HomeMy WebLinkAboutord2022-069File ID: AB2022-571
File Created: 10/11/2022
Department: Planning and
Development Services
Department
Assigned to: Council
Agenda Date: 11/09/2022
Whatcom County
Agenda Bill Master Report
File Number: AB2022-571
COUNTY COURTHOUSE
311 Grand Avenue, Ste #105
Bellingham, WA 98225-4038
(360) 778-5010
Version: 1 Status: Adopted
Entered by: maamot@co.whatcom.wa.us
File Type: Ordinance Requiring a Public Hearing
Primary Contact Email: maamot@co.whatcom.wa.us
TITLE FOR AGENDA ITEM:
Final Action: 11/09/2022
Enactment #: ORD 2022-069
Ordinance amending the Whatcom County Code relating to Personal Wireless Service Facilities
SUMMARY STATEMENT OR LEGAL NOTICE LANGUAGE:
Ordinance amending Whatcom County Code (WCC) 20.13, WCC 20.82, WCC 20.83, WCC
20.97, and WCC 22.05 relating to personal wireless service facilities. The primary purpose of the
amendments is to bring consistency between the Whatcom County Code and federal laws and
regulations. The proposal addresses eligible facilities requests, small wireless facilities, macro wireless
facilities, definitions, exemptions, permitted uses, administrative approval uses, conditional uses,
nonconforming uses and structures, concealment elements, standards, noise, conditions associated with
siting approval, and project permit procedures (including variances, application requirements, permit
review time frames, and appeals).
HISTORY OF LEGISLATIVE FILE
Date: Acting Body: Action: Sent To:
10/25/2022 Council INTRODUCED FOR PUBLIC
HEARING
Aye: 7 Buchanan, Byrd, Donovan, Elenbaas, Frazey, Galloway, and Kershner
Nay: 0
Absent: 0
11/09/2022 Council ADOPTED
Whatcom County Page 1 Printed on 1111012022
Agenda Bill Master Report Continued (AB2022-571)
Aye: 7 Buchanan, Byrd, Donovan, Elenbaas, Frazey, Galloway, and Kershner
Nay: 0
Absent: 0
Attachments: Staff Memo, Draft Ordinance, Planning Commission Findings, Public Comments
Whatcom County Page 2 Printed on 1111012022
10-12-2022
PROPOSED BY: Planning & Development Services
INTRODUCTION DATE: 10/25/22
ORDINANCE NO. 2022-069
AMENDING THE
WHATCOM COUNTY CODE
RELATING TO PERSONAL WIRELESS SERVICE FACILITIES
WHEREAS, The Whatcom County Planning Commission held a public hearing
and issued recommendations on the proposed amendments; and
WHEREAS, The County Council considered Planning Commission
recommendations;
WHEREAS, The County Council held a public hearing; and
WHEREAS, The County Council hereby adopts the following findings of fact:
FINDINGS OF FACT
1. The subject proposal consists of amendments to the following Whatcom
County Code chapters:
a. Wireless Communication Facilities (WCC 20.13);
b. Public Utilities (WCC 20.82);
c. Nonconforming Uses and Parcels (WCC 20.83);
d. Definitions (WCC 20.97); and
e. Project Permit Procedures (WCC 22.05).
2. A Determination of Non -Significance was issued by the SEPA Responsible
Official on April 6, 2022,
3. Notice of the Planning Commission hearing for the subject amendments was
published in the Bellingham Herald on June 13, 2022,
4. Notice of the Planning Commission hearing for the subject amendments was
posted on the County website on June 10, 2022.
5. Notice of the Planning Commission hearing was sent to the County's e-mail
list on June 13, 2022.
6. The Planning Commission held a public hearing on the subject amendments
on June 23, 2022. The Planning Commission held work sessions on the
subject amendments on July 28 and September 8, 2022.
Page 1 of 7
7. In order to approve development regulation amendments, the County must
find that the amendments are consistent with the comprehensive plan (WCC
22.10.060(2)).
8. Federal laws and regulations partially preempt local government authority
over personal wireless service facilities, such as cell phone facilities.
9. Federal law passed by the U.S. Congress indicates that "No State or local
statute or regulation, or other State or local legal requirement, may prohibit
or have the effect of prohibiting the ability of any entity to provide any
interstate or intrastate telecommunications service" (47 U.S. Code 253(a)).
10. Federal law passed by the U.S. Congress (47 U.S. Code 332(c)(7)(B)) states
that:
(i) The regulation of the placement, construction, and modification of
personal wireless service facilities by any State or local government or
instrumentality thereof —
(I) shall not unreasonably discriminate among providers of functionally
equivalent services; and
(II) shall not prohibit or have the effect of prohibiting the provision of
personal wireless services.
(ii) A State or local government or instrumentality thereof shall act on any
request for authorization to place, construct, or modify personal wireless
service facilities within a reasonable period of time after the request is
duly filed with such government or instrumentality, taking into account the
nature and scope of such request.
(iii) Any decision by a State or local government or instrumentality thereof
to deny a request to place, construct, or modify personal wireless service
facilities shall be in writing and supported by substantial evidence
contained in a written record.
(iv) No State or local government or instrumentality thereof may regulate
the placement, construction, and modification of personal wireless service
facilities on the basis of the environmental effects of radio frequency
emissions to the extent that such facilities comply with the Commission's
regulations concerning such emissions.
(v) Any person adversely affected by any final action or failure to act by a
State or local government or any instrumentality thereof that is
inconsistent with this subparagraph may, within 30 days after such action
or failure to act, commence an action in any court of competent
jurisdiction. The court shall hear and decide such action on an expedited
Page 2of7
basis. Any person adversely affected by an act or failure to act by a State
or local government or any instrumentality thereof that is inconsistent with
clause (iv) may petition the Commission for relief.
11. However, Federal law (47 U.S. Code 332(c)(7)(A)) also states:
Except as provided in this paragraph, nothing in this chapter shall limit or
affect the authority of a State or local government or instrumentality
thereof over decisions regarding the placement, construction, and
modification of personal wireless service facilities.
12. Federal law passed by the U.S. Congress (47 U.S. Code 1455 (a)(1)) states
that:
... local government may not deny, and shall approve, 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.
13. Federal law (U.S. Code 1455(a)(2)) defines "eligible facilities request" as:
... any request for modification of an existing wireless tower or base
station that involves —
(A) collocation of new transmission equipment;
(B) removal of transmission equipment; or
(C) replacement of transmission equipment.
14. The Code of Federal Regulations (CFR) Title 47, Chapter 1, Subchapter A,
Part 1, Subpart U titled `State and Local Government Regulation of the
Placement, Construction, and Modification of Personal Wireless Facilities"
(Rules adopted by FCC) addresses "eligible facilities requests" in Section
1.6100. This section provides definitions and rules for review of applications.
CFR 1.6100(c)(2) states that "Within 60 days of the date on which an
applicant submits a request seeking approval under this section, the State or
local government shall approve the application..." for an eligible facilities
request.
15. Federal law preempts certain County regulatory authority over wireless
eligible facilities requests. The County Code currently does not reflect
requirements of federal law. Therefore, County Code is being updated to
incorporate the provisions of federal law.
Page 3 of 7
16. The Code of Federal Regulations (CFR) Title 47, Chapter 1, Subchapter A,
Part 1, Subpart U titled "State and Local Government Regulation of the
Placement, Construction, and Modification of Personal Wireless Facilities"
addresses small wireless facilities in Sections 1.6002 and 1.6003. Definitions
are set forth in 47 CFR 1.6002. 'Presumptively reasonable periods of time"
for local government action on applications are contained in 47 CFR
1.6003(c)(1), as follows:
... Review of an application to collocate a Small Wireless Facility using an
existing structure: 60 days.
... Review of an application to deploy a Small Wireless Facility using a
new structure: 90 days.. .
17. Federal law preempts certain County regulatory authority over small wireless
facilities. The County Code currently does not reflect requirements of federal
law. Therefore, County Code is being updated to incorporate the provisions
of federal law.
18. The Code of Federal Regulations Title 47, Chapter 1, Subchapter A, Part 1,
Subpart U titled "State and Local Government Regulation of the Placement,
Construction, and Modification of Personal Wireless Facilities" addresses
facilities that do not qualify as eligible facilities requests or small wireless
facilities (that the County is calling "macro wireless facilities") in sections
1.6002 and 1.6003. Definitions are set forth in 47 CFR 1.6002.
"Presumptively reasonable periods of time" for local government action on
applications are contained in 47 CFR 1.6003(c)(1), as follows:
... Review of an application to collocate a facility other than a Small
Wireless Facility using an existing structure: 90 days.. .
Review of an application to deploy a facility other than a Small Wireless
Facility using a new structure: 150 days...
19. Federal law preempts certain County regulatory authority over macro
wireless facilities. The County Code currently does not reflect requirements
of federal law. Therefore, County Code is being updated to incorporate the
provisions of federal law.
20. Whatcom County Comprehensive Plan Chapter 2 - Land Use states that the
County has designated telecommunication towers as essential public facilities
(p. 2-95).
Page 4 of 7
21. Whatcom County Comprehensive Plan Land Use Policy 2WW-9 states:
... Personal wireless communication facilities, such as cell phone towers,
shall be sited in accordance with Whatcom County Code 20.13 .. .
Proximity to airports and potential hazards to aviation will be considered
when siting new towers or increasing height of existing towers.
22. The Whatcom County Comprehensive Plan Chapter 5 - Utilities states:
Utilities, as defined herein and for purposes of the plan, include all lines
and facilities used to distribute, collect, transmit, or control electric power,
natural gas, petroleum products, information (telecommunications), water,
and sewage... It is the intent of this plan to support providers of
electricity, natural gas, petroleum, telecommunications, and other utilities
in fulfilling their public service obligations required by state law to provide
service on demand to existing and future customers. It is also the intent of
this plan to minimize any negative effects resulting from the provision of
that service on the residents, infrastructure, and the environment of the
county... (p. 5-1).
23. The Whatcom County Comprehensive Plan Utility Chapter states
"Telecommunications are provided by multiple telephone, cable television,
internet, and wireless communication companies..." (p. 5-3).
24. Whatcom County Comprehensive Plan policies relating to utilities include:
Policy 513-3: Recognize the economic opportunities and benefits
communication services access provides to the community.
Policy 513-4: Support development regulations that are flexible and
receptive to innovations and advances in communication technologies and
that recognize the positive impact of moving information rather than
people.
Policy 5C-1: Support user access to natural gas, electric, and
communications utilities.
Goal 5D: Minimize the time required for processing utilities permits.
25. Whatcom County Comprehensive Plan Chapter 7 - Economics states:
Along with planning for future water and other infrastructure for economic
development, electric energy supply and telecommunications are also
important for future economic growth within the county (p. 7-11).
26. The Federal Communication Commission's (FCC) Declaratory Ruling
(November 18, 2009) states Wireless services are central to the
economic, civic, and social lives of over 270 million Americans ..." (p. 2).
Page 5 of 7
27. The FCC's Declaratory Ruling and Third Report and Order (September 26,
2018) states:
... America is in the midst of a transition to the next generation of
wireless services, known as 5G. These new services can unleash a new
wave of entrepreneurship, innovation, and economic opportunity for
communities across the country... (p. 2).
28. The FCC's Declaratory Ruling and Notice of Proposed Rulemaking (June 9,
2020) states:
... We are committed to working with State and local governments to
facilitate the deployment of advanced wireless networks in all communities
consistent with the decisions already made by Congress, which we expect
will usher in a new era of American entrepreneurship, productivity,
economic opportunity, and innovation for years to come ... (p. 3).
29. The subject amendments are primarily intended to bring consistency
between federal laws adopted by the U.S. Congress & implementing
regulations adopted by the FCC and County codes relating to personal
wireless service facilities.
30. The federal laws and regulations are intended, among other things, to
facilitate user access and economic opportunities. By virtue of being
consistent with federal rules, the County Code amendments should also
support user access and facilitate economic opportunities and benefits.
31. Federal regulations set "presumptively reasonable periods of time" for local
government permitting of various types of wireless facilities. These federal
timelines range from 60 days to 150 days depending on the type and size of
wireless facility. The subject County Code amendments are consistent with
these federal timelines thereby minimizing the required time for processing
permits.
CONCLUSION
The subject Whatcom County Code amendments are consistent with the Whatcom
County Comprehensive Plan.
Page 6 of 7
NOW, THEREFORE, BE IT ORDAINED by the Whatcom County Council that:
Section 1. Amendments to WCC 20.13 are hereby adopted as shown on Exhibit A.
Section 2. Amendments to WCC 20.82 are hereby adopted as shown on Exhibit B.
Section 3. Amendments to WCC 20.83 are hereby adopted as shown on Exhibit C.
Section 4. Amendments to WCC 20.97 are hereby adopted as shown on Exhibit D.
Section 5. Amendments to WCC 22.05 are hereby adopted as shown on Exhibit E.
Section 6. Adjudication of invalidity of any of the sections, clauses, or provisions
of this ordinance shall not affect or impair the validity of the ordinance as a whole
or any part thereof other than the part so declared to be invalid.
ADOPTED this 9th day of November
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
ATT,F:
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Dan`o Bro:wgtrAD; vas) Eouncil Clerk
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APPROVED as td form:
/s/ Royce Buckingham
Civil Deputy Prosecutor
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Todd Donovan, Chairperson
Approved ( ) Denied
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Satpal Si hu, Executive
Date
Page 7 of 7
PLN2021-00005 Approved by Whotcom County Council 111912022
EXHIBIT
Amend WCC 20.13, Wireless Communication Facilities, as shown below.
Chapter20.13
PERSONAL WIRELESS SERVICE FACILITIES
Sections:
20.13.010 Purpose.
20.13.020 Definitions - General.
20.13.025 Definitions - Eligible facilities requests.
20.13.030 Applicability — Exemptions.
20.13.040 Permitted uses.
20.13.050 Administrative approval uses.
20.13.060 Conditional uses.
20.13.070 Nonconforming uses and structures.
20.13.080 Prohibited locations for small and macro wireless facilities.
20.13.085 Siting priorities for small and macro wireless facilities.
20.13.090 Design and development standards for small and macro wireless facilities.
20.13.095 Concealment Elements for small and macro wireless facilities.
20.13.100 Temporary uses.
20.13.105 Noise requirements.
20.13.110 Special exceptions for small and macro wireless facilities.
20.13.120 Conditions associated with siting approval.
20.13.130 General criteria for issuance of permits for small and macro wireless facilities.
20.13.140 Federal requirements.
20.13.150 Removal of antennas and support structures.
20.13.160 Third party review.
20.13.170 Project permit procedures.
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20.13.010 Purpose.
The purpose of this chapter is to establish regulations for the placement, development, permitting, and
removal of personal wireless service facilities including support structures and antennas. These
standards were developed to comply with the federal laws and regulations relating to personal wireless
service facilities (47 US Code Sections 253, 332, and 1455 and 47 CFR Sections 1.6001 through 1.6100).
They are intended to protect property values and minimize visual impact while furthering the
development of enhanced telecommunication services in the county.
The provisions of this chapter are not intended to and shall not be interpreted to prohibit or to have the
effect of prohibiting personal wireless services. This chapter shall not be applied in such a manner as to
discriminate between providers of functionally equivalent personal wireless services.
Whatcom County recognizes its requirement to provide for communication services and a commitment
to the health of its citizens.
(Ord. 2014-042 § 1 (Att. A), 2014; Ord. 2000-006 § 1, 2000).
20.13.020 Definitions - General.
As used in this chapter, the following terms shall have the following meanings. Additional definitions
that only apply to eligible facilities requests are set forth in WCC 20.13.025. Other words and terms
shall have meanings assigned to them by WCC 20.97 or, if not defined in this chapter or WCC 20.97, the
meaning customarily assigned to them.
(1) "Administrator" means the director of planning and development services or his designee.
(2) "Amateur radio" or "ham radio" means radio facilities operated for noncommercial purposes by
individuals licensed by the FCC with an interest in construction and operation of radio equipment,
usually as a hobby or vocation.
(3) "Ancillary equipment facility" means ancillary equipment and/or unstaffed structures used to contain
ancillary equipment for a personal wireless service facility. Such structures include cabinets, shelters,
remodeled structures, pedestals and other similar structures. Ancillary equipment means equipment
necessary for the functioning of personal wireless service facilities, which may include but is not limited
to air conditioners and backup power supplies (including emergency generators).
(4) "Antenna" means an apparatus designed for the purpose of emitting radiofrequency radiation, to be
operated or operating from a fixed location pursuant to Federal Communication Commission (FCC)
authorization, for the provision of personal wireless service and any commingled information services.
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(5) "Antenna array" means any system of poles, panels, rods, reflecting discs or similar devices used for
the transmission or reception of radio frequency signals. An antenna array can be made up of one or
more antennas including but not limited to the following:
(a) Directional antenna (also known as a panelantenna) which transmits signals in a directional
pattern of less than 360 degrees.
(b) Omni -directional antenna (also known as a whip antenna) which transmits signals in a 360-
degree pattern.
(c) Parabolic antenna (also known as a dish antenna) which is a bowl -shaped device that
receives and transmits signals in a specific directional pattern (e.g., point-to-point).
(6) "Antenna equipment" means equipment, switches, wiring, cabling, power sources, shelters or
cabinets associated with an antenna, located at the same fixed location as the antenna, and, when
collocated on a structure, is mounted or installed at the same time as such antenna.
(7) "Antenna facility" means an antenna and associated antenna equipment.
(8) "Attached wireless communication support structure" is a support structure not specifically designed
and constructed to support an antenna array. Such structures may include but are not limited to
buildings or structures, utility poles, signs, and water towers, together with any accompanying pole or
device (attachment device) which attaches the antenna array to the existing building orstructure.
(9) "Attached wireless communication facility" is a personal wireless service facility that utilizes an
attached wireless communication support structure. It means the site, the leased area, attached
wireless communication support structures, antennas, antenna array(s), ancillary equipment facilities,
and appurtenances used to transmit, receive, distribute, provide or offer personal wireless
communication, together with any accompanying pole or device (attachment device) which attaches the
antenna array to the existing building or structure, transmission cables, and an ancillary equipment
facility which may be located either inside or outside of the attachment structure.
(10) "Citizen band radio" means two-way radio facilities operated for short-range personal and business
communications, without necessity of a federal license.
(11) "Collocation" means:
(a) Mounting or installing an antenna facility on a pre-existing structure; and/or
(b) Modifying a structure for the purpose of mounting or installing an antenna facility onthat
structure.
The definition of "collocation" in WCC 20.13.025 applies to eligible facilities requests.
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(12) "Deployment" means placement, construction, or modificationof a personal wireless service
facility.
(13) "Direct -to -home satellite service" means the distribution or broadcasting of programming or
services by satellite directly to the subscriber's premises without use of ground receiving or distribution
equipment, except at the subscriber's premises or in the uplink process to the satellite.
(14) "FAA" means the Federal Aviation Administration.
(15) "FCC" means the Federal Communications Commission.
(16) "Freestanding wireless communication facilities" means the site, the lease area, freestanding
wireless communication support tower(s), antennas, antenna array(s), ancillary equipment facilities, and
appurtenances used to transmit, receive, distribute, provide or offer personal wireless services.
Freestanding wireless communication facilities include but are not limited to antennas, poles, towers,
cables, wires, conduits, ducts, pedestals, vaults, buildings, and electronic switching equipment.
(17) "Freestanding wireless communication support structure" is a freestanding structure, designed and
constructed to specifically support an antenna array, and may include but is not limited to any of the
structures listed below:
(a) "Lattice tower" means a wireless communication support structure which consists of a
network of vertical and horizontal supports and crossed metal braces, forming a tower which is
usually triangular or square in cross-section.
(b) "Monopole tower" means a wireless communication support structure consisting of a single
pole to support antennas and connecting appurtenances.
(c) "Guyed tower" means any variety of wireless communication support structures using wire
guys connecting above grade portions of a communication support structure diagonally with the
ground or the structure on which the tower is placed. The purpose of the wire guys is to provide
support for wireless communication towers, antennas, and connecting appurtenances.
(18) "Macro wireless facilities" means any personal wireless service facilities that:
(a) Do not qualify as an exemption pursuant to WCC 20.13.030;
(b) Are not eligible facilities requests;
(c) Are not permitted replacement of components; and
(d) Are not small wireless facilities.
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(19) "Personal wireless service facility" means an antenna facility or a structure that is used for the
provision of personal wireless service, whether such service is provided on a stand-alone basis or
commingled with other wireless communications services. Personal wireless service facilities include,
but are not limited to, antennas, poles, towers, cables, wires, conduits, ducts, pedestals, vaults,
buildings, and electronic and switching equipment.
(20) "Satellite earth station" means the facilities used for reception and processing of programming
services from a satellite prior to transfer to terrestrial distribution systems or for processing of
programming and services from a terrestrial source before transmission via satellite.
(21) "Site" means a leased area which may contain a base station, building(s) or structure in compliance
with provisions of Whatcom County subdivision regulations, site easement area or lot of record upon
which a wireless communications facility is or will be located. The definition of "site" in WCC 20.13.025
applies to eligible facilities requests.
(22) "Small wireless facilities" are facilities that meet each of the following conditions:
(a) The facilities—
(i) Are mounted on structures 50 feet or less in height including their antennasas
defined in 47 CFR 1.1320(d); or
(ii) Are mounted on structures no more than 10 percent taller than otheradjacent
structures; or
(iii) Do not extend existing structures on which they are located to a height of more than
50 feet or by more than 10 percent, whichever is greater;
(b) Each antenna associated with the deployment, excluding associated antenna equipment (as
defined in the definition of antenna in 47 CFR 1.1320(d)), is no more than three cubic feet in
volume;
(c) All other wireless equipment associated with the structure, including the wireless equipment
associated with the antenna and any pre-existing associated equipment on the structure, is no
more than 28 cubic feet in volume;
(d) The facilities do not require antenna structure registration under 47 CFR part 17
(Construction, Marking, and Lighting of Antenna Structures);
(e) The facilities are not located on Tribal lands, as defined under 36 CFR 800.16(x); and
(f) The facilities do not result in human exposure to radiofrequency radiation in excess of the
applicable safety standards specified in 47 CFR 1.1307(b).
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(23) "Structure" means a pole, tower, base station, or other building, whether or not it has an existing
antenna facility, that is used or to be used for the provision of personal wireless service (whether on its
own or comingled with other types of services).
(24) "Unlicensed wireless services" means commercial mobile services that operate on public
frequencies and do not need a FCC license.
(25) "Wireless communication service" means wireless data and telecommunications services, including
commercial mobile services, commercial mobile data services, unlicensed wireless services, and
common carrier wireless exchange access services, as defined by federal laws and regulations.
20.13.025 Definitions - Eligible facilities requests.
The following definitions shall only apply to eligible facilities requests:
(1) "Base station" means a structure or equipment at a fixed location that enables FCC licensed or
authorized wireless communications between user equipment and a communications network. The
term does not encompass a tower as defined in this section or any equipment associated with atower.
(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 fiber-optic
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 County for an eligible facilities request, supports or houses equipment described
in subsections (a) and (b) above that has been reviewed and approved under the applicable
zoning or siting process, or under another State or local 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 County for an eligible facilities request, does not support or house equipment
described in subsections (a) and (b) above.
(2) "Collocation" means 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
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(3) "Eligible facilities request" means 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" means 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 County for an eligible facilities request.
(5) "Existing" means a constructed tower or base station that has been reviewed and approved under
the applicable zoning or siting process, or under another State 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.
(6) "Site" means, 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. The current boundaries
of a site are the boundaries that existed as of the date that the original support structure or a
modification to that structure was last reviewed and approved by a State or local government, if the
approval of the modification occurred prior to the Spectrum Act (Middle Class Tax Relief and Job
Creation Act of 2012, which was signed into law on February 22, 2012) or otherwise outside of the
eligible facilities request review process.
(7) "Substantially change the physical dimensions" means a modification of an eligible support structure
that 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 feet, whichever is greater; for other eligible
support structures, it increases the height of the structure by more than 10% or more than ten
feet, whichever is greater;
(i) Changes in height are 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 are 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
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of the Spectrum Act (Middle Class Tax Relief and Job Creation Act of 2012) on
February 22, 2012.
(ii) The phrase "with separation from the nearest existing antenna not to exceed
twenty feet" allows an increase in the height of the tower of up to twenty feet
between antennas, as measured from the top of an existing antenna to the
bottom of a proposed new antenna on the top of a tower.
(b) 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 sixfeet;
(c) 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. The
term "equipment cabinets" does not include relatively small electronic components, such as
remote radio units, radio transceivers, amplifiers, or other devices mounted on the structure,
and up to four such cabinets may be added to an existing facility for each separate eligible
facilities request;
(d) It entails any excavation or deployment outside of the current site, except that, for towers
other than towers in the public rights -of -way, it entails any excavation or deployment of
transmission equipment outside of the current site by more than 30 feet in any direction. The
site boundary from which the 30 feet is measured excludes any access or utility easements
currently related to the site;
(e) It would defeat the concealment elements of the eligible support structure. The term
"concealment element" means an element that is part of a stealth -designed facility intended to
make a structure look like something other than a wireless facility, and that was part of a prior
approval. Examples of concealment elements include painting to match the supporting facade
and making the structure look like a tree or flag pole. To "defeat" a concealment element, a
proposed modification must cause a reasonable person to view a structure's intended stealth
design as no longer effective; or
(f) 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 non -compliant only in a mannerthat
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would not exceed the thresholds identified in subsections (a) through (d) above. The phrase
"conditions associated with the siting approval" may include aesthetic conditions to minimize
the visual impact of a wireless facility as long as the condition does not prevent modifications
explicitly allowed under subsections (a) through (d) above (height, width, equipment cabinets,
and excavations or deployments outside the current site) and so long as there is express
evidence that at the time of approval the locality required the feature and conditioned approval
upon its continuing existence. Examples of aesthetic conditions include requiring a specific
placement, requiring a shroud, requiring walls or fences, setbacks, location behind a tree -line,
and landscaping.
(8) "Tower" means 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.
(9) "Transmission equipment" means equipment that facilitates transmission for any 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.
20.13.030 Applicability — Exemptions.
The requirements of this chapter shall apply to all new personal wireless service facilities and the
expansion and/or alteration of any existing personal wireless service facilities, except that the following
are exempt from the provisions of this chapter:
(1) Satellite earth stations using antenna(s) not more than two meters in diameter in commercial and
industrial districts and direct -to -home satellite services.
(2) Send and receive citizen band radio antennas or antennas operated by federally licensed amateur
("ham") radio operators.
(3) Industrial, scientific and medical equipment using frequencies regulated by the FCC.
(4) Electronic communications structures and telecommunication towers including associated
maintenance and operations structures that do not qualify as "personal wireless service facilities" and,
therefore, are regulated under WCC 20.82.
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(5) Military and federal, state and local government communications facilities used for emergency
preparedness and public safety purposes, which are regulated under WCC 20.82.
(6) Normal, routine and emergency maintenance and repair of existing personal wireless service
facilities and related equipment which do not increase the size, footprint or bulk of such facilities and
which otherwise comply with the county, state, and federal law and regulations; provided, that
compliance with design and development standards of this chapter is maintained.
(7) Personal wireless service facilities in the County right-of-way, provided that the applicant obtains
other necessary County authorizations (e.g. revocable encroachment permit and/or franchise
agreement).
(8) Personal wireless service facilities in the State right-of-way, provided that the applicant obtains
necessary state authorizations.
(Ord. 2014-042 § 1 (Att. A), 2014; Ord. 2000-006 § 1, 2000).
20.13.040 Permitted uses.
.41 Eligible facilities requests.
.42 Collocation of small wireless facilities using existing structures.
.43 Replacement of any component of an existing personal wireless service facility and/or replacement
of any component of an existing ancillary equipment facility on existing, approved and conforming sites
that does not increase the physical dimensions of the components being replaced.
20.13.050 Administrative approval uses.
51 Small wireless facilities on a new structure.
52 Collocation of macro wireless facilities using an existing structure.
.53 New ancillary equipment facilities that:
(1) Do not qualify as eligible facilities requests;
(2) Do not qualify as small wireless facilities; and
(3) Are not part of a macro wireless facility using a new structure.
20.13.060 Conditional uses.
.061 Macro wireless facilities using a new structure, including associated ancillary equipment
facilities.
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20.13.70 Nonconforming uses and structures.
Expansion of nonconforming personal wireless service facilities shall be treated as follows:
(1) Eligible facilities requests are permitted uses that are required to comply with WCC 20.13, but
shall not be subject to WCC 20.83.020.
(2) Collocation of small wireless facilities using existing structures are permitted uses that are
required to comply with WCC 20.13, but shall not be subject to WCC 20.83.020.
(3) Collocation of a macro wireless facilities using existing structures, including associated ancillary
equipment facilities, are administrative approval uses that are required to comply with WCC
20.13, but shall not be subject to WCC 20.83.020.
(4) Other expansions shall be subject to WCC 20.83.020.
(Ord. 2014-042 § 1 (Att. A), 2014; Ord. 2000-006 § 1, 2000. Formerly 20.13.040).
20.13.080 Prohibited locations for small and macro wireless facilities.
(1) New attached antennas or antenna arrays shall not be mounted, installed or affixed to a single-family
residence, duplex or their accessory structures; this prohibition shall not apply to residential structures
such as multifamily housing, condominiums, apartment buildings, hotels, rooming houses, and their
appurtenant structures, such as parking garages, and storage buildings.
(2) New freestanding wireless communication support structures (lattice towers) are prohibited in
Urban Residential, Urban Residential Medium, Urban Residential Mixed, Neighborhood Commercial, and
Eliza Island districts.
(3) New freestanding wireless communication support structures (monopole towers and ground level
dishes) are prohibited in Urban Residential, Urban Residential Medium, Urban Residential Mixed,
Neighborhood Commercial, and Eliza Island districts on sites that also contain residential uses.
(4) New support structures are prohibited on lands within the jurisdiction of the Whatcom County
Shoreline Program. (Ord. 2014-042 § 1 (Att. A), 2014; Ord. 2011-013 § 2 Exh. B, 2011; Ord. 2000-006 § 1,
2000. Formerly 20.13.050(4)).
20.13.085 Siting priorities for small and macro wireless facilities.
(1) In reviewing applications for new freestanding wireless communication facilities, and new attached
wireless communication facilities, the approving authority shall evaluate the proposal in relationship to
the following siting priorities. Unless the facility will be located at the highest priority location, the
applicant shall demonstrate that:
(a) None of the higher priority locations are available; or
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(b) If one is available it is not a feasible location for the proposed facility, based upon a feasibility
study demonstrating that higher priority locations have been explored and are not feasible or
available; or
(c) If feasible, the location is less desirable than the one proposed from the standpoint of
minimizing impacts on surrounding land uses.
(2) For the purpose of this chapter:
(a) Residential related districts include Urban Residential (UR), Urban Residential Medium
(URM), Urban Residential Mixed (UR-MX), Eliza Island (EI), Neighborhood Commercial (NC),
Residential Rural (RR), Rural Residential Island (RR-1), and Rural (R) Districts;
(b) Nonresidential related districts include:
(i) Commercial districts, including Rural General Commercial (RGC), Small Town
Commercial (STC), General Commercial (GC), Resort Commercial (RC) and Tourist
Commercial (TC) Districts; and
(ii) Industrial districts including Heavy Impact Industrial (HII), Light Impact Industrial (Lll),
Rural Industrial and Manufacturing (RIM), General Manufacturing (GM), and Airport
Operations (AO); and
(iii) Resource districts including Agriculture (AG), Commercial Forestry (CF), Rural
Forestry (RF) and Recreation Open Space (ROS).
(3) Siting Priorities. Listed in descending order with the highest priority first:
(a) Collocated antennas on attached wireless communication support structures that are
nonresidential buildings and structures, and collocated antennas on existing freestanding
wireless communications towers in nonresidential related districts.
(b) Collocated antennas on attached wireless communication support structures that are
nonresidential buildings and structures, and collocated antennas on existing freestanding
wireless communications towers in residential related districts on property not used exclusively
for residential purposes.
(c) New freestanding wireless communication support structures in low visual impact locations
in resource and industrial districts.
(d) New attached wireless communication facilities that utilize nonresidential buildings and
structures in residential related zones on property not used exclusively for residential purposes.
(e) New freestanding wireless communication support structures at low visual impact locations
in commercial districts.
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(f) Locations other than those listed above. (Ord. 2014-042 § 1 (Att. A), 2014; Ord. 2011-013 § 2
Exh. B, 2011; Ord. 2000-006 § 1, 2000. Formerly 20.13.050(1) —(3)).
20.13.090 Design and development standards for small and macro wireless facilities.
.91 Design and Development Standards. These developments standards are minimum standards and
shall be in addition to any development standards in the underlying district in which a personal wireless
service facility is located. In the event of a conflict between the provisions of this chapter and the
general development standards of this title the more stringent provision shall govern; provided, that
where a provision of this chapter is the more specific in its application to personal wireless service
facilities, that provision shall prevail regardless of stringency.
(1) Anti -Climbing Devices. All freestanding and attached wireless communication support
structures shall be equipped with appropriate anti -climbing devices.
(2) Attachment to Trees Prohibited. It is prohibited to attach any personal wireless service
facility or portion thereof to any tree.
(3) Signage. All freestanding and attached wireless communication support structures shall be
identified with a nonilluminated sign not exceeding four square feet. The sign shall list the
wireless service provider's name and emergency telephone number and shall be posted in a
place visible to the general public. Safety signs required by applicable laws and regulations are
also permitted. No other signs shall be located on support structures or antennas.
(4) Lighting. All freestanding and attached wireless communication facilities shall notbe
illuminated except where required by the FAA.
(5) Painting. All freestanding and attached wireless communication facilities shall be painted or
finished in a manner that blends with the dominant color of the background except where
otherwise required by the FAA. The applicant and the operator of the facility shall have a
continuing duty to maintain such paint or finish.
(6) Copies of deeds or other instruments such as lease agreements and site easements that
establish the applicant's right to use the site shall be provided at the time of application. These
may be in unsigned final draft form pending the outcome of the approval process. The
boundaries of a proposed personal wireless service facility site shall be defined in each such
instrument in a manner that will provide a land surveyor sufficient information to accurately
locate the site boundaries using standard survey methods. The applicant may redact
proprietary information or lease terms that are not relevant to establishing the applicant's right
to use the site or defining the site boundaries.
(7) If the proposed site is leased, the terms of the lease shall not restrict the land owner in any
way from leasing other areas of his property to other wireless communications providers with
the exception that the lease may include a provision that any additional facilities so located not
materially interfere with the operation of the existing facility.
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(8) Antennas that are mounted, installed or affixed to an attached wireless communication
support structure shall be designed or placed to blend with the predominant background or
architectural features as seen from abutting residential uses, roadways or other public rights -of -
way.
(9) When located on buildings, panel antennas shall be placed closely against walls or parapets
and not extend above the wall or parapet unless an alternative design is required to (a) achieve
better compatibility with the building design or (b) to obtain antenna function. In the
alternative, antennas may be placed on an attached wireless communication support structure
if designed with concealment elements, screened or otherwise obscured from view in a manner
compatible with the structure's design. Such antennas shall not extend more than 10 feet above
the top of the structure.
(10) Ancillary equipment facility structures shall be placed underground or wholly enclosed in an
existing structure or building, or designed to blend into the architecture and landscaping of the
surrounding buildings or structures. When equipment boxes are placed at ground level, they
shall be screened from view.
(11) Ground -mounted dishes shall be located outside any required landscaped area and
preferably located in service areas or other less visible locations. They shall be solidly screened
to at least as high as the center of the dish when viewed from off the site. Solid screening shall
be provided as high as the top of the dish on sides adjacent to residential zones.
Roof -mounted dishes shall be solidly screened at least as high as the center of the dish. The
screening shall be of a material and design compatible with the building, and can include
penthouse screening, parapet walls, or other similar screening. The dish should be placed as
close to the center of the roof as possible.
(12) Setbacks Applicable. The following setback standards shall apply to personal wireless
service facilities:
(a) Ancillary equipment facilities shall comply with the setback requirements inthe
underlying district or be located in a legally established existing structure.
(b) An antenna and its attachment device attached to a building or other permanent
structures shall comply with the setback requirements in the underlying district. Where
the setback requirement in the underlying zone is based on the height of the structure,
the height used to compute the setback for the antenna array shall be the height of the
structure plus the additional height that will be added by the antenna array and its
attachment device.
(c) Freestanding wireless communication support structures located in a residential
related district as described in WCC 20.13.085 shall be set backfrom any property line
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by a distance equal to the height of the wireless communications support structure or
the setback of the underlying use district, whichever is greater.
(d) Freestanding wireless communication support structures located in other than
residential related districts shall be set back from any property line abutting or adjacent
to a residential related district a distance equal to the height of the wireless
communications support structure or the setback of the underlying use district,
whichever is greater.
(e) Regardless of the district, freestanding wireless communication support structures
shall be set back from dwellings not on the same legal lot, a distance equal to theheight
of the freestanding wireless communication support structure or the setback of the
underlying use district whichever is greater.
(f) Setbacks for freestanding wireless communication support structures shall be
measured from the ground level base of the structure.
(g) The setback requirements for freestanding and attached wireless communication
facilities under WCC 20.13 may be reduced by the approving authority subject to the
satisfaction of the special exception criteria in WCC 20.13.110.
(13) In the event that a new freestanding or attached wireless communication facility is
proposed on land zoned agriculture or in an agriculture overlay zone and the land is otherwise
suitable for agricultural use, the facility shall be located and maintained so as not to interfere
with current agricultural activities or the potential future use of the site for agricultural
activities.
(14) Screening Standards. Freestanding and attached wireless communication facilities shall be
subject to the following standards for visual screening:
(a) The perimeter of the wireless communication support structure and any guyed wires
and anchors shall be enclosed by a fence or wall at least six feet in height. A row of
evergreen shrubs, spaced not more than five feet apart and capable of growing to form
a continuous hedge at least five feet high within five years of planting, and at least one
row of evergreen trees or shrubs spaced not more than 10 feet apart nor less than six
feet high when planted shall be installed outside and adjacent to the fence.
(b) Landscape material used for screening should be selected and sited to produce a
hardy and drought -resistant landscape area. Native plant materials are preferred.
(c) Maintenance of landscaped areas shall be the responsibility of the applicant and/or
operator of the facility. Required landscaping must be maintained in a healthy manner.
Trees and shrubs that die must be replaced with healthy in -kind materials such that
during the life of the facility the landscaping continues to satisfy the requirements of the
permit. Temporary irrigation shall be provided to help ensure survival during theplant
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establishment period. If the approving authority determined that existing vegetation
provided adequate screening without the need for additional landscaping, then no
action shall be taken by the applicant or his assigns or successors that would diminish its
effectiveness in screening the site. In the event that natural vegetation is removed to
the extent that the area required to be screened is made more visible, the operator of
the facility shall prepare a revegetation plan and submit the plan to the administrator
for review and approval. Upon approval, the operator shall implement the plan.
(d) The administrator or the hearing examiner as appropriate may approve any
combination of existing vegetation, topography, walls, decorative fences or other
features instead of landscaping, if they achieve the same degree of screening as the
required landscaping. Either, as appropriate, may waive the requirement for the
installation of screening for those sides of the facility that are naturally screened so as
not to be visible from public streets or adjoining properties.
(e) Existing vegetation shall be preserved to the maximum extent practicable.
(f) When landscaping is required to be installed a maintenance bond, assignment of
funds or other financial guaranty acceptable to the county shall be provided in the
amount of 50 percent of the value of the labor and materials. The guaranty shall be in
effect for two years from the date of planting.
(15) General Height Standards. The following standards shall apply to wireless communications
facilities:
(a) The height of a freestanding or attached wireless communication facility shall be
measured to include the support structure and any antennas proposed to be attached
to the structure at the time of application; provided, that a lightning rod, not to exceed
10 feet, or FAA required lighting shall not be included in the height measurement.
(b) The height limit on a freestanding wireless communications facility shall be the
minimum height necessary for the facility to function satisfactorily provided the height
does not exceed height restriction imposed elsewhere in this chapter. The applicant
shall provide technical documentation that the height proposed is the minimum
necessary. As provided in WCC 20.13.160, the administrator or the hearing examiner
may require a third party review of this information.
(c) The height of antennas mounted or installed on an attached wireless communication
support structure may exceed the height limit of the underlying zone; provided, that the
height does not exceed height restriction imposed elsewhere in this chapter.
(16) Parking. Each freestanding and attached wireless communication support structure shall be
provided with at least one adjacent parking space or more if needed to accommodate staff. All
unstaffed facilities shall have access to parking for maintenance personnel; however, such
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parking may be shared or public parking at the discretion of the county. Staffed facilities shall
require one parking space per staff member.
(17) Building and Utility Permits. Approval of a permit pursuant to WCC 20.13 does not exempt
or otherwise remove any requirements for obtaining building permits and other applicable
construction, development or operation related permits, licenses or approvals for the project. It
shall be the permittee's responsibility to secure all other necessary permits and approvals prior
to beginning work on the installation of the facility. (Ord. 2014-042 § 1 (Att. A), 2014; Ord. 2000-
006 § 1, 2000. Formerly 20.13.060).
20.13.095 Concealment elements for small and macro wireless facilities.
Small wireless facilities and macro wireless facilities may be designed with concealment elements. The
term "concealment element" means an element that is part of a stealth -designed facility intended to
make a structure look like something other than a wireless facility, and is part of the eligible support
structure approval. Examples of concealment elements include painting to match the supporting facade
and making the structure look like a native tree or flag pole.
20.13.100 Temporary uses.
Freestanding or attached wireless communication facilities may be permitted as a temporary use with
review by the administrator in order to facilitate continuity in personal wireless service during repair or
maintenance of existing personal wireless service facilities, when a supporting structure and site are
being redeveloped, or prior to completion of construction of new personal wireless service facilities.
Temporary uses shall operate for not more than six -months commencing when transmission from such
facility begins, provided that the administrator may approve additional extensions if the applicant
demonstrates that substantial progress has been made on the repair, maintenance, redevelopment, or
new construction. Additional extension requests must be submitted before the end of any extension
period. Temporary uses shall not be authorized for more than a cumulative total of 24 months. The
personal wireless service facility(s) shall be removed within 30 days after the facility is no longer needed
for telecommunications purposes. (Ord. 2014-042 § 1 (Att. A), 2014; Ord. 2000-006 § 1, 2000. Formerly
20.13.090).
20.13.105 Noise requirements.
(1) Personal wireless service facilities shall comply with state noise level standards under Chapter 173-
60 WAC, as amended.
(2) Generator use is only permitted as a backup power supply for emergency operation purposes or
other times when the regular power supply is not available. If generators, air conditioning or other noise
generating equipment is proposed, the applicant shall provide information detailing the expected noise
level and any proposed abatement measures. This may require noise attenuation devices or other
mitigation measures to minimize impacts.
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20.13.110 Special exceptions for small and macro wireless facilities.
When adherence to the requirements of WCC 20.13 would prohibit, have the effect of prohibiting or
materially inhibit personal wireless service, including but not limited to resulting in a physical barrier
which would block signal reception or transmission or preventing effective communication in all
permissible locations, a special exception may be permitted provided criteria outlined below are met.
Exceptions do not apply to variations from WCC Title 15, Buildings and Construction. A variance
pursuant to WCC 22.05.024 is required for variations from applicable zoning regulations not contained
in WCC 20.13.
The approval authority for granting of the special exception shall be the same as that of the authority
authorized to approve the permit for the personal wireless service facilities. A request for a special
exception shall be processed in conjunction with the permit approving the antenna location.
(1) Special Exception Criteria.
(a) The applicant shall justify the request for a special exception by documenting and providing
evidence that the full application of a particular standard or standards of WCC 20.13 would
prohibit, have the effect of prohibiting or materially inhibit personal wireless service, including
but not limited to resulting in an obstruction or inability to send and receive a communication
signal from the proposed location of the facility and, further, that the obstruction or inability to
send or receive a signal from that location is the result of factors beyond the property owner's
or applicant's control. Pictures, scaled drawings, maps and/or manufacturer's specifications, and
other technical information as necessary should be provided to substantiate the need for the
special exception.
(b) The applicant for a special exception shall demonstrate that the proposed materials, shape,
and color of the proposed personal wireless service facilities will minimize negative visual
impacts on adjacent or nearby residential uses to the greatest extent possible. The use of
certain materials, shapes and colors may be required in order to minimize visual impacts.
(c) Any request for a special exception to heights for new antennas that are proposed to be
mounted or installed on an attached wireless communication support structure shall be
reviewed relative to height limitations set for structures in the underlying zone district in which
the antenna is to be located.
(d) Requests for special exceptions for setback reductions shall also be evaluated based onthe
following criteria:
(i) The extent to which screening and camouflaging is existing or will be employed to
mitigate the effects of the structure versus the effectiveness of the setback in providing
such screening.
(ii) The need for the setback reduction to facilitate a location or design that better
satisfies the criteria of this chapter.
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(iii) The impact on adjacent properties.
(Ord. 2014-042 § 1 (Att. A), 2014; Ord. 2013-057 § 1 (Exh. A), 2013; Ord. 2000-006 § 1,
2000).
(e) A special exception for small wireless facilities shall not be granted that would alter the
dimensional, bulk, numerical, or other criteria in the definition of small wireless facilities in WCC
20.13.020.
20.13.120 Conditions associated with siting approval.
The County may impose conditions associated with any permit for a personal wireless service facility in
accordance with the WCC. Conditions may require that all activity on site shall be done in accordance
with the site plan approved by the County and that any alterations from the approved site plan will
require further review by Whatcom County Planning and Development Services and/or the Hearing
Examiner. Conditions must be incorporated into the permit in writing. Subsequent eligible facilities
requests must comply with conditions associated with permits for construction or modification of the
eligible support structure or base station equipment, except as set forth in WCC 20. 13.025(3) and (7).
20.13.130 General criteria for issuance of permits for small and macro wireless facilities.
(1) Any applicant for a land use permit (other than a building permit) proposing to install an antenna
support structure or mount an antenna on an existing structure shall demonstrate by engineering
evidence that the height requested is the minimum height necessary to fulfill the site's function within
the wireless service provider's system.
(2) The authority granting the permit shall find that, unless the facility will be located at the highest
priority location as set forth in WCC 20.13.085, the applicant has demonstrated that none of the higher
priority locations are available or if one is available it is not a feasible location for the proposed facility,
or if feasible is less desirable than the one proposed from the standpoint of minimizing impacts on
surrounding land uses.
(3) The applicant shall submit documentation that the personal wireless service facilities comply with
applicable FCC regulations concerning radio frequency emissions.
(4) Performance Bond or Other Security Acceptable to the County. The operator of the facility shall
obtain and keep in force throughout the time the facility is located on the site a performance bond or
other security acceptable to Whatcom County payable to Whatcom County in the amount of 150
percent of the estimated cost of removal as determined by the director, but not less than $1,000. The
bond is intended to cover the costs of removal of such facility at such time as the facility may be
required to be removed pursuant to WCC 20.13.150. (Ord. 2014-042 § 1 (Att. A), 2014; Ord. 2000-006 §
1, 2000).
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20.13.140 Federal requirements.
All wireless communications support structures must meet or exceed applicable current standards and
regulations of the FAA, the FCC and any other agency of the federal government with the authority to
regulate wireless communication support structures and antennas. If such standards and regulations are
changed, owners of the freestanding or attached wireless communication support structure, antennas
and electronic equipment governed by this chapter shall bring such facility into compliance with such
revised standards and regulations if required by the federal agency. Failure to bring such facilities into
compliance with such revised standards and regulations shall constitute grounds for the removal of the
facility at the owner's expense. (Ord. 2014-042 § 1 (Att. A), 2014; Ord. 2000-006 § 1, 2000).
20.13.150 Removal of antennas and support structures.
No less than 30 days prior to the date that a personal wireless service provider plans to abandon or
discontinue operation of a facility, the provider must notify the Whatcom County planning and
development services director by certified U.S. mail of the proposed date of abandonment or
discontinuation of operation. The owner of the facility shall then remove the antenna within 90 days of
discontinuation or abandonment unless an additional period of time is authorized by the county. In any
case, if the county finds that any wireless communication support structure has not operated for a
continuous period of six months, the owner or lessee of the property shall remove the facility within 36
months of receipt of notice to remove from the county. If the abandoned facility is not removed within
said time period, the county may remove the antenna or wireless communication support structure at
the owner's expense. If there are two or more wireless communications providers on a single wireless
communication support structure, this provision shall not become effective until all providers cease
using the wireless communication support structure. (Ord. 2014-042 § 1 (Att. A), 2014; Ord. 2000-006 §
1, 2000).
20.13.160 Third party review.
Personal wireless service providers use various methodologies and analyses to determine the specific
technical parameters of their services, such as expected coverage area, antenna configuration,
topographic constraints that affect signal paths, etc. Because of the technical nature of methodologies
and analyses, the county may find it necessary to require a third party technical review of the material
submitted by the applicant as part of a permitting process. The expert review is intended to address
public safety issues and be a site -specific review of technical aspects of the facilities or a review of the
provider's methodology and equipment used and not a subjective review of the site which was selected
by a provider. Based on the results of the expert review, the county may require changes to the
provider's application. The expert review shall address the following:
(1) The accuracy of submissions;
(2) The applicability of analysis techniques and methodologies;
(3) The validity of conclusions reached; and
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(4) Any specific technical issues designated by the county.
In general, and if necessary, the administrator shall consider requiring a third party review of technical
information submitted in support of a special exception, and technical information submitted in support
of a personal wireless service facility proposed at a low priority, high visual impact location.
The selection of a third party expert shall be by mutual agreement between the provider and the
county. The cost of the technical review shall be borne by the applicant. (Ord. 2014-042 § 1 (Att. A),
2014; Ord. 2000-006 § 1, 2000).
20.13.170 Project permit procedures.
Project permit procedures including application procedures, permit review time frames, deemed
granted provisions (for eligible facilities requests), and appeals are contained in WCC 22.05. Any
decision to deny an application shall be in writing, supported by substantial evidence contained in a
written record.
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EXHIBIT B
Amend WCC 20.82, Public Utilities, as shown below.
20.82.030 Conditional uses.
The following uses shall require a conditional use permit or major project permit and shall be subject to
a threshold determination in accordance with the Whatcom County SEPA Ordinance:
(1) Transmission pipelines, or pipelines termed a distribution pipeline but having characteristics that fit
the definition of a transmission pipeline, carrying petroleum and petroleum products other than natural
gas when such pipelines will be located outside the zoning district classified as Heavy Impact Industrial.
(2) Regional transmission pipelines for the bulk conveyance of natural gas, or pipelines termed a
distribution pipeline but having characteristics that fit the definition of a transmission pipeline. Except
for the above conditions, natural gas pipelines which are owned and operated by a gas utility company
regulated by the State Utilities and Transportation Commission and which are distribution lines owned
by the utility that provide natural gas service directly to county citizens and businesses shall not be
considered regional transmission lines.
(3) New water lines with a nominal pipe size greater than eight inches except for the following, which
are permitted outright:
(a) New water lines located and installed by a public utility or municipality within urban growth areas or
limited areas of more intensive rural development (LAMIRDs); or
(b) New water lines outside urban growth areas or limited areas of more intensive rural development
(LAMIRDs) in conformance with a state approved water comprehensive plan pursuantto
RCW 43.20.260 and consistent with the Whatcom County Comprehensive Plan, so long as they are
water transmission lines per WCC 20.97.452, or provide service at an intensity historically and typically
found in rural areas, per RCW 36.70A.030(17), including but not limited to agricultural uses. Water
service for uses or densities not permitted in rural or resource areas shall not be extended or expanded
outside urban growth areas or limited areas of more intensive rural development (LAMIRDs), except
where necessary to protect basic public health and safety and the environment and when such services
are financially supportable at rural densities and do not permit urban development, per
RCW 36.70A.110(4).
(4) New sewer lines with an inside diameter of six inches or greater and length of 150 feet or greater,
except for new sewer lines located and installed within urban growth areas or limited areas of more
intensive rural development (LAMIRDs), and in conformance with a state approved sewer and/or water
comprehensive plan and consistent with the Whatcom County Comprehensive Plan, which shall be
permitted outright. Sewer lines shall not be extended to serve lots outside urban growth areas unless
such extensions are shown to be necessary to protect basic public health and safety and the
environment, and when such services are financially supportable at rural densities and do notpermit
PLN2021-00005 Approved by Whotcom County Council 111912022
urban development. Sewer lines may pass through areas outside urban growth areas provided they do
not provide sewer service to any lot in the nonurban areas.
(5) Electronic communications structures and telecommunication towers including associated
maintenance and operations structures, provided this section shall not apply to personal wireless
service facilities and associated structures regulated under WCC 20.13 nor to structures or towers in the
public right of way.
(6) Water storage reservoirs with volumes exceeding 50,000 gallons, those with height in excess of 12
feet above the ground level measured within 20 feet in all directions of the tank. The following height
standards shall apply:
(a) The height limit on the water storage reservoir shall be the minimum necessary to accomplish its
intended purpose. The applicant shall provide technical documentation that the height proposed is the
minimum necessary.
(b) The height of the water storage reservoir may exceed the height limit of the underlying zone;
provided, that all other criteria in WCC 22.05.026 are satisfied.
(7) Utility structures located above ground such as pump stations, equipment buildings andsimilar
structures greater than 200 square feet in area.
(8) Sewer and water treatment plants, except that sewer treatment plants are prohibited in the Airports
Operations Zone.
(9) Electrical substations and new electrical power lines operating at voltages greater than 55 kV (55,000
volts); provided, applications for such substations and power lines shall be processed as a major
development permit (pursuant to Chapter 20.88 WCC); provided, that no further major development
permit shall be granted for such lines which:
(a) Operate at greater than 115 kV (115,000 volts) except on land where such permits have already been
granted or in those districts classified as industrial; or
(b) Operate at 115 kV (115,000 volts) and carry greater than 160 mw (160 megawatts) average loading,
except on land where such permits have already been granted or in those districts classified as
industrial. For purposes of this section, "average loading" means the average power in megawatts
carried by a power line over any 12-month period; provided, that loading at full line carrying capacity
may not extend beyond any 90-day period;
(c) Are dedicated to provision of transmission service to (from) an electrical generating plant having a
generating capacity greater than 160 mw (160 megawatts), except on lands where such permits have
already been granted or in those districts classified as industrial.
(10) Electrical substations and new electrical power lines with height in excess of the zoning district's
height limitations. The following height standards shall apply:
PLN2021-00005
Approved by Whatcom County Council 111912022
(a) The height limit on the substation or power line shall be the minimum necessary to accomplish its
intended purpose. The applicant shall provide technical documentation that the height proposed is the
minimum necessary.
(b) The height of the substation or power line may exceed the height limit of the underlying zone;
provided, that all other criteria in WCC 22.05.026 are satisfied. (Ord. 2016-035 § 1 (Exh. A), 2016; Ord.
2016-011 § 1 (Exh. C), 2016; Ord. 2013-028 § 2 Exh. B, 2013; Ord. 2012-032 § 2 Exh. B, 2012; Ord. 2011-
013 § 2 Exh. B, 2011; Ord. 2004-041 § 1, 2004; Ord. 2004-014 § 2, 2004; Ord. 2002-017 § 1, 2002; Ord.
2000-006 § 7, 2000; Ord. 99-067, 1999; Ord. 96-056 Att. A § T1, 1996; Ord. 90-124, 1990; Ord. 88-29,
1988; Ord. 87-12, 1987; Ord. 87-11, 1987).
3
PLN2021-00005 Approved by Whatcom County Council 111912022
EXHIBIT C
Amend WCC 20.83, Nonconforming Uses and Parcels, as shown below.
20.83.020 Expansion of nonconforming use.
(1) Nonconforming uses may be extended throughout any building partially occupied by such use at the
time of passage of the ordinance codified in this section, except for nonconforming adult businesses,
which shall not be extended to other parts of the building.
(2) The expansion of a nonconforming use by addition or enlargement shall require a conditional use
permit, except for:
(a) Nonconforming adult businesses, which shall not be expanded; and
(b) Personal wireless service facilities regulated under WCC 20.13.070(1-3).
The expansion must be on the parcel as it existed at the time the use became nonconforming and the
use shall not expand on adjacent parcel(s). The expansion shall be approved if it is consistent with the
applicable zoning regulations except the use restrictions and complies with WCC 22.05.026(3)(b) to (i).
(3) For the purposes of this section, the expansion of a nonconforming surface mining operation (which
requires a conditional use permit) shall mean:
(a) Any lateral excavation outside of the footprint of the nonconforming mine as it existed on the
effective date of the amendment codified in this subsection; or
(b) Any further excavation within a five-year time of travel boundary for delineated wellhead protection
areas (areas within the one-year and two-year time of travel boundaries are included in the five-year
time of travel boundary); or
(c) Any further excavation within 10 feet of the seasonal high water table if mining is within a 10-year
time of travel boundary for delineated wellhead protection areas, but outside of a five-year time of
travel boundary; or
(d) Any further excavation within five feet of the seasonal high water table if mining is within a critical
aquifer recharge area, but outside of the 10-year time of travel boundary for delineated wellhead
protection areas.
This subsection (3) does not apply to mining operations conducted in accordance with a previously
approved conditional use permit, mining operations conducted in accordance with a previously
approved county surface mining permit, nor to mining operations within the mineral resource lands
overlay zone that have obtained administrative approval. Subsections (3)(b) and (3)(c) of this section do
not apply when the well was drilled after the effective date of the amendment codified in this
subsection.
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Approved by Whatcom County Council 111912022
(4) Whatcom County shall not pursue enforcement action for failure to possess a conditional use permit
against any operator or owner of a nonconforming surface mining operation if all of the following
circumstances apply:
(a) The owner or operator demonstrates that this section would require them to cease operations until
they obtained a conditional use permit; and
(b) The owner or operator applies for a conditional use permit:
(i) Within 120 days of the effective date of the amendment codified in this subsection; or
(ii) Within 120 days of the date the mine owner or operator is notified of the new wellhead protection
area, if the new wellhead protection area is established after the effective date of the amendment
codified in this subsection for an existing well; and
(c) The owner or operator continues to actively seek the conditional use permit after the application is
submitted. (Ord. 2016-011 § 1 (Exh. J), 2016; Ord. 2001-047 § 1, 2001; Ord. 99-070 § 2, 1999; Ord. 88-
29, 1988).
PLN2021-00005 Approved by Whotcom County Council 111912022
MA:I
Amend WCC 20.97, Definitions, as shown below.
ASS
PLN2021-00005 Approved by Whatcom County Council 111912022
4AT M I Vall kid
Amend WCC 22.05, Project Permit Procedures, as shown below.
Chapter 22.05 PROJECT PERMIT PROCEDURES
Sections:
22.05.010 Purpose and applicability.
22.05.020 Project permit processing table.
22.05.024 Variances.
22.05.026 Conditional use permits.
22.05.028 Administrative approval uses.
22.05.030 Consolidated permit review.
22.05.040 Pre -application conference.
22.05.050 Application and determination of completeness.
22.05.060 Vesting.
22.05.070 Notice of application.
22.05.080 Posting of application.
22.05.090 Open record hearings.
22.05.100 Consistency review and recommendations.
22.05.110 Final decisions —Type I, II, and III applications.
22.05.120 Recommendations and final decisions —Type IV applications.
22.05.125 Proof of insurance for hazards created in the county.
22.05.126 Supplemental procedures for fossil fuel refinery and fossil fuel transshipment facility permitting.
22.05.130 Permit review time frames.
22.05.140 Expiration of project permits.
22.05.150 Permit revocation procedure.
22.05.160 Appeals.
22.05.170 Annual report.
22.05.180 Interpretation, conflict and severability.
1
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Approved by Whatcom County Council 111912022
22.05.010 Purpose and applicability.
(1) The purpose of this chapter is to combine and consolidate the application, review, and approval
processes for project permits and appeals as defined in WCC 20.97.321. It is further intended for this
chapter to comply with the provisions of Chapter 36.70B RCW and federal laws and regulations relating
to personal wireless service facilities (47 US Code Sections 253, 332, and 1455 and 47 CFR Sections
1.6001 through 1.6100). These procedures provide for a consolidated land use permit process and
integrate the environmental review process with the procedures for review of land use decisions.
(2) This chapter applies to the processing of project permit applications for development and appeals
related to the provisions of WCC Title 15, Buildings and Construction; WCC Title 16, Environment; WCC
Title 17, Flood Damage Prevention; WCC Title 20, Zoning; WCC Title 21, Land Division Regulations; and
WCC Title 23, Shoreline Management Program. The provisions of this chapter shall apply to all project
permit applications as defined in RCW 36.70B.020, and other administrative decisions, as listed in the
table in WCC 22.05.020.
(3) The meaning of words used in this chapter shall be as defined in Chapter 20 WCC. (Ord.2019-013
§ 1 (Exh. A); Ord. 2018-032 § 1 (Exh. A)).
22.05.020 Project permit processing table.
(1) Marked boxes in the table below indicate the required general steps for processing all project permit
applications or administrative actions. The requirements for each step listed in the top row of the table
are provided in WCC 22.05.040 through 22.05.160, as indicated. Specific requirements for each project
permit can be found through the references given in the table.
WCC
Pre -
Determination
Notice of
Site.
Notice of open,
County
Application
Application
Posting
Open Record '
Decision
Appeal Body
Permit Application
Reference for
Required
of Complete-
Required
Required
Record Nearing
Hearing Held By:
Maker
(see 2111.210, 22.05.'
Processing Table
Specific
(see 22.05.
ness Required
(see 22.05.
(See 22.05
Required,
_ (see 22.05 090) -
(see2:11.210,
160 23.60.150(H))
Requirements
040);
(see 22.05.050)
On)
080)
(see 22.05,090)
22.05.120)
Type I Applications (Administrative
Decision with
No Public Notice
or, Hearing)
Boundary Line
21.03
✓
Director
Hearing Examiner
Adjustment
Building Permit
15.04
✓ (f)
✓
Director
Hearing Examiner
0)
Natural Resource
Title 16
✓
Director
Hearing Examiner
Assessment
2
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Commercial Site
✓
Director
Hearing Examiner
Plan Review
Exempt Land
21.03
✓
Director
Hearing Examiner
Division
Floodplain
Title 17
Director
Hearing Examiner
Development
Permit
Land Disturbance
15.04 and 20
✓
Director
Hearing Examiner
Permit
.80
Lot of Record/Lot
20.83 and 20
✓
Director
Hearing Examiner
Consolidation
.97.220
Nonconforming
20.83
✓
Director
Hearing Examiner
Use
Removal of
20.80.738(3)
Development
Moratorium
Shoreline
23.60
✓ (a)
✓
Director
Hearing Examiner
Exemption
Zoning
22.20
Director
Hearing Examiner
Interpretation
Permitted
20.13
✓
Director
Court of competent
Personal Wireless
jurisdiction
Service Facilities
Administrative 22.05.028 ✓ ✓ ✓ ✓ Director Hearing Examiner
Use
Administrative 20.13 ✓ ✓ ✓ Director Court of competent
Use for Personal jurisdiction
Wireless Service
Facilities
3
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Approved by Whatcom County Council 111912022
Lot Consolidation
20.83.070
✓
✓
✓
Director
Hearing Examiner
Relief
Reasonable Use
16.16
✓
✓
✓
Director
Hearing Examiner
(b)
Shoreline
23.60
✓ (a)
✓
✓
✓
Director (d)
Shorelines Hearings
Substantial (c)
Board (h)
Shoreline
23.60
✓ (a)
✓
✓
✓
Director (d)
Hearing Examiner
Conditional Use (c)
Zoning or Critical
22.05.024
✓
✓
Director
Hearing Examiner
Areas Variance,
Minor
Zoning or Critical
22.05.024
✓
Director
Court of Competent
Areas Variance,
Jurisdiction
Minor
for Personal
Wireless Service
Facilities
Short Subdivision 121.04 ) ✓ I ✓ I ✓ I ✓ I I ( Director I Hearing Examiner
Conditional Use
22.05.026
✓
✓
✓
✓
✓
Hearing
Hearing
Superior Court
Examiner
Examiner
Conditional Use
WCC 20.13
✓
✓
✓
✓
Hearing
Hearing
Court of Competent
for Personal
Examiner
Examiner
Jurisdiction
Wireless Service
Facilities
Floodplain
Title 17
✓
✓
✓
✓
Hearing
Hearing
Superior Court
Development
Examiner
Examiner
Variance
Long Subdivision
21.05
✓
✓
✓
✓
✓
Hearing
Hearing
Superior Court
Examiner
Examiner (g)
n
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Approved by Whatcom County Council 111912022
Binding Site Plan
21.07
✓
✓
✓
✓
✓
Hearing
Hearing
Superior Court
Examiner
Examiner (g)
Reasonable Use
16.16
✓
✓
✓
✓
✓
Hearing
Hearing
Superior Court
(e)
Examiner
Examiner
Removal of
20.80.738(2)
✓
✓
✓
✓
Hearing
Hearing
Superior Court
Development
Examiner
Examiner
Moratorium
Shoreline
23.60
✓ (a)
✓
✓
✓
✓
Hearing
Hearing
Shorelines Hearings
Conditional Use
Examiner
Examiner (d)
Board (h)
Shoreline
23.60
✓ (a)
✓
✓
✓
✓
Hearing
Hearing
Shorelines Hearings
Substantial
Examiner
Examiner (d)
Board (h)
Shoreline Variance
23.60
✓ (a)
✓
✓
✓
✓
Hearing
Hearing
Shorelines Hearings
Examiner
Examiner (d)
Board (h)
Zoning or Critical
22.05.024 or
✓
✓
✓
✓
✓
Hearing
Hearing
Superior Court
Areas Variance,
16.16.273
Examiner
Examiner
Major
Zoning or Critical
22.05.024 or
✓
✓
✓
✓
Hearing
Hearing
Court of Competent
Areas Variance,
16.16.273
Examiner
Examiner
Jurisdiction
Major
For Personal
Wireless Service
Facilities
Type IV Applications
(County Council Decision with Public Notice and'Public
Hearing)',
Development
2.11.205
✓
✓
✓
✓
✓
Hearing
County
Superior Court
Agreement
Examiner
Council
Major Project
20.88
✓
✓
✓
✓
✓
Hearing
County
Superior Court
Permit
Examiner
Council
Planned Unit
20.85
✓
✓
✓
✓
✓
Hearing
County
Superior Court
Development
Examiner
Council
Check marks indicate a step is required; reference letters refer to the notes in subsection (2) of this
section.
5
PLN2021-00005
Approved by Whatcom County Council 111912022
(2) Project Permit Processing Table Notes. As indicated in the table in subsection (1) of this section,
project permits are subject to the following additional requirements:
(a) Pre -application conference subject to WCC Title 23, Shoreline Management Program.
(b) Single-family residential uses in critical areas or critical area buffers, except all uses in
geological hazardous areas and setbacks.
(c) Shoreline permit public hearing decision determined pursuant to WCC Title 23, Shoreline
Management Program. If a public hearing is required the shoreline permit shall be processed as
a Type III application.
(d) Pursuant to Chapters 23.60 and 23.70 WCC, final administrative determinations or decisions
as appropriate shall be filed with, or approved by, the Washington State Department of Ecology.
(e) All uses in geological hazardous areas and setbacks and all non -single-family residential uses
in critical areas or critical area buffers.
(f) Building permit pre -application conference, subject to WCC 15.04.020(A)(3)(a).
(g) The hearing examiner may choose to consult with the development standards technical
advisory committee concerning technical matters relating to land division applications.
(h) Whatcom County shall consider an appeal of a decision on a shoreline substantial
development permit, shoreline variance, or shoreline conditional use only when the applicant
waives his/her right to a single appeal to the Shorelines Hearings Board. When an applicant has
waived his/her right to a single appeal, such appeals shall be processed in accordance with the
appeal procedures of section WCC 23.60.150(H).
(i) Except that appeals of WCC Title 15 fire and building code requirements shall be made tothe
board of appeals per current building code, as adopted in WCC 15.04.010. (Ord. 2020-045 § 1
Exh. A; Ord. 2018-032 § 1 (Exh. A)).
22.05.024 Variances.
(1) Variances from the terms of WCC Title 20 (Zoning) or Chapter 16.16 WCC (Critical Areas) may be
authorized in specific cases that will not be contrary to the public interest, and where, due to special
conditions, literal enforcement of the provisions of those codes would result in unnecessary hardship.
Generally, variances shall only be considered for dimensional standards, unless otherwise specified in
those codes. Under no circumstances shall a variance be granted that allows a use not permissible or
otherwise prohibited in the zoning district in which the subject property is located.
(2) There are two types of variances: Minor and Major Variances.
PLN2021-00005
Approved by Whatcom County Council 111912022
(a) Minor variances include those that are unlikely to have impacts on surrounding properties or
people or need to be processed more rapidly to meet federal time frames. These shall be limited
to variances for:
(i) A reduction of up to 10 percent of a front yard setback;
(ii) A reduction in parking stall dimensions down to nine feet by 18 feet.
(iii) The following personal wireless service facilities: Small wireless facilities, provided
that a variance shall not be granted that would alter the dimensional, bulk, numerical,
or other criteria in the definition of small wireless facility in WCC 20.13.
(b) Major variances include all other variances.
(3) The appropriate decision maker, as specified in WCC 22.05.020 (Project permit processing table) shall
have the authority to grant variances when the conditions set forth in subsection (4) of this section have
been found to exist. In such cases, a variance may be granted so that the spirit of the county's land use
codes shall be observed, public safety and welfare secured, and substantial justice done.
(4) Before any variance may be granted, it shall be shown that the following circumstances are found to
apply:
(a) That any variance granted shall not constitute a grant of special privilege, be based upon
reasons of hardship caused by previous actions of the property owner, nor be granted for
pecuniary reasons alone;
(b) Because of special circumstances applicable to the subject property, including size,shape,
topography, location, or surrounding, the strict application of WCC Title 20 (Zoning) or
Chapter 16.16 WCC (Critical Areas Ordinance) is found to cause a hardship and deprive the
subject property of a use or improvement otherwise allowed in its zoning district. Aesthetic
considerations or design preferences without reference to restrictions based upon the physical
characteristics of the property do not constitute sufficient hardship under this section;
(c) The granting of the variance will not be materially detrimental to the public welfare, or
injurious to the property or improvements in the vicinity and zone in which the subject property
is situated. (Ord. 2020-045 § 1 Exh. A).
22.05.026 Conditional use permits.
(1) Application. Conditional use permit applications shall be processed per the provisions of thischapter.
(2) Conditional use permits shall be nontransferable unless said transfer is approved by the hearing
examiner.
PLN2021-00005
Approved by Whotcom County Council 111912022
(3) Approval Criteria. Before approving an application, the director or hearing examiner shall ensure that
any specific standards of the zoning district defining the use are fulfilled, and shall find adequate
evidence showing that the proposed use at the proposed location:
(a) Will be harmonious and in accordance with the general and specific objectives of Whatcom County's
Comprehensive Plan, zoning regulations, and any other applicable regulations.
(b) Will be designed, constructed, operated, and maintained so as to be harmonious and appropriate in
appearance with the existing or intended character of the general vicinity, and that such use will not
change the essential character of the same area.
(c) If located in a rural area (as designated in the Comprehensive Plan), will be consistent with rural land
use policies as designated in the rural lands element of the Comprehensive Plan.
(d) Will not be hazardous or disturbing to existing or future neighboring uses.
(e) Will be serviced adequately by necessary public facilities such as highways, streets, police and fire
protection, drainage structures, refuse disposal, water, sewers, and schools; or that the persons or
agencies responsible for the establishment of the proposed use shall be able to provide adequately any
such services.
(f) Will not create excessive additional requirements at public cost for public facilities and services, and
will not be detrimental to the economic welfare of the community.
(g) Will not involve uses, activities, processes, materials, equipment, and conditions of operation that
will be detrimental to any persons, property, or the general welfare by reasons of excessive production
of traffic, noise, smoke, fumes, glare or odors.
(h) Will have vehicular approaches to the property which shall be so designed as not to create an
interference with traffic on surrounding public streets.
(i) Will not result in the destruction, loss or damage of any natural, scenic, or historic feature of major
importance.
(4) Approval Criteria for Expansion of Fossil Fuel Refineries Pursuant to WCC 20.68.153 and Expansion of
Fossil Fuel Transshipment Facilities Pursuant to WCC 20.68.154. Before approving an application, the
hearing examiner shall ensure that any specific standards of the zoning district defining the use are
fulfilled, and shall find adequate evidence showing that:
(a) The conditional use permit approval criteria listed under subsection (3) of this section are met;
(b) Within shorelines, if applicable, county approval shall be contingent upon approval of a shoreline
permit;
(c) The applicant has documented to the county decision maker (as applicable):
PLN2021-00005
Approved by Whotcom County Council 111912022
(i) All of the anticipated types and volumes of substances to be processed, stored, or transferred in bulk
with the proposed expansion;
(ii) Changes in the maximum transshipment capacity or the maximum atmospheric crude distillation
capacity occurring as a result of the proposed expansion, as applicable; and
(iii) The mode of shipment vessels to be loaded or unloaded with the proposed equipment and/or as a
result of the proposed expansion.
The permit shall be limited exclusively to those types and volumes of materials or products as
documented and approved.
(d) Insurance requirements meet the provisions of WCC 22.05.125.
(e) Mitigation of transportation impacts consistent with Chapter 20.78 WCC, Transportation
Concurrency Management, and Chapter 16.24 WCC, Commute Trip Reduction.
(f) Mitigation of impacts to other services including fire and emergency response capabilities, water
supply and fire flow, to address risks created by expansions.
(g) Plans for stormwater and wastewater releases have been approved.
(h) Prior to commencement of any site preparation or construction activities, all necessary state leases
shall be acquired for any piers or aquatic lands improvements, and it shall be demonstrated to the
zoning administrator that the project applicant has met any federal or state permit consultation
requirements, including tribal treaty rights or the provisions of the Magnuson Amendment through state
and federal permitting decisions.
(i) The county decision maker may approve a conditional use permit with a condition to obtain relevant
leases and complete any necessary federal and state permitting requirements, and may restrict the
conditional use permittee from undertaking site preparation or construction activities until it has
fulfilled that condition.
(j) The permittee must inform the county permitting authorities of a change in the aforementioned
disclosures so that the department can document current capacity levels to ensure that the cumulative
thresholds under WCC 20.68.153 or 20.68.154 (as applicable) have not been exceeded.
(k) The county decision maker shall include, in any approval of an application for an expansion, as per
WCC 20.68.153 or 20.68.154, a condition that the permitted equipment shall only be used in the
manner described by the project proponent in the application a,nd approved in the permit.
The application shall describe the intended use, including the type of fuel to be stored and, if located at
a fossil fuel refinery or renewable fuel refinery, whether the equipment will or will not be used for
transshipment.
PLN2021-00005
Approved by Whatcom County Council 111912022
(5) Revisions. The hearing examiner may administratively approve revisions to conditional use permits;
provided, that the proposed changes are within the scope and intent of the original permit. "Within the
scope and intent of the original permit" shall mean the following:
(a) Lot coverage and height may be increased a maximum of 10 percent from the provisions of the
original permit; provided, that:
(i) Revisions involving new structures not shown on the original site plan shall require a new permit;
(ii) Any revisions shall not exceed height, lot coverage, setback, or any other requirements of the
regulations for the area in which the project is located; and
(iii) Any revisions shall be reviewed for consistency with the Comprehensive Plan;
(b) Landscaping may be added to a project without necessitating an application for a new permit;
provided, that the landscaping is consistent with conditions (if any) attached to the original permit and is
consistent with the regulations for the area in which the project is located;
(c) The use authorized pursuant to the original permit is not changed;
(d) No additional over -water construction will be involved for shoreline conditional use permits;
(e) No substantial increase in adverse environmental impact will be caused by the project revision. (Ord.
2021-046 § 4 (Exh. D); Ord. 2020-045 § 1 Exh. A).
22.05.028 Administrative approval uses.'
(1) Administrative approval applications shall be processed per the provisions of this chapter.
(2) The director of planning and development services is authorized to approve, approve with
conditions, or deny all administrative approval use applications.
(3) Approval Criteria. Decisions for all administrative approval use permits shall be based upon
compliance with:
(a) The criteria established for the proposed use in the appropriate zone district;
(b) The Comprehensive Plan policies governing the associated land use designation;
(c) In rural areas, consideration will be given to the cumulative impacts of permitted uses in relation to
the governing Comprehensive Plan policies and zoning district; and
(d) The criteria of WCC 22.05.026(3) (conditional use permits, approval criteria).
(e) Additionally, decisions for administrative approval use permits for adult businesses shall be based on
the criteria in subsection (4) of this section.
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(4) Additional Approval Criteria for Adult Businesses. Prior to granting administrative approval for an
adult business, the director shall find that the proposed use at the proposed location satisfies or will
satisfy all the following criteria:
(a) The adult business will be consistent with WCC 20.66.131 (Light Impact Industrial District,
Administrative approval uses).
(b) The adult business shall be closed from 2:00 a.m. to 10:00 a.m. if it contains:
(i) An adult eating or drinking establishment; or
(ii) An adult theater; or
(iii) Another adult commercial establishment; or
(iv) One or more viewing booths.
(c) If the adult business includes one or more viewing booths, the interior of the adult business will
incorporate all of the following measures:
(i) Each viewing booth shall have at least a three -foot -wide opening where a customer enters and exits
the booth that is without doors, physical barriers, or visual barriers; and
(ii) Each viewing booth shall have at least one 100-watt light bulb that is properly working and turned on
when business is open. The light bulb shall not be covered or otherwise shielded except with a
commercially available lighting fixture. A minimum of one 12-inch by 12-inch durable metal sign shall be
located at the entrance to each viewing booth area stating that lights shall remain on; and
(iii) Aisles or hallways adjacent to viewing booths shall be a minimum of five feet wide; and
(iv) There shall be no holes or openings in common walls between viewing booths.
(d) Additionally for adult businesses containing one or more viewing booths, a condition of approval
shall allow an unannounced inspection by Whatcom County every six months during business hours to
ensure that measures in subsections (4)(c)(i) through (iv) of this section are being implemented on an
ongoing basis.
(5) Revisions. The director may approve revisions to administrative approval use permits; provided, that
the proposed changes are within the scope and intent of the original permit. "Within the scope and
intent of the original permit" shall mean the following:
(a) Lot coverage and height may be increased a maximum of 10 percent from the provisions of the
original permit; provided, that:
(i) Revisions involving new structures not shown on the original site plan shall require a new permit; and
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(ii) Any revisions shall not exceed height, lot coverage, setback, or any other requirements of the
regulations for the area in which the project is located; and
(iii) Any revisions shall be reviewed for consistency with the Comprehensive Plan;
(b) Landscaping may be added to a project without necessitating an application for a new permit;
provided, that the landscaping is consistent with conditions (if any) attached to the original permit and is
consistent with the regulations for the area in which the project is located;
(c) The use authorized pursuant to the original permit is not changed;
(d) No additional over -water construction will be involved for shoreline conditional use permits;
(e) No substantial increase in adverse environmental impact will be caused by the project revision. (Ord.
2020-045 § 1 Exh. A).
22.05.030 Consolidated permit review.
The county shall integrate and consolidate the review and decision on two or more project permits
subject to this chapter that relate to the proposed project action unless the applicant requests
otherwise. Consolidated Type I, II, III and IV permits shall be reviewed under the process required for the
permit with the highest process type number per WCC 22.05.020. Level IV is considered the highest and
Level I is considered the lowest process type. (Ord. 2018-032 § 1 (Exh. A)).
22.05.040 Pre -application conference.
The purpose of a pre -application conference is to assist applicants in preparing development
applications for submittal to the county by identifying applicable regulations and procedures. It is not
intended to provide a staff recommendation on future permit decisions. Pre -application review does not
constitute acceptance of an application by the county nor does it vest an application, unless otherwise
indicated in Whatcom County Code.
(1) A pre -application conference is required as indicated in WCC 22.05.020, unless the director or
designee grants a written waiver. For other permits, the applicant may request a pre -application
conference.
(2) The county shall charge the applicant a fee for a pre -application conference per the unified fee
schedule. If the county makes a determination of completeness on a project permit submitted within
one year of the notice of site -specific submittal requirements per subsection (6) of this section, the pre -
application fee shall be applied to the application cost.
(3) It is the responsibility of the applicant to initiate a pre -application conference through a written
application. The application shall, at a minimum, include all items identified on the pre -application form
and the department's administrative manual. The applicant may provide additional information to
facilitate more detailed review.
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(4) A pre -application conference shall be scheduled as soon as possible and held no later than 30
calendar days from the date of the applicant's request, unless agreed upon by the applicant and the
county.
(5) The county shall invite the appropriate city to the pre -application meeting if the project is located
within that city's urban growth area or which contemplates the use of any city utilities. Notice shall also
be given to appropriate public agencies and public utilities, if within 500 feet of the area submitted in
the application.
(6) The county should provide the applicant with notice of site -specific submittal requirements for
application no later than 14 calendar days from the date of the conference.
(7) A new pre -application conference shall be required if an associated project permit application is not
filed with the county within one year of the notice of site -specific submittal requirements persubsection
(6) of this section or the application is substantially altered, unless waived per WCC 22.05.040(1). (Ord.
2018-032 § 1 (Exh. A)).
22.05.050 Application and determination of completeness.
(1) Project permit applications shall be submitted using current forms provided by the review authority.
The submittal shall include: all applicable fees per Chapter 22.25 WCC, all materials required by the
department's administrative manual, and all items identified in the pre -application notice of site -specific
submittal requirements, except for personal wireless service facilities which shall be as follows:
(a) Eligible Facility Requests - The county shall prepare and make publicly available an
"Eligible Facilities Request Application" form used to determine whether a proposal
qualifies as an eligible facilities request. An applicant's submittal of a completed "Eligible
Facilities Request Application" is the first procedural step in the county's application
process. The county may require the applicant to provide documentation or information
only to the extent reasonably related to determining whether the request meets the
definition and requirements for an eligible facilities request. The county 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. The applicant shall submit
applicable fees per Chapter 22.25 WCC.
(b) The county shall prepare and make publicly available a "Small Wireless Facility
Application" form used to determine whether a proposal qualifies as a small wireless
facility. An applicant's submittal of a completed "Small Wireless Facility Application" is
the first procedural step in the county's application process. The applicant shall submit
applicable fees per Chapter 22.25 WCC.
(c) The county shall prepare and make publicly available a "Macro Wireless Facility
Application" form for projects that do not qualify as an exempt activity pursuant to WCC
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20.13.030, eligible facilities request, or small wireless facility. An applicant's submittal
of a completed "Macro Wireless Facility Application" is the first procedural step in the
county's application process. The applicant shall submit applicable fees per
Chapter 22.25 WCC.
(2) Upon submittal by the applicant, the county will accept the application and note the date of receipt.
Receipt of an application does not constitute approval of the project proposal.
(3) The county shall provide to the applicant a written determination which states either that the
application is complete or the application is incomplete within:
(a) 10 calendar days of receiving a wireless eligible facilities request application;
(b) 10 calendar days of receiving a small wireless facility application;
(c) 30 calendar days of receiving a macro wireless facility application; and
(d) 14 calendar days of receiving all other applications.
To the extent known by the county, other agencies of local, state, or federal government that may have
jurisdiction shall be identified on the determination.
(4) A project permit application (other than for personal wireless service facilities) is complete when it
meets the submittal requirements of the department's administrative manual, includes items identified
through the pre -application conference process and contains sufficient information to process the
application even if additional information will be required. A project permit application for personal
wireless service facilities is complete when the application required pursuant to WCC 22.05.050(1) is
entirely filled out with the required information, as set forth in the department's administrative manual,
and submitted to the county. A determination of completeness shall not preclude the county from
requiring additional information or studies at any time prior to permit approval. A project permit
application (other than for personal wireless service facilities) shall be deemed complete under this
section if the county does not issue a written determination to the applicant that the application is
incomplete by the end of the fourteenth calendar day from the date of receipt. A project permit
application for personal wireless service facilities is subject to the tolling provisions of WCC 22.05.130
(tolling refers to the time excluded from the permit review time frame).
(5) If the application is determined to be incomplete, the following shall take place:
(a) The county will notify the applicant that the application is incomplete and indicate what is
necessary to make the application complete.
(b) The applicant shall have 90 calendar days from the date that the notification was issued to
submit the necessary information to the county. If the applicant does not submit the necessary
information to the county in writing within the 90-day period, the application shall be rejected.
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The director or designee may extend this period for an additional 90 calendar days upon written
request by the applicant.
(c) Upon receipt of the necessary information, the county shall have 14 calendar days (10 days
for personal wireless service facilities) to make a determination and notify the applicant
whether the application is complete or what additional information is necessary.
(6) A determination of an incomplete application is an appealable final administrative determination,
subject to WCC 22.05.160(1). (Ord. 2018-032 § 1 (Exh. A)).
22.05.060 Vesting.
(1) Complete Applications. For a project permit application the department has determined to be
complete per WCC 22.05.050(4), the application shall be considered under the zoning or other land use
control ordinances in effect on the date the application was submitted to the department.
(2) Incomplete Applications. For a project permit application the department has determined to be
incomplete per WCC 22.05.050(5), the application shall be considered under the zoning or other land
use control ordinances in effect on the date the department determines the application to be complete
based on the necessary information required by the department.
(3) Applications Subject to Pre -Application Conference. Notwithstanding the provisions of subsections
(1) and (2) of this section, for a project permit application that is (a) subject to a pre -application
conference per WCC 22.05.020 and 22.05.040, (b) submitted no more than 28 calendar days from the
date the department issued its notice of site -specific submittal requirements, and (c) determined
complete by the department, the application shall be considered under the zoning or other land use
control ordinances in effect on the date the pre -application conference request was submitted to the
department.
(4) Continuation of Vesting. Building or land disturbance permit applications that are required to
complete a valid (i.e., not expired) project permit approval for project permits identified in the following
list (subsections (4)(a) through (m) of this section) shall vest to the zoning and land use control
ordinances in effect at the time the project permit application identified below was determined
complete:
(a) Administrative use;
(b) Commercial site plan review;
(c) Conditional use;
(d) Critical areas variance;
(e) Major project permit;
(f) Natural resource review;
(g) Planned unit development;
(h) Reasonable use (Type II and III);
(i) Shoreline conditional use permit;
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(j) Shoreline exemption;
(k) Shoreline substantial;
(1) Shoreline variance;
(m) Zoning variance.
(5) Building Permit Applications within Recorded Long and Short Subdivisions and Binding Site Plans.
Building permit applications, including associated land disturbance permits, shall be governed by
conditions of approval, statutes, and ordinances in effect at the time of final approval pursuant to
RCW 58.17.170. Vesting duration for those building permit applications shall be governed by the time
limits established for long subdivisions in RCW 58.17.170, unless the county finds that a change in
conditions creates a serious threat to the public health or safety.
(6) Building and Fire Code Requirements. Building and fire code provisions adopted per WCC
Title 15 vest at the time a building permit application is determined complete.
(7) Duration. Vesting status established through subsections (1) through (5) of this section runs with the
application and expires upon denial of the application by the county, withdrawal of the application by
the applicant, rejection of the application per WCC 22.05.050(5), expiration of the application per
WCC 22.05.130(1)(a)(i), or expiration of the approved permit per WCC 22.05.140. (Ord. 2018-032 § 1
(Exh. A)).
22.05.070 Notice of application.
(1) For Type II, III, and IV applications per WCC 22.05.020, the county shall issue a notice of application
within 14 calendar days of a determination of completeness. The date of notice shall be the date of
mailing.
(2) If the county has made a State Environmental Policy Act (SEPA) threshold determination of
significance concurrently with the notice of application, the county shall combine the determination of
significance and scoping notice with the notice of application.
(3) Notice shall include:
(a) The date of application, the date of determination of completeness for the application, and the date
of the notice of application;
(b) A description of the proposed project action and a list of the project permits included in the
application, and, if applicable, a list of any studies requested by the county;
(c) The identification of other permits not included in the application to the extent known by thecounty;
(d) The identification of environmental reviews conducted, including notice of existing environmental
documents that evaluate the proposed project (including but not limited to reports, delineations,
assessments and/or mitigation plans associated with critical area reviews) and, if not otherwise stated
on the document providing notice of application, the location where the application and any studies can
be reviewed;
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(e) Any other information determined appropriate by the county;
(f) A statement indicating those development regulations that will be used for project mitigation or a
determination of consistency if they have been identified at the time of notice;
(g) A statement of the minimum public comment period which shall be 14 calendar days for all project
permits except for shoreline substantial development, shoreline conditional use, shoreline variance and
major project permits for mitigation banks which shall have a minimum comment period of no more
than 30 calendar days;
(h) A statement of the right of any person to comment on the application and receive notice of and
participate in any hearings, request a copy of the decision once made and to appeal a decision when
allowed by law. The department may accept public comments at any time prior to the close of the open
record public hearing, or if there is no public hearing, prior to the decision on the project permit. In
addition, the statement shall indicate that any person wishing to receive personal notice of any
decisions or hearings must notify the department.
(i) Notices relating to personal wireless service facilities may state the federal preemption of local
regulation of radio frequency emissions.
(4) The department shall issue a notice of application in the following manner:
(a) The notice shall be published once in the official county newspaper and on the Whatcom County
website. The applicant shall bear the responsibility of paying for such notice.
(b) Additional notice shall be given using the following method:
(i) For sites within urban growth areas: Application notice shall be sent to all property owners within 300
feet of the external boundaries of the subject property as shown by the records of the county assessor,
except that for personal wireless service facilities, notice shall be sent to all property owners within
1,000' of the external boundaries of the subject property as shown by the records of the county
assessor;
(ii) For sites outside urban growth areas: Application notice shall be sent to all property owners within
1,000 feet of the external boundaries of the subject property as shown by the records of the county
assessor.
(5) The county shall send notices of application to neighboring cities and other agencies or tribes that
will potentially be affected, either directly or indirectly, by the proposed development. Notice shall also
be given to public utilities, if within 500 feet of the area submitted in the application.
(6) All public comments received on the notice of application must be received by the department of
planning and development services by 4:30 p.m. on or before the last day of the comment period.
(7) Except for a determination of significance, the county shall not issue its SEPA threshold
determination or issue a decision or recommendation on a permit application until the end of thepublic
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comment period on the notice of application. If an optional determination of nonsignificance (DNS)
process is used, the notice of application and DNS comment period shall be combined.
(8) Public notice given for project permit applications, SEPA documents, project hearings, and appeals
hearings as required by this chapter and other provisions of the county code may be combined when
practical, where such combined notice will expedite the permit review process, and where provisions
applicable to each individual notice are met through the combined notice. (Ord. 2018-032 § 1 (Exh.A)).
22.05.080 Posting of application.
Where posting of public notice is required per WCC 22.05.020, the department shall post public notices
of the proposal on all road frontages of the subject property and adjacent shorelines on or before the
notice of application date and shall be visible to adjacent property owners and to passing motorists. Said
notices shall remain in place until three days after the comment period closes. (Ord. 2018-032 § 1(Exh.
A)).
22.05.090 Open record hearings.
As shown in WCC 22.05.020 (Project permit processing table), Type III and Type IV applications and
appeals of some Type I and Type II applications require an open record public hearing before the hearing
examiner. These hearings are subject to the following:
(1) Open Record Hearing Notice.
(a) The hearing examiner shall publish a notice of open record hearing once in the official county
newspaper and on the Whatcom County website at least 14 calendar days prior to the hearing. The
notice shall consist of the date, time, place, and type of the hearing. In addition, personal notice shall be
provided to any person who has requested such notice in a timely manner, consistent with
WCC 22.05.070(3)(h).
(b) Within two days of the published notice the applicant shall be responsible for posting three copies of
the notice in a conspicuous manner on the property upon which the use is proposed. Notices shall be
provided by the hearing examiner.
(c) An affidavit verifying distribution of the notice must be submitted to the hearing examiner two
working days prior to the open record hearing.
(d) The hearing examiner shall send notice of an open record hearing to neighboring cities and other
agencies or tribes that will potentially be affected, either directly or indirectly by the proposed
development. The hearing examiner shall be responsible for such notification.
(e) The applicant shall pay all costs associated with providing notice.
(2) One Open Record Hearing. A project proposal subject to this chapter shall be provided with no more
than one open record hearing and one closed record hearing pursuant to Chapter 36.7013 RCW.This
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restriction does not apply to an appeal of a determination of significance as provided in
RCW 43.21C.075.
(3) Combined County and Agency Hearing. Unless otherwise requested by an applicant, the county shall
allow an open record hearing to be combined with a hearing that may be necessary by another local,
state, regional, federal or other agency for the same project if the joint hearing can be held within the
time periods specified in Chapter 22.05 WCC, or if the applicant agrees to waive such time periods in the
event additional time is needed in order to combine the hearings. The combined hearing shall be
conducted in Whatcom County pursuant to Chapter 36.7013 RCW.
(4) Quasi-judicial actions, including applications listed as Type III and IV applications in WCC 22.05.020,
are subject to the appearance of fairness doctrine, Chapter 42.36 RCW. The hearing examiner shall
administer the open record hearing and issue decisions or recommendations in accordance with
Chapter 42.36 RCW. (Ord. 2020-045 § 1 Exh. A; Ord. 2018-032 § 1 (Exh. A)).
22.05.100 Consistency review and recommendations.
During project permit review, the review authority shall determine if the project proposal is consistent
with the county's comprehensive plan, other adopted plans, existing regulations and development
standards.
(1) For Type I and II applications, the conclusions of a consistency determination made under this
section shall be documented in the project permit decision.
(2) For Type III and IV applications the department shall prepare a staff report on the proposed
development or action. Staff shall file one consolidated report with the hearing examiner at least 10
calendar days prior to the scheduled open record hearing. The staff report shall:
(a) Summarize the comments and recommendations of county departments, affected agencies, special
districts and public comments received within the 14-day or 30-day comment period as established in
WCC 22.05.070(6).
(b) Provide an evaluation of the project proposal for consistency as indicated in this section.
(c) Include recommended findings, conclusions, and actions regarding the proposal.
(3) For all project permit applications except for personal wireless service facilities applications, if more
information is required to determine consistency at any time in review of the application, the
department may issue a notice of additional requirements. The notice of additional requirements shall
allow the applicant 180 calendar days from the date of issuance to submit all required information. The
director or designee may extend this period for no more than cumulative 24 months upon written
request by the applicant, provided the request is submitted before the end of the first 180-day period. A
notice of additional requirements is not a final administrative determination. (Ord. 2018-032 § 1(Exh.
A)).
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22.05.110 Final decisions —Type I, II, and III applications.
(1) The director or designee's final decision on all Type I or II applications shall be in the form of a
written determination or permit. The determination or permit may be granted subject to conditions,
modifications, or restrictions that are necessary to comply with all applicable codes.
(2) The hearing examiner's final decision on all Type III applications per WCC 22.05.020 or appeals per
WCC 22.05.160(1) shall either grant or deny the application or appeal.
(a) The hearing examiner may grant Type III applications subject to conditions, modifications or
restrictions that the hearing examiner finds are necessary to make the application compatible with its
environment, carry out the objectives and goals of the comprehensive plan, statutes, ordinances and
regulations as well as other official policies and objectives of Whatcom County.
(b) Requirements.
(i) Performance bonds or other security, acceptable to the prosecuting attorney, may be required to
ensure compliance with the conditions, modifications and restrictions.
(ii) Fossil or renewable fuel refinery or fossil or renewable fuel transshipment facilities: The applicant
shall provide insurance or other financial assurance acceptable to the prosecuting attorney consistent
with WCC 22.05.125.
(c) The hearing examiner shall render a final decision within 14 calendar days following the conclusion of
all testimony and hearings. Each final decision of the hearing examiner shall be in writing and shall
include findings and conclusions based on the record to support the decision.
(d) No final decision of the hearing examiner shall be subject to administrative or quasi-judicial review,
except as provided herein.
(e) The applicant, any person with standing, or any county department may appeal any final decision of
the hearing examiner to superior court, except as otherwise specified in WCC 22.05.020. (Ord. 2021-046
§ 4 (Exh. D); Ord. 2019-013 § 1 (Exh. A); Ord. 2018-032 § 1 (Exh. A)).
22.05.120 Recommendations and final decisions — Type IV applications.
(1) For Type IV applications per WCC 22.05.020 the hearing examiner's recommendations to the county
council may be to grant, grant with conditions or deny an application. The hearing examiner's
recommendation may include conditions, modifications or restrictions as may be necessary to make the
application compatible with its environment, carry out the objectives and goals of the comprehensive
plan, statutes, ordinances and regulations as well as other official policies and objectives of Whatcom
County.
(2) Each recommended decision of the hearing examiner for an application identified as a Type IV
application per WCC 22.05.020 shall be in writing to the clerk of the county council and shall include
findings and conclusions based upon the record to support the decision. Such findings and conclusions
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shall also set forth the manner in which the decision carries out and conforms to the county's
comprehensive plan and complies with the applicable statutes, ordinances or regulations.
(3) The deliberation of the county council on quasi-judicial actions shall be in accordance with
WCC 22.05.090(4) and Chapter 42.36 RCW.
(4) For planned unit developments and major project permits the following shall apply:
(a) The recommendation of the hearing examiner regarding planned unit developments and major
project permits shall be based upon the criteria set forth in WCC 20.85.335 and 20.88.130, respectively.
(b) The hearing examiner shall file the recommendation with the clerk of the county council within 21
calendar days following the conclusion of the open record hearing.
(c) The county council shall conduct the following within the specified time frames, except as provided in
subsection (4)(c)(iii) of this section:
(i) Hold a public meeting, not an open record public hearing, to deliberate on the project application
within 28 calendar days after receiving the hearing examiner's recommendation.
(ii) Issue a final written decision within 21 calendar days of the public meeting.
(iii) The county council may exceed the time limits in subsection (4)(c)(i) or (ii) of this section if the
county council meeting schedule does not accommodate a meeting within the above time frames, or if
the county council makes written findings that a specified amount of additional time is needed to
process a specific application or project type, per RCW 36.70B.080(1).
(5) The county council's final written decision may include conditions when the project is approved and
shall state the findings of fact upon which the decision is based.
(a) Performance bonds or other security, acceptable to the prosecuting attorney, may be required to
ensure compliance with the conditions, modifications and restrictions.
(b) Fossil or renewable fuel refinery or fossil or renewable fuel transshipment facilities: The applicant
shall provide insurance or other financial assurance acceptable to the prosecuting attorney consistent
with WCC 22.05.125.
(6) Any deliberation or decision of the county council shall be based solely upon consideration of the
record established by the hearing examiner, the recommendations of the hearing examiner and the
criteria set forth in applicable county code, the county Comprehensive Plan if applicable, and the county
Shoreline Management Program, including compliance with SEPA, Chapter 197-11 WAC (SEPA Rules) as
adopted and modified in the county code, and the county's adopted SEPA policies. (Ord. 2021-046 § 4
(Exh. D); Ord. 2018-032 § 1 (Exh. A)).
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22.05.125 Proof of insurance for hazards created in the county.
For expansion projects requiring approval under a conditional use permit or major project permit at new
or existing facilities per WCC 20.68.153 or 20.68.154, financial assurance for the benefit of Whatcom
County shall be required. For such expansion projects, a permittee must demonstrate proof of financial
assurance (such as trust funds, letters of credit, insurance, self-insurance, financial tests, corporate
guarantees, payment bonds, or performance bonds) sufficient to comply with the financial responsibility
requirements set forth in state and federal law, as applicable, prior to permit approval by a Whatcom
County decision maker. If the financial assurance is in the form of insurance policies, the policies must
name Whatcom County as an additional insured and provide Whatcom County with a certificate of
insurance to that effect.
The permittee must maintain the approved level of financial assurance coverage for new or expanded
uses while operating the permitted facility. At the request of the permittee, the Whatcom County
decision maker may approve new or altered forms of financial assurance to meet the requirements of
this section; provided, that the new or altered form is consistent with the scope and intent of the
original permit condition. (Ord. 2021-046 § 4 (Exh. D)).
22.05.126 Supplemental procedures for fossil fuel refinery and fossil fuel transshipment facility
permitting.
(1) Upon request of the county, fossil fuel refineries or fossil fuel transshipment facilities shall fill out a
supplemental checklist for the purpose of determining whether a project qualifies as a permitted use or
requires a conditional use permit as specified in WCC 20.68.153 or 20.68.154. The checklist shall contain
supplemental information to include:
(a) Impact on maximum atmospheric crude distillation capacity (MACDC), maximum transshipment
capacity, and fossil fuel unit train shipment frequency from the proposed activity;
(b) Confirmation of the acceptance of potential permit conditions as outlined in WCC 20.68.068(23);
(c) Applicant name, property owner information, and parcel information as appropriate; and
(d) An attestation by the applicant regarding the accuracy of the information contained therein, signed
by the applicant and certified by a notary public.
(2) Confidential Business Information.
(a) For the purpose of checklists, permit applications and all other materials submitted by fossil fuel
refineries or fossil fuel transshipment facilities for activities in the Cherry Point Heavy Impact Industrial
District, the following shall apply:
(i) The applicant shall clearly identify information the applicant considers to be confidential business
information, not subject to disclosure under Chapter 42.56 RCW (Public Records Act) and/or
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WCC 1.32.090. If such information is contained in submittal documents, the applicant shall submit two
copies of materials for county use as follows:
(A) A copy with confidential business information clearly identified, with a watermark indicating the
document contains such information; and
(B) A copy with confidential business information redacted, and a watermark added indicating that the
document does not contain such information and is suitable for public disclosure.
(ii) Confidential business information may include:
(A) Processing equipment technical specifications on internals, sidestream/pumparounds, design
specifications, and process controls;
(B) Process unit design, instrumentation and controls;
(C) Feedstock, product, or process unit pump capacity and configuration; and
(D) Contractual agreements and all terms contained therein.
(iii) The information listed above is not meant to be all-inclusive. Other information related to the
applicant's processing activities, feedstock and product purchase, and/or sale and transportation
methods and costs may be confidential business information and, if so, shall be marked as such when
submitted.
(iv) Calculation and permit material submittals may contain, but are not required to contain any of the
above information.
(v) Where no increase to MACDC, maximum transshipment capacity, or unit train frequency is proposed,
submittal of confidential business information specifically related to the criteria of
WCC 20.68.153 and 20.68.154 shall not be required to be submitted with the permit application
materials.
(3) Where calculations are to be submitted for maximum transshipment capacity of maximum
atmospheric crude distillation capacity, the applicant shall provide calculations performed and certified
by a professional engineer licensed in the state of Washington, clearly indicating the impact on MACDC
and transshipment capacity. Confidential business information shall be clearly identified as required by
subsection (2)(a)(i) of this section.
(4) If the county receives a public records request for records containing information the applicant has
clearly indicated to be confidential business information pursuant to subsection (2)(a)(i) of this section,
the county will notify the applicant of the request and provide the applicant with a reasonable period of
time of at least 15 days to file for an injunction under RCW 42.56.540 to prevent the disclosure of such
information. If the applicant does not file for an injunction within the period of time set by the county,
the county will disclose the records containing the information that the applicant has designated as
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confidential business information pursuant to subsection (2)(a)(i) of this section. (Ord. 2021-046 § 4
(Exh. D)).
22.05.130 Permit review time frames.
(1) The county shall issue a notice of final decision for all permit types, including procedures for
administrative appeal and notice that affected property owners may request a change in valuation for
property tax purposes, to the applicant, the Whatcom County assessor, and any person who requested
notice or submitted substantive comments on the application within 120 calendar days of the date the
department determined the application complete, except as provided below:
(a) The following time periods shall be excluded from the calculation of the number of days
elapsed:
(i) Any period during which the applicant has been required by the county to correct
plans, perform required studies, or provide additional, required information through a
notice of additional requirements, per WCC 22.05.100(3). The period shall be calculated
from the date the county issues a notice of additional requirements until the date the
county receives all of the requested additional information;
(ii) Any period during which an environmental impact statement is being prepared
following a determination of significance pursuant to Chapter 43.21C RCW and WCC
Title 16;
(iii) The period specified for administrative appeals of project permits as provided in
Chapter 2.11 WCC;
(iv) The period specified for administrative appeals of development standards as
provided in WCC 12.08.035(1);
(v) Any period in which the applicant has not met public notification requirements;
(vi) Any period of time mutually agreed upon in writing by the applicant and the county.
(b) The time limits established by this section shall not apply to a project permit application that:
(i) Requires an amendment to the Whatcom County comprehensive plan or a
development regulation in order to obtain approval.
(ii) Requires approval of a new fully contained community as provided in
RCW 36.70A.350, a master planned resort as provided in RCW 36.70A.360, or the siting
of an essential public facility as provided in RCW 36.70A.200.
(iii) Is substantially revised by the applicant, including all redesigns of proposed land
divisions, in which case a new time period shall start from the date at which the revised
project application is determined to be complete.
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(c) The county may extend notice of final decision on the project if the county can document
legitimate reasons for such a delay. In such a case the county shall provide written notice to the
applicant at least 14 calendar days prior to the deadline for the original notice of final decision.
The notice shall include a statement of reasons why the time limits have not been met and a
date of issuance of a notice of final decision.
(d) Eligible facility requests for personal wireless service facilities shall be subject to the
following permit review time frames, tolling, and deemed granted provisions:
(i) An application for an eligible facilities request is reviewed by the county, who
will approve the application within 60 days of the date an applicant submits an
eligible facilities request application, unless it determines that the proposal does
not qualify as an eligible facilities request under WCC 20.13.
(ii) If the county determines that the applicant's request does not qualify as an
eligible facilities request, the county shall deny the application within 60 days of
the date an applicant submits an eligible facilities request application. The
denial shall be in writing and supported by substantial evidence contained in the
written record. If an eligible facilities request application is denied, a new
application may be submitted under the appropriate personal wireless service
facilities provisions of WCC 20.13.
(iii) The 60-day review period begins to run when the application is filed and may be
tolled only by mutual agreement by the county and the applicant or in cases
where the county determines that the application is incomplete. The time frame
for review is not tolled by a moratorium on the review of applications.
(iv) To toll the time frame for incompleteness, the county must provide written
notice to the applicant within 30 days of receipt of the application, clearly and
specifically delineating all missing documents or information required in the
application.
(v) The time frame for review begins running again when the applicant makes a
supplemental submission in response to the county's notice of incompleteness.
(vi) Following a supplemental submission, the county will notify the applicant within
10 days if the supplemental submission did not provide the information
identified in the original notice delineating missing information. The time frame
is tolled in the case of second or subsequent notices pursuant to the procedures
identified in this section. Second or subsequent notice of incompleteness may
not specify missing documents or information that was not delineated in the
original notice of incompleteness.
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(vii) In the event the county fails to approve or deny an eligible facilities request
within the time frame for review (accounting for any tolling), the request shall
be deemed granted if required by federal law or federal regulation. The deemed
grant does not become effective until the applicant notifies the county in
writing after the review period has expired (accounting for any tolling) that the
application has been deemed granted. The applicant shall provide a citation to
the federal law or federal regulation that requires the deemed granted status.
(e) Small wireless facilities shall be subject to the following permit review time frames and
tolling periods (collectively known as shot clock periods):
(i) Review of an application to collocate a small wireless facility using an existing
structure: 60 days.
(ii) Review of an application to deploy a small wireless facility using a new
structure: 90 days.
(iii) Unless a written agreement between the applicant and the county provides
otherwise, the tolling period for an application is as set forth below.
(iv) For an initial application for small wireless facilities, if the county notifies the
applicant on or before the 10th day after submission that the application is
materially incomplete, and clearly and specifically identifies the missing
documents or information and the specific rule or regulation creating the
obligation to submit such documents or information, the shot clock date
calculation shall restart at zero on the date on which the applicant submits all
the documents and information identified by the county to render the
application complete.
(v) For resubmitted applications following a notice of deficiency, the tolling period
shall be the number of days from the day after the date when the county
notifies the applicant in writing that the applicant's supplemental submission
was not sufficient to render the application complete and clearly and specifically
identifies the missing documents or information that need to be submitted
based on the county's original request until the date when the applicant submits
all the documents and information identified by the County to render the
application complete. The notice pursuant to this section must be issued on or
before the 10th day after the date when the applicant makes a supplemental
submission in response to the county's written notification.
(vi) The shot clock date for an application is determined by counting forward,
beginning on the day after the date when the application was submitted, by the
number of calendar days of the shot clock period identified in WCC
22.05.130(1)(e); provided, that if the date calculated in this manner is afederal,
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PLN2021-00005 Approved by Whatcom County Council 111912022
state, or local holiday, the shot clock date is the next business day after such
date. The term "business day" means any day, except Saturday or Sunday, that
is not a legal holiday.
(f) Macro wireless facilities shall be subject to the following permit review time frames and tolling
periods (collectively known as shot clock periods):
(i) Review of an application to collocate a macro wireless facility using an existing
structure: 90 days.
(ii) Review of an application to deploy a macro wireless facility using a new structure: 150
days.
(iii) Unless a written agreement between the applicant and the county provides otherwise,
the tolling period for an application is as set forth below.
(iv) For an initial application for macro wireless facilities, the tolling period shall be the
number of days from: The day after the date when the county notifies the applicant in writing
that the application is materially incomplete and clearly and specifically identifies the missing
documents or information that the applicant must submit to render the application complete
and the specific rule or regulation creating this obligation until the date when the applicant
submits all the documents and information identified by the county to render the application
complete. The notice pursuant to this section must be issued on or before the 30th day after
the date when the application was submitted to toll the review time frame.
(v) For resubmitted applications following a notice of deficiency, the tolling period shall be
the number of days from the day after the date when the county notifies the applicant in writing
that the applicant's supplemental submission was not sufficient to render the application
complete and clearly and specifically identifies the missing documents or information that need
to be submitted based on the county's original request until the date when the applicant
submits all the documents and information identified by the county to render the application
complete. The notice pursuant to this section must be issued on or before the 10th day after
the date when the applicant makes a supplemental submission in response to the county's
written notification.
(vi) The shot clock date for an application is determined by counting forward, beginning on
the day after the date when the application was submitted, by the number of calendar days of
the shot clock period identified in WCC 22.05.130(1)(f); provided, that if the date calculated in
this manner is a federal, state, or local holiday, the shot clock date is the next business day after
such date. The term "business day" means any day, except Saturday or Sunday, that is not a
legal holiday.
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(2) If an applicant believes a project permit application has not been acted upon by the county in a
timely manner or otherwise consistent with this chapter, the applicant or authorized representative may
request a meeting with the director to resolve the issue. Within 14 calendar days of the meeting, the
director shall:
(a) Approve the permit if it is within the director's authority to do so, provided the approval
would not violate state or county regulations; or
(b) Deny the permit if it is within the director's authority to do so; or
(c) Respond in writing with the department's position, or a mutually acceptable resolution of the
issue, which may include a partial refund of application fees at the director's discretion.
(3) Any final order, permit decision or determination issued by Whatcom County shall include a notice to
the applicant of his or her appeal rights per WCC 22.05.160. (Ord. 2018-032 § 1 (Exh. A)).
22.05.140 Expiration of project permits.
(1) Project permit approval status shall expire two years from the date of approval except where a
different duration of approval is authorized by Whatcom County Code, or is established by a court
decision or state law, or executed by a development agreement. The decision maker may extend this
period up to one year from the date of original expiration upon written request by the applicant.
(2) Any complete project permit application for which no information has been submitted in response to
the department's notice of additional requirements per WCC 22.05.100(3) shall expire at the end of the
time limit established in 22.05.100(3).
(3) For projects that have received a SEPA determination of significance per Chapter 16.08 WCC, all
underlying project permit applications shall expire when one of the following occurs:
(a) The applicant has not in good faith maintained a contract with a person or firm to complete the
environmental impact statement (EIS) as specified in the scoping document. The applicant is responsible
for informing the county of the status of such contract. If there is no notice given to the county, all
underlying project permit applications shall expire upon the end date of the contract; or
(b) The mutually agreed time frame to complete the draft EIS or final EIS has lapsed.
(4) Project permits which received preliminary approval or a final decision prior to February 22, 2009,
that did not include an expiration time frame in the conditions of approval shall expire on June 16, 2020.
(Ord. 2018-032 § 1 (Exh. A)).
22.05.150 Permit revocation procedure.
(1) Upon notification by the director that a substantial violation of the terms and conditions of any
previously granted zoning conditional use, shoreline substantial development or shoreline conditional
use permit exists, the hearing examiner shall issue a summons as per WCC 2.11.220 to the permit holder
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requiring said permit holder to appear and show cause why revocation of the permit should not be
ordered. Failure of the permit holder to respond may be deemed good cause for revocation.
(2) Upon issuance of a summons as set forth in subsection (1) of this section, the hearing examiner shall
schedule an open record hearing to review the alleged violations. The summons shall include notice of
the hearing and shall be sent to the permit holder and the director of planning and development
services no less than 12 calendar days prior to the date of the hearing. At the hearing the hearing
examiner shall receive evidence of the alleged violations and the responses of the permit holder, as per
the business rules of the hearing examiner's office. Testimony shall be limited to that of the division and
the permit holder except where additional evidence would be of substantial value in determining if
revocation should be ordered. The land use division's evidence may include the testimony ofwitnesses.
(3) Upon a showing of violation by a preponderance of the evidence as alleged, the hearing examiner
may revoke the permit or allow the permit holder a reasonable period of time to cure the violation. If
the violation is not cured within the time set by the hearing examiner, the permit shall be revoked.
Where a time to cure the violation has been set out, no further hearing shall be necessary prior to the
revocation. The permit holder shall have the burden of proving that the violation has been cured within
the time limit previously set. Such evidence as is necessary to demonstrate that the violation has been
cured may be submitted to the hearing examiner by either the permit holder or the director of planning
and development services. Any revocation shall be accompanied by written findings of fact and
conclusions of law. The permit holder shall be notified of any revocation within 14 calendar days of the
revocation. (Ord. 2018-032 § 1 (Exh. A)).
22.05.160 Appeals.
(1) Any person with standing may appeal any order, final permit decision, or final administrative
determination made by the director or designee in the administration or enforcement of any chapter to
the hearing examiner, who has the authority to hear and decide such appeals per WCC 2.11.210.
Appeals relating to personal wireless service facilities are filed with a court of competent jurisdiction
rather than the hearing examiner.
(a) To be valid, an appeal to the hearing examiner shall be filed, on a form provided by the
department, with the department within 14 calendar days of the issuance of a final permit
decision and shall be accompanied by a fee as specified in the Unified Fee Schedule. The written
appeal shall include:
(i) The action or decision being appealed and the date it was issued;
(ii) Facts demonstrating that the person is adversely affected by the decision;
(iii) A statement identifying each alleged error and the manner in which thedecision
fails to satisfy the applicable decision criteria;
(iv) The specific relief requested; and
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(v) Any other information reasonably necessary to make a decision on the appeal.
(b) The hearing examiner shall schedule an open record public hearing on the appeal to be held
within 60 calendar days following the department's receipt of the application for appeal unless
otherwise agreed upon by the county and the appellant.
(c) A party who fails to appeal within 14 calendar days is barred from appeal,per
Chapter 2.11 WCC.
(d) The business rules of the hearing examiner shall govern appeal procedures. The hearing
examiner shall have the authority granted in the business rules, and that authority is
incorporated herein by reference. See also WCC 2.11.220.
(2) The applicant, any person with standing, or any county department may appeal any final decision of
the hearing examiner to superior court or other body as specified by WCC 22.05.020. The appellant shall
file a written notice of appeal within 21 calendar days of the final decision of the hearing examiner, as
provided in RCW 36.70C.040. (Ord. 2019-013 § 1 (Exh. A); Ord. 2018-032 § 1 (Exh. A)).
22.05.170 Annual report.
Staff shall prepare an annual report on the implementation of this chapter and submit it to the council.
(Ord. 2018-032 § 1 (Exh. A)).
22.05.180 Interpretation, conflict and severability.
(1) Interpret to Protect Public Welfare. In the event of any discrepancies between the requirements
established herein and those contained in any other applicable regulation, code or program, the
regulations which are more protective of the public health, safety, environment and welfare shall apply.
(2) Severability. The provisions of this chapter are severable. If a section, sentence, clause, or phrase of
this title is adjudged by a court of competent jurisdiction to be invalid, the decision shall not affect the
remaining portions of this chapter. (Ord. 2018-032 § 1 (Exh. A)).
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