HomeMy WebLinkAboutord2022-069strike�GCM Co`
P y
k1q`sHt NGil
File 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 2 of 7
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
Sri
Me]
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).
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
< Wz "� m
'o ems, d
Dan'O BrowkM! avis.jCouncil Clerk
a
APPROVED as to form:
/s/ Royce Buckingham
Civil Deputy Prosecutor
2022.
A/
Todd Donovan, Chairperson
Approved ( ) Denied
Date
Page 7 of 7
PLN2021-00005 Planning Commission Recommended Version 91812022
EXHIBIT A
Amend WCC 20.13, Wireless Communication Facilities, as shown below.
Chapter 20.13
PERSONAL WIRELESS SERVICE FACILITIES
Sections: Rationale: Modify the chapter title for consistency with the
terminology used in 47 US Code 332(c)(7) and the Code of
20.13.010 Purpose. Federal Regulations (47 CFR 1.6002(i)).
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.
2M.I R.092—GP.R.eFal deli standda4�ds-
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. Appeals-
1
PLN2021-00005
20.13.010 Purpose.
Planning Commission Recommended Version 91812022
The purpose of this chapter is to establish regulations for the placement, development, permitting, and
removal of personal wireless servicecerAmunicatieR 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 Federal Telecomw.ur icatiens Act f 1996. They are intended to protect property values and
minimize visual impact while furthering the development of enhanced telecommunication services in
the county.
Rationale: The above amendments provide specific references to the applicable
federal laws (US Code) and Code of Federal Regulations (CFR), rather than a reference
to a single federal law adopted in 1996.
The term "personal wireless communication facilities" has been changed to "personal
wireless service facilities" to match the term defined by the FCC in 47 CFR 1.6002(i).
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.
Rationale: Planning Commission — Recognizes both federal rules relating to wireless, including
rules that currently preempt local government regulation of radio frequency emissions, and health
concerns expressed by citizens of the County relating to such emissions.
faeolities, the equHty shall aet within a re@senable pepied ef time, taking iRt9 aGGA-,-,.nt the nature And
applicatien shall be in writing, supported by substantial evidence e9ntaiRed in a written . (Ord.
2014-042 § 1 (Att. A), 2014; Ord. 2000-006 § 1, 2000).
Rationale: Permit review time frames for wireless communication facilities are proposed in WCC
22.05.130. The language relating to denials has been moved to proposed WCC 20.13.170.
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 C #erWCC 20.97 WGC or, if not defined in this chapter or
C#apt_e-r-WCC_20.97-WC-E, the meaning customarily assigned to them.
PLN2021-00005
Planning Commission Recommended Version 91812022
(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 facility4AEF)" means ancillary equipment and/or a-n-unstaffed structures used
to contain ancillary equipment for a personal wireless service facilityW-QF. Such structures include
cabinets, shelters, remodeled structures, pedestals and other similar structures. Ancillary equipment
may inelmeans 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
generatorsj.
(4) "Antenna" means an apparatus designed for the purpose of emitting radiofreguency 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.
means any pele, panel, refleetien dise, E)F similar deviee used for the tFansmission OF reeeptien of Fadie
frequency signals, ffinelwding but not limited to directienal antennas, emni directional antennas_,-,�f4
parabeliG antennas.
Rationale: The definition of "antenna" has been modified for consistency with
47 CFR 1.6002(b).
(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 panel antenna) 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.
Rationale: The definition of "antenna equipment" has been inserted for consistency with 47 CFR 1.6002(c).
(7) "Antenna facility" means an antenna and associated antenna equipment.
Rationale: The definition of "antenna facility' has been inserted for consistency with 47 CFR 1.6002(d).
PLN2021-00005 Planning Commission Recommended Version 91812022
(gra) "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 or structure.
(9-�) "Attached wireless communication facility" is a personal wireless serviceeemmunication facility that
utilizes an attached wireless communication support structure ^- defined- in subsection (6) of this
seetiee. It means the site, the leased area, attached wireless communication support structures,
antennas, antenna array(s), accessary -ancillary equipment facilities,os, 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.
(109) "Citizens band radio" means two-way radio facilities operated for short-range personal and
business communications, without necessity of a federal license,
Register Part 95
Rationale: The term "clustering" is not used in the proposed amendments to WCC 20.13.
11) "Collocation" means:
(a) Mounting or installing an antenna facility on a pre-existing structure; and/or
( ) Modifying a structure for the purpose of mounting or installing an antenna facility on that
structure.
The definition of "collocation" in WCC 20.13.025 applies to eligible facilities requests.
Rationale: The definition of "collocation" has been modified for consistency with 47 CFR 1.6002(g).
(12) "Deployment" means placement, construction, or modification of a personal wireless service
facility.
Rationale: The definition of "deployment" has been inserted for consistency with 47 CFR 1.6002(h).
4
PLN2021-00005
Planning Commission Recommended Version 91812022
(1314) "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.
(144-2-) "FAA" means the Federal Aviation Administration.
(15-1-3) "FCC" means the Federal Communications Commission.
(1644) "Freestanding wireless communication facilitiesy" means the site, the lease area, freestanding
wireless communication support tower(s), antennas, antenna array(s), aeeesser-y-ancillary equipment
facilitiesstructures, 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.
(1745) "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.
Rationale: The subject amendments relate to wireless eligible facilities requests, small wireless facilities, and macro wireless facilities. Eligible
facilities requests and small wireless facilities are classifications of wireless facilities that are set apart in the Code of Federal Regulations from
other (larger) wireless facilities. The FCC Declaratory Ruling and Third Report and Order in the matter of Accelerating Wireless Broadband
Deployment by Removing Barriers to Infrastructure Investment (adopted September 26, 2018) indicates "... While the existing wireless
infrastructure in the U.S. was erected primarily using macro cells with relatively large antennas and towers, wireless networks increasingly have
required the deployment of small cell systems to support increased usage and capacity..." (page 9). The proposal adopts the "macro" facility
language to signify larger wireless installations.
PLN2021-00005
Planning Commission Recommended Version 91812022
(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. (16) "PerseRal v ^'^«means
+ ^^
Rationale: The first sentence is the definition of "personal wireless service facility" from 47 CFR
1.6002(i). The second sentence is elaboration from the definition of "wireless communication
facilities" below, which is proposed to be deleted.
(204---l-) "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.
(21U) Site. c the purpose of thischarter, "sSite" 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 antennas as
defined in 47 CFR 1.1320(d); or
(ii) Are mounted on structures no more than 10 percent taller than other adjacent
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
PLN2021-00005
Planning Commission Recommended Version 91812022
(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).
Rationale: The definition of "small wireless facility" has been inserted for
consistency with 47 CFR 1.6002(I).
(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).
Rationale: The definition of "structure" has been inserted for consistency with
47 CFR 1.6002(m).
(244-9) "Unlicensed wireless services" means commercial mobile services that operate on public
frequencies and do not need a FCC license.
(25-24) "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.
Rationale: A definition of "substantially change" has been inserted in the
definitions relating to eligible facility requests below, consistent with 47 CFR
1.6100(b)(7).
PLN2021-00005
20.13.025 Definitions - Eligible facilities requests.
Planning Commission Recommended Version 91812022
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 a tower.
(a) The term includes but is not limited to equipment associated with wireless communications
services such as private broadcast, and public safety services, as well as unlicensed wireless
services and fixed wireless services such as microwave backhaul.
(b) The term includes but is not limited to, radio transceivers, antennas, coaxial or 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.
(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.
PLN2021-00005
Planning Commission Recommended Version 91812022
(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
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-wav, it involves adding an appurtenance
to the body of the tower that would protrude from the edge of the tower more than twenty
feet or more than the width of the tower structure at the level of the appurtenance, whichever
is greater; for other eligible support structures, it involves adding an appurtenance to the body
of the structure that would protrude from the edge of the structure by more than six feet;
PLN2021-00005
Planning Commission Recommended Version 91812022
(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 on 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 anv 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 agade
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 manner that
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 anv 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
10
PLN2021-00005
Planning Commission Recommended Version 91812022
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 safes services as well as unlicensed wireless services and fixed wireless services such as
microwave backhaul.
Rationale: The above definitions are primarily from 47 CFR 1.6100. Minor changes have been made, such as
changing "Commission" to "FCC" and referencing subsections of this proposed code instead of subsections of the
CFR. The FCC's Declaratory Ruling and Notice of Proposed Rulemaking (June 2020, pages 7, 8, 18, 20, 23, and 24)
elaborated on the definition of "Substantial change" by clarifying the meaning of:
• The phrase "with separation from the nearest existing antenna not to exceed twenty feet";
• Equipment cabinets;
• Concealment element;
• To defeat a concealment element; and
• Conditions associated with siting approval.
These FCC clarifications have been incorporated into the definition of "Substantially change" above (language and
concepts from the FCC's 2020 Declaratory Ruling have been inserted in italics). Staff has added an example of a
"condition associated with siting approval" shown in bold.
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 serviceeemmunicatien facilities,
except that--T 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. ��ses+at
Federal R + Parts 97 and aC respectively.
Rationale: The above language was inserted for consistency with the language of WCC
20.82.030(5). It would also point the reader to WCC 20.82 for rules relating to facilities that
do not fit within the definition of "personal wireless service facilities."
11
PLN2021-00005
Planning Commission Recommended Version 91812022
(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) N,
Rationale: The above facilities are permitted uses pursuant to WCC 20.82.021.
Inserting the reference will point the reader to that section of the code.
)rmal. routine and emergencv maintenance and repair of existing personal wireless
serviceeemrn n;e@tA^PA 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.
.041 Eligible facilities requests.
.042 Collocation of small wireless facilities using existing structures.
Rationale: Regarding eligible facility requests, 47 CFR 1.6100(c) indicates: "A State or local government may not deny and shall
approve any eligible facilities request for modification of an eligible support structure that does not substantially change the
physical dimensions of such structure... 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 unless it determines that the application is not
covered by this section..."
Regarding small wireless facilities, 47 CFR 1.6003(c) states: "The following are the presumptively reasonable periods of time for
action on applications seeking authorization for deployments ... (i) Review of an application to collocate a Small Wireless
Facility using an existing structure: 60 days..."
The FCC's Declaratory Ruling and Third Report and Order (September 26, 2018) states:
... Industry commenters contend that the shot clocks should apply to all authorizations a locality may require, and to
all aspects of and steps in the siting process, including license or franchise agreements to access ROW, building permits,
public notices and meetings, lease negotiations, electric permits, road closure permits, aesthetic approvals, and other
authorizations needed for deployment... we find that "any request for authorization to place, construct, or modify
personal wireless service facilities" under [CB)(ii) means all authorizations necessary for the deployment of personal
wireless services infrastructure... (pages 68-69, paragraph 132).
Furthermore, 47 CFR 1.6002(f) states "Authorization means any approval that a siting authority must issue under applicable law
prior to the deployment of personal wireless service facilities, including, but not limited to, zoning approval and building
permit." It would be very difficult, if not impossible, to process an administrative approval use permit or conditional use permit,
along with other required permits, within the 60 day time -frame allowed by the federal rules. Therefore, the proposal is to
allow eligible facilities requests and small wireless facilities using existing structures as permitted uses.
12
PLN2021-00005
Planning Commission Recommended Version 91812022
.043 4 Q „+ „�+,- �+, „, �„ ii . Replacement of any component of an existing
fFeestand;„„ eF attache 2e rsonal 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.
13
PLN2021-00005
Planning Commission Recommended Version 91812022
20.13.050 Administrative approval uses.
.051 Small wireless facilities on a new structure.
.052 Collocation of macro wireless facilities using an existing structure.
.053 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.
Rationale: Regarding small wireless facilities and macro wireless facilities, 47 CFR Section 1.6003(c) states that the following are the
presumptively reasonable periods of time for action on applications seeking authorization for deployments ...
(ii) Review of an application to collocate a facility other than a Small Wireless Facility using an existing structure: 90
days.
(iii) Review of an application to deploy a Small Wireless Facility using a new structure: 90 days...
A facility "other than a Small Wireless Facility" is called a "macro wireless facility" in the proposed regulations.
The FCC's Declaratory Ruling and Third Report and Order (September 26, 2018) states:
... Industry commenters contend that the shot clocks should apply to all authorizations a locality may require, and to all
aspects of and steps in the siting process, including license or franchise agreements to access ROW, building permits, public
notices and meetings, lease negotiations, electric permits, road closure permits, aesthetic approvals, and other
authorizations needed for deployment... we find that "any request for authorization to place, construct, or modify
personal wireless service facilities" under [47 US Code] Section 332(c)(7)(B)(ii) means all authorizations necessary for the
deployment of personal wireless services infrastructure... (pages 68 and 69, paragraph 132).
Furthermore, 47 CFR 1.6002(f) states "Authorization means any approval that a siting authority must issue under applicable law prior
to the deployment of personal wireless service facilities, including, but not limited to, zoning approval and building permit."
It would be very difficult to process a conditional use permit, along with other required permits, within the 90 day time -frame
allowed by the federal rules. Therefore, the proposal is to allow small wireless facilities on new structures and macro wireless
facilities using existing structures as administrative approval uses. These structures would have more impact than the proposed uses
allowed in the permitted use section, so it is reasonable to provide notice and seek comments from neighboring property owners
and the public.
14
PLN2021-00005
Planning Commission Recommended Version 91812022
a .�
• • !. A
• • .
15
PLN2021-00005
16
Planning Commission Recommended Version 91812022
PLN2021-00005
20.13.060 Conditional uses.
Planning Commission Recommended Version 91812022
.061 Macro wireless facilities using a new structure, including associated ancillary equipment
facilities.
Rationale: 47 CFR Section 1.6003(c) states:
The following are the presumptively reasonable periods of time for action on applications seeking
authorization for deployments ...
(iv) Review of an application to deploy a facility other than a Small Wireless Facility using a new
structure: 150 days...
A facility "other than a Small Wireless Facility' is called a "macro wireless facility" in the proposed regulations.
The FCC's Declaratory Ruling and Third Report and Order (September 26, 2018) states:
... Industry commenters contend that the shot clocks should apply to all authorizations a locality may require,
and to all aspects of and steps in the siting process, including license or franchise agreements to access ROW,
building permits, public notices and meetings, lease negotiations, electric permits, road closure permits,
aesthetic approvals, and other authorizations needed for deployment... we find that "any request for
authorization to place, construct, or modify personal wireless service facilities" under [47 US Code] Section
332(c)(7)(B)(ii) means all authorizations necessary for the deployment of personal wireless services
infrastructure... (pages 68 and 69, paragraph 132).
Furthermore, 47 CFR 1.6002(f) states "Authorization means any approval that a siting authority must issue under
applicable law prior to the deployment of personal wireless service facilities, including, but not limited to, zoning
approval and building permit."
The 150 day federal time frame would allow sufficient time to process a conditional use permit, along with a building
permit, for these larger macro wireless facilities. These larger structures have the potential for greater visual impact
than the proposed uses allowed in the permitted and administrative approval uses section. Therefore, it is reasonable
to provide notice and hold a public hearing to allow comments from neighboring property owners and the public.
17
PLN2021-00005 Planning Commission Recommended Version 91812022
e.
18
18
PLN2021-00005 Planning Commission Recommended Version 91812022
20.13.070 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.
Freestanding and attached
eperatien as -of the P-ffp-et;ve date of the ordirianee ced-liflied in. this ehapter or amendment hereto, -
development standards of this chapter shall he subject to the previsiens of Chapter 20.93 kA.IG-C-
b---. .. . -9 nonconforming uses. Reut;Re rna;HteRariee en e,,;-,+;-,- towers and antennas is permitted as
provided in I.A.IGG 20-4-3.039(6). However, any new construction ether than rout ne ma;ntenance on
existing neneonfermiRg4owers, antennas, bUildirlff GF other facilitees shall co —Ply 'u",Y-0.4h th-,
requirements of Chapter 20.83 W4C gevef-R uses, and this chapter. (Ord. 2014-042 §
1 (Att. A), 2014; Ord. 2000-006 § 1, 2000. Formerly 20.13.040).
19
PLN2021-00005
Planning Commission Recommended Version 91812022
Rationale: The expansion of a nonconforming use currently requires a conditional use
permit under existing WCC 20.83.020.
However, under federal rules, a local government has 60 days to process permits for
eligible facilities requests and small wireless facilities using existing structures. It would
be very difficult, if not impossible, to process a conditional use permit, along with other
required permits, within the 60 day time -frame allowed by the federal rules. Therefore,
the proposal is to allow eligible facilities requests and small wireless facilities using
existing nonconforming structures as permitted uses.
Under federal rules, a local government has 90 days to process permits for collocation of
macro wireless facilities using existing structures. It would be very difficult to process a
conditional use permit, along with other required permits, within the 90 day time -frame
allowed by the federal rules. Therefore, the proposal is to allow collocation of macro
wireless facilities using existing structures as administrative approval uses.
Other expansions, such as increasing the height of an existing nonconforming macro
tower, would still require a conditional use permit under WCC 20.83.020.
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)).
Rationale: 47 CFR 1.6100(c) indicates: "A State or local government may not deny and shall approve
any eligible facilities request for modification of an eligible support structure that does not
substantially change the physical dimensions of such structure..." Because of this federal
preemption, eligible facilities requests are not included in the types of wireless facilities that are
prohibited in the above areas.
20
PLN2021-00005
Planning Commission Recommended Version 91812022
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
(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.
Rationale: The subject proposal includes deleting WCC 20.13.130(1)(a) because it is largely
redundant. However, this section does mention a feasibility study that should be preserved
in the code. Therefore, feasibility study language has been inserted above.
(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 (LII),
Gateel.vay industrial Rural Industrial and Manufacturing (RIM), General
Manufacturing (GM), and Airport Operations (AO)
Dist iet (CP Oh); and
(iii) Resource districts including Agriculture (AG), Commercial Forestry (CF), Rural
Forestry (RF) and Recreation Open Space (ROS).
Rationale: The Small Town Commercial zone was inadvertently omitted from the above list
of commercial zoning districts. The last Gateway Industrial zoned land was annexed into a
city and this zoning district has been removed from the Whatcom County Zoning Code. The
Cherry Point Industrial District is an overlay zone that encompasses Heavy Impact Industrial
and Light Impact Industrial zones (which are already mentioned above).
21
PLN2021-00005
Planning Commission Recommended Version 91812022
(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.
Rationale: An attached wireless communication support structure is "... a
support structure not specifically designed and constructed to support an
antenna array..." such as a building or water tower (WCC 20.13.020(8)).
Collocation includes mounting an antenna (presumably, a new antenna) on a
pre-existing structure (proposed WCC 20.13.020(11)). A collocated antenna
on an attached wireless communication support structure and a new antenna
on such a structure are the same thing. Since subsection (a) already addresses
collocated antennas on existing structures, subsection (c) addressing new
antennas on existing structures is redundant and not needed.
(c4) New freestanding wireless communication support structures in low visual impact locations
in resource and industrial districts.
(de) New attached wireless communication facilities that utilize nonresidential buildings and
structures in residential related zones on property not used exclusively for residential purposes.
(ef) New freestanding wireless communication support structures at low visual impact locations
in commercial districts.
(fg) 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.
.091 Design and Development Standards.
wireless eemmu n;eat;^^ facilities. These developments standards are minimum standards and shall be
in addition to any development standards o,-pFejeet review PFGeess wh;--.'-
in the underlying
district in which a personal wireless serviceco4wP 4+icatieR facility is located. In the event of a conflict
between the provisions of this chapter and the general development standards of this title,rt-he
22
PLN2021-00005
Planning Commission Recommended Version 91812022
project rview-prec-e , 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 .d required fencing shall be equipped with appropriate anti -climbing devices.
Rationale: In an email dated June 23, 2022, an industry representative asked for:
... clarification on the requirement for anticlimbing devices on all facilities and on the
fencing. For building mounted sites, I am not sure what that would look like and for fencing, the
only anticlimbing device that comes to mind is barbed wire, which is tough aesthetically...
The industry representative made similar comments at the June 23, 2022 Planning Commission hearing.
At the request of the Planning Commission, Planning and Development Services staff met on July 6, 2022
to discuss this provision. PDS finds that there are anti -climbing devices that may be appropriate for
antennas attached to existing buildings (such a locked metal plate over wall mounted ladders). However,
given that anti -climbing devices are required on a tower (such as anti -climbing sheets on the tower
supports), it does not appear that a fence around the tower would need additional anti -climbing devices.
Barbed wire has generally not been required on such fences. Therefore, fencing may be deleted from the
anti -climbing provision above.
(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 othera v_e signs shall be located on support structures or antennas;
however, arrays may be carneuflaged- as otherwise w ++
Rationale: The existing text would allow signs with a non -advertising
message but not signs with an advertising message. However, sign
regulations are to be content neutral in accordance with U.S. Supreme
Court's decision in Reed v. Town of Gilbert (2015).
(4) Lighting. All freestanding and attached wireless communication facilities shall not be
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.
23
PLN2021-00005
Planning Commission Recommended Version 91812022
Rationale: Noise requirements have been modified and moved to proposed
WCC 20.13.105.
( -7) 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 services-G e 4e44s 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.
(7S) 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.
(11) 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.
►.'
PLN2021-00005
Planning Commission Recommended Version 91812022
Rationale: In an email dated June 23, 2022, and in comments at the June 23, 2022
Planning Commission hearing, an industry representative asked for greater flexibility to
mount antennas on rooftops.
At the request of the Planning Commission, Planning and Development Services staff
met on July 6, 2022 to discuss this issue.
WCC 20.13.085 contains siting priorities for small and macro wireless facilities. This
section of the Zoning Code states that collocated antennas on existing structures are the
highest priority locations in the County. New freestanding towers or support structures
are a lower priority. Given that locating new antennas on existing structures is a higher
priority, it makes sense to provide flexibility in the language above.
(10-3) 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.
(114) 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.
25
PLN2021-00005
Planning Commission Recommended Version 91812022
Rationale: 47 US Code 253(a) 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." Additionally, 47 US Code 332(c)(7)(13)(i) states: "The regulation of the placement, construction, and modification of
personal wireless service facilities by any State or local government ... shall not prohibit or have the effect of prohibiting the
provision of personal wireless services."
The FCC Declaratory Ruling and Third Report and Order in the matter of Accelerating Wireless Broadband Deployment by
Removing Barriers to Infrastructure Investment (adopted September 26, 2018) states:
... The "effectively prohibit" language must have some meaning independent of the "prohibit" language ... our
interpretation that 'effective prohibition' does not require a showing of an insurmountable barrier to entry is
demonstrated not only by a number of circuit courts' acceptance of that view, but in the Supreme Court's own
characterization of Section 253(a) as "prohibit[ing] state and local regulation that impedes the provision of
'telecommunications service"'... (paragraph 41).
Initially, it should be noted that utility poles are often located in the road right-of-way. Additionally, the County Engineer
indicated, in an e-mail of October 20, 2021, that he is not aware of any County light standards (street lights or traffic lights) located
outside the County right of way and that all County -owned facilities should be in the County right of way. Utility poles and light
standards within the road right of way will be addressed by County revocable encroachment permit or franchise agreement (or
comparable State permits), rather than the regulations of WCC 20.13.
Utility poles and/or light standards outside of the right-of-way should be treated like any other structure, so potential wireless
services on such structures (if allowed by the owner) will not be impeded. Therefore, we are proposing to delete the text above.
(1245) Setbacks Applicable. The following setback standards shall apply to personal wireless
service facilities:
(a) Aceess&f y-Ancillary equipment facilitiesst;uctures shall comply with the setback
requirements for principal nonaccessery structures in the 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 far principal ^^^�
structures 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.
(ab) Freestanding wireless communication support structures located in a residential
related district as described in WCC 20.13.085 shall be set back from any property line
by a distance equal to the height of the wireless communications support structure or
the setback of the underlying use district, whichever is greater.
(ds) 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
26
PLN2021-00005
Planning Commission Recommended Version 91812022
communications support structure or the setback of the underlying use district,
whichever is greater.
(ed) 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 the height
of the freestanding wireless communication support structure or the setback of the
underlying use district whichever is greater.
(fe) 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*"i�.,,s ehapter may be reduced by the approving authority
subject to the satisfaction of the special exception criteria in WCC 20.13.110.
(13-7) 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.
(149) 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 the plant
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
W1
PLN2021-00005
Planning Commission Recommended Version 91812022
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.
(15-9) 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.
(1640) 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
parking may be shared or public parking at the discretion of the county. Staffed facilities shall
require one parking space per staff member
Rationale: Parking space requirements are contained in WCC 20.80.580. These
requirements do not address wireless facilities.
N-11
PLN2021-00005
Planning Commission Recommended Version 91812022
(1734) Building and Utility Permits. Approval of a WCF-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.
The FCC's Declaratory Ruling and Notice of Proposed Rulemaking (June 2020) states:
... The term "concealment element" in [47 CFR] section 1.6100(b)(7)(v) 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 ... the 2014 Infrastructure Order identified parts of a
stealth wireless facility such as "painting to match the supporting facade or artificial tree branches" as
examples of concealment elements... a concealment element must have been part of the facility that
was considered by the locality at the original approval of the tower ... a concealment element...
would look like something else, such as a pine tree, flag pole, or chimney... (pages 8, 18, and 20).
The significance of the term "concealment element" is derived from the federal definition of "eligible facilities
request" and the related definition of "substantially change" (incorporated into proposed WCC 20.13.025). In
order to qualify as an eligible facilities request the proposal cannot, among other things, defeat the
concealment elements of the eligible support structure.
As a related matter, in order to qualify as an eligible facilities request a proposal cannot violate certain
conditions associated with approval of the eligible support structure. These "conditions" 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 the eligible facility request provisions (relating to antenna
height, antenna width, equipment cabinets, and excavations or deployments outside the current site). There
must be express evidence that at the time of approval the local government 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, or location behind a tree -line (FCC's
Declaratory Ruling and Notice of Proposed Rulemaking, June 2020, pages 8, 18, 23, and 24).
Therefore, when permitting support structures that eligible facility requests may later be located on, it is useful
to distinguish between concealment elements (addressed in proposed WCC 20.13.095) and other aesthetic
conditions of approval (addressed in proposed WCC 20.13.120). Furthermore, some aesthetic "conditions
associated with siting approval" (i.e. screening) may not be needed if the original tower or support structure is
designed with concealment elements.
29
PLN2021-00005 Planning Commission Recommended Version 91812022
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 eernmunicatien service
during repair or maintenance of existing personal wireless serviceeemmunieatiei4 facilities, when a
supporting structure and site are being redeveloped, or prior to completion of construction of new
personal wireless serviceeemmunicatien facilities. Such tTemporary uses shall operate for not more than
six-months-pe+ie4 commencing when transmission from such
facility begins provided that the administrator may approve additional one six month -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 serviceeemmunicatieR 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).
Rationale: In an email dated June 23, 2022, an industry representative stated:
... It often takes a more than a year for demolition and redevelopment of a building mount
site, especially with the labor shortages in both the construction and local planning/building
departments. Verizon would request that the director have discretion to grant more than one
6 month extension if the project is still underway. The telecom carrier waiting to go on the roof
has no control over these delays and having to remove a temp facility results in gaps in
coverage...
The industry representative made similar comments at the June 23, 2022 Planning Commission hearing.
At the request of the Planning Commission, Planning and Development Services staff met on July 6,
2022 to discuss this provision. PDS finds that it is reasonable to allow temporary uses for a longer
period of time. We suggest that such uses could qualify for "temporary' status for a maximum of 24
months.
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 anv proposed abatement measures. This may require noise attenuation devices or other
mitigation measures to minimize impacts.
30
PLN2021-00005
Planning Commission Recommended Version 91812022
Rationale: Noise requirements have been modified and moved from WCC 20.13.090 (which,
under the proposal, only applies to small and macro wireless facilities) to proposed WCC
20.13.105 (which applies to all personal wireless service facilities).
20.13.110 Special exceptions for small and macro wireless facilities.
When adherence to the requirements of WCC 20.13t4is-Chapter 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 the ^, FFent ^^�^ ^
adepted and amended WCC Title 15, Buildings and Construction. A variance pursuant to WCC
22.05.02gc.hapter 20.94 W(;G is required for variations from applicable zoning regulations not contained
in WCC 20.13dribed in +his section.
Rationale: 47 US Code 253(a) 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." Additionally, 47 US Code
332(c)(7)(B)(i) states: "The regulation of the placement, construction, and modification of personal
wireless service facilities by any State or local government ... shall not prohibit or have the effect of
prohibiting the provision of personal wireless services."
The FCC Declaratory Ruling and Third Report and Order in the matter of Accelerating Wireless
Broadband Deployment by Removing Barriers to Infrastructure Investment (adopted September 26,
2018) indicates:
... a state or local legal requirement will have the effect of prohibiting wireless
telecommunications services if it materially inhibits the provision of such services. We clarify
that an effective prohibition occurs where a state or local legal requirement materially
inhibits a provider's ability to engage in any of a variety of activities related to its provision of
a covered service. This test is met not only when filling a coverage gap but also when
densifying a wireless network, introducing new services or otherwise improving service
capabilities... a state or local legal requirement could materially inhibit service in numerous
ways —not only by rendering a service provider unable to provide an existing service in a new
geographic area or by restricting the entry of a new provider in providing service in a
particular area, but also by materially inhibiting the introduction of new services or the
improvement of existing services. Thus, an effective prohibition includes materially inhibiting
additional services or improving existing services... (paragraph 37).
An industry representative requested that the "materially inhibit" language be inserted in the Special
Exception section of the code.
31
PLN2021-00005
Planning Commission Recommended Version 91812022
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.
Rationale: A special exception may be requested for the whole wireless
facility, not just the antenna.
Rationale: The special exception approval criteria are listed below and it is unclear
what the above text is intended to achieve.
(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+"�nTchapter
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 facilitiesaRteRRa 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' udge based
on the following criteria:
32
PLN2021-00005 Planning Commission Recommended Version 91812022
(i) The extent to which screening and camouflaging is existing or will be employed to
mitigate the effects of the structure versus the effectivenessvalue 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.
(iii) The impact on adjacent properties.
(•.) Location street Fight of , . (Ord. 2014-042 § 1 (Att. A), 2014; Ord. 2013-057 §
1 (Exh. A), 2013; Ord. 2000-006 § 1, 2000).
Rationale: WCC 20.13 does not apply within the street right of way (see proposed
WCC 20.13.030(7) and (8).
(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.
Rationale: If a proposal does not meet the definition of small wireless facility, it would have to be re-
submitted as a macro wireless facility.
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).
Rationale: Pursuant to 47 CFR 1.6100(b)(3) and (7) a proposal will not qualify as an "eligible facilities request" if,
among other things, "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." The FCC's Declaratory Ruling and Notice
of Proposed Rulemaking (June 2020) states "... there must be express evidence that at the time of approval the
locality required the feature and conditioned approval upon its continuing existence in order for non-compliance
with the condition to disqualify a modification from being an eligible facilities request..." (page 22). Therefore, it
is important to explicitly set forth conditions associated with the original permit for a small wireless or macro
wireless facility so that subsequent eligible facility requests can be evaluated for compliance with these conditions.
33
PLN2021-00005
K2Ce� 19ii CAf� t ?E}R;G@t; S @1S.
34
Planning Commission Recommended Version 91812022
PLN2021-00005
Planning Commission Recommended Version 91812022
Rationale: In accordance with proposed amendments to WCC 22.05.050, the County
will prepare application forms specifying submittal requirements for wireless
communication facilities. These submittal requirements may also be included in the
Planning and Development Service Department's administrative manual.
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--.
{44the height requested is the minimum height necessary to fulfill the site's function within the
wireless service provider's system.
Rationale: There may be multiple high priority sites available, so it is not necessary
to show that the antenna must be located at any one particular site. Additionally,
the applicant must address higher priority locations under criterion (2) below.
(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.
35
PLN2021-00005
Planning Commission Recommended Version 91812022
Rationale: Conditions of approval are addressed under proposed WCC
20.13.120. Visual impacts are addressed in WCC 20.13.080 (prohibited
locations), WCC 20.13.085 (siting priorities), WCC 20.13.090 (design and
development standards), and WCC 20.13.095 (concealment elements).
(3) The applicant shall submit documentation that the personal wireless service facilities comply with
applicable FCC regulations concerning radio frequency emissions.
Rationale: Federal law, passed by the U.S. Congress, indicates that:
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 (47 U.S. Code 332(c)(7)(B)(iv)).
While the federal government preempts regulation of radio frequency emissions, there is nothing
that says local government cannot require documentation that a proposed small or macro wireless
facility will comply with FCC regulations.
With regard to eligible facilities requests, federal regulations adopted by the FCC state:
...a State or local government may require the applicant to provide documentation or
information only to the extent reasonably related to determining whether the request
meets the requirements of this section. A State or local government may not require an
applicant to submit any other documentation... (47 CFR 1.6100(c)(1)).
Therefore, it appears that the County cannot require the applicant to submit radio frequency
emission documentation for eligible facilities requests.
(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
PLN2021-00005
Planning Commission Recommended Version 91812022
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).
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, including geog aphiGally
to determine the specific technical parameters of their services and low
, 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
„rfe,r<enee and 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:
110
PLN2021-00005
Planning Commission Recommended Version 91812022
Rationale: An industry representative recommended removing "interference" in the
above text stating:
... the Federal Communications Commission has the exclusive authority to
regulate radio frequency interference, and local regulations that require a
wireless applicant to demonstrate that its facilities will not cause RFI are
impliedly preempted by federal law. New York SMSA Limited Partnership v.
Town of Clarkstown, 612 F.3d 97, 105 (2nd Cir. 2010).
A representative of the Whatcom County Prosecuting Attorney's Office reviewed this
case and stated in an e-mail of January 20, 2022 that frequency regulation is
preempted and it is appropriate to remove the word "interference" (in the text
above).
(1) The accuracy and ee-plee mess of submissions;
(2) The applicability of analysis techniques and methodologies;
(3) The validity of conclusions reached; and
(4) Any specific technical issues designated by the county.
Rationale: The Planning and Development Services Department makes
determinations of completeness without consultant assistance.
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 serviceearnmunieation 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.
Rationale: The language relating to denials has been moved to from WCC 20.13.010
(Purpose), because it fits better under the Project permit procedures section. This
language is from 47 US Code Section 332(c)(7)(13)(ii).
9M
PLN2021-00005
Planning Commission Recommended Version 91812022
Rationale: Appeal procedures are set forth in WCC 22.05, Project Permit Procedures.
39
PLN2021-00005 Planning Commission Recommended Version 91812022
EXHIBIT B
Amend WCC20.82, 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 pursuant to
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 3 6.70A. 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 not permit
PLN2021-00005
Planning Commission Recommended Version 91812022
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 associateda+-y structures regulated under WCC 20.13 nor to structures or towers in
the public right of way associated with wireless eemmuinieat;eRs fae;ht;
(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 and similar
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
Planning Commission Recommended Version 91812022
(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 Planning Commission Recommended Version 91812022
EXHIBIT C
Amend WCC20.83, 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:
f aLa4Nonconforming 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.
PLN2021-00005
Planning Commission Recommended Version 91812022
(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 Planning Commission Recommended Version 91812022
EXHIBIT D
Amend WCC 20.97, Definitions, as shown below.
Rationale: A definition of "Personal wireless service facility" has been
inserted in proposed WCC 20.13.020(19), with the rest of the definitions
relating to wireless facilities.
PLN2021-00005 Council Planning & Development Committee Version 1011112022
Amend WCC22.05, 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
PLN2021-00005 Council Planning & Development Committee Version 1011112022
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 36.7013 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.
Rationale: Federal laws (US Code) and regulations (Code of Federal Regulations or CFR)
preempt certain local governmental authority relating to personal wireless service
facilities. Therefore, the County's project permit procedures must be modified for these
facilities.
(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 20,4:� 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 Hearing
Hearing Held By:
Maker
(see 2.11.210, 22.05.
Processing Table
Specific
{see 22.05:
ness Required
(see 22.05. '
{see 22.05
Required
(see 22.05.090)
{see 2.11.210,
150, 23.60.150(H))
Requirements
040)
(see 22.05.050)
070)
080)
(see 22.05.090)
2205.120)
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)
PLN2021-00005 Council Planning & Development Committee Version 1011112022
Pre-
Notice of
Site
County
WCC ':
Determination
.Notice
of Open
Application
Application
Posting
Open Record
Decision
AppealBody
Permit Application
Reference for
Required
of Complete-
Required
Required
Record Hearing
Hearing Held By:
Maker
(see 2.11.210, 22,05,
Processing Table
Specific
(see 22.05.
ness Required
(see 22.05.
(see 22.05
Required
(see 22.05.090)
(see 2.11.210,
160, 23.60.150(H))
Requirements
040)
(see 22.05.050)
O70) '
.0$D)
(see 22.05.090)
22.05.120)
Natural Resource
Title 16
✓
Director
Hearing Examiner
Assessment
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
Pe
mitted
sonaI Wireless
20.13
✓
Director
Court of competent
iunsdiction
]Se
vice Facilities
Type II Applications (Administrative Decision with Public Notice; No Public Hearing)
Atinistrative
22.05.028
✓
✓
✓
✓
Director
Hearing Examiner
Us
Ad
ninistrative
, for Personal
20.13
✓
✓
✓
Director
Court of competent
Us
jurisdiction
PLN2021-00005 Council Planning & Development Committee Version 1011112022
Permit Application
Processing Table
WCC +
Reference for
specific
Requirements
Pre-
Application
Required
(see 22.05.
040)
Determination
of Complete-
ness Required
(see 22.05.050)
Notice of
Application
Required
(see 22.05.
070)
Site
Posting
Required
(see 22.05
.080)
Notice of Open
Record Hearing
Required
(see 22.05.090)
Open Record
Hearing Held By:
(see 22.05.090)
County
Decision
Maker
(see 2.11,210,
22.05.120)
ppeal Brady
(see 2.11.210, 22:05.
160, 23.60.150(H))
Wi
eless Service
jLilies
Lot Consolidation
Relief
20.83.070
✓
✓
✓
Director
Hearing Examiner
Reasonable Use
(b)
16.16
✓
✓
✓
Director
Hearing Examiner
Shoreline
Substantial (c)
23.60
✓ (a)
✓
✓
✓
Director (d)
Shorelines Hearings
Board (h)
Shoreline
Conditional Use (c)
23.60
✓(a)
✓
✓
✓
Director(d)
Hearing Examiner
Zoning or Critical
Areas Variance,
Minor
22.05.024
✓
✓
Director
Hearing Examiner
Zoping
or Critical
22.05.024
✓
Director
Court of Competent
Areas
Variance
or
Personal
eless Service
ilities
Jurisdiction
Mi
for
Wi
Fa
Short Subdivision
21.04
✓
✓
✓
✓
Director
Hearing Examiner
Tye
III Applications (Hearing Examiner Decision with Public Notice and Public Hearing)
Conditional Use
22.05.026
✓
✓
✓
✓
✓
Hearing
Examiner
Hearing
Examiner
Superior Court
Co
iditional Use
Personal
^eless Service
ilities
WCC 20.13
_✓
✓
✓
✓
Hearing
Examiner
Hearing
Examiner
Court of Competent
for
Jurisdiction
Wi
Fai
Floodplain
Development
Variance
Title 17
✓
✓
✓
✓
Hearing
Examiner
Hearing
Examiner
Superior Court
PLN2021-00005 Council Planning & Development Committee Version 1011112022
Pre-
Notice of
Site
County
WCC
'Determination
Notice of Open
Application
I
Application
Posting
Open Record
Decision
Appeal,Body
Permit Application
Reference for
Required
of Complete-
Required
Required'
Record Hearing
Hearing Held By:
Maker
(see 2.11.210, 22.05.
Processing Table
Specific
(see 22.05.
ness Required
(see 22.05.
(see 22.05
Required
(see 22.05.090)
(see 2.11.210,
160, 23,60.150(H))
Requirements
(see 22.05.050)
(see 22A5.090)
040)
070)
.080)
22.05.120)
Long Subdivision
21.05
✓
✓
✓
✓
✓
Hearing
Hearing
Superior Court
Examiner
Examiner (g)
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
Zo
ing or Critical
22,05,024 or
✓
✓
_✓_
✓
Hearing
Hearing
Court of Competent
16.16.273
Jurisdiction
Areas
Variance,
Examiner
Examiner
M
jor
Foi
Personal
-eless Service
ilities
Wi
Fa
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
PLN2021-00005 Council Planning & Development Committee Version 1011112022
Check marks indicate a step is required; reference letters refer to the notes in subsection (2) of this
section.
(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 to the
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)).
Rationale: See proposed amendments to WCC 20.13, personal wireless service facilities, on rationale for
status as permitted use (Type 1), administrative approval use (Type II), or conditional use (Type III).
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.
PLN2021-00005 Council Planning & Development Committee Version 1011112022
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.
(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 this chapter.
PLN2021-00005 Council Planning & Development Committee Version 1011112022
(2) Conditional use permits shall be nontransferable unless said transfer is approved by the hearing
examiner.
(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;
PLN2021-00005 Council Planning & Development Committee Version 1011112022
(c) The applicant has documented to the county decision maker (as applicable)
(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 and 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 Council Planning & Development Committee Version 1011112022
(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.
10
PLN2021-00005 Council Planning & Development Committee Version 1011112022
(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
11
PLN2021-00005 Council Planning & Development Committee Version 1011112022
(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.
12
PLN2021-00005 Council Planning & Development Committee Version 1011112022
(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 per subsection
(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 Facilitv 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.
( ) 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'sapplication 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
13
PLN2021-00005 Council Planning & Development Committee Version 1011112022
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.
Rationale for Eligible Facilities Requests: The FCC's Declaratory Ruling and Notice of Proposed Rulemaking (June 2020) states:
The 60-day shot clock ... begins to run when an applicant takes the first procedural step in a locality's application process and
submits written documentation showing that a proposed modification is an eligible facilities request ..." (p. 7). This FCC language
makes it important to set forth in local code the "first procedural step" so that it is clear when the 60-day shot clock begins.
47 CFR Section 1.6100(c)(1), relating to eligible facility requests, states:
When an applicant asserts in writing that a request for modification is covered by this section, a State or local government
may require the applicant to provide documentation or information only to the extent reasonably related to determining
whether the request meets the requirements of this section. A State or local government 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.
Rationale for Small Wireless Facilities and Macro Wireless Facilities: 47 CFR 1.6003(e) states "... The shot clock date for a siting
application is determined by counting forward, beginning on the day after the date when the application was submitted..."
As noted above, the FCC's Declaratory Ruling and Notice of Proposed Rulemaking (June 2020) states, for eligible facility requests, the
shot clock "... begins to run when an applicant takes the first procedural step in a locality's application process and submits written
documentation showing that a proposed modification is an eligible facilities request ..." (p. 7). While the FCC's 2020 Ruling only
applies to eligible facility requests, it is presumed that they would take a similar approach for other wireless facilities. In any event,
it's important to set forth in local code when the shot clocks begins for small and macro wireless facilities.
(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) �ni� 14 calendar days f receiving the a ni:eat r *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.
14
PLN2021-00005 Council Planning & Development Committee Version 1011112022
Rationale: 47 CFR 1.6003(d)(1) states:
For an initial application to deploy Small Wireless Facilities, if the siting authority 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 siting authority to render the application complete.
The CFR allows a longer period (30 days) for eligible facilities requests for the initial determination of
incompleteness. However, because there are tight time frames for reviewing these applications, it is
better to quickly make the determination of completeness or incompleteness so the County has more
time to process the permit application.
The CFR also allows a longer period (30 days) for macro wireless facilities for the initial determination of
incompleteness. Because these facilities are typically larger and the overall time frames for reviewing
these applications is longer, it is reasonable to allow the full 30 days for the determination of
completeness.
(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 protect 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 protect 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.
The director or designee may extend this period for an additional 90 calendar days upon written
request by the applicant.
15
PLN2021-00005 Council Planning & Development Committee Version 1011112022
(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.
Rationale: For eligible facilities requests, 47 CFR 1.6100(c)(3)(iii) states: "Following a supplemental submission,
the State or local government will have 10 days to notify the applicant that the supplemental submission did
not provide the information identified in the original notice delineating missing information..."
There are also benefits for the County to provide the notification within 10-days for small and macro wireless
facilities under 47 CFR 1.6003(d)(3). Specifically, the time it takes the applicant to submit the required
information is not counted in the federally mandated time frame for review if the County provides the
determination within 10 days.
(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;
16
PLN2021-00005 Council Planning & Development Committee Version 1011112022
(e) Major project permit;
(f) Natural resource review;
(g) Planned unit development;
(h) Reasonable use (Type II and III);
(i) Shoreline conditional use permit;
(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 the county;
17
PLN2021-00005 Council Planning & Development Committee Version 1011112022
(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;
(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.
Rationale: Planning Commission —To alert the public to the federal preemption of
local government regulation of radio frequency emissions. Council P&D Committee
substituted "may" for "shall" on 10/11/2022 (3-0 vote).
(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;
18
PLN2021-00005 Council Planning & Development Committee Version 1011112022
Rationale: Planning Commission — Impacts from personal wireless service facilities are similar regardless of
whether the facility is in an urban growth area or not. Council P&D Committee voted to maintain the
above language on 10/11/2022 (3-0 vote).
(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 the public
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 heari
examiner. These hearings are subject to the following:
19
PLN2021-00005 Council Planning & Development Committee Version 1011112022
Rationale: Appeals of personal wireless service facilities are filed with a court of
competent jurisdiction, rather than the hearing examiner, under the subject proposal.
(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 36.70E RCW. This
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)).
20
PLN2021-00005 Council Planning & Development Committee Version 1011112022
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)).
22.05.110 Final decisions —Type I, 11, 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.
21
PLN2021-00005 Council Planning & Development Committee Version 1011112022
(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
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.
22
PLN2021-00005 Council Planning & Development Committee Version 1011112022
(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)).
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
23
PLN2021-00005 Council Planning & Development Committee Version 1011112022
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
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
24
PLN2021-00005 Council Planning & Development Committee Version 1011112022
(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
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
25
PLN2021-00005 Council Planning & Development Committee Version 1011112022
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(I);
(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.
(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
26
PLN2021-00005 Council Planning & Development Committee Version 1011112022
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) Followine a supplemental submission, the countv will notifv 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.
vii) In the event the countv fails to approve or denv 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.
27
PLN2021-00005 Council Planning & Development Committee Version 1011112022
Rationale for Eligible Facility Request Permit Timeframes: There are several U.S. Code provisions (adopted by Congress)
and CFR provisions (adopted by the FCC) that shape the above language:
47 U.S. Code Section 1455(a)(1) indicates that "... a State or 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."
47 CFR Section 1.6100(c)(2) states "Within 60 days of the date on which an applicant submits a request seeking approval
under this section [relating to eligible facilities requests], the State or local government shall approve the application unless
it determines that the application is not covered by this section."
47 U.S. Code Section 332(c)(7)(B)(iii) states "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."
The above tolling provisions are from 47 CFR 1.6100(c)(3), with minor changes such as citing the County Code. It should be
noted that the proposal requires a determination of completeness or incompleteness within 10 days under
WCC22.05.050(3) so that the bulk of the time allowed under federal regulations is available for processing the application.
However, for purposes of tolling under federal regulations, the timeframe for processing a permit is tolled if written notice
is issued within 30 days pursuant to proposed WCC 22.05.130(d).
Finally, the above "deemed granted" language is based upon 47 CFR 1.6100(c)(4). This federal code preempts local
government approval authority if a decision is not rendered on a permit application within the time frame for review set
forth in federal regulations. The proposed County Code contains minor changes to the language in the federal code (such
as substituting "County" for "State or local government"). Text has also been added that the "deemed granted" status only
applies if required by federal law or regulation (if this provision was ever deleted from the federal rules, it would no longer
apply in the County Code).
(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.
00 Review of an application to deploy a small wireless facility using a new
structure: 90 days.
NO 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
kBI
PLN2O21-00005 Council Planning & Development Committee Version 1011112022
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.
NO 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 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.
Rationale for Small Wireless Facilities Permit Timeframes: 47 US Code Section 332(c)(7) (B)(ii) indicates: "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" (bold added for emphasis).
47 CFR Section 1.6003 provides "Presumptively reasonable periods of time" for action, as follows:
(i) Review of an application to collocate a Small Wireless Facility using an existing structure: 60 days...
(iii) Review of an application to deploy a Small Wireless Facility using a new structure: 90 days. . .
The FCC Declaratory Ruling and Third Report and Order in the matter of Accelerating Wireless Broadband Deployment by Removing
Barriers to Infrastructure Investment (adopted September 26, 2018) explain the 60 and 90 day timeframes for processing small
wireless facilities:
... a shorter, 60-day shot clock for processing collocation applications for Small Wireless Facilities is reasonable ...
collocation applications are generally easier to process than new construction because the community impact is likely to be
smaller. In particular, the addition of an antenna to an existing tower or other structure is unlikely to have a significant visual
impact on the community. The size of Small Wireless Facilities poses little or no risk of adverse effects on the environment or
historic preservation. Indeed, many jurisdictions do not require public hearings for approval of such attachments,
underscoring their belief that such attachments do not implicate complex issues requiring a more searching review.
... we also find it reasonable to establish a new 90 day Section 332 shot clock for new construction of Small Wireless
Facilities. Ninety days is a presumptively reasonable period of time for localities to review such siting applications. Small
Wireless Facilities have far less visual and other impact than the facilities we considered in 2009 [i.e. macro facilities], and
should accordingly require less time to review... (paragraphs 106, 107, and 111 ).
29
PLN2021-00005 Council Planning & Development Committee Version 1011112022
(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.
0i) 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 tolline 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.
mitted applications followinE a notice of deficiencv, the tolline 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.
vil The shot clock date for an application is determined by counting forward, beRinnine 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 dav" means anv dav, except Saturdav or Sundav, that is not a
legal holiday.
30
PLN2021-00005 Council Planning & Development Committee Version 1011112022
Rf tionale for Macro Wireless Facilities Permit Timeframes: 47 US Code Section 332(c)(7) (B)(ii) indicates:
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 (bold
added for emphasis).
47 CFR Section 1.6003 provides "Presumptively reasonable periods of time" for action, as follows:
(ii) Review of an application to collocate a facility other than a Small Wireless Facility using an existing structure: 90
days.
(iv) Review of an application to deploy a facility other than a Small Wireless Facility using a new structure: 150 days.
A facility "other than a Small Wireless Facility" is called a "macro wireless facility" in the proposed regulations.
The FCC Declaratory Ruling (adopted November 18, 2009) explains the 90 and 150 day timeframes, still applicable to macro
wireless facilities, as follows:
... we consider the nature and scope of the request by defining a shorter timeframe for collocation applications,
consistent with record evidence that collocation applications generally are considered at a faster pace than other
tower applications... (paragraph 42).
Tqe above tolling provisions are from 47 CFR 1.6003(d), with minor changes such as citing the County instead of the "siting
authority."
(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)).
31
PLN2021-00005 Council Planning & Development Committee Version 1011112022
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
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 of witnesses.
(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.
32
PLN2021-00005 Council Planning & Development Committee Version 1011112022
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 the decision
fails to satisfy the applicable decision criteria;
(iv) The specific relief requested; and
(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
33
PLN2021-00005 Council Planning & Development Committee Version 1011112022
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)).
Rationale: With regard to eligible facilities requests, 47 CFR Section 1.6100(c)(5) states "Applicants and
reviewing authorities may bring claims related to Section 6409(a) to any court of competent jurisdiction."
Section 6409(a) is part of the Middle Class Tax Relief and Job Creation Act of 2012 (AKA Spectrum Act),
addressing these facilities. Section 6409 of this Act, now codified as 47 U.S. Code Section 1455(a)(1),
indicates:
... a State or 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.
The County would not have sufficient time to process all required permits and an appeal to the hearing
examiner within the 60 day period for reviewing eligible facility requests under federal regulations.
Therefore, such appeals will be made to court.
With regard to small wireless facilities and macro wireless facilities, 47 USC 332(c)(7)(B)(v) states:
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 basis...
Small wireless facilities must be processed within 60 to 90 days. Macro wireless facilities approved by the
PDS Director must be processed within 90 days (macro facilities on a new structure must be approved
within 150 days, but these would require a conditional use permit decided by the hearing examiner). The
County would have difficulty processing all required permits and an appeal to the hearing examiner within
the 60 to 90 day period for reviewing these facilities under federal regulations.
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)).
34