HomeMy WebLinkAbout4304 ORDINANCE NO. 4304
AN ORDINANCE of the City Council of the
City of Kent, Washington, amending Title 6 of the
Kent City Code by adopting a new chapter 6.15
establishing franchise application requirements for
use of City right-of-way, except that this new
chapter does not apply to cable operators or special
purpose sewer, water or combined sewer/water
districts.
RECITALS
A. Utility and telecommunication service providers often utilize
city rights-of-way to deploy the facilities necessary to provide various
services to the general public.
B. The city has the authority pursuant to RCW 35A.47.040 to set
conditions under which to grant nonexclusive franchises for the use of public
rights-of-way for these purposes.
C. The city currently regulates the use of its rights-of-way for such
purposes by granting franchise and limited license agreements tailored to
the particular circumstances of the utility or service provider. However, the
city did not have a formalized or codified process for utility and
telecommunication service providers to request and obtain these
agreements. Franchises for cable operators are addressed in chapter 7.12
of the Kent City Code and accordingly this new chapter does not apply to
these operators.
D. As wireless communication technology has continued to
advance, requests from telecommunication service providers to utilize the
1 Adopt Chapter 6.15 KCC -
Re: Franchise for Use of Right-of-Way
city rights-of-way to install, construct and maintain facilities in new and
different ways have increased.
E. This new chapter will help to better manage these requests for
authorization to use city rights-of-ways, by establishing a formal, codified
process with clear requirements, while at the same time providing the
flexibility to modify application requirements as necessary.
F. This new chapter also differentiates between a franchise
agreement and a limited license agreement. A franchise agreement allows
the use of the rights-of-way within a franchise area, which may be defined
to include the entire city. In contrast, a limited license agreement is limited
to specific locations. The same application process will apply to both
agreements.
G. The detailed application requirements also require applicants
applying for a franchise or limited license to demonstrate at the outset what
services they intend to provide, how they will be provided and what exactly
their use of the rights-of-way will be.
H. Although RCW 35.21.860 prohibits the City from imposing a fee
for use of the rights-of-way upon providers for light and power, gas
distribution or telecommunication service providers, the city may charge a
fee to recover actual administrative expenses incurred by the city that are
directly related to receiving and approving a license or franchise. Processing
these requests and negotiating terms of these agreements requires the
devotion of considerable time and resources. This new application process
imposes an initial administrative review fee.
I. Recently, the Federal Communications Commission adopted a
Declaratory Ruling and Third Report and Order (FCC 18-133) that
establishes new compressed timeframes or "shot clocks" for the processing
of all applications relating to the deployment of "small wireless facilities,"
referred to in the Kent City Code as "small cell equipment." This Order goes
into effect on January 14, 2019.
J. This Order requires the City to complete review of an
application to collocate a small wireless facility using an existing structure,
2 Adopt Chapter 6.15 KCC -
Re: Franchise for Use of Right-of-Way
such as a Puget Sound Energy utility pole, in 60 days and an application to
deploy a small wireless facility on a new structure in 90 days. These shot
clocks include the franchise as well as any individual permits. The Order
declares that a failure to meet these deadlines will be considered a
presumptive violation of federal law, 47 U.S.C. § 332(c)(7)(B)(ii) and that
applicants are entitled to expedited review of such a violation in federal
co u rt.
K. The installation of small cell equipment raises public health and
safety concerns and also impacts public property. City staff will need to
carefully review specified information to ensure that these deployments do
not threaten public health, safety or damage public property. To do so in
these compressed timeframes, the City needs to immediately establish a
specific application process, track specific dates and specify the information
necessary to adequately review the application. Because these shot clocks
go into effect on January 14, 2019, City staff members need to be able to
process applications immediately under the new time frames and stop the
shot clocks when applications are incomplete. It is also important for
applicants to be aware of the application requirements and criteria for an
application to deploy facilities within the rights-of-way.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT,
WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS:
ORDINANCE,
SECTION 1. - New Chapter. Title 6 of the Kent City Code is amended
by adding a new chapter 6.15, entitled "Franchise Applications for Use of
Right-of-Way," to read as follows:
3 Adopt Chapter 6.15 KCC -
Re: Franchise for Use of Right-of-Way
CHAPTER 6.15
FRANCHISE APPLICATIONS FOR USE OF RIGHT OF WAY
Sec. 6.15.010. Purpose. This chapter establishes application
requirements for a franchise or limited license agreement for the use of the
public right-of-way, an initial review fee and requirements for determining
the completeness of applications for a franchise. This chapter does not apply
to the operation of cable systems and cable operators and their use of city
right-of-way. In addition, this chapter does not apply to the use of city right-
of-way by special purpose water, sewer or combination water-sewer
districts.
Sec. 6.15.020. Conflicting provisions. In the event of a conflict
between the provisions of this chapter, the terms of any issued franchise,
limited license agreement, or any federal law or federal regulation, it is
intended that the stricter standard shall apply unless the context clearly
evidences a contrary intent, or unless the city is preempted on the issue by
applicable law. Should any franchise, limited license agreement or other
applicable law be silent on the issue of conflict, this section shall control.
Sec. 6.15.030. Definitions. The following words, terms, and
phrases, when used in this chapter, shall have the meanings ascribed to
them in this section, except where the context clearly indicates a different
meaning:
A. Director means the city of Kent Economic and Community
Development Director, or his or her designee.
B. Franchise refers to the authorization granted by the city to a utility
or other service provider for the nonexclusive right to occupy city rights-of-
way to provide service within a designated franchise area. A franchise shall
be authorized by ordinance and must be accepted by the franchisee to
become effective. A franchise shall not include or be a substitute for:
4 Adopt Chapter 6.15 KCC -
Re: Franchise for Use of Right-of-Way
1. Any other permit or authorization required for the privilege of
transacting and carrying on business within the city, including without
limitation a business license; or
2. Any permit, agreement, or authorization required in
connection with operations on or in public streets or property, including
without limitation, a street cut permit, a street use permit, or other
construction permit or approval; or
3. Any permits or agreements for occupying any other property
in the city for which access is not specifically granted by the franchise,
including without limitation, permits and agreements for placing devices on
or in poles, conduits, other structures, or railroad easements, whether
owned by the city or any other public or private entity, or for providing any
service.
C. Franchise area means the geographical area of the city that a
franchisee is authorized to serve by the terms of its franchise or by operation
of law.
D. Limited License Agreement means the authorization granted by the
city to a utility or other service provider for the nonexclusive right to occupy
specified city rights-of-way. A limited license agreement shall not grant the
authority to use or occupy rights-of-way within the entire city. A limited
license agreement shall not include or be a substitute for:
1. Any other permit or authorization required for the privilege of
transacting and carrying on business within the city, including without
limitation a business license; or
2. Any permit, agreement, or authorization required in
connection with operations on or in public streets or property, including
without limitation, a street cut permit, a street use permit, or other
construction permit or approval; or
5 Adopt Chapter 6.55 KCC -
Re: Franchise for Use of Right-of-Way
3. Any permits or agreements for occupying any other property
in the city for which access is not specifically granted by the limited license
agreement, including without limitation, permits and agreements for placing
devices on or in poles, conduits, other structures, or railroad easements,
whether owned by the city or any other public or private entity, or for
providing any service.
E. Rights-of-Way (singular Right-of-Way) as used in this Franchise,
means the surface of, and the space above and below, any public street,
highway, freeway, bridge, land path, alley, court, boulevard, sidewalk, way,
lane, public way, drive, circle, pathway, space, or other public right-of-way,
and over which the City has authority to grant permits, licenses or
franchises for use thereof, or has regulatory authority thereover. Rights-
of-Way for the purpose of this chapter do not include railroad rights-of-way,
airports, harbor areas, buildings, parks, poles, conduits, open spaces,
nature trails, dedicated but un-opened right-of-way, undedicated streets
and/or right-of-way, environmentally sensitive areas and any land,
facilities, or property owned, maintained, or leased by the City in its
governmental or proprietary capacity or as an operator of a utility.
Sec. 6.15.040. Applications — Process. Any utility or service
provider who desires a franchise or limited license agreement pursuant to
this chapter, shall file an application with the City in accordance with this
chapter.
A. A franchise application shall be filed by any utility or other service
provider for the nonexclusive right to occupy city rights-of-way to provide
service within a designated franchise area.
B. A limited license agreement application shall be filed in accordance
with the provisions of this chapter for the authorization granted by the city
to a utility or other service provider for the nonexclusive right to occupy
specified city rights-of-way for the sole purpose of providing service to
persons or areas outside the City.
6 Adopt Chapter 6.15 KCC -
Re: Franchise for Use of Right-of-Way
Sec. 6.15.050. Applications — Contents. The Director is
authorized to establish an application form or forms appropriate for public
utilities and other qualified service providers to apply for a franchise or
limited license agreement. The form shall contain at a minimum:
A. Information identifying the applicant, its corporate or other
organizational structure, and the contact agent.
B. Property and facility information including, but not limited to:
1. The nature of the request -- as an application for a new
franchise, an application for renewal or amendment or an application for
the transfer of a franchise.
2. A description of the specific services that the applicant
expects to provide within the City including whether the services will be
provided to the general public, to commercial and/or residential customers
or to other utilities and service providers.
3. A description of the facilities to be located in the right-of-way
including, but not limited to, telecommunications service facilities, small
cell equipment, conduits, fiber, pipelines, and other facilities appropriate
to the specific utility or service providers' utilization of the right-of-way.
Small cell equipment designs shall be submitted with the application. The
Director may require designs of other facilities.
4. A statement that the necessary pole attachment or lease
agreements with the owners of other facilities located in the right-of-way
have been obtained.
5. Estimated beginning and end dates for construction.
6. A statement that any licenses, certificates or authorizations
required from the Federal Communications Commission, the Washington
Utilities and Transportation Commission and any other federal or state
7 Adopt Chapter 6.15 KCC -
Re: Franchise for Use of Right-of-Way
agency with jurisdiction over the proposed activities to be conducted in the
right-of-way have been obtained.
7. A description of the services provided and any and all state
and local taxes which may apply.
8. 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.
9. Upon request from the City, financial statements prepared in
accordance with generally accepted accounting principles demonstrating
the applicant's financial ability to construct, operate, maintain, relocate
and remove its telecommunications facilities. This provision shall not apply
when prohibited by the federal Telecommunications Act.
10. A detailed description of the applicant's previous experience
in providing the intended service which includes a list identifying, by place
and date, other franchises obtained by the applicant, its parent or
subsidiary.
11. Such other information as the Director determines would be
relevant in considering the application.
Sec. 6.15.060. Applicant representatives. Any person or entity
who submits an application under this chapter shall have a continuing
obligation to notify the city, in writing, of the names, addresses and
occupations of all persons who are authorized to represent or act on behalf
of the applicant in those matters pertaining to the application. The
requirement to make such disclosure shall continue until the city has
approved or disapproved an applicant's application or until an applicant
withdraws its application.
8 Adopt Chapter 6.15 KCC -
Re: Franchise for Use of Right-of-Way
Sec. 6.15.070. Administrative Application Review Fee. An
initial administrative application review fee of $500.00 shall be paid by the
applicant at the time the application is submitted to the City.
Sec. 6.15.080. Completeness.
A. Completeness of the application shall be determined in accordance
with this section KCC 6.15.080 and the requirements of KCC 6.15.050,
Applications - Contents.
B. The Director shall notify the applicant within 10 days of submission if
the application is materially incomplete; provided, however, that an
applicant may consent to a different completeness review period.
C. The notification that an application is incomplete shall be in writing,
specifically identifying the missing documents or information and shall refer
to the code section creating the obligation to submit the documentation.
D. A service provider may submit information required to complete the
application within 60 days of notice by the Director. Failure to provide such
information in a timely manner shall be deemed a withdrawal of that
application.
Sec. 6.15.090. Obligation to cure as a condition of renewal.
No franchise shall be renewed until any ongoing violations or defaults in the
franchisee's performance of the franchise agreement, or of the requirements
of this chapter, have been cured, or a plan detailing the corrective action to
be taken by the franchisee has been approved in writing by the city.
Sec. 6.15.100. 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 applicant is encouraged to host informational
meetings for the public regarding the deployment. These meetings are for
the public's information and are neither hearings nor part of any land use
appeal process.
9 Adopt Chapter 6.15 KCC -
Re: Franchise for Use of Right-of-Way
Sec. 6.15.110. Subject to authority. A grantee shall, at all times
during the term of a franchise or limited license agreement, be subject to all
lawful exercise of the police power by the city and to such lawful regulations
as the city shall hereafter enact. A grantee shall construct, operate and
maintain all equipment, facilities or other improvements in full compliance
with all other applicable rules and regulations now in effect or hereafter
adopted by the United States, the state of Washington, the city or any
agency of these governments with jurisdiction over these activities.
Sec. 6.15.130. Enforcement. The requirements of this chapter
shall be enforced by the Director in accordance with Sections 6.15.080
through 6.15.090. The penalty provisions set forth in KCC 1.01.140 shall
not apply. This shall not limit the city's ability to pursue other remedies at
law or in equity.
SECTION 2. - Severabilitv. If any one or more section, subsection,
or sentence of this ordinance is held to be unconstitutional or invalid, such
decision shall not affect the validity of the remaining portion of this ordinance
and the same shall remain in full force and effect.
SECTION 3. Corrections by City Clerk or Code Reviser. Upon
approval of the city attorney, the city clerk and the code reviser are
authorized to make necessary corrections to this ordinance, including the
correction of clerical errors; ordinance, section, or subsection numbering; or
references to other local, state, or federal laws, codes, rules, or regulations.
SECTION 4. - Effective Date. The city council hereby declares the
existence of a public emergency and in order to protect the public health,
safety, property, and peace, this ordinance shall be effective upon adoption
by a majority plus one of the whole membership of the council. The city
clerk is directed to publish a summary of this ordinance at the earliest
possible publication date.
10 Adopt Chapter 6.15 KCC -
Re: Franchise for Use of Right-of-Way
January 15, 2019
DANA RALPH, MAYORV Date Approved
ATTEST:
A �,J 0 (r, _ January 15, 2019
KIMBERLEY A. K MOTO, CITY CLERK Date Adopted
January 18, 2019
Date Published
APPROVED AS TO FORM:
KF HUR "PA FITZPATRICK, CITY ATTORNEY
11 Adopt Chapter 6,15 KCC -
P
Re: Franchise for Use of Right-of-Way
94
STATE OF WASHINGTON, COUNTY OF KING }
AFFIDAVIT OF PUBLICATION
PUBLIC NOTICE
Polly Shepherd, being first duly sworn on oath that she is the
Publisher of the
Kent Reporter
a weekly newspaper, which newspaper is a legal newspaper of general
circulation and is now and has been for more than six months prior to the date
of publication hereinafter referred to, published in the English language
continuously as a weekly newspaper in King County,Washington. The
Kent Reporter has been approved as a Legal Newspaper by order of
the Superior Court of the State of Washington for King County.
The notice in the exact form annexed was published in regular issues of
the Kent Reporter (and not in supplement form)which was regularly
distributed to its subscribers during the below stated period. The annexed
notice, a:
Public Notice
was published on January 18, 2019
The full amount of the fee charged for said foregoing publication is the
sum of$157.17 .
Polly Shepherd
Publisher, Kent Reporter
Subscribed and swom to me this 18' day of January,, 2019 .
lea ifer Tribbet,ioary Public for the State of Washington, Residing in
Orting, Washington
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CITY OF KENT
NOTICE OF ORDINANCES
PASSED BY THE CITY COUNCIL
The following are summaries of an ordinances passed by the Kent City Council on
January 15, 2019:
ORDINANCE NO. 4303 - AN ORDINANCE of the City Council of the City of Kent,
Washington, relating to land use and zoning, specifically the rezoning of a 1-acre
parcel located at 23901 108th Avenue SE, Kent, Washington from CC, Community
Commercial zoning, to MR-T16, Multifamily Residential Townhouse zoning. (Kent
Townhomes Rezone ZCA-2018-3, KIVA#RPP4-2183225).
This ordinance shall take effect and be in force 30 days from and after its passage.
ORDINANCE NO. 4304 — AN ORDINANCE of the City Council of the City of Kent,
Washington, amending Title 6 of the Kent City Code by adopting a new chapter 6.15
establishing franchise application requirements for use of City right-of-way, except
that this new chapter does not apply to cable operators or special purpose sewer,
water or combined sewer/water districts.
This ordinance shall become effective immediately upon adoption.
ORDINANCE NO. 4305 — AN ORDINANCE of the City Council of the City of Kent,
Washington, declaring an emergency and adopting an interim zoning ordinance
amending title 15 of the Kent City Code by adding definitions of "transit operations
and maintenance facilities" and "transportation and transit facilities including high
capacity transit facilities," by specifying that transit operations and maintenance
facilities are permitted in the CM-2 District, but not in the MCR District or the MTC-1
and MTC-2 Districts, setting a date for a public hearing, and providing that the
ordinance will take effect immediately upon adoption.
This ordinance shall become effective immediately upon adoption.
A copy of the complete text of any ordinance will be mailed upon request of the City
Clerk.
Kimberley A. Komoto, City Clerk
Kent Reporter Friday,January 18,2019 13
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