Chapter 18.66
REGULATIONS FOR THE SITING, CO-LOCATING AND MODIFICATION OF WIRELESS COMMUNICATIONS FACILITIES
Sections:
18.66.040 Microcell facilities standards.
18.66.050 Building mounted wireless telecommunications facility standards.
18.66.060 Telecommunications tower standards.
18.66.080 Administrative review.
18.66.090 Conditional use permit review.
18.66.110 Application submittal requirements.
18.66.120 Review criteria for permits.
18.66.130 Review criteria for variances.
18.66.140 Removal of abandoned antennas and towers.
18.66.150 Bonding requirements.
18.66.180 Substantial change criteria.
18.66.190 Enforcement – Violation.
18.66.010 Purpose.
The purpose of this chapter is to establish general guidelines for the initial siting of wireless facility towers and antennas as well as wireless facilities modifications involving co-location, removal and replacement of transmission equipment. The goals of this chapter are to:
A. Protect residential areas and land uses from potential adverse impacts of towers and antennas;
B. Encourage the location of towers in nonresidential areas;
C. Minimize the total number of towers throughout the community;
D. Strongly encourage the joint use of new and existing tower sites as a primary option rather than construction of additional single-use towers;
E. Encourage users of towers and antennas to locate them, to the extent possible, in areas where the adverse impact on the community is minimal;
F. Encourage users of towers and antennas to configure them in a way that minimizes the adverse visual impact of the towers and antennas through careful design, siting, landscape screening, and innovative camouflaging techniques;
G. Enhance the ability of the providers of telecommunications services to provide such services to the community quickly, effectively, and efficiently;
H. Consider the public health and safety of communications towers;
I. Avoid potential damage to adjacent properties from tower failure with engineering and careful siting of tower structures;
J. Enhance and provide emergency respondent capabilities;
K. To approve any proposed wireless facility modifications to an existing tower or base station that does not substantially change the physical dimensions of such tower or base station;
L. To establish procedural requirements and substantive criteria applicable to review and approval or denial of applications for a proposed modification to wireless facilities;
M. To ensure that application submittal requirements are related to information reasonably necessary to the determination of whether or not the proposed modification will result in a substantial change in the physical dimensions of the wireless support structure;
N. To exempt wireless facilities modifications approved under this chapter as wireless facilities requests from zoning and development regulations that are inconsistent with or preempted by Section 6409 of the Spectrum Act;
O. To preserve the City’s right to continue to enforce and condition approvals under this chapter on compliance with generally applicable building, structural, electrical, and safety codes and with other laws codifying objective standards reasonably related to health and safety;
P. To promote timely decisions under this chapter;
Q. To ensure that decisions are made consistently and predictably;
R. To incorporate provisions of RCW 43.21C.0384 that exempt wireless tower facilities modifications from review under RCW 43.21C.030(2)(c) (State Environmental Policy Act);
S. To recognize that Section 6409(a)(1) of the Spectrum Act operates to preempt any provision of the State Environmental Policy Act (Chapter 43.21C RCW) to the extent that any such provision, including RCW 43.21C.030(2)(c), would prohibit a city from approving any wireless tower facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.
In furtherance of these goals, the City of Ferndale shall give due consideration to the Ferndale Comprehensive Plan, development regulations, existing land uses, and critical areas ordinance in approving sites for the location of towers and antennas.
The standards contained in this chapter are intended to comply with the Telecommunications Act of 1996 as amended, as well as Section 6409 of the “Middle Class Tax Relief and Job Creation Act” (Spectrum Act) of 2012. The provisions of this chapter are not intended and shall not be interpreted to have the effect of prohibiting personal wireless services. This chapter shall not be applied in such a manner as to unreasonably discriminate between providers of functionally equivalent personal wireless services. In reviewing any application to provide personal wireless service or to install personal wireless service facilities, the City shall act within the time periods described by this chapter, taking into account the nature and scope of the application and the required notice and review process where applicable. Any decision to deny an application shall be in writing, supported by substantial evidence contained in a written record. (Ord. 1905 § 1, 2015; Ord. 1400 § 2, 2006)
18.66.020 Definitions.
As used in this chapter, the following terms shall have the meanings set forth below:
“Antenna” means any exterior transmitting or receiving device mounted on a tower, building or structure and used in communications that radiate or capture electromagnetic waves, digital signals, analog signals, radio frequencies (excluding radar signals), wireless telecommunications signals or other communication signals. Types of antennas include:
1. Directional antenna (also known as a panel antenna) which transmits signals in a directional pattern of less than 360 degrees.
2. Omnidirectional antenna (also known as a whip antenna) which transmits signals in a 360-degree pattern.
3. Parabolic antenna (also known as a satellite dish) is a bowl shaped device that receives and transmits signals in a specific directional pattern (e.g., point to point).
“Antenna height” means the vertical distance measured from the base of the antenna support structure at grade to the highest point of the structure even if said highest point is an antenna. Measurement of tower height shall include antenna, base pad, and other appurtenances and shall be measured from the finished grade of the parcel. If the support structure is on a sloped grade, then the average between the highest and lowest grades shall be used in calculating the antenna height.
“Antenna support structure” means any pole, telescoping mast, tower, tripod, or other structure which supports a device used in the transmitting or receiving of radio frequency signals.
“Applicant” means any provider or any person, partnership, or company who files an application for any permit necessary to install, maintain, modify, co-locate, replace or remove a personal wireless service facility within the City.
“Approval authority” is the Community Development Director, or designee, who has authority under the Ferndale Municipal Code to administratively issue project permit approvals.
“Backhaul network” means the lines that connect a provider’s towers/cell sites to one or more cellular telephone switching office, and/or long distance provider, or the public switched telephone network.
“Base station” shall mean and refer to the structure or equipment at a fixed location that enables wireless communications licensed or authorized by the FCC, between user equipment and a communications network. The term does not encompass a tower as defined in this chapter or any equipment associated with a tower.
“Cell site” or “site” means a tract or parcel of land that contains personal wireless service facilities including any antenna, support structure, accessory building, and parking, and may include other uses associated with an ancillary to personal wireless services.
“Co-location” shall mean and refer to the mounting or installation of transmission equipment on a wireless support structure for the purpose of transmitting and/or receiving radio frequency signals for communications purposes. This definition includes the first placement of transmission equipment on a wireless tower or base station.
“Conceal” or “concealment” shall mean and refer to wireless support structures and transmission facilities designed to look like some feature other than a wireless tower or base station.
“Design” means the appearance of a personal wireless service facility, including such features as its material, color, and shape.
“FAA” means the Federal Aviation Administration.
“FCC” means the Federal Communications Commission.
“Height” means, when referring to a tower or other structure, the distance measured from the finished grade of the parcel to the highest point on the tower or other structure, including the base pad and any antenna.
“Lattice tower” means a type of mount that is self-supporting with multiple legs and cross-bracing of structural metal.
“Microcell facility” means a wireless telecommunications facility characterized by small antennas and equipment cabinets, and typically located on a small diameter monopole; on an existing or replacement street light, power pole, sign or other suitable structure; or on an existing building. A microcell facility is designed to blend with the existing physical environment and minimize visual impacts.
“Mount” means the structure or surface upon which personal wireless service facilities are mounted. There are three types of mounts:
1. Building Mount. A personal wireless service facility mount fixed to the roof or side of a building.
2. Ground Mount. A personal wireless service facility mount fixed to the ground, such as a tower.
3. Structure Mount. A personal wireless service facility fixed to a structure other than a building, such as light standards, utility poles, water towers and bridges.
“Panel antenna” means a “directional antenna” as included in the definition of “antenna” above.
“Personal wireless service,” “personal wireless service facilities,” and “facilities” used in this chapter shall be defined in the same manner as in Title 47, United States Code, Section 332(c)(7)(C), as they may be amended now or in the future, and includes facilities for the transmission and reception of radio or microwave signals used for communication, cellular phone, personal communications, services, enhanced specialized mobile radio, and any other wireless services licensed by the FCC and unlicensed wireless service facilities.
“Preexisting tower” and “preexisting antenna” means any tower or antenna for which a building permit or conditional use permit has been properly issued prior to the effective date of the ordinance codified in this chapter, including permitted towers or antennas that have not yet been constructed so long as such approval is current and not expired.
“Proposed wireless facilities modification” shall mean and refer to a proposal submitted by an applicant to modify a support structure which the applicant asserts is subject to review under Section 6409 of the Spectrum Act, and involving:
1. Co-location of new transmission equipment;
2. Removal of transmission equipment; or
3. Replacement of transmission equipment.
“Replacement utility pole” means a new utility pole that is located in an identical or nearly identical location as an existing utility pole and which serves to replace an existing utility pole.
“Satellite dish” means a parabolic antenna as included in the definition of “antenna” above.
“Site” shall, for towers other than towers in the public rights-of-way, mean and refer to the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site, and, for other eligible support structures, shall mean and be further restricted to that area in proximity to the structure and to other transmission equipment already deployed on the ground.
“Substantial change criteria” shall mean and refer to the criteria set forth in this chapter at FMC 18.66.180.
“Transmission equipment” shall mean and refer to equipment that facilitates transmission for any wireless communication service licensed or authorized by the FCC, including, but not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, and regular and backup power supply. The term includes equipment associated with wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul.
“Wireless facilities modification” shall mean and refer to any proposed facilities modification that has been determined pursuant to the provisions of this chapter to be subject to this chapter and which does not result in a substantial change in the physical dimensions of a wireless support structure.
“Wireless tower” means and refers to any structure built for the sole or primary purpose of supporting any antennas and their associated facilities, licensed or authorized by the FCC, including structures that are constructed for wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul, and the associated site. (Ord. 1905 § 1, 2015; Ord. 1400 § 2, 2006)
18.66.030 Applicability.
The requirements of this chapter shall apply to all new personal wireless communications facilities within the City of Ferndale and the expansion, co-location and/or modification of any existing personal wireless communications facilities. This chapter represents the sole and exclusive procedure for review and approval of siting, co-locating and modifying wireless facilities and equipment which the applicant asserts is subject to review under Section 6409 of the Spectrum Act. In the event that any part of an application 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. The following are exempt from the provisions of this chapter:
A. Amateur Radio Station Operators. This chapter shall not govern any tower, or the installation of any antenna, that is under 70 feet in height and is owned and operated by a federally licensed amateur radio station (“ham”) operator.
B. Public Safety Agencies. Towers and antennas used for public safety agencies, including military, law enforcement, fire and ambulance services, or other similar services which are used for emergency preparedness and public safety purposes.
C. Satellite Dish Antennas. Dish antennas less than two meters in diameter, including direct home satellite services, when used as a secondary use of the property.
D. Industrial, Scientific and Medical Equipment. Equipment used for industrial, scientific and/or medical purposes using frequencies that are regulated by the FCC.
E. Routine maintenance or repair of a personal wireless service facility and related equipment (excluding structural work or changes in height or dimensions of antennas, towers, or buildings); provided, that compliance with the standards of this chapter are maintained.
F. Nonconforming structures, as defined in Chapter 18.84 FMC. 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.
1. The provisions of Section 6409 of the Spectrum Act shall not apply to a proposed wireless facility modification to a structure that will involve replacement of the tower or base station.
2. The provisions of Section 6409 of the Spectrum Act shall not apply to the first deployment of a base station when a structure other than a tower 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.
G. Interpretation. Interpretations of this chapter shall be guided by Section 6409 of the Spectrum Act, the FCC Eligible Facilities Request Rules, WT Docket Nos. 13-238, 13-32; WC Docket No. 11-59; and FCC 14-153.
H. SEPA Review. Unless otherwise provided by law or regulation, decisions pertaining to a wireless facilities modification are not subject to, and are exempt from, the requirements of RCW 43.21C.030(2)(c), if:
1. The proposed wireless facilities modification would not increase the height of the 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 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).
I. 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. 1905 § 1, 2015; Ord. 1400 § 2, 2006)
18.66.040 Microcell facilities standards.
The following design standards apply to all microcell facilities:
A. Height.
1. Existing Structures. Whenever microcell facilities are attached to an existing structure other than a base station as defined herein, the highest portion of an antenna comprising the microcell facility shall extend no more than 15 feet above the highest point of the existing structure.
2. New Structures. Any new structure, excluding replacement utility poles, supporting a microcell facility may be no taller than the maximum building height as specified in the zoning district in which the structure is located. The highest portion of an antenna comprising the microcell facility shall extend no more than 15 feet above the highest point of the new structure.
B. Setbacks.
1. Microcell facilities shall be set back a minimum of 40 feet from any dwelling unit existing at the time that an application for a microcell facility is submitted to the City for review.
2. No microcell facility shall be located within 250 feet of any other microcell facility.
C. Antenna Dimensions. No antenna or antenna mounting hardware shall project out more than 12 inches from the surface of the structure to which it is attached.
D. Equipment and Cabinets.
1. All ancillary equipment (other than antennas) required for the operation of a microcell, including radio equipment and cabinets, cooling and ventilating apparatus, and electrical, mechanical and other appurtenances, shall be mounted directly to the antenna support structure or placed underground. Existing telephone company pedestals and power company transformers are not required to conform with this requirement.
2. Permanently installed generators or air conditioning compressors are not permitted on microcell facilities. Cooling fans located inside the equipment cabinets are permitted.
3. The height, width, or depth of equipment and/or cabinets mounted on a structure shall not exceed 36 inches.
E. Design. The material, texture and color of the microcell facility shall be selected to best match the structure to which it is attached. (Ord. 1905 § 1, 2015; Ord. 1400 § 2, 2006)
18.66.050 Building mounted wireless telecommunications facility standards.
The following design standards apply to all building mounted wireless telecommunications facilities:
A. Design.
1. Wireless telecommunications facilities located on the roof or on the side of the building shall be grouped together and integrated to the maximum degree possible with the building design.
2. Wireless telecommunications facilities shall be placed toward the center of the roof and/or thoroughly screened from residential building views and from public views.
B. Height. The maximum height of roof mounted facilities and equipment shall not exceed 15 feet above the top of the roof on which the facility is located. Panel antennas shall not extend above the top of the roof.
C. Antenna Dimensions. An antenna mounted on a wall of an existing building shall be mounted in such a configuration as to be as flush to the wall as technically possible.
D. Color. The antenna shall be constructed, painted or fully screened to match as closely as possible the color and texture of the building and wall on which it is mounted.
E. Equipment and Cabinets. Any accessory equipment shelter must blend in with the surrounding buildings in architectural character and color. (Ord. 1905 § 1, 2015; Ord. 1400 § 2, 2006)
18.66.060 Telecommunications tower standards.
The following standards apply to all telecommunications tower sites:
A. Maximum Height Standards. Maximum antenna height shall be as follows:
1. RS – residential single-family zoning district: 35 feet.
2. RM – multifamily residential zoning district: 45 feet.
3. RO – residential office zoning district: 45 feet.
4. UR – urban residential zoning district: 45 feet.
5. CC – city center zoning district: 45 feet
6. MXD – mixed use commercial zoning district: 100 feet.
7. GBZ – general business zoning district: 100 feet.
8. LI – light industrial zoning district: 45 feet.
9. M – manufacturing zoning district: 100 feet.
10. FW – floodway zoning district: 100 feet.
11. RRZ – regional retail zoning district: 100 feet.
12. GDD – gateway development district: 45 feet.
13. The height of any telecommunications tower site shall include the support structure and any attached antennas proposed at the time of application.
14. The height limitation in each zone except in any residential single-family or residential multifamily zoning district may be increased by 20 feet in any instance where an applicant commits to future co-location on the facility as identified in FMC 18.66.110.
B. Wireless Tower Design.
1. Lattice towers are prohibited.
2. All tower structures and required fencing shall be equipped with appropriate anti-climbing devices.
3. The perimeter of the tower structure and any guyed wires and anchors shall be enclosed by a fence or wall at least six feet in height.
C. Landscaping shall be consistent with landscaping requirements in Chapter 18.74 FMC.
D. Painting. Tower facilities shall be painted or finished in a manner which blends with the dominant color of the background except where otherwise required by the FAA. The applicant and/or operator of the facility shall have a continuing duty to maintain such paint or finish.
E. Shoreline Location Prohibited. No tower facilities shall be permitted in any location that falls under the jurisdiction of the State Shorelines Management Act, unless such tower facility complies with the maximum height requirements established under the City shoreline master program.
F. Setbacks. Tower sites located in nonresidential zoning districts shall be set back a minimum of 200 feet from any RS – residential single-family, UR – urban residential, or RM – residential multifamily zoning district boundaries. Tower sites located within an RS – residential single-family, UR – urban residential, or RM – residential multifamily zoning district shall be set back a minimum of 50 feet from any existing dwelling unit.
G. View Protection. Tower sites shall not be located in such a fashion as to negatively impact views from public parks and recreation areas. Particularly, views from Pioneer Park should not be impacted by tower sites. (Ord. 1905 § 1, 2015; Ord. 1400 § 2, 2006)
18.66.070 General standards.
The following standards are applicable to all telecommunications facilities:
A. Lighting. Facilities shall not be illuminated except where required by the FAA or FCC. Should lighting be required, the lighting alternatives and design chosen must cause the least disturbance to the surrounding views.
B. Noise. Facilities shall at all times comply with state noise level standards under Chapter 173-60 WAC, as amended. The City may require noise attenuation devices or other mitigation measures to minimize the noise impacts. Noise standards may be exceeded on a temporary basis during emergency situations where the use of a backup generator is required.
C. Signs. All facilities shall be identified with a nonilluminated sign not to exceed four square feet in area. The sign shall list the wireless service provider’s name(s) and emergency telephone number(s) and shall be posted in a place that is visible to the public. No advertising signs shall be located on support structures, antennas or accessory equipment or cabinets.
D. Height.
1. The height of a facility shall include the support structure and any attached antennas proposed at the time of application.
2. Exceptions to maximum height standards:
a. A lightning rod, not to exceed 10 feet in height;
b. FAA required lighting.
E. Aesthetics. Facilities shall be designed, to the extent possible; to use materials, colors, textures, screening and landscaping that will blend them into the natural setting and surrounding buildings.
F. State and Federal Requirements. All facilities must meet current standards and regulations of the FAA and FCC and any other agency of the federal or state government with the authority to regulate towers and antennas.
G. Safety Standards. To ensure the structural integrity of facilities, the owner and/or operator of a facility shall ensure that it is maintained in compliance with standards contained in applicable state or local building codes and the applicable standards for towers that are published by the Electronic Industries Association. Any new construction, addition or improvement of a tower facility shall require the submission of detailed plans stamped by a professional engineer which demonstrate compliance with Electronic Industries Association Standards. Said plans shall be submitted and reviewed at the time building permit applications are submitted. (Ord. 1905 § 1, 2015; Ord. 1400 § 2, 2006)
18.66.080 Administrative review.
A. The following types of telecommunications facilities shall be reviewed administratively by the Community Development Director:
1. Microcell facilities located on existing structures in any zoning district;
2. Microcell facilities located on a new structure in any nonresidential zoning district;
3. Building mounted facilities in the following zoning districts:
a. GBZ – general business zone;
c. GDD – gateway development district;
d. RR – regional retail zone;
e. M – manufacturing zone;
f. LI – light industrial zone;
g. MXD – mixed use commercial district.
4. Modifications to a wireless facility support structure which involves: co-location of new transmission equipment; removal of transmission equipment; or replacement of transmission equipment provided the modification does not result in substantial change in the physical dimensions of an eligible support structure.
B. Applications that are categorically exempt from SEPA review under WAC 197-11-800 shall also be subject to review without public notice as identified in FMC 14.09.030(A).
C. Any decision to administratively approve or deny a permit application made by the Community Development Director is subject to the appeal provisions of FMC 14.11.070. (Ord. 1905 § 1, 2015; Ord. 1400 § 2, 2006)
18.66.090 Conditional use permit review.
The following types of applications require review through the conditional use permit procedures as identified in FMC 18.12.130:
A. Building mounted facility in any residential zoning district, including the RS – residential single-family, RM – residential multifamily, RO – residential office and UR – urban residential zoning districts.
B. A new wireless tower facility in any zoning district.
C. Co-locations and modifications resulting in a substantial change to existing facility as defined in FMC 18.66.180. (Ord. 1905 § 1, 2015; Ord. 1400 § 2, 2006)
18.66.100 Co-location requirements.
Repealed by Ord. 1905. (Ord. 1400 § 2, 2006)
18.66.110 Application submittal requirements.
A. All Wireless Applications. Regardless of whether an application will be processed administratively or by conditional use permit, applicants proposing to construct a new or to modify a wireless facility must provide the City with all information and documentation that is reasonably necessary to determine if the applicant’s proposed facilities meet City requirements. All applicants shall submit the following information:
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.
B. New Wireless Tower Facilities. In addition to subsection (A) of this section, applicants proposing to site and construct a new telecommunications facility shall submit the following information:
1. A scaled site plan clearly indicating the location, type and height of the proposed facility, on-site land uses and zoning, adjacent land uses and zoning, adjacent roadways, proposed means of access, setbacks from property lines, elevation drawings of the proposed facility and any other structures, topography, parking, and other information deemed by the Planning Director to be necessary to assess compliance with this chapter.
2. Legal description of the parent tract and leased parcel (if applicable).
3. The setback distance between the proposed facility and the nearest residential unit, platted residentially zoned properties, and unplatted residentially zoned properties.
4. A landscape plan showing specific landscape materials.
5. Method of fencing, finished color and, if applicable, the method of illumination.
6. A description of how the application complies with the standards contained in FMC 18.66.040 through 18.66.070.
7. A certification that the proposed facility complies with all applicable federal and state laws.
8. A notarized statement by the applicant demonstrating compliance with the co-location requirements of subsection (C) of this section, if applicable.
9. Identification of the entities providing the backhaul network for the facility(s) described in the application and other cellular sites owned or operated by the applicant in the municipality, including a description of the suitability of the use of existing towers, other structures or alternative technology to provide the services that would be provided through the use of the proposed new facility.
10. A declaration under penalty of perjury or sworn statement by the applicant:
a. That the antenna usage will not interfere with other adjacent or neighboring transmission or reception communications signals.
b. That any facility will comply with all applicable federal and state laws, including, specifically, FCC and FAA regulations and the Ferndale Municipal Code.
c. That the facility will be removed from the site within 90 days after abandonment.
11. In some instances, the City may require the following additional information to be submitted during the process of reviewing an application for a telecommunications facility:
a. Location Evaluation Study. For new tower sites, a location evaluation study shall be provided to show that the structure is required for present and future network coverage, that the height requested is the minimum necessary to provide for the function and potential co-located antennas and why the antennas could not be co-located on an existing structure. In residential zones, the applicant shall demonstrate why the facility could not be located in a nonresidential zone.
b. Third-Party Review. In certain instances, a third-party expert may need to review the technical data submitted by an applicant. The City may require a technical review as part of the permitting process. The cost of the technical review shall be borne by the applicant. The selection of the third-party expert may be by mutual agreement between the applicant and the City, or, at the discretion of the City, with the provision for the applicant and interested parties to comment on the proposed expert and review its qualifications. The expert review is intended to address interference and public safety issues and be a site-specific review of technical aspects of the facilities or a review of technical aspects of the facilities or a review of the provider’s methodology and equipment used and not a subjective review of the site selection by an applicant. Such a review should address the accuracy and completeness of the technical data, possible interference problems, whether the analysis techniques and methodologies are legitimate, the validity of the applicant’s conclusions and any specific technical issues outlined by the City Council, City staff or other interested parties. Based on the results of the expert review, the City may require changes to the application. The expert review shall address the following:
i. The accuracy and completeness of submissions;
ii. The applicability of analysis techniques and methodologies;
iii. The validity of conclusions reached; and
iv. Any specific technical issues designated by the City.
c. Photo Simulations. Photo simulations of the proposed facility from affected residential properties, public properties and public rights-of-way at varying distances shall be submitted when the Planning Director so determines that such photo simulations are necessary. Prior to the time a formal application is submitted, an applicant shall meet with the Planning Director to jointly review and agree upon the number, angle and distance of the photo simulations that will be required for the submittal of a formal application.
C. Co-location and Modification of Existing Wireless Facilities. In addition to subsection (A) of this section, the applicant shall provide information to the City necessary to determine if the applicant’s proposed facilities modification will substantially change the physical dimensions of the 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. Applicants proposing to modify an existing telecommunications facility shall submit the following information:
1. An assertion that the proposed facilities modification is subject to review under Section 6409 of the Spectrum Act.
2. 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.
3. If the applicant proposes a modification involving co-location of transmission equipment or the replacement of transmission equipment, the following shall be required: 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.
4. 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.
5. If the applicant proposes a modification to a wireless facility 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) 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.
6. 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.
7. 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.
8. 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.
9. 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 co-location, 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.
10. 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.
11. 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.
12. 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 co-located 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.
13. Copies of any environmental documents required by any federal agency. These shall include the environmental assessment required by 47 C.F.R. 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.
D. 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.
E. When Received. A wireless facilities modification application, and any supplemental submittals, shall be deemed received by the City upon the date such application, or supplemental submittal, is filed with the Community Development Department. 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 deposit, of the applicable permit review fees will be rejected.
F. Completed application; determination; reviewed per FMC 14.09.030. (Ord. 1905 § 1, 2015; Ord. 1400 § 2, 2006)
18.66.120 Review criteria for permits.
The following factors shall be used to evaluate applications for permits filed under this chapter:
A. Factors Considered in Granting Conditional Use Permits for Towers. In addition to any standards for consideration of conditional use permit applications pursuant to FMC 18.12.130, the Hearings Examiner shall consider the following factors in determining whether to issue a conditional use permit, although the Hearings Examiner may waive or reduce the burden on the applicant of one or more of these criteria if it concludes that the goals of this chapter are better served thereby:
1. Height of the proposed tower;
2. Proximity of the tower to residential structures and residential district boundaries;
3. Nature of uses on adjacent and nearby properties;
4. Surrounding topography;
5. Surrounding tree coverage and foliage;
6. Design of the tower, with particular reference to design characteristics that have the effect of reducing or eliminating visual obtrusiveness;
7. Proposed ingress and egress; and
8. Availability of suitable existing towers, other structures, or alternative technologies not requiring the use of towers or structures as identified in subsection (B) of this section.
B. Availability of Suitable Existing Towers, Other Structures, or Alternative Technology. No new tower shall be permitted unless the applicant demonstrates to the reasonable satisfaction of the Hearings Examiner that no existing tower, structure or alternative can accommodate the applicant’s proposed antenna. An applicant shall submit information requested by the Community Development Director relating to the availability of suitable existing towers, other structures or alternative technology. Evidence submitted to demonstrate that no existing tower, structure or alternative technology can accommodate the applicant’s proposed antenna may consist of any of the following:
1. No existing towers or structures are located within the geographic area which meet applicant’s engineering requirements.
2. Existing towers or structures are not of sufficient height to meet applicant’s engineering requirements.
3. Existing towers or structures do not have sufficient structural strength to support applicant’s proposed antenna and related equipment.
4. The applicant’s proposed antenna would cause electromagnetic interference with the antenna on the existing towers or structures, or the antenna on the existing towers or structures would cause interference with the applicant’s proposed antenna.
5. The fees, costs, or contractual provisions required by the owner in order to share an existing tower or structure or to adapt an existing tower or structure for sharing are unreasonable. Costs significantly exceeding new tower development are presumed to be unreasonable.
6. The applicant demonstrates that there are other limiting factors that render existing towers and structures unsuitable.
7. The applicant demonstrates that an alternative technology that does not require the use of towers or structures, such as cable microcell network using multiple low-powered transmitters/receivers attached to a wireline system, is unsuitable. Costs of alternative technology that exceed new tower or antenna development shall not be presumed to render the technology unsuitable. (Ord. 1905 § 1, 2015; Ord. 1400 § 2, 2006)
18.66.130 Review criteria for variances.
Any variance to a standard identified in this chapter shall not be approved unless the following criteria are satisfied, following the variance review procedures identified in Chapter 18.12 FMC:
A. The applicant must demonstrate to the City’s satisfaction that no reasonable alternatives exist to provide an equivalent level of service within the City of Ferndale that does not require the issuance of a variance from a standard in this chapter.
B. The proposed project is consistent with the purposes of this chapter. (Ord. 1905 § 1, 2015; Ord. 1400 § 2, 2006)
18.66.140 Removal of abandoned antennas and towers.
Any antenna or tower that is not operated for a continuous period of 12 months shall be considered abandoned, and the owner of such antenna or tower shall remove the same within 90 days of receipt of notice from the City of Ferndale notifying the owner of such abandonment. Failure to remove an abandoned antenna or tower within said 90 days shall be grounds to remove the tower or antenna at the owner’s expense. If there are two or more users of a single tower, then this provision shall not become effective until all users cease using the tower. (Ord. 1905 § 1, 2015; Ord. 1400 § 2, 2006)
18.66.150 Bonding requirements.
Whenever any tower facility is constructed, the operator of the tower facility shall obtain and keep in force:
A. A performance bond payable to the City of Ferndale to cover the cost of removal of the tower facility. The performance bond shall remain in force throughout the time that the tower is located on the site. The amount of the bond shall equal 150 percent of the estimated costs of removal as determined by the Community Development Director, or $1,000, whichever amount is greater.
B. When landscaping installation is required, a maintenance bond, assignment of funds or other financial guarantee acceptable to the City shall be provided in the amount of 150 percent of the value of the labor and materials. The guarantee shall be in effect for two years from the date of planting. (Ord. 1905 § 1, 2015; Ord. 1400 § 2, 2006)
18.66.160 Nonconforming uses.
A. Repealed by Ord. 1905.
B. Preexisting Towers. Preexisting towers shall be allowed to continue their usage as they presently exist. Routine maintenance (including replacement with a new tower of like construction and height) shall be permitted on such preexisting towers. New construction other than routine maintenance on a preexisting tower shall comply with the requirements of this chapter.
C. Rebuilding Damaged or Destroyed Nonconforming Towers or Antennas. Notwithstanding FMC 18.66.140, bona fide nonconforming towers or antennas that are damaged or destroyed may be rebuilt without first having to obtain administrative approval or a conditional use permit. The type, height, and location of the tower on-site shall be of the same type and intensity as the original facility approval. Building permits to rebuild the facility shall comply with the then applicable building codes and shall be obtained within 180 days from the date the facility is damaged or destroyed. If no permit is obtained or if said permit expires, the tower or antenna shall be deemed abandoned as specified in FMC 18.66.140. (Ord. 1905 § 1, 2015; Ord. 1400 § 2, 2006)
18.66.170 Summary table.
The following table provides a summary of the procedures and height limits that are listed in the previous sections of this chapter.
|
Zoning District |
Max. Bldg. Height |
Max. Tower Height |
Microcell Existing Structure |
Microcell New Structure |
Mounted on Building |
Co-location on Existing Tower |
Modification to Existing Tower |
Substantial Modification to Existing Tower |
New Tower |
|---|---|---|---|---|---|---|---|---|---|
|
RS |
28' |
35' |
AR |
CUP |
CUP |
AR |
AR |
CUP |
CUP |
|
RM |
35' |
45' |
AR |
CUP |
CUP |
AR |
AR |
CUP |
CUP |
|
RO |
35' |
45' |
AR |
CUP |
CUP |
AR |
AR |
CUP |
CUP |
|
UR |
35' |
45' |
AR |
CUP |
CUP |
CUP |
AR |
CUP |
CUP |
|
RRZ |
45' |
65' |
AR |
AR |
AR |
AR |
AR |
CUP |
CUP |
|
GBZ |
45' |
100' |
AR |
AR |
AR |
AR |
AR |
CUP |
CUP |
|
CC |
45' |
100' |
AR |
AR |
AR |
AR |
AR |
CUP |
CUP |
|
MXD |
45' |
100' |
AR |
AR |
AR |
AR |
AR |
CUP |
CUP |
|
GDD |
45' |
100' |
AR |
AR |
AR |
AR |
AR |
CUP |
CUP |
|
M |
45' |
100' |
AR |
AR |
AR |
AR |
AR |
CUP |
CUP |
|
FW |
NA |
100' |
AR |
AR |
AR |
AR |
AR |
CUP |
CUP |
|
LI |
35' |
65' |
AR |
AR |
AR |
AR |
AR |
CUP |
CUP |
RS = Residential – Single-Family
RM = Residential – Multifamily
UR = Urban Residential
RRZ = Regional Retail Zone
CC = City Center
MXD = Mixed Use Commercial
GDD = Gateway Development District
RO = Residential/Office
M = Manufacturing
FW = Floodway
GBZ = General Business
LI = Light Industrial
AR = Administrative Review
CUP = Conditional Use Permit Review
(Ord. 1905 § 1, 2015; Ord. 1400 § 2, 2006)
18.66.180 Substantial change criteria.
A proposed wireless facilities modification will substantially change the physical dimensions of an eligible support structure if it meets any of the following criteria:
A. For wireless 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. 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.1
B. For wireless 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 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. (Ord. 1905 § 1, 2015)
18.66.190 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 at Chapter 1.12 FMC. (Ord. 1905 § 1, 2015)
Note: The FCC rules refer to the date of passage of the Spectrum Act. The Spectrum Act was enacted on February 22, 2012. Presumably the FCC intended to refer to the date of enactment as the date of passage.