Chapter 17.77
WIRELESS COMMUNICATIONS FACILITIES

Sections:

17.77.010    Definitions.

17.77.020    Policies, purpose and goals.

17.77.030    Applicability – Permit required.

17.77.040    Application for siting new wireless communications facilities.

17.77.050    Application fee.

17.77.060    Applications for renewal or modification of permit or lease.

17.77.070    Permit review process.

17.77.080    Permit or lease fee.

17.77.085    Applications and review process for eligible facilities modifications.

17.77.090    General conditions – Location of wireless communications facilities – Co-location – Separation distance between WCFs – Notice.

17.77.100    Testing of wireless communications facilities required.

17.77.110    Variance.

17.77.010 Definitions.

For the purposes of this chapter, the following definitions apply.

“Antenna” means one or more rods, panels, discs, or similar devices used for the transmission or reception of radio frequency signals, which may include omni-directional antennas (rod), directional antennas (panel) and parabolic antennas (disc).

“Applicant” means any person, firm or entity seeking to place a WCF within the boundaries of the city.

“Base station” means a structure or equipment at a fixed location that enables FCC-licensed or authorized wireless communications between user equipment and a communications network. The term does not encompass a tower as defined herein or any equipment associated with a tower. “Base station” includes, without limitation:

1. 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. Radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration (including distributed antenna systems (“DAS”) and small-cell networks).

3. Any structure other than a tower that, at the time the relevant application is filed with the city under this subsection, supports or houses equipment described in subsections (1) and (2) of this definition that has been reviewed and approved under the applicable zoning or siting process, or under another state or local regulatory review process, even if the structure was not built for the sole or primary purpose of providing that support.

The term does not include any structure that, at the time the relevant application is filed with the city under this subsection, does not support or house equipment described in subsections (1) and (2) of this definition.

“Co-location” means use of a common WCF or a common support structure by two or more wireless communications providers or by one wireless communications provider for more than one WCF or more than one type of communications technology. In the context of an eligible facilities request, co-location means 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.

Communications/Telecommunications. “Telecommunications” may be used interchangeably with “communications” throughout this chapter.

“Concealment technology” means the use of both existing and future technology through which a WCF is designed to resemble an object other than a WCF, which is already present in the local environment, such as a tree, a street light or a traffic signal. “Concealment technology” may include landscaping or screening the WCF.

“Eligible facilities request” means any request for modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or base station, involving:

1. Co-location of new transmission equipment;

2. Removal of transmission equipment; or

3. Replacement of transmission equipment.

“Eligible support structure” means any tower or base station as defined in this section; provided, that it is existing at the time the relevant application is filed with the city under this chapter.

“Equipment enclosure” means any above-ground or underground structure used to contain ancillary equipment for a WCF which includes but is not limited to cabinets, shelters, a build-out of an existing structure and other similar structures.

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

“FCC” means the Federal Communications Commission.

“Guyed tower” means a type of tower that is supported by thin guy wires and upon which a WCF may be placed.

“Height,” when referring to a WCF, means the distance measured from original grade, as defined by CHMC 17.04.330, to the highest point on the WCF, including the antenna.

“Lattice tower” means a self-supporting tower constructed of crossed structural strips usually arranged to form a diagonal pattern of open spaces and upon which a WCF may be placed.

“Monopole” means a slender self-supporting tower upon which a WCF may be placed.

“Site” means the physical location for placement of all or a portion of a WCF. In the context of an eligible facilities request, for towers other than towers in the public rights-of-way, “site” means 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, further restricted to that area in proximity to the structure and to other transmission equipment already deployed on the ground.

Substantial Change. A modification substantially changes the physical dimensions of an eligible support structure if it meets any of the following criteria:

1. 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. 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;

2. 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;

3. 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;

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

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

6. 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 subsections (1) through (4) of this definition.

“Tower” means any structure built for the sole or primary purpose of supporting any FCC-licensed or authorized antennas and their associated facilities, 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.

“Transmission equipment” means equipment that facilitates transmission for any FCC-licensed or authorized wireless communication service, 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.

“Type I WCF” means all WCFs which do not fit within the definition for a Type II WCF.

“Type II WCF” means a WCF which meets all of the following criteria:

1. The location of the WCF, including antenna(s), does not exceed the height of the support structure;

2. Any related equipment enclosure is both connected to and made part of the antenna and is located on the support structure; and

3. The area of the WCF, as calculated from the elevation view with the greatest area, shall not exceed one and one-half square feet. In calculating the area of the WCF, the calculation shall include any equipment enclosure and antenna(s), but shall not include the existing support structure or any electrical meter for the WCF.

“User” or “permitted user” means any person, firm or entity that obtains permission from the city by way of a public place use permit or lease to locate a WCF within the boundaries of the city.

“Wireless communications provider” or “provider” means any person, firm or entity which is licensed by the FCC to provide wireless communications services.

“Wireless communications facilities (WCFs)” means any unstaffed facility for the transmission and/or reception of wireless communications services, usually consisting of antennas, an equipment enclosure, transmission cables, and a support structure to achieve the necessary elevation. WCFs do not include facilities which are placed upon a private residence and which are solely for the use of the residence owner or occupant. As used in this chapter, unless a WCF is specifically identified as either a Type I or Type II WCF, the term WCF shall include both Type I and Type II WCFs.

“Wireless communications services” shall mean any personal wireless services as defined in the Telecommunications Act of 1996, which includes FCC licensed commercial wireless communications services including cellular, personal communications services (PCS), specialized mobile radio (SMR), enhanced specialized mobile radio (ESMR), paging, and similar services that currently exist or that may be developed in the future. (Ord. 941 § 1, 2016; Ord. 805 § 1, 1999; Ord. 770 § 3, 1997)

17.77.020 Policies, purpose and goals.

A. Preservation of Character of City. A primary objective of this chapter is to maintain the existing residential and visual aesthetic character of the city of Clyde Hill and its neighborhoods. Protecting the visual character of the city includes the protection of views within the city which create a special character for the community, high property values and a tax base sufficient to support the city’s operations.

B. Goals. The goals of this chapter include:

1. Providing adequate sites for locating WCFs and sufficient infrastructure to provide adequate communications service to city residents or others when in the city;

2. Encouraging the location of WCFs on existing nonresidential structures, including utility poles, water towers, traffic signals and street lights, rather than new support structures;

3. Encouraging co-locations and site sharing of new and existing WCFs;

4. Requiring concealment technology to be used to mitigate the intrusion of WCFs;

5. Facilitating the use of public property and structures for WCFs, where possible, to reduce the impact of WCFs upon residential property; and

6. Encouraging the provision of wireless communications services on a competitively neutral basis. (Ord. 941 § 1, 2016; Ord. 805 § 1, 1999; Ord. 770 § 3, 1997)

17.77.030 Applicability – Permit required.

A. Applicability. The placement of any WCF in any location within the city is subject to the provisions of this chapter and the provisions of Chapter 12.14 CHMC regarding public place use permits.

B. Permit Required. Any person, firm or entity holding a license from the FCC to provide wireless communications services who desires to place a WCF within the boundaries of the city must apply to the city for a public place use permit. The application for such public place use permit must comply with CHMC 17.77.040.

C. Lease Required. In addition to the requirement of obtaining a public place use permit, if all or a portion of the WCF will be located upon a city-owned structure, or upon non-right-of-way property which is either city-owned or city-leased, the user shall be required to enter into a lease agreement with the city for the use of the city property. The execution of a lease agreement will not excuse the user from the requirement to obtain a public place use permit for siting WCFs within the city.

D. Nothing in this chapter will relieve a user from its duty to comply with CHMC Title 15, relating to buildings and construction. (Ord. 941 § 1, 2016; Ord. 805 § 1, 1999; Ord. 770 § 3, 1997)

17.77.040 Application for siting new wireless communications facilities.

Applications for a public place use permit or lease for the siting of a WCF within the boundaries of the city shall include the following:

A. Name, address, phone number and authorized signature on behalf of the applicant;

B. If the proposed site is not owned by the city, the name, address and phone number of the owner and a copy of the agreement between the owner and the applicant for locating the WCF on that site;

C. The requisite application fee;

D. Information necessary to demonstrate that the WCF will provide services to residents of the city and to others while within the city limits of Clyde Hill;

E. Drawings and other engineering data to demonstrate the configuration of the proposed WCF;

F. Details regarding the use of concealment technology for the proposed WCF;

G. Photo-simulations of the proposed WCF, illustrating the extent to which the proposed WCF(s) will be visible from surrounding streets, public open spaces, and nearby residential areas;

H. A discussion of alternatives considered to meet the telecommunications needs of the applicant and the reasons for selection of the proposed site;

I. A master WCF plan, including detailed maps, showing the precise locations and characteristics of all WCFs serving any portion of the city, which are owned or controlled by the applicant, indicating coverage areas for current and future WCFs, and showing the precise location and characteristics of all WCFs owned or controlled by the applicant which will send signals to or receive signals from the applicant’s WCFs which serve the city. The applicant shall provide the city with any updates to these documents within three months of their creation;

J. Information necessary to demonstrate the applicant’s compliance with FCC rules, regulations and requirements which are applicable to the proposed WCF(s); and

K. Every applicant for a new WCF shall demonstrate that the applicant has made a reasonable attempt to find a co-location site acceptable to engineering standards and that no co-location site was practically or economically feasible. (Ord. 941 § 1, 2016; Ord. 805 § 1, 1999; Ord. 770 § 3, 1997)

17.77.050 Application fee.

The application fee for the initial siting of a WCF, a modification of an existing WCF or an eligible facilities modification, and the renewal of the public place use permit and lease (if applicable) shall be set by resolution of the city council. The application fee and any consultant fees incurred by the city in processing the application shall be paid to the city prior to the issuance of the permit or lease. (Ord. 941 § 1, 2016; Ord. 805 § 1, 1999; Ord. 770 § 3, 1997)

17.77.060 Applications for renewal or modification of permit or lease.

A. Applications for the renewal of a public place use permit or lease without modification shall include the following:

1. Name, address, phone number and authorized signature on behalf of the applicant;

2. If the site is not owned by the city, a copy of the agreement between the owner and the applicant for continuing to locate the WCF on that site;

3. The requisite application fee;

4. An up-to-date copy of the applicant’s master WCF plan, including detailed maps, showing the precise locations and characteristics of all WCFs serving any portion of the city, which are owned or controlled by the applicant, indicating coverage areas for current and future WCFs, and showing the precise location and characteristics of all WCFs owned or controlled by the applicant which will send signals to or receive signals from the applicant’s WCFs which serve the city. The applicant shall provide the city with any updates to these documents within three months of their creation;

5. Information necessary to demonstrate the applicant’s continued compliance with FCC rules, regulations and requirements which are applicable to the proposed WCF(s), including a copy of the test results as required by CHMC 17.77.100 which demonstrate that the WCF continues to meet FCC requirements; and

B. The user with an existing permitted WCF located at a particular site shall have a right of first refusal to renew its permit and lease (if applicable) for continued use of that same site over users who do not have WCFs currently located at that site. A renewal without modifications shall be processed in accordance with CHMC 17.77.080.

C. If the applicant does not assert that its modification request is covered by Section 6409(a) of the Spectrum Act and CHMC 17.77.085, the applicant may file an application for modification of its public place use permit and lease amendment if required, which shall include all information required in subsection (A) of this section and:

1. Details regarding any changes in concealment technology which would significantly increase the concealment of the WCF and plans for implementing such technology; and

2. Drawings and other engineering data to demonstrate the new proposed configuration of the WCF.

The application shall be processed in accordance with CHMC 17.77.070. (Ord. 941 § 1, 2016; Ord. 805 § 1, 1999; Ord. 770 § 3, 1997)

17.77.070 Permit review process.

A. Upon receipt of a completed application for a public place use permit for the siting of a WCF, the city council may, in its discretion, grant the public place use permit and lease (if applicable) to any person, firm, or entity licensed by the FCC to allow the placement of a WCF upon or in any location permitted in CHMC 17.77.090(B), relating to administration of development regulations.

B. Permits for siting WCFs are not subject to the processing requirements set forth in CHMC Title 19. However, the city shall act upon a completed permit application within a reasonable period of time, taking into account the nature and scope of the application.

C. The permit and lease (if applicable) shall be issued upon an annual basis only and shall expire on December 31st of each year.

D. Permits or leases for locating each WCF within the city shall be authorized only on a case-by-case basis as approved by the city council. In approving such permit and lease (if applicable), the applicant must comply with all provisions of this chapter and additional consideration shall be given to the following nonexclusive items:

1. Aesthetics;

2. Environmental impacts, other than the environmental impacts of radio frequency emissions which comply with FCC regulations;

3. Direct and indirect benefit inuring to the city and its residents;

4. Potential detriment to the public and nearby residences;

5. Available space; and

6. Safety of the proposed improvement.

E. Unless the WCF is complete and operational within 180 days after a public place use permit is granted under this chapter, the permit shall be null and void. This 180-day period may be extended by the city administrator, in the administrator’s discretion, for good cause shown.

F. Written Decision. The denial by the city council of an application for a public place use permit or lease or a renewal of a public place use permit or lease shall be in writing and shall include findings, conclusions and the decision of the city council. Any judicial appeal taken from the decision of the city council shall be filed and served within 21 days after the date the written decision issues. (Ord. 941 § 1, 2016; Ord. 805 § 1, 1999; Ord. 770 § 3, 1997)

17.77.080 Permit or lease fee.

A. The annual permit fee for a public place use permit for locating a WCF within the city shall be set by resolution of the city council.

B. The annual lease fee (if applicable) for locating a WCF on a city-owned structure or upon non-right-of-way property owned or leased by the city shall be as negotiated between the applicant and the city, taking into consideration any mitigation measures, the aesthetic impact of the WCF, the cost of concealment technology employed, and in-kind contributions the applicant is offering. The lease fee may be renegotiated annually by the city.

C. Submission of the renewal application, application fee, and the annual permit fee, and, if applicable, a deposit equal to the lease fee of the previous year, to the city on or before November 1st of each calendar year shall be deemed to be an application for renewal of the annual permit or lease. The permit or lease shall be deemed to be renewed unless the city council determines at or before its regular meeting of January of each respective calendar year that the permit and, if applicable, lease should not be renewed. In such event, the annual permit and/or lease fee shall be returned to the user.

D. If the user fails to pay or otherwise comply with the terms and conditions of the negotiated permit or lease agreement or any of the applicable provisions of this chapter within 10 days after the date the city issues notice of such failure to the user, then the permit or lease shall terminate. Upon such termination, the user’s rights shall cease and may not be reinstated without the submission of the new application, together with double the amount of the application fees, double the amount of the permit or lease fees stated in the 10-day notice, and the approval of the application by the city council. If the new application is received, along with double the application fees and permit or lease fees, and neither the city nor the applicant has taken action to remove the facilities pursuant to CHMC 17.77.090(A)(9), public notice shall not be required under CHMC 17.77.090(E); provided, that no modifications are being requested. (Ord. 941 § 1, 2016; Ord. 917 § 1, 2011; Ord. 805 § 1, 1999; Ord. 770 § 3, 1997)

17.77.085 Applications and review process for eligible facilities modifications.

A. Applications for an Eligible Facilities Modification.

1. Applicability. This section implements Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 (“Spectrum Act”) as interpreted by the Federal Communications Commission’s (“FCC”) Acceleration of Broadband Deployment Report & Order, which requires local governments to approve any eligible facilities request for modification of an existing tower or base station that does not result in a substantial change to the physical dimensions of such tower or base station. This section shall apply only to eligible facilities requests for an eligible support structure that is a legal conforming or legal nonconforming structure at the time a completed eligible facilities request is submitted to the city. To the extent that the nonconforming structures and use provisions of the Clyde Hill Municipal Code would operate to prohibit or condition approval of an eligible facilities request otherwise allowed under this section, such provisions are superseded by the provisions of this section and shall not apply. This section shall not apply to an eligible facilities request which requests replacement of the existing tower or base station. This section shall also not apply where the WCF requested to be modified is located upon a city-owned structure, or upon non-right-of-way property which is either city-owned or city-leased.

2. Application Requirements. No eligible facilities request shall be deemed complete unless it is in writing, accompanied by the application fee, includes the required submittals, and is attested to by the authorized person submitting the application on behalf of the applicant. The application shall include the following submittals, unless waived by the city administrator:

a. Name, address, phone number and authorized signature on behalf of the applicant;

b. If the site is not owned by the city, a copy of the agreement between the owner and the applicant consenting to the proposed modification;

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

d. 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;

e. 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 as originally constructed and approved by the city or as of the most recent approved modification prior to the passage of the Spectrum Act, whichever is greater;

f. If the applicant proposes a modification to an eligible support structure subject to preexisting restrictions or requirements imposed by the city, including concealment restrictions or requirements, a copy of such preexisting restrictions together with a certification that the proposed modification conforms to such restrictions; provided, that such certification shall have no application to the extent the proposed modification relates solely to an increase in height, width, addition of cabinets, or new excavation, that does not result in a substantial change in the physical dimensions of the eligible support structure;

g. If the applicant proposes a modification to an eligible support structure subject to preexisting concealment restrictions or requirements, the applicant shall set forth the facts 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, the 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;

h. 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;

i. If the applicant proposes a modification to an eligible support structure that will (i) include any excavation, (ii) 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 (iii) would protrude from the edge of a nontower eligible support structure, the following shall be required:

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;

j. If the applicant proposed a modification to the eligible support structure that includes hardening through structural enhancement, the following shall be required:

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;

k. If the applicant proposes a modification to a tower, the following shall be required:

A stamped report by a state of Washington 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:

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

ii. The basis for the calculation of capacity; and

iii. 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;

l. If the applicant proposes a modification to a base station, the following shall be required:

A stamped report by a state of Washington registered professional engineer demonstrating that the base station, with the proposed modifications, will comply with applicable structural, electrical and safety codes;

m. 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, the following shall be required:

A detailed site plan and drawings, showing the true north point, a graphic scale and, drawn to an appropriate decimal scale, indicating and depicting: (i) the location, elevation and dimensions of the existing eligible support structure, (ii) the location, elevation and dimensions of the existing transmission equipment, (iii) the location, elevation and dimensions of the transmission equipment, if any, proposed to be co-located or that will replace existing transmission equipment, (iv) the location, elevation and dimensions of any proposed new equipment cabinets and the intended use of each, (v) any proposed modification to the eligible support structure, (vi) the location of existing structures on the site, including fencing, screening, trees, and other significant site features, and (vii) 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;

n. 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 described the specific factors that obviate the requirement for an environmental assessment.

3. Time Frame for Review. An eligible facilities request shall be deemed received by the city upon the date such application is filed with the city clerk in person during the city’s regular business hours and accompanied by the applicable permit review fee as established in the city’s master fee resolution. Within 60 days of the date on which an applicant submits a request seeking approval under this section, the city administrator shall approve the application unless it determines that the application is not covered by this section or proposes a substantial change to the physical dimensions of the eligible support structure.

4. Tolling of the Time Frame for Review. The 60-day period begins to run when the application is filed, and may be tolled only by mutual agreement or in cases where the city administrator determines that the application is incomplete.

a. To toll the time frame for incompleteness, the city must provide written notice to the applicant within 30 days of receipt of the application, clearly and specifically delineating all missing documents or information.

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

c. Following a supplemental submission, the city 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 same procedure used for the first notice of incompleteness. Except as may be otherwise agreed to by the applicant and the city, second or subsequent notices of incompleteness may not specify missing documents or information that were not delineated in the original notice of incompleteness.

d. Notices of incompleteness from the city shall be deemed received by the applicant upon the earlier of personal service upon the applicant, three days from deposit of the notice in the U.S. Mail, postage prepaid, to the applicant, or by electronic mail if the applicant has agreed to receive notices in such a manner.

e. In the event that after submittal of the application, the applicant modifies the eligible facilities request, the modified application shall be considered a new application subject to commencement of a new application review period.

5. Review of Application. Within 60 days of the date on which an applicant submits a request seeking approval under this section, the city administrator shall approve, and may not deny, an eligible facilities request for modification of an eligible support structure that does not substantially change the physical dimensions of the such structure. No public notice is required pursuant to CHMC 17.77.090(E). Eligible facilities requests shall be exempt from SEPA review as provided in WAC 197-11-800(25). An eligible facilities request shall be denied upon determination that the request is not subject to this section or will substantially change the physical dimensions of an eligible support structure. In the event the city fails to approve or deny a request under this section within the time frame for review, accounting for any tolling, the request shall be deemed granted. The deemed grant does not become effective until the applicant notifies the city in writing after the review period has expired, accounting for any tolling, that the application has been deemed granted.

6. 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. Any eligible facilities request may be conditioned upon compliance with such codes and other laws.

7. Expiration of Approval. An approved eligible facilities request shall be valid for a term of 180 days from the date of issuance or the date the application is deemed approved.

8. Remedies. Notwithstanding any other provision in the city code, no administrative review is provided for review of a decision to condition, deny, or approve an eligible facilities request application. The 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 approval.

B. Should the city determine that an applicant’s eligible facilities request is not covered by Section 6409(a) of the Spectrum Act, the presumptively reasonable time frame under 47 U.S.C. § 332(c)(7), as prescribed by the FCC’s Shot Clock order, will begin to run from the issuance of the city’s decision that the application is not a covered request. To the extent such information is necessary, the city may request additional information from the applicant to evaluate the application under 47 U.S.C. § 332(c)(7), pursuant to the limitations applicable to other reviews under that statute. (Ord. 941 § 1, 2016)

17.77.090 General conditions – Location of wireless communications facilities – Co-location – Separation distance between WCFs – Notice.

No public place use permit or lease shall be granted by the city council unless all of the provisions in this section are met, unless the applicant obtains a variance of such condition(s) from the city council.

A. General Conditions for Locating WCFs within the City.

1. Monopoles, lattice towers and guyed towers for use as structural support for WCFs are prohibited within the city.

2. The height of WCFs is limited to the maximum allowable height in the underlying zone. However, WCFs may be placed upon existing structures identified in subsection (B) of this section which exceed the height limitations for the zone. The height of the WCFs shall not increase the height of the existing structures identified in subsection (B) of this section by more than 15 feet, including the antenna. In measuring the height of the existing structure, any antennas already located on top of the structure shall not be included.

3. Concealment Technology.

a. Permitted users shall employ concealment technology in installing the WCFs. Such concealment technology may include the use of existing or new vegetation to screen the WCFs, including antenna(s), equipment enclosure, and other components, including but not limited to electrical meter, from observation from rights-of-way or residential property.

b. All equipment facilities for ancillary equipment necessary for the operation of WCFs shall be located underground or integrated with an existing building. Underground equipment facilities shall not extend more than 12 inches above original grade and shall be promptly screened by approved vegetation. However, if the equipment facilities are not visible from the rights-of-way or from adjoining property, the city council may, in their sole discretion, permit the equipment facilities to be placed above ground. Underground or above-ground equipment facilities shall not be allowed where an existing building is available for placement of the ancillary equipment or where such facilities would interfere with existing uses of public land, such as established sidewalks, walking trails, and other pedestrian areas.

c. All users shall apply any readily available and applicable advances in technology to all existing WCFs when such advances increase the concealment of the WCF. Failure to apply new concealment technology may be a basis for nonrenewal of a permit or lease, if such new concealment technology will significantly increase the concealment of the WCF.

d. All Type II WCFs shall be placed as unobtrusively as possible on the support structure.

4. A wireless communications provider with an existing WCF within the city that provides wireless communications services within the city may change the location of the WCF only if the provider can demonstrate that such change is reasonably necessary to providing wireless communications services within the city. For modifying the location of an existing WCF, a new public place use permit and lease (if applicable) shall be required.

5. Each provider with WCFs located within the city shall demonstrate to the city its compliance with all rules, regulations and requirements of the FCC which are applicable to its WCF(s) within the city.

6. WCFs shall not produce noise in excess of the limitations set forth in Chapter 173-60 WAC, as it now exists or may hereafter be amended, which are hereby incorporated by this reference.

7. WCFs shall not emit visible light, except where beacons or similar marking lights are required to comply with Federal Aviation Administration regulations, or where, for the purposes of concealment, the WCF is made part of a streetlight or traffic signal.

8. Any permitted user shall be required, as a condition of the permit or lease, to ensure that its improvements and the use of the facilities do not cause electronic interference with other electronic equipment within the city. In the event of electronic interference caused by a permitted user, that user shall be required to remedy and eliminate said interference at the user’s own cost and expense. The user must cease use of its WCF, other than testing required to identify and/or remedy the interference, during the time period in which such user is attempting to remedy and eliminate the interference. In the event the user is unable to eliminate the interference within a reasonable time, not to exceed 20 days after receipt of written notice from the city, the user’s permit or lease shall be deemed terminated. Upon termination, the user shall immediately cease operation of its equipment. If the city hires outside consultants to locate or remedy electronic interference caused by a permitted user, such user shall reimburse the city for the actual cost of such consultants.

9. Termination. Within 30 days of termination of a public place use permit or lease for locating a WCF, the user shall, at its own expense, remove all wireless communications equipment and restore the site to its original condition. However, all improvements which are located upon and attached to city property, excluding wireless communications equipment, but including buildings, equipment facilities, and landscaping, shall become the property of the city upon termination of the public place use permit or lease and shall be left in place upon termination unless otherwise directed by the city.

B. Location of WCFs. WCFs shall be permitted only in the locations set forth below and shall not be permitted to be located upon residential property.

1. On a currently existing structure located within the right-of-way of any principal, minor or collector arterial within the city as set forth in CHMC 12.04.020. In locating a WCF on such currently existing structure, the city may allow the user to remove a currently existing structure and replace it in the same location with a similar structure;

2. On the four water towers which are in existence at the time this chapter is adopted;

3. On a structure, building, or non-right-of-way property which is either city-owned or city-leased;

4. In addition to the other locations set forth in this section, Type II WCFs may also be placed upon an existing structure located within the right-of-way on any local access road within the city, as classified in CHMC 12.04.020.

C. Co-Location. The city shall have the authority to grant permission to other users, who have obtained a public place use permit or lease pursuant to this chapter, the right to use any improvements jointly with any other permitted user. Any public place use permit or lease issued pursuant to this chapter shall contain a provision reserving this authority to the city and a granting of consent to the same by the permitted user. Any permitted user shall be required, as a condition of the permit or lease, to ensure that its improvements and the use of the facilities do not cause electronic interference or otherwise prevent preexisting users from using the premises and facilities. In the event of electronic interference caused by a new permitted user, the provisions of subsection (A)(8) of this section shall apply.

D. Separation Distance between WCFs.

1. WCFs shall be separated from other WCFs as set forth below:

a. Type I WCFs shall be a minimum of 1,000 lineal feet from other Type I WCFs.

b. Type II WCFs shall be a minimum of 500 lineal feet from other Type II WCFs.

2. In calculating the separation between WCFs, multiple WCFs which are co-located on a single support structure shall count as a single WCF. Water towers are considered support structures for the purposes of this section.

3. WCFs which are currently located closer to other WCFs than is permitted by this section may remain in place and be renewed annually; however, if the user abandons the continuous use of the WCF, as provided in Chapter 17.60 CHMC, or the public place use permit or lease is not renewed by the city, the WCF shall be required to comply with this section.

4. WCFs which are located outside of the city boundaries shall be counted in applying this subsection to determine whether new WCFs will be permitted but shall not be counted to determine whether an existing WCF will be renewed.

E. Public Notice. No permit or lease shall be granted by the city council unless the applicant has met all of the public notice requirements set forth below. The public notice requirement set forth in this subsection shall not apply to WCF renewals, unless the WCF will be modified.

1. Posting. A single notice board shall be placed by the applicant in a conspicuous place adjacent to the site where the proposed WCF will be located. Additionally, a copy of the notice shall be posted in a conspicuous place at the City Hall. An affidavit of posting shall be submitted by the applicant prior to the date for city council consideration of the application.

2. Mailed Notice. The city shall mail postcard notices to the owners of all real property within a radius of 300 feet of the subject land or property. The requirements of this subsection shall be satisfied if the notices are mailed to the person(s) shown to be the owners of such property on the records of the office of the King County department of records and elections, and if mailed to the last address of such record owner.

3. Time of Notice. All posted notices shall be posted not less than 30 days prior to the date for city council consideration. All mailed notices shall be mailed not less than 10 days’ prior to the date for city council consideration.

4. Form of Notice. Mailed and posted notices shall state the name and address of the applicant, the location for the proposed WCF, provide a general description of the proposed WCF, set forth the date and time of city council consideration of the application, and provide any other information determined appropriate by the city.

5. Expense of Notice. The applicant shall reimburse the city for the costs of carrying out the notice requirements set forth in this subsection. (Ord. 941 § 1, 2016; Ord. 805 § 1, 1999; Ord. 770 § 3, 1997)

17.77.100 Testing of wireless communications facilities required.

A. Each permitted user shall conduct tests, at the user’s expense, necessary to establish the level of radio frequency radiation created by the WCF. The purpose of this testing is to ensure that the radio frequency radiation is in compliance with the FCC’s regulations and standards.

B. Each user shall test the WCF location prior to complete installation of the WCF (to establish a “baseline”) and again immediately after the WCF becomes fully operational. The user shall test the WCF every April and every October to measure the radio frequency radiation created by the WCF.

C. All such tests required by this section shall be performed by a licensed electrical engineer, or by a person with equivalent capabilities approved by the city.

D. Copies of each and every radio frequency radiation test shall be submitted to the city on the first day of the month following the month in which the test is performed. Such test results shall be certified by a licensed electrical engineer. No renewal of a permit or lease shall be granted unless the user submits the test results to the city prior to the city council’s consideration of the renewal application.

E. If at any time the radio frequency radiation test shows that the radio frequency radiation emanating from the WCF exceeds the standards established by the FCC, the user shall immediately disconnect the WCF and notify the city. The WCF shall not be reconnected until the user demonstrates that corrections have been completed to reduce the radio frequency radiation to levels permitted by the FCC. (Ord. 941 § 1, 2016; Ord. 805 § 1, 1999; Ord. 770 § 3, 1997)

17.77.110 Variance.

A. No variance shall be granted to permit the placement of a WCF upon private property devoted to residential use or to permit the placement of WCFs in any location other than is specifically permitted under CHMC 17.77.090(B), except that a variance may be granted for locating WCFs upon property used for school or church purposes.

B. When adherence to the provisions of this chapter, other than location, prevents the applicant from providing communications services within the city, a variance may be permitted provided each of the criteria outlined below are met. However, there shall be no variance for location except as provided in subsection (A) of this section. Any provider seeking a variance shall apply in writing to the city council. Such application shall be made on the form provided by the city.

C. The burden to establish the need for the variance shall be on the applicant. In order to establish a need for the variance the applicant shall be required to establish each of the following:

1. The obstruction or inability to receive a communications signal under the parameters of this chapter is caused by factors beyond the property owner’s or applicant’s control;

2. A WCF cannot be constructed within the parameters of this chapter which will provide communications services to persons located or traveling within the city. In establishing this element, the applicant shall demonstrate efforts made for placement of the WCF in accordance with this chapter; and

3. Without the variance the applicant will not be able to provide communications services to persons located or traveling within the city. Pictures, drawings (to scale), maps and/or manufacturer’s specifications, and other technical information shall be provided to demonstrate to the city that the variance is necessary to provide service to persons located or traveling within the city.

D. Variance Criteria. No application for a variance from the provisions of this chapter shall be granted unless the city council finds that all of the following criteria have been met.

1. The variance will not constitute a grant of special privilege inconsistent with the limitations upon other providers of similar wireless communications services;

2. The variance is necessary for the applicant to provide wireless communications services to persons located or traveling within the city;

3. The applicant cannot find a suitable location inside or outside the boundaries of the city for locating a WCF to provide service to persons located or traveling within the city; and

4. The granting of the variance will not be materially detrimental to the public health, safety and welfare, substantially offensive to the rights of other persons living in or near the area involved or substantially injurious to the property or improvements in the vicinity in which the proposed WCF will be located. In determining whether the applicant has met these criteria, the board shall not consider the effects of radio frequency emissions which comply with FCC regulations.

E. Any variance granted under this section shall require that the proposed materials, shape, and color of the antenna(s) and/or support structure proposed shall minimize negative visual impacts on adjacent or nearby residential uses to the greatest extent reasonably possible. The use of certain materials, shapes and colors or other concealment technology may be required in order to minimize visual impacts of the proposed WCF. Further, for variances granted for the construction of a new support structure, the city council in its sole discretion may require the applicant to construct the support structure and/or other facilities in such a way as to allow another WCF to co-locate. When another WCF co-locates on a support structure constructed under this section, the applicant may charge no more than is “just, fair, reasonable and sufficient” as defined by RCW 80.54.040 (pertaining to attachments to transmission facilities).

F. Obtaining a variance under this section does not excuse the applicant from the requirement to obtain a public use place permit and lease (if applicable) from the city council.

G. The application fee for the variance under this section shall be set by resolution of the city council.

H. The provisions set forth in CHMC 17.72.040 and 17.72.050 regarding expiration of variances and lapsing of variances shall be applicable to all variances granted under this chapter. (Ord. 941 § 1, 2016; Ord. 805 § 1, 1999; Ord. 770 § 3, 1997)