Loading...
Staff Report - Variance Review, Wave 6.17.16.pdf th Attachment5)along Main Street, 6Ave S. and two stretches along Dayton Streetfor a total of 2118’ of new aerial line. 5.Review Process:Variances under ECDC 18.05.040 are Type II staff decisions pursuant to ECDC 20.01.001.A.Administrative Decisions.Following a public comment period, the Director (or designee) makes an administrative decision. B.ApplicationMaterials: Wave submitted a right of way(ROW)permit application (Attachment 12) to the Engineering Division for the proposed work on September 25, 2015,permit application ENG20150400.The applicant was informed verbally that consistent with ECDC 18.05.010 Underground Requirements, the proposed work would not be approved. In addition, the franchise agreement between the City and Wave, accepted through Ordinance No. 3911 (Attachment 5), states“Consistent with ECDC Chapter 18.05, all of Franchisee’s facilities shall be placed underground”. Based on that communication, the applicant choseto withdraw their application for a ROW permit (ENG20150400). An application for a variance from the requirement to underground the utilitieswas submitted on December 3, 2015(Attachment 13). The initial submittalconsisted ofan application/cover letter (Attachment 13), ROWpermit application (Attachment 2) and plans (Attachment 3). The application was initially determined to be incomplete on December 30, 2015and a Letter of Incompleteness was sentto the applicant (Attachment 14). The applicant submitted a revised application/cover letteron February 4, 2016(Attachment 1) and the application was determined to be complete onFebruary 18, 2016(Attachment 15)pursuant to ECDC 20.02.003.The complete varianceapplication as of February 18, 2016 consisted of anapplication/cover letter (Attachment 1), ROW permit application (Attachment 2) and plans (Attachment 3). II.FINDINGS OF FACT ANDCONCLUSIONS A.Setting : 1.Existing aerial lines consist of a combination ofmultiple companies such asPUD, ththth Comcast and Verizon,along Main Street(between 7& 6Ave), 6Ave S(Main thth Street to Dayton Street), andtwo sections of Dayton Street (6to 5Ave S & thrd from the center block of 4and 3Ave S. to Sunset Ave).Thecurrent telecommunication facility proposal includes the addition of aerial lines along these existing PUD and Frontier poles. With the subject proposal, one aerial span will run diagonally across Main Streetfrom a pole located north, northwest of the library running across Main Streetwhere no utility linescurrentlyexist.To accommodate the new aerial lines, sevenadditional down guy anchors will be installed along the proposed path.Refer to Attachment 3 for the project plans which include a depiction of the existing and proposed utility lines.Attachment 4 includes photographs created by staff illustrating the proposed aerial routes. Astound Broadband, LLC d/b/a Wave File No. ENG20150564 Page 2of 8 B.Environmental Assessment 1.The proposed utility line will add to the existing strands of aerial lines along Main ththth Street(7to6AvenueS.), along 6AvenueS. (between Main Streetand thth Dayton Street) and two sections of DaytonStreet(6to 5AvenueS. andfrom th the alley behind 4Ave S. to Sunset Avenue). 2.If the subject variance is approved, the placement of aerial lines will allow for over-lashing of additional linesin the future, increasing the overall diameter of the telecommunication facility linesovertime. C.ECDC 18.05 Utility Wires & Examples of Compliance: 1.Consistent with ECDC18.05 Utility Wires, it has been a long standing regulatory requirement for new utility servicesto be placed underground. Utility companies such as Comcast, Frontier, Zayo and PUD have abidedby the city codeand placed their new or extended utilities underground.Approvalof this variance would be precedent setting and inconsistentwith ECDC 18.05, which other utility companies have been held to when applying for right of way permits to current date. 2.The City does not have record of approving a variance from the underground requirementsto date. Below are examples of projects that were recent submittals and/or approved permits that met the requirements of ECDC 18.05 to install their respective utility underground. Zayo Group (Permit No. ENG20150439) –Project proposal includes underground installation of 7112’ of new fiber lines by way of boring along Olympic View th Drive (Sunset Way to 76Ave W.). (Attachment 6) Zayo Group (Permit No. ENG20150428) –Project proposal includes underground th installation of 5975’ of new fiber along Main St (Maplewood Dr. to 9Avenue), thththth 9Avenue(Main St to Dayton St), Dayton St. (9Ave S. to 6Ave S.), 6Ave S. (Dayton St. to Alder St.) by way of boring/trenching under/in concrete sidewalk, landscape strips, streets and alleys. (Attachment 7). Zayo Group (Permit No. ENG20150032) –Project consisted of the installation of 421’ of new underground fiber by way of boring. The new fiber was installed th under the traveled lanes and sidewalk of Hwy 99 and 220Street SW. (Attachment8) Zayo Group (Permit No. ENG20150423) –Project consisted of the installation of 532’ of new underground fiber under Hwy 99. The fiber was bored under traveled thth lanes and the sidewalk (between 238& 240Street SW.). (Attachment 9) D.Public Notice & Comments 1.ECDC 20.03 provides the City’s regulations for public notice of development applications. A “Notice of Application” dated March 3, 2016with a comment period running through March17, 2016was posted at the subject site, Public Safety Complex, Development Services DepartmentandtheLibrary on March 3, 2016. The notice was also published in the Everett Daily Herald Newspaper and Astound Broadband, LLC d/b/a Wave File No. ENG20150564 Page 3of 8 mailed to property ownerswithin 300 feet of the site on March 3, 2016using a mailing list provided by the applicant. Documentation of compliance with the public notice requirements is included (Attachment 10). a.There were eight public comment lettersin total(oneof which includesa petition signed by residentswithin a single complex)objecting to the proposedaerial lines (Attachment 11).Concerns raised in the public comment letters includesetting a precedence making it easier for other utility companies to install similar aerial utility lines. A few of theletters provide comments on excerpts from the ECDC calling for the requirement to underground new utility lines. Comments were provided in direct dispute with the applicant’s claims that the proposalwould not negatively affect resident’s property value or scenic views. There are expressed concerns to having utility lines placed aeriallyand additional disruptions because of major weather events. b.It should be noted that pursuant to ECDC 20.07.003, persons who have only signed petitions are not parties of record.Thus, the eightparties who simply signed in support of the comment letter composed by Dean Shepherdand submitted by Janis Wright and who did not submit their own written comments are not parties of record to the subject decision and, therefore, do not have standing to file an administrative appeal. c.No lettersin support of the proposed variance were receivedfrom the public. E.ECDC 18.05.040–Variances . Pursuant to ECDC 18.05.040, the following criteria shall be usedto review proposed variances: For the purposes of this chapter, the special circumstances necessary to justify a variance from the undergrounding provisions of this chapter shall be limited to technological impracticability of any required underground installation or to a finding that the cost of the underground installation is excessive in light of the benefits derived and outweighs the benefits to be gained by the public.\[Ord. 3736 §25, 2009; Ord. 2498, 1985; Ord. 2491, 1985\]. 1.The submitted application does not meet thespecial circumstances necessary to justify approval of the proposedvariance. The application does notprovide an explanationjustifyingnew aerial lines due to technological impracticability. The applicanthas not provided information showing that the undergrounding of the utility lines is excessivein light of the benefits derived and that the cost to underground the utility lines outweigh the benefits to be gained by the public. 2.If the variance is approved, it would be the first variance allowing for a proposal to run aerial lines where a given utility companycurrentlydoes not have existing aerial lines. Astound Broadband, LLC d/b/a Wave File No. ENG20150564 Page 4of 8 3.In Wave’s opening argumentthey state,“Wave is asking for a variance because the cost of undergrounding in order to complete the project is excessive in light of the benefits to be derived from aerial placement of facilities and would outweigh any perceived benefit of underground construction”(Attachment 1).Although cost could be higher to underground the utilities,the only entitybenefitting from the proposed aerial line would be the subject property receiving the services. The general public and more specifically,the residents along the route of the proposed aerial lines would be negatively affected (according topubliccomments provided). 4.Wave goes on to state that “Theunderground requirement would deprive Wave of rights and privileges permitted to other utility companies providing service in the area”(Attachment 1).Existing utilitycompanies in the area conform to their associated Franchise agreements,ECDC 18.05.010 Underground Requirements,and obtain the required right of way permits. Any additional utility companies looking to expandwithin the City of Edmondswill be held to the same standards when submitting their permit application for work within the right of way. 5.Wave also states that,“The project will also permit Wave to offer competitively priced services to businesses along the fiber route”(Attachment 1). Wave is a communications company which currently only provides service to businesses not residential and there is no guaranteeof competitive service prices. 6.“Approval of the variance requested does not constitutethe granting of special privileges to Wave.Wave seeks to be afforded the same aerial placement opportunities as its competitors”(Attachment 1).Wave states above,that the approval of a variance would not be a special privilege.The approval of this variance, however,would infact grantspecial privileges to Wave. Similar requests to place utility wires overhead havebeen proposed by other utility companies and denied per ECDC18.05.010.The location that Wave is proposing to place aerial lines is no different from those requests made by Comcast, PUD, Frontier, Zayoin which cases, they had to place the utility lines underground. 7.Wave comments that “The variance would not cause loss of property value, scenic view or use of surrounding properties”(Attachment 1).Wave goes on to state that the proposed line will be less than one inch in diameter. Per ECDC 18.05, under certain circumstances utility companies are allowed to add to existing aerial utility lines. Wave would benefit from this section of the code if thisvariance is approved, allowing for Wave to add additional service lines and increasing the overall diameter of their aerial line in the future.This Astound Broadband, LLC d/b/a Wave File No. ENG20150564 Page 5of 8 same benefit would be allotted to other utility companiesrequesting asimilar variancefor aerial utilitylines, whichcould further impact views. 8.Wave closes their application by stating, “Without the variance requested, advanced telecommunications servicesby area businesses and provided by Wave or any other new entrant into the market will be prohibitively costly” (Attachment 1). The installation of undergroundutilities versus the installation ofaerial lines is more expensive.However, this additional cost is being paid by Wave’s competitors each time they install newunderground utility lines within the City (Attachment 6-9). Approval of this variance will make it problematic for the City to administer the underground requirements, in a fair and equitable manner, since it is difficult to establish when the undergrounding of utility lines is prohibitive in cost. F.ECDC 18.05.050 –Existing city franchises not affected. Pursuant to ECDC 18.05.050, this section applies to all utility companies who have a franchise agreement with the City of Edmonds. The provisions of this chapter do not and shall not be interpreted to waive any right enjoyed by the city with respect to any franchisee, nor to waive the obligations created by any franchise. In the event that any provision of this chapter conflicts with any provision of a franchising agreement or ordinance, said franchise provision shall control. \[Ord. 2640 § 1, 1987\]. Wave, Astound Broadband,LLC agreed to the terms of the franchise agreement (Attachment 5),and according to ECDC 18.05.050,the provisions of Chapter 18.05 (Utility Wires)of the ECDC shall not be interpreted to waive any of the obligationsof the utility companycreated by the franchise agreement. ECDC 18.05.050 also states that in the event that provision of Chapter18.05conflictswith the franchise agreement,the franchise agreement shall control. Section 8of the franchise agreement (Ordinance No. 3911) states, “Consistent with ECDC Chapter 18.05, all of Franchisee’s facilities shall be placed underground”(Attachment 5). G.Acceptance of Ordinance No. 3911 (Franchise Agreement), Section 8 Per OrdinanceNo. 3911 (Attachment 5), Astound Broadband, LLC d/b/a Wave agreed to the underground requirementsof Section 8 of the Franchise Agreement, which states the following: Section 8 –Undergrounding of Facilities Consistent with ECDC Chapter 18.05, all of Franchisee’s facilities shall be placed underground. The requested variance would not be consistent with the agreement made under Section 8 of the Franchise Agreement. Astound Broadband, LLC d/b/a Wave File No. ENG20150564 Page 6of 8 III.DECISION Based upon the Findings of Fact, Conclusions, and Attachments to this staff report, the application for avariance to the required undergrounding of new utility lines to be installed to serve the development at 190 Sunset Avenue (Application No. ENG20150564)is DENIED. IV.APPEAL Pursuant to ECDC 20.07.004, a party of record may submit a written appeal of a Type II decision within 14 days after the date of issuance of the decision. The appeal would be heard at an open record public hearing before the Hearing Examiner according to the requirements of ECDC Chapter 20.06 and Section 20.07.004. V.PARTIES OF RECORD City of Edmonds Janis Wright th 121–5Avenue North626 Mains Street Unit #9 Edmonds, WA 98020Edmonds, WA 98020 janiswright@seanet.com Astound Broadband, LLC d/b/a WaveDean P. Shepherd Jeremy Anderson,626 Mains Street Unit #12 Jason Gregory & Edmonds, WA 98020 Byron E. Springer, Jr.deanlaw@aol.com 401 Parkplace Center Suite 500 Kirkland, WA 98033Joseph W. Tovar bspringer@wavebroadband.comPresident, Dayton Place jagregory@wavebroadband.comCondominium Owners Association janderson@wavebroadband.com540Dayton Street Edmonds, WA 98020 Maggie Fimia Joseph.w.tovar@gmail.com President, Dayton Condominiums 530 Dayton St Unit #22Tim Linehan Edmonds, WA 98020timothyjlinehan@hotmail.com mfimia@zipcon.com Jim & Marilyn Cook Donald MoeCookjm49@hotmail.com 530 Dayton Street Unit #202 Edmonds, WA 98020 Donald.moe@icloud.com John Berg 627 Main Street Unit B Edmonds, WA 98020 Jmberg99@comcast.net Astound Broadband, LLC d/b/a Wave File No. ENG20150564 Page 7of 8 VI.ATTACHMENTS 1.Revised VarianceApplication/Cover letter–Received 2.4.16 2.Right of way Applicationfor Variance–ENG20150564 3.Plan Set–Received 12.3.15 4.Street View –Proposed aerial lines 5.Franchise Agreement –Acceptance of Ordinance No. 3911 &Ordinance No. 3911 6.Zayoex. proposed work(permit ENG20150439) 7.Zayo ex. proposed work (permit ENG20150428) 8.Zayo ex. completed work (permit ENG20150032) 9.Zayo ex. completed work (permit ENG20150423) 10.Public Notice Documentation 11.Public Comment Letters 12.Right of Way Application –ENG20150400(Withdrawn) 13.Initial Variance Application/Cover letter –Received 12.3.15 14.Letter of Incompleteness 15.Letter of Completeness Astound Broadband, LLC d/b/a Wave File No. ENG20150564 Page 8of 8