On March 7, 2017, in response to potential new rules being contemplated by State of Florida Legislature, the Town Council imposed a six (6) month moratorium on the installation of the communication equipment within the Town's rights-of-way. On June 23, 2017, the Governor of the State of Florida signed into law HB 687, titled the “Advanced Wireless Infrastructure Deployment Act." The bill, adopted by the State Legislature near the end of their 2017 legislative session, amended Section 337.401 of Florida Statute and provided for new rules and review procedures regarding small and micro wireless facilities within public rights-of-way. This action imposed the new rules on every municipal jurisdiction in the State. In light of the newly enacted bill, the Town Council extended the moratorium an additional six (6) months to thoroughly review the amended statutes, evaluate their implication, and prepare an ordinance that ensures our local codes comport with State Statutes. As part of the Town's review of its existing Code, other provisions regarding utilities within the rights-of-way were also examined. The result is the attached ordinance which provides for two (2) Article in Chapter 35 of the Town's Code of Ordinances. Article II provides for non-communication utilities (power, gas, water, etc) located in the rights-of-way, and Article III addresses communication facilities (antennas, cable TV, communication poles, etc.) so located. The attached ordinance seeks only to provide appropriate rules for utilities and communication facilities located within rights-of-ways.

The drafting of the ordinance was conducted in an open manner that began with a Council Workshop held on March 13, 2017. Additional discussion was provided on July 25th, 2017 when the moratorium was extended six (6) months. The meeting was advertised and members of the utility and communication industry both attended and spoke. Staff shared drafts of the proposed ordinance with representatives from the utility and communication industries on multiple occasions (10/18/2017, 10/27/2017, 11/22/2017, and 12/13/2017) and met with them several times (3/28/17, 11/02/2017, 11/22/2017, 12/14/2017 and 12/18/2017) to discuss their concerns. Staff believes the result of this effort is an ordinance that complies with State Statues, addresses the operational demands of the utility and communication industries, and appropriately responds to the Town's interest in protecting and regulation its rights-of-way. The following is a brief description of Article II and Article III of Chapter 35.
Article II addresses utilities within the rights-of-way. Certain portions of the Towns existing laws regarding the regulations of utilities remains unchanged, some of which are relocated within the ordinance for clarity, while other provisions are added. Among the added provisions is the requirement of registration. The intent is to put in place a mechanism that would ensure indemnification to the Town in case of any damage, and the assurance to maintain the integrity and safety of the Town's rights-of-way. This includes security funds, bonding, and insurance requirements to ensure the Town is properly protected. It also provides for the option of a utility to enter into a Franchise Agreement if it is desired to achieve greater specificity of terms. With the exception of franchising and bonding, the registration standard is similar to the one provided for in Article III. The remaining provisions provide a framework for equipment/facility location and enforcement provisions. Article II does not interfere with the State's ability to regulate the utility industry, nor does it infringe upon the utilities duty to provide service as may be so required. Attachment A provides a fuller summary of Article II.

Article III addresses communication facilities within the rights-of-way. As with Article II, much of the prior Town Code was retained and simply relocated for clarity into this new Article. The separation of the Articles provides clarity between standards for utilities and those for communication facilities. The language being added to the Town's Code relates more specifically to HB 687 which addresses small and micro cell facilities, their siting standards, and the review procedure that must be followed. Attachment B provides a fuller summary of Article III.

Provided at Attachment “C” are the key definitions related to the new statute (HB 687) and the new permitting “shot clocks,” (review time tables) outline therein. As reflected in the shot clocks, changes introduced by the new legislation include a negotiation period that provides the Town and the applicant an opportunity to collaboratively consider applications for telecommunication facilities within the public rights-of-way. The provision provides flexibility for the Town to address citing concerns while giving the applicant an assurance that they can meet their demands in a timely fashion. Another change to the Code provides for the applicant to apply for a single building permit to address multiple locations (up to 30). However, each location may be considered individually with review and response times independently tracked accordingly. The new code now requires all correspondence, including those related to approvals and denials, issued by a local jurisdiction to the applicant, to be by electronic mail. Specific statutory review criteria and design standards are provided within the ordinance that govern the Town's basis for approval or denial. Provisions added to the Code address review criteria of stealth and concealment options, the distance between poles, pole height and collocation are as follows:

It is important to note, Florida Statute 337.401(7), attached herein (“Attachment D”), does not permit municipalities to be more restrictive than what is set forth by State Law, but provides for certain processes, clear definitions, and review criteria, to facilitate the placement of communication facilities in the rights-of-way while considering the community's desires for these services and the industries needs in providing the utility.

On December 12, 2017, the Planning and Zoning Board, acting in their capacity as the Local Planning Agency (LPA) heard the item at a publicly advertised hearing, and voted to recommend approval to the Town Council. The LPA submittal package, which includes a fuller staff report, is provided at Attachment “E”.

This item was moved on First Reading at the Town Council's Regular hearing of January 16, 2018. At that meeting, a representative of the communication industry submitted a letter which opposed to two provisions of the ordinance (Attachment “F”):

1. Annual renewal of registration (which they prefer every five (5) years):
While we appreciate that annual renewal may be challenging for the industry, the Town prefers this schedule as it allows for ease of oversight in identifying and managing facilities within our rights-of-way. Additionally, the annual schedule aligns with other processes implemented by the Town, such as Business Tax Receipts and Certificates of Use, as we continue to ensure the proper management of the Town.

2. Required security fund:
The industry argues that the Security Fund is unnecessary as the Town opted to collect a Communication Services Tax, which is used for the general operations of the Town and serves in lieu of building permit fees and any construction bonding that may be associated thereto. However, the Security Fund, serves a separate purpose. Its intent is to maintain the integrity of the Town's rights-of-way in the event a facility is abandoned, or restoration of the right-of-way is required due to damages not corrected by the provider. There are regular occurrences where a contractor or subcontractor fails to leave the Right-of-Way in the same or better condition as before work commenced on a timely basis. It should also be noted that the ordinance permits the Communication related company to submit a Corporate Assurance in lieu of a direct $50,000 deposit.