to meet the safety clearances required by the operator of the existing structure. The antenna extension may be permitted regardless of whether the existing structure is in conformance with the maximum height of the underlying zone as outlined in the Use Zone Charts, Article XI, District Regulations. (3) The antennas shall be mounted on the structure such that they are located and designed to minimize adverse visual and aesthetic impacts to surrounding land uses and structures and shall, to the greatest extent practical, blend into the existing environment pursuant to Section 967(d). (4) Structures in appropriate public rights-of-way proposed for location of PWSFs shall be separated by at least 330 linear feet. (5) Required setbacks shall not pertain to PWSFs within public rights of ways. raw,.~ xT .... c .... ~;~ tmmco New free-standing PWSFs. These structures shall conform to the following site development standards: Placement of a freestanding PWSF shall be denied if placement of the antennas on an existing structure can meet the applicant's technical and network location requirements. Monopoles shall be the only free-standing structures allowed in the city; except that a lattice tower may be used to accommodate the collocation of four or more providers as part ora joint permit application. In no case shall a free-standing PWSFs be located closer than 500 feet to an existing free-standing PWSF whether it is owned or utilized by the applicant or another provider. ~..(4) A free-standing PWSF, including the support structure and associated electronic equipment, shall comply with all required setbacks of the zoning district in which it is located. For developed sites, the setback requirements shall be those of the principal use of the subject property. For undeveloped sites, the setback requirements for new free-standing PWSFs shall be 20 feet for front, side, and rear yards. Free-standing PWSFs shall be designed and placed on the site in a manner that takes maximum advantage of existing trees, mature vegetation, and structures so as to: , 4-r.a_:. Use existing site features to screen as much of the total PWSF as possible from prevalent views; and/or DRAFT ORDINANCE NO. 99- , PAGE 20 October 27, 1999 DRAFT FWCC. I~.(2) (b) facilities shall The combined antennas and supporting structure ~k., .^, may extend more +~- up to, but not exceed, 15 feet above the existing or proposed roof or other structure regardless of whether the existing structure is in conformance with the existing maximum height of the underlying zone as outlined in the Use Zone Charts, Article XI, District Regulations. Antennas may be mounted to rooftop appurtenances provided they do not extend beyond 15 feet above the roof proper. The antennas are mounted on the building or structure such that they are located and designed to minimize visual and aesthetic impacts to surrounding land uses and structures and shall, to the greatest extent practical; 'blend into the existing environment pursuant to Section 967(d). Panel and parabolic antennas shall be ~ screened from residential views and public rights-of-way unless meeting the provision of section 22-960(b)(2). PWSFs located on structures within appropriate public rights-of-way. These conform to the following development standards: (1) The PWSF shall consist only of the following types of facilities: a. The PWSF consists cf a A microcell or a minor facility; or, A PWSF that exceeds the minor facility thresholds for number of antennas, dimensions, and/or area, but creates no more adverse impacts than a minor facility, as determined by the director of community development services, subject to meeting all of the following standards: The facility shall not create substantially more adverse visual impact than a minor facility; and, ii. The equipment cabinet for the PWSF shall meet all requirements of FWCC 22-967(e) and FWCC 22-967(I); and, iii. The maximum size of the PWSF panels and number of antennas shall be determined by the director of community development services, based on the specific project location, surrounding enqir6nment, and potential visual impacts; and, iv. The PWSF shall comply with all other applicable standards of the FWCC. (2) The combined antennas may extend up to, but not exceed, 15 feet above the existing structure. This distance may be increased by the minimum necessary DRAFT ORDINANCE NO. 99- , PAGE 19 October 27, 1999 DRAFT P/qG additional height to meet the safety clearances required by the operator of the existing structure. The antenna extension may be permitted regardless of whether the existing structure is in conformance with the maximum height of the underlying zone as outlined in the Use Zone Charts, Article XI, District Regulations. (3) The antennas shall be mounted on the structure such that they are located and designed to minimize adverse visual and aesthetic impacts to surrounding land uses and structures and shall, to the greatest extent practical, blend into the existing environment pursuant to Section 967(d). (4) Structures in-appropriate public rights-of-way proposed for location of PWSFs shall be separated by at least 330 linear feet. (5) Required setbacks shall not pertain to PWSFs within public rights of ways. (--3-).(¢) ~,r .... c .... .~,.~;.. rm~cr:.. New free-standing PWSFs These structures shall conform to the following site development standards: Placement of a freestanding PWSF shall be denied if placement of the antennas on an existing structure can meet the applicant's technical and network location requirements. ~(2) Monopoles shall be the only free-standing structures allowed in the city; except that a lattice tower may be used to accommodate the collocation of four or more providers as part of a joint permit application. In no case shall a free-standin~ PWSFs be located closer than 500 feet to an existing free-standing PWSF whether it is owned or utilized by the applicant or another provider. A free-standing PWSF, including the support structure and associated electronic equipment, shall comply with all required setbacks of the zoning district in which it is located. For developed sites, the setback requirements shall be those of the principal use of the subject property. For undeveloped sites, the setback requirements for new free-standing PWSFs shall be 20 feet for front, side, and rear yards. Free-standing PWSFs shall be designed and placed on the site in a manner that takes maximum advantage of existing trees, mature vegetation, and structures so as to: , Use existing site features to screen as much of the total PWSF as possible from prevalent views; and/or DRAFT ORDINANCE NO. 99- , PAGE 20 October 27, 1999 DR FT Use existing site features as a background so that the total PWSF blends into the background with increased ~ distances. In reviewing the proposed placement of a facility on the site and any associated landscaping the city may condition the application to supplement existing trees and mature vegetation to more effectively screen the facility. Support structures, antennas, and any associated hardware shall be painted a nonreflective color or color scheme appropriate to the background against which the PWSF would be viewed from a majority of points within its viewshed. The taproposed color or color scheme t~ shall be approved by the hearing examiner or community development director ......... ;~ *^ *~ ........ (d) Screening standards for all PWSFs. PWSFs shall be screened or camouflaged through employing the best available technology and design, as determined by the city. This may be accomplished by use of compatible materials, location, landscaping, color, stealth techniques such as, but not limited to, artificial trees and hollow flag poles, and/or other methods or techniques to achieve minimum visibility of the facility as viewed from public streets or residential properties. In addition, the provisions for landscaping as outlined in the Use Zone Charts, Article XI, District Regulations, shall apply. ~4) e~) Standards for electronics equipment enclosures. a=.(1) ~,~,,; .... T ~1 ........ 1~11 ~.~ ~ undergreund if practicable. The following shall be the required order of locations for proposed electronic equipment enclosures for all PWSFs. In proposing an equipment enclosure in a particular location, the applicant shall analyze the feasibility of locating the proposed equipment enclosure in each of the higher priority locations and document, to the city's satisfaction, why a locating the equipment enclosure in each higher priority location is not being proposed. In requesting a lower priority location for the equipment enclosure, the burden of demonstrating impracticability shall be on the applicant. In order of preference, the prioritized locations for equipment enclosures are as follows: (a) Equipment enclosures shall be placed underground. (b) Equipmeniren~closures shall be placed in an existing completely enclosed building. Equipment enclosures shall be placed above ground in an enclosed cabinet that shall not exceed six feet in height and occupy more than 48 square feet of floor area, including areas for maintenance or future expansion. DRAFT ORDINANCE NO. 99- , PAGE 21 October 27, 1999 DR FT (d) Equipment enclosures shall be placed above ground in a new completely enclosed building. b:.(2) If above ground, screening of PWEF equipment enclosures shall be provi4e4 screened with one or a combination of the following matehais methods, which ~shall be acceptable to the city: fencing, walls, landscaping, structures, buildings or topography which will block the view of the equipment enclosure as much as to the greatest extent possible from any street and/or adjacent properties~ as determined by the director of community development services. Screening may be located anywhere between the enclosure and the above mentioned viewpoints. Landscaping for the purposes of screening shall be maintained in a healthy condition, as-determined by the city. (3) Except for equipment enclosures in public rights of ways, enclosures shall be located outside of required setback areas. (4) If the equipment cabinet is located within a new completely enclosed building, the building shall conform to all applicable development standards and design guidelines for the underlying zone. The completely enclosed building shall be architecturally designed and shall be compatible with existing buildings on the site. The completely enclosed building shall be screened to the greatest extent possible from any street and/or adjacent properties by landscaping and/or topography. (f) Additional standards_for equipment enclosures for P WSFs located on structures within appropriate public rights-of-way: (1) The following shall be the required order of locations for proposed electronic equipment enclosures for PWSF located within public rights-of-way. In proposing an equipment enclosure in a particular location, the applicant shall analyze the feasibility of locating the proposed equipment enclosures in each of the higher priority locations and document, to the city's satisfaction, why a locating the equipment enclosure in each higher priority location is not being proposed. In requesting a lower priority location for the equipment enclosure, the burden of demonstrating impracticability shall be on the applicant. In order of preference, the prioritized locations for equipment enclosures are as follows: (a) Equipmen~er/closures shall be placed underground on an adjacent property outside of the public right-of-way. (b) Equipment enclosures shall be placed above ground on an adjacent property outside of the public right-of-way in an existing completely enclosed building. DRAFT ORDINANCE NO. 99- , PAGE 22 October 27, 1999 DRAFT (c) Equipment enclosures shall be placed above ground on an adjacent property outside of the public right-of-way in an enclosed cabinet that shall not exceed six feet in height and occupy more than 48 square feet of floor area, including areas for maintenance or future expansion. (d) Equipment enclosures shall be placed above ground on an adjacent property outside of the public right-of-way in a new completely enclosed building. (e) Equipment enclosures shall be placed underground within the public right- of-way. (f) Equipment enclosures shall be placed above ground within the public right-of-way in an enclosed cabinet that shall not exceed six feet in height and occupy more than 24 square feet of floor area, including areas for maintenance or future expansion. Equipment enclosures shall be designed, located, and screened to minimize adverse visual impacts from the public right-of-way and adjacent properties. (3) Equipment enclosures shall be designed, located, and screened to minimize adverse visual and functional impacts on the pedestrian environment. (4) Equipment enclosures and screening shall not adversely impact vehicular sight distance. ~;5x(g)., _ Security_ Fencing. a:.(1) No fence shall exceed six feet in height as stipulated in section 22-1133(5). b=.(2) Security fencing shall be effectively screened from view through the use of appropriate landsc~aping materials. ~(3) Chain-link fences shall be painted or coated with a nonreflective color. (4-)(h) Cumulative Effects. The city shall consider the cumulative visual effects of PWSFs mounted on existing structures and/or located on a given permitted site in determining whether toae additional permits can may be granted so as to not adversely effect the visual character of the city. DRAFT ORDINANCE NO. 99- , PAGE 23 October 27, 1999 DRAFT (7-)(i) Signage. No wireless equipment shall be used for the purpose of mounting signs or message displays of any kind, except for signs used for identification and name of provider. (4)0) Use zone charts, height and permit process. (1) The final approval authority for applications made under this section shall be defined by the appropriate permit process as outlined in the Use Zone Charts, Article XI, District Regulations. (2) Allowed heights shall be established relative to appropriate process as outlined in the Use Zone Charts, Article XI, District Regulations. Sec. 22-968. Nonconformance. Permit applications made under this section to locate a PWSF on property on which a nonconformance is located shall be exempt from the requirements of Chapter 22, Article IV, Nonconformance, to bring the property into conformance as follows: (a) To provide the public improvements required by Chapter 22, Article XVI, Improvements, as stipulated in Section 22-336. (b) To bring the property into conformance with the development regulations prescribed in Chapter 21 relating to water quality as stipulated in Section 22-337(a)(7). All other requirements of Section 22-337 to bring the property into conformance with the development regulations prescribed in Chapter 21 relating to water quality shall apply. Section 22-969. Temporary Personal Wireless Service Facilities. As determined by the director of community development services, a temporary personal wireless service facility, or cell-on- wheels, may be deployed and operated as follows: (a). For a period of 90 days during the construction of a free-standing PWSF which has been approved through the appropriate permit process; provided that the temporary personal wireless service facility or cell-on-wheels creates no more adverse impacts than the PWSF which was approved through the appropriate permit process. Only one temporary personal wireless service facility or cell-on- wheels shall be permitted for a single site. (b) For a period of 30 days during an emergency declared by the city, state, or. federal government that has caused a free-standing PWSF which has been approved through the appropriate permit process tq become involuntarily non-operational; provided that the temporary personal wireless service facility or cell-on-wheels creates no more adverse impacts than the PWSF which was approved through the appropriate permit process. DRAFT ORDINANCE NO. 99- , PAGE 24 October 27, 1999 DRAFT & (c) Prior to installation of the temporary PWSF, the applicant shall provide the city with a cash bond in an amount to be determined by the director of community development services in order to guarantee performance of future removal and restoration of the site. Section 22-970. Application Requirements. (g) .lFF.!ication requirements. (a) Except for Temporary_ Personal Wireless Facilities, tal2ermit applications made under this section shall include the following minimum information in addition to that required for the underlying permit review process: (1) A diagram or map showing the primary viewshed of the proposed facility. (2) Photosimulations of the proposed facility from effected properties and public rights-of-way at varying distances. (3) (4) Architectural elevations of proposed facility and site. A coverage chart of the proposed PWSF at the requested height and an explanation of the need for that facility at that height and in that location. The explanation shall include an analysis of a!temative o;, .... a _,~.., m ........ ,,~a ...... v .................. v ................. e as o locating the proposed PWSF in each of the higher priority locations as identified in Section 22-966(d), ~d documentation of why locating the PWSF in each higher priority location ~d/or zone is not being proposed. (5) An inventory of other PWSF sites operated by the applicant or other providers a,~,..~.~ ~..., .... ,~.~..,..;*~"~ ;".. *~'~..,. ~.~.,~;* .... .,. within _a one mile ~ radius of the proposed PWSF location, including specific information about location, height, and design of each facility. (6) A site/landscaping plan shoWing the specific placement of the PWSF on the site; showing the location of existing structures, trees, and other significant site features; and indicating type and locations of plant materials used to screen PWSF components. (?) If the PWSF electronic equipment cabinet is proposed to be located above ground, regardless of the proposed location, whether on private or public property or within public right/of way, an explanation of why it is impracticable to locate the cabinet undergrouund. (8) If the equipment cabinet is proposed to be located in a public right-of-way, an explanation of why it is impracticable tO locate the equipment cabinet on adjacent property outside the public right-of-way. DRAFT ORDINANCE NO. 99- , PAGE 25 October 27, 1999 DRAFT (-7-)IQ_) Documentation of efforts to collocate on existing facilities. (-8-)(10) Other information as deemed necessary by the community development director. (b) Permit applications for Temporary_ Personal Wireless Service Facilities shall include the following minimum information: (1) Documentation of previously permitted facility. (2) Site plan showing proposed location of temporary facility in relationship to the location of the previously permitted facility and property boundaries, including dimensions from the property lines and height of proposed facility. (3) Photographs of the proposed facility. Section 22-971. Collocation. (!)(a) A permittee shall cooperate with other PWSF providers in collocating additional antenna on support structures and/or on existing buildings and sites provided said proposed collocatees have received a permit for such use at said site from the city. A permittee shall allow other providers to collocate and share the permitted site, provided such shared use does not give rise to a substantial technical level impairment of the permitted use (as opposed to a competitive conflict or financial burden). In the event a dispute arises as to whether a permittee has exercised good faith in accommodating a new applicant, the city may require a third party technical study at the expense of the permittee. Failure to comply with this provision may result in a revocation of the permit. (2)(b) A signed statement indicating that the applicant agrees to allow for the potential collocation of additional PWSF equipment by other providers on the applicant's structure or within the same site location shall be submitted by the applicant as part of the permit application. If an applicant contends that future collocation is not possible on their site, they must submit a technical study documenting why. Section 22-972. EMF Standards and Interference. (-4-) a(~ The applicant shall comply with federal standards for EMF emissions. Within six months after the issuance of its operational permit, the applicant shall submit a project implementation report which provides cumulative field measurements of radio frequency (EMF) power densities of all antennas installed at the subject site. The report shall quantify the EMF emissions~ and compare the results with established federal standards, and provide a statement DRAFT ORDINANCE NO. 99- , PAGE 26 October 27, 1999 DRAFT PA G F__ b L that the EMF emissions are within established federal standards. Said report shall be subject to review and approval of the city for consistency with the project proposal report and the adopted federal standards. If on review, the city finds that the PWSF does not meet federal standards, the city may revoke or modify the permit. The applicant shall be given a reasonable time based on the nature of the problem to comply with the federal standards. If the permit is revoked, then the facility shall be removed. (--2-)(lo) The applicant shall ensure that the PWSF will not cause localized interference with the reception of area television or radio broadcasts or the functioning of other electronic devices. If on review of a registered complaint the city finds that the PWSF interferes with such reception, the city may revoke or modify the permit. The applicant shall be given a reasonable time based on the nature of the problem to correct the interference. If the permit is revoked, then the facility shall be removed. Section 22-973. Removal of Facility. (~ Faci!i;5' rcmc, vaL ~l~(a) Abandonment and removal. The owner or operator of a PWSF shall provide the city with a copy of the notice of intent to cease operations required by the FCC at the time it is submitted to the FCC. Additionally, :gthe owner or operator of a PWSF shall notify the city in writing upo~ o__f the discontinued ase abandonment of a particular facility within 30 days of the date the PWSF is abandoned. The abandoned PWSF shall be removed by the facility owner within 90 days of the date the site's '`:se ;.s disccntin',:ed PWSF is abandoned, i+~,~mes-tqM~ ~ the permit is revoked, or if the facility falls into disrepair and is not maintained, as determined by the city. Disrepair includes structural features, paint, landscaping, or general lack of maintenance which could result in adverse safety or visual impacts, if there are two or more users of a single tower, then the city's right to remove the tower shall not become effective until all users abandon the tower. (b) Partial abandonment and removal. If the abandoned antennas on any PWSF are removed or relocated to a point where the top 20 percent or more of the height of the supporting structure is no longer in use, the PWSF shall be considered partially abandoned. The owner or operator of any partially abandoned PSWF shall notify the city in writing of the partial abandonment of a particular facility within 30 days of the date the PWSF is partially abandoned. The owner of the PWSF shall have 120 days from the date of partial abandonment to collocate another service on the PWSF. If another service provider is not added to the PWSF within the allowed 120 day collocation period, ~the owner shall in 210 days of partial abandomnent, dismantle and remove that portion of the supporting structure which exceeds the point at which the highest operational antenna is mounted. (-2--)(c) Removal and lien. If the provider fails to remove the abandoned or partially abandoned facility upon 90 210 days of its discontinued ',:se abandonment or partial abandonment, the responsibility for removal falls upon the property owner on which the DRAFTORD1NANCE NO. 99- , PAGE 27 October 27, 1999 DRAFT abandoned or partially abandoned facility has-hecta_is located. ..TO*h.. ~ ...... v,,,v,~,,.~"' ......... v.,-......,.oc";~o ,^~. · ~..,~;~' ~...~,...~.~ .... ~o ~c~.~...~. The city may enforce this p~agraph using the procedures as set forth in FWCC, A~icle 3, Section 1-14. Section 22-974. Permit Limitations. (-k-) Permit limitations. (-1--)(a) A permit for a PWSF shall expire ten years after the effective date of the permit approval, unless earlier revoked by the city. A permittee wishing to continue the use of a specific PWSF at the end of the ten-year period must apply for an application to continue that use at least six months prior to its expiration. The renewal application shall comply with all applicable laws and regulations dictating new permit issuance. In ruling on said renewal the city shall consider all then existing regulations effecting the application that are appropriate to the technology and use. (-g)(b) Five years after the .~.~t~ .c,~ ,.;t.,, ......... ~ effective date of the land use process approval of a PWSF: the permittee or assignee shall submit a written statement summarizing its current use and plans, if any, for that facility/site for the next five years to the best of their knowledge. (-3-)(c) Consistent with the provisions of Section 22-408, ¢~an approved permit for a PWSF shall be valid for one year from the ~ate eft~e city's appreval effective date of the use process approval, with opportunity for a one-year extension. If not-used a building permit application is not received within one year of the effective date of the use process approval, or within the extension period, the pem~ use process approval shall become null and void. Section 22-975. Revocation of Permit. ............. ., ~. ........ A permit issued under this article may be revoked, suspended or denied for any one or more of the following reasons: Failure to comply with any federal, state or local laws or regulations; (:2--)(b) Failure to coroply with any of the terms and conditions imposed by the city on the issuance of a permit; DRAFT ORDINANCE NO. 99- , PAGE 28 October 27, 1999 DRAFT . (--3-)~c) When the permit was procured by fraud, false representation, or omission of material facts; (-4-)(d) Failure to cooperate with other PWSF providers in collocation efforts as required by this article; (--5-)(e) Failure to comply with federal standards for EMF emissions; and (-6-)(f) Failure to remedy localized interference with the reception of area television or radio broadcasts or the functioning of other electronic devices. ~,r'7w"~J~.t Pursuant to Section 22-7(c), the city, as the applicant, shall use the same process to determine if the permit shall be revoked as it used to grant the permit. Section 15. Section 22-1473 of the Federal Way City Code is hereby amended to read as follows: Sec. 22-1473. When public improvements must be installed. (a) The applicant shall provide the improvements required by this article if the applicant engages in any activity which requires a development permit, except for the following: (1) The applicant need not comply with the provisions of this article if the proposed improvements in any 12-month period do not exceed 25 percent of the assessed or appraised value (based on an MAI appraisal provided by the applicant) of all structures on the subject property, whichever is greater. (2) The applicant need not comply with the provisions of this article if, within the immediately preceding four years, public improvements were installed as part of any subdivision or discretionary land use approval under this or any prior zoning code. (3) The applicant need not comply with the provisions of this article if the proposal is to locate a Personal Wireless Services Facility (PWSF) on the subject property. (b) Right-of-way adjacent to and within subdivision and short subdivisions must be dedicated and improved consiste'fit With the requirements of this article, unless different requirements are imposed by the city as part of the subdivision or short subdivision approval. Section 16. Severability. The provisions of this ordinance are declared separate and severable. The invalidity or unconstitutionality of any clause, sentence, paragraph, subdivision, section, or portion of this ordinance or the invalidity of the application thereof to any person or DRAFT ORDINANCE NO. 99- _, PAGE 29 October 27, 1999 circumstance, shall not effect the validity of the remainder of the ordinance, or the validity of its application to other persons or circumstances. Section 17. Effective Date. This ordinance shall take effect and be in force five (5) days after its passage, approval, and publication, as provided by law. PASSED by the City Council of the City of Federal WaY at a regular meeting of the City Council on the __ day of ,1999. APPROVED: RON GINTZ, MAYOR ATTEST: N. CRISTINE GREEN, CITY CLERK APPROVED AS TO FORM: LONDI K. LINDELL, CITY ATTORNEY FILED WITH THE CITY CLERK: PASSED BY THE CITY COUNCIL: PUBLISHED: EFFECTIVE DATE: ORDINANCE NO.: DRAFT ORDINANCE NO. 99- _ , PAGE 30 October 27, 1999 Existing and Proposed PWSFs City of Federal Way E×H~E~T PAGE I MO,in Federal Ta,ooma ' Scale: 1 to 57180 1 Inch equals 4765 Feet 0 1 Mile 8W ~44th 8T Legend: Tower, Existing Tower, Under Review Stm~urs Mount, Exi~ng Structure Mount, Under Review Cellular Facllityln PuNic RIgM of Way, Under Review O Automated Meter Reader & Structure Mount, Existing '4 'Milton N Pdndpel ArtedaJ /V Minor Artedal N Pdndpel Collector ~-~ 330 Foot Buffer (For Towem in the RigM of Way) ~ BPA Corddor *Towers with more than one user ere labeled with the number of users. Map Date: October, 1999. City of Federal Way, 33530 First Way $, FedersJ Way, WA 98003 (253) 881-4000. This map is intended for uee U a graphical representation ONLY. The City of Federal Way makes no warranty u to ~ ao~urae/. Gl8 DIVIGION lusers/mike~tower/towreg.eml CITY OF FEDERAL WAY PWSFs I Wide Angle Close-Up METRICOM POLE-TOP UNIT 1st W~y'South @ SW 334~ Street CITY OF FEDERAL WAY PWSFs 2 Antennas~ Equipment Enclosure WESTERN WIRELESS MINOR FACILITY East of 1st Way S. & South of 332"d Street CITY OF FEDERAL WAY PWSFs 3 Equipment Enclosure Antenna US WEST/PCS AMR FACILITY NE Corner 21st Ave. SW & SW 335th PI. CITY OF FEDERAL WAY PWSFs 4 Antenna Equip. Enclosure AT&T (et al) MONOPOLE Federal Way Fire Dept. 31617 1't Avenue South CITY OF FEDERAL WAY PWSFs 5 Roof-top Mount Rooftop view including adjacent Airtouch monopole WESTERN WIRELESS BUILDING MOUNT Southridge House 30838 140' Avenue South CITY OF FEDERAL WAY PWSFs 6 Equipment Enclosure Antennas Sprint Spectrum (et al) Lattice Tower . 1741 South 356"' Street PWSF FWCC Amendment Distribution List Outside Agencies/Organizations 1. Airtouch Cellular 7. Josh Lonn The Walter Group 120 Lakeside Avenue, Suite 310 Seattle, WA 98122 Ross Baker AT&T Wireless 617 Eastlake Avenue East Seattle, WA 98109 o Kate Stephens GTE Wireless 2445 - 140th Avenue NE, Suite 202 Bellevue, WA 98005 ° Mary Murdoch Nextel Communications 1750 - 112th Avenue NE, Suite C-100 Bellevue, WA 98004 Donald Bordenave Sprint PCS 4683 Chabot Drive, Suite 100 Pleasanton, CA 94588 o Kelly Campbell US West Wireless 450 - 110th Avenue NE, Room 211 Bellevue, WA 98004 Brian Johnson Voice Stream Wireless 3650 - 131st Avenue SE, #400 Bellevue, WA 98006 Brian Pollom Puget Sound Energy PO Box 90868 Bellevue, WA 98009-0868 o Pamela Krueger Perkins Coie LLP 411 - 108th Avenu. e NE, Suite 1800 Bellevue, WA 98004-5584 10. Lisa Vetoer, AICP Commercial Design Solutions PO Box 70372 Seattle, WA 98107 11. Gregory J. McCormick, AICP Odelia Pacific 1201 - 3rd Avenue, Suite 320 Seattle, WA 98101 15DOCLrMEN'l~TelecomkDistribution2 List.doc PERKINS COIE ONE BELLEVUE CENTER, SUITE 1800 · 41 I - 108TM AVENUE NORTHEAST · BELLEVUE, WASHINGTON 98004-5584 TELEPHONE: 425 453-6980. FACSIMILE: 425 453-7350 PAMELA W. KRUEGER PHONE: (425) 453-7311 FAX: 425-456-3899 kruep~perkinscoie.com November 4, 1999 VIA FACSIMILE AND U.S. MAIL Honorable City Council Land Use and Transportation Subcommittee City of Federal Way 33530 - 1st Way South Federal Way, WA 98003-6210 Re: Personal Wireless Service Facilities (PWSF) Federal Way City Code (FWCC) Text Amendment Dear Land Use and Transportation Committee: We represent Puget Sound Energy, Inc. ("PSE"), a regional utility provider. We previously submitted public comments to this Committee in a letter dated September 14, 1999, by presenting an original, with copies for each Committee member, at the hearing held on September 14, 1999. We have now received City staffs October 28, 1999 memo related to the above-named amendments and see that our concerns have not been addressed. Although we will not be able to appear personally before the Committee this evening, please note that the concerns we raised in our September 14, 1999 letter still stand and we respectfully request the Committee to take our comments into consideration when recommending a course of action to the Council based on the proposed amendments. Sincerely, . MAQ:PWK:pwk cc: Brian Pollom, PSE Margaret Clark, City of Federal Way [07772-0532/BA993080.031] RECEIVED BY NOV 5 1999 ANCHORAGE BELLEVUE DENVER HONG KONG LONDON LOS ANGELES OLYMPIA PORTLAND SEATTLE SPOKANE TAIPEI WASHINGTON, D.C. STRATEGIC ALLIANCE: RUSSELL ~c~ DoMOUUN, VANCOUVER, CANADA PERKINS COIE LLP ONE BELLEVUE CENTER, SUITE 1800 · 411 - 108TM AVENUE NORTHEAST · BELLEVUE, WASHINGTON 98004-~584 TELEPHONE: 425 453-6980 · FACSIMILE: 425 453-7350 PAMELA W. KRUEGER PHONE: (425) 453-7311 FAX: 425-456-3999 kruep@perkinscoie.com September 14, 1999 Honorable City Council Land Use and Transportation Committee City of Federal Way 33530 - 1st Way South Federal Way, WA 98003-6210 Re~ Personal Wireless Service Facilities (PWSF) Federal Way City Code (FWCC) Text Amendment Dear Land Use and Transportation Committee: We represent Puget Sound Energy, Inc. ("PSE"), a regional utility provider. We submit these comments on behalf of PSE for the purpose of obtaining a recommendation from the Land Use and Transportation Committee (the "Committee") that the proposed text amendments related to automated meter reading facilities be returned to staff for further analysis, or, alternatively, that PSE be allowed to submit proposed language to amend the Federal Way Code CFWC") directly to the City Council. Background Information Earlier this summer, PSE met with members of the City of Federal Way (the "City) staff to discuss its Automated Meter Reading CAMR") project that it wished to pursue within City limits. At that time, City staff and City attorney Bob Sterbank, took the position that the AMR project fit within the definition of Personal Wireless Service Facilities CPWSF'') as defined by the City's Municipal Code CFWC"). Thus, the City intended to apply the PWSF regulations to the AMR project. City staff suggested PSE seek a code amendment making the AMR facilities exempt from the PWSF provisions of the FWC in the future. It was PSE's understanding that staff would work with PSE so that PSE could provide input regarding how this exemption was to be proposed. [07772-0532/BA992560.051] ANCHORAGE BELLEVUE DENVER HONG KONG LOS ANGELES MENLO PARK OLYMPIA PORTLAND SAN FRANCISCO SEATTLE SPOKANE TAIPEI WASHINGTON, D.C. STRATEGIC ALLIANCE: RUSSELL ~ DuMOULIN, VANCOUVER, CANADA Honorable City Council Land Use and Transportation Committee September 14, 1999 Page 2 However, this did not occur and the amendments that were originally submitted to the Planning Commission on July 21, 1999, exempted only one part of the integrated system needed to complete the AMR project - the modifications to individual customer meter readers. PSE quickly prepared a public comment letter and appeared at the July 21, 1999, hearing. A copy of the comment letter is attached hereto as Exhibit A, for the Council's convenience. After several questions from the Commission, staff were directed to consider PSE's concerns further and one Commissioner suggested to staff that staff should consider whether PSE's AMR project should be subject to the PWSF provisions of the code at all, i.e., whether they fit within the definition of a PWSF. PSE understood from staff comments at the public heating, following the Commission's directions, that staff would not be moving forward with the AMR provision amendments at the next Planning Commission meeting scheduled for August 18, 1999, but would need more time to research the issues. The Commission also directed staff to work with PSE to arrive at a solution that reflected, or at least, considered, PSE's concerns. Subsequently, PSE received no communication from staff that they were proceeding with the AMR amendments for the August 18, 1999, hearing, in conjunction with the other PWSF amendments. PSE received no copy of the August 11, 1999, staff report indicating the AMR facilities were put back in the agenda. At the August 18, 1999, heating, staff reportedly communicated to the Commission that PSE must have been satisfied with the AMR provisions given PSE was not in attendance to oppose them. PSE would have provided further comment had PSE been given the opportunity to do so as it reasonably expected following the July 21, 1999, public hearing. Thus, the Planning Commission's action was taken without the benefit of further involvement by or comment from PSE. Analysis of Substantive Provisions of Code Amendments PSE previously contended that the AMR project does not belong within the framework of the pending amendments related to PWSF because the AMR facilities are not fairly characterized as PWSF within the context of the land use code. Both the' technology and the purpose of the use for the AMR facilities are substantially different than the technology and purpose of the use for personal wireless service facilities, as defined by federal law. [07772-0532/BA992560.051] 9/14/99 Honorable City Council Land Use and Transportation Committee September 14, 1999 Page 3 In prior communications with City staff, PSE addressed the AMR project within the context of the PWSF definition presently existing in the FWC. When City staff was not willing to accept PSE's explanation of the differences in the technology use and purpose, PSE opted to work within the context of what staff was to propose in the context of the PWSF regulations. Perhaps the more appropriate manner in which to address the issues that have arisen in applying the PWSF de£mition to AMR facilities warrants a revision of the PWSF definition itself, rather than trying to create an exemption. The reason for this suggestion is that FWC defmition of PWSF is made in the context of the definition of Personal Wireless Services CPWS"), a defmition which is equivalent to the definition found both in the State Environmental Policy Act, Ch. 43.21C RCW and the Federal Telecommunications Act. WAC 197- 11-800(27); 47 U.S.C. § 332. The City has essentially ignored this definition in finding that the AMR project offers PWS through PWSF. Moreover, the City's primary concern appears to be with aesthetics, rather than with the technology itself or the use to which the technology is put. Aesthetic concerns, if appropriate for the particular application before the City, could be addressed in conjunction with any approval required for the modification of utility facilities. This would satisfy the staffs concerns about potential aesthetic impacts while, at the same time, addressing PSE's concerns over other provisions of the PWSF provisions of the FWC that would unnecessarily restrict PSE's ability to carry out the AMR project in Federal Way. In particular, the following PWSF provisions unnecessarily restrict PSE's AMR project: - Prioritized location requirements, Sec. 22-966(d). Under these provisions, PSE would have to give priority to installing control stations on structures located in the BPA trail and on existing broadcast, relay and transmission towers before locating on its own publicly-used structures presently located within the right- of-way. The effect of these provisions is to regulate an internal business decision by making it difficult to upgrade PSE's internal communications technology, thereby interfering with PSE's ability to carry out its business. The AMR project is a private PSE utility operational function and no telecommunications [07772-0532/BA992560.051] 9/14/99 Honorable City Council Land Use and Transportation Committee September 14, 1999 Page 4 service is being provided, as federal law expressly def'mes that tenn. Requiring PSE to obtain property rights from third parties to locate its own meter reading devices, intended to enhance PSE's existing utility service the City, could result in related expenditures that place an unfair burden on PSE's ratepayers in the City of Federal Way. PSE is not a personal wireless service provider in carrying out the AMR project and should not be so treated. - Additional standards for equipment enclosures for PWSFs located on structures within appropriate public rights-of-way, Sec. 22-96709. Under these provisions, equipment enclosures either have to be located on adjacent properties or underground unless impracticable. Again, requiring PSE to obtain adjacent property owner rights for its equipment structure adds a further burden in implementing its internal-use only AMR facilities. Moreover, undergrounding the AMR equipment is not technically possible owing to equipment box design and functionality. Also, the normal installation is to keep the equipment on PSE poles, owing to the need to be close to the antenna for signal strength. - Collocation, Sec. 22-971. This provision basically requires PSE to offer its structures up to actual venders of personal wireless services even though PSE's AMR facilities cannot function as personal wireless services and cannot be used for the conveyance of personal wireless services owing to technological limitations. Owing to the differing technology, the AMR facilities, in most cases, will not be compatible with PWSF uses. This restriction places an obligation on PSE to accept requests for PWS providers, even though PSE is not operating offering PWS and allows the City to interfere in its internal decisions about how to use its own equipment. - Permit Limitations, Sec. 22-974. This provision sets an expiration date of ten years on the use permit in order to allow the City to apply potentially more restrictive PWSF provisions to [07772-0532/BA992560.051] 9/14/99 Honorable City Council Land Use and Transportation Committee September 14, 1999 Page 5 the AMR facilities. If, again owing to the technological differences between AMR and PWSF, PSE is unable to meet the later-adopted use regulations, PSE could be faced with a sizeable expenditure to remove the benefits of the AMR system to its customers. This negatively affects PSE's ability to make a long- term internal business decision regarding the appropriateness of the AMR project in the City limits of Federal Way. These particular provisions demonstrate that the application of the PWSF provisions to PSE's AMR project results in a number of consequences to PSE that interfere with PSE's plan to enhance the utility service provided to its customers in the City of Federal Way. Response to Inaccurate Comments Provided in August 11, 1999, Staff Report 1. Staff Comment, Page 3(C)(1)(a). AMR facilities should be treated as utilities under the zoning code because they enable PSE to provide a public service to its customers, i.e., efficiently reading customer meter data related to the provision of energy services to its customers. The FWC definition of Public Utilities expressly includes "antennas and related facilities operated on a commercial basis." FWC § 22-1, at 1343. On the other hand, the PWSF definition, while written broadly, should be read in context with the definition of "personal wireless services," services which defines the nature of the use proposed when constructing PWSF. As mentioned earlier, the personal wireless services definition found in the FWC mimics the definition found in SEPA, which, in mm, refers to the federal regulatory definition. Id.__. at 1342. Under federal law, it is clear that the each component part, and the AMR system as a whole, do not meet the federal definition for personal wireless services. 42 USC. § 332 (A copy of relevant excerpts is attached hereto as Exhibit B and highlighted). It was based on these definitions that PSE originally attempted to persuade City staff that the PWSF regulations did not apply to PSE's AMR project. (A copy of the letter sent to the City on May 12, 1999, is attached hereto as Exhibit C in order to provide further explanation of the differences between the two uses as defmed by the FWC). Thus, the plain language of the FWC does not support the [07772-0532/BA992560.051] 9/14/99 Honorable City Council Land Use and Transportation Committee September 14, 1999 Page 6 staffs treatment of the AMR facilities as a use providing PWS, thereby necessitating an exemption in the first place. 2. Staff Comment, Page 4,(C)(1)(b). Staff has misperceived the relevance of PSE's comments regarding the number of parties involved in the wireless communication. The point is, that if the service is not made available to the public, or enough users to be the equivalent of the public, then it is not a personal wireless service facility as defined by federal law because it is not a "telecommunications service." The fact that the AMR system is to be used internally by PSE only was provided to further support the contention that AMR facilities are not PWSF as defined by federal law, and, by the extension of the federal definition of PWS found in the FWC, to facilities within the City of Federal Way. 3. Staff Comment, Page 4, (C)(1)(c). Staffs concern about aesthetic impacts related to AMR facilities are made in the context of staffs knowledge of the appearance of PWSF constructed to provide PWS. Although the one control station that is needed to make the AMR project function in Federal Way does involve a ten- foot high antenna, it is the only one and the only type of antenna (except the one foot pole top units) needed for the AMR system and is thus unlike PWSF constructed to provide PWS, which can involve antennas of various sizes and shapes in order to make the PWS available to the potential wireless customers in the City. Moreover, the City has the ability to impose permit conditions related to impacts from utility projects through the applicable review process, if the specific project proposed warranted such conditions under the State Environmental Policy Act, Ch. 43.2 lC environmental review process. An enviromnental impact analysis, by defmition, is proposal specific. Thus, City staffs contention that PSE's AMR project involves "identical" impacts to providers of PWS generally, runs contrary to the way the environmental review process is conducted. 4. Staff Comment, Page 4-5, (C)(1)(d). At no time did PSE suggest that 113 individual Process I approvals would be the appropriate review for the AMR project. Rather, under the FWC, assuming the AMR project was treated as a PWSF, then PSE sought Process I review for the single control station (the City had already made the pole top units and customer meter devices exempt under the proposed text amendments). PSE supported this request by referring staff to the general authority provided by FWC § 22-35, which allows the City to apply a different review process [07772-0532/BA992560.051 ] 9/14/99 Honorable City Council Land Use and Transportation Committee September 14, 1999 Page 7 to permits for which special circumstances warrant a different review process. On the other hand, if considered a public utility, the City would not review 113 separate applications. First, there is only one control station and 109 pole top units (110, not 113). Second, the FWC specifically requires the City to apply its permit processing regulations to all of the components of one project as a single application. FWC § 22-35. Thus, only a single review process would be involved (which is, by the way, the manner in which the City proposed to process the application). 5. Staff Comment, Page 5. At this point in the staff report, the staff sets forth information regarding how it believes other jurisdictions would treat PSE's AMR project, as a means of further supporting their interpretations and the text amendment. Unfortunately, staff collection of this data does not appear to have been accurate in the following particulars: a) in Covington, the AMR facilities were not determined to be subject to the PWSF provisions of the Covington code because they were not defined as PWSF and the control station was located outside of the city limits, making the question of its status not necessary to be determined, b) in Thurston County, the AMR facilities were not be determined to be subject to the PWSF provisions of the Thurston County Code because they were not defined as PWSF, c) in Mercer Island, the AMR facilities have been installed since 1995 and were not subject to any PWSF provisions, d) in Kirkland, the pole top units were not determined to be subject to the PWSF and the control station was located outside of the city limits, making the question of its status not necessary to be determined e) in Redmond, the control station was not reviewed under the PWSF provisions and was constructed on PSE- owned property without any land use permit, f) in SeaTac, the AMR facilities were not determined to be subject to the PWSF provisions and, in fact, the city attorney expressly determined the AMR facilities to be utility facilities and g) in Renton, only those AMR facilities to be located on City-owned poles were subject to the PWSF provisions and, as they were all located on PSE structures in or outside of the right-of- way, the PWSF provisions did not apply. Additionally, no land use permits or application of PWSF provisions applied in Lacey, Tumwater, or Olympia, to name a few. The City of Bellevue has treated the AMR facilities as Utility Facilities under its code. To further assist the City in analyzing how different jurisdictions are considering PSE's AMR project, a copy of a letter from the City of SeaTac is attached to this letter as Exhibit D. [07772-0532/BA992560.051] 9/14/99 Honorable City Council Land Use and Transportation Committee September 14, 1999 Page 8 Recommended Request for Action by Land Use and Transportation Committee Unfortunately, staff has not been receptive to PSE's concerns, perhaps reacting to speculations about public outcry or anticipating a far greater effect of the AMR facilities on the ability of the City to regulate personal wireless service providers. PSE's comments did not make their way to the original drafters until after the draft ordinance had already been prepared, even though submitted by the timelines communicated to PSE. Then, PSE was removed from the public process entirely by not being notified that the AMR amendments were going to again be considered at the August 18 meeting of the Planning Commission. Thus, PSE seeks a recommendation from this Committee to the Council to provide: 1) a specific written direction from the County to staff to require staff to obtain and consider PSE's comments to date, and 2) removal of the presently proposed AMR "exemption" from the consideration of the City Council during its consideration of the other proposed PWSF text amendments. Alternatively, and in fairness to PSE for its lack of inclusion in the public process to date, PSE seeks a recommendation from this Committee to Council that PSE be allowed to present specific proposed text amendment language to the Committee to be forward directly to the Council. On behalf of PSE, we wish to thank you for this opportunity to present PSE's concerns. Sincerely, ela W. Krueger~~ MAQ:PWK:pwk cc: Brian Pollom, PSE [07772-0532/BA992560.051] 9/14/99 PUGET SOUND ENERGY July 21, 1999 Federal Way Planning Commission Members c/o Ms. Tina Piety City of Federal Way 33530 1st Way South Federal Way, WA 98003-6210 Re: Draft Ordinance Amending Chapter 22 (Zoning) of the Federal Way Municipal Code Pertaining to Siting and Development Standards and Review Processes for Personal Wireless Communication Facilities Honorable Planning Commission Members: As you may know, Puget Sound Energy, Inc. ("PSE") is a regional utility company serving customers within the City of Federal Way. Over the years, we have enjoyed a good relationship with the City. In an effort to reduce the costs of our system for our customers, and as a part of the Washington Utilities Commission's approval of our merger with Washington Natural Gas in 1997, we have undertaken several programs designed to improve our service. One of these programs, which we have been able to implement effectively in a number of jurisdictions as another component of our utility system, is our Automated Meter Reading CAMR") program. The AMR program allows us to take advantage of advances in technology and cut down on the necessity for reading a customer's meter at their point of location on the customer's property. Instead, by installing AMR facilities throughout a geographic area, the customer meter readers have the ability to send signals to collecting boxes, called "pole-top units," and through them to 10 foot antennas, called "control stations" (which are usually affixed to existing utility structures), to be recorded. Once recorded, the data can be used to enable PSE to bill its customers accurately and without having to dispatch company meter-reading personnel to each customer meter reader. The technology does not allow for the transmission of any signals received to be sent to third parties; it functions internally only. The reason that we submit this letter and will appear to provide public testimony regarding your draft ordinance is that the AMR facilities are going to become an important part of PSE's integrated system and we had hoped they would be [07772-0532/BA.992020.053] Puget Sound Energy · RO. Box 90868 ° Bellevue, WA 98009-0868 ,, (206) 454-6363 Federal Way Planning Commission Members July 21, 1999 Page 2 treated as "public utilities" under the Federal Way Municipal Code, rather than "personal wireless service facilities." Our control stations really do not fit in with the definition, purpose, or nature of wireless facilities. The prime example of their functional difference is that wireless facilities receive data from one party and transmit it simultaneously to another, which AMR facilities cannot accomplish. The reason that we do not wish to be characterized as "wireless facilities" is that the related development regulations may serve to prevent us from operating our system in a geographic area and subject us to obligations to comply with detailed regulations targeted at a different technology, adding unnecessary delay and costs to our AMR program. Although your city attorney has agreed that the AMR facilities fit within the scope of the existing utility franchise because of their purpose and function, city planning staff has treated the control stations which form part of the system as PWSF because of a perceived similarity to the antennas used by wireless communications providers. Staff has proposed a text amendment that would "change" the code to allow an exemption for these facilities. We appreciate staff efforts to resolve this issue. Presently, the amendment reads: Sec. 22-966(c) Exemptions. The following antennas and facilities are exempt from the provisions of this section and shall be permitted in all zones consistent with applicable development standards as outlined in the Use Zone Charts, Article XI, District Regulations: (5) Automated meter reading (AMR) facilities for the purpose of collecting utility meter data for use in the sale of utility services, except for whip or other antennas; provided the AMR facilities are within the scope of activities permitted under the Franchise Agreement between the utility service provider and the City. [emphasis added]. The language of the exemption excepts out two of the three necessary components to make the AMR facilities functional - the control stations and the pole-top units. These exceptions to the exemption would make the exemption fail to achieve its purpose. Without these components, the system cannot function. We believe that staff concerns about the regulation of antennas that "look like PWSF" are unwarranted in the case of AMR Facilities. Their limited functional use drives their design to consistently be tubular and 10 feet in height, involving little to [07772-0532PBA992020.053] 7/21/99 Federal Way Planning Commission Members July 21, 1999 Page 3 no additional aesthetic impact on the surrounding environment, especially in the case of existing utility structures. In order for the amendment to cover the integrated AMR facility but still require some administrative review for the control stations, we suggest the following: (5) Automated meter reading (AMR) facilities including but not limited to, control stations, pole-top units, customer meter devices, for use in the sale of utility services (regardless of their location, e.g., fight-of-way, easement or franchise area), provided the AMR facilities are within the scope of activities permitted under a valid Franchise Agreement, except for antennas co-located and exceeding the height of an existing pole or other structure more than fifteen 05) feet. AMR facilities fitting within this exemption are "Public Utilities" and subject to the related development standards when not being constructed on an existing utility structure. AMR facilities located on an existing utility structure on public fight-of-way will be subject to Process I review, as described in the Use Zone Charts, Article XI, District Regulations. In order to provide consistency with the remainder of the Code, the following note should be provided under the "Required Review Process" heading for public utilities in each zone: AMR Facilities, as defined in Sec. 22-966, which are proposed to be located on existing utility poles in public fight-of-way, shall be approved through Process I. We believe these revisions appropriately reflect the divergent nature of the AMR technology versus the wireless communication facility technology. We hope you agree that where differences of function and purpose exist to differentiate the use to which an antenna is put, that such differences are not ignored because of an overriding concern regarding the regulation of wireless communications providers. PSE is not proposing to be another provider of wireless communications facilities -- but only to be allowed to upgrade its integrated utility-system technology to allow it to better serve its customers in Federal Way. [07772-0532/BA992020.053] 7/21/99 Federal Way Planning Commission Members July 21, 1999 Page 4 We appreciate your consideration of our colmnents as you decide how to recommend the personal wireless service facility amendments to the City of Federal Way Municipal Code to the City Council. Sincerely, Puget Sound Energy, Inc. Brian Pollom, Project Manager for AMR Facilities [07772-0532/BA992020.053] 7/21/99 PUGET SOUND ENERGY AUTOMATED METER READING AMR PROJECT PUGET SOUND ENERGY reduces new meter installation costs. PSE will use AMR customer-generated information to develop new products and services based on customers' usage patterns and requirements. Conclusion PSE is automating its gas and electric meters. Several pilot projects were conducted by PSE and the current technology was selected. The AMR system was fa'st installed in Thurston County. Our deployment is growing from south to north across PSE's coverage area. Outside the PSE area, AMR services are currently used in states such as Missouri, Texas, and California. They are also used internationally. AMR is a more efficient way of providing essential data services for PSE. It provides the same information that is currently being gathered and used internally. Implementing AMR across the utility is a basic business decision by PSE. PSE customers will receive the benefits PSE achieves through using this upgraded technology. 11/12/98 Pu get~ffi\book narrativo.doc Puget Sound Energy' o 10608 N.E. 4th Street o Bellevue, WA 98004 For more information, please contact: Brian Pollom Puget Sound Energy -- AMR Project Manager 10608 NE 4th GEN-02E Bellevue, WA 98009-5076 (206)604-5141 PUGET · Page 3 1ST DOCUMENT of Level 1 printed in FULL format. UNITED STATES CODE SERVICE Copyright 1999, LEXIS Law Publishing, a division of Reed Elsevier Inc. All rights reserved. *** THIS SECTION IS CURRENT THROUGH 106-49, APPROVED 8/17/99 *** ~qS, TELEgH~NES, ~ND ~U3±Ox~LEGKAPhS CHAPTER 5. WIRE OR RADIO COMMUNICATION ~-~L PROVISIONS RELATING TO RADIO GENERAL PROVISIONS 47 USCS § 332 332. Mobile services~ (a) Factors which Commission must consider. (1999) In taking actions to manage the spectrum to be made available for use by the private mobile services, the Commission shall consider, consistent with section 1 of this Act [47 USCS § 151], whether such actions will-- (l) promote the safety of life and property; (2) improve the efficiency of spectrum use and reduce the regulatory burden upon spectrum users, based upon sound engineering principles, user operational requirements, and market-place demands; (3) encourage competition and provide services to the largest feasible number of users; or (4) increase interservice sharing opportunities between private mobile services and other services. (b) Advisory coordinatin~ committees. (1) The Commission, in coordinating the assignment of frequencies to stations in the private mobile services and in the fixed services (as defined by the Commission by rule), shall have authority to utilize assistance furnished by advisory coordinatin~ committees consistin~ of individuals who are not officers or employees of the Federal Government. (2) The authority of the Commission established in this subsection shall not be subject to or affected by the provisions of part III of title 5, United States Code [5 USCS §§ 2101 et seq.], or section 3679(b) of the Revised Statutes (31 U.S.C. 665(b)) . (3) Any person who provides assistance to the Commission under this subsection shall not be considered, by reason of havin~ provided such assistance, a Federal employee. (4) Any advisory coordinating committee which furnishes assistance to the Commission under this' subsection shall not be subject to the provisions of the Federal Advisory Committee Act [5 USCS Appx] . (c) Common carrier treatment of commercial and private mobile services; state preemption; regulatory treatment of communications satellite corporation; space gment capacity; foreign ownership. (1) C_.ommon carrier treatment of commercial mobile services. (A) A person engaged in the provision of a service that is a ~ommercial mobile servi~e shall, insofar as such person is so en~aged, be treat~_d as a. c,~ommon.~cDr~rler for purposes of this Act [47 USCS §§ 151 et seq.], except for 0' L£×I$;NEXI$' 0' 0' L£×I$'NEX,$' '~A m~r ~ t~ ~ El~icr plc ~up -~A mcm~r ~ t~ ~¢d El~vicr plc group -~,A mem~r ~ t~ ~ El~ier pie ~up P~e4 4? USC$ § 332 such provisions of title II [47 USCS §§ 201 et seq.] as the Commission may specify by regulation as inapplicable to that service or person. In prescribing or amending any such regulation, the Commission may not specify any provision §of section 201, 202, or 208 [47 USCS § 201, 202, or 208], and may specify any other provision only if the Commission determines that-- (i) enforcement of such provision is not necessary in order to ensure that the charges, practices, classifications, or regulations for or in connection with that service are just and reasonable and are not unjustly or unreasonably discriminatory; (ii) enforcement of such provision is not necessary for the protection of consumers; and (iii) specifying such provision is consistent with the public interest. (B) Upon reasonable request of any person providing commercial mobile service, the Commission shall order a common carrier to establish physical connections with such service pursuant to the provisions of section 201 of this Act [47 USCS § 201]. Except to the extent that the Commission is required to respond to such a request, this subparagraph shall not be construed as a limitation or expansion of the Commission's authority to order interconnection pursuant to this Act [47 USCS §§ 151 et seq.]. (C) The Commission shall review competitive market conditions with respect to commercial mobile services and shall include in its annual report an analysis of those conditions. Such analysis shall include an identification of the number of competitors in various commercial mobile services, an analysis of whether or not there is effective competition, an analysis of whether any of such competitors have a dominant share of the market for such services, and a statement of whether additional providers or classes of providers in those services would be likely to enhance competition. As a part of making a determination with respect to the public interest under subparagraph (A) (iii), the Commission shall consider whether the proposed regulation (or amendment thereof) will promote competitive market conditions, including the extent to which such regulation (or amendment) will enhance competition among providers of commercial mobile services. If the Commission determines that such regulation (or amendment) will promote competition among providers of commercial mobile services, such determination may be the basis for a Commission finding that such regulation (or amendment) is in the public interest. (D) The Commission shall, not later than 180 days after the date of enactment of this subparagraph [enacted Aug. 10, 1993], complete a rulemaking required to implement this paragraph with respect to the licensing of personal communications services, including making any determinations required by isub~(~) ~on~ common /(2) carrier treatment/of private mobile services~ A person engaged n ~he provision of a service that is a-]~riv~te mobile service shall not, insofar as such person is so engaged, be treated as a common carrier for any purpose under this Act [47 USCS §§ 151 et seq.]. A common carrier (other than a person that was treated as a provider of a private land mobile service prior to the enactment of the Omnibus Budget Reconciliation Act of 1993 [enacted Aug. 10, 1993]) shall not provide any dispatch service on any frequency allocated for common carrier service, except to the extent such dispatch service is provided on stations licensed in the domestic public land mobile radio service before January 1, 1982. The Commission may by regulation terminate, in whole or in part, the prohibition contained in the preceding sentence if the Commission determines that such termination will serve the public interest. (3) State preemption. (A) Notwithstanding sections 2(b) and 221(b) [47 USCS §§ 152(b) and ,A mcmbcr of thc Reed Elsevicr plc group ~c..A rnembcr of the Rccd Elsevier plc group LEXIS.NEXIS -~A member of the Reed Elsevier plc group Page 5 47 USCS § 332 221(b)], no State or local government shall have any authority to regulate the entry of or the rates charged by any commercial mobile service or any private mobile service, except that this paragraph shall not prohibit a State from regulating the other terms and conditions of commercial mobile services. §Nothing in this subparagraph shall exempt providers of commercial mobile services (where such services are a substitute for land line telephone exchange service for a substantial portion of the communications within such State) from requirements imposed by a State commission on all providers of telecommunications services necessary to ensure the universal availability of telecommunications service at affordable rates. Notwithstanding the first sentence of this subparagraph, a State may petition the Commission for authority to regulate the rates for any commercial mobile service and the Commission shall grant such petition if such State demonstrates that-- (i) market conditions with respect to such services fail to protect subscribers adequately from unjust and unreasonable rates or rates that are unjustly or unreasonably discriminatory; or (ii) such market conditions exist and such service is a replacement for land line telephone exchange service for a substantial portion of the telephone land line exchange service within such State. The Commission shall provide reasonable opportunity for public comment in response to such petition, and shall, within 9 months after the date of its submission, grant or deny such petition. If the Commission grants such petition, the Commission shall authorize the State to exercise under State law such authority over rates, for such periods of time, as the Commission deems necessary to ensure that such rates are just and reasonable and not unjustly or unreasonably discriminatory. (B) If a State has in effect on June 1, 1993, any regulation concerning the rates for any commercial mobile service offered in such State on such date, such State may, no later than 1 year after the date of enactment of the Omnibus Budget Reconciliation Act of 1993 [enacted Aug. 10, 1993], petition the Commission requesting that the State be authorized to continue exercising authority over such rates. If a State files such a petition, the State's existing regulation shall, notwithstanding subparagraph (A), remain in effect until the Commission completes all action (including any reconsideration) on such petition. The Commission shall review such petition in accordance with the procedures established in such subparagraph, shall complete all action (including any reconsideration) within 12 months after such petition is filed, and shall grant such petition if the State satisfies the showing required under subparagraph (A) (i) or (A) (ii) . If the Commission grants such petition, the Commission shall authorize the State to exercise under State law such authority over rates, for such period of time, as the Commission deems necessary to ensure that such rates are just and reasonable and not unjustly or unreasonably discriminatory. After a reasonable period of time, as determined by the Commission, has elapsed from the issuance of an order under subparagraph (A) or this subparagraph, any interested party may petition the Commission for an order that the exercise of authority by a State pursuant to such subparagraph is no longer necessary to ensure that the rates for commercial mobile services are just and reasonable and not unjustly or unreasonably discriminatory. The Commission shall provide reasonable opportunity for public comment in response to such petition, and shall, within 9 months after the date of its submission, grant or deny such petition in whole or in part. (4) Regulatory treatment of communications satellite corporation. Nothing in this subsection shall be construed to alter or affect the regulatory treatment required by title IV of the Communications Satellite Act of 1962 [47 USCS §§ 741 LEXIS'NEXIS' member of the Reed Elaevier pk group LEXIS'NEXIS' 0TM -~h member of the IKeed Elsevier pk group LEXIS.NEXIS' member of the Reed Elsevier plc group Page 6 47 USCS § 332 et seq.] of the corporation authorized by title III of such Act [47 USCS §§ 731 et seq.]. (5) Space segment capacity. Nothing in this section shall prohibit the Commission from continuing to determine whether the provision of space segment capacity by satellite systems to providers of commercial mobile services shall §be treated as common carriage. (6) Foreign ownership. The Commission, upon a petition for waiver filed within 6 months after the date of enactment of the Omnibus Budget Reconciliation Act of 1993 [Aug. 10, 1993], may waive the application of section 310(b) [47 USCS § 310(b)] to any foreign ownership that lawfully existed before May 24, 1993, of any provider of a private land mobile service that will be treated as a common carrier as a result of the enactment of the Omnibus Budget Reconciliation Act of 1993, but only upon the following conditions: (A) The extent of foreign ownership interest shall not be increased above the extent which existed on May 24, 1993. (B) Such waiver shall not permit the subsequent transfer of ownership to any other person in violation of section 310(b) [47 USCS § 310(b)] . (7) Preservation of local zoning authority. (A) General authority. Except as provided in this paragraph, nothing in this Act [47 USCS §§ 151 et seq.] shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities. (B) Limitations. (i) The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof-- (I) shall not unreasonably discriminate among providers of functionally equivalent services; and (II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services. (ii) A State or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request. (iii) Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record. (iv) No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission's regulations concerning such emissions. (v) Any person adversely affected by any final action or failure to act by a State or local government or any instrumentality thereof that is inconsistent with this subparagraph may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction. The court shall hear and decide such action on an expedited basis. Any person adversely affected by an act or failure to act by a State or local government or any instrumentality thereof that is inconsistent with clause (iv) may petition the Commission for relief. (C) Definitions. For purposes of this paragraph-- LEXIS'NEXIS member of the Reed Elsevier pie group LEXIS'NEXIS -~A member of the Reed Elsevier plc group LEXIS-NEXIS' '~A member of the Reed Elsevier pie group 4? U$CS § 332 Page 7 (i) the term "personal wireless services" means commercial mobile services, unlicensed wi-~eless 'services, an---~[common carrier wireless exchange cc-~serv~ces; (ii) the term "personal wireless service facilities" mean~ for the provision of personal wireless services; and (iii) the term "unlicensed wireless servi~e" means the offerin~ of §telecommunications services using duly autho-----~rized devices which do not require ~/~--~icenses, but ~oes not mean the provision of direct-to-home satellite %'--services (as defined in section 303(v) [47 USCS § 303(v)]). (8) Mobile services access. A person engaged in the provision of commercial mobile services, insofar as such person is so engaged, shall not be required to provide equal access to common carriers for the provision of telephone toll services. If the Commission determines that subscribers to such services are denied access to the provider of telephone toll services of the subscribers' choice, and that such denial is contrary to the public interest, convenience, and necessity, then the Commission shall prescribe regulations tO afford subscribers unblocked access to the provider of telephone toll services of the subscribers' choice through the use of a carrier identification code assigned to such provider or other mechanism. The requirements for unblocking shall not apply to mobile satellite services unless the Commission finds it to be in the public interest to apply such requirements to such services. (d) Definitions. For purposes of this section-- (1) the term "com..__~mercial mobile service" means any mobile service (as defined in section 3 [47 USCS § 153]) that is provided for profit and makes interconnected service available (A) to the public or (B) t~of eligible users as to be effectively available to a substantial portion of the pu_~ic, as specified by regulation by the Commission; (2) the term "interconnected service" means service that is interconnected with the public switched network (as such terms are defined by regulation by the Commission) or service for which a request for interconnection is pending pursuant to subsection (c) (1) (B); and (3) the term "privat~e ~o_~~ means any mobile service (as defined in section 3 [47 US-~ ~ 153]) that is not a commercial '~bile ser%ice or the functional equivalent of a co~ercial mobile service, as specified by regulation by-~e Commission. HISTORY: (June 19, 1934, ch 652, Title III, Part I, § 332 [331], as added Sept. 13, 1982, P.L. 97-259, Title I, § 120(a), 96 Stat. 1096; Oct. 5, 1992, P.L. 102-385, § 25(b), 106 Stat. 1502; Aug. 10, 1993, P.L. 103-66, Title VI, § 6002(b) (2) (A), 107 Stat. 393.) (As amended Feb. 8, 1996, P.L. 104-104, § 3(d) (2), Title VII, §§ 704(a), 705, 110 Stat. 61, 151, 153.) HISTORY; ANCILLARY LAWS AND DIRECTIVES References in text: "Section 3679(b) of the Revised Statutes", referred to in subsec. (b) (2), which appeared as 31 USCS § 665(b), was repealed by Act Sept. 13, 1982, P.L. 97-258, § 5(b), 96 Stat. 1068, which Act enacted Title 31 as positive law. Similar provisions appear as 31 USCS § 1342. The "Omnibus Budget Reconciliation Act of 1993", referred to in subsec. (c) (2), (3) (B), and (6), is Act Aug. 10, 1993, P.L. 103-66, 107 Stat. 312. For full classification of this Act, consult USCS Tables volumes. LEXIS;NEXIS' '~A mcmbcr of the Reed Elsevier plc g~oup LEXIS:NEXIS' 0TM ~4.A memher of thc Reed Elsevier plc ~roup LEXIS;NEXIS' Amember of the Keed Elsevier plc group Page 16 47 USCS § 153 printed in FULL format. UNITED STATES CODE SERVICE Copyright 1999, LEXIS Law Publishing, a division of Reed Elsevier Inc. All rights reserved. *** THIS SECTION IS CURRENT THROUGH 106-49, APPROVED 8/17/99 *** TITLE 47. TRL~RAP~: TRT.RPHONE$, AND RADIOTELEGRAPHS CHAPTER 5. WIRE OR RADIO COMSgLT~¥O~TIC~W GENERAL PROVISIONS 47 USCS § 153 (1999) § 153. Definitions~ For the purposes of this Act [47 USCS §§ 151 et seq.], unless the context otherwise requires-- (1) Affiliate. The term "affiliate" means a person that (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership or control with, another person. For purposes of this paragraph, the term "own" means to own an equity interest (or the equivalent thereof) of more than 10 percent. (2) Amateur station. The term "amateur station" means a radio station operated by a duly authorized person interested in radio technique solely with a personal aim and without pecuniary interest. (3) AT&T Consent Decree. The term "AT&T Consent Decree" means the order entered August 24, 1982, in the antitrust action styled United States v. Western Electric, Civil Action No. 82-0192, in the United States District Court for the District of Columbia, and includes any judgment or order with respect to such action entered on or after August 24, 1982. (4) Bell operating company. The term "Bell operating company"-- (A) means any of the following companies: Bell Telephone Company of Nevada, Illinois Bell Telephone Company, Indiana Bell Telephone Company, Incorporated, Michigan Bell Telephone Company, New England Telephone and Telegraph Company, New Jersey Bell Telephone Company, New York Telephone Company, U S West Communications Company, South Central Bell Telephone Company, Southern Bell Telephone and Telegraph Company, Southwestern Bell Telephone Company, The Bell Telephone Company of Pennsylvania, The Chesapeake and Potomac Telephone Company, The Chesapeake and Potomac Telephone Company of Maryland, The Chesapeake and Potomac Telephone Company of Virginia, The Chesapeake and Potomac Telephone Company of West Virginia, The Diamond State Telephone Company, The Ohio Bell Telephone Company, The Pacific Telephone and Telegraph Company, or Wisconsin Telephone Company; and (B) includes any successor or assign of any such company that provides wireline telephone exchange service; but (C) does not include an affiliate of any such company, other than an affiliate described in subparagraph (A) or (B). (5) Broadcast station. The term "broadcast station", "broadcasting station", "radio broadcast station" means a radio station equipped to engage in oadcasting as herein defined. (6) Broadcasting. The term "broadcasting" means the dissemination of radio communications intended to be received by the public, directly or by the intermediary of relay stations. LEXIS.NEXIS -~A member o4~ thc R~ed Elsevier plc group LEXIS.NEXIS ~w~.A me~nb~r of thc l~ed Elsevier plc group Page 17 47 USCS § 153 (7) Cable service. The term "cable service" has the meaning given such term in section 602. (8) Cable system. The term "cable system" has the meaning given such term Sin section 602. (9) Chain broadcasting. The term "chain broadcasting" means simultaneous broadcasting of an identical program by two or more connected stations. ~(10) Common carrier.I The term "common carrier" or "carrier" means any person engaged as a common carrier for hire, in interstate or foreign communication by wl--~re or radio or in interstate or ~reign radio transmission of energy, except where reference is made to common carriers not subject to this Act [47 USCS §§ 151 et seq.]; but a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier. (11) Connecting carrier. The term "connecting carrier" means a carrier described in clauses (2), (3), or (4) of section 2(b) [47 USCS § 152(b)] . (12) Construction permit. The term "construction permit" or "permit for construction" means that instrument of authorization required by this Act [47 USCS §§ 151 et seq.] or the rules and regulations of the Commission made pursuant to this Act [47 USCS §§ 151 et seq.] for the construction of a station, or the installation of apparatus, for the transmission of energy, or communications, or signals by radio, by whatever name the instrument may be designated by the Commission. (13) Corporation. The term "corporation" includes any corporation, joint-stock company, or association. (14) Customer premises equipment. The term "customer premises equipment" means equipment employed on the premises of a person (other than a carrier) to originate, route, or terminate telecommunications. (15) Dialing parity. The term "dialing parity" means that a person that is not an affiliate of a local exchange carrier is able to provide telecommunications services in such a manner that customers have the ability to route automatically, without the use of any access code, their telecommunications to the telecommunications services provider of the customer's designation from among 2 or more telecommunications services providers (including such local exchange carrier). (16) Exchange access. The term "exchange access" means the offering of access to telephone exchange services or facilities for the purpose of the origination or termination of telephone toll services. (17) Foreign communication. The term "foreign communication" or "foreign transmission" means communication or transmission from or to any place in the United States to or from a foreign country, or between a station in the United States and a mobile station located outside the United States. (18) Great Lakes Agreement. The term "Great Lakes Agreement" means the Agreement for the Promotion of Safety on the Great Lakes by Means of Radio in force and the regulations referred to therein. (19) Harbor. The term "harbor" or "port" means any place to which ships may resort for shelter or to load or unload passengers or goods, or to obtain fuel, water, or supplies. This term shall apply to such places whether proclaimed public or not.and whether natural or artificial. (20) Information service. The term "information service" means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service. (21) InterLATA service. The term "interLATA service" means telecommunications LEXIS'NEXIS Amember of th~ l~¢d El~vicr plc group LEXIS.NEXIS' Arn~mber of th~ l~d £1~vicr plc group LEXIS'NEXIS '~A member of th~ P,.eed Elsevier plc group Page 18 47 USCS § 153 between a point located in a local access and transport area and a point located outside such area. (22) Interstate communication. The term "interstate communication" or "interstate transmission" means communication or transmission (A) from any §State, Territory, or possession of the United States (other than the [Philippine Islands and] the Canal Zone), or the District of Columbia, to any other State, Territory, or possession of the United States (other than [the Philippine Islands and] the Canal Zone), or the District of Columbia, (B) from or to the United States to or from [the Philippine Islands or] the Canal Zone, insofar as such communication or transmission takes place within the United States, or (C) between points within the United States but through a foreign country; but shall not, with respect to the provisions of title II of this Act [47 USCS §§ 201 et seq.] (other than section 223 thereof [47 USCS § 223]) include wire or radio communication between points in the same State, Territory, or possession of the United States, or the District of Columbia, through any place outside thereof, if such communication is regulated by a State commission. (23) Land station. The term "land station" means a station, other than a mobile station, used for radio communication with mobile stations. (24) Licensee. The term "licensee" means the holder of a radio station license granted or continued in force under authority of this Act [47 USCS §§ 151 et seq.]. (25) Local access and transport area. The term "local access and transport area" or "LATA" means a contiguous geographic area-- (A) established before the date of enactment of the Telecommunications Act of 1996 [enacted Feb. 8, 1996] by a Bell operating company such that no exchange area includes points within more than 1 metropolitan statistical area, consolidated metropolitan statistical area, or State, except as expressly permitted under the AT&T Consent Decree; or (B) established or modified by a Bell operating company after such date of enactment and approved by the Commission. (26) Local exchange carrier. The term "local exchange carrier" means any person that is engaged in the provision of telephone exchange service or exchange access. Such term does not include a person insofar as such person is engaged in the provision of a commercial mobile service under section 332(c) [47 USCS § 332(c)], except to the extent that the Commission finds that such service sh$,~l~___ _~ ....... 4~l,,~d ~he definition,, of such te~,,. ~(27) Mobile service~ The term mobile service means a radio communication service carried on between mobile stations or receivers and land stations, and by mobile stations communicating among themselves, and includes (A) both one-way and two-way radio communication services, (B) a mobile service which provides a regularly interacting group of base, mobile, portable, and associated control and relay stations (whether licensed on an individual, cooperative, or multiple basis) for private one-way or two-way land mobile radio communications by eligible users over designated areas of operation, and (C) any service for which a license is required in a personal communications service established pursuant to the proceeding entitled "Amendment to the Commission's Rules to Establish New Personal Communications Services" (GEN Docket No. 90-314; ET Docket No. 92-100), or any successor proceeding. (28) Mobile station. The term "mobile station" means a radio-communication station capable of being moved and which ordinarily does move. (29) Network element. The term "network element" means a facility or equipment used in the provision of a telecommunications service. Such term also includes features, functions, and capabilities that are provided by means of LEXIS:NEXIS' member of the Reed Elsevier plc group LEXIS'NEXIS' -~A rrmmber of the Reed Elsevier plc group LEXIS'NEXIS member of the Reed Elsevier pie ~xoup 47 USCS § 153 Page 20 are not parties to the same treaty, convention, or agreement prescribing the requirements for such apparatus. (37) Rural telephone company. The term "rural telephone company" means a local exchange carrier operating entity to the extent that such entity-- (A) provides common carrier service to any local exchange carrier study area that does not include either-- (i) any incorporated place of 10,000 inhabitants or more, or any part §thereof, based on the most recently available population statistics of the Bureau of the Census; or (ii) any territory, incorporated or unincorporated, included in an urbanized area, as defined by the Bureau of the Census as of August 10, 1993; (B) provides telephone exchange service, including exchange access, to fewer than 50,000 access lines; (C) provides telephone exchange service to any local exchange carrier study area with fewer than 100,000 access lines; or (D) has less than 15 percent of its access lines in communities of more than 50,000 on the date of enactment of the Telecommunications Act of 1996 [enacted Feb. 8, 1996]. (38) Safety convention. The term "safety convention" means the International Convention for the Safety of Life at Sea in force and the regulations referred to therein. (39) Ship. (A) "Ship" or "vessel" includes every description of watercraft or other artificial contrivance, except aircraft, used or capable of being used as a means of transportation on water, whether or not it is actually afloat. (B) A ship shall be considered a passenger ship if it carries or is licensed or certificated to carry more than twelve passengers. (C) A cargo ship means any ship not a passenger ship. (D) A passenger is any person carried on board a ship or vessel except (1) the officers and crew actually employed to man and operate the ship, (2) persons employed to carry on the business of the ship, and (3) persons on board a ship when they are carried, either because of the obligation laid upon the master to carry shipwrecked, distressed, or other persons in like or similar situations or by reason of any circumstance over which neither the master, the owner, nor the charterer (if any) has control. (E) "Nuclear ship" means a ship provided with a nuclear powerplant. (40) State. The term "State" includes the District of Columbia and the Territories and possessions. (41) State commission. The term "State commission" means the commission, board, or official (by whatever name designated) which under the laws of any State has regulatory jurisdiction with respect to intrastate operations of carriers. (42) Station license. The term "station license", "radio station license", or "license" means that instrument of authorization required by this Act [47 USCS §§ 151 et seq.] or the rules and regulations of the Commission made pursuant to this Act [47 USCS §§ 151 et seq.], for the use or operation of apparatus for transmission of energy, or communications, or signals by radio, by whatever name the ~nstrument may b~ d~g~gnated by the Commission. \(43) Telecommunications4 The term "telecommunications" means the ~ W transmission, bet een or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received. (44) Telecommunications carrier. The term "telecommunications carrier" means any provider of telecommunications services, except that such term does not 0' L[XIS'N£XIS' 0' LFXIS'NFXIS' 0' L£XIS'NFXIS' '~A ~m~r ~ t~ ~ El.vier plc group ~A mem~r ~ t~ R¢~ El~vier plc ~up -~A mem~r of t~ ~ El.vier pi, group 47 USCS § 153 Page 21 include aggregators of telecommunications services (as defined in section 226 [47 USCS § 226]). A telecommunications carrier shall be treated as a common carrier under this Act only to the extent that it is engaged in providing telecommunications services, except that the Commission shall determine whether the provision of fixed and mobile satellite service shall be treated as common carriage. (45) Telecommunications equipment. The term "telecommunications equipment" means equipment, other than customer premises equipment, used by a carrier to §provide telecommunications services, and includes software integral to such equipment (inclucl/n~ upcra~esk~___- ~ (46) [Telecommunications service~ The term "telecommunications service" means the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, ~egardless Of the facilities used. (47) Telephone exchange service. The term "telephone exchange service" means (A) service within a telephone exchange, or within a connected system of telephone exchanges within the same exchange area operated to furnish to subscribers intercommunicating service of the character ordinarily furnished by a single exchange, and which is covered by the exchange service charge, or (B) comparable service provided through a system of switches, transmission equipment, or other facilities (or combination thereof) by which a subscriber can originate and terminate a telecommunications service. · (48) Telephone toll service. The term "telephone toll service" means telephone service between stations in different exchange areas for which there is made a separate charge not included in contracts with subscribers for exchange service. (49) Television service. (A) Analog television service. The term "analog television service" means television service provided pursuant to the transmission standards prescribed by the Commission in section 73.682(a) of its regulations (47 C.F.R. 73.682(a)) . (B) Digital television service. The term "digital television service" means television service provided pursuant to the transmission standards prescribed by the Commission in section 73.682(d) of its regulations (47 C.F.R. 73.682 (d)) . (50) Transmission of energy by radio. The term "transmission of energy by radio" or "radio transmission of energy" includes both such transmission and all instrumentalities, facilities, and services incidental to such transmission. (51) United States. The term "United States" means the several States and Territories, the District of Columbia, and the possessions of the United States, but does not include [the Philippine Islands or] the Canal Zone. (52) Wire communication. The term "wire communication or "communication by wire" means the transmission of writing, signs, signals, pictures, and sounds of all kinds by aid of wire, cable, or other like connection between the points of origin and reception of such transmission, including all instrumentalities, facilities, apparatus, and services (among other things, the receipt, forwarding, and delivery of communications) incidental to such transmission. HISTORY: (June 19, 1934, ch. 652, Title I, § 3, 48 Stat. 1065; May 20, 1937, ch. 229, § 2, 50 Stat. 189; July 16, 1952, ch. 879, § 2, 66 Stat. 711; April 27, 1954, ch. 175, §§ 2, 3, 68 Stat. 64; Aug. 13, 1954, ch. 729, § 3, 68 Stat. 707; Aug. 13, 1954, ch. 735, § 1, 68 Stat. 729; Aug. 6, 1956, ch. 973, § 3, 70 Stat. 1049; Aug. 13, 1965, P.L. 89-121, § 1, 79 Stat. 511; May 3, 1968, P.L. 90-299, § 2, 82 Stat. 112; Sept. 13, 1982, P.L. 97-259, Title I, § 120(b), 96 Stat. 1097; Aug. 10, 1993, P.L. 103-66, Title VI, § 6002(b) (2) (B) (ii), 107 Stat. 396.) LEXIS;NEXIS' ~/,~A member of thc l~¢d Elsevier plc group LEXIS;NEXIS' ~g,~A mcmhcr of thc Reed Elscvict plc group LEXIS;NEXIS' member of the P.e~l Elaevicr pk group PERKINS COIE LLP ONE BELLEVUE CENTER, SUITE 1800 · 41 I - 108TM AVENUE NORTHEAST · BELLEVUE, WASHINGTON 98004-5584 TELEPHONE: 425 453-6980 · FACSIMILE: 425 453-7350 May 12, 1999 VIA FACSIMILE AND MAIL Mr. Stephen Clifton Director of Community Development Services City of Federal Way 33530 1st Way South Federal Way, WA 98003-6210 Re: Puget Sound Energy, lnc.'s Proposed Meter Reading Project Dear Mr. Clifton: We represent Puget Sound Energy, Inc. CPSE"). On behalf of PSE, we have analyzed certain provisions of the Federal Way City Code ("FWC"), including, in particular; FWC 22-1, 22-351, 22-361, 22-386, 22-571 et seq., and 22-966. As you know, PSE proposes to construct approximately 200 automated meter reading devices ("AMR Devices") to its existing monopole utility structures in the City of Federal Way (the "City"). PSE requested us to follow up on its previous discussions with you regarding the application of these provisions to its automated meter reading project. As a courtesy, we also are providing a copy of this letter to the city attorney and request that a meeting be set up to informally discuss these issues as soon as conveniently possible. We are not formally requesting a code interpretation at this time. The purpose of these AMR Devices is to allow PSE to upgrade its technology for gathering data from its customers' meters, and, in the process, to provide value to its customers through added efficiency. The AMR Devices will perform solely a utility-related function and be appurtenant to PSE's existing utility facilities in order to effectuate that purpose. The AMR Devices will consist of 10-12" antennas and a connecting box which will be attached to the top of PSE's existing utility structures. The AMR Devices will gather meter reading data and send it to a central point where a report containing the data is created. Because the data is not transferred directly from the AMR Devices to PSE, there is no "telecommunication" activity associated with the operation of the AMR Devices and they are not covered by the Telecommunications Act of 1996. [07772-0532/BA991310.160] ANCHORAGE BELLEVUE DENVER HONG KONG LONDON LOS ANGELES OLYMPIA PORTLAND SEATTLE SPOKANE TAIPEI WASHINGTON, D.C. STRATEGIC ALLIANCE: RUSSELL ~ DuMOULIN, VANCOUVER, CANADA May 12, 1999 Page 2 While it is mae that the State Environmental Policy Act CSEPA") provides a categorical exemption for AMR Devices, WAC 197-11-800(24)(c), this categorical exemption is not applicable because the proposed facilities are utility facilities, not personal wireless service facilities, as defined by SEPA. Their installation and use in this instance as appurtenances to utility facilities takes them outside the definition of "personal wireless services." WAC 197-11-800(27)(b). The applicable SEPA categorical exemption, therefore, is WAC 197-11-800(24)(c). The City has independently determined that the addition of these AMR Devices is consistent with the existing franchise agreement between the City and PSE. in this context, the AMR Devices are utility facilities. That is, as the AMR Devices allow PSE to convey meter data to be used for billing PSE customers for the use of energy, they fit within the definition of appurtenances to utility facilities. See Letter from Ms. Londi Lindell, dated October 27, 1998. The letter concludes: Because the AMR Project will convey meter data to be used for billing customers for the use of energy, and in the interest of maintaining the already established working relationship with PSE, the City can conclude that the AMR Project is within the scope of activities permitted under the Franchise Agreement. Utility facility activities are within the scope of activities permitted under the Franchise Agreement. Further, as specified further below, the existing agreement between PSE and Cellnet provides that Cellnet may not seek to provide service through the pole top units to other users without prior approval from the City. If there ever were such an application submitted by Cellnet, that would be the appropriate oppommity for the City to apply the personal wireless facility definition and regulations. The FWC provides further support for the City to process PSE's application for the AMR Devices as.an application to construct utility facilities because the AMR Devices fit within the definition of "Public Utility" under the FWC zoning regulations, and not within the definition of "Personal Wireless Service Facility (PWSF)." The Public Utility definition provides: Public utility shall mean the facilities of a private business organization such as a public service corporation, or a governmental agency performing some public service and subject [07772-0532/BA991310.160] 5/12/99 May 12, 1999 Page 3 to special governmental regulations, the services which are paid for directly by the recipients thereof. Such services shall include but are not limited to: water supply, electric power, telephone, cablevision, natural gas and transportation for persons and freight. The term also includes broadcast towers, antennas and related facilities operated on a commercial basis. The PWSF definition provides: Personal Wireless Service Facility (PWSF) means a wireless communication facility, including a microcell, that is a facility for the transmission and/or reception of radio frequency signals, and which may include antennas, equipment shelter or cabinet, transmission cables, a support structure to achieve the necessary elevation, and reception and transmission devices and antennas. The FWC definition and the related SEPA definition of "personal wireless services" is exactly the same and provide: Personal wireless services means commercial mobile services, unlicensed wireless services, and common carder wireless exchange access services, as defmed by federal laws and regulations. FWC 22-1, at 1342; WAC 197-11-800(27). While the public utility definition is rather broad, the PWSF and personal wireless service definitions attempt to categorize a fairly specific activity. The AMR Devices fit easily within the definition of a public utility because they allow PSE to provide a public service to its customers, i.e., automatically reading automated meters which monitor the extent of electricity used by customers. In mm, PSE's customers pay directly for this service through their electric bills, as provided by the terms of PSE's electric tariff. Additionally, antennas are specifically listed as devices which fit within the definition of a public utility. Moreover, treating the AMR Devices as utility facilities would be consistent with the City Attorney's opinion that the devices fit within the utility facility franchise agreement between PSE and the City. We understand that your focus on this issue to date has been on the inclusion of the AMR Devices within the definition of PWSF. At fu'st blush, the AMR Devices [07772-0532/BA991310.160] 5/12/99 May 12, 1999 Page 4 may appear to fit within this FWC definition because they are technically capable of receiving radio frequency signals. However, the AMR Devices do not provide personal wireless services that are within the purview of what appears to be the intent of Federal Way's PWSF regulations. Instead, they are simply a type of technology which will allow PSE to more efficiently collect meter reading data and carry out its utility service function. Federal Way's definition of PWSF varies from the definition found in SEPA by more broadly defining a PWSF to include any wireless communication facility rather than specifically referencing the "personal wireless service" definition that limits its scope under SEPA. Even so, the FWC definition of "personal wireless services" is verbatim the same language as the SEPA definition. The basic subject matter of this definition relates to a particular type of wireless communication service -- one that involves a particular type of telecommunication activity defined by federal laws. Although the SEPA definition pertains to a narrowly defined category of personal wireless services that warrant a categorical exemption (a categorical exemption which, by the way, would easily apply in this instance if the AMR Devices were not utility facilities because of their size and configuration), it is instructive in analyzing the FWC definition because it pertains to the same type of regulated activity. Ignoring the FWC definition of "personal wireless services" in applying the code to the AMR Devices would be a mistake because, if PWSF is read overly broadly, the regulation of "facilities" that do not provide "personal wireless services," as the term is used under federal and state law, will result. While it may be appropriate for the City to exercise its zoning authority in a manner which imposes more slxingent standards upon the wireless facilities which provide personal wireless services within its jurisdictional boundaries, it is not appropriate to expand the definition of the regulated subject matter when neither the federal nor state governments have treated facilities like the AMR Devices as regulated wireless communication facilities. To illustrate further that it would be. inappropriate to apply the PWSF regulations to the AMR Devices, it should be noted that the installation of the AMR Devices will not enable PSE or any third parties to conduct wireless communications as defined by federal laws. In fact, PSE's pole attachment agreement with CelInet specifically provides that no third parties may utilize the AMR Devices without obtaining necessary permits and approvals. PSE acknowledges that any request by Cellnet or other third parties to convert the units to PWSF would require, additional [07772-0532/BA-991310.160] 5/12/99 May 12, 1999 Page 5 approval from Federal Way. Moreover, no precedent would be set with regard to other projects submitted to Federal Way because the interPretation of these AMR Devices as public utility facilities is a fact-intensive inquiry that depends upon the purpose and use of the proposed utility appurtenance. Providing that the City of Federal Way concludes that the AMR Devices fit within the definition of public utility facilities, PSE further seeks confn'mation that the application for approval for all AMR Devices occur within one administrative permit proceeding, pursuant to FWC 22-35. Please let us know if you need any additional information about the technology or its purpose and function. We look forward to meeting with you to discuss these issues further. l~amela W. KmegerU MAQ:PWK:pwk CC: Londi Lindell, City of Federal Way Brian Pollom, Puget Sound Energy, Inc. Frank Swan, Puget Sound Energy, Inc. Mark Quehrn, Perkins Coie LLP [07772-0532/BA.991310.160] 5/12/99 k]" ~h~ley Th~on ~~m~ S~ve 5~=n;on, F~k Hnnsen ~y Don ~ NUN §§/i~/~O 17900 htemaflo.~ Blv~, Sul~ d01 · S~c, W~ngton 98188~23~ citr ~: (2~) 241-~1~ · F~k: {2~ 241-39~9 · ~D: {20fi) 241-~1 CITY OF SEATA, C LEGAL 1999 NO. 002 City Clerk JudlU~ L. Cary April 12, 1999 Calvin P. Ho88ard City Manager SeaTac City Hall 17900 Intei-iiational Blvd., Suite 401 ScaTac, WA 98188-4236 Stephen C. Butler Director, Department of Planning and Community Development 17900 International Blvd., Suite 401 Se~Tac, WA 98188-4236 Dear Mr, Hol~m'd and Mr. Butler: Puget Sound Energy proposes to instal[ an Automated Meter Reading system within the area of its electricity and natural gas diktribution facilities, including the City of 5~nTa~. The system will be described belo~v and is flirther described by diagrams and photographs provided by Puget Sound :, Eneq~', and attached hereto as Exhibit A. The Department of Planning and Com~, unity Development issued a Memorandum concluding that the Automated Meter Reading ~ystem comes within the definition of a Wireless Telecommunications Faoility_~nd, therefore, is subject to the Minor Conditional Use Permit process ~nd State Envirbnmental Policy Act review. A copy of the Memor~dum is attach~i hereto u Exl~ibit B. Frank H, Swan, Municipal Land Planner with Puget Sound Energy responded by m~ns of a letter to the City Attorney concluding that the applicable Franchises permit iastallation of the system without compliance with the more recently adopted Wireless Telecommunications Facilities Regulations. A copy of Mr. Swan's letter is attached her.'eto ns Exhibit C. The opinion of the Legal Dcpn~tmont ns to these issue.% which we have paraphrued below, has been requested. Our conclusion and analysis is also set forth for your information. ~00'd £~£9 9£~ £~:q~£ $£93f0Hd HOPV~ I0:ZI (N0~)66,~-'AV~ Is Puget Sound Energy's Automated Meter Reading system subje~ to both the Minor Conditional Use Permit process pursuant to Chapter 15.31 of the SeaTac Municipal Code and to StYe Environmental Policy Act review, pursuant to Chaptm' 13.30 of the SeaTac Municipal Code? CONCLUSION Chapter 15.31 of the 8eaTac Municipal Code ("SMC") governs only Commercial Wireless Telecommunications Facilities and is, therefore, not applicable to the proposed Automated Meter Reading system because, by definition of SMC 15.10.114, the system is not "commercial". Applicable Franchises permit construction and installation of appurtenances to dectricity and natural gas distribution facilities without regard to subsequently adopted ordinances and regulations which conflict with the Franchise grant of authority. Thus, even if the Automated Meter Reading system is defined as a Wireless Telecommunications Facility, the Minor Conditional Use Permit process required IJy a subsequently adopted ordinance, is not applicable. Minor alterations of existing utility facilities and equipment, and utility-related installation of electric and natural gsa distribution £scllities are categorically exempt fi'om the threshold determination requirements of the State Environmental ]Policy Act, pursuant to Section 197-11=800 of the WsahJngton Administrative Code ("WAC"), Therefore, the Automated Meter Readin$ system is not subject to review under the said A~t. ANALYSIS 1. Description of the Proposed Automated Meter Reading System. Puget Sound Energy ("PSE") was formed in February 1997 by merger of Puget Sound Power & Light Company and Washington Energy Company (formerly Washington Natural Gas). At that time, PSB operated within 11 counties, providing electric distribution over an area of approximately 4,500 square miles, and natural gsa distribution within an area of approximately 2,619 square miles. Electricity was provided. to some 870,000 customers. Natural gas was provided to approximately 500,000 customers. Recently, PSE commenced initiation of an Automated Meter Reading ("A.MIV') system within the region, including the City of SeaTac. Benefits of this new technololp/are listed by PSE to be as follows: (1) Meter Readers will no longer have to enter customer premises; (2) Fewer PSE vehicles will be on the streets, thus reducing trafftc congestion; 900'd £~£9 9L~ £g~:q3£ S£03?08d ~0?V~ I0:~I (N0~)66,~-'AV~ Legal DepL Opinion Apltl 12, 1999 Page 3 Notification of power outages will be immediate; (4) Meter readings will be more accurate; and (5) Response time to restore public facilities, such as str~'et lights, traffic signals, and pump stations, will be improved. PgE states that it has presented the AMA project to King and Pierce Counties, and to the Cities of Auburn, Covington, Des Moineg Edgewood, Federal Way, Kent, Lac. w/, Maple Valley, Olympia, Puyallup, Redmond, Renton, Tukwila, and Tumwater. Apparently, no jurisdiction has requested an amendment to the applicable Franchise, only Fedea'al Way has required a land use permit, and only Edgewood and Maple Valley have required street use permits. The AMR system will employ radio devices within electric and gas meters to "read" and transmit electronic usage data, The data from the meters within a one-quarter mile radius will be transmitted to "data collection units" mounted near the top of PgE utility poles or, where power lines are underground, on street light standards. Each data collection unit is a box measuring 12" x 12" x IS" in height, with three antennas measuring 10" to 12". All of the data collection units within the City will transmit to a single 10-foot big,h, whip "control station antenna' mounted on top of a PgE utility pole at about South 192°~ Street and 8t~ Avenue South. A "control station" will be mounted two feet ii-om the base of the pole. The control station is also a box which measures approximately 2' x 2' x 4' in height. The control station is connected to telephone lines and transmits the electronic data by telephone to an operations center located in Bellevue, The AMR system, and associated equipment, is depicted on the diagrams attached hereto as Exhibit A. PgE is willing to enter into a hold harmless agreement for installations on stre~ light standards and is also willing to provide landscaping around the control station, A right- of-way construction permit may be required by the City if construction at any given location interferes with traffic. 2. The Proposed Automated Meter Reading System is Not n Wireless Telecommunications Facility subject to the Requirements of Chapter 1S.31 of the SeaTac Municipal Code. The proposed AMR system clearly is composed of facilities to permit the wireless. transmission of electronic data from electric and natural gas meters to approximately sixty data collection units and then to one control station antenna, From that point on, the transmission is not wireless, It is equally clear that the AMR system is not a commercial Wireless Telecommunications Facility, because the system does not provide services that are available to the general public, SMC 15.10.114 limits the definition of a Commercial Wireless Telecommunications Facility, which is identified by the acronym "Commercial WTF", as follows: LOO'd £Z£9 9L~ £$g:qH~ S£OHPOHd HOPV~ I0:~I (NO~)66,~?-'AV~ legal DepL Opinion No. April 12, 1999 Page4 A wireless telecommunications facility used to provide service(s) that is available to the general public. There exists a separate, and contradictory, definition of Wireless Telecommunications l~acility (identified by the acronym ,'WTF"), at SMC 15.10.713. One might expect that this second definition would refer to non-commercial WTF's, but it appears to include commercial purposes, with the possible exception of "wireless digital data transmission", in the following language: Any unataffed facility or component thereof for the transmission and/or reception of radio ~equenoy (RF) signals through electromagnetic enersy, which enable the provision of cellular, personal communications services (PCS), specialized mobile radio ($MR), enhanc~l specialized mobile radio (ESMR), paging, wireless digital data transmission, and other similar services that currently exist or that may in the ~ture be developed. Wireless telecommunications facilities include towers and monopoles; equipment shelters, communication node cabinets, above-ground pede~d cabinets; antenna{e), antenna platform(s), and relay station facilities; cables and associated equipment. To complicate the matter, Chapter 15.31, is entitled "Siting of C:_o_mmercial Wireless Telecommunications Facilities". SMC 1:5.31.010 states that the purpose of the Chapter is establishment of standards and procedures for the siting and construction of"commen~lal wireless telecommunications facilities (WTFs)". To be consistent with the definition of SMC 15.10.114, the acronym should have been "Commercial WTI~'. However, as used throughout Chapter 15.31, the acronym WTF refers to "commercial wireless telecommunications facilities". Thus, the regulations do not apply to any wireless transmission system which does not fall within the SMC 15.10.114 definition of "Commercial Wireless Telecommunications Facility" by reason of providing service that is available to the general public. It may also be noted that the Recitals contained in Ordinance No. 97-101:3, which is now codified as Chapter 15.31 of the SeaTac Municipal Code, provide a clear intention on the part of the City Council to apply the regulations only to Commercial Wireless Telecommunications Facilities. If the Council had intended the regulations to apply to all such facilities, the word "commercial" should not have been included in the Chapter, The result is that SMC 15.10.713 is without any purpose. It is a general definition which is preempted by the more specific definition of SMC 15.10.114 relating to Commercial Wireless Telecommunications Facilities, just as does Chapter 15.31 SMC, Ar~ordingly, because the proposed ~ system is not "~mmer~iai" (that is, does not provide service available to the general public), it is not governed by the regulations of. Chapter 15.31 SMC. , , , Parc $ 3. Even if the Automated Meter Reading System was a Regulated Wireless Telecommunications Facility, Terms of the Applicable Franchises Preempt Application of Regulations Imposed by $ubsequent Ordinances. The City granted a Franchise to Puget Sound Power & Light ('?SF&L") by Ordinance No. 93-10:26, for distribution of electrical energy and to charge and collect tolls, rates and compensation for such energy. PSIZ, as successor to PSP&I_-, is now the franchisee and has assumed the responsibilities and privileges of that Franchise. Kin& County granted a Franchise to Washington Natural Gas in 1969 for similar distribution of natural 8as. Although the Franchise expired in 1994, the City and the franchisee (now PSE) have continued to operate under its terms. Both Franchises authorize PRE, in broad terms, to construct, maintain, and alter ele~d'ic and natural gas distribution facilities and "appurtenances", per Parat~phs ID and 1, respectively. The FranchiSe area includes all streets within the City pursuant to Paragraphs lC and 9, respectively. Any limitations to these grants would properly be effected by amendments to the Franchises. The electric distribution Franchise granted by the City specifically preempts subsequently adopted regulations in the following language of Paragraph 3A: ·.. if any term or condition of this Franchise and any term or condition of such ordinances, resolutions, rules or regulations are in conflict, the term or condition of this Franchise shall govern and control. A similar provision of Paragraph 13C is even more forceful in preempting subsequent permit requirements (such as the Minor Conditional Use Permit of Chapter 15.31 SMC), as follows: · . . this Franchise . . . shall govern and supersede and shall not be changed, modified, deleted, added to, supplemented or otherwise amended by any permit, approval, license, agreement or other document required by or obtained from the City in conjunction with the exercise (or failure to cxeroise) by Puget of any and all rights, benefits, privileges, obligat_Jons or duties in and under this Franchise, unless such permit, approval, license, agreement or other document specifically: 1. References this Franchise; and, 2. States that it supersedes this Franchise... In the event of any conflict or inconsistency between the provisions of this Franchise and the provisions of any such permit, approval, license, agreement or other document, the provisions of this Franchise shall control. 600 'd £Z:£9 9ii~ £S~:'13,L S,l,93PO~ld tdOPVI8 [O:ZI (NOisl)66 ,Pi:-'AV~ Based upon the abov~-descttb~t provisions of the applicable Franchisea, Se regulatory nnd permit requirements of Chapter 15,31 SMC are of no force nnd effe~'t to modify the broad grant ofauthofity which permits PSE to construct and alter its distribution f~ilifies and appurtenan~s. 4, The Automated Meter Rending System Project is Categorically Exempt From the Review Process of the State Environmental Policy Act. SMC 13.30.020 has adopted, by reference, the State Environmental Policy Act C'SEPA") Rules of Chapter 197-11 of the Washington Adrnlnlstrafive Code (~WAC'). WAC 197-11-305 provides that n proposed action which fits within nny of the provisions o£Pntt Nine (i.e., WAC 197-11-800 through =~90) shall be %ntegori~lly the threshold determi~tion r~luirements of' the Rules, subject to certain ~ceptions which are not appli~ble hm~in, WAC 19%11-$00(3) categorically exempts minor alteration of utility facilities and equipment (unless undertaken wholly or in part on [ands covered by water). WAC 19%11-800(24) eattegoricnlly'exempts sp~ifi~ utility-related actions, Subsection (c) lists, as exempt, all electric facilities, lines, equipment and appurtenances. Subsection (d) exempts all natural gas distribution lines and necessary appurtenant facilities. Subsection (g) categodoally exempts nil grants of rights-of-way to utilities for distribution purposes, Based upon the ,foregoing, the proposed AMR system is categorically exempt from the threshold r~iew process of SEPA. Sincerely, , City Attorney RLM:rIs enclosures cc: Director, Department of Public Works OIO'd £~£9 9L~ £~:q~£ $£93PO~d HOP¥~ tO:El (NO~)66,~-'X¥~