Chapter 11.04
TELECOMMUNICATIONS RIGHT-OF-WAY USE AUTHORIZATIONS
11.04.000 Chapter Contents
Sections:
11.04.010 Telecommunications right-of-way use authorization.
11.04.020 Telecommunications right-of-way use authorization application.
11.04.030 Issuance/Denial of telecommunications right-of-way use authorization.
11.04.040 Appeal of director’s decision.
11.04.050 Agreement
11.04.060 Nonexclusive grant.
11.04.070 Rights granted.
11.04.080 Term of telecommunications right-of-way authorization.
11.04.090 Specified route.
11.04.100 Service to city users.
11.04.120 Amendment of authorization.
11.04.130 Renewal of telecommunications right-of-way use authorization.
11.04.140 Standards of renewal of authorization.
11.04.150 Obligation to cure as a condition of renewal.
11.04.160 Universal service.
11.04.170 Annual fee for recovery of city costs.
11.04.180 Other city costs.
11.04.010 Telecommunications right-of-way use authorization
A. Telecommunications Right-of-Way Use Authorization shall be required of any service provider who desires to occupy specific rights-of-way of the City for the sole purpose of providing telecommunications service to persons or areas outside the City.
(Ord. 6033 §11, 2000; Ord. 5816 §2, 1998).
11.04.020 Telecommunications right-of-way use authorization application
Any person that desires a Telecommunications Right-of-Way Use Authorization pursuant to this Chapter shall file an application with the City’s Community Planning and Development Department which shall include the following information:
A. The name of the applicant, including all affiliates of the applicant;
B. A description of the telecommunications service that is or will be offered or provided by the applicant over its Facilities;
C. A description of the transmission medium that will be used by the applicant to offer or provide such telecommunications service;
D. Preliminary engineering plans, specifications and a network map of the Facilities to be located within the City, all in sufficient detail to identify:
1. The location and route requested for applicant’s proposed Facilities;
2. The location of all overhead and underground utilities or Facilities in the right-of-way along the proposed route;
3. The location(s), if any, for interconnection with the Facilities of other service providers and
4. The specific trees, structures, improvements, facilities and obstructions, if any, that applicant proposes to temporarily or permanently remove or relocate.
E. If applicant is proposing to install Facilities where authorized, evidence that surplus space is available for locating its Facilities on existing utility poles along the proposed route;
F. If applicant is proposing an underground installation in existing ducts or conduits within the right-of-way, information in sufficient detail to identify:
1. The excess capacity currently available in such ducts or conduits before installation of applicant’s Facilities,
2. The excess capacity, if any, that will exist in such ducts or conduits after installation of applicant’s Facilities, and
3. Evidence of ownership or a right to use such ducts or conduits.
G. If applicant is proposing an underground installation within new ducts or conduits to be constructed within the right-of-way:
1. The location proposed for the new ducts or conduits; and
2. The excess capacity that will exist in such ducts or conduits after installation of applicant’s Facilities.
H. A preliminary construction schedule and completion date;
I. Information to establish that the applicant has obtained all other governmental approvals and permits to construct and operate the Facilities, and to offer or provide the telecommunications service, including, but not limited to, evidence that the applicant has registered with the Washington Utilities and Transportation Commission;
J. All deposits or charges required pursuant to this Chapter; and
K. An application fee which shall be set by the City Council by resolution under OMC Chapter 4.
(Ord. 6033 §12, 2000; Ord. 5816 §2, 1998).
11.04.030 Issuance/Denial of telecommunications right-of-way use authorization
Within One hundred twenty (120) days after receiving a complete application under Section 11.04.020 hereof, the Community Planning and Development Director or the Community Planning and Development Director’s designee shall issue a written determination granting or denying the authorization in whole or in part. If the authorization is denied, the written determination shall include the reason(s) for denial. The decision to grant or deny an application for a Telecommunications Right-Of-Way Use Authorization shall be based upon the following standards:
A. Whether the, applicant has received all requisite licenses, certificates, and authorizations from the Federal Communications Commission, the Washington Utilities and Transportation Commission, and any other federal or state agency with Jurisdiction over the activities proposed by the applicant;
B. The capacity of the right-of-way to accommodate the applicant’s proposed facilities;
C. The capacity of the right-of-way to accommodate additional utility, cable, and telecommunications facilities if the authorization is granted;
D. The damage or disruption, if any, of public or private facilities, improvements, service, travel or landscaping if the authorization is granted;
E. The public interest in minimizing the cost and disruption of construction within the right-of-way;
F. Applicants proposed compliance with the City’s Development Guidelines;
G. The effect, if any, on public health, safety and welfare if the authorization is granted;
H. The availability of alternate routes and/or locations for the proposed Facilities,
I. Applicable federal and state telecommunications laws, regulations and policies and
J. Such other factors as may demonstrate that the grant to use the public ways will serve the community interest.
(Ord. 7187 §3, 2019; Ord. 6033 §13, 2000; Ord. 5816 §2, 1998).
11.04.040 Appeal of director’s decision
Any person aggrieved by the granting or denying of a Telecommunications Right-of-Way Authorization or the renewal thereof pursuant to this Chapter shall have the right to appeal to the Hearing Examiner as follows:
A. All appeals filed pursuant to this Section must be filed in writing with the Community Planning and Development Director within ten (10) working days of the date of the decision appealed from;
B. All appeals filed pursuant to this Section shall specify the error of law or fact, or new evidence which could not have been reasonably available at the time of the Community Planning and Development Director’s decision, which shall constitute the basis of the appeal;
C. Upon receipt of a timely written notice of appeal, the Community Planning and Development Director shall schedule a date for the appeal before the Hearing Examiner;
D. Unless substantial relevant information is presented which was not considered by the Community Planning and Development Director, such decision shall be accorded substantial weight, but may be reversed or modified by the Hearing Examiner if, after considering all of the evidence in light of the applicable goals, policies, and provisions of these Chapters, the Hearing Examiner determines that a mistake has been made. Where substantial new relevant information which was not considered in the making of the decision appealed from has been presented, the Hearing Examiner shall make its decision only upon the basis of the facts presented at the hearing of the appeal, or may elect to remand the matter for reconsideration by the Community Planning and Development Director in light of the additional information;
E. For all appeals decided pursuant to this Section, the City shall provide for a record that shall consist of a taped or written transcript;
F. Any decision by the Hearing Examiner shall be final unless appealed to the City Council within the time and in the manner described in OMC 18.82.
G. A service provider adversely affected by the final action denying a telecommunications right-of-way use authorization may commence an action within thirty (30) days to seek relief, which shall be limited to injunctive relief. In any appeal of the final action denying a right-of-way use authorization, the standard for review and burden of proof shall be as set forth in RCW 36.70C.130; and
H. No action to obtain judicial review shall be commenced unless all rights of appeal provided by this Section are fully exhausted. The cost of transcription of all records ordered certified by the court for such review shall be borne by the party seeking such review. A copy of each transcript prepared by such party shall be submitted to the City for confirmation of its accuracy.
(Ord. 6033 §14, 2000; Ord. 5816 §2, 1998).
11.04.050 Agreement
No authorization shall be deemed to have been granted hereunder until the applicant and the City have executed a written agreement setting forth the particular terms and provisions under which the grantee has been granted the right to occupy and use right-of-way of the City.
(Ord. 6033 §15, 2000; Ord. 5816 §2, 1998).
11.04.060 Nonexclusive grant
No authorization granted under this Chapter shall confer any exclusive right, privilege, license or franchise to occupy or use the right-of-way of the City for delivery of telecommunications service or any other purposes.
(Ord. 6033 §16, 2000; Ord. 5816 §2, 1998).
11.04.070 Rights granted
No authorization granted under this Chapter shall convey any right, title or interest in the right-of-way, but shall be deemed an authorization only to use and occupy the right-of-way for the limited purposes and term stated in the authorization. Further, no authorization shall be construed as any warranty of title.
(Ord. 6033 §17, 2000; Ord. 5816 §2, 1998).
11.04.080 Term of telecommunications right-of-way use authorization
No authorization granted hereunder shall be in effect for a term exceeding five (5) years, unless approved by the City Council.
(Ord. 5816 §2, 1998).
11.04.090 Specified route
A Telecommunications Right-of-Way Use Authorization granted under this Chapter shall be limited to a grant of specific right-of-way and defined portions thereof.
(Ord. 6033 §18, 2000; Ord. 5816 §2, 1998).
11.04.100 Service to city users
A grantee shall be permitted to offer or provide telecommunications service to persons or areas within the City upon approval of an application for a master permit pursuant to Chapter 11.06.
(Ord. 6033 §19, 2000; Ord. 5816 §2, 1998).
11.04.120 Amendment of authorization
A new application shall be required of any service provider who desires to extend or locate its Facilities in right-of-way of the City which are not included in an authorization previously granted under Chapters 11.02 through 11.12. At the discretion of the City, a minor route change can be made administratively through an amendment of the map approved by the City. If ordered by the City to locate or relocate its Facilities in public ways not included in a previously granted authorization, the City shall grant an amendment to the authorization without further application.
(Ord. 6208 §2, 2002; Ord. 6033 §21, 2000; Ord. 5816 §2, 1998).
11.04.130 Renewal of telecommunications right-of-way use authorization
A grantee that desires to renew its authorization under this Chapter for an additional term shall, not more than 180 days nor less than ninety (90) days before expiration of the current authorization, file an application with the City for renewal which shall include the following:
A. The information required pursuant to Section 11.04.020 of this Chapter;
B. Any information required pursuant to the authorization agreement between the City and the grantee;
C. All deposits or charges required pursuant to this Chapter; and
D. An application fee which shall be set by the City Council by resolution.
(Ord. 5816 §2, 1998).
11.04.140 Standards for renewal of authorization
Within ninety (90) days after receiving a complete application for renewal, the Community Planning and Development Director or the Community Planning and Development Director’s designee shall issue a written determination granting or denying the renewal application in whole or in part. If the renewal application is denied, the written determination shall include the reason(s) for denial. The decision to grant or deny an application for the renewal of a Telecommunications Right-Of-Way Use Authorization shall, in addition to the standards set forth in Section 11.04.030 of this Chapter, be based upon the following standards:
A. The continuing capacity of the public ways to accommodate the applicant’s existing facilities; and
B. The applicant’s compliance with the requirements of these Chapters and the authorization.
(Ord. 7187 §3, 2019; Ord. 5816 §2, 1998).
11.04.150 Obligation to cure as a condition of renewal
No authorization shall be renewed until any ongoing violations or defaults in the grantee’s performance under the authorization, or of the requirements of these Chapters, have been cured, or a plan detailing the corrective action to be taken by the grantee has been approved by the City.
(Ord. 5816 §2, 1998).
11.04.160 Universal service
Each Telecommunications Right-of-Way Use Authorization granted under this Chapter is subject to the City’s right, which is expressly reserved, to require the telecommunication carrier or provider to make an equitable and nondiscriminatory contribution to the preservation and advancement of universal service to the extent permitted by state and federal law.
(Ord. 5816 §2, 1998).
11.04.170 Annual fee for recovery of city costs
Each authorization granted under this Chapter is subject to the City’s right, which is expressly reserved, to annually fix a fair and reasonable compensation to be paid as reimbursement for the City’s costs in connection with reviewing, inspecting and supervising the use and occupancy of the right-of-way on behalf of the public and existing or future users.
(Ord. 6033 §22, 2000; Ord. 5816 §2, 1998).
11.04.180 Other city costs
All grantees shall, within thirty (30) days after written demand, reimburse the City for all direct and indirect costs and expenses incurred by the City in connection with any modification, amendment, renewal or transfer of the authorization or any authorization agreement. In addition, all grantees shall, within thirty (30) days after written demand, reimburse the City for any and all costs the City reasonably incurs in response to any emergency involving the grantee’s Facilities. All grantees shall, within thirty (30) days after written demand, reimburse the City for the grantee’s proportionate share of all actual, identified expenses incurred by the City in planning, constructing, installing, repairing or altering any City facility as a result of the construction or the presence in the right-of-way of the grantee’s Facilities.
(Ord. 6033 §23, 2000; Ord. 5816 §2, 1998).