Chapter 18.61A
ELIGIBLE FACILITIES MODIFICATIONS
Sections:
18.61A.010 Adoption of findings and conclusions.
18.61A.030 Applicability – Relationship to other rules and regulations.
18.61A.040 Permit classification.
18.61A.050 Submittal requirements.
18.61A.060 Application review.
18.61A.070 Nonconforming structure – Termination.
18.61A.080 Enforcement – Violation.
18.61A.010 Adoption of findings and conclusions.
The recitals set forth in the ordinance adopting this code are adopted as findings and conclusions of the city council. (Ord. 2016-015 § 4 (Exh. A § 3))
18.61A.020 Definitions.
Definitions applicable to this chapter are included in Chapter 18.61 SMC. (Ord. 2016-015 § 4 (Exh. A § 3))
18.61A.030 Applicability – Relationship to other rules and regulations.
A. Sole and Exclusive Procedure. Except as may be otherwise provided in this chapter, and not withstanding any other provisions in the city code, the provisions of this chapter shall be the sole and exclusive procedure for review and approval of a proposed facilities modification which the applicant asserts is subject to review under Section 6409 of the Spectrum Act. To the extent that other provisions of the city code establish a parallel process for review and approval of a project permit application for a proposed facilities modification, the provisions of this chapter shall control. In the event that any part of an application for project permit approval includes a proposed facilities modification, the proposed facilities modification portion of the application shall be reviewed under the provisions of this chapter. In the event that an application for project permit approval includes a proposal to modify an eligible support structure, and the applicant does not assert in the application that the proposal is subject to review under Section 6409 of the Spectrum Act, such proposal shall not be subject to review under this chapter and may be subject to review under other applicable provisions of the city code.
B. Nonconforming Structures. This chapter shall not apply to a proposed facility modification to an eligible support structure that is not a legal conforming, or legal nonconforming, structure at the time a completed eligible facilities modification application is filed with the city. To the extent that the nonconforming structures and use provisions of the city code would operate to prohibit or condition approval of a proposed facilities modification application otherwise allowed under this chapter, such provisions are superseded by the provisions of this chapter and shall not apply.
C. Replacement of Eligible Support Structure. This chapter shall not apply to a proposed facility modification to an eligible support structure that will involve replacement of the tower or base station.
D. First Deployment – Base Station. This chapter shall not apply to a proposed facility modification to a structure, other than a tower, that does not, at the time of submittal of the application, already house or support transmission equipment lawfully installed within or upon, or attached to, the structure.
E. Interpretation. Interpretations of this chapter shall be guided by Section 6409 of the Spectrum Act; the FCC Eligible Facilities Request Rules, the FCC’s Report and Order in In re Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, WT Docket Nos. 13-238, 13-32; WC Docket No. 11-59; FCC 14-153; and other applicable laws, regulations, and associated guidance.
F. SEPA Review. Unless otherwise provided by law or regulation, decisions pertaining to an eligible facilities modification application are not subject to, and are exempt from, the requirements of RCW 43.21C.030(2)(c), if:
1. The proposed facilities modification would not increase the height of the eligible support structure by more than 10 percent, or 20 feet, whichever is greater; or
2. The mounting of equipment that would involve adding an appurtenance to the body of the eligible support structure would not protrude from the edge of the structure more than 20 feet, or more than the width of the structure at the level of the appurtenance, whichever is greater;* or
3. The authority to condition or deny an application pursuant to Chapter 43.21 RCW is preempted, or otherwise supplanted, by Section 6409 of the Spectrum Act.
*Note: See RCW 43.21C.0384 and WAC 197-11-800(25).
G. Reservation of Authority. Nothing herein is intended or shall operate to waive or limit the city’s right to enforce, or condition approval on, compliance with generally applicable building, structural, electrical, and safety codes and with other laws codifying objective standards reasonably related to health and safety. (Ord. 2016-015 § 4 (Exh. A § 3))
18.61A.040 Permit classification.
An eligible facilities modification permit shall be classified as an administrative permit subject to review and approval or denial by the approval authority. (Ord. 2016-015 § 4 (Exh. A § 3))
18.61A.050 Submittal requirements.
A. The purpose of the submittal requirements is to ensure that the city has all information and documentation that is reasonably necessary to determine if the applicant’s proposed facilities modification will substantially change the physical dimensions of an eligible support structure. The submittal requirements are not intended to require the applicant to establish the need for the proposed modifications or to justify the business decision to propose such modifications. No eligible facilities modification application shall be deemed complete unless it is, in writing, accompanied by the applicable application and review fee, includes the required submittals, and is attested to by the authorized person submitting the application on behalf of the applicant, certifying the truth and accuracy of the information provided in the application. The application shall include the following submittals, unless waived by the approval authority:
1. The following contact information for the authorized person:
a. Name;
b. Title;
c. Mailing address;
d. Phone number; and
e. Electronic mail address (optional).
2. The legal and dba names, mailing address, Washington tax number, and contact phone number(s) of applicant.
3. If a corporation, the name and address of the registered agent of applicant in Washington State, and the state of incorporation of applicant.
4. If applicant is an entity, other than a corporation, such as a partnership or limited liability company, the names and business addresses of the principals.
5. An assertion that the proposed facilities modification is subject to review under Section 6409 of the Spectrum Act.
6. If the applicant is not the owner or person in control of the eligible support structure and/or site, the following shall be required:
An attestation that the owner or person in control of the eligible support structure and/or site has consented to the proposed facilities modification. If the eligible support structure is located in a public right-of-way, the applicant must also attest that applicant has authorization to install, maintain and operate transmission equipment in, under and above the public right-of-way.
7. If the applicant proposes a modification involving collocation of transmission equipment or the replacement of transmission equipment, the following shall be required:
a. Complete copies of the underlying land use approvals for siting of the tower or base station proposed to be modified, establishing that, at the time of submittal of the application, such tower or base station constituted an eligible support structure.
b. For collocations, proof of current compliance with the FCC’s RF emissions standards before the collocation and written documentation signed under penalty of perjury under the laws of the state of Washington that the proposed collocation will still fall within the FCC’s RF emissions standards after collocation. For purposes of this section, “current compliance” means documentation within one calendar year of the date of submittal. Such documentation must include a copy of the fully completed FCC form “A Local Government Official’s Guide to Transmitting Antenna RF Emission Safety: Rules, Procedures, and Practical Guidance: Appendix A” titled “Optional Checklist for Determination Of Whether a Facility is Categorically Excluded” for each frequency band of RF emissions to be transmitted from the proposed facility upon the approval of the application. All planned radio frequency emissions on all frequency bands must be shown on the Appendix A form(s) attached to the application. All planned radio frequency emissions are to be entered on each Appendix A form only in wattage units of “effective radiated power.”
c. All applications for collocations must include a site determination by an engineer licensed to conduct business within Washington State that the structure is designed to accommodate the additional load. The determination must take into account, at a minimum, all facilities currently located on the roof/structure, the cumulative load after accounting for all existing facilities, and the cumulative load with the proposed facilities, and any required engineering changes to the structure needed to accommodate additional load.
8. If the applicant proposes a modification that will result in an increase in height of the eligible support structure, the following shall be required:
Record drawings, as-built plans, or the equivalent, showing the height of the eligible support structure, (a) as originally constructed and granted approval by the city or other applicable local zoning or similar regulatory authority, or (b) as of the most recent modification that received city, or other local zoning or regulatory approval, prior to the passage of the Spectrum Act, whichever height is greater.
9. If the applicant proposes a modification to an eligible support structure, which structure, or proposed modification of the same, is subject to preexisting restrictions or requirements imposed by a reviewing official or decision-making body pursuant to authority granted under the city code, or an ordinance or a municipal code of another local government authority, the following shall be required:
A copy of the document (e.g., CUP or SUP) setting forth such preexisting restrictions or requirements together with a certification that the proposed facilities modification conforms to such restrictions or requirements; provided, that such certification shall have no application to the extent the proposed facilities modification relates solely to an increase in height, increase in width, addition of cabinets, or new excavation, that does not result in a substantial change in the physical dimensions of the eligible support structure.
10. If the applicant proposes a modification to an eligible support structure, which structure, or proposed modification of the same, is subject to preexisting concealment restrictions or requirements, or was constructed with concealment elements, the following shall be required:
Applicant shall set forth the facts and circumstances demonstrating that the proposed modification would not defeat the existing concealment elements of the eligible support structure. If the proposed modification will alter the exterior dimensions or appearance of the eligible support structure, applicant shall include a detailed visual simulation depicting how the eligible support structure will appear after the proposed modification is complete. The visual simulation shall depict to scale the eligible support structure in relation to the trees, landscaping and other structures adjacent to, or in the immediate vicinity of, the eligible support structure.
11. If the applicant proposes a modification that will protrude from the edge of a nontower eligible support structure, the following shall be required:
Record drawings, as-built plans, or the equivalent, showing at a minimum the edge of the eligible support structure at the location of the proposed modification.
12. If the applicant proposes a modification to an eligible support structure that will (a) include any excavation, (b) would result in a protrusion from the edge of a tower that exceeds an existing protrusion of any transmission equipment attached to a tower, or (c) would protrude from the edge of a nontower eligible support structure, the following shall be required:
A description of the boundaries of the site together with a scale drawing based on an accurate traverse, with angular and lineal dimensions, depicting the boundaries of the site in relation to the tower or base station proposed to be modified and depicting the proposed location, elevation and dimensions of the new or replacement transmission equipment. The city may require a survey by a land surveyor licensed in the state of Washington when, in the judgment of the approval authority, a survey is reasonably necessary to verify the boundaries of the site to determine if the proposed facilities modification would result in a substantial change in the physical dimensions of the eligible support structure.
13. If the applicant proposes a modification to the eligible support structure that includes hardening through structural enhancement, the following shall be required:
A technical report by a qualified engineer accredited by the state of Washington demonstrating that the structural enhancement is performed in connection with and is necessary to support the proposed collocation, removal, or replacement of transmission equipment and conforms to applicable code requirements. The city may retain the services of an independent technical expert to review, evaluate, and provide an opinion regarding the applicant’s demonstration of necessity.
14. If the applicant proposes a modification to a tower, the following shall be required:
A stamped report by a state of Washington registered professional engineer demonstrating that the tower with the proposed modifications will comply with applicable structural, electrical and safety codes, including by way of example, and not limitation, EIA/TIA-222-Revision G, published by the American National Standards Institute (as amended), allowable wind speed for the applicable zone in which the tower is located, and describing the general structural capacity of the tower with the proposed modifications, 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. The city may retain the services of an independent technical expert to review, evaluate, and provide an opinion regarding the applicant’s demonstration of compliance.
15. If the applicant proposes a modification to a base station, the following shall be required:
A stamped report by a state of Washington registered professional engineer demonstrating that the base station, with the proposed modifications, will comply with applicable structural, electrical and safety codes.
16. If the applicant proposes a modification requiring alteration to the eligible support structure, excavation, installation of new equipment cabinets, or any other activities impacting or altering the land, existing structures, fencing, or landscaping on the site, the following shall be required:
A detailed site plan and drawings, showing the true north point, a graphic scale and, drawn to an appropriate decimal scale, indicating and depicting:
a. The location, elevation and dimensions of the existing eligible support structure;
b. The location, elevation and dimensions of the existing transmission equipment;
c. The location, elevation and dimensions of the transmission equipment, if any, proposed to be collocated or that will replace existing transmission equipment;
d. The location, elevation and dimensions of any proposed new equipment cabinets and the intended use of each;
e. Any proposed modification to the eligible support structure;
f. The location of existing structures on the site, including fencing, screening, trees, and other significant site features; and
g. The location of any areas where excavation is proposed showing the elevations, depths, and width of the proposed excavation and materials and dimensions of the equipment to be placed in the area excavated.
17. Copies of any environmental documents required by any federal agency. These shall include the environmental assessment required by 47 CFR Part 1 (Part 1 – Practice and Procedure), Section 1.1307, as amended, or, in the event than an FCC environmental assessment is not required, a statement that described the specific factors that obviate the requirement for an environmental assessment.
B. Waiver of Submittal Requirement. The approval authority may waive any submittal requirement upon determination that the required submittal, or part thereof, is not reasonably related to the substantial change criteria. A waiver, to be effective, must be in writing and signed by the approval authority.
C. When Received. An eligible facilities modification application, and any supplemental submittals, shall be deemed received by the city upon the date such application, or supplemental submittal, is filed. An application, and any supplemental submittals, must be filed in person during regular business hours of the city and must be accompanied by the applicable permit review fee(s). Any application received by the city without contemporaneous payment or prior deposit of the applicable permit review fees will be rejected. (Ord. 2016-015 § 4 (Exh. A § 3))
18.61A.060 Application review.
A. Review. The approval authority shall review an eligible facilities modification application to determine if the proposed facilities modification is subject to this chapter, and if so, if the proposed facilities modification will result in a substantial change to the physical dimensions of an eligible support structure.
B. Application. The department shall prepare and make publicly available an application form which shall be limited to the information necessary for the department 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.
C. Modification of Application. In the event that after submittal of the application, or as a result of any subsequent submittals, applicant modifies the proposed facilities modification described in the initial application, the application as modified will be considered a new application subject to commencement of a new application review period; provided, that applicant and the approval authority may, in the alternative, enter into a mutually agreeable tolling agreement allowing the city to request additional submittals and additional time that may be reasonably necessary for review of the modified application.
D. Approval – Denial.
1. An eligible facilities application shall be approved, and an eligible facilities permit issued, upon determination by the approval authority that the proposed facilities modification is subject to this chapter and that it does not substantially change the physical dimensions of an eligible support structure.
2. An eligible facilities application shall be denied upon determination by the approval authority that the proposed facilities modification is not subject to this chapter or will substantially change the physical dimensions of an eligible support structure. A denial of an eligible facilities modification application shall set forth in writing the reasons for the denial and shall be provided to the applicant. A proposed facilities modification will substantially change the physical dimensions of an eligible support structure if it meets any of the substantial change criteria.
E. Type of Review. Upon receipt of an application for an eligible facilities request pursuant to this chapter, the department shall review such application to determine whether the application so qualifies.
1. Substantial Change. A modification substantially changes the physical dimensions of an eligible support structure if it meets any of the following criteria:
a. For towers other than towers in the public rights-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;
b. For towers other than towers in the public rights-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;
c. 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 rights-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;
d. It entails any excavation or deployment outside the current site;
e. It would defeat the concealment elements of the eligible support structure; or
f. 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 in this section.
2. For purposes of this section, changes in height should be measured from the original support structure in cases where deployments are or will be separated horizontally, such as on buildings’ rooftops; in other circumstances, changes in height should be measured from the dimensions of the tower or base station, inclusive of originally approved appurtenances and any modifications that were approved prior to the passage of the Spectrum Act. 47 CFR Section 1.40001(b)(7)(i)(A).
F. Time Frame for Review. Within 60 days of the date on which an applicant submits an application seeking approval under this chapter, the department shall approve the application unless it determines that the application is not covered by this chapter.
G. Tolling of the Time Frame for Review. The 60-day review period begins to run when the application is filed, and may be tolled only by mutual agreement by the department and the applicant, or in cases where the department determines that the application is incomplete. The time frame for review is not tolled by a moratorium on the review of applications. To toll the time frame for incompleteness, the department must provide written notice to the applicant within 30 days of receipt of the application, specifically delineating all missing documents or information required in the application. The time frame for review begins running again when the applicant makes a supplemental submission in response to the department’s notice of incompleteness.
H. Following a supplemental submission, the department will notify the applicant within 10 days that the supplemental submission did not provide the information identified in the original notice delineating missing information. The time frame is tolled in the case of second or subsequent notices pursuant to the procedures identified in subsection G of this section. Second or subsequent notices of incompleteness may not specify missing documents or information that were not delineated in the original notice of incompleteness.
I. Interaction with Section 332(c)(7). If the department determines that the applicant’s request is not covered by Section 6409(a) as delineated under this chapter, the presumptively reasonable time frame under Section 332(c)(7), as prescribed by the FCC’s Shot Clock order, will begin to run from the issuance of the department’s decision that the application is not a covered request. To the extent such information is necessary, the department may request additional information from the applicant to evaluate the application under Section 332(c)(7), pursuant to the limitations applicable to other Section 332(c)(7) reviews.
J. Failure to Act. In the event the department fails to approve or deny a request seeking approval under this chapter within the time frame for review (accounting for any tolling), the request shall be deemed granted. The deemed granted status does not become effective until the applicant notifies the applicable reviewing authority in writing after the review period has expired (accounting for any tolling) that the application has been deemed granted.
K. Deemed Approved Application. An application that has been deemed approved shall be and constitute the equivalent of an eligible facilities modification permit, except as may be otherwise determined by a court of competent jurisdiction, and shall be subject to generally applicable enforcement and compliance requirements in the same manner as an eligible facilities modification permit issued pursuant to this chapter.
L. Code Requirements. Any eligible facilities modification permit issued pursuant to this chapter, and any application that has been deemed approved, shall be and is conditioned upon compliance with any generally applicable building, structural, electrical, and safety codes and other laws codifying objective standards reasonably related to health and safety. Violation of any such applicable code or standard shall be deemed to be a violation of the eligible facilities modification or deemed approved application.
M. Term of Eligible Facilities Modification Permit. An eligible facilities modification permit issued pursuant to this chapter, and any deemed approved application, shall be valid for a term of 180 days from the date of issuance, or the date the application is deemed approved.
N. Remedies. Notwithstanding any other provisions in the city code, no administrative review is provided for review of a decision to condition, deny or approve an application. Applicant and the city retain any and all remedies that are available at law or in equity, including by way of example and not limitation, those remedies set forth in the FCC Eligible Facilities Request Rules and remedies available under the Land Use Petition Act. In the event no other time period is provided at law for bringing an action for a remedy, any action challenging a denial of an application or notice of a deemed approved remedy shall be brought within 30 days following the date of denial or following the date of notification of the deemed approved remedy.*
*Note: The FCC Report and Order in In re Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, WT Docket Nos. 13-238, 13-32; WC Docket No. 11-59; FCC 14-153, Par’s 234 – 236, provides that the city shall have 30 days from the date of notification by the applicant of a deemed granted remedy to bring a legal action in a court of competent jurisdiction to challenge the deemed granted remedy, and that the applicant shall have 30 days from the date of denial to bring a legal action in a court of competent challenging a denial of the application. (Ord. 2016-015 § 4 (Exh. A § 3))
18.61A.070 Nonconforming structure – Termination.
A. Application. The provisions of this section shall apply to any facilities modification constructed, installed, placed or erected pursuant to an eligible facilities modification permit, or pursuant to a deemed approved remedy, which facilities modification did not conform to zoning and/or development regulations, exclusive of this chapter, in effect at the time the completed eligible facilities modification application was filed.
B. Nonconforming Structure Determination. A facilities modification to which this section applies is subject to termination as a nonconforming structure upon the following conditions:
1. Final, Nonappealable Decision. An appellate court, in a final and nonappealable decision, determines that Section 6409(a)(1) of the Spectrum Act is unconstitutional or otherwise determined to be invalid or unenforceable; and
2. Notice of Nonconforming Structure Determination. The city provides written notice to the applicant that the city has determined that the facilities modification did not conform to zoning and/or development regulations, exclusive of this chapter, in effect at the time the completed eligible facilities modification application was filed and that the facilities modification constitutes a nonconforming structure pursuant to the provisions hereof and must be made conforming or the facilities modification terminated.
C. Conformance – Termination. Upon receipt of notice of the city’s nonconforming structure determination, applicant shall abate the nonconformance by either conforming the site to the zoning and development regulations in effect at the time the completed eligible facilities modification application was filed or removing the facilities modification and returning the site to the condition that existed prior to the construction, installation, placement or erection of the facilities modification. The time period for conformance shall be one year from the date of the city’s notice of the nonconforming structure determination.
D. Health and Safety Codes. Nothing in this section shall relieve the applicant from compliance with applicable building, structural, electrical, and safety codes and with other laws codifying objective standards reasonably related to health and safety.
E. Administrative Appeal. The applicant, or its successors or assigns, may appeal the city’s determination of nonconformance to the city hearing examiner by filing a notice of appeal within 21 calendar days of the date of the determination of nonconformance, excluding holidays. (Ord. 2016-015 § 4 (Exh. A § 3))
18.61A.080 Enforcement – Violation.
Compliance with the provisions of this chapter is mandatory. Any violation hereof is subject to enforcement under the code enforcement provisions set forth in Chapter 1.13 and/or 18.90 SMC. (Ord. 2019-013 (Exh. B); Ord. 2016-015 § 4 (Exh. A § 3))