HomeMy WebLinkAboutOrdinance 3039 CITY OF ANACORTES
ORDINANCE NO. 3039
AN ORDINANCE OF THE CITY OF ANACORTES,WASHINGTON,ADOPTING A
NEW CHAPTER OF CODE, 5.38, ENTITLED "PUBLIC UTILITY AND WIRELESS
TELECOMMUNICATIONS RIGHT-OF-WAY USE" RELATING TO THE
REGULATION OF WIRELESS TELECOMMUNICATION FACILITIES AND PUBLIC
UTILITIES LOCATING IN THE PUBLIC RIGHT-OF-WAY
THE CITY COUNCIL OF THE CITY OF ANACORTES,WASHINGTON, DOES
ORDAIN AS FOLLOWS:
Section 1. Preamble.
1. WHEREAS,under state law, the City may require a master permit for
telecommunications service providers RCW 35.99.030(1) ("Cities and towns may require
a service provider to obtain a master permit."); RCW 35.99.010(6) (defining service
provider as "every corporation, company, association,joint stock association, firm,
partnership,person, city, or town owning, operating, or managing any facilities used to
provide and providing telecommunications or cable television service for hire, sale, or
resale to the general public."); RCW 35.99.010(3) (defining master permit as including
franchises).
2. WHEREAS, The City code does not currently provide for permitting telecommunications
service providers in the right-of-way other than cable communications systems, Chapter
5.44 RCW.
3. WHEREAS, the City code does not currently provide for a master permit to recover
reasonable costs associated with small cell deployments in the right-of-way, to comply
with shot clocks associated with such deployments, and to set other terms for such
deployments under Federal Communications Commission Order No. FCC-18-133.
4. WHEREAS, RCW 35.99.030(5)(b) authorizes the City"to require that facilities are
installed and maintained within the right-of-way in such a manner and at such points so
as not to inconvenience the public use of the right-of-way or to adversely affect the
public health, safety, and welfare."
5. WHEREAS, this Ordinance is adopted consistent with federal and state laws and the
City's police power to regulate for the benefit of the public safety, health and welfare.
6. WHEREAS, the City has received proposed changes to the new code section from
citizens and agencies (including the City);
7. WHEREAS, the proposed new code section has been the subject of public hearings
before the Planning Commission and subject to SEPA review;
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8. WHEREAS, notice of the possible adoption of these changes has been provided to the
State;
9. WHEREAS, the City Council has determined that it is in the best interest of the City to
adopt a new code section that pertains to regulating wireless service facilities and public
utilities locating in the public right-of-way.
Section 2. New Section of AMC, 5.38.
A new section, 5.38, of the AMC is adopted to read as follows:
PUBLIC UTILITY AND TELECOMMUNICATIONS
RIGHT-OF-WAY USE
Sections:
5.38.010 Purpose.
5.38.020 Applicability.
5.38.030 Definitions.
5.38.040 Master permit and construction permit required.
5.38.050 Optional pre-application.
5.38.060 Construction permit application.
5.38.070 Master permit application.
5.38.080 Completeness review.
5.38.090 Timeframe for review.
5.38.100 Construction permit approval.
5.38.110 Master permit approval.
5.38.120 Compensation to the City.
5.38.130 Nondiscrimination.
5.38.140 Amendment of Permit.
5.38.150 Renewal application—Master Permit.
5.38.160 Renewal approval.
5.38.170 Terms of use and occupancy.
5.38.180 Specifications.
5.38.190 Exceptions.
5.38.200 Security fund.
5.38.210 Performance bond.
5.38.220 Insurance.
5.38.230 Hold harmless/indemnity.
5.38.240 Inspections.
5.38.250 Revocation of master permits and construction permits.
5.38.260 Correction and discontinuance of a Master Permit.
5.38.270 Correction and discontinuance of a Construction Permit.
5.38.280 Removal.
5.38.290 Displacement for public use.
5.38.300 Additional ducts or conduits.
5.38.310 Joint use of poles.
5.38.320 City use for noncommercial government communication.
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5.38.330 Appearance.
5.38.340 Moving of building(s) and/or equipment.
5.38.350 Billings and collections.
5.38.360 Liability.
5.38.370 Tree trimming.
5.38.380 Underground facilities.
5.38.390 Joint trenching.
5.38.400 Notice of tariff changes.
5.38.410 One-call locator.
5.38.420 Violation—Penalties.
5.38.010 Purpose.
The purpose of this chapter is to provide for the regulation of the use of public right-of-way by
any business, service, or person which is engaged in supplying the public with some commodity
or service which is of public consequence and need, such as public and private utilities, wireless
telecommunications or transportation service.
5.38.020 Applicability.
The provisions of this chapter apply to all public utility and wireless carriers which occupy,use,
construct, or maintain utility or telecommunications facilities within public right-of-way of the
City.
To the extent the provision of any current franchise or other written agreement with a public
utility or wireless carrier conflicts with any provision of this chapter, the applicable provision of
the franchise or other written agreement prevails.
5.38.030 Definitions.
For the purposes of this chapter, the following terms, phrases, and words have the meanings set
forth below unless the context clearly indicates otherwise. When not inconsistent with the
context, words used in the present tense include the future tense, words in the plural number
include the singular number, and words in the singular number include the plural number.
A. A definitions.
"Act"means a decision to grant, condition, or deny the use condition, or deny a permit, which
may be subject to administrative appeal, or a notification to the applicant in writing of the
amount of time that will be required to make the decision and the reasons for this time period.
B. B definitions.
"Base station"means: a structure or equipment at a fixed location that enables FCC-licensed or
authorized wireless communications between user equipment and a communications network.
The term does not encompass a"Tower" or any equipment associated with a Tower.
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• The term includes, but is not limited to, equipment associated with wireless
communications services such as private,broadcast, and public safety services, as well as
unlicensed wireless services and fixed wireless services such as microwave backhaul.
• The term includes,but is not limited to, radio transceivers, antennas, coaxial or fiber-
optic cable, regular and backup power supplies, and comparable equipment, regardless of
technological configuration(including Distributed Antenna Systems and small-cell
networks).
• The term includes any structure other than a tower that supports or houses equipment that
has been reviewed and approved under the applicable zoning or siting process, or under
another State or local regulatory review process, even if the structure was not built for the
sole or primary purpose of providing such support.
• The term does not include any structure that does not support or house equipment for
wireless telecommunications services.
C. C definitions.
"City Engineer"means the City Engineer of the City of Anacortes, Washington acting in his or
her official capacity, and his or her designee(s).
"Complex project"means a construction project involving, by way of example only: adding,
installing, or relocating numerous conduits, wires, lines,poles, pipes, cables, communication and
signal lines,braces, guys, anchors, vaults,pedestals, antennas, and/or other structures, equipment
and appurtenances to a public utility or wireless facility; navigating intricate or complicated
facility or land ownership issues; determining whether significant environmental impact(s) exist;
and/or the analysis of highly technical structural or engineering information or reports.
D. D definitions.
E. E definitions.
"Emergency"means a condition of imminent danger to the health, safety, and welfare of
property or persons located within the City, including, but not limited to, damage to persons or
property from natural consequences, such as storms, earthquakes, riots or wars.
F. F definitions.
"Facilities"means all of the towers, equipment, fixtures, antennas, equipment cabinets,
equipment shelters, and other appurtenances necessary to furnish and deliver wireless services,
including but not limited to utility, monopoles, and street poles with cross arms or without cross
arms, wires, lines, conduits, cables, communication and signal lines and equipment,braces, guys,
anchors, vaults, and all attachments, appurtenances, and appliances necessary or incidental to the
distribution and use of wireless services. Facilities include "Small Wireless Facilities" as
defined below.
G. G definitions.
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H. H definitions.
I. I definitions.
J. J definitions.
K. K definitions
L. L definitions.
M. M definitions.
"Master permit"means the agreement whereby the City of Anacortes may grant general
permission to a service provider to enter, use, and occupy the right-of-way for the purpose of
locating facilities. This definition is not intended to limit, alter, or change the extent of the
existing authority of the City of Anacortes to require a franchise, nor does it change the status of
a service provider asserting an existing statewide grant based on a predecessor telephone or
telegraph company's existence at the time of the adoption of the Washington State Constitution
to occupy the right-of-way. A master permit does not include cable television franchises or
permits.
N. N definitions.
O. O definitions.
"Overhead facilities"means utility poles,utility facilities and wireless facilities located above
the surface of the ground, including the underground supports and foundations for such facilities.
P. P definitions.
"Permittee"means the public utility, service provider, or other person authorized under a master
permit or construction permit under the provisions of this Chapter.
"Person"means and includes corporations, companies, associations,joint stock companies or
associations, firms, partnerships, limited liability companies and individuals and includes their
lessors, trustees and receivers.
"Public improvement" as used herein, means all work, construction, alterations, repair or
improvements within public right-of-way, executed at the cost or under contract of the City, or
caused to be performed by any person or entity as a condition or requirement of an approval or
permit for zoning, land use, construction, or development if dedicated or required to be dedicated
to the public use, benefit or enjoyment.
"Public right-of-way"means any highway, street, alley, other public right-of-way, or easement
for motor vehicle under the jurisdiction and control of the City which has been acquired,
established, dedicated or devoted to such purposes, but only to the extent of the City's right, title,
interest or authority to grant a permit to occupy and use such streets and easements for wireless
and utility facilities.
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"Public utility" as used herein, means a company or entity engaged in any business or service
regularly supplying the public with some commodity or service which is a public need and
consequence, such as natural gas, electricity, water or sanitary sewer, including any business
subject to regulation as to rates and service by the Utilities and Transportation Commission
under the provisions of RCW Title 81.
Q. Q definitions.
R. R definitions.
S. S definitions.
"Service provider"means every corporation, company, association,joint stock association, firm,
partnership,person, city, or town owning, operating, or managing any facilities used to provide
and providing wireless service for hire, sale, or resale to the general public. Service provider
includes the legal successor to any such corporation, company, association,joint stock
association, firm, partnership, person, city, or town.
"Small Wireless Facility" encompasses facilities that meet the following conditions:
• The facilities—
o are mounted on structures 50 feet or less in height including their antennas as
defined in section 1.1320(d), or
o are mounted on structures no more than 10 percent taller than other adjacent
structures, or
o do not extend existing structures on which they are located to a height of more
than 50 feet or by more than 10 percent,whichever is greater;
• Each antenna associated with the deployment, excluding associated antenna equipment
(as defined in the definition of antenna in section 1.1320(d)), is no more than three cubic
feet in volume;
• All other wireless equipment associated with the structure, including the wireless
equipment associated with the antenna and any pre-existing associated equipment on the
structure, is no more than 28 cubic feet in volume;
• The facilities do not require antenna structure registration under Federal regulations;
• The facilities are not located on Tribal lands, which means all lands within the exterior
boundaries of any Indian reservation and all dependent Indian communities; and
• The facilities do not result in human exposure to radiofrequency radiation in excess of the
applicable safety standards specified in section 1.1307(b).
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"Surplus space" means that portion of the usable space on a utility pole which has the necessary
clearance from other pole users, as required by Federal or State orders and regulations, to allow
its use by a public utility or wireless carrier for a pole attachment. "Surplus space" also includes
usable space within underground conduits and ducts when the necessary clearance from other
users, as required by Federal or State orders and regulations, can be achieved;
T. T definitions.
U. U definitions.
"Underground facilities"means utility and wireless telecommunications facilities located under
the surface of the ground, excluding the underground foundations or supports for overhead
facilities;
"Usable space"means the total distance between the top of a utility pole and the lowest possible
attachment point that provides the minimum allowable vertical clearance as specified in any
Federal or State orders and regulations;
"Utility easement"means any easement owned by the City and acquired, established, dedicated
or devoted for public utility purposes; and
"Utility facilities" as used herein means all conduit, wires, lines,poles,pipes, cables,
communication and signal lines,braces, guys, anchors, vaults,pedestals, antennas, and all other
structures, equipment and appurtenances thereto owned, operated or maintained by a public
utility and used to furnish utility services.
V. V definitions.
W. W definitions.
"Wireless support structure" or"support structure"means a freestanding structure that is
designed to support or is capable of supporting wireless facilities. The term does not include a
utility pole, monopole, street pole, or tower.
"Wireless telecommunications carrier" or"wireless carrier"means and includes every
corporation, company, association,joint stock association,partnership and person, their lessees,
trustees or receivers appointed by any court whatsoever, and every city or town owning,
operating, or managing any facilities used to provide wireless telecommunications for hire, resale
to the general public within this State;
"Wireless telecommunications" or"wireless" means the transmission of information by wire,
radio, optic cable, electromagnetic, or similar means for hire, sale or resale to the general public.
For the purpose of this subsection, "information"means knowledge or intelligence represented
by any form of writing, signs, signals, pictures, sounds, or any other symbols. For the purpose of
this chapter,wireless telecommunications service excludes the over-the-air transmission of
broadcast television or broadcast radio signals and excludes "cable services," "cable
communications systems" and"CATV systems" as defined in Chapter 5.44.
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X. X definitions.
Y. Y definitions.
Z. Z definitions.
5.38.040 Master permit and construction permit required.
A. It is unlawful to construct,place, maintain, or operate any pipes, ducts,utility tunnels, vaults,
maintenance holes,poles, fixtures, wires, utility facilities, wireless facilities, or any other
appurtenances necessary for the purpose of providing wireless service, or to conduct any public
utility business, on, over, or under the public right-of-way,without obtaining a master permit
from the Council.
B. It is unlawful to construct, repair, or maintain any pipes, ducts, utility tunnels, vaults,
maintenance holes,poles, fixtures, wires, utility facilities, wireless facilities, or any other
appurtenances, necessary for the purpose of providing wireless service, or to conduct any public
utility business or to go upon any such public right-of-way to perform any work therein on,
under, or over public right-of-way, without obtaining a construction permit from the City
Engineer. The City Engineer may exempt certain activities from the requirements of this section
that do not materially affect the public right-of-way; provided, however, that if the City Engineer
denies an applicant's request for such an exemption, no appeal is permitted.
5.38.050 Optional pre-application.
A. An applicant may submit materials up to thirty(30) days in advance of an application for a
construction permit or master permit. The information submitted along with a pre-application
may include the following information:
1. The name and address of the applicant;
2. Identification of all carriers using the facility;
3. The type of facility proposed;
4. Preliminary engineering plans, specifications, and maps of the facilities to be located within
the public right-of-way;
5. Detailed construction plans demonstrating compliance with all applicable City codes and
construction specifications, including the City's Engineering Standards;
6. A brief description of non-confidential, nonproprietary utility or wireless telecommunications
services that are or will be offered or provided by the applicant over its facilities;
7. A brief description of non-confidential, nonproprietary transmission medium that will be used
to offer or provide such services;
8. An accurate map showing the location of any existing utilities and/or wireless
telecommunications facilities in the City that the applicant intends to use or lease;
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9. If installation of overhead facilities is proposed, evidence that Surplus Space is available for
locating the facilities on existing utility poles along the proposed route;
10. The area or areas of the City the applicant desires to serve and a schedule for building out
(offering service to)the entire area covered by the master permit;
11. Proof of compliance with the other provisions of this Chapter, including but not limited to the
indemnity, insurance, and bond requirements; and/or
12. 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 services, including, but
not limited to, evidence that the applicant has registered with the Washington Utilities and
Transportation Commission.
5.38.060 Construction permit application.
A. To obtain a construction permit, the applicant must file an application with the City Engineer.
B. A complete application must include the following information and materials:
1. The names, residences, and business addresses of all officers and directors of the applicant.
2. Detailed construction plans demonstrating compliance with all applicable City codes and
construction specifications, including the City's Engineering Standards.
3. If the applicant is constructing wireless facilities on another service provider's facilities, a
notarized statement that the applicant has permission to use a third parry's facility(ies), or a
signed agreement with the service provider to that effect.
4. The location of the applicant's overhead and underground facilities in the public right-of-way
along the proposed route and the area proposed to be served by cable.
5. Preliminary engineering plans, specifications, and maps of the facilities to be located within
the public right-of-way, in sufficient detail to identify the location and route of the proposed
facilities within the public right-of-way, the location of the applicant's existing facilities within
the right-of-way, if any, and the specific trees, structures, facilities, and/or obstructions, if any,
that the applicant proposes to temporarily or permanently remove or relocate.
6. If underground installation in existing ducts or conduits within the public right-of-way is
proposed, information in sufficient detail to identify: the excess capacity currently available in
such ducts or conduits before installation of the facilities; and the excess capacity, if any, that
will exist in such ducts or conduits after installation of the facilities.
7. If underground installation within new ducts or conduits to be constructed within the public
right-of-way is proposed: the location proposed for the new ducts or conduits; and the excess
capacity that will exist in such ducts or conduits after installation of the facilities.
8. A preliminary construction schedule and completion date.
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9. A detailed statement describing the actual equipment and operational standards proposed by
the applicant.
10. A statement or schedule setting forth all proposed classifications of rates and charges to be
set, including installation and service charges, which must remain in effect for at least twelve
months after the City grants a master permit.
11. Proof of compliance with the other provisions of this Chapter, including but not limited to the
indemnity, insurance, and bond requirements.
12. Any other reasonable information requested by the City Engineer or its designee, or required
by any other provision of any other ordinance of the City.
13. An application fee to be set by the City Council in its unified fee schedule to allow the City
to recover the costs of reviewing the application, including the costs of any third-party review.
C. Applications for Small Wireless Facilities may be submitted in batches, which may
encompass up to five separate applications filed at the same time, each for one or more sites, or a
single application covering up to five sites,unless the City agrees to a larger number based upon
its capacity to review additional applications.
D. Third Party Review. The City may require the applicant to submit its materials to a third-
party for review, as may be reasonably necessary to determine compliance with this Chapter,
such as an engineer or architect,by way of example only.
5.38.070 Master permit application.
A. To obtain a master permit, the applicant must file an application with the City clerk.
B. The Council must examine each complete application submitted for review and approval to
determine if it complies with the applicable provisions of this chapter. Other departments that
have authority over the proposed use or activity may be required to review and approve or
disapprove the application based on site-specific criteria, such as that in 19.68 AMC. The
Council may inspect the public right(s)-of-way proposed for use to determine any facts which
may aid in determining whether a master permit should be approved.
C. A complete application must include the following information and materials:
1. The identity of the applicant, including all affiliates of the applicant who will be authorized to
work in the right-of-way under the agreement;
2. If the applicant is constructing wireless facilities on another service provider's facilities, a
notarized statement that the applicant has permission to use such facilities, or a signed agreement
with the service provider to that effect.
3. If the application involves a Small Wireless Facility, preliminary engineering plans showing
all dimensions of the wireless facility.
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4. A brief description of non-confidential, nonproprietary utility or wireless telecommunications
services that are or will be offered or provided by the applicant over its facilities;
5. A brief description of non-confidential, nonproprietary transmission medium that will be used
to offer or provide such services;
6. An accurate map showing the location of any existing utilities and/or wireless
telecommunications facilities in the City that the applicant intends to use or lease;
7. If installation of overhead facilities is proposed, evidence that Surplus Space is available for
locating the facilities on existing utility poles along the proposed route;
8. Preliminary engineering plans, specifications, and maps of the facilities to be located within
the public right-of-way, in sufficient detail to identify the location and route of the proposed
facilities within the public right-of-way, the location of the applicant's existing facilities within
the right-of-way, if any, and the specific trees, structures, facilities, and/or obstructions, if any,
that the applicant proposes to temporarily or permanently remove or relocate.
9. The area or areas of the City the applicant desires to serve and a schedule for building out
(offering service to)the entire area encompassed by the master permit;
10. 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 services, including, but
not limited to, evidence that the applicant has registered with the Washington Utilities and
Transportation Commission;
11. Proof of compliance with the other provisions of this Chapter, including but not limited to the
indemnity, insurance, and bond requirements.
12. An application fee to be set by the Council in its unified fee schedule which allows the City
to recover its actual administrative expenses that are directly related to receiving and approving a
permit and license, to inspecting plans and construction, or to the preparation of a detailed
statement.
D. Applications for Small Wireless Facilities may be submitted in batches, which may
encompass up to five separate applications filed at the same time, each for one or more sites, or a
single application covering up to five sites, unless the City agrees to a larger number based upon
its capacity to review additional applications.
E. Third Party Review. The City may require the applicant to submit its materials to a third-party
for review, as may be reasonably necessary to determine compliance with this Chapter, such as
an engineer or architect, by way of example only.
5.38.080 Completeness review.
A. Completeness Review. Applications for a master permit or construction permit must be
reviewed for completeness within thirty days of receipt, except for applications associated with
Small Wireless Facilities, which must be reviewed for completeness within ten days of receipt.
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If the application is not reviewed for completeness within the applicable timeframe, it will be
deemed complete.
B. Tolling.
1. For applications for a master permit or construction permit for a Small Wireless Facilities, the
review period resets once an applicant submits its additional materials.
2. For all other applications deemed incomplete, the review period is tolled for up to sixty days.
Once an applicant submits additional materials, the review timeframe begins to run again.
3. If the applicant does not submit the required materials within the required timeframe, the City
may deny the application.
C. Submittal of Additional Materials.
1. If an applicant submits additional materials, the Director must provide notice within ten(10)
days as to any additional materials identified in the original notice that were not provided with
the supplemental materials.
2. Second or subsequent notices of incompleteness may not specify missing documents or
information that was not delineated in the original notice of incompleteness. For second or
subsequent notices of incompleteness, the review timeframe will be tolled for all applications
including those pertaining to Small Wireless Facilities.
3. If the applicant does not submit the required materials, the City may deny the application.
D. Failure to act. If the Director fails to approve or deny a request seeking approval for either a
wireless service facility permit or conditional use permit within the applicable timeframe for
review, accounting for any tolling, the request is deemed granted. The deemed grant does not
become effective until the applicant notifies the applicable reviewing authority in writing after
the review period has expired that the application has been deemed granted.
5.38.090 Timeframe for review.
The timeframe for review of an application for a master permit or a construction permit begins to
run when an application is submitted, not when the application is deemed complete. The
timeframe for submitting and reviewing master permits and construction permits is the same,
unless otherwise specified.
Construction Master Permit
Colocating Colocating New Small Permit—All Renewal—All
Wireless Small Wireless Wireless New Wireless Wireless Wireless
Facilities Facility Facility Facilities Facilities Facilities
Application Master use and Master use and Master use and Master use and Applications for A Permittee
Submission construction construction construction construction complex may submit an
permit permit permit permit projects should application for
applications applications applications applications be submitted at renewal no
should each be should each be should each be should each be least 60 days more than 180
submitted 90 submitted 60 submitted 90 submitted at prior to the days and no
least 120 days planned use, less than 120
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Construction Master Permit
Colocating Colocating New Small Permit—All Renewal—All
Wireless Small Wireless Wireless New Wireless Wireless Wireless
Facilities Facility Facility Facilities Facilities Facilities
days prior to days prior to days prior to prior to planned and in no case days before
planned use. planned use. planned use. use. less than 30 expiration of
days prior to the the current
planned use. master permit.
Timeframe Written Written Written Written City Engineer Written
for decision decision due decision due decision due decision due must Act within Decision due
(from receipt within 90 days. within 60 days. within 90 days. within 120 a reasonable within 90 days.
of complete days. time,generally
application) not to exceed 30
days,and in no
case can he or
she exceed the
timeframes for
review set forth
in this table.
5.38.100 Construction permit approval.
A. The City Engineer shall review construction permits as follows:
Permit Procedure Requirement status
Optional Pre-Application Yes
Meeting
Notice of Application No
Comment Period None
Recommendation By None
Pre-Decision Open-Record No
Hearing
Closed-Record Decision No
Hearing
Decision By City Engineer
Notice of Decision No
B. In the event that the City Engineer finds that the construction permit application conforms to
the requirements of this chapter and applicable construction standards adopted by the City, the
City Engineer must approve the construction permit, and may impose such conditions thereon as
are reasonably necessary to protect the public health,welfare and safety, to mitigate any impacts
resulting from the use, and to facilitate the orderly management of other utility and wireless
facilities within the public right-of-way.
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C. In the event that the City Engineer denies an application for a construction permit, the
decision must be in writing and set forth the reasons for said denial, and must be based on
substantial evidence in the written record. The City may not deny a construction permit on the
basis of a failure to obtain a master permit. Following approval by the City Engineer,
construction permits will be issued by the City clerk.
D. The City Engineer has the discretion to approve a blanket construction permit for a period of
up to one year, when the applicant seeks approval to perform construction or maintenance that is
of a repetitive or similar nature.
E. In evaluating a construction permit application under this chapter, the City Engineer must, in
addition to the criteria set forth in AMC 5.38.060(B), determine whether the proposed
construction is consistent with all construction standards adopted by the City.
F. The duration of a construction permit will be for one year unless revoked or modified under
the provisions of this chapter. The City Engineer must approve a construction schedule
specifying the dates, times, and duration during which construction activity is permitted within
the public right-of-way.
G. The construction permit incorporates the relevant terms and conditions of this chapter by
reference.
H. The City Engineer has the power to regulate the construction and enforce construction permit
conditions and the requirements of this chapter. The City Engineer must keep a record of the
construction permit and the work done thereunder.
I. A service provider adversely affected by a final action denying a construction permit may
commence an action within thirty(30) days to seek relief, in any competent court of jurisdiction.
5.38.110 Master permit approval.
A. The City Council shall review the master permit application as follows:
Permit Procedure Requirement Status
Optional Pre-Application Yes
Meeting
Notice of Application Yes
Comment Period 14 days
Recommendation By None
Pre-Decision Open-Record Yes, before City Council
Hearing
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Closed-Record Decision No
Hearing
Decision By City Council
Notice of Decision Yes
B. In the event the Council finds that master permit application conforms to the requirements of
this chapter and the criteria for approval set forth in subsection (2) of this section, the Council
must approve the master permit, and may impose conditions that are reasonably necessary to
protect the public health,welfare, and safety and to mitigate any impacts resulting from the use.
The Council will provide the reasons for a denial in writing, supported by substantial evidence
contained in the written record based on the criteria set forth below. Following approval, the
applicant and the Council must enter into a written agreement setting forth the particular terms
under which the applicant has been granted the right to occupy and use the public ways of the
City.
C. In evaluating a master permit application under this chapter, the Council will, consistent with
Federal and State law, examine the following criteria:
1. Whether all requisite licenses, certificates, and authorizations from applicable Federal, State,
and local agencies have been obtained by the applicant;
2. The capacity of the public right-of-way to accommodate additional utility and wireless
telecommunications facilities if the master permit is granted;
3. The effect, if any, on public health, safety and welfare if the master permit is granted;
4. The availability of reasonable alternate routes and/or locations in the right-of-way for the
proposed facilities;
5. Whether denial of the use of the right-of-way would materially inhibit or limit the ability of
the service provider to compete in a fair and balanced regulatory environment.
6. Applicable Federal, State, and local statutes, regulations, ordinances, and policies related to
utility, wireless telecommunications, and other facilities, including City construction standards;
7. Such other factors as may demonstrate that the grant to use the public right-of-way will serve
the community interest.
8. The duration of a master permit is five years unless revoked or modified under the provisions
of this chapter.
9. No master permit granted under this chapter confers any exclusive right,privilege, license, or
franchise to occupy or use the public right-of-way of the City for delivery of wireless services or
any other purposes. Further, no master permit may be construed as a right, title or interest in the
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public ways, but is the right solely to use and occupy the public right-of-ways for the limited
purposes and terms stated within the grant. No master permit may be construed as a warranty of
title.
5.38.120 Compensation to the City.
The City may fix a fair and reasonable compensation to be paid annually for the use of the right-
of-way granted to the applicant under a master permit that is a reasonable approximation of the
City's costs, including the costs of third-party review, if any; provided, that the City and an
applicant may agree to the compensation to be paid; and provided that the compensation fixed or
agreed upon is consistent with RCW 35.21.860.
5.38.130 Nondiscrimination.
A Permittee which purports to serve the general public must make its wireless
telecommunication services available to any customer within its permitted area who requests
such service, without discrimination as to the terms, conditions, rates or charges for the
permittee's services; provided, however, that nothing in this title prohibits a Permittee from
making reasonable classifications among differently situated customers.
5.38.140 Amendment of Permit.
Except as otherwise provided within a master permit agreement, a new master permit agreement
and grant is required for any wireless carrier or service provider that seeks to extend the area
covered by the master permit or to locate its wireless facilities in public rights-of-way in the City
which are not included in a master permit previously granted under this chapter. If ordered by
the city to locate or relocate its wireless telecommunications facilities in public rights-of-way not
included in a previously granted master permit, the City must grant a master permit amendment
without further application.
5.38.150 Renewal application—Master Permit.
A. A Permittee may activate a formal process for renewal, by submitting an application for
renewal, a completed master permit renewal application with the city clerk. The application
must include the following:
1. The information required under AMC 5.38.070;
2. Any information required under the master permit agreement between the City and the
applicant;
3. All deposits or charges required under this Chapter; and
4. An application fee to be set by Council.
5.38.160 Renewal approval.
A. The City must issue a written determination granting or denying the renewal application in
whole or in part. If the renewal request is denied, the written determination must include
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substantial evidence of the reason(s) for denial, based on the standards set forth below. Prior to
granting or denying renewal of a master permit under this Chapter, the Council must conduct a
public hearing and make a decision based on the following criteria:
1. The continuing capacity of the public right-of-way to accommodate the applicant's existing
facilities;
2. The applicant's compliance with the requirements of this title and the master permit
agreement;
3. Applicable federal, state, and local wireless telecommunications laws, rules and policies; and
4. Such other factors that may demonstrate that the continued grant to use the public right-of-way
will serve the community interest.
B. The Council may not deny a renewal application based on violations of the master permit
unless the applicant has been given notice and an opportunity to cure.
C. Any service provider whose proposal for renewal has been denied by the City, or has been
otherwise adversely affected by a failure of the City to act, may appeal such final decision or
failure to act within 120 days in any Court of competent jurisdiction.
5.38.170 Terms of use and occupancy.
A. The use and occupancy of public right-of-way in the City by any person constructing,
maintaining or operating wireless,utility, or other facilities must conform to the terms and
conditions of this chapter.
B. Existing facilities installed or maintained by a telecommunications carrier,public utility or
other entity over, under or across public right-of-way within the City in accordance with an
expired franchise agreement or other City-issued permit may be operated by the wireless carrier
or public utility at the locations at which such facilities exist; provided, however, that
maintenance, repair, relocation, and/or expansion of such facilities are not permitted unless and
until the public utility or telecommunications carrier, or other entity obtains all permits and
approvals required by this chapter.
C. All work by a wireless carrier,public utility, or other entity in the public right-of-way must
comply with all construction standards and specifications adopted by the City as now exist or are
hereafter amended, including but not limited to those set forth in Chapters 15.32 and 19.68
AMC.
5.38.180 Specifications.
A. All work to be performed under a construction permit issued under this chapter must conform
to all applicable City codes, ordinances, and standards adopted by the City. In case of any
conflict, the most stringent provision applies.
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B. No wireless, utility, other facilities, or work related thereto may protrude into or over any
portion of a public right-of-way opened to vehicle or pedestrian travel in such a manner as to
create a risk of endangering the use of such place by vehicles or pedestrian travel. In addition, in
the event the requested construction permit involves encroachment or partial obstruction of a
sidewalk or other walkway open to the public, a minimum of five feet of unobstructed sidewalk
or other walkway must be maintained at all times.
C. During any period of any relocation, construction or maintenance of its facilities within the
public right-of-way, a wireless telecommunications carrier, public utility or other person must
conduct their activities so as not to unreasonably interfere with the free passage of traffic or the
use of adjoining property. Such person must, at all times,post and maintain proper barricades
and comply with all applicable safety regulations during such period of construction as required
by the ordinances of the City and the laws of the State of Washington, including RCW
39.04.180, for the construction of trench safety systems.
D. An applicant must, within 10 business days of completion of work, submit at no cost to the
City, current and accurate as-built drawings showing the location of any facilities installed or
constructed within the public right-of-way under a permit issued pursuant to this chapter or
otherwise. As-builts must show all of the applicant's facilities in the right-of-way including but
not limited to wireless telecommunications facilities,utility facilities,power poles, guy poles and
anchors, overhead transformers,pad-mounted transformers, submersible transformers, conduit,
substation (with its name)pedestals,pad-mounted junction boxes, vaults, switch cabinets, and
meter boxes.
5.38.190 Exceptions.
A. A construction permit is not required when public utilities, wireless carriers, or City
contractors are responding to emergencies that require work in the public right-of-way, such as
water or sewer main breaks, gas leaks, downed power lines, or similar emergencies; provided,
however, that the Council must be notified by the responding utility, carrier, or contractor
verbally or in writing, on the next business day following onset of the emergency. Nothing in
this section relieves a responding public utility, carrier, or contractor from the requirement of
obtaining a construction permit after beginning emergency work in a public right-of-way.
B. A construction permit fee is not required for City-sponsored capital improvement projects for
water, sewer, drainage, or road construction maintenance, including associated work required by
a public utility.
5.38.200 Security fund.
A. Prior to commencement of any activities approved under a master permit, the Permittee must
establish a permanent security fund with the City by depositing the amount of$50,000, or such
greater amount as deemed necessary by the Council, with the City in cash, an unconditional
letter of credit, or other instrument acceptable to the City, which fund must be maintained at the
sole expense of the Permittee so long as any of the Permittee's utility or wireless facilities are
located within the public right-of-way of the City.
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B. The fund must serve as security for the full and complete performance of the terms and
conditions of this chapter and master permit, including any costs, expenses, damages, or loss the
City pays or incurs, including civil penalties,because of any failure attributable to the Permittee
to comply with the codes, ordinances, rules, regulations, or permits of the City.
C. The fund may be used to repair the public right-of-way, return it to its original condition, or to
complete a project within the right-of-way if the Permittee ceases work mid-way through
construction, or abandons its facility(ies) and appurtenances thereto.
D. Before any sums are withdrawn from the security fund, the City must give written notice to
the Permittee:
1. Describing the act, default or failure to be remedied, or the damages, costs or expenses which
the City has incurred by reason of the Permittee's act or default;
2. Providing a reasonable opportunity for the Permittee to first remedy the existing or ongoing
default or failure, if applicable;
3. Providing a reasonable opportunity for the Permittee to pay any monies due the City before
the City withdraws the amount thereof from the security fund, if applicable; and
4. That the Permittee will be given an opportunity to review the act, default or failure described
in the notice with the City or his or her designee.
E. Permittees are required to replenish the security fund within 14 days after written notice from
the City that there is a deficiency in the amount of the fund.
F. Upon Permittee's removal of all facilities from the right of way and expiration of the
agreement, permits and/or licenses, the city must refund the balance remaining in this fund,
including any accrued interest within 14 days.
5.38.210 Performance bond.
A performance bond written by a corporate surety acceptable to the City Engineer equal to at
least 150 percent of the estimated cost of removing the Permittee's facilities and restoring the
public right-of-way to their pre-construction condition must be deposited before the construction
permit is issued. Said bond is required to remain in full force until 60 days after completion of
the construction and/or improvements within the public right-of-way, and must warrant all such
restoration work for a period of two years following completion and/or termination of the
construction. Those Permittees performing annual work within the rights-of-way may provide
an annual performance bond, in an amount approved by the City Engineer, at the beginning of
each year to cover all excavations. The purpose of this bond is to guarantee the removal of
partially completed and/or nonconforming facilities and to fully restore the public right-of-way
to the pre-construction condition. The City Engineer may use the funds from the performance
bond to complete removal and fully restore the public right-of-way to its pre-construction
condition if the Permittee fails to do so.
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5.38.220 Insurance.
Unless otherwise provided in a master permit or construction permit, each Permittee must, as a
condition of the master permit and construction permit, secure and maintain the following
liability insurance policies insuring both the Permittee, its agents, representatives, employees,
contractors or subcontractors, and the City and its elected and appointed officers, officials,
agents, employees, representatives, engineers, consultants, and volunteers as co-insureds against
any claims which may arise from or in connection with the exercise of the rights,privileges, and
authority granted to the Permittee under the permit(s):
A. Comprehensive Commercial General Liability Insurance. Commercial General Liability
Insurance on an"occurrence"basis including coverage for Premises and Operations Liability,
Products and Completed Operations, Contractual Liability, Independent Contractors, Stop
Gap/Employer's Liability, Broad Form Property Damage, Explosion, Collapse and Underground
Hazards, and Personal Injury Liability. Such insurance will provide limits of not less than two
million dollars ($2,000,000)per occurrence and ten million dollars ($10,000,000) in the
aggregate. Coverage limits can be achieved with a combination of the primary and
umbrella/excess policies. Products/Completed Operations Liability Insurance will be provided
for a period of at least six years after completion and/or termination of construction. Any
deductible or self-insured retention must be disclosed and is subject to approval of the City. The
policy for the Permittee must include without limitation coverage for hazards commonly referred
to as "XCU" and contain a severability of interests provision.
B. Automobile Liability Insurance. A policy of Automobile Liability, including coverage for
Permittee's owned, non-owned, leased or hired vehicles providing a minimum limit for Bodily
Injury and Property Damage of five million dollars ($5,000,000)per combined single limit each
accident. The limit can be achieved with a combination of the primary and umbrella/excess
policies.
C. Workers Compensation Insurance. Statutory Worker's Compensation and Employers
Liability insurance as prescribed by applicable law.
D. City as an Additional Insured on Policies. The Commercial General Liability and Automobile
Liability and Umbrella/Excess Liability insurance policies required must name the City of
Anacortes as an additional insured on a primary and non-contributory basis on Forms CG 20 26
and CG 20 37 or their equivalents for a public body. Carriers furnishing insurance are required
to waive all rights of subrogation against the City. The Permittee must obtain the written
agreement on the part of each insurance company to notify the City at least forty-five (45) days
prior to cancellation or non-renewal of any such insurance, except ten(10) days' notice of
cancellation due to non-payment of premium.
E. Evidence of Insurance. With respect to each policy, Permittee must provide the City prior to
commencement of the Work, proof that it has procured the requisite insurance, including copies
of any applicable polices, declaration pages, and/or endorsements. PERMITTEE IS NOT
ENTITLED TO COMMENCE WORK AUTHORIZED UNDER ITS PERMIT(S)UNTIL THE
CITY HAS RECEIVED AND APPROVED THE CERTIFICATE OF INSURANCE.
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F. Errors and Omissions. Permittee must maintain throughout the period of the applicable permit
and for a period of six (6)years thereafter, a standard professional errors and omissions
insurance policy of a form and with an insurance company satisfactory to the City. Permittee's
insurance policies must incorporate a provision requiring giving written notice to the City at least
sixty(60) days prior to any cancellation, non-renewal or material modification of the policies.
Permittee's professional errors and omissions insurance will be in the minimum amount of
$1,000,000 including contractual liability, with all coverage retroactive to the earlier of the date
of the applicable permit or the commencement of design services in relation to the permit(s).
G. Compliance by contractors and subcontractors. Permittee is required to ensure that each of its
contractors and subcontractors complies with all requirements in this Section; provided that
Permittee must require its contractors and subcontractors to maintain commercially reasonable
limits of insurance, given the contractor's and subcontractor's scope of work. Permittee must
provide evidence of insurance of contractors and subcontractors upon request by the City.
H. In addition, each such insurance policy must contain an endorsement which provides that the
policy may not be cancelled, reduced in coverage, nor the intention not to renew be stated until
60 days after receipt by the City of a written notice to that effect. Within 30 days after receipt of
such notice by the City, and in no event later than 15 days prior to the cancellation or
nonrenewal, the Permittee must obtain and furnish to the City replacement insurance policies
meeting the requirements of this section.
5.38.230 Hold harmless/indemnity.
A. The Permittee must, to the fullest extent permitted by law, indemnify, defend and hold
harmless the City, and its elected and appointed officers, officials, agents, employees,
representatives, engineers, consultants, and volunteers as co-insureds (collectively the
"Indemnified Parties" or individually, each an"Indemnified Party"), from and against any and
all claims, liability,penalties, fines, costs, damages, losses and causes of action, arising out of or
resulting from, or alleged to arise out of, relate to, or to result from the performance or non-
performance of any construction performed at the instance of Permittee, or performance or non-
performance of any services performed at the instance of Permittee (hereinafter singularly and
collectively referred to as "Indemnity Claims"), but only to the extent directly or indirectly
caused by the negligence or willful misconduct of Permittee, its contractors, subcontractors or
supplier of any tier, anyone directly or indirectly employed by them, or anyone for whose acts
they may be liable. Permittee, at its sole expense, must promptly dispose of Indemnity Claims,
defend all lawsuits and similar proceedings filed against an Indemnified Party on the account of
Indemnity Claims, pay all awards and judgments rendered against an Indemnified Party in
connection therewith, and reimburse each Indemnified Party for all reasonable expenses incurred
by such Indemnified Party in connection with Indemnity Claims and lawsuits and arbitrations
and similar proceedings including,but not limited to, attorneys' fees, expert witness fees, court
costs, arbitration costs and all other reasonable costs (not limited to statutory costs).
B. If Indemnity Claims are caused or alleged to be caused in part by any joint or concurrent
negligent act(either active or passive) or omission by an Indemnified Party, Permittee will
indemnify, defend and hold harmless such Indemnified Party, as provided above, from such
Indemnity Claims to the extent such Indemnity Claims arise out of or result from the negligence
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or willful misconduct of Permittee or its contractors, subcontractors or suppliers of any tier, or
anyone directly or indirectly employed by them, or anyone for whose acts they may be liable, or
anyone whose acts Permittee may be responsible or liable. In no event will Permittee be
obligated to indemnify an Indemnified Party for Indemnity Claims which arise out of or result
from the sole negligence of such Indemnified Party or its agents, servants or independent
contractors who are directly responsible to such Indemnified Party, excluding Permittee.
C. In addition, the City may require that any person, public utility, or wireless carrier accepting
such a master permit or construction permit provide the City with additional indemnification,
such as an indemnification from a parent company.
D. The indemnification provided for herein does not apply to injuries to persons or damage to
property caused by or resulting from the sole negligence of the City, its agents or employees.
E. For the sole purpose of effecting the indemnification obligations herein, the Permittee,by
accepting a master permit, specifically and expressly waives any immunity that may be granted
it under any applicable Workers' Compensation Act, disability benefit acts or other employee
benefit acts.
5.38.240 Inspections.
All work performed within public right-of-way is subject to periodic inspection by the Council to
assure compliance with any conditions attached to the permit, the requirements of this chapter,
and the requirements of any applicable City code or standard.
5.38.250 Revocation of master permits and construction permits.
A. Following a notice of violation and opportunity to cure, the Council may revoke or suspend
any approval issued under this chapter for cause, in accordance with existing tariff or applicable
State law whenever:
1. The work does not proceed in accordance with the plans as approved or the conditions of
approval, is not in compliance with the requirements of this chapter, other City ordinances,
resolutions, or State law;
2. The service provider fails to provide adequate service or otherwise fails to comply with the
terms of its master permit or construction permit;
3. The service provider has made a misrepresentation of material fact in applying for such
approval;
4. The Council determines that inadequate measures are being taken to protect the public,
adjoining property,public right-of-way, or wireless telecommunications, utility or other facilities
in such public right-of-way, or that any excavation or fill endangers or will endanger the public,
adjoining property,public right-of-way, or wireless telecommunications or utility facilities in
such public right-of-way.
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B. Upon suspension or revocation of an approval under this chapter, all permit-related activities
of the public right-of-way must cease, except as authorized or directed by the Council.
5.38.260 Correction and discontinuance of a Master Permit.
A. Whenever the Council determines that any condition on any public right-of-way is in
violation of a master permit or any other provision of this chapter related thereto, or exists
without a master permit, the Council may order the correction or discontinuance of such
condition or any activity causing such condition.
B. The Council also has all powers and remedies available under State law and this chapter, to
secure the correction or discontinuance of any condition specified in this section.
C. The Council is authorized to use any or all of the following methods in ordering correction or
discontinuance of any such conditions or activities as it determines appropriate:
1. Serving of oral or written directives to Permittee or other responsible person requesting
immediate correction or discontinuance of the specified condition;
2. Service of a written notice of violation, ordering correction or discontinuance of a specific
condition or activity within thirty (30) days
3. Service of a written notice to remove an object or facility within twenty-four(24) hours and
summary removal if the object or thing is a hazard to public safety, with notice of such removal
to the owner, if known;
4. Revocation of previously granted master permit(s)where Permittee or other responsible
person has failed or refused to comply with requirements imposed by the City related to such
permits; or
5. Issuance of an order to immediately stop work until authorization is received from the City to
proceed.
D. Any utility or wireless facility, or any other object or thing which occupies any public right-
of-way without a master permit or in violation of the master permit conditions is a nuisance both
public and private.
E. All expenses incurred by the Council, including attorney's fees and legal expenses, in abating
the condition or any portion thereof constitutes a civil debt owing to the Council jointly and
severally by such persons who have been given notice or who own the object or thing or placed it
in the public right-of-way, which debt is collectible in the same manner as any other civil debt.
5.38.270 Correction and discontinuance of a Construction Permit.
A. Whenever the City Engineer determines that any condition on any public right-of-way is in
violation of a construction permit or any other provision of this chapter related thereto, or exists
without a construction permit, the City Engineer may order the correction or discontinuance of
such condition or any activity causing such condition.
B. The City Engineer also has all powers and remedies available under State law and this
chapter, to secure the correction or discontinuance of any condition specified in this section.
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C. The City Engineer is authorized to use any or all of the following methods in ordering
correction or discontinuance of any such conditions or activities as it determines appropriate:
1. Serving of oral or written directives to Permittee or other responsible person requesting
immediate correction or discontinuance of the specified condition;
2. Service of a written notice of violation, ordering correction or discontinuance of a specific
condition or activity within thirty(30) days;
3. Service of a written notice to remove an object or facility within twenty-four(24) hours and
summary removal if the object or thing is a hazard to public safety, with notice of such removal
to the owner, if known;
4. Revocation of previously granted construction permit(s)where Permittee or other responsible
person has failed or refused to comply with requirements imposed related to such permits; or
5. Issuance of an order to immediately stop work until authorization is received from the City to
proceed.
D. Any utility or wireless facility, or any other object or thing which occupies any public right-
of-way without a construction permit or in violation of construction permit conditions is a
nuisance both public and private.
E. All expenses incurred by the City Engineer, including attorney's fees and legal expenses, in
abating the condition or any portion thereof constitutes a civil debt owing to the City Engineer
jointly and severally by such persons who have been given notice or who own the object or thing
or placed it in the public right-of-way, which debt is collectible in the same manner as any other
civil debt.
5.38.280 Removal.
Any person accepting a master permit or construction permit pursuant to this chapter for the
installation of any utility or wireless carriers must remove such facilities when they are no longer
required, or if the master or construction permit has been revoked as provided in this chapter.
Such removal must occur within 90 days of receiving notice from the Council ordering such
removal. Unless otherwise approved by the City in writing, no person is permitted to abandon
utility or wireless facilities within a public right-of-way, and then only under such conditions as
may be prescribed by the Council.
5.38.290 Displacement for public use.
A. A wireless carrier, public utility, or other person under order of the Council must,upon a
minimum 60 days' written notice, move or adjust its underground or overhead facilities located
within the public right-of-way which interfere with any public improvement authorized or
ordered by the City. The relocation must be done at the expense of the telecommunications
carrier, public utility, or other person, subject to the exceptions in RCW 35.99.060(d) and
existing tariffs, which may require the City to pay for displacement in certain circumstances.
The actual number of days must be specified by the Council in the Council's order.
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B. When a public improvement is required to accommodate or allow development or other
activity by a party other than the City, then a wireless telecommunications carrier,public utility
or other person which moves or adjusts its facilities is entitled to recover its associated costs and
expenses from such other party.
C. Such persons must indemnify, hold harmless, and pay the costs of defending the City against
claims or liabilities for delays on public improvement projects caused by their failure to relocate
their facilities in a timely manner unless caused by circumstances beyond their control.
5.38.300 Additional ducts or conduits.
Any person constructing underground ducts or conduits pursuant to this chapter must, upon
request, provide the City with additional ducts for its use. Such additional ducts or conduits must
be of a size and configuration specified by the City and be dedicated to the City. The City has
the right to use the ducts and conduits for any purpose, including but not limited to leasing them
to other entities, subject to the following provisions.
A. The City must enter into a contract with the service provider consistent with RCW 80.36.150,
and the incremental costs of adding the ducts and conduits under this section will be borne by the
City. If the City makes the additional duct or conduit and related access structures available to
any other entity for the purposes of providing wireless services for hire, sale, or resale to the
general public, the rates to be charged, as set forth in the contract with the entity that constructed
the conduit or duct, must recover at least the fully allocated costs of the service provider. The
service provider must state both contract rates in the contract.
B. Except as otherwise agreed by the City and the service provider, the City agrees that he
requested additional duct or conduit space and related access structures will not be used by the
City to provide wireless service for hire, sale, or resale to the general public.
C. The City will not require that the additional duct or conduit space be connected to the access
structures and vaults of the service provider.
D. The value of the additional duct or conduit requested by the City will not be considered a
public works construction contract.
E. This section does not apply to the provision of an institutional network by a cable television
provider under federal law.
5.38.310 Joint use of poles.
A. All wireless facilities permitted pursuant to the terms of this chapter or otherwise located
within the City of Anacortes must be made available for use by the owner or initial user thereof,
together with as many other wireless service providers as can be technically collocated thereon.
B. Nothing contained within this chapter prevents the owner of such poles from charging a
reasonable pole attachment fee that does not exceed the fair market value for the space occupied
by said collocated facilities; except that if the owner is the City, it may not charge more than the
reasonable approximation of its reasonable costs.
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5.38.320 City use for noncommercial government communication.
Any person erecting or maintaining poles within public right-of-way allows the City the right,
free of charge, to attach, maintain and operate traffic and traffic safety signals, as noncommercial
governmental communication and signals, wires and/or fixtures within available surplus space on
the poles erected and so maintained.
5.38.330 Appearance.
Any person erecting or maintaining poles under authority of this chapter must ensure that its
poles are maintained in a manner that does not significantly distract from the visual appearance
of the pole. Such maintenance may include cleaning, replacement, painting or repainting of the
pole. Wooden utility poles are not required to be painted.
5.38.340 Moving of building(s) and/or equipment.
Any person maintaining overhead wireless or utility facilities in public right-of-way must, upon
seven days' notice from the Council, disconnect or move said facilities to allow for the moving
of building(s) and/or equipment across or along any such public right-of-way; provided,
however, that the advance notice may be reduced to 24 hours if the facilities are below the
minimum clearance set by law or regulation or in the case of an emergency. The cost of moving
such facilities must be in accordance with existing tariffs or applicable State law, and borne as
follows: (1)by the owner of the facilities if: (a)the wires, cables or appurtenances are below the
minimum vertical clearance required by State law, City ordinance, or rules of the Council,
(b) above the surface of the public right-of-way, or(c)no adjustment would be necessary if the
minimum clearance had been maintained; or(2)by the person desiring to move the building(s)
and/or equipment under all other circumstances.
5.38.350 Billings and collections.
The Council,jointly with the Finance Director, may establish procedures pertaining to the billing
and collection of fees and charges adopted pursuant to this chapter.
5.38.360 Liability.
The Council and other employees charged with the enforcement and administration of this
chapter, acting for the City in good faith and without malice in the discharge of their duties, do
not thereby render themselves liable personally for damages that may accrue to persons or
property as a result of an act required or by reason of an act or omission in the discharge of such
duties.
5.28.370 Tree trimming.
Any wireless carrier or public utility required by State statute or regulation to trim or remove
trees which may interfere with their facilities must ensure that their tree trimming activities
protect the appearance, integrity and health of the trees to the extent reasonably possible. The
wireless carrier or public utility must prepare and maintain a tree trimming schedule to ensure
compliance with this provision and to avoid exigent circumstances where tree cutting, trimming
or removal is necessary to protect the public safety or continuity of service without the regard for
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the appearance, integrity or health of the trees that planned maintenance would otherwise allow.
The wireless carrier or public utility must submit the schedule to the City Engineer. Except
where exigent circumstances do not permit, the wireless carrier or public utility must give the
owner the property on which the trees are located at least five days' advance written notice of the
tree trimming. Tree trimming on any City streets must comply with the standards developed by
the City's street tree advisory committee.
5.38.380 Underground facilities.
A. The undergrounding requirements of this section apply where the wireless
telecommunications carrier,public utility, or other person's facilities consist of cable or any
other facilities which are capable of being placed underground. This section does not apply to
antennas or other facilities, which are required to remain above-ground, in order to be functional.
B. In any area of the City in which there are no aerial facilities other than antennas or other
facilities required to remain above-ground in order to be functional or otherwise for the provision
of wireless services, or in any public right-of-way in which all wireless telecommunications
wires and cables, and electric power wires, cables, 15,000 volts and lower, and other aerial
facilities capable of undergrounding have been placed underground, no person is permitted to
erect poles or to run or suspend wires, cables or other facilities thereon, but must lay such wires,
cables or other facilities underground in the manner required by the City pursuant to this section,
and Chapters15.32 and 19.68 AMC, if applicable.
C. If utility or street improvement projects are anticipated within the same public right-of-way
within 12 months of a Permittee's proposed construction, the City may permit interim
installation of above-ground facilities. In the event that the City does not require the
undergrounding of such facilities at the time of initial installation, the City may, at any time in
the future, require the conversion of such above-ground and/or aerial facilities to underground
installation at the carrier, utility, or other person's expense, with exceptions as set forth in RCW
35.99.060(d).
D. The City must allow new electric power lines and cables operating above 15,000 volts to be
constructed above-ground when location within the City right-of-way is approved by the City
Engineer.
E. Whenever a service provider or public utility undertakes an undergrounding project in any
area of the City, it must underground their above-ground facilities in the manner specified by the
City, concurrently and together with the other affected carriers, utilities, and other persons in the
affected area. The location of any such relocated and underground facilities must be approved
by the Council. Such service provider must underground their facilities at no cost to the City,
except as provided in RCW 35.99.060(d).
F. In the event that the City undertakes any public improvement which would otherwise require,
in the discretion of the Council, the relocation of carrier, utility, or other person's above-ground
facilities, the Council may,by written notice to such persons, direct that any such facilities be
converted to underground facilities. Any such conversion must be done subject to and in
accordance with applicable schedules and tariffs on file with the WUTC or such other regulatory
agency having jurisdiction.
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5.38.390 Joint trenching.
Recognizing that trenching and excavation within public right-of-way can significantly degrade
the quality and longevity of street surfacing and seriously inconvenience the public, all
Permittees must afford other wireless carriers,public utilities, and the City an opportunity to
share in the use of their excavations and trenches within public right-of-way. In the event that
the City, a wireless carrier, or a public utility desires to share in a Permittee's excavation, it must
provide a written request to do so. Joint use of excavations are subject to the following
conditions:
A. Such joint use may not unreasonably delay the work of the party causing the excavation to be
made;
B. Any party desiring to share in an excavation may be required to pay the fair and reasonable
pro rata cost of said excavation. Such joint use must be arranged and accomplished on terms and
conditions satisfactory to both parties; and
C. Either party may deny such request for safety reasons.
5.38.400 Notice of tariff changes.
A Permittee must, when making application for any changes in tariffs affecting the provisions of
this chapter or any approval issued hereunder, notify the City in writing of the application and
provide the Council with a copy of the submitted application. The Permittees must further
provide the Council with a copy of any actual approved tariff change affecting any approval
issued pursuant to this chapter.
5.38.410 One-call locator.
All carriers, utilities, Permittees, and other persons must, before commencing any construction
within a public right-of-way, comply with all of the requirements set forth in Chapter 19.122
RCW, the one-call locator service.
5.38.420 Violation—Penalties.
A. No person may violate or fail to comply with this chapter.
B. A violation of or failure to comply with any provision of this chapter is a civil infraction
subject to the enforcement provisions of Chapter 1.24 AMC.
C. A violation or failure to comply with any provision of this chapter, including any order of the
Council authorized by this chapter, is, in addition to any other remedies, grounds for the Council
to revoke the underlying permit issued to the Permittee, if any, and grounds for the denial of any
additional permits under this chapter until the Permittee is in full compliance with the provisions
of this chapter.
D. Violation of a stop-work order issued pursuant to AMC 5.38.260 or 270 constitutes a gross
misdemeanor,punishable by not more than 90 days in jail and a fine not exceeding $1,000, or
both.
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Section 3. Severability.
The provisions of this ordinance are separate and severable. If a court of competent
jurisdiction, all appeals having been exhausted or all appeal periods having run, holds any
provision of this ordinance invalid or unenforceable as to any person or circumstance, the
offending provision, if feasible, is modified to be within the limits of enforceability or validity. If
the offending provision cannot be modified, it is null and void with respect to the particular person
or circumstance. All other provisions of this ordinance in all other respects, and the offending
provision with respect to all other persons and all other circumstances, remain valid and
enforceable.
Section 4. Corrections.
Upon approval of the Mayor and the City Attorney, the Clerk is authorized to make
necessary corrections to this ordinance, including the correction of(1) clerical errors,
(2) references to other local, state or federal laws, codes, rules or regulations, and (3) ordinance
numbering and section and subsection numbering.
Section 5. Ratification.
All actions taken prior to the effective date of this ordinance in furtherance of and not
inconsistent with the provisions of this ordinance are ratified and confirmed in all respects.
Section 6. Effective Date.
This ordinance will take effect five days after its passage, approval, and publication.
Passed by the City Council of the City of Anacortes, Washington at a regular meeting
thereof, this 25th day of February, 2019.
Laurie G�Mayor
Approved as to form,
Darcy Swetnair\., City Attorney
Attest:
Ste e Hoglun , Clerk
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