March 4, 2002 Council Meeting (3)
(x) provisions to ensure that the Grantee will comply with all applicable City,
state and federal laws, regulations, rules and policies;
...,
(xi) provisions to ensure adequate oversight by the City of the Grantee's use of
Streets and compliance with the Franchise or Revocable License;
(xii) provisions relating to an assignment or other transfer of the Franchise or
Revocable License or the Telecommunications System that results in a
change in Control;
(xiii) remedies available to the City to protect the City's interest in the event of
the Grantee's failure to comply with terms and conditions of the Franchise
or Revocable License;
(xiv) provisions to ensure that the Grantee will obtain all licenses and permits
necessary to provide Telecommunications Services by use of the City's
Streets from any governmental body having jurisdiction over the Grantee,
including, but not limited to, the Federal Communications Commission;
(xv) provisions to ensure that the Grantee will protect the property of the City
from damage or interruption of City operations resulting from the
construction, operation, maintenance, repair or removal of improvements of
the Telecommunications System, or from the provision of Facility Services;
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(xvi) provisions designed to minimize the extent to which the public use of the
Streets of the City are disrupted in connection with the construction of
improvements relating to the Telecommunications System, or the
provision of Facility Services; and
(xvii) such other provisions as the City reasonably determines are necessary or
appropriate to permit the City to manage its Streets or ensure compliance
with the Franchise or Revocable License, to the extent not prohibited by
law.
2.7.01 The City Clerk shall make available to an applicant a model Franchise or
Revocable License, as applicable, containing the terms and conditions the City seeks to impose
pursuant to Section 2.7.01. The City Council shall have the right to modify from time to time
such model Franchise or Revocable License, so long as such modifications are consistent with
this Ordinance and applicable law.
Section 2.8 Revocation of Revocable License
The Revocable License shall be revocable at any time by the City for cause or, if the
Revocable License is for the provision of Private Telecommunications Services or Facility
Services, for the City's convenience. The Revocable License, together with all Revocable
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Licenses granted to the applicant or Affiliated Persons, shall not authorize the occupation and
use of more than five hundred (500) linear feet of specifically identified Streets, unless the use or
occupation of the Streets does not involve the offering or provision of Telecommunications
Services by the Grantee, any Affiliated Persons or any other Persons to or from any Person or
..... location in the City, or unless the use or occupation of the Streets is for the provision of Facility
Services.
Article 3
GENERAL PROVISIONS
Section 3.1 Severability
If any section, subsection, sentence, clause, phrase or other portion of this Ordinance
is, for any reason, declared invalid, in whole or in part, by any court, agency, commission,
legislative body or other authority of competent jurisdiction, such portion shall be deemed a
separate, distinct and independent portion. Such declaration shall not affect the validity of the
remaining portions hereof, which other portions shall continue in full force and effect.
Section 3.2 Delegation
Consistent with applicable law, the City Council shall have the right to delegate and
redelegate, and to revoke any such delegation or redelegation, from time to time, any of its rights
or obligations under this Ordinance to any body, organization or official. Any such delegation,
redelegation or revocation, no matter how often made, shall not be deemed an amendment to this
....., Ordinance or to require the consent of any applicant for a Franchise or Revocable License or
Grantee. The City Council may also establish and appoint one or more advisory boards, with
such duration and such number of members as the City Council shall determine, to advise it on
such of the matters which are the subject of this Ordinance.
Section 3.3 Application to Existing Telecommunications Systems and Providers of
Telecommunications Services and Private Telecommunications Services.
This Ordinance shall not be retroactively applied to franchises for the operation of
Telecommunications Systems used to provide Telecommunications Services existing on the
effective date of this Ordinance, but shall apply to any renewal or extension of such franchises.
Section 3.4 Applicability of Other Ordinances.
All ordinances or parts of ordinances in conflict with the provisions of this Ordinance
are hereby repealed.
Section 3.5 Effective Date.
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This Ordinance shall become effective upon passage and approval by the City
Council.
~ APPROVED this 4th day of
~ ~)
MAYOR, City of Smyrna
March , 2002.
Attest:
~ LIAlLl/J1 D. S1~
~ Clerk
Approved as to Legal Form:
~---
'-"
Attorney, City of Smyrna
14
CITY OF SMYRNA
TELECOMMUNICATIONS FRANCHISE OR LICENSE APPLICATION
--
Submittal instructions: Applications for a franchise or revocable license may be
submitted to:
City of Smyrna
Attn: City Clerk
2800 King Street
P. O. Box 1226
Smyrna, GA 30081
Submit eight copies of the application and all supporting documentation in typed
form. Application responses must be completed using the letter and number
format as indicated on the application.
Each applicant for a franchise must furnish with submittal of the application an
application fee in the amount of Ten Thousand Dollars ($10,000.00) by certified
check or cashier's check made payable to the City of Smyrna. Each applicant for a
revocable license must furnish with submittal of the application an application fee
in the amount ofTen Thousand Dollars ($10,000.00) by certified check or
cashier's check made payable to the City of Smyrna.
'-'"
For further information or clarification regarding this process, please refer to the
accompanying document: Instructions To Franchise and License Applicants.
Responses to the following questions should be submitted in writing to the above
address:
1. Applicant's name, address, telephone number, and federal employer
identification number or social security number; copy of applicant's corporate
charter or partnership agreement as applicable; and any trade names (and
registrations) used by applicant;
2. For the purpose of determining who controls applicant, a detailed statement of
the corporation or business entity organization of the applicant, including the
following:
(a) the names and business addresses of all officers and directors
of the applicant;
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.....
(b) the names and business addresses of all Persons having Control
over the applicant;
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(c) financial information sufficient to demonstrate that the
applicant has the financial ability to construct and maintain the
Telecommunications System, or to provide Facility Services, in
a safe manner and in accordance with the City's management
policies, rules and regulations with respect to the Streets and to
the extent not prohibited by law; and
(d) for purposes of determining whether the applicant will
construct, maintain, operate, and repair the
Telecommunications System, or provide Facility Services, in
compliance with the City's management policies, rules and
regulations with respect to the Streets and in a manner
protective of the public health, safety and welfare with respect
to the applicant's use of the Streets, the names and addresses
for telecommunications systems owned or controlled by the
applicant and the areas served by such systems.
3. In order to permit the City to manage its Streets, a description of the proposed
plan of construction and maintenance of the Telecommunications System or
Facility Services to be constructed in the Streets, which shall include the
following:
(a) a map indicating the location of the System or Facility Services
in the Streets, and an estimated construction schedule, if
known; and
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(b) a statement describing the proposed and actual location of
facilities and equipment to be used in the Streets by the
applicant.
4. To the extent not prohibited by law, any other details, statements,
supplementary information, or references reasonably pertinent to the City's
management of the Streets or the compensation to be paid to the City, which shall
be required or requested by the City or by any other provision of law.
5. The signature and official title of the applicant and the date of the submittal of
the application.
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INSTRUCTIONS TO
TELECOMMUNICATIONS FRANCHISE AND LICENSE APPLICANTS
~
Submittal Instructions:
Applications for a franchise or revocable license may be submitted to:
City of Smyrna
Attn: City Clerk
2800 King Street
P. O. Box 1226
Smyrna, GA 30081
Eight copies of the application and all supporting documentation are to be submitted
in typed form. Application responses will be completed using the letter and number
format as indicated on the application.
At the time the application is submitted, each applicant for a franchise must furnish
an application fee in the amount of Ten Thousand Dollars ($10.000.00) by certified
check or cashier's check made payable to the City of Smyrna, and each applicant for
a revocable license must furnish an application fee in the amount of Ten Thousand
Dollars ($ 10.000.00) by certified check or cashier's check made payable to the City
of Smyrna.
'-'
For further information or clarification regarding this process, all questions should be
submitted in writing to the above address.
Responsibility of Applicants
It shall be the responsibility of each applicant for a franchise or revocable license to
comply with all applicable laws, ordinances, resolutions, rules regulations and other
directives of the City and any Federal, State or local government authority having
jurisdiction.
Public Availability of Applications
To the extent determined by the City Council, applications for Franchises and
Revocable Licenses, including any additions, modifications or amendments thereto,
shall be available for public inspection at a designated City office during normal
business hours.
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Evaluation Criteria
An applicant shall be granted a Franchise or Revocable License to operate a
Telecommunications System over which Telecommunications Services are provided,
provided the City Council reasonably determines that the applicant has agreed to or
meets the following factors:
~
A: The adequacy of proposed compensation to be paid to the City.
B. Demonstration of adequate financial and technical ability to construct
and maintain a Telecommunications System in the Streets, which such
demonstration may be made by an adequate bond, security fund, and/or such
other demonstration that is reasonably acceptable to the City, and a certificate of
public convenience or other authorization from the State or Federal
Communications Commission permitting the applicant to provide
Telecommunications Services in the City.
C: The ability of the applicant to maintain the property of the City in good
condition throughout the term of the franchise.
D: The willingness and the ability of the applicant to meet construction
requirements and to abide by all conditions, limitations and requirements with
respect to the franchise, any public, health, safety and welfare requirements
reasonably related to the applicant's use of the Streets, and the City's management
of Streets.
'-'
E: Any other factors or considerations reasonably deemed pertinent by the
City for managing the Streets and safeguarding the interests of the City and the
public in the Streets, and for ensuring the City receives fair and reasonable
compensation for use of the Streets, to the extent not prohibited by law.
In making any determination hereunder as to any application for a Revocable
License to provide Private Telecommunications Services or Facility Services, the
City Council may consider such factors as it deems appropriate and in the public
interest, including, without limitation, the foregoing factors to the extent
applicable.
Procedure for Consideration of and Action on Applications:
The City may make such investigations and take or authorize the taking of such
other steps as is deemed necessary or appropriate to consider and act on
application for franchise or revocable license. In evaluating the application, the
City may seek advice from other city officials or bodies, from such other advisory
bodies as it may establish or determine appropriate, or from the public, and may
request the preparation of one or more reports to be submitted to the City, which
may include recommendations with respect to such applications.
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After considering such information provided pursuant to the Telecommunications
Ordinance as it determines to be appropriate, the City Council shall may set one
or more public hearings for consideration of the application(s), fixing and setting
forth a day, hour and place at which such application(s) shall be heard, and
providing notice of such public hearing(s) in accordance with applicable law.
Notification of the hearing will be presented to the applicant company and
attendance by a representative of the company will be required at the hearing.
Copies of the application will be made available for public inspection prior to the
hearing.
The City may institute negotiations between City officials and the applicant on
the terms of the proposed Franchise or Revocable License.
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The City Council shall consider the application for a Franchise or Revocable
License to provide Telecommunications Services in accordance with applicable
law, including 47 U.S.c. ~ 253 as applicable to the provision of
Telecommunications Services, and shall grant the Franchise or Revocable
License, provided that the applicant has agreed to the terms and conditions on
which the Franchise or Revocable license is to be granted and meets the
evaluation criteria set forth above. Upon completion of the steps deemed
appropriate by the City Council, the City Council may grant the Revocable
License to provide Private Telecommunications Services or Facility Services, and
may specify the conditions under which the Revocable License is granted.
Alternatively, the City may reject any and all applications for a Revocable
License to provide Private Telecommunications Services or Facility Services.
The City also reserves the right to waive any or all requirements in order to grant
a Franchise or Revocable License to provide Telecommunications Services to an
applicant when it determines that the best interests of the City may be served
thereby or that such waiver is required by applicable law. The City also reserves
the right to waive any or all requirements for the grant of a Revocable License to
provide Private Telecommunications Services or Facility Services when it
determines that the best interests of the City may be served thereby or that such
waiver is required by applicable law.
Terms and Conditions of Franchise or Revocable License:
The terms and conditions applicable to any franchise or revocable license granted
pursuant to this application process shall be set forth in a separate ordinance granting
the franchise or in a separate written agreement. Such an ordinance or written
agreement, among other things, may address the following subjects, to the extent not
prohibited by law:
A: The term of the franchise or revocable license; provided, however, that
the initial term of the revocable license shall not exceed five years and shall not
have options to renew exceeding five years.
B: The franchise area or, if a revocable license, the streets that may be used.
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C: The compensation to be paid to the City.
\,
D: The circumstances upon which the franchise or revocable license may be
terminated or cancelled.
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E: The mechanisms, such as performance bonds, security funds, or letters of
credit, to be put in place to ensure the performance of the grantee's obligations under
the franchise or revocable license.
F: For the limited purpose of ensuring that the Grantee is complying with the
terms of the Franchise or Revocable License, including, but not limited to, any
compensation or Street management provisions, the City's right to inspect the
facilities and records of the grantee.
G: The insurance and indemnification requirements applicable to the
grantee.
H: The obligation of the grantee to maintain complete and accurate books of
account and records with respect to its obligations under the Franchise or
Revocable License, including, but not limited to, any compensation or Street
management provisions, and the City's inspection rights with respect thereto.
I: Provisions to ensure quality workmanship and construction methods in the
Streets.
J: Provisions to ensure that the grantee will comply with all applicable City,
state and federal laws, regulations, rules and policies.
..,.,
K: Provisions to ensure adequate oversight by the City of the Grantee's use
of Streets and compliance with the Franchise or Revocable License.
L: Provisions relating to an assignment or other transfer of the Franchise or
Revocable License or the Telecommunications System that results in a change in
Control.
M: Remedies available to the City to protect the City's interest in the event
of the grantee's failure to comply with the terms and conditions of the franchise or
revocable license.
N: Provisions to ensure that the Grantee will obtain all licenses and
permits necessary to provide Telecommunications Services by use of the City's
Streets from any governmental body having jurisdiction over the Grantee,
including, but not limited to, the Federal Communications Commission.
0: Provisions to ensure that the grantee will protect the property of the City
from damage or interruption of City operations resulting from the construction,
21
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operation, maintenance, repair or removal of improvements of the
Telecommunications System or from the provision of Facility Services.
P: Provisions designed to minimize the extent to which the public use of the
streets of the City are disrupted in connection with the construction of improvements
relating to Telecommunications System or to the Facility Services; and,
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Q: Such other provisions as the City reasonably determines are necessary
or appropriate to permit the City to manage its Streets or ensure compliance with
the Franchise or Revocable License, to the extent not prohibited by law.
,..,
...
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Council may also establish and appoint one or more advisory boards, with such duration and
such number of members as the City Council shall determine, to advise it on such of the matters
which are the subject of this Ordinance.
,
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.....,
,
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Section 3.3 Retroactivity
This Ordinance shall not be retroactively applied to franchises for Cable Services
existing on the effective date of this Ordinance, but shall apply to any renewal or extension of
such Franchises.
Section 3.4 Applicability of Other Ordinances
All ordinances or parts of ordinances in conflict with the provisions of this Ordinance
are hereby repealed.
Section 3.5 Effective Date
This Ordinance shall become effective upon passage and approval by the City Council.
:A~PPROVED this
~~;:?
MAYOR, City of Smyrna, Georgi~
4th
day of
March
,2002
Attest:
9l~v .~
City Clerk
Approved as to Legal Form:
~C. .fS ill.
Attorney, Ity 0 myrna, eorgla
..
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CITY OF SMYRNA
CABLE AND OPEN VIDEO SYSTEM FRANCHISE APPLICATION
Submittal instructions:
Applications for a franchise may be submitted to:
ATTN: City Clerk
City of Smyrna
2800 King Street
P. O. Box 1226
Smyrna, GA 30081
Submit eight copies of the application and all supporting documentation in typed
form. Application responses must be completed using the letter and number
format as indicated on the application.
Each applicant must furnish with submittal of the application a non-refundable
application fee in the amount of Ten Thousand Dollars ($10,000) by certified
check or cashier's check made payable to the City of Smyrna.
~
For further information or clarification regarding this process, please refer to the
accompanying document: Instructions To Franchise Applicants. Responses to the
following questions should be submitted in writing to the above address:
1. Applicant's name, address, telephone number, and federal employer
identification number or social security number; copy of applicant's corporate
charter or partnership agreement as applicable; and any trade names (and
registrations) used by applicant;
2. A detailed statement of the corporation or business entity organization of the
applicant, including but not limited to the following, and to whatever extent
required by the City:
(a) the names and the residence and business addresses of all
officers and directors of the applicant;
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(b) the names, residence, and business addresses of all persons
and entities having any share of the ownership of the applicant and the respective
ownership share of each person or entity;
-.,
(c) the names and address of any parent or subsidiary of the
applicant, namely, any other business entity owning or controlling applicant in
whole or in part or owned or controlled in whole or in part by the applicant, and a
statement describing the nature of any such parent or subsidiary business entity,
including but not limited to cable systems and open video systems owned or
controlled by the applicant, its parent, and subsidiary, and the areas served
thereby;
(d) a detailed and complete financial statement of the applicant,
certified by an independent certified public accountant, for the fiscal year
immediately preceding the date of the application hereunder, or a letter or other
acceptable evidence in writing from a recognized lending institution or funding
source, addressed to both the applicant and the City Council, setting forth the
basis for a study performed by such lending institution or funding source, and a
clear statement of its intent as a lending institution or funding source to provide
whatever capital shall be required by the applicant to construct and operate the
proposed system in the City, or a statement from an independent certified public
accountant certifying that the applicant has available sufficient free, net, and
uncommitted cash resources to construct and operate the proposed system in the
City;
...
(e) a detailed financial plan (pro forma) describing for each
year of the franchise, projected number of subscribers, rates, all revenues,
operating expenses, capital expenditures, depreciation schedules, income
statements, and a sources and uses of funds statement; and
(f) a statement identifying, by place and date, any other cable
system and open video system franchisees) or authorization(s) awarded to the
applicant, its parent or subsidiary; the status of said franchisees) or
authorization(s) with respect to completion thereof; the total cost of completion of
such franchised or authorized cable system(s) or open video system(s); and the
amount of applicant's and its parent's or subsidiary's resources committed to the
completion thereof;
3. A detailed description of the proposed plan of operation of the applicant which
shall include, but not be limited to, the following:
(a) a description of the cable services proposed to be provided;
(b) a detailed map indicating all areas proposed to be served,
and a proposed time schedule for the installation of all equipment necessary to
become operational throughout the entire area to be serviced;
"
......,
--.,
(c) a statement or schedule setting forth all proposed
classifications or rates and charges to be made against subscribers and all rates
and charges as to each of said classifications, including installation charges, cable
service charges, and any other service charges;
,.
(d) a detailed, informative, and referenced statement describing
the actual equipment and operational standards proposed by the applicant;
( e) a copy of the form of any agreement, undertaking, or other
instrument proposed to be entered into between the applicant and any subscriber
to cable services; and
(f) a detailed statement setting forth in its entirety any and all
agreements and undertakings, whether formal or informal, written, oral, or
implied, existing or proposed to exist between the applicant and any person, firm,
or corporation which materially relate or pertain to or depend upon the application
and the granting of the franchise;
4. A copy of any agreement covering the franchise area, if existing between the
applicant and any utility providing for the use of any facilities of the utility,
including but not limited to, poles, lines, or conduits; and
.-.,
5. Any other details, statements, supplementary information, or references
pertinent to the subject matter of such application which shall be required or
requested by the City, or by any other provision of law.
6. The signature and official title of the applicant and the date of the submittal of
the application.
,
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..
INSTRUCTIONS TO
CABLE AND OPEN VIDEO SYSTEM FRANCHISE APPLICANTS
'-'
Submittal Instructions:
Applications for a franchise may be submitted to:
ATTN: City Clerk
City of Smyrna
2800 King Street
P. O. Box 1226
Smyrna, GA 30081
Eight copies of the application and all supporting documentation are to be submitted
in typed form. Application responses will be completed using the letter and number
format as indicated on the application.
At the time the application is submitted, each applicant must furnish a non-
refundable application fee in the amount of Ten thousand Dollars ($10,000) by
certified check or cashier's check made payable to the City of Smyrna.
,...,
For further information or clarification regarding this process, all questions should
be submitted in writing to the above address.
Responsibility of Applicants
It shall be the responsibility of each applicant for a franchise to comply with all
applicable laws, ordinances, resolutions, rules regulations and other directives of the
City and any Federal, State or local government authority having jurisdiction.
Public Availability of Applications
To the extent determined by the City Council, applications for Franchises, including
any additions, modifications or amendments thereto, shall be available for public
inspection at a designated City office during normal business hours.
Evaluation Criteria
In making a determination as to any application for a franchise, the City may
consider such factors as it deems appropriate and in the public interest, including,
without limitation:
,
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'"
A: The adequacy of proposed compensation to be paid to the City, including
the value of any facilities and services offered by the applicant to the City.
~
B: The legal, financial, technical and other appropriate qualifications of the
applicant.
C: The ability of the applicant to maintain the property of the City in good
condition throughout the term of the franchise.
D: The value and efficiency to the City and its residents of cable services to
be provided, including the type and diversity of cable services to be provided, as
well as alternatives to those services and services that may be precluded by the grant
of this franchise.
E: The willingness and the ability of the applicant to meet construction and
physical requirements and to abide by all purpose and policy conditions, limitations
and requirements with respect to the franchise.
F: Any other public interest factors or considerations deemed pertinent to
the City for safeguarding the interest of the City and the public.
Procedure for Consideration of and Action on Applications:
~
The City may make such investigations and take or authorize the taking of such
steps as is deemed necessary or appropriate to consider and act on the application
for franchise. The applicant may be required to furnish additional information and
data for this purpose. In evaluating the application, the City may seek advice from
other city officials or bodies, from such other advisory bodies as it may establish or
determine appropriate, or from the public, and may request the preparation of one or
more reports to be submitted to the City which may include recommendations with
respect to such applications.
If the City, after considering such information as it determines to be appropriate,
elects to further consider any application(s), the City Council may set one or more
public hearings for consideration of the applications. Copies of the application will
be made available for public inspection prior to the hearing. A public hearing
announcement will set forth a day, hour and place when and where any persons
having interest in the franchisees) under consideration or objections thereto may file
written comments and appear before the City and be heard. Notification of the
hearing will be presented to the applicant company and attendance by a
representative of the company will be required at the hearing.
The City may institute negotiations between City officials and the applicant
company to determine whether or not and under what terms and conditions a
franchise may be granted.
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Upon completion of the steps outlined, the City Council will decide whether or not
to grant a franchise, and will specify the conditions under which the franchise is
granted. Alternatively, the City may reject any and all applications from whatever
source and whenever received except that a franchising authority may not grant an
exclusive franchise and may not unreasonably refuse to award an additional
competitive franchise. The City also reserves the right to waive any and all
requirements when it determines that the best interests of the City may be served
thereby and may, if it so desires, request new or additional proposals.
..
An unsuccessful applicant for a cable franchise shall have the right to appeal the
decision of the franchising authority pursuant to
federal cable regulations (Section 635 Federal Cable Act).
Terms and Conditions of Franchise:
The terms and conditions applicable to any franchise granted pursuant to this
application process shall be set forth in a separate ordinance granting the franchise.
Such agreement shall address the following subjects:
A: The term of the franchise.
B: The franchise area and the cable services which are the subject of the
franchise.
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C: The compensation to be paid to the City, which may include the payment
of fees or the provision of facilities or services, or both.
D: The circumstances upon which the franchise may be terminated or
cancelled.
E: The mechanisms, such as performance bonds, security funds, or letters of
credit, to be put in place to ensure the performance of the grantee's obligations under
the franchise.
F: The City's right to inspect the facilities and records of the grantee.
G: The insurance and indemnification requirements applicable to the
grantee.
H: The obligation of the grantee to maintain complete and accurate books of
account and records, and the City's inspection rights with respect thereto.
I: Provisions to ensure quality workmanship and construction methods.
,
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J: Provisions to ensure that the grantee will comply with all applicable City,
state and federal laws, regulations, rules and policies, including without limitation,
those related to employment, purchasing and investigations.
~
K: Provisions to ensure adequate oversight and regulation of the grantee by
the City.
L: Provisions to restrict the assignment or other transfer of the franchise
without the prior written consent of the City.
M: Remedies available to the City to protect the City's interest in the event
of the grantee's failure to comply with the terms and conditions of the franchise.
N: Provisions to ensure that the grantee will obtain all necessary licenses
and permits from, and comply with, all laws, regulations, rules and policies of any
governmental body having jurisdiction over the grantee, including, but not limited
to, the Federal Communications Commission.
0: Provisions to ensure that the grantee will protect the property of the City
and the delivery of public services from damage or interruption of operations
resulting from the construction, operation, maintenance, repair or removal of
improvements related to the franchise.
...,.
P: Provisions designed to minimize the extent to which the public use of the
streets of the City are disrupted in connection with the construction of
improvements relating to the franchise; and,
Q: Such other provisions as the City determines are necessary or appropriate
in furtherance of the public interest.
j/
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TELECOMMUNICA TIONS-ONL Y ORDINANCE
-
ORDINANCE NUMBER 020304B
AN ORDINANCE BY THE CITY COUNCIL
OF THE CITY OF SMYRNA
TO PROVIDE FOR THE GRANTING
OF ONE OR MORE NONEXCLUSIVE FRANCHISES AND REVOCABLE LICENSES
FOR TELECOMMUNICATIONS SYSTEMS WITHIN
THE MUNICIPAL BOUNDARIES OF THE
CITY OF SMYRNA AND TO PROVIDE FOR THE
PROCESS UNDER WHICH SAID GRANTING OF
FRANCHISES AND REVOCABLE LICENSES SHALL TAKE PLACE
THE COUNCIL OF THE CITY OF SMYRNA
HEREBY ORDAINS THAT:
WHEREAS, the Mayor and City Council have determined that it is in the best
interests of and consistent with the convenience and necessity of the City to grant Franchises or
Revocable Licenses (as hereinafter defined) to companies desiring to construct, operate or
maintain Telecommunications Systems over which Telecommunications Services or Private
-., Telecommunications Services (as hereinafter defined) are provided, or to companies desiring to
provide Facility Services (as hereinafter defined), within the territorial boundaries of the City
and on the terms and conditions herein, and as may be further described in each franchise or
license agreement; and
WHEREAS, the City has the authority to regulate the occupation and use of the
Streets (as hereinafter defined) to the maximum extent permitted under applicable law,
including, but not limited to, Section 253 of the Telecommunications Act of 1996, 47 U.S.c. ~
253 ("1996 Act"); and
WHEREAS, in an effort to comply with applicable law, including the 1996 Act, the
City has determined that a Person (as hereinafter defined) must obtain separate Franchises to
provide Cable Services and Telecommunications Services; and
WHEREAS, the City desires to structure and implement a fair and orderly process for
the grant of Franchises and Revocable Licenses (and renewals of such Franchises or Revocable
Licenses) to occupy and use the Streets to provide Telecommunications Services, Private
Telecommunications Services, or Facility Services in the City, including the negotiation of
franchise and license provisions to protect the public interest, to the maximum extent permitted
by applicable law, including the 1996 Act; and
~
WHEREAS, the City intends to exercise, to the fullest extent permitted by applicable
law, including the 1996 Act, its authority with respect to the regulation of the occupation and use
of the Streets in connection with the provision of Telecommunications Services, Private
__ Telecommunications Services, and Facility Services; and
WHEREAS, Section 253 prohibits a local government from imposing a requirement
that "may prohibit or have the effect of prohibiting the ability of any entity to provide interstate
or intrastate telecommunications service"; and
WHEREAS, "telecommunications service" as defined by 47 V.S.C. S 153(46) of the
Communications Act of 1934 means "the offering of telecommunications for a fee directly to the
public, or to such classes of users as to be effectively available directly to the public, regardless
of the facilities used"; and
WHEREAS, Private Telecommunications Service as defined in this Ordinance does
not include the provision of "telecommunications service" as defined by federal law, and, thus,
Persons providing Private Telecommunications Services are not entitled to the protections of
Section 253 of the Communications Act; and
WHEREAS, Facility Service as defined in this Ordinance does not include the
provision of "telecommunications service" as defined by federal law, and, thus, Persons
providing Facility Services are not entitled to the protections of Section 253 of the
Communications Act;
NOW, THEREFORE BE IT RESOLVED THAT:
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SECTION I
The Code of Ordinances of the City of Smyrna is hereby amended by creating a new
Chapter 95, Articles 1-3, entitled "Telecommunications Services Franchises and Licenses," and
shall hereafter read as follows:
Article 1
DEFINITIONS
Section 1.1 Definitions
For purposes of this Ordinance, the following terms, phrases, words and their
derivations shall have the meanings set forth in this Section, unless the context clearly indicates
that another meaning is intended. When not inconsistent with the context, words used in the
present tense include the future, words used in the plural number include the singular number
and words used in the singular number include the plural number.
2
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1.1.01 "Affiliated Person" means each Person who falls into one or more of the
following categories: (1) each Person having, directly or indirectly, a
Controlling Interest in the applicant; (2) each Person in which the applicant
has, directly or indirectly, a Controlling Interest; (3) each officer, director, joint
venturer or joint venture partner, of the applicant; and (4) each Person, directly
or indirectly, controlling, controlled by, or under common Control with, the
applicant; provided that "Affiliated Person" shall in no event mean the City or
any creditor of the applicant solely by virtue of its status as a creditor and
which is not otherwise an Affiliated Person by reason of owning a Controlling
Interest in, being owned by, or being under common ownership, common
management or common Control with, the applicant.
1.1.02 "Cable Services" means "cable services" as defined in the Communications Act
of 1934, as amended by the Cable Communications Policy Act of 1984, the
Cable Television Consumer Protection and Competition Act of 1992, the
Telecommunications Act of 1996, and as may be further amended from time to
time (the "Cable Act"), but does not include Telecommunications Services or
Private Telecommunications Services. In the event that "cable services" is no
longer defined in the Cable Act or the definition in the Cable Act otherwise
becomes inapplicable, "Cable Services" shall mean "cable services" as defined
in the Cable Act immediately prior to such term no longer being defined in the
Cable Act or such definition otherwise becoming inapplicable.
1.1.03 "Cable System" means any "Cable System" as defined in the Cable Act.
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1.1.04 "City" means the City of Smyrna.
1.1.05 "City Council" means the City Council ofthe City and its designee or any
successor thereto.
1.1.06 "Control" or "Controlling Interest" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a person, including, but not limited to, a person's compliance with
a Franchise or Revocable License, whether through the ownership of voting
securities, by contract, or otherwise, and the beneficial ownership of shares
representing 10 percent or more of the votes entitled to be cast by a
corporation's voting shares shall create a rebuttable presumption of control.
1.1.07 "Facility Services" means the installation, construction, operation or
maintenance of conduit or related facilities in the Streets by a Person for sale
or lease to third parties, other than Affiliated Persons, that use such conduit or
related facilities for the transmission of Telecommunication Services, but such
Person does not itself provide Telecommunications Service or Cable Service
to such third parties or any locations or other Persons in the license area.
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1.1.08 "Franchise" means an initial authorization, or renewal thereof, issued by the
City in accordance with the provisions of this Ordinance, which authorizes the
occupation and use of the Streets by a Telecommunications System to provide
Telecommunications Services.
1.1.09 "Grantee" means the legal entity to which is granted the right, authority and
responsibility to provide Facility Services along licensed routes pursuant to a
license, or to construct, install, operate and maintain a Telecommunications
System as necessary to: (a) furnish, supply and distribute
Telecommunications Services to any locations or Persons in the franchise or
license area; (b) provide Private Telecommunications Services along licensed
routes pursuant to a license; or (c) transport Telecommunications Services
across the City along licensed routes pursuant to a license without terminating
or originating any Telecommunications Services at or from any Person or
location in the City.
1.1.10 "may" is permissive.
1.1.11 "Ordinance" means this Ordinance and all modifications and amendments
thereto.
1.1.12 "Person" means any individual or any association, firm, partnership, joint
venture, corporation or other legally recognized entity, whether for profit or
not for profit, but shall not mean the City.
~
1.1.13 "Private Telecommunications Services" means the transmission of
Telecommunications by a Person, regardless of the facilities used, for or in
connection with the internal operations of such Person's business, residence
or employment and not for or in connection with the provision or offering of
Telecommunications Services for sale or resale to any Person, and shall not
mean Cable Services.
1.1.14 "Revocable License" means an initial authorization or renewal thereof, issued
by the City in accordance with the provisions of this Ordinance, which
authorizes the occupation and use of specifically identified Streets, provided
that a Revocable License shall be issued only in the limited circumstances set
forth in Section 2.1.02 of this Ordinance.
1.1.15 "shall" is mandatory, not merely directive.
1.1.16 "Streets" means the surface of, as well as the spaces above and below, any and
all streets, alleyways, avenues, highways, boulevards, driveways, bridges,
tunnels, parks, parkways, public grounds or waters, and other public
rights-of-way within or belonging to the City.
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1.1.17. "Telecommunications" means "telecommunications" as defined by 47 U.S.c.
~ 153(43) of the Communications Act of 1934, as amended by the
Telecommunications Act of 1996, but shall not include Cable Services.
--.,
1.1.18 "Telecommunications Service" means "telecommunications service" as
defined by 47 V.S.C. ~ 153(46) of the Communications Act of 1934, as
amended by the Telecommunications Act of 1996, but shall not include Cable
Services. In the event that "telecommunications service" is no longer defined
in the Communications Act or the definition in the Communications Act
otherwise becomes inapplicable, "Telecommunications Service" shall mean
"telecommunications service" as defined in the Communications Act
immediately prior to such term no longer being defined in the
Communications Act or such definition otherwise becoming inapplicable.
1.1.19 "Telecommunications System" means the system, plant, equipment or property
within the Streets in the franchise or license area over which
Telecommunications Service or Private Telecommunications Service is
provided, and to be constructed, operated and maintained by a Grantee
pursuant to a franchise or license ordinance or agreement.
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Article 2
GRANTING AUTHORITY AND
FRANCHISING PROCEDURE
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Section 2.1 Granting Authority
2.1.01 No Person shall use or occupy the Streets to construct, operate or maintain a
Telecommunications System over which Telecommunications Services or Private
Telecommunications Services are provided, or use or occupy the Streets to provide Facility
Services, without a Franchise or Revocable License granted in accordance with the provisions of
this Ordinance. The City intends to exercise its authority to franchise or license Persons
pursuant to this Ordinance to the maximum extent permitted by applicable law, including the
1996 Act.
2.1.02 A Person shall not use or occupy the Streets to operate a Telecommunications
System over which Telecommunications Services or Private Telecommunications Services are
provided without a Franchise, except that such Person may use or occupy specific Streets
without a Franchise if the Person obtains a Revocable License in accordance with the terms of
this Ordinance. A Revocable License is intended to be a limited grant of authority to use and
occupy specifically identified Streets and: (a) may be granted only if the use or occupation of
such Streets is for the sole purpose of providing Private Telecommunications Services or Facility
Services; or (b) shall be granted to provide Telecommunications Services only if the use or
occupation of such Streets, together with the use or occupation of any Streets pursuant to
Revocable Licenses previously granted to such Person and Affiliated Persons, shall not exceed
W five hundred (500) linear feet; or (c) shall be granted only if the use or occupation of such Streets
is by a Telecommunications System that is not used by the Grantee or any other Person to sell,
resell or otherwise provide Telecommunications Services to any Person in the City. In the event
an application for a Revocable License would cause a Person to exceed or fail to comply with
the limits specified in this Section 2.1.02, then such Person must apply for a Franchise in
accordance with the provisions of this Ordinance, and the use of specifically identified Streets
pursuant to all previously granted Revocable Licenses shall thereafter be pursuant to and in
accordance with any such Franchise that may be granted.
2.1.03 The City Council may grant one or more Franchises or Revocable Licenses in
accordance with this Ordinance, provided that the City Council reserves the right to modify any
provision of this Ordinance by amendment hereof.
2.1.04 The grant of any Franchise or Revocable License shall be made by adoption of
a separate ordinance by the City Council and shall be on such terms and conditions as may be
specified in said separate ordinance and/or a franchise or license agreement between the City and
the Grantee.
6
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2.1.05 Any Franchise or Revocable License granted shall be nonexclusive. The City
specifically reserves the right to grant, at any time, such additional Franchises or Revocable
Licenses as it deems appropriate, and/or itself engage in the provision of Telecommunications
Services, Private Telecommunications Services or Facility Services.
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2.1.06 A Franchise may be granted for all or any defined portion of the City. A
Revocable License may only be granted for use of specifically identified Streets.
2.1.07 The grant of Franchises and Revocable Licenses by the City to Persons
constructing, operating or maintaining a Telecommunications System shall be subject to the
provisions of applicable law, such as the provisions in the 1996 Act, as amended, governing
telecommunications franchises and renewals thereof.
Section 2.2 Franchise Applications
2.2.01 Applications for Franchises and Revocable Licenses shall be submitted in such
form and be issued on such terms and conditions as the City Council may determine, subject to
applicable law.
2.2.02 Any Application for a Franchise or Revocable License shall contain and/or
require the following information with respect to the proposed Franchise or Revocable License:
(i) applicant's name, address, telephone number, and federal employer identification
number or social security number; copy of applicant's corporate charter or
partnership agreement as applicable; and any trade names (and registrations) used
by applicant;
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(ii) for the purpose of determining who Controls applicant, a detailed statement of the
corporation or business entity organization of the applicant, including the
following:
(a) the names and business addresses of all officers and directors of the applicant;
(b) the names and business addresses of all Persons having Control over the
applicant;
(c) financial information sufficient to demonstrate that the applicant has the
financial ability to construct and maintain the Telecommunications System, or
to provide Facility Services, in a safe manner and in accordance with the
City's management policies, rules and regulations with respect to the Streets
and to the extent not prohibited by law; and
(d) for purposes of determining whether the applicant will construct, maintain,
operate, and repair the Telecommunications System, or provide Facility
Services, in compliance with the City's management policies, rules and
7
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regulations with respect to the Streets and in a manner protective of the
public health, safety and welfare with respect to the applicant's use of the
Streets, the names and addresses for telecommunications systems owned or
controlled by the applicant and the areas served by such systems.
~
(iii) in order to permit the City to manage its Streets, a description of the proposed
plan of construction and maintenance of the Telecommunications System or
Facility Services to be constructed in the Streets, which shall include the
following:
(a) a map indicating the location of the System or Facility Services in the
Streets, and an estimated construction schedule, if known; and
(b) a statement describing the proposed and actual location of facilities and
equipment to be used in the Streets by the applicant;
(iv) to the extent not prohibited by law, any other details, statements, supplementary
information, or references reasonably pertinent to the City's management of the
Streets or the compensation to be paid to the City, which shall be required or
requested by the Councilor by any other provision of law.
Section 2.2.04 Non-refundable Application Fees for New Franchises and Revocable Licenses
No application for a new Franchise or Revocable License shall be considered without
payment by the applicant of application fees as provided in this Section. If a Franchise or
Revocable License is granted, application fees will not be deemed a credit towards any other fees
~ or sums due by the Grantee. If an application is denied, the application fee will not be refunded,
except if required by law.
(a) Purpose of Application Fees. The application fees provided by this section
will serve to cover the direct and indirect costs incurred by the City in
processing the application, evaluating the applicant, and granting a
franchise, and shall include, but not be limited to, administrative,
engineering, publication, legal, and consultant's expenses.
(b) Application Fee. The applicant will be expected to pay the reasonable
costs of the City in evaluating the application. Notwithstanding any other
requirement of this ordinance, each applicant for a Franchise must furnish
with its proposal a nonrefundable application fee in the amount of Ten
Thousand Dollars ($10.000.00) by certified check or cashier's check made
payable to the City of Smyrna, and each applicant for a Revocable License
must furnish with its proposal a nonrefundable application fee in the
amount of Ten Thousand Dollars ($10.000.00) by certified check or
cashier's check made payable to the City of Smyrna. In the event the
City's reasonable costs exceed such amount, the applicant may be required
8
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....,
by the City to pay any additional amount to cover such costs. In the event
the City's reasonable costs are less than the application amount, the City
shall reimburse to the applicant the amount in excess of the City's actual
cost if required by applicable law.
Section 2.3 Responsibilities of Applicants
It shall be the responsibility of each applicant for a Franchise or Revocable License to
comply with all applicable laws, ordinances, resolutions, rules, regulations and other directives
of the City and any federal, state or local governmental authority having jurisdiction.
Section 2.4 Public Availability of Applications
To the extent determined by the City Council, applications for Franchises or
Revocable Licenses, including any additions, modifications or amendments thereto, shall be
available for public inspection at a designated City office during normal business hours.
Section 2.5 Evaluation Criteria
An applicant shall be granted a Franchise or Revocable License to construct, operate
or maintain a Telecommunications System over which Telecommunications Services are
provided, provided the City Council reasonably determines that the applicant has agreed to or
meets the following factors:
(i) the adequacy of the proposed compensation to be paid to the City;
~
(ii) demonstration of adequate financial and technical ability to construct and
maintain a Telecommunications System in the Streets, which such
demonstration may be made by an adequate bond, security fund, and/or
such other demonstration that is reasonably acceptable to the City, and a
certificate of public convenience or other authorization from the State or
Federal Communications Commission permitting the applicant to provide
Telecommunications Services in the City;
(iii) the ability of the applicant to maintain the property of the City in good
condition throughout the term of the Franchise;
(iv) the willingness and the ability of the applicant to meet construction
requirements and to abide by all conditions, limitations and requirements
with respect to the Franchise (including any terms or conditions imposed
pursuant to Section 2.7 of this Ordinance), any public, health, safety and
welfare requirements reasonably related to the applicant's use of the Streets,
and the City's management of Streets; and
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(v) to the extent not prohibited by law, any other factors or considerations
reasonably deemed pertinent by the City for managing the Streets and
safeguarding the interests of the City and the public in the Streets, and for
ensuring the City receives fair and reasonable compensation for use of the
Streets.
In making any determination hereunder as to any application for a Revocable License to provide
Private Telecommunications Services or Facility Services and in accordance with applicable law,
other than Section 253 of the Communications Act which is not applicable to Persons providing
only Private Telecommunications Services or Facility Services, the City Council may consider
such factors as it deems appropriate and in the public interest, including, without limitation, the
foregoing factors to the extent applicable.
Section 2.6 Procedure for Consideration of and Action on Applications
2.6.01 The City may make such investigations and take or authorize the taking of
such other steps as the City Council deems necessary or appropriate to consider and act on
applications for Franchises or Revocable Licenses. In considering applications, the City Council
may seek advice from other city officials or bodies, from such other advisory bodies as it may
establish or determine appropriate, or from the public, and may request the preparation of one or
more reports to be submitted to the City Council, which may include recommendations with
respect to such applications.
~
2.6.02 After considering such information provided pursuant to this Ordinance as it
determines to be appropriate, the City Council shall set one or more public hearings for
consideration of the application(s), fixing and setting forth a day, hour and place certain at which
such application(s) shall be heard, and providing notice of such public hearing in accordance
with applicable law.
2.6.03 The City Council may authorize negotiations between City officials and
applicants on the terms of the proposed Franchise or Revocable License.
2.6.04 The City Council shall consider the application for a Franchise or Revocable
License to provide Telecommunications Services in accordance with this Ordinance and
applicable law, including 47 U.S.c. ~ 253, and shall grant the Franchise or Revocable License,
provided that the applicant has agreed to the terms on which the Franchise or Revocable License
is to be granted and meets the evaluation criteria set forth in Section 2.5 of this Ordinance. The
City also reserves the right to waive any or all requirements in order to grant a Franchise or
Revocable License to an applicant when it determines that the best interests of the City may be
served thereby or that such waiver is required by applicable law.
2.6.05 Upon completion of the steps deemed appropriate by the City Council, the City
Council may grant the Revocable License to provide Private Telecommunications Services or
Facility Services, and may specify the conditions under which the Revocable License is granted.
Alternatively, the City may reject any and all applications for a Revocable License to provide
10
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Private Telecommunications Services or Facility Services. The City also reserves the right to
waive any or all requirements when it determines that the best interests of the City may be
served thereby.
-., Section 2.7 Terms and Conditions of Franchise and Revocable License
2.7.01 The terms and conditions applicable to any Franchise or Revocable License
granted pursuant to this Ordinance shall be set forth in the separate ordinance granting the
Franchise or Revocable License or in a separate written agreement. Such separate ordinance or
written agreement, among other things, may address the following subjects, to the extent not
prohibited by law:
(i) the term of the Franchise or Revocable License, provided, however, that the
initial tern of the Revocable License shall not exceed five years and shall
not be renewed for terms exceeding five years;
(ii) the franchise area authorized by the Franchise, or the Streets that may be
used pursuant to the Revocable License;
(iii) the compensation to be paid to the City;
(iv) the circumstances upon which the Franchise or Revocable License may be
terminated or cancelled;
~
(v) the mechanisms, such as performance bonds, security funds or letters of
credit, to be put in place to ensure the performance of the Grantee's
obligations under the Franchise or Revocable License;
(vi) for the limited purpose of ensuring that the Grantee is complying with the
terms of the Franchise or Revocable License, including, but not limited to,
any compensation or Street management provisions, the City's right to
inspect the facilities and records of the Grantee;
(vii) insurance and indemnification requirements applicable to the Grantee;
(viii) the obligation of the Grantee to maintain complete and accurate books of
account and records with respect to its obligations under the Franchise or
Revocable License, including, but not limited to, any compensation or
Street management provisions, and the City's inspection rights with
respect thereto;
(ix) provisions to ensure quality workmanship and construction methods in the
Streets;
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March 4. 2002
The regular scheduled meeting- of Mayor and Council was held at Smyrna City Hall. The
meeting was called to order by presiding officer Mayor A. Max Bacon at 7:30 o'clock p.m.
All council members were present. Also present were City Administrator Chris Corey, Deputy
City Clerk Lee MilJer, City Attorney Scott Cochran, Community Development Director Chris
Miller and representatives of the press.
Invocation was given by Pastor Steven Kimmel of First Baptist Church of Smyrna, followed by
the pledge to the flag.
-
CITIZENS INPUT/SPECIAL REQQQNJIJQN~
School Board Member Curt Johnston announced his campaign for re-election and introduced
faculty members and students from Brown Elementary School who did a presentation of the
month's character words, which included poetry reading and a song.
Mr. Bill Lnenicka and COL Ron Davis, U.S. Army, retired, presented the Mayor and Council
Members with specially marked shovels commemorating the Veterans' Memorial. Mr.
Lnenicka stated the construction should be complete by September 19 at the latest. Mr.
Lnenicka reported that Barnes and Nohle had compiled a list of 2,610 hooks pertaining to the
political and military history of the twentieth century and that there are plans to acquire these
books and present them to the Smyrna Lihrary. Mayor Bacon advised that the old oak tree near
the Memorial was struck by lightning and will have to he removed.
PUBLIC HEARINGS:
(A) Approval of Resolution Authorizing Submittal of the Short Term Work Program (STWP)
to the State
Mr. Corey advised the State requires local governments to prepare and suhmit an update to the
adopted STWP every five years and that this update is required to include a new STWP
covering the subsequent five-year period and a report of plan accomplishments (ROA). Mr.
_ Corey stated the ROA is required to identify the current status of each activity in the previous
STWP and that a resolution is needed to formally submit the STWP to the State for review.
Council Member Newcomb stated that the Department of Community Affairs has implemented
reporting programs to differentiate those cities who actually provide services so that they get
the appropriate recognition. Mr. Chris Miller reported that the STWP is a "measuring stick" to
evaluate accomplishments on an annual hasis.
Mayor Bacon stated this is a public hearing and asked for comment. There was none.
Council Member Newcomb made a motion to approve the Resolution authorizing submittal of
the STWP to the State and the motion was seconded by Council Member Pritchett. The motion
was passed 7 - O.
(B) Rezoning Request - .959 Acre Tract from R-15 (Single Family Residential) and 01
(Office- Institutional) to RAD Conditional - Hatcher Homes, Inc. (HHl)- Roswell
Street Commons/Roswell Street
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Mr. Corey stated HHI is proposing to rezone a .959 acre tract from R-15 and OJ to RAD
Conditional and that, if approved, the subject parcel would be incorporated into the previously
approved Roswell Street Commons (RSC) subdivision via a zoning amendment. Mr. Corey
reported that the suhject parcel is located on the south side of Roswell Street and includes two
existing buildings and that, if approved, the four proposed residences would result in a net
density of 4.17 units per acre. Mr. Corey continued that, when added to the first phase of
RSC, the overall density of RSC would increase from 3.39 units per acre to 3.70 units per acre.
Mayor Bacon asked for public comment, and several persons wishing to present testimony
were administered the oath hy Mr. Cochran.
Mr. Ed Hatcher of HHI reported that the proposed changes would be a continuation of the
project approved last September 25 using two tracts, one currently zoned R-15 and the other
OJ, and that the existing dwellings would he removed and replaced with the same style structure
March 4, 2002
2
found at RSC. Mr. Hatcher stated he would like to have the same stipulations apply to the
changed area and used some small maps of the subject area for illustration. Mr. Hatcher stated
the property owned by Mr. Freeman is presently used for storage and requested that, if the
property is rezoned, Mr. Freeman be allowed to temporarily retain that use for the property.
Mayor Bacon asked if this proposed change would be an extension of the previously approved
project and Mr. Hatcher answered in the affirmative. Council Member Hawkins asked if the
new houses will be two-story structures and Mr. Hatcher answered yes. Council Member
Hawkins asked what the square footage of the houses would be and Mr. Hatcher advised the
average size is 2,150 square feet and that they will be three-bedroom structures. Council
Member Scoggins asked if the property line dispute with Mr. Hamby had been resolved and
Mr. Hatcher answered in the affirmative. Council Member Scoggins stated that the original
plan called for a driveway that adjoined a curve, which was potentially a hazard. Council
Member Scoggins stated he had received a recent request for Mr. Hatcher to consider moving
the driveway by one space to the area between houses 6 and 7, and Mr. Hatcher advised he
would ask his consulting engineer about the possible change. Council Member Scoggins
complimented Mr. Hatcher on the positive impact of the development on the community and
thanked him for for his cooperation.
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Mr. Sam Hamby, 1312 Roswell Street, commented favorably about Mr. Hatcher and the
subject construction, and thanked the Mayor and Council for the concern they have shown.
COL Ron Davis, 1351 Roswell Street, requested that the driveway be moved by one more
house lot out of the curve and north of the Freeman property.
Mrs. Sandra Hamby, 1312 Roswell Street, expressed the view that the plan for the driveway to
be between lots 5 and 6 would be satisfactory.
Mayor Bacon noted that the current plan calls for a driveway on a 20' easement between lots 5
and 6 and asked where that is in relation to the Gilbert Street and Mr. Hatcher advised it is
slightly north of Gilbert Street. Mayor Bacon asked Mr. Chris Miller if the driveway should be
centered with Gilbert Street and Mr. Miller answered that it should, if possible, in order to
avoid awkward turning movements by vehicles entering the street. Council Member Scoggins
asked Mr. Hatcher to confirm that he is willing to consider moving the driveway to the area
between lots 6 and 7 and Mr. Hatcher answered in the affirmative. Council Member Lnenicka
asked Mr. Hatcher when sales would begin and when construction was expected to be complete
and Mr. Hatcher advised sales would start in about two weeks and that construction should be
complete around August. Council Member Newcomb asked if firewalls would be required
because of the relatively close spacing of the homes and Mr. Hatcher advised codes required a
fire resistance rating. Council Member Scoggins asked Mr. Cochran if it is necessary to read
the stipulations and Mr. Cochran advised a copy should be attached to the minutes.
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Council Member Scoggins made a motion to approve a rezoning request from HHI for a .959
acre tract from R-15 Single Family Residential and Office - Institutional to RAD Conditional
at Roswell Street Commons and Roswell Street and the motion was seconded by Council
Member Pritchett. Motion was approved 7-0.
(C) Land Use Change Request - .959 Acre Tract from Low Density Residential and Central
Business District to Medium Density Residential - Hatcher Homes, Inc. (HHI) -
Roswell Street Commons and Roswell Street
Mayor Bacon stated this is a public hearing and asked for comment. There was none.
Council Member Scoggins made a motion to approve a land use change request for a .959 acre
tract from Low Density Residential and Central Business District to Medium Density
Residential for HHI at Roswell Street Commons and Roswell Street and the motion was
seconded by Council Member Pritchett. Motion was approved 7-0.
(D)
Variance Request - Reduction of Rear Yard setback from 50' to 10' - International
Gospel Outreach (IGO) Family Church - Windy Hill Road and Dixie Avenue
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Mr. Corey stated the subject property contains the IGO Family Church and is located at the
northwest corner of Windy Hill Road and Dixie A venue and that the parcel is zoned General
Commercial (GC). Mr. Corey advised the applicant is proposing to add a new 1,750 square
foot open-air pavilion and that the applicant has requested a variance to reduce the rear yard
setback from 50' to 10' to accommodate the proposed pavilion.
March 4. 2002
3
Mayor Bacon stated this is a public hearing and asked for comment. There was none.
..
Council Member Scoggins recognized Mr. Calvin Tibbs, who explained that the owner of the
adjoining rear property, Mr. Monroe Dunn, has been contacted and has no objections to the
setback variance being approved. Mr. Tibbs advised the variance is for a pavilion that would
be used mostly during the spring and summer and would be painted to match the main building
in colors that would blend in with the area. Council Member Hawkins asked if there were
plans to have music in the subject location and Mr. Tibbs answered no. Council Member
Wood asked if there would be no traffic in the area and Mr. Tibbs answered yes. Council
Member Wood asked if there was a private driveway in the area and if the variance was for a
setback only and Mr. Tibbs answered in the affirmative.
Council Member Scoggins made a motion to approve a variance request for a reduction of rear
yard setback requirements from 50' to 10' for IGO Family Church at Windy Hill Road and
Dixie Avenue and the motion was seconded by Council Member Pritchett. Motion was
approved 7-0.
(E) Privileged License Request - Retail Package (Liquor, Beer and Wine) - Beverage
Masters, Tnc. D/B/A Doc's Wine and Spirits - 2350 Spring Road - Ownership and
Agent Change
Mr. Corey stated Doc's Wine & Spirits has submitted an application for a retail package license
(liquor, beer and wine) and that Kenneth William Peet wilI be the registered agent for this
establishment located at 2350 Spring Road. Mr. Corey advised Mr. Peet has been given a copy
of the Alcohol Beverage Ordinance, and the Business License Officer has gone over the
guidelines with him. Mr. Corey stated that Mr. Peet has indicated that he will follow the City's
ordinances if he is granted the license.
Mayor Bacon stated this a public hearing and asked for comment. There was none.
Council Member Newcomb recognized Mr. Kenneth Peet, who advised Doc's has been at the
current location since 1988. Council Member Newcomb stated that Doc's has a good record of
- compliance with alcoholic beverage ordinances and Mr. Peet advised Doc's has received a
commendation from the City to that effect. Mayor Bacon asked Mr. Peet to continue to be
mindful of the ordinances.
Council Member Newcomb made a motion to approve the privileged license request for retail
package sales of liquor, beer and wine for Beverage Masters, Inc. D/B/A Doc's Wine & Spirits
at 2350 Spring Road with Kenneth Peet as the registered agent, and the motion was seconded
by Council Member Pritchett. Motion was passed 7-0.
(F) Privileged License Request - Retail Package (Beer and Wine) - SaveRite Grocery
Warehouse, Tnc., D/B/A Save Rite #2708 - 2350 Spring Road - Agent Change
Mr. Corey stated that SaveRite #2708 has submitted an application for a retail package license
for beer and wine sales. Mr. Corey advised that Roy L. Dennis will be the registered agent for
this establishment located at 2350 Spring Road in Smyrna. Mr. Corey advised Mr. Dennis has
been given a copy of the Alcohol Beverage Ordinance, and the Business License Officer has
gone over the guidelines with him. Mr. Corey stated that Mr.Oennis has indicated that he will
follow the City's ordinances if he is granted the license.
Mayor Bacon stated this is a public hearing and asked for comment. There was none.
-.
Council Member Newcomb asked Mr. Dennis if Winn-Dixie Co. owns SaveRite and Mr.
Dennis answered in the affirmative. Mr. Dennis advised he has been with the company for
twenty-nine years and is a district manager. Mr. Dennis advised SaveRite has a comprehensive
training program for alcohol sales and that the company's policy is to ask alI purchasers for
identification. Council Member Newcomb asked Mr. Dennis why the on-site manager (Mr.
Jones) does not apply for the license in his name and Mr. Dennis advised that Mr. Jones does
not yet meet the residency requirements for the license, but has extensive experience with the
company.
Council Member Newcomb made a motion to approve the privileged license request for retail
package sales of beer and wine for Save Rite # 2708 at 2350 Spring Road with Roy Dennis as
March 4. 2002
4
the registered agent, and the motion was seconded by Council Member Hawkins. Motion was
approved 7-0.
(G) Privileged License Request - Retail Package (Beer Only) - Farida, Inc. D/B/A Windy
Hill Texaco - 875 Windy Hill Road - New Application
Mr. Corey stated that Windy Hill Texaco has submitted an application for a retail package
license for beer sales, and that Ayaz Sutaria will be the registered agent for this establishment
located at 875 Windy Hill Road in Smyrna. Mr. Corey advised Mr. Sutaria has been given a
copy of the Alcohol Beverage Ordinance, and the Business License Officer has gone over the
guidelines with him. Mr. Corey stated that Mr. Sutaria has indicated that he will follow the
City's ordinances if he is granted the license.
-
Mayor Bacon stated this is a public hearing and asked for comment. There was none.
Council Member Cramer asked Mr. Sutaria about previous complaints at the subject location
regarding music and "infomercials" and Mr. Sutaria advised the problem has been corrected.
Council Member Cramer asked Mr. Sutaria about his training policies, and Mr. Sutaria advised
his employees are trained not to sell alcohol to anyone without proper identification and that he
uses mystery shoppers to help check compliance.
Council Member Cramer made a motion to approve the privileged license request for retail
package sales of beer only at Windy Hill Texaco at 875 Windy Hill Road with Ayaz Sutaria as
the registered agent, and the motion was seconded by Council Member Wood. Motion was
approved 7-0.
(H) Privileged License Request - Retail Pouring (Liquor, Beer and Wine) - American
Legion Post 160 - 160 Legion Drive - Agent Change
Mr. Corey stated the American Legion Post 160 has submitted an application for a retail
pouring license for liquor, beer and wine. Mr. Corey advised Mr. Charles W. Barrett will be
the registered agent for this establishment located at 160 Legion Drive in Smyrna. Mr. Corey
advised Mr. Barrett has been given a copy of the Alcohol Beverage Ordinance, and the
Business License Officer has gone over the guidelines with him. Mr. Corey stated that Mr.
Barrett has indicated that he will follow the City's ordinances if he is granted the license.
-
Mayor Bacon stated this is a public hearing and asked for comment. There was none.
Council Member Hawkins asked Mr. Barrett who the previous agent was and Mr. Barrett stated
it was Don Fagan, and that Mr. Fagan is no longer an officer with the Legion. Council
Member Hawkins stated the Legion's privileged license is the oldest one in the City. Mayor
Bacon asked Mr. Barrett what his capacity at the Legion is and Mr. Barrett advised he is the
manager there.
Council Member Hawkins made a motion to approve the privileged license request for a retail
pouring license for liquor, beer and wine for American Legion Post 160 at 160 Legion Drive
with Charles Barrett as the registered agent, and the motion was seconded by Council Member
Lnenicka. Motion was approved 7-0.
(1)_ Privileged License Request - Retail Package (Beer and Wine) - The Kroger Company
D/B/ A Kroger Store #299 - 3315-1 South Cobb Drive - Agent Change
Mr. Corey stated that Kroger Store #299 has submitted an application for a retail package
license for beer and wine sales. Mr. Corey reported that Ms. Brenda McCrae will be the
registered agent for this establishment located at 3315-1 South Cobb Drive in Smyrna. Mr.
Corey advised Ms. McCrae has been given a copy of the Alcohol Beverage Ordinance, and the
Business License Officer has gone over the guidelines with her. Mr. Corey stated that Ms.
McCrae has indicated that she will follow the City's ordinances if she is granted the license.
..,
Mayor Bacon stated this is a public hearing and asked for public comment. There was none.
Council Member Hawkins asked Ms. McCrae if she is an employee of The Kroger Company
and Ms. McCrae answered yes, since 1978. Council Member Hawkins asked Ms. McCrae if
she has held an alcohol sales license before and she answered no. Council Member Hawkins
asked Ms. McCrae about company training and Ms. McCrae advised all employees are trained
March 4. 2002
5
in alcohol sales procedures and that it is a policy of the company to ask all purchasers to show
proper identification. Ms. McCrae stated that all employees who sell alcoholic beverages must
have a permit. Council Memher Hawkins advised Ms. McCrae that, as a license holder, she is
responsible for compliance, and asked her if she worked at Kroger Store #299 full-time and she
advised she is in contact with that location about two or three times per week. Mayor Bacon
asked who currently has the license for Kroger Store #299 and Ms. McCrae advised it was
Lavern Cook, who is no longer employed there.
-
Council Member Hawkins made a motion to approve the privileged license request for retail
package sales of beer and wine at Kroger Store # 299 at 3315-1 South Cobb Drive with Brenda
McCrae as the registered agent, and the motion was seconded by Council Member Pritchett.
Motion was approved 7-0.
(1) Privileged License Request - Retail Package (Beer and Wine) - Rendhawa Enterprises
D/B/A Value Mart - 3280 South Cobb Drive - New Application
Mr. Corey stated Value Mart has submitted an application for retail package sales of beer and
wine. Mr. Corey advised Mr. Ravinder S. Randhawa will be the registered agent for this
establishment located at 3280 South Cobb Drive in Smyrna. Mr. Corey advised Mr. Randhawa
has been given a copy of the Alcohol Beverage Ordinance, and the Business License Officer has
gone over the guidelines with him. Mr. Corey stated that Mr. Randhawa has indicated that he
will follow the City's ordinances if he is granted the license.
Mayor Bacon stated this is a public hearing and asked for comment. There was none.
Council Member Hawkins asked Mr. Randhawa if he is the owner of the business and what
type of store is planned, and Mr. Randhawa answered that he is the owner and that the
operation will be a convenience store. Council Member Hawkins asked Mr. Randhawa if he
has had a license of this type before, and Mr. Randhawa advised he currently has an alcoholic
beverage sales license in the City of Morrow. Council Member Hawkins asked Mr. Randhawa
if he has had any problems in connection with his license in Morrow, and Mr. Randhawa
answered in the negative. Council Member Hawkins advised Mr. Randhawa that checks for
compliance are periodically made, and Mr. Randhawa explained he has experience in the
.., convenience store business and his company has a policy of requiring identification from all
purchasers. Council Member Wood asked Mr. Randhawa if he is leasing the business location
from Partners Petroleum and Mr. Randhawa answered in the affirmative. Council Member
Wood asked when the business will open and Mr. Randhawa stated the opening is scheduled for
March 15. Council Member Cramer asked Mr. Randhawa who owns the collection box near
the business and Mr. Randhawa advised it belongs to the church. Council Member Cramer
advised the collection box should not be in the right-of-way and that the City Marshal will be
sent to check into this matter.
Council Member Hawkins made a motion to approve the privileged license request for retail
package sales of beer and wine for Rendhawa Enterprises D/B/A as Value Mart at 3280 South
Cobb Drive with Ravinder Rendhawa as the registererd agent, and the motion was seconded by
Council Member Scoggins. Motion was approved 7 - O.
FORMAL BUSINE~~~
(A) Approval of Replacement Telecommunications Ordinance
..,
Mr. Corey stated the City has contracted with the Georgia Municipal Association (GMA) for
telecommunications management services. Mr. Corey stated GMA has recommended the City
adopt a' Cable Services Only ordinance and a Telecommunications Only ordinance, based on
their model ordinances, in response to state and federal court decisions and FCC
pronouncements since the combined ordinance was adopted. Mr. Corey advised the current
City ordinance is a combined Procedural Ordinance,
Council Member Hawkins stated that in 1994 the Telecommunications Act was passed in
response to industry expansion and changes. Council Member Hawkins advised the purpose of
the Act is to limit the authority of local governments to regulate the industry. Council Member
Hawkins stated there have been questions about what exactly constitutes regulation, and some
court decisions have been made making some changes advisable. Council Member Hawkins
stated that, because the two services are treated differently, GMA has recommended that
March 4. 2002
6
separate ordinances for the two services be in place. Council Member Hawkins stated the
ordinances set forth the standards the City will use to award franchise contracts.
Council Member Hawkins made a motion to adopt the new Telecommunications Ordinance,
and the motion was seconded by Council Member Wood. Motion was approved 7 - O.
(B) Approval of Replacement Cable Services Ordinance
Mr. Corey stated the City has contracted with the Georgia Municipal Association (GMA) for
telecommunications management services. Mr. Corey stated GMA has recommended the City
adopt a Cable Services Only ordinance and a Telecommunications Only ordinance, based on
their model ordinances, in response to state and federal court decisions and FCC
pronouncements since the combined ordinance was adopted. Mr. Corey advised the current
City ordinance is a combined Procedural Ordinance.
-
Council Member Hawkins stated that GMA has recommended that a separate Cable Services
Ordinance be adopted. Council Member Hawkins advised the ordinance has provisions for
non-exclusive franchises, and that, although one provider may predominate in an area, it is
possible for people to obtain service from other sources.
Council Member Hawkins made a motion to approve the new Cable Services Ordinance, and
the motion was seconded by Council Member Scoggins. Motion was approved 7 - O.
COMMERCIAL BUILDING PERMITS:
(A) UCB, Inc - 2100 Windy Hill Road - Office Building
Council Member Scoggins and Council Member Wood commented favorably on DCB, Inc.,
and provided details on the expected benefits of having a main office of the company in the
City.
Council Member Scoggins made a motion to approve the building permit for UCB, Inc. for an
office building at 2100 Windy Hill Road, and the motion was seconded by Council Member
Wood. Motion was approved 7 - O.
-
BID AWARDS:
(A) Award of Bid for Pipeburst Replacement - Burbank Circle, Glendale Circle and
Glendale Place
Council Member Scoggins made a motion to approve the award of the bid for pipeburst
replacement for Burbank Circle, Glendale Circle and Glendale Place to Southeast Pipe Survey
and the motion was seconded by Council Member Cramer.
Council Member Scoggins advised the method to be used is a new non-intrusive technique
using water pressure and that the affected pipe is about 1,553' in length. Mayor Bacon stated
the bid is for $120,275.00
Motion was approved 7 - O.
(B) Award of Bid for Pipeburst Replacement - Creatwood Trail, Cimmeron Court and
Mohawk Place
Mayor Bacon advised the bid was for replacement of 290' of sewer main and rehabilitation of
two manholes. Council Member Scoggins advised the bid is from K. M. Davis Contracting for
$40,940.
Council Member Scoggins made a motion to approve award of the bid for pipeburst
replacement at Creatwood Trail, Cimmeron Court and Mohawk Place to K. M. Davis
Contracting, and the motion was seconded by Council Member Lnenicka. Motion was
approved 7 - O.
-
CONSENT AGENDA:
(A) Approval of February 18, 2002, Minutes
March 4. 2002
7
(A) Request for Contingency Funding to Make Necessary Repairs at Tolleson Pool
(B) Request to Bid the Replacement of an Existing Dump Truck
(C) Request to Reject all Bids, IFB 2-012
(D) Request to Re-bid Replacement of Sanitary Sewer Main
(E) Request to Bid Resurfacing of the Public Works Complex Facility
(F) Request to Bid Replacement of Existing Multi-Use Landscape Dump Truck
Council Member Scoggins made a motion to approve the consent agenda, and the motion was
seconded by Council Member Lnenicka. Motion was approved 7 - O.
COMMITTEE REPORTS:
..
Council Member Pritchett expressed appreciation to Mr. Bill Lnenicka and COL Ron Davis for
the commemorative shovel.
Council Member Scoggins stated that the new office of UCB, Inc. being built in the City
is a positive development and an indication the City is on the right track.
Council Member Hawkins asked those present to remember the U.S. military personnel in
Afghanistan in their prayers.
Council Memher Cramer commented favorahly on the progress heing made on the Veterans'
Memorial. Council Member Cramer stated there are now three City Marshals and reminded
everyone of the upcoming Jonquil City Jog.
Council Member Lnenicka read from a Public Works Department report details of the efforts
made by that Department to investigate sewer complaints in the area of Creatwood Trail.
Council Member Lnenicka stated the efforts to try to detect leakage in the sanitary sewer
included use of a camera, dye and smoke, and that no leakage was found. Council Member
Lnenicka reiterated his commitment to ensuring the safety of the citizens.
With no further husiness, the meeting was adjourned at 9:28 p.m.
4-
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f~~
A.MAXBACON,MAYOR
---...
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LEE MILLER, DEPUTY CITY CLERK
~.-M
RON NEWCOMB, WARD "2
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{BILL~GGIN~RD 3
JAMES M . HAWKINS, WARD 4
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tY-K CRAMER, WARD 5
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Whereas:
Whereas:
Whereas:
Therefore:
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RESOLUTION
The City of Smyrna has completed a Five Year Short Term
Work Program for the Period 2001 to 2005, and
The Committee of the Whole has recommended the City
transmit the Short Term Work Program to the Atlanta
Regional Commission for review, and
The Five Year Short Term Work Program was prepared in
accordance with the Minimum Planning Standards and
Procedures of Local Comprehensive Planning established by
the Georgia Planning Act of 1989, and a Public Hearing was
held on March 4, 2002 at 7:30 pm at City Hall.
The Mayor and City Council further authorizes the
Community Development Director to hereby proceed with
the transmission of the Short Term Work Program to the
Atlanta Regional Commission as per the requirements of the
Minimum Standards and Procedures for Local
Comprehensive Planning.
A
A. Max Bacon, Mayor
Attest:
L,
\ '
.1
-L-L.r-- ~
Lee Miller, Deputy City Clerk
'\
l
'w CITY OF SMYRNA
COMMUNITY DEVELOPMENT DEPARTMENT
MEMORANDUM
To: Mayor and Council
From: Christopher S. Miller, AICP, Director
Date: February 25, 2002
CC: Chris Corey, Interim City Administrator
RE: REZONING CASE Z02-002 - Zoning Amendment
Roswell Street Commons
BACKROUND
Hatcher Homes, Inc. is proposing to rezone a .959 acre tract from R-15 (Single Family
Residential) and 01 (Office-Institutional) to RAD Conditional. If approved, the subject parcel
would be incorporated into the previously approved Roswell Street Commons subdivision via a
zoning amendment.
'-"
The subject parcel is located on the south side of Roswell Street and includes two existing
buildings. If approved, the four proposed residences on the .959 acre site would result in a net
density of 4.17 units per acre. When added to the first phase of Roswell Street Commons, the
overall density of Roswell Street Commons would increase from 3.39 unit per acre to 3.70 units
per acre. Because of this, a land use change from Low Density residential and Central
Business District to Medium Density Residential is required for the subject parcel.
ANAL YSIS
The neighboring contiguous properties to the subject parcel are zoned 0-1 and RAD
Conditional. This portion of Roswell Street is predominantly single-family residential. The
development proposal would provide for the construction of four single-family homes which
when added to the first phase of Roswell Street Commons would result in nine single-family
homes. The density for the overall site would be 3.70 units per acre. If approved, the subject
parcel would be developed as four fee-simple separate lots which will be accessed via a
common drive between the rear of each residence and the rear lot line. To minimize the impact
to the existing residence to the southwest, the common drive has been relocated to the interior
of the development. The proposed homes will be designed in a bungalow style with detached
and semi-detached garages behind each residence.
....,
The existing zoning classifications on the subject parcel are R-15 and 0-1. The R-15 zoning
designation is intended for single-family developments with a minimum lot size of 15,000
square feet. The proposed rezoning would change the designation to RAD Conditional which is
Roswell Street Commons - l02-002
'- February 25, 2002
Page 2 of 5
site plan specific. The proposed development would be required to consistent with the following
setbacks approved in conjunction with the first phase of Roswell Street Commons: Front - 30',
Rear - 30', Side - 10' and Between Buildings - 10'. The average lot size is approximately
11,500 square feet in area.
STAFF COMMENTS
Section 1508 of the Smyrna Zoning Code details nine zoning review factors which must be
evaluated by the Planning and Zoning Board and the Mayor and Council when considering a
rezoning request. The following provides the nine factors followed by an analysis of each factor
in italics:
1.
Whether the zoning proposal will permit a use that is suitable in view of the use
and development of adjacent and nearby property.
'-'
The proposed rezoning would result in a development zoned RAD Conditional
which would be generally compatible with the adjacent residences zoned R-15.
The major differences between the existing and proposed development would be
the increased density of the subject development and the reduced front and side
yard setbacks. Specifically, the overall density for the first phase of the Roswell
Street Commons is 3.39 units per acre while the density for the subject parcel is
proposed to be 4.17 units per acre resulting in a total net density of 3. 70 units per
acre. While the density for the development would be increased, the overall
average lot size would be decreased from an average of approximately 12,000
square feet to 11,800 square feet.
2.
Whether the zoning proposal or the use proposed will adversely affect the existing
use or usability of adjacent or nearby property.
The proposed rezoning would result in a single-family subdivision generally
compatible with adjacent residences. The proposed building type (detached
single-family) and style (bungalow) would be compatible with adjacent residences.
3. Whether the property to be affected by the zoning proposal has a reasonable
economic use as currently zoned.
The subject parcel has a reasonable economic use as single-family residences or
commercial development consistent with the existing zoning designations.
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Roswell Street Commons - Z02-002
.~ February 25, 2002
Page 3 of 5
4. Whether the zoning proposal will result in a use which will or could cause an
excessive or burdensome use of existing streets, transportation faci lities, utilities or
schools.
The proposed rezoning would result in an increase of two dwelling units.
Additional information from the School Board related to the impact upon the school
system will need to be provided prior to the City Council Meeting.
5. Whether the zoning proposal is in conformity with the policy and intent of the land
use plan.
The rezoning is not in conformity with the land use plan because a land use
change is required. The land use change from Low-Density Residential/Central
Business District to Medium-Density Residential would be compatible with the first
phase of Roswell Commons but not the other surrounding land use designations
which are either Low-Density Residential or Central Business District.
~
6. Whether there are other existing or changing conditions affecting the use and
development of the property which give supporting grounds for either approval or
disapproval of the zoning proposal.
The City of Smyrna's downtown core is going through a major transformation with
the addition of the new mixed-use Village Market. This development, together with
new developments such as Whitfield Commons, will continue to improve this
portion of the City.
7. Whether the development of the property under the zoning proposal will conform
to, be a detriment to or enhance the architectural standards, open space
requirements and aesthetics of the general neighborhood, considering the current,
historical and planned uses in the area.
The proposed development employing traditional bungalow designs would
enhance the area in comparison to the present use.
8. Under any proposed zoning classification, whether the use proposed may create a
nuisance or is incompatible with existing uses in the area.
The proposed use (single-family residences) will not create a nuisance to adjacent
properties.
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Roswell Street Commons - Z02-002
'.., February 25, 2002
Page 4 of 5
9. Whether due to the size of the proposed use, in either land area or building height,
the proposed use would affect the adjoining property, general neighborhood and
other uses in the area positively or negatively.
Factors associated with the use, land area or building height will not have an
impact upon the adjacent properties.
The proposed rezoning will provide for the development of four single-family residences which,
when added to the first phase of Roswell Street Commons, would result in a subdivision with
nine single-family residences. Due to the density associated with the rezoning, a land use
change from Low-Density Residential/Central Business District to Medium-Density Residential
will be required. While the proposed land use change will not be consistent with the adjacent
properties (excluding the remainder of Roswell Commons), it will have a positive impact upon
the neighborhood by eliminating an existing non-residential use. Additionally, the type and style
of residences proposed would be an upgrade in comparison to the existing buildings. Staff
supports the rezoning and land use change with the following conditions of approval drawn from
Section 1201 for Conditional Developments. These standards were drawn from those
approved by the City Council on October 1, 2001 in conjunction with the rezoning for the first
phase of Roswell Street Commons:
~
3.
4.
5.
6.
7.
8.
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9.
1.
The development will maintain the following setbacks: Front-30', Side-10',
between buildings-10' and rear-30'.
2. Each residence will be a minimum of 1,950 square feet in area and conform to
the architectural renderings provided to the City Council at its October 1, 2001
rezoning hearing for the first phase of Roswell Street Commons.
There shall be protective covenants on all lots and there shall be a mandatory
homeowners association.
The storm water detention plan shall be designed to create at least a 10%
reduction in a 1 DO-year storm event. The City Engineer shall approve all plans.
All retention ponds shall be placed and screened appropriately to be unobtrusive
to homes inside and outside the development.
All utilities within the development shall be underground.
The developer will comply with the City's current tree ordinance and plans shall
be submitted to the City Arborist for review and comment prior to construction.
The protective covenants will require all non-resident property owners to keep
the Homeowners Association advised of the current address and phone numbers
where they can be reached.
No debris may be buried on any lot or common area.
Roswell Street Commons - l02-002
W February 25, 2002
Page 5 of 5
10. All yards and common areas are to be sodded and landscaped. Irrigate as
appropriate.
11. All landscape plans must be prepared, stamped and signed by a Georgia
Registered Landscape Architect or a degreed horticulturist for common areas
and entrances.
12. Each lot shall have the following trees replanted per lot either: four 3" caliper
trees or two 2" caliper and two 4" caliper trees. The following species of trees
may be used: Nuttall Oak, Swamp Chestnut Oak, Allee Elm and Village Green
Zelkova. Other species may be used if approved by the City. In the event that a
12" caliper or larger hardwood tree is saved on a given lot, the replanting
requirements for that given lot may be waived.
"-'
If for any reason, development and use of property approved in accordance with the procedure
outlined above cannot be accomplished, such plans shall not be altered, changed, or varied,
except after approval by the mayor and council. When conditional zoning has been granted,
but no affirmative action to perform said conditions, or to obtain a building permit subject to
such conditions [has been taken], and such status continues for 12 months after mayor and
council approval of such conditional zoning, the property shall revert to its original status prior to
such conditional zoning.
....
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CABLE SYSTEM AND OPEN VIDEO SYSTEM ENABLING ORDINANCE
ORDINANCE NUMBER 020304A
AN ORDINANCE BY THE CITY COUNCIL
OF THE CITY OF SMYRNA, GEORGIA
TO PROVIDE FOR THE GRANTING
OF ONE OR MORE NONEXCLUSIVE FRANCHISES
FOR CABLE SERVICES WITHIN
THE MUNICIPAL BOUNDARIES OF THE
CITY OF SMYRNA, GEORGIA AND TO PROVIDE FOR THE
PROCESS UNDER WHICH SAID GRANTING OF
FRANCHISES SHALL TAKE PLACE
THE COUNCIL OF THE CITY OF SMYRNA, GEORGIA
HEREBY ORDAINS THAT:
~
WHEREAS, the Mayor and City Council have determined that it is in the best interests
of and consistent with the convenience and necessity of the City to grant Franchises (as
hereinafter defined) to companies desiring to provide Cable Services (as hereinafter defined)
through a Cable System (as hereinafter defined) or Open Video System (as hereinafter defined)
within the territorial boundaries of the City and on the terms and conditions herein, and as may
be further described in each franchise agreement for Cable Services;
WHEREAS, the City has the authority to regulate the occupation and use of the Streets
(as hereinafter defined) to the maximum extent permitted under applicable law, including, but
not limited to, the federal Telecommunications Act of 1996 ("1996 Act"); and
WHEREAS, in an effort to comply with applicable law, including the 1996 Act, the
City has determined that a Person (as hereinafter defined) must obtain separate Franchises to
provide Cable Services and Telecommunications Services; and
WHEREAS, the 1996 Act permits the provision of Cable Service over an Open Video
System, subject to the City's right to franchise such Open Video System;
WHEREAS, the City has determined that the grant of franchises to use and occupy the
Streets for the provision of Cable Services would promote the health, safety and welfare of the
public, stimulate commerce and otherwise serve the public interest; and
WHEREAS, the City desires to structure and implement a fair and orderly process for
the grant of franchises (and renewals of such franchises) to occupy and use the Streets to provide
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Cable Services in the City, including the negotiation of franchise provisions to protect the public
interest; and
WHEREAS, the City intends to exercise, to the fullest extent permitted by applicable
law, its authority with respect to the regulation of the occupation and use of the Streets in
connection with the provision of Cable Services,
NOW, THEREFORE BE IT RESOLVED THAT:
SECTION I
The Code of Ordinances of the City of Smyrna is hereby amended by creating a new
Chapter _, Articles 1-3, entitled "Cable Services Franchising," and shall hereafter read as
follows:
Article 1
DEFINITIONS
Section 1.1 Definitions
~ For purposes of this Ordinance, the following terms, phrases, words and their
derivations shall have the meanings set forth in this Section, unless the context clearly indicates
that another meaning is intended. When not inconsistent with the context, words used in the
present tense include the future, words used in the plural number include the singular number and
words used in the singular number include the plural number.
1.1.01 "Cable Services" means "cable services" as defined in the Communications Act
of 1934, as amended by the Cable Communications Policy Act of 1984, the
Cable Television Consumer Protection and Competition Act of 1992, the
Telecommunications Act of 1996, and as may be further amended from time to
time (the "Cable Act"), but does not include Telecommunications Services. In
the event that "cable services" is no longer defined in the Cable Act or the
definition in the Cable Act otherwise becomes inapplicable, "Cable Services"
shall mean "cable services" as defined in the Cable Act immediately prior to
such term no longer being defined in the Cable Act or such definition otherwise
becoming inapplicable.
1.1.02 "Cable System" means any "Cable System" as defined in the Cable Act.
1.1.03 "City" means the City of Smyrna.
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1.1.04 "City Council" means the City Council of the City and its designee or any
successor thereto.
1.1.05 "Franchise" means an initial authorization, or renewal thereof, issued by the
City, whether such authorization is designated as a franchise, permit, license,
resolution, contract, certificate, agreement or otherwise, which authorizes the
occupation and use of the Streets to provide Cable Services through a Cable
System or Open Video System.
1.1.06 "Grantee" means the legal entity to which is granted the right, authority and
responsibility to construct, install, operate and maintain a system of equipment
as necessary to furnish, supply and distribute Cable Services to inhabitants
within the franchise area.
1.1.07 "may" is permissive.
1.1.08 "Open Video System" means "open video system" as defined by section
76. 1500(a) of Part 76 of the Code of Federal Regulations.
1.1.09 "Ordinance" means this Ordinance and all modifications and amendments
thereto.
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1.1.10 "Person" means any individual or any association, firm, partnership, joint
venture, corporation or other legally recognized entity, whether for profit or
not for profit, but shall not mean the City.
1.1.11 "shall" is mandatory, not merely directive.
1.1.12 "Streets" means the surface of, as well as the spaces above and below, any and
all streets, alleyways, avenues, highways, boulevards, driveways, bridges,
tunnels, parks, parkways, public grounds or waters, and other public
rights-of-way within or belonging to the City.
1.1.13 "Telecommunications Services" means "telecommunications service" as
defined by 47 D.S.C. g 153(46) of the Communications Act of 1934, as
amended by the Telecommunications Act of 1996, but does not include Cable
Services. In the event that "telecommunications service" is no longer defined
in the Communications Act or the definition in the Communications Act
otherwise becomes inapplicable, "Telecommunications Service" shall mean
"telecommunications service" as defined in the Communications Act
immediately prior to such term no longer being defined in the
Communications Act or such definition otherwise becoming inapplicable..
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Article 2
GRANTING AUTHORITY AND
FRANCHISING PROCEDURE
Section 2.1 Granting Authority
2.1.01 No Person shall use or occupy the Streets to provide any Cable Services or
operate a Cable System or Open Video System without a Franchise granted in accordance with
the provisions of this Ordinance.
2.1.02 The City Council may grant one or more Franchises in accordance with this
Ordinance, provided that the City Council reserves the right to modify any provision of this
Ordinance by amendment hereof.
2.1.03 The grant of any Franchise shall be made by adoption of a separate ordinance
by the City Council and shall be on such terms and conditions as may be specified in said
separate ordinance and/or a franchise agreement between the City and the Grantee.
2.1.04 Any Franchise granted shall be nonexclusive. The City specifically reserves
the right to grant, at any time, such additional Franchises as it deems appropriate and/or itself
engage in the provision of Cable Services.
2.1.05 A Franchise may be granted for all or any defined portion of the City.
2.1.06 The grant of Franchises by the City shall be subject to the provisions of
applicable law, such as the provisions in the Cable Act, as amended, governing cable television
system and open video system franchises and the renewals of cable television system franchises.
Section 2.2 Franchise Applications
2.2.01 Applications for Franchises shall be submitted in such form and be issued on
such terms and conditions as the City Council may determine, subject to applicable law.
2.2.02 Any Application for a Franchise shall contain and/or require the following
information with respect to the proposed Franchise and such other information as the City
Council shall deem necessary or appropriate:
(i) applicant's name, address, telephone number, and federal employer identification
number or social security number; copy of applicant's corporate charter or
partnership agreement as applicable; and any trade names (and registrations) used
by applicant;
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(ii) a detailed statement of the corporation or business entity organization of the
applicant, including but not limited to the following, and to whatever extent
required by the City:
(a) the names and the residence and business addresses of all officers and
directors of the applicant;
(b) the names, residence, and business addresses of all persons and entities
having any share of the ownership of the applicant and the respective
ownership share of each person or entity;
(c) the names and address of any parent or subsidiary of the applicant, namely,
any other business entity owning or controlling applicant in whole or in part
or owned or controlled in whole or in part by the applicant, and a statement
describing the nature of any such parent or subsidiary business entity,
including but not limited to cable systems and open video systems owned
or controlled by the applicant, its parent, and subsidiary, and the areas
served thereby;
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(d) a detailed and complete financial statement of the applicant, certified by an
independent certified public accountant, for the fiscal year immediately
preceding the date of the application hereunder, or a letter or other
acceptable evidence in writing from a recognized lending institution or
funding source, addressed to both the applicant and the Council, setting
forth the basis for a study performed by such lending institution or funding
source, and a clear statement of its intent as a lending institution or funding
source to provide whatever capital shall be required by the applicant to
construct and operate the proposed cable system or open video system in
the City, or a statement from an independent certified public accountant
certifying that the applicant has available sufficient free, net, and
uncommitted cash resources to construct and operate the proposed cable
system or open video system in the City;
(e) a detailed financial plan (pro forma) describing for each year of the
franchise, projected number of subscribers, rates, all revenues, operating
expenses, capital expenditures, depreciation schedules, income statements,
and a sources and uses of funds statement; and
(f) a statement identifying, by place and date, any other cable television
franchisees) awarded to the applicant, its parent or subsidiary; the status of
said franchisees) with respect to completion thereof; the total cost of
completion of such franchised cable system(s) and open video system(s);
and the amount of applicant's and its parent's or subsidiary's resources
committed to the completion thereof;
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(iii) a detailed description of the proposed plan of operation of the applicant which
shall include, but not be limited to, the following:
(a) a description of the Cable Services proposed to be provided;
(b) a detailed map indicating all areas proposed to be served, and a proposed
time schedule for the installation of all equipment necessary to become
operational throughout the entire area to be serviced;
(c) a statement or schedule setting forth all proposed classifications or rates
and charges to be made against subscribers and all rates and charges as to
each of said classifications, including installation charges, cable service
charges, and any other service charges;
(d) a detailed, informative, and referenced statement describing the actual
equipment and operational standards proposed by the applicant;
(e) a copy of the form of any agreement, undertaking, or other instrument
proposed to be entered into between the applicant and any subscriber to
Cable Services; and
(f) a detailed statement setting forth in its entirety any and all agreements and
undertakings, whether formal or informal, written, oral, or implied,
existing or proposed to exist between the applicant and any person, firm,
or corporation which materially relate or pertain to or depend upon the
application and the granting of the franchise;
(iv) a copy of any agreement covering the franchise area, if existing between the
applicant and any utility providing for the use of any facilities of the utility,
including but not limited to, poles, lines, or conduits; and
(v) any other details, statements, supplementary information, or references pertinent
to the subject matter of such application which shall be required or requested by
the Council, or by any other provision of law.
Section 2.2.03 Non-refundable Application Fees for New Franchises
No application for a new franchise shall be considered without payment by the
applicant of application fees as provided in this Section. If a franchise is granted, application
fees will not be deemed a credit towards any other fees or sums due by the Grantee. If an
application is denied, the application fee will not be refunded.
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(a) Purpose of Application Fees. The application fees provided by this section
will serve to cover the direct and indirect costs incurred by the City in processing the application,
evaluating the applicant, and granting a franchise, and shall include, but not be limited to,
administrative, engineering, publication, legal, and consultant's expenses.
(b) Application Fee. The applicant will be expected to pay the reasonable
costs of the City in evaluating the application. Notwithstanding any other requirement of this
ordinance, each applicant must furnish with its proposal a non-refundable application fee in the
amount ofTen Thousand Dollars ($10,000) by certified check or cashier's check made payable to
the City of Smryna. In the event that the City's reasonable costs exceed such amount, the
applicant may be required by the City to pay any additional amount to cover such costs.
Section 2.3 Responsibilities of Applicants
It shall be the responsibility of each applicant for a Franchise to comply with all
applicable laws, ordinances, resolutions, rules, regulations and other directives of the City and
any federal, state or local governmental authority having jurisdiction.
Section 2.4 Public Availability of Applications
To the extent determined by the City Council, applications for Franchises, including
any additions, modifications or amendments thereto, shall be available for public inspection at a
designated City office during normal business hours.
Section 2.5 Evaluation Criteria
In making any determination hereunder as to any application for a Franchise, the City
Council may consider such factors as it deems appropriate and in the public interest, including,
without limitation:
(i) the adequacy of the proposed compensation to be paid to the City,
including the value of any facilities and Cable Services offered by the
applicant to the City;
(ii) the legal, financial, technical and other appropriate qualifications of the
applicant;
(iii) the ability of the applicant to maintain the property of the City in good
condition throughout the term of the Franchise;
(iv) the value and efficiency to the City and its residents of the Cable Services
to be provided, including the type of Cable Services to be provided, as
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well as alternatives to those Services and services that may be precluded
by the grant of the Franchise;
(v) the willingness and ability of the applicant to meet construction and
physical requirements and to abide by all purpose and policy conditions,
limitations and requirements with respect to the Franchise; and
(vi) any other public interest factors or considerations deemed pertinent by the
City for safeguarding the interests of the City and the public.
Section 2.6 Procedure for Consideration of and Action on Applications
2.6.01 The City may make such investigations and take or authorize the taking of such
other steps as the City Council deems necessary or appropriate to consider and act on
applications for Franchises and determine whether a Franchise should be granted to an applicant,
and may require the applicant to furnish additional information and data for this purpose. In
considering applications, the City Council may seek advice from other city officials or bodies,
from such other advisory bodies as it may establish or determine appropriate, or from the public,
and may request the preparation of one or more reports to be submitted to the City Council,
which may include recommendations with respect to such applications.
2.6.02 If the City Council, after considering such information as it determines to be
W appropriate, elects to further consider any application(s), the City Council shall set one or more
public hearings for consideration of the application(s), fixing and setting forth a day, hour and
place certain when and where any Persons having any interest therein or objections thereto may
file written comments and appear before the City Council and be heard, and providing notice of
such public hearing(s) in accordance with applicable law.
2.6.03 The City Council may authorize negotiations between City officials and
applicants to determine whether the City and such applicants are able to reach agreement on the
terms of the proposed Franchise.
2.6.04 Upon completion of the steps deemed appropriate by the City Council, the City
Council may grant the Franchise, and may specify the conditions under which the Franchise is
granted. Alternatively, the City may reject any and all applications from whatever source and
whenever received except that a franchising authority may not grant an exclusive franchise and
may not unreasonably refuse to award an additional competitive franchise. The City also
reserves the right to waive any or all requirements when it determines that the best interests of
the City may be served thereby and may, if it so desires, request new or additional proposals.
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Section 2.7 Terms and Conditions of Franchise
2.7.01 The terms and conditions applicable to any Franchise granted pursuant to this
Ordinance shall be set forth in the separate ordinance granting the Franchise or in a separate
written agreement. Such separate ordinance or written agreement, among other things, shall
address the following subjects:
(i) the term of the Franchise;
(ii) the Franchise area and the Cable Services which are the subject of the
Franchise;
(iii) the compensation to be paid to the City, which may include the payment of
fees or the provision of facilities or services, or both;
(iv) the circumstances upon which the Franchise may be terminated or
cancelled;
(v) the mechanisms, such as performance bonds, security funds or letters of
credit, to be put in place to ensure the performance of the Grantee's
obligations under the Franchise;
(vi) the City's right to inspect the facilities and records of the Grantee;
(vii) insurance and indemnification requirements applicable to the Grantee;
(viii) the obligation of the Grantee to maintain complete and accurate books of
account and records, and the City's inspection rights with respect thereto;
(ix) provisions to ensure quality workmanship and construction methods;
(x) provisions to ensure that the Grantee will comply with all applicable City,
state and federal laws, regulations, rules and policies, including, without
limitation, those related to employment, purchasing and investigations;
(xi) provisions to ensure adequate oversight and regulation of the Grantee by
the City;
(xii) provisions to restrict the assignment or other transfer of the Franchise
without the prior written consent of the City;
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(xiii) remedies available to the City to protect the City's interest in the event of
the Grantee's failure to comply with terms and conditions of the
Franchise;
(xiv) provisions to ensure that the Grantee will obtain all necessary licenses
and permits from, and comply with, all laws, regulations, rules and
policies of any governmental body having jurisdiction over the Grantee,
including, but not limited to, the Federal Communications Commission;
(xv) provisions to ensure that the Grantee will protect the property of the City
and the delivery of public services from damage or interruption of
operations resulting from the construction, operation, maintenance, repair
or removal of improvements related to the Franchise;
(xvi) provisions designed to minimize the extent to which the public use of the
Streets of the City are disrupted in connection with the construction of
improvements relating to the Franchise; and
(xvii) such other provisions as the City determines are necessary or appropriate
in furtherance of the public interest.
Article 3
GENERAL PROVISIONS
Section 3.1 Severability
If any section, subsection, sentence, clause, phrase or other portion of this Ordinance
is, for any reason, declared invalid, in whole or in part, by any court, agency, commission,
legislative body or other authority of competent jurisdiction, such portion shall be deemed a
separate, distinct and independent portion. Such declaration shall not affect the validity of the
remaining portions hereof, which other portions shall continue in full force and effect.
Section 3.2 Delegation
Consistent with applicable law, the City Council shall have the right to delegate and
redelegate, and to revoke any such delegation or redelegation, from time to time, any of its rights
or obligations under this Ordinance to any body, organization or official. Any such delegation,
redelegation or revocation, no matter how often made, shall not be deemed an amendment to this
Ordinance or to require the consent of any applicant for a Franchise or Grantee. The City