Chapter 19.10
SMALL WIRELESS FACILITIES

Sections:

19.10.010    General provisions.

19.10.020    Application requirements for small wireless facilities.

19.10.030    Review process.

19.10.040    Permit requirements.

19.10.050    Modifications to small wireless facilities.

19.10.060    Concurrent permit.

19.10.070    Appeals.

19.10.080    Removal of abandoned small wireless facilities.

19.10.010 General provisions.

A. Small wireless facilities shall not be considered nor regulated as essential public facilities.

B. Small wireless facilities located outside of the public rights-of-way may be either a primary or a secondary use. A different use of an existing structure on the same lot shall not preclude the installation of a small wireless facility.

C. No person may place, construct, or modify a wireless communication facility subject to this chapter without first obtaining the required permit(s), issued in accordance with this chapter.

D. Any request to deviate from this chapter shall be based on the modifications set forth in this chapter.

E. For the purposes of this chapter, the term “director” shall mean the director of planning and community development or her or his designee. (Ord. 2019-11 § 5, 2019)

19.10.020 Application requirements for small wireless facilities.

A. In order to manage its rights-of-way in a thoughtful manner which balances the need to accommodate new and evolving technologies with the preservation of the natural and aesthetic environment of the city, the city of Bainbridge Island has adopted this administrative process for the deployment of small wireless facilities.

B. Any application for a small wireless facility both inside and outside of the right-of-way shall comply with the following application requirements for a small wireless facility permit described in this chapter. Applications must also comply with the requirements of Chapter 18.10A BIMC. For small wireless facilities inside the right-of-way, the applicant must also comply with the requirements pursuant to Chapters 19.02 and 19.04 BIMC.

C. Consistent with BIMC 19.10.060, all permits, leases, and right-of-way use authorizations necessary for the deployment of small wireless facilities and, if applicable, an application for a master permit, shall be reviewed concurrently and a decision rendered to the full extent feasible consistent with the time frames established within federal and state law.

D. The small wireless facility permits and any other land use permit application submitted pursuant to this chapter shall be reviewed and issued by the director. Applicants are encouraged and expected to provide all related applications in one submittal, unless they have already obtained a master permit. The director is authorized to establish master permit and other application forms to gather the information required by these ordinances from applicants and to determine the completeness of the application process as provided herein.

1. Master Permit. The process typically begins with and depends upon approval of a master permit for the use of the public right-of-way to deploy small wireless facilities if any portion of the applicant’s facilities are to be located in the right-of-way. An applicant with a master permit for the deployment of small wireless facilities in the city may proceed to directly apply for a small wireless facility permit and related approvals. An applicant at its option may utilize phased deployment.

2. Small Wireless Facility Permits. The application requires specification of the small wireless facility components and locations as further required in the small wireless facility permit application described in subsection E of this section. Prior to the issuance of a small wireless facility permit, the applicant shall pay a permit fee in an amount as determined by the city council and adopted by resolution.

3. Associated Permit(s). The applicant shall attach all associated permit requirements, such as applications or checklists required under the critical areas, shoreline, or SEPA ordinances. Applications for deployment of small wireless facilities in design zones or for new poles shall comply with the requirements in BIMC 18.10A.060.

4. Leases. An applicant who desires to attach a small wireless facility to any pole or structure which is owned by the city shall include an application for a lease as a component of its application. The city council authorizes the director to approve leases for small wireless facilities for city-owned light poles located in the right-of-way. Leases for the use of other public property, structures or facilities shall be submitted to the city council for approval.

E. The following information shall be provided by all applicants for a small wireless facility permit:

1. The application shall provide specific locational information, including GIS coordinates of all proposed small wireless facilities, and specify where the small wireless facilities will utilize existing, replacement, or new poles or towers, existing buildings, or other structures. Ground-mounted equipment (if authorized pursuant to Chapter 18.10A BIMC), conduit, junction boxes, and fiber and electrical connections necessary for and intended for use in the deployment shall also be specified regardless of whether the additional facilities are to be constructed by the applicant or leased from a third party. Detailed schematics and visual renderings of the small wireless facilities, including engineering and design standards, shall be provided by the applicant. The application shall have sufficient detail to identify:

a. The location of overhead and underground public utility, telecommunication, cable, water, adjacent lighting, sewer drainage, and other lines and equipment within 50 feet of the proposed project area (which the project area shall include the location of the fiber source and power source). Further, the applicant shall include all existing and proposed improvements related to the proposed location, including but not limited to poles, driveways, ADA ramps, equipment cabinets, street trees, and structures within 50 feet from the proposed project area.

b. The specific trees, structures, improvements, facilities, lines and equipment, and obstructions, if any, that applicant proposes to temporarily or permanently remove or relocate and a landscape plan for protecting, trimming, removing, replacing, and restoring any trees or areas to be disturbed during construction.

c. The construction drawings shall also include the applicant’s plan for electric and fiber utilities, all conduits, cables, wires, handholes, junctions, meters, disconnect switches and any other ancillary equipment or construction necessary to construct the small wireless facility, to the extent to which the applicant is responsible for installing such electric and fiber utilities, conduits, cables, and related improvements. Where another party is responsible for installing such electric and fiber utilities, conduits, cables, and related improvements, applicant’s construction drawings will include such utilities to the extent known at the time of application, but at a minimum applicant must indicate how it expects to obtain fiber and electric service to the small wireless facility.

d. Compliance with the aesthetic requirements of BIMC 18.10A.050.

2. The applicant must show written approval from the owner of any pole or structure for the installation of its small wireless facilities on such pole or structure. To the extent that the pole or structure is not owned by the applicant, the applicant shall demonstrate in writing that they have authority from the pole owner to install the small wireless facility on the pole or structure. Such written approval shall include approval of the specific pole, engineering and design standards, as well as assurances that the specific pole can withstand wind and seismic loads, from the pole owner, unless the pole owner is the city. Submission of the lease agreement between the pole owner and the applicant is not required. If the proposed small wireless facility is not within the rights-of-way, the applicant must provide written approval from the property owner. For city-owned poles or structures, the applicant must obtain a lease from the city prior to or concurrent with the small wireless facility permit application and must submit as part of the application the information required in the lease for the city to evaluate the usage of a specific pole.

3. The applicant can batch multiple small wireless facility sites in one application. The applicant is encouraged to batch the small wireless facility sites within an application in a contiguous service area.

4. Any application for a small wireless facility permit which contains an element which is not exempt from SEPA review shall simultaneously apply under Chapter 43.21C RCW and Chapter 16.04 BIMC. Further, any application proposing small wireless facilities in shoreline management zones (pursuant to Chapter 16.12 BIMC) or in critical areas (pursuant to Chapter 16.20 BIMC) must indicate that the application is exempt or comply with the review processes in such codes.

5. The applicant shall submit a sworn affidavit signed by an RF engineer with knowledge of the proposed project affirming that the small wireless facilities will be compliant with all FCC and other governmental regulations in connection with human exposure to radio frequency emissions for every frequency at which the small wireless facility will operate. If facilities which generate RF radiation necessary to the small wireless facility are to be provided by a third party, then the small wireless facility permit shall be conditioned on an RF certification showing the cumulative impact of the RF emissions on the entire installation. The applicant may provide one emissions report for the entire small wireless deployment if the applicant is using the same small wireless facility configuration for all installations within that batch or may submit one emissions report for each subgroup installation identified in the batch.

6. The applicant shall provide proof of FCC and other regulatory approvals required to provide the service(s) or utilize the technologies sought to be installed.

7. A professional engineer licensed by the state of Washington shall certify in writing, over his or her seal, that the construction plans of the small wireless facilities and the antenna support structure or pole and foundation are designed to reasonably withstand typical loading requirements as well as wind and seismic loads.

8. Proof of a valid city of Bainbridge Island business license.

9. Recognizing that small wireless facility technology is rapidly evolving, the director is authorized to adopt and publish standards for the technological and structural safety of city-owned structures and to formulate and publish application questions for use when an applicant seeks to attach to city-owned structures.

10. Such other information as the director, in his/her discretion, shall deem appropriate to effectively evaluate the application based on technical, engineering, and aesthetic considerations. (Ord. 2019-11 § 5, 2019)

19.10.030 Review process.

A. Review. The following provisions relate to review of applications for a small wireless facility permit:

1. The city will review the permit application to determine compliance with this chapter.

2. Vertical clearance shall be reviewed by the director to ensure that the small wireless facilities will not pose a hazard to other users of the rights-of-way.

3. Replacement poles and new poles shall comply with the Americans with Disabilities Act (ADA), city construction and sidewalk clearance standards, traffic warrants, city ordinances, and state and federal statutes and regulations in order to provide a clear and safe passage within the rights-of-way. Further, the location of any replacement pole or new pole must: be physically possible, cannot obstruct vehicular or pedestrian traffic or the clear zone, not interfere with utility or safety fixtures (e.g., fire hydrants, traffic control devices), and not adversely affect the public welfare, health, or safety.

4. No equipment shall be operated so as to produce noise in violation of Chapter 16.16 BIMC.

5. Small wireless facilities may not encroach onto or over private property or property outside of the right-of-way without the property owner’s express written consent.

B. Final Review. Small wireless facility permits will be reviewed and approved or denied by the director.

C. Eligible Facilities Requests. The design approved in a small wireless facility permit shall be considered concealment elements and such facilities may only be expanded upon an eligible facilities request described in Chapter 18.11 BIMC when the modification does not defeat the concealment elements of the small wireless facility.

D. Review of Facilities. Review of the site locations proposed by the applicant shall be governed by the provisions of 47 U.S.C. Sections 253 and 332 and other applicable statutes, regulations, and case law. Applicants for master permits and small wireless facility permits shall be treated in a competitively neutral and nondiscriminatory manner with other service providers, utilizing supporting infrastructure that is functionally equivalent, that is, service providers whose facilities are similarly situated in terms of structure, placement, or cumulative impacts. Small wireless facility permit review under this chapter shall neither prohibit nor have the effect of prohibiting the ability of an applicant to provide telecommunications services.

E. Withdrawal. Any applicant may withdraw an application submitted pursuant to BIMC 19.10.020 at any time, provided the withdrawal is in writing and signed by all persons who signed the original application or their successors in interest. When a withdrawal is received, the application shall be deemed null and void. If such withdrawal occurs prior to the director’s decision, then reimbursement of fees submitted in association with said application shall be prorated to withhold the amount of city costs incurred in processing the application prior to time of withdrawal. If such withdrawal is not accomplished prior to the director’s decision, there shall be no refund of all or any portion of such fee.

F. Supplemental Information. Failure of an applicant to provide supplemental application information as requested by the director within 60 days of notice by the director shall be deemed a denial of that application, unless an extension period has been approved by the director. (Ord. 2019-11 § 5, 2019)

19.10.040 Permit requirements.

A. Compliance. The grantee of any permit shall comply with all of the requirements within the small wireless facility permit.

B. Post-Construction As-Builts. Within 30 days after construction of the small wireless facility, the grantee shall provide the city with as-builts of the small wireless facilities demonstrating compliance with the permit and site photographs.

C. Permit Time Limit. Construction of the small wireless facility must be completed within 12 months after the approval date by the city. The grantee may request one extension, to be limited to six months, if the applicant cannot construct the small wireless facility within the original 12-month period.

D. Site Safety and Maintenance. The grantee must maintain the small wireless facilities in safe and working condition. The grantee shall be responsible for the removal of any graffiti or other vandalism and shall keep the site neat and orderly, including but not limited to following any maintenance or modifications on the site.

E. Operational Activity. The grantee shall commence operation of the small wireless facility no later than six months after construction. The grantee may request one extension for an additional six-month period if the grantee can show that such operational activity is delayed due to the inability to connect to electrical or backhaul facilities. (Ord. 2019-11 § 5, 2019)

19.10.050 Modifications to small wireless facilities.

A. If a grantee desires to make a modification to an existing small wireless facility, including but not limited to expanding or changing the antenna type, increasing the equipment enclosure, placing additional pole-mounted or ground-mounted equipment, or modifying the concealment elements, then, depending on the proposed modification, the applicant shall apply for a small wireless facility permit or an eligible facilities request, if appropriate, under Chapter 18.11 BIMC.

B. A small wireless facility permit shall not be required for routine maintenance and repair of a small wireless facility, or the replacement of an antenna or equipment of similar size, weight, and height; provided, that such replacement does not defeat the concealment elements used in the original deployment of the small wireless facility, does not impact the structural integrity of the pole, and does not require pole replacement. Further, a small wireless facility permit shall not be required for replacing equipment within the equipment enclosure or reconfiguration of fiber or power to the small wireless facility. Right-of-way construction permits or building permit may be required for such routine maintenance, repair or replacement consistent with Chapters 19.02 and 19.04 BIMC. (Ord. 2019-11 § 5, 2019)

19.10.060 Concurrent permit.

A. As an exercise of police powers pursuant to RCW 35.99.040(2), if the applicant requires a new master permit to utilize the right-of-way, the master permit review and approval may run concurrently with the small wireless facility permit review if requested by the applicant, and the review shall be governed by the time limits established by federal law for small wireless facilities.

B. General standards applicable to the use of the rights-of-way described in Chapters 19.02 and 19.04 BIMC shall apply to all small wireless facility permits. (Ord. 2019-11 § 5, 2019)

19.10.070 Appeals.

Small wireless facilities permit decisions are final decisions appealable to the Kitsap County superior court. The applicant may proceed forward with a permitted project that has been appealed at the applicant’s own risk and subject to any subsequent court decision that may impact the applicant’s ability to install such facilities. (Ord. 2019-11 § 5, 2019)

19.10.080 Removal of abandoned small wireless facilities.

A. Any small wireless facility that, after the initial operation of the facility, is not used for the purpose for which it was intended at the time of filing the application for a continuous period of 12 months shall be considered abandoned.

B. The wireless telecommunication carrier of such abandoned small wireless facility shall remove the same within 90 days of receipt of a notice from the city notifying the owner or operator of such abandonment.

C. Whenever a facility is abandoned or ceases operation, the entire facility shall be removed, including, but not limited to, all antennas, antenna supports, feeder lines, base stations, electronic equipment, and the pole upon which the small wireless facility is located, unless the city determines that such pole shall remain. Failure to remove such an abandoned facility shall result in declaring the small wireless facility a public nuisance.

D. If there are two or more users of a single pole, then this section shall not become effective until all users cease using the pole. (Ord. 2019-11 § 5, 2019)