Chapter 11.07
SMALL CELL DEPLOYMENT – FRANCHISE AND SMALL CELL PERMIT
Sections:
11.07.050 Facilities designated in the franchise and/or small cell permit application.
11.07.060 Small cell permit and minor deviations.
11.07.070 Significant deviations.
11.07.080 Wireless communication and small cell deployment facility approvals and processes.
11.07.090 Additional review procedures.
11.07.110 Compliance with state processing limitations.
11.07.010 Overview.
In order to manage its right-of-way in a thoughtful manner which balances the need to accommodate new and evolving technologies with the preservation of the natural and aesthetic environment of the city while complying with the requirements of state and federal law, the city of Oak Harbor has adopted this administrative process for the deployment of small cell and microcell technology. Service providers seeking to use the public right-of-way for small cell deployment, data transmission or other related services to the citizens of the city must have a valid franchise to provide the specific service which utilizes the right-of-way and a small cell permit or specific franchise authorization to deploy small cell technology. Entities with franchises who wish to utilize a small cell deployment to upgrade or expand their existing services shall utilize the small cell permit process prior to deployment of their technology and obtain design approval for specific installations. The small cell permit process administers deployment under the franchise. An entity without a franchise may apply concurrently for a franchise and small cell permit which shall be processed concurrently as one master permit within the meaning of RCW 35.99.010(3) and 35.99.030. Entities with a valid franchise who seek to add a small cell deployment shall comply with OHMC 11.07.020 and 11.07.050(2).
(1) Nothing in this chapter revises or diminishes the rights and obligations of an existing franchise. (Ord. 1882 § 1, 2019; Ord. 1840 § 1, 2018; Ord. 1830 § 1, 2018).
11.07.020 Application.
Applicant shall apply on forms established pursuant to Chapter 11.06 OHMC; provided, however, that an applicant who has been granted five or more city-wide franchises may provide the five most recent Washington cities where the applicant has been provided a franchise. If a Washington franchise has been revoked, the applicant shall identify the revoking jurisdiction. In addition to the information required by that chapter, the following information shall be provided by all applicants for franchises seeking to utilize small cell deployment. Existing franchisees who seek to utilize a small cell deployment to expand or implement an existing franchise shall provide the information as a part of a small cell permit application for small cell deployment or by a request to amend the existing franchise.
(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 cell 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 an infrastructure provider. 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 OHMC Title 19 if applicable.
(2) Implementation. The rights granted under the franchise are implemented through the issuance of small cell permits. The franchise application may be accompanied by one or more applications for a small cell permit to deploy small cells. An initial franchise and all related small cell permit applications shall be processed concurrently as one master permit.
(a) Up to 20 sites may be specified in one small cell permit application for processing. The director may allow up to five additional sites in the same application in order to consider small cell sites within one logical service area in one application.
(b) Issuance of a small cell 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 small cell 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 should be considered first. All small cell permits which are submitted in conjunction with a franchise application shall be considered as one master permit:
(i) Provided, however, that an applicant with an existing franchise may, at the applicant’s sole discretion, elect to utilize the expedited review process set forth in OHMC 11.07.100.
(ii) Any element of a deployment which qualifies as either an eligible facilities request or a collocation 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 Chapter 19.30 OHMC.
(d) The director may approve, deny or conditionally approve all or any portion of the sites proposed in the small cell permit application.
(e) Any application for a small cell permit which contains an element which is not exempt from SEPA review shall comply with Chapter 43.21C RCW and this chapter.
(f) 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 will operate. If facilities necessary to the small cell deployment are to be provided by a third party, then the small cell deployment in the initial franchise or in a subsequent small cell permit shall be conditioned on an RF certification by the third party and the requirement that the 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. The applicant or franchisee 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.
(g) Regulatory Authorization. Issuance of the master use or small cell 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 30 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 incomplete application within 60 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 as well as a determination that the applicant has failed to timely resubmit and is deemed to have withdrawn its application. No application shall be deemed complete without the fee deposit set by the director. (Ord. 1882 § 1, 2019; Ord. 1840 § 1, 2018; Ord. 1830 § 1, 2018).
11.07.025 Application – Fee.
A permit fee shall be charged by the city for the issuance of a master permit, small cell permit, and concealment plan review and shall be per the master fee schedule adopted by resolution of the city council. (Ord. 1882 § 1, 2019).
11.07.030 Review process.
The following provisions relate to applications for a franchise or small cell permit for small cell 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 cell 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 small cell 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. In any zone not designated as a design district (“design review”), upon application for a small cell permit or for facilities designated within a franchise, the city will permit small cell deployment on existing utility poles and replacement poles conforming to the city’s generally applicable development standards adopted pursuant to OHMC 19.29.030. Accordingly, small cell facilities installed pursuant to this concealment authorization may not be expanded pursuant to an eligible facilities request if the director determines that such expansion would defeat the concealment elements of the facilities as set forth in OHMC 19.29.030.
(3) Design District. Any small cell facility proposed for location in a design district requires approval of a concealment plan. The central business district (CBD), maritime district (MAR), and the right-of-way designated as the scenic byway (Cascade Loop) are designated as design districts. Small cell facilities in undergrounded areas also require an approved concealment plan. A concealment plan shall meet the requirements established in OHMC 19.29.030(6). (Ord. 1882 § 1, 2019; Ord. 1840 § 1, 2018; Ord. 1830 § 1, 2018).
11.07.040 Public comment.
Upon determination of completeness as set forth in OHMC 11.07.020(h), the applicant is encouraged to host informational meetings for the public regarding the small cell 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. 1882 § 1, 2019; Ord. 1840 § 1, 2018; Ord. 1830 § 1, 2018).
11.07.050 Facilities designated in the franchise and/or small cell permit application.
Small cell deployments may be approved by reference to exhibits in an approved franchise. Approval of the franchise shall be deemed to approve the site and the design of small cell facilities set forth in the franchise. This approval is limited to the specific location, facility and design elements shown on the exhibits to the franchise. Any element not shown on an exhibit must be approved by the governing review processes listed in OHMC 11.07.060 and 11.07.070 and, when applicable, Chapter 19.29 OHMC. All facilities shall comply with the development standards set forth in OHMC 19.29.030 and must:
(1) Apply to amend the existing franchise to designate sites for small cell deployment, as well as approve the small cell facilities to be installed and the concealment measures to be utilized; and/or
(2) Apply for a small cell permit which may include:
(a) Small cell facilities to be installed on existing utility poles with an extension or replacement poles which comply with OHMC 19.29.030; and/or
(b) Obtain a concealment plan for small cell facilities which require new utility poles, replacement poles or pole extensions which:
(i) Are proposed for installations in a design district or undergounded areas; or
(ii) Are a significant deviation. See OHMC 11.07.070 and Chapter 19.29 OHMC. (Ord. 1882 § 1, 2019; Ord. 1840 § 1, 2018; Ord. 1830 § 1, 2018).
11.07.060 Small cell permit and minor deviations.
(1) The director shall review applications for small cell permits for small cell deployments approved by a franchise or described in a concurrent franchise application. The director may authorize minor deviations in the small cell permit from the dimensional design and concealment technologies referenced in the exhibits to the franchise or design standards.
(2) A deviation in height above that established by OHMC 19.29.030 is a significant deviation.
(3) Deviations in the dimensions or volume of small cell facilities which do not exceed the cumulative total provided by the definition of a small cell facility in RCW 80.36.375 may be considered a minor deviation when an applicant replaces components of an existing, approved small cell facility. Similarly, the addition of antennas on a pole, not to exceed a cumulative total of 12 cubic feet, shall be considered a minor deviation. Provided, however, that in each instance the new or revised facilities do not defeat the concealment features set by city’s generally applicable pole design standards adopted pursuant to the franchise and OHMC 19.29.030.
(4) The decision of the director to approve a small cell permit with a minor deviation, if any, shall be final and is not subject to appeal under city code or further legislative review. (Ord. 1882 § 1, 2019; Ord. 1840 § 1, 2018; Ord. 1830 § 1, 2018).
11.07.070 Significant deviations.
Any request for significant deviations from the approved small cell facilities design designated in the franchise, small cell permit or city’s design standards shall be considered under the provisions of OHMC 19.29.030(6). An applicant seeking approval of a new pole or a replacement pole in a design district designated by Chapter 19.29 OHMC or in an undergrounded area shall be subject to the same review process. (Ord. 1882 § 1, 2019; Ord. 1840 § 1, 2018; Ord. 1830 § 1, 2018).
11.07.080 Wireless communication and small cell deployment facility approvals and processes.
Approval of a franchise, small cell permit and/or other approval referenced in this chapter are conditioned on the following requirements:
(1) Satisfy applicable bulk requirements such as noise and light regulations.
(2) Prepare a concealment plan in accordance with OHMC 19.29.030(6) for replacement utility poles and new utility poles in a design district or undergrounded area.
(3) 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.
(4) 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 or city property;
(5) 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-if-way. (Ord. 1882 § 1, 2019; Ord. 1840 § 1, 2018; Ord. 1830 § 1, 2018).
11.07.090 Additional review procedures.
Wireless communication facilities in shoreline management zones or critical areas are subject to review as provided in OHMC Title 20. (Ord. 1882 § 1, 2019; Ord. 1840 § 1, 2018; Ord. 1830 § 1, 2018).
11.07.100 Expedited review.
An applicant, at its option, may opt for expedited review. Absent such a request, the city will process applications on a first-come, first-served basis, taking into account its resources and the federal shot clocks incorporated by Chapter 19.30 OHMC. An applicant requesting expedited review may select a third-party consultant from a list established by the city through requests for qualifications or may propose an independent reviewing entity for review by the city. Such entity shall be engaged pursuant to a third-party contract. The applicant shall be responsible for paying all costs incurred in the expedited review process. Nothing herein shall be deemed to require an applicant to utilize expedited review. (Ord. 1882 § 1, 2019; Ord. 1840 § 1, 2018; Ord. 1830 § 1, 2018).
11.07.110 Compliance with state processing limitations.
The provisions of this chapter shall be interpreted and applied to insure compliance with Chapter 35.99 RCW and federal law.
(1) An application for a franchise seeking general permission to utilize the public right-of-way for telecommunications shall be processed in compliance with the time limits established by RCW 35.99.030(1)(b) and is a master use permit within the meaning of RCW 35.99.010(3).
(2) An application to deploy specific new small cell facilities at specific locations in the public right-of-way which have not been previously approved as a part of a franchise approval is a police power exercise governed by RCW 35.99.040(2) and shall be governed by the time limits established by federal law for new facilities; provided, however, that:
(a) The city will endeavor to process the application for new small cell facilities to be located on existing utility poles within 60 days; provided, however, that applications qualifying as eligible facilities requests shall be processed as provided in Chapter 19.30 OHMC.
(b) The city will endeavor to process the application for new small cell facilities to be located on new or replacement utility poles within 90 days.
(c) A small cell permit application submitted concurrently with an application for a new or amended franchise shall be considered as an application for a consolidated master use permit and shall be processed with the time limits established by RCW 35.99.030(1)(b).
(3) A telecommunications franchise, a consolidated master permit for telecommunications (franchise and small cell permit) or a small cell permit which authorizes deployment of specific facilities at specific locations is implemented through the issuance of right-of-way use permits. These authorizations to enter the public right-of-way to install specifically approved small cell facilities are use permits within the meaning of RCW 35.99.010(8) and shall be issued within 30 days of receipt of a complete application as required by RCW 35.99.030(2); provided, that requests for minor deviations shall be processed by the director pursuant to OHMC 11.07.060 within the same time frame.
(4) Small cell permit approvals are considered pursuant to review process I and are not subject to appeal. (OHMC 18.20.230) (Ord. 1882 § 1, 2019; Ord. 1840 § 1, 2018; Ord. 1830 § 1, 2018).