CITY OF FREDERICKSBURG, VIRGINIA CITY COUNCIL
City Hall, 715 Princess Anne Street, Council Chambers Fredericksburg, Virginia 22401
Tuesday, October 10, 2017 5:30 P.M. Second Floor, Room 218
CALL TO ORDER
TOPICS
• Visitors Center/Executive Plaza
• Legislative Agenda
• Dominion Power Easement Update
ADJOURNMENT
HON. MARY KATHERINE GREENLAW, MAYOR HON. WILLIAM C. WITHERS, JR., VICE -MAYOR , WARD TWO HON. KERRY P. DEVINE, AT-LARGE HON. MATTHEW J. KELLY, AT-LARGE HON. BRADFORD C. ELLIS, WARD ONE HON. TIMOTHY P. DUFFY, PH.D., WARD THREE HON. CHARLIE L. FRYE, JR., WARD FOUR
CITY OF FREDERICKSBURG, VIRGINIA HON. MARY KATHERINE GREENLAW, MAYOR CITY COUNCIL HON. WILLIAM C. WITHERS, JR., VICE -MAYOR, WARD TWO HON. KERRY P. DEVINE, AT-LARGE
HON. MATTHEW J. KELLY, AT-LARGE HON. BRADFORD C. ELLIS, WARD ONE HON. TIMOTHY P. DUFFY, PH.D., WARD THREE Council Chambers, 715 Princess Anne Street HON. CHARLIE L. FRYE, JR., WARD FOUR Fredericksburg, Virginia 22401
October 10, 2017 7:30 p.m. Vice-Mayor William C. Withers, Presiding 1. Call to Order
2. Invocation Councilor Bradford C. Ellis
3. Pledge of Allegiance Vice-Mayor William C. Withers
4. Presentation
5. Public Hearings (5 minute rule applies to all public comment) A. Ordinance 17-__, First Read, Amending the Unified Development Ordinance for Land Within the Historic Fredericksburg District, to Remove the 50% Reduction of Residential Density when 25% or More of the Site is in the 100 Year Floodplain; and to Remove the 25% Reduction of Residential Density for Sites Containing 15% to 24% Floodplain
6. Comments from the Public City Council provides this opportunity each regular meeting for comments from citizens who have signed up to speak before the start of the meeting. To be fair to everyone, please observe the five-minute time limit and yield the floor when the Clerk of Council indicates that your time has expired. Decorum in the Council Chambers will be maintained. Comments that are not relevant to City business and behavior that is disruptive, such as applause, are inappropriate and out of order.
7. Council Agenda A. American Disabilities Act – Charles and William Street – Councilor Frye
8. Consent Agenda A. Ordinance 17-24, Second Read, Adding Ficklen Island to the Description of the City's Riparian and Watershed Property; Expressly Prohibiting Hunting and Campfires on the Island
B. Ordinance 17-25, Second Read, Prohibiting Securing Bicycles, Benches, Trash Receptacles, Signs, and Other Items to Trees, Street Lights, Street Signs, and Other Public Facilities in the Public Rights-of-Way
C. Resolution 17-__, Authorizing the City Manager to Submit an Application for the Riverside Manor Connector and to Execute a Related Funding Agreement
9. Minutes A. Regular Session – September 26, 2017
10. Board and Commissions A. Economic Development Authority – Stacy Horne, Lynn Keenan, Thomas Liles, Will Mackintosh, Berkley Mitchell, Rene Rodriguez
Regular Meeting Agenda October 10, 2017 Page 2
11. City Manager’s Agenda A. Ordinance 17-__, First Read, Amending the Unified Development Ordinance to Exempt Wireless Communication Infrastructure, Placed in the Public Rights of Way, from Zoning Regulation; and to Amend the Regulations Governing Wireless Communication Infrastructure on Private Property
B. Ordinance 17-__, First Read, Granting a Ten-Year (with Three Options for Five Year Renewals Upon Mutual Agreement) Non-Exclusive Franchise to Mobilitie, LLC for Wireless Infrastructure in the City’s Public Rights-of-Way
C. Ordinance 17-__, First Read, Amending the City and Public Utility Review Committee Review Authority and Procedures for the Location of Infrastructure in the Public Rights of Way in the Historic Fredericksburg District
D. Ordinance 17-__, First Read, Amending Chapter 66 of the City Code by Adopting an Ordinance Regulating Utility and Wireless Facilities, Poles, Lines and Structures in the Public Rights-of-Way
E. City Manager’s Update
F. Calendars
12. Adjournment ITEM #5A
MEMORANDUM
TO: Tim Baroody, City Manager FROM: Mike Craig, Zoning Administrator DATE: October 3, 2017 (for the October 10, 2017 meeting) RE: Proposed Unified Development Ordinance Text Amendment– Historic District Floodplain Density
ISSUE Should the City Council approve a text amendment to the Unified Development Ordinance to remove the 50% reduction of residential density when 25% or more of a site is in the 100 year floodplain and the 25% reduction of residential density for sites containing 15% to 24% floodplain, within certain areas of the Historic Fredericksburg Overlay District outside of the regulatory floodway?
RECOMMENDATION Approve a text amendment to the UDO to remove the 50% reduction of residential density when 25% or more of a site is in the 100 year floodplain and the 25% reduction of residential density for sites containing 15% to 24% floodplain, within certain areas of the Historic Fredericksburg Overlay District outside of the regulatory floodway.
PLANNING COMMISSION PUBLIC HEARING AND RECOMMENDATION The Planning Commission held a public hearing on this item on September 13 at which no one spoke. After discussion, the Planning Commission voted 3 to 2 to recommend approval of the text amendment to the City Council with one member absent and one member abstaining.
PROPOSED ORDINANCE AMENDMENT § 72-51.1(1)(b) reduces the maximum residential density permitted on unbuildable lands, when the sum of such features comprises 15% to 24% of the site, by 75%, and when the sum of such features comprises more than 25% of the site, by 50%. Unbuildable lands are defined as: [1] One-hundred-year frequency floodplains; [2] Slopes in excess of 25%; [3] Quarries or landfills, abandoned mines, or excavation areas; and [4] Soils determined to be unbuildable for residential and street development;
The proposed text amendment would add a subsection c to this regulation that states: (c) “The area of a site within the Historic Fredericksburg District that is in the one-hundred-year frequency floodplain, but is not in the floodway or otherwise unbuildable, is exempt from the residential density reductions in (a)(1) and (b).”
Within the Historic Fredericksburg Distirct (HFD), 159 acres are within the 100 year floodplain. The 100 year floodplain consists of the two elements, the floodway (shown in turqoise on the map on page 2) and the floodfringe (shown in pink on the same map). The designated floodfringe
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(shaded pink) consists of 84 acres. Out of the 84 acres, only 49 acres are privately held. This text amendment would restore the right to 83 total residential units on that land as shown on the following map1.
16 of the 83 units would be on vacant properties. The remaining 67 units would be restored on properties with existing structures that are currently in use. The restored units cluster in two general areas: the historic industrial area south of the train station around Frederick and Charles Street and the historic Caroline Street corridor.
Half (eight) of the rights restored on vacant parcels are on parcels centered on the intersection of Frederick and Charles Streets that are either vacant or contain historic industrial structures in need of renovation and reuse. Six of those units are on the parcels located at 306-312 Frederick Street, which is the subject of a special exception application that seeks restoration of the units in order to faciliate the adaptive reuse of the historic tomato cannery at 306 Frederick Street. The rights to seven additional units would be restored in the historic industrial structures in that neighborhood.
1 Number derived from GIS information and existing by-right density levels using the following assumptions. Parcels containing single family homes in the Commercial Downtown were calculated based on the single family density of 12 units per acre. All other parcels used the multi-family density of 18 units per acre. The hotel parcel (98 existing rooms), and the Hughes Adult Home (110 beds) were excluded from the calculation.
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The map also shows the restoration of units on parcels with occupied structures that are in active use. Seven of the units would be restored on parcels with historic industrial structures at the Frederick and Charles Street intersection. The majority of the restored units (37) would be within existing historic buildings along the Caroline Street corridor.
New construction within the floodfringe is subject to the construction standards in the City’s Floodplain Overlay District (FOD) as well as the Virginia Statewide Building Code (VSBC). These codes require that new residential construction be elevated 18 inches above the regulatory base flood elevation Aerial view of the intersection of Frederick and Charles Streets. established by the Federal Emergency Management Agency (FEMA). Any substantial improvement of an existing historic building will be required to conform to the City’s modern floodplain rules once more than half the assessed value of the structure is spent. Additionally, any modification of these buildings or new construction is subject to review by the Architectural Review Board and requires a Certificate of Appropriateness. This will ensure that the form of the restored units fits into the existing historic fabric.
20 parcels in the floodfringe and the HFD currently have non-conforming density levels. This ordinance change will make 8 of these parcels conforming. While the remaining 12 will not be made conforming, the removal of the density restriction will bring more of their historic use into compliance with modern zoning laws. Prior to modern zoning, the character of the buildings, streetscape, and urban fabric in the City’s historic core created higher general density levels than are allowed today. Overall general density levels in the core should be reviewed during the Area 7 small area planning process.
The proposed UDOTA would make the 2 units at 801 Caroline Street legally conforming. There are 6 units at 1017 Caroline Street built prior to zoning. The proposed UDOTA would make these uses more conforming but still would not normalize the historic density level on this property.
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BACKGROUND - § 72-51.1(A) On January 1, 1984, the City officially annexed 4.63 square miles of land from Spotsylvania County. The land was largely undeveloped at the time. Subsequently, the City created a new zoning ordinance, which was adopted on April 24, 1984. The revised ordinance fully repealed and replaced the previous zoning ordinance. The previous zoning ordinance contained 7 zoning districts and the 1984 update transformed those into 13 new zoning districts2. The 1984 update also added new definitions and general regulations amongst other things. One of the new general regulations was the predecessor to § 72-51.1(A). Under the heading “Density and Open Space” the regulation restricted the amount of density containing certain “unbuildable lands” including “one- hundred-year frequency floodplains” using the same language that is in today’s zoning ordinance3.
City Council records (minutes, documents, and ordinances) associated with the adoption of the 1984 zoning ordinance do not contain any discussion of the new provision. However, as of January 1 of that year the City had nearly doubled in size and one general purpose of the subsequent 1984 zoning ordinance was to set up parameters City of Fredericksburg Annexations, the western area colored for the newly annexed area of the City. The cyan was annexed on January 1, 1984. purpose of the R-4 Residential District (created with the 1984 zoning ordinance) was in part:
“… The District is applicable to undeveloped areas including the annexation area, of adequate size and physiographic characteristic for suburban scale residential subdivisions of either a conventional or cluster design.”
The zoning districts created in 1984 were applied throughout the City. The regulations developed in 1984 did not always fit with the established urban fabric in the older neighborhoods. For example, The R-4 Residential District’s use standards limited permitted uses to single family detached homes and contained bulk regulations of a maximum of 4 units per acre, a minimum lot width of 70 feet, and a minimum lot square footage of 8,400 square feet. In 1984, the R-4 Residential District was applied throughout Planning Area 7 - Downtown. Within Area 7, land zoned R-4 currently contains 823 single family homes, 67 du, tri or quad-plexes and 13 multi-
2 The previous full zoning ordinance revision occurred in 1972. The zoning districts in the 1972 zoning ordinance were R-1 through R-3, C-1 through C-2, I, and Residential Mobile Home. The zoning districts created with the 1984 rewrite are still in use today. They are R-2 through R-30, CT, CD, CSC, CH, I1, I2 and RMH. All land within the City was then rezoned into the new zoning district categories. 3 City of Fredericksburg Zoning & Subdivision Ordinances. Chapter 17, Division 2, § 2-2.6.3 “Density and Open Space.” Adopted April 25, 1984.
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family buildings containing up to 24 units. Density in those areas is generally between 6 and 16 units per acre by block. Non-vacant lots average 7,319 square feet4.
Similarly, a reduction in floodplain density has different affects in the area annexed by the City in 1984 than in the historic core. The 1984 annexation area included undeveloped land containing steep slopes (another category of “unbuildable lands” subject to the density reduction) and 100 year floodplains adjacent to roughly 21,000 linear feet of the Rappahannock River. The 1984 annexation area also included undeveloped land containing steep slopes and 100 year floodplains adjacent to approximately 9,500 linear feet of Hazel Run. This regulation, applied over an area that in 1984 had R-1 zoning, effectively preserved much of those sensitive lands5.
Conversely, the City’s downtown core contains 100 year floodplains, outside of the floodway, that are part of its historical fabric. This area is heavily developed. 80% of the area is either rooftop or parking lot and is impervious. The land is zoned to permit high density mixed and multiple uses and is envisioned to be an intensively used area. The Land Use Planning Area 7 and the Urban Riverfront Corridor sections of the Comprehensive Plan states that the west side of Sophia
4 City of Fredericksburg Geographic Information Systems. 5 The 1984 zoning ordinance predated the Chesapeake Bay Act, which requires a 100 foot Resource Protection Area around streams and rivers.
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Street should constitute an urban edge (Comprehensive Plan pages 158 and 117 respectively). This area is labeled as Commercial-Downtown on the Future Land Use map, which calls for a relatively dense urban setting (page 116).
In 2013, the City adopted the Unified Development Ordinance (UDO), which recodified the 1984 zoning ordinance. The adoption of the UDO was a further step towards rectifying the 1984 zoning ordinance with the unique and historic urban fabric that makes up the most interesting places in the City. However, the language in § 72-51.1A(1) is identical to the Density and Open Space General Regulation adopted on April 25, 1984. As a result, since 2010 there have been three applications for special exceptions either related to density or directly from § 72-51.1(b) within the Historic Overlay District:
1. Hanover One requested a special exception from the pre-UDO ordinance to increase the maximum residential density from 24 units per acre by-right to 40 units per acre at the corner of Hanover and Sophia Streets as part of a five story Mixed Use Project. The exception was approved on August 27, 2013 2. AGV Properties, LLC requested a special exception from § 72-51.1(1)(b) to develop four single family homes at 221-231 Charles St. The exception was approved on May 27, 2014. 3. Timbernest, LTD requested a special exception from § 72-51.1(1)(b) to redevelop 13 existing units at 512-521 Sophia Street. The exception was approved on September 27, 2016. Timbernest, LTD has applied for an amendment to the special exception to change a large upperstory multi-family unit into three multi-family units (the Planning Commission recommended approval of the exception at their August 9 meeting and the item will be before City Council on September 12).
In addition, a pre-application Technical Review Committee meeting was held with AGV Properties, LLC on April 13, 2017 to discuss the renovation and conversion of the historic coffee warehouse at 306 Frederick Street into a mixed use project to include retail space, townhouses and apartments. The project is within the 100 year floodplain (floodfringe) and would include a request to use the full by-right density without the reduction imposed by § 72-51.1(b).
Approval of repeated requests for Special Exceptions are one indication that a zoning ordinance may not be realistic or appropriate. The density special exceptions requested within the Downtown core of the City have all been supported in part because the City envisions the Downtown as being the center of City life and values the restoration, renovation, and redevelopment of property within the historic core. Any new development is reviewed by the Architectural Review Board to ensure compatability with the existing core. In addition, requiring a lower density in the City’s core would create a development pattern out of character and inconsistent with the existing historic pattern of development.
FLOODPLAIN CONSTRUCTION REGULATIONS § 72-51.1(A) was adopted under the heading “Density and Open Space”. The timing and circumstances surrounding adoption of the regulation indicate that its purpose is to limit the new development of intact 100 year floodplains in emerging areas of the City. § 72-51.1(A) meets the goals of an environmental quality regulation but not a flood control or public safety ordinance. The regulation has effectively preserved much environmentally sensitive land in the western portion of the City, especially in tandem with the City’s Chesapeake Bay Preservation Ordinance
Page 7 of 8 after it was separately adopted in 1989. Neither the City’s floodplain rules nor § 72-51.1(A) restrict the volume of construction in the floodfringe areas of the floodplain.
Fredericksburg has two ordinances governing construction in the floodplain: the Floodplain Overlay District and the Virginia Statewide Building Code (VSBC). These ordinances have their own history, which predates the 1984 zoning ordinance. The federal government passed the National Flood Insurance Act in 1968 and the Flood Disaster Protection Act in 1973. These acts created the National Flood Insurance Program, which were intended to “be used by local and regional planners to further promote sound land use and floodplain development.” The program contained minimum floodplain management requirements for program participation, and provided flood mapping (Flood Insurance Rate Maps or FIRMs) for those participating jurisdictions. Fredericksburg obtained a Flood Insurance Study through this program in January of 1979. The City subsequently adopted the Floodplain Overlay District on June 12, 1979. The Floodplain Overlay District contains regulations, which at a minimum conform to the requirements of the National Flood Insurance Program (NFIP). The City’s Flood Insurance Study and FIRMs were updated in 2007.
The purpose of the floodplain review process is to mitigate risk for that property owners in the floodplain and to ensure that new development and redevelopment comply with all measures for the City to participate in the NFIP. The Flood Insurance Study and corresponding FIRMs identify potential flood hazards and establish floodway areas and flood fringe areas. Public Notice Advertisement Floodway areas are the channel areas that convey a flood. Water not only Free Lance Star inundates this area but moves at a high velocity and carries debris caught in June 5, 1979 the floodwaters. The flood fringe areas are prone to inundation during a severe flood. In Fredericksburg’s historic core, the floodway is generally east of Sophia Street. In the Mill District area, the floodway is generally east of Caroline Street. The remainder of the 100 year floodplain is designated as flood fringe.
No development may occur in a floodway without extensive engineering analysis to determine that there is no increase in flood elevations. Prior to any development in the floodway, an analysis must be completed ensuring that it will not result in any increase in flood levels. If the analysis shows that there would be an increase, then the City would have to approve of the development as well as apply to FEMA and obtain approval to revise the FIRMs.
Construction within the floodfringe must meet the standards of the FOD and VSBC. These two sets of regulations require that habitable residential space be elevated 18 inches above the established base flood elevation. Similarly, any commercial construction shall be floodproofed to the base flood elevation.
FLOODING AND FLOOD SAFETY PROCEDURES FEMA flood models are based on two types of flood events: coastal and riverine. The City of Fredericksburg is riverine. Riverine areas are not at major risk of flooding due to coastal storm surges, sea level rise, or land subsidence. Fredericksburg generally floods due to sustained rains
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upstream of the City combined with locally concentrated rainfall events. The City’s 2007 Flood Insurance Study is attached to this memo for your use. A history of flooding in the City of Fredericksburg is contained on page 4 through 8 of the study. The Virginiana Room at the Central Rappahnnock Regional Library also contains an archive with newspaper accounts of major floods within the City dating back to 1889. These historical records indicate that impacts from flooding are most substantial within the designated floodway (east of Sophia Street adjacent to the Downtown and east of Caroline Street in the Mill District) and in Falmouth in south Stafford.
Floodwaters affecting Fredericksburg generally come from upstream. As such, the National Weather Service is able to forecast a river crest in the City hours in advance of the flood event. Once a crest is forecast, the Fire Department immediately posts notice on the City’s website and social media outlets. The notice also is sent out through Fred Alert. These notices are geotargeted through the City’s GIS and reverse 911 systems. Finally, the Fire Department will reach out to media outlets and conduct door to door notifications as necessary.
Public safety responses to flooding are most problematic in the designated floodway. Floodwaters within the floodway are deep and fast moving. Density adjustment in the designated floodway is not included in this ordinance amendment.
CONCLUSION § 72-51.1(1)(b) “Unbuildable Lands” is an effective tool at preserving environmentally sensitive areas in the western portions of the City. The City’s historic core, however, is already developed and is envisioned by the City to be an urban node. The proposed text amendment would reduce the regulatory barriers to redevelopment within the City’s Downtown core consistent with the historic urban pattern. The proposed text amendment does not affect flood control or flood safety regulations and does not impact the volume of buildings that can be built in the floodplain. The text amendment should be approved.
ATTACHMENTS 1. Draft Ordinance. 2. Draft Planning Commission minutes from the September 13 meeting. MOTION: [date] Regular Meeting SECOND: Ordinance No. 17-__
RE: Amending the Unified Development Ordinance for Land Within the Historic Fredericksburg District, to Remove the 50% Reduction of Residential Density when 25% or More of the Site is in the 100 Year Floodplain; and to Remove the 25% Reduction of Residential Density for Sites Containing 15% to 24% Floodplain
ACTION: APPROVED; Ayes: 0; Nays: 0
FIRST READ:______SECOND READ:______
It is hereby ordained by the Fredericksburg City Council that City Code Chapter 72, “Unified Development Ordinance,” is amended as follows.
I. Introduction.
The purpose of this amendment is to permit and encourage residential redevelopment in the Historic Fredericksburg District by removing the reductions in maximum residential density that would otherwise apply in the 100-year floodplain. City Code §72-51.1(1)(a) reduces the maximum residential density permitted on “unbuildable lands,” which are described as that area of a site containing any or all of the following features, when the sum of such features comprises 25% or more of the site: (1) one-hundred-year frequency floodplains, (2) slopes in excess of 25%, (3) quarries or landfills, abandoned mines, or excavation areas, and (4) soils determined to be unbuildable for residential and street development, by 50%.
In addition, City Code §72-51.1(1) (b) reduces the maximum residential density permitted on unbuildable lands, when the sum of such features comprises 15% to 24% of the site, by 25%.
The area within the Historic Fredericksburg District contains land located in the 100-year floodplain, but it is also an area where dense residential development follows the historic pattern of City development, and where the City Council wishes to encourage residential redevelopment.
The safety of residential construction in the floodplain is addressed through the Virginia Uniform Statewide Building Code. Floodplain regulations require inhabited levels of new construction to be elevated above the floodplain, among other safety requirements. Residential redevelopment that conforms to modern safety regulations is a desired outcome of these proposed amendments.
This amendment is not intended to remove the residential density reductions that apply to land in the floodway, or on land that is otherwise unbuildable.
The City Council adopted a resolution to initiate this text amendment at its meeting on August 8, 2017. The Planning Commission held its public hearing on the amendment on ______, after [date] Ordinance 17-__ Page 2
which it voted to recommend the amendment to the City Council. The City Council held its public hearing on this amendment on ______.
In adopting this ordinance, City Council has considered the applicable factors in Virginia Code § 15.2-2284. The City Council has determined that public necessity, convenience, general welfare and good zoning practice favor the requested rezoning.
II. City Code Amendment.
City Code Chapter 72, “Unified Development Ordinance,” Article 72-5, “Development Standards,” Section 72-51.1, “Density requirements,” is amended as follows:
Sec. 72-51.1 Density requirements.
A. Density requirements.
(1) Unbuildable lands.
(a) Fifty percent of the allowable maximum density shall be permitted and calculated for that area of a site containing any or all of the following features, when the sum of such features comprises 25% or more of such site:
[1] One-hundred-year frequency floodplains; [2] Slopes in excess of 25%; [3] Quarries or landfills, abandoned mines, or excavation areas; and [4] Soils determined to be unbuildable for residential and street development.
(b) Seventy-five percent of the allowable maximum density shall be permitted and calculated for that area of a site containing any or all of the features set forth in § 72-51.1A(1) above when the sum of such features comprises 15% to 24% of such site.
(c) The area of a site within the Historic Fredericksburg District that is in the one-hundred-year frequency floodplain, but is not in the floodway or otherwise unbuildable, is exempt from the residential density reductions in (a)(1) and (b).
[The remainder of this section is not amended.]
SEC. III. Effective Date.
This ordinance is effective immediately.
Votes: Ayes: Nays: Absent from Vote: Absent from Meeting: [date] Ordinance 17-__ Page 3
Approved as to form:
______Kathleen Dooley, City Attorney ***************
Clerk’s Certificate I, the undersigned, certify that I am Clerk of Council of the City of Fredericksburg, Virginia, and that the foregoing is a true copy of Ordinance No. 17- duly adopted at a meeting of the City Council meeting held Date, 2017 at which a quorum was present and voted.
______Tonya B. Lacey, CMC Clerk of Council
PLANNING COMMISSION MINUTES September 13, 2017 7:30 p.m. City of Fredericksburg 715 Princess Anne Street Council Chambers
You may view and listen to the meeting in its entirety by going to the Planning Commission page on the City’s website: fredericksburgva.gov
MEMBERS CITY STAFF
Jim Pates – Chair Chuck Johnston, Director of Planning Roy Gratz - Vice-Chair Mike Craig, Zoning Administrator Jim Beavers, Secretary Susanna Finn, Comm. Dev. Planner Kenneth Gantt, Absent John Saunders, Sr. Environ. Planner Tom O’Toole Chris Hornung Steve Slominski
1. CALL TO ORDER
Mr. Pates called the September 13, 2017, Planning Commission meeting to order at 7:30 p.m. He explained the meeting procedures for the public, as well as expected decorum during public comment.
2. PLEDGE OF ALLEGIANCE
3. APPROVAL OF MINUTES
June 28, 2017 – Work Session – Approved/Adopted July 26, 2017 – Work Session – Approved/Adopted August 9, 2017 – Regular Meeting – Approved/Adopted
4. DECLARATION OF CONFLICT OF INTEREST
None 1
PUBLIC HEARING ITEMS
5. UDOTA2017-07 - The City of Fredericksburg proposes to amend Unified Development Ordinance § 72-51.1.A Density Requirements within the portion of the 100 year floodplain within the City’s Old and Historic Fredericksburg Overlay District and outside the federally designated floodway. The purpose of this amendment is to permit residential redevelopment in the Historic Fredericksburg District in a manner consistent with the historic pattern by removing the reductions in maximum residential density that currently apply in the 100-year floodplain. City Code §72- 51.A.(1)(a){1} reduces the maximum residential density permitted on “unbuildable lands,” including one-hundred-year frequency floodplains.
Mr. Craig presented the application and provided a brief PowerPoint presentation.
Mr. Pates announced that he would not be participating in the discussion or the vote because his wife was the selling agent on the property that now expects to have an application on one of the properties on Frederick Street (the warehouses). He said he has spoken with the City Attorney and mutually agreed that although Mr. Pates does not have a conflict of interest, because of the association with the property, he believes it would be best to recuse himself from discussion and a vote on the recommendation.
Mr. Hornung said that Mr. Craig mentioned the number of units that can be restored in the undeveloped property and asked if he had run an analysis of how many units within the developed property.
Mr. Craig said staff has a data base built and are crunching through the numbers. He said there are so many non-conformities out there that it is tough math and they don’t have an affirmative answer. For this reason, he said, staff’s recommendation is based on the fact that it is a level of control with the Old and Historic Overlay District. Any new development is going to be within a certain box, so staff focused on the vacant parcels.
Mr. Hornung asked if one currently has a commercial structure in the flood fringe, would they then be prohibited, currently, from getting the residential density to develop it without coming back in for a special exception or is it just reduced.
Mr. Craig said it’s reduced by a percentage – either by 25% I your lot is 15-25% within, or 50% for anything above that.
Mr. Beavers asked for confirmation that if someone has a commercial building they do not have to have flood insurance if they wish to self-insure. He said he read that if you have a Federal-related mortgage you have to have flood insurance, but
2
if you don’t have a federal-related mortgage, or no mortgage whatsoever, you are not required to have flood insurance.
John Saunders said if you own the property outright and you do not have a mortgage then it is backed by some sort of Federal program (or federal dollars) and you do not have to purchase flood insurance.
Mr. Pates opened the floor for public comment.
There was no public comment.
Mr. Pates closed the floor to public comment on this item.
Mr. Beavers said, that as he has said before, it never made sense to him why the City had the 50% vs 25% formula. Therefore, he said he makes a motion to recommend approval of the UDO Text Amendment and Ordinance, as outlined by City staff.
Mr. Hornung seconded the motion.
Mr. O’Toole asked Mr. Saunders that if the City puts more people in these areas, what effect it would have on any concerns within the flood fringe.
Mr. Saunders said previous discussions have been had as to whether it makes a difference if it commercially related or residentially related, and in terms of the flood fringe and the effect it might have, it really does not matter what the use is. However, he said, there are different requirements for building commercial uses versus residential. Residential uses have to be elevated, where Commercial uses are more flexible. He explained how the “floodway” works and how it relates to base flood elevations.
Mr. O’Toole asked about the inconvenience for someone who has a residential development inside this fringe. He asked if it will have a big impact on them.
Mr. Saunders explained how it would depend upon where you are located within the floodplain and the topography of the area.
Being no further discussion Mr. Pates called for the vote.
Motion to recommend approval carried by a vote of 3 – 2 – 1, with Mr. O’Toole and Mr. Slominski voting against the motion and Mr. Pates abstaining.
6. COMPREHENSIVE PLAN AMENDMENT – The City of Fredericksburg proposes to amend Chapter 10 Land Use Plan and Chapter 11 Planning Areas of the City’s Comprehensive Plan. The amendment to Chapter 10 would establish land use transects and apply them to the Small Area Plan
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ITEM #8A
MEMORANDUM
TO: Timothy J. Baroody, City Manager FROM: Jane Shelhorse, Director of Parks, Recreation and Events DATE: October 5, 2017 SUBJECT: Designating Ficklen Island as Riparian Land
ISSUE City Council voted first read to designate Ficklen Island as riparian land in the City Code.
RECOMMENDATION Yes. This will help with management of the island by allowing law enforcement to apply ordinances specifically governing riparian land to the island. The island is similar in character to the land currently designated as riparian.
DISCUSSION Ficklen Island was given to the City as part of the agreement when the Fredericksburg Stafford Park Authority was dissolved in July 2009. The 4.8 acres of land, located along the Rappahannock River off of Riverside Drive in Fredericksburg, is accessible from the City’s Heritage Trail.
The property, although not designated as a park, is often used by the community for picnics and unofficial group gatherings. Unfortunately this has occasionally created issues with trash, vandalism, and maintenance of the property.
Generally applicable laws on littering, vandalism, etc. apply to the island, but the City also has ordinances (Chapter 66, Article VIII, § 66-258) that apply specifically to the City's watershed and riparian land. Having prohibitions on activities such as dumping garbage, discharging firearms, trapping animals, disturbing land, and defacing structures and facilities together in one place in the City Code aids law enforcement and other City staff's efforts to manage the property.
The proposed ordinance would add Ficklen Island to the definition of riparian land, which currently consists of the approximately 4,800 acres deeded to the City in 1969 by VEPCO.
FISCAL IMPACT None. MOTION: October 10, 2017 Regular Meeting SECOND: Ordinance No. 17-24
RE: Adding Ficklen Island to the Description of the City's Riparian and Watershed Property; Expressly Prohibiting Hunting and Campfires on the Island
ACTION: APPROVED: Ayes: 0; Nays: 0
FIRST READ: September 26, 2017 SECOND READ:
IT IS HEREBY ORDAINED by the Fredericksburg City Council that Chapter 70 of the City Code is amended as follows:
SEC. I. City Code Amendment.
1. Sec. 66-258 City riparian and watershed property.
A. Description. The City's riparian and watershed property consists of all City-owned land along the banks of the Rappahannock River, the Rapidan River, Deep Run, and all other tributaries of those waters in the City and Spotsylvania, Stafford, Orange, Fauquier, and Culpeper counties, not listed in §§ 66-252 through 66-256. This property, consisting of roughly 4,800 acres, is described in the deed dated March 19, 1969 from the Virginia Electric and Power Company to the City, recorded at Deed Book 137, page 360 of the land records of the Fredericksburg Circuit Court Clerk. It also includes the island containing 4.08 acres of land, more or less, described in the deed dated July 31, 2009 from the Fredericksburg Stafford Park Authority to the City, recorded as Instrument #090001856 in the land records of the Fredericksburg Circuit Court Clerk, commonly known as Ficklen Island.
B. Specific prohibitions. It shall be unlawful, on the property described in Subsection A, to: (1) Dump, bury, or burn garbage. (2) Discharge a firearm, except for the purpose of licensed hunting. Hunting is prohibited within areas marked as safety zones and on Ficklen Island. (3) Trap animals. (4) Disturb land in a way likely to result in soil erosion or sedimentation. (5) Dispose of human excrement by any means other than burial at least 12 inches below the ground surface and at least 100 feet from any river, stream, or body of water on or adjacent to the property. (6) Disturb, deface, injure, or move any structure, building, facility, or artifact, including any portion of a lock, dam, or canal.
C. Exemptions. October 10, 2017 Ordinance 17-24 Page 2
(1) No person is guilty of a violation of this section if he has the prior written permission of the City Manager to engage in the prohibited activity, or if he has a recorded property right to engage in that activity. (2) Camping is permitted unless prohibited by posted sign or another law or ordinance. (3) Campfires used for cooking, heating, or lighting, and attended at all times, are permitted except on Ficklen Island.
SEC. II. Effective Date.
This ordinance is effective immediately.
Votes: Ayes: Nays: Absent from Vote: Absent from Meeting:
Approved as to form:
______Kathleen Dooley, City Attorney ***************
Clerk’s Certificate I, the undersigned, certify that I am Clerk of Council of the City of Fredericksburg, Virginia, and that the foregoing is a true copy of Ordinance No. 17-24 duly adopted at a meeting of the City Council meeting held October 10, 2017 at which a quorum was present and voted.
______Tonya B. Lacey, CMC Clerk of Council ITEM #8B
MEMORANDUM
TO: Timothy J. Baroody, City Manager FROM: Doug Fawcett, Assistant City Manager DATE: October 5, 2017 SUBJECT: Prohibiting the Securing of Items to Public Facilities in the Public Rights-of-Way
ISSUE City Council voted first read to amend the City Code to prohibit the securing of various items to structures within the public rights-of-way.
RECOMMENDATION Yes. We recommend that the Council adopt the attached ordinance so amending the City Code.
BACKGROUND For many years, the Public Works Department has been acting under its general authority to manage the public rights of way in the City when it removes bicycles or other items (benches, private trash receptacles, etc.) that have been secured, by bicycle lock, chain, cable or other means, to street trees, street lights, traffic signal poles or other publicly owned facilities in the public right-of-way.
The removals have taken place to prevent potential damage to the public facilities caused by the chain, cable, etc. and also to eliminate the hazard to the public of having an item secured in a manner that it provides an obstruction to vehicles or pedestrians.
Staff recently concluded that it would be prudent to add specific language to the City Code prohibiting the practice of securing any item to public facilities within the rights of way. Bicycles appropriately secured to bicycle racks placed in the public rights of way for that purpose are exempted from the prohibition, as long as they do not present a hazard and are left secured in a single location for no more than seven days. (It should be noted that staff is working with FAMPO to study bicycle access and constraints in the City. The goal is to identify opportunities to make Fredericksburg more bicycle friendly.)
FISCAL IMPACT There is no significant fiscal impact of the proposed action. Any removals of items secured in the public rights of in violation of the new Code provisions will be performed by existing Public Works personnel.
cc: Ordinance MOTION: October 10, 2017 Regular Meeting SECOND: Ordinance No. 17-25
RE: Prohibiting Securing Bicycles, Benches, Trash Receptacles, Signs, and Other Items to Trees, Street Lights, Street Signs, and Other Public Facilities in the Public Rights-of-Way
ACTION: APPROVED: Ayes: 0; Nays: 0
FIRST READ: September 26, 2017 SECOND READ:______
Sec. I City Code Amendment.
It is hereby ordained by the Fredericksburg City Council that Chapter 66 of the City Code is amended by the addition of the following Article I, Section 66-18.
Section 66-18 Attaching objects to public facilities.
A. No person shall attach any bicycle, stroller, bench, trash or recycling receptacle, sign, or any other item to a tree, streetlight pole, street sign post, or other public facility in the street or sidewalk, except as permitted by subsection B.
B. Bicycles, scooters, and similar non-motorized conveyances may be attached to designated bicycle racks for up to seven days at a time.
Sec. II. Effective date.
This ordinance becomes effective immediately.
Votes: Ayes: Nays: Absent from Vote: Absent from Meeting:
Approved as to form:
______Kathleen Dooley, City Attorney
October 10, 2017 Ordinance 13-25 Page 2
*************** Clerk’s Certificate I, the undersigned, certify that I am Clerk of Council of the City of Fredericksburg, Virginia, and that the foregoing is a true copy of Ordinance No. 17-25 duly adopted at a meeting of the City Council meeting held October 10, 2017 at which a quorum was present and voted. ______Tonya B. Lacey, CMC Clerk of Council ITEM #8C
TO: Timothy J. Baroody, City Manager FROM: Erik F. Nelson, Transportation Administrator DATE: October 2, 2017 RE: Resolution Supporting Fall Hill Avenue Sidewalks Project ______ISSUE The City’s Comprehensive Plan (2015) calls for making connections within the community for non- motorized travel and staff seeks a Resolution of Support to submit an application for Highway Safety Improvement Program (HSIP) to extend sidewalks along Fall Hill Avenue, from Carl D. Sil- ver Boulevard to the Riverside Manor townhomes.
RECOMMENDATION That the City Council adopt the attached resolution to support submittal of this funding request as well as to authorize the City Manager to execute any related funding agreements.
DISCUSSION When Fall Hill Avenue was widened to a four-lane, divided roadway, the overall design included a ten-foot wide multi-use path on its north side and a five-foot wide sidewalk on its south side. These bicycle/pedestrian connections, however, end at Carl D. Silver Boulevard, which is 1,000 feet from 188 townhomes at Riverside Manor. In addition, there are eight homes on the south side of Fall Hill Avenue, extending to Vidalia Street. Providing sidewalks on both sides of Fall Hill Avenue will meet transportation goals included in the Comprehensive Plan as well as City Council Initiative #12, to ensure neighborhood connections.
The overall project includes sidewalks on both sides of Fall Hill Avenue, to Riverside Manor Boule- vard on the north side and to Vidalia Street on the south side. Two demand pedestrian signals will be installed across both sides of the intersection of Fall Hill Avenue and Carl D. Silver Boulevard. A third demand pedestrian signal is proposed to be installed across Fall Hill Avenue, at Riverside Manor Boulevard.
FISCAL IMPACT The full cost of the pedestrian improvements is $175,000, which would be covered by the Highway Safety Improvement Program. Funded applications are programmed through the State’s Six-Year Improvement Program, which means that funds would be available in 2023 or earlier.
Attachments: Resolution Map MOTION: October 2, 2017 Regular Meeting SECOND: Resolution No. 17-
RE: Authorizing City Manager to Submit an Application for the Riverside Manor Connector and to Execute a Related Funding Agreement
ACTION: APPROVED: Ayes: Nays:
The Virginia Department of Transportation (VDOT) provides an opportunity for localities to seek Highway Safety Improvement Program funding to address safety issues on the existing road net- work
A project called the Riverside Manor Connector will provide sidewalks along Fall Hill Avenue, from Carl D. Silver Boulevard to Riverside Manor Boulevard, and will also provide pedestrian signals to cross Carl D. Silver Boulevard and another pedestrian signal at Riverside Manor, to cross Fall Hill Avenue.
Therefore, the City Council resolves that
• The City of Fredericksburg desires to seek funding for its Riverside Manor Connector pro- ject. • The City Manager is authorized to execute the application as well as the related agreement with VDOT.
Votes: Ayes: Nays: Absent from Vote: Absent from Meeting:
* * * * * * * * * * Clerk’s Certificate
I certify that I am Clerk of Council of the City of Fredericksburg, Virginia, and that the foregoing is a true copy of Resolution No. 17- adopted at a meeting of the City Council held October 24, 2017 at which a quorum was present and voted.
______Tonya B. Lacey, CMC Clerk of Council
Legend City Boundary WVS_Centerlines Back (12,000)
Interstate US Highway VA Primary Others WVS_Centerlines Back (12,000)
Interstate US Highway VA Primary Others Parcels
Title: Riverside Manor Connector - HSIP Application Date: 9/29/2017
DISCLAIMER:All information depicted on this map shall be treated as confidential information and shall only be used for the sole purpose for which it was provided. Anyother use of this map, or the information included thereon, is strictly prohibited. The data shown on this map is for information purposes only and shall not be relied upon for the specific location of map features. The City of Fredericksburg makes no representation or warranty as to the accuracy of the map, or the information shown thereon. This map may not be copied or otherwise made available to any other party in paper or electronic format without written consentfrom the City of Fredericksburg. Regular Session 09/26/17 ITEM #9A
CITY OF FREDERICKSBURG, VIRGINIA HON. MARY KATHERINE GREENLAW, MAYOR HON. WILLIAM C. WITHERS, JR., VICE -MAYOR, WARD TWO CITY COUNCIL HON. KERRY P. DEVINE, AT-LARGE HON. MATTHEW J. KELLY, AT-LARGE HON. BRADFORD C. ELLIS, WARD ONE HON. DR. TIMOTHY P. DUFFY, WARD THREE Council Chambers, 715 Princess Anne Street HON. CHARLIE L. FRYE, JR., WARD FOUR Fredericksburg, Virginia 22401
September 26, 2017
The Council of the City of Fredericksburg, Virginia, held a regular session on
Tuesday, September 26, 2017, beginning at 7:30 p.m. in the Council Chambers of City Hall.
City Council Present. Mayor Mary Katherine Greenlaw, Vice-Mayor William C.
Withers, Jr. and Council members Kerry P. Devine, Dr. Timothy P. Duffy, Bradford C. Ellis,
Charlie L. Frye, Jr. and Matthew J. Kelly.
Also Present. City Manager Timothy J. Baroody, Assistant City Manager Mark
Whitley, Assistant City Manager Doug Fawcett, City Attorney Kathleen Dooley, Assistant
City Attorney Robert Eckstorm, Transportation Administrator Erik Nelson, Director of
Parks and Recreation and Events Jane Shelhorse, Public Works Director David King,
Assistant Public Works Director Diane Beyer and Clerk of Council Tonya B. Lacey.
Opening Prayer and Pledge of Allegiance. Council was led in prayer by
Councilor Bradford C. Ellis followed by the Pledge of Allegiance led by Mayor Mary
Katherine Greenlaw.
Officers Recognized. Mayor Greenlaw recognized the presence of Officer Ted
Marrs, Melanie Schafer, and Stuart Butterfield at this evening’s meeting.
Presentation of 2017 Federal Highways Administration
Environmental Excellence Award – Virginia Central Railway Trail (D17-
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__). – Ms. Jessie Yung, Administrator from the Federal Highway Administration (FHWA)
Virginia Division explained that this award was recognized by the federal highway
environmental excellence award and it has been done bi-annually for the past twenty years.
They are three focused areas the natural environment, human environment and organization
process innovation. Within the three focus areas there are sixteen categories and one is
multimodal and Ms. Yung said they pick one winner for each category and the Virginia
Central Railway trail won for the multimodal. Ms. Yung introduced one of her division employees Mr. Mack Frost who oversee the transportation enhancement funds. Mr. Frost presented the award to the Mayor and the other partners in this project.
Mayor stated this was a huge team effort with the contractors, VDOT and staff. She thanked everyone who was involved. Mayor Greenlaw said the trail was one of the most popular things the City had done.
City Tree Program (D17-__). – Public Works Director King along with
Assistant Public Works Director Beyer and Tree Fredericksburg’s Anne Little presented a
PowerPoint presentation on the Urban Forestry Program. The City’s Urban Forestry
Program is a partnership between the City of Fredericksburg, the Clean & Green
Commission, and the non-profit group Tree Fredericksburg. The City has been a Tree City
for 31 years and in 2004 a taskforce was put together to assess the City’s urban forest. This
taskforce determined solutions for restoring the tree canopy which resulted in the Street Tree
Plan being adopted by the Council in 2005.
In 2008, the Council reconstituted the Fredericksburg Clean and Green Commission
and they made urban forest canopy restoration one of their top priorities. During this time
Tree Fredericksburg was established to be a conduit for grants and to organize volunteers to
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help plant the trees. The first project between the Clean and Green Commission and Tree
Fredericksburg was Maury Playground. In 2012, the Council signed a Memorandum of
Understanding with the Virginia Department of Forestry to increase its tree canopy by five percent over 10 years. There are other organization who have committed to increasing the tree canopy such as Marstel Day who has a fundraiser every year for trees.
Since 2010, over 500 trees have been replaced or newly planted in the downtown area.
The City continues to plant trees throughout neighborhoods and Tree Fredericksburg organizes the volunteers to plant about 50 trees in each planting project.
The average cost to plant a tree in Fredericksburg is $100.00 and in most other cities in Virginia they budget $500-$600 per tree. The tree survival rate is just over 87 percent because the City waters every tree, every week, for the first year. Other City’s survival rate is fifty percent. Tree Fredericksburg has over 500 volunteers who help to plant trees each year.
The value of volunteer hours in 2016 was over $33,000. Sixteen of those volunteers took classes for 10 weeks to become certified tree stewards and each have adopted an area of the city to help with minor pruning, education and outreach. The stewards have donate over 942 hours valuing over $22,193.
The City has planted almost 6,000 trees since 2008 costing $615,664 and Tree
Fredericksburg obtained $194,000 in grants from partners to enhance the Urban Forest
Program in the same timeframe.
Councilor Duffy spoke about what a great program this was and he asked how finances were managed and Mr. King explained that the City Council allocates funding for the purchase of trees every year. Mr. King explained that with the assistance of Tree
Fredericksburg they are able to source the trees with specific growers to make sure the Cityb
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was getting quality trees. The budget that is provided by the Council is used to purchase the trees, purchase materials and paying for watering the trees.
Vice-Mayor Withers asked if the City pays Tree Fredericksburg and Ms. Little explained that the gentleman who waters the trees get paid $15.00 an hour which Tree
Fredericksburg pays and submits bills to the City for those charges no other members are paid. Ms. Little said when they have grant opportunities they contact the City and make them
aware and they ask if they can apply for the trees, the City pays for the trees and then they
submit the report to the Virginia Department of Forestry for reimbursement.
Councilor Devine thanked the Tree Fredericksburg founders, City Staff and the
volunteers she said this was hours of their time and she said it was a very selfless act for them
to do this.
Councilor Frye thanked everyone for their time and he suggested getting more Tree
City signs placed throughout the City.
Mayor Greenlaw also said this was a great program and it requires a lot of work to
monitor and gather all the volunteers.
Citizen Comment. The following speakers participated in the citizen comment
portion of this evening’s meeting.
Ronnette Cooper – 3003 Normandy Avenue, thanked the Council for hearing the
thoughts and opinions of the community on the slave auction block. She spoke about how
the community was divided. Ms. Cooper spoke about how the block caused her great pain
when she first saw it and her true desire was to have it removed. She said it should be
removed because it causes pain to some and by removing it she hoped it would being a
healing for those.
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Aaron Custalow, 110 Kinlock Drive, he said he didn’t know the right steps but he said there was a way forward. He said the path should lead the people forward and not backward. He said there were two things that needed to be discussed when talking about the auction block, repentance and forgiveness. Mr. Custalow said this was an opportunity to pursue reconciliation between divided communities and races in the City. There was no reconciliation without true repentance and forgiveness. He said there could be no pathway forward for Fredericksburg if there was not forgiveness extended for the wrong doing of the forefathers and current judgments and accusations and prejudices from the African American
Community. Mr. Custalow suggested that the block be removed and placed in a museum and a plaque put in its place to tell the story of what happened there as well as the commitment to stand together as a racially diverse community to pursue unity.
Eddie Hackler, 9608 Hazelbrooke Court, 22407, he spoke about other location of the buying and selling of slaves within this community and other locations nearby. He spoke about the removal of the slave block and the possibility of it going to the Fredericksburg Area
Museum (FAM) and he was concerned because the FAM had little to no history on African
Americans in the museum and he thought that was a horrible option. Mr. Hackler said the removal of the block would not erase the sins of Fredericksburg however it would lead people to believe that the sins had been forgiven and that we live in a color blind or post racial society which he said was far from the truth. He spoke about how African Americans lead the way in unemployment, that they were a majority of the prison population and how the history was not being taught. He suggested that the unemployment and imprisonment was also slavery just called something else. Mr. Hackler said maybe slavery had not ended it had just evolved and the auction block was a reminder of that fact. He said the block should remain in place and the resources dedicated to removing it should be directed to an
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organization that benefits African Americans or diverted to the FAM earmarked to increase the artifacts in the museum to bring awareness of the contributions of African Americans in the building of the City of Fredericksburg.
Jasee Law, Maui resident, stated there were a lot of new trees by the Visitor Center
but no new benches.
Richard Matthews, 3206 Normandy Avenue, former police officer from Kansas
City area, he now serves as the community life pastor at Awakening Church. He said the
auction block stood as a blight in history. He said we all need to strive to love well and
empathize with the community. Mr. Matthews said the voice of the African American community should be the most considered voice in the decisions regarding the slave auction block. He said the community could be a catalyst in the destruction of racism and injustice for this community as well as the nation.
Rev. Hashmel Turner, 1909 New Kent Street, said he was speaking on behalf of the faith community. He said they have gathered and had prayer vigils and they have discussed this auction block. He said the auction block was a barrier that tears the desire to unify. He said the faith community desires to unify but he said people cannot forgive when there are reminders like the auction block. Rev. Turner suggested that the slave block was a reminder to African Americans of how ancestors were treated and he said he did not need that reminder.
Gabrielle Guy, 420 Cobblestone Drive, stated that she had been a resident for over
twenty years and she had witnessed many changes in Fredericksburg. She said the slave block
was a stark reminder of our country’s past and how far the country had come. Ms. Guy said
history should not be erased even if they implicit painful and uncomfortable feelings. She
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said there are not many original items of that time period and it should remain to show the progression as a society.
Ashley Bradshaw, 1415 Stafford Avenue, has lived in the City since junior high school. She said she and her husband love the history here in the City. She said the first time she found out what the slave block was it grabbed her attention and now there are times when she stop and reflect but other times she walk right by it. Ms. Bradshaw said it was not until recently that she learned of the pain the block caused her African American friends. She
said it was important for the African Americans to make the decision and their voices be
heard above others. She said she would like the city to be known as a beacon of hope and as
a place that listened.
Faith Childress, 1805 William Street, said it was incumbent to do what was right to promote racial healing in the City and in regards to the slave block she said the African
American contingency in the community should be heard the loudest and whose opinion should carry the most weight and whose rights should be prioritized. She said it was her hope that the City would be a leader in the nation as to what healing of racial division and living in unity should look like. Ms. Childress noted that removing the stone does not get rid of racism but it would help to heal wounds and bring peace to the hearts of fellow citizens where there has been a history of racial trauma and bring the City unity.
Council Agenda Presented. The following item were presented to Council for
discussion.
7A. Slave Auction Block Removal – Mayor Greenlaw and Councilor Frye
7B. Bragg Hill Changes – Councilor Frye
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Slave Auction Block Removal – Mayor Greenlaw explained that the Council allowed her and Councilor Frye to form a plan in response to his request to remove the slave auction block. Staff formed a working group and presented two options. The public was given two opportunities to speak: online and at a community meeting. She said the community came through with their input and submitted 602 online comments, 26 spoke at the community meeting and several sent emails and letters. Mayor Greenlaw spoke about how engaged the community was and she said of the 602 online comments, 363 selected
Option A, leave in place with better interpretation; 127 chose Option B, remove and place in a museum and put a marker in its place and 112 chose Option C, neither of the two options presented but 66 wanted it to stay in place but did not like the option provided. Mayor
Greenlaw also gave the geographical break down of the comments 209 were City residents;
102 were from Stafford or Spotsylvania and 66 were from other places.
Councilor Frye explained that there were online petitions circulating and he decided to get a grasp on it before anything negative happened. He said he was standing firm on the removal of the block because of the mock auction he witnessed. He said the only way to end that type of activity is to remove the block.
Councilor Frye made a motion to support Option B – replace the auction block with a historic marker and have directions to its new location, possibly the Fredericksburg Area
Museum. Councilor Kelly seconded the motion for discussion.
Councilor Kelly thanked the public for their participation. He said monuments in the
City needed to be monument for those who have made a difference in the community. He asked what lessons we were leaving for future generations to help move the community forward. He said it was important to understand how things happened and what happened
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and how the community had advanced from those things. Councilor Kelly said he could not express how the block made people feel when they saw it but he said pain was a critical lesson for people to understand what happened and to let everyone know about the mistakes that happened. Pain also reminds us that we do not want these things to happen again. He said that block represents revulsion, shame and pain but society must ask what its role will be to make sure this never happens again. He stated that from those lesson he hoped society would become better a people. Councilor Kelly said when you remove things, you detach them from the community and this marker was an important tool and it needed to be seen in its context for generations to come. Councilor Kelly was in support of leaving the auction block in its current location.
Councilor Devine said after thoughtful and emotional feedback from the community and careful consideration of the options she was in support of keeping the auction block artifact in its original setting. She said everyone needed to honor and respect the terrible history this artifact has born witness too and she wanted the story of the African American strength, struggle, survival and success in his community to be better told and displayed.
Councilor Devine offered a substitute motion supporting Option A, keeping the slave block in its current location, and giving it the reverence and respect it deserves; motion was seconded by Councilor Ellis.
Councilor Duffy said it was humbling to hear the comments and views. He said it felt like he had been through several history courses and he now understand what white privilege means. He said it was troubling that many felt like this artifact has been unadorned and not thought seriously about and it does merit great consideration. He said he was in favor of the substitute motion. Councilor Duffy said he was struck by the emotional response to the slave block but he was concerned about the disrespect to the block as well as vandalism. He
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addressed comments made by one of the speakers relating jail and unemployment with slavery for African Americans and said that was why it was incumbent to leave the block to tell the story that continues to be lived by people who feel a lack of respect and he said it needs to be confronted. Councilor Duffy said this terrible tragedy of American History needed to stay. He said he regrets that it causes pain and he hoped the community would learn from the process.
Vice-Mayor Withers said he supports the substitute motion with the caveat that this was only the beginning of the story on the block and that the City receive input from the community to tell the story the way it should be told.
Councilor Ellis thanked the community for the example they set on how to have a conversation on a difficult topic. He said the City had set the example for the commonwealth and the country on how to work through difficult topics. He said he feels he was in favor of the majority of the comments submitted and that the block should remain.
Mayor Greenlaw said she had been very moved by the sincere and powerful comments made on this item. She noted how the citizens listened to each other and had concern for each other no matter how they felt about the options given. Mayor Greenlaw stated that there was nothing that speaks more profoundly of the evil of slavery than an auction site. She said we cannot understand each other without knowing what we have been through and without facing the truth. The block reminds us that slavery was a terrible system and without that understanding it would be too easy to romanticize slavery and the history that so many African Americans have experienced. Mayor Greenlaw said she was moved by the comments from ancestors of slaves that was sold there and would like the block to remain. She said she was supporting the substitute motion but explained that the City was challenged with presenting it appropriately and it needed to offer a prayer to those that were
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sold, a prayer for reconciliation and healing in our nation and a prayer for understanding.
Mayor Greenlaw said we need to make sure there was community input on how the story is
told. She asked that the maker of the motion to support charging the City Manager with
receiving community input and input from the African American community on how this
should be treated.
Councilor Frye state that he did not support the substitute motion.
The substitute motion passed by the following recorded votes. Ayes (6). Councilors
Greenlaw, Withers, Devine, Duffy, Ellis and Kelly. Nays (1). Councilor Frye.
Councilor Devine made a motion to have the City Manager form a working group to include members of the community at large to have a say as the process moves forward; motion was seconded by Vice-Mayor Withers and passed by the following recorded votes.
Ayes (6). Councilors Greenlaw, Withers, Devine, Duffy, Ellis and Kelly. Nays (1). Councilor
Frye.
Bragg Hill Changes – Councilor Frye talked about the redevelopment in the
Bragg Hill area and he noted that the 7-11 was closing. He asked if there was something the
City could do to help businesses. He noted that the 7-11 was a need in the community for many who do not have transportation.
Vice-Mayor Withers suggested maybe the Economic Development Department could target private businesses to move in there and maybe offer an economic incentive.
Councilor Duffy also suggested this may be an opportunity for a farmer’s market like the one they have in the Mayfield subdivision.
City Manager’s Consent Agenda Accepted for Transmittal as
Recommended (D17-__ thru D17-__). Councilor Kelly moved approval of the City
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Manager’s consent agenda items; motion was seconded by Councilor Devine and passed by the following recorded votes. Ayes (7). Councilors Greenlaw, Withers, Devine, Duffy, Ellis,
Frye and Kelly. Nays (0).
• Ordinance 17-23, Second Read, Amending the 2012 Lease with MediCorp
Properties, Inc. to Permit Additional Hospital Identification Signs in the Public
Right of Way (D17-__).
• Resolution 17-82, Approving the 2016-2017 Consolidated Annual Performance
and Evaluation Report (D17-__).
• Transmittal of Parking Action Plan Update (D17-__).
• Transmitting Board and Commission Minutes
o Economic Development Authority – August 14, 2017 Adoption of Minutes (D17-__ thru D17-__). Vice-Mayor Withers moved
approval of the September 12, 2017 Public Hearing and Regular Session minutes; motion was
seconded by Councilor Frye and passed by the following recorded votes. Ayes (7).
Councilors Greenlaw, Withers, Devine, Duffy, Ellis, Frye and Kelly. Nays (0).
Appointments to the Parking Advisory Committee (D17-__).
Councilor Kelly moved to appoint Vice-Mayor William Withers, Councilor Timothy Duffy,
Joe Wilson, Dr. Lynne Richardson, D.D. Lecky and Bill Beck to the Parking Advisory
Committee; motion was seconded by Councilor Ellis Councilor Devine suggested the at large representative vacancy be advertised for the general public to apply. Councilors Kelly and
Ellis accepted the suggestion and the motion passed by the following recorded votes. Ayes
(7). Councilors Greenlaw, Withers, Devine, Duffy, Ellis, Frye and Kelly. Nays (0).
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Resolution 17-81, Second Read, Amending the Fiscal Year 2017 Budget
for Final Adjustments for Schools (D17-__). After staff presentation Councilor
Duffy disclosed that he was a member of a business, profession, occupation or group of three
or more members affected by the transaction but he was able to participate fairly, objectively
and in the public interest. Councilor Frye disclosed that his spouse was a member of a
business, profession, occupation or group of three or more members affected by the
transaction but he was able to participate fairly, objectively and in the public interest.
Councilor Ellis made a motion to approve Resolution 17-81, on second read,
amending the Fiscal Year 2017 budget for final adjustments for schools; motion was
seconded by Councilor Devine and passed by the following recorded votes. Ayes (7).
Councilors Greenlaw, Withers, Devine, Duffy, Ellis, Frye and Kelly. Nays (0).
Transmittal of Report on High Speed Rail Environmental Impact
Statement and Outline of Recommended Comments to be Submitted by
City Council (D17-__). Mr. Nelson stated that the transmittal was of information on the
High Speed Rail project which was a national effort to improve rails to provide enhanced rail
service. The focus was on the rail corridor in Virginia from Washington DC to North
Carolina. The Environmental Impact statement had been released and Mr. Nelson stated that
there were a few items the Council should request to be addressed during the process. The
areas of concern were the viaducts/overpasses, parking, station, bicycle/pedestrian access,
sound mitigation and other planned improvements outside of the high speed rail project. Mr.
Nelson said he would bring this item back for action on October 24.
Transmittal of Proposed Transportation Alternatives Project (D17-
__). Mr. Nelson explains that the Transportation Alternatives Project provides a modest 13
Regular Session 09/26/17 ITEM #9A
amount of money for various projects and he had taken priority number twelve making
connections in the neighborhoods from the City’s goals and objectives as the next project.
The trails that are in place have been the easy part but making the connection between the two was more challenging. Mr. Nelson said they would try to make the connection through the Sophia Street corridor and Caroline Street. He said the challenge was the right of way which had already been defined. He said a suggestion would be to do share roads. He said they will submit an application to get an analysis of the corridor and options to develop a safe bicycle route as well as pedestrian access. He said this item would be brought back in
October as well.
Vice-Mayor Withers said he would not be able to support it if it was going to do away with parking. He said he was good with the share lanes.
Councilor Duffy said before they paint the share road signs on the road he would like to make sure things are done to make the streets safer for bikes.
Ordinance 17-24, First Read, Adding Ficklin Island to the
Description of the City’s Riparian and Watershed Property; Expressly
Prohibiting Hunting and Campfires on the Island (D17-__). After staff
presentation Councilor Kelly made a motion to approve Ordinance 17-24, on first read, adding Ficklin Island to the description of the City’s Riparian and Watershed Property;
Expressly prohibiting hunting and campfires on the island; motion was seconded by
Councilor Devine and passed by the following recorded votes. Ayes (7). Councilors
Greenlaw, Withers, Devine, Duffy, Ellis, Frye and Kelly. Nays (0).
Ordinance 17-25, First Read, Prohibiting Securing Bicycles,
Benches, Trash Receptacles, Signs and Other Items to Trees, Street
14
Regular Session 09/26/17 ITEM #9A
Lights, Street Signs, and Other Public Facilities in the Public Rights-of-
Way (D17-__). After staff presentation and some discussion Councilor Kelly made a
motion to approve Ordinance 17-25, on first read, prohibiting securing bicycles, benches,
trash receptacles, signs and other items to trees, street lights, street signs, and other public
facilities in the public rights-of-way; motion was seconded by Councilor Duffy and passed by
the following recorded votes. Ayes (7). Councilors Greenlaw, Withers, Devine, Duffy, Ellis,
Frye and Kelly. Nays (0).
City Manager’s Report and Council Calendar (D16-__ thru D16-__).
City Manager Baroody reviewed the Manager’s report and Council Calendar. Activities
highlighted on the report were as follows: Police Host Second Pedestrian Safety Event,
Parking Lot at Bass Ellison Building Re-Paved, Fire Department Newsletter Increases
Internal Communications, Emergency Operations Center Moves to Police Headquarters,
Work Continues on Traffic Signal Installation Downtown, 1900 Block of Lafayette Boulevard
Replacement Water Line In Service, Soggie Doggie Swim, The Picnic in the Park and
Memorial Park Tennis Courts.
Adjournment. There being no further business to come before the Council at this
time, Mayor Greenlaw declared the meeting officially adjourned at 10:04 p.m.
Mary Katherine Greenlaw, Mayor
______Tonya B. Lacey, Clerk of Council, CMC
15
ITEM #10A
MEMORANDUM
TO: Mayor Greenlaw and City Council
FROM: Tonya B. Lacey, Clerk of Council DATE: October 4, 2017 SUBJECT: Economic Development Authority Appointment
BACKGROUND
There is currently one vacancy on the EDA due to the resignation of Chris Muldrow who has three years remaining on his term. I have received applications and you have interviewed Stacy Horne, Thomas Liles, Will Mackintosh and Berkley Mitchell all applicants are eligible and seeking appointment to the EDA. In addition to the new applicants I have pulled the applications of Lynn Keenan and Rene Rodriguez who had been previously interviewed and were also interested in being considered for the vacancy.
RECOMMENDATION
At the October 10, regular session, Council is requested to make one appointment to the EDA. The appointment applications from each of the applicants are attached for your review and consideration.
Attachments: Applications
MEMORANDUM
TO: Fredericksburg City Council
FROM: Kathleen Dooley, City Attorney Kathleen Dooley
DATE: September 5, 2017
RE: Text amendment for wireless communications infrastructure
Issue:
Shall the City Council approve changes to zoning regulations for wireless communications infrastructure? The amendments have been developed in response to three events: new legislation from the 2017 General Assembly, City Council’s Broadband Priority, and a franchise application from Mobilitie, a provider of wireless communications infrastructure. The zoning regulation amendments are part of a larger package of City Code amendments that are intended to provide the legal infrastructure for granting franchises to wireless communication infrastructure providers. The other ordinances address the role of City and Public Utility Review Committee (CPURC) and the Department of Public Works in administering these franchises. All of these items come to City Council on September 12, 2017. The focus of this memo is the UDOTA. The legal landscape for broadband deployment is in flux. The Federal Communications Commission is considering changes to the classification of broadband as a “telecommunications service,” and the General Assembly is expected to consider additional changes in 2018. The current legislative proposals will not be the last time we visit this topic.
2017 09 05 Memo to City Council Wireless Communications Infrastructure - UDOTA Page 2
Recommendation:
The following amendments to the Unified Development Ordinance are required for compliance with the new state law: Exempt micro-wireless facilities from zoning regulation (lines 44-46), Establish a 60 day deadline for review of small cell facility collocation applications (lines 68-70), Establish criteria for review of small cell facility collocation applications (lines 100- 113), and Amend definitions (lines 133 – 180).
The following amendments to the Unified Development Ordinance are recommended to the City Council in light of the new developments: Move regulation of facilities in the rights of way to the Public Works Department (lines 42-43), Permit collocation of small cell facilities in all zoning districts (lines 84-89), Permit the development of wireless support structures on private property, in compliance with the maximum height standards of the zoning district (lines 91-96, and 122-126).
Planning Commission recommendation: The Planning Commission recommended approval of the amendments after their public hearing on August 9, 2017. The Commission identified two topics that should be addressed outside the zoning regulations – the maximum extension of height of existing poles, and the maximum size of small cell facilities. These two topics will be addressed in the right- of-way ordinance. The Fredericksburg Architectural Review Board heard a presentation on the overall legislative project and the draft design guidelines for the historic district at their meeting on August 14, 2017.
2017 09 05 Memo to City Council Wireless Communications Infrastructure - UDOTA Page 3
Background:
Changes in the deployment of wireless communications services: The new wireless support infrastructure addressed in this amendment is the “next generation” model of wireless communication service –providers supplement the service currently delivered through antennas on “macro” towers. Under the new model, multiple smaller monopoles, micro-wireless facilities, or small cell facilities attached to existing structures – including buildings (inside or outside), utility poles, traffic lights, street lights, etc. – provide faster service within a smaller area. The combination of macro towers, smaller monopoles, small cell facilities, and micro-wireless facilities is referred to as a “distributed antenna system.”1 The new model also focuses on placing these facilities in the public rights of way, as opposed to the traditional use of private property for the taller telecommunication (macro) towers. The challenge for the City is to support the continued deployment of a modern wireless support infrastructure, protect the historic district and commercial and residential neighborhoods, preserve the safety and function of the public rights of way, and make clear assignments of responsibility for management of the public rights of way.
City Council Broadband Priority #29: City Council met for a biennial planning offsite on October 14-15, 2016, to develop a new 20-year community Vision Statement, including eight desired future states and 35 implementing projects. Council adopted the final version of the Vision Statement and Priorities Plan by Resolution 17-28 on April 11, 2017. Priority #29 is to “Create more focus on broadband to be the fastest City in Virginia for broadband.” In adopting this priority, City Council recognized the importance of modern communication capacity to community welfare, including economic development and education.
Virginia Acts of Assembly – Chapter 835: This new legislation, which became effective July 1, 2017, advances federal, state, and local goals to advance the roll-out of wireless broadband services. The bill is divided into two major topics – (1) local zoning authority and (2) local authority to regulate the rights of way. With respect to zoning, the new Virginia law applies to “small cell facilities” and “micro-
1 A network of spatially separated antenna nodes connected to a common source via a transport medium (the “backhaul”), that provides wireless service within a geographic area or structure. Wikipedia. 2017 09 05 Memo to City Council Wireless Communications Infrastructure - UDOTA Page 4
wireless facilities” only.2 Localities’ traditional zoning authority with respect to wireless support structures and traditional (macro) telecommunications towers is not affected by the new law.
Proposed zoning regulation amendments: It is helpful to organize the proposed UDO zoning amendments by the type of facility they will affect. Each of the following discussions will define the type of facility, and then discuss the proposed zoning amendments, and whether the proposal is required by the new state law, or not required but recommended.
“Micro-wireless facilities” A “micro-wireless facility” is a small antenna, not larger than 24 inches in length, 15 inches in width, and 12 inches in height. It has an exterior antenna, if any, not longer than 11 inches.3 Under the new law, the installation, placement, maintenance or replacement of “micro-wireless facilities” that are suspended on cables or lines that are strung between existing utility poles in compliance with national safety codes shall be exempt from local zoning permitting requirements and fees.4 Thus, the ordinance includes an amendment to UDO Article 1, §72-13.1, “General Applicability,” to exempt these facilities from zoning, and an amendment to §72-84.0 to incorporate the state code definition of “micro-wireless facilities.” Even under the new state law, the Department of Public Works retains authority to regulate the installation of these facilities, if the activity involves work within a travel lane or requires closure of a travel lane, if it disturbs pavement, or if it includes placement on a limited access right of way.5 This regulatory authority concerns the safety of the rights of way, not zoning. This amendment is required by the new Code of Virginia, effective July 1, 2017.
2 The new zoning statutes are codified in Code of Virginia Title 15.2,Chapter 22, Article 7.2, “Zoning for Wireless Communications Infrastructure,” §§15.2-2316.3 et seq. 3 Code of Virginia §15.2-2316.3. 4 Code of Virginia §15.2-2316.4(C). 5 Code of Virginia §56-484.29(C). 2017 09 05 Memo to City Council Wireless Communications Infrastructure - UDOTA Page 5
Small cell facilities: A “small cell facility” is an antenna and cabinet that are “collocated” on an “existing structure,” typically, a utility pole. Under the new law, a small cell facility includes an antenna of up to six cubic feet in volume with an associated cabinet. The new legislation also defines “antenna,” “collocation” and “existing structure” – terms that all relate to small cell facilities.6 Small cell facilities are often collocated on existing utility poles. Public utilities are required to negotiate attachment agreements with cable and telecommunications providers by federal law, so long as the attachment may be accomplished in compliance with applicable safety and engineering codes.7 (This federal requirement does not apply to poles owned by local governments. However, under the new state law, if a local government does choose to make its poles that support aerial cables used for video, communications, or electric service available, then it shall comply with the attachment process established by the Federal Communications Commission.8) Fredericksburg has experience with small cell facilities collocated on private utility poles. In March and August, 2016, City Council granted a license for the installation of small cell facilities to a company called Extenet. The March license authorized the installation of 12 small cell facilities on existing utility poles around the UMW campus. The August license authorized two additional collocations on existing utility poles. These installations were all in the public rights of way; they were handled through the license process, and administered by Public Works. After study and consideration, City staff deemed this was the most logical route for approval and regulation of these facilities. Our current experience with the Extenet facilities is positive. They boost wireless service to a targeted area through a relatively unobtrusive attachment to an existing utility pole.9 Under the new state law, a locality shall not require a special exception or special use permit for the collocation of small cell facilities on existing structures. Localities may require administrative review for the issuance of required zoning permits for the collocation of small cell facilities. An applicant may submit up to 35 permit requests on a single application. The locality shall approve or disapprove the application in 60 days (with an optional extension of
6 Code of Virginia §15.2-2316.3. 7 47 USC §224, also known as the Federal Pole Attachment Act. Note, the FCC’s Notice of Proposed Rulemaking, discussed in the conclusion to this memo, would eliminate broadband providers from the protections in the Pole Attachment Act. 8 Code of Virginia §56-474.31. 9 A photo of the Extenet facility on Sunken Road is included in your packet. 2017 09 05 Memo to City Council Wireless Communications Infrastructure - UDOTA Page 6
time of an additional 30 days.) The application is deemed approved if the locality fails to act in this time frame.10 Under the new law, the locality may disapprove the application only for the following reasons: 1. Material potential interference with existing or future communications facilities (that are already designed and planned for a specific location or that have been reserved for future public safety communications facilities); 2. Public safety or other critical public service needs; 3. On publicly owned or controlled property, the aesthetic impact or the absence of all required approvals; 4. Conflict with the local historic preservation or corridor overlay ordinances, but only for collocation on properties that are not under Virginia State Department of Historic Resources jurisdiction (National Register). Based on the foregoing, the ordinance proposes the following amendments:
Exempt small cell collocations in the public rights of way from the zoning regulations. This will consolidate regulation of these facilities in the Public Works Department. Collocations in the rights of way in the Historic Fredericksburg District will be reviewed by the City and Public Utility Review Committee (CPURC) using design guidelines developed with the input of the Historic Preservation Planner.
Permit the collocation of small cell facilities in all zoning districts. Based on our experience with these facilities, they have minimal impacts on surrounding properties, and are therefore appropriate even in residential districts. Collocation of small cell facilities is preferable to the installation of a new wireless support monopole. The new Code of Virginia does not require that this use be permitted in all zoning districts. Instead, the basis of this recommendation, developed with the input of Mr. Craig, is (1) the City’s preference for collocation over a proliferation of monopoles, (2) the positive experience with Extenet in the R4 zoning districts, (3) the minimal visual impact of these facilities appears to be appropriate in any zoning district.
10 Code of Virginia §15.2-2316.4. 2017 09 05 Memo to City Council Wireless Communications Infrastructure - UDOTA Page 7
Provide for the administrative review of applications for small cell facilities when they are installed on private property, incorporating the deadlines and criteria prescribed by the new state law.
Adopt the definitions related to small cell facilities provided by state law.
Amend the City’s current definition of “Telecommunications facility, collocation,” to conform to the new state law.
Small cell facility collocation in the Historic Fredericksburg District: Small cell facilities are licensed by the Federal Communications Commission, and thus, their placement triggers §106 review of an activity that constitutes a federal “undertaking,” when the activity has the potential to cause adverse effects on “historic properties.” “Historic properties,” under the National Historic Preservation Act, include historic districts, buildings, and structures that either are listed on the National Register of Historic Places, or are eligible for listing. The new state law preserved local zoning regulation of new construction in historic districts; however, local authority is exercised in the context of Virginia Department of Historic Resources review of small cell facility collocation under §106 of the National Historic Preservation Act. In August, 2016, the FCC, the National Conference of State Historic Preservation Officers, and the Advisory Council on Historic Preservation executed a Nationwide Programmatic Agreement for the Collocation of Wireless Antennas. The Nationwide Programmatic Agreement applies to historic districts in the National Register, to antennas that are visible from the ground level of the historic district, to buildings and structures within 250 feet of the boundary of the historic district, and to National Historic Landmarks. Under the Nationwide Programmatic Agreement, state historic preservation offices, such as the Virginia Department of Historic Resources, will review small cell collocations under agreed criteria. These criteria stipulate that collocations of small or minimally visible wireless antennas do not have an adverse impact on historic properties. In Fredericksburg, the core downtown area is listed as an historic district in the National Register, but the downtown HFD also extends beyond the National Register historic district boundaries. The HFD overlays in the Mill District and at the Original Walker Grant 2017 09 05 Memo to City Council Wireless Communications Infrastructure - UDOTA Page 8
school are also outside the boundaries of the National Register historic district.11 The National Historic Landmarks in Fredericksburg are the James Monroe Law Office, the Kenmore Plantation, and the Rising Sun Tavern. The purpose of the state law provision, then, is to provide a single level of review for small cell collocations that may have an adverse effect on historic properties. The City would exercise review through the ARB or CPURC, as appropriate, for small cell collocations that are not reviewed by the Virginia Department of Historic Resources. In addition, the Nationwide Programmatic Agreement removes the stipulated exemption from review if the VDHR receives a written complaint that a collocation will have an adverse effect on one or more historic properties, supported by substantial evidence to support the complaint. Thus, for those small cell collocations that are subject to the review of VDHR, the City continues to have an opportunity to comment. No UDO amendments addressing the HFD are proposed at this time. Any ARB (private property) or CPURC review (public rights of way) of a small cell facility is proposed to run concurrently with the administrative 60 day deadline.
Antennas that are larger than small cell facilities: The 2017 legislation did not affect wireless telecommunication antennas that are larger than “small cell facilities.” The antenna array approved for the General Washington Executive Center,12 for example, is larger than a “small cell facility.” Likewise, the AT&T antennas collocated on the Executive Plaza roof are larger than a “small cell facility.” No changes to the UDO to address these facilities are proposed at this time. However, the Virginia Wireless Communications Infrastructure Work Group, discussed in the conclusion to this memo, is reviewing draft legislation for the 2018 General Assembly, which does address the zoning for these structures.13 City staff will continue to follow, and participate if needed, in the work of this group.
11 The City’s GIS system permits viewers to activate a map of the “VDHR National Register Historic District,” under the “Administrative” map layer. Viewers can activate the map of the HFD by choosing “Old and Historic Fredericksburg,” under the Planning/Overlay Zoning Districts map layer. The resulting map then shows viewers the extent of overlap between these two layers. 12 City Council Res. 16-03, approved January 12, 2016. 13 2017 05 01 Wireless infrastructure bill draft – zoning. Accessed at the Division of Legislative Services website. 2017 09 05 Memo to City Council Wireless Communications Infrastructure - UDOTA Page 9
New wireless support infrastructure: The definitions that are related to these facilities include “telecommunications facility, tower,” and “wireless support structure.” In particular, a “wireless support structure” is defined by state law as “a freestanding structure, such as a monopole, tower, either guyed or self-supporting, or suitable existing structure or alternative structure designed to support or capable of supporting wireless facilities. The term does not include a telephone or electrical utility pole.”14 The new state legislation does not affect local zoning authority for telecommunications monopoles. However, in light of City Council’s Broadband Priority and the Mobilitie franchise application, it is time to consider the zoning regulations for these structures. New structures in the public rights of way will be governed through the franchise process and new rights of way regulations. A “wireless support structure” is included in the UDO’s “Telecommunications Facility, Tower” definition. The proposals for zoning regulation amendments are as follows: Exempt wireless support structures in the public rights of way from zoning regulation: The new deployment model is to move from the macro-facilities on private property to smaller monopoles and distributed antenna systems that depend, in large part, on access to the public rights of way. The City staff recommends that the authority to regulate new uses and structures in the public rights of way should be consolidated in the Department of Public Works. Their traditional role is to manage this public real estate, to track the location of existing facilities, to plan and coordinate the location of new facilities, to require and oversee their relocation when needed, and to oversee utility work in the public rights of way for the protection of the workers and the travelling public. Mobilitie proposes to locate new wireless support structures in the public rights of way. It makes sense to consolidate review authority in the Department of Public Works. Therefore, the ordinance proposes amendments to Article 1, §72-13.1 to exempt these facilities from zoning review when they are located in the public rights of way. Each new provider will need a franchise from City Council as a precondition to placing facilities in the public rights of way. The Department of Public Works, working with the Historic Preservation Planner, has developed design review guidelines for use in reviewing these applications. These guidelines would be used in administering the wireless support
14 Code of Virginia §15.2-2316.3. 2017 09 05 Memo to City Council Wireless Communications Infrastructure - UDOTA Page 10 structure franchises, and applied to other franchises that permit above-ground, vertical infrastructure, such as the telephone and electric franchises. Permit the placement of wireless support structures by right on private property in all zoning districts, subject to compliance with maximum height and other regulations. This amendment is not required by law, but has been developed with the input of Mr. Craig. The rationale for this proposed change is that zoning regulations govern the maximum height of structures on a district-by-district basis. New wireless support structures do not generate traffic, noise, or parking impacts. For your reference, the maximum structure height regulations are shown in the following table: 2017 09 05 Memo to City Council Wireless Communications Infrastructure - UDOTA Page 11
Zoning District Maximum structure height R-2 40 R-4 30 R-8 30 R-12 50 R-16 50 R-30 75 R-MH 50 CT 40 C-D 50 CSC 40 CH 40 I-1 50 I-2 50 PD-R 60 PD-C 90 PD-MU Not addressed PD-MC Not addressed
For comparison purposes, the older utility poles in the public rights of way are between 35 and 45 feet tall. Modern poles tend to be taller, in the 45 – 50 foot range, due to the collocation of multiple uses on the poles and safety code separation requirements. A new telecommunications tower that exceeds the maximum height standards for the district would still require a special use permit. The Vertical Bridge telecommunications tower, for example, at a proposed 150 feet in the I-2 zoning district, would require a special use permit under the regulations as revised. As a point of comparison, the height of new monopoles in the public rights of way is proposed to be regulated through draft Design Guidelines. Under these guidelines, the height of new facilities, measured from grade to the highest reach of equipment or antenna, shall not exceed the average height of utility poles within a 500-foot radius of the proposed location, unless additional height is granted by the Director of Public Works.
2017 09 05 Memo to City Council Wireless Communications Infrastructure - UDOTA Page 12
Conclusions and looking to the future: The UDO text amendments are part of a broader package of legislation that City Council will consider to encourage the deployment of modern wireless communication infrastructure. The Planning Commission’s public hearing is scheduled for August 9, 2017. The regulatory framework for broadband and distributed antenna systems continues to change. On the state level, the 2018 General Assembly is likely to consider additional amendments requested by the broadband industry. The “Virginia Wireless Communications Infrastructure Work Group,” a subcommittee of the House Committee on Commerce and Labor, is working over the summer to develop proposed legislation for consideration next year. At the federal level, the FCC is reviewing the legal classification of broadband services as either “information services” or “telecommunication services” for purposes of the federal Telecommunications Act.15 Therefore, the City will need to continue to stay up-to-date on these changes, and to make Code amendments as necessary to continue to conform to applicable state and federal laws.
15 Federal Communications Commission May 23, 2017 “Restoring Internet Freedom Notice of Proposed Rulemaking.” MOTION: October 10, 2017 Regular Meeting SECOND: Ordinance No. 17 -
RE: Amending the Unified Development Ordinance to Exempt Wireless Communication Infrastructure, Placed in the Public Rights Of Way, from Zoning Regulation; and to Amend the Regulations Governing Wireless Communication Infrastructure on Private Property
ACTION: APPROVED; Ayes: 0; Nays: 0
FIRST READ:______SECOND READ:______
It is hereby ordained by the Fredericksburg City Council that City Code Chapter 72, the Unified Development Ordinance, is amended as follows.
I. Introduction.
The purpose of this amendment is to conform the City’s zoning regulations to new legislation adopted by the Virginia General Assembly in 2017, Virginia Acts of Assembly Chapter 835. The new legislation furthers the national, state, and local interest in promoting the deployment of wireless infrastructure, the physical foundation that supports all wireless communications. In particular, the state legislation and this ordinance respond to new technological developments in the deployment of wireless infrastructure, including distributed antenna systems and small cell facility collocations.
This amendment will permit the collocation of small cell facilities on existing structures in all zoning districts. New wireless support structures in the public rights of way will be exempt from zoning, but regulated through the City’s franchising and rights-of-way regulations. New wireless support structures on private property will continue to be reviewed through the zoning process. They will be permitted by right if they conform to the maximum height standards of structures in the district; but they will require a special use permit if they are higher than the maximum structure height otherwise permitted in the district.
The City Council adopted a resolution to initiate this text amendment at its meeting on July 11, 2017. The Planning Commission held its public hearing on the amendment on August 9, 2017, after which it voted to recommend the amendment to the City Council. The City Council held its public hearing on this amendment on September 12, 2017.
In making these amendments, the City Council has considered the factors in Code of Virginia 15.2-2284. The City Council has determined that public necessity, convenience, general welfare and good zoning practice favor the amendment.
II. City Code Amendment.
1. City Code section 72-13.1, “General Applicability,” is amended as follows: October 10, 2017 Ordinance 17-__ Page 2
Sec. 72-13.1 General Applicability.
[Subsections A and B are not amended.]
C. Unless otherwise provided for in this Chapter, the following structures and uses, when located in the public rights of way, shall be exempt from the regulations of this Chapter: street lights; traffic signalization equipment and traffic signs; fire hydrants; utility poles, antennas, small cell facilities, wireless support structures, wires, cables, conduits, vaults, for the distribution to customers of communications, cable television, or electricity; the installation, placement, maintenance, or replacement of micro-wireless facilities that are suspended on cables or lines that are strung between existing utility poles in compliance with national safety codes; laterals, pipes, mains, valves or any other similar structures or equipment for the distribution to customers of water, sanitary sewer, or stormwater services. Such structures and uses may be subject to other chapters of the City Code, and certain of these structures may further be subject to review under Code of Virginia §15.2-2232 regarding their conformity with the Comprehensive Plan.
D. The following structures shall be exempt from the minimum yard requirements set forth in this Chapter: telephone booths and pedestals, underground utility equipment, mailboxes, bus shelters, streetlights, public bus shelters or any similar structures or devices which are determined by the zoning administrator to similarly support normal public commerce, provided that the location of such structures does not present a safety risk, does not interfere with the normal flow of pedestrian and motor vehicle traffic and does not obscure the visibility of buildings, signs and other lawfully erected structures which are subject to the yard requirements of this Chapter.
2. Section 72-24.1, “Zoning permits,” is amended as follows:
Sec. 72-24.1 Zoning permits.
[Subsection A is not amended.]
B. Process.
(1) Upon the official submission of an application for a permit the Zoning Administrator shall approve, approve subject to conditions, or disapprove the application, based on its compliance with the requirements of this chapter.
(2) The Zoning Administrator shall act on a zoning permit application without public notice, except as set forth within Code of Virginia §15.2-2204(H).
(3) The Zoning Administrator shall respond within 90 days of a request for a decision or determination on zoning matters within the scope of his authority unless the requester has agreed to a longer period. But the Zoning Administrator shall respond within 60 days of an application for the collocation of one or more small cell facilities. The Zoning Administrator may extend the 60-day period in writing for a period not to exceed an additional 30 days.
October 10, 2017 Ordinance 17-__ Page 3
(4) Every decision of the Zoning Administrator approving, approving with conditions, or denying an accepted application for a zoning permit shall be in writing. A denial shall state the reasons therefor.
(5) The Zoning Administrator shall deliver to the applicant, by first class mail or other means acceptable to the applicant, every written decision. A copy of the written decision shall also be provided to any persons who received notice of the application.
(6) Unless a different provision applies, the written decision shall include a statement informing the recipient that he or she may have a right to appeal the decision within 30 days in accordance with Code of Virginia §15.2-2311, and that the decision shall be final and unappealable if not appealed within 30 days. The decision shall state the applicable appeal fee and a reference to where additional information may be obtained regarding the filing of an appeal.
3. Table 72-40.2, “Use Table,” is amended to allow the collocation of small cell facilities on existing structures in all zoning districts, as follows:
Use Category: Utilities Use Type: Small Cell Facility, Collocation Permitted: Change to “P” (permitted) in all zoning districts Additional requirements: §72-41.§66-141, et seq.
4. Table 72-40.2, “Use Table,” is amended to allow the development of wireless support structures on private property as follows:
Use Category: Utilities Use Type: Telecommunication Facility, Tower Permitted: Show as P/S in C-H, I-2, PD-C, and PD-MC zoning districts Additional regulations: §72-41.2.G
5. Chapter 72, Article IV, is amended by adding a new §72-41.5, “Utility uses,” and subsection A, “Small cell facility, collocation,” as follows:
Sec. 72-41.5 Utility uses.
A. Small cell facility, collocation. The collocation of a small cell facility shall be approved administratively unless it is disapproved for one or more of the following reasons.
(1) Material potential interference with other pre-existing communications facilities, or future communications facilities that have already been designed and planned for a specific location or that have been reserved for future public safety communications facilities;
October 10, 2017 Ordinance 17-__ Page 4
(2) The public safety or other critical public service needs;
(3) Only in the case of an installation on or in City-owned property, aesthetic impact, or the absence of all necessary approvals from all necessary departments, authorities, and agencies with jurisdiction of such property;
(4) Conflict with the HFD district regulations on a historic property that does not qualify for the review process established under 16 U.S.C. §470(w)(5).
(5) Any permitted telecommunications facility shall be disassembled and removed within 12 months after it ceases operation.
6. City Code §72-41.2.G, Use Standards for “Telecommunications Facility, Tower,” is repealed, amended, and re-adopted as subsection B of new §72-41.5, “Utility Uses,” as follows:
Sec. 72-41.5 Utility uses.
B. Telecommunications facility, tower.
(1) Permitted locations; permit required. a. No new telecommunications tower shall be constructed, erected, or relocated within the City except in those zoning districts where permitted, by special use permit or on City-owned property where specifically authorized by the City Council.
b. A new telecommunications tower that conforms to the maximum height standards of the zoning district in which it is to be placed is permitted as a by-right use if it conforms to the remaining use standards of this subsection. It does not require Comprehensive Plan review. A new telecommunications tower that exceeds the maximum height standards of the zoning district in which it is to be placed is permitted only by special use permit.
c. For purposes of this subsection, the term “altered” shall not include the placement or alteration of antennas.
[Subsections (2) and (3) and (4) are not amended.]
7. City Code §72-41.2(H), “Utility, major,” is repealed and re-adopted as a subsection (C) of new §72-41.5, “Utility Uses,” with no amendment.
8. City Code §72-84.0, “Definitions,” is amended as follows:
ANTENNA – Any structure or device used to collet or radiate electromagnetic waves Communications equipment that transmits or receives electromagnetic signals used in the provision of any type of wireless communications
October 10, 2017 Ordinance 17-__ Page 5
service, including both directional antennas such as panels and microwave dishes, and omnidirectional antennas such as whips, but excluding satellite dish antennas.
BASE STATION – A station that includes a structure that currently supports or houses an antenna, transreceiver, coaxial cables, power cables, or other associated equipment at a specific site that is authorized to communicate with mobile stations, generally consisting of radio transceivers, antennas, coaxial cables, power supplies, and other associated electronics.
EXISTING STRUCTURE – In the context of a small cell facility, any structure that is installed or approved for installation at the time a wireless services provider or wireless infrastructure provider provides notice to a locality of an agreement with the owner of the structure to co-locate equipment on that structure. “Existing structure” includes any structure that is currently supporting, designed to support, or capable of supporting the attachment of wireless facilities, including towers, buildings, utility poles, light poles, flag poles, signs, and water towers.
MICRO-WIRELESS FACILITIES – A small cell facility that is not larger in dimension than 24 inches in length, 15 inches in width, and 12 inches in height and that has an exterior antenna, if any, not longer than 11 inches.
SMALL CELL FACILITY – A wireless facility that meets both of the following qualifications: (i) each antenna is located inside an enclosure of no more than six cubic feet in volume, or in the case of an antenna that has exposed elements, the antenna and all of its exposed elements could fit within an imaginary enclosure of no more than six cubic feet; and (ii) all other wireless equipment associated with the facility cumulatively is no greater than 28 cubic feet in volume, or such higher limit as established by the Federal Communication Commission. The following types of associated equipment are not included in the calculation of equipment volume: electric meter, concealment, telecommunications demarcation boxes, ground-based enclosures, back-up power systems, grounding equipment, power transfer switches, cut- off switches, and vertical cable runs for the connection of power and other services.
TELECOMMUNICATIONS FACILITY, COLLOCATION – Collocation is a situation in which two or more different wireless communication service providers place wireless communication antenna(s) and/or other wireless communications equipment on a common antenna-supporting structure (tower, or other stationary device) or building. To install, mount, maintain, modify, operate, or replace a wireless facility on, under, within or on the surface adjacent to a base station, building, existing structure, utility pole, or wireless support structure.
TELECOMMUNICATIONS FACILITY, TOWER – A structure erected on the ground and used primarily for the support of antennas for wireless telephone, and similar communication purposes and utilized by commercial, governmental, or other public or quasi-public users. The term includes microwave towers, common-carrier towers, cellular telephone towers, alternative tower structures, and the like. The term does not include private home use of satellite dishes and television antennas, or amateur radio operator as licensed by the FCC. The term includes a wireless support structure.
WIRELESS FACILITY – Equipment at a fixed location that enables wireless communications between user equipment and a communications network, including but not limited to: (a) equipment associated with wireless services such as private, broadcast and public safety services, as well as unlicensed wireless services and fixed wireless services such
October 10, 2017 Ordinance 17-__ Page 6
as microwave backhaul; and (b) radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration.
WIRELESS SERVICES – “Personal wireless services”; “personal wireless service facilities” as defined in 47 U.S.C. §332(c)(7)(C), including commercial mobile services as defined in 47 U.S.C. §332(d), provided to personal mobile communication devices through wireless facilities; and any other fixed or mobile wireless service provided using wireless facilities.
WIRELESS SUPPORT STRUCTURE - A freestanding structure, such as a monopole, tower, either guyed or self-supporting, or suitable existing structure or alternative structure designed to support or capable of supporting wireless facilities. “Wireless support structure” does not include any telephone or electrical utility pole or any tower used for the distribution or transmission of electrical service.
SEC. III. Effective Date.
This ordinance is effective immediately.
Votes: Ayes: Nays: Absent from Vote: Absent from Meeting:
Approved as to form:
______Kathleen Dooley, City Attorney ***************
Clerk’s Certificate I, the undersigned, certify that I am Clerk of Council of the City of Fredericksburg, Virginia, and that the foregoing is a true copy of Ordinance No. 17- duly adopted at a meeting of the City Council meeting held Date, 2017 at which a quorum was present and voted. ______Tonya B. Lacey, CMC Clerk of Council
MEMORANDUM
TO: Kathleen Dooley, City Attorney FROM: Rob Eckstrom, Assistant City Attorney DATE: Updated September 5, 2017 / June 30, 2017 RE: Rights-of-Way Use Project details1
note: the draft Design Guidelines referred to in the ordinance are included in Council's packet for reference and discussion. Council is not asked to approve the Design Guidelines at this meeting.
Update:
After Council's 7/11 work session, staff has worked to advance the project.
All documents have been sent to the City's existing franchisees. Verizon (Fios) has made one comment—that pole replacements and extensions of existing pole lines should be exempt from undergrounding requirements. Staff has revised the draft ROW Use Ordinance to clarify that replacement poles are permitted. The Public Works Director has the discretion to determine whether to exempt facilities requiring new poles from the undergrounding requirement—staff does not propose making an explicit exception for "extensions of existing pole lines." Counsel for Verizon (wireless) has expressed some concern with the draft ROW Use design guidelines—they intend to submit written comments and are meeting with City staff tomorrow to discuss their concerns. No other franchisee comments have been received.
Council initiated the project's UDO text amendment at its 7/11 meeting. At the 8/9 Planning Commission meeting, the Commission recommended that Council approve the text amendment. The Planning Commission had two concerns with the draft documents. First, that the regulations could allow collocations of small cell facilities on existing utility poles to raise the overall height of the structures to an unacceptable height. Second, that the definition of small cell facilities was too broad, and that fairly large facilities, including antenna and equipment cabinets that are unacceptably large, could be installed.
Staff proposes to address those concerns as follows:
Section 66-148 of the draft ROW Use Ordinance sets a 55' maximum height for any facility in the right-of-way. The draft Design Guidelines also include height and bulk regulations: - Wireless providers shall use the smallest and least visible antennas, equipment cabinets, and other facilities to accomplish the operator’s coverage and service objectives (II.a). - At the time of modification or upgrade of facilities, existing equipment shall, to the extent feasible, be replaced with equipment of equal or greater technical capacity and reduced size so as to reduce visual impacts (III.a.vii).
1 The packet also contains a separate memo discussing the UDO text amendment. Page 1 of 5
- Facilities installed on existing wireless support structures and utility poles shall not be larger, more obtrusive, or more readily visible than the existing facilities and devices affixed to the structure or pole (III.b.i). - The height of new facilities, measured from grade to the highest reach of equipment or antenna, shall not exceed the average height of utility poles within a 500-foot radius of the proposed location, unless additional height is expressly granted by the Director of Public Works. Additional height will only be granted where it is essential for proper functionality of utilities or wireless telecommunications facilities and must meet the height standards defined in City Code § 72-41.2 (G) (III.b.ii). - An antenna enclosure attached to the top of a utility pole shall not exceed 4 feet in height, and shall not have a diameter greater than the diameter of the pole (III.b.iii). - The maximum height of any facility inside the public right-of-way in the Historic Fredericksburg District shall be 40 feet, unless specifically approved otherwise by the Director of Public Works (IV.a.iv).
The definition of small cell facility (including a maximum antenna enclosure/exposed elements volume of six cubic feet and a 28 cubic foot maximum for all related equipment) is set by state code. However, Mobilitie has indicated that it would not need to install facilities that large and staff is working on franchise agreement language that would reduce the maximum permitted size of those facilities.
Staff presented the project documents to the ARB at its August 14 meeting, with an emphasis on the Design Guidelines. We believe that the current drafts adequately address the ARB's interests.
The project documents were also sent to Fredericksburg Main Street for comment. No comments have yet been received.
The project is currently on track for final approval at Council's October 10 meeting. To stay on that schedule, two public hearings are scheduled for Council's September 12 meeting: for the Mobilitie franchise and for the UDO text amendment. Council is asked to approve those ordinances, as well as the ROW Use Ordinance and the CPURC Ordinance on first read. Next (if needed) would be a September 26 Council work session, at which Council and staff could consider making amendments based on any comments received at the public hearing/any additional public comment. Final passage of all documents (one read for a resolution approving the Design Guidelines and second read on the other four documents) would then take place on October 10.
Overview:
This project consolidates the management of telecommunications facilities in the public rights-of-way with the Director of Public Works. This is intended to encourage investment in broadband technologies within the City, and to ensure that all franchised users of the rights-of-way are treated fairly and equally.
This is a complex project involving many staff members, affecting many stakeholders, touching several of Council's priorities, amending several chapters of the City Code, and adopting new administrative regulations.
This project came about for several reasons:
1) City Council adopted as priorities: "create more focus on broadband to be the fastest city in Virginia for broadband" and "Implement the "One-Dig-Program"".
Page 2 of 5
2) The Virginia General Assembly passed SB1282 (later signed by Governor McAuliffe after minor adjustments). This bill imposes new requirements on local governments in relation to certain types of telecommunication facilities. It takes effect this July 1.
3) Mobilitie, LLC has been working with City staff to obtain permission to place new wireless telecommunications facilities in our rights-of-way.
Council priorities involved:
A Proven Leader in Historic Preservation Priority #21: Streamline the development and ARB process with stakeholders to improve clarity on what is required when bringing a new project to the City (i.e. UDO)
3. Review and initiate amendments to the UDO and Procedures Manual, including making some minor alternations in administrative approvals, GIS provide historic district information, and provide a new historic property inventory
The CPURC ordinance will be updated as part of this project.
Public Services - The Backbone of our Community Priority #29: Create more focus on broadband to be the fastest City in Virginia for broadband
Mobilitie's facilities will improve 4G (and eventually 5G) wireless service in the City.
Priority #32: Implement the “One-Dig” program
2. Convene and meeting with Public Works, Public Utilities, Columbia Gas, Dominion Virginia Power, Verizon, IT and others as necessary to develop a SOP and communications plan
Those parties will be invited to review and comment on the project documents. A pilot period is specifically built into the project schedule so that any concerns can be addressed.
3. Identify any legislative changes that might be permitted by State law and may be wise to do or franchise.
The new state wireless infrastructure law specifically forbids the City from requiring any in- kind contributions in exchange for approval of permits for new wireless infrastructure installations on public property. This is a step backward from "one-dig". However, the proposed ROW Use ordinance requires the Director of Public Works to refer applications to the Information Technology Director to determine whether it is in the City's interest to negotiate a conduit agreement with the applicant. This language mirrors the new state law.
4. Establish and review permit procedures for street cut.
The proposed ROW Use Ordinance and accompanying ROW Use Design Guidelines do so.
5.Bring program to Council for adoption.
The entire project will come to Council for approval.
Other considerations:
Page 3 of 5
While the City enthusiastically encourages broadband deployment, it must also manage the rights-of- way for all of its users. This includes discouraging proliferation of poles and other structures, keeping public spaces safe and aesthetically pleasing, and allotting the limited space in the rights-of-way fairly among our seven current franchisees and any potential new franchisees, not to mention the motorists and pedestrians that use the rights-of-way for their main purpose. The documents drafted by staff attempt to strike a balance between these concerns that enables us to effectively manage our rights-of- way, facilitate private investment in broadband in the City, and positively impact VML and VACO's efforts to lobby against harmful legislative in next year's General Assembly and beyond.
Staff involved:
Public Works: Dave King, Director Shawn Beavon, Deputy Superintendent of Public Works - Traffic Martin Schlesinger, Assistant Director of Public Works - Utilities
Information Technology: Suzanne Tills, Director; leader on Council priorities #29 (broadband) and #32 ("One-Dig")
Community Planning and Building Mike Craig, Zoning Administrator Kate Schwartz, Historic Resources Planner
City Attorney's Office Kathleen and Rob
Stakeholders:
Planning Commission will need to review proposed zoning ordinance text amendment.
CPURC will need to review proposed amendments to CPURC ordinance.
HFFI and Main Street may wish to review proposed changes to legislation affecting historic district.
Neighborhood associations may wish to review proposed standards for right-of-way installations, especially those applicable to residential areas.
Current franchisees: Dominion, Columbia Gas, Verizon, Cox, Comcast, KDL Telphone, and TelCove will want the opportunity to review all of the proposed changes.
Mobilitie is currently in franchise negotiations with the City Attorney. Others who want to make investments in our City might also be interested, such as Crown Castle.
Any others identified by Council.
Documents involved:
-Unified Development text amendment -ROW Use Ordinance -ROW Use Design Standards -CPURC Ordinance -Mobilite/template wireless infrastructure franchise agreement
Page 4 of 5
UDOTA:
Exempts antennas, small cell facilities, wireless support structures, and micro-wireless facilities (all facilities affected by SB1282) in the rights-of-way from the UDO. Amends the UDO to incorporate mandatory provisions of SB1282 related to zoning of those facilities on parcels of land.
ROW Use Ordinance:
Delegates to the Director of Public Works the responsibility for managing installation of utilities, wireless structures, and other facilities within the public rights-of-way. The ordinance applies to all franchised users of the rights-of-way in a reasonable and non-discriminatory manner, and facilitates the City Council's goals of increasing broadband access and implementing "One-Dig" concepts within the limits imposed by state law, while maintaining public safety and the navigability of the rights-of- way for all users.
ROW Use Design Standards:
Addresses siting issues, collocations, undergrounding, colors, materials, lighting, height, bulk, and other issues relating to installation of facilities in the rights-of-way.
CPURC Ordinance:
Amends the authority and procedures of the City and Public Utility Review Committee (CPURC) to conform to SB1282 and other federal and state requirements, and to advance Council goal #29.
Franchise Agreement:
New template franchise agreement, based on the City's standard franchise agreement for similar companies but adapted for providers of wireless infrastructure.
Page 5 of 5
ITEM #11B
MEMORANDUM
TO: Kathleen Dooley, City Attorney FROM: Rob Eckstrom, Assistant City Attorney DATE: Updated September 5, 2017 / June 30, 2017 RE: Rights-of-Way Use Project details1
note: the draft Design Guidelines referred to in the ordinance are included in Council's packet for reference and discussion. Council is not asked to approve the Design Guidelines at this meeting.
Update:
After Council's 7/11 work session, staff has worked to advance the project.
All documents have been sent to the City's existing franchisees. Verizon (Fios) has made one comment—that pole replacements and extensions of existing pole lines should be exempt from undergrounding requirements. Staff has revised the draft ROW Use Ordinance to clarify that replacement poles are permitted. The Public Works Director has the discretion to determine whether to exempt facilities requiring new poles from the undergrounding requirement—staff does not propose making an explicit exception for "extensions of existing pole lines." Counsel for Verizon (wireless) has expressed some concern with the draft ROW Use design guidelines—they intend to submit written comments and are meeting with City staff tomorrow to discuss their concerns. No other franchisee comments have been received.
Council initiated the project's UDO text amendment at its 7/11 meeting. At the 8/9 Planning Commission meeting, the Commission recommended that Council approve the text amendment. The Planning Commission had two concerns with the draft documents. First, that the regulations could allow collocations of small cell facilities on existing utility poles to raise the overall height of the structures to an unacceptable height. Second, that the definition of small cell facilities was too broad, and that fairly large facilities, including antenna and equipment cabinets that are unacceptably large, could be installed.
Staff proposes to address those concerns as follows:
Section 66-148 of the draft ROW Use Ordinance sets a 55' maximum height for any facility in the right-of-way. The draft Design Guidelines also include height and bulk regulations: - Wireless providers shall use the smallest and least visible antennas, equipment cabinets, and other facilities to accomplish the operator’s coverage and service objectives (II.a). - At the time of modification or upgrade of facilities, existing equipment shall, to the extent feasible, be replaced with equipment of equal or greater technical capacity and reduced size so as to reduce visual impacts (III.a.vii).
1 The packet also contains a separate memo discussing the UDO text amendment. Page 1 of 5
ITEM #11B
- Facilities installed on existing wireless support structures and utility poles shall not be larger, more obtrusive, or more readily visible than the existing facilities and devices affixed to the structure or pole (III.b.i). - The height of new facilities, measured from grade to the highest reach of equipment or antenna, shall not exceed the average height of utility poles within a 500-foot radius of the proposed location, unless additional height is expressly granted by the Director of Public Works. Additional height will only be granted where it is essential for proper functionality of utilities or wireless telecommunications facilities and must meet the height standards defined in City Code § 72-41.2 (G) (III.b.ii). - An antenna enclosure attached to the top of a utility pole shall not exceed 4 feet in height, and shall not have a diameter greater than the diameter of the pole (III.b.iii). - The maximum height of any facility inside the public right-of-way in the Historic Fredericksburg District shall be 40 feet, unless specifically approved otherwise by the Director of Public Works (IV.a.iv).
The definition of small cell facility (including a maximum antenna enclosure/exposed elements volume of six cubic feet and a 28 cubic foot maximum for all related equipment) is set by state code. However, Mobilitie has indicated that it would not need to install facilities that large and staff is working on franchise agreement language that would reduce the maximum permitted size of those facilities.
Staff presented the project documents to the ARB at its August 14 meeting, with an emphasis on the Design Guidelines. We believe that the current drafts adequately address the ARB's interests.
The project documents were also sent to Fredericksburg Main Street for comment. No comments have yet been received.
The project is currently on track for final approval at Council's October 10 meeting. To stay on that schedule, two public hearings are scheduled for Council's September 12 meeting: for the Mobilitie franchise and for the UDO text amendment. Council is asked to approve those ordinances, as well as the ROW Use Ordinance and the CPURC Ordinance on first read. Next (if needed) would be a September 26 Council work session, at which Council and staff could consider making amendments based on any comments received at the public hearing/any additional public comment. Final passage of all documents (one read for a resolution approving the Design Guidelines and second read on the other four documents) would then take place on October 10.
Overview:
This project consolidates the management of telecommunications facilities in the public rights-of-way with the Director of Public Works. This is intended to encourage investment in broadband technologies within the City, and to ensure that all franchised users of the rights-of-way are treated fairly and equally.
This is a complex project involving many staff members, affecting many stakeholders, touching several of Council's priorities, amending several chapters of the City Code, and adopting new administrative regulations.
This project came about for several reasons:
1) City Council adopted as priorities: "create more focus on broadband to be the fastest city in Virginia for broadband" and "Implement the "One-Dig-Program"".
Page 2 of 5
ITEM #11B
2) The Virginia General Assembly passed SB1282 (later signed by Governor McAuliffe after minor adjustments). This bill imposes new requirements on local governments in relation to certain types of telecommunication facilities. It takes effect this July 1.
3) Mobilitie, LLC has been working with City staff to obtain permission to place new wireless telecommunications facilities in our rights-of-way.
Council priorities involved:
A Proven Leader in Historic Preservation Priority #21: Streamline the development and ARB process with stakeholders to improve clarity on what is required when bringing a new project to the City (i.e. UDO)
3. Review and initiate amendments to the UDO and Procedures Manual, including making some minor alternations in administrative approvals, GIS provide historic district information, and provide a new historic property inventory
The CPURC ordinance will be updated as part of this project.
Public Services - The Backbone of our Community Priority #29: Create more focus on broadband to be the fastest City in Virginia for broadband
Mobilitie's facilities will improve 4G (and eventually 5G) wireless service in the City.
Priority #32: Implement the “One-Dig” program
2. Convene and meeting with Public Works, Public Utilities, Columbia Gas, Dominion Virginia Power, Verizon, IT and others as necessary to develop a SOP and communications plan
Those parties will be invited to review and comment on the project documents. A pilot period is specifically built into the project schedule so that any concerns can be addressed.
3. Identify any legislative changes that might be permitted by State law and may be wise to do or franchise.
The new state wireless infrastructure law specifically forbids the City from requiring any in- kind contributions in exchange for approval of permits for new wireless infrastructure installations on public property. This is a step backward from "one-dig". However, the proposed ROW Use ordinance requires the Director of Public Works to refer applications to the Information Technology Director to determine whether it is in the City's interest to negotiate a conduit agreement with the applicant. This language mirrors the new state law.
4. Establish and review permit procedures for street cut.
The proposed ROW Use Ordinance and accompanying ROW Use Design Guidelines do so.
5.Bring program to Council for adoption.
The entire project will come to Council for approval.
Other considerations:
Page 3 of 5
ITEM #11B
While the City enthusiastically encourages broadband deployment, it must also manage the rights-of- way for all of its users. This includes discouraging proliferation of poles and other structures, keeping public spaces safe and aesthetically pleasing, and allotting the limited space in the rights-of-way fairly among our seven current franchisees and any potential new franchisees, not to mention the motorists and pedestrians that use the rights-of-way for their main purpose. The documents drafted by staff attempt to strike a balance between these concerns that enables us to effectively manage our rights-of- way, facilitate private investment in broadband in the City, and positively impact VML and VACO's efforts to lobby against harmful legislative in next year's General Assembly and beyond.
Staff involved:
Public Works: Dave King, Director Shawn Beavon, Deputy Superintendent of Public Works - Traffic Martin Schlesinger, Assistant Director of Public Works - Utilities
Information Technology: Suzanne Tills, Director; leader on Council priorities #29 (broadband) and #32 ("One-Dig")
Community Planning and Building Mike Craig, Zoning Administrator Kate Schwartz, Historic Resources Planner
City Attorney's Office Kathleen and Rob
Stakeholders:
Planning Commission will need to review proposed zoning ordinance text amendment.
CPURC will need to review proposed amendments to CPURC ordinance.
HFFI and Main Street may wish to review proposed changes to legislation affecting historic district.
Neighborhood associations may wish to review proposed standards for right-of-way installations, especially those applicable to residential areas.
Current franchisees: Dominion, Columbia Gas, Verizon, Cox, Comcast, KDL Telphone, and TelCove will want the opportunity to review all of the proposed changes.
Mobilitie is currently in franchise negotiations with the City Attorney. Others who want to make investments in our City might also be interested, such as Crown Castle.
Any others identified by Council.
Documents involved:
-Unified Development text amendment -ROW Use Ordinance -ROW Use Design Standards -CPURC Ordinance -Mobilite/template wireless infrastructure franchise agreement
Page 4 of 5
ITEM #11B
UDOTA:
Exempts antennas, small cell facilities, wireless support structures, and micro-wireless facilities (all facilities affected by SB1282) in the rights-of-way from the UDO. Amends the UDO to incorporate mandatory provisions of SB1282 related to zoning of those facilities on parcels of land.
ROW Use Ordinance:
Delegates to the Director of Public Works the responsibility for managing installation of utilities, wireless structures, and other facilities within the public rights-of-way. The ordinance applies to all franchised users of the rights-of-way in a reasonable and non-discriminatory manner, and facilitates the City Council's goals of increasing broadband access and implementing "One-Dig" concepts within the limits imposed by state law, while maintaining public safety and the navigability of the rights-of- way for all users.
ROW Use Design Standards:
Addresses siting issues, collocations, undergrounding, colors, materials, lighting, height, bulk, and other issues relating to installation of facilities in the rights-of-way.
CPURC Ordinance:
Amends the authority and procedures of the City and Public Utility Review Committee (CPURC) to conform to SB1282 and other federal and state requirements, and to advance Council goal #29.
Franchise Agreement:
New template franchise agreement, based on the City's standard franchise agreement for similar companies but adapted for providers of wireless infrastructure.
Page 5 of 5
MOTION: October 10, 2017 Regular Meeting SECOND: Ordinance No. 17-__
RE: Granting a Ten Year (with Three Options for Five Year Renewals Upon Mutual Agreement) Non-Exclusive Franchise to Mobilitie, LLC for Wireless Infrastructure in the Public Rights-of-Way
ACTION: APPROVED: Ayes: 0; Nays: 0
FIRST READ:______SECOND READ:______
Sec. I Introduction.
Mobilitie, LLC has applied to the City Council for a ten year non-exclusive franchise to install and operate wireless infrastructure in the public rights-of-way. The terms of this franchise have been negotiated by the City and Mobilitie.
Sec. II. Grant of franchise.
The City Council hereby finds that the grant of the franchise is in the public interest. Therefore, the City Manager is hereby authorized and directed to execute a franchise agreement between the City and Mobilitie, LLC, in substantially the same form as the agreement attached to this ordinance, subject to the review and approval of the City Attorney.
Sec. III. Effective date.
This ordinance becomes effective immediately.
Votes: Ayes: Nays: Absent from Vote: Absent from Meeting:
Approved as to form:
______Kathleen Dooley, City Attorney
October 10, 2017 Ordinance 17-__ Page 2
***************
Clerk’s Certificate I, the undersigned, certify that I am Clerk of Council of the City of Fredericksburg, Virginia, and that the foregoing is a true copy of Ordinance No. 17- duly adopted at a meeting of the City Council meeting held Date, 2017 at which a quorum was present and voted.
______Tonya B. Lacey, CMC Clerk of Council
WIRELESS INFRASTRUCTURE FRANCHISE
between
THE CITY OF FREDERICKSBURG, VIRGINIA
and
MOBILITIE, L.L.C.
FRANCHISE
This franchise, dated ______, 2017, is between the CITY OF FREDERICKSBURG, VIRGINIA, a municipal corporation (“City”), and MOBILITIE, LLC, a Nevada limited liability company (“Grantee”), with its principal place of business at 660 New Port Center Drive, Suite 200, Newport Beach, California 92260.
Recitals:
A. On July 12, 2007, in case number 2007-00026, Grantee was granted a Certificate of Public Convenience and Necessity by the Virginia State Corporation Commission for the provision of local exchange and interexchange telecommunications services, as defined by Code of Virginia § 56-1. However, Grantee does not provide local exchange or interexchange telecommunications services within the City of Fredericksburg.
B. Grantee is a “wireless infrastructure provider,” as defined by Code of Virginia § 56- 484.26.
C. Grantee seeks to occupy the City’s streets for the construction, maintenance, and operation of transmission equipment, wireless facilities, and wireless support structures, all as defined by Code of Virginia § 56-484.26.
D. Under Virginia Constitution Article VII Section 9, and Code of Virginia §§ 15.2-2017 and 56-460, inter alia, Grantee must obtain City Council approval to do so.
E. The City has determined that it is in the public interest to grant a non-exclusive franchise to Grantee for the provision of wireless infrastructure within the City’s boundaries.
F. The City Council, after public notice and hearing, adopted Ordinance No. 17-__ on ______, 2017, authorizing the City Manager to execute this franchise.
Franchise Terms:
The terms of this franchise are as follows:
ARTICLE 1 DEFINITIONS
1. Terms used in this franchise that are defined in Code of Virginia § 56.484.26 shall have the meanings ascribed to them in that section.
ARTICLE 2 GRANT OF ACCESS AND USE
1
2.1 Grantee may locate, construct, install, improve, maintain, repair, replace, remove, and use antennas, micro-wireless facilities, small cell facilities, wires, cables, conduits, lines, wireless support structures, and supporting equipment and appliances in, over, along, on, and under the public streets and alleys of the City for the purposes of providing wireless infrastructure (“Facilities”), in accordance with plans approved by the City Director of Public Works.
2.2 Nothing in this franchise waives any requirement of the Fredericksburg City Code or regulations of the City regarding permits, fees to be paid, or manner of construction. In addition, this franchise is subject to all ordinances and resolutions lawfully adopted by the City Council of the City of Fredericksburg not inconsistent with the terms of this franchise, specifically including Fredericksburg City Code Chapter 66, Article IV – Utility and Wireless Facilities, Poles, Lines, and Structures, and to all provisions of state and federal law currently in effect or amended subsequent to the execution of this franchise.
2.3 Nothing in this franchise permits Grantee to install Facilities on any City-owned structure, specifically including utility poles, light poles, traffic signals, towers, buildings, flag poles, signs, and water towers, unless the City and Grantee enter into a separate agreement for those installations.
ARTICLE 3 JURISDICTION; POLICE POWER
3.1 Grantee acknowledges and accepts the legal right of the City to grant this franchise and to secure the terms, conditions, and fees set forth herein.
3.2 The parties agree that this franchise is not intended to abridge, and shall not be construed as abridging, the lawful exercise by the City of its police power.
3.3 Except as provided in Code of Virginia § 56-468.1, nothing contained in this franchise shall be construed as exempting Grantee from any tax, levy, or assessment which is now or which may be hereafter authorized by law.
3.4 This franchise is not intended to, and does not, impose any restrictions or requirements concerning the use of the public rights-of-way, including permitting processes, zoning processes, time and location of excavations and repair work, enforcement of the statewide building code, and inspections, that are unfair, unreasonable, or discriminatory compared to the City of Fredericksburg's restrictions on and requirements of other franchised users of City rights-of-way.
ARTICLE 4 EFFECTIVE DATE AND TERM
4.1 The effective date of this franchise shall be ______, 2017.
4.2 The term of this franchise shall be for a period of ten years from the effective date, with three options for renewal for terms of five years each upon mutual agreement, 2
unless sooner terminated as provided herein or otherwise provided by law. Grantee shall notify the City at least sixty days before the end of any initial or renewal term if it wishes to renew the franchise for an additional term.
4.3 If the Grantee continues to use the Facilities, then the Grantee shall continue to comply with all applicable provisions of this franchise, including, without limitation, all compensation and other payment provisions, throughout the continued use.
ARTICLE 5 FRANCHISE NON-EXCLUSIVE
5.1 This franchise shall not be construed as constituting any limitation upon the right of the City to grant other persons any rights, privileges, or authorities similar to those set forth herein, in the same or other streets, alleys, or other public ways or places within the City. The City specifically reserves the right to grant at any time during the term of the franchise or continuation of Grantee’s occupation as contemplated under Section 4.3 above, or any renewal of this franchise, such additional licenses for the provision of wireless infrastructure as it may seem appropriate.
ARTICLE 6 SERVICES PROVIDED
6.1 Grantee may use the Facilities to provide wireless infrastructure. In the event Grantee seeks to offer any additional regulated services other than those specified above, it shall file an application with the City Manager to amend this franchise, pursuant to applicable law.
ARTICLE 7 LOCATION, INSTALLATION, AND MAINTENANCE OF FACILITIES
7.1 The Facilities authorized by this franchise shall be at locations approved by the City that are reasonably suitable and convenient for the purposes of the Grantee and the City. Except where approval is within the exclusive jurisdiction of the U.S. Federal Communications Commission, the Virginia State Corporation Commission, or some governmental entity other than the City, review and approval of the locations, designs, and appearances of Grantee’s Facilities shall be undertaken by the City Director of Public Works or his designee, with the right on the part of the Grantee to appeal from these decisions to the City Manager, whose decision on any such appeal shall be the City’s final determination as to the location, designs, and appearances of the Grantee’s Facilities.
7.1.1 For proposed Facilities on City right-of-way in the City’s Old and Historic Fredericksburg Zoning District, the Grantee shall submit plans to the City and Public Utility Review Committee, as required under City Code § 66-191, et. seq., as amended, and shall be subject to the review and appeal procedures specifically set forth therein.
3
7.2 Other than routine maintenance, repair, and replacement, the Grantee shall not place, construct, install, move, alter, or change the location of any Facilities or dig in, cut, or disturb any public street or alley, in a manner that changes the exterior appearance or increases the weight of the Facilities of the City unless prior written notice of its intention to do so has been given to and a utility permit issued to the Grantee by the Department of Public Works, which permission shall not be unreasonably withheld. In cases of emergency or where the requirement for notice and permission has been expressly waived by the Department of Public Works, no notice need be given and no permission obtained. Any permission provided pursuant to this section shall be conditioned upon the Grantee’s compliance with the provisions, terms, conditions, and limitations of this franchise and with such other reasonable and lawful provisions, terms, conditions, and limitations which the City determines are necessary in order to preserve, protect, or promote the safety of the public using the streets and alleys of the City, to prevent interference with or obstruction of the use of streets and alleys by the City, the public, or any public utility or public service corporation for their respective purposes and functions, or to preserve protect or promote the health, safety and general welfare of the City and its citizens.
7.3 Within 30 days of completion of any new Facilities, the Grantee shall provide the City, at no cost to the City, copies of any plans, maps, and records of such new Facilities prepared by Grantee in the normal course of its business.
7.4 Grantee shall relocate the Facilities when relocation is necessary due to a transportation project or material change to the right-of-way, so long as other users of the right-of-way are required to relocate. Relocation shall be completed as soon as reasonably possible within the time set forth in any written request by the City, as long as the City provides Grantee with a minimum of 180 days' advance written notice to comply, unless circumstances beyond the control of the City require a shorter period of advance notice. Grantee shall bear only the proportional cost of relocation that is caused by the transportation project and shall not bear any cost related to private benefit or where Grantee was on private right-of-way. If the City bears any of the cost of the relocation, Grantee shall not be obligated to commence the relocation until it receives the funds for relocation. Grantee shall have no liability for any delays caused by a failure to receive funds for the cost of relocation, and the City shall have no obligation to collect those funds. If relocation is deemed necessary, the City shall work cooperatively with the Grantee to minimize any negative impact to the wireless signal caused by the relocation. There may be emergencies when relocation is required to commence in an expedited manner, and in such situations Grantee and the City shall work diligently to accomplish emergency relocation. Relocation shall be performed in a like-for-like manner (e.g. Facilities shall be relocated to the same height above ground level) unless the City and the Grantee agree otherwise, on a case-by-case basis.
7.5 To the extent technically feasible, Grantee agrees to cooperate with the City and other public utility companies in the City’s efforts to undertake on a systematic basis the undergrounding of all public utility lines. If the City decides to undertake the undergrounding of public utility lines in a particular block or area and constructs and installs, at the City’s sole expense and in accordance with Grantee’s reasonable specifications, the necessary conduits, ductways, manholes, handholes, appliances and 4
devices for undergrounding Grantee’s overhead lines, to the extent Grantee has deployed lines overhead, Grantee shall relocate its affected lines underground in such area. To the extent Grantee relocates lines underground, any and all conduits and ductways necessary for such work may, and at the discretion of the City shall be constructed so as to provide for excess capacity for the installation of other utility lines, to the extent such construction does not interfere with the operation and maintenance of Grantee’s Facilities. The City shall obtain or cause to be obtained, without charge to Grantee, suitable public or private easements as may be required for its relocated facilities. The City shall give advance written notice to Grantee no later than June 30 of the previous calendar year, or the extent and general location of the undergrounding that it desires to undertake in any calendar year.
7.6 All work involved in the installation, maintenance, upgrade, repair and removal of Facilities shall be performed in a safe, thorough, and reliable manner in accordance with industry, professional, state, and federal mandated standards and using materials of good and durable quality. If, at any time, it is determined by an agency or authority of competent jurisdiction that any Facility is harmful to the health or safety of any person or property, then the Grantee shall, at its own cost and expense, promptly correct all such conditions.
7.7 Upon request, but no more than once per calendar year, Grantee shall submit to the Director of the City’s Department of Public Works a written description of all major construction projects that Grantee plans to undertake in, upon, or under the streets, alleys, and other public places of the City, or that are likely to have an impact upon such public property within the following twelve months. The absence of any proposed work from this plan shall not be grounds for the denial of a permit for the work.
7.8 Grantee shall promptly remove all Facilities no longer in use, in accordance with Fredericksburg City Code Chapter 66, Article IV – Utility and Wireless Facilities, Poles, Lines, and Structures.
ARTICLE 8 PROTECTION OF CITY PROPERTY
8.1 In placing, constructing, installing, improving, maintaining, repairing, replacing, and using the Facilities authorized by this franchise, the Grantee shall avoid all unnecessary damage to trees in and along the public streets and alleys of the City. The Grantee shall not cut or otherwise injure said trees to any greater extent than is reasonably necessary for the placement, construction, installation, improvement, maintenance, repair, or use of its Facilities.
8.2 In the event that Grantee, in the course of placing, constructing, installing, improving, maintaining, repairing, or using any of its Facilities disturbs or causes damage to any street, pavement, sidewalk, sewer, water, or other pipe, or other property of the City, the Grantee shall promptly notify the Director of Public Works of the damage, and unless otherwise advised by the Director or the Director’s designee, promptly repair or replace the same to at least good condition as it was in immediately prior to such 5
work, at Grantee’s own cost and expense. Grantee may make partial or temporary repairs, without having notified Director of the damage, in emergency situations. The Director shall give final approval of the condition of such streets and City property after restoration. In the event that Grantee fails to complete repair or replacement work within 60 days after written notice of the need for it from the City, the City may undertake such work itself. Grantee shall thereafter reimburse the City for any and all reasonable costs incurred by the City in performing the work. In the event the City undertakes such repair or replacement work pursuant to this section, the City shall not be liable to the Grantee for any damages incurred by Grantee that may result from such work, except for damage resulting from the negligent or wilful acts or omissions of the City, its officers, agents, employees, or contractors.
ARTICLE 9 INDEMNIFICATION; BONDING; INSURANCE
9.1 The Grantee shall indemnify the City for, and shall hold the City harmless from any and all losses, damages to tangible property, injury to persons (including death), judgments, liabilities, costs, claims, and expenses asserted by third parties, however caused, resulting from or arising out of the acts or omissions of the Grantee pursuant to this franchise; provided, however, that Grantee shall not be required to indemnify and hold the City harmless for losses, damages, judgments, liabilities, costs or expenses arising from a third party’s personal injury, property damage or other loss to the extent they have been caused by the City’s negligence or any wilful or malicious act or omission of the City, its officers, agents, employees, or contractors.
9.2 In the event that any legal action is brought against the City, including any of its officers, agents, or employees, by a third party seeking compensation or other relief on account of any injury to person (including death) or damage to tangible property resulting from or arising out of the acts or omissions of the Grantee pursuant to this franchise, whether or not suit is also brought against Grantee or one or more of its officers, agents, or employees, Grantee shall, upon written notice from the City, defend the City and all of its officers, agents, or employees named in such action, at the sole cost of Grantee. In the event that a final judgment is entered against the City and any other individual or entity, including the Grantee, the court or jury shall ascertain the extent to which each party is liable for the damages assessed. If it be ascertained by the judgment of the court that some person or corporation other than the City is primarily liable, there shall be a stay of execution until execution against such person or corporation shall have been returned without realizing the full amount of such judgment.
9.2 Notwithstanding anything to the contrary contained in this agreement, neither party shall be liable to the other party for consequential, incidental, punitive, exemplary or indirect damages suffered by such party or by any subscriber, customer or purchaser of such party for lost profits or other business interruption damages, whether by virtue of any statute, in tort or in contract, under any provision of indemnity, or otherwise, regardless of the theory of liability upon which any such claim may be based or whether it (a) has been informed of the possibility of such damages or (b) is negligent. 6
9.3 This franchise and the rights and privileges granted hereunder shall not become effective unless and until Grantee has filed with the City Manager a performance bond in the sum of $10,000 in a form and with surety satisfactory to the City Attorney, which provides assurances that the Grantee will place, construct, install, improve, maintain, repair, replace, and use any and all its Facilities in a good and safe conditions and good order throughout the term of this franchise, and that Grantee will comply with the provisions, terms, conditions, limitations, and obligations of this franchise in all respects. The bond shall provide that if Grantee fails to comply with any of these assurances, the City shall be entitled, after 30 days’ notice to Grantee, to draw funds from the surety which will enable the City to undertake the action or actions that Grantee has failed to perform or otherwise remedy the Grantee’s failure to perform. Any required Performance bond shall contain the following endorsement:
This Bond shall be effective [date], and shall remain in full force and effect thereafter for a period of one year and will automatically extend for additional one year periods for the term of the franchise or so long as Grantee occupies the City’s rights-of-way, unless the Surety provides to the Obligee not less than 60 days advance written notice of its intent not to renew this Bond or unless the Bond is earlier canceled pursuant to the following: This Bond may be canceled at any time upon 60 days advance written notice from the Surety to the Obligee.
Neither cancellation, termination nor refusal by Surety to extend this Bond, nor the inability of Principal to file a replacement bond or replacement security for its obligations under the franchise shall constitute a loss to the Obligee recoverable under this Bond.
9.4 Grantee shall maintain, throughout the term of this franchise and so long as Grantee occupies the City’s Rights of Way, liability insurance insuring Grantee and the City with regard to all damages mentioned in paragraph 8.02 hereof, in the minimum amounts of: 9.4.1 $2,000,000 for bodily injury or death to any one person; 9.4.2 $3,000,000 for bodily injury or death resulting from any one occurrence: 9.4.3 $1,000,000 for umbrella/liability for any one occurrence.
9.5 At the time of acceptance, Grantee shall furnish to the City a certificate evidencing that a satisfactory insurance policy has been obtained and naming the City as an additional insured. Said certificate shall be a standard ACORD Certificate or its equivalent and such insurance policy shall require that the City be notified 30 days before any cancellation.
ARTICLE 10 PERFORMANCE STANDARDS
10.1 Grantee’s Facilities shall be used to provide wireless infrastructure within the City, and Grantee will place, construct, install, improve, maintain, repair, replace, and use its Facilities in a safe manner and conditions and in good working order. Grantee hereby 7
agrees to comply with any and all lawful requirements of the State Corporation Commission or any successor agency with jurisdiction over Grantee.
ARTICLE 11 ENFORCEMENT AND TERMINATION
11.1 In addition to all other rights and powers retained by the City under this franchise, the City Council reserves the right to terminate this franchise and all rights and privileges of the Grantee in the event of a substantial breach of this franchise.
11.2 In the event that the City believes that a substantial breach may have occurred, the City shall make a written demand by certified mail that Grantee comply with the applicable provision(s) of this franchise. Except in cases where immediate action is required to protect the public, if the violation by the Grantee continues for a period of 90 days following the Grantee’s receipt of such written demand without written proof that corrective action has been taken or is being actively and expeditiously pursued, the City Council may consider terminating this franchise; provided, however, that a written notice of the time and place of the City Council meeting at which such termination is to be considered has been given to the Grantee at least 15 days in advance. Grantee may appear before the Council at the meeting to present any argument and defense. The City Council’s determination shall be in writing and based upon written findings of facts.
11.3 Should the City Council determine, following a hearing, that the violation by Grantee was the fault of Grantee and within Grantee’s control, the City Council may, by resolution, declare that this franchise be forfeited and terminated. The City Council may, in its discretion, provide an opportunity for Grantee to remedy the violation(s) and come into compliance with this franchise.
11.4 If the City Council determines that a material violation of this franchise has occurred and such violation has not been or is not being cured, after notice to Grantee and a hearing, the City Council may impose fines or other sanctions, retroactive to the date of the written notice, in an amount not to exceed $500 per day, not to exceed 180 days, in lieu of revocation or forfeiture.
11.5 Upon the termination or expiration of this franchise, all of Grantee’s Facilities then in the public streets and alleys of the City shall remain the property of Grantee. The parties recognize the importance and difficulty associated with the disposition of Grantee’s facilities following the termination of Grantee’s rights and privileges herein. Therefore, in the event such termination occurs, the parties agree to establish a working committee to develop appropriate courses of conduct that will adequately protect Grantee, the public, and the City, considering the costs and benefits to both parties, and the effective use of existing facilities. The working committee shall make a report to the City Council within 6 months after the termination or expiration of this franchise. The City Council may, after receipt of the committee’s report, and after notice to Grantee and a hearing, order the disposition of the Facilities in a reasonable and prudent manner.
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ARTICLE 12 PAYMENT OF FEES
12.1 Grantee shall pay to the City a one-time administrative review fee of $500 per new proposed structure, $100 per proposed collocation, and $1 per linear foot of proposed cable for any plans submitted to the City for the installation of new Facilities.
ARTICLE 13 MISCELLANEOUS
13.1 Neither this franchise nor any guaranty of the performance of the Grantee’s obligations pursuant to this franchise shall be assigned, sold, or transferred in any manner, in whole or in part, without written notice to the City of any such transfer. Notwithstanding the foregoing, Grantee may assign this franchise without City’s consent to any parent corporation. affiliate or subsidiary, to the surviving entity into which Grantee may merge or consolidate, or to any entity to which Franchisee transfers all, or substantially all, of its stock or assets. Grantee shall provide City with written notice of such assignment within 30 days after the effective date of such assignment. All rights and privileges granted to the Grantee under this franchise may be exercised by any successor or assignee of the Grantee. Any such successor or assignee shall be subject to all of the provisions, terms, conditions, limitations, obligations, stipulations and penalties stated herein.
13.2 Notwithstanding anything in this agreement to the contrary, the small cell facilities installed by Franchissee in the rights-of-way under this Agreement may be owned and/or operated by Franchisee's third-party wireless carrier customers and installed and maintained by Franchisee under license agreements between Franchisee and those carriers. All Facilities shall be treated as Franchisee's Facilities for all purposes under this agreement provided that (i) Franchisee remains responsible and liable for all performance obligations under the agreement with respect to those Facilities, (ii) Franchisee is the City’s sole point of contact regarding those Facilities, and (iii) Franchisee may remove and relocate the Facilities. Franchisee shall not grant to carriers any rights of access to the rights-of-way or the small cell facilities.
13.3 The failure of either party at any time to require performance by the other party of any provision hereof shall in no way affect the right to enforce the same. Nor shall the waiver by a party of any breach of any provision hereof be taken to be a waiver of any succeeding breach of such provision, or as a waiver of the provision itself.
13.4 The rights and remedies reserved to the City by this franchise are cumulative and shall be in addition to and not in derogation of any other rights or remedies which the City may have with respect to the subject matter of this franchise.
13.5 Notices required to be sent under this franchise shall be deemed given upon delivery in person or 5 business days after mailing by mail and retaining proof of mailing to the following addresses, or such other addresses as the parties may designate in writing:
To the City: City Manager 9
P.O. Box 7447 Fredericksburg: Virginia 22404
With a copy to: City Attorney P.O. Box 7447 Fredericksburg, Virginia 22404
To Grantee: Legal Department Mobilitie, LLC 660 Newport Center Drive Suite 200 Newport Beach, California 92260
13.6 Nothing herein shall be deemed to create a joint venture or principal-agent relationship between the parties, nor is either party authorized to act toward third persons or the public in any manner which would indicate any such relationship with the other.
13.7 This franchise represents the entire understanding and agreement between the parties hereto with respect to the subject matter hereof, supersedes all prior oral negotiations between the parties, and can be amended, supplemented, modified, or changed only by written amendment of equal dignity hereto.
13.8 This franchise shall be construed according to federal law and the laws of the Commonwealth of Virginia. In the event that either party hereto brings legal action to interpret or enforce its provisions, such action shall be subject to the exclusive jurisdiction of the Circuit Court of the City of Fredericksburg or the United States District Court for the Eastern District of Virginia.
13.9 Should any provision of this franchise require interpretation or construction, it is agreed by the parties that the court interpreting or construing this franchise shall not apply a presumption that the provision be more strictly construed against one party by reason of the rule of construction that a document is to be construed more strictly against the party itself or through its agent that prepared the same, it being agreed that the parties hereto and their respective attorneys and agents have fully participated in the preparation of all provisions hereof.
13.10 The Grantee shall not be deemed to be in substantial violation of this franchise due to any non-performance or delay in performance due to war, riot, civil disturbance, natural catastrophe or other Act of God, power interruption, transportation delay, or other circumstances reasonably beyond the Grantee’s control.
CITY OF FREDERICKSBURG, VIRGINIA A municipal corporation
By: 10
ATTEST:
Deputy Clerk of Council
Approved as to form:
City Attorney ACCEPTED, MOBILITIE, LLC
By:
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ITEM #11C
MEMORANDUM
TO: Kathleen Dooley, City Attorney FROM: Rob Eckstrom, Assistant City Attorney DATE: Updated September 5, 2017 / June 30, 2017 RE: Rights-of-Way Use Project details1
note: the draft Design Guidelines referred to in the ordinance are included in Council's packet for reference and discussion. Council is not asked to approve the Design Guidelines at this meeting.
Update:
After Council's 7/11 work session, staff has worked to advance the project.
All documents have been sent to the City's existing franchisees. Verizon (Fios) has made one comment—that pole replacements and extensions of existing pole lines should be exempt from undergrounding requirements. Staff has revised the draft ROW Use Ordinance to clarify that replacement poles are permitted. The Public Works Director has the discretion to determine whether to exempt facilities requiring new poles from the undergrounding requirement—staff does not propose making an explicit exception for "extensions of existing pole lines." Counsel for Verizon (wireless) has expressed some concern with the draft ROW Use design guidelines—they intend to submit written comments and are meeting with City staff tomorrow to discuss their concerns. No other franchisee comments have been received.
Council initiated the project's UDO text amendment at its 7/11 meeting. At the 8/9 Planning Commission meeting, the Commission recommended that Council approve the text amendment. The Planning Commission had two concerns with the draft documents. First, that the regulations could allow collocations of small cell facilities on existing utility poles to raise the overall height of the structures to an unacceptable height. Second, that the definition of small cell facilities was too broad, and that fairly large facilities, including antenna and equipment cabinets that are unacceptably large, could be installed.
Staff proposes to address those concerns as follows:
Section 66-148 of the draft ROW Use Ordinance sets a 55' maximum height for any facility in the right-of-way. The draft Design Guidelines also include height and bulk regulations: - Wireless providers shall use the smallest and least visible antennas, equipment cabinets, and other facilities to accomplish the operator’s coverage and service objectives (II.a). - At the time of modification or upgrade of facilities, existing equipment shall, to the extent feasible, be replaced with equipment of equal or greater technical capacity and reduced size so as to reduce visual impacts (III.a.vii).
1 The packet also contains a separate memo discussing the UDO text amendment. Page 1 of 5
ITEM #11C
- Facilities installed on existing wireless support structures and utility poles shall not be larger, more obtrusive, or more readily visible than the existing facilities and devices affixed to the structure or pole (III.b.i). - The height of new facilities, measured from grade to the highest reach of equipment or antenna, shall not exceed the average height of utility poles within a 500-foot radius of the proposed location, unless additional height is expressly granted by the Director of Public Works. Additional height will only be granted where it is essential for proper functionality of utilities or wireless telecommunications facilities and must meet the height standards defined in City Code § 72-41.2 (G) (III.b.ii). - An antenna enclosure attached to the top of a utility pole shall not exceed 4 feet in height, and shall not have a diameter greater than the diameter of the pole (III.b.iii). - The maximum height of any facility inside the public right-of-way in the Historic Fredericksburg District shall be 40 feet, unless specifically approved otherwise by the Director of Public Works (IV.a.iv).
The definition of small cell facility (including a maximum antenna enclosure/exposed elements volume of six cubic feet and a 28 cubic foot maximum for all related equipment) is set by state code. However, Mobilitie has indicated that it would not need to install facilities that large and staff is working on franchise agreement language that would reduce the maximum permitted size of those facilities.
Staff presented the project documents to the ARB at its August 14 meeting, with an emphasis on the Design Guidelines. We believe that the current drafts adequately address the ARB's interests.
The project documents were also sent to Fredericksburg Main Street for comment. No comments have yet been received.
The project is currently on track for final approval at Council's October 10 meeting. To stay on that schedule, two public hearings are scheduled for Council's September 12 meeting: for the Mobilitie franchise and for the UDO text amendment. Council is asked to approve those ordinances, as well as the ROW Use Ordinance and the CPURC Ordinance on first read. Next (if needed) would be a September 26 Council work session, at which Council and staff could consider making amendments based on any comments received at the public hearing/any additional public comment. Final passage of all documents (one read for a resolution approving the Design Guidelines and second read on the other four documents) would then take place on October 10.
Overview:
This project consolidates the management of telecommunications facilities in the public rights-of-way with the Director of Public Works. This is intended to encourage investment in broadband technologies within the City, and to ensure that all franchised users of the rights-of-way are treated fairly and equally.
This is a complex project involving many staff members, affecting many stakeholders, touching several of Council's priorities, amending several chapters of the City Code, and adopting new administrative regulations.
This project came about for several reasons:
1) City Council adopted as priorities: "create more focus on broadband to be the fastest city in Virginia for broadband" and "Implement the "One-Dig-Program"".
Page 2 of 5
ITEM #11C
2) The Virginia General Assembly passed SB1282 (later signed by Governor McAuliffe after minor adjustments). This bill imposes new requirements on local governments in relation to certain types of telecommunication facilities. It takes effect this July 1.
3) Mobilitie, LLC has been working with City staff to obtain permission to place new wireless telecommunications facilities in our rights-of-way.
Council priorities involved:
A Proven Leader in Historic Preservation Priority #21: Streamline the development and ARB process with stakeholders to improve clarity on what is required when bringing a new project to the City (i.e. UDO)
3. Review and initiate amendments to the UDO and Procedures Manual, including making some minor alternations in administrative approvals, GIS provide historic district information, and provide a new historic property inventory
The CPURC ordinance will be updated as part of this project.
Public Services - The Backbone of our Community Priority #29: Create more focus on broadband to be the fastest City in Virginia for broadband
Mobilitie's facilities will improve 4G (and eventually 5G) wireless service in the City.
Priority #32: Implement the “One-Dig” program
2. Convene and meeting with Public Works, Public Utilities, Columbia Gas, Dominion Virginia Power, Verizon, IT and others as necessary to develop a SOP and communications plan
Those parties will be invited to review and comment on the project documents. A pilot period is specifically built into the project schedule so that any concerns can be addressed.
3. Identify any legislative changes that might be permitted by State law and may be wise to do or franchise.
The new state wireless infrastructure law specifically forbids the City from requiring any in- kind contributions in exchange for approval of permits for new wireless infrastructure installations on public property. This is a step backward from "one-dig". However, the proposed ROW Use ordinance requires the Director of Public Works to refer applications to the Information Technology Director to determine whether it is in the City's interest to negotiate a conduit agreement with the applicant. This language mirrors the new state law.
4. Establish and review permit procedures for street cut.
The proposed ROW Use Ordinance and accompanying ROW Use Design Guidelines do so.
5.Bring program to Council for adoption.
The entire project will come to Council for approval.
Other considerations:
Page 3 of 5
ITEM #11C
While the City enthusiastically encourages broadband deployment, it must also manage the rights-of- way for all of its users. This includes discouraging proliferation of poles and other structures, keeping public spaces safe and aesthetically pleasing, and allotting the limited space in the rights-of-way fairly among our seven current franchisees and any potential new franchisees, not to mention the motorists and pedestrians that use the rights-of-way for their main purpose. The documents drafted by staff attempt to strike a balance between these concerns that enables us to effectively manage our rights-of- way, facilitate private investment in broadband in the City, and positively impact VML and VACO's efforts to lobby against harmful legislative in next year's General Assembly and beyond.
Staff involved:
Public Works: Dave King, Director Shawn Beavon, Deputy Superintendent of Public Works - Traffic Martin Schlesinger, Assistant Director of Public Works - Utilities
Information Technology: Suzanne Tills, Director; leader on Council priorities #29 (broadband) and #32 ("One-Dig")
Community Planning and Building Mike Craig, Zoning Administrator Kate Schwartz, Historic Resources Planner
City Attorney's Office Kathleen and Rob
Stakeholders:
Planning Commission will need to review proposed zoning ordinance text amendment.
CPURC will need to review proposed amendments to CPURC ordinance.
HFFI and Main Street may wish to review proposed changes to legislation affecting historic district.
Neighborhood associations may wish to review proposed standards for right-of-way installations, especially those applicable to residential areas.
Current franchisees: Dominion, Columbia Gas, Verizon, Cox, Comcast, KDL Telphone, and TelCove will want the opportunity to review all of the proposed changes.
Mobilitie is currently in franchise negotiations with the City Attorney. Others who want to make investments in our City might also be interested, such as Crown Castle.
Any others identified by Council.
Documents involved:
-Unified Development text amendment -ROW Use Ordinance -ROW Use Design Standards -CPURC Ordinance -Mobilite/template wireless infrastructure franchise agreement
Page 4 of 5
ITEM #11C
UDOTA:
Exempts antennas, small cell facilities, wireless support structures, and micro-wireless facilities (all facilities affected by SB1282) in the rights-of-way from the UDO. Amends the UDO to incorporate mandatory provisions of SB1282 related to zoning of those facilities on parcels of land.
ROW Use Ordinance:
Delegates to the Director of Public Works the responsibility for managing installation of utilities, wireless structures, and other facilities within the public rights-of-way. The ordinance applies to all franchised users of the rights-of-way in a reasonable and non-discriminatory manner, and facilitates the City Council's goals of increasing broadband access and implementing "One-Dig" concepts within the limits imposed by state law, while maintaining public safety and the navigability of the rights-of- way for all users.
ROW Use Design Standards:
Addresses siting issues, collocations, undergrounding, colors, materials, lighting, height, bulk, and other issues relating to installation of facilities in the rights-of-way.
CPURC Ordinance:
Amends the authority and procedures of the City and Public Utility Review Committee (CPURC) to conform to SB1282 and other federal and state requirements, and to advance Council goal #29.
Franchise Agreement:
New template franchise agreement, based on the City's standard franchise agreement for similar companies but adapted for providers of wireless infrastructure.
Page 5 of 5
MOTION: October 10, 2017 Regular Meeting SECOND: Ordinance No. 17-__
RE: Amending the City and Public Utility Review Committee Review Authority and Procedures for the Location of Infrastructure in the Public Rights of Way in the Historic Fredericksburg District
ACTION: APPROVED: Ayes: 0; Nays: 0
FIRST READ:______SECOND READ:______
IT IS HEREBY ORDAINED by the Fredericksburg City Council that Chapter 66 of the City Code is amended as follows:
SEC. I. Introduction.
The purpose of this ordinance is to amend the authority and procedures of the City and Public Utility Review Committee (CPURC) in response to changes in the types of infrastructure that will be located in the Historic Fredericksburg District (HFD). Traditionally, CPURC has been charged with responsibility for public utility and public streetscape infrastructure improvements in the HFD, with the goal of ensuring the quality of these improvements and their compatibility with the historic character of the HFD. Now, a new type of infrastructure is entering the HFD – namely, wireless communications infrastructure typically known as “Distributed Antenna Systems” (DAS), and “small cell facilities.” The City Code amendments in this ordinance revise the CPURC review authority and process to encompass the emerging technologies and infrastructure.
One goal of these amendments is to conform to changes in the Code of Virginia made in the 2017 Virginia General Assembly, Chapter 835. The City Council also desires to continue to comply with the non-discrimination requirements of federal law, including the Telecommunications Act of 1996, the Spectrum Act §6409 (part of the Middle Class Tax Relief and Job Creation Act of 2012), the FCC Wireless Siting Report and Order of October 21, 2014, the FCC Shot Clock Ruling, and other applicable federal and state laws and regulations.
Finally, these amendments are intended to implement City Council’s own goal to encourage the provision of broadband services in the City of Fredericksburg, adopted as Goal #29 on April 4, 2017.
SEC. II. City Code Amendment.
1. Sec. 66-191, “Generally,” is amended as follows:
Sec. 66-191. Generally.
October 10, 2017 Ordinance 17-__ Page 2
A. No sign, equipment, utility pole, pipe, meter, conduit, antenna, micro-wireless facility, small cell facility, wireless facility, wireless support structure, tower, fence, pump station, street furniture or fixture, light, parking lot, traffic signal, traffic signal control cabinet, or similar infrastructure improvement that is (i) located within the public right-of-way or on other property owned or controlled by the City within the Old and Historic Fredericksburg Zoning District (HFD), as defined in Chapter 78 72, and (ii) subject to view from a public street or right-of-way or from any City-owned property, shall be erected, installed, constructed, reconstructed, altered, restored, or removed unless such improvement has been reviewed and approved by the City and public utility review committee or, on appeal, by the City Council, as being architecturally compatible with the standards applicable to the HFD, as provided under Chapter 78 72.
B. For purposes of this division, the following terms are defined: (1) “Antenna” means communications equipment that transmits or receives electromagnetic radio signals used in the provision of any type of wireless communications services. (2) “Collocate” means to install, mount, maintain, modify, operate, or replace a wireless facility on, under, within, or adjacent to a base station, building, existing structure, utility pole, or wireless support structure. (3) “Existing structure” means any structure that is installed or approved for installation at the time a wireless services provider or wireless infrastructure provider provides notice to the City of an agreement with the owner of the structure to co-locate equipment on that structure. “Existing structure” includes any structure that is currently supporting, designed to support, or capable of supporting the attachment of wireless facilities, including towers, buildings, utility poles, light poles, flag poles, signs, and water towers. (4) “Micro-wireless facility” means a small cell facility that is not larger in dimension than 24 inches in length, 15 inches in width, and 12 inches in height and that has an exterior antenna, if any, not longer than 11 inches. (5) “Small cell facility” means a wireless facility that meets both of the following qualifications: (1) each antenna is located inside an enclosure of no more than six cubic feet in volume, or, in the case of an antenna that has exposed elements, the antenna and all of its exposed elements could fit within an imaginary enclosure of no more than six cubic feet and (2) all other wireless equipment associated with the facility has a cumulative volume of no more than 28 cubic feet, or such higher limit as is established by the Federal Communications Commission. The following types of associated equipment are not included in the calculation of equipment volume: electric meter, concealment, telecommunications demarcation boxes, back-up power systems, grounding equipment, power transfer switches, cut-off switches, and vertical cable runs for the connection of power and other services. (6) “Public utility company” shall means any person engaged in the business of providing electric, telecommunications, gas, cable television, or similar utility service to the public. (7) “Utility pole” means a structure owned, operated, or owned and operated by a public utility, local government, or the Commonwealth that is designed specifically for and used to carry lines, cables, or wires for communications, cable television, or electricity. October 10, 2017 Ordinance 17-__ Page 3
(8) “Wireless infrastructure provider” means any person, including a person authorized to provide telecommunications service in the state, that builds or installs transmission equipment, wireless facilities, or wireless support structures, but that is not a wireless provider. (9) “Wireless service provider” means a provider of wireless service. (10) “Wireless service” means (i) “personal wireless services” as defined in 47 U.S.C. 332(c)(7)(C)(i); (ii) “personal wireless facilities” as defined in 47 U.S.C. §332(c)(7)(C)(ii), including commercial mobile services as defined in 47 U.S.C. §332(d), provided to personal mobile communication devices through wireless facilities; and (iii) any other fixed or mobile wireless service, using licensed or unlicensed spectrum, provided using wireless facilities. (11) “Wireless support structure” means a freestanding structure, such as a monopole, tower, either guyed or self-supporting, or suitable existing structure or alternative structure designed to support or capable of supporting wireless facilities. “Wireless support structure” does not include any telephone or electrical utility pole or any tower used for the distribution or transmission of electrical services. C. This section shall not apply to: (1) Fire hydrants, sidewalks, street pavement, curbs, and gutters; (2) Infrastructure improvements that do not protrude above ground level; (3) Other infrastructure improvements that the City Manager determines require placement, design, or installation in a standardized manner or in a specific location to protect the public health or safety; or (4) Routine repair and maintenance work that does not substantially alter the physical appearance or location of existing infrastructure.
2. Sec. 66-192, “City and Public Utility Review Committee,” is amended as follows:
Sec. 66-192 City and Public Utility Review Committee.
A. The City and public utility review committee (CPURC) is hereby established to implement the provisions of § 66-191 regarding infrastructure improvements on City property within the Old and Historic Fredericksburg District. The committee shall consist of the following persons or their designees: (1) The Director of Community Planning and Building Community Development; (2) The Director of Building Official and Development Services; (3) The Director of Public Works; (4) A member of the Planning Commission; and (5) A member of the Architectural Review Board.
B. The CPURC shall consider all proposals (including utility permit applications) by City departments and agencies, other governmental entities, and public utility companies, wireless infrastructure providers, and wireless service providers, to construct, erect, install, relocate, alter, or remove infrastructure improvements subject to review under § 66-191.
C. The CPURC shall have the authority to adopt guidelines, after notice to the City Manager and all franchised public utility companies, wireless infrastructure providers, and wireless service providers, for the implementation of the review criteria set forth below. October 10, 2017 Ordinance 17-__ Page 4
C. The CPURC shall have the authority to require the City Manager, public utility companies, or other governmental entities to provide drawings, specifications, and other reasonable information regarding such proposed infrastructure improvements. The committee shall meet and render a decision within 10 workdays following receipt of a complete application or proposal. [This provision is amended and re-located to new section 66-193, below.]
3. A new §66-193, “Applications,” is adopted, as follows:
Sec. 66-193. Applications.
A. An applicant (other than the City Manager) who wishes to place infrastructure improvements in the public rights-of-way shall first obtain a franchise, lease, license, or other permission from the City Council. In the event of any conflict between this division and any franchise, lease, license, or other permission granted by the City to any public utility company or other governmental entity, the provisions of this chapter shall control to the maximum extent allowed by law.
B. The CPURC review process may run concurrently with the rights-of-way review process under City Code Chapter 66, Article IV.
C. The City may charge a reasonable fee not to exceed $250, established by City Council, for review of CPURC applications.
D. The CPURC shall have the authority to require any applicant to provide drawings, specifications, and other reasonable information regarding such proposed infrastructure improvements.
E. The committee shall meet and render a decision within 60 calendar days following receipt of a complete application or proposal. The 60-day period may be extended by CPURC in writing for a period not to exceed an additional 30 days. But the deadline for a decision on an application for a wireless support structure shall be 150 days.
F. A CPURC decision denying an application shall be in writing, accompanied by an explanation for the disapproval.
G. The provisions of this subsection (F) shall apply to an application by a wireless services provider or wireless infrastructure provider to collocate small cell facilities on existing structures in the public rights-of-way. Within 10 days after receipt of an application and a valid electronic mail address for the applicant, CPURC shall notify the applicant by electronic mail whether the application is incomplete and specify any missing information; otherwise, the application shall be deemed complete. The application shall be deemed approved if CPURC fails to act within the initial 60 days or an extended 30-day period.
H. Any applicant may appeal the decision to the City Council, provided such appeal is filed with the Clerk of Council in writing within 30 days from the date of notification of the committee's decision. The City Council shall consult with the committee in relation to any appeal and may require documentation of the committee's decision prior to hearing the appeal. The City Council shall conduct a hearing and render a decision on any October 10, 2017 Ordinance 17-__ Page 5
appeal within 30 days from the date of filing. The City Council may affirm, reverse, or modify the committee's decision and shall promptly notify the appellant in writing of its decision.
4. Former §66-193, “Review standards; appeals,” is amended and re-adopted as new §66-194, as follows:
Sec. 66-194. Review standards; appeals.
In considering proposals for infrastructure improvements within the Old and Historic Fredericksburg District, the City and public utility review committee shall consider the following factors:
A. The relative cost and difficulty of modifying proposed improvements to make them compatible with the architectural review standards set forth in Chapter 72;
B. The preservation of trees and other landscaping that provide visual uniformity to the streetscape;
C. Street lighting fixtures and equipment that complement the character of the historic district;
D. Street furniture (e.g., trash barrels and benches) that is appropriate to its setting and consistent in design;
E. Infrastructure that is unobtrusive and does not compromise the historic appearance of the neighborhood. Parking that enhances the streetscape. For example, on-street parking should be encouraged where suitable. Off-street parking should utilize low fencing or landscaping that conforms to the existing street edge or setback in order to avoid unnecessary breaks in the streetscape; and
F. Materials that are of high quality design and construction.
G. Any applicant may voluntarily submit conditions that address the potential visual or aesthetic effects resulting from the placement of small cell facilities.
B. Any person aggrieved by a decision of the committee may appeal such decision to the City Council, provided such appeal is filed with the clerk in writing within 14 days from the date of notification of the committee's decision. The City Council shall consult with the committee in relation to any appeal and may require documentation of the committee's decision prior to hearing the appeal. The City Council shall conduct a hearing and render a decision on any appeal within 30 days from the date of filing. The City Council may affirm, reverse, or modify the committee's decision and shall promptly notify the appellant in writing of its decision. [Relocated to new §66-193.]
C. In the event of any conflict between this division and any franchise, lease, license, or other permission granted by the City to any public utility company or other governmental entity, the provisions of this chapter shall control to the maximum extent allowed by law. [Relocated to new §66-193(A).]
SEC. III. Effective Date. October 10, 2017 Ordinance 17-__ Page 6
These amendments are effective immediately.
Votes: Ayes: Nays: Absent from Vote: Absent from Meeting:
Approved as to form:
______Kathleen Dooley, City Attorney ***************
Clerk’s Certificate I, the undersigned, certify that I am Clerk of Council of the City of Fredericksburg, Virginia, and that the foregoing is a true copy of Ordinance No. 17- duly adopted at a meeting of the City Council meeting held Date, 2017 at which a quorum was present and voted.
______Tonya B. Lacey, CMC Clerk of Council ITEM #11D
MEMORANDUM
TO: Kathleen Dooley, City Attorney FROM: Rob Eckstrom, Assistant City Attorney DATE: Updated September 5, 2017 / June 30, 2017 RE: Rights-of-Way Use Project details1
note: the draft Design Guidelines referred to in the ordinance are included in Council's packet for reference and discussion. Council is not asked to approve the Design Guidelines at this meeting.
Update:
After Council's 7/11 work session, staff has worked to advance the project.
All documents have been sent to the City's existing franchisees. Verizon (Fios) has made one comment—that pole replacements and extensions of existing pole lines should be exempt from undergrounding requirements. Staff has revised the draft ROW Use Ordinance to clarify that replacement poles are permitted. The Public Works Director has the discretion to determine whether to exempt facilities requiring new poles from the undergrounding requirement—staff does not propose making an explicit exception for "extensions of existing pole lines." Counsel for Verizon (wireless) has expressed some concern with the draft ROW Use design guidelines—they intend to submit written comments and are meeting with City staff tomorrow to discuss their concerns. No other franchisee comments have been received.
Council initiated the project's UDO text amendment at its 7/11 meeting. At the 8/9 Planning Commission meeting, the Commission recommended that Council approve the text amendment. The Planning Commission had two concerns with the draft documents. First, that the regulations could allow collocations of small cell facilities on existing utility poles to raise the overall height of the structures to an unacceptable height. Second, that the definition of small cell facilities was too broad, and that fairly large facilities, including antenna and equipment cabinets that are unacceptably large, could be installed.
Staff proposes to address those concerns as follows:
Section 66-148 of the draft ROW Use Ordinance sets a 55' maximum height for any facility in the right-of-way. The draft Design Guidelines also include height and bulk regulations: - Wireless providers shall use the smallest and least visible antennas, equipment cabinets, and other facilities to accomplish the operator’s coverage and service objectives (II.a). - At the time of modification or upgrade of facilities, existing equipment shall, to the extent feasible, be replaced with equipment of equal or greater technical capacity and reduced size so as to reduce visual impacts (III.a.vii).
1 The packet also contains a separate memo discussing the UDO text amendment. Page 1 of 5
ITEM #11D
- Facilities installed on existing wireless support structures and utility poles shall not be larger, more obtrusive, or more readily visible than the existing facilities and devices affixed to the structure or pole (III.b.i). - The height of new facilities, measured from grade to the highest reach of equipment or antenna, shall not exceed the average height of utility poles within a 500-foot radius of the proposed location, unless additional height is expressly granted by the Director of Public Works. Additional height will only be granted where it is essential for proper functionality of utilities or wireless telecommunications facilities and must meet the height standards defined in City Code § 72-41.2 (G) (III.b.ii). - An antenna enclosure attached to the top of a utility pole shall not exceed 4 feet in height, and shall not have a diameter greater than the diameter of the pole (III.b.iii). - The maximum height of any facility inside the public right-of-way in the Historic Fredericksburg District shall be 40 feet, unless specifically approved otherwise by the Director of Public Works (IV.a.iv).
The definition of small cell facility (including a maximum antenna enclosure/exposed elements volume of six cubic feet and a 28 cubic foot maximum for all related equipment) is set by state code. However, Mobilitie has indicated that it would not need to install facilities that large and staff is working on franchise agreement language that would reduce the maximum permitted size of those facilities.
Staff presented the project documents to the ARB at its August 14 meeting, with an emphasis on the Design Guidelines. We believe that the current drafts adequately address the ARB's interests.
The project documents were also sent to Fredericksburg Main Street for comment. No comments have yet been received.
The project is currently on track for final approval at Council's October 10 meeting. To stay on that schedule, two public hearings are scheduled for Council's September 12 meeting: for the Mobilitie franchise and for the UDO text amendment. Council is asked to approve those ordinances, as well as the ROW Use Ordinance and the CPURC Ordinance on first read. Next (if needed) would be a September 26 Council work session, at which Council and staff could consider making amendments based on any comments received at the public hearing/any additional public comment. Final passage of all documents (one read for a resolution approving the Design Guidelines and second read on the other four documents) would then take place on October 10.
Overview:
This project consolidates the management of telecommunications facilities in the public rights-of-way with the Director of Public Works. This is intended to encourage investment in broadband technologies within the City, and to ensure that all franchised users of the rights-of-way are treated fairly and equally.
This is a complex project involving many staff members, affecting many stakeholders, touching several of Council's priorities, amending several chapters of the City Code, and adopting new administrative regulations.
This project came about for several reasons:
1) City Council adopted as priorities: "create more focus on broadband to be the fastest city in Virginia for broadband" and "Implement the "One-Dig-Program"".
Page 2 of 5
ITEM #11D
2) The Virginia General Assembly passed SB1282 (later signed by Governor McAuliffe after minor adjustments). This bill imposes new requirements on local governments in relation to certain types of telecommunication facilities. It takes effect this July 1.
3) Mobilitie, LLC has been working with City staff to obtain permission to place new wireless telecommunications facilities in our rights-of-way.
Council priorities involved:
A Proven Leader in Historic Preservation Priority #21: Streamline the development and ARB process with stakeholders to improve clarity on what is required when bringing a new project to the City (i.e. UDO)
3. Review and initiate amendments to the UDO and Procedures Manual, including making some minor alternations in administrative approvals, GIS provide historic district information, and provide a new historic property inventory
The CPURC ordinance will be updated as part of this project.
Public Services - The Backbone of our Community Priority #29: Create more focus on broadband to be the fastest City in Virginia for broadband
Mobilitie's facilities will improve 4G (and eventually 5G) wireless service in the City.
Priority #32: Implement the “One-Dig” program
2. Convene and meeting with Public Works, Public Utilities, Columbia Gas, Dominion Virginia Power, Verizon, IT and others as necessary to develop a SOP and communications plan
Those parties will be invited to review and comment on the project documents. A pilot period is specifically built into the project schedule so that any concerns can be addressed.
3. Identify any legislative changes that might be permitted by State law and may be wise to do or franchise.
The new state wireless infrastructure law specifically forbids the City from requiring any in- kind contributions in exchange for approval of permits for new wireless infrastructure installations on public property. This is a step backward from "one-dig". However, the proposed ROW Use ordinance requires the Director of Public Works to refer applications to the Information Technology Director to determine whether it is in the City's interest to negotiate a conduit agreement with the applicant. This language mirrors the new state law.
4. Establish and review permit procedures for street cut.
The proposed ROW Use Ordinance and accompanying ROW Use Design Guidelines do so.
5.Bring program to Council for adoption.
The entire project will come to Council for approval.
Other considerations:
Page 3 of 5
ITEM #11D
While the City enthusiastically encourages broadband deployment, it must also manage the rights-of- way for all of its users. This includes discouraging proliferation of poles and other structures, keeping public spaces safe and aesthetically pleasing, and allotting the limited space in the rights-of-way fairly among our seven current franchisees and any potential new franchisees, not to mention the motorists and pedestrians that use the rights-of-way for their main purpose. The documents drafted by staff attempt to strike a balance between these concerns that enables us to effectively manage our rights-of- way, facilitate private investment in broadband in the City, and positively impact VML and VACO's efforts to lobby against harmful legislative in next year's General Assembly and beyond.
Staff involved:
Public Works: Dave King, Director Shawn Beavon, Deputy Superintendent of Public Works - Traffic Martin Schlesinger, Assistant Director of Public Works - Utilities
Information Technology: Suzanne Tills, Director; leader on Council priorities #29 (broadband) and #32 ("One-Dig")
Community Planning and Building Mike Craig, Zoning Administrator Kate Schwartz, Historic Resources Planner
City Attorney's Office Kathleen and Rob
Stakeholders:
Planning Commission will need to review proposed zoning ordinance text amendment.
CPURC will need to review proposed amendments to CPURC ordinance.
HFFI and Main Street may wish to review proposed changes to legislation affecting historic district.
Neighborhood associations may wish to review proposed standards for right-of-way installations, especially those applicable to residential areas.
Current franchisees: Dominion, Columbia Gas, Verizon, Cox, Comcast, KDL Telphone, and TelCove will want the opportunity to review all of the proposed changes.
Mobilitie is currently in franchise negotiations with the City Attorney. Others who want to make investments in our City might also be interested, such as Crown Castle.
Any others identified by Council.
Documents involved:
-Unified Development text amendment -ROW Use Ordinance -ROW Use Design Standards -CPURC Ordinance -Mobilite/template wireless infrastructure franchise agreement
Page 4 of 5
ITEM #11D
UDOTA:
Exempts antennas, small cell facilities, wireless support structures, and micro-wireless facilities (all facilities affected by SB1282) in the rights-of-way from the UDO. Amends the UDO to incorporate mandatory provisions of SB1282 related to zoning of those facilities on parcels of land.
ROW Use Ordinance:
Delegates to the Director of Public Works the responsibility for managing installation of utilities, wireless structures, and other facilities within the public rights-of-way. The ordinance applies to all franchised users of the rights-of-way in a reasonable and non-discriminatory manner, and facilitates the City Council's goals of increasing broadband access and implementing "One-Dig" concepts within the limits imposed by state law, while maintaining public safety and the navigability of the rights-of- way for all users.
ROW Use Design Standards:
Addresses siting issues, collocations, undergrounding, colors, materials, lighting, height, bulk, and other issues relating to installation of facilities in the rights-of-way.
CPURC Ordinance:
Amends the authority and procedures of the City and Public Utility Review Committee (CPURC) to conform to SB1282 and other federal and state requirements, and to advance Council goal #29.
Franchise Agreement:
New template franchise agreement, based on the City's standard franchise agreement for similar companies but adapted for providers of wireless infrastructure.
Page 5 of 5
MOTION: October 10, 2017 Regular Meeting SECOND: Ordinance No. 17-__
RE: Amending Chapter 66 of the City Code by Adopting an Ordinance Regulating Utility and Wireless Facilities, Poles, Lines, and Structures in the Public Rights-of-Way
ACTION: APPROVED: Ayes: 0; Nays: 0
FIRST READ:______SECOND READ:______
Sec. I Introduction.
This ordinance consolidates in the Director of Public Works the responsibility for managing installation of utilities, wireless structures, and other facilities within the public rights-of-way. The ordinance applies to all franchised users of the rights-of-way in a reasonable and non-discriminatory manner, and facilitates the City Council's goals of increasing broadband access and implementing "One-Dig" concepts within the limits imposed by state law, while maintaining public safety and the navigability of the rights-of-way for all users.
Sec. II. City Code Amendment.
The City Code is hereby amended by the addition of a new Chapter 66 – Streets and Sidewalks, Article IV – Utility, Wireless, and Other Facilities, Poles, Lines, and Structures.
CHAPTER 66 – STREETS AND SIDEWALKS ARTICLE IV – UTILITY, WIRELESS, AND OTHER FACILITIES, POLES, LINES, AND STRUCTURES.
Sec. 66-141 - Definitions. Sec. 66-142 – Applicability. Sec. 66-143 – Installations – franchise and permit requirements. Sec. 66-144 – Excavations – permit and bond requirements. Sec. 66-145 - Fees. Sec. 66-146 – Conduit – permit requirements. Sec. 66-147 – Undergrounded utilities. Sec. 66-148 - Placement and standards. Sec. 66-149 – Prohibited installations. Sec. 66-150 - Permit revocation. Sec. 66-151 - Diligence; excavation protection. Sec. 66-152 - VA811. Sec. 66-153 – Safety precautions and code compliance. Sec. 66-155 – As-built maps. Sec. 66-156 - Removals. October 10, 2017 Ordinance 13-__ Page 2
Sec. 66-157 – Restoration. Sec. 66-158 – Street acceptance.
Sec. 66-141 - Definitions. As used in this article, the following terms shall have meanings indicated by this section:
Co-locate. To install, mount, maintain, modify, operate, or replace a facility on, under, within, or adjacent to a base station, building, existing structure, utility pole, or wireless support structure. Co- location has a corresponding meaning.
Director. The Director of Public Works, or his designee.
Existing structure. Any structure that is legally installed or approved for installation at the time a wireless services provider or wireless infrastructure provider provides notice to a locality of an agreement with the owner of the structure to collocate equipment on that structure. "Existing structure" includes any structure that is currently supporting, designed to support, or capable of supporting the attachment of wireless facilities, including towers, buildings, utility poles, light poles, flag poles, signs, and water towers.
Facilities. References to ‘facilities’ refer to all items installed or proposed to be installed under this article, specifically including utility facilities, undergrounded utilities, utility poles, wireless facilities, micro-wireless facilities, small cell facilities, and wireless support structures.
Micro-wireless facility. A small cell facility that is not larger in dimension than 24 inches in length, 15 inches in width, and 12 inches in height and that has an exterior antenna, if any, not longer than 11 inches.
Public rights-of-way. Improved and unimproved streets, alleys, sidewalks, trails, and other property owned by the City and used for the purpose of public vehicular or pedestrian travel.
Small cell facility. A wireless facility that meets both of the following qualifications: (i) each antenna is located inside an enclosure of no more than six cubic feet in volume, or, in the case of an antenna that has exposed elements, the antenna and all of its exposed elements could fit within an imaginary enclosure of no more than six cubic feet and (ii) all other wireless equipment associated with the facility has a cumulative volume of no more than 28 cubic feet, or such higher limit as is established by the Federal Communications Commission. The following types of associated equipment are not included in the calculation of equipment volume: electric meter, concealment, telecommunications demarcation boxes, back-up power systems, grounding equipment, power transfer switches, cut-off switches, and vertical cable runs for the connection of power and other services.
Special excavation permit. A permit issued by the Director granting permission for excavation work within the public rights-of-way or other public property.
October 10, 2017 Ordinance 13-__ Page 3
Utility facility. Plant, equipment, and property, such as pipes, mains, conduits, ducts, cables, circuits, wires, guy wires, pedestals, cross-connect cabinets, power supplies, transformers, meters, and lines, located within the public rights-of-way.
Undergrounded utility. Any item of public or private property which is placed below ground or submerged for use in connection with the storage or conveyance of water, sewage, telecommunications, electric energy, cable television, oil, petroleum products, gas, or other substances, such as pipes, sewers, storm sewers, conduits, cables, valves, lines, wires, manholes, attachments, and those portions of poles below ground.
Utility permit. A permit issued by the Director for the purpose of installing facilities.
Utility pole. A structure owned, operated, or owned and operated by a public utility, local government, or the Commonwealth that is designed specifically for and used to carry lines, cables, or wires for communications, cable television, or electricity. This definition specifically excludes poles used as wireless support structures.
Wireless facility. Equipment at a fixed location that enables wireless communications between user equipment and a communications network, including (i) equipment associated with wireless services, such as private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services, such as microwave backhaul, and (ii) radio transceivers, antennas, coaxial, or fiber- optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration.
Wireless support structure. A freestanding structure, such as a monopole, tower, either guyed or self- supporting, or suitable existing structure or alternative structure designed to support or capable of supporting wireless facilities. "Wireless support structure" does not include any telephone or electrical utility pole or any tower used for the distribution or transmission of electrical service.
Sec. 66-142 – Applicability. This article applies to all facilities installed or proposed to be installed in the public rights-of-way.
All facilities installed before [DATE OF ADOPTION] in the public rights-of-way shall be deemed to have been installed under a permit granted in accordance with ordinances that existed at the time of the installation. Those facilities shall be subject to those ordinances, except that the current Sec. 66- 147 – Undergrounded utilities applies.
This article does not render inapplicable other sections of the City Code, such as the Unified Development Ordinance and Chapter 66 Article V: Historic Areas and Resources.
Sec. 66-143 - Installations – franchise and permit requirements. a. No person shall install any facility in the public rights-of-way without a franchise from the City Council, and a utility permit for the installations from the Director. No person shall install any facility on other public property without a franchise, easement, or lease, or license from the City Council, and a utility permit for the installations from the Director. Permit October 10, 2017 Ordinance 13-__ Page 4
applications shall be submitted in the format and containing the information required by the Director. b. No permit for installation of new facilities shall be granted if the Director determines that collocation of the wireless facilities is a feasible alternative to the proposed new installation. c. The Director shall refer all applications to the City's Chief Information Officer. The Chief Information Officer shall: i) negotiate a voluntary occupancy or construction agreement with the applicant; (ii) determine that such an agreement cannot reasonably be reached; or (iii) determine that such an agreement would not be in the interest of the City. d. The Director shall refer any application involving a City park to the Director of Parks and Recreation for review and approval before approving the permit. These reviews shall be concurrent. e. The Director shall refer any application involving the Historic Fredericksburg District to CPURC for review and approval before approving the permit. These reviews shall be concurrent. f. Applications for collocations shall be submitted separately from applications for installation of other facilities. The City shall review collocation applications are provided for in Code of Virginia § 56-484.29. Applicant shall submit a $250 fee with its collocation application. g. No application shall be required for installation, placement, maintenance, or replacement of microwireless facilities that are suspended on cables or lines that are strung between existing utility poles in compliance with national safety codes; however, a utility permit shall be required if those activities (i) involve working within a right-of-way travel lane or require closure of a right-of-way travel lane; (ii) disturb the pavement, shoulder, roadway, or ditch line; or (iii) include placement on limited access rights-of-way.
Sec. 66-144 - Excavations – permit and bond requirements. No person shall open any ditch, trench, or other opening in the public rights-of-way or other public place without a special excavation permit. If required for public safety, the Director may grant immediate permission for an excavation, provided that a permit is obtained on the next business day. The Director may require, as a condition precedent to issuance of a special excavation permit, that the applicant make a cash deposit or post bond with corporate surety payable to the City in an amount reasonably necessary to reimburse the City for expenses which may be incurred by the City if the permittee fails to restore the excavation to a condition satisfactory to the Director. Permit applications shall be submitted in the format and containing the information required by the Director.
Sec. 66-145 - Fees. Fees for franchises and permits under this article shall be established by the City Council, by resolution.
Sec. 66-147 - Undergrounded utilities. Installations and replacements of all facilities, other than poles intended to support street lights, poles intended to support traffic signals, replacement of existing poles, and wireless support infrastructure, shall be underground, unless this requirement is specifically waived by the Director.
Sec. 66-148 – Placement and standards. Facility placement shall be as designated by the Director. The Director shall adopt standards for facilities and standards for cutting, excavating, back-filling, compacting, and patching for all work done October 10, 2017 Ordinance 13-__ Page 5
in the public rights-of-ways. All work performed under permits issued under this article shall be in compliance with those standards. The Director shall adopt standards for the condition and maintenance of facilities. All facilities located in the public-rights-of-way or on other public property shall be in compliance with those standards.
Sec. 66-149 – Prohibited installations. The Director may prohibit the installation of a facility if the facility, its proposed location, or the manner of installation fails to conform to the requirements of this article or any other city ordinance, or to any condition attached to the permit for its installation.
All facilities installed in the public rights-of-way shall conform to the height requirements of the Design Guidelines for the Installation of Facilities in the City of Fredericksburg Right-of-Way. No part of any facility installed in the public rights-of-way shall be more than 55 feet in height over street level, or taller than specified in the Design Guidelines, without advance written approval from the Director. The Director shall grant this approval only upon finding that denying that approval would cause an undue hardship upon the applicant.
Sec. 66-150 – Suspensions and revocations of permits. a. The Director may immediately suspend or revoke permits issued under this article due to any violation of this article or any other ordinance relating to use of the public rights-of- way, any failure to observe the conditions attached to a permit, or any refusal to make alterations or repairs as may be required to conform to this article. No person shall perform any work or cause any work to be performed under a suspended or revoked permit.
b. When a permit has been revoked, the owner or proprietor of the facilities authorized by the permit shall, within 30 days, remove those facilities from the public rights-of-way. If the owner or proprietor fails to do, the Director may remove the facilities at the risk and expense of the owner or proprietor.
Sec. 66-151 - Diligence; excavation protection. All permitted work shall be prosecuted with diligence, and the permittee shall avoid unnecessary delays. Excavation shall not be left uncovered overnight without advance written approval from the Director.
Sec. 66-152 - VA811. Any person installing undergrounded utilities shall participate in the VA811 underground utility protection program, and respond to and stake or locate underground utilities as prescribed by the program. The City shall be held harmless for any damage to facilities damaged by City excavations if due to untimely or incorrect locations being staked or identified; provided that the City acted in accordance with the VA811 program.
October 10, 2017 Ordinance 13-__ Page 6
Sec. 66-153 – Safety precautions and code compliance. All openings, excavations, and obstructions in the public rights-of-way and on other public property shall be properly barricaded and illuminated with barriers and flashing beacons as required by the Virginia Department of Transportation Work Area Protection Manual.
All openings, excavations, and tunnels in the public rights-of-way and on other public property shall be properly shored and braced in accordance with all Occupational Safety and Health Administration (OSHA) and the Virginia Occupational Safety and Health Administration (VOSHA) standards.
Sec. 66-154 – As-built maps. The applicant shall provide "as-built" maps of all of its facilities upon request of the Director. If this information is available in a format compatible with the City's GIS, the information shall be submitted in that format.
Sec. 66-155 - Removals. Every facility that no longer serves its originally intended purpose shall be removed from the public rights-of-way immediately upon abandonment, unless a permit for its use is granted to some other person or corporation.
Sec. 66-156 - Restoration. Any person obtaining a special excavation permit under this article shall restore the excavation as required by the Director, in accordance with City standards. If the excavation is not properly restored, the City may perform the restoration and charge the actual cost of that work to the permittee. The work area shall also be thoroughly cleaned of all rubbish, excess earth, rock, and other debris resulting from the work. All clean-up operations shall be at permittee’s expense and shall be completed to the satisfaction of the Director.
Sec. 66-157 – Street acceptance. If facilities are installed in a street that has not been accepted by the City, this ordinance shall apply to those facilities if and when the street is accepted by the City.
Sec. III. Effective date. This ordinance becomes effective immediately.
Votes: Ayes: Nays: Absent from Vote: Absent from Meeting:
Approved as to form:
______Kathleen Dooley, City Attorney
October 10, 2017 Ordinance 13-__ Page 7
*************** Clerk’s Certificate I, the undersigned, certify that I am Clerk of Council of the City of Fredericksburg, Virginia, and that the foregoing is a true copy of Ordinance No. 17- duly adopted at a meeting of the City Council meeting held Date, 2017 at which a quorum was present and voted.
______Tonya B. Lacey, CMC Clerk of Council
Design Guidelines for the Installation of Facilities in the City of Fredericksburg Right-of-Way Definitions The definitions in § 66-141 of the Fredericksburg City Code apply to these guidelines.
Siting of Facilities in the Right-of-Way Co-location of facilities is strongly encouraged. Where multiple users are seeking to locate in the same geographic area, every effort should be made to co-locate each’s equipment onto a single structure and to use existing structures wherever possible. Utilities and wireless providers shall make unused space on existing wireless support structures and poles available for future co-location of other facilities, including space for different operators providing similar, competing services. Wireless providers shall use the smallest and least visible antennas, equipment cabinets, and other facilities to accomplish the operator’s coverage and service objectives. Facilities shall be installed within existing underground ducts or conduits whenever such ducts, conduits, manholes, or other facilities have volume or capacity that is available and will be available for third party facilities. Facilities shall be located to maintain a minimum 4-foot wide pedestrian clear zone. Poles shall be located as close as possible where shared property lines intersect the right-of-way. Unless specifically authorized otherwise by the Director of Public Works, facilities shall be located: A minimum of 3 feet from any water meter, sewer cleanout, or storm drain, A minimum of 3 feet from any driveway entrance or walkway ramp, A minimum of 15 feet from any fire hydrant A minimum of 30 feet from any street corner A minimum of 10 feet from any street tree or outside of the canopy of any existing street tree, whichever is greater. Any installations that are proposed with the Old and Historic Fredericksburg Overlay District will require additional review.
Design Guidelines General Colors and materials for facilities shall be chosen to blend in with the surroundings. All visible exterior surfaces shall be constructed of non-reflective materials and painted or textured using colors to match the primary background. The color, design, and landscaping of above-ground installations may be varied from these guidelines in response to the request of property or business owners so long as the Director of
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Public Works approves such changes. Utilities and wireless providers shall take all reasonable steps to modify proposed plans to accommodate public concerns and shall describe such changes in the permit application filed with the City. When facility lighting is needed for security or safety reasons, it shall be designed to avoid glare, minimize illumination on adjacent properties, and meet the standards defined in City Code § 72-58. No advertising or signage, except as required for public safety purposes or by the Federal Communications Commission (FCC), shall be placed on any above-ground facilities or equipment. Informational signage required by these guidelines may include an identifying logo. In the course of constructing, installing, improving, maintaining, repairing or otherwise using any facilities, no City-owned trees or landscaping shall be removed, trimmed, or otherwise disturbed without the prior written approval of the City arborist. All facilities shall be designed to be resistant to and minimize opportunities for unauthorized access, climbing, vandalism, graffiti, and other conditions that would result in hazardous conditions, visual blight, or attractive nuisances. The Director of Public Works may require the provision of warning signs, fencing, anti-climbing devices, or other techniques to prevent unauthorized access and vandalism when, because of their location or accessibility, facilities have the potential to become an attractive nuisance. At the time of modification or upgrade of facilities, existing equipment shall, to the extent feasible, be replaced with equipment of equal or greater technical capacity and reduced size so as to reduce visual impacts. Each utility and wireless provider shall provide signage identifying the name and phone number of a party to contact in event of an emergency. The signage shall be attached to the base of any utility pole or light standard to which wireless telecommunications facilities are attached. Dimensions shall not exceed 3 inches x 5 inches The exterior walls and roof covering of all aboveground equipment shelters and cabinets shall be constructed of materials rated as nonflammable by the City Building Official. Openings in all above- ground equipment shelters and cabinets shall be protected against penetration by fire and windblown embers to the extent feasible. If a utility or wireless provider is unable to meet the design guidelines, a detailed request for variance must be submitted to the Director of Public Works explaining the reasons the guidelines cannot be met. Poles Facilities installed on existing wireless support structures and utility poles should not be larger, more obtrusive, or more readily visible than the existing facilities and devices affixed to the structure or pole. The height of new facilities, measured from grade to the highest reach of equipment or antenna, shall not exceed the average height of utility poles within a 500-foot radius of the proposed location, unless additional height is expressly granted by the Director of Public Works. Additional height will
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only be granted where it is essential for proper functionality of utilities or wireless telecommunications facilities and must meet the height standards defined in City Code § 72-41.2 (G). An antenna enclosure attached to the top of a utility pole shall not exceed 4 feet in height, and shall not have a diameter greater than the diameter of the pole. New poles and wireless support structures shall match or be consistent with the materials, finish, and color of the adjacent utility poles in the surrounding area. Steel poles are preferred so that all wiring can be internal to the pole. Any external equipment shall match the color of the pole. If wooden poles must be used, all loose wires shall be wrapped and secured with a riser guard. On both new and existing poles, all equipment, mounting, and banding fixtures shall be painted to match the pole on which they are located.
Equipment Enclosures A maximum of 2 equipment enclosures and 1 meter box may be attached to a utility pole or wireless support structure, as follows: A primary equipment enclosure installed on the same utility pole or wireless support structure as the antenna enclosure(s), preferably facing the street or perpendicular to the street, shall be no larger than approximately 4 cubic feet in volume, with a width not exceeding approximately 12 inches and a depth not exceeding approximately 10 inches, and shall be as small as reasonably possible with current technology. An electric meter and a disconnect switch may be located outside of the primary equipment enclosure. In lieu of a separate meter box, the Director of Public Works may allow a larger primary equipment enclosure if the applicant demonstrates that the enclosure will contain an electricity meter and disconnect switch, provided the width of the enclosure does not exceed approximately 12 inches and the depth does not exceed approximately 10 inches, and is as small as reasonably possible with current technology. A secondary equipment enclosure installed on a utility pole or wireless support structure that is near the pole or wireless support structure to be used for the antenna enclosure(s) and primary equipment enclosure, preferably facing the street or perpendicular to the street, shall be no larger than approximately 4 cubic feet in volume, with a width not exceeding approximately 12 inches and a depth not exceeding approximately 10 inches, and shall be as small as reasonably possible with current technology. The bracket supporting an equipment enclosure shall not extend more than the minimum necessary to support the equipment. Equipment mounted to the exterior of a pole or wireless support structure shall be a minimum of 14 feet above finished grade over streets and 8 feet above finished grade over sidewalks, excluding the electric meter and disconnect switch. Electric meters and disconnect switches shall not be located on the side of the pole or wireless support structure that faces the sidewalk.
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Supporting Elements If a supporting element for any antenna enclosure, such as a cross-arm or pole top extension, is needed, such supporting element shall be no larger, longer, or bulkier than is necessary to comply with applicable law or such generally applicable written rules. Restoration All disturbances to City streets, sidewalks, trails and other public property caused by the installation, improvement, repair, or operation of facilities shall be promptly restored as required by the Department of Public Works.
Additional Guidelines for Locations within the Old and Historic Fredericksburg District General Facilities should not be intrusive or incompatible with the historic character of the neighborhood. The installation of new facilities within the Old and Historic Fredericksburg District Overlay (HFD) shall be reviewed by the City Public Utilities Review Committee when located in public rights-of- way, and by the Architectural Review Board on all other property when visible from a public right- of-way. When possible, facilities should be hidden from view by means of a stealth design. Consider locating antennas or equipment inside steeples or chimneys, or disguising facilities as a flagpole or other appurtenance. The maximum height of any facility inside the public right-of-way in the HFD shall be 40 feet, unless specifically approved otherwise by the Director of Public Works. New poles and wireless support structures shall match the style, design, and color of the predominant poles used in the district and all wiring must be located inside the pole where possible.
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ITEM #11E
MEMORANDUM
TO: Mayor Greenlaw and Members of City Council FROM: Timothy J. Baroody, City Manager DATE: October 3, 2017 SUBJECT: City Manager’s Update
Highlights of major activities and other notable developments:
Police to Participate in Virginia’s Drug Take-Back Day – The Fredericksburg Police Department will participate in Virginia’s statewide Drug Take-Back Day, October 28th, an effort to prevent prescription drug abuse and to keep trace drugs out of lakes and streams. The public will be able to drop off prescription drugs, over-the-counter medicines and sharps from 10 a.m. to 2 p.m. at the Tompkins Martin Medical plaza located at 1101 Sam Perry Boulevard.
Community Collaborative Hosts Meeting on Opioid Epidemic – On October 2nd, the Fredericksburg Community Collaborative for Youth and Families hosted a meeting on the Opioid Epidemic at James Monroe High School. The movie “Chasing the Dragon: The Life of an Opiate Addict” was shown, followed by a question-and-answer session to a panel that included staff, regional partners, drug treatment counselors, and a representative from the Richmond office of the Drug Enforcement Administration.
The film was produced by the Federal Bureau of Investigation in partnership with the Drug Enforcement Administration and is available for viewing at the FBI and DEA websites, as well as YouTube.
Painting at the Bass-Ellison Building Underway – The City is painting the exterior of the Bass-Ellison building, a process that is underway as of Monday, October 2nd.
Flu Shots – In an effort to promote good health and wellness, the Human Resources Department is partnering with Anthem and Mary Washington Healthcare to provide flu vaccine shots for interested employees. The HR Department has been coordinating with other departments to provide a variety of times and locations for the vaccines, and they are scheduled for the week of October 9 – 13.
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City Manager’s Report October 3, 2017
Police Department Goes Code Pink – In an effort to raise breast cancer awareness, the Fredericksburg Police Department is going Code Pink for October, National Breast Cancer Awareness month. According to the National Breast Cancer Foundation, every year over 252,000 women are diagnosed with breast cancer in the United States and over 40,500 die from breast cancer. The Fredericksburg Police Department hopes that going Code Pink will empower women to have regular screenings for early detection of breast cancer.
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ITEM #11F
CITY COUNCIL MEETINGS & EVENTS CALENDAR
City Hall Council Chambers, 715 Princess Anne Street, Fredericksburg, VA 22401
10/9/17 5 p.m. Work Session with School Board Walker-Grant Center • Dinner and Tour 210 Ferdinand Street • Discussion 10/10/17 5:30 p.m. Work Session Suite, Room 218 • Visitors Center/Executive Plaza • Legislative Agenda – Discussion 7:30 p.m. Regular Session Chambers
10/24/17 5:30 p.m. Work Session Suite, Room 218 • Transportation (TAP & Kenmore Roundabout & EIS for Rail) • Priorities Quarterly Update
7 p.m. Wall of Honor Reception Chambers
7:30 p.m. Regular Session Chambers
11/14/17 5:30 p.m. Work Session Suite, Room 218 • Incentives • Purchasing • Chatham Bridge Update 7:30 p.m. Regular Session Chambers
11/21/17 5:30 p.m. Work Session Suite, Room 218 • Fire/EMS Analysis • FRED Transit 11/28/17 5:30 p.m. Work Session Suite, Room 218 • FAAR Housing Assessment • Stormwater 7:30 p.m. Chambers Regular Session 12/12/17 5:30 p.m. Worksession Suite, Room 218
7:30 p.m. Regular Session Chambers
Future Work Session Topics: FY 2019 Budget & CIP Look-ahead; Bond Issue 2018 Riverfront Park Design Update Wastewater Treatment Boards & Commission Meeting Dates/Time Actual Date of Meeting Members Appointed Contact Person
Board of Social Services bi-monthly 2nd Thursday/8:30 a.m. October 12 at 8:30 a.m. Duffy Christen Gallik Central Rappahnnock Regional Library Quarterly 2nd Monday/5:00 p.m. November 20 at 4 p.m. Devine Martha Hutzel Chamber Military Affairs Council Every other 3rd Thursday/3:30 p.m. October 19 at 3:30 p.m. Ellis Susan Spears Community Policy Management Team Thursday after 3rd Tuesday/2:00 p.m. October 19 at 2 p.m. Greenlaw Rosemary Grant Fredericksburg Arts Commission 3rd Wednesday/6:30 p.m. October 18 at 6:30 p.m. Greenlaw, Devine Sonja Wise Fredericksburg Area Museum 4th Tuesday/8:30 a.m. October 24 at 8:30 a.m. Kelly Sara Poore Fredericksburg Clean & Green Comm. 1st Monday/6:30 p.m. November 6 at 6:30 p.m. Devine Robert Courtnage Fredericksburg Regional Alliance Quarterly 3rd Monday/5:00 p.m. October 16 at 5 p.m. Greenlaw, Duffy Curry Roberts GWRC/FAMPO 3rd Monday/6:00 p.m. October 16 at 6 p.m. Kelly, Withers, Ellis - Alt. Tim Ware Main Street Board 3rd Thursday/8:30 a.m. October 19 at 8:30 a.m. Ellis Ann Glave Housing Advisory Committee As needed TBD Ellis, Frye Susanna Finn PRTC 1st Thursday/7:00 p.m. November 2 at 7 p.m. Kelly, Withers - Alt. Gina Altis Rappahannock Area Agency on Aging 1st Wednesday/4:00 p.m. October 4 at 4 p.m. Vacancy Leigh Wade Rappahannock Council Against Sexual Assault 2nd Thursday/5:30 p.m. October 12 at 5:30 p.m. Ellis Bobby Anderson Rappahannock Juvenile Detention bi-monthly last Monday/12 noon November 27 at 12 noon Frye - Alt. Carla White Rappahannock Regional Solid Waste bi-monthly 3rd Wednesday/8:30 a.m. October 18 at 8:30 a.m. Kelly, Withers Keith Dayton Rappahannock River Basin Quarterly/1:00 p.m. December 6 at 1 p.m. Withers Eldon James Recreation Commission 3rd Thursday/7:00 p.m. October 19 at 7 p.m. Duffy Jane Shelhorse Taxi Board TBD TBD Frye TBD Regional Group Home Commission 2nd Thursday/2:30 p.m. October 12 at 2:30 p.m. Duffy, Whitley Ben Nagle Town & Gown Quarterly/3:30 p.m. Summer Break Withers, Duffy Paula Zero Virginia Railway Express Operations Board 3rd Friday/9:30 a.m. October 20 at 9:30 a.m. Kelly, Withers -Alt. Richard Dalton