Chapter 22C.250
WIRELESS COMMUNICATION FACILITIES

Sections:

22C.250.010    Purpose.

22C.250.020    Wireless communication facilities – Applicability.

22C.250.030    Wireless communication facilities – Exemptions from land use review.

22C.250.040    Wireless communication facilities – Permit required.

22C.250.050    Wireless communication facilities – Application requirements.

22C.250.060    Wireless communication facilities – Siting hierarchy.

22C.250.070    Wireless communication facilities – General requirements.

22C.250.080    Wireless communication facilities – Design standards.

22C.250.090    Amateur radio antennas.

22C.250.100    Small wireless deployment.

22C.250.110    Small wireless permit application requirements.

22C.250.120    Small wireless – Designated design districts.

22C.250.130    Small wireless deployments – Design and concealment standards.

22C.250.140    Small wireless – Review process.

22C.250.150    Small wireless – Permit requirements.

22C.250.160    Small wireless – Modifications and minor deviation approval.

22C.250.170    Small wireless facilities – Consolidated permit.

22C.250.180    Time limits for review.

22C.250.190    Wireless communication permit process/processing timelines.

22C.250.200    Eligible facilities request.

22C.250.210    Substantial change criteria.

22C.250.220    Administrative decision.

22C.250.230    Recovery of city costs.

22C.250.240    Maintenance of facilities.

22C.250.250    Testing of WCFs required – Radio frequency radiation.

22C.250.260    Testing of WCFs required – Noise emissions.

22C.250.270    Security.

22C.250.280    Technical evaluation.

22C.250.290    Interference.

22C.250.300    Cessation of use.

22C.250.310    Revocation or termination of permit.

22C.250.320    Notice and duty to cure.

22C.250.330    Hearing.

22C.250.010 Purpose.

The purpose of this chapter is to:

(1) Establish clear regulations for the siting and design of wireless communication facilities consistent with federal regulations.

(2) Promote the health, safety, and general welfare of the public by regulating the siting of WCFs.

(3) Minimize impacts of WCFs and small cell wireless facilities on surrounding areas by establishing standards for location, structural integrity, and compatibility.

(4) Encourage the location and co-location of wireless communication equipment on existing structures.

(5) Minimize visual, aesthetic, public safety, and environmental and wildlife effects.

(6) Accommodate the growing need and demand for wireless communication services.

(7) Provide WCFs, small cell wireless facilities, and associated infrastructure a regulatory process that ensures that wireless communication providers are able to serve the city and its residential, educational, public safety and all other commercial users, as well as visitors, who use wireless services as well as providing consumers a choice of providers that compete on the basis of cost with continuous improvements in quality, reliability, and innovation.

(8) Respond to the policies embodied in the Telecommunications Act of 1996 in such a manner as not to unreasonably discriminate between providers of functionally equivalent personal wireless services or to prohibit or have the effect of prohibiting personal wireless services.

(9) Encourage orderly development in a preferred hierarchy using concealed technologies.

(10) Encourage the development of WCFs and small cell wireless on a competitively neutral basis.

(11) Ensure compliance with the time frames outlined in 47 U.S.C. Sections 253(c) and 332(a), and Chapter 35.99 RCW, as amended. (Ord. 3125 § 4 (Exh. C), 2019; Ord. 2852 § 10 (Exh. A), 2011).

22C.250.020 Wireless communication facilities – Applicability.

(1) If a conflict arises between this chapter and the provisions of another chapter regarding wireless communication facilities, this chapter shall govern.

(2) Facilities regulated by this chapter include the construction, modification, and placement of all WCFs, FCC-regulated amateur radio antennas, dish antennas, and any antennas used for MMDS or wireless cable, and wireless service facilities (i.e., cellular phone service, PCS – personal communication services, wireless paging services, wireless internet services, etc.). Wireless services shall be subject to the following regulations to the extent that such requirements:

(a) Do not unreasonably discriminate among providers of functionally equivalent services;

(b) Do not have the effect of prohibiting personal wireless services within the city of Marysville. (Ord. 3125 § 4 (Exh. C), 2019; Ord. 2852 § 10 (Exh. A), 2011).

22C.250.030 Wireless communication facilities – Exemptions from land use review.

The following are exempt from the provisions of this chapter:

(1) Amateur radio antennas operated by a federally licensed amateur radio operator as part of the amateur or business radio service are exempt from the provisions of this chapter, except MMC 22C.250.040 and 22C.250.090.

(2) Citizen band or two-way radio antenna including any mast.

(3) Satellite earth stations (satellite dishes) that are one meter (39.37 inches) or less in diameter in all residential districts and two meters or less in all other zoning districts and which are not greater than 20 feet above grade in residential districts and 35 feet above grade in all other zoning districts.

(4) A temporary wireless communications facility, for the purposes of:

(a) Providing coverage of a special event such as news coverage or sporting event, subject to approval by the city, except that such facility must comply with all federal and state requirements. Said wireless communications facility may be exempt from the provisions of this chapter up to one week prior and one week after the special event;

(b) Evaluating the technical feasibility of a particular site for placement of a WCF; or

(c) Providing emergency communications during a natural disaster or other emergencies which may threaten the public health, safety and welfare.

(5) In the event a building permit is required for any emergency repair, notification in writing to the director of community development shall occur within 24 hours of identification of the needed repair, and filing of the building permit application shall be done in compliance with the city’s adopted building code. (In the event a building permit is required for nonemergency maintenance, reconstruction, repair or replacement, filing of the building permit application shall be required prior to the commencement of such nonemergency activities.)

(6) Antenna modifications, provided there is no increase in the height of the antenna support structure; and provided, that the size of the replaced antennas is not increased.

(7) The siting of wireless service facilities is categorically exempt from the State Environmental Policy Act (SEPA) if the proposed facilities meet the requirements established in WAC 197-11-800(25) and MMC 22E.030.090(3)(a), as adopted or otherwise amended. (Ord. 3125 § 4 (Exh. C), 2019; Ord. 2988 § 1, 2015; Ord. 2852 § 10 (Exh. A), 2011).

22C.250.040 Wireless communication facilities – Permit required.

The following table summarizes the types of proposal and required land use approvals. All proposals are subject to the siting hierarchy requirements of this chapter.

Amateur Radio Antennas

Combined on Existing WCF

Concealed Attached WCF

Concealed Co-location

Flush- or Nonflush-Mounted Antenna on Existing Antenna Support Structure

New Concealed Antenna Support Structure

Small Wireless Facility

WCF Consolidation

P2

P1

C

P1, 3

C

P1

C

P1

C

C

P4

C

P – Permitted Use. The use is allowed subject to the requirements of this code.

C – Conditional Use Permit. The use is allowed subject to the conditional use review procedures and requirements of this code.

Notes:

1. If the proposal does not extend the height of a structure outside the public right-of-way by more than 40 feet, and the structure is in compliance with the maximum allowed WCF height for the zone, it is demonstrated that the proposal is consistent with any previous relevant approval conditions.

2. Amateur radio antennas are permitted subject to MMC 22C.250.090.

3. Concealed attached WCFs proposed within the public right-of-way are subject to MMC 22C.250.070(3).

4. Small wireless facilities are permitted within public right-of-way in all zones subject to the standards outlined in this chapter. Small wireless facilities are not subject to MMC 22C.250.050 through 22C.250.080.

(Ord. 3129 § 3 (Exh. B), 2019; Ord. 3125 § 4 (Exh. C), 2019; Ord. 2852 § 10 (Exh. A), 2011).

22C.250.050 Wireless communication facilities – Application requirements.

In addition to any information required for CUP, ROW permit, or building permit review, an application for new WCFs or modifications to WCFs that require city approval shall provide the following information:

(1) A site plan showing existing and proposed WCFs, access, base station, ancillary structures, warning signs, fencing, landscaping and any other items necessary to illustrate compliance with the development standards of this chapter.

(2) A stamped statement by a state of Washington registered professional engineer that the support structure shall comply with EIA/TIA-222-G (as amended), and the allowable wind speed for the applicable zone in which the facility is located, and that describes the general structural capacity of any proposed WCF(s), 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.

Some or all of the requirements listed in this subsection may be waived for applications for attachments to utility poles, provided a letter is submitted from the appropriate utility agency accepting responsibility for design of the structure.

(3) A report by the applicant that includes a description of the proposed WCF, including height above grade, justification for the proposed height of the structure and evaluation of alternative designs which might result in lower heights, materials, color, lighting, and information demonstrating compliance with siting hierarchy.

(4) Where a permit for an attachment or co-location is required, the application shall also include the following information:

(a) The name and address of the operator(s) of proposed and existing antennas on the site;

(b) The height of any proposed antennas;

(c) Manufacture, type, and model of such antennas;

(d) Frequency, modulation, and class of service; and

(e) A description of the wireless communication service that the applicant intends to offer to provide or is currently offering or providing within the city.

(5) A detailed visual simulation of the wireless communication facility shall be provided along with a written report from the applicant, including a map showing all locations where an unimpaired signal can be received for that facility (propagation map).

(6) If applicable, approved franchise agreement, or completed franchise agreement application and related fees.

(7) Other information as the director of community development may reasonably require.

(8) Fees for review as established by the city’s most current fee resolution.

The community development director may release an applicant from having to provide one or more of the pieces of information on this list upon a finding that in the specific case involved said information is not necessary to process or make a decision on the application being submitted. (Ord. 3125 § 4 (Exh. C), 2019; Ord. 2852 § 10 (Exh. A), 2011).

22C.250.060 Wireless communication facilities – Siting hierarchy.

Siting of antenna or support structures shall adhere to the siting hierarchy of this section. The order of ranking for antenna or antenna support structures, from highest to lowest, shall be 1, 2, 3, 4. Where letters (a, b) are present, a is preferable to b. Where a lower ranking alternative is proposed, the applicant must submit relevant information including but not limited to an affidavit by a licensed radio frequency engineer demonstrating that despite diligent efforts to adhere to the established hierarchy within the geographic search area, higher ranking options are not technically feasible or justified given the location of the proposed wireless communications facility and network need.

Example: A new facility meeting the definition of a concealed consolidated WCF is proposed; the applicant demonstrates that the new facility cannot be sited under hierarchy (1)(a) through (1)(b). The applicant then demonstrates the new facility cannot be sited under hierarchy 2. The applicant then moves to hierarchy 3 and is able to propose a site.

1

Co-location with existing antenna support structure:

a. That requires no increase in pole or structure height.

b. That requires an increase in pole or structure height, which shall comply with MMC 22C.250.080(3).

2

New concealed antenna support structure or concealed consolidation:

• On developed, improved sites in nonresidential zoning districts; or

• On publicly owned land.

Concealed attached WCF:

• Within public parks, public open spaces, and on other publicly owned land; or

• Within public rights-of-way; or

• Within nonresidential zoning districts or residential zoning districts on lots not used for single-family residential purposes.

3

Concealed consolidations:

a. In nonresidential zoning districts.

b. In residential zoning districts on lots not used for single-family residential purposes.

4

New concealed antenna support structure:

a. In nonresidential zoning districts.

b. In residential zoning districts on lots not used for single-family residential purposes.

The community development director may allow the siting of a facility in a location at a lower position in the hierarchy without demonstration that higher ranking options are not technically feasible or justified, provided the applicant demonstrates that the proposed facility location would result in a lesser visual/aesthetic impact and better meets the purposes of this chapter. (Ord. 3125 § 4 (Exh. C), 2019; Ord. 2852 § 10 (Exh. A), 2011).

22C.250.070 Wireless communication facilities – General requirements.

(1) Co-located or combined facilities shall comply with the following requirements:

(a) Co-location of antennas onto existing antenna support structures meeting the dimensional standards of this chapter are permitted outright. Antenna mounts shall be flush-mounted onto existing antenna support structure, unless it is demonstrated through RF propagation analysis that flush-mounted antennas will not meet the network objectives of the desired coverage area. Furthermore, an antenna shall only extend vertically above the uppermost portion of the structure to which it is mounted or attached as follows:

(i) Not more than 20 feet on a nonresidential structure; and

(ii) Not more than 15 feet on a multifamily structure.

(b) Co-location of antennas onto a new antenna support structure constructed after May 1, 2006, shall be concealed.

(c) At the time of installation, the WCF base station and ancillary structures shall be brought into compliance with any applicable landscaping requirements.

(d) A co-located or combined WCF, its new base station, and any new ancillary structures shall be subject to the setbacks of the underlying zoning district.

(e) When a co-located or combined WCF is to be located on a nonconforming building or structure, then it shall be subject to the nonconformance provisions of Chapter 22C.100 MMC.

(2) Concealed attached WCFs outside of the public ROW shall comply with the following requirements:

(a) Concealed antennas shall reflect the visual characteristics of the structure to which they are attached and shall be designed to architecturally match the facade, roof, wall, or structure on which they are affixed so that they blend with the existing structural design, color, and texture. This shall include the use of colors and materials, as appropriate. When located on structures such as buildings or water towers, the placement of the antenna on the structure shall reflect the following order of priority in order to minimize visual impact:

(i) A location as close as possible to the center of the structure; and

(ii) Along the outer edges or side-mounted; provided, that in this instance, additional means such as screens should be considered and may be required by the department on a case-by- case basis; and

(iii) When located on the outer edge or side-mounted, be placed on the portion of the structure less likely to be seen from adjacent lands containing, in descending order of priority, existing residences, public parks and open spaces, and public roadways.

(b) The top of the concealed attached WCF shall not be more than 40 feet above the existing or proposed nonresidential building or structure, or more than 15 feet above a residential building. Maximum height must be consistent with MMC 22C.250.080(3).

(c) Feed lines shall be contained within a principal building or encased and the encasement painted to blend and match the design, color, and texture of the facade, roof, wall, or structure to which they are affixed.

(3) Concealed attached WCFs proposed within the public right-of-way shall comply with the following requirements:

(a) An existing pole may be extended or replaced with a new pole, provided the original pole height may be increased by no more than the sum of the height of the wireless antenna(s) and necessary equipment, plus the minimum vertical separation distance as required by the utility agency.

(b) The pole must serve the original purpose and, if replaced, must be of similar appearance and composition as adjacent utility poles. The community development director may authorize the utilization of a composition material other than that of adjacent poles if it can be demonstrated that the utility’s engineering requirements necessitate that the different material be utilized.

(c) Antennas shall be flush-mounted.

(d) Field changes necessary in order to meet other utility agency requirements shall be reviewed and approved by the city prior to structure installation.

(4) Concealed antenna support structures shall comply with the following requirements:

(a) Upon application for a new concealed antenna support structure, the applicant shall provide a map showing all existing antenna support structures or other suitable nonresidential structures located within one-quarter mile of the proposed structure with consideration given to engineering and structural requirements.

(b) No new antenna support structure shall be permitted if an existing structure suitable for attachment of an antenna or co-location is located within one-quarter mile, unless the applicant demonstrates that the existing structure is physically or technologically unfeasible, or is not made available for sale or lease by the owner, or is not made available at a market rate cost, or would result in greater visual impact. The burden of proof shall be on the applicant to show that a suitable structure for mounting of antenna or co-location cannot be reasonably or economically used in accordance with these criteria.

(c) In residential districts, new concealed antenna support structures shall only be permitted on lots whose principal use is not single-family residential, including but not limited to schools, churches, synagogues, fire stations, parks, and other public property.

(d) To the extent that there is no conflict with the color and lighting requirements of the Federal Communications Commission and the Federal Aviation Administration for aircraft safety purposes, new antenna support structures shall be concealed as defined by this title and shall be configured and located in a manner to have the least visually obtrusive profile on the landscape and adjacent properties.

New concealed antenna support structures shall be designed to complement or match adjacent structures and landscapes with specific design considerations such as architectural designs, height, scale, color, and texture and designed to blend with existing surroundings to the extent feasible. This shall be achieved through the use of compatible colors and materials, and alternative site placement to allow the use of topography, existing vegetation or other structures to screen the proposed concealed antenna support structure from adjacent lands containing, in descending order of priority: existing residences, public parks and open spaces, and public roadways.

(e) At time of application the applicant shall file a letter with the department, agreeing to allow co-location on the tower. The agreement shall commit the applicant to provide, either at a market rate cost or at another cost basis agreeable to the affected parties, the opportunity to co-locate the antenna of other service providers on the applicant’s proposed tower to the extent that such co- location is technically and structurally feasible for the affected parties.

(f) All new concealed antenna support structures up to 60 feet in height shall be engineered and constructed to accommodate no less than two antenna arrays. All concealed antenna support structures between 61 feet and 100 feet shall be engineered and constructed to accommodate no less than three antenna arrays. All concealed antenna support structures between 101 and 140 feet shall be engineered and constructed to accommodate no less than four antenna arrays.

(g) Those providing for co-location shall also submit a plan for placement of base station equipment for potential future providers and/or services provided by additional antenna arrays.

(h) Grading shall be minimized and limited only to the area necessary for the new WCF.

(5) Consolidation of WCFs shall comply with the following requirements; consolidation of two or more existing WCFs may be permitted pursuant to the provisions of this chapter, including a CUP and consideration of the following:

(a) WCF consolidation shall reduce the number of WCFs.

(b) If a consolidation involves the removal of WCFs from two or more different sites and if a consolidated WCF is to be erected on one of those sites, it shall be erected on the site that provides for the greatest compliance with the standards of this chapter.

(c) Consolidated WCFs shall be concealed.

(d) All existing base stations and ancillary equipment shall be brought into compliance with this chapter.

(e) New WCFs approved for consolidation of an existing WCF shall not be required to meet new setback standards so long as the new WCF and its base station and ancillary structures are no closer to any property lines or dwelling units than the WCF and base station and ancillary structures being consolidated. For example, if a new WCF is replacing an old one, the new one is allowed to have the same setbacks as the WCF being removed, even if the old one had nonconforming setbacks.

(f) If the consolidated WCF cannot meet the setback requirements, it shall be located on the portion of the parcel on which it is situated which, giving consideration to the following, provides the optimum practical setback from adjacent properties:

(i) Topography and dimensions of the site;

(ii) Location of any existing structures to be retained. (Ord. 3125 § 4 (Exh. C), 2019; Ord. 2852 § 10 (Exh. A), 2011).

22C.250.080 Wireless communication facilities – Design standards.

(1) All WCFs shall:

(a) Be designed and constructed to present the least visually obtrusive profile.

(b) Use colors such as gray, blue, or green that reduce visual impacts unless otherwise required by the city of Marysville, the FAA, or the FCC.

(c) Flush-mount antennas when feasible. Nonflush-mounted antennas are allowed only upon written demonstration by the applicant that flush-mounting is not feasible.

(2) Base Stations.

(a) Base stations that are not located underground shall not be visible from public views.

(b) New base stations and ancillary structures shall be designed to complement or match adjacent structures and landscapes with specific design considerations such as architectural designs, height, scale, color, and texture and designed to blend with existing surroundings to the extent feasible. This shall be achieved through the use of compatible colors and building materials of existing buildings or structures on the property, and alternative site placement to allow the use of topography, existing vegetation or other structures to screen the base station and ancillary structures from pedestrian views. Where feasible, one building with multiple compartments shall be constructed to serve the total number of anticipated co-location tenants. If the applicant can demonstrate that one building is not feasible or practical due to site design or other constraints, then a site plan shall be provided to demonstrate how all potential base stations and ancillary structures will be accommodated within the vicinity of the WCF.

(3) Height Standards. The height of the antenna support structure shall be measured from the natural undisturbed ground surface below the center of the base of the tower to the top of the tower or, if higher, to the top of the highest antenna or piece of equipment attached thereto. The height of any WCF shall not exceed the heights provided in the table below.

Zone

Maximum Height

GC, DC, CB, NB, GI, LI, MU, PI, BP

140 feet

R4.5 – R28

80 feet

Open Space and Recreation

140 feet

Notes:

(1) New antenna support structures must comply with MMC 22C.250.070(4)(e) through (g).

(2) Increases to the height of an existing antenna support structure are permitted, provided:

(a) It is consistent with all conditions of the CUP authorizing the use and subsequent approvals thereafter;

(b) The existing conditions and the proposed changes are not in violation of the MMC;

(c) It is necessary to accommodate an actual co-location of the antenna for additional service providers or to accommodate the current provider’s antenna required to utilize new technology, provide a new service, or increase capacity;

(d) Height increases are limited to no more than 40 feet above the height of the existing antenna support structure unless explicitly allowed in the CUP;

(e) A nonconformance shall not be created or increased, except as otherwise provided by this chapter;

(f) A detailed certification of compliance with the provisions of this section is prepared, submitted, and approved.

(4) Setback Requirements.

(a) Antenna support structures outside of the right-of-way shall have a setback from property lines of 10 feet from any property line and 50 feet or one foot setback for every one foot in height from any residentially zoned property, whichever provides the greatest setback.

(b) Base stations shall be subject to the setback requirements of the zone in which they are located.

(c) The department shall consider the following criteria and give substantial consideration to on-site location; setback flexibility is authorized when reviewing applications for new antenna support structures and consolidations:

(i) Whether existing trees and vegetation can be preserved in such a manner that would most effectively screen the proposed tower from residences on adjacent properties;

(ii) Whether there are any natural landforms, such as hills or other topographic breaks, that can be utilized to screen the tower from adjacent residences;

(iii) Whether the applicant has utilized a tower design that reduces the silhouette of the portion of the tower extending above the height of surrounding trees.

(5) Landscaping and Fencing Requirements.

(a) All ground-mounted base stations and ancillary structures shall be enclosed with an opaque fence or fully contained within a building. In all residential zones, or a facility abutting a residential zone, or in any zone when the base station and ancillary structures adjoin a public right-of-way, the fence shall be opaque and made of wood, brick, or masonry. In commercial or industrial zones, if a chain-link fence is installed, slats shall be woven into the security fence. Required fencing shall be of sufficient height to screen all ground equipment and shall be subject to MMC 22C.010.380 and 22C.020.330. The city shall have the authority to determine the type of enclosure and materials required based upon review of existing site and surrounding conditions.

(b) Landscaping shall be done in accordance with Chapter 22C.120 MMC.

(c) When a fence is used to prevent access to a WCF or base station, any landscaping required shall be placed outside of the fence.

(d) Landscaping provisions may be modified in accordance with MMC 22C.120.190.

(6) Lighting Standards. Except as specifically required by the FCC or FAA, WCFs shall not be illuminated, except lighting for security purposes that is compatible with the surrounding neighborhood. Any lighting required by the FAA or FCC must be the minimum intensity and number of flashes per minute (i.e., the longest duration between flashes) allowable to minimize the potential attraction to migratory birds. Dual lighting standards (white blinking light in daylight and red blinking light at dusk and nighttime) are required and strobe light standards are prohibited unless required. The lights shall be oriented so as not to project directly onto surrounding residential property, and consistent with FAA and FCC requirements.

(7) Signage. Commercial messages shall not be displayed on any WCF. The only signage that is permitted upon an antenna support structure, base station, or fence shall be informational, and for the purpose of identifying the antenna support structure (such as ASR registration number), as well as the party responsible for the operation and maintenance of the facility, its current address and telephone number, security or safety signs, and property manager signs (if applicable). If more than 220 voltage is necessary for the operation of the facility and is present in a ground grid or in the antenna support structure, signs located every 20 feet and attached to the fence or wall shall display in large, bold, high contrast letters (minimum letter height of four inches) the following: HIGH VOLTAGE – DANGER.

(8) Sounds. Maximum permissible sound levels to intrude into the real property of another person from a wireless communication facility shall not exceed 45 dB(A). In the case of maintenance, construction, and emergencies, these sound levels may be exceeded for short durations as required by the specific circumstance. (Ord. 3125 § 4 (Exh. C), 2019; Ord. 2852 § 10 (Exh. A), 2011).

22C.250.090 Amateur radio antennas.

Amateur radio antennas and support structures are subject to the following:

(1) Maximum height shall be 75 feet, measured pursuant to the definition of WCF height.

(2) Antennas or antenna support structures shall not be permitted in any setback area or within any front yard area. (Ord. 3125 § 4 (Exh. C), 2019; Ord. 2852 § 10 (Exh. A), 2011. Formerly 22C.250.120).

22C.250.100 Small wireless deployment.

Small wireless deployment includes small wireless facilities and small wireless networks. The following provisions establish design and concealment standards for small wireless deployments; provided, however, that any small wireless or small wireless network component that is not exempt under law or ordinance from critical areas, SEPA, or shoreline review shall comply with the applicable requirements set forth in Chapter 22E.010 MMC, Critical Areas Management, Chapter 22E.030 MMC, State Environmental Policy Act (SEPA), and Chapter 22E.050 MMC, Shoreline Management Master Program.

(1) Existing and Replacement Utility Poles and Structures in Areas Other Than the Design District and Underground Districts. Eligible small wireless facilities permitted under the provisions of a franchise approval shall be considered to have satisfied the design and concealment standards when installed on utility poles and structures within the public right-of-way.

(2) Small Wireless Deployments on Existing Utility Poles Not Approved Pursuant to a Franchise. Small wireless deployments on existing utility poles that have not been approved as an exhibit to the franchise or as a minor deviation thereto shall comply with the provisions of MMC 22C.250.130 and must seek approval pursuant to a permit issued as provided in this chapter.

(3) Replacement Utility Pole – Street Lighting. With the express permission of the city, a replacement utility pole or a new utility pole may take the form of a new streetlight standard except where prohibited by MMC 22C.250.130(5). The design of the streetlight standard shall be in accordance with adopted city construction standards when located outside of the design district or underground district. Replacement utility poles/streetlight standards located within the design district shall conform to the adopted streetscape design standard for the design district. Wherever technologically feasible, all equipment and cabling shall be internal to the replacement street lighting standard.

(4) Undergrounded Areas. In areas where utilities have been undergrounded, a service provider or infrastructure company desiring to locate any aboveground infrastructure in support of a small wireless deployment shall submit a concealment element plan in accordance with the provisions of MMC 22C.250.130(6). (Ord. 3129 § 3 (Exh. B), 2019; Ord. 3125 § 4 (Exh. C), 2019).

22C.250.110 Small wireless permit application requirements.

In addition to any information required for a right-of-way permit, the following information shall be provided by all applicants for a small wireless permit:

(1) The application shall provide a site plan with specific locational information that includes GIS coordinates of all proposed small wireless facilities and specify where the small wireless facilities will utilize existing, replacement or new poles, towers, existing buildings and/or other structures. Ground-mounted equipment, 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, sewer drainage and other lines and equipment in the rights-of-way along the proposed route;

(b) The specific trees, structures, improvements, facilities, lines and equipment, and obstructions, if any, that the 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) Compliance with the aesthetic design concealment requirements of MMC 22C.250.130.

(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. Such written approval shall include approval of the specific pole, engineering and design standards from the pole owner, unless the pole owner is the city. Submission of the lease agreement between the owner and the applicant is not required. For city-owned poles or structures, the applicant must obtain a lease from the city prior to, or concurrent with, the small wireless 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) If the application is for a new or replacement light pole, then the applicant must provide a photometric analysis.

(4) 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.

(5) Any application for a small wireless facility located in the right-of-way adjacent to a parcel zoned for residential use shall demonstrate that it has considered all of the following:

(a) Whether a small wireless facility is currently installed on an existing pole in front of the same residential parcel. If a small wireless facility exists, then the applicant must demonstrate that no technically feasible alternative location exists that is not in front of the same residential parcel.

(b) Whether the proposed small wireless facility can be screened from residential view by choosing a pole location that is not directly in front of a window or views. Within residential zones, small wireless facilities shall be located between property lines as depicted in Figures 1 and 2 below.

Figure 1

Small Cell Locations Between Property Lines and Trees.

Figure 2

(6) Any application for a small wireless permit that contains an element not exempt from SEPA review shall simultaneously apply under Chapter 43.21C RCW and Chapter 22E.030 MMC. Further, any application proposing small wireless facilities in shoreline management zones (pursuant to Chapter 22E.050 MMC) or in critical areas (pursuant to Chapter 22E.010 MMC) must indicate that the application is exempt or comply with the review processes in said codes.

(7) 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 comply 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 that generate RF radiation necessary to the small wireless facility are to be provided by a third party, then the small wireless 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.

(8) 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.

(9) A professional engineer licensed by the state of Washington shall certify in writing, under his or her seal, that both construction plans and final construction of the small wireless facilities and structure or pole and foundation are designed to withstand wind and seismic loads as established by the International Building Code. Further, the construction drawings shall depict all existing proposed improvements related to the proposed location, including but not limited to poles, driveways, ADA ramps, equipment cabinets, street trees and structures within 250 feet from the proposed site. 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.

(10) A traffic control plan as required by the city’s engineering design and development standards, and MMC Title 12.

(11) The small wireless facilities permit shall include those elements that are outlined in the city’s right-of-way permit application to allow the applicant to proceed with the build-out of the small wireless facility deployment.

(12) 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. (Ord. 3125 § 4 (Exh. C), 2019).

22C.250.120 Small wireless – Designated design districts.

(1) Design Districts. Design districts are hereby established for the following master plan areas and subareas of the city: downtown master plan area, East Sunnyside-Whiskey Ridge subarea, 88th Street master plan area, Lakewood Neighborhood master plan area, and Smokey Point master plan area. The boundaries of the design districts shall coincide with the boundaries of the above-referenced master plan areas and subareas as depicted in the respective master plan or subarea plan. The design districts create a well-coordinated, cohesive, and aesthetically pleasing experience within each respective district. The areas designated in the Marysville engineering design and development standards, and the rights-of-way of the streets within these master plan areas and subareas, are designated as design districts for the purpose of the application of the provisions of this chapter.

(2) Any applicant who desires to place a small wireless facility in a design district must first establish that the applicant cannot locate the small wireless facility outside of the design district. Applications for small wireless facilities in a design district may be approved if the applicant demonstrates that due to technical infeasibility the applicant cannot locate the proposed small wireless facility on an existing or replacement pole within 500 feet of the proposed site and outside of the design district.

(3) Applications for small wireless facilities within the design districts are subject to an administrative land use review, and the proposed small wireless facility will only be permitted if it receives approval for a concealment element design consistent with MMC 22C.250.130(6)(c).

Furthermore, wireless facilities within the design districts must comply with the design and construction standards established in the Marysville engineering design and development standards relating to streetlights to the extent reasonably applicable or adaptable to a proposed facility. (Ord. 3125 § 4 (Exh. C), 2019).

22C.250.130 Small wireless deployments – Design and concealment standards.

Small wireless facility deployments shall conform to the following design standards:

(1) Small wireless facilities attached to existing or replacement nonwooden light poles and other nonwooden poles in the right-of-way or nonwooden poles outside of the right-of-way shall conform to the following design criteria:

(a) Antennas and the associated equipment enclosures (including disconnect switches and other appurtenant devices) shall be fully concealed within the pole, unless such concealment is otherwise technically infeasible, or is incompatible with the pole design, then the antennas and associated equipment enclosures must be camouflaged to appear as an integral part of the pole or flush-mounted to the pole, meaning no more than six inches off of the pole, and must be the minimum size necessary for the intended purpose, not to exceed the volumetric dimensions of small wireless facilities. If the equipment enclosure is permitted on the exterior of the pole, the applicant is required to place the equipment enclosure behind any banners or road signs that may be on the pole; provided, that such location does not interfere with the operation of the banners or signs.

(b) The furthest point of any antenna or equipment enclosure from the face of a pole shall be the minimum distance needed to comply with the requirements of the pole owner, electrical codes, and antenna tilt.

(c) All conduit, cables, wires and fiber must be routed internally in the light pole. Full concealment of all conduit, cables, wires and fiber is required within mounting brackets, shrouds, canisters, or sleeves if attaching to exterior antennas or equipment.

(d) An antenna on top of an existing pole may not extend more than six feet above the height of the existing pole and the diameter may not exceed 16 inches, measured at the top of the pole, unless the applicant can demonstrate that more space is needed. The antennas shall be integrated into the pole design so that it appears as a continuation of the original pole, including being colored or painted to match the pole, and shall be shrouded or screened to blend with the pole, except for canister antennas which shall not require separate shrouding or screening. All cabling and mounting hardware/brackets from the bottom of the antenna to the top of the pole shall be fully concealed and integrated with the pole.

(e) Any replacement pole shall substantially conform to the design of the pole it is replacing or the neighboring pole design standards utilized within the contiguous right-of-way.

(f) The height of any replacement pole may not extend more than 10 feet above the height of the existing pole or the minimum additional height necessary; provided, that the height of the replacement pole cannot be extended further by additional antenna height.

(g) The diameter of a replacement pole shall comply with the city’s setback and sidewalk clearance requirements and shall, to the extent technically feasible, not be more than a 25 percent increase of the existing nonwooden pole measured at the base of the pole, unless additional diameter is needed in order to conceal equipment within the base of the pole, and shall comply with the requirements in subsection (5)(d) of this section.

(h) The use of the pole for the siting of a small wireless facility shall be considered secondary to the primary function of the pole. If the primary function of a pole serving as the host site for a small wireless facility becomes unnecessary, the pole shall not be retained for the sole purpose of accommodating the small wireless facility and the small wireless facility and all associated equipment shall be removed.

(2) Wooden Pole Design Standards. Small wireless facilities located on wooden poles shall conform to the following design criteria:

(a) The wooden pole at the proposed location may be replaced with a taller pole for the purpose of accommodating a small wireless facility; provided, that the replacement pole shall not exceed a height that is a maximum of 10 feet taller than the existing pole, unless a further height increase is required and confirmed in writing by the pole owner and that such height extension is the minimum extension possible to provide sufficient separation and/or clearance from electrical and wireline facilities.

(b) A pole extender may be used instead of replacing an existing pole but may not increase the height of the existing pole by more than 10 feet, unless a further height increase is required and confirmed in writing by the pole owner and such height increase is the minimum extension possible to provide sufficient separation and/or clearance from electrical and wireline facilities. A “pole extender” as used herein is an object affixed between the pole and the antenna for the purpose of increasing the height of the antenna above the pole. The pole extender shall be painted to approximately match the color of the pole and shall substantially match the diameter of the pole measured at the top of the pole.

(c) Replacement wooden poles must either match the approximate color and materials of the replaced pole or shall be the standard new wooden pole used by the pole owner in the city.

(d) Antennas, equipment enclosures, and all ancillary equipment, boxes, and conduit shall be colored or painted to match the approximate color of the surface of the wooden pole on which they are attached.

(e) Antennas shall not be mounted more than 12 inches from the surface of the wooden pole.

(f) Antennas should be placed in an effort to minimize visual clutter and obtrusiveness. Multiple antennas are permitted on a wooden pole; provided, that each antenna enclosure shall not be more than three cubic feet in volume.

(g) A canister antenna may be mounted on top of an existing wooden pole, which may not exceed the height requirements described in subsection (2)(a) of this section. A canister antenna mounted on the top of a wooden pole shall not exceed 16 inches, measured at the top of the pole, and shall be colored or painted to match the pole. The canister antenna must be placed to look as if it is an extension of the pole. In the alternative, the applicant may propose a side-mounted canister antenna, so long as the inside edge of the antenna is no more than 12 inches from the surface of the wooden pole. All cables shall be concealed either within the canister antenna or within a sleeve between the antenna and the wooden pole.

(h) The furthest point of any antenna or equipment enclosure from the face of a pole shall be the minimum distance needed to comply with the requirements of the pole owner, electrical codes, and antenna tilt.

(i) An omnidirectional antenna may be mounted on the top of an existing wooden pole, provided such antenna is no more than four feet in height and is mounted directly on the top of a pole or attached to a sleeve made to look like the exterior of the pole as close to the top of the pole as technically feasible. All cables shall be concealed within the sleeve between the bottom of the antenna and the mounting bracket.

(j) All related equipment mounted on wooden poles, including but not limited to ancillary equipment, radios, cables, associated shrouding, microwaves, and conduit, shall not be mounted more than six inches from the surface of the pole, unless a further distance is technically required and is confirmed in writing by the pole owner.

(k) Equipment for small wireless facilities must be attached to the wooden pole, unless otherwise permitted to be ground-mounted pursuant to subsection (5)(a) of this section. The equipment must be placed in the smallest enclosure possible for the intended purpose. The equipment enclosure and all other wireless equipment associated with the utility pole, including wireless equipment associated with the antenna and any preexisting associated equipment on the pole, may not exceed 28 cubic feet. Multiple equipment enclosures may be acceptable if designed to more closely integrate with the pole design and do not cumulatively exceed 28 cubic feet. The applicant is encouraged to place the equipment enclosure behind any banners or road signs that may be on the pole; provided, that such location does not interfere with the operation of the banners or signs.

(l) An applicant who desires to enclose both its antennas and equipment within one unified enclosure may do so; provided, that such enclosure is the minimum size necessary for its intended purpose and the enclosure and all other wireless equipment associated with the pole, including wireless equipment associated with the antenna and any preexisting associated equipment on the pole, does not exceed 28 cubic feet. The unified enclosure may not be placed more than six inches from the surface of the pole, unless a further distance is required and confirmed in writing by the pole owner. To the extent possible, the unified enclosure shall be placed so as to appear as an integrated part of the pole or behind banners or signs; provided, that such location does not interfere with the operation of the banners or signs.

(m) The visual effect of the small wireless facility on all other aspects of the appearance of the wooden pole shall be minimized to the greatest extent possible.

(n) The use of the wooden pole for the siting of a small wireless facility shall be considered secondary to the primary function of the pole. If the primary function of a pole serving as the host site for a small wireless facility becomes unnecessary, the pole shall not be retained for the sole purpose of accommodating the small wireless facility and the small wireless facility and all associated equipment shall be removed.

(o) The diameter of a replacement pole shall comply with the city’s setback and sidewalk clearance requirements and shall not be more than a 25 percent increase of the existing utility pole measured at the base of the pole.

(p) All cables and wires shall be routed through conduits along the outside of the pole. The outside conduit shall be colored or painted to match the pole. The number of conduits shall be minimized to the number technically necessary to accommodate the small wireless facility.

(3) Small wireless facilities attached to existing buildings shall conform to the following design criteria:

(a) Small wireless facilities may be mounted to the sides of a building if the antennas do not interrupt the building’s architectural theme.

(b) The interruption of architectural lines or horizontal or vertical reveals is discouraged.

(c) New architectural features, such as columns, pilasters, corbels, or other ornamentation that conceals antennas, may be used if they complement the architecture of the existing building.

(d) Small wireless facilities shall utilize the smallest mounting brackets necessary in order to provide the smallest offset from the building.

(e) Skirts or shrouds shall be utilized on the sides and bottoms of antennas in order to conceal mounting hardware, create a cleaner appearance, and minimize the visual impact of the antennas. Exposed cabling/wiring is prohibited.

(f) Small wireless facilities shall be painted and textured to match the adjacent building surfaces.

(4) Small wireless facilities mounted on cables strung between existing utility poles shall conform to the following standards:

(a) Each strand-mounted facility shall not exceed three cubic feet in volume;

(b) Only one strand-mounted facility is permitted per cable between any two existing poles;

(c) The strand-mounted devices shall be placed as close as possible to the nearest utility pole, in no event more than five feet from the pole, unless a greater distance is technically necessary or is required by the pole owner for safety clearance;

(d) No strand-mounted device shall be located in or above the portion of the roadway open to vehicular traffic;

(e) Ground-mounted equipment to accommodate a strand-mounted facility is not permitted except when placed in preexisting equipment cabinets;

(f) Pole-mounted equipment shall comply with the requirements of subsections (1) and (3) of this section;

(g) Such strand-mounted devices must be installed to cause the least visual impact and without excess exterior cabling or wires (other than the original strand); and

(h) Strand-mounted facilities are prohibited on nonwooden poles.

(5) General Requirements.

(a) Ground-mounted equipment in the rights-of-way is prohibited, unless such facilities are placed underground or the applicant can demonstrate that pole-mounted or undergrounded equipment is technically infeasible. If ground-mounted equipment is necessary, then the applicant shall submit a concealment element plan. Generators located in the rights-of-way are prohibited.

(b) No equipment shall be operated so as to produce noise in violation of Chapter 6.76 MMC.

(c) Small wireless facilities are not permitted on city-owned light poles or traffic signal poles unless denial of the siting could be a prohibition or effective prohibition of the applicant’s ability to provide telecommunications service in violation of 47 U.S.C. Sections 253 and 332.

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

(e) Replacement poles shall be located as near as possible to the existing pole with the requirement to remove the abandoned pole.

(f) No signage, message or identification other than the manufacturer’s identification or identification required by governing law is allowed to be portrayed on any antenna or equipment enclosure. Any permitted signage shall be located on the equipment enclosures and be of the minimum amount possible to achieve the intended purpose (no larger than four by six inches); provided, that signs are permitted as concealment element techniques where appropriate.

(g) Antennas and related equipment shall not be illuminated except for security reasons, required by a federal or state authority, or unless approved as part of a concealment element plan.

(h) Side arm mounts for antennas or equipment must be the minimum extension necessary and for wooden poles may be no more than 12 inches off the pole and for nonwooden poles no more than six inches off the pole.

(i) The preferred location of a small wireless facility on a pole is the location with the least visible impact.

(j) Antennas, equipment enclosures, and ancillary equipment, conduit and cable shall not dominate the structure or pole upon which they are attached.

(k) Except for locations in the right-of-way, small wireless facilities are not permitted on any property containing a residential use in the residential zones.

(l) The city may consider the cumulative visual effects of small wireless facilities mounted on poles within the rights-of-way when assessing proposed siting locations so as to not adversely affect the visual character of the city. This provision shall not be applied to limit the number of permits issued when no alternative sites are reasonably available nor to impose a technological requirement on the applicant.

(m) These design standards are intended to be used solely for the purpose of concealment and siting. Nothing herein shall be interpreted or applied in a manner which dictates the use of a particular technology. When strict application of these requirements would unreasonably impair the function of the technology chosen by the applicant, alternative forms of concealment or deployment may be permitted which provide similar or greater protections from negative visual impacts to the streetscape.

(6) New Poles in the Rights-of-Way for Small Wireless Facilities and All Installations in the Design Districts.

(a) New poles within the rights-of-way are permitted only if the applicant can establish that:

(i) The proposed small wireless facility cannot be located on an existing utility pole or light pole, on an electrical transmission tower, or on a site outside of the public rights-of-way such as a public park, public property, building, transmission tower, or in or on a nonresidential use in a residential zone whether by roof- or panel-mount or separate structure;

(ii) The proposed small wireless facility receives approval for a concealment element design, as described in subsection (6)(c) of this section;

(iii) The proposed small wireless facility also complies with the Shoreline Management Act, Growth Management Act, and SEPA, if applicable; and

(iv) No new poles shall be located in a critical area or associated buffer required by the city’s critical areas ordinance (Chapter 22E.010 MMC), except when determined to be exempt pursuant to said ordinance.

(b) An application for a new pole is subject to an administrative land use review and approval.

(c) The concealment element design shall include the design of the screening, fencing, or other concealment technology for a tower, pole, or equipment structure and for all related transmission equipment or facilities associated with the proposed small wireless facility, including but not limited to fiber and power connections.

(i) The concealment element design should seek to minimize the visual obtrusiveness of the small wireless facility. The proposed pole or structure should have similar designs to existing neighboring poles in the rights-of-way, including similar height to the extent technically feasible. If the proposed small wireless facility is placed on a replacement pole in the design districts, then the replacement pole shall be of the same general design as the pole it is replacing, unless the public works and community development directors otherwise approve a variation due to aesthetic or safety concerns. Any concealment element design for a small wireless facility on a decorative pole should attempt to mimic the design of such pole and integrate the small wireless facility into the design of the decorative pole. Other concealment methods include, but are not limited to, integrating the installation with architectural features or building design components, utilization of coverings or concealment devices of similar material, color, and texture as the surface against which the installation will be seen or on which it will be installed, landscape design, or other camouflage strategies appropriate for the type of installation. Applicants are required to utilize designs in which all conduit and wire lines are installed internally in the structure. Further, applicant designs should, to the extent technically possible, comply with the generally applicable design standards adopted herein.

(ii) If the director has already approved a concealment element design either for the applicant or another small wireless facility along the same public right-of-way or for the same pole type, then the applicant shall utilize a substantially similar concealment element design, unless it can show that such concealment element design is not physically or technologically feasible or that such deployment would undermine the generally applicable design standards.

(d) Even if an alternative location is established pursuant to MMC 22C/250.120(2), the director may determine that a new pole in the right-of-way is in fact a superior alternative based on the impact to the city, the concealment element design, the city’s comprehensive plan, and the added benefits to the community.

(e) Prior to the issuance of a permit to construct a new pole or ground-mounted equipment in the right-of-way, the applicant must obtain a site-specific agreement from the city to locate such new pole or ground-mounted equipment. This requirement also applies to replacement poles where the overall height of the replacement pole and the proposed small wireless facility is more than 60 feet.

(f) These design standards are intended to be used solely for the purpose of concealment and siting. Nothing herein shall be interpreted or applied in a manner which dictates the use of a particular technology. When strict application of these requirements would unreasonably impair the function of the technology chosen by the applicant, alternative forms of concealment or deployment may be permitted which provide similar or greater protections of the streetscape.

Examples of unacceptable and acceptable small wireless facilities:

Figure 3

Figure 4

(Ord. 3129 § 3 (Exh. B), 2019; Ord. 3125 § 4 (Exh. C), 2019).

22C.250.140 Small wireless – Review process.

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

(a) In any zone, upon application for a small wireless permit, the city will permit small wireless deployment on existing or replacement utility poles conforming to the city’s generally applicable development and design standards, adopted pursuant to MMC 22C.250.130, except as provided in subsection (2) of this section.

(b) Vertical clearance shall be reviewed by the public works director or designee to ensure that the small wireless facilities will not pose a hazard to other users of the rights-of-way.

(c) 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.

(2) Community Development Department. The following requires particular review by the community development department:

(a) Small wireless deployment in areas designated as a design district pursuant to MMC 22C.250.120, which will be reviewed for compliance with MMC 22C.250.130(6);

(b) New non-city-owned poles, which will be reviewed for compliance with MMC 22C.250.130(6);

(c) Replacement poles deviating from the pole design standards adopted pursuant to MMC 22C.250.130, as such replacement poles must seek authorization pursuant to MMC 22C.250.160.

(3) 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 MMC 22C.250.200 when the modification does not defeat the concealment elements of the small wireless facility.

(4) 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 franchises and the 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.

(5) Final Decision. Any decision by the director shall be final and not be subject to administrative appeals.

(6) Public Comment. The city shall provide notice of a complete application for a small wireless facility permit on the city’s website, with a link to the application. The notice shall include an email contact and telephone number for the applicant to answer citizen inquiries. The applicant is encouraged to host informational meetings for the public regarding the deployment. The city shall post meeting notices, if any, for informational meetings on its website. These meetings are for the public’s information and are neither hearings nor part of any land use appeal process.

(7) Withdrawal. Any applicant may withdraw an application submitted pursuant to MMC 22C.250.110 at any time, provided the withdrawal is in writing and signed by all persons who signed the original application or by 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.

(8) Supplemental Information. Failure of an applicant to provide additional information as requested pursuant to MMC 22C.250.110(12) by the community development director within 60 days of notice by the director shall be deemed a denial of that application, unless an extension period has been requested of, and approved by, the director. (Ord. 3125 § 4 (Exh. C), 2019).

22C.250.150 Small wireless – Permit requirements.

(1) The grantee of any permit shall comply with all of the requirements within the small wireless permit.

(2) Small wireless facilities shall apply for and be issued a right-of-way use permit to install such small wireless facilities in accordance with the standard requirements of the city for use of the right-of-way.

(3) Post-Construction Record Drawings. Within 30 days after construction of the small wireless facility, the grantee shall provide the city with record drawings of the small wireless facilities demonstrating compliance with the permit and site photographs.

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

(5) 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. (Ord. 3129 § 3 (Exh. B), 2019; Ord. 3125 § 4 (Exh. C), 2019).

22C.250.160 Small wireless – Modifications and minor deviation approval.

(1) The community development director may authorize minor deviations designated by the applicant in an application for a small wireless permit, from the dimensional design and concealment techniques referenced in the exhibits to the franchise or the design standards.

(2) Deviations in the height, dimension or volume of small wireless facilities which are necessary to conform the facilities to the requirements of the pole owner, to provide adequate safety clearances or to address similar technical issues may be approved as minor deviations; provided, that the deviations do not cause the facility to exceed the height and volumetric limitations contained in the definition of a small wireless facility. Replacement of components of an existing, approved small wireless facility which do not exceed the volumetric limitations contained in the definition of a small wireless facility may also be approved as a minor deviation; provided, however, in each instance the modified facilities do not defeat the concealment requirements set by the city’s generally applicable aesthetic, design and concealment standards or a concealment plan approved pursuant to this chapter.

(3) The decision of the director to approve a small wireless permit with a minor deviation, if any, shall be final and is not subject to review under city code.

(4) A small wireless facility permit shall not be required for routine maintenance and repair of a small wireless facility within the rights-of-way or for 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. However, routine maintenance, repair, or replacement shall comply with Chapter 12.02A MMC and the Marysville engineering design and development standards (EDDS), including the general standards applicable to the use of the rights-of-way described in MMC Title 12. (Ord. 3125 § 4 (Exh. C), 2019).

22C.250.170 Small wireless facilities – Consolidated permit.

(1) The issuance of a small wireless permit grants authority to construct small wireless facilities in the rights-of-way in a consolidated manner to allow the applicant, in most situations, to avoid the need to seek duplicative approval by both the public works and the community development departments. If the applicant requires a new franchise to utilize the right-of-way, the franchise approval may be consolidated with the small wireless facility permit review if requested by the applicant. As an exercise of police powers pursuant to RCW 35.99.040(2), the small wireless facility permit is not a right-of-way use permit, but instead a consolidated public works and land use permit, and the issuance of a small wireless facility permit shall be governed by the time limits established by federal law for small wireless facilities.

(2) The general standards applicable to the use of the rights-of-way described in MMC Title 12 and the Marysville engineering design and development standards shall apply to all small wireless facility permits. (Ord. 3125 § 4 (Exh. C), 2019).

22C.250.180 Time limits for review.

Congress and the Federal Communications Commission (FCC) have, pursuant to the authority granted by 47 U.S.C. Sections 253(c) and 332(a), required local governments to act on wireless communication facility applications within a reasonable period of time and have established time limits or “shot clocks” for local review. The Washington State Legislature has also adopted similar limitations under the provisions of Chapter 35.99 RCW. Accordingly, the city adopts the following time limits for review of applications for eligible facility requests, small wireless permits, and other approvals for service providers of telecommunication services. (Ord. 3125 § 4 (Exh. C), 2019).

22C.250.190 Wireless communication permit process/processing timelines.

The city shall make every reasonable effort to comply with the requirements of 47 CFR Sections 1.40001 and 1.6003 and the presumptively reasonable time periods for review established therein and identified in the table below:

Facility Type

Time Frame for Review (commences at submittal)

Days to Determine Application Completeness

Eligible Facilities Modification

60 days

30 days

Small Wireless Facility (SWF) on Existing Structure

60 days

10 days

Small Wireless Facility (SWF) on New Structure

90 days

10 days

Wireless Communication Facility Co-location, excluding SWF

90 days

30 days

Wireless Communication Facility – Nonco-location (e.g., new tower, pole, structure), excluding SWF

150 days

30 days

(Ord. 3125 § 4 (Exh. C), 2019).

22C.250.200 Eligible facilities request.

(1) Application Review.

(a) Application. The community development director or designee shall prepare and make publicly available an application form that shall be limited to the information necessary for the city to consider whether an application is an eligible facilities request. The application may not require the applicant to demonstrate a need or business case for the proposed modification.

(b) Type of Review. Upon receipt of an application for an eligible facilities request pursuant to this chapter, the director shall review such application to determine whether the application qualifies as an eligible facilities request.

(c) Time frame for review shall be as outlined in MMC 22C.250.190.

(d) Determination That Application is Not an Eligible Facilities Request. If the director determines that the applicant’s request does not qualify as an eligible facilities request, the director shall deny the application. To the extent additional information is necessary, the director may request such information from the applicant to evaluate the application under other provisions of this chapter and applicable law.

(2) Failure to Act. In the event the director fails to approve or deny a request for an eligible facilities request 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 director in writing after the review period has expired (accounting for any tolling) that the application has been deemed granted.

(3) Remedies. Both the applicant and the city may bring claims related to Section 6409(a) of the Spectrum Act to any court of competent jurisdiction. (Ord. 3125 § 4 (Exh. C), 2019).

22C.250.210 Substantial change criteria.

A substantial change is a modification that 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 right-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;

(2) For towers other than towers in the public right-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 right-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 above. (Ord. 3125 § 4 (Exh. C), 2019).

22C.250.220 Administrative decision.

A decision of the community development director or designee made in accordance with this chapter, including assessment of fees as provided herein, shall be considered a final administrative land use decision. (Ord. 3125 § 4 (Exh. C), 2019).

22C.250.230 Recovery of city costs.

(1) Each permit granted pursuant to this chapter shall contain a condition which requires the permittee to reimburse the city for all direct and indirect expenses reasonably incurred in connection with the modification, amendment, or transfer of the permit.

(2) Each permittee shall be required to reimburse the city for all direct and indirect expenses not otherwise covered by permit application fees reasonably incurred while reviewing, inspecting, and supervising the construction, installation, and/or maintenance of a WCF authorized by a permit granted pursuant to this chapter.

(3) Costs incurred by the city in response to any emergency at the WCF shall be included within the reimbursable expenses set forth in this section. (Ord. 3125 § 4 (Exh. C), 2019).

22C.250.240 Maintenance of facilities.

Each permittee shall maintain its WCF or small wireless facilities in a good and safe condition and preserve its original appearance and concealment, disguise, or camouflage elements incorporated into the design at the time of approval and in a manner which complies with all applicable federal, state, and local requirements. Such maintenance shall include, but not be limited to, such items as painting, repair of equipment, and maintenance of landscaping. (Ord. 3125 § 4 (Exh. C), 2019).

22C.250.250 Testing of WCFs required – Radio frequency radiation.

All licensed carriers shall demonstrate that the WCF or small wireless facilities comply with FCC regulations by submitting a copy of the nonionizing electromagnetic radiation (NIER) report with any WCF permit application and a revised NIER report with any update of facilities that increases NIER. (Ord. 3125 § 4 (Exh. C), 2019).

22C.250.260 Testing of WCFs required – Noise emissions.

(1) Each licensed carrier shall submit manufacturer’s specification sheets of the equipment to be deployed to demonstrate compliance with state and city noise regulations. The carrier shall conduct tests, if necessary, to demonstrate compliance with all applicable local regulations regarding the noise emissions of the WCF. All such tests shall be performed by or under the supervision of a qualified acoustical consultant competent to perform such tests and interpret the data gathered.

(2) Where determined necessary by the community development director, all licensed carriers shall submit a report, certified by a qualified acoustical consultant, setting forth the observed noise levels at the property line of the property upon which the WCF is located. The report shall account for background noise and other noise sources and demonstrate the noise levels emitted by the WCF, including any air conditioning or ventilation equipment contained therein.

(3) Compliance reports shall be required when necessary to address existing or ongoing noise concerns.

(4) The city may retain a technical expert in environmental noise measurement to verify the noise measurements and certification. The cost of such a technical expert shall be borne by the licensed carrier.

(5) This section shall not apply to any WCF that does not contain air conditioning equipment. (Ord. 3129 § 3 (Exh. B), 2019; Ord. 3125 § 4 (Exh. C), 2019).

22C.250.270 Security.

All WCFs shall be protected from unauthorized use through appropriate means approved by the director on a case-by-case basis consistent with the purpose of protecting the public health, safety, and welfare. (Ord. 3125 § 4 (Exh. C), 2019).

22C.250.280 Technical evaluation.

The city may retain the services of an independent technical expert such as a registered professional electrical engineer accredited by the state of Washington who holds a federal communications general radio telephone operator license. The engineer will provide technical evaluation of permit applications for WCFs or small cell wireless facilities. The applicant shall pay all the costs of said review. (Ord. 3125 § 4 (Exh. C), 2019; Ord. 2852 § 10 (Exh. A), 2011. Formerly 22C.250.090).

22C.250.290 Interference.

Whenever the city encounters radio frequency interference with its public safety communications equipment, and it believes that such interference has been or is being caused by one or more WCFs, the following steps shall be taken:

(1) Upon notification by the city to WCF service providers potentially interfering with public safety communications equipment, the providers shall cooperate and coordinate with the city and among themselves to investigate and mitigate the interference, if any, utilizing the procedures set forth in the joint wireless industry-public safety “Best Practices Guide,” released by the FCC in February 2001, including the “Good Engineering Practices,” as may be amended or revised by the FCC from time to time.

(2) If any WCF owner fails to cooperate with the city in complying with the owner’s obligations under this section, or if the FCC makes a determination of radio frequency interference with the city public safety communications equipment, the owner who fails to cooperate and/or the owner of the WCF which caused the interference shall be responsible, upon FCC determination of radio frequency interference, for reimbursing the city for all costs associated with ascertaining and resolving the interference, including but not limited to any engineering studies obtained by the jurisdiction to determine the source of the interference. For the purposes of this subsection, “failure to cooperate” shall include failure to initiate any response or action as described in the “Best Practices Guide” within 24 hours of the city’s notification. (Ord. 3125 § 4 (Exh. C), 2019; Ord. 2852 § 10 (Exh. A), 2011. Formerly 22C.250.100).

22C.250.300 Cessation of use.

(1) Discontinuance or Abandonment. Any WCF that is not operated for a period of 12 months shall be considered abandoned, and the owner of such WCF shall remove the WCF within 90 days of receipt of notice from the governing authority notifying the owner of such abandonment. If such WCF is not removed within said 90 days, the governing authority may remove the WCF at the owner’s expense. An extension may be requested and granted for up to 12 months by the community development director if good cause is shown, the WCF is maintained, and conditions would not be detrimental to the public health, safety, or general welfare. If there are two or more users of a single WCF, then this provision shall not become effective until all users cease using the WCF. (Ord. 3125 § 4 (Exh. C), 2019; Ord. 2852 § 10 (Exh. A), 2011. Formerly 22C.250.110).

22C.250.310 Revocation or termination of permit.

In addition to the remedies and process set forth in Chapter 22I.010 MMC, a permit issued pursuant to this chapter may be revoked for the following reasons:

(1) Construction and/or maintenance operation of a WCF or small wireless facilities at an unauthorized location;

(2) Construction or operation of a WCF or small wireless facilities in violation of any of the terms and conditions of this chapter or the conditions attached to the permit;

(3) Misrepresentation or lack of candor by or on behalf of an applicant, permittee, or wireless communications service provider in any application or written or oral statement upon which the city substantially relies in making the decision to grant, review or amend any permit pursuant to this chapter;

(4) Abandonment of a WCF as set forth in this chapter;

(5) Failure to relocate or remove facilities as required in this chapter; or

(6) Failure to promptly cure a violation of the terms or conditions of the permit. (Ord. 3125 § 4 (Exh. C), 2019).

22C.250.320 Notice and duty to cure.

In the event that the city believes that grounds exist for revocation of a permit, the permittee shall be given written notice of the apparent violation or noncompliance, providing a short and concise statement of the nature and general facts of the violation or noncompliance, and providing the permittee a reasonable period of time not exceeding 30 calendar days to furnish evidence:

(1) That corrective action has remedied the violation or noncompliance;

(2) That rebuts the alleged violation or noncompliance; and/or

(3) That it would be in the public interest to impose some penalty or sanction less than revocation. (Ord. 3125 § 4 (Exh. C), 2019).

22C.250.330 Hearing.

(1) In the event that a permittee fails to provide evidence reasonably satisfactory to the city as provided in MMC 22C.250.320, the city shall refer the apparent violation or noncompliance to the hearing examiner. The city shall provide the permittee with notice as described in MMC 22G.010.110 and 22G.010.120, and a reasonable opportunity to be heard concerning the matter and a public hearing shall be conducted.

(2) The hearing examiner shall provide a decision as outlined in MMC 22G.060.110.

(3) In making its decision, the hearing examiner shall apply the following factors:

(a) Whether the misconduct was egregious;

(b) Whether substantial harm resulted;

(c) Whether the violation was intentional;

(d) Whether there is a history of prior violations of the same or other requirements;

(e) Whether there is a history of overall compliance; and

(f) Whether the violation was voluntarily disclosed, admitted or cured. (Ord. 3125 § 4 (Exh. C), 2019).