Chapter 13.25
SMALL WIRELESS FACILITIES IN THE RIGHTS-OF-WAY
Sections:
13.25.040 Franchise application.
13.25.050 Determination by the town.
13.25.080 Franchise conditions.
13.25.110 Rules and regulations by the town.
13.25.120 Implementation – Small wireless facility use permits.
13.25.130 Small wireless facility use permit review process.
13.25.140 Construction standards.
13.25.150 Construction in right-of-way.
13.25.160 Safety requirements.
13.25.180 Removal and abandonment of property of grantee.
13.25.010 Purpose.
The purpose of this chapter is to set forth the regulations for the overall franchise approval, placement, design, development, permitting and removal of small wireless facilities in the town rights-of-way, including the following:
(1) Permit and manage reasonable access to the rights-of-way of the town for communication purposes on a nondiscriminatory basis.
(2) Establish clear guidelines and standards for the exercise of local authority with respect to the regulation of right-of-way use.
(3) Conserve the limited physical capacity of the public rights-of way held in public trust by the town.
(4) Ensure that all service providers maintaining wireless facilities or providing services within the town comply with the ordinances, rules, and regulations of the town.
(5) Ensure that the town can continue to fairly and responsibly protect the public health, safety, welfare, aesthetic beauty, and neighborhood character.
(6) Enable the town to discharge its public trust consistent with rapidly evolving federal and state regulatory policies, industry competition, and technological development. [Ord. 450 § 1, 2021]
13.25.020 Definitions.
(1) “Antenna” means any exterior apparatus designed for telephonic, radio, data, internet or other communications through the sending and/or receiving of radio frequency signals including, but not limited to, equipment attached to a tower, utility pole, building or other structure for the purpose of providing wireless service.
(2) “Applicant” means any person or corporation submitting an application for a franchise or a small wireless facility use permit.
(3) “Franchise” or “franchise agreement” for small wireless facility is a contract by which a grantee is allowed to use town right-of-way for the purpose of carrying on the business in which it is generally engaged, including furnishing service to members of the public.
(4) “Grantee” means the person, firm or corporation to whom or which a franchise, as defined in this section, is granted by the town council under this chapter and the lawful successor, transferee or assignee of such person, firm, or corporation.
(5) “Grantor” means the town of Beaux Arts Village, acting through its town council.
(6) “Person” includes corporations, companies, associations, joint stock companies, firms, partnerships, limited liability companies, other entities, and individuals.
(7) “Town right(s)-of-way” or “right(s)-of-way” means land acquired or dedicated for public roads and streets but does not include:
(a) Land dedicated for roads and streets not opened and not improved for motor vehicle use by the public; and/or
(b) Structures, including poles and conduits, located within the right-of-way.
(8) “Small wireless” and “small wireless facility” has the same meaning as defined in 47 CFR 1.6002.
(9) “Structure” means a pole, tower, base station, or other building, whether or not it has an existing antenna facility, that is used or to be used for the provision of personal wireless service (whether on its own or comingled with other types of services).
(10) “Telecommunications facilities” means the plant, equipment and property including, but not limited to, cables, wires, conduits, ducts, pedestals, electronics, and other appurtenances used or to be used to transmit, receive, distribute, provide or offer wireless telecommunications service.
(11) “Town” means the town of Beaux Arts Village.
(12) “Town property” means any real property owned by the town.
(13) “Town representative” means the person authorized to act on behalf of the town for purposes of permitting wireless facilities, as designated by the mayor and/or council of the town of Beaux Arts Village.
(14) “Utility pole” means a structure designed and used primarily for the support of electrical wires, telephone wires, television cable, or lighting for streets, parking areas, or pedestrian paths. [Ord. 450 § 1, 2021]
13.25.030 Franchise required.
A franchise shall be required of any small wireless telecommunications provider who desires to make use of rights-of-way within the town. The franchise is a “master permit” within the meaning of RCW 35.99.010(3). Any franchise granted pursuant to this chapter shall be nonexclusive and shall not preclude the town from granting other or future franchises or permits or preclude the town from using any public rights-of-way, streets, or other public properties for any lawful purpose, or affect its jurisdiction over them or any part of them, or limit the full power of the town to make such changes as the town shall deem necessary, including the dedication, establishment, maintenance, and improvement of all new public rights-of-way and other public properties. An entity without a franchise will apply for a franchise as well as a small wireless facility permit for its initial deployment, and the applications will be processed concurrently. [Ord. 450 § 1, 2021]
13.25.040 Franchise application.
An applicant for an initial franchise to construct, operate, and maintain small wireless telecommunications facilities within town rights-of-way shall file an application in a form prescribed by the town, accompanied by a nonrefundable filing fee as deemed appropriate established by the town council by resolution. [Ord. 450 § 1, 2021]
13.25.050 Determination by the town.
Within the time periods established by state and/or federal law, after receiving a complete franchise application for small wireless, the town council shall grant or deny a franchise application. If the town council denies a franchise, such denial must be supported by substantial evidence contained in a written record. [Ord. 450 § 1, 2021]
13.25.060 Rights.
No franchise granted shall convey any right, title, or interest in the rights-of-way, but shall be deemed a franchise only to use and occupy the rights-of-way for the limited purposes and term stated in the agreement. No franchise granted shall authorize or excuse a grantee from securing such further easements, leases, permits or other approvals as may be required to lawfully occupy and use the rights-of-way. Grantee shall obtain the written approval of the facility or structure owner, including the town, if the grantee does not own it, prior to attaching to or otherwise using a facility. [Ord. 450 § 1, 2021]
13.25.070 Term of grant.
The duration of a franchise granted pursuant to this chapter shall be for a period of time appropriate to the circumstances of the particular grant. [Ord. 450 § 1, 2021]
13.25.080 Franchise conditions.
All grantees, before commencing any construction in the rights-of-way, shall comply with the following requirements:
(1) Map of Wireless Facilities. Each grantee shall provide the town with an accurate as-built map or maps certifying the location of all telecommunications facilities within the town and particularly within rights-of-way. Each grantee shall provide updated as-built maps annually. Additionally, each grantee shall provide a 24-hour emergency contact.
(2) Insurance and Indemnity. As consideration for the issuance of a franchise, the franchise shall include an insurance provision as acceptable to the town’s insurer. The franchise shall further include an indemnity clause in a form and content acceptable to the town attorney.
(3) Performance and Construction Surety. Before a franchise granted pursuant to this chapter is effective, and as necessary thereafter, the grantee shall provide and deposit such monies, bonds, letters of credit or other instruments in form and substance acceptable to the town as may be required by the town of Beaux Arts Village. Further, each grantee shall establish a permanent security fund with the town by depositing the amount of $50,000, or such other amount as deemed necessary by the town representative, with the town in cash, bond, or an unconditional letter of credit, based upon both operating history in rights-of-way and the cost of removal of the grantee’s facilities, other ways and town property which fund shall be maintained at the sole expense of the grantee so long as any of the grantee’s telecommunications facilities are located within the rights-of-way. The fund shall serve as security for the full and complete performance of this chapter and the franchise, including any costs, expenses, damages, or loss the town pays or incurs, including civil penalties, because of any failure attributable to the grantee to comply with the codes, ordinances, rules, regulations, or permits of the town applicable to the construction, maintenance, repair, or removal of telecommunications facilities in the rights-of-way or upon town property.
(4) Performance and Warranty Bond. A grantee performing work in the rights-of-way must provide a performance bond written by a corporate surety acceptable to the town equal to at least 125 percent of the estimated cost of completing or removing the facilities and restoring the rights-of-way or town property to its pre-construction condition. This bond may be placed for the entirety of the grantee’s projects provided that grantee is able to quantify the full estimated cost of its deployment of telecommunications facilities. If a grantee provides a bond on a per project basis, such grantee is permitted to increase the bond for future projects, or if a project is complete, grantee may apply the bond to other projects in the rights-of-way. The purpose of this bond is to guarantee completion or removal of partially completed or nonconforming telecommunications facilities, and to fully restore the rights-of-way and town property to their pre-construction condition. If required by the town, a grantee shall furnish a two-year warranty bond, or other surety acceptable to the town, upon the completion of grantee’s construction work, including any restoration work, within the rights-of-way. The warranty bond amount will be equal to 125 percent of the documented final cost of the construction and restoration work. [Ord. 450 § 1, 2021]
13.25.090 Acceptance.
Within 60 days after the effective date of the ordinance granting a franchise, or within such extended period of time as the town council in its discretion may authorize, a grantee shall file with the town clerk its written acceptance of the franchise and all of its terms and conditions, in a form satisfactory to the town attorney, together with any bond(s) required by this chapter and/or the franchise, evidence of insurance required by this chapter and/or the franchise, and any other security required by this chapter of a franchise. If a grantee fails to file a timely acceptance, the franchise shall be null and void. [Ord. 450 § 1, 2021]
13.25.100 Police powers.
By accepting a franchise, a grantee acknowledges that its rights thereunder are subject to the legitimate exercise of the police power of the town to adopt and enforce general ordinances necessary to protect the safety and welfare of the public and it agrees to comply with all applicable general laws enacted by the town pursuant to such power. The town council expressly reserves unto itself all its police powers to adopt ordinances necessary to protect the health, safety and welfare of the general public in relation to the rights granted under this chapter. The town reserves the right to use, occupy, and enjoy any public rights-of-way or other public places for any lawful purpose, including, without limitation, the construction of any water, sewer, or storm drainage system, installation of traffic signals, street lights, trees, landscaping, bicycle paths and lanes, equestrian trails, sidewalks, pedestrian amenities, town services, and other public street improvement projects. [Ord. 450 § 1, 2021]
13.25.110 Rules and regulations by the town.
In addition to the inherent powers of the town to regulate and control any franchise it issues, the authority granted to it by law, and those powers expressly reserved by the town, or agreed to and provided for in a franchise, the right and power is hereby reserved by the town to promulgate such additional regulations of general applicability as it may find necessary in the exercise of its lawful police powers. The town council reserves the right to delegate its authority for franchise administration to a designated agent. [Ord. 450 § 1, 2021]
13.25.120 Implementation – Small wireless facility use permits.
The rights granted under a franchise are implemented through the issuance of small wireless facility use permits. A franchise application may be accompanied by one or more applications for a small wireless facility use permit to deploy small wireless facilities. An initial franchise and any related small wireless facility use permit applications will be processed concurrently. A small wireless facility use permit shall bind an applicant to all of the provisions contained in Chapter 12.05 BAVMC.
(1) Issuance of a small wireless facility use permit to install small wireless facilities will be contingent upon approval of a franchise under this chapter, or the possession of a valid franchise.
(2) Any element of a deployment that qualifies as an eligible facilities request under 47 CFR 1.6100 will be specifically designated by the applicant and may be addressed separately by the town representative in order to comply with the shot clocks established by federal law.
(3) The town representative may approve, deny, or conditionally approve all or any portion of the sites proposed in a small wireless facility use permit application. Any denial of an application under this chapter must be made in writing and be supported by substantial evidence.
(4) Any application for a small wireless facility use permit that contains an element that is not exempt from SEPA review will simultaneously submit a SEPA environmental checklist.
(5) The town recognizes that the Federal Telecommunications Act of 1996 gives the Federal Communications Commission sole jurisdiction in the field of regulation of electromagnetic radio frequency emissions and small wireless facilities that meet Federal Communications Commission standards will not be conditioned or denied on the basis of radio frequency or electromagnetic frequency impacts. Applicants for small wireless facility use permits will be required to provide the town information on compliance with the Federal Communications Commission requirements.
(6) All small wireless facilities will be constructed or installed according to applicable Federal Communications Commission (FCC), Federal Aviation Administration (FAA), state and town regulations and standards, including town design/aesthetic standards contained in Chapter 18.20 BAVMC. [Ord. 450 § 1, 2021]
13.25.130 Small wireless facility use permit review process.
(1) Review of the site locations proposed by the applicant will be governed by the provisions of 47 U.S.C. 253 and 332 and applicable regulations and case law. Applicants for small wireless facility use permits shall not be subject to unreasonable discrimination compared to other service providers whose facilities are similarly situated in terms of structure, placement, or cumulative impacts. Small wireless facility use permit review under this chapter will neither prohibit nor have the effect of prohibiting the ability of an applicant to provide telecommunications services.
(2) The town representative will review applications for small wireless facility use permits for consistency with relevant franchise exhibits and design standards.
(3) Small wireless facility use permits to install facilities will be processed within the time frames set by applicable federal regulations.
(4) The decision of the town representative to approve a small wireless facility use permit shall be final.
(5) The town reserves the right to authorize a third-party technical review for the purposes of engineering and other technical and/or health and safety examinations, including, but not limited to, evaluating whether the right-of-way has sufficient capacity to accommodate the proposed small wireless facility. The expense of such review shall be borne by the applicant. Notwithstanding the above, nothing in this section shall authorize the town to engage an expert for purposes of making a determination as to whether the site chosen by the applicant is necessary with respect to network design or require an applicant to establish that a proposed site is necessary to close a significant gap in coverage. [Ord. 450 § 1, 2021]
13.25.140 Construction standards.
(1) All small wireless facilities constructed under this chapter shall be placed and maintained at such places and positions as shall not interfere with the passage of traffic and the use of adjoining property, and shall conform to the applicable section of the National Electrical Code, codes of the state of Washington, and town rules, regulations, ordinances, codes, standards and policies pertaining to such construction.
(2) At least seven days prior to any intended construction, a grantee shall inform all residents in the affected area that a construction project will commence, the dates and nature of the project, and provide a toll-free telephone number which a resident, property owner, or subscriber may call for further information. A preprinted door hanger may be used for this purpose.
(3) The town reserves the right, as the interest of the public may require, to ensure that (a) the public rights-of-way have the capacity to accommodate the proposed facilities, and (b) the proposed construction is consistent with the town’s present and future use of the public rights-of-way.
(4) At least 24 hours prior to entering private property or easements adjacent to or on such private property to perform new construction or reconstruction, a notice indicating the nature and location of the work to be performed shall be physically posted upon the affected property. A grantee shall make a good faith effort to comply with the property owner/resident’s preferences, if any, on location or placement of underground installations (excluding aerial cable lines utilizing existing poles and existing cable paths), consistent with sound engineering practices.
(5) After performance of work, a grantee shall restore private property as nearly as possible to its condition prior to construction or installation. Any disturbance of landscaping, fencing, or other improvements on private property shall, at the sole expense of a grantee, be promptly repaired and restored within seven days of completion or as otherwise agreed by the grantee and the private property owner.
(6) A grantee shall, at all times, keep full and complete plans, plat or plats, specifications, profiles, and records showing the location, height, and size of all the facilities constructed in the town. These records shall be subject to inspection by the proper officials and agents of the town, and a copy of these plans, plat or plats, specifications, profiles, and records shall be furnished to the town within 10 days of request in a manner and format specified by the town. [Ord. 450 § 1, 2021]
13.25.150 Construction in right-of-way.
(1) No work, other than emergency repairs or standard installations, shall commence without a small wireless facilities use permit. Emergency repairs may be made immediately with notification given to the town no later than the next business day. Prior to work in the right-of-way, the town engineer shall photograph and document the condition of the right-of-way at the site of such work.
(2) In accordance with the permit issued, all facilities, equipment, and/or structures shall be located and installed so as to cause minimum interference with the rights and convenience of property owners, and at all times shall be maintained in a safe condition, and in good order and repair. Suitable barricades, flags, lights, flares, or other devices shall be used at such times and places as are reasonably required for the safety of the public. Any poles or other fixtures placed in any street by a grantee shall be placed in such manner as not to interfere with the usual travel on such public way.
(3) When installing, locating, laying, or maintaining system facilities, a grantee shall not interfere with the use of any street to any greater extent than is necessary, and shall leave the surface of any such street in as good condition as it was prior to performance by grantee of such work. Provided, however, that the town engineer may, in his or her discretion, require a lower standard of restoration when he or she is aware of future construction projects that would obviate the immediate need for full restoration of the street surface. In either case, the town engineer shall have final authority to determine whether the surface(s) of such streets have been adequately restored. Any facility, apparatus, or improvement under this chapter shall be laid, installed, located, or maintained in conformance with town rules, regulations, ordinances, standards and policies. Except as provided herein, a grantee shall, at its own expense, and to the satisfaction of the town in accordance with the terms of the right-of-way permit, restore to town standards and specifications any damage or disturbance caused to streets as a result of grantee’s construction or operations.
(4) A grantee shall, at its own expense, protect, support, temporarily disconnect, relocate, or remove any of its facilities or property within the public rights-of-way when, in the judgment of the town, the same is required by reason of traffic conditions, public safety, improvements by governmental agencies, and/or any other town use of the franchise area. The town shall give at least 60 days’ advance written notice prior to requiring the same. Nothing herein shall be deemed a taking of the property of a grantee, and grantee shall be entitled to no surcharge by reason of this section.
(5) If the grantee fails to commence, pursue, or complete any work required by the provisions of this chapter or fails to comply with any applicable federal, state or town laws, ordinances, rules, regulations or standards to be performed on any street, the town may, at its option, cause such work to be done, and a grantee shall pay to the town the actual cost thereof, including overhead and administrative expense, within 30 days after receipt of demand. Provided, however, that the town shall give a grantee at least 10 days’ prior written notice before causing such work to be done.
(6) Within 30 days after construction of the small wireless facility, the grantee shall provide the town with site photographs and as-builts of the small wireless facilities demonstrating compliance with the permit in a manner and format specified by the town.
(7) A grantee shall comply with all requirements under Chapter 12.05 BAVMC. [Ord. 450 § 1, 2021]
13.25.160 Safety requirements.
(1) A grantee, in accordance with applicable federal, state, and local safety requirements, shall, at all times, perform work in a safe manner and shall install and maintain and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injury, or nuisance to the public. All structures and all lines, equipment and connections in, on, over, under, across and upon public rights-of-way or places of a franchise area, wherever situated or located, shall at all times be kept and maintained in a safe, suitable condition, and in good order and repair.
(2) The town reserves the right to see that the facilities of a grantee are constructed and maintained in a safe condition. [Ord. 450 § 1, 2021]
13.25.170 Tree trimming.
A grantee may, at its sole expense, trim trees upon and overhanging streets and public rights-of-way within the franchise area so as to prevent the branches of such trees from coming in contact with the facilities of a grantee; however, tree topping is prohibited. A grantee shall be responsible for debris removal from such activities. A grantee shall secure advance approval from the town prior to commencing such activities, and all such activities shall be done in accordance with all town ordinances, policies, and standards. Unless otherwise provided in the town’s approval, all tree trimming shall be under the direction of an arborist certified by the International Society of Arboriculture, as approved by the town. Provided, however, that the requirements of this section shall not apply to the removal or trimming of specific trees during a bona fide emergency when said trees threaten to damage, or have damaged, a grantee’s system. [Ord. 450 § 1, 2021]
13.25.180 Removal and abandonment of property of grantee.
(1) The town may direct a grantee to temporarily disconnect any equipment in order to complete street construction or modification or install and remove underground utilities. Such removal, relocation, or other requirement shall be at the sole expense of a grantee.
(2) In the event that the use of any part of the system is discontinued for any reason for a continuous period of six months, or in the event such system or property has been installed in any street or public place without complying with the requirements of the franchise or other town ordinances or the franchise has been terminated, canceled or has expired, a grantee shall promptly, upon being given 10 days’ written notice, remove, at its expense, within 90 days from the streets or public places all such property and poles of such system other than any which the town may permit to be abandoned in place. Following such removal, a grantee shall promptly restore the street or other areas from which such property has been removed to a condition satisfactory to the town.
(3) Any property of a grantee remaining in place 90 days after the termination or expiration of the franchise shall be considered permanently abandoned. The town may extend such time not to exceed an additional 90 days; provided, however, that a grantee may not abandon any of its property within public rights-of-way, streets, or other places without the prior written consent of the town.
(4) Upon permanent abandonment of the property of a grantee in place, the property shall become that of the town, and a grantee shall submit to the town clerk an instrument in writing, to be approved by the town attorney, transferring to the town the ownership of such property.
(5) Any bond required by the grant of the franchise, shall remain in place for a period of one year after abandonment of all facilities within the town or insolvency of the grantee to guarantee removal of facilities. [Ord. 450 § 1, 2021]