Chapter 5.45
REGULATIONS FOR SMALL CELL FRANCHISES

Sections:

Small Cell Deployment—Franchise and Small Cell Permits

5.45.010    Overview.

5.45.020    Definitions.

5.45.030    Design zones designated.

5.45.040    Franchise application.

5.45.050    Application and designation of facilities.

5.45.060    Implementation—Right-of-way permits for small cell deployment.

5.45.070    Review process.

5.45.080    Right-of way permit for small cells and deviations.

5.45.090    Amendments to the franchise agreement.

5.45.110    Review of wireless communications facilities other than small cell deployments.

5.45.120    Ground-mounted equipment—ADA compliance required.

5.45.130    Small cell facilities in undergrounded areas or design zones.

5.45.140    Compliance with state processing limitations.

5.45.150    Determination that an application is not an eligible facilities request.

5.45.160    Additional review procedures.

Small Cell Deployment—Franchise and Small Cell Permits

5.45.010 Overview.

In order to manage its right-of-way in a thoughtful manner, the city of Mukilteo has adopted this process for the deployment of small cell and microcell technology. The process balances the need to accommodate new and evolving technologies with the preservation of the natural and aesthetic environment of the city while complying with the requirements of state and federal law. Service providers who seek to utilize the public right-of-way for small cell deployment in order to provide wireless communication, data transmission or other related services to the citizens of the city must have a valid franchise to provide the specific service seeking to utilize the right-of-way and a right-of-way permit to deploy the technology. Entities with franchises who wish to utilize a small cell deployment to upgrade or expand their existing services shall utilize the processes set forth in this chapter to deploy their technology and obtain design approval of specific installations. The right-of-way permit process administers deployment under the franchise. An entity without a franchise shall apply for a franchise and adjunct right-of-way permit which shall be processed concurrently as one master permit within the meaning of RCW 35.99.010(3) and 35.99.030. For entities with a valid franchise, see Section 5.04.050.

A.    Nothing in this chapter revises or diminishes the rights and obligations of an existing franchise.

B.    The term “small cell deployment” shall include the deployment of small cell facilities, microcells and small cell networks as those terms are defined by RCW 80.36.375. Small cell deployment elements which require SEPA review may utilize these processes only in conjunction with SEPA review.

C.    Existing franchisees with franchises that do not specifically permit small cell and/or micro cell deployment shall be required to either amend their existing franchise or enter into a new franchise with the city. (Ord. 1403 § 1 (Exh. A) (part), 2017)

5.45.020 Definitions.

See Chapter 17.08 for additional definitions. (Ord. 1403 § 1 (Exh. A) (part), 2017)

5.45.030 Design zones designated.

The following areas are hereby designated “design zones” for the purpose of this chapter. Design zones shall include the following districts:

A.    Downtown Business (DB); and

B.    Waterfront Mixed Use (WMU). (Ord. 1403 § 1 (Exh. A) (part), 2017)

5.45.040 Franchise application.

Applicants shall apply using the city’s franchise application form and submit a fee according to the city’s fee schedule to process an application for a franchise. The director of public works “director” is charged with administration of small cell deployments and other wireless communication review processes established under this title and Title 12. All franchise applications shall designate the entire city right-of-way as the franchise boundary. (Ord. 1403 § 1 (Exh. A) (part), 2017)

5.45.050 Application and designation of facilities.

The following information shall be provided by all applicants for franchises seeking small cell deployment. Existing franchisees who seek to implement an existing franchise for small cell deployment shall provide the following information as a part of their right-of-way permit application:

A.    The application shall identify and provide:

1.    Specific locational information including GIS coordinates of all proposed small cell deployment facilities;

2.    Whether and where small cell facilities are to be located on existing utility poles including city-owned light standards;

3.    Whether the deployment will utilize replacement utility poles, new poles, towers, and/or other structures and where such replacement will take place; and

4.    Detailed schematics and visual renderings of the facilities.

B.    Conduit and/or ground-mounted equipment necessary for and intended for use in the deployment shall also be specified regardless of whether these facilities are constructed by the applicant or leased from an infrastructure provider.

C.    Failure to provide sufficient detail may result in a later need to request a deviation in the facility if significant elements of the facility were not shown on the originally approved franchise exhibit. Failure to include significant elements may also result in the requirement that new or undocumented elements complete the approval processes detailed in Section 5.45.080. (Ord. 1403 § 1 (Exh. A) (part), 2017)

5.45.060 Implementation—Right-of-way permits for small cell deployment.

The rights granted under the franchise are implemented through the issuance of right-of-way permits. The franchise application may be accompanied by one or more applications for a right-of-way permit to deploy small cells. An initial franchise and all related right-of-way permit applications shall be processed concurrently as one master permit under Chapter 35.99 RCW.

A.    Up to twenty sites may be specified in one right-of-way permit application for processing. At the discretion of the director, up to five additional sites may be included in order to consider small cell sites within one service area in one application.

B.    Issuance of a right-of-way permit to install a small cell deployment shall be contingent upon approval of a franchise or the possession of a valid franchise.

C.    If more than one application for a right-of-way permit is submitted by an applicant, they shall be considered in the order received. If multiple applications are submitted on the same date, the applicant shall indicate which application shall be considered first. All right-of-way permits which are submitted in conjunction with a franchise application shall be considered as one master permit. Any element of a deployment which qualifies as either an eligible facilities request or a colocation shall be specifically designated by the applicant and may be addressed separately by the director in order to comply with the shot clocks established by federal law and Section 17.17.030.

D.    The director may approve, deny or conditionally approve all or any portion of the sites proposed in the right-of-way permit application.

E.    Any application for a right-of-way permit which contains an element which is not exempt from SEPA review shall simultaneously apply under Chapter 43.21C RCW and Chapter 17.84.

F.    Radio Frequency (RF) Certification. The applicant shall submit a sworn affidavit signed by an RF engineer with knowledge of the proposed project affirming that the small cell deployment 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 cell facility and associated wireless backhaul will operate. An existing franchisee applying for a right-of-way permit for small cell deployment shall provide an RF certification for all facilities included in the deployment which are to be installed by the franchisee. If facilities which produce RF radiation are necessary to the small cell deployment and will be provided by another franchisee, then the small cell deployment in the initial franchise or in a subsequent right-of-way permit shall be conditioned on an RF certification showing that the cumulative impact of the RF emissions from the entire installation meets federal requirements.

G.    Regulatory Authorization. Issuance of the right-of-way permit for the facilities shall also be contingent upon the applicant’s provision of proof of FCC and other regulatory approvals required to provide the service(s) or utilize the technologies sought to be installed.

H.    Completeness—Franchise and Small Cell Applications. The director or his/her designee shall review an application for completeness and notify the applicant within thirty days of submission whether the application is complete; provided, however, that an applicant may consent to a different completeness review period. A service provider may resubmit an application found incomplete within ninety days of notice by the director. Failure to resubmit an application in a timely manner shall be deemed a withdrawal of that application. An applicant shall be notified in writing of the approval or denial of the application. No application shall be deemed complete without the required fee deposit. (Ord. 1403 § 1 (Exh. A) (part), 2017)

5.45.070 Review process.

The following provisions relate to applications for a franchise or right-of-way permit for small cell deployments:

A.    Review of Facilities. Review of the site locations proposed by the applicant shall be governed by the provisions of 47 USC Section 253 and 47 USC Section 332 and applicable case law. Applicants for franchises and the right-of-way permits which implement the franchise shall be treated in a competitively neutral and nondiscriminatory manner with other service providers utilizing supporting infrastructure which is functionally equivalent, that is, service providers whose facilities are similarly situated in terms of structure, placement or cumulative impacts. Franchise and right-of-way permit review under this chapter shall neither prohibit nor have the effect of prohibiting the ability of an applicant to provide telecommunications services.

B.    Concealment for Small Cell. In any zone not designated as a design zone the city will permit small cell deployment on existing or replacement utility poles conforming to the city’s generally applicable design standard pursuant to this chapter and in the franchise agreement. The design standards in this section seek to implement concealment of the small cell facilities. Accordingly, small cell facilities installed pursuant to this concealment authorization may be expanded pursuant to an eligible facilities request when the director determines that such expansion does not defeat the concealment elements of the facilities as outlined in this chapter. The applicable design standards are as follows:

1.    Design Standards.

a.    No Colocation. Each wooden utility pole may not contain more than one small cell facility.

b.    Height Restrictions. All small cell facilities shall be in compliance with height restrictions applicable to poles and other structures as stated in Section 17.17.020. The director may approve deviations as described in Section 5.45.080.

c.    New and Replacement Poles. The new or replacement poles shall match height, color and material of the original or adjacent poles and shall be subject to approval by the director. The director may approve deviations as described in Section 5.45.080.

d.    Interior Concealment. Whenever technologically feasible, antennas and equipment shall be fully concealed within the utility or light pole. When interior concealment is not possible, such as when attached to a wooden utility pole or due to American with Disabilities Act (ADA) requirements, antennas and equipment shall be camouflaged to appear to be an integrated part of the utility or light pole.

e.    Flush-Mounted Standoff Brackets or Pole-Top Antennas. In situations when interior concealment pursuant to subsection (B)(1)(d) of this section is not possible, installation of an antenna on a pole shall be flush mounted, if feasible or located at the top of the pole. Flush mounting includes using brackets that offset the inside edge of such equipment from the utility pole by twelve inches or less, except as otherwise required by the pole owner or a controlling electrical code such as the National Electrical Safety Code, National Electric Code or State Electrical Code and when approved by the city. Standoff brackets are permitted so long as the antennas are mounted as close to the pole as technically feasible, but no more than twelve inches off the pole.

f.    Antenna Design. Antennas shall be located in an enclosure of no more than three cubic feet in volume, or in case of an antenna that has exposed elements, the antenna and all of its exposed elements could fit within an imaginary enclosure of no more than three cubic feet. No more than four antennas are permitted on a single utility pole and with a total volume not to exceed nine cubic feet.

g.    Primary Equipment Enclosure Location and Dimensions. The applicant shall minimize the primary equipment enclosure space and use the smallest amount of enclosure possible to fit the necessary equipment. The primary equipment enclosure shall be located using one of the following methods:

i.     Concealed completely within the pole or pole base. If within the pole base, the base shall meet the ADA requirements and not impact the pedestrian access route.

ii.    Located on a pole. If located on a pole, the equipment enclosure shall be seventeen cubic feet or less in size.

iii.    Underground in a utility vault. If located underground, the access lid to the primary equipment enclosure shall be located outside the footprint of any pedestrian curb ramp and shall have a nonskid surface meeting ADA requirements if located within an existing pedestrian access route.

iv.    On private property. If located on private property, the applicant shall submit a copy of an executed easement or lease agreement with the private property owner prior to the right-of-way permit issuance. In addition, if the private property is zoned residential, the applicant shall comply with the requirements of Chapter 17.16.

h.    Material and Color. Small cell facility antennas, conduit, mounting hardware and cabinets shall be painted to match the color of the pole and shall be nonreflective.

i.    No Illumination. Small cell facilities shall not be illuminated.

j.    Generators and Backup Battery. Applicant shall not install any generators or backup battery power.

k.    Underground Areas and Design Zone Aesthetics. The design plans for all small cell facilities in design zones shall be compatible with the character and aesthetics of the neighborhoods, plazas, boulevards, parks, public spaces, and commercial districts located in whole or in part within the design zone. Applicant shall propose design concepts and the use of camouflage or stealth materials, as necessary to blend its installations with the overall character of the design zone. Applicants are encouraged to meet with the city prior to submitting a concealment element plan subject to this section and Section 5.45.130.

Examples of a well-designed small cell facility

Examples of a poorly designed small cell facility

2.    Third Party Requirements.

a.    All installations of small cell facilities must have permission from the pole/structure owner to install facilities on such structure.

b.    Governing Construction or Electrical Code. All installations of small cell facilities shall comply with any governing construction or electrical code such as the National Electrical Safety Code, the National Electric Code or state electrical code, as applicable. All installations of ground-mounted or replacement structures shall comply with the city’s adopted standards for construction in the right-of-way.

c.    Electrical Connection. The city is not responsible for providing electricity to small cell facilities. Any third party utility providing such electricity must obtain a franchise from the city prior to operating in the rights-of-way.

d.    Transport/Telecommunications Connection. The city is not responsible for providing transport connectivity (i.e., fiber) to small cell facilities. Any third party utility providing such transport connectivity must obtain a franchise from the city prior to operating in the rights-of-way.

C.    Design Review. Small cell deployment in design zones and underground areas, as well as certain new or replacement facilities are subject to the design requirements provided for in the approved franchise and in this section and Section 5.45.130.

D.    Public Comment. The city shall provide notice of a complete application for a franchise on the city’s website with a link to the franchise application. This notice requirement shall also apply to existing franchisees applying for a right-of-way permit for small cell deployment. The notice shall include an email contact and telephone number for the applicant to answer citizen inquiries. The applicant is required 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. (Ord. 1403 § 1 (Exh. A) (part), 2017)

5.45.080 Right-of way permit for small cells and deviations.

A.    The director shall review applications for a right-of-way permit for a small cell deployment approved by a franchise or described in a concurrent franchise application. Deviations of the plans submitted may be approved by the director if the dimensions or volume of small cell facilities do not exceed the cumulative total provided by the definition of a small cell or microcell facility in RCW 80.36.375 and concealment technologies referenced in the exhibits to the franchise or design standards. A deviation may be approved by the director in the following circumstances:

1.    An increase in height of up to ten feet above the top of the existing pole.

2.    An increase in height exceeding ten feet above the top of the existing pole if required by the utility company for safety and/or operational purposes. The replacement pole shall be installed by the utility company.

3.    Replacement components of an existing, approved small cell facility, and the addition of antennas on a pole that exceed a cumulative total of nine cubic feet shall be considered a deviation. Provided, however, that in each instance the replacement components are consistent with the intent of the concealment features set by city’s generally applicable pole design standard adopted pursuant to the franchise, or Section 5.45.070.

B.    Right-of-way permits to install small cell facilities including approval of deviations shall be processed within ninety days of receipt of a complete application and final approval of a franchise, whichever occurs last. A right-of-way use permit for small cell deployment is a police power regulation adopted pursuant to RCW 35.99.040(2) and accordingly is not subject to the thirty-day use permit issuance requirement contained in RCW 35.99.030(2).

C.    The decision of the director to approve or deny a right-of-way permit for a small cell facility with a deviation, if any, shall be final and is not subject to appeal under city code or further legislative review. (Ord. 1403 § 1 (Exh. A) (part), 2017)

5.45.090 Amendments to the franchise agreement.

A new pole or expansion beyond the dimensions or volume of small cell facility which exceeds the cumulative total provided by the definition of a small cell or microcell facility in RCW 80.36.375 shall require an amendment to the franchise agreement. (Ord. 1403 § 1 (Exh. A) (part), 2017)

5.45.110 Review of wireless communications facilities other than small cell deployments.

Wireless communication facilities other than small cell deployment in the public right-of-way shall be reviewed pursuant to Section 17.17.020. (Ord. 1403 § 1 (Exh. A) (part), 2017)

5.45.120 Ground-mounted equipment—ADA compliance required.

In areas of the city where overhead utility lines have been undergrounded (undergrounded areas), in designated design zones (see Section 5.45.030), and in other areas where necessary to permit full use of the public right-of-way by pedestrians, bicycles and other users, all ground-mounted equipment shall be undergrounded in a vault meeting the city’s construction standards. The location of ground-mounted equipment (to the extent undergrounding such equipment is not technologically feasible), a replacement pole or street light shall comply with the Americans with Disabilities Act (ADA), city development standards, and state and federal regulations in order to provide a clear and safe passage within the public right-of-way. Ground-mounted equipment is also permitted on private property adjacent to the public right-of-way with a recorded easement or lease agreement in accordance with Chapter 17.17. (Ord. 1403 § 1 (Exh. A) (part), 2017)

5.45.130 Small cell facilities in undergrounded areas or design zones.

A.    Replacement poles over forty-five feet in height and new street lights for small cell facilities to be constructed in any undergrounded area or design zone are permitted only when the applicant establishes that:

1.    The small cell facility cannot be located on an electrical transmission tower or on a site outside of the public right-of-way such as a public park, public property, or in or on a nonresidential use in a residential zone whether by roof or panel-mount or separate structure; and

2.    The proposed facility complies with an approved stealth installation plan as described in this section for an undergrounded area or design zone; and

3.    The facilities shall comply with critical areas requirements and SEPA, if applicable; and

4.    The applicant shall enter into an agreement with the owner of any new or replacement utility pole and/or street light within the public right-of-way and provide an executed copy of the agreement to the city prior to right-of-way permit issuance.

B.    Stealth Installation Plan Required. Applications for proposed installations in underground areas and design zones which deviate for existing city design standards (or if the city has not created a design standard for that particular area) shall be required to submit a stealth installation plan. Such plan shall include the design of the screening, fencing or other concealment technology for a base station, tower, utility pole, or equipment structure, and all related transmission equipment or facilities associated with the proposed wireless facility, including but not limited to fiber and power connections.

1.    Purpose of Stealth Installation Plan, Generally. Stealth installation plans should seek to minimize the visual obtrusiveness of installations using methods including, but 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—or the appearance thereof—as the surface against which the installation will be seen or on which it will be installed.

2.    Other stealth approaches may include, but not be limited to, use of architectural concealment products, fencing or screening materials, and where appropriate, landscape design, or any other camouflage strategies appropriate for the type of installation. Additionally, the use of a stealth support or concealment device, such as a clock tower, steeple, flagpole, tree, street sign, or other applicable concealment structure may be approved.

3.    The director shall apply this section, as well as all design requirements applicable in the underground area or design zone in which an installation is proposed.

4.    Review of Stealth Installation Plan for Nonsubstantial Change Colocations. Where a proposed collocation does not constitute a substantial change, a stealth installation plan shall be subject to ministerial review to ensure the proposed collocation does not defeat the concealment features approved as part of the initial installation at that location.

5.    Review of Stealth Installation Plan for Initial Installations and Substantial Change Colocations. For initial installations and substantial change colocations in underground areas and design zones, the director shall conduct an administrative review of stealth installation plans for compliance with this section and all applicable city design guidelines.

C.    Replacement Utility Pole—Street Lighting. With the director’s approval, a replacement utility pole or a request for a new utility pole may be permitted in the form of a new street light. The design of the street light shall be in accordance with the examples below, subject to the director’s approval. Replacement utility poles/street light standards located within a design zone shall conform to the adopted streetscape design standard for the design zone. Wherever technologically feasible, all equipment and cabling shall be internal to the replacement street lighting standard. See examples below.

Downtown Business and Waterfront Mixed-Use Zones

Commercial Areas

Harbour Pointe Boulevard—South

Harbour Pointe Boulevard—North

D.    Undergrounded Areas. It is the stated policy of the city that all utilities shall be underground in areas that are currently undergrounded. No new utility poles shall be erected in undergrounded areas. The applicant may request to install a new street light as provided in Sections 5.45.140 through 5.45.160.

E.    Franchise and Small Cell Deployment Facility Approvals and Processes. Approval of a franchise, right-of-way permit and/or other approval referenced in this chapter are conditioned on the following requirements:

1.    Satisfy applicable design requirements, including, but not limited to, noise and light regulations.

2.    Comply with adopted design and concealment standards, applicable to replacement utility poles and new utility poles in a design zone or undergrounded areas.

3.    Obtain the written approval of the owner of any utility pole for the installation of its facilities on such utility pole. Unless specifically provided for in a franchise agreement, approval of a franchise does not authorize attachment to city-owned utility poles or other structures.

4.    Comply with all city construction standards and state and federal codes and standards when operating in the right-of-way and obtain a required permit to enter the right-of-way.

5.    A right-of-way permit for small cell deployment which includes a facility not exempt from SEPA review shall be processed in the provisions of Chapter 17.84.

Small cell facilities approved pursuant to this chapter shall be considered as an outright permitted use when located within the right-of-way. See the permitted use matrix in Section 17.16.040. (Ord. 1403 § 1 (Exh. A) (part), 2017)

5.45.140 Compliance with state processing limitations.

Review of franchise and right-of-way permits shall comply with the provisions of RCW 35.99.030. Applications shall be reviewed, completeness determined and the time frame tolled as provided in Section 17.17.030. A right-of-way use permit for small cell deployment is a police power regulation adopted pursuant to RCW 35.99.040(2) and accordingly is not subject to the thirty-day use permit issuance requirement contained in RCW 35.99.030(2). (Ord. 1403 § 1 (Exh. A) (part), 2017)

5.45.150 Determination that an application is not an eligible facilities request.

A.    The director may request additional information if necessary from the applicant to evaluate the application under other provisions of this chapter and applicable law.

B.    If the director determines that the applicant’s request does not qualify as an eligible facilities request as defined in Section 17.08.020, then the director shall deny the application. (Ord. 1403 § 1 (Exh. A) (part), 2017)

5.45.160 Additional review procedures.

Wireless communication facilities in design zones, shoreline management environments, undergrounded areas or critical areas are subject to review as provided in Chapter 17.17, Wireless Communication Facilities (WCF) Attached and Detached; Chapter 17.25A, Design Standards for the DB District; Chapter 17.25B, Mixed-Use Design Standards for the WMU District; Chapter 17.52, Critical Areas Regulations; Chapter 17.52A, Geologic Sensitive Area Regulations; Chapter 17.52B, Wetland Regulations; Chapter 17.52C, Fish and Wildlife Habitat Conservation Areas (Outside Shoreline Jurisdiction); and Chapter 17.52E, Shoreline Regulations. See also Chapter 17.84 regarding SEPA. (Ord. 1403 § 1 (Exh. A) (part), 2017)