19.27.090 - Wireless facility modifications.

This section shall apply to modifications to existing wireless communications facilities and collocation of facilities on existing wireless towers under Section 6409(a) of the Spectrum Act (codified at 47 U.S.C. 1455).

A.

Purpose. This section implements § 6409 of the Spectrum Act (codified at 47 U.S.C. 1455), which requires a state or local government 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.

Definitions. Terms used in this section have the following meanings.

1.

"Base Station." A structure or equipment at a fixed location that enables Commission-licensed or authorized wireless communications between user equipment and a communications network. The term does not encompass a tower as defined in this subpart or any equipment associated with a tower.

a.

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.

b.

The term includes, but is not limited to, radio transceivers, antennas, coaxial or fiberoptic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration (including distributed antenna systems and small-cell networks).

c.

The term includes any structure other than a tower that, at the time the relevant application is filed with the city under this section, supports or houses equipment described in subsections (B)(1)(a)—(b) of this section that has been reviewed and approved under the applicable zoning or siting process, or under another city regulatory review process, even if the structure was not built for the sole or primary purpose of providing such support.

d.

The term does not include any structure that, at the time the relevant application is filed with the city under this section, does not support or house equipment described in subsections (B)(1)(a)—(b) of this section.

2.

"Collocation." The mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signals for communications purposes.

3.

"Eligible Facilities Request." Any request for modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or base station, involving:

a.

Collocation of new transmission equipment;

b.

Removal of transmission equipment; or

c.

Replacement of transmission equipment.

4.

"Eligible Support Structure." Any tower or base station as defined in this section, provided that it is existing at the time the relevant application is filed with the city under this section.

5.

"Existing." A constructed tower or base station is existing for purposes of this section if it has been reviewed and approved under the applicable zoning or siting process, or under another city 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.

6.

"Site." For towers other than towers in the public rights-of-way, the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site, and, for other eligible support structures, further restricted to that area in proximity to the structure and to other transmission equipment already deployed on the ground.

7.

"Substantial Change." A modification substantially changes the physical dimensions of an eligible support structure if it meets any of the following criteria:

a.

For towers other than towers in the public rights-of-way, it increases the height of the tower by more than ten percent or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever is greater; for other eligible support structures, it increases the height of the structure by more than ten percent or more than ten feet, whichever is greater;

i.

Changes in height should be measured from the original support structure in cases where deployments are or will be separated horizontally, such as on buildings' rooftops; in other circumstances, changes in height should be measured from the dimensions of the tower or base station, inclusive of originally approved appurtenances and any modifications that were approved prior to the passage of the Spectrum Act.

ii.

For towers 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;

iii.

For any eligible support structure, it involves installation of more than the standard number of new equipment cabinets for the technology involved, but not to exceed four cabinets; or, for towers in the public rights-of-way and base stations, it involves installation of any new equipment cabinets on the ground if there are no pre-existing ground cabinets associated with the structure, or else involves installation of ground cabinets that are more than ten percent larger in height or overall volume than any other ground cabinets associated with the structure;

iv.

It entails any excavation or deployment outside the current site;

v.

It would defeat the concealment elements of the eligible support structure; or

vi.

It does not comply with conditions associated with the siting approval of the construction or modification of the eligible support structure or base station equipment, provided however that this limitation does not apply to any modification that is noncompliant only in a manner that would not exceed the thresholds identified in subsection (B)(7)(i)—(iv).

8.

"Transmission Equipment." Equipment that facilitates transmission for any Federal Communications Commission ("FCC")-licensed or authorized wireless communication service, including, but not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, and regular and backup power supply. The term includes equipment associated with wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul.

9.

"Tower." Any structure built for the sole or primary purpose of supporting any FCC-licensed or authorized antennas and their associated facilities, including structures that are constructed for wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul, and the associated site.

C.

Review of Applications. The public works and development services department may not deny and shall approve any eligible facilities request for modification of an eligible support structure that does not substantially change the physical dimensions of such structure. All such facilities must also comply with the city's height, location, bulk, size and aesthetic or design requirements.

1.

Documentation Requirement for Review. When an applicant asserts in writing that a request for modification is covered by this section, the city may require the applicant to provide documentation or information reasonably related to determining whether the request meets the requirements of this section. The city may not require an applicant to submit any other documentation, including but not limited to documentation intended to illustrate the need for such wireless facilities or to justify the business decision to modify such wireless facilities.

2.

Timeframe for Review. Within sixty days of the date on which an applicant submits a request seeking approval under this section, the city shall approve the application unless it determines that the application is not covered by this section.

3.

Tolling of the Timeframe for Review. The sixty-day period begins to run when the application is filed, and may be tolled only by mutual agreement or in cases where the city determines that the application is incomplete. The timeframe for review is not tolled by a moratorium on the review of applications.

a.

To toll the timeframe for incompleteness, the city must provide written notice to the applicant within thirty days of receipt of the application, delineating all missing documents or information. Such delineated information is limited to documents or information meeting the standard under subsection (C)(1) of this section.

b.

The timeframe for review begins running again when the applicant makes a supplemental submission in response to the state or local government's notice of incompleteness.

c.

Following a supplemental submission, the city will have ten 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 subsection (C)(3). Second or subsequent notices of incompleteness may not specify missing documents or information that were not delineated in the original notice of incompleteness.

4.

Failure to Act. In the event the city fails to approve or deny a request seeking approval under this section within the timeframe for review (accounting for any tolling), the request shall be deemed granted. The deemed grant does not become effective until the applicant notifies the public works and development services department in writing after the review period has expired (accounting for any tolling) that the application has been deemed granted.

5.

Remedies. Applicants and the city may bring claims related to Section 6409(a) of the Spectrum Act to any court of competent jurisdiction.

(Ord. No. 669, 8-18-2015)