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Home My WebLink AboutPermit L2000-009 - METROMEDIA FIBER NETWORK - SHORELINE PERMITL2000-009 METROMEDIA FIBER NETWORKS • CITYWIDE- PACIFIC FIBERLINK .....*nmoorlo,Plinativomoboo.WI* MEMO TO FILE FROM: Art Pederson DATE: April 6, 2000 RE: Resolution and closing of Metromedia File L2000 -009 FILE HISTORY File opened by Planner Michael Jenkins, March 2000. Issue was the possible need for a Shoreline Substantial Development Permit for work proposed by Metromedia Fiber Networks in multiple areas of the shoreline zone. Originally Michael felt that the proposed work — the pulling of fiber optic cable through existing conduit, some of which was in the shoreline zone — required a Shoreline Substantial Development Permit. He felt that regardless of the impact of the work and since it would clearly cost more than the $2500 threshold for "substantial development" (see SMA) a permit was required. Original attorney for Metromedia, Andrew Salter of Miller Nash, wrote Michael on March 8, 00 why he felt that interpretation was wrong. File was transferred to Planner Art Pederson. I researched the RCW and WAC of the SMA and came to the same conclusion as Mr. Salter. Interpretation was supported by Planning Manager Jack Pace. By this time Katherine Laird of Davis Wright Tremaine became the representative for the applicant. I told her of my interpretation provided that the scope of work truly be only the pulling of cable and no construction of new vaults or removal of dirt etc. Ms.Laird was told that a permit would not be required if she sent a letter clarifying that no work of this type would be done. Received Ms Laird's letter March 29, 00. File closed April 6, 2000 LA \VYEIZS Davis- Wright Tremaine 'iLP ANCHORAGE BELLEVUE CHARLOTTE HONOLULU LOS ANGELES NEW YORK PORTLAND SAN FRANCISCO SEATTLE WASHINGTON, D.C. SHANGHAI KATHERINE KRAMER LAIRD (206)628 -7718 E -MAIL: katherinelaird@dwt.com dwt.com 2600 CENTURY SQUARE 1501 FOURTH AVENUE SEATTLE, WA 981 0 1 -1 688 March 28, 2000 Mr. Art Pederson, Assistant Planner City of Tukwila Department of Community Development 6300 Southcenter Blvd. Tukwila, WA 98188 TEL (206) 622 -3150 FAX (206) 628 -7699 www.dwt.com R",,r@-.~NED MAR 2 0 2000 Di~\(E;Liir'i.tii ;; l' 4 Re: Shoreline determination regarding Metromedia Fiber Network pulling of fiber through existing infrastructure Dear Art: I am writing to confirm the information you shared with me yesterday regarding an outstanding shoreline issue that you were considering. By way of background, Metromedia is seeking a franchise agreement with the City that would allow it to pull fiber through pipes and other infrastructure that already exists within the rights of way of the City. The infrastructure LR OU3(, we would be using was installed by Pacific Fiber Link or examp e. question arose as o� whether a shoreline substantial development permit was necessary to merely pull fiber. Yesterday when we spoke you confirmed that the City agrees that the act of pulling fiber is not "development," as defined by the Shoreline Management Act regulations, and thus does not require a substantial development permit. In turn, you asked me to confirm that Metromedia is not proposing any trenching or other construction that would constitute regulated development under the SMA. Metromedia is not proposing at this time any construction that would constitute development as defined by the regulations. By now Frank Iriarte in Public Works has received several copies of the plans for the proposed work. Basically, Metromedia will access the existing pipes and boxes through manholes within the City's rights of way. The Metromedia fiber is pulled through conduits within the existing pipes. No new construction is required to complete the proposed work. F: \DOCS \52836\ l \00009LTR. DOC Seattle z �w Wes' J .U' U0: to 0 cnw w =: J I- N lL w 0. u< =d: Z� I--0 Z ►—. 0, O .C22; 0 I•-' w w. I- -`e- U- - 0' .Z P s;. 0I- z Ea Mr. Art Pederson March 28, 2000 Page 2 I trust this explanation is satisfactory. If you need additional information beyond what is already shown on the work plans, or any other information, please do not hesitate to call me. Thank you for your prompt attention to resolution of this shoreline question. We appreciate your assistance. KKL/kl Cc: Robin Hauer Thomas Stames Thomas Derkas Dave Roos F: \DOCS \52836\ 1 \00009LTR. DO C Seattle Very truly yours, Davy right Tre aine LLP K erine amer Laird w – • M I lLL1b.,,R NASH MILLER, NASH, WIENER, HAGER & CARLSEN LLP Andrew 1I. Salter salter@millernash.com March 8, 2000 ATTORNEYS AT LAW VIA FACSIMILE AND U.S. MAIL Michael Jenkins City of Tukwila Public Works Department 6300 South Center Boulevard Suite 100 Tukwila, WA 98188 RECEIVE D WIAR 1 0 2000 COMMUNITY_ DEVELOPMENT Subject: Metromedia Fiber Network Services, Inc. Dear Mr. Jenkins: Miller Nash LLP 4400 Two Union Square 601 Union Street Seattle, WA 98101 -2352 (206) 622 -8484 (206) 622 -7485 fax 3500 U.S. Bancorp Tower 111 S.W. Fifth Avenue Portland, OR 97204-3699 (503)224.5858 (503) 224 -0155 fax 900 First Interstate Tower 900 Washington Street Post Office Box 694 Vancouver, WA 98666-0694 (360) 699 -4771 (360) 693 -2911 fax As you know, we represent Metromedia Fiber Network Services, Inc. ( "Metromedia "). This letter is intended to memorialize the substance of our recent telephone conversations and to provide you with a written explanation why we believe that a shoreline substantial development permit is not required for Metromedia's proposal to pull fiber optic cable through an existing conduit previously installed by Pacific Fiber Link pursuant to Shoreline Substantial Development Permit No. 1998 -NW- 10160. Under the Shoreline Management Act of 1971, as amended ( "SMA "), a shoreline substantial development permit is normally required for any "substantial development" on shorelines of the state. RCW 90.58.140(2). A "substantial development" is any "development" of which the total cost or fair market value exceeds $2,500 or any "development" which materially interferes with the normal public use of the water or shorelines of the state. RCW 90.58.030(3)(e). Metromedia's proposal, involving only the pulling of cable through existing ducting, will not materially interfere with the normal public use of the water or shorelines of the state. The critical question in determining whether a shorelines permit is required for Metromedia's proposed action is whether it meets the definition of a "development." A "development" is defined as: ... a use consisting of the construction or exterior alteration of structures; dredging; drilling; dumping; filling; removal of any sand, gravel, or minerals; bulkheading; driving of piling; placing of obstructions; or any project of a permanent or temporary nature which interferes with the normal public use of the z Q _ (- ~ W: tY 2 00 to 0 cow w= • LL, w 0. g ¢• Sd z I— Ill Z �. I— 0: Z Ir. 0 N' ww U Z. I.LI 0 z .,r MI LLER NAS1� MILLER, NASH, WIENER, HAGER & CARLSEN LLP Michael Jenkins March 8, 2000 Page 2 ATTORNEYS AT LAW surface of the waters overlying land subject to this chapter at any state of water level; RCW 90.58.030(3)(d). The regulations implementing the SMA, WAC 173 -27 -010 et seq., similarly define "development" as the construction or exterior alteration of structures. See WAC 173 -27- 030(6). The work proposed by Metromedia is not a development under this definition and thus is not a "substantial development" requiring a shorelines permit. Certainly Metromedia's proposal involves no dredging, drilling, dumping, filling, removal of sand, gravel or minerals, bulkheading, driving of piling, or placing of obstructions, and the project will not interfere with the normal public use of the waters. Nor does the work constitute "construction or exterior alteration of structures." Nothing new is being constructed and there is no exterior alteration of any structure. It is only the interior of existing ducting that will be modified by Metromedia's installation of fiber optic cable. The Washington State Supreme Court has adopted this analysis. In Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 828 P.2d 549 (1992), the Supreme Court held that before there can be a "substantial development" for which a permit is required under the Shoreline Management Act, there must first be a "development" as defined by RCW 90.58.030(3)(d). In that case, the Supreme Court determined that the removal of three railroad trestles which crossed Cowiche Creek, did not constitute a "development" under the Shoreline Management Act. The court specifically determined that the trestle removal was not an "exterior alteration of a structure" within the meaning of the statute. In analyzing the SMA's definition of "development," the court held that each of the words comprising that definition must be given its plain and ordinary meaning. Consistent with that reasoning, it is significant that the SMA requires an exterior alteration of a structure in order to constitute a "development." Here, there is simply no exterior alteration. Accordingly, we do not believe a shoreline permit should be required for Metromedia's proposal. Please give me a call at your convenience so we can discuss this issue. cc: Metromedia Very truly yours, Andrew H. Salter z ~z rt w J U, UO: LU J =. iv g a` co n = a. II z�. �O Z ui a 1- = - U' ..z w • -I- O ~ z