ORD 2015-23 RELATING TO WIRELESS COMMUNICATION FACILITIESCITY OF BAINBRIDGE ISLAND
WASHINGTON
ORDINANCE NO. 2015-23
AN ORDINANCE OF THE CITY OF BAINBRIDGE
ISLAND, WASHINGTON, RELATING TO WIRELESS
COMMUNICATION FACILITIES; ADDING NEW
CHAPTERS 18.10 AND 18.11 TO THE BAINBRIDGE
ISLAND MUNICIPAL CODE; ESTABLISHING
DEVELOPMENT REGULATIONS FOR CO- LOCATION,
REMOVAL AND REPLACEMENT OF WIRELESS
TRANSMISSION FACILITIES TO CONFORM TO
FEDERAL LAW AND REGULATIONS; ESTABLISHING
AN APPLICATION PROCESS; PROVIDING FOR
TERMINATION OF NON - CONFORMING STRUCTURES;
REPEALING BAINBRIDGE ISLAND MUNICIPAL CODE
SUBSECTION 18.09.030(F)(3) RELATING TO WIRELESS
COMMUNICATION FACILITIES, PROVIDING FOR
SEVERABILITY; AND ESTABLISHING AN EFFECTIVE
DATE
WHEREAS, in 1934, Congress enacted the Communications Act of 1934, creating the
FCC and granting it authority over common carriers engaged in the provision of interstate or
foreign communications services; and
WHEREAS, in 1996 Congress enacted Pub. L. No, 104 -104, 110 Stat. 70 (the "1996
Act "), amending the Communications Act of 1934 and implementing regulations applicable to
both wireless and wireline communications facilities for the purpose of removal of barriers to
entry into the telecommunications market while preserving local government zoning authority
except where specifically limited under the 1996 Act; and
WHEREAS, in the 1996 Act, Congress imposed substantive and procedural limitations
on the traditional authority of state and local governments to regulate the location, construction,
and modification of wireless facilities and incorporated those limitations into the
Communications Act of 1934; and
WHEREAS, the City has adopted regulations that have been codified as part of the
Bainbridge Island Municipal Code establishing local requirements for the location, construction,
and modification of wireless facilities; and
WHEREAS, recent SEPA legislation is intended to shift the focus on wireless
communication facilities from antenna size to visual stealth and camouflage; and
WHEREAS, the City has been identified by an AT &T Wireless survey as a city with
poor wireless phone coverage; and
WHEREAS, the City desires to expand and improve wireless coverage within and
around the City; and
WHEREAS, in 2012 Congress passed the "Middle Class Tax Relief and Job Creation
Act of 2012" (the "Spectrum Act ") (Public Law 112 -96; codified at 47 U.S.C. § 1455(a)); and
WHEREAS, Section 6409 of the Spectrum Act (hereafter "Section 6409 ") implements
additional substantive and procedural limitations upon state and local government authority to
regulate modification of existing wireless antenna support structures and base stations; and
WHEREAS, Congress through its enactment of Section 6409, has mandated that local
governments approve, and cannot deny, an application requesting modification of an existing
tower or base station if such modification does not substantially change the physical dimensions
of such tower or base station; and
WHEREAS, the 1996 Act empowers the Federal Communications Commission (the
"FCC ") to prescribe such rules and regulations as may be necessary in the public interest to carry
out the provisions of the 1996 Act, and subsequently added portions of the 1996 Act such as
Section 6409; and
WHEREAS, the FCC, pursuant to its rule making authority, adopted and released a
Notice of Proposed Rulemaking in September of 2013 (In re Acceleration of Broadband
Deployment by Improving Wireless Facilities Siting Policies, WT Docket Nos. 13 -238, 13 -32;
WC Docket No. 11 -59; FCC 13 -122) which focused in part upon whether or not the FCC should
adopt rules regarding implementation of Section 6409; and
WHEREAS, on October 21, 2014, the FCC issued its report and order, WT Docket Nos.
13 -238, 13 -32; WC Docket No. 11 -59; FCC 14 -153, in the above described proceeding (the
"Report and Order" or "Order ") clarifying and implementing statutory requirements related to
state and local government review of infrastructure siting, including Section 6409, with the intent
of facilitating and expediting the deployment of equipment and infrastructure to meet the
demand for wireless capacity; and
WHEREAS, the rules adopted by the FCC in its Report and Order implementing Section
6409 are intended by the FCC to spur wireless broadband deployment, in part, by facilitating the
sharing of infrastructure that supports wireless communications through incentives to collocate
on structures that already support wireless facilities; and
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WHEREAS, the Report and Order also adopts measures that update the FCC's review
processes under the National Environmental Policy Act of 1969 ( "NEPA ") and section 106 of
the National Historic Preservation Act of 1966 ( "NHPA "), with a particular emphasis on
accommodating new wireless technologies that use smaller antennas and compact radio
equipment to provide mobile voice and broadband service; and
WHEREAS, on January 5, 2015, the FCC released an Erratum to the Report and Order
making certain amendments to the provisions of the Report and Order related to NEPA and
Section 106 of the NHPA; and
WHEREAS, that part of the Report and Order related to implementation of Section
6409, amends 47 C.F.R. Part 1 (PART 1 — PRACTICE AND PROCEDURE) by adding new
Subpart CC § 1.40001 and establishing both substantive and procedural limitations upon local
government application and development requirements applicable to proposals for modification
to an existing antenna support structure or an existing base station ( "Eligible Facility Request
Rules "); and
WHEREAS, the Order, among other things, defines key terms utilized in Section 6409,
establishes application requirements limiting the information that can be required from an
applicant, implements a 90 -day shot clock for permit processing and related tolling provisions,
establishes a "deemed approved" remedy for applications not timely responded to, requires cities
to approve a project permit application requesting modification of an existing tower or base
station that does not substantially change the physical dimensions of such tower or base station,
and establishes development standards that govern such proposed modifications; and
WHEREAS, the Report and Order provides that the Eligible Facility Request Rules will
be effective 90 days following publication in the Federal Register; and
WHEREAS, the Order was published in the Federal Register on Thursday, January 8,
2015, Federal Register; Vol. 80; No. 5, resulting in the Eligible Facility Request Rules becoming
effective on April 8, 2015; and
WHEREAS, the Order is subject to appeal, however, even if an appeal is filed, the
appeal will not automatically result in delay of implementation of the Eligible Facility Request
Rules; and
WHEREAS, the City Council finds that it is required under Section 6409 of the
Spectrum Act and the Eligible Facility Request Rules established in the Order, to adopt and
implement local development and zoning regulations that are consistent with Section 6409 and
the Order; and
WHEREAS, an Environmental Checklist for a non - project action was prepared under the
State Environmental Policy Act (RCW Chapter 43.21C), pursuant to Washington Administrative
Code Chapter 197 -11, and a determination of Non - Significance ( "DNS ") was issued on August
21, 2015; and
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WHEREAS, in accordance with RCW 36.70A.106 and WAC 365- 196 -630, a notice of
intent to adopt the proposed new development regulations was sent to the State of Washington
Department of Commerce and to other state agencies to allow for a 60 -day review and comment
period, which comment period ended prior to adoption of this ordinance; and
WHEREAS, on August 11, 2015, the Planning Commission held a duly noticed public
meeting related to the proposed development and zoning regulations set forth in the proposed
ordinance and on August 11, 2015 moved to recommend to the City Council approval of the
ordinance as set forth herein; and
WHEREAS, the City Council considered the proposed development and zoning
regulations in the proposed ordinance on September 1, 2015 and held a public hearing on the
proposed regulations on September 8, 2015; and
WHEREAS, the City Council finds that the proposed development and zoning
regulations are reasonable and necessary in order bring the City's development regulations into
compliance with the mandate imposed upon the City by Congress pursuant to Section 6409 and
the regulations imposed upon the City by the FCC pursuant to its Report and Order dated
October 21, 2014, and are therefore in the public interest;
NOW, THEREFORE, the City Council of the City of Bainbridge Island, Washington,
do ordain as follows:
Section 1. New BIMC Chapter 18.10 "Use Regulations — Wireless Communication
Facilities," Added. Title 18 of the Bainbridge Island Municipal Code is hereby amended to add
a new Chapter 18. 10, Use Regulations — Wireless Communication Facilities, to read as follows:
Use Regulations — Wireless Communication Facilities.
18.10.010
Purpose
18.10.020
Definitions
18.10.030
Permit required
18.10.040
Application requirements
18.10.050
Permit conditions
18.10.060
Permit enforcement
18.10.070
Prioritized locations
18.10.080
Development standards
18.10.090
Electromagnetic field (EMF) standards compliance
18.10.100
Facility removal
18.10.010 Purpose.
This chapter addresses the issues of location and appearance associated with
wireless communication facilities ( "WCFs "). It provides adequate siting
opportunities through a wide range of locations and options which minimize
safety hazards and visual impacts sometimes associated with wireless
communications technology. The chapter encourages siting of facilities on
existing buildings or structures, co- location of several providers' facilities on a
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single support structure, and visual mitigation measures to maintain neighborhood
appearance and reduce visual clutter in the City.
18.10.020 Definitions.
A. "Antenna(s)" means any system of electromagnetically tuned wires, poles,
rods, reflecting discs or similar devices used to transmit or receive
electromagnetic waves between terrestrial and /or orbital based points, including,
but not limited to:
1. Omni - directional (or "whip ") antenna(s), which transmits and receives
radio frequency signals in a 360 - degree radial pattern;
2. Directional (or "panel ") antenna(s), which transmits and receives radio
frequency signals in a specific directional pattern of less than 360 degrees;
3. Parabolic antenna(s) (or "dish ") antenna(s), which is a bowl- shaped
device for the reception and /or transmission of communications signals in a
specific directional pattern; and
4. Ancillary antenna(s), which is an antenna less than 12 inches in its
largest dimension and is not directly used to provide personal wireless
communications services, such as a global positioning satellite (GPS) antenna.
B. "Co- location" means placing and arranging multiple providers' antennas
and equipment on a single support structure or equipment pad area.
C. "Electromagnetic field" or "EMF" means the field produced by the
operation of equipment used in transmitting and receiving radio frequency signals.
D. "Equipment facility" means any structure used to house electronic equipment,
cooling systems and back -up power systems associated with a WCF, including shelters,
enclosures, cabinets and other similar structures.
E. "Facility I" means a wireless communication facility consisting of an antenna that
is either: (1) four feet or less in height and with an area of not more than 580 square
inches in the aggregate; or (2) if a tubular antenna, no more than four inches in diameter
and no more than six feet in length.
F. "Facility II" means a wireless communication facility consisting of up to three
antennas, each of which is a microcell with associated equipment facilities six feet
or less in height and no more than 48 square feet in floor area.
G.. "Support structure" means any structure, designed and constructed
specifically to support an antenna array, including a monopole, self - supporting
(lattice) tower, guy -wire support tower and any other similar structures. Any
device (attachment device) used to attach a WCF to an existing structure or
building (attachment structure) shall be excluded from the definition of and
regulations applicable to support structures.
H. "Wireless communication facility" or "WCF" means an unstaffed facility
for the transmission and /or reception of radio frequency, microwave or other
signals for commercial communications purposes, including and typically
consisting of antennas, equipment shelter or cabinet, transmission cables, a
support structure required to achieve the necessary elevation, and reception and
transmission devices and antennas.
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I. "Wireless communication services" means commercial mobile services,
unlicensed wireless services, and common carrier wireless exchange access
services, as defined by federal laws and regulations.
18.10.030 Permit required.
A. A wireless communication facility (WCF) permit shall be required for the
location, installation or construction of any new WCF, and for any modification to
an existing WCF that is not governed by Chapter 18.11 BIMC.
B. The Planning and Community Development Department may grant permit
approval for:
1. A Facility I or II, or a monopole or lattice tower located in a
nonresidential zone that does not exceed the maximum height of the zone; or
2. A Facility I or II in a multifamily, business, commercial, or town center
zone on an existing building or structure; provided, that the facility is no higher
than 15 feet above the existing building or structure or the permitted height for the
zone, whichever is higher; or
3. A Facility I or II in a residential zone on a nonresidential building or
structure; provided that the facility is no higher than 15 feet above the permitted
height in the zone.
C. All other WCFs require conditional use permit review and approval by the
City hearing examiner.
D. Additions to the height of public safety communications towers are
exempt from the WCF permit requirement, and shall be considered a permitted
( "P ") use in all zones where WCFs are permitted; provided, that building permits
are required for these uses.
18.10.040 Application requirements.
All applications for a WCF must include, at a minimum:
A. A diagram or map showing the primary viewshed of the proposed WCF;
B. A map showing the coverage area of the proposed WCF at the requested
height;
C. An explanation of the need for the proposed WCF, including an analysis of
alternative sites that supports the selected site over other possible locations,
particularly locations in a higher priority zone;
D. An inventory of other WCF sites operated by the applicant that are either
in the City or within one mile of its borders, including specific information about
location, height and design of each facility;
E. A site /landscaping plan showing the specific placement of the WCF on the
site; showing the location of existing structures, trees and other significant site
features; and indicating type and locations of plant materials used to screen WCF
components;
F. Documentation verifying that the proposed WCF complies with any
applicable regulations and specifications in accordance with the Federal Aviation
Administration (FAA); and
G. Applications for facilities other than Facility I or Facility II shall also
contain:
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1. Photosimulations of the proposed WCF from affected properties and
public rights -of -way at varying distances; and
2. Documentation of efforts to collocate on existing facilities.
18.10.050 Permit conditions.
Each permit issued by the City shall be conditioned to:
A. Permit Term;
B. Require that construction or installation of the WCF must commence
within one year from the date of the permit, with opportunity for a one -year
extension; otherwise, the permit shall be revoked without further action of the
City and the rights and privileges appurtenant to the permit shall be void;
C. Require the permittee to allow co- location of proposed WCFs on the
permittee's site, unless the permittee establishes to the City's satisfaction that co-
location will technically impair the existing permitted use(s) to a substantial
degree;
D. Require the permittee to maintain the WCF in a state of good repair and to
maintain or replace, if necessary, vegetation and landscaping required as a
condition of approving the permit;
E. Require the permittee to notify the City of any sale, transfer, assignment of
a site or WCF within sixty (60) days of such event; and
F. Require the permittee to comply with the provisions of this title and all
other applicable City ordinances and rules and regulations.
18.10.060 Permit enforcement.
The Planning and Community Development Director, or that officer's designee,
shall enforce the provisions of this chapter under the code enforcement provisions
of the Bainbridge Island Municipal Code. .
18.10.070 Prioritized locations.
The following sites are prioritized in order of preference for locating proposed
WCFs and permits shall be issued so that WCFs will be located on the highest
priority site feasible:
A. Co- location.
B. Public buildings and structures located in nonresidential zones.
C. Buildings and structures in business and commercial zoned sites used for
research and development, commercial and business uses.
D. Buildings and structures in residential zones not used entirely for
residential use; provided, that WCFs will not be sited on vacant residential lots.
18.10.080 Development standards.
All WCFs shall be constructed or installed according to the following
development standards:
A. WCFs must comply with applicable Federal Communications Commission
(FCC), Federal Aviation Administration (FAA), state, and City regulations and
standards;
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B. Antennas shall be located, mounted and designed so that visual and
aesthetic impacts upon surrounding land uses and structures are minimized, and
so that they blend into the existing environment. Panel and parabolic antennas
shall be screened from residential views and public rights -of -way;
C. WCFs must be screened or camouflaged employing the best available
technology, such as compatible materials, location, color, artificial trees and
hollow flagpoles, and other tactics to minimize visibility of the facility from
public streets and residential properties;
1. A freestanding WCF shall not be allowed whenever an existing
structure can meet technical and network location requirements;
2. Monopoles and lattice towers constructed in accordance with subsection
(H) of this section shall be the only freestanding support structures allowed in the
City, and are the preferred structures where any support structure is necessary,
provided that site location and development shall preserve the pre- existing
character of the site as much as possible;
3. A freestanding WCF shall comply with all required setbacks of the
zoning district in which it is located;
4. WCF shall be designed and placed or installed on the site in a manner
that takes maximum advantage of existing trees, mature vegetation, and structures
by:
a. Using existing site features to screen the WCF from prevalent
views; and
b. Using existing site features as a background in a way that the WCF
blends into the background;
5. As a condition of permit approval, the City may require the applicant to
supplement existing trees and mature vegetation to screen the facility;
6. A WCF shall be painted either in a nonreflective color or in a color
scheme appropriate to the background against which the WCF would be viewed
from a majority of points within its viewshed, and in either case the color must be
approved by the City as part of permit approval;
D. Equipment facilities shall be placed underground if applicable, or, if above
ground, shall:
1. Be screened from any street and adjacent property with fencing, walls,
landscaping, structures or topography or a combination thereof, and
2. Not be located within required building setback areas;
E. Security fencing shall:
1. Not exceed six feet in height;
2. Be screened from view through the use of appropriate landscaping
materials; and
3. If it is a chain -link fence, be camouflaged with appropriate techniques
and painted or coated with a nonreflective color;
F. The City shall consider the cumulative visual effects of WCFs mounted on
existing structures and /or located on a given permitted site in determining whether
the additional permits can be granted so as to not adversely affect the visual
character of the City;
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G. A WCF shall not be used for mounting signs, billboards or message
displays of any kind;
H. In addition to the other development standards of this section, monopoles
and lattice towers shall:
1. Require site plan and design review pursuant to BIMC 2.16.040 to
balance the potential impacts upon adjoining and surrounding land uses;
2. Be constructed on legally conforming lots;
3. Be integrated through location, design, and color to blend in with the
existing site characteristics to the greatest extent practicable. Existing vegetation
around the WCF shall be preserved or improved upon to provide vegetative
screening over a minimum of two - thirds of the height of the monopole or lattice
tower;
4. Be subject to additional screening requirements by the planning
director to mitigate visual impacts to adjoining properties or public rights -of -way
as determined by site - specific conditions; and
5. Not utilize equipment operated above 45 dB, as measured from the
nearest property line on which the attached WCF is located.
18.10.090 Electromagnetic field (EMF) standards compliance.
A. All WCFs shall be operated in compliance with federal standards for EMF
emissions. Within six months after the issuance of its operational permit, the
applicant shall submit a project implementation report which provides cumulative
EMF power densities of all antennas installed at the subject site. The report shall
quantify the EMF emissions and compare the results with established federal
standards. Said report shall be subject to review and approval by the City for
consistency with the project proposal report and the adopted federal standards. If
on review the City finds that the WCF does not meet federal standards, the City
may revoke or modify the permit. The applicant shall be given a reasonable time
based on the nature of the problem to comply with the federal standards. If the
permit is revoked, then the facility shall be removed.
B. All WCFs shall be operated in a manner that the WCF will not cause
localized interference with the reception of area television or radio broadcasts,
garage door openers, portable phones and other similar FCC approved devices. If
on review of a registered complaint the City finds that the WCF interferes with
such reception, the City may revoke or modify the permit. The applicant shall be
given a reasonable time based on the nature of the problem to correct the
interference. If the permit is revoked, then the facility shall be removed.
18.10.100 Facility removal.
A. A WCF shall be removed within ninety (90) days of the date the site's use
is discontinued, it ceases to be operational, or the permit is revoked; or if the
facility falls into disrepair and is not maintained, within ninety (90) days of a
notice from the City to effect repairs and maintenance to the satisfaction of the
City. The operator of a WCF shall notify the City upon the discontinued use of a
particular facility.
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B. Should the operator fail to remove the WCF as required herein, and the
property owner fails to remove the WCF within ninety (90) days of the date the
City notifies the property owner to remove the WCF, then the WCF shall be a
nuisance and subject to appropriate legal proceeding.
Section 2. New BIMC Chapter 18. 11 "Eli ible Facilities Modifications," Added.
Title 18 of the Bainbridge Island Municipal Code is hereby amended to add a new Chapter
18.11, Eligible Facilities Modifications, to as follows:
Eligible Facilities Modifications
18.11.010 Title
18.11.020 Adoption of findings and conclusions.
18.11.030 Purpose and intent
18.11.040 Definitions
18.11.050 Applicability - Relationship to other rules and regulations
18.11.060 Permit classification
18.11.070 Application submittal requirements
18.11.080 Review of application; Approval
18.11.090 Substantial change criteria
18.11.100 Nonconforming structure; Termination
18.11.110 Enforcement
18.11.010 Title.
This chapter shall be known and referred to as the "Eligible Facilities
Modification Code" or "EFM Code."
18.11.020 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.
18.11.030 Purpose and intent.
The purposes and intent of this chapter are to:
A. To implement Section 6409 of the "Middle Class Tax Relief and Job
Creation Act of 2012" (the "Spectrum Act ") (Public Law112 -96; codified at 47
U.S.C. § 1455(a)) 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 implement the FCC rules set forth at 47 C.F.R. Part 1 (PART 1 —
PRACTICE AND PROCEDURE) new Subpart CC § 1.40001 (Wireless Facility
Modifications), which rules implement Section 6409 of the Spectrum Act
( "Section 6409 ");
C. To establish procedural requirements and substantive criteria applicable to
review and approval or denial of applications for an eligible facilities
modification;
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D. To ensure that application submittal requirements are related to
information reasonably necessary to the determination of whether or not the
proposed modification will result in a substantial change in the physical
dimensions of the eligible support structure;
E. To exempt those facilities modifications approved under this chapter as
eligible facilities requests from zoning and development regulations that are
inconsistent with or preempted by Section 6409;
F. 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;
G. To promote timely decisions under this chapter;
H. To ensure that decisions are made consistently and predictably;
I. To incorporate provisions of RCW 43.210.0384 that exempt eligible
facilities modifications from review under RCW 43.21C.030(2)(c), (State
Environmental Policy Act);
J. To recognize that Section 6409(a)(1) of the Spectrum Act operates to
preempt any provision of the State Environmental Policy Act (RCW Ch. 43.21 C)
to the extent that any such provision, including RCW 43.21C.030(2)(c), would
prohibit a City from approving any eligible facilities request for a modification of
an existing wireless tower or base station that does not substantially change the
physical dimensions of such tower or base station; and
K. To provide for termination of eligible facilities modifications approved
pursuant to this chapter as nonconforming structures in the event that Section
6409(a) of the Spectrum Act is found to be unconstitutional or otherwise
determined to be invalid or unenforceable and such modifications would
otherwise have been in derogation of development regulations in place at the time
of receipt of a completed application.
18.11.040 Definitions..
The following definitions shall apply in the interpretation and enforcement of this
chapter, unless the context clearly requires otherwise. Any term or phrase not
defined herein, shall have the meaning that is given to that term or phrase in
Chapter 18.36 BIMC. When not inconsistent with the context, words used in the
present tense include the future, words in the plural include the singular, and
words in the singular include the plural. The word "shall" is always mandatory
and not merely directory and the word "may" is always discretionary. References
to governmental entities (whether persons or entities) refer to those entities or
their successors in authority. If specific provisions of law, regulation or rule
referred to herein be renumbered or amended, then the reference shall be read to
refer to the renumbered or amended provision.
A. "Approval authority" is the Planning and Community Development
Director or other public official, or his or her designee, who has authority under
the City code to administratively issue project permit approvals.
B. "Applicant" shall mean and refer to the person, and such person's
successor in interest, owning and /or operating the transmission equipment
proposed in an eligible facilities modification application to be collocated,
removed or replaced.
C. "Authorized person" is the person, employees, agents, consultants, and
contractors, authorized in writing by an applicant to complete and submit an
eligible facilities modification application on behalf of an applicant and who is
authorized to receive any notices on behalf of an applicant of any action taken by
the City regarding the application.
D. "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 paragraphs (i) —(ii) above, 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 paragraphs (i) —(ii) above.
E. "City" shall mean and refer to the City of Bainbridge Island.
F. "City Code" shall mean and refer to the ordinances of the City.
G. "Co- location" shall mean and refer to 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.
H. "Conceal" or "Concealment" shall mean and refer to eligible support
structures and transmission facilities designed to look like some feature other than
a wireless tower or base station.
I. "Deemed approved" shall mean and refer to an eligible facilities
modification application that has been deemed approved upon the City's failure to
act, and has become effective, as provided pursuant the FCC Eligible Facilities
Request Rules.
J. "Eligible facilities modification application" or "application" shall, unless
the context clearly requires otherwise, mean and refer to a written document
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submitted to the City pursuant to this chapter for review and approval of a
proposed facilities modification.
K. "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 which does not result in a substantial
change in the physical dimensions of an eligible support structure.
L. "Eligible facilities modification permit" or "permit" shall, unless the
context clearly requires otherwise, mean and refer to a written document issued
by the approval authority pursuant to this chapter approving an eligible facilities
modification application.
M. "Eligible support structure" shall mean and refer to any existing tower or
base station as defined in this chapter, provided that it is in existence at the time
the eligible facilities modification application is filed with the City under this
chapter.
N. "Existing" shall, for purpose of this chapter and as applied to a tower or
base station, mean and refer to a constructed tower or base station that 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
definition.
O. "Proposed facilities modification" shall mean and refer to a proposal
submitted by an applicant to modify an eligible support structure which the
applicant asserts is subject to review under Section 6409, and involving:
(i) Co- location of new transmission equipment;
(ii) Removal of transmission equipment; or
(iii) Replacement of transmission equipment.
P. "FCC" shall mean and refer to the Federal Communications Commission
or its successor.
Q. "FCC Eligible Facilities Request Rules" shall mean and refer to 47 C.F.R.
Part 1 (PART 1 — PRACTICE AND PROCEDURE), Subpart CC § 1.40001 as
established pursuant to its Report and Order in, In re Acceleration of Broadband
Deployment by Improving Wireless Facilities Siting Policies, WT Docket Nos.
13 -238, 13 -32; WC Docket No. 11 -59; FCC 14 -153, or as may be thereafter
amended.
R. "Section 6409" shall mean and refer to Section 6409 of the Spectrum Act,
defined below.
S. "Site" shall, for towers other than towers in the public rights -of -way, mean
and refer to the current boundaries of the leased or owned property surrounding
the tower and any access or utility easements currently related to the site, and, for
other eligible support structures, shall mean and be further restricted to, that area
in proximity to the structure and to other transmission equipment already
deployed on the ground.
T. "Small cell facility" shall mean and refer to a personal wireless services
facility that meets both of the following qualifications:
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(i) Each antenna is located inside an antenna enclosure of no more than
three cubic feet in volume or, in the case of an antenna that has exposed elements,
the antenna and all of its exposed elements could fit within an imaginary
enclosure of no more than three cubic feet; and
(ii) Primary equipment enclosures are no larger than seventeen cubic
feet in volume. The following associated equipment may be located outside the
primary equipment enclosure and if so located, are not included in the calculation
of equipment volume: electric meter, concealment, telecomm demarcation box,
ground -based enclosures, battery back -up power systems, grounding equipment,
power transfer switch, and cut -off switch.
U. "Small cell network" shall mean and refer to a collection of interrelated
small cell facilities designed to deliver personal wireless services.
V. "Spectrum Act" shall mean and refer to the "Middle Class Tax Relief and
Job Creation Act of 2012" (Public Law 112 -96; codified at 47 U.S.C. § 1455(a)).
W. "Substantial change criteria" shall mean and refer to the criteria set forth
in this Chapter at BIMC 18.11.090.
X. "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.
Y. "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.
18.11.050 Applicability - Relationship to other rules and regulations.
A. Sole and Exclusive Procedure. Except as may be otherwise provided in
this chapter, and not withstanding any other provisions in the City code, the
provisions of this chapter shall be the sole and exclusive procedure for review and
approval of a proposed facilities modification which the applicant asserts is
subject to review under Section 6409. To the extent that other provisions of the
City code establish a parallel process for review and approval of a project permit
application for a proposed facilities modification, the provisions of this chapter
shall control. In the event that any part of an application for project permit
approval includes a proposed facilities modification, the proposed facilities
modification portion of the application shall be reviewed under the provisions of
this chapter. In the event that an application for project permit approval includes
a proposal to modify an eligible support structure, and the applicant does not
assert in the application that the proposal is subject to review under Section 6409,
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such proposal shall not be subject to review under this chapter and may be subject
to review under other applicable provisions of the City code.
B. Non - Conforming. Structures. This chapter shall not apply to a proposed
facility modification to an eligible support structure that is not a legal conforming
or legal non - conforming structure at the time a competed 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 facilities modification application
otherwise allowed under this chapter, such provisions are superseded by the
provisions of this chapter and shall not apply.
C. Replaccmcnt of Eligible Sut717Ort Structure:. This chapter shall not apply to
a proposed facility modification to an eligible support structure that will involve
replacement of a 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; the FCC Eligible Facilities Request Rules, the FCC's Report and Order in,
In re Acceleration of Broadband Deployment by Improving Wireless Facilities
Siting Policies, WT Docket Nos. 13 -238, 13 -32; WC Docket No. 11 -59; FCC 14-
153; and BIMC §§ 18.11.020 and 18.11.030.
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 ten percent, or twenty 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 twenty feet, or more than the width of the
structure at the level of the appurtenance, whichever is greater;* or
3. The authority to condition or deny an application pursuant to Chapter
43.21 RCW is preempted, or otherwise supplanted, by Section 6409 of the
Spectrum Act.
*Note: See, RCW 43.21C.0384 and WAC 197 -11- 800(25)
G. Reservation of Authority. Nothing herein is intended or shall operate to
waive or limit the City's right to enforce, or condition approval on, compliance
with generally applicable building, structural, electrical, and safety codes and with
other laws codifying objective standards reasonably related to health and safety.
18.11.060 Permit classification.
An eligible facilities modification permit shall be classified as an administrative
permit subject to review and approval or denial by the approval authority.
18.11.070 Application submittal requirements;
completeness.
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Determination of
A. Purpose. This section sets forth the submittal requirements for an eligible
facilities modification application ( "EFM application "). The purpose of the
submittal requirements is to ensure that the City has all information and
documentation that is reasonable necessary to determine if the applicant's
proposed facilities modification will substantially change the physical dimensions
of an eligible support structure. The submittal requirements are not intended to
require the applicant to establish the need for the proposed modifications or to
justify the business decision to propose such modifications.
B. Submittal Requirements. No EFM application shall be deemed complete
unless it is in writing; accompanied by the applicable application and review fee;
includes the required submittals; and attested to by the authorized person
certifying the truth and accuracy of the information provided in the application.
The application shall include the following submittals, unless waived by the
approval authority:
1. The following contact information for the authorized person:
a. Name;
b. Title;
c. Mailing address;
d. Phone number; and
f. E -mail address (optional);
2. The following contact information for the applicant:
a. Legal and dba names, and if applicable, all states of incorporation;
b. Mailing address;
c. Contact phone number(s);
d. Washington State tax identification number;
e. The name and address of applicant's registered agent; and
f. The names and home addresses of all principals or managing
members if applicant is a non - corporate entity, such as a
partnership or limited liability company;
3. An assertion that the proposed facilities modification is subject to
review under Section 6409 of the Spectrum Act;
4. Copies of any environmental documents required by any federal
agency. These shall include the environmental assessment required by 47 C.F.R.
Part 1 (PART 1 – PRACTICE AND PROCEDURE), Section 1. 1307, as amended,
or, in the event than an FCC environmental assessment is not required, a
statement that described the specific factors that obviate the requirement for an
environmental assessment;
5. If the applicant is not the owner or person in control of the eligible
support structure and /or site — an attestation that the owner or person in control
of the eligible support structure and /or site has consented to the proposed facilities
modification. If the eligible support structure is located in a public right of way,
the applicant must also attest that applicant has authorization to install, maintain
and operate transmission equipment in, under and above the public right of way;
6. If the applicant proposes a modification involving co- location of
transmission equipment or the replacement of transmission equipment —
Complete copies of the underlying land use approvals for siting of the tower or
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base station proposed to be modified, establishing that, at the time of submittal of
the application, such tower or base station constituted an eligible support
structure;
7. If the applicant proposes a modification that will result in an increase
in height of the eligible support structure — Record drawings, as -built plans, or
the equivalent, showing the height of the eligible support structure (a) as
originally constructed and granted approval by the City or other applicable local
zoning or similar regulatory authority; or (b) as of the most recent modification
received by the City, or other local zoning or regulatory approval, prior to the
passage of the Spectrum Act, whichever height is greater;
8. If the applicant proposes a modification to an eligible support
structure, which structure, or proposed modification of the same, is subject to
pre- existing restrictions or requirements imposed by a reviewing official or
decision - making body pursuant to authority granted under the City code, or an
ordinance or a municipal code of another local government authority — A copy
of the document (e.g., CUP or SUP) setting forth such pre- existing 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;
9. If the applicant proposes a modification to an eligible support
structure, which structure, or proposed modification of the same, is subject to
pre- existing concealment restrictions or requirements, or was constructed with
concealment elements — Applicant shall set forth the facts and circumstances
demonstrating that the proposed modification would not defeat the existing
concealment elements of the eligible support structure. If the proposed
modification will alter the exterior dimensions or appearance of the eligible
support structure, applicant shall include a detailed visual simulation depicting
how the eligible support structure will appear after the proposed modification is
complete. The visual simulation shall depict to scale the eligible support structure
in relation to the trees, landscaping and other structures adjacent to, or in the
immediate vicinity of, the eligible support structure;
10. If the applicant proposes a modification that will protrude from the
edge of a non -tower eligible support structure — Record drawings, as -built plans,
or the equivalent, showing at a minimum the edge of the eligible support structure
at the location of the proposed modification;
11. If the applicant proposes a modification to an eligible support
structure that will (a) include any excavation; (b) would result in a protrusion
from the edge of a tower that exceeds an existing protrusion of any transmission
equipment attached to a tower; or (c) would protrude from the edge of a non -
tower eligible support structure — 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,
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elevation and dimensions of the new or replacement transmission equipment. The
City may require a survey by a land surveyor licensed in the state of Washington
when, in the judgment of the approval authority, a survey is reasonably necessary
to verify the boundaries of the site to determine if the proposed facilities
modification would result in a substantial change in the physical dimensions of
the eligible support structure;
12. If the applicant proposes a modification to the eligible support
structure that includes hardening through structural enhancement — A technical
report by a qualified engineer accredited by the state of Washington,
demonstrating that the structural enhancement is performed in connection with
and is necessary to support the proposed co- location, removal, or replacement of
transmission equipment and conforms to applicable code requirements. The City
may retain the services of an independent technical expert to review, evaluate, and
provide an opinion regarding the applicant's demonstration of necessity.
13. If the applicant proposes a modification to a tower — A stamped
report by a Washington State – registered professional engineer demonstrating that
the tower with the proposed modifications will comply with applicable structural,
electrical and safety codes, including by way of example, and not limitation,
EIA /TIA- 222 - Revision G, published by the American National Standards
Institute (as amended), allowable wind speed for the applicable zone in which the
tower is located, and describing the general structural capacity of the tower with
the proposed modifications, including:
a. The number and type of antennas that can be accommodated;
b. The basis for the calculation of capacity; and
c. A written statement that the proposal complies with all federal
guidelines regarding interference and ANSI standards as adopted
by the FCC, including but not limited to nonionizing
electromagnetic radiation (VIER) standards.
The City may retain the services of an independent technical expert to
review, evaluate, and provide an opinion regarding the applicant's demonstration
of compliance;
14. If the applicant proposes a modification to a base station — A
stamped report by a Washington State – registered professional engineer
demonstrating that the base station, with the proposed modifications, will comply
with applicable structural, electrical and safety codes;
15. 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 — 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. Tthe location, elevation and dimensions of the existing eligible
support structure;
b. The location, elevation and dimensions of the existing transmission
equipment;
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c. The location, elevation and dimensions of the transmission
equipment, if any, proposed to be collocated or that will replace
existing transmission equipment;
d. The location, elevation and dimensions of any proposed new
equipment cabinets and the intended use of each;
e. Any proposed modification to the eligible support structure;
f. The location of existing structures on the site, including fencing,
screening, trees, and other significant site features; and
g. Tthe 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.
C. Waiver of Submittal Requirement. The approval authority may waive any
submittal requirement upon determination that the required submittal, or part
thereof, is not reasonably related to the substantial change criteria. A waiver, to
be effective, must be in writing and signed by the approval authority.
D. When Received. An EFM application, and any supplemental submittals,
shall be deemed received by the City upon the date such application or
supplemental submittal is filed with the Planning and Community Development
Department. An application, and any supplemental submittals, must be filed in
person during regular business hours of the City and must be accompanied by the
applicable permit review fee(s). Any application received by the City without
contemporaneous payment, or deposit, of the applicable permit review fees will
be rejected.
E. Completed Application; Determinatiom Tol tin
1. Detennination of Com leterness. The approval authority shall, within
thirty (30) days of receipt of the application, review the application for
completeness. An EFM application is complete if it includes the applicable
permit review fee(s) and contains all of the applicable submittal requirements set
forth at BIMC 18.11.070(B) of this chapter, unless waived by the approval
authority pursuant to BIMC 18.11.070(C). The determination of completeness
shall not preclude the approval authority from requesting additional information
or studies either at the time of the determination of completeness or subsequently
if new or additional information is required, or substantial changes in the
proposed action occur, or the proposed facilities modification is modified by
applicant, as determined by the approval authority.
2. Incomplete Mplication. The approval authority shall notify the
applicant within thirty (30) days of receipt of the application that the application
is incomplete. Such notice shall clearly and specifically delineate all missing
documents or information.
3. Tollin 11irieframe for Review. The application review period begins
to run when the application is received, and may be tolled when the approval
authority 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 approval authority and applicant. The timeframe for review is
MUM
not tolled by a moratorium on the review of eligible facility modification
applications.
a. To toll the timeframe for review for incompleteness, the approval
authority must provide written notice to the applicant within thirty (30) days of
the date of receipt of the application, clearly and specifically delineating all
missing documents or information. Such delineated information is limited to
submittals set forth in BIMC 18.11.070(B) and any supplemental information
requested by the approval authority that is reasonably related to determining
whether the proposed facilities modification will substantially change the physical
dimension of an eligible support structure.
b. The timeframe for review begins running again when the City is in
receipt of applicant's supplemental submission in response to the approval
authority's notice of incompleteness.
c. Following a supplemental submission, the approval authority shall
have ten (10) days to notify the applicant 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 (3)(c). Except as may be
otherwise agreed to by the applicant and the approval authority, second or
subsequent notices of incompleteness may not specify missing documents or
information that were not delineated in the original notice of incompleteness.
d. A notice of incompleteness from the City will be deemed received
by the applicant upon the earlier of personal service upon the authorized person,
delivery by electronic mail to the authorized person (if such delivery is authorized
for receipt of notice by the authorized person), or three (3) days from deposit of
the notice in the United States Mail, postage prepaid, in an envelope properly
addressed to the authorized person using the address set forth in the application.
4. Modification of Ada alication. In the event that after submittal of
the application, or as a result of any subsequent submittals, applicant modifies the
proposed facilities modification described in the initial application, the application
as modified will be considered a new application subject to commencement of a
new application review period; provided that, applicant and the approval authority
may, in the alternative, enter into a mutually agreeable tolling agreement allowing
the City to request additional submittals and additional time that may be
reasonably necessary for review of the modified application.
18.11.080 Review of application; Approval.
A. Review of Application. The approval authority shall review an EFM
application to determine if the proposed facilities modification is subject to this
chapter, and if so, if the proposed facilities modification will result in a substantial
change to the physical dimensions of an eligible support structure.
B. Timeframe for Review. Within sixty (60) days of the date on which the
City receives an EFM 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 approval authority, the approval authority shall approve the
application and contemporaneously issue an eligible facilities modification permit
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( "EFM permit ") unless the approval authority 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.
C. Approval, Denial. An EFM application shall be approved, and an EFM
permit issued, upon determination by the approval authority that the proposed
facilities modification is subject to this chapter and that it does not substantially
change the physical dimensions of an eligible support structure. An EFM
application shall be denied upon determination by the approval authority that the
proposed facilities modification is not subject to this chapter or will substantially
change the physical dimensions of an eligible support structure. A proposed
facilities modification will substantially change the physical dimensions of an
eligible support structure if it meets any of the substantial change criteria as
defined in BIMC 18.11.090.
D. Deemed Approved Application. Pursuant to the FCC Eligible Facilities
Request Rules, an EFM application may be deemed approved upon the City's
failure to act. 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 EFM permit issued pursuant to this chapter.
E. Denial of A plication. A written denial of an EFM application setting
forth the reasons for the denial shall be provided to the applicant.
F. Code Requirements. Any EFM permit issued pursuant to this chapter, and
any application that has been deemed approved, shall be and is conditioned upon
compliance with any generally applicable building, structural, electrical, and
safety codes and other laws codifying objective standards reasonably related to
health and safety. Violation of any such applicable code or standard shall be
deemed to be a violation of the eligible facilities modification, permit, or deemed
approved application.
G. Term of Eligible Facilities Modification Permit. An EFM permit issued
pursuant to this chapter, and any deemed approve application, shall be valid for a
term of 180 days from the date of issuance, or the date the application is deemed
approved.
H. Remedies. Notwithstanding any other provisions in the City code, no
administrative review is provided for review of a decision to condition, deny or
approve an application. Applicant and the City retain any and all remedies that
are available at law or in equity, including, by way of example and not limitation,
those remedies set forth in the FCC Eligible Facilities Request Rules and
remedies available under the Land Use Petition Act. In the event no other time
period is provided at law for bringing an action for a remedy, any action
challenging a denial of an application or notice of a deemed approved remedy,
shall be brought within thirty (30) days following the date of denial or following
the date of notification of the deemed approved remedy,*
*Note: The FCC Report and Order in, In re Acceleration of Broadband Deployment by Improving
Wireless Facilities Siting Policies, WT Docket Nos, 13 -238, 13 -32; WC Docket No. 11-59; FCC
14 -153, Par's 234 — 236, provides that the City shall have 30 days from the date of notification by
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the applicant of a deemed granted remedy to bring a legal action in a court of competent
jurisdiction to challenge the deemed granted remedy, and that the applicant shall have 30 days
from the date of denial to bring a legal action in a court of competent challenging a denial of the
application.
18.11.090 Substantial change criteria.
A proposed facilities modification will substantially change 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 (20)
feet, whichever is greater; for other eligible support structures, it increases the
height of the structure by more than 10% or more than ten (10) feet, whichever is
greater;
B. 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;*
C. 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;
D. 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; and:
1. It entails any excavation or deployment outside the current site;
2. It would defeat the concealment elements of the eligible support
structure; or
3. 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 BIMC 18.11.090.
*Note: The FCC rules refer to the date of passage of the Spectrum Act. The Spectrum Act
was enacted on February 22, 2012. Presumably the FCC intended to refer to the date of enactment
as the date of passage.
18.11.100. Non - conforming structure; Termination.
1WJP1e
A. Application. The provisions of this section BIMC 18.11.100 shall apply to
any facilities modification constructed, installed, placed or erected pursuant to an
eligible facilities modification permit, or pursuant to a deemed approved remedy,
which facilities modification did not conform to zoning and /or development
regulations, exclusive of this chapter, in effect at the time the completed eligible
facilities modification application was filed.
B. Non-Conforming Structure Determination. A facilities modification to
which this section applies is subject to termination as a non - conforming structure
upon the following conditions:
1. Final, Non- Appealable Decision. An appellate court, in a final and
non - appealable decision, determines that Section 6409(a)(1) of the Spectrum Act
is unconstitutional or otherwise determined to be invalid or unenforceable; and
2. Notice of Non-Conformina Structure Determination. The City
provides written notice to the applicant that the City has determined that the
facilities modification did not conform to zoning and /or development regulations,
exclusive of this chapter, in effect at the time the completed eligible facilities
modification application was filed and that the facilities modification constitutes a
non - conforming structure pursuant to the provisions hereof and must be made
conforming or the facilities modification terminated.
C. Conformance, Termination. Upon receipt of notice of the City's non-
conforming structure determination, applicant shall abate the non - conformance by
either conforming the site to the zoning and development regulations in effect at
the time the completed eligible facilities modification application was filed, or
removing the facilities modification and returning the site to the condition that
existed prior to the construction, installation, placement or erection of the
facilities modification. The time period for conformance shall be one (1) year
from the date of the City's notice of the non - conforming structure determination.
D. Health and Safety Codes. Nothing in this section shall relieve the
applicant from compliance with applicable building, structural, electrical, and
safety codes and with other laws codifying objective standards reasonably related
to health and safety.
E. Administrative Appeal. The applicant, or its successors or assigns, may
appeal the City's determination of non - conformance to the City Hearing
Examiner by filing a notice of appeal within fourteen (14) calendar days of the
date of the determination of non - conformance, excluding holidays.
18.11.110 Enforcement; Violation.
Compliance with the provisions of this chapter is mandatory. Any violation
hereof is subject to enforcement under the code enforcement provisions set forth
in City Code.
Section 3. repealer. Bainbridge Island Municipal Code Subsection 18.09.030(F)(3),
entitled "Wireless Communications Facility," is hereby repealed in its entirety.
Section 4._ Severability. Should any section, paragraph, sentence, clause or phrase of this
Ordinance, or its application to any person or circumstance, be declared unconstitutional or
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otherwise invalid for any reason, or should any portion of this Ordinance be pre - empted by state
or federal law or regulation, such decision or pre - emption shall not affect the validity of the
remaining portions of this Ordinance or its application to other persons or circumstances.
Section 5. Effective Date. This Ordinance shall be published in the official newspaper of
the City, and shall take effect and be in full force five (5) days after the date of publication.
ADOPTED BY THE CITY COUNCIL AT A REGULAR MEETING THEREOF ON
THE 8TH DAY OF SEPTEMBER, 2015.
CITY OF BAINBRIDGE ISLAND
Anne S. Blair, Mayor
ATTEST /AUTHENTICATED :
I " \0"550*__
Rosalind Lassoff, City Clerk
FILED WITH THE CITY CLERK: August 21, 2015
PASSED BY THE CITY COUNCIL: September 8, 2015
DATE OF PUBLICATION: September 11, 2015
EFFECTIVE DATE: September 16, 2015
ORDINANCE NO.: 2015 -23
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