Chapter 23.55
ELIGIBLE FACILITIES REQUESTS
Sections:
23.55.060 Determination of completeness and tolling.
23.55.070 Review of application.
23.55.080 Violation and enforcement.
23.55.010 Purpose.
The purpose of this chapter is to implement Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 (“Spectrum Act”), as interpreted by the FCC’s Acceleration of Broadband Deployment Report and Order, and 47 CFR Section 1.6100, which require a State or local government to approve any eligible facilities request for a modification of an existing tower or base station that does not result in a substantial change to the physical dimensions of such tower or base station. For definitions of terms utilized in this chapter, refer to UPMC 23.45.020.
(Ord. 751 § 3 (Exh. C), 2021).
23.55.020 Applicability.
A. Sole and Exclusive Procedure. Except as may be otherwise provided in this chapter, and notwithstanding any other provisions in the City code, the provisions of this chapter shall be the sole and exclusive procedure for review and approval of a proposed facilities modification which the applicant asserts is subject to review under Section 6409 of the Spectrum Act. To the extent that other provisions of the City code establish a parallel process for review and approval of a project permit application for a proposed facilities modification, the provisions of this chapter shall control.
B. In the event that any part of an application for project permit approval includes a proposed facilities modification, the proposed facilities modification portion of the application shall be reviewed under the provisions of this chapter. In the event that an application for project permit approval includes a proposal to modify an eligible support structure, and the applicant does not assert in the application that the proposal is subject to review under Section 6409 of the Spectrum Act, such proposal shall not be subject to review under this chapter and may be subject to review under other applicable provisions of the City code.
C. Nonconforming Structures. This chapter shall not apply to a proposed facility modification to an eligible support structure that is not a legal conforming, or legal nonconforming, structure at the time a completed eligible facilities modification application is filed with the City. To the extent that the nonconforming structures and use provisions of the City code would operate to prohibit or condition approval of a proposed facilities modification application otherwise allowed under this chapter, such provisions are superseded by the provisions of this chapter and shall not apply.
Replacement of Eligible Support Structure. This chapter shall not apply to a proposed facility modification to an eligible support structure that will involve replacement of the tower or base station.
D. First Deployment – Base Station. This chapter shall not apply to a proposed facility modification to a structure, other than a tower, that does not, at the time of submittal of the application, already house or support transmission equipment lawfully installed within or upon, or attached to, the structure.
E. Interpretation. Interpretations of this chapter shall be guided by Section 6409 of the Spectrum Act; the FCC Eligible Facilities Request Rules; the FCC’s report and order in “In re Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies,” WT Docket Nos. 12-238 and 13-32 and; WC Docket No. 11-59; FCC 14-153; and UPMC 23.55.010 (Purpose).
F. SEPA Review. Unless otherwise provided by law or regulation, decisions pertaining to an eligible facilities modification application are not subject to, and are exempt from, the requirements of RCW 43.21C.030(2)(c), if:
1. The proposed facilities modification would not increase the height of the eligible support structure by more than 10 percent, or 20 feet, whichever is greater; or
2. The mounting of equipment that would involve adding an appurtenance to the body of the eligible support structure would not protrude from the edge of the structure more than 20 feet, or more than the width of the structure at the level of the appurtenance, whichever is greater; or
3. The authority to condition or deny an application pursuant to Chapter 43.21 RCW is preempted, or otherwise supplanted, by Section 6409 of the Spectrum Act.
G. Building Permit. The City will process, review, and, if practicable, issue a decision regarding a building permit for the facility modification concurrent with the eligible facilities modification permit described herein.
(Ord. 751 § 3 (Exh. C), 2021).
23.55.030 Definitions.
See UPMC 23.45.020 for definitions applicable to this chapter.
(Ord. 751 § 3 (Exh. C), 2021).
23.55.040 Permit required.
An eligible facilities modification permit shall be classified as an administrative permit subject to review and approval or denial by the City.
(Ord. 751 § 3 (Exh. C), 2021).
23.55.050 Application.
A. Submittal Requirements. A complete eligible facilities modification application shall be deemed complete if it is, in writing, accompanied by the applicable application form and review fee, includes the following required information and submittals, unless waived by the City:
1. The following contact information for the applicant:
a. Name;
b. Title;
c. Mailing address;
d. Phone number; and
e. Email address.
2. The legal and dba names, mailing address, Washington tax number, and contact phone number(s) of applicant.
3. If a corporation, the name and address of the registered agent of applicant in Washington State, and the state of incorporation of applicant.
4. If applicant is an entity other than a corporation, such as a partnership or limited liability company, the names and business addresses of the principals.
5. An assertion that the proposed facilities modification is subject to review under Section 6409 of the Spectrum Act.
6. If the applicant is not the owner or person in control of the eligible support structure and/or site, the applications shall include 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 in a public right-of-way, the applicant must also attest that applicant has authorization to install, maintain and operate transmission equipment in, under and above the public right-of-way.
7. A statement from a qualified professional or technician that the modification will be in compliance with FCC radio frequency emission standards.
8. If the applicant proposes a modification that will result in an increase in height of the eligible support structure, the application shall include 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 authority, or (b) as of the most recent modification that received City or other local zoning or regulatory approval, prior to the passage of the Spectrum Act, whichever height is greater.
9. A copy of any prior approval (e.g., CUP or AUP) setting forth such preexisting restrictions or requirements together with a certification that the proposed facilities modification conforms to such restrictions or requirements; provided, that such certification shall have no application to the extent the proposed facilities modification relates solely to an increase in height, increase in width, addition of cabinets, or new excavation that does not result in a substantial change in the physical dimensions of the eligible support structure.
10. The application 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, and particularly, how concealment or stealth will be extended with the modification. The visual simulation shall depict to scale the eligible support structure in relation to the trees, landscaping and other structures adjacent to, or in the immediate vicinity of, the eligible support structure.
11. If the applicant proposes a modification that will protrude from the edge of a nontower eligible support structure, the application shall include drawings, as-built plans, or the equivalent, showing at a minimum the edge of the eligible support structure at the location of the proposed modification.
12. If the applicant proposes a modification to an eligible support structure that will include any excavation or deployment outside the current site of the tower or base station, 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 would protrude from the edge of a nontower eligible support structure, the applications shall include 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. If excavation is proposed, the City may require a survey by a land surveyor licensed in the State of Washington when, in the judgment of the City, a survey is reasonably necessary to verify the boundaries of the site.
13. If the applicant proposes a modification to the eligible support structure that includes hardening through structural enhancement, the applications shall include a technical report by a qualified engineer accredited by the State of Washington, demonstrating that the structural enhancement 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 sufficiency and accuracy of the report required in this subsection.
14. If the applicant proposes a modification to a tower, the application shall include 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. The City may retain the services of an independent technical expert to review, evaluate, and provide an opinion regarding the sufficiency and accuracy of the report required in this subsection.
15. If the applicant proposes a modification to a base station, the application shall include a stamped report by a State of Washington registered professional engineer demonstrating that the base station, with the proposed modifications, will comply with applicable structural, electrical and safety codes.
16. If the applicant proposes a modification requiring alteration to the eligible support structure, excavation, installation of new equipment cabinets, or any other activities impacting or altering the land, existing structures, fencing, or landscaping on the site, the application shall include 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, including the location, elevation and dimensions of the transmission equipment, if any, proposed to be co-located or that will replace existing transmission equipment;
c. The location, elevation and dimensions of any proposed new equipment cabinets and the intended use of each;
d. Any proposed modification to the eligible support structure;
e. The location of existing structures on the site, including fencing, screening, trees, and other significant site features; and
f. The location of any areas where excavation is proposed showing the elevations, depths, and width of the proposed excavation and materials and dimensions of the equipment to be placed in the area excavated.
17. If the eligible facility is in a residential zone the City shall provide public notice in accordance with UPMC 22.05.060(A)(1) and (B).
B. Waiver of Submittal Requirement. The City 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 City.
(Ord. 751 § 3 (Exh. C), 2021).
23.55.060 Determination of completeness and tolling.
A. When Received. An eligible facilities modification application, and any supplemental submittals, shall be deemed received by the City upon the date such application, or supplemental submittal, is filed with the City. Any application received by the City without payment of the applicable permit review fees will be deemed incomplete.
B. Determination of Completeness. Within 30 days of receipt of the application, the City shall review the application for completeness. An application is complete if it includes the applicable permit review fee(s) and contains all of the applicable submittal requirements set forth in UPMC 23.55.050(A) unless waived by the City pursuant to UPMC 23.55.050(B).
C. Incomplete Application. The City shall notify the applicant within 30 days of receipt of the application that the application is incomplete. Such notice shall clearly and specifically delineate all missing documents or information.
D. Tolling Time Frame for Review. The application review period begins to run when the application is received and may be tolled (paused) when the City determines that the application is incomplete and provides notice as set forth below. The application review period may also be tolled by mutual agreement of the City and applicant.
1. To toll the time frame for review for incompleteness, the City shall provide written notice to the applicant within 30 days of the date of receipt of the application, specifying all missing documents or information. Such information is limited to submittals set forth in UPMC 23.55.050 and any supplemental information requested by the City that is reasonably related to determining whether the proposed facilities modification will substantially change the physical dimension of an eligible support structure.
2. The time frame for review begins running again when the City is in receipt of applicant’s supplemental submission in response to the City’s notice of incompleteness.
3. Following a supplemental submission, the City shall have 10 days to notify the applicant that the supplemental submission did not provide the information identified in the original notice of incompleteness. The time frame is tolled in the case of second or subsequent notices pursuant to the procedures identified in this subsection. Except as may be otherwise agreed to by the applicant and the City, second or subsequent notices of incompleteness may not specify missing documents or information that was not included in the original notice of incompleteness.
4. A notice of incompleteness from the City will be deemed received by the applicant upon the earlier of personal service upon the applicant, delivery by electronic mail to the applicant (if such delivery is authorized for receipt of notice by the applicant), or three days from deposit of the notice in the United States mail, postage prepaid, and in an envelope properly addressed to the applicant using the address set forth in the application.
E. Modification of Proposed Facilities Modification. In the event that after submittal of the application, or as a result of any subsequent submittals, an applicant significantly modifies the proposed facilities modification described in the initial application, the application as modified will be considered a new application subject to commencement of a new application review period; provided, that applicant and the City may, in the alternative, enter into a mutually agreeable tolling agreement allowing the City to request additional submittals and additional time that may be reasonably necessary for review of the modified application.
(Ord. 751 § 3 (Exh. C), 2021).
23.55.070 Review of application.
The City shall review an eligible facilities modification application to determine if the proposed facilities modification is subject to this chapter and, if so, if the proposed facilities modification will result in a substantial change to the physical dimensions of an eligible support structure.
A. Time Frame for Review. Within 60 days of the date on which the City receives an eligible facilities modification application, less any time period that may be excluded under the tolling provisions of this chapter or a tolling agreement between the applicant and the City, the City shall approve the application and issue an eligible facilities modification permit unless the City determines that the application is not subject to this chapter, or the proposed facilities modification will substantially change the physical dimension of an eligible support structure.
B. Approval – Denial. An eligible facilities application shall be approved, and an eligible facilities permit issued, upon determination by the City that the proposed facilities modification is subject to this chapter and that it does not substantially change the physical dimensions of an eligible support structure. An eligible facilities application shall be denied upon determination by the City that the proposed facilities modification is not subject to this chapter or will substantially change the physical dimensions of an eligible support structure. A proposed facilities modification will substantially change the physical dimensions of an eligible support structure if it meets any of the following substantial change criteria:
1. Changes in height shall 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 shall 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;
2. For towers other than towers in the public rights-of-way, it involves adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than 20 feet, or more than the width of the tower structure at the level of the appurtenance, whichever is greater; for other eligible support structures, it involves adding an appurtenance to the body of the structure that would protrude from the edge of the structure by more than six feet;
3. 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;
4. It entails any excavation or deployment outside the current site;
5. It would defeat the concealment elements of the eligible support structure; or
6. 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.
C. Approved Application. An application that has been deemed approved shall be and constitute the equivalent of an eligible facilities modification permit, except as may be otherwise determined by a court of competent jurisdiction and shall be subject to generally applicable enforcement and compliance requirements in the same manner as an eligible facilities modification permit issued pursuant to this chapter.
D. Denial of Application. A denial of an eligible facilities modification application shall set forth in writing the reasons for the denial and shall be provided to the applicant.
E. Other Code Requirements. Any eligible facilities modification permit issued pursuant to this chapter, and any application that has been deemed approved, shall be and is conditioned upon compliance with any applicable building, structural, electrical, and safety codes and other laws codifying objective standards reasonably related to health and safety.
F. Term of Eligible Facilities Modification Permit. An eligible facilities modification permit issued pursuant to this chapter, and any deemed approved application, shall be valid for a term consistent with the time period provided for building permits in UPMC Title 14.
G. Remedies. Notwithstanding any other provisions in the City code, no administrative appeal is provided for review of a decision to condition, deny or approve an application. Applicant and the City retain any and all remedies that are available at law or in equity, including, by way of example and not limitation, those remedies set forth in the FCC Eligible Facilities Request Rules and remedies available under the Land Use Petition Act (Chapter 36.70C RCW). In the event no other time period is provided at law for bringing an action for a remedy, any action challenging a denial of an application or notice of a deemed approved remedy shall be brought within 30 days following the date of denial or following the date of notification of the deemed approved remedy.
(Ord. 751 § 3 (Exh. C), 2021).
23.55.080 Violation and enforcement.
Compliance with the provisions of this chapter is mandatory. Any violation hereof is subject to enforcement under the code enforcement provisions set forth in Chapters 1.15, 1.20 and/or 1.30 UPMC at the City’s discretion.
(Ord. 751 § 3 (Exh. C), 2021).