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ORD 19-863 ORDINANCE NO. 19-863 AN ORDINANCE of the City of Federal Way,Washington, relating to small wireless deployments, franchising, and small wireless permits in the City's rights-of-way and federally required review periods; amending Chapter 4.22 FWRC, Chapter 4.23 FWRC, and FWRC 4.24.040. (Amending Ordinance Nos. 18-851; 17-833) WHEREAS, Title 4 of the Federal Way Revised Code addresses the use of City of Federal Way("City")property and franchise procedures; and WHEREAS,the deployment of small wireless facilities in the public right-of-way is a matter of great importance to the City as the steward of the public rights-of-way; and WHEREAS,the deployment of small wireless 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 1.6003; and WHEREAS,federal and state law set time limits on the processing of applications for aspects of small wireless 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 franchising and permitting, and its zoning code, specifically Chapter 19.256 FWRC, to facilitate the deployment of small wireless facilities. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, DO ORDAIN AS FOLLOWS: Ordinance No. 19-863 Page 1 of 14 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. (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. Ordinance No. 19-863 Page 2 of 14 (i) An illustrative list of all cities or towns in which the applicant holds a franchise including up to the last five Washington cities or towns in which a franchise has been granted as well as all cities in which a franchise has been revoked. (j) For franchises authorizing small cellwireless deployment, specify whether and where small cellwireless 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 (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 for franchise applications. (1) Franchise applications—Rule of general applicability. The director or his/her designee shall review a franchise application for completeness and notify the applicant within 30 days of receipt of the application whether the application is complete; provided, however, that an applicant may consent to a different completeness review period. A service provider may resubmit an incomplete application within 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 • - - • - • - - , . 1' ! (2) Franchises for deployment. of small wireless facilities. The completeness of an application for ( ) � pp deployment of small wireless facilities and the calculation of all applicable time periods shall be determined in accord with the requirements of 47 C.F.R. § 1.6003(d). The director shall review an application for completeness and notify the applicant in writing within 10 days of submission whether the application is complete,provided that an applicant may consent to a different completeness review period. The notice shall identify the missing documents or information. (3)No application shall be deemed complete without the fee deposit set by FWRC 4.22.040. (4) The applicant shall be notified in writing of the approval or denial of the application. Section 3. FWRC 4.22.055 is hereby amended to read as follows: 4.22.055 Public comment. Ordinance No. 19-863 Page 3 of 14 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. deployment. The city shall pest meeting notices, if any, for informational meetings on its website. These meetings arc This notice is for the public's information and ore is neither a notice of hearings nor part of any land use appeal process. Section 4. Chapter 4.23 of the Federal Way Revised Code is hereby amended to read as follows: Chapter 4.23 SMALL CELLWIRELESS DEPLOYMENT: SMALL CELLWIRELESS PERMITS 4.23.010 Overview•, Application and review process. The city and applicant for a franchise and other permits associated with the deployment of small wireless facilities face challenges in coordinating applicable legislative and administrative processes under the Federal Communications Commission("FCC")regulations.A franchise for the use of the city's right-of-way is a contract that requires approval by the City Council.Permits to exercise those rights under a franchise and to install small wireless facilities on private property are considered in a parallel, consolidated administrative process. FCC regulations provide safe harbor time periods as well as completeness requirements that apply to all approvals relating to a small wireless facility deployment. Time limitations governing the process are triggered by the applicant's submittal of applications for the deployment. Accordingly, all parts of an application for a master permit to deploy small wireless facilities must be considered in order to determine completeness.Applicants are encouraged and expected to provide all related applications in one submittal. (1)Application Process.The director is authorized to establish franchise and other application forms to gather the information required by these ordinances from applicants and to determine the completeness of the application process as provided herein. (a)Franchise.The process typically begins with and depends upon approval of a franchise for the use of the public right-of-way to deploy small wireless facilities if any portion of the applicant's facilities are to be located in the right-of-way. The application for a franchise is designated as Part A of the application. An applicant with a valid franchise for the deployment of small wireless facilities in the City may proceed to apply for small wireless facilities permit and related approvals(Parts B and C of the permittingprocess respectively).An applicant at its option may utilize phased development. Because franchises are required by federal law to be competitively neutral,the City has established a franchise format for use by all right-of-way users. The format contains the basic requirements for the use of right-of-way. Consideration of the franchise application is a legislative act of the City Council. Consideration by the City Council shall run parallel with other necessary administrative approvals and approval or possession of a franchise is a requirement for any small wireless facility deployment seeking to use the public right-of- way. (b) Small Wireless Permits. Part B of the application process requires specification of all small Ordinance No. 19-863 Page 4 of 14 wireless facility components and their sites. Each component shall be described in detail as provided in these ordinances.Any request for deviation that is known to the applicant or which, through the exercise of reasonable diligence on the part of the applicant could be discovered, whether minor or significant, from adopted city standards, shall be set forth in the application. (c) Associated Permit(s). Part C of the application shall attach all associated permits such as applications or checklists reQuired under Title 15 FWRC, Title 14 FWRC, and Chapter 19.145 FWRC. Applicants for deployment of small wireless facilities in city design districts or underground areas shall provide appropriate concealment as provided in FWRC 19.256.050(6). (d)Construction in the Right-of-Way. Small wireless facilities installedpursuant to an approved � � PP master permit(both a franchise and a small wireless permit)or a small wireless permit approved separately for an existing franchisee may proceed to install the approved specific facilities. A small wireless permit functions as a right-of-way use permit issued pursuant to Chapter 4.25 FWRC and shall meet the requirements and expire as provided therein. (e) Later Discovered Deviations. Recognizing that each utility pole represents a unique environment for the installation of small wireless facilities, if a deviation, whether minor or significant, is required from the standards of the FWRC in order to install a small wireless facility on any structure, and such deviation was not approved as part of the master permit or small wireless permit process,an application shall be filed for the amendment of the initial small wireless permit. Administrative review of the request for deviation shall be processed as provided herein. Such an amended application shall be considered a new application and completeness, review and all applicable time periods for review shall commence anew. (f)Leases.A wireless service provider who wishes to attach to any utility pole or other structure or building owned by the City shall include an application for a lease(s) or component of its application. The Director is authorized to administer a lease review process, develop an application form and approve leases in the form approved for general use by the City Council for any utility pole or other structure in the right-of-way, including a new utility pole or structure. The installation shall conform to the standards adopted in FWRC 19.256.050 or with an approved minor deviation. Leases for the use of other public property, buildings, or facilities including any park land or facility shall be submitted to the City Council for approval. Any approval identified in the initial application process shall be considered by the City Council in conjunction with its consideration of the franchise.Applications submitted at later dates shall be considered by the director or the City Council as provided herein under a separate review process. (2)Completeness.Any and all parts of an application for the deployment of small wireless facilities including but not limited to franchise, small wireless permits, and all associated permits shall be submitted at one time in order that their completeness may be considered. An applicant seeking to phase deployment of a small wireless facilities system may identify the intended phasing in the franchise application process. Franchisees with a valid franchise to deploy small wireless facilities mayapply for a small wirelesspermit for the deployment of initial or additional phases of a small PP Y wireless facility deployment at any time subject to the commencement of a new completeness review Ordinance No. 19-863 Page 5 of 14 time period for permit processing. (3) Safe Harbors. The FCC in 47 C.F.R. 1.6003 has established presumptively reasonable time periods for review of facilities for the deployment of small wireless facilities. The City shall make every reasonable effort consistent with any conflicting provisions of state or federal law, and the preservation of the city's health,safety and aesthetic environment to comply with these time periods to the fullest extent possible. (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 providers who seek to utilize the public right of way for small cell deployment in order to provide personal wiFeless service, data transmission, er other related services to the citizens of 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 initial deployment, and the applications shall be processed concurrently as one master permit Faro r n 23 020 (2)Nothing in this chapter revises ores the rights and obligations of an existing franchise. review. - - 4 . . S. _ _ . . -" - _ -•• • •- chapter. 4.23.020 Application . Applications for a franchise for small wireless deployment shall generally conform to the requirements of this chapter. The Public Works Director or such other department director as the Mayor shall direct (hereinafter "director"), is charged with administration of small wireless deployments and other wireless communication review processes established under this Chapter. Service providers seeking to utilize the city's right-of-way for small wireless deployments shall specify the geographic boundaries for the small wireless deployment described in the application. The applicant may designate the entire city at its discretion or any portion thereof as the franchise boundary. Phased development is permitted, and an applicant is encouraged to specify at least the initial small wireless deployment in its application. Ordinance No. 19-863 Page 6 of 14 The following additional information shall beprovided by all applicants for franchises seeking to deploy small wireless facilities.Existing grantees who seek to utilize a small wireless deployment to expand or implement an existing franchise shall provide the information as a part of a small wireless permit application for small wireless deployment. (1) Designation of Facilities. The application shall provide specific locational information including GPS coordinates of all facilities to the extent known and specify whether and where small wireless 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 facilities sought to be approved by franchise or small cell permit 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 this Chapter and, as applicable, Chapter 19.256 FWRC. (2) RF Certification. The applicant shall submit a sworn affidavit signed by an RF Engineer with knowledge of the proposed project affirming that the small wireless 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 wireless facility will operate.If facilities necessary to the small cell deployment are to be provided by a third party, then the small wireless deployment in the initial franchise or in a subsequent small wireless permit shall be conditioned on an RF Certification by the third party and the requirement that the third party obtain a franchise. If such facilities will emit RF emissions,this additional RF Certification shall address the cumulative impact of the RF emissions and certify compliance with federal requirements. The applicant or grantee shall immediately remove any facilities that exceed FCC RF Emissions requirements. A modification of the facility by an Eligible Facilities Request requires a new RF certification. (3) Regulatory Authorization. Issuance of the Right-of-Way 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. administration of small cell deployments and ether personal wireless service review processes established under Chapters 4.23 and 19.256 FWRC. Unless previously provided with an application for a franchise, the fallowing information shall be provided by all applicants seeking to utilize small cell deployment. • . - - . • • eluding GIS coordinates of all facilities, and .. - - . . . . , .. - _ •- " - - • •-- - , Ordinance No. 19-863 Page 7 of 14 attachments, conduit, and any ground mounted equipment, and applicable, or otherwise meet the design requirements of this chapter. • The rights granted under the franchise arc irriplemcntcd through the issuance of small cell 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. director may allow up to five additional sites in enc 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 . .: - - . . - - - • 9 . .. •. . . • applicant shall indicate which application should be considered first. All small cell permits that permit. RCW 35.99.010(3). - - •- - . ' . .. (5) Any element of a deployment that qualifies-as either an eligible facilities request or a -- .• - - - - - - - • -- - . . . .. . . . - FWRC. 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 Ch - ' '. also FWRC 19.256.130. (8) Radio frequency certification. The applicant-shall submit a sworn affidavit signed by an RF compliant with all FCC and other governmental regulations in connection with human exposure to be provided by another franchisee, the small cell :----• . .-- . - . ' ' . facilities will emit RF emissions; this RF ccrtific. •:- -. •:: - -- • • • •- .• - -- Ordinance No. 19-863 Page 8 of 14 d certify compliance with federal requirements: The terms "radio frequency" or "RF radiation"arc included in the terms "cicc • . . - •" : "- ' -." (9) Regulatory authorization. Issuance of the use pert 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 . (1)The director may approve,deny,or conditionally approve all or any number of the sites proposed in the small wireless permit application. (2)Eligible Facilities Requests. The design approved in a small wireless permit shall be considered concealment elements and such facilities may only be expanded upon an Eligible Facilities Request when the modification does not defeat the concealment elements of the small wireless facility. (3)Review of Facilities. Review of the site locations proposed by the applicant shall be governed by the provisions of 47 U.S.C. $$ 253 and 332 and applicable regulations and case law.Applicants for franchises and the small wireless permits shall be treated in a competitively neutral and non- discriminatory manner and other serviceroviders, utilizingsupporting infrastructure that is p pp functionally equivalent, i.e., service providers whose facilities are similarly situated in terms of structure,placement, or cumulative impacts. Small wireless permit review under this chapter shall neither prohibit nor have the effect of prohibiting the ability of an applicant to provide telecommunications services. (4) Public Comment. The city shall provide notice of a complete application for a small wireless permit on the city's website with a link to the application. The notice shall include an email contact and telephone number for the applicant to answer citizen inquiries. Notice is for the public's information and is not a part of a hearing or part of land use appeal process. (5)Additional definitions.Additional definitions applicable to small wireless facilities maybe found in Chapter 19.256 FWRC. The following provisions relate to applications for a small cell permit: A - • - • , treated in a competitively neutral and nondiscriminatory manner with other service providers ability of an applicant to provide telecommunications services. (2) Concealment. In any zone not designated by FWRC 19.25-6.11-0 for design review ("design review") and/or for facilities designated within a franchise, the city will permit small cell - • - . -- . - -- Ordinance No. 19-863 Page 9 of 14 authorization may be expanded pursuant te an eligible facilities request only when such expansion docs not def at the facility's concealment elements. as well as new poles, are subject to approval of a c:- -. --- • - ----- - • -- - ' 19.256.150. 4.23.040 Modification to small wireless Ffacilities . • • • • • • : • • •• (1)If an applicant desires to modify small wireless facilities,including but not limited to expanding or changing the antenna type,increasing the equipment enclosure,placing additional pole-mounted or ground-mounted equipment, or modifying the concealment elements, then the applicant shall apply 1 for a new small wireless permit. (2) A small wireless permit shall not be required for routine maintenance and repair of a small wireless facility within the rights-of-way, or the replacement of an antenna or equipment of similar size, weight, and height,provided that such replacement does not defeat the concealment elements used in the original deployment of the small wireless facility and does not impact the structural integrity of the pole. Further a small wireless permit shall not be required for replacing equipment within the equipment enclosure or reconfiguration of fiber or power to the small wireless facilities. Right-of-way permits may be required for such routine maintenance, repair, or replacement. Small cell deployments may be approved by reference to-exhibits-in an appreved franchise. facility, and design elements shown en the exhibits te the franchise. Any element not shown on an exhibit must be apprevcd by the governing review processes listed in this chapter and, when applicable, Chapter 19.256 FWRC. All facilities shall comply with the concealment standards franchisee may, at its option: and/or (2) Apply for a small cell permit, which shall include: (b) Small cell facilities-that comply with generally applicable objective design standards • Process I; and/or (c) Small cell facilities for new utility or installations in a design zone or Ordinance No. 19-863 Page 10 of 14 Chapter 19.256 FWRC, which arc appreved by the director through Process II. 4.23.050 Small cellwireless 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 cellwireless 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. (2) Deviations in the dimensions, height, or volume of Small Wireless Facilities that are necessary to conform the facilities to the requirements of the pole owner, provide adequate safety clearances or address similar technical issues may be approved as minor deviations provided that the deviations do not cause the facility as revised to exceed the definition of a small wireless facility. Replacement of components of an existing, approved small wireless facility that do not exceed the volumetric limitations for a small wireless facility may also be approved as minor deviations. Provided,however, that in each instance the new or revised facilities do not defeat the concealment features set by the City's generally applicable small wireless aesthetic, design, and concealment standards or a specific concealment requirements pursuant to Chapter 19.256 FWRC. • . '. - -- . -- .. - . up to 1-0 feet aheve the height of the existing pole, or the height established for the zoning district,by the franchise er from a design approved for a design the required safety clearance from electrical wires. - --- - . . - - considered a minor deviation when an applicant replaces ce ponents of an existing, approved small cell facility. Similarly, the addition of antennas on a pole, not to exceed a cumulative total the new or revised facilities do not def at the concealment features set by the city's generally processed within 30 days of receipt of a complete application and final approval of a franchise, (35) The decision of the director to approve a small cellwireless permit with a minor deviation, if any, shall be final and is not subject to appeal under city code or further legislative review. ! : ! . Any request for significant deviations frem the approved small cell facilities design designated in - . - . . -- •-- -- Ordinance No. 19-863 Page 11 of 14 be subject to the same Process II review and timeline. . . • • . . . . . . • . profess-es. Approval of a small cell permit and/or other approval referenced in this chapter arc 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 zenc er 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 ether structures. (1) 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 60 feet, or to locate any new ground based structure, base station, or other attendant equipment on city right of way er city property. 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 net exempt from SEPA review shall be processed • - - • - . ' • - (7) Small cell facilities approved pursuant to this chapter all be considered as an outright permitted use when located within the right of way. 4.23.0860 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 FWRC Title 14, Chapter 15.05 FWRC, and Chapters 19.256 and 19.145 FWRC. 4.23.090 Expedited , • - - - -- .- . • - - - - -- . - . -. • - • ' - • ' • - . •• • . - . - - • - . - , qualifications or may propose an independent reviewing entity for review by the city. Such entity all costs incurred in the expedited review process. Nothing herein shall be deemed to require an applicant to utilize expedited review. Ordinance No. 19-863 Page 12 of 14 .. • - . - ---• . . . • - -- . . • ' • .••.1 and Chapters '1.22 and 4.24 FWRC. Section 5. FWRC 4.24.040 is hereby amended to read as follows: 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..-; provided, however, that the city shall endeavor to process applications for small wireless facilities within the presumptive safe harbors created under 47 C.F.R. § 1.6003. 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 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 five(5)days from and after its passage and publication, as provided by law. PASSED by the City Council of the City of Federal Way this 2nd day of January, 2019. Ordinance No. 19-863 Page 13 of 14 CITY OF FEDERAL WAY: /FE' 'ELL, MAYOR ATTEST: 61044W I P ANIE COURTNEY, C, CITY CLERK APPROVED AS TO FORM: 01Q J. RYAN CALL, CITY ATTORNEY FILED WITH THE CITY CLERK: 12/28/2018 PASSED BY THE CITY COUNCIL: 01/02/2019 PUBLISHED: 01/04/2019 EFFECTIVE DATE: 01/09/2019 ORDINANCE NO.: 19-863 Ordinance No. 19-863 Page 14 of 14