Chapter 18.46
ELIGIBLE WIRELESS COMMUNICATION FACILITIES MODIFICATIONS
18.46.000 Chapter Contents
Sections:
18.46.010 Title.
18.46.020 Adoption of Findings and Conclusions.
18.46.030 Purpose and Intent.
18.46.040 Definitions.
18.46.050 Applicability – Relationship to other Rules and Regulations.
18.46.060 Application Review.
(Ord. 7001 §1, 2016).
18.46.010 Title
This Chapter shall be known and referred to as the “Eligible Wireless Communication Facilities Modification Code”.
(Ord. 7001 §1, 2016).
18.46.020 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. 7001 §1, 2016).
18.46.030 Purpose and Intent
The purpose and intent of this Chapter is to:
A. To implement § 6409 of the “Middle Class Tax Relief and Job Creation Act of 2012” (the “Spectrum Act”) (PL-112-96; codified at 47 U.S.C. § 1455(a)), as interpreted by the Federal Communications Commission’s Acceleration of Broadband Deployment Report and Order (“FCC Eligible Existing Wireless Facilities Request Rules”), which requires the City to approve any eligible facilities request for a modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or base station;
B. To establish procedural requirements and substantive criteria applicable to review and approval or denial of applications for an eligible facilities modification;
C. To exempt facilities modifications approved under this chapter as eligible facilities requests from zoning and development regulations that are inconsistent with or preempted by Section 6409 of the Spectrum Act;
D. 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;
E. To promote timely decisions under this chapter;
F. To ensure that decisions are made consistently and predictably;
G. To incorporate provisions of RCW 43.21C.0384 that exempt eligible facilities modifications from review under RCW 43.21C.030(2)(c), (State Environmental Policy Act);
(Ord. 7001 §1, 2016).
18.46.040 Definitions
For the purposes of this Chapter, the terms used have the following meanings. Where the same term is also defined in OMC 18.02.180, the definitions below shall control for the application of this chapter.
Base Station. A structure or equipment at a fixed location that enables FCC-licensed or authorized wireless communications between user equipment and a communications network. The term does not encompass a tower as defined herein or any equipment associated with a tower. Base Station includes, without limitation:
a. Equipment associated with wireless communications services such as private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul.
b. Radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration (including Distributed Antenna Systems (“DAS”) and small-cell networks).
c. Any structure other than a tower that, at the time the eligible facilities modification application is filed with the city under this chapter, supports or houses equipment described in paragraphs (a) – (b) that has been reviewed and approved under the applicable zoning or siting process, or under another State or local regulatory review process, even if the structure was not built for the sole or primary purpose of providing that support.
d. The term does not include any structure that, at the time the eligible facilities modification application is filed with the city under this chapter, does not support or house equipment described in (a) – (b) of this section.
Collocation. The mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signals for communications purposes.
Eligible Facilities Modification. Any proposed modification of an existing eligible support structure that does not substantially change the physical dimensions of that eligible support structure which the applicant asserts is subject to review under Section 6409 of the Spectrum Act, and which involves:
a. Collocation of new transmission equipment;
b. Removal of transmission equipment; or
c. Replacement of transmission equipment.
Eligible support structure. Any tower or base station as defined in this chapter, provided that it is existing at the time the eligible facilities modification application is filed with the City under this chapter.
Existing. A constructed tower or base station is existing for purposes of this section if it has been reviewed and approved under the applicable zoning or siting process of the City, or under another State, county or local regulatory review process, provided that a tower that has not been reviewed and approved because it was not in a zoned area when it was built, but was lawfully constructed, is existing for purposes of this chapter.
Site. For towers other than towers in the public rights-of-way, 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, further restricted to that area in proximity to the structure and to other transmission equipment already deployed on the ground.
Spectrum Act. The “Middle Class Tax Relief and Job Creation Act of 2012” (Public Law 112-96; codified at 47 U.S.C. § 1455(a)).
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% or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever is greater; for other eligible support structures, it increases the height of the structure by more than 10% or more than ten 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 twenty 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 pre-existing ground cabinets associated with the structure, or else involves installation of ground cabinets that are more than 10% 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 non-compliant only in a manner that would not exceed the thresholds identified in paragraphs (a) – (d) of this section.
g. 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.
Tower. Any structure built for the sole or primary purpose of supporting any FCC-licensed or authorized antennas and their associated facilities, 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.
Transmission Equipment. Equipment that facilitates transmission for any FCC-licensed or authorized wireless communication service, 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.
(Ord. 7001 §1, 2016).
18.46.050 Applicability – Relationship to other Rules and Regulations
A. Part of Permit Application. In the event that any part of an application to the City for project permit approval includes a proposed eligible facilities modification, the proposed eligible facilities modification portion of the application shall be reviewed under the provisions of this chapter.
B. Non-Assertion of Applicability. 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 Olympia Municipal Code Chapter 18.44 among other provisions of the City Code.
C. Non-conforming Structures. This chapter shall not apply to a proposed eligible facilities modification to an eligible support structure that is not a legal conforming, or legal non-conforming, structure at the time a completed eligible facilities modification application is filed with the City. To the extent that the non-conforming structures and use provisions of the City code would operate to prohibit or condition approval of a proposed eligible facilities modification application otherwise allowed under this chapter, such provisions are superseded by the provisions of this chapter and shall not apply.
D. Replacement of Eligible Support Structure. This chapter shall not apply to a proposed eligible facilities modification to an eligible support structure that will involve replacement of the tower or base station. Such proposed modification will be subject to OMC 18.44.
E. First Deployment; Base Station. This chapter shall not apply to a proposed eligible facilities 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 to the structure.
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) under RCW 43.21C.0384. 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.
G. Building Permit. The City will process, review, and issue a decision regarding a building permit for the facility modification concurrent with the eligible facilities modification permit described herein.
H. 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. 7001 §1, 2016).
18.46.060 Application Review
A. Application. The department shall prepare and make publicly available an application form which shall require the information necessary for the department to consider whether an application is an Eligible Facilities Modification request.
B. Type of Review. Upon receipt of an application for an Eligible Facilities Modification pursuant to this Chapter, the department shall review such application to determine whether the application is complete and qualifies as an Eligible Facilities Modification application. No presubmission conference is required prior to submittal.
C. Timeframe for Review. Within 60 days of the date on which an applicant submits an application seeking approval under this Chapter, less any time period that may be excluded under (d) of this section, the director shall approve the application unless the director determines that the application is not covered by this Chapter.
D. Tolling of the Timeframe for Review. The 60-day review period begins to run when the application is filed with the department, and may be tolled only by mutual agreement by the department and the applicant, or in cases where the director determines that the application is incomplete. The timeframe for review is not tolled by a moratorium on the review of applications.
1. To toll the timeframe for incompleteness, the director must provide written notice to the applicant within 20 days of receipt of the application, specifically delineating all missing documents or information required in the application.
2. The timeframe for review begins running again when the City receives the applicant’s supplemental submission in response to the director’s notice of incompleteness.
3. Following a supplemental submission, the director 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 timeframe is tolled in the case of second or subsequent notices pursuant to the procedures identified in this paragraph (D) of this section. Except as may be otherwise agreed by the applicant and the director, second or subsequent notices of incompleteness may not specify missing documents or information that were not delineated in the original notice of incompleteness.
E. Failure to Act. In the event the department fails to approve or deny a request seeking approval under this Chapter within the timeframe for review (accounting for any tolling), the request shall be deemed granted. The deemed grant 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.
(Ord. 7001 §1, 2016).