Chapter 4.09
SMALL WIRELESS DEPLOYMENT – FRANCHISE AND SMALL WIRELESS PERMITS
Sections:
4.09.010 Overview, application and review process.
4.09.050 Small wireless permit and minor deviations.
4.09.060 Wireless communication and small wireless deployment facility approvals and processes.
4.09.070 Additional review procedures.
4.09.010 Overview, application and review process.
The city and applicant for a franchise and other permits associated with the deployment of small wireless facilities face challenges in coordinating applicable legislative and administrative processes under the Federal Communications Commission (FCC) regulations. A franchise for the use of the city’s right-of-way is a form of contract which requires approval by the city council. Permits to exercise the rights granted under such a franchise and to install small wireless facilities on private property are considered in a parallel, consolidated administrative process. FCC regulation provides safe harbor time periods as well as completeness requirements which apply to all approvals relating to a small wireless facility deployment. Time limitations governing the process are triggered by the applicant’s submittal of applications for the deployment. Accordingly, all parts of an application for a master permit to deploy small wireless facilities must be considered in order to determine completeness. Applicants are encouraged and expected to provide all related applications in one submittal.
(1) Application Process. The director is authorized to establish franchise and other application forms to gather the information required by these ordinances from applicants and to determine the completeness of the application process as provided herein.
(a) Franchise. The process typically begins with and depends upon approval of a franchise for the use of the public right-of-way to deploy small wireless facilities if any portion of the applicant’s facilities are to be located in the right-of-way. The application for a franchise is designated as Part A of the application. An applicant with a valid franchise for the deployment of small wireless facilities in the city may proceed to apply for a small wireless facilities permit and related approvals (Parts B and C). An applicant at its option may utilize phased development. Because franchises are required by federal law to be competitively neutral, the city has established a franchise format for use by all right-of-way users. The format contains the basic requirements for the use of right-of-way. Consideration of the franchise application is a legislative act of the city council. Consideration by the city council shall run parallel with other necessary administrative approvals and approval or possession of a franchise is a requirement for any small wireless facility deployment seeking to use the public right-of-way.
(b) Small Wireless Facility Permits. Part B of the application process requires specification of all small wireless facility components and their sites. Each component shall be described in detail as provided in these ordinances. Any request for deviation, whether minor or significant, from adopted city standards shall be set forth in the application.
(c) Associated Permit(s). Part C of the application shall attach all associated permits such as applications or checklists required under the critical areas, shorelines or SEPA ordinances. Applicants for deployment of small wireless facilities in city design districts or underground areas shall provide a concealment plan as provided herein in NPMC 18.42.110(6).
(d) Construction in the Right-of-Way. Small wireless facilities installed pursuant to an approved master permit (both a franchise and a small wireless facility permit) or a small wireless facility permit approved separately for an existing franchisee may proceed to install the approved specific facilities by complying with the requirements contained in Chapter 10.48 NPMC; provided, however, that an approved small wireless permit to install small wireless facilities in the public right-of-way shall authorize entry into the public right-of-way to install the approved facilities if acted upon within 60 days of approval by email or written notification to the director.
(e) Later Discovered Deviations. Recognizing that each utility pole represents a unique environment for the installation of small wireless facilities, if a deviation, whether minor or significant, is required from the standards of this chapter in order to install a small wireless facility on any structure, and such deviation was not approved as part of the master permit or small wireless facility permit process, an application shall be filed for the amendment of the initial small wireless facility permit. Administrative review of the request for deviation shall be processed as provided herein. Such an amended application shall be considered a new application and completeness, review and all time periods shall commence anew.
(f) Leases. A wireless service provider who wishes to attach to any utility pole or other structure or building owned by the city shall include an application for a lease(s) as a component of its application. The director is authorized to administer a lease review process, develop an application form and approve leases in the form approved for general use by the city council for any utility pole or other structure in the right-of-way, including a new utility pole or structure. The installation shall conform to the standards adopted in NPMC 18.42.110 or with an approved minor deviation. Leases for the use of other public property, buildings or facilities including any park land or facility shall be submitted to the city council for approval. Any approval identified in the initial application process shall be considered by the city council in conjunction with its consideration of the franchise. Applications submitted at later dates shall be considered by the director or the city council as provided herein under a separate review process.
(2) Completeness. Any and all parts of an application for the deployment of small wireless facilities including but not limited to franchise, small wireless facility permits and all associated permits shall be submitted at one time in order that their completeness may be considered. An applicant seeking to phase deployment of a small wireless facilities system may identify the intended phasing in the franchise application process. Franchisees with a valid franchise to deploy small wireless facilities may apply for a small wireless permit for the deployment of initial or additional phases of a small wireless facility deployment at any time subject to the commencement of a new completeness review time period for permit processing.
(3) Safe Harbors. The FCC, 47 CFR 1.6003, has established presumptively reasonable time periods for review of facilities for the deployment of small wireless facilities. The city shall make every reasonable effort consistent with any conflicting provisions of state or federal law, and the preservation of the city’s health, safety and aesthetic environment to comply with these time periods to the fullest extent possible. (Ord. 990 § 2, 2019; Ord. 959 § 2, 2017).
4.09.020 Application.
Applicants shall apply using the city’s franchise application form and submit a fee deposit as provided in NPMC 4.08.040 and the city’s fee resolution. The fee deposit level shall be set by the director of community development (“director”). The director is charged with administration of small wireless deployments and other wireless communication review processes established under this chapter and Chapters 4.10 and 18.42 NPMC. Service providers seeking to utilize the city’s right-of-way for small wireless deployments shall specify geographic boundaries for the small wireless deployment described in the application. Phased development is permitted, and an applicant is encouraged to specify at least the initial small wireless deployment in its small wireless permit application.
In addition to the requirements of Chapter 4.08 NPMC, the following information shall be provided by all applicants for a small wireless permit. Existing franchisees who seek to utilize a small wireless deployment to expand, assist or implement an existing franchise shall provide the information as a part of a small wireless permit application for small wireless deployment.
(1) Designation of Facilities. The application shall provide specific locational information including GIS coordinates of all facilities to the extent known and specify whether and where small wireless facilities are to be located on existing utility poles including city-owned light standards included in the definition of utility pole, or will utilize replacement utility poles, new poles, towers, and/or other structures. Conduit and/or ground-mounted equipment 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 facilities shall be provided by the applicant. Failure to provide sufficient detail may result in a later finding of a significant change 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 this chapter and in Chapter 18.42 NPMC.
(2) The director may approve, deny or conditionally approve all or any portion of the sites proposed in the small wireless permit application.
(3) An application for a small wireless permit which contains an element which is not exempt from SEPA review shall simultaneously apply under Chapter 43.21C RCW and Chapter 13.12 NPMC.
(4) RF Certification. The applicant shall submit a sworn affidavit signed by an RF engineer with knowledge of the proposed project affirming that the small wireless 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 wireless facility and associated wireless backhaul will operate. An existing franchisee applying for a small wireless permit for small wireless deployment shall provide an RF certification for all facilities included in the deployment which are to be installed by the franchisee. If facilities necessary to the small wireless deployment are to be provided by a third party, the right-of-way use permit to deploy such facilities shall be contingent on submittal of an RF certification by the third party for such facilities and the requirement that such third party obtain a franchise. If such facilities will emit RF emissions, this additional RF certification shall address the cumulative impact of the RF emissions and certify compliance with federal requirements and the initial franchise following installation. The applicant shall immediately remove any facilities that exceed FCC RF emissions requirements. A modification of the facility by an eligible facilities request requires a new RF certification.
(5) Regulatory Authorization. Applicants for a small wireless permit for the facilities shall provide proof of FCC and other regulatory approvals required to provide the service(s) or utilize the technologies sought to be installed. See also NPMC 4.08.030(2)(j) for rules and application submittals for small wireless facilities that seek to attach or replace city-owned utility poles and other structures.
(6) Completeness – Franchise and Small Wireless Applications. The director or his/her designee shall review an application for completeness and notify in writing the applicant by the tenth day after submission whether the application is complete by clearly and specifically identifying missing documents or information; provided, however, that an applicant may consent to a different completeness review period. The review process and any tolling of the applicable presumptively reasonable review period shall occur in compliance with 47 CFR 1.6003. No application shall be deemed complete without the fee deposit set by the director. (Ord. 990 § 2, 2019; Ord. 959 § 2, 2017).
4.09.030 Review process.
The following provisions relate to applications for a franchise which seeks to utilize small wireless facilities or small wireless permit for small wireless deployments.
(1) Review of Facilities. Review of the site locations proposed by the applicant shall be governed by the provisions of 47 U.S.C. 253 and 332 and applicable case law. Applicants for franchises and the small wireless permits as well as all permits and approvals consolidated with such applications for review 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 small wireless permit review under this chapter shall neither prohibit nor have the effect of prohibiting the ability of an applicant to provide telecommunications services.
(2) Concealment. Upon application for a small wireless permit or for facilities designated within a franchise, the city will permit small wireless deployment on existing utility poles conforming to the city’s generally applicable aesthetic, design and concealment standards. See NPMC 18.42.110. Accordingly, small wireless facilities installed pursuant to this concealment authorization may not be expanded pursuant to an eligible facilities request when the director determines that such expansion would defeat the concealment elements of the facilities. (Ord. 990 § 2, 2019; Ord. 981 § 3, 2018; Ord. 959 § 2, 2017).
4.09.040 Public notice.
The city shall provide notice of a complete application for a small wireless permit on the city’s website with a link to the application. This notice requirement shall also apply to existing franchisees applying for a small wireless deployment. The notice shall include an email contact and telephone number for the applicant to answer citizen inquiries. This notice is for the public’s information and is not a part of any hearing nor subject to any land use appeal process. (Ord. 990 § 2, 2019; Ord. 959 § 2, 2017).
4.09.050 Small wireless permit and minor deviations.
(1) The director shall review applications for small wireless permits for small wireless deployments. The director may authorize minor deviations in the small wireless permit from the dimensional design and concealment technologies referenced in the exhibits to the franchise or design standards.
(2) Deviations in the dimensions, height, or volume of small cell facilities, which are necessary to conform the facilities to the requirements of the pole owner, provide adequate safety clearances or address similar technical issues, may be approved as minor deviations; provided, that the deviations do not cause the facility as revised to exceed the definition of a small wireless facility. Replacement of components of an existing, approved small wireless facility which do not exceed the volumetric limitations for a small wireless facility may also be approved as deviations. Provided, however, that in each instance the new or revised facilities do not defeat the concealment features set by the city’s generally applicable small wireless aesthetic, design and concealment standard or a specific concealment plan adopted pursuant to Chapter 18.42 NPMC.
(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 appeal under city code or further legislative review. (Ord. 990 § 2, 2019; Ord. 981 § 5, 2018; Ord. 959 § 2, 2017. Formerly 4.09.060).
4.09.060 Wireless communication and small wireless deployment facility approvals and processes.
Approval of a franchise, small wireless permit and/or other approval referenced in this chapter are conditioned on the following requirements:
(1) Comply with applicable design or concealment standards.
(2) Obtain the written approval of the owner of any utility pole for the installation of its facilities on such utility pole. Approval of a franchise does not authorize attachment to city-owned utility poles or other structures.
(3) Unless specifically provided for in a franchise, obtain a lease from the city to utilize the city’s ground space for the installation of any new pole, a replacement utility pole over 60 feet or to locate any new ground-based structure, base station or other attendant equipment on city right-of-way, city property or for attachment to or replacement of a city-owned utility pole or structure.
(4) Comply with all city construction standards and state and federal codes when operating in the right-of-way and obtain a required permit to enter the right-of-way.
(5) Replacement Utility Pole – Street Lighting. With the express permission of the city, a new utility pole may be permitted in the form of a new street light standard. The design of the street light standard shall be in accordance with adopted city construction standards or approved by the director by a small wireless permit. Wherever technologically feasible, all equipment and cabling shall be internal to the replacement street lighting standard.
(6) Small wireless facilities approved pursuant to this chapter shall be considered as an outright permitted use when located within the right-of-way. (Ord. 990 § 2, 2019; Ord. 959 § 2, 2017. Formerly 4.09.080).
4.09.070 Additional review procedures.
Wireless communication facilities in shoreline management zones or critical areas are subject to review as provided in Chapter 13.12 NPMC and NPMC Title 16; provided, that, while Chapter 16.20 NPMC generally prohibits wireless communication facilities, small wireless may be approved as a shoreline conditional use. (Ord. 990 § 2, 2019; Ord. 959 § 2, 2017. Formerly 4.09.090).