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ORD 18-851ORDINANCE NO. 18-851 AN ORDINANCE of the City of Federal Way, Washington, relating to small cell deployments, franchising, and small cell permits in the City's rights-of-way and federally required review periods; amending Chapter 4.22 FWRC and adding new Chapters 4.23 and 4.24 FWRC. (Amending Ordinance No. 17-833) WHEREAS, Title 4 of the Federal Way Revised Code addresses City of Federal Way ("City") property franchise procedures; and WHEREAS, the deployment of small cells in the public right-of-way is a matter of importance to the City as the steward of the public rights-of-way; and WHEREAS, the deployment of small cell facilities is necessary to provide the wireless services that the citizens of the City require in order to carry on their personal and private business; and WHEREAS, the Federal Communications Commission as well as federal law have established presumptively reasonable time limits known as "shot clocks" pursuant to regulations such as 47 U.S.C. § 1455(a) and 47 C.F.R. §1.40001; and WHEREAS, federal and state law set time limits on the processing of applications for aspects of small cell deployment including franchising, permitting, and eligible facilities requests; and WHEREAS, the City Council deems it to be in the public interest to amend both its franchising provisions to expedite the franchising and deployment of small cells in conjunction with revisions to its zoning code, and specifically Chapter 19.255 FWRC, which will now be codified in Chapter 19.256 FWRC. Ordinance No. 18-851 Page 1 of. 13 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, DO ORDAIN AS FOLLOWS: Section 1. FWRC 4.22.030 is hereby amended to read as follows: 4.22.030 Application — Contents. The director is authorized to establish an application form or forms appropriate for telecommunications entities, public utilities, and other qualified service providers to apply for a franchise. The form shall contain at a minimum: (1) Information identifying the applicant, its corporate or other organizational structure, and the agent or individual filling out the application. (2) Property and facility information, including, but not limited to: (a) The nature of the application as an application for a new franchise, an application for renewal or amendment, or an application for the transfer of a franchise. (b) A description of the specific services that the applicant expects to provide within the city including whether the services will be provided to the general public, to commercial and/or residential customers, or to other utilities and service providers. (c) A general description of the facilities to be located in the right-of-way including, but not limited to, wireline facilities, cable wireless, and telecommunications service facilities, conduits, pipelines, and other facilities appropriate to the specific utility or service provider's utilization of the right-of-way. (d) Where appropriate, information relating to pole attachment or lease agreements with the owners of other facilities located in the right-of-way. (e) Any licenses, certificates, or authorizations required from the Federal Communications Commission, the Washington Utilities and Transportation Commission, and any other federal or state agency with jurisdiction over the proposed activities to be conducted in the right-of-way. (f) Information relating to utility taxes including a description of the services provided and any and all state and local taxes which may apply. (g) The service area for which the franchise is requested, including a map of the area to be covered by the franchise and specific locations of the initial build out and, if known, proposed future build out locations including which proposed facilities will be underground, ground based, and/or aerial. The applicant may designate the entire city at its discretion or any portion thereof as the franchise area. Ordinance No. 18-851 Page 2 of 13 (h) Upon request from the city, financial statements prepared in accordance with generally accepted accounting principles demonstrating the applicant's financial ability to construct, operate, maintain, relocate, and remove its facilities. This provision shall not apply when prohibited by the Federal Telecommunications Act. (i) An illustrative list of cities or towns in which the applicant holds a franchise including up to the last five (5) Washington Cities or towns in which a franchise has been granted. (i) For franchises authorizing small cell deployment, whether and where small cell facilities are to be located on existing utility poles, including city -owned light standards included in the definition of utility pole, or will utilize replacement utility poles, new poles, towers, and/or other structures. To the extent known, conduit and/or ground -mounted equipment necessary for and intended for use in the deployment shall also be specified regardless of whether the additional facilities are to be constructed by the applicant or leased from an infrastructure provider. Detailed schematics and visual renderings of the facilities shall be provided by the applicant. Failure to provide sufficient detail may result in a later finding of a significant change in the facility if significant elements of the facility were not shown on the originally approved franchise exhibit. Failure to include significant elements may also result in the requirement that new or undocumented elements complete the approval processes detailed in Chapters 4.23 and 19.256 FWRC. (}k) Such other information as the director, in his/her discretion, shall deem appropriate. Section 2. FWRC 4.22.050 is hereby amended to read as follows: 4.22.050 Completeness — Review and notification. The Ddirector or his/her designee shall review thea franchise application upon submittal for completeness and. If the director finds that any applicant has failed to provide an application which reasonably fulfills the requirements of this -chapter and the application form, and/or is not accompanied by the fee deposit established by the director, the dircctor shall, within 20 business days of receipt of the application, notify the applicant within thirty (30) days of receipt of the application that -whether the application is incomplete; provided; however, that an applicant may consent to a different completeness review period. supplemented fee deposit as provided above. A service provider may resubmit an incomplete application within ninety (90) days of notice by the Director. Failure to resubmit an application in a timely manner shall be deemed a withdrawal of that application. No application shall be deemed complete without the fee deposit set by FWRC 4.22.040. Ordinance No. 18-851 Page 3of13 Section 3. Chapter 4.22 of the Federal Way Revised Code is hereby amended to add a new Section 4.22.055 to read as follows: 4.22.055 Public comment. The city shall provide notice of a complete application for a franchise on the City's website with a link to the franchise application. The notice shall include an email contact and telephone number for the applicant to answer citizen inquiries. The applicant is encouraged to host informational meetings for the public regarding the deployment. The city shall post meeting notices, if any, for informational meetings on its website. These meetings are for the public's information and are neither hearings nor part of any land use appeal process. Section 4. Title 4 of the Federal Way Revised Code is hereby amended to add a new Chapter 4.23 to read as follows: Chapter 4.23 SMALL CELL DEPLOYMENT: SMALL CELL PERMITS 4.23.010 Overview. (1) In order to manage its right-of-way in a thoughtful manner that balances the need to accommodate new and evolving technologies with the preservation of the natural and aesthetic environment of the City of Federal Way while complying with the requirements of state and federal law, the city has adopted this process for the deployment of small cell technology. Service providers who seek to utilize the public right-of-way for small cell deployment in order to provide personal wireless service, data transmission, or other related services to the citizens of the city must have a valid franchise under Chapter 4.22 FWRC to utilize the right-of-way and a Small Cell Permit to deploy that technology at each proposed location. Entities with franchises who wish to utilize a small cell deployment to upgrade or expand their existing services shall utilize the processes set forth in this chapter to obtain design approval of specific installations. An entity without a franchise shall apply for a franchise as well as a Small Cell Permit for its initial deployment, and the applications shall be processed concurrently as one Master Permit within the meaning of RCW 35.99.010(3) and 35.99.030. For entities with a valid franchise, see FWRC 4.23.020. (2) Nothing in this ordinance revises or diminishes the rights and obligations of an existing franchise. (3) The term "small cell deployment" shall include the deployment of small cell facilities and small cell networks as those terms are defined by RCW 80.36.375. Small cell deployment Ordinance No. 18-851 Page 4 of 13 elements that require SEPA review may utilize these processes only in conjunction with SEPA review. (4) See Chapters 4.22, 19.05, and 19.256 FWRC for the definition of terms not specified in this Chapter. 4.23.020 Application for small cell permits. For locations in the public right-of-way, the Director of Public Works ("Director") is charged with administration of small cell deployments and other personal wireless service review processes established under Chapters 4.23 and 19.256 FWRC. Unless previously provided with an application for a franchise, the following information shall be provided by all applicants seeking to utilize small cell deployment. (1) Specific locational information including GIS coordinates of all facilities, and (2) Specific design information and plans, addressing poles or other support structures, attachments, conduit, and any ground -mounted equipment, and (3) A narrative addressing how the proposed plans are consistent with the franchise exhibit(s), if applicable, or otherwise meet the design requirements of this Chapter. 4.23.025 Implementation; Small cell permits. The rights granted under the franchise are implemented through the issuance of Small Cell Permits. The franchise application, required under Chapter 4.22 FWRC, may be accompanied by one or more applications for a Small Cell Permit to deploy small cells. An initial franchise and any related Small Cell Permit applications shall be processed concurrently as one Master Permit. (1) Up to fifteen (15) sites may be specified in one Small Cell Permit application for processing. The Director may allow up to five (5) additional sites in one application in order to consider small cell sites within one logical service area together. (2) Issuance of a Small Cell Permit to install a small cell deployment shall be contingent upon approval of a franchise under Chapter 4.22 FWRC, or the possession of a valid franchise. (3) If more than one application for a Small Cell Permit is submitted by an applicant, they shall be considered in the order received. If multiple applications are submitted on the same date, the applicant shall indicate which application should be considered first. All Small Cell Permits that are submitted in conjunction with a franchise application shall be considered as one Master Permit. RCW 35.99.010(3). (4) An applicant with an existing franchise may, at the applicant's sole discretion, elect to utilize the expedited review process set forth in FWRC 4.23.100. Ordinance No. 18-851 Page 5 of 13 (5) Any element of a deployment that qualifies as either an Eligible Facilities Request or a collocation shall be specifically designated by the applicant and may be addressed separately by the Director in order to comply with the shot clocks established by federal law and Chapter 4.24 FWRC. (6) The Director may approve, deny, or conditionally approve all or any portion of the sites proposed in the Small Cell Permit application. (7) Any application for a Small Cell Permit that contains an element that is not exempt from SEPA review, shall simultaneously apply under Chapter 43.21C RCW and Title 14 FWRC. See also FWRC 19.256.130. (8) Radio Frequency Certification. The applicant shall submit a sworn affidavit signed by an RF Engineer with knowledge of the proposed project affirming that the small cell deployment will be compliant with all FCC and other governmental regulations in connection with human exposure to radio frequency emissions for every frequency at which the small cell facility and associated wireless backhaul will operate. If additional facilities necessary to the small cell deployment are to be provided by another franchisee, the Small Cell Permit to deploy such facilities shall be contingent on submittal of an RF Certification by the other franchisee for such facilities, if such facilities will emit RF emissions; this RF Certification shall address the cumulative impact of the RF emissions and certify compliance with federal requirements. The terms Radio Frequency or RF radiation are included in the terms Electromagnetic Frequency or EMF. (9) Regulatory Authorization. Issuance of the Use Permit for the facilities shall also be contingent upon the applicant's provision of proof of FCC and other regulatory approvals required to provide the service(s) or utilize the technologies sought to be installed. 4.23.030 Review process — Small cell permits. The following provisions relate to applications for a Small Cell Permit: (1) Federal Law. Review of the site locations proposed by the applicant shall be governed by the provisions of 47 U.S.C. § 253 and 47 U.S.C. § 332 and applicable case law. Applicants shall be treated in a competitively neutral and non-discriminatory manner with other service providers utilizing supporting infrastructure that is functionally equivalent, i.e., service providers whose facilities are similarly situated in terms of structure, placement or cumulative impacts. Small Cell Permit review under this chapter shall neither prohibit nor have the effect of prohibiting the ability of an applicant to provide telecommunications services. (2) Concealment. In any zone not designated by FWRC 19.256.110 for design review ("design review") and/or for facilities designated within a franchise, the City will permit small cell deployment on existing or replacement utility poles conforming to the City's generally applicable pole design standard adopted pursuant to Chapter 19.256 FWRC and/or consistent with the relevant franchise exhibit. Accordingly, small cell facilities installed pursuant to this Ordinance No. 18-851 Page 6 of 13 concealment authorization may be expanded pursuant to an Eligible Facilities Request only when such expansion does not defeat the facility's concealment elements. (3) Concealment Element Plan. Small cell deployment in Design Zones and Undergrounded Areas, as well as new poles, are subject to approval of a Concealment Element Plan. See FWRC 19.256.150. 4.23.040 Facilities designated in the franchise and/or small cell permit application. Small cell deployments may be approved by reference to exhibits in an approved franchise. Approval of the franchise with exhibits shall be deemed to approve the site and the design of small cell facilities set forth in the franchise. This approval is limited to the specific location, facility, and design elements shown on the exhibits to the franchise. Any element not shown on an exhibit must be approved by the governing review processes listed in this chapter and, when applicable, Chapter 19.256 FWRC. All facilities shall comply with the concealment standards adopted by the City in FWRC 4.23.030 and FWRC 19.256.150, if applicable. An existing franchisee may, at its option: (1) Apply to amend the existing franchise to designate sites for small cell deployment, as well as approve the small cell facilities to be installed and the concealment measures to be utilized; and/or (2) Apply for a Small Cell Permit, which shall include: (a) Small cell facilities to be installed on existing or replacement utility poles, utilizing the concealment option provided in FWRC 4.23.030(2), which are approved by the Director through Process I; and/or (b) Small cell facilities that comply with generally applicable objective design standards adopted by the City in Chapter 19.256 FWRC, which are approved by the Director through Process I; and/or (c) Small cell facilities for new utility poles or installations in a Design Zone or Undergrounded Areas, utilizing the design standards and concealment element plan set forth in Chapter 19.256 FWRC, which are approved by the Director through Process II. 4.23.050 Small cell permit and minor deviations. (1) Utilizing the procedures established for Process I review in Chapter 19.55 FWRC, the Director shall review applications for Small Cell Permits for consistency with relevant franchise exhibits and design standards. In this review, the Director may authorize minor deviations from the dimensional design and concealment technologies referenced in the exhibits to the franchise or design standards as follows. Ordinance No. 18-851 Page 7 of 13 (2) A deviation in height of the pole of up to ten (10) feet above the height of the existing pole, or the height established for the zoning district, by the franchise or from a design approved for a Design Zone, may be permitted. Additional height may only be allowed to the extent necessary to allow the required safety clearance from electrical wires. (3) Deviations in the dimensions or volume of small cell facilities that do not exceed the cumulative total provided by the definition of a small cell facility in RCW 80.36.375 may be considered a minor deviation when an applicant replaces components of an existing, approved small cell facility. Similarly, the addition of antennas on a pole, not to exceed a cumulative total of twelve (12) cubic feet shall be considered a minor deviation; provided, however, that in each instance the new or revised facilities do not defeat the concealment features set by the city's generally applicable pole design standard adopted pursuant to the franchise, Chapter 19.256 FWRC, and/or as a concealment element under FWRC 19.256.150. (4) Small Cell Permits to install facilities including approval of minor deviations shall be processed within thirty (30) days of receipt of a complete application and final approval of a franchise, whichever occurs last. Completeness shall be determined in the same manner as for a franchise application under FWRC 4.22.050. (5) The decision of the Director to approve a Small Cell Permit with a minor deviation, if any, shall be final and is not subject to appeal under city code or further legislative review. 4.23.060 Significant deviations. Any request for significant deviations from the approved small cell facilities design designated in the franchise, previously approved Small Cell Permit or city's design standards shall be considered under the provisions of Chapter 19.60 FWRC, Process II pursuant to the timelines established in Chapter 4.24 FWRC. An applicant seeking approval of a new pole or a replacement pole in a Design Zone or Undergrounded Areas designated by FWRC 19.256.110 shall be subject to the same Process II review and timeline. 4.23.070 Wireless communication facility and small cell deployment facility approvals and processes. Approval of a Small Cell Permit and/or other approval referenced in this chapter are conditioned on the following requirements: (1) Satisfy applicable bulk requirements such as noise and light regulations. (2) Comply with adopted design and concealment standards, applicable to replacement utility poles and new utility poles in a Design Zone or Undergrounded Areas. (3) Obtain the written approval of the owner of any utility pole for the installation of its facilities on such utility pole. Approval of a franchise under Chapter 4.22 FWRC does not authorize attachment to city -owned utility poles or other structures. Ordinance No. 18-851 Page 8 of 13 (4) Unless specifically provided for in a franchise, obtain a lease or other applicable authorization from the city to utilize the city's ground space for the installation of any new pole, a replacement utility pole over sixty (60) feet, or to locate any new ground based structure, base station, or other attendant equipment on city right-of-way or city property; (5) Comply with all city construction standards and state and federal codes when operating in the right-of-way and obtain a required permit to enter the right-of-way for construction. (6) A Small Cell Permit that includes a facility not exempt from SEPA review, shall be processed in accord with the provisions of Title 14 FWRC. (7) Small Cell facilities approved pursuant to this chapter shall be considered as an outright permitted use when located within the right-of-way. 4.23.080 Additional review procedures. Personal wireless service facilities/wireless communication facilities in Design or Shorelines Management Zones, Undergrounded Areas or Environmentally Critical Areas are subject to review as provided in Title 14 FWRC, Chapter 15.05 FWRC, and Chapters 19.256 and 19.145 FWRC. 4.23.090 Expedited review. An applicant may opt for expedited review. Absent such a request, the city will process applications on a first-come, first-served basis, taking into account its resources and the federal shot clocks incorporated by Chapter 4.24 FWRC. An applicant requesting expedited review may select a third -party consultant from a list established by the city through requests for qualifications or may propose an independent reviewing entity for review by the city. Such entity shall be engaged pursuant to a third -party contract. The applicant shall be responsible for paying all costs incurred in the expedited review process. Nothing herein shall be deemed to require an applicant to utilize expedited review. 4.23.100 Compliance with state processing limitations. Review of Small Cell Permits shall comply with the provisions of RCW 35.99.030. Applications shall be reviewed, completeness determined, and the timeframe tolled as provided in this Chapter and Chapters 4.22 and 4.24 FWRC. Section 5. Title 4 of the Federal Way Revised Code is hereby amended to add a new Chapter 4.24 to read as follows: Ordinance No. 18-851 Page 9 of 13 Chapter 4.24 ELIGIBLE FACILITIES REQUESTS: FEDERALLY REQUIRED REVIEW PERIODS 4.24.010 Purpose. Congress and the Federal Communications Commission ("FCC") have, pursuant to the authority granted by 47 U.S.C. § 253(c) and 47 U.S.C. § 332(a), required local governments to act on personal wireless service facility applications within a reasonable period of time and have established time limits or "shot clocks" for local review. The Washington State Legislature has also adopted similar limitations under the provisions of Chapter 35.99 RCW. Accordingly, the city adopts the following time limits for review of applications for Eligible Facility Requests, Small Cell Permits, and other approvals for service providers of telecommunication services whether reviewed pursuant to Title 4 or Chapter 19.256 FWRC. 4.24.020 Eligible facilities request — Application and review. (1) Application Review. (a) Application. The Community Development Director ("Director") shall prepare and make publicly available an application form that shall be limited to the information necessary for the City to consider whether an application is an Eligible Facilities Request. The application may not require the applicant to demonstrate a need or business case for the proposed modification. (b) Type of Review. Upon receipt of an application for an Eligible Facilities Request pursuant to this Chapter, the Director shall review such application to determine whether the application qualifies as an Eligible Facilities Request. (c) Timeframe for Review. Within sixty (60) days of the date on which an applicant submits an application seeking approval under this Chapter, the Director shall approve the application unless it determines that the application is not covered by this Section as an Eligible Facilities Request. (d) Tolling of the Time Frame for Review. The sixty (60) day review period begins to run when the application is filed, and may be tolled only by mutual agreement by the Director and the applicant or in cases where the Director determines that the application is incomplete. The timeframe for review of an Eligible Facilities Request is not tolled by a moratorium on the review of applications. (i) To toll the timeframe for incompleteness, the Director shall provide written notice to the applicant within thirty (30) days of receipt of the application, clearly and specifically delineating all missing documents or information required in the application. Ordinance No. 18-851 Page 10 of 13 (ii) The timeframe for review begins running again when the applicant makes supplemental submission in response to the Director's notice of incompleteness. (iii) Following a supplemental submission, the Director will notify the applicant within ten (10) days that the supplemental submission did not provide the information identified in the original notice delineating missing information. The timeframe is tolled in the case of second or subsequent notices pursuant to the procedures identified in this sub -section. Second or subsequent notice of incompleteness may not specify missing documents or information that was not delineated in the original notice of incompleteness. (2) Determination That Application Is Not an Eligible Facilities Request. If the Director determines that the applicant's request does not qualify as an Eligible Facilities Request, the Director shall deny the application. To the extent additional information is necessary, the Director may request such information from the applicant to evaluate the application under other provisions of this Chapter and applicable law. (3) Failure to Act. In the event the Director fails to approve or deny a request for an Eligible Facilities Request within the timeframe for review (accounting for any tolling), the request shall be deemed granted. The deemed grant does not become effective until the applicant notifies the Director in writing after the review period has expired (accounting for any tolling) that the application has been deemed granted. (4) Remedies. Both the applicant and the city may bring claims related to Section 6409(a) of the Spectrum Act to any court of competent jurisdiction. 4.24.030 Collocation. Collocations other than those within the definition of an Eligible Facilities Requests shall be processed within ninety (90) days of receipt of an application. The Director will notify the applicant within thirty (30) days of receipt of an application whether it is complete or if additional information is required. 4.24.040 New wireless communication facilities. Applications for new wireless communication facilities not subject to RCW 35.99.030 shall be processed within 150 days of receipt of an application. The Director will notify the applicant within 30 days of receipt of an application whether it is complete or if additional information is required. Section 6. Severability. Should any section, subsection, paragraph, sentence, clause, or phrase of this ordinance, or its application to any person or situation, be declared unconstitutional or invalid for any reason, such decision shall not affect the validity of the remaining portions of Ordinance No. 18-851 Page 11 of 13 this ordinance or its application to any other person or situation. The City Council of the City of Federal Way hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clauses, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. Section 7. Corrections. The City Clerk and the codifiers of this ordinance are authorized to make necessary corrections to this ordinance including, but not limited to, the correction of scrivener/clerical errors, references, ordinance numbering, section/subsection numbers and any references thereto. Section 8. Ratification. Any act consistent with the authority and prior to the effective date of this ordinance is hereby ratified and affirmed. Section 9. Effective Date. This ordinance shall take effect and be in force thirty (30) days from and after its passage and publication, as provided by law. PASSED by the City Council of the City of Federal Way this 5th day of June, 2018. Ordinance No. 18-851 Page 12 of 13 ATTEST: CITY OF FEDERAL WAY: ANIE COURTNEY Q C, CITY CLERK APPROVED AS TO FORM: J. RYAN CALL, CITY ATTORNEY FILED WITH THE CITY CLERK: PASSED BY THE CITY COUNCIL: PUBLISHED: EFFECTIVE DATE: ORDINANCE NO.: 05/09/2018 06/05/2018 06/08/2018 07/09/2018 18-851 Ordinance No. 18-851 Page 13 of 13