Chapter 18.11
ELIGIBLE FACILITIES MODIFICATIONS

Sections:

18.11.010    Title.

18.11.020    Adoption of findings and conclusions.

18.11.030    Purpose and intent.

18.11.040    Definitions.

18.11.050    Applicability – Relationship to other rules and regulations.

18.11.060    Permit classification.

18.11.070    Application submittal requirements – Determination of completeness.

18.11.080    Review of application – Approval.

18.11.090    Substantial change criteria.

18.11.100    Nonconforming structure – Termination.

18.11.110    Enforcement – Violation.

18.11.010 Title.

This chapter shall be known and referred to as the “eligible facilities modification code” or “EFM code.” (Ord. 2015-23 § 2, 2015)

18.11.020 Adoption of findings and conclusions.

The recitals set forth in the ordinance adopting this code are adopted as findings and conclusions of the city council. (Ord. 2015-23 § 2, 2015)

18.11.030 Purpose and intent.

The purposes and intent of this chapter are to:

A. To implement Section 6409 of the “Middle Class Tax Relief and Job Creation Act of 2012” (the “Spectrum Act”) (Public Law 112-96; codified at 47 U.S.C. § 1455(a)) which requires the city to approve any eligible facilities request for a modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or base station;

B. To implement the FCC rules set forth at 47 C.F.R. Part 1 (Part 1 – Practice and Procedure) new Subpart CC § 1.40001 (Wireless Facility Modifications), which rules implement Section 6409 of the Spectrum Act (“Section 6409”);

C. To establish procedural requirements and substantive criteria applicable to review and approval or denial of applications for an eligible facilities modification;

D. To ensure that application submittal requirements are related to information reasonably necessary to the determination of whether or not the proposed modification will result in a substantial change in the physical dimensions of the eligible support structure;

E. To exempt those facilities modifications approved under this chapter as eligible facilities requests from zoning and development regulations that are inconsistent with or preempted by Section 6409;

F. To preserve the city’s right to continue to enforce and condition approvals under this chapter on compliance with generally applicable building, structural, electrical, and safety codes and with other laws codifying objective standards reasonably related to health and safety;

G. To promote timely decisions under this chapter;

H. To ensure that decisions are made consistently and predictably;

I. To incorporate provisions of RCW 43.21C.0384 that exempt eligible facilities modifications from review under RCW 43.21C.030(2)(c) (State Environmental Policy Act);

J. To recognize that Section 6409(a)(1) of the Spectrum Act operates to preempt any provision of the State Environmental Policy Act (Chapter 43.21C RCW) to the extent that any such provision, including RCW 43.21C.030(2)(c), would prohibit a city from approving any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station; and

K. To provide for termination of eligible facilities modifications approved pursuant to this chapter as nonconforming structures in the event that Section 6409(a) of the Spectrum Act is found to be unconstitutional or otherwise determined to be invalid or unenforceable and such modifications would otherwise have been in derogation of development regulations in place at the time of receipt of a completed application. (Ord. 2015-23 § 2, 2015)

18.11.040 Definitions.

The following definitions shall apply in the interpretation and enforcement of this chapter, unless the context clearly requires otherwise. Any term or phrase not defined herein shall have the meaning that is given to that term or phrase in Chapter 18.36 BIMC. When not inconsistent with the context, words used in the present tense include the future, words in the plural include the singular, and words in the singular include the plural. The word “shall” is always mandatory and not merely directory and the word “may” is always discretionary. References to governmental entities (whether persons or entities) refer to those entities or their successors in authority. If specific provisions of law, regulation or rule referred to herein be renumbered or amended, then the reference shall be read to refer to the renumbered or amended provision.

A. “Approval authority” is the planning and community development director or other public official, or his or her designee, who has authority under the city code to administratively issue project permit approvals.

B. “Applicant” shall mean and refer to the person, and such person’s successor in interest, owning and/or operating the transmission equipment proposed in an eligible facilities modification application to be co-located, removed or replaced.

C. “Authorized person” is the person, employees, agents, consultants, and contractors, authorized in writing by an applicant to complete and submit an eligible facilities modification application on behalf of an applicant and who is authorized to receive any notices on behalf of an applicant of any action taken by the city regarding the application.

D. “Base station” shall mean and refer to the structure or equipment at a fixed location that enables wireless communications, licensed or authorized by the FCC, between user equipment and a communications network. The term does not encompass a tower as defined in this chapter or any equipment associated with a tower.

1. The term includes, but is not limited to, equipment associated with wireless communications services such as private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul.

2. The term includes, but is not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration (including distributed antenna systems and small-cell networks).

3. The term includes any structure other than a tower that, at the time an eligible facilities modification application is filed with the city under this chapter, supports or houses equipment described in subsections D.1 and 2 of this section, and that has been reviewed and approved under the applicable zoning or siting process, or under another state, county or local regulatory review process, even if the structure was not built for the sole or primary purpose of providing such support.

4. The term does not include any structure that, at the time a completed eligible facilities modification application is filed with the city under this section, does not support or house equipment described in subsections D.1 and 2 of this section.

E. “City” shall mean and refer to the city of Bainbridge Island.

F. “City code” shall mean and refer to the ordinances of the city.

G. “Co-location” shall mean and refer to the mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signals for communications purposes.

H. “Conceal” or “concealment” shall mean and refer to eligible support structures and transmission facilities designed to look like some feature other than a wireless tower or base station.

I. “Deemed approved” shall mean and refer to an eligible facilities modification application that has been deemed approved upon the city’s failure to act, and has become effective, as provided pursuant to the FCC eligible facilities request rules.

J. “Eligible facilities modification application” or “application” shall, unless the context clearly requires otherwise, mean and refer to a written document submitted to the city pursuant to this chapter for review and approval of a proposed facilities modification.

K. “Eligible facilities modification” shall mean and refer to any proposed facilities modification that has been determined pursuant to the provisions of this chapter to be subject to this chapter and which does not result in a substantial change in the physical dimensions of an eligible support structure.

L. “Eligible facilities modification permit” or “permit” shall, unless the context clearly requires otherwise, mean and refer to a written document issued by the approval authority pursuant to this chapter approving an eligible facilities modification application.

M. “Eligible support structure” shall mean and refer to any existing tower or base station as defined in this chapter; provided, that it is in existence at the time the eligible facilities modification application is filed with the city under this chapter.

N. “Existing” shall, for the purpose of this chapter and as applied to a tower or base station, mean and refer to a constructed tower or base station that has been reviewed and approved under the applicable zoning or siting process of the city, or under another state, county or local regulatory review process; provided, that a tower that has not been reviewed and approved because it was not in a zoned area when it was built, but was lawfully constructed, is existing for purposes of this definition.

O. “Proposed facilities modification” shall mean and refer to a proposal submitted by an applicant to modify an eligible support structure which the applicant asserts is subject to review under Section 6409, and involving:

1. Co-location of new transmission equipment;

2. Removal of transmission equipment; or

3. Replacement of transmission equipment.

P. “FCC” shall mean and refer to the Federal Communications Commission or its successor.

Q. “FCC eligible facilities request rules” shall mean and refer to 47 C.F.R. Part 1 (Part 1 – Practice and Procedure), Subpart CC § 1.40001 as established pursuant to its Report and Order in, In re Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, WT Docket Nos. 13-238, 13-32; WC Docket No. 11-59; FCC 14-153, or as may be thereafter amended.

R. “Section 6409” shall mean and refer to Section 6409 of the Spectrum Act, defined below.

S. “Site” shall, for towers other than towers in the public rights-of-way, mean and refer to the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site, and, for other eligible support structures, shall mean and be further restricted to that area in proximity to the structure and to other transmission equipment already deployed on the ground.

T. “Small cell facility” shall mean and refer to a personal wireless services facility that meets both of the following qualifications:

1. Each antenna is located inside an antenna enclosure of no more than three cubic feet in volume or, in the case of an antenna that has exposed elements, the antenna and all of its exposed elements could fit within an imaginary enclosure of no more than three cubic feet; and

2. Primary equipment enclosures are no larger than 17 cubic feet in volume. The following associated equipment may be located outside the primary equipment enclosure and if so located are not included in the calculation of equipment volume: electric meter, concealment, telecom demarcation box, ground-based enclosures, battery back-up power systems, grounding equipment, power transfer switch, and cut-off switch.

U. “Small cell network” shall mean and refer to a collection of interrelated small cell facilities designed to deliver personal wireless services.

V. “Spectrum Act” shall mean and refer to the “Middle Class Tax Relief and Job Creation Act of 2012” (Public Law 112-96; codified at 47 U.S.C. § 1455(a)).

W. “Substantial change criteria” shall mean and refer to the criteria set forth in this chapter at BIMC 18.11.090.

X. “Transmission equipment” shall mean and refer to equipment that facilitates transmission for any wireless communication service licensed or authorized by the FCC, including, but not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, and regular and backup power supply. The term includes equipment associated with wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul.

Y. “Tower” shall mean and refer to any structure built for the sole or primary purpose of supporting any antennas and their associated facilities, licensed or authorized by the FCC, including structures that are constructed for wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul, and the associated site. (Ord. 2015-23 § 2, 2015)

18.11.050 Applicability – Relationship to other rules and regulations.

A. Sole and Exclusive Procedure. Except as may be otherwise provided in this chapter, and notwithstanding any other provisions in the city code, the provisions of this chapter shall be the sole and exclusive procedure for review and approval of a proposed facilities modification which the applicant asserts is subject to review under Section 6409. To the extent that other provisions of the city code establish a parallel process for review and approval of a project permit application for a proposed facilities modification, the provisions of this chapter shall control. In the event that any part of an application for project permit approval includes a proposed facilities modification, the proposed facilities modification portion of the application shall be reviewed under the provisions of this chapter. In the event that an application for project permit approval includes a proposal to modify an eligible support structure, and the applicant does not assert in the application that the proposal is subject to review under Section 6409, such proposal shall not be subject to review under this chapter and may be subject to review under other applicable provisions of the city code.

B. Nonconforming Structures. This chapter shall not apply to a proposed facility modification to an eligible support structure that is not a legal conforming or legal nonconforming structure at the time a competed eligible facilities modification application is filed with the city. To the extent that the nonconforming structures and use provisions of the city code would operate to prohibit or condition approval of a proposed facilities modification application otherwise allowed under this chapter, such provisions are superseded by the provisions of this chapter and shall not apply.

C. Replacement of Eligible Support Structure. This chapter shall not apply to a proposed facility modification to an eligible support structure that will involve replacement of a tower or base station.

D. First Deployment – Base Station. This chapter shall not apply to a proposed facility modification to a structure, other than a tower, that does not, at the time of submittal of the application, already house or support transmission equipment lawfully installed within or upon, or attached to, the structure.

E. Interpretation. Interpretations of this chapter shall be guided by Section 6409; the FCC eligible facilities request rules, the FCC’s Report and Order in, In re Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, WT Docket Nos. 13-238, 13-32; WC Docket No. 11-59; FCC 14-153; and BIMC 18.11.020 and 18.11.030.

F. SEPA Review. Unless otherwise provided by law or regulation, decisions pertaining to an eligible facilities modification application are not subject to, and are exempt from, the requirements of RCW 43.21C.030(2)(c), if:

1. The proposed facilities modification would not increase the height of the eligible support structure by more than 10 percent, or 20 feet, whichever is greater; or

2. The mounting of equipment that would involve adding an appurtenance to the body of the eligible support structure would not protrude from the edge of the structure more than 20 feet, or more than the width of the structure at the level of the appurtenance, whichever is greater;* or

3. The authority to condition or deny an application pursuant to Chapter 43.21C RCW is preempted, or otherwise supplanted, by Section 6409 of the Spectrum Act.

*Note: See RCW 43.21C.0384 and WAC 197-11-800(25).

G. Reservation of Authority. Nothing herein is intended or shall operate to waive or limit the city’s right to enforce, or condition approval on, compliance with generally applicable building, structural, electrical, and safety codes and with other laws codifying objective standards reasonably related to health and safety. (Ord. 2015-23 § 2, 2015)

18.11.060 Permit classification.

An eligible facilities modification permit shall be classified as an administrative permit subject to review and approval or denial by the approval authority. (Ord. 2015-23 § 2, 2015)

18.11.070 Application submittal requirements – Determination of completeness.

A. Purpose. This section sets forth the submittal requirements for an eligible facilities modification application (“EFM application”). The purpose of the submittal requirements is to ensure that the city has all information and documentation that is reasonably necessary to determine if the applicant’s proposed facilities modification will substantially change the physical dimensions of an eligible support structure. The submittal requirements are not intended to require the applicant to establish the need for the proposed modifications or to justify the business decision to propose such modifications.

B. Submittal Requirements. No EFM application shall be deemed complete unless it is in writing; accompanied by the applicable application and review fee; includes the required submittals; and attested to by the authorized person certifying the truth and accuracy of the information provided in the application. The application shall include the following submittals, unless waived by the approval authority:

1. The following contact information for the authorized person:

a. Name;

b. Title;

c. Mailing address;

d. Phone number; and

e. E-mail address (optional);

2. The following contact information for the applicant:

a. Legal and dba names, and if applicable, all states of incorporation;

b. Mailing address;

c. Contact phone number(s);

d. Washington State tax identification number;

e. The name and address of applicant’s registered agent; and

f. The names and home addresses of all principals or managing members if applicant is a noncorporate entity, such as a partnership or limited liability company;

3. An assertion that the proposed facilities modification is subject to review under Section 6409 of the Spectrum Act;

4. Copies of any environmental documents required by any federal agency. These shall include the environmental assessment required by 47 C.F.R. Part 1 (Part 1 – Practice and Procedure), Section 1.1307, as amended, or, in the event that an FCC environmental assessment is not required, a statement that describes the specific factors that obviate the requirement for an environmental assessment;

5. If the applicant is not the owner or person in control of the eligible support structure and/or site: An attestation that the owner or person in control of the eligible support structure and/or site has consented to the proposed facilities modification. If the eligible support structure is located in a public right-of-way, the applicant must also attest that applicant has authorization to install, maintain and operate transmission equipment in, under and above the public right-of-way;

6. If the applicant proposes a modification involving co-location of transmission equipment or the replacement of transmission equipment: Complete copies of the underlying land use approvals for siting of the tower or base station proposed to be modified, establishing that, at the time of submittal of the application, such tower or base station constituted an eligible support structure;

7. If the applicant proposes a modification that will result in an increase in height of the eligible support structure: Record drawings, as-built plans, or the equivalent, showing the height of the eligible support structure (a) as originally constructed and granted approval by the city or other applicable local zoning or similar regulatory authority; or (b) as of the most recent modification received by the city, or other local zoning or regulatory approval, prior to the passage of the Spectrum Act, whichever height is greater;

8. If the applicant proposes a modification to an eligible support structure, which structure, or proposed modification of the same, is subject to preexisting restrictions or requirements imposed by a reviewing official or decision-making body pursuant to authority granted under the city code, or an ordinance or a municipal code of another local government authority: A copy of the document (e.g., CUP or SUP) setting forth such preexisting restrictions or requirements together with a certification that the proposed facilities modification conforms to such restrictions or requirements; provided, that such certification shall have no application to the extent the proposed facilities modification relates solely to an increase in height, increase in width, addition of cabinets, or new excavation, that does not result in a substantial change in the physical dimensions of the eligible support structure;

9. If the applicant proposes a modification to an eligible support structure, which structure, or proposed modification of the same, is subject to preexisting concealment restrictions or requirements, or was constructed with concealment elements: Applicant shall set forth the facts and circumstances demonstrating that the proposed modification would not defeat the existing concealment elements of the eligible support structure. If the proposed modification will alter the exterior dimensions or appearance of the eligible support structure, applicant shall include a detailed visual simulation depicting how the eligible support structure will appear after the proposed modification is complete. The visual simulation shall depict to scale the eligible support structure in relation to the trees, landscaping and other structures adjacent to, or in the immediate vicinity of, the eligible support structure;

10. If the applicant proposes a modification that will protrude from the edge of a nontower eligible support structure: Record drawings, as-built plans, or the equivalent, showing at a minimum the edge of the eligible support structure at the location of the proposed modification;

11. If the applicant proposes a modification to an eligible support structure that will (a) include any excavation; (b) would result in a protrusion from the edge of a tower that exceeds an existing protrusion of any transmission equipment attached to a tower; or (c) would protrude from the edge of a nontower eligible support structure: A description of the boundaries of the site together with a scale drawing based on an accurate traverse, with angular and lineal dimensions, depicting the boundaries of the site in relation to the tower or base station proposed to be modified and depicting the proposed location, elevation and dimensions of the new or replacement transmission equipment. The city may require a survey by a land surveyor licensed in the state of Washington when, in the judgment of the approval authority, a survey is reasonably necessary to verify the boundaries of the site to determine if the proposed facilities modification would result in a substantial change in the physical dimensions of the eligible support structure;

12. If the applicant proposes a modification to the eligible support structure that includes hardening through structural enhancement: A technical report by a qualified engineer accredited by the state of Washington, demonstrating that the structural enhancement is performed in connection with and is necessary to support the proposed co-location, removal, or replacement of transmission equipment and conforms to applicable code requirements. The city may retain the services of an independent technical expert to review, evaluate, and provide an opinion regarding the applicant’s demonstration of necessity;

13. If the applicant proposes a modification to a tower: A stamped report by a Washington State-registered professional engineer demonstrating that the tower with the proposed modifications will comply with applicable structural, electrical and safety codes, including by way of example, and not limitation, EIA/TIA-222-Revision G, published by the American National Standards Institute (as amended), allowable wind speed for the applicable zone in which the tower is located, and describing the general structural capacity of the tower with the proposed modifications, including:

a. The number and type of antennas that can be accommodated;

b. The basis for the calculation of capacity; and

c. A written statement that the proposal complies with all federal guidelines regarding interference and ANSI standards as adopted by the FCC, including but not limited to nonionizing electromagnetic radiation (NIER) standards.

The city may retain the services of an independent technical expert to review, evaluate, and provide an opinion regarding the applicant’s demonstration of compliance;

14. If the applicant proposes a modification to a base station: A stamped report by a Washington State-registered professional engineer demonstrating that the base station, with the proposed modifications, will comply with applicable structural, electrical and safety codes;

15. If the applicant proposes a modification requiring alteration to the eligible support structure, excavation, installation of new equipment cabinets, or any other activities impacting or altering the land, existing structures, fencing, or landscaping on the site: A detailed site plan and drawings, showing the true north point, a graphic scale and, drawn to an appropriate decimal scale, indicating and depicting:

a. The location, elevation and dimensions of the existing eligible support structure;

b. The location, elevation and dimensions of the existing transmission equipment;

c. The location, elevation and dimensions of the transmission equipment, if any, proposed to be co-located or that will replace existing transmission equipment;

d. The location, elevation and dimensions of any proposed new equipment cabinets and the intended use of each;

e. Any proposed modification to the eligible support structure;

f. The location of existing structures on the site, including fencing, screening, trees, and other significant site features; and

g. The location of any areas where excavation is proposed showing the elevations, depths, and width of the proposed excavation and materials and dimensions of the equipment to be placed in the area excavated.

C. Waiver of Submittal Requirement. The approval authority may waive any submittal requirement upon determination that the required submittal, or part thereof, is not reasonably related to the substantial change criteria. A waiver, to be effective, must be in writing and signed by the approval authority.

D. When Received. An EFM application, and any supplemental submittals, shall be deemed received by the city upon the date such application or supplemental submittal is filed with the planning and community development department. An application, and any supplemental submittals, must be filed in person during regular business hours of the city and must be accompanied by the applicable permit review fee(s). Any application received by the city without contemporaneous payment, or deposit, of the applicable permit review fees will be rejected.

E. Completed Application – Determination – Tolling.

1. Determination of Completeness. The approval authority shall, within 30 days of receipt of the application, review the application for completeness. An EFM application is complete if it includes the applicable permit review fee(s) and contains all of the applicable submittal requirements set forth at subsection B of this section, unless waived by the approval authority pursuant to subsection C of this section. The determination of completeness shall not preclude the approval authority from requesting additional information or studies either at the time of the determination of completeness or subsequently if new or additional information is required, or substantial changes in the proposed action occur, or the proposed facilities modification is modified by applicant, as determined by the approval authority.

2. Incomplete Application. The approval authority shall notify the applicant within 30 days of receipt of the application that the application is incomplete. Such notice shall clearly and specifically delineate all missing documents or information.

3. Tolling Time Frame for Review. The application review period begins to run when the application is received, and may be tolled when the approval authority determines that the application is incomplete and provides notice as set forth below. The application review period may also be tolled by mutual agreement of the approval authority and applicant. The time frame for review is not tolled by a moratorium on the review of eligible facility modification applications.

a. To toll the time frame for review for incompleteness, the approval authority must provide written notice to the applicant within 30 days of the date of receipt of the application, clearly and specifically delineating all missing documents or information. Such delineated information is limited to submittals set forth in subsection B of this section and any supplemental information requested by the approval authority that is reasonably related to determining whether the proposed facilities modification will substantially change the physical dimension of an eligible support structure.

b. The time frame for review begins running again when the city is in receipt of applicant’s supplemental submission in response to the approval authority’s notice of incompleteness.

c. Following a supplemental submission, the approval authority shall have 10 days to notify the applicant that the supplemental submission did not provide the information identified in the original notice delineating missing information. The time frame is tolled in the case of second or subsequent notices pursuant to the procedures identified in this subsection E.3.c. Except as may be otherwise agreed to by the applicant and the approval authority, second or subsequent notices of incompleteness may not specify missing documents or information that were not delineated in the original notice of incompleteness.

d. A notice of incompleteness from the city will be deemed received by the applicant upon the earlier of personal service upon the authorized person, delivery by electronic mail to the authorized person (if such delivery is authorized for receipt of notice by the authorized person), or three days from deposit of the notice in the United States Mail, postage prepaid, in an envelope properly addressed to the authorized person using the address set forth in the application.

4. Modification of Application. In the event that after submittal of the application, or as a result of any subsequent submittals, applicant modifies the proposed facilities modification described in the initial application, the application as modified will be considered a new application subject to commencement of a new application review period; provided, that applicant and the approval authority may, in the alternative, enter into a mutually agreeable tolling agreement allowing the city to request additional submittals and additional time that may be reasonably necessary for review of the modified application. (Ord. 2015-23 § 2, 2015)

18.11.080 Review of application – Approval.

A. Review of Application. The approval authority shall review an EFM application to determine if the proposed facilities modification is subject to this chapter, and if so, if the proposed facilities modification will result in a substantial change to the physical dimensions of an eligible support structure.

B. Time Frame for Review. Within 60 days of the date on which the city receives an EFM application, less any time period that may be excluded under the tolling provisions of this chapter or a tolling agreement between the applicant and the approval authority, the approval authority shall approve the application and contemporaneously issue an eligible facilities modification permit (“EFM permit”) unless the approval authority determines that the application is not subject to this chapter, or the proposed facilities modification will substantially change the physical dimension of an eligible support structure.

C. Approval – Denial. An EFM application shall be approved, and an EFM permit issued, upon determination by the approval authority that the proposed facilities modification is subject to this chapter and that it does not substantially change the physical dimensions of an eligible support structure. An EFM application shall be denied upon determination by the approval authority that the proposed facilities modification is not subject to this chapter or will substantially change the physical dimensions of an eligible support structure. A proposed facilities modification will substantially change the physical dimensions of an eligible support structure if it meets any of the substantial change criteria as defined in BIMC 18.11.090.

D. Deemed Approved Application. Pursuant to the FCC eligible facilities request rules, an EFM application may be deemed approved upon the city’s failure to act. An application that has been deemed approved shall be and constitute the equivalent of an eligible facilities modification permit, except as may be otherwise determined by a court of competent jurisdiction, and shall be subject to generally applicable enforcement and compliance requirements in the same manner as an EFM permit issued pursuant to this chapter.

E. Denial of Application. A written denial of an EFM application setting forth the reasons for the denial shall be provided to the applicant.

F. Code Requirements. Any EFM permit issued pursuant to this chapter, and any application that has been deemed approved, shall be and is conditioned upon compliance with any generally applicable building, structural, electrical, and safety codes and other laws codifying objective standards reasonably related to health and safety. Violation of any such applicable code or standard shall be deemed to be a violation of the eligible facilities modification, permit, or deemed approved application.

G. Term of Eligible Facilities Modification Permit. An EFM permit issued pursuant to this chapter, and any deemed approved application, shall be valid for a term of 180 days from the date of issuance, or the date the application is deemed approved.

H. Remedies. Notwithstanding any other provisions in the city code, no administrative review is provided for review of a decision to condition, deny or approve an application. Applicant and the city retain any and all remedies that are available at law or in equity, including, by way of example and not limitation, those remedies set forth in the FCC eligible facilities request rules and remedies available under the Land Use Petition Act. In the event no other time period is provided at law for bringing an action for a remedy, any action challenging a denial of an application or notice of a deemed approved remedy, shall be brought within 30 days following the date of denial or following the date of notification of the deemed approved remedy.*

*Note: The FCC Report and Order in, In re Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, WT Docket Nos. 13-238, 13-32; WC Docket No. 11-59; FCC 14-153, Par’s 234 – 236, provides that the city shall have 30 days from the date of notification by the applicant of a deemed granted remedy to bring a legal action in a court of competent jurisdiction to challenge the deemed granted remedy, and that the applicant shall have 30 days from the date of denial to bring a legal action in a court of competent challenging a denial of the application. (Ord. 2015-23 § 2, 2015)

18.11.090 Substantial change criteria.

A proposed facilities modification will substantially change the physical dimensions of an eligible support structure if it meets any of the following criteria:

A. For towers other than towers in the public rights-of-way, it increases the height of the tower by more than 10 percent or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed 20 feet, whichever is greater; for other eligible support structures, it increases the height of the structure by more than 10 percent or more than 10 feet, whichever is greater;

B. Changes in height should be measured from the original support structure in cases where deployments are or will be separated horizontally, such as on buildings’ rooftops; in other circumstances, changes in height should be measured from the dimensions of the tower or base station, inclusive of originally approved appurtenances and any modifications that were approved prior to the passage of the Spectrum Act;*

C. For towers other than towers in the public rights-of-way, it involves adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than 20 feet, or more than the width of the tower structure at the level of the appurtenance, whichever is greater; for other eligible support structures, it involves adding an appurtenance to the body of the structure that would protrude from the edge of the structure by more than six feet;

D. For any eligible support structure, it involves installation of more than the standard number of new equipment cabinets for the technology involved, but not to exceed four cabinets; or, for towers in the public rights-of-way and base stations, it involves installation of any new equipment cabinets on the ground if there are no preexisting ground cabinets associated with the structure, or else involves installation of ground cabinets that are more than 10 percent larger in height or overall volume than any other ground cabinets associated with the structure; and:

1. It entails any excavation or deployment outside the current site;

2. It would defeat the concealment elements of the eligible support structure; or

3. It does not comply with conditions associated with the siting approval of the construction or modification of the eligible support structure or base station equipment; provided, however, that this limitation does not apply to any modification that is noncompliant only in a manner that would not exceed the thresholds identified in this section.

*Note: The FCC rules refer to the date of passage of the Spectrum Act. The Spectrum Act was enacted on February 22, 2012. Presumably the FCC intended to refer to the date of enactment as the date of passage. (Ord. 2015-23 § 2, 2015)

18.11.100 Nonconforming structure – Termination.

A. Application. The provisions of this section shall apply to any facilities modification constructed, installed, placed or erected pursuant to an eligible facilities modification permit, or pursuant to a deemed approved remedy, which facilities modification did not conform to zoning and/or development regulations, exclusive of this chapter, in effect at the time the completed eligible facilities modification application was filed.

B. Nonconforming Structure Determination. A facilities modification to which this section applies is subject to termination as a nonconforming structure upon the following conditions:

1. Final, Nonappealable Decision. An appellate court, in a final and nonappealable decision, determines that Section 6409(a)(1) of the Spectrum Act is unconstitutional or otherwise determined to be invalid or unenforceable; and

2. Notice of Nonconforming Structure Determination. The city provides written notice to the applicant that the city has determined that the facilities modification did not conform to zoning and/or development regulations, exclusive of this chapter, in effect at the time the completed eligible facilities modification application was filed and that the facilities modification constitutes a nonconforming structure pursuant to the provisions hereof and must be made conforming or the facilities modification terminated.

C. Conformance – Termination. Upon receipt of notice of the city’s nonconforming structure determination, applicant shall abate the nonconformance by either conforming the site to the zoning and development regulations in effect at the time the completed eligible facilities modification application was filed, or removing the facilities modification and returning the site to the condition that existed prior to the construction, installation, placement or erection of the facilities modification. The time period for conformance shall be one year from the date of the city’s notice of the nonconforming structure determination.

D. Health and Safety Codes. Nothing in this section shall relieve the applicant from compliance with applicable building, structural, electrical, and safety codes and with other laws codifying objective standards reasonably related to health and safety.

E. Administrative Appeal. The applicant, or its successors or assigns, may appeal the city’s determination of nonconformance to the city hearing examiner by filing a notice of appeal within 14 calendar days of the date of the determination of nonconformance, excluding holidays. (Ord. 2015-23 § 2, 2015)

18.11.110 Enforcement – Violation.

Compliance with the provisions of this chapter is mandatory. Any violation hereof is subject to enforcement under the code enforcement provisions set forth in city code. (Ord. 2015-23 § 2, 2015)