Chapter 20.70
WIRELESS COMMUNICATION FACILITIES
Sections:
20.70.020 Authority and application.
20.70.050 Types of permits – Priority – Restrictions.
20.70.070 General requirements.
20.70.080 Specific development standards for electrical transmission tower co-location.
20.70.090 Specific development standards for adding antennas to existing WCF tower.
20.70.100 Concealed building-mounted development requirements.
20.70.110 Nonconcealed building-mounted development requirements.
20.70.120 Utility pole co-location.
20.70.130 Towers – Specific development standards.
20.70.140 Request to use nonconcealed building attached in lieu of a concealed building attached.
20.70.150 Landscaping/screening.
20.70.160 Zoning setback exceptions.
20.70.190 Removal of abandoned wireless communication facilities.
20.70.200 Standards for eligible facilities modifications.
20.70.210 Expiration of wireless facility permits.
20.70.010 Purpose.
(1) The purpose of this chapter is to regulate the placement, construction and modification of wireless communication facilities, in order to protect the health, safety and welfare of the public, while not unreasonably interfering with the development of the competitive wireless telecommunications marketplace in the city. The purpose of this chapter will be achieved through adherence to the following objectives:
(a) Establish clear and nondiscriminatory local regulations concerning wireless telecommunications providers and services that are consistent with federal and state laws and regulations pertaining to telecommunications providers;
(b) Protect residential areas and land uses from potential adverse impacts that wireless communication facilities might create, including but not limited to impacts on aesthetics, environmentally sensitive areas, historically significant locations, flight corridors, and health and safety of persons and property;
(c) Encourage providers of wireless communication facilities to locate these facilities, to the extent possible, in areas where the adverse impact on the community is minimal;
(d) Encourage the location of wireless communication facilities in nonresidential areas and allow wireless communication facilities in residential areas only when necessary, to meet functional requirements of the telecommunications industry;
(e) Minimize the total number of wireless communication facilities in residential areas;
(f) Require cooperation between competitors and, as a primary option, joint use of new and existing towers, tower sites and suitable structures to the greatest extent possible, in order to reduce cumulative negative impact upon the city;
(g) Allow wireless communication companies to use city property (i.e., City Hall, community center, utilities property, parks, etc.) for the placement of wireless facilities, where consistent with other public needs, as a means to generate revenue for the city;
(h) Ensure wireless communication facilities are configured in a way that minimizes the adverse visual impact of the wireless communication facilities, as viewed from different vantage points, through careful design, landscape screening, minimal impact siting options and camouflaging techniques, and through assessment of technology, current location options, siting, future available locations, innovative siting techniques and siting possibilities beyond the jurisdictional boundaries of the city;
(i) Enhance the ability of the providers of telecommunications services to provide such services to the community quickly, effectively and efficiently;
(j) Provide for the removal of wireless communication facilities that are abandoned or no longer inspected for safety concerns and building code compliance, and provide a mechanism for the city to cause these abandoned wireless communication facilities to be removed, to protect the residents from imminent harm and danger;
(k) Avoid potential damage to adjacent properties from tower failure, through engineering, careful siting, height limits, and maintenance of wireless communication facilities; and
(l) Provide a means for public input on major wireless communications facility placement, construction, and modification.
(2) In furtherance of these objectives, the city shall give due consideration to the comprehensive land use plan, land use and development regulations, existing land uses, and environmentally sensitive areas in approving sites for the location of communication towers and antennas.
(3) These objectives were developed to protect the public health, safety, and welfare, to protect property values, and to minimize visual impact, while furthering the development of enhanced telecommunication services in the city. These objectives were designed to comply with the Telecommunications Act of 1996. The provisions of this chapter are not intended to and shall not be interpreted to prohibit or 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.
(4) To the extent that any provision of this chapter is inconsistent or conflicts with any other city ordinance, this chapter shall control. Otherwise, this chapter shall be construed consistently with the other provisions and regulations of the city.
(5) In reviewing any application to place, construct or modify wireless communication facilities, the city shall act within a reasonable period of time after an application for a permit is duly filed, taking into account the nature and scope of the application. Any decision to deny an application shall be in writing, supported by substantial evidence contained in a written record. The city shall approve, approve with conditions, or deny the application in accordance with this title, this chapter, the adopted Port Orchard comprehensive plan, and other applicable ordinances and regulations. (Ord. 014-22 § 2).
20.70.020 Authority and application.
The provisions of this chapter shall apply to the placement, construction, or modification of all wireless communication facilities, except as specifically exempted in POMC 20.70.030. (Ord. 014-22 § 2).
20.70.030 Exemptions.
The provisions of this chapter shall not apply to the following:
(1) Wireless communication facilities permits are not required for subsections (1)(a) through (1)(e) of this section; however, other permits, such as a grading permit, street excavation permit, traffic management plan, or building permit may be required:
(a) Routine maintenance and repair of wireless communication facilities when no traffic impacts will occur. This shall not include changes in height or dimensions of towers or buildings; provided, that the wireless communication facility received approval from the city of Port Orchard or Kitsap County for the original placement, construction, or subsequent modification. When traffic impacts will occur, a traffic control plan approved by the city is required prior to performing the work.
(b) Changing of antennas on wireless communication facilities is exempt from wireless facilities permits, provided the total area of the new antennas and support structure is not increased more than 10 percent of the previous area or if the area is reduced.
(c) Changing or adding additional antennas within a previously permitted concealed building-mounted installation is exempt provided there is no visible change from the outside.
(d) Bird exclusionary devices may be added to towers and are not subject to height limitations.
(e) Additional ground equipment may be placed within an approved equipment enclosure, provided the height of the equipment does not extend above the screening fence.
(2) An antenna that is designed to receive or send direct broadcast satellite service and/or broadband signals, or other means for providing internet service including direct-to-home satellite services, and that is one meter or less in diameter or diagonal measurement, and when the antenna is attached to the residence or business that is utilizing the service.
(3) An antenna that is designed to receive video programming services via multipoint distribution services, including multichannel multipoint distribution services, instructional television fixed services, and local multipoint distribution services, and that is one meter or less in diameter or diagonal measurement.
(4) An antenna that is designed to receive television broadcast signals.
(5) Antennas for the receiving and sending of amateur radio devices or HAM radios; provided, that the antennas meet the height requirements of the applicable zoning district, and are owned and operated by a federally licensed amateur radio station operator or are used exclusively for receive-only antennas. In order to reasonably accommodate licensed amateur radio operators as required by Federal Code of Regulations, 47 CFR Part 97, as amended, and Order and Opinion (PRB-1) of the Federal Communications Commission of September 1985, and RCW 35A.21.260, a licensed amateur radio operator may locate a tower not to exceed the height requirements of the applicable zoning district, provided the following requirements are met for such towers located in a residentially zoned district:
(a) The tower and any antennas located thereon shall not have any lights of any kind on it and shall not be illuminated either directly or indirectly by any artificial means;
(b) The color of the tower and any antennas located thereon must all be the same and such that it blends into the sky, to the extent allowed under requirements set forth by the Federal Aviation Administration;
(c) No advertising logo, trademark, figurine or other similar marking or lettering shall be placed on the tower or any wireless communication facilities mounted or otherwise attached thereto or any building used in conjunction therewith;
(d) The tower shall be located a distance equal to or greater than its height from any existing residential structure located on adjacent parcels of property, including any attached accessory structures;
(e) A tower must be at least three-quarters of its height from any property line on the parcel of property on which it is located, unless a licensed engineer certifies that the tower will not collapse or that it is designed in such a way that, in the event of collapse, it falls within itself, and in that event, it must be located at least one-third of its height from any property line;
(f) No signs shall be used in conjunction with the tower, except for one sign not larger than eight and one-half inches high and 11 inches wide and as required by federal regulations;
(g) Towers shall not be leased or rented to commercial users, and shall not otherwise be used for commercial purposes; and
(h) All towers must meet all applicable state and federal statutes, rules, and regulations, including obtaining a building permit from the city, if necessary.
(6) Emergency communications equipment during a declared public emergency, when the equipment is owned and operated by an appropriate public entity.
(7) Wireless communications facilities (“WCFs”) used for temporary emergency communications in the event of a disaster, or emergency preparedness, and for any other public health or safety purpose, including, by way of illustration and not limitation, any communications systems utilized by first responders such as police or fire.
(8) Any wireless internet facility that is owned and operated by a government entity.
(9) Antennas and related equipment no more than three feet in height that are being stored, shipped or displayed for sale.
(10) Radar systems for military and civilian communication and navigation.
(11) Small wireless facilities as defined by POMC 20.72.030. (Ord. 014-22 § 2).
20.70.040 Permits required.
(1) No person may place, construct, or modify a wireless communication facility subject to this chapter without first having in place a permit issued in accordance with this chapter. Except as otherwise provided herein, the requirements of this chapter are in addition to the applicable requirements of this title.
(2) Any application submitted pursuant to this chapter shall be reviewed and evaluated by the director for all projects located on public or private property. The director of public works or their designee shall review all proposed wireless communication facilities that are totally within city right-of-way. If a project is both on private or public property and city right-of-way, the community development director shall review the application. Regardless of whether the community development director or the director of public works is reviewing the application, all applications will be reviewed and evaluated pursuant to the provisions of this chapter.
(3) The applicant is responsible for obtaining all other permits from any other appropriate governing body (i.e., Washington State Department of Labor and Industries, Federal Aviation Administration, etc.). For purposes of this chapter, the “applicant” is inclusive of the party who applies for permits and the party or parties will own, operate, or manage the wireless communication facility.
(4) This chapter provides guidelines for the placement, construction, and modification of wireless communication facilities, which are not otherwise exempt as set forth in POMC 20.70.030.
(5) No provision of this chapter shall be interpreted to allow the installation of a wireless communication facility to reduce the minimum parking or landscaping required on a site.
(6) Wireless communication facilities that are governed under this chapter shall not be eligible for variances under Chapter 20.28 POMC. Any request to deviate from this chapter shall be based on the exceptions or waivers set forth in this chapter.
(7) Third-Party Expert Review. Applicants use various methodologies and analyses, including geographically based computer software, to determine the specific technical parameters of the services to be provided utilizing the proposed wireless communication facilities, such as expected coverage area, antenna configuration, capacity, and topographic constraints that affect signal paths. In certain instances, a third-party expert may be needed to review the engineering and technical data submitted by an applicant for a permit. The city may at its discretion require an engineering and technical review as part of a permitting process. The costs of the technical review shall be borne by the applicant.
(8) 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 a provision for the applicant and beneficially interested parties to comment on the proposed expert and review their qualifications. The third-party expert review is intended to address interference and public safety issues and be a site-specific review of engineering and technical aspects of the proposed wireless communication facilities and/or a review of the applicant’s methodology and equipment used, and is not intended to be a subjective review of the site which was selected by an applicant. Based on the results of the expert review, the city may require changes to the application. The expert review shall address the following:
(a) The accuracy and completeness of submissions;
(b) The applicability of analysis techniques and methodologies;
(c) The validity of conclusions reached;
(d) The viability of other sites in the city for the use intended by the applicant; and
(e) Any specific engineering or technical issues designated by the city.
(9) No alterations or changes shall be made to plans approved by the director, director of public works, or hearing examiner without approval from the city. Minor changes which do not change the overall project may be approved by the community development director as a minor modification. (Ord. 017-23 § 1 (Exh. A); Ord. 014-22 § 2).
20.70.050 Types of permits – Priority – Restrictions.
(1) Applications will be reviewed based on the type of wireless communication facilities requested to be permitted. Each wireless communication facility requires the appropriate type of project permit review, as shown in Table A. In the event of uncertainty on the type of a wireless facility, the community development director shall have the authority to determine how a proposed facility is incorporated into Table A.
|
|
Zoning(1) |
||
|---|---|---|---|
|
Type of Facility |
Residential |
Commercial/Public |
Industrial |
|
Adding antennas to an existing or replacement tower or utility pole |
Type 1(2) |
Type 1(2) |
Type 1(2) |
|
Eligible facilities modification |
Type 1 |
Type 1 |
Type 1 |
|
Utility pole co-location |
Type 2 |
Type 2 |
Type 2 |
|
Concealed building attached |
Type 2(3) |
Type 2(3) |
Type 1 |
|
Nonconcealed building attached |
Type 2 |
Type 2 |
Type 1 |
|
New tower or height adjustment request beyond the limitations in the Spectrum Act |
Type 3 |
Type 3 |
Type 3 |
(1) Zoning for any private/public property or right-of-way: Residential – R1, R2, R3, R4, R5, R6, RMU. Commercial and Public – NMU, BPMU, CMU, DMU, GMU, CC, CH, IF, PF, PR, CI. Industrial – LI, HI.
(2) Provided the height of the tower or utility pole does not increase and the square footage of the enclosure area does not increase beyond the limits set forth in Section 6409 of the Spectrum Act.
(3) An applicant may request to install a nonconcealed building attached facility, under POMC 20.70.140.
(2) The priorities for the type of wireless communication facility shall be based upon their placement in Table A; the most desirable locations for facilities are located toward the top of the table and least desirable locations for facilities are located toward the bottom of the table. Any application for a wireless communication facility must follow the hierarchy of Table A. For example, an applicant must demonstrate by engineering evidence that using a transmission tower co-location is not possible before moving to a utility pole replacement for co-location, and so forth, with the last possible siting option being a new tower or waiver request.
(3) The city’s preferences for locating new wireless communication facilities are as follows:
(a) Place antennas on existing or replacement structures, such as buildings, towers, water towers, or electrical transmission towers.
(b) Place wireless communication facilities in nonresidentially zoned districts and nonresidential property.
(c) Place antennas and towers on public property and on appropriate rights-of-way if practical; provided, that no obligation is created herein for the city to allow the use of city property or public right-of-way for this purpose.
(d) City Property/Public Rights-of-Way. The placement of personal wireless communication facilities on city-owned property and public rights-of-way will be subject to other applicable sections of the Port Orchard Municipal Code and review by other departments (i.e., public works, parks and recreation, etc.) and may require a facilities lease.
(e) Wireless communication facilities shall not be permitted on property designated as a landmark or as part of a historic district.
(4) Applicants shall submit all of the information required pursuant to POMC 20.24.030 and the following:
(a) Type 1. Applicant shall submit:
(i) A completed application form provided by the department of community development.
(ii) Four sets of plans prepared by a design professional. The plans shall include a vicinity map, site map, architectural elevations, method of attachment, proposed screening, location of proposed antennas, and all other information which accurately depicts the proposed project. Minimum size is eight and one-half inches by 11 inches. Plans shall be no greater than 24 inches by 36 inches.
(iii) A letter from the applicant outlining the proposed project and an evaluation from the applicant with regard to the city’s code requirements and whether the proposal qualifies for review under Section 6409 of the Spectrum Act.
(iv) Information sufficient to determine whether a proposed facilities modification per POMC 20.70.200 would be a substantial change to an existing eligible support structure.
(v) Sensitive area studies and proposed mitigation (if required).
(vi) If an outdoor generator is proposed, a report prepared by an acoustical engineer demonstrating compliance with Chapter 173-60 WAC and POMC 9.24.050.
(vii) SEPA application (if required).
(b) Type 2. Applicant shall submit all information required for a Type 1 application, plus the following:
(i) Four sets of photo simulations that depict the existing and proposed view of the proposed facility.
(ii) Materials board for the screening material.
(iii) If landscaping is proposed, four sets of a landscaping plan prepared by a Washington state-licensed landscape architect.
(iv) Letter from a radio frequency engineer that demonstrates that the facility meets federal requirements for allowed emissions.
(v) If the facility is located within a residential zone, a report from a radio frequency engineer explaining the need for the proposed wireless communication facility. Additionally, the applicant shall provide detailed discussion on why the wireless communication facility cannot be located within a commercial or industrial zone.
(c) Type 3. The applicant shall submit all the information required for Type 1 and Type 2 applications, plus the following:
(i) All information required for new towers under POMC 20.70.060.
(ii) The radio frequency engineer report shall include a discussion of the information required under POMC 20.70.060.
(iii) Provisions for mailing labels for all property owners and tenants/residents within 500 feet of the subject property.
(iv) Engineering plans for the proposed tower.
(v) A vicinity map depicting the proposed extent of the service area.
(vi) A graphic simulation showing the appearance of the proposed tower and ancillary structures and ancillary facilities from five points within the impacted vicinity. Such points are to be mutually agreed upon by the director of community development and the applicant. All plans and photo simulations shall include the maximum build-out of the proposed facility to the extent such information is known by the applicant.
(vii) Evidence that the tower has been designed to meet the minimum structural standards for wireless communication facilities for a minimum of three providers of voice, video or data transmission services, including the applicant, and including a description of the number and types of antennas the tower can accommodate, to the extent known by the applicant. (Ord. 014-22 § 2).
20.70.060 New towers.
(1) New towers are not permitted within the city unless the hearing examiner finds that the applicant has demonstrated by a preponderance of the evidence that:
(a) Alternates. No existing tower or structure, or other feasible site not requiring a new tower in the city, can accommodate the applicant’s proposed wireless communication facility; and
(b) Least Intrusive. The proposed new wireless communication facility is designed and located in a manner that is, in consideration of the values, objectives and regulations set forth in this chapter, this title, and the comprehensive land use plan, the least intrusive upon the surrounding area.
(2) The hearing examiner shall be the reviewing body on the application to construct a new tower and shall determine whether or not each of the above requirements is met. Examples of evidence demonstrating the foregoing requirements include, but are not limited to, the following:
(a) That the tower height is the minimum necessary in order to achieve the coverage objective;
(b) That no available existing towers or structures or alternative sites are located within the geographic area required to meet the applicant’s engineering requirements to meet its coverage objective (regardless of the geographical boundaries of the city);
(c) That available existing towers or structures are not of a sufficient height or could not feasibly be extended to a sufficient height to meet the applicant’s engineering requirements to meet its coverage objective;
(d) That available existing structures or towers do not have sufficient structural strength to support the applicant’s proposed antenna and ancillary facilities;
(e) That the applicant’s proposed antenna would cause electromagnetic interference with the antenna on the existing towers or structures, or the antenna on the existing structures would cause interference with the applicant’s proposed antenna;
(f) That the fees, costs, or contractual provisions required by the owner or operator in order to share an existing tower or structure, or to locate at an alternative site, or to adapt an existing tower or structure or alternative site for sharing, are unreasonable. Costs exceeding new tower construction by 25 percent are presumed to be unreasonable; and/or the applicant demonstrates other limiting factors that render existing towers and structures or other sites unsuitable or unavailable.
All radiofrequency (RF) engineering evidence must be provided and certified by an RF engineer and clearly demonstrate the evidence required. Any required structural engineering evidence shall be provided and certified by a Washington registered and qualified professional engineer.
(3) The hearing examiner, after holding a public hearing, shall either approve, approve with conditions, or deny the application, or remand the application back to staff for further investigation in a manner consistent with the hearing examiner order. (Ord. 014-22 § 2).
20.70.070 General requirements.
The following shall apply to all wireless communication facilities regardless of the type of facility:
(1) Noise. Any facility that requires a generator or other device which will create noise must demonstrate compliance with Chapter 173-60 WAC and POMC 9.24.050. A noise report, prepared by an acoustical engineer, shall be submitted with any application to construct and operate a wireless communication facility that will have a generator or similar device. The city may require that the report be reviewed by a third-party expert at the expense of the applicant.
(2) Signage. Only safety signs or those mandated by other government entities may be located on wireless communication facilities. No other types of signs are permitted on wireless communication facilities.
(3) Parking. Any application must demonstrate that there is sufficient space for temporary parking for regular maintenance of the proposed facility.
(4) Finish. A tower shall either maintain a galvanized steel finish or, subject to any applicable standards of the FCC, be painted a neutral color so as to reduce its visual obtrusiveness.
(5) Design. The design of all buildings and ancillary structures shall use materials, colors, textures, screening, and landscaping that will blend the tower facilities with the natural setting and built environment.
(6) Color. All antennas and ancillary facilities located on buildings or structures other than towers shall be of a neutral color that is identical to or closely compatible with the color of the supporting structure so as to make the antenna and ancillary facilities as visually unobtrusive as possible.
(7) Lighting. Towers shall not be artificially lighted unless required by the FCC or other applicable authority. If lighting is required, the reviewing authority shall review the lighting alternatives and approve the design that would cause the least disturbance to the surrounding areas. No strobe lighting of any type is permitted on any tower.
(8) Advertising. No advertising is permitted at wireless communication facility sites or on any ancillary structure or facilities equipment compound. (Ord. 014-22 § 2).
20.70.080 Specific development standards for electrical transmission tower co-location.
The following requirements shall apply:
(1) Height. There is no height requirement for antennas that are located on electrical transmission towers.
(2) Antenna Aesthetics. There are no restrictions on the type of antennas located on the electrical transmission tower. The antennas must be painted to match the color of the electrical transmission tower.
(3) Antenna Intensity. There is no limit on the number of antennas that may be located on an electrical transmission tower structure.
(4) Feed Lines and Coaxial Cables. Feed lines and coaxial cables shall be attached to one of the legs of the electrical transmission tower. The feed lines and cables must be painted to match the color of the electrical transmission tower.
(5) Cabinet Equipment. Cabinet equipment shall be located directly under the electrical transmission tower where the antennas are located or a concealed location. The wireless communication equipment compound shall be fenced; the fence shall have a minimum height of six feet and a maximum height of eight feet. The fence shall include slats, wood panels, or other materials to screen the equipment from view. Barbed wire is not allowed.
(6) Setbacks. Since the facility will be located on an existing electrical transmission tower, setbacks shall not apply. (Ord. 014-22 § 2).
20.70.090 Specific development standards for adding antennas to existing WCF tower.
The following requirements shall apply:
(1) Height. The height must not exceed what was approved under the original application to construct the tower. If the height shall exceed what was originally approved, approval as a Type 2 decision is required; provided, however, that increases up to the limitation set forth in Section 6409 of the Spectrum Act shall be allowed.
(2) Antenna Aesthetics. Antennas shall be painted to match the color scheme of the tower.
(3) Antenna Intensity. There is no limit on the number of antennas that may be located on an existing tower.
(4) Feed Lines and Coaxial Cables. Feed lines and coaxial cables shall be located within the tower. Any exposed feed lines or coaxial cables (such as when extended out of the tower to connect to the antennas) must match the tower.
(5) Cabinet Equipment. A new cabinet shall be located within the equipment enclosure that was approved as part of the original application. If the applicant wishes to expand the equipment enclosure from what was approved by the city or county under the previous application beyond the increase limitations set forth in Section 6409 of the Spectrum Act, the applicant shall seek a wireless communication facility (Type 2) application for only the equipment enclosure increase.
(6) Setbacks. Setbacks shall not apply when an applicant installs new antennas on an existing tower and uses an existing equipment enclosure. If the equipment enclosure is increased, it must meet setbacks. (Ord. 014-22 § 2).
20.70.100 Concealed building-mounted development requirements.
The following requirements shall apply:
(1) Height. The proposed facility must meet the height requirement of the applicable zoning category including, as applicable, allowed mechanical equipment encroachments consistent with POMC 20.40.050(2)(c). The antennas can qualify under POMC 20.127.360, Location and design of service areas and mechanical equipment, if the antennas are located in a church spire, chimney or fake chimney, elevator tower, mechanical equipment room, or other similar rooftop appurtenances usually required to be placed on a roof and not intended for human occupancy. Stand-alone antennas shall not qualify as rooftop appurtenances.
(2) Antennas Aesthetics. The antennas must be concealed from view by blending with the architectural style of the building. This could include steeple-like structures and parapet walls. The screening must be made out of the same material or complementary materials and be the same color as the building. Antennas shall be painted to match the color scheme of the building(s).
(3) Feed Lines and Coaxial Cables. Feed lines and cables should be located below the parapet of the rooftop.
(4) Cabinet Equipment. If cabinet equipment cannot be located within the building where the wireless communication facilities will be located, then the city’s first preference is to locate the equipment on the rooftop of the building. If the equipment can be screened by placing the equipment below the parapet walls, no additional screening is required. If screening is required, then the proposed screening must be consistent with the existing building in terms of color, style, architectural style, and material. If the cabinet equipment is to be located on the ground, the equipment must be fenced with a six-foot-tall fence, and materials shall be used to screen the equipment from view. Barbed wire may not be used.
(5) Setbacks. The proposed wireless communication facilities facility must meet the setback of the applicable zoning category where the facility is to be located. (Ord. 014-22 § 2).
20.70.110 Nonconcealed building-mounted development requirements.
The following requirements shall apply:
(1) Height. The proposed facility must meet the height requirements of the applicable zoning category. If the building where the facility is located is at or above the maximum height requirements, the antennas are permitted to extend a maximum of three feet above the existing roof line. Nonconcealed building-mounted facilities shall not qualify as “roof-mounted mechanical equipment” under POMC 20.127.360.
(2) Antenna Aesthetics. The first preference for any proposed facility is to utilize flush-mounted antennas. Non-flush-mounted antennas may be used when their visual impact will be negated by the scale of the antennas to the building. “Shrouds” are not required unless they provide a better visual appearance than exposed antennas. Antennas shall be painted to match the color scheme of the building(s).
(3) Feed Lines and Coaxial Cables. Feed lines and cables should be located below the parapet of the rooftop. If the feed lines and cables must be visible, they must match the color scheme of the building(s).
(4) Cabinet Equipment. If cabinet equipment cannot be located within the building where the wireless communication facilities will be located, then it must be located on the rooftop of the building. If the equipment can be screened by placing the equipment below the parapet walls, no additional screening is required. If screening is required, then the proposed screening must be consistent with the existing building in terms of color, style, architectural style, and material. If the cabinet equipment is to be located on the ground, the equipment must be fenced with a six-foot-tall fence and materials shall be used to screen the equipment from view. Barbed wire may not be used. (Ord. 014-22 § 2).
20.70.120 Utility pole co-location.
The following requirements shall apply:
(1) Height. The height of a utility pole co-location is limited to 25 feet above the replaced utility pole, and may be not greater than 65 feet in height in residential zones.
(2) Replacement Pole. The replaced utility pole must be used by the owner of the utility pole to support its utility lines (phone lines or electric). A replaced utility pole cannot be used to provide secondary functions to utility poles in the area.
(3) Pole Aesthetics. The replaced utility pole must have the color and general appearance of the adjacent utility poles.
(4) Pedestrian Impact. The proposal shall not result in a significant change or cause degradation in the pedestrian environment. For replacement poles, the proposal shall be consistent with the city’s adopted public works engineering standards and specifications such that the ability to make future pedestrian improvements shall not be impacted. In addition, the location of the replacement pole shall be selected to reduce impacts to the current and future pedestrian environment.
(5) Cabinet Equipment. Unless approved by the director of public works, all cabinet equipment and the equipment enclosure must be placed outside of city right-of-way. If located on a parcel that contains a building, the equipment enclosure must be located next to the building, or where it has the least visual impact on surrounding properties. The cabinet equipment must be screened from view. The screening must be consistent with the existing building in terms of color, style, architectural style, and material. If the cabinet equipment is to be located on the ground, the equipment must be fenced with a six-foot-tall fence and materials shall be used to screen the equipment from view. Barbed wire is not allowed.
(6) Setbacks. Any portion of the wireless communication facilities located within city right-of-way is not required to meet setbacks. The city will evaluate setbacks on private property under the setback requirements set forth in POMC 20.70.160. (Ord. 014-22 § 2).
20.70.130 Towers – Specific development standards.
The following requirements shall apply:
(1) Height. Any proposed tower with antennas shall not exceed 70 feet without a height waiver as described in POMC 20.70.170. Bird exclusionary devices are not subject to height limitations.
(2) Antenna and Tower Aesthetics. The applicant shall utilize a wireless communication concealed facility and shall use such methods as to help the tower to blend with the natural and built environment. The choice of concealing the wireless communication facility must be consistent with the overall use of the site. For example, having a tower appear like a flagpole would not be consistent if there are no buildings on the site. If a flag or other wind device is attached to the pole, it must be appropriate in scale to the size and diameter of the tower.
(3) Setbacks. A facility that is used for wireless communications must be set back from all property lines the greater of:
(a) Fifty feet; or
(b) One hundred ten percent of the height from the highest engineered break point to the top of the structure, as certified by a professional engineer. For example, a 100-foot pole with no breakpoint would require a 110-foot setback. If the breakpoint is located at the 50-foot level, then the setback would be 55 feet.
However, if an exception is granted under POMC 20.70.170 with regard to height, the setback from all property lines of the proposed wireless communication facilities will increase two feet for every one foot in excess of the maximum permitted height in the zoning district.
(4) Color. The color of the tower shall be based on the surrounding land uses.
(5) Feed Lines and Coaxial Cables. All feed lines and cables must be located within the tower. Feed lines and cables connecting the tower to the equipment enclosure, which are not located within the wireless communication facility equipment compound, must be located underground. (Ord. 014-22 § 2).
20.70.140 Request to use nonconcealed building attached in lieu of a concealed building attached.
The use of concealed building facilities shall have first priority in all residential and commercial zones. However, an applicant may request to construct a nonconcealed building attached wireless communication facility in lieu of a concealed wireless communication facility. The following criteria shall be used:
(1) Due to the size of the building and the proposed location of the antennas, the visual impact of the exposed antennas will be minimal in relation to the building.
(2) Cables are concealed from view and any visible cables are reduced in visibility by sheathing or painting to match the building where they are located.
(3) Cabinet equipment is adequately screened from view.
(4) Due to the style or design of the building, the use of a concealed facility would reduce the visual appearance of the building.
(5) The building where the antennas are located is at least 200 feet from any body of water or waterway that is designated as either shoreline or critical area. (Ord. 014-22 § 2).
20.70.150 Landscaping/screening.
(1) The visual impacts of wireless communication facilities shall be mitigated and softened through landscaping or other screening materials at the base of the tower, facility equipment compound, equipment enclosures, and ancillary structures, with the exception of wireless communication facilities located on transmission towers, or if the antenna is mounted flush on an existing building or camouflaged as part of the building and other equipment is housed inside an existing structure. The community development director, director of public works or hearing examiner, as appropriate, may reduce or waive the standards for those sides of the wireless communication facility that are not in public view, when a combination of existing vegetation, topography, walls, decorative fences or other features achieve the same degree of screening as the required landscaping; in locations where the visual impact of the tower would be minimal; and in those locations where large wooded lots and natural growth around the property perimeter may be a sufficient buffer; provided, that the applicant shall be required to preserve the existing landscaping the same as if it were newly installed landscaping.
(2) Landscaping shall be installed on the outside of fences. Existing vegetation shall be preserved to the maximum extent practicable and may be used as a substitute for or as a supplement to landscaping or screening requirements; provided, that the applicant shall be required to preserve the existing landscaping the same as if it were newly installed landscaping. The following requirements apply:
(a) Type A landscaping consistent with the requirements of POMC 20.128.060(1) shall be placed around the perimeter of the equipment cabinet enclosure, except that a maximum 10-foot portion of the fence may remain without landscaping in order to provide access to the enclosure.
(b) The landscaping area shall be a minimum of 10 feet in width around the perimeter of the enclosure.
(c) The applicant shall utilize evergreens that shall be a minimum of six feet tall at the time of planting.
(d) The applicant shall utilize irrigation or an approved maintenance schedule that will ensure that the plantings are established after two years from the date of planting.
(3) The applicant shall replace any unhealthy or dead plant materials in conformance with the approved landscaping development proposal and shall maintain all landscape materials for the life of the facility. In the event that landscaping is not maintained at the required level, the community development director, after giving 30 days’ advance written notice, may maintain or establish the landscaping at the expense of the owner or operator and bill the owner or operator for such costs until such costs are paid in full. (Ord. 014-22 § 2).
20.70.160 Zoning setback exceptions.
(1) Generally, wireless communication facilities placed on private property must meet setbacks of the underlying zoning. However, in some circumstances, allowing modifications to setbacks may better achieve the goal of this chapter of concealing such facilities from view.
(2) The community development director or hearing examiner, depending on the type of application, may permit modifications to be made to setbacks when:
(a) An applicant for a wireless communications facility can demonstrate that placing the facility on certain portions of a property will provide better screening and aesthetic considerations than provided under the existing setback requirements; or
(b) The modification will aid in retaining open space and trees on the site; or
(c) The proposed location allows for the wireless communication facility to be located a greater distance from residentially zoned properties.
(3) This zoning setback modification cannot be used to waive/modify any required setback required under the State Building Code or Fire Code or used to reduce the safety of the facility. (Ord. 014-22 § 2).
20.70.170 Height waivers.
(1) Where the hearing examiner finds that extraordinary hardships, practical difficulties, or unnecessary and unreasonable expense would result from strict compliance with the height limitations of the land use and development regulations, or the purpose of these regulations may be served to a greater extent by an alternative proposal, it may approve an adjustment to these regulations; provided, that the applicant demonstrates that the adjustments are consistent with the values, objectives, standards, and requirements of this chapter, this title, and the comprehensive land use plan, and demonstrate the following:
(a) A particular and identifiable hardship exists, or a specific circumstance warrants the granting of an adjustment. Factors to be considered in determining the existence of a hardship shall include, but not be limited to:
(i) Topography and other site features;
(ii) Availability of alternative site locations;
(iii) Geographic location of property; and
(iv) Size/magnitude of project being evaluated and availability of co-location.
(2) In approving the adjustment request, the hearing examiner may impose such conditions as it deems appropriate to assure consistency with the values, objectives, standards, and requirements of this chapter, this title, and the comprehensive land use plan and to ensure that the granting of the height adjustment will not be detrimental to the public safety, health, or welfare, or injurious to other property, and will promote the public interest.
(3) A petition for any such adjustment shall be submitted, in writing, by the applicant with the application for hearing examiner review. The petition shall state fully the grounds for the adjustment and all of the facts relied upon by the applicant. (Ord. 014-22 § 2).
20.70.190 Removal of abandoned wireless communication facilities.
Any antenna or tower that, after the initial operation of the facility, is not used for the purpose for which it was intended (based on the original application) and such nonuse lasts for a continuous period of 12 months or longer, shall be considered abandoned, and the owner of such antenna or tower shall remove same within 90 days of receipt of notice from the city notifying the owner of such abandonment. Failure to remove such abandoned tower or commence removal within 90 days of such notice shall result in the city declaring the antenna and/or tower a public nuisance. If there are two or more users of a single tower, then this section shall not become effective until all users cease using the tower. (Ord. 014-22 § 2).
20.70.200 Standards for eligible facilities modifications.
This section implements Section 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. Section 1455(a)). See also 47 CFR Section 1.6100, Wireless Facility Modifications, 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. The intent is to exempt eligible facilities requests from zoning and development regulations that are inconsistent with or preempted by Section 6409 of the Spectrum Act, while preserving 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.
(1) Definitions.
(a) “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.
(i) The term includes, but is not limited to, 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.
(ii) The term includes, but is not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration (including distributed antenna systems and small-cell networks).
(iii) The term includes any structure other than a tower that, at the time an eligible facilities modification application is filed with the city under this chapter, supports or houses equipment described in subsections (1)(a)(i) and (ii) of this section, and that has been reviewed and approved under the applicable zoning or siting process, or under another state, county or local regulatory review process, even if the structure was not built for the sole or primary purpose of providing such support.
(iv) The term does not include any structure that, at the time a completed eligible facilities modification application is filed with the city under this section, does not support or house equipment described in subsections (1)(a)(i) and (ii) of this section.
(b) “Eligible 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 that does not result in a substantial change in the physical dimensions of an eligible support structure.
(c) “Eligible support structure” shall mean and refer to any existing tower or base station as defined in this chapter, provided it is in existence at the time the eligible facilities modification application is filed with the city under this chapter.
(d) “Existing” shall mean and refer to a constructed tower or base station that was reviewed and approved under the applicable zoning or siting process and lawfully constructed.
(e) “Proposed facilities modification” shall mean and refer to a proposal submitted by an applicant to modify an eligible support structure the applicant asserts is subject to review under Section 6409 of the Spectrum Act, and involving:
(i) Collocation of new transmission equipment;
(ii) Removal of transmission equipment; or
(iii) Replacement of transmission equipment.
(f) “Site” shall mean and refer to the current boundaries of the leased or owned property surrounding a tower (other than a tower in the public right-of-way) 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. The current boundaries of a site are the boundaries that existed as of the date that the original support structure or a modification to that structure was last reviewed and approved by a state or local government, if the approval of the modification occurred prior to the Spectrum Act or otherwise outside of the Section 6409(a) process.
(g) Substantial Change. A proposed facilities modification will substantially change the physical dimensions of an eligible support structure if it meets any of the following criteria:
(i) For towers not 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;
(ii) For towers not 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;
(iii) 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;
(iv) It entails any excavation or deployment outside of the current site, except that, for towers other than towers in the public rights-of-way, it entails any excavation or deployment of transmission equipment outside of the current site by more than 30 feet in any direction. The site boundary from which the 30 feet is measured excludes any access or utility easements currently related to the site;
(v) It would defeat the concealment elements of the eligible support structure; or
(vi) 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.
(h) “Tower” shall mean and refer 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.
(i) “Break point technology” shall mean towers designed with break point technology engineer points on the top portion of the tower to fold over onto itself in extreme stress such as earthquake and extraordinary high winds, rather than fall its full length from the base.
(j) “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.
(2) Proposed facilities modification applications are not subject to the application requirements set forth in POMC 20.24.020 but may still require construction permits such as grading, street excavation, and building permits, and will also require approval of traffic control plans if traffic will be impacted.
(3) City decisions on eligible facilities modifications shall be issued within 60 days from the date the application is received by the city, subtracting any time between the city’s notice of incomplete application or request for additional information and the applicant’s resubmittal. Following a supplemental submission, the city will respond to the applicant within 10 days, stating whether the additional information is sufficient to complete review of the application. This timing supersedes Chapter 20.24 POMC.
(4) If the city fails to approve or deny an eligible facilities modification within the time frame for review, the applicant may notify the city in writing that the review period has expired, and that the application has therefore been deemed granted. In such case, all limitations of this section and compliance with applicable provisions of building, structural, electrical, and safety codes and noise regulations shall automatically be considered conditions of such approval.
(5) Applicants and the city may bring claims related to Section 6409(a) of the Spectrum Act to any court of competent jurisdiction. (Ord. 014-22 § 2).
20.70.210 Expiration of wireless facility permits.
A wireless facility permit shall automatically expire three years after a notice of decision approving the permit is issued unless a building permit conforming to plans for which the wireless facility permit was granted is obtained within that period of time. If a building permit is not required for the proposed work, such as changing antennas on an existing tower, then the substantial construction of the proposed work shall be completed within one year after a notice of decision approving the permit is issued. The director of community development may authorize a longer period for completion of work if the applicant can demonstrate why additional time is required and submits a written request for extension prior to expiration of the wireless facilities permit. (Ord. 014-22 § 2).