ORD NO. 2019-11 ADOPTING SMALL WIRELESS FACILITY PERMITTING PROCESSORDINANCE NO. 2019-11
AN ORDINANCE of the City of Bainbridge Island, Washington, concerning
small wireless facilities; Amending Title 19 of the Bainbridge Island Municipal
Code to add a new Chapter 19.10 BIMC, authorizing and establishing permitting
procedures for the deployment of small wireless facilities; Amending Chapter
19.02 BIMC regarding definitions and general applicability; Adopting findings in
support of the foregoing; Providing for severability; Declaring a public
emergency and establishing an immediate effective date.
WHEREAS, the Federal Communications Commission ("FCC") recently adopted a
Declaratory Ruling, Order, and Regulation ("FCC Order"), which imposes limitations on local
municipalities, including the City of Bainbridge Island ("City"), regarding processing and review
of all permits associated with the deployment of small wireless facilities; and
WHEREAS, such regulations effectively required the City to have small wireless
standards and procedures in place on or before January 14, 2019; and
WHEREAS, poles within the public rights-of-way have been identified by the FCC as a
primary resource for the deployment of small wireless facilities which are intended to increase
the density and accessibility of radio frequency signals employed by smart phones and other
wireless devices; and
WHEREAS, the City does not have such regulations in place and so the City Council
deems it to be in the public interest to revise, update, and add to its master permit requirements to
deal specifically with small wireless facilities to be located in the City's rights-of-way, and to do
so in conjunction with revisions and additions to the zoning code; and
WHEREAS, contemporaneously with the consideration of this ordinance, the City
Council enacted amendments to Title 18 BIMC by amending Chapter 18.10 BIMC and adopting
a new Chapter 18.10A BIMC authorizing and establishing aesthetic standards for the deployment
of small wireless facilities; and
WHEREAS, the City Council finds that the existence of the federal regulations requires
the immediate enactment of administrative procedures and processes to comply with the FCC
Order; and
WHEREAS, RCW 35A.13.190 authorizes the City to expeditiously adopt ordinances
due to a public emergency for the protection of the public peace, safety, or health; and
WHEREAS, the potential conflict between existing City review timelines and the
presumptive safe harbor review times mandated by the FCC Order would likely prevent the City
from effectively managing the use of the City's right-of-way leading to potential conflicts among
the various uses of the right-of-way; and
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WHEREAS, the absence of a clear permitting process is likely to lead to the disorderly
deployment of small wireless facilities within the City of Bainbridge Island; and
WHEREAS, for the foregoing reasons, the City Council finds that an emergency exists
and that the adoption of the permitting procedures set forth herein is necessary for the immediate
preservation of the public peace, health, and safety.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BAINBRIDGE ISLAND,
WASHINGTON, DOES ORDAIN AS FOLLOWS:
Section 1. Purpose. The purpose of this ordinance is to adopt and establish revisions to
the City's Telecommunications Code in response to the FCC Order restricting the City's ability
to regulate the deployment of small wireless facilities.
Section 2. Findings. The City Council adopts its findings above and further finds that
this ordinance is necessary, in conjunction with Ordinance No. 15, to address potential
applications for small wireless facilities within the presumptive safe harbor review periods
prescribed by the FCC Order. As such, a public emergency exists requiring that this ordinance
take effect immediately upon passage.
Section 3. Amendment of BIMC 19.02.030. Section 19.02.030 of the Bainbridge
Island Municipal Code is hereby amended to include a definition of "Small Wireless Facility" to
read as follows:
"Small wireless facility" has the same meaning as defined in 47 CFR 1.6002.
Section 4. Amendment of BIMC 19.02.040.A. Section 19.02.040.A of the Bainbridge
Island Municipal Code is hereby amended to read as follows:
A. Master Permit Requirement. An operator of a telecommunications f6eility system or a
small wireless facility who seeks to locate telecommunications facilities in the ri ht-of-wa must
obtain a master permit prior to constructing a telecommunication f4eility system or providing
telecommunications services. The fact that a particular master permitted telecommunication
system may be used for multiple purposes does not obviate the need to
obtain a master permit for other purposes unless applicable federal or state law prohibits the City
from requiring such additional master permit. No master permit shall become effective without
the grantee signing an acceptance of the master permit.
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Section 5. Adoption of New Chapter 19.10 BIMC. Title 19 of the Bainbridge Island
Municipal Code is hereby amended to include a new Chapter 19.10 BIMC, to read as follows:
Chapter 19.10
SMALL WIRELESS FACILITIES
19.10.010
General provisions.
19.10.020
Application requirements for small wireless
facilities.
19.10.030
Review Process.
19.10.040
Permit Requirements.
19.10.050
Modifications to small wireless facilities.
19.10.060
Concurrent Permit.
19.10.070
Appeals.
19.10.080
Removal of abandoned small wireless facilities.
19.10.010 General provisions.
A. Small wireless facilities shall not be considered nor regulated as essential public
facilities.
B. Small wireless facilities located outside of the public rights-of-way may be either a
primary or a secondary use. A different use of an existing structure on the same lot shall not
preclude the installation of a small wireless facility.
C. No person may place, construct, or modify a wireless communication facility subject to
this chapter without first obtaining the required permit(s), issued in accordance with this chapter.
D. Any request to deviate from this chapter shall be based on the modifications set forth in
this chapter.
E. For the purposes of this chapter, the term "Director" shall mean the Director of Planning
and Community Development or her or his designee.
19.10.020 Application requirements for small wireless facilities.
A. In order to manage its rights-of-way in a thoughtful manner which balances the need to
accommodate new and evolving technologies with the preservation of the natural and aesthetic
environment of the City, the City of Bainbridge Island has adopted this administrative process
for the deployment of small wireless facilities.
B. Any application for a small wireless facility both inside and outside of the right-of-way
shall comply with the following application requirements for a small wireless facility permit
described in this chapter. Applications must also comply with the requirements of Chapter
18. l OA BIMC. For small wireless facilities inside the right-of-way, the applicant must also
comply with the requirements pursuant to Chapters 19.02 and 19.04 BIMC.
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C. Consistent with BIMC 19.10.060, all permits, leases, and right-of-way use authorizations
necessary for the deployment of small wireless facilities and, if applicable an application for a
master permit, shall be reviewed concurrently and a decision rendered to the full extent feasible
consistent with the timeframes established within federal and state law.
D. The small wireless facility permits and any other land use permit application submitted
pursuant to this chapter shall be reviewed and issued by the Director. Applicants are encouraged
and expected to provide all related applications in one submittal, unless they have already
obtained a master permit. The Director is authorized to establish master permit and other
application forms to gather the information required by these ordinances from applicants and to
determine the completeness of the application process as provided herein.
1. Master Permit. The process typically begins with and depends upon approval of a
Master Permit for the use of the public right-of-way to deploy small wireless facilities if
any portion of the applicant's facilities are to be located in the right-of-way. An applicant
with a master permit for the deployment of small wireless facilities in the City may
proceed to directly apply for a small wireless facility permit and related approvals. An
applicant at its option may utilize phased deployment.
2. Small Wireless Facility Permits. The application requires specification of the
small wireless facility components and locations as further required in the small wireless
facility permit application described in subsection E below. Prior to the issuance of a
small wireless facility permit, the applicant shall pay a permit fee in an amount as
determined by the City Council and adopted by resolution.
3. Associated Permit(s). The applicant shall attach all associated permit
requirements, such as applications or check lists required under the Critical Areas,
Shoreline, or SEPA ordinances. Applications for deployment of small wireless facilities
in Design Zones or for new poles shall comply with the requirements in BIMC
18.10A.060.
4. Leases. An applicant who desires to attach a small wireless facility to any pole or
structure which is owned by the City shall include an application for a lease as a
component of its application. The City Council authorizes the Director to approve leases
for small wireless facilities for City -owned light poles located in the right-of-way. Leases
for the use of other public property, structures or facilities shall be submitted to the City
Council for approval.
E. The following information shall be provided by all applicants for a small wireless facility
permit:
1. The application shall provide specific locational information, including GIS
coordinates of all proposed small wireless facilities, and specify where the small wireless
facilities will utilize existing, replacement, or new poles or towers, existing buildings, or
other structures. Ground mounted equipment (if authorized pursuant to Chapter 18.10A
BIMC), conduit, junction boxes, and fiber and electrical connections necessary for and
intended for use in the deployment shall also be specified regardless of whether the
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additional facilities are to be constructed by the applicant or leased from a third party.
Detailed schematics and visual renderings of the small wireless facilities, including
engineering and design standards, shall be provided by the applicant. The application
shall have sufficient detail to identify:
(a) The location of overhead and underground public utility,
telecommunication, cable, water, adjacent lighting, sewer drainage, and
other lines and equipment within 50 feet of the proposed project area
(which the project area shall include the location of the fiber source and
power source). Further, the applicant shall include all existing and
proposed improvements related to the proposed location, including but not
limited to poles, driveways, ADA ramps, equipment cabinets, street trees,
and structures within 50 feet from the proposed project area.
(b) The specific trees, structures, improvements, facilities, lines and
equipment, and obstructions, if any, that applicant proposes to temporarily
or permanently remove or relocate and a landscape plan for protecting,
trimming, removing, replacing, and restoring any trees or areas to be
disturbed during construction.
(c) The construction drawings shall also include the applicant's plan for
electric and fiber utilities, all conduits, cables, wires, handholes, junctions,
meters, disconnect switches and any other ancillary equipment or
construction necessary to construct the small wireless facility, to the extent
to which the applicant is responsible for installing such electric and fiber
utilities, conduits, cables, and related improvements. Where another party
is responsible for installing such electric and fiber utilities, conduits,
cables, and related improvements, applicant's construction drawings will
include such utilities to the extent known at the time of application, but at
a minimum applicant must indicate how it expects to obtain fiber and
electric service to the small wireless facility.
(d) Compliance with the aesthetic requirements of BIMC 18.10A.050.
2. The applicant must show written approval from the owner of any pole or structure
for the installation of its small wireless facilities on such pole or structure. To extent that
the pole or structure is not owned by the applicant, the applicant shall demonstrate in
writing that they have authority from the pole owner to install the small wireless facility
on the pole or structure. Such written approval shall include approval of the specific pole,
engineering and design standards, as well as assurances that the specific pole can
withstand wind and seismic loads, from the pole owner, unless the pole owner is the City.
Submission of the lease agreement between the pole owner and the applicant is not
required. If the proposed small wireless facility is not within the rights-of-way, the
applicant must provide written approval from the property owner. For City -owned poles
or structures, the applicant must obtain a lease from the City prior to or concurrent with
the small wireless facility permit application and must submit as part of the application
the information required in the lease for the City to evaluate the usage of a specific pole.
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3. The applicant can batch multiple small wireless facility sites in one application.
The applicant is encouraged to batch the small wireless facility sites within an application
in a contiguous service area.
4. Any application for a small wireless facility permit which contains an element
which is not exempt from SEPA review shall simultaneously apply under Chapter 43.21 C
RCW and Chapter 16.04 BIMC. Further, any application proposing small wireless
facilities in Shoreline Management Zones (pursuant to Chapter 16.12 BIMC) or in
Critical Areas (pursuant to Chapter 16.20 BIMC) must indicate that the application is
exempt or comply with the review processes in such codes.
5. The applicant shall submit a sworn affidavit signed by an RF Engineer with
knowledge of the proposed project affirming that the small wireless facilities will be
compliant with all FCC and other governmental regulations in connection with human
exposure to radio frequency emissions for every frequency at which the small wireless
facility will operate. If facilities which generate RF radiation necessary to the small
wireless facility are to be provided by a third party, then the small wireless facility permit
shall be conditioned on an RF Certification showing the cumulative impact of the RF
emissions on the entire installation. The applicant may provide one emissions report for
the entire small wireless deployment if the applicant is using the same small wireless
facility configuration for all installations within that batch or may submit one emissions
report for each subgroup installation identified in the batch.
6. The applicant shall provide proof of FCC and other regulatory approvals required
to provide the service(s) or utilize the technologies sought to be installed.
7. A professional engineer licensed by the State of Washington shall certify in
writing, over his or her seal, that the construction plans of the small wireless facilities and
the antenna support structure or pole and foundation are designed to reasonably withstand
typical loading requirements as well as wind and seismic loads.
Proof of a valid City of Bainbridge Island business license.
9. Recognizing that small wireless facility technology is rapidly evolving, the
Director is authorized to adopt and publish standards for the technological and structural
safety of City -owned structures and to formulate and publish application questions for
use when an applicant seeks to attach to City -owned structures.
10. Such other information as the Director, in his/her discretion, shall deem
appropriate to effectively evaluate the application based on technical, engineering, and
aesthetic considerations.
19.10.030 Review Process.
A. Review. The following provisions relate to review of applications for a small wireless
facility permit.
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I . The City will review the permit application to determine compliance with this
Chapter.
2. Vertical clearance shall be reviewed by the Director to ensure that the small
wireless facilities will not pose a hazard to other users of the rights -of -ways.
3. Replacement poles and new poles shall comply with the Americans with
Disabilities Act (ADA), City construction and sidewalk clearance standards, traffic
warrants, city ordinances, and state and federal statutes and regulations in order to
provide a clear and safe passage within the rights-of-way. Further, the location of any
replacement pole or new pole must: be physically possible, cannot obstruct vehicular
or pedestrian traffic or the clear zone, not interfere with utility or safety fixtures (e.g.,
fire hydrants, traffic control devices), and not adversely affect the public welfare,
health, or safety.
4. No equipment shall be operated so as to produce noise in violation of Chapter
16.16 BIMC.
5. Small wireless facilities may not encroach onto or over private property or
property outside of the right of way without the property owner's express written
consent.
B. Final Review. Small wireless facility permits will be reviewed and approved or denied by
the Director.
C. Eligible Facilities Requests. The design approved in a small wireless facility permit shall
be considered concealment elements and such facilities may only be expanded upon an Eligible
Facilities Request described in Chapter 18.11 BIMC when the modification does not defeat the
concealment elements of the small wireless facility.
D. Review of Facilities. Review of the site locations proposed by the applicant shall be
governed by the provisions of 47 USC 253 and 47 USC 332 and other applicable statutes,
regulations, and case law. Applicants for master permits and small wireless facility permits shall
be treated in a competitively neutral and non-discriminatory manner with other service providers,
utilizing supporting infrastructure that is functionally equivalent, that is, service providers whose
facilities are similarly situated in terms of structure, placement, or cumulative impacts. Small
wireless facility permit review under this Chapter shall neither prohibit nor have the effect of
prohibiting the ability of an applicant to provide telecommunications services.
E. Withdrawal. Any applicant may withdraw an application submitted pursuant to BIMC
19.10.020 at any time, provided the withdrawal is in writing and signed by all persons who
signed the original application or their successors in interest. When a withdrawal is received, the
application shall be deemed null and void. If such withdrawal occurs prior to the Director's
decision, then reimbursement of fees submitted in association with said application shall be
prorated to withhold the amount of City costs incurred in processing the application prior to time
of withdrawal. If such withdrawal is not accomplished prior to the Director's decision, there shall
be no refund of all or any portion of such fee.
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F. Supplemental Information. Failure of an applicant to provide supplemental application
information as requested by the Director within sixty (60) days of notice by the Director shall be
deemed a denial of that application, unless an extension period has been approved by the
Director.
19.10.040 Permit Requirements.
A. Compliance. The grantee of any permit shall comply with all of the requirements within
the small wireless facility permit.
B. Post -Construction As-Builts. Within thirty (30) days after construction of the small
wireless facility, the grantee shall provide the City with as-builts of the small wireless facilities
demonstrating compliance with the permit and site photographs.
C. Permit Time Limit. Construction of the small wireless facility must be completed within
twelve (12) months after the approval date by the City. The grantee may request one (1)
extension, to be limited to six (6) months, if the applicant cannot construct the small wireless
facility within the original twelve (12) month period.
D. Site Safety and Maintenance. The grantee must maintain the small wireless facilities in
safe and working condition. The grantee shall be responsible for the removal of any graffiti or
other vandalism and shall keep the site neat and orderly, including but not limited to following
any maintenance or modifications on the site.
E. Operational Activity. The grantee shall commence operation of the small wireless facility
no later than six (6) months after construction. The grantee may request one (1) extension for an
additional six (6) month period if the grantee can show that such operational activity is delayed
due to the inability to connect to electrical or backhaul facilities.
19.10.050 Modifications to small wireless facilities.
A. If a grantee desires to make a modification to an existing small wireless facility, including
but not limited to expanding or changing the antenna type, increasing the equipment enclosure,
placing additional pole -mounted or ground -mounted equipment, or modifying the concealment
elements, then, depending on the proposed modification, the applicant shall apply for a small
wireless facility permit or an eligible facilities request, if appropriate, under Chapter 18.11
BIMC.
B. A small wireless facility permit shall not be required for routine maintenance and repair
of a small wireless facility, or the replacement of an antenna or equipment of similar size,
weight, and height, provided that such replacement does not defeat the concealment elements
used in the original deployment of the small wireless facility, does not impact the structural
integrity of the pole, and does not require pole replacement. Further, a small wireless facility
permit shall not be required for replacing equipment within the equipment enclosure or
reconfigufation of fiber or power to the small wireless facility. Right-of-way construction
permits or building permit may be required for such routine maintenance, repair or replacement
consistent with Chapters 19.02 and 19.04 BIMC.
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19.10.060 Concurrent Permit.
A. As an exercise of police powers pursuant to RCW 35.99.040(2), if the applicant requires
a new master permit to utilize the right-of-way, the master permit review and approval may run
concurrently with the small wireless facility permit review if requested by the applicant, and the
review shall be governed by the time limits established by federal law for small wireless
facilities.
B. General standards applicable to the use of the rights-of-way described in Chapters 19.02
and 19.04 BIMC shall apply to all small wireless facility permits.
19.10.070 Appeals.
Small wireless facilities permit decisions are final decisions appealable to the Kitsap County
Superior Court. The applicant may proceed forward with a permitted project that has been
appealed at the applicant's own risk and subject to any subsequent court decision that may
impact the applicant's ability to install such facilities.
19.10.080 Removal of abandoned small wireless facilities.
A. Any small wireless facility that, after the initial operation of the facility, is not used for
the purpose for which it was intended at the time of filing the application for a continuous period
of 12 months shall be considered abandoned.
B. The wireless telecommunication carrier of such abandoned small wireless facility shall
remove the same within 90 days of receipt of a notice from the City notifying the owner or
operator of such abandonment.
C. Whenever a facility is abandoned or ceases operation, the entire facility shall be removed,
including, but not limited to, all antennas, antenna supports, feeder lines, base stations, electronic
equipment, and the pole upon which the small wireless facility is located, unless the City
determines that such pole shall remain. Failure to remove such an abandoned facility shall result
in declaring the small wireless facility a public nuisance.
D. If there are two or more users of a single pole, then this section shall not become effective
until all users cease using the pole.
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Section 6. Corrections. The City Clerk and codifiers of the ordinance are authorized to
make necessary corrections to this ordinance including, but not limited to, the correction of
scrivener/clerical errors, references, ordinance numbering, section/subsection numbers, and any
references thereto.
Section 7. Severability. If any section, subsection, paragraph, sentence, clause or
phrase of this Ordinance is declared unconstitutional or invalid for any reason, such invalidity
shall not affect the validity or effectiveness of the remaining portions of this Ordinance.
Section 8. Declaration of Emergency; Effective Date. Based upon the findings set
forth above, the City Council hereby declares, pursuant to RCW 35A.13.190, a public emergency
requiring this ordinance to take effect immediately. This ordinance shall accordingly be in full
force and effect immediately upon passage.
PASSED by the City Council this 14th day of May, 2019.
APPROVED by the Mayor this 14th day of May, 2019.
By: 7 � 1
Kol Medina, Mayor
ATTEST/AUTHENTICATE:
r
ristine Brown, CMC, City Clerk
FILED WITH THE CITY CLERK: May 10, 2019
PASSED BY THE CITY COUNCIL: May 14, 2019
PUBLISHED: May 17, 2019
EFFECTIVE DATE: May 14, 2019
ORDINANCE NUMBER: 2019-11
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