Port Orchard, WA Zoning Ordinance

Home businesses are permitted in a residential dwelling unit subject to the provisions of the city's zoning ordinance and if all of the following criteria are met:

The home business shall clearly be subordinate to the use of the dwelling unit for residential purposes. The burden of establishing that the home business is subordinate to the primary residential use is upon the applicant for a business license.

The home business shall be owned or conducted by a resident of the dwelling unit. If the applicant for the business license is a resident but does not own the dwelling unit, the applicant shall obtain written approval of the proposed home business from the owner. The burden of establishing that the home business is owned or conducted by a resident of the dwelling unit is upon the applicant for a business license.

No more than one person who is not a resident shall be employed in the home business without obtaining a conditional use permit.

If more than one home business is proposed to be located or conducted within any single dwelling unit, including accessory structures, and a conditional use permit is required by the provisions of this chapter or the land use and development regulatory code for one or more of the home businesses, the applicant shall obtain a separate conditional use permit for each home business pursuant to Chapter 20.50 POMC.

The residential character of the building shall be maintained and the business shall be wholly situated indoors. There shall be no exterior display, alteration of the property, expansion of parking, storage or other exterior indication of the existence of the home business, except as may be allowed by the underlying zone. Signs may be allowed in accordance with the city's sign regulations under Chapter 20.132 POMC.

Home businesses shall not involve the use of more than 40 percent or 1,000 square feet, whichever is less, of the combined gross floor area of the principal residential building, garage, and the living area of any accessory structure.

A home business shall not include the following uses: commercial instruction with four or more students, commercial stable, kennel, restaurant, marijuana (processing, production, and/or retail), medical clinic, vehicle detailing, and minor or major vehicle repair.

The home business shall not infringe upon the right of neighboring residents to enjoy the peaceful occupancy of their homes. No offensive noise, vibration, smoke, dust, odor, heat, glare or unusual or excessive traffic to and from the premises shall be produced or generated by the home business.

There shall be no use of electrical or mechanical equipment which would change the fire rating of the structure or which would create visible or audible interference in radio or television receivers or which would cause fluctuations in line voltage outside the dwelling.

In order to better ensure neighborhood compatibility, if a conditional use permit is required by the provisions of this chapter or the land use and development regulatory code, the applicant may be required to install and maintain landscape screening or similar sight obscuring structures such as fencing.

Persons engaged in legal home businesses on the effective date of the ordinance codified in this chapter shall be considered legal, provided the operation is consistent with all of the above-listed standards. Any home business which was legally established but does not currently conform to all those standards may not expand or enlarge and shall be subject to revocation of their business license upon:

Change of use, sale or transfer of the home business, or relocation of the home business to a new location; or

Written complaint of adjacent or nearby resident which clearly establishes that the home business is interfering with the use and enjoyment of the neighboring premises and is not compatible with the residential environment in which it is located.

Home business licenses and conditional use permits are not transferable. Any changes to the home business use, sale or transfer of the home business, or relocation of the home business to a new location shall be deemed an abandonment of the license and of any conditional use permit.

The provisions of this chapter shall not apply to the following: bed and breakfast establishments, as defined in Chapter 20.12 POMC; daycare facilities, as defined in Chapter 20.12 POMC.

Any person violating or failing to comply with any of the provisions of this chapter and/or with the provisions of Chapter 5.12 POMC, as applicable, shall be subject to the penalty provisions of POMC § 5.12.160 and § 5.12.170 now or as hereafter amended.

(Ord. 019-17 § 18 (Exh. 1))

§ 20.60.050 Revocation of home business license.

In addition to any other penalties provided in POMC Title 5, or as otherwise permitted by law, a home business license may be revoked under any of the following circumstances:

The license or licensee qualifies for revocation or suspension as set forth in POMC § 5.12.120;

The license or licensee fails to comply with any provisions of a conditional use permit; or

The licensee fails to comply with any provision of this chapter.

If the city receives a complaint from an adjacent or nearby resident that alleges that the licensee is failing to comply with the provisions of this chapter and/or the provisions of any applicable conditional use permit, the city staff shall investigate the complaint and shall give the licensee an opportunity to rebut any claims or complaints.

Upon determination that there is cause for revocation of a home business license by the city, notice shall be sent to the licensee as set forth in POMC § 5.12.120(2).

A licensee is entitled to a hearing on revocation of their home business license. A request for a hearing must be received by the city within 15 days of the licensee's receipt of the city's notice under subsection (3) of this section. Failure to request a hearing within 15 days shall be deemed a waiver of the licensee's right to a hearing and shall result in the decision of city staff to revoke the home business license being final.

If a request for hearing is received in accordance with subsection (4) of this section, a hearing on revocation of a home business license shall be handled in the same manner as set forth in POMC § 5.12.120(3) through (6).

(Ord. 019-17 § 18 (Exh. 1))

§ 20.64.010 Findings, purpose, and intent.

In November 2012, Washington voters passed Initiative 502, which established precedent for the production, processing and retail sale of marijuana for recreational purposes. Pursuant to Chapter 69.50 RCW, the state has adopted rules establishing a state-wide regulatory and licensing program for marijuana uses (Chapter 315-55 WAC). It is therefore desirable for the city to establish local regulations to address such uses.

In April 2015, the Washington State Legislature amended the statutory definitions relating to medical marijuana in RCW 69.51A.010, and also eliminated the regulations applicable to "collective gardens" and adopted provisions allowing medical marijuana "cooperatives" effective July 1, 2016.

The purpose of these regulations is to establish where recreational marijuana producers, processors and retail outlets and medical marijuana cooperatives may locate in the city, and to describe the restrictions upon such uses.

These regulations are intended to ensure that state-licensed marijuana uses are located and developed in a manner that is consistent with the desired character and standards of the city of Port Orchard, minimizes potential incompatibilities and impacts, and protects the public health, safety, and general welfare of the citizens of Port Orchard.

No part of this chapter is intended to or shall be deemed to circumvent federal law, or provide permission to any person or entity to violate federal law, including but not limited to the Controlled Substances Act, 21 U.S.C. Section 800 et seq., the Uniform Controlled Substances Act (Chapter 69.50 RCW), nor to otherwise permit any activity that is prohibited under either Act, or any other local, state or federal law, statute, rule or regulation. Nothing in this chapter shall be construed to supersede Washington State law prohibiting the acquisition, possession, manufacture, sale or use of marijuana in any manner not authorized by Chapter 69.50 or 69.51A RCW. Nothing in this chapter shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, or that creates a nuisance, as defined herein.

This chapter incorporates certain requirements and procedures set forth in Chapter 69.50 RCW and Chapter 314-55 WAC. Except as otherwise specifically provided herein, in the event of any conflict between the provisions of this chapter and the provisions of Chapter 69.50 RCW or Chapter 314-55 WAC, the more restrictive provision shall control.

(Ord. 019-17 § 18 (Exh. 1))

§ 20.64.020 Applicability.

The provisions of this chapter shall apply city-wide. The specific development standards provided herein shall be in addition to the land use and development regulations generally applicable to the proposed use and the relevant zoning district.

The regulations under Chapter 69.50 RCW and Chapter 314-55 WAC, now or as may hereafter be amended, shall apply to all marijuana businesses and medical marijuana cooperatives, as applicable, in addition to the provisions of this chapter.

No person or use that purports to be a marijuana producer, processor, or retailer, or a medical marijuana collective garden, as defined and regulated herein and in Chapters 69.50 and 69.51A RCW and Chapter 314-55 WAC, that was engaged in that activity prior to the enactment of this chapter shall be deemed to have been a legally established use or entitled to claim legal nonconforming status.

The city may, prior to issuance of any license or permit, perform an inspection of the proposed premises to determine compliance with any applicable requirements of this chapter and all other applicable city ordinances and regulations.

(Ord. 019-17 § 18 (Exh. 1))

§ 20.64.030 Location criteria.

No marijuana business or medical marijuana cooperative may locate within 1,000 feet of any of the following:

Elementary or secondary school;

Playground;

Recreation center or facility;

Child care center;

Public park;

Public transit center;

Library; or

Any game arcade (where admission is not restricted to persons age 21 or older).

The methodology for measuring the buffers described above shall be as provided in WAC 314-55-050.

It shall be the responsibility of the owner or operator of the proposed state-licensed marijuana use to demonstrate and ensure that a proposed location is not within one of the buffers outlined above.

No marijuana business may locate within any residentially zoned district or within any residential unit in the city.

No medical marijuana cooperative may be located within one mile of a marijuana retail outlet.

(Ord. 019-17 § 18 (Exh. 1))

§ 20.64.040 Allowed in identified zones.

Marijuana businesses, including production, processing and retail, shall only be allowed in those zoning districts where it is specifically identified as a permitted use.

Marijuana retail outlets shall not be open to the public between the hours of 12:00 a.m. and 8:00 a.m.

An existing nonconforming use located within a zoning district that would otherwise not permit marijuana uses, such as an old convenience store in a residential zone, shall not be allowed to convert to a marijuana use.

(Ord. 019-17 § 18 (Exh. 1))

§ 20.64.050 Licenses required.

A valid, current license is required from the Washington State Liquor and Cannabis Board for operation of any marijuana business. A copy of this license shall be submitted to the city as part of the complete application for a city business license.

A valid, current registration is required from the Washington State Liquor and Cannabis Board for operation of any medical marijuana cooperative. A copy of this registration shall be submitted to the city as part of the complete application for a city business license.

No marijuana business or medical marijuana cooperative may operate or open for business prior to receipt of a city business license. The process for obtaining a city business license is set forth in Chapter 5.12 POMC.

(Ord. 019-17 § 18 (Exh. 1))

§ 20.64.060 Signs and advertising.

All signage and advertising for a marijuana business shall comply with the applicable provisions of this chapter, the sign regulations in Chapter 20.132 POMC, the land use and development regulatory code, and state law (and all applicable rules and regulations promulgated thereunder).

The city may enforce this section pursuant to Chapter 20.02 POMC. For violations of state law, the city may report the violation to the Washington State Liquor and Cannabis Board.

(Ord. 019-17 § 18 (Exh. 1))

§ 20.64.070 Report of disturbance and unlawful activity.

All marijuana businesses, and any agent, manager or employee thereof, shall immediately report to the city police department any disorderly act, conduct or disturbance and any unlawful activity committed in or on the licensed and permitted premises, including, but not limited to, any unlawful resale of marijuana, and shall also immediately report any such activity in the immediate vicinity of the business.

Each marijuana business shall post and keep at all times visible to the public in a conspicuous place on the premises a sign with a minimum height of 14 inches and a minimum width of 11 inches with each letter to be a minimum of one-half inch in height, which shall read as follows:

WARNING:
The City of Port Orchard Police Department must be notified of all disorderly acts, conduct or disturbances and all unlawful activities which occur on or within the premises of this licensed establishment.

It shall not be a defense to a prosecution of a code enforcement action under this section that the licensee was not personally present on the premises at the time such unlawful activity, disorderly act, conduct or disturbance was committed; however, no agent or employee of the licensee shall be personally responsible for failing to report any disorderly act, conduct or disturbance and any unlawful activity hereunder if such agent, servant or employee was absent from the premises at the time such activity was committed.

(Ord. 019-17 § 18 (Exh. 1))

§ 20.64.080 Visibility of activities – Control of emissions.

All activities of the marijuana business, including, but not limited to, cultivating, growing, processing, displaying, manufacturing, selling and storage, shall be conducted out of the public view.

No marijuana or paraphernalia shall be displayed or kept in a marijuana business so as to be visible from outside the licensed premises.

Sufficient measures and means of preventing smoke, odors, debris, dust, fluids and other substances from exiting the marijuana business must be in effect at all times. In the event that any odors, dust, fluids or other substances exit a marijuana business, the owner of the subject premises and the licensee shall be jointly and severally liable for such conditions and shall be responsible for the immediate, full clean-up and correction of such condition. The licensee shall properly dispose of all such materials, items and other substances in a safe, sanitary and secure manner and in accordance with all applicable federal, state and local laws and regulations.

(Ord. 019-17 § 18 (Exh. 1))

§ 20.66.010 Definitions.

The words and phrases used in this chapter, unless the context otherwise indicates, shall have the following meanings:

"Driveway" and "parking pad"

mean established driving and parking areas located on the property, not within the public right-of-way, private roadway, or ingress/egress easement.

"Major parts and components"

means and includes, but is not limited to: body panels, frame components, bumpers, hoods, doors, engines, transmissions, differentials, and similar parts and assemblies.

"Recreational, sporting, and utility vehicles and equipment"

means and includes, without limitation: motorhomes, travel trailers, pickup truck campers, off-road vehicles, boats, jet skis, racing vehicles of all types, construction vehicles and equipment, boat and utility trailers, motorcycles, and all such similar vehicles and equipment, whether self-powered or unpowered.

"Roadway"

means and includes the paved or unpaved road surface and any associated sidewalk, improved or unimproved shoulder, parking strip, and landscaping.

"Vehicles and equipment"

means and includes motor vehicles, nonmotorized, recreational, sporting, utility, or other vehicles and related equipment of any type.

"Work"

means and includes, but is not limited to, repair, service, maintenance, restoration, modification, assembly, disassembly, construction, reconstruction, testing, tune-up and other work, and is categorized as follows:

"Major work"

means and includes, but is not limited to: removal, installation, disassembly, or assembly of major parts and components; body or frame work; rebuilding engines and transmissions; testing of alarms and sound systems; and similar work.

"Minor work"

means routine, basic maintenance and repairs, including such work as changing tires, fluids, and filters, replacing wiper blades, light bulbs, brake pads/shoes, and other minor parts, diagnostics and tune-ups, and similar work.

(Ord. 023-19 § 1)

§ 20.66.020 Service and repair standards.

The repair, service, restoration, modification, assembly, disassembly, construction, reconstruction, tune-up, or other work on motor, recreational, sporting, utility, or other vehicles on any residential premises in any nonresidential zone, unless an integral part of a legal use in the zone, or on any property in any residential zone, unless an integral part of a legal nonconforming use, shall be subject to the following standards:

Work shall be limited to the noncommercial service, repair, and maintenance of motor vehicles, recreational, sporting, or utility vehicles and vehicular equipment that are owned by or currently registered to residents of the premises on which the work is being done.

Major work is prohibited in multifamily residential complexes of five or more dwelling units on a parcel, unless entirely within an enclosed garage.

Work shall not be done on a vacant lot or in or on any public or private roadway, public right-of-way, or ingress/egress easement, including those adjacent to the owner's residence, except for emergency repairs necessary to enable the safe movement of a vehicle stranded on the roadway or right-of-way. Vehicles undergoing, awaiting, or otherwise associated with such work shall not be stored on any vacant lot, roadway, easement, or public right-of-way.

No more than one vehicle may be undergoing or in any stage of service, repair, or other work at any one time.

Outdoor work shall be conducted only between the hours of 7:00 a.m. and 7:00 p.m. on weekdays and 9:00 a.m. and 7:00 p.m. on weekends.

Major work shall only be conducted within a fully enclosed garage or accessory building. Minor work shall only be performed in a fully enclosed building, an open accessory structure, on a parking pad or in the driveway.

Parts, equipment, tools, debris, excess materials or other supplies shall be stored within a fully enclosed structure such as a garage or accessory building when not in use.

Work shall not create a nuisance to the neighbors or the public. Work shall not include the repeated or extended revving of engines, noises in violation of POMC § 9.24.050 (public disturbance noises), or the creation of smoke or noxious fumes or vapors that extend beyond the perimeter of the property, or create a fire hazard or other danger to the public health, safety, or welfare.

Upon completion of any work regulated by this section, the property shall be cleaned of all debris, oil, grease, gasoline, cloths or rags, and all other equipment or material used in the work, and the property shall be left in such a condition that no hazard to persons or property shall remain.

Oil, gasoline, antifreeze, and other automotive fluids, solvents, or other chemicals shall not be drained or allowed to spill on the ground. Spills of any such fluids or chemicals shall be cleaned up promptly and thoroughly and all fluids, chemicals, and contaminated soils or materials shall be disposed in a safe, legal, and proper manner, in accordance with all applicable state, federal, and local regulations, including but not limited to Chapter 15.30 POMC (Illegal Discharge Detection and Elimination). In the event of any leak, spill, or accumulation of such fluids, chemicals, or other hazardous or potentially hazardous materials, which do or potentially may get into the municipal stormwater system or any surface water or groundwater, any person involved in or responsible for the work and/or the property, or otherwise aware of such leak, spill, or accumulation, shall notify the proper authorities as specified in POMC § 15.30.120, as now written or as hereafter amended or replaced.

Storage, containment, and disposal of all waste products and hazardous materials shall be in accordance with all applicable state, federal, and local regulations.

"Accessory dwelling unit"

Painting of vehicles or equipment is prohibited, whether inside or outside of a building.

(Formerly 20.66.010; Ord. 023-19 § 1; Ord. 023-19 § 1)

§ 20.68.010 Accessory dwelling units – Defined.

For the purpose of this chapter the following definitions apply:

means a dwelling unit located on the same lot as a single-family housing unit (detached house), duplex, triplex, fourplex, townhouse, or other housing unit except apartment or mixed use shopfront buildings.

"Attached accessory dwelling unit"

means an accessory dwelling unit no larger than 1,000 square feet of gross floor area located within or attached to a single-family housing unit (detached house), duplex, triplex, fourplex, townhouse, or other housing unit except apartment or mixed-use shopfront buildings.

"Detached accessory dwelling unit"

means an accessory dwelling unit no larger than 1,000 square feet of gross floor area that consists partly or entirely of a building that is separate and detached from a single-family housing unit (detached house), duplex, triplex, fourplex, townhouse, or other housing unit except apartment or mixed use shopfront buildings.

"Gross floor area"

means the interior habitable area of a dwelling unit including basements and attics but not including a garage or accessory structure.

"Owner" or "property owner"

means any person who has at least 50 percent ownership in a property on which an accessory dwelling unit is located.

(Ord. 011-19 § 4 (Exh. 1); Ord. 021-20 § 2; Ord. 008-25 § 9 (Exh. H))

§ 20.68.020 Accessory dwelling units – Purpose.

Intent. Accessory dwelling units (hereinafter referred to as "ADUs") are intended to:

Provide homeowners with a means of providing for companionship and security.

Add affordable units to the existing housing supply.

Make housing units within the city available to low and moderate income people.

Provide an increased choice of housing that responds to changing needs (e.g., persons with disabilities, impaired mobility), lifestyles (e.g., young families, retired), and modern development technology.

Promote neighborhood stability, property values, and the single-family residential appearance by ensuring that ADUs are installed in a compatible manner under the conditions of this chapter.

Increase density and promote sustainable practices by better utilizing existing infrastructure and community resources, while supporting public transit, neighborhood retail, and commercial services.

Provide a means for commercial and industrial sites to have a resident caretaker or security officer.

(Ord. 011-19 § 4 (Exh. 1); Ord. 021-20 § 2; Ord. 008-25 § 9 (Exh. H))

§ 20.68.030 Accessory dwelling units – Decision type.

A building permit for an ADU is a Type I action and shall be reviewed and considered in accordance with the procedures for such actions as set forth in Subtitle II of this title.

(Ord. 011-19 § 4 (Exh. 1); Ord. 021-20 § 2; Ord. 008-25 § 9 (Exh. H))

§ 20.68.040 Accessory dwelling units – Administration.

The planning director shall have the authority to develop and implement procedures to administer and enforce this chapter.

(Ord. 011-19 § 4 (Exh. 1); Ord. 021-20 § 2; Ord. 008-25 § 9 (Exh. H))

§ 20.68.060 Accessory dwelling units – Commercial and industrial development – Code applicability.

The following subsections of this chapter do not apply to the construction or establishment of an ADU that is accessory to a commercial or industrial use:

POMC § 20.68.100(1) and (5).

(Ord. 011-19 § 4 (Exh. 1); Ord. 021-20 § 2; Ord. 008-25 § 9 (Exh. H))

§ 20.68.080 Inspection.

The city shall inspect the property to confirm that minimum and maximum size limits, required parking and design standards, and all applicable building, health, safety, energy, and electrical code standards are met.

(Ord. 011-19 § 4 (Exh. 1); Ord. 021-20 § 2; Ord. 038-22 § 3; Ord. 008-25 § 9 (Exh. H))

§ 20.68.090 Violations.

A violation of this chapter shall be governed by POMC § 20.68.100. Violations of any other city permit or code requirements shall be governed by Chapter 20.02 POMC.

(Ord. 011-19 § 4 (Exh. 1); Ord. 021-20 § 2; Ord. 038-22 § 4; Ord. 008-25 § 9 (Exh. H))

§ 20.68.100 General requirements.

ADUs shall be subject to the following requirements, which shall not be subject to a variance:

ADUs may be permitted for a legal lot of record in zoning districts that allow for single-family use or middle housing building types and where the lot meets the minimum lot area requirement for the principal building.

Number of ADUs per Lot. No more than two ADUs, whether a variation of attached accessory dwelling units and/or detached accessory dwelling units, shall be permitted on one lot. Provided, however, that the development of an ADU shall not be permitted if it results in the exceedance of the unit density for the lot which is established in the underlying zoning district.

Occupancy. Maximum occupancy is regulated by Section 1004 (Occupant Load) of the International Building Code.

Composition. The ADU shall include facilities for cooking, living, sanitation, and sleeping.

Home Businesses and Occupations. Home businesses and occupations shall be allowed, subject to existing regulations. However, where more than one home business or home occupation exist on the lot, only one of the dwelling units is permitted to receive customers on the premises.

Short-Term Rental. The use of an ADU as a short-term rental shall be allowed, subject to compliance with the vacation rental and bed and breakfast regulations in POMC § 20.39.345.

Legalization of Nonconforming ADUs. Existing ADUs that are made nonconforming by this chapter, or ADUs legally existing prior to the enactment of these requirements, may be maintained as a legal nonconforming use in accordance with Chapter 20.54 POMC.

(Ord. 011-19 § 4 (Exh. 1); Ord. 021-20 § 2; Ord. 038-22 § 5; Ord. 008-25 § 9 (Exh. H))

§ 20.68.110 Bulk, location and design requirements.

In commercial or industrial developments, detached ADUs are prohibited, and an attached ADU shall be located on or above the second floor of the building in which it is located.

For attached ADUs, the lot must meet the minimum lot dimensional and size requirements of the applicable zoning designation. Attached ADUs that do not increase the building envelope of an existing residential structure are exempt from this requirement.

Size. ADUs shall not exceed a gross floor area of 1,000 square feet.

Building Height. The maximum building height for an ADU shall not exceed the maximum building height permitted for structures within the zoning district and, where applicable, the height overlay district in which the ADU is located. For an attached ADU that is accessory to the principal building, the ADU building height shall not exceed the maximum building height of the principal building type. However, in no instance shall the maximum building height of an ADU be restricted to less than 24 feet unless a lower height limit also applies to the principal building on the lot. Refer to the appropriate building type in Chapter 20.32 POMC.

Location. An ADU shall be permitted as an accessory dwelling unit to the principal building on the same lot.

Setbacks and Lot Coverage. New ADUs must comply with the zoning regulations for the district in which they are located. However, where an ADU is proposed through the conversion of a legally established, nonconforming accessory structure, the ADU may retain the structure's existing setbacks and lot coverage, and is not required to meet current zoning standards for those elements. The calculation of lot coverage shall include all buildings on the lot or site, including the ADU, the principal building (for residential properties), and accessory buildings. Existing and future accessory buildings, including an ADU, must meet required setbacks for the relevant zone and building type. ADUs that abut a public alley may be sited at the lot line.

Design – Attached ADUs. An attached ADU shall be designed to maintain the architectural design, style, appearance, and character of the principal building as a single-family residence and the development standards of the zoning district in which it is located. If an attached ADU extends beyond the current footprint or existing height of the main building, such an addition must be consistent with the existing facade, roof pitch, siding, and windows. Any exterior modification or addition to a single-family residence shall comply with the design standards in Chapter 20.139 POMC.

Design – Attached ADUs Associated With a Commercial or Industrial Development. The ADU shall be part of an overall site and building design that complies with the requirements of Chapter 20.127 POMC (Design Standards) and shall be reviewed in conjunction with the underlying land use or building permit.

Walkways. For ADUs with a separate exterior entrance, a pedestrian walkway shall be provided between the ADU and the nearest sidewalk, or where no sidewalk exists, the nearest street right-of-way. The walkway shall be composed of materials that are distinct from any adjacent vehicle driving or parking surfaces. The walkway may function as a shared pedestrian/vehicle space; provided, that it is constructed of distinct materials, is located along an exterior edge of a driving surface, and vehicles are not permitted to park on the walkway so that pedestrian use is hindered or prevented.

In the applicable zones that allow single-family homes or middle housing types, ADUs may include configurations of one attached accessory dwelling unit and one detached accessory dwelling unit, two attached accessory dwelling units, or two detached accessory dwelling units which may be comprised of either one or two detached structures.

Parking. Parking shall be provided consistent with the requirements of Chapter 20.124 POMC.

(Ord. 011-19 § 4 (Exh. 1); Ord. 021-20 § 2; Ord. 008-25 § 9 (Exh. H))

§ 20.70.010 Purpose.

The purpose of this chapter is to regulate the placement, construction and modification of wireless communication facilities, in order to protect the health, safety and welfare of the public, while not unreasonably interfering with the development of the competitive wireless telecommunications marketplace in the city. The purpose of this chapter will be achieved through adherence to the following objectives:

Establish clear and nondiscriminatory local regulations concerning wireless telecommunications providers and services that are consistent with federal and state laws and regulations pertaining to telecommunications providers;

Protect residential areas and land uses from potential adverse impacts that wireless communication facilities might create, including but not limited to impacts on aesthetics, environmentally sensitive areas, historically significant locations, flight corridors, and health and safety of persons and property;

Encourage providers of wireless communication facilities to locate these facilities, to the extent possible, in areas where the adverse impact on the community is minimal;

Encourage the location of wireless communication facilities in nonresidential areas and allow wireless communication facilities in residential areas only when necessary, to meet functional requirements of the telecommunications industry;

Minimize the total number of wireless communication facilities in residential areas;

Require cooperation between competitors and, as a primary option, joint use of new and existing towers, tower sites and suitable structures to the greatest extent possible, in order to reduce cumulative negative impact upon the city;

Allow wireless communication companies to use city property (i.e., City Hall, community center, utilities property, parks, etc.) for the placement of wireless facilities, where consistent with other public needs, as a means to generate revenue for the city;

Ensure wireless communication facilities are configured in a way that minimizes the adverse visual impact of the wireless communication facilities, as viewed from different vantage points, through careful design, landscape screening, minimal impact siting options and camouflaging techniques, and through assessment of technology, current location options, siting, future available locations, innovative siting techniques and siting possibilities beyond the jurisdictional boundaries of the city;

Enhance the ability of the providers of telecommunications services to provide such services to the community quickly, effectively and efficiently;

Provide for the removal of wireless communication facilities that are abandoned or no longer inspected for safety concerns and building code compliance, and provide a mechanism for the city to cause these abandoned wireless communication facilities to be removed, to protect the residents from imminent harm and danger;

Avoid potential damage to adjacent properties from tower failure, through engineering, careful siting, height limits, and maintenance of wireless communication facilities; and

Provide a means for public input on major wireless communications facility placement, construction, and modification.

In furtherance of these objectives, the city shall give due consideration to the comprehensive land use plan, land use and development regulations, existing land uses, and environmentally sensitive areas in approving sites for the location of communication towers and antennas.

These objectives were developed to protect the public health, safety, and welfare, to protect property values, and to minimize visual impact, while furthering the development of enhanced telecommunication services in the city. These objectives were designed to comply with the Telecommunications Act of 1996. 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 unreasonably discriminate between providers of functionally equivalent personal wireless services.

To the extent that any provision of this chapter is inconsistent or conflicts with any other city ordinance, this chapter shall control. Otherwise, this chapter shall be construed consistently with the other provisions and regulations of the city.

In reviewing any application to place, construct or modify wireless communication facilities, the city shall act within a reasonable period of time after an application for a permit is duly filed, taking into account the nature and scope of the application. Any decision to deny an application shall be in writing, supported by substantial evidence contained in a written record. The city shall approve, approve with conditions, or deny the application in accordance with this title, this chapter, the adopted Port Orchard comprehensive plan, and other applicable ordinances and regulations.

(Ord. 014-22 § 2)

§ 20.70.020 Authority and application.

The provisions of this chapter shall apply to the placement, construction, or modification of all wireless communication facilities, except as specifically exempted in POMC § 20.70.030.

(Ord. 014-22 § 2)

§ 20.70.030 Exemptions.

The provisions of this chapter shall not apply to the following:

Wireless communication facilities permits are not required for subsections (1)(a) through (1)(e) of this section; however, other permits, such as a grading permit, street excavation permit, traffic management plan, or building permit may be required:

Routine maintenance and repair of wireless communication facilities when no traffic impacts will occur. This shall not include changes in height or dimensions of towers or buildings; provided, that the wireless communication facility received approval from the city of Port Orchard or Kitsap County for the original placement, construction, or subsequent modification. When traffic impacts will occur, a traffic control plan approved by the city is required prior to performing the work.

Changing of antennas on wireless communication facilities is exempt from wireless facilities permits, provided the total area of the new antennas and support structure is not increased more than 10 percent of the previous area or if the area is reduced.

Changing or adding additional antennas within a previously permitted concealed building-mounted installation is exempt provided there is no visible change from the outside.

Bird exclusionary devices may be added to towers and are not subject to height limitations.

Additional ground equipment may be placed within an approved equipment enclosure, provided the height of the equipment does not extend above the screening fence.

An antenna that is designed to receive or send direct broadcast satellite service and/or broadband signals, or other means for providing internet service including direct-to-home satellite services, and that is one meter or less in diameter or diagonal measurement, and when the antenna is attached to the residence or business that is utilizing the service.

An antenna that is designed to receive video programming services via multipoint distribution services, including multichannel multipoint distribution services, instructional television fixed services, and local multipoint distribution services, and that is one meter or less in diameter or diagonal measurement.

An antenna that is designed to receive television broadcast signals.

Antennas for the receiving and sending of amateur radio devices or HAM radios; provided, that the antennas meet the height requirements of the applicable zoning district, and are owned and operated by a federally licensed amateur radio station operator or are used exclusively for receive-only antennas. In order to reasonably accommodate licensed amateur radio operators as required by Federal Code of Regulations, 47 CFR Part 97, as amended, and Order and Opinion (PRB-1) of the Federal Communications Commission of September 1985, and RCW 35A.21.260, a licensed amateur radio operator may locate a tower not to exceed the height requirements of the applicable zoning district, provided the following requirements are met for such towers located in a residentially zoned district:

The tower and any antennas located thereon shall not have any lights of any kind on it and shall not be illuminated either directly or indirectly by any artificial means;

The color of the tower and any antennas located thereon must all be the same and such that it blends into the sky, to the extent allowed under requirements set forth by the Federal Aviation Administration;

No advertising logo, trademark, figurine or other similar marking or lettering shall be placed on the tower or any wireless communication facilities mounted or otherwise attached thereto or any building used in conjunction therewith;

The tower shall be located a distance equal to or greater than its height from any existing residential structure located on adjacent parcels of property, including any attached accessory structures;

A tower must be at least three-quarters of its height from any property line on the parcel of property on which it is located, unless a licensed engineer certifies that the tower will not collapse or that it is designed in such a way that, in the event of collapse, it falls within itself, and in that event, it must be located at least one-third of its height from any property line;

No signs shall be used in conjunction with the tower, except for one sign not larger than eight and one-half inches high and 11 inches wide and as required by federal regulations;

Towers shall not be leased or rented to commercial users, and shall not otherwise be used for commercial purposes; and

All towers must meet all applicable state and federal statutes, rules, and regulations, including obtaining a building permit from the city, if necessary.

Emergency communications equipment during a declared public emergency, when the equipment is owned and operated by an appropriate public entity.

Wireless communications facilities ("WCFs") used for temporary emergency communications in the event of a disaster, or emergency preparedness, and for any other public health or safety purpose, including, by way of illustration and not limitation, any communications systems utilized by first responders such as police or fire.

Any wireless internet facility that is owned and operated by a government entity.

Antennas and related equipment no more than three feet in height that are being stored, shipped or displayed for sale.

Radar systems for military and civilian communication and navigation.

Small wireless facilities as defined by POMC § 20.72.030.

(Ord. 014-22 § 2)

§ 20.70.040 Permits required.

No person may place, construct, or modify a wireless communication facility subject to this chapter without first having in place a permit issued in accordance with this chapter. Except as otherwise provided herein, the requirements of this chapter are in addition to the applicable requirements of this title.

Any application submitted pursuant to this chapter shall be reviewed and evaluated by the director for all projects located on public or private property. The director of public works or their designee shall review all proposed wireless communication facilities that are totally within city right-of-way. If a project is both on private or public property and city right-of-way, the community development director shall review the application. Regardless of whether the community development director or the director of public works is reviewing the application, all applications will be reviewed and evaluated pursuant to the provisions of this chapter.

The applicant is responsible for obtaining all other permits from any other appropriate governing body (i.e., Washington State Department of Labor and Industries, Federal Aviation Administration, etc.). For purposes of this chapter, the "applicant" is inclusive of the party who applies for permits and the party or parties will own, operate, or manage the wireless communication facility.

This chapter provides guidelines for the placement, construction, and modification of wireless communication facilities, which are not otherwise exempt as set forth in POMC § 20.70.030.

No provision of this chapter shall be interpreted to allow the installation of a wireless communication facility to reduce the minimum parking or landscaping required on a site.

Wireless communication facilities that are governed under this chapter shall not be eligible for variances under Chapter 20.28 POMC. Any request to deviate from this chapter shall be based on the exceptions or waivers set forth in this chapter.

Third-Party Expert Review. Applicants use various methodologies and analyses, including geographically based computer software, to determine the specific technical parameters of the services to be provided utilizing the proposed wireless communication facilities, such as expected coverage area, antenna configuration, capacity, and topographic constraints that affect signal paths. In certain instances, a third-party expert may be needed to review the engineering and technical data submitted by an applicant for a permit. The city may at its discretion require an engineering and technical review as part of a permitting process. The costs of the technical review shall be borne by the applicant.

The selection of the third-party expert may be by mutual agreement between the applicant and the city, or at the discretion of the city, with a provision for the applicant and beneficially interested parties to comment on the proposed expert and review their qualifications. The third-party expert review is intended to address interference and public safety issues and be a site-specific review of engineering and technical aspects of the proposed wireless communication facilities and/or a review of the applicant's methodology and equipment used, and is not intended to be a subjective review of the site which was selected by an applicant. Based on the results of the expert review, the city may require changes to the application. The expert review shall address the following:

The accuracy and completeness of submissions;

The applicability of analysis techniques and methodologies;

The validity of conclusions reached;

The viability of other sites in the city for the use intended by the applicant; and

Any specific engineering or technical issues designated by the city.

No alterations or changes shall be made to plans approved by the director, director of public works, or hearing examiner without approval from the city. Minor changes which do not change the overall project may be approved by the community development director as a minor modification.

(Ord. 014-22 § 2; Ord. 017-23 § 1 (Exh. A))

§ 20.70.050 Types of permits – Priority – Restrictions.

Applications will be reviewed based on the type of wireless communication facilities requested to be permitted. Each wireless communication facility requires the appropriate type of project permit review, as shown in Table A. In the event of uncertainty on the type of a wireless facility, the community development director shall have the authority to determine how a proposed facility is incorporated into Table A.

Table A – Type of Permit Required, Based on Type of Wireless Communication Facility
Type of Facility	Zoning(1)
Type of Facility	Residential	Commercial/Public	Industrial
Adding antennas to an existing or replacement tower or utility pole	Type 1(2)	Type 1(2)	Type 1(2)
Eligible facilities modification	Type 1	Type 1	Type 1
Utility pole co-location	Type 2	Type 2	Type 2
Concealed building attached	Type 2(3)	Type 2(3)	Type 1
Nonconcealed building attached	Type 2	Type 2	Type 1
New tower or height adjustment request beyond the limitations in the Spectrum Act	Type 3	Type 3	Type 3

Notes:
(1) Zoning for any private/public property or right-of-way: Residential – R1, R2, R3, R4, R5, R6, RMU. Commercial and Public – NMU, BPMU, CMU, DMU, GMU, CC, CH, IF, PF, PR, CI. Industrial – LI, HI.
(2) Provided the height of the tower or utility pole does not increase and the square footage of the enclosure area does not increase beyond the limits set forth in Section 6409 of the Spectrum Act.
(3) An applicant may request to install a nonconcealed building attached facility, under POMC § 20.70.140.

The priorities for the type of wireless communication facility shall be based upon their placement in Table A; the most desirable locations for facilities are located toward the top of the table and least desirable locations for facilities are located toward the bottom of the table. Any application for a wireless communication facility must follow the hierarchy of Table A. For example, an applicant must demonstrate by engineering evidence that using a transmission tower co-location is not possible before moving to a utility pole replacement for co-location, and so forth, with the last possible siting option being a new tower or waiver request.

The city's preferences for locating new wireless communication facilities are as follows:

Place antennas on existing or replacement structures, such as buildings, towers, water towers, or electrical transmission towers.

Place wireless communication facilities in nonresidentially zoned districts and nonresidential property.

Place antennas and towers on public property and on appropriate rights-of-way if practical; provided, that no obligation is created herein for the city to allow the use of city property or public right-of-way for this purpose.

City Property/Public Rights-of-Way. The placement of personal wireless communication facilities on city-owned property and public rights-of-way will be subject to other applicable sections of the Port Orchard Municipal Code and review by other departments (i.e., public works, parks and recreation, etc.) and may require a facilities lease.

Wireless communication facilities shall not be permitted on property designated as a landmark or as part of a historic district.

Applicants shall submit all of the information required pursuant to POMC § 20.24.030 and the following:

Type 1. Applicant shall submit:

A completed application form provided by the department of community development.

Four sets of plans prepared by a design professional. The plans shall include a vicinity map, site map, architectural elevations, method of attachment, proposed screening, location of proposed antennas, and all other information which accurately depicts the proposed project. Minimum size is eight and one-half inches by 11 inches. Plans shall be no greater than 24 inches by 36 inches.

A letter from the applicant outlining the proposed project and an evaluation from the applicant with regard to the city's code requirements and whether the proposal qualifies for review under Section 6409 of the Spectrum Act.

Information sufficient to determine whether a proposed facilities modification per POMC § 20.70.200 would be a substantial change to an existing eligible support structure.

Sensitive area studies and proposed mitigation (if required).

If an outdoor generator is proposed, a report prepared by an acoustical engineer demonstrating compliance with Chapter 173-60 WAC and POMC § 9.24.050.

SEPA application (if required).

Type 2. Applicant shall submit all information required for a Type 1 application, plus the following:

Four sets of photo simulations that depict the existing and proposed view of the proposed facility.

Materials board for the screening material.

If landscaping is proposed, four sets of a landscaping plan prepared by a Washington state-licensed landscape architect.

Letter from a radio frequency engineer that demonstrates that the facility meets federal requirements for allowed emissions.

If the facility is located within a residential zone, a report from a radio frequency engineer explaining the need for the proposed wireless communication facility. Additionally, the applicant shall provide detailed discussion on why the wireless communication facility cannot be located within a commercial or industrial zone.

Type 3. The applicant shall submit all the information required for Type 1 and Type 2 applications, plus the following:

All information required for new towers under POMC § 20.70.060.

The radio frequency engineer report shall include a discussion of the information required under POMC § 20.70.060.

Provisions for mailing labels for all property owners and tenants/residents within 500 feet of the subject property.

Engineering plans for the proposed tower.

A vicinity map depicting the proposed extent of the service area.

A graphic simulation showing the appearance of the proposed tower and ancillary structures and ancillary facilities from five points within the impacted vicinity. Such points are to be mutually agreed upon by the director of community development and the applicant. All plans and photo simulations shall include the maximum build-out of the proposed facility to the extent such information is known by the applicant.

Evidence that the tower has been designed to meet the minimum structural standards for wireless communication facilities for a minimum of three providers of voice, video or data transmission services, including the applicant, and including a description of the number and types of antennas the tower can accommodate, to the extent known by the applicant.

(Ord. 014-22 § 2)

§ 20.70.060 New towers.

New towers are not permitted within the city unless the hearing examiner finds that the applicant has demonstrated by a preponderance of the evidence that:

Alternates. No existing tower or structure, or other feasible site not requiring a new tower in the city, can accommodate the applicant's proposed wireless communication facility; and

Least Intrusive. The proposed new wireless communication facility is designed and located in a manner that is, in consideration of the values, objectives and regulations set forth in this chapter, this title, and the comprehensive land use plan, the least intrusive upon the surrounding area.

The hearing examiner shall be the reviewing body on the application to construct a new tower and shall determine whether or not each of the above requirements is met. Examples of evidence demonstrating the foregoing requirements include, but are not limited to, the following:

That the tower height is the minimum necessary in order to achieve the coverage objective;

That no available existing towers or structures or alternative sites are located within the geographic area required to meet the applicant's engineering requirements to meet its coverage objective (regardless of the geographical boundaries of the city);

That available existing towers or structures are not of a sufficient height or could not feasibly be extended to a sufficient height to meet the applicant's engineering requirements to meet its coverage objective;

That available existing structures or towers do not have sufficient structural strength to support the applicant's proposed antenna and ancillary facilities;

That the applicant's proposed antenna would cause electromagnetic interference with the antenna on the existing towers or structures, or the antenna on the existing structures would cause interference with the applicant's proposed antenna;

That the fees, costs, or contractual provisions required by the owner or operator in order to share an existing tower or structure, or to locate at an alternative site, or to adapt an existing tower or structure or alternative site for sharing, are unreasonable. Costs exceeding new tower construction by 25 percent are presumed to be unreasonable; and/or the applicant demonstrates other limiting factors that render existing towers and structures or other sites unsuitable or unavailable.

All radiofrequency (RF) engineering evidence must be provided and certified by an RF engineer and clearly demonstrate the evidence required. Any required structural engineering evidence shall be provided and certified by a Washington registered and qualified professional engineer.

The hearing examiner, after holding a public hearing, shall either approve, approve with conditions, or deny the application, or remand the application back to staff for further investigation in a manner consistent with the hearing examiner order.

(Ord. 014-22 § 2)

§ 20.70.070 General requirements.

The following shall apply to all wireless communication facilities regardless of the type of facility:

Noise. Any facility that requires a generator or other device which will create noise must demonstrate compliance with Chapter 173-60 WAC and POMC § 9.24.050. A noise report, prepared by an acoustical engineer, shall be submitted with any application to construct and operate a wireless communication facility that will have a generator or similar device. The city may require that the report be reviewed by a third-party expert at the expense of the applicant.

Signage. Only safety signs or those mandated by other government entities may be located on wireless communication facilities. No other types of signs are permitted on wireless communication facilities.

Parking. Any application must demonstrate that there is sufficient space for temporary parking for regular maintenance of the proposed facility.

Finish. A tower shall either maintain a galvanized steel finish or, subject to any applicable standards of the FCC, be painted a neutral color so as to reduce its visual obtrusiveness.

Design. The design of all buildings and ancillary structures shall use materials, colors, textures, screening, and landscaping that will blend the tower facilities with the natural setting and built environment.

Color. All antennas and ancillary facilities located on buildings or structures other than towers shall be of a neutral color that is identical to or closely compatible with the color of the supporting structure so as to make the antenna and ancillary facilities as visually unobtrusive as possible.

Lighting. Towers shall not be artificially lighted unless required by the FCC or other applicable authority. If lighting is required, the reviewing authority shall review the lighting alternatives and approve the design that would cause the least disturbance to the surrounding areas. No strobe lighting of any type is permitted on any tower.

Advertising. No advertising is permitted at wireless communication facility sites or on any ancillary structure or facilities equipment compound.

(Ord. 014-22 § 2)

§ 20.70.080 Specific development standards for electrical transmission tower co-location.

The following requirements shall apply:

Height. There is no height requirement for antennas that are located on electrical transmission towers.

Antenna Aesthetics. There are no restrictions on the type of antennas located on the electrical transmission tower. The antennas must be painted to match the color of the electrical transmission tower.

Antenna Intensity. There is no limit on the number of antennas that may be located on an electrical transmission tower structure.

Feed Lines and Coaxial Cables. Feed lines and coaxial cables shall be attached to one of the legs of the electrical transmission tower. The feed lines and cables must be painted to match the color of the electrical transmission tower.

Cabinet Equipment. Cabinet equipment shall be located directly under the electrical transmission tower where the antennas are located or a concealed location. The wireless communication equipment compound shall be fenced; the fence shall have a minimum height of six feet and a maximum height of eight feet. The fence shall include slats, wood panels, or other materials to screen the equipment from view. Barbed wire is not allowed.

Setbacks. Since the facility will be located on an existing electrical transmission tower, setbacks shall not apply.

(Ord. 014-22 § 2)

§ 20.70.090 Specific development standards for adding antennas to existing WCF tower.

The following requirements shall apply:

Height. The height must not exceed what was approved under the original application to construct the tower. If the height shall exceed what was originally approved, approval as a Type 2 decision is required; provided, however, that increases up to the limitation set forth in Section 6409 of the Spectrum Act shall be allowed.

Antenna Aesthetics. Antennas shall be painted to match the color scheme of the tower.

Antenna Intensity. There is no limit on the number of antennas that may be located on an existing tower.

Feed Lines and Coaxial Cables. Feed lines and coaxial cables shall be located within the tower. Any exposed feed lines or coaxial cables (such as when extended out of the tower to connect to the antennas) must match the tower.

Cabinet Equipment. A new cabinet shall be located within the equipment enclosure that was approved as part of the original application. If the applicant wishes to expand the equipment enclosure from what was approved by the city or county under the previous application beyond the increase limitations set forth in Section 6409 of the Spectrum Act, the applicant shall seek a wireless communication facility (Type 2) application for only the equipment enclosure increase.

Setbacks. Setbacks shall not apply when an applicant installs new antennas on an existing tower and uses an existing equipment enclosure. If the equipment enclosure is increased, it must meet setbacks.

(Ord. 014-22 § 2)

§ 20.70.100 Concealed building-mounted development requirements.

The following requirements shall apply:

Height. The proposed facility must meet the height requirement of the applicable zoning category including, as applicable, allowed mechanical equipment encroachments consistent with POMC § 20.40.050(2)(c). The antennas can qualify under POMC § 20.127.360, Location and design of service areas and mechanical equipment, if the antennas are located in a church spire, chimney or fake chimney, elevator tower, mechanical equipment room, or other similar rooftop appurtenances usually required to be placed on a roof and not intended for human occupancy. Stand-alone antennas shall not qualify as rooftop appurtenances.

Antennas Aesthetics. The antennas must be concealed from view by blending with the architectural style of the building. This could include steeple-like structures and parapet walls. The screening must be made out of the same material or complementary materials and be the same color as the building. Antennas shall be painted to match the color scheme of the building(s).

Feed Lines and Coaxial Cables. Feed lines and cables should be located below the parapet of the rooftop.

Cabinet Equipment. If cabinet equipment cannot be located within the building where the wireless communication facilities will be located, then the city's first preference is to locate the equipment on the rooftop of the building. If the equipment can be screened by placing the equipment below the parapet walls, no additional screening is required. If screening is required, then the proposed screening must be consistent with the existing building in terms of color, style, architectural style, and material. If the cabinet equipment is to be located on the ground, the equipment must be fenced with a six-foot-tall fence, and materials shall be used to screen the equipment from view. Barbed wire may not be used.

Setbacks. The proposed wireless communication facilities facility must meet the setback of the applicable zoning category where the facility is to be located.

(Ord. 014-22 § 2)

§ 20.70.110 Nonconcealed building-mounted development requirements.

The following requirements shall apply:

Height. The proposed facility must meet the height requirements of the applicable zoning category. If the building where the facility is located is at or above the maximum height requirements, the antennas are permitted to extend a maximum of three feet above the existing roof line. Nonconcealed building-mounted facilities shall not qualify as "roof-mounted mechanical equipment" under POMC § 20.127.360.

Antenna Aesthetics. The first preference for any proposed facility is to utilize flush-mounted antennas. Non-flush-mounted antennas may be used when their visual impact will be negated by the scale of the antennas to the building. "Shrouds" are not required unless they provide a better visual appearance than exposed antennas. Antennas shall be painted to match the color scheme of the building(s).

Feed Lines and Coaxial Cables. Feed lines and cables should be located below the parapet of the rooftop. If the feed lines and cables must be visible, they must match the color scheme of the building(s).

Cabinet Equipment. If cabinet equipment cannot be located within the building where the wireless communication facilities will be located, then it must be located on the rooftop of the building. If the equipment can be screened by placing the equipment below the parapet walls, no additional screening is required. If screening is required, then the proposed screening must be consistent with the existing building in terms of color, style, architectural style, and material. If the cabinet equipment is to be located on the ground, the equipment must be fenced with a six-foot-tall fence and materials shall be used to screen the equipment from view. Barbed wire may not be used.

(Ord. 014-22 § 2)

§ 20.70.120 Utility pole co-location.

The following requirements shall apply:

Height. The height of a utility pole co-location is limited to 25 feet above the replaced utility pole, and may be not greater than 65 feet in height in residential zones.

Replacement Pole. The replaced utility pole must be used by the owner of the utility pole to support its utility lines (phone lines or electric). A replaced utility pole cannot be used to provide secondary functions to utility poles in the area.

Pole Aesthetics. The replaced utility pole must have the color and general appearance of the adjacent utility poles.

Pedestrian Impact. The proposal shall not result in a significant change or cause degradation in the pedestrian environment. For replacement poles, the proposal shall be consistent with the city's adopted public works engineering standards and specifications such that the ability to make future pedestrian improvements shall not be impacted. In addition, the location of the replacement pole shall be selected to reduce impacts to the current and future pedestrian environment.

Cabinet Equipment. Unless approved by the director of public works, all cabinet equipment and the equipment enclosure must be placed outside of city right-of-way. If located on a parcel that contains a building, the equipment enclosure must be located next to the building, or where it has the least visual impact on surrounding properties. The cabinet equipment must be screened from view. The screening must be consistent with the existing building in terms of color, style, architectural style, and material. If the cabinet equipment is to be located on the ground, the equipment must be fenced with a six-foot-tall fence and materials shall be used to screen the equipment from view. Barbed wire is not allowed.

Setbacks. Any portion of the wireless communication facilities located within city right-of-way is not required to meet setbacks. The city will evaluate setbacks on private property under the setback requirements set forth in POMC § 20.70.160.

(Ord. 014-22 § 2)

§ 20.70.130 Towers – Specific development standards.

The following requirements shall apply:

Height. Any proposed tower with antennas shall not exceed 70 feet without a height waiver as described in POMC § 20.70.170. Bird exclusionary devices are not subject to height limitations.

Antenna and Tower Aesthetics. The applicant shall utilize a wireless communication concealed facility and shall use such methods as to help the tower to blend with the natural and built environment. The choice of concealing the wireless communication facility must be consistent with the overall use of the site. For example, having a tower appear like a flagpole would not be consistent if there are no buildings on the site. If a flag or other wind device is attached to the pole, it must be appropriate in scale to the size and diameter of the tower.

Setbacks. A facility that is used for wireless communications must be set back from all property lines the greater of:

Fifty feet; or

One hundred ten percent of the height from the highest engineered break point to the top of the structure, as certified by a professional engineer. For example, a 100-foot pole with no breakpoint would require a 110-foot setback. If the breakpoint is located at the 50-foot level, then the setback would be 55 feet.

However, if an exception is granted under POMC § 20.70.170 with regard to height, the setback from all property lines of the proposed wireless communication facilities will increase two feet for every one foot in excess of the maximum permitted height in the zoning district.

Color. The color of the tower shall be based on the surrounding land uses.

Feed Lines and Coaxial Cables. All feed lines and cables must be located within the tower. Feed lines and cables connecting the tower to the equipment enclosure, which are not located within the wireless communication facility equipment compound, must be located underground.

(Ord. 014-22 § 2)

§ 20.70.140 Request to use nonconcealed building attached in lieu of a concealed building attached.

The use of concealed building facilities shall have first priority in all residential and commercial zones. However, an applicant may request to construct a nonconcealed building attached wireless communication facility in lieu of a concealed wireless communication facility. The following criteria shall be used:

Due to the size of the building and the proposed location of the antennas, the visual impact of the exposed antennas will be minimal in relation to the building.

Cables are concealed from view and any visible cables are reduced in visibility by sheathing or painting to match the building where they are located.

Cabinet equipment is adequately screened from view.

Due to the style or design of the building, the use of a concealed facility would reduce the visual appearance of the building.

The building where the antennas are located is at least 200 feet from any body of water or waterway that is designated as either shoreline or critical area.

(Ord. 014-22 § 2)

§ 20.70.150 Landscaping/screening.

The visual impacts of wireless communication facilities shall be mitigated and softened through landscaping or other screening materials at the base of the tower, facility equipment compound, equipment enclosures, and ancillary structures, with the exception of wireless communication facilities located on transmission towers, or if the antenna is mounted flush on an existing building or camouflaged as part of the building and other equipment is housed inside an existing structure. The community development director, director of public works or hearing examiner, as appropriate, may reduce or waive the standards for those sides of the wireless communication facility that are not in public view, when a combination of existing vegetation, topography, walls, decorative fences or other features achieve the same degree of screening as the required landscaping; in locations where the visual impact of the tower would be minimal; and in those locations where large wooded lots and natural growth around the property perimeter may be a sufficient buffer; provided, that the applicant shall be required to preserve the existing landscaping the same as if it were newly installed landscaping.

Landscaping shall be installed on the outside of fences. Existing vegetation shall be preserved to the maximum extent practicable and may be used as a substitute for or as a supplement to landscaping or screening requirements; provided, that the applicant shall be required to preserve the existing landscaping the same as if it were newly installed landscaping. The following requirements apply:

Type A landscaping consistent with the requirements of POMC § 20.128.060(1) shall be placed around the perimeter of the equipment cabinet enclosure, except that a maximum 10-foot portion of the fence may remain without landscaping in order to provide access to the enclosure.

The landscaping area shall be a minimum of 10 feet in width around the perimeter of the enclosure.

The applicant shall utilize evergreens that shall be a minimum of six feet tall at the time of planting.

The applicant shall utilize irrigation or an approved maintenance schedule that will ensure that the plantings are established after two years from the date of planting.

The applicant shall replace any unhealthy or dead plant materials in conformance with the approved landscaping development proposal and shall maintain all landscape materials for the life of the facility. In the event that landscaping is not maintained at the required level, the community development director, after giving 30 days' advance written notice, may maintain or establish the landscaping at the expense of the owner or operator and bill the owner or operator for such costs until such costs are paid in full.

(Ord. 014-22 § 2)

§ 20.70.160 Zoning setback exceptions.

Generally, wireless communication facilities placed on private property must meet setbacks of the underlying zoning. However, in some circumstances, allowing modifications to setbacks may better achieve the goal of this chapter of concealing such facilities from view.

The community development director or hearing examiner, depending on the type of application, may permit modifications to be made to setbacks when:

An applicant for a wireless communications facility can demonstrate that placing the facility on certain portions of a property will provide better screening and aesthetic considerations than provided under the existing setback requirements; or

The modification will aid in retaining open space and trees on the site; or

The proposed location allows for the wireless communication facility to be located a greater distance from residentially zoned properties.

This zoning setback modification cannot be used to waive/modify any required setback required under the State Building Code or Fire Code or used to reduce the safety of the facility.

(Ord. 014-22 § 2)

§ 20.70.170 Height waivers.

Where the hearing examiner finds that extraordinary hardships, practical difficulties, or unnecessary and unreasonable expense would result from strict compliance with the height limitations of the land use and development regulations, or the purpose of these regulations may be served to a greater extent by an alternative proposal, it may approve an adjustment to these regulations; provided, that the applicant demonstrates that the adjustments are consistent with the values, objectives, standards, and requirements of this chapter, this title, and the comprehensive land use plan, and demonstrate the following:

A particular and identifiable hardship exists, or a specific circumstance warrants the granting of an adjustment. Factors to be considered in determining the existence of a hardship shall include, but not be limited to:

Topography and other site features;

Availability of alternative site locations;

Geographic location of property; and

Size/magnitude of project being evaluated and availability of co-location.

In approving the adjustment request, the hearing examiner may impose such conditions as it deems appropriate to assure consistency with the values, objectives, standards, and requirements of this chapter, this title, and the comprehensive land use plan and to ensure that the granting of the height adjustment will not be detrimental to the public safety, health, or welfare, or injurious to other property, and will promote the public interest.

A petition for any such adjustment shall be submitted, in writing, by the applicant with the application for hearing examiner review. The petition shall state fully the grounds for the adjustment and all of the facts relied upon by the applicant.

(Ord. 014-22 § 2)

§ 20.70.190 Removal of abandoned wireless communication facilities.

Any antenna or tower that, after the initial operation of the facility, is not used for the purpose for which it was intended (based on the original application) and such nonuse lasts for a continuous period of 12 months or longer, shall be considered abandoned, and the owner of such antenna or tower shall remove same within 90 days of receipt of notice from the city notifying the owner of such abandonment. Failure to remove such abandoned tower or commence removal within 90 days of such notice shall result in the city declaring the antenna and/or tower a public nuisance. If there are two or more users of a single tower, then this section shall not become effective until all users cease using the tower.

(Ord. 014-22 § 2)

§ 20.70.200 Standards for eligible facilities modifications.

This section implements Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012 (the Spectrum Act, PL-112-96; codified at 47 U.S.C. Section 1455(a)). See also 47 CFR Section 1.6100, Wireless Facility Modifications, which requires the city to approve any eligible facilities request for a modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or base station. The intent is to exempt eligible facilities requests from zoning and development regulations that are inconsistent with or preempted by Section 6409 of the Spectrum Act, while preserving the city's right to continue to enforce and condition approvals under this chapter on compliance with generally applicable building, structural, electrical, and safety codes and with other laws codifying objective standards reasonably related to health and safety.

Definitions.

"Base station"

shall mean and refer to the structure or equipment at a fixed location that enables wireless communications licensed or authorized by the FCC, between user equipment and a communications network. The term does not encompass a tower as defined in this chapter or any equipment associated with a tower.

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.

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).

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

The term does not include any structure that, at the time a completed eligible facilities modification application is filed with the city under this section, does not support or house equipment described in subsections (1)(a)(i) and (ii) of this section.

"Eligible facilities modification"

shall mean and refer to any proposed facilities modification that has been determined pursuant to the provisions of this chapter to be subject to this chapter and that does not result in a substantial change in the physical dimensions of an eligible support structure.

"Eligible support structure"

shall mean and refer to any existing tower or base station as defined in this chapter, provided it is in existence at the time the eligible facilities modification application is filed with the city under this chapter.

"Existing"

shall mean and refer to a constructed tower or base station that was reviewed and approved under the applicable zoning or siting process and lawfully constructed.

"Proposed facilities modification"

shall mean and refer to a proposal submitted by an applicant to modify an eligible support structure the applicant asserts is subject to review under Section 6409 of the Spectrum Act, and involving:

Collocation of new transmission equipment;

Removal of transmission equipment; or

Replacement of transmission equipment.

"Site"

shall mean and refer to the current boundaries of the leased or owned property surrounding a tower (other than a tower in the public right-of-way) and any access or utility easements currently related to the site and, for other eligible support structures, shall mean and be further restricted to that area in proximity to the structure and to other transmission equipment already deployed on the ground. 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 or otherwise outside of the Section 6409(a) process.

Substantial Change. A proposed facilities modification will substantially change the physical dimensions of an eligible support structure if it meets any of the following criteria:

For towers not in the public rights-of-way, it increases the height of the tower by more than 10 percent or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed 20 feet, whichever is greater; for other eligible support structures, it increases the height of the structure by more than 10 percent or more than 10 feet, whichever is greater.

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

For towers not in the public rights-of-way, it involves adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than 20 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;

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 preexisting ground cabinets associated with the structure, or else involves installation of ground cabinets that are more than 10 percent larger in height or overall volume than any other ground cabinets associated with the structure;

It entails any excavation or deployment outside of the current site, except that, for towers other than towers in the public rights-of-way, it entails any excavation or deployment of transmission equipment outside of the current site by more than 30 feet in any direction. The site boundary from which the 30 feet is measured excludes any access or utility easements currently related to the site;

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

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

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

"Break point technology"

shall mean towers designed with break point technology engineer points on the top portion of the tower to fold over onto itself in extreme stress such as earthquake and extraordinary high winds, rather than fall its full length from the base.

shall mean and refer to equipment that facilitates transmission for any wireless communication service licensed or authorized by the FCC, including, but not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, and regular and backup power supply. The term includes equipment associated with wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul.

Proposed facilities modification applications are not subject to the application requirements set forth in POMC § 20.24.020 but may still require construction permits such as grading, street excavation, and building permits, and will also require approval of traffic control plans if traffic will be impacted.

City decisions on eligible facilities modifications shall be issued within 60 days from the date the application is received by the city, subtracting any time between the city's notice of incomplete application or request for additional information and the applicant's resubmittal. Following a supplemental submission, the city will respond to the applicant within 10 days, stating whether the additional information is sufficient to complete review of the application. This timing supersedes Chapter 20.24 POMC.

If the city fails to approve or deny an eligible facilities modification within the time frame for review, the applicant may notify the city in writing that the review period has expired, and that the application has therefore been deemed granted. In such case, all limitations of this section and compliance with applicable provisions of building, structural, electrical, and safety codes and noise regulations shall automatically be considered conditions of such approval.

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

(Ord. 014-22 § 2)

§ 20.70.210 Expiration of wireless facility permits.

A wireless facility permit shall automatically expire three years after a notice of decision approving the permit is issued unless a building permit conforming to plans for which the wireless facility permit was granted is obtained within that period of time. If a building permit is not required for the proposed work, such as changing antennas on an existing tower, then the substantial construction of the proposed work shall be completed within one year after a notice of decision approving the permit is issued. The director of community development may authorize a longer period for completion of work if the applicant can demonstrate why additional time is required and submits a written request for extension prior to expiration of the wireless facilities permit.

(Ord. 014-22 § 2)

§ 20.72.010 Purpose and scope.

The purpose of this chapter, in addition to implementing the general purposes of the comprehensive plan and development regulations, is to regulate the activities of permitting, placement, construction and modification of small wireless facilities in order to protect the health, safety and welfare of the public while not unreasonably interfering with the development of a competitive wireless telecommunications marketplace within the city.

This chapter provides permitting and review regulations as well as aesthetic, design and concealment standards for the construction of small wireless facilities both inside and outside of the public right-of-way. It also provides siting options at appropriate locations within the city to support existing communications technologies, to adapt to new technologies as needed, and to minimize associated safety hazards and visual impacts. The siting of small wireless facilities on existing buildings and structures, co-location of facilities on a single support structure and visual mitigation strategies are encouraged to preserve neighborhood aesthetics and reduce visual clutter in the city.

(Ord. 015-22 § 2)

§ 20.72.020 Exemptions.

The following facilities are exempt from the provisions of this chapter and shall be permitted consistent with the applicable development standards outlined in the land uses table in POMC § 20.39.040:

Industrial processing equipment and scientific or medical equipment using frequencies regulated by the FCC.

Citizen band radios or antennas operated by federal licensing amateur ("ham") radio operators.

Satellite dish antennas less than two meters in diameter, including direct-to-home satellite services, when used as secondary use of the property.

Automated meter reading ("AMR") facilities for collecting utility meter data for use in the sale of utility services, except for WIP and other antennas greater than two feet in length, so long as the AMR facilities are within the scope of activities permitted under a valid franchise agreement between the utility service provider and the city.

Eligible facilities requests. See POMC § 20.70.200.

(Ord. 015-22 § 2)

§ 20.72.030 Definitions.

For the purposes of this chapter, the following terms shall have the meaning ascribed to them below:

"Antenna(s)"

in the context of small wireless facilities and consistent with 47 CFR 1.1320(w) and 1.6002(b) means an apparatus designed for the purpose of emitting radio frequency ("RF") radiation, to be operated or operating from a fixed location pursuant to FCC authorization, for the provision of personal wireless and any commingled information services. For the purposes of this definition, the term "antenna" does not include an unintentional radiator, mobile station, or device authorized by 47 CFR Title 15.

"Antenna equipment,"

consistent with 47 CFR 1.1320(d), 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, are mounted or installed at the same time as the antenna.

"Applicant"

means any person submitting an application for a small wireless facility permit pursuant to this chapter.

"Collocation"

means:

Mounting or installing antenna equipment on a preexisting structure; and/or

Modifying a structure for the purpose of mounting or installing antenna equipment on that structure.

"Director"

means the community development director or designee.

"Equipment enclosure"

means a facility, shelter, cabinet, or vault used to house and protect electronic or other associated equipment necessary for processing wireless communication signals. "Associated equipment" may include, for example, air conditioning, backup power supplies, and emergency generators.

"FCC" or "Federal Communications Commission"

means the federal administrative agency, or lawful successor, authorized to regulate and oversee telecommunications carriers, services and providers on a national level.

"Permittee"

means a person who has applied for and received a small wireless facility permit pursuant to this chapter.

"Personal wireless services"

means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services.

"Person"

includes corporations, companies, associations, joint stock companies, firms, partnerships, limited liability companies, other entities, and individuals.

"Public right-of-way" or "right-of-way"

means land acquired or dedicated for public roads and streets but does not include:

State highways;

Land dedicated for roads, streets, and highways not opened and not improved for motor vehicle use by the public;

Structures, including poles and conduits, located within the right-of-way;

Federally granted trust lands or Forest Board trust lands;

Lands owned or managed by the State Parks and Recreation Commission; or

Federally granted railroad rights-of-way acquired under 43 U.S.C. 912 and related provisions of federal law that are not open for motor vehicle use.

"Small wireless facility"

"Service provider"

shall be defined in accord with RCW 35.99.010(6). "Service provider" shall include those infrastructure companies that provide telecommunications services or equipment to enable the construction of wireless communications.

(13)

shall mean a wireless telecommunication facility that meets both of the following qualifications:

Each antenna is located inside an antenna enclosure of no more than three cubic feet in volume or, in the case of an antenna that has exposed elements, the antenna and all of its exposed elements could fit within an imaginary enclosure of no more than three cubic feet; and

"Telecommunications service"

All other equipment associated with the facility (excluding antennas) is cumulatively no more than 28 cubic feet in volume.

Provided, however, if there is a conflict between this definition and the definition contained under federal law (47 CFR 1.6002(l)), then the federal law definition shall apply.

(14)

"Stealth technique"

means stealth techniques specifically designated as such at the time of the original approval of the small wireless facility for the purposes of rendering the appearance of the small wireless facility as something fundamentally different than a small wireless facility including but not limited to the use of nonreflective materials, appropriate colors, and/or a concealment canister.

(15)

"Structure"

means a pole, tower, base station, or other building, whether or not it has existing antenna equipment, that is used or to be used for the provision of personal wireless service (on its own or commingled with other types of services).

(16)

shall be defined in accord with RCW 35.99.010(7).

(17)

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

(18)

"Traffic signal pole"

means any structure designed and used primarily for support of traffic signal displays and equipment, whether for vehicular or nonmotorized users.

(19)

"Wireless communications facilities" or "WCF"

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 communication services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul.

(20)

"Unified enclosure"

means a small wireless facility providing concealment of antennas and equipment within a single enclosure.

(21)

"Utility pole"

means a structure designed and used primarily for the support of electrical wires, telephone wires, television cable, or lighting for streets, parking lots, or pedestrian paths.

(22)

means facilities used for personal wireless services.

(23)

"Wireline"

means services provided using a physically tangible means of transmission including, without limitation, wire or cable, and the apparatus used for such transmission.

(Ord. 015-22 § 2)

§ 20.72.040 Federal regulatory requirements.

These provisions shall be interpreted and applied in order to comply with the provisions of federal law. By way of illustration and not limitation, any small wireless facility that has been certified as compliant with all FCC and other government regulations regarding the human exposure to radio frequency emissions will not be denied on the basis of RF radiation concerns.

Small wireless facilities shall be subject to the requirements of this code to the extent that such requirements:

Do not unreasonably discriminate among providers of functionally equivalent services; and

Do not prohibit or have the effect of prohibiting the ability of any entity to provide intrastate or interstate wireless service.

(Ord. 015-22 § 2)

§ 20.72.050 Small wireless facility application process.

Applicability. Any application for a small wireless facility both inside and outside of the public right-of-way shall comply with the application requirements for a small wireless facility permit described in this chapter. For small wireless facilities inside the right-of-way, the applicant must also comply with the requirements pursuant to POMC Title 12.

Completeness. An application for a small wireless facility is not complete until the applicant has submitted all the applicable items required by POMC § 20.72.060 and, to the extent relevant, has submitted all the applicable items in subsection (3) of this section and the city has confirmed that the application is complete. Franchisees with a valid franchise for small wireless facilities may apply for a small wireless permit for the initial or additional phases of a small wireless facilities deployment at any time subject to the commencement of a new completeness review time period for permit processing.

Application Components. The director is authorized to establish franchise and other application forms to gather the information required from applicants to evaluate the application and to determine the completeness of the application as provided herein. The application shall include the following components as applicable:

Franchise. If any portion of the applicant's facilities are to be located in the right-of-way, the applicant shall apply for, and receive approval of, a franchise consistent with the requirements in POMC Title 12. An application for a franchise may be submitted concurrently with an application for small wireless facility permit(s).

Small Wireless Facility Permit. The applicant shall submit a small wireless facility permit application as required in the small wireless facility application requirements established in POMC § 20.72.060 and pay the applicable permit fee as set forth in the fee schedule adopted by resolution of the city council and which may be amended by the city council from time to time.

Associated Application(s) and Checklist(s). Any application for a small wireless permit which contains an element not categorically exempt from SEPA review shall simultaneously apply under Chapter 43.21C RCW and this title. Further, any application proposing small wireless facilities in a shoreline area (pursuant to Chapter 20.164 POMC) or in any critical area (pursuant to Chapter 20.162 POMC) shall indicate why the application is exempt or comply with the review processes in such codes. Applications for small wireless facilities for new poles shall comply with the requirements in POMC § 20.72.100(5).

Leases. An applicant who desires to attach a small wireless facility on any utility pole, light pole, or other structure or building owned by the city shall obtain a lease as a component of its application. Utility poles and the use of other public property, structures or facilities including, but not limited to, any park land or facility, any utility land or facility, requires city council approval of a lease or master lease agreement.

(Ord. 015-22 § 2)

§ 20.72.060 Small wireless facility application requirements.

The following information shall be provided by all applicants for a small wireless permit:

The application shall provide specific locational information including GIS coordinates of all proposed small wireless facilities and specify where the small wireless facilities will utilize existing, replacement or new poles, towers, existing buildings and/or other structures. The applicant shall specify ground-mounted equipment, conduit, junction boxes and fiber and power connections necessary for and intended for use in the small wireless facilities system regardless of whether the additional facilities are to be constructed by the applicant or leased from a third party to the extent known by the applicant at the time of application. The applicant shall provide detailed schematics and visual renderings of the small wireless facilities, including engineering and design standards. The application shall have sufficient detail to identify:

The location of overhead and, to the extent applicable, underground public utilities, telecommunication, cable, water, adjacent lighting, sewer drainage and other lines and equipment within 50 feet of the proposed project area (which project area shall include the location of the fiber source and power source). Further, the applicant shall include all existing and proposed improvements related to the proposed location, including but not limited to poles, driveways, ADA ramps, equipment cabinets, street trees and structures within 50 feet of the proposed project area.

The specific trees, structures, improvements, facilities, lines and equipment, and obstructions, if any, that applicant proposes to temporarily or permanently remove or relocate and a landscape plan for protecting, trimming, removing, replacing, and restoring any trees or significant landscaping to be disturbed during construction. The applicant is discouraged from cutting/pruning, removing or replacing trees, and if any such tree modifications are proposed the applicant must comply with applicable provisions of Chapter 20.129 POMC.

The applicant's plan for fiber and power service, all conduits, cables, wires, handholds, junctions, meters, disconnect switches and any other ancillary equipment or construction necessary to construct the small wireless facility, to the extent to which the applicant is responsible for installing such fiber and power service, conduits, cables, and related improvements. Where another party is responsible for installing such fiber and power service, conduits, cables, and related improvements, applicant's construction drawings shall include such utilities to the extent known at the time of application, but at a minimum applicant must indicate how it expects to obtain power and fiber service to the small wireless facility.

A photometric analysis of the roadway and sidewalk within 150 feet of the existing light if the site location includes a new or replacement light pole.

Compliance with the applicable aesthetic requirements pursuant to POMC § 20.72.100.

The applicant must show written approval from the owner of any pole or structure for the installation of its small wireless facilities on such pole or structure. Such written approval shall include approval of the specific pole. For city-owned poles or structures, the applicant shall obtain a lease from the city prior to or concurrent with the small wireless facility permit application so the city can evaluate the use of a specific pole.

The applicant is encouraged to batch the small wireless facility sites within an application in a contiguous service area and/or with similar designs.

The applicant shall submit a sworn affidavit signed by a radio frequency (RF) engineer with knowledge of the proposed project affirming that the small wireless facility will be compliant with all FCC and other governmental regulations in connection with human exposure to radio frequency emissions for every frequency at which the small wireless facility will operate. If facilities that generate RF radiation necessary to the small wireless facility are to be provided by a third party, then the small wireless permit shall be conditioned on an RF certification showing the cumulative impact of the RF emissions from the entire installation.

The applicant may provide one emissions report for the entire batch of small wireless facility applications if the applicant is using the same small wireless facility configuration for all installations within that batch or may submit one emissions report for each subgroup installation identified in the batch.

The applicant shall provide proof of FCC or other regulatory approvals required to provide the service(s) or utilize the technologies sought to be installed.

A professional engineer licensed by the state of Washington shall certify in writing, over their seal, that construction plans of the small wireless facilities and structure or pole and foundation are designed to reasonably withstand wind and seismic loads as required by applicable codes.

A right-of-way use permit application as required by POMC § 12.04.030.

Proof of a valid city of Port Orchard business license.

Recognizing that small wireless facility technology is rapidly evolving, the director is authorized to adopt and publish standards for the structural safety of city-owned poles and structures, and to formulate and publish application questions for use when an applicant seeks to attach to city-owned poles and structures.

Such other information as the director, in their reasonable discretion, shall deem appropriate to effectively evaluate the application based on technical, engineering and aesthetic considerations.

(Ord. 015-22 § 2; Ord. 017-23 § 1 (Exh. A))

§ 20.72.070 Small wireless facility review criteria and process.

The following provisions relate to the review of applications for a small wireless facility permit:

In any zone, upon application for a small wireless permit, the city will permit small wireless facilities only when the application meets the criteria of this chapter.

Vertical clearance shall be reviewed by the director to ensure the small wireless facilities will not pose a hazard to other users of the rights-of-way.

Replacement poles, new poles, and ground-mounted equipment shall only be permitted pursuant to the applicable standards in POMC § 20.72.100.

No equipment shall be operated so as to produce noise in violation of POMC § 9.24.050 or Chapter 173-60 WAC.

Small wireless facilities may not encroach onto or over private property or property outside of the right-of-way without the property owner's express written consent pursuant to POMC § 20.72.100(1)(a).

Decision. All small wireless facility applications shall be reviewed and approved or denied by the director. The director's decision shall be final and is not subject to appeal under city code or further review by the city.

Eligible Facilities Requests. Small wireless facilities may be expanded pursuant to an eligible facility request so long as the expansion:

Does not defeat the specifically designated stealth techniques; and

Incorporates the aesthetic elements required as conditions of approval set forth in the original small wireless facility approval in a manner consistent with the rights granted an eligible facility; and

Does not exceed the conditions of a small wireless facility as defined by 47 CFR 1.6002(l).

Public Notice. The city shall provide notice of a complete application for a small wireless permit on the city's website with a link to the application. Prior to construction, the applicant shall provide notice of construction to all impacted property owners within 100 feet of any proposed small wireless facility via a doorhanger that shall include an email contact and telephone number for the applicant. Notice is for the public's information and is not a part of a hearing or part of the land use appeal process.

Withdrawal. Any applicant may withdraw an application submitted at any time, provided the withdrawal is in writing and signed by all persons who signed the original application or their successors in interest. When a withdrawal is received, the application shall be deemed null and void. If such withdrawal occurs prior to the director's decision, then reimbursement of fees submitted in association with said application shall be reduced to withhold the amount of actual and objectively reasonable city costs incurred in processing the application prior to time of withdrawal. If such withdrawal is not accomplished prior to the director's decision, there shall be no refund of all or any portion of such fee.

Supplemental Information. Failure of an applicant to provide supplemental information as requested by the director within 60 days of notice by the director shall be grounds for denial of that application unless an extension period has been approved by the director. If no extension period has been approved by the director, the director shall notify the applicant in writing that the application is denied.

Consolidated Permit. The issuance of a small wireless permit grants authority to construct small wireless facilities in the rights-of-way in a consolidated manner to allow the applicant, in most situations, to avoid the need to seek duplicative approval by both the public works and the community development departments. As an exercise of police powers pursuant to RCW 35.99.040(2), the small wireless facility permit is not a right-of-way use permit, but instead a consolidated public works and land use permit, and the issuance of a small wireless facility permit shall be governed by the time limits established by federal law for small wireless facilities. The general standards applicable to the use of the rights-of-way described in Chapter 12.04 POMC shall apply to all small wireless facility permits.

(Ord. 015-22 § 2)

§ 20.72.080 Small wireless facility permit requirements.

Permit Compliance. The permittee shall comply with all of the requirements within the small wireless facility permit.

Post-Construction As-Builts. Upon request, the permittee shall provide the city with as-builts of the small wireless facilities within 30 days after construction of the small wireless facility, demonstrating compliance with the permit, visual renderings submitted with the permit application and any site photographs taken.

Construction Time Limit. Construction of the small wireless facility must be completed within 12 months after the approval date by the city. The permittee may request one extension of no more than six months, if the permittee provides an explanation as to why the small wireless facility cannot be constructed within the original 12-month period.

Site Safety and Maintenance. The permittee must maintain the small wireless facilities in safe and working condition. The permittee shall be responsible for the removal of any graffiti or other vandalism of the small wireless facility and shall keep the site neat and orderly, including but not limited to following any maintenance or modifications on the site.

Operational Activity. The permittee shall commence operation of the small wireless facility no later than six months after installation. The permittee may request one extension for an additional six-month period if the permittee can show that such operational activity is delayed due to inability to connect to electrical or backhaul facilities.

(Ord. 015-22 § 2)

§ 20.72.090 Small wireless facility modification.

If a permittee desires to modify their small wireless facilities, including but not limited to expanding or changing the antenna type, increasing the equipment enclosure, placing additional pole-mounted or ground-mounted equipment, or modifying the stealth techniques, then the permittee shall apply for a new small wireless permit.

A small wireless permit shall not be required for routine maintenance and repair of a small wireless facility within the rights-of-way, or the replacement of an antenna or equipment of similar size, weight, and height; provided, that such replacement does not defeat the stealth techniques used in the original small wireless facility and does not impact the structural integrity of the pole. Further, a small wireless permit shall not be required for replacing equipment within the equipment enclosure or reconfiguration of fiber or power to the small wireless facilities. An annual blanket right-of-way permit will be required for such routine maintenance, repair, or replacement and can cover all facilities owned by the applicant.

Even if a modification is exempt under this section, any work on a small wireless facility in or near the right-of-way which will impact traffic will require an approved traffic management plan prior to commencing work.

(Ord. 015-22 § 2)

§ 20.72.100 Small wireless facility aesthetic, concealment, and design standards.

All small wireless facilities shall conform with the following general aesthetic, concealment, and design standards, as applicable:

Except for locations in the right-of-way, small wireless facilities are prohibited on any property containing a residential use in a residential zone; provided, that where small wireless facilities are intended to be located more than 400 feet from a right-of-way and within an access easement over residential property, the location may be allowed if:

The applicant affirms they have received an access easement from the property owner to locate the facility in the desired location; and

The property owner where the facility will be installed has authority to grant such permission to locate the facility and related equipment at the designated location pursuant to the terms of the access easement; and

The installation is allowed by, and consistent with, the access easement; and

Such installation will not frustrate the purpose of the easement or create any access or safety issue; and

The location is in compliance with all land use regulations such as, but not limited to, setback requirements.

In the event power is later undergrounded in an area where small wireless facilities are located above ground on utility poles, the small wireless facilities shall be removed and may be replaced with a facility meeting the design standards for new poles in subsection (5) of this section.

Ground-mounted equipment in the rights-of-way is prohibited, unless such facilities are placed underground, or the applicant can demonstrate that pole-mounted or undergrounded equipment is technically infeasible. If ground-mounted equipment is necessary, then the applicant shall submit a stealth technique plan substantially conforming to the applicable standards in subsection (5)(c) of this section and comply with the Americans with Disabilities Act ("ADA"), city construction standards, and state and federal regulations in order to provide a clear and safe passage within the public rights-of-way. Generators located in the rights-of-way are prohibited.

No signage, message, or identification other than the manufacturer's identification or identification required by governing law is allowed to be portrayed on any antenna or equipment enclosure. Any permitted signage shall be located on the equipment enclosures and be of the minimum amount possible to achieve the intended purpose (no larger than four by six inches); provided, that signs may be permitted as stealth technique where appropriate and safety signage as required by applicable laws, regulations, and standards is permitted.

Antennas and related equipment shall not be illuminated except for security reasons, required by a federal or state authority, or unless approved as part of the stealth techniques requirements pursuant to subsection (5)(c) of this section.

The design standards in this chapter are intended to be used solely for the purpose of concealment and siting. Nothing contained in this chapter shall be interpreted or applied in a manner which dictates the use of a particular technology. When strict application of these requirements would render the small wireless facility technically infeasible or otherwise have the effect of prohibiting wireless service, alternative forms of aesthetic design or concealment may be permitted which provide similar or greater protections from negative visual impacts to the streetscape.

General Pole Standards. In addition to complying with the applicable general standards in subsection (1) of this section, all small wireless facilities on any type of utility pole shall conform to the following general pole design requirements as well as the applicable pole-specific standards:

The preferred location of a small wireless facility on a pole is the location with the least visible impact.

The city may consider the cumulative visual effects of small wireless facilities mounted on poles within the rights-of-way when assessing proposed siting locations so as to not adversely affect the visual character of the city. This provision shall neither be applied to limit the number of permits issued when no alternative sites are reasonably available nor to impose a technological requirement on the applicant.

Small wireless facilities are not permitted on traffic signal poles unless denial of the siting could be a prohibition or effective prohibition of the applicant's ability to provide telecommunications service in violation of 47 U.S.C. 253 and 332.

Replacement poles and new poles shall comply with the Americans with Disabilities Act, city construction and sidewalk clearance standards, city development standards, city ordinances, and state and federal laws and regulations in order to provide a clear and safe passage within the rights-of-way. Further, the location of any replacement or new pole must: be physically possible, comply with applicable traffic warrants, not interfere with utility or safety fixtures (e.g., fire hydrants, traffic control devices), and not adversely affect the public welfare, health, or safety.

Replacement poles shall be located as near as possible to the existing pole, but in no event further than five feet from the existing pole, and the existing pole shall be removed.

Side arm mounts for antennas or equipment must be the minimum extension necessary, and for wooden poles may be no more than 12 inches off the pole, and for nonwooden poles no more than six inches off the pole.

The use of the pole for the siting of a small wireless facility shall be considered secondary to the primary function of the pole. If the primary function of a pole serving as the host site for a small wireless facility becomes unnecessary, the pole shall not be retained for the sole purpose of accommodating the small wireless facility and the small wireless facility and all associated equipment shall be removed.

Nonwooden Pole Design Standards. In addition to complying with the applicable general standards in subsections (1) and (2) of this section, small wireless facilities attached to existing or replacement nonwooden poles inside or outside the right-of-way shall conform to the following design criteria:

Upon adoption of a city standard small wireless facility pole design(s) within the city's Infrastructure Design and Construction Standards, an applicant shall first consider using or modifying the standard pole design to accommodate its small wireless facility without substantially changing the outward visual and aesthetic character of the design. The applicant, upon a showing that use or modification of the standard pole design is either technically or physically infeasible, or that the modified pole design will not comply with the city's ADA or sidewalk clearance requirements and/or would violate electrical or other safety standards, may deviate from the adopted standard pole design and use the design standards as described in subsections (3)(b) through (h) of this section. In addition, if the city has not yet adopted such Infrastructure Design and Construction Standards, then subsections (3)(b) through (h) of this section will apply.

Antennas and the associated equipment enclosures (including disconnect switches and other appurtenant devices) shall be fully concealed within the pole, unless such concealment is technically infeasible, or is incompatible with the pole design, then the antennas and associated equipment enclosures must be camouflaged to appear as an integral part of the pole or flush-mounted to the pole, meaning no more than six inches off of the pole, and must be the minimum size necessary for the intended purpose, not to exceed the volumetric dimensions of small wireless facilities. If the equipment enclosure is permitted on the exterior of the pole, the applicant is required to place the equipment enclosure behind any banners or road signs that may be on the pole; provided, that such location does not interfere with the operation of the banners or signs, or the small wireless facility.

For purposes of this section, "incompatible with the pole design" may include a demonstration by the applicant that the visual impact to the pole or the streetscape would be reduced by placing the antennas and equipment exterior to the pole.

The farthest point of any antenna or equipment enclosure may not extend more than 28 inches from the face of the pole.

All conduit, cables, wires, and fiber must be routed internally in the pole. Full concealment of all conduit, cables, wires, and fiber is required within mounting brackets, shrouds, canisters, or sleeves if attaching to exterior antennas or equipment.

An antenna on top of an existing pole may not extend more than six feet above the height of the existing pole and the diameter may not exceed 16 inches, measured at the top of the pole, unless the applicant can demonstrate that more space is needed. The antennas shall be integrated into the pole design so that they appear as a continuation of the original pole, including colored or painted to match the pole, and shall be shrouded or screened to blend with the pole except for canister antennas, which shall not require screening. To the extent technically feasible, all cabling and mounting hardware/brackets from the bottom of the antenna to the top of the pole shall be fully concealed and integrated with the pole.

Any replacement pole shall substantially conform to the design of the pole it is replacing (including but not limited to color, shape and style) or the neighboring pole design standards utilized within the contiguous right-of-way.

The height of any replacement pole and antenna(s) may not extend more than 10 feet above the height of the existing pole or the minimum additional height necessary; provided, that the height of the replacement pole cannot be extended further by additional antenna height.

The diameter of a replacement pole shall comply with the city's setback and sidewalk clearance requirements and shall, to the extent technically feasible, not be more than a 25 percent increase of the existing pole measured at the base of the pole, unless additional diameter is needed in order to conceal equipment within the base of the pole.

Wooden Pole Design Standards. In addition to complying with the applicable general standards in subsections (1) and (2) of this section, small wireless facilities attached to existing or replacement wooden utility poles and other wooden poles inside or outside the right-of-way shall conform to the following design criteria:

The wooden pole at the proposed location may be replaced with a taller pole for the purpose of accommodating a small wireless facility; provided, that the replacement pole shall not exceed a height that is a maximum of 10 feet taller than the existing pole, unless a further height increase is required and confirmed in writing by the pole owner and that such height extension is the minimum extension possible to provide sufficient separation and/or clearance from electrical and wireline facilities.

A pole extender may be used instead of replacing an existing pole, but may not increase the height of the existing pole by more than 10 feet, unless a further height increase is required and confirmed in writing by the pole owner and that such height increase is the minimum extension possible to provide sufficient separation and/or clearance from electrical and wireline facilities. A "pole extender" as used herein is an object affixed between the pole and the antenna for the purpose of increasing the height of the antenna above the pole. The pole extender shall be painted to approximately match the color of the pole and shall substantially match the diameter of the pole measured at the top of the pole.

Replacement wooden poles must either match the approximate color and materials of the replaced pole or shall be the standard new wooden pole used by the pole owner in the city.

The diameter of a replacement pole shall comply with the city's setback and sidewalk clearance requirements and shall not be more than a 25 percent increase of the existing utility pole measured at the base of the pole or the otherwise standard size used by the pole owner.

All cables and wires shall be routed through conduits along the outside of the pole. The outside conduit shall be colored or painted to match the pole. The number of conduits shall be minimized to the number technically necessary to accommodate the small wireless facility.

Antennas, equipment enclosures, and all ancillary equipment, boxes and conduit shall be colored or painted to match the approximate color of the surface of the wooden pole on which they are attached.

Antennas shall not be mounted more than 12 inches from the surface of the wooden pole.

Antennas should be placed in an effort to minimize visual clutter and obtrusiveness. Multiple antennas are permitted on a wooden pole; provided, that each antenna shall not be more than three cubic feet in volume.

A canister antenna may be mounted on top of an existing or replacement wooden pole, which may not exceed the height requirements described in subsection (4)(a) of this section. A canister antenna mounted on the top of a wooden pole shall not exceed 16 inches in diameter, measured at the top of the pole and, to the extent technically feasible, shall be colored or painted to match the pole. The canister antenna must be placed to look as if it is an extension of the pole. In the alternative, the applicant may install a side-mounted canister antenna, so long as the inside edge of the antenna is no more than 12 inches from the surface of the wooden pole. All cables shall be concealed either within the canister antenna or within a sleeve between the antenna and the wooden pole.

The farthest point of any antenna or equipment enclosure may not extend more than 28 inches from the face of the pole.

An omnidirectional antenna may be mounted on the top of an existing wooden pole, provided such antenna is no more than four feet in height and is mounted directly on the top of a pole or attached to a sleeve made to look like the exterior of the pole as close to the top of the pole as technically feasible. All cables shall be concealed within the sleeve between the bottom of the antenna and the mounting bracket.

All related antenna equipment, including but not limited to ancillary equipment, radios, cables, associated shrouding, microwaves, and conduit which are mounted on wooden poles, shall not be mounted more than six inches from the surface of the pole, unless a further distance is technically required and is confirmed in writing by the pole owner.

(m)

Equipment for small wireless facilities must be attached to the wooden pole, unless otherwise permitted to be ground-mounted pursuant to subsection (1)(c) of this section. The equipment must be placed in the smallest enclosure possible for the intended purpose. The equipment enclosure and all other wireless equipment associated with the utility pole, including wireless equipment associated with the antenna, and any preexisting associated equipment on the pole, may not exceed 28 cubic feet. Multiple equipment enclosures may be acceptable if designed to more closely integrate with the pole design and do not cumulatively exceed 28 cubic feet. The applicant is encouraged to place the equipment enclosure(s) behind any banners or road signs that may be on the pole; provided, that such location does not interfere with the operation of the banners or signs, or the small wireless facility.

(n)

An applicant who desires to enclose both its antennas and equipment within one unified enclosure may do so; provided, that such enclosure is the minimum size necessary for its intended purpose and the enclosure and all other wireless equipment associated with the pole, including wireless equipment associated with the antenna and any preexisting associated equipment on the pole, do not exceed 28 cubic feet. The unified enclosure may not be placed more than six inches from the surface of the pole, unless a further distance is required and confirmed in writing by the pole owner. To the extent possible, the unified enclosure shall be placed so as to appear as an integrated part of the pole or behind banners or signs; provided, that such location does not interfere with the operation of the banners or signs.

Standards for Small Wireless Facilities on New Poles in the Rights-of-Way. In addition to complying with the applicable general standards in subsections (1) and (2) of this section, small wireless facilities proposed to be attached to new poles shall comply with the following:

New poles within the rights-of-way are only permitted if the applicant can establish that:

The proposed small wireless facility cannot be located on an existing utility pole, electrical transmission tower, or on a site outside of the public rights-of-way such as a public park, public property, building, transmission tower or in or on a nonresidential use in a residential zone, whether by roof or panel mount or separate structure; and

The proposed small wireless facility receives approval for a stealth technique design, as described in subsection (5)(c) of this section; and

The proposed small wireless facility also complies with the Shoreline Management Act, Growth Management Act, and State Environmental Policy Act, if applicable; and

No new poles shall be located in a critical area or associated buffer required by the city's critical areas ordinance, Chapter 20.162 POMC, except when determined to be exempt pursuant to said ordinance.

An application for a new pole is subject to administrative review by the director.

All new poles shall conform to the city's standard pole design adopted in the city's Infrastructure Design and Construction Standards. If no existing metered service is available, the applicant shall provide new metered electrical service. If the city's standard pole design is technically infeasible, or such standards have not yet been adopted by the city, then the new pole shall meet the following:

The stealth technique design shall include the design of the screening, fencing, or other concealment technology for the pole, equipment enclosure, and all related transmission equipment or facilities associated with the proposed small wireless facility, including but not limited to fiber and power connections.

The stealth technique design should seek to minimize the visual obtrusiveness of the small wireless facility. The proposed pole or structure should have similar designs to existing neighboring poles in the rights-of-way, including similar height to the extent technically feasible. If the proposed small wireless facility is placed on a replacement pole in an area with design standards, then the replacement pole shall be of the same general design as the pole it is replacing, unless the director otherwise approves a variation due to aesthetic or safety concerns. Any stealth technique design for a small wireless facility on a decorative pole should attempt to mimic the design of such pole and integrate the small wireless facility into the design of the decorative pole. Other stealth technique methods include, but are not limited to, integrating the installation with architectural features or building design components; utilization of coverings or concealment devices of similar material, color, and texture – or the appearance thereof – as the surface against which the installation will be seen or on which it will be installed; landscape design; or other camouflage strategies appropriate for the type of installation. Applicants are required to utilize designs in which all conduit and wires are installed internally within the structure. Further, applicant designs should, to the extent technically feasible, comply with the generally applicable design standards adopted pursuant to subsection (1) of this section.

If the director has already approved a stealth technique design either for the applicant or another small wireless facility along the same public right-of-way or for the same pole type, then the applicant shall utilize a substantially similar stealth technique design, unless it can show that such stealth technique design is not technically feasible, or that such design would undermine the generally applicable design standards adopted pursuant to subsection (1) of this section.

Even if an alternative location is established pursuant to subsection (5)(a)(i) of this section, the director may determine that a new pole in the right-of-way is in fact a superior alternative based on the impact to the city, the stealth technique design, the city's comprehensive plan and the added benefits to the community.

Prior to the issuance of a permit to construct a new pole or ground-mounted equipment in the right-of-way, the applicant must obtain a master lease agreement from the city to locate such new pole or ground-mounted equipment. This requirement also applies to replacement poles that are taller than the replaced pole, when the overall height of the replacement pole and the proposed small wireless facility is more than 60 feet.

Standards for Small Wireless Facilities Attached to Cables. In addition to complying with the applicable general standards in subsection (1) of this section, all small wireless facilities mounted on existing cables strung between existing utility poles shall conform to the following standards:

Each strand-mounted facility shall not exceed three cubic feet in volume;

Only one strand-mounted facility is permitted per cable between any two existing poles on an existing cable;

The strand-mounted devices shall be placed as close as feasible to the nearest utility pole, in no event more than five feet from the pole unless that location is technically infeasible or is not allowed by the pole owner for safety clearance;

No strand-mounted device shall be located in or above the portion of the roadway open to vehicular traffic;

Ground-mounted equipment to accommodate a shared mounted facility is not permitted except when placed in preexisting equipment cabinets or required by a third-party electrical service provider; and

Pole-mounted equipment shall comply with the requirements of subsections (1) and (2) of this section.

Such strand-mounted devices must be installed to cause the least visual impact and without excess exterior cabling or wires (other than the original strand).

Standards for Small Wireless Facilities Attached to Existing Buildings. In addition to complying with the applicable general standards in subsection (1) of this section, all small wireless facilities attached to existing buildings shall conform to the following design criteria:

Small wireless facilities may be mounted to the sides of a building if the antennas do not interrupt the building's architectural theme.

The interruption of architectural lines or horizontal or vertical reveals is discouraged.

New architectural features such as columns, pilasters, corbels, or other ornamentation that conceal antennas may be used if it complements the architecture of the existing building.

Small wireless facilities shall utilize the smallest mounting brackets necessary in order to provide the smallest offset from the building.

Skirts or shrouds shall be utilized on the sides and bottoms of antennas in order to conceal mounting hardware, create a cleaner appearance, and minimize the visual impact of the antennas. Exposed cabling/wiring is prohibited.

To the extent technically feasible, small wireless facilities shall be textured and colored to match the adjacent building surfaces.

(Ord. 015-22 § 2)

§ 20.72.110 Removal of abandoned small wireless facility.

Any small wireless facility that, after the initial operation of the facility, is not used for the purpose for which it was intended at the time of filing of the application for a continuous period of 12 months shall be considered abandoned, and the owner of such facility shall remove same within 90 days of receipt of notice from the city notifying the owner of such abandonment. Failure to remove such abandoned facility shall result in the city declaring the facility a public nuisance. If there are two or more users of a single pole or structure, then this section shall not become effective as to require removal of the pole/structure/tower itself until all users cease using the pole/structure/tower.

(Ord. 015-22 § 2)

§ 20.72.120 Revocation of permit.

A permit issued under this chapter may be revoked, suspended or denied for any one or more of the following reasons:

Failure to comply with any federal, state, or local laws or regulations.

Failure to comply with the terms and conditions imposed by the city on the issuance of a permit.

When the permit was procured by fraud, false representation, or omission of material facts.

Failure to comply with federal standards for RF emissions.

(Ord. 015-22 § 2)

Port Orchard City Zoning Code

Subtitle IV

SUPPLEMENTAL ZONING REGULATIONS

§ 20.60.010 Purpose.

(Ord. 019-17 § 18 (Exh. 1))

§ 20.60.020 Definition – Home business.

The term "home business" or "home businesses" shall include home (cottage) industry, home occupation and home profession as defined in Chapter 20.12 POMC.

(Ord. 019-17 § 18 (Exh. 1))

§ 20.60.030 Business license required.

(Ord. 019-17 § 18 (Exh. 1); Ord. 017-23 § 4 (Exh. A))

§ 20.60.040 Home businesses – Requirements.

Home businesses are permitted in a residential dwelling unit subject to the provisions of the city's zoning ordinance and if all of the following criteria are met:

No more than one person who is not a resident shall be employed in the home business without obtaining a conditional use permit.

Change of use, sale or transfer of the home business, or relocation of the home business to a new location; or

The provisions of this chapter shall not apply to the following: bed and breakfast establishments, as defined in Chapter 20.12 POMC; daycare facilities, as defined in Chapter 20.12 POMC.

(Ord. 019-17 § 18 (Exh. 1))

§ 20.60.050 Revocation of home business license.

In addition to any other penalties provided in POMC Title 5, or as otherwise permitted by law, a home business license may be revoked under any of the following circumstances:

The license or licensee qualifies for revocation or suspension as set forth in POMC § 5.12.120;

The license or licensee fails to comply with any provisions of a conditional use permit; or

The licensee fails to comply with any provision of this chapter.

Upon determination that there is cause for revocation of a home business license by the city, notice shall be sent to the licensee as set forth in POMC § 5.12.120(2).

(Ord. 019-17 § 18 (Exh. 1))

§ 20.64.010 Findings, purpose, and intent.

(Ord. 019-17 § 18 (Exh. 1))

§ 20.64.020 Applicability.

(Ord. 019-17 § 18 (Exh. 1))

§ 20.64.030 Location criteria.

No marijuana business or medical marijuana cooperative may locate within 1,000 feet of any of the following:

Elementary or secondary school;

Playground;

Recreation center or facility;

Child care center;

Public park;

Public transit center;

Library; or

Any game arcade (where admission is not restricted to persons age 21 or older).

The methodology for measuring the buffers described above shall be as provided in WAC 314-55-050.

No marijuana business may locate within any residentially zoned district or within any residential unit in the city.

No medical marijuana cooperative may be located within one mile of a marijuana retail outlet.

(Ord. 019-17 § 18 (Exh. 1))

§ 20.64.040 Allowed in identified zones.

Marijuana businesses, including production, processing and retail, shall only be allowed in those zoning districts where it is specifically identified as a permitted use.

Marijuana retail outlets shall not be open to the public between the hours of 12:00 a.m. and 8:00 a.m.

(Ord. 019-17 § 18 (Exh. 1))

§ 20.64.050 Licenses required.

(Ord. 019-17 § 18 (Exh. 1))

§ 20.64.060 Signs and advertising.

The city may enforce this section pursuant to Chapter 20.02 POMC. For violations of state law, the city may report the violation to the Washington State Liquor and Cannabis Board.

(Ord. 019-17 § 18 (Exh. 1))

§ 20.64.070 Report of disturbance and unlawful activity.

WARNING:
The City of Port Orchard Police Department must be notified of all disorderly acts, conduct or disturbances and all unlawful activities which occur on or within the premises of this licensed establishment.

(Ord. 019-17 § 18 (Exh. 1))

§ 20.64.080 Visibility of activities – Control of emissions.

All activities of the marijuana business, including, but not limited to, cultivating, growing, processing, displaying, manufacturing, selling and storage, shall be conducted out of the public view.

No marijuana or paraphernalia shall be displayed or kept in a marijuana business so as to be visible from outside the licensed premises.

(Ord. 019-17 § 18 (Exh. 1))

§ 20.66.010 Definitions.

The words and phrases used in this chapter, unless the context otherwise indicates, shall have the following meanings:

"Driveway" and "parking pad"

mean established driving and parking areas located on the property, not within the public right-of-way, private roadway, or ingress/egress easement.

"Major parts and components"

means and includes, but is not limited to: body panels, frame components, bumpers, hoods, doors, engines, transmissions, differentials, and similar parts and assemblies.

"Recreational, sporting, and utility vehicles and equipment"

"Roadway"

means and includes the paved or unpaved road surface and any associated sidewalk, improved or unimproved shoulder, parking strip, and landscaping.

"Vehicles and equipment"

means and includes motor vehicles, nonmotorized, recreational, sporting, utility, or other vehicles and related equipment of any type.

(Ord. 023-19 § 1)

§ 20.66.020 Service and repair standards.

Major work is prohibited in multifamily residential complexes of five or more dwelling units on a parcel, unless entirely within an enclosed garage.

No more than one vehicle may be undergoing or in any stage of service, repair, or other work at any one time.

Outdoor work shall be conducted only between the hours of 7:00 a.m. and 7:00 p.m. on weekdays and 9:00 a.m. and 7:00 p.m. on weekends.

Parts, equipment, tools, debris, excess materials or other supplies shall be stored within a fully enclosed structure such as a garage or accessory building when not in use.

Storage, containment, and disposal of all waste products and hazardous materials shall be in accordance with all applicable state, federal, and local regulations.

"Accessory dwelling unit"

Painting of vehicles or equipment is prohibited, whether inside or outside of a building.

(Formerly 20.66.010; Ord. 023-19 § 1; Ord. 023-19 § 1)

§ 20.68.010 Accessory dwelling units – Defined.

For the purpose of this chapter the following definitions apply:

"Attached accessory dwelling unit"

"Detached accessory dwelling unit"

"Gross floor area"

means the interior habitable area of a dwelling unit including basements and attics but not including a garage or accessory structure.

"Owner" or "property owner"

means any person who has at least 50 percent ownership in a property on which an accessory dwelling unit is located.

(Ord. 011-19 § 4 (Exh. 1); Ord. 021-20 § 2; Ord. 008-25 § 9 (Exh. H))

§ 20.68.020 Accessory dwelling units – Purpose.

Intent. Accessory dwelling units (hereinafter referred to as "ADUs") are intended to:

Provide homeowners with a means of providing for companionship and security.

Add affordable units to the existing housing supply.

Make housing units within the city available to low and moderate income people.

Promote neighborhood stability, property values, and the single-family residential appearance by ensuring that ADUs are installed in a compatible manner under the conditions of this chapter.

Increase density and promote sustainable practices by better utilizing existing infrastructure and community resources, while supporting public transit, neighborhood retail, and commercial services.

Provide a means for commercial and industrial sites to have a resident caretaker or security officer.

(Ord. 011-19 § 4 (Exh. 1); Ord. 021-20 § 2; Ord. 008-25 § 9 (Exh. H))

§ 20.68.030 Accessory dwelling units – Decision type.

A building permit for an ADU is a Type I action and shall be reviewed and considered in accordance with the procedures for such actions as set forth in Subtitle II of this title.

(Ord. 011-19 § 4 (Exh. 1); Ord. 021-20 § 2; Ord. 008-25 § 9 (Exh. H))

§ 20.68.040 Accessory dwelling units – Administration.

The planning director shall have the authority to develop and implement procedures to administer and enforce this chapter.

(Ord. 011-19 § 4 (Exh. 1); Ord. 021-20 § 2; Ord. 008-25 § 9 (Exh. H))

§ 20.68.060 Accessory dwelling units – Commercial and industrial development – Code applicability.

The following subsections of this chapter do not apply to the construction or establishment of an ADU that is accessory to a commercial or industrial use:

POMC § 20.68.100(1) and (5).

(Ord. 011-19 § 4 (Exh. 1); Ord. 021-20 § 2; Ord. 008-25 § 9 (Exh. H))

§ 20.68.080 Inspection.

(Ord. 011-19 § 4 (Exh. 1); Ord. 021-20 § 2; Ord. 038-22 § 3; Ord. 008-25 § 9 (Exh. H))

§ 20.68.090 Violations.

A violation of this chapter shall be governed by POMC § 20.68.100. Violations of any other city permit or code requirements shall be governed by Chapter 20.02 POMC.

(Ord. 011-19 § 4 (Exh. 1); Ord. 021-20 § 2; Ord. 038-22 § 4; Ord. 008-25 § 9 (Exh. H))

§ 20.68.100 General requirements.

ADUs shall be subject to the following requirements, which shall not be subject to a variance:

Occupancy. Maximum occupancy is regulated by Section 1004 (Occupant Load) of the International Building Code.

Composition. The ADU shall include facilities for cooking, living, sanitation, and sleeping.

Short-Term Rental. The use of an ADU as a short-term rental shall be allowed, subject to compliance with the vacation rental and bed and breakfast regulations in POMC § 20.39.345.

(Ord. 011-19 § 4 (Exh. 1); Ord. 021-20 § 2; Ord. 038-22 § 5; Ord. 008-25 § 9 (Exh. H))

§ 20.68.110 Bulk, location and design requirements.

In commercial or industrial developments, detached ADUs are prohibited, and an attached ADU shall be located on or above the second floor of the building in which it is located.

Size. ADUs shall not exceed a gross floor area of 1,000 square feet.

Location. An ADU shall be permitted as an accessory dwelling unit to the principal building on the same lot.

Parking. Parking shall be provided consistent with the requirements of Chapter 20.124 POMC.

(Ord. 011-19 § 4 (Exh. 1); Ord. 021-20 § 2; Ord. 008-25 § 9 (Exh. H))

§ 20.70.010 Purpose.

Encourage providers of wireless communication facilities to locate these facilities, to the extent possible, in areas where the adverse impact on the community is minimal;

Minimize the total number of wireless communication facilities in residential areas;

Enhance the ability of the providers of telecommunications services to provide such services to the community quickly, effectively and efficiently;

Avoid potential damage to adjacent properties from tower failure, through engineering, careful siting, height limits, and maintenance of wireless communication facilities; and

Provide a means for public input on major wireless communications facility placement, construction, and modification.

(Ord. 014-22 § 2)

§ 20.70.020 Authority and application.

The provisions of this chapter shall apply to the placement, construction, or modification of all wireless communication facilities, except as specifically exempted in POMC § 20.70.030.

(Ord. 014-22 § 2)

§ 20.70.030 Exemptions.

The provisions of this chapter shall not apply to the following:

Changing or adding additional antennas within a previously permitted concealed building-mounted installation is exempt provided there is no visible change from the outside.

Bird exclusionary devices may be added to towers and are not subject to height limitations.

Additional ground equipment may be placed within an approved equipment enclosure, provided the height of the equipment does not extend above the screening fence.

An antenna that is designed to receive television broadcast signals.

The tower and any antennas located thereon shall not have any lights of any kind on it and shall not be illuminated either directly or indirectly by any artificial means;

The tower shall be located a distance equal to or greater than its height from any existing residential structure located on adjacent parcels of property, including any attached accessory structures;

No signs shall be used in conjunction with the tower, except for one sign not larger than eight and one-half inches high and 11 inches wide and as required by federal regulations;

Towers shall not be leased or rented to commercial users, and shall not otherwise be used for commercial purposes; and

All towers must meet all applicable state and federal statutes, rules, and regulations, including obtaining a building permit from the city, if necessary.

Emergency communications equipment during a declared public emergency, when the equipment is owned and operated by an appropriate public entity.

Any wireless internet facility that is owned and operated by a government entity.

Antennas and related equipment no more than three feet in height that are being stored, shipped or displayed for sale.

Radar systems for military and civilian communication and navigation.

Small wireless facilities as defined by POMC § 20.72.030.

(Ord. 014-22 § 2)

§ 20.70.040 Permits required.

This chapter provides guidelines for the placement, construction, and modification of wireless communication facilities, which are not otherwise exempt as set forth in POMC § 20.70.030.

No provision of this chapter shall be interpreted to allow the installation of a wireless communication facility to reduce the minimum parking or landscaping required on a site.

The accuracy and completeness of submissions;

The applicability of analysis techniques and methodologies;

The validity of conclusions reached;

The viability of other sites in the city for the use intended by the applicant; and

Any specific engineering or technical issues designated by the city.

(Ord. 014-22 § 2; Ord. 017-23 § 1 (Exh. A))

§ 20.70.050 Types of permits – Priority – Restrictions.

Table A – Type of Permit Required, Based on Type of Wireless Communication Facility
Type of Facility	Zoning(1)
Type of Facility	Residential	Commercial/Public	Industrial
Adding antennas to an existing or replacement tower or utility pole	Type 1(2)	Type 1(2)	Type 1(2)
Eligible facilities modification	Type 1	Type 1	Type 1
Utility pole co-location	Type 2	Type 2	Type 2
Concealed building attached	Type 2(3)	Type 2(3)	Type 1
Nonconcealed building attached	Type 2	Type 2	Type 1
New tower or height adjustment request beyond the limitations in the Spectrum Act	Type 3	Type 3	Type 3

Notes:
(1) Zoning for any private/public property or right-of-way: Residential – R1, R2, R3, R4, R5, R6, RMU. Commercial and Public – NMU, BPMU, CMU, DMU, GMU, CC, CH, IF, PF, PR, CI. Industrial – LI, HI.
(2) Provided the height of the tower or utility pole does not increase and the square footage of the enclosure area does not increase beyond the limits set forth in Section 6409 of the Spectrum Act.
(3) An applicant may request to install a nonconcealed building attached facility, under POMC § 20.70.140.

The city's preferences for locating new wireless communication facilities are as follows:

Place antennas on existing or replacement structures, such as buildings, towers, water towers, or electrical transmission towers.

Place wireless communication facilities in nonresidentially zoned districts and nonresidential property.

Wireless communication facilities shall not be permitted on property designated as a landmark or as part of a historic district.

Applicants shall submit all of the information required pursuant to POMC § 20.24.030 and the following:

Type 1. Applicant shall submit:

A completed application form provided by the department of community development.

Information sufficient to determine whether a proposed facilities modification per POMC § 20.70.200 would be a substantial change to an existing eligible support structure.

Sensitive area studies and proposed mitigation (if required).

If an outdoor generator is proposed, a report prepared by an acoustical engineer demonstrating compliance with Chapter 173-60 WAC and POMC § 9.24.050.

SEPA application (if required).

Type 2. Applicant shall submit all information required for a Type 1 application, plus the following:

Four sets of photo simulations that depict the existing and proposed view of the proposed facility.

Materials board for the screening material.

If landscaping is proposed, four sets of a landscaping plan prepared by a Washington state-licensed landscape architect.

Letter from a radio frequency engineer that demonstrates that the facility meets federal requirements for allowed emissions.

Type 3. The applicant shall submit all the information required for Type 1 and Type 2 applications, plus the following:

All information required for new towers under POMC § 20.70.060.

The radio frequency engineer report shall include a discussion of the information required under POMC § 20.70.060.

Provisions for mailing labels for all property owners and tenants/residents within 500 feet of the subject property.

Engineering plans for the proposed tower.

A vicinity map depicting the proposed extent of the service area.

(Ord. 014-22 § 2)

§ 20.70.060 New towers.

New towers are not permitted within the city unless the hearing examiner finds that the applicant has demonstrated by a preponderance of the evidence that:

Alternates. No existing tower or structure, or other feasible site not requiring a new tower in the city, can accommodate the applicant's proposed wireless communication facility; and

That the tower height is the minimum necessary in order to achieve the coverage objective;

That available existing structures or towers do not have sufficient structural strength to support the applicant's proposed antenna and ancillary facilities;

(Ord. 014-22 § 2)

§ 20.70.070 General requirements.

The following shall apply to all wireless communication facilities regardless of the type of facility:

Parking. Any application must demonstrate that there is sufficient space for temporary parking for regular maintenance of the proposed facility.

Finish. A tower shall either maintain a galvanized steel finish or, subject to any applicable standards of the FCC, be painted a neutral color so as to reduce its visual obtrusiveness.

Advertising. No advertising is permitted at wireless communication facility sites or on any ancillary structure or facilities equipment compound.

(Ord. 014-22 § 2)

§ 20.70.080 Specific development standards for electrical transmission tower co-location.

The following requirements shall apply:

Height. There is no height requirement for antennas that are located on electrical transmission towers.

Antenna Intensity. There is no limit on the number of antennas that may be located on an electrical transmission tower structure.

Setbacks. Since the facility will be located on an existing electrical transmission tower, setbacks shall not apply.

(Ord. 014-22 § 2)

§ 20.70.090 Specific development standards for adding antennas to existing WCF tower.

The following requirements shall apply:

Antenna Aesthetics. Antennas shall be painted to match the color scheme of the tower.

Antenna Intensity. There is no limit on the number of antennas that may be located on an existing tower.

(Ord. 014-22 § 2)

§ 20.70.100 Concealed building-mounted development requirements.

The following requirements shall apply:

Feed Lines and Coaxial Cables. Feed lines and cables should be located below the parapet of the rooftop.

Setbacks. The proposed wireless communication facilities facility must meet the setback of the applicable zoning category where the facility is to be located.

(Ord. 014-22 § 2)

§ 20.70.110 Nonconcealed building-mounted development requirements.

The following requirements shall apply:

(Ord. 014-22 § 2)

§ 20.70.120 Utility pole co-location.

The following requirements shall apply:

Height. The height of a utility pole co-location is limited to 25 feet above the replaced utility pole, and may be not greater than 65 feet in height in residential zones.

Pole Aesthetics. The replaced utility pole must have the color and general appearance of the adjacent utility poles.

(Ord. 014-22 § 2)

§ 20.70.130 Towers – Specific development standards.

The following requirements shall apply:

Height. Any proposed tower with antennas shall not exceed 70 feet without a height waiver as described in POMC § 20.70.170. Bird exclusionary devices are not subject to height limitations.

Setbacks. A facility that is used for wireless communications must be set back from all property lines the greater of:

Fifty feet; or

Color. The color of the tower shall be based on the surrounding land uses.

(Ord. 014-22 § 2)

§ 20.70.140 Request to use nonconcealed building attached in lieu of a concealed building attached.

Due to the size of the building and the proposed location of the antennas, the visual impact of the exposed antennas will be minimal in relation to the building.

Cables are concealed from view and any visible cables are reduced in visibility by sheathing or painting to match the building where they are located.

Cabinet equipment is adequately screened from view.

Due to the style or design of the building, the use of a concealed facility would reduce the visual appearance of the building.

The building where the antennas are located is at least 200 feet from any body of water or waterway that is designated as either shoreline or critical area.

(Ord. 014-22 § 2)

§ 20.70.150 Landscaping/screening.

The landscaping area shall be a minimum of 10 feet in width around the perimeter of the enclosure.

The applicant shall utilize evergreens that shall be a minimum of six feet tall at the time of planting.

The applicant shall utilize irrigation or an approved maintenance schedule that will ensure that the plantings are established after two years from the date of planting.

(Ord. 014-22 § 2)

§ 20.70.160 Zoning setback exceptions.

The community development director or hearing examiner, depending on the type of application, may permit modifications to be made to setbacks when:

The modification will aid in retaining open space and trees on the site; or

The proposed location allows for the wireless communication facility to be located a greater distance from residentially zoned properties.

This zoning setback modification cannot be used to waive/modify any required setback required under the State Building Code or Fire Code or used to reduce the safety of the facility.

(Ord. 014-22 § 2)

§ 20.70.170 Height waivers.

Topography and other site features;

Availability of alternative site locations;

Geographic location of property; and

Size/magnitude of project being evaluated and availability of co-location.

"Eligible facilities modification"

(Ord. 014-22 § 2)

§ 20.70.190 Removal of abandoned wireless communication facilities.

(Ord. 014-22 § 2)

§ 20.70.200 Standards for eligible facilities modifications.

Definitions.

"Eligible support structure"

"Existing"

shall mean and refer to a constructed tower or base station that was reviewed and approved under the applicable zoning or siting process and lawfully constructed.

"Proposed facilities modification"

shall mean and refer to a proposal submitted by an applicant to modify an eligible support structure the applicant asserts is subject to review under Section 6409 of the Spectrum Act, and involving:

Collocation of new transmission equipment;

Removal of transmission equipment; or

Replacement of transmission equipment.

"Site"

Substantial Change. A proposed facilities modification will substantially change the physical dimensions of an eligible support structure if it meets any of the following criteria:

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

"Break point technology"

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

(Ord. 014-22 § 2)

§ 20.70.210 Expiration of wireless facility permits.

(Ord. 014-22 § 2)

§ 20.72.010 Purpose and scope.

(Ord. 015-22 § 2)

§ 20.72.020 Exemptions.

Industrial processing equipment and scientific or medical equipment using frequencies regulated by the FCC.

Citizen band radios or antennas operated by federal licensing amateur ("ham") radio operators.

Satellite dish antennas less than two meters in diameter, including direct-to-home satellite services, when used as secondary use of the property.

Eligible facilities requests. See POMC § 20.70.200.

(Ord. 015-22 § 2)

§ 20.72.030 Definitions.

For the purposes of this chapter, the following terms shall have the meaning ascribed to them below:

means any person submitting an application for a small wireless facility permit pursuant to this chapter.

"Collocation"

means:

Mounting or installing antenna equipment on a preexisting structure; and/or

Modifying a structure for the purpose of mounting or installing antenna equipment on that structure.

"Director"

means the community development director or designee.

"Equipment enclosure"

"FCC" or "Federal Communications Commission"

means the federal administrative agency, or lawful successor, authorized to regulate and oversee telecommunications carriers, services and providers on a national level.

"Permittee"

means a person who has applied for and received a small wireless facility permit pursuant to this chapter.

"Personal wireless services"

means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services.

"Person"

includes corporations, companies, associations, joint stock companies, firms, partnerships, limited liability companies, other entities, and individuals.

"Public right-of-way" or "right-of-way"

means land acquired or dedicated for public roads and streets but does not include:

State highways;

Land dedicated for roads, streets, and highways not opened and not improved for motor vehicle use by the public;

Structures, including poles and conduits, located within the right-of-way;

Federally granted trust lands or Forest Board trust lands;

Lands owned or managed by the State Parks and Recreation Commission; or

Federally granted railroad rights-of-way acquired under 43 U.S.C. 912 and related provisions of federal law that are not open for motor vehicle use.

"Small wireless facility"

"Service provider"

(13)

shall mean a wireless telecommunication facility that meets both of the following qualifications:

"Telecommunications service"

All other equipment associated with the facility (excluding antennas) is cumulatively no more than 28 cubic feet in volume.

Provided, however, if there is a conflict between this definition and the definition contained under federal law (47 CFR 1.6002(l)), then the federal law definition shall apply.

shall be defined in accord with RCW 35.99.010(7).

(17)

(18)

"Traffic signal pole"

means any structure designed and used primarily for support of traffic signal displays and equipment, whether for vehicular or nonmotorized users.

(19)

"Wireless communications facilities" or "WCF"

(20)

"Unified enclosure"

means a small wireless facility providing concealment of antennas and equipment within a single enclosure.

(21)

"Utility pole"

means a structure designed and used primarily for the support of electrical wires, telephone wires, television cable, or lighting for streets, parking lots, or pedestrian paths.

(22)

means facilities used for personal wireless services.

(23)

"Wireline"

means services provided using a physically tangible means of transmission including, without limitation, wire or cable, and the apparatus used for such transmission.

(Ord. 015-22 § 2)

§ 20.72.040 Federal regulatory requirements.

Small wireless facilities shall be subject to the requirements of this code to the extent that such requirements:

Do not unreasonably discriminate among providers of functionally equivalent services; and

Do not prohibit or have the effect of prohibiting the ability of any entity to provide intrastate or interstate wireless service.

(Ord. 015-22 § 2)

§ 20.72.050 Small wireless facility application process.

(Ord. 015-22 § 2)

§ 20.72.060 Small wireless facility application requirements.

The following information shall be provided by all applicants for a small wireless permit:

A photometric analysis of the roadway and sidewalk within 150 feet of the existing light if the site location includes a new or replacement light pole.

Compliance with the applicable aesthetic requirements pursuant to POMC § 20.72.100.

The applicant is encouraged to batch the small wireless facility sites within an application in a contiguous service area and/or with similar designs.

The applicant shall provide proof of FCC or other regulatory approvals required to provide the service(s) or utilize the technologies sought to be installed.

A right-of-way use permit application as required by POMC § 12.04.030.

Proof of a valid city of Port Orchard business license.

Such other information as the director, in their reasonable discretion, shall deem appropriate to effectively evaluate the application based on technical, engineering and aesthetic considerations.

(Ord. 015-22 § 2; Ord. 017-23 § 1 (Exh. A))

§ 20.72.070 Small wireless facility review criteria and process.

The following provisions relate to the review of applications for a small wireless facility permit:

In any zone, upon application for a small wireless permit, the city will permit small wireless facilities only when the application meets the criteria of this chapter.

Vertical clearance shall be reviewed by the director to ensure the small wireless facilities will not pose a hazard to other users of the rights-of-way.

Replacement poles, new poles, and ground-mounted equipment shall only be permitted pursuant to the applicable standards in POMC § 20.72.100.

No equipment shall be operated so as to produce noise in violation of POMC § 9.24.050 or Chapter 173-60 WAC.

Eligible Facilities Requests. Small wireless facilities may be expanded pursuant to an eligible facility request so long as the expansion:

Does not defeat the specifically designated stealth techniques; and

Does not exceed the conditions of a small wireless facility as defined by 47 CFR 1.6002(l).

(Ord. 015-22 § 2)

§ 20.72.080 Small wireless facility permit requirements.

Permit Compliance. The permittee shall comply with all of the requirements within the small wireless facility permit.

(Ord. 015-22 § 2)

§ 20.72.090 Small wireless facility modification.

(Ord. 015-22 § 2)

§ 20.72.100 Small wireless facility aesthetic, concealment, and design standards.

All small wireless facilities shall conform with the following general aesthetic, concealment, and design standards, as applicable:

The applicant affirms they have received an access easement from the property owner to locate the facility in the desired location; and

The installation is allowed by, and consistent with, the access easement; and

Such installation will not frustrate the purpose of the easement or create any access or safety issue; and

The location is in compliance with all land use regulations such as, but not limited to, setback requirements.

The preferred location of a small wireless facility on a pole is the location with the least visible impact.

Replacement poles shall be located as near as possible to the existing pole, but in no event further than five feet from the existing pole, and the existing pole shall be removed.

The farthest point of any antenna or equipment enclosure may not extend more than 28 inches from the face of the pole.

Replacement wooden poles must either match the approximate color and materials of the replaced pole or shall be the standard new wooden pole used by the pole owner in the city.

Antennas, equipment enclosures, and all ancillary equipment, boxes and conduit shall be colored or painted to match the approximate color of the surface of the wooden pole on which they are attached.

Antennas shall not be mounted more than 12 inches from the surface of the wooden pole.

The farthest point of any antenna or equipment enclosure may not extend more than 28 inches from the face of the pole.

New poles within the rights-of-way are only permitted if the applicant can establish that:

The proposed small wireless facility receives approval for a stealth technique design, as described in subsection (5)(c) of this section; and

The proposed small wireless facility also complies with the Shoreline Management Act, Growth Management Act, and State Environmental Policy Act, if applicable; and

An application for a new pole is subject to administrative review by the director.

Each strand-mounted facility shall not exceed three cubic feet in volume;

Only one strand-mounted facility is permitted per cable between any two existing poles on an existing cable;

No strand-mounted device shall be located in or above the portion of the roadway open to vehicular traffic;

Ground-mounted equipment to accommodate a shared mounted facility is not permitted except when placed in preexisting equipment cabinets or required by a third-party electrical service provider; and

Pole-mounted equipment shall comply with the requirements of subsections (1) and (2) of this section.

Such strand-mounted devices must be installed to cause the least visual impact and without excess exterior cabling or wires (other than the original strand).

Small wireless facilities may be mounted to the sides of a building if the antennas do not interrupt the building's architectural theme.

The interruption of architectural lines or horizontal or vertical reveals is discouraged.

New architectural features such as columns, pilasters, corbels, or other ornamentation that conceal antennas may be used if it complements the architecture of the existing building.

Small wireless facilities shall utilize the smallest mounting brackets necessary in order to provide the smallest offset from the building.

To the extent technically feasible, small wireless facilities shall be textured and colored to match the adjacent building surfaces.

(Ord. 015-22 § 2)

§ 20.72.110 Removal of abandoned small wireless facility.

(Ord. 015-22 § 2)

§ 20.72.120 Revocation of permit.

A permit issued under this chapter may be revoked, suspended or denied for any one or more of the following reasons:

Failure to comply with any federal, state, or local laws or regulations.

Failure to comply with the terms and conditions imposed by the city on the issuance of a permit.

When the permit was procured by fraud, false representation, or omission of material facts.

Failure to comply with federal standards for RF emissions.

(Ord. 015-22 § 2)

Port Orchard City Zoning Code

Subtitle IV

SUPPLEMENTAL ZONING REGULATIONS

§ 20.60.010 Purpose.

(Ord. 019-17 § 18 (Exh. 1))

§ 20.60.020 Definition – Home business.

The term "home business" or "home businesses" shall include home (cottage) industry, home occupation and home profession as defined in Chapter 20.12 POMC.

(Ord. 019-17 § 18 (Exh. 1))

§ 20.60.030 Business license required.

(Ord. 019-17 § 18 (Exh. 1); Ord. 017-23 § 4 (Exh. A))

§ 20.60.040 Home businesses – Requirements.

Home businesses are permitted in a residential dwelling unit subject to the provisions of the city's zoning ordinance and if all of the following criteria are met:

No more than one person who is not a resident shall be employed in the home business without obtaining a conditional use permit.

Change of use, sale or transfer of the home business, or relocation of the home business to a new location; or

The provisions of this chapter shall not apply to the following: bed and breakfast establishments, as defined in Chapter 20.12 POMC; daycare facilities, as defined in Chapter 20.12 POMC.

(Ord. 019-17 § 18 (Exh. 1))

§ 20.60.050 Revocation of home business license.

In addition to any other penalties provided in POMC Title 5, or as otherwise permitted by law, a home business license may be revoked under any of the following circumstances:

The license or licensee qualifies for revocation or suspension as set forth in POMC § 5.12.120;

The license or licensee fails to comply with any provisions of a conditional use permit; or

The licensee fails to comply with any provision of this chapter.

Upon determination that there is cause for revocation of a home business license by the city, notice shall be sent to the licensee as set forth in POMC § 5.12.120(2).

(Ord. 019-17 § 18 (Exh. 1))

§ 20.64.010 Findings, purpose, and intent.

(Ord. 019-17 § 18 (Exh. 1))

§ 20.64.020 Applicability.

(Ord. 019-17 § 18 (Exh. 1))

§ 20.64.030 Location criteria.

No marijuana business or medical marijuana cooperative may locate within 1,000 feet of any of the following:

Elementary or secondary school;

Playground;

Recreation center or facility;

Child care center;

Public park;

Public transit center;

Library; or

Any game arcade (where admission is not restricted to persons age 21 or older).

The methodology for measuring the buffers described above shall be as provided in WAC 314-55-050.

No marijuana business may locate within any residentially zoned district or within any residential unit in the city.

No medical marijuana cooperative may be located within one mile of a marijuana retail outlet.

(Ord. 019-17 § 18 (Exh. 1))

§ 20.64.040 Allowed in identified zones.

Marijuana businesses, including production, processing and retail, shall only be allowed in those zoning districts where it is specifically identified as a permitted use.

Marijuana retail outlets shall not be open to the public between the hours of 12:00 a.m. and 8:00 a.m.

(Ord. 019-17 § 18 (Exh. 1))

§ 20.64.050 Licenses required.

(Ord. 019-17 § 18 (Exh. 1))

§ 20.64.060 Signs and advertising.

The city may enforce this section pursuant to Chapter 20.02 POMC. For violations of state law, the city may report the violation to the Washington State Liquor and Cannabis Board.

(Ord. 019-17 § 18 (Exh. 1))

§ 20.64.070 Report of disturbance and unlawful activity.

WARNING:
The City of Port Orchard Police Department must be notified of all disorderly acts, conduct or disturbances and all unlawful activities which occur on or within the premises of this licensed establishment.

(Ord. 019-17 § 18 (Exh. 1))

§ 20.64.080 Visibility of activities – Control of emissions.

All activities of the marijuana business, including, but not limited to, cultivating, growing, processing, displaying, manufacturing, selling and storage, shall be conducted out of the public view.

No marijuana or paraphernalia shall be displayed or kept in a marijuana business so as to be visible from outside the licensed premises.

(Ord. 019-17 § 18 (Exh. 1))

§ 20.66.010 Definitions.

The words and phrases used in this chapter, unless the context otherwise indicates, shall have the following meanings:

"Driveway" and "parking pad"

mean established driving and parking areas located on the property, not within the public right-of-way, private roadway, or ingress/egress easement.

"Major parts and components"

means and includes, but is not limited to: body panels, frame components, bumpers, hoods, doors, engines, transmissions, differentials, and similar parts and assemblies.

"Recreational, sporting, and utility vehicles and equipment"

"Roadway"

means and includes the paved or unpaved road surface and any associated sidewalk, improved or unimproved shoulder, parking strip, and landscaping.

"Vehicles and equipment"

means and includes motor vehicles, nonmotorized, recreational, sporting, utility, or other vehicles and related equipment of any type.

(Ord. 023-19 § 1)

§ 20.66.020 Service and repair standards.

Major work is prohibited in multifamily residential complexes of five or more dwelling units on a parcel, unless entirely within an enclosed garage.

No more than one vehicle may be undergoing or in any stage of service, repair, or other work at any one time.

Outdoor work shall be conducted only between the hours of 7:00 a.m. and 7:00 p.m. on weekdays and 9:00 a.m. and 7:00 p.m. on weekends.

Parts, equipment, tools, debris, excess materials or other supplies shall be stored within a fully enclosed structure such as a garage or accessory building when not in use.

Storage, containment, and disposal of all waste products and hazardous materials shall be in accordance with all applicable state, federal, and local regulations.

"Accessory dwelling unit"

Painting of vehicles or equipment is prohibited, whether inside or outside of a building.

(Formerly 20.66.010; Ord. 023-19 § 1; Ord. 023-19 § 1)

§ 20.68.010 Accessory dwelling units – Defined.

For the purpose of this chapter the following definitions apply:

"Attached accessory dwelling unit"

"Detached accessory dwelling unit"

"Gross floor area"

means the interior habitable area of a dwelling unit including basements and attics but not including a garage or accessory structure.

"Owner" or "property owner"

means any person who has at least 50 percent ownership in a property on which an accessory dwelling unit is located.

(Ord. 011-19 § 4 (Exh. 1); Ord. 021-20 § 2; Ord. 008-25 § 9 (Exh. H))

§ 20.68.020 Accessory dwelling units – Purpose.

Intent. Accessory dwelling units (hereinafter referred to as "ADUs") are intended to:

Provide homeowners with a means of providing for companionship and security.

Add affordable units to the existing housing supply.

Make housing units within the city available to low and moderate income people.

Promote neighborhood stability, property values, and the single-family residential appearance by ensuring that ADUs are installed in a compatible manner under the conditions of this chapter.

Increase density and promote sustainable practices by better utilizing existing infrastructure and community resources, while supporting public transit, neighborhood retail, and commercial services.

Provide a means for commercial and industrial sites to have a resident caretaker or security officer.

(Ord. 011-19 § 4 (Exh. 1); Ord. 021-20 § 2; Ord. 008-25 § 9 (Exh. H))

§ 20.68.030 Accessory dwelling units – Decision type.

A building permit for an ADU is a Type I action and shall be reviewed and considered in accordance with the procedures for such actions as set forth in Subtitle II of this title.

(Ord. 011-19 § 4 (Exh. 1); Ord. 021-20 § 2; Ord. 008-25 § 9 (Exh. H))

§ 20.68.040 Accessory dwelling units – Administration.

The planning director shall have the authority to develop and implement procedures to administer and enforce this chapter.

(Ord. 011-19 § 4 (Exh. 1); Ord. 021-20 § 2; Ord. 008-25 § 9 (Exh. H))

§ 20.68.060 Accessory dwelling units – Commercial and industrial development – Code applicability.

The following subsections of this chapter do not apply to the construction or establishment of an ADU that is accessory to a commercial or industrial use:

POMC § 20.68.100(1) and (5).

(Ord. 011-19 § 4 (Exh. 1); Ord. 021-20 § 2; Ord. 008-25 § 9 (Exh. H))

§ 20.68.080 Inspection.

(Ord. 011-19 § 4 (Exh. 1); Ord. 021-20 § 2; Ord. 038-22 § 3; Ord. 008-25 § 9 (Exh. H))

§ 20.68.090 Violations.

A violation of this chapter shall be governed by POMC § 20.68.100. Violations of any other city permit or code requirements shall be governed by Chapter 20.02 POMC.

(Ord. 011-19 § 4 (Exh. 1); Ord. 021-20 § 2; Ord. 038-22 § 4; Ord. 008-25 § 9 (Exh. H))

§ 20.68.100 General requirements.

ADUs shall be subject to the following requirements, which shall not be subject to a variance:

Occupancy. Maximum occupancy is regulated by Section 1004 (Occupant Load) of the International Building Code.

Composition. The ADU shall include facilities for cooking, living, sanitation, and sleeping.

Short-Term Rental. The use of an ADU as a short-term rental shall be allowed, subject to compliance with the vacation rental and bed and breakfast regulations in POMC § 20.39.345.

(Ord. 011-19 § 4 (Exh. 1); Ord. 021-20 § 2; Ord. 038-22 § 5; Ord. 008-25 § 9 (Exh. H))

§ 20.68.110 Bulk, location and design requirements.

In commercial or industrial developments, detached ADUs are prohibited, and an attached ADU shall be located on or above the second floor of the building in which it is located.

Size. ADUs shall not exceed a gross floor area of 1,000 square feet.

Location. An ADU shall be permitted as an accessory dwelling unit to the principal building on the same lot.

Parking. Parking shall be provided consistent with the requirements of Chapter 20.124 POMC.

(Ord. 011-19 § 4 (Exh. 1); Ord. 021-20 § 2; Ord. 008-25 § 9 (Exh. H))

§ 20.70.010 Purpose.

Encourage providers of wireless communication facilities to locate these facilities, to the extent possible, in areas where the adverse impact on the community is minimal;

Minimize the total number of wireless communication facilities in residential areas;

Enhance the ability of the providers of telecommunications services to provide such services to the community quickly, effectively and efficiently;

Avoid potential damage to adjacent properties from tower failure, through engineering, careful siting, height limits, and maintenance of wireless communication facilities; and

Provide a means for public input on major wireless communications facility placement, construction, and modification.

(Ord. 014-22 § 2)

§ 20.70.020 Authority and application.

The provisions of this chapter shall apply to the placement, construction, or modification of all wireless communication facilities, except as specifically exempted in POMC § 20.70.030.

(Ord. 014-22 § 2)

§ 20.70.030 Exemptions.

The provisions of this chapter shall not apply to the following:

Changing or adding additional antennas within a previously permitted concealed building-mounted installation is exempt provided there is no visible change from the outside.

Bird exclusionary devices may be added to towers and are not subject to height limitations.

Additional ground equipment may be placed within an approved equipment enclosure, provided the height of the equipment does not extend above the screening fence.

An antenna that is designed to receive television broadcast signals.

The tower and any antennas located thereon shall not have any lights of any kind on it and shall not be illuminated either directly or indirectly by any artificial means;

The tower shall be located a distance equal to or greater than its height from any existing residential structure located on adjacent parcels of property, including any attached accessory structures;

No signs shall be used in conjunction with the tower, except for one sign not larger than eight and one-half inches high and 11 inches wide and as required by federal regulations;

Towers shall not be leased or rented to commercial users, and shall not otherwise be used for commercial purposes; and

All towers must meet all applicable state and federal statutes, rules, and regulations, including obtaining a building permit from the city, if necessary.

Emergency communications equipment during a declared public emergency, when the equipment is owned and operated by an appropriate public entity.

Any wireless internet facility that is owned and operated by a government entity.

Antennas and related equipment no more than three feet in height that are being stored, shipped or displayed for sale.

Radar systems for military and civilian communication and navigation.

Small wireless facilities as defined by POMC § 20.72.030.

(Ord. 014-22 § 2)

§ 20.70.040 Permits required.

This chapter provides guidelines for the placement, construction, and modification of wireless communication facilities, which are not otherwise exempt as set forth in POMC § 20.70.030.

No provision of this chapter shall be interpreted to allow the installation of a wireless communication facility to reduce the minimum parking or landscaping required on a site.

The accuracy and completeness of submissions;

The applicability of analysis techniques and methodologies;

The validity of conclusions reached;

The viability of other sites in the city for the use intended by the applicant; and

Any specific engineering or technical issues designated by the city.

(Ord. 014-22 § 2; Ord. 017-23 § 1 (Exh. A))

§ 20.70.050 Types of permits – Priority – Restrictions.

Table A – Type of Permit Required, Based on Type of Wireless Communication Facility
Type of Facility	Zoning(1)
Type of Facility	Residential	Commercial/Public	Industrial
Adding antennas to an existing or replacement tower or utility pole	Type 1(2)	Type 1(2)	Type 1(2)
Eligible facilities modification	Type 1	Type 1	Type 1
Utility pole co-location	Type 2	Type 2	Type 2
Concealed building attached	Type 2(3)	Type 2(3)	Type 1
Nonconcealed building attached	Type 2	Type 2	Type 1
New tower or height adjustment request beyond the limitations in the Spectrum Act	Type 3	Type 3	Type 3

Notes:
(1) Zoning for any private/public property or right-of-way: Residential – R1, R2, R3, R4, R5, R6, RMU. Commercial and Public – NMU, BPMU, CMU, DMU, GMU, CC, CH, IF, PF, PR, CI. Industrial – LI, HI.
(2) Provided the height of the tower or utility pole does not increase and the square footage of the enclosure area does not increase beyond the limits set forth in Section 6409 of the Spectrum Act.
(3) An applicant may request to install a nonconcealed building attached facility, under POMC § 20.70.140.

The city's preferences for locating new wireless communication facilities are as follows:

Place antennas on existing or replacement structures, such as buildings, towers, water towers, or electrical transmission towers.

Place wireless communication facilities in nonresidentially zoned districts and nonresidential property.

Wireless communication facilities shall not be permitted on property designated as a landmark or as part of a historic district.

Applicants shall submit all of the information required pursuant to POMC § 20.24.030 and the following:

Type 1. Applicant shall submit:

A completed application form provided by the department of community development.

Information sufficient to determine whether a proposed facilities modification per POMC § 20.70.200 would be a substantial change to an existing eligible support structure.

Sensitive area studies and proposed mitigation (if required).

If an outdoor generator is proposed, a report prepared by an acoustical engineer demonstrating compliance with Chapter 173-60 WAC and POMC § 9.24.050.

SEPA application (if required).

Type 2. Applicant shall submit all information required for a Type 1 application, plus the following:

Four sets of photo simulations that depict the existing and proposed view of the proposed facility.

Materials board for the screening material.

If landscaping is proposed, four sets of a landscaping plan prepared by a Washington state-licensed landscape architect.

Letter from a radio frequency engineer that demonstrates that the facility meets federal requirements for allowed emissions.

Type 3. The applicant shall submit all the information required for Type 1 and Type 2 applications, plus the following:

All information required for new towers under POMC § 20.70.060.

The radio frequency engineer report shall include a discussion of the information required under POMC § 20.70.060.

Provisions for mailing labels for all property owners and tenants/residents within 500 feet of the subject property.

Engineering plans for the proposed tower.

A vicinity map depicting the proposed extent of the service area.

(Ord. 014-22 § 2)

§ 20.70.060 New towers.

New towers are not permitted within the city unless the hearing examiner finds that the applicant has demonstrated by a preponderance of the evidence that:

Alternates. No existing tower or structure, or other feasible site not requiring a new tower in the city, can accommodate the applicant's proposed wireless communication facility; and

That the tower height is the minimum necessary in order to achieve the coverage objective;

That available existing structures or towers do not have sufficient structural strength to support the applicant's proposed antenna and ancillary facilities;

(Ord. 014-22 § 2)

§ 20.70.070 General requirements.

The following shall apply to all wireless communication facilities regardless of the type of facility:

Parking. Any application must demonstrate that there is sufficient space for temporary parking for regular maintenance of the proposed facility.

Finish. A tower shall either maintain a galvanized steel finish or, subject to any applicable standards of the FCC, be painted a neutral color so as to reduce its visual obtrusiveness.

Advertising. No advertising is permitted at wireless communication facility sites or on any ancillary structure or facilities equipment compound.

(Ord. 014-22 § 2)

§ 20.70.080 Specific development standards for electrical transmission tower co-location.

The following requirements shall apply:

Height. There is no height requirement for antennas that are located on electrical transmission towers.

Antenna Intensity. There is no limit on the number of antennas that may be located on an electrical transmission tower structure.

Setbacks. Since the facility will be located on an existing electrical transmission tower, setbacks shall not apply.

(Ord. 014-22 § 2)

§ 20.70.090 Specific development standards for adding antennas to existing WCF tower.

The following requirements shall apply:

Antenna Aesthetics. Antennas shall be painted to match the color scheme of the tower.

Antenna Intensity. There is no limit on the number of antennas that may be located on an existing tower.

(Ord. 014-22 § 2)

§ 20.70.100 Concealed building-mounted development requirements.

The following requirements shall apply:

Feed Lines and Coaxial Cables. Feed lines and cables should be located below the parapet of the rooftop.

Setbacks. The proposed wireless communication facilities facility must meet the setback of the applicable zoning category where the facility is to be located.

(Ord. 014-22 § 2)

§ 20.70.110 Nonconcealed building-mounted development requirements.

The following requirements shall apply:

(Ord. 014-22 § 2)

§ 20.70.120 Utility pole co-location.

The following requirements shall apply:

Height. The height of a utility pole co-location is limited to 25 feet above the replaced utility pole, and may be not greater than 65 feet in height in residential zones.

Pole Aesthetics. The replaced utility pole must have the color and general appearance of the adjacent utility poles.

(Ord. 014-22 § 2)

§ 20.70.130 Towers – Specific development standards.

The following requirements shall apply:

Height. Any proposed tower with antennas shall not exceed 70 feet without a height waiver as described in POMC § 20.70.170. Bird exclusionary devices are not subject to height limitations.

Setbacks. A facility that is used for wireless communications must be set back from all property lines the greater of:

Fifty feet; or

Color. The color of the tower shall be based on the surrounding land uses.

(Ord. 014-22 § 2)

§ 20.70.140 Request to use nonconcealed building attached in lieu of a concealed building attached.

Due to the size of the building and the proposed location of the antennas, the visual impact of the exposed antennas will be minimal in relation to the building.

Cables are concealed from view and any visible cables are reduced in visibility by sheathing or painting to match the building where they are located.

Cabinet equipment is adequately screened from view.

Due to the style or design of the building, the use of a concealed facility would reduce the visual appearance of the building.

The building where the antennas are located is at least 200 feet from any body of water or waterway that is designated as either shoreline or critical area.

(Ord. 014-22 § 2)

§ 20.70.150 Landscaping/screening.

The landscaping area shall be a minimum of 10 feet in width around the perimeter of the enclosure.

The applicant shall utilize evergreens that shall be a minimum of six feet tall at the time of planting.

The applicant shall utilize irrigation or an approved maintenance schedule that will ensure that the plantings are established after two years from the date of planting.

(Ord. 014-22 § 2)

§ 20.70.160 Zoning setback exceptions.

The community development director or hearing examiner, depending on the type of application, may permit modifications to be made to setbacks when:

The modification will aid in retaining open space and trees on the site; or

The proposed location allows for the wireless communication facility to be located a greater distance from residentially zoned properties.

This zoning setback modification cannot be used to waive/modify any required setback required under the State Building Code or Fire Code or used to reduce the safety of the facility.

(Ord. 014-22 § 2)

§ 20.70.170 Height waivers.

Topography and other site features;

Availability of alternative site locations;

Geographic location of property; and

Size/magnitude of project being evaluated and availability of co-location.

"Eligible facilities modification"

(Ord. 014-22 § 2)

§ 20.70.190 Removal of abandoned wireless communication facilities.

(Ord. 014-22 § 2)

§ 20.70.200 Standards for eligible facilities modifications.

Definitions.

"Eligible support structure"

"Existing"

shall mean and refer to a constructed tower or base station that was reviewed and approved under the applicable zoning or siting process and lawfully constructed.

"Proposed facilities modification"

shall mean and refer to a proposal submitted by an applicant to modify an eligible support structure the applicant asserts is subject to review under Section 6409 of the Spectrum Act, and involving:

Collocation of new transmission equipment;

Removal of transmission equipment; or

Replacement of transmission equipment.

"Site"

Substantial Change. A proposed facilities modification will substantially change the physical dimensions of an eligible support structure if it meets any of the following criteria:

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

"Break point technology"

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

(Ord. 014-22 § 2)

§ 20.70.210 Expiration of wireless facility permits.

(Ord. 014-22 § 2)

§ 20.72.010 Purpose and scope.

(Ord. 015-22 § 2)

§ 20.72.020 Exemptions.

Industrial processing equipment and scientific or medical equipment using frequencies regulated by the FCC.

Citizen band radios or antennas operated by federal licensing amateur ("ham") radio operators.

Satellite dish antennas less than two meters in diameter, including direct-to-home satellite services, when used as secondary use of the property.

Eligible facilities requests. See POMC § 20.70.200.

(Ord. 015-22 § 2)

§ 20.72.030 Definitions.

For the purposes of this chapter, the following terms shall have the meaning ascribed to them below:

means any person submitting an application for a small wireless facility permit pursuant to this chapter.

"Collocation"

means:

Mounting or installing antenna equipment on a preexisting structure; and/or

Modifying a structure for the purpose of mounting or installing antenna equipment on that structure.

"Director"

means the community development director or designee.

"Equipment enclosure"

"FCC" or "Federal Communications Commission"

means the federal administrative agency, or lawful successor, authorized to regulate and oversee telecommunications carriers, services and providers on a national level.

"Permittee"

means a person who has applied for and received a small wireless facility permit pursuant to this chapter.

"Personal wireless services"

means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services.

"Person"

includes corporations, companies, associations, joint stock companies, firms, partnerships, limited liability companies, other entities, and individuals.

"Public right-of-way" or "right-of-way"

means land acquired or dedicated for public roads and streets but does not include:

State highways;

Land dedicated for roads, streets, and highways not opened and not improved for motor vehicle use by the public;

Structures, including poles and conduits, located within the right-of-way;

Federally granted trust lands or Forest Board trust lands;

Lands owned or managed by the State Parks and Recreation Commission; or

Federally granted railroad rights-of-way acquired under 43 U.S.C. 912 and related provisions of federal law that are not open for motor vehicle use.

"Small wireless facility"

"Service provider"

(13)

shall mean a wireless telecommunication facility that meets both of the following qualifications:

"Telecommunications service"

All other equipment associated with the facility (excluding antennas) is cumulatively no more than 28 cubic feet in volume.

Provided, however, if there is a conflict between this definition and the definition contained under federal law (47 CFR 1.6002(l)), then the federal law definition shall apply.

shall be defined in accord with RCW 35.99.010(7).

(17)

(18)

"Traffic signal pole"

means any structure designed and used primarily for support of traffic signal displays and equipment, whether for vehicular or nonmotorized users.

(19)

"Wireless communications facilities" or "WCF"

(20)

"Unified enclosure"

means a small wireless facility providing concealment of antennas and equipment within a single enclosure.

(21)

"Utility pole"

means a structure designed and used primarily for the support of electrical wires, telephone wires, television cable, or lighting for streets, parking lots, or pedestrian paths.

(22)

means facilities used for personal wireless services.

(23)

"Wireline"

means services provided using a physically tangible means of transmission including, without limitation, wire or cable, and the apparatus used for such transmission.

(Ord. 015-22 § 2)

§ 20.72.040 Federal regulatory requirements.

Small wireless facilities shall be subject to the requirements of this code to the extent that such requirements:

Do not unreasonably discriminate among providers of functionally equivalent services; and

Do not prohibit or have the effect of prohibiting the ability of any entity to provide intrastate or interstate wireless service.

(Ord. 015-22 § 2)

§ 20.72.050 Small wireless facility application process.

(Ord. 015-22 § 2)

§ 20.72.060 Small wireless facility application requirements.

The following information shall be provided by all applicants for a small wireless permit:

A photometric analysis of the roadway and sidewalk within 150 feet of the existing light if the site location includes a new or replacement light pole.

Compliance with the applicable aesthetic requirements pursuant to POMC § 20.72.100.

The applicant is encouraged to batch the small wireless facility sites within an application in a contiguous service area and/or with similar designs.

The applicant shall provide proof of FCC or other regulatory approvals required to provide the service(s) or utilize the technologies sought to be installed.

A right-of-way use permit application as required by POMC § 12.04.030.

Proof of a valid city of Port Orchard business license.

Such other information as the director, in their reasonable discretion, shall deem appropriate to effectively evaluate the application based on technical, engineering and aesthetic considerations.

(Ord. 015-22 § 2; Ord. 017-23 § 1 (Exh. A))

§ 20.72.070 Small wireless facility review criteria and process.

The following provisions relate to the review of applications for a small wireless facility permit:

In any zone, upon application for a small wireless permit, the city will permit small wireless facilities only when the application meets the criteria of this chapter.

Vertical clearance shall be reviewed by the director to ensure the small wireless facilities will not pose a hazard to other users of the rights-of-way.

Replacement poles, new poles, and ground-mounted equipment shall only be permitted pursuant to the applicable standards in POMC § 20.72.100.

No equipment shall be operated so as to produce noise in violation of POMC § 9.24.050 or Chapter 173-60 WAC.

Eligible Facilities Requests. Small wireless facilities may be expanded pursuant to an eligible facility request so long as the expansion:

Does not defeat the specifically designated stealth techniques; and

Does not exceed the conditions of a small wireless facility as defined by 47 CFR 1.6002(l).

(Ord. 015-22 § 2)

§ 20.72.080 Small wireless facility permit requirements.

Permit Compliance. The permittee shall comply with all of the requirements within the small wireless facility permit.

(Ord. 015-22 § 2)

§ 20.72.090 Small wireless facility modification.

(Ord. 015-22 § 2)

§ 20.72.100 Small wireless facility aesthetic, concealment, and design standards.

All small wireless facilities shall conform with the following general aesthetic, concealment, and design standards, as applicable:

The applicant affirms they have received an access easement from the property owner to locate the facility in the desired location; and

The installation is allowed by, and consistent with, the access easement; and

Such installation will not frustrate the purpose of the easement or create any access or safety issue; and

The location is in compliance with all land use regulations such as, but not limited to, setback requirements.

The preferred location of a small wireless facility on a pole is the location with the least visible impact.

Replacement poles shall be located as near as possible to the existing pole, but in no event further than five feet from the existing pole, and the existing pole shall be removed.

The farthest point of any antenna or equipment enclosure may not extend more than 28 inches from the face of the pole.

Replacement wooden poles must either match the approximate color and materials of the replaced pole or shall be the standard new wooden pole used by the pole owner in the city.

Antennas, equipment enclosures, and all ancillary equipment, boxes and conduit shall be colored or painted to match the approximate color of the surface of the wooden pole on which they are attached.

Antennas shall not be mounted more than 12 inches from the surface of the wooden pole.

The farthest point of any antenna or equipment enclosure may not extend more than 28 inches from the face of the pole.

New poles within the rights-of-way are only permitted if the applicant can establish that:

The proposed small wireless facility receives approval for a stealth technique design, as described in subsection (5)(c) of this section; and

The proposed small wireless facility also complies with the Shoreline Management Act, Growth Management Act, and State Environmental Policy Act, if applicable; and

An application for a new pole is subject to administrative review by the director.

Each strand-mounted facility shall not exceed three cubic feet in volume;

Only one strand-mounted facility is permitted per cable between any two existing poles on an existing cable;

No strand-mounted device shall be located in or above the portion of the roadway open to vehicular traffic;

Ground-mounted equipment to accommodate a shared mounted facility is not permitted except when placed in preexisting equipment cabinets or required by a third-party electrical service provider; and

Pole-mounted equipment shall comply with the requirements of subsections (1) and (2) of this section.

Such strand-mounted devices must be installed to cause the least visual impact and without excess exterior cabling or wires (other than the original strand).

Small wireless facilities may be mounted to the sides of a building if the antennas do not interrupt the building's architectural theme.

The interruption of architectural lines or horizontal or vertical reveals is discouraged.

New architectural features such as columns, pilasters, corbels, or other ornamentation that conceal antennas may be used if it complements the architecture of the existing building.

Small wireless facilities shall utilize the smallest mounting brackets necessary in order to provide the smallest offset from the building.

To the extent technically feasible, small wireless facilities shall be textured and colored to match the adjacent building surfaces.

(Ord. 015-22 § 2)

§ 20.72.110 Removal of abandoned small wireless facility.

(Ord. 015-22 § 2)

§ 20.72.120 Revocation of permit.

A permit issued under this chapter may be revoked, suspended or denied for any one or more of the following reasons:

Failure to comply with any federal, state, or local laws or regulations.

Failure to comply with the terms and conditions imposed by the city on the issuance of a permit.

When the permit was procured by fraud, false representation, or omission of material facts.