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ORD NO. 2020-22 EXTENDING INTERIM OFFICIAL CONTROL SWFS FOR 10-13-2020Page 1 of 6 ORDINANCE NO. 2020-22 AN ORDINANCE of the City of Bainbridge Island, Washington, concerning wireless communications facilities; leaving the effective date of the interim official control adopted by Ordinance No. 2019-15 unchanged; adopting a work plan; and extending the duration of the interim official control adopted by Ordinance No. 2019-15, and previously extended by Ordinance No. 2019-31 and Ordinance No. 2020-11, for an additional six-month period. WHEREAS, the Federal Communications Commission (“FCC”) adopted a Declaratory Ruling, Order, and Regulation (“FCC Order”), which imposed limitations on local municipalities, including the City of Bainbridge Island (“City”), regarding processing and review of all permits associated with the deployment of small wireless facilities; and WHEREAS, the City Council finds that the existence of the federal regulations requires the immediate enactment of administrative procedures and processes which comply with the FCC Order; and WHEREAS, on May 14, 2019, in response to the FCC Order, the City Council approved Ordinance No. 2019-15, adopting an interim official control that created a new Chapter 18.10A, establishing interim small wireless facility design standards, amended Table 18.09.020, BIMC 18.09.030, and BIMC 18.10.010, and repealed and replaced Chapter 18.11 BIMC; and WHEREAS, the interim official control adopted by Ordinance No. 2019-15 was established for a six (6) month period, which the Council found to be necessary for the immediate preservation of the public peace, health, and safety; and WHEREAS, contemporaneous with the consideration of Ordinance No. 2019-15, the City Council enacted amendments to its existing master permit code provisions, Chapter 19.02 BIMC, and adopted a new Chapter 19.10 BIMC in order to provide a clear permitting procedure for the deployment of small wireless facilities; and WHEREAS, on June 11, 2019, the City Council held a public hearing on Ordinance No. 2019-15 to receive public comment on the interim official control; and WHEREAS, the adoption of aesthetic standards for deployment of small wireless facilities and utilization of a concurrent process emphasizing administrative review enables compliance with the federal presumptively reasonable time limits for review of proposed deployments of small wireless facilities; and WHEREAS, the City was required to enact administrative procedures and process to comply with the new presumptive federal safe harbors on or before January 14, 2019; and Page 2 of 6 WHEREAS, separately, federal law and regulation sets time limits on the processing of applications for eligible facility requests to expand existing structures which do not substantially change the height or profile of the structures used to collocate wireless communications facilities, and which regulations will replace Chapter 18.11 BIMC; and WHEREAS, on August 13, 2019, the City Council directed the Planning Commission to begin work on permanent regulations to replace the interim official control adopted by Ordinance No. 2019-15; and WHEREAS, on September 12, 2019, the Planning Commission began consideration of permanent regulations to replace the interim official control adopted by Ordinance No. 2019-15; and WHEREAS, on October 8, 2019, the City Council set a public hearing on Ordinance No. 2019-31, extending the interim official control adopted by Ordinance No. 2019-15 for six months, on the agenda for the October 22, 2019 Council Meeting; and WHEREAS, on October 22, 2019, the City Council held a public hearing on Ordinance No. 2019-31; and WHEREAS, on October 22, 2019, following the public hearing, the City Council adopted Ordinance No. 2019-31, extending the interim official control until May 14, 2020; and WHEREAS, the Planning Commission continued its discussion of permanent regulations to replace the interim official control adopted by Ordinance No. 2019-15 during its October 24, 2019, December 12, 2019, and January 23, 2020 meetings; and WHEREAS, on February 29, 2020, Governor Jay Inslee declared a state of emergency in response to cases of COVID-19 in Washington State; and WHEREAS, on March 9, 2020, the City Manager issued a Proclamation of Emergency due to the COVID-19 public health emergency; and WHEREAS, on March 10, 2020, the City Council adopted Resolution No. 2020-06, affirming the Proclamation of Emergency issued by the City Manager; and WHEREAS, the COVID-19 public health emergency continues to significantly impact City operations; and WHEREAS, due to the COVID-19 public health emergency, the City Council found that an additional six-month extension of the interim official control adopted by Ordinance No. 2019- 15 would be necessary given that the emergency posed by the spread of COVID-19 forced the cancellation of meetings of both the City Council and the Planning Commission; and WHEREAS, on April 14, 2020, the City Council set a public hearing on Ordinance No. 2020-11, extending the interim official control adopted by Ordinance No. 2019-15, and initially Page 3 of 6 extended by Ordinance No. 2019-31, for an additional six months, on the agenda for the April 28, 2020 Council Meeting; and WHEREAS, on April 28, 2020, the City Council held a public hearing on Ordinance No. 2020-11; and WHEREAS, on April 28, 2020, following the public hearing, the City Council adopted Ordinance No. 2020-11, extending the interim official control until November 14, 2020; and WHEREAS, the Planning Commission continued its discussion of permanent regulations to replace the interim official control adopted by Ordinance No. 2019-15 during its May 28, 2020, June 11, 2020, June 25, 2020, July 23, 2020, and August 13, 2020 meetings; and WHEREAS, on August 13, 2020, the Planning Commission held a public hearing on Ordinance No. 2020-04, an ordinance containing permanent small wireless facility design standards; and WHEREAS, on August 13, 2020, following the close of the public hearing, the Planning Commission forwarded Ordinance No. 2020-04 for City Council consideration with a recommendation proposing several additional changes; and WHEREAS, the City Council likely will need several meetings to review, discuss, and consider adoption of the Planning Commission’s recommendation; and WHEREAS, on August 12, 2020, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit entered its decision on five consolidated cases challenging the FCC Order preempting many aspects of local government regulation of small wireless facilities; and WHEREAS, the City Council will need additional time to understand the impacts of the Ninth Circuit’s decision on the Planning Commission’s recommendation and Ordinance No. 2020-04; and WHEREAS, the City is authorized by state law, including RCW 36.70A.390, to expeditiously adopt interim official control ordinances due to a public emergency for the protection of the public peace, safety, or health while permanent regulations are developed, vetted, and processed through the City’s standard legislative procedures; and WHEREAS, the City Council finds that the adoption of the interim official control adopted by Ordinance No. 2019-15 allowed the City to put in place standards to come into compliance with the FCC Order, while providing a meaningful opportunity for its residents to provide input regarding design, concealment, and other aesthetic standards within the longer timeframe permitted by use of an interim official control ordinance; and Page 4 of 6 WHEREAS, the City Council finds that an additional six-month extension of the interim official control adopted by Ordinance No. 2019-15 is necessary to allow the City Council time to develop, vet, and process permanent regulations to replace the interim official control and to solicit additional public comment from residents regarding design, concealment, and other aesthetic standards within the longer timeframe permitted by an extension of the interim official control; and WHEREAS, the interim official control promotes the public good and is necessary for the protection of public health, property, safety and welfare, and the public emergency on which the interim official control was imposed continues to exist and this ordinance does not change the basis for the that declaration of emergency nor the effective date of the interim official control, which is May 14, 2019. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BAINBRIDGE ISLAND, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: Section 1. Purpose. The purpose of this ordinance is to extend the interim official control adopted by Ordinance No. 2019-15 for an additional six-month period, unless terminated earlier by the City Council, and to adopt an updated work plan for the adoption of permanent regulations. Section 2. Findings of Fact. The recitals set forth above are hereby adopted as additional and supplemental findings of fact to the City Council’s initial findings of fact in support of the interim official control, as initially established by Ordinance No. 2019-15. Section 3. Duration of Interim Official Control Extended. The interim official control is hereby amended, as also stated in Section 6 below, to extend the duration of the interim official control until May 14, 2021, six months beyond the current expiration date set by Ordinance No. 2020-11, which, without this extension, would be November 14, 2020. Section 4. Interim Official Control Work Plan and Hearing. As provided for under RCW 35A.63.220 and RCW 36.70A.390, the City may renew an interim official control for one or more six-month periods if a work plan has been developed, a public hearing has been held, and findings of fact have been made. The City is hereby extending the interim official control as described herein based on the work plan that has been developed and is attached and incorporated herein as Exhibit A to this ordinance, the public hearing that was held related to this ordinance, and the findings of fact related to this interim official control that have been made in this ordinance, Ordinance No. 2020-11, Ordinance No. 2019-31, and in Ordinance No. 2019- 15. Page 5 of 6 Section 5. Severability. Should any section, paragraph, sentence, clause, or phrase of this ordinance, or its application to any person or circumstance, be declared unconstitutional or otherwise invalid for any reason, or should any portion of this ordinance be preempted by state or federal law or regulation, such decision or preemption shall not affect the validity of the remaining portions of this ordinance or its application to other persons or circumstances. Section 6. No Change to Basis for Declaration of Emergency or Effective Date; Extension of Duration. This ordinance shall take effect and be in force five days from and after its passage and publication as required by law. Provided, that this ordinance is not intended to change the basis of the emergency declaration stated in Ordinance No. 2019-15, which preceded this ordinance. Pursuant to Matson v. Clark County Board of Commissioners, 79 Wn. App. 641 (1995), non-exhaustive underlying facts necessary to support this emergency declaration were included in the “Whereas” clauses in Ordinance Nos. 2019-15 and those “Whereas” clauses are adopted as findings of fact. This ordinance amending the interim official control shall extend the duration of the interim official control for an additional six-month period, until May 14, 2021, unless terminated earlier by the City Council. This ordinance does not change the effective date of the interim official control, which is May 14, 2019. The Council may, at its sole discretion, renew the interim official control for one or more six-month periods in accordance with state law. This ordinance or a summary thereof consisting of the title shall be published in the official newspaper of the City. PASSED by the City Council this 27th day of October, 2020. APPROVED by the Mayor this this 27th day of October, 2020. _________________________________________ Leslie Schneider, Mayor ATTEST/AUTHENTICATE: FILED WITH THE CITY CLERK: October 9, 2020 PASSED BY THE CITY COUNCIL: October 27, 2020 PUBLISHED: October 30, 2020 EFFECTIVE DATE: November 4, 2020 ORDINANCE NUMBER: 2020-22 Attachment: Exhibit A Page 6 of 6 EXHIBIT A WORK PLAN FOR PERMANENT REGULATIONS GOVERNING THE DEPLOYMENT OF SMALL WIRELESS FACILITIES (October 27, 2020) The City has developed, and is proceeding based on, the work program described below to adopt permanent regulations to replace the interim official control adopted by Ordinance No. 2019-15. November 2020 through January 2021 • Initial consideration by the City Council, over one or more meetings, of the Planning Commission’s recommendations. • City Council provides direction to staff on whether to proceed with the Planning Commission’s recommendations. • Based on direction from Council, staff will revise draft Ordinance No. 2020-04 as needed. February/March 2021 • Consideration by the City Council of any revisions made to Ordinance No. 2020-04. • If significant changes were made to Ordinance No. 2020-04, the City Council may set a time for a second public hearing on Ordinance No. 2020-04 to receive additional public comment. April/May 2021 • If significant changes were made to Ordinance No. 2020-04, the City Council may hold a public hearing to receive additional public comment. • Consideration by the City Council of adoption of Ordinance No. 2020-04.