Chapter 117 – PERSONAL WIRELESS SERVICE FACILITIES

Sections:

117.05 User Guide

117.10 Policy Statement

117.15 Definitions

117.20 Applicability

117.25 Exemptions

117.30 Prohibited Devices

117.35 Permit Required

117.40 Application Review Process

117.45 Pre-Submittal Meeting

117.50 Application Requirements

117.55 Determination of Application Completeness

117.60 Third Party Review

117.65 PWSF Standards

117.70 Equipment Structure Standards

117.75 Screening

117.80 Departures from Chapter Provisions

117.85 Nonuse/Abandonment

117.90 Removal from City Property – When Required

117.95 Appeals and Judicial Review

117.100 Lapse of Approval

117.105 Complete Compliance Required

117.110 Time Limit

117.115 Compliance with Other City Codes

117.120 Conflict

117.125 Violations and City Remedies

117.05 User Guide

This chapter establishes the conditions under which personal wireless service facilities (PWSF) may locate and operate in different areas of the City. The provisions of this chapter add to and in some cases supersede the other regulations of this code. If you wish to install, operate, or alter PWSF in Kirkland, you should read the provisions of this chapter.

117.10 Policy Statement

The purpose of this chapter is to provide specific regulations for the placement, construction, modification and removal of PWSF. Pursuant to the guidelines of Section 704 of the Federal Telecommunications Act of 1996, 47 USC, Chapter 5, Subchapter III, Part I, Section 332(c)(7), the provisions of this chapter are not intended to and shall not be interpreted to prohibit or to have the effect of prohibiting the provision of personal wireless services, nor shall the provisions of this chapter be applied in such a manner as to unreasonably discriminate among providers of functionally equivalent personal wireless services.

1.  The goals of this chapter are to:

a. Encourage the location of towers in nonresidential areas and to minimize the total number of tall towers throughout the City;

b. Encourage the joint use of existing tower sites;

c. Encourage users of towers and antennas to locate them, to the extent possible, in areas where the impact on the City is minimal;

d. Encourage users of towers and antennas to configure them in a way that minimizes the visual impact of the towers and antennas;

e. Strongly encourage the providers of personal wireless services to use concealment technology;

f. Provide standards for the siting of PWSF and other wireless communications facilities (such as television and AM/FM radio towers);

g. Facilitate the ability of the providers of personal wireless services to provide such services throughout the City quickly, effectively and efficiently; and

h. Prioritize the location of PWSF on existing structures such as ballfield lights, transmission towers, utility poles or similar structures, particularly when located on public property.

2.  Accordingly, the City Council finds that the promulgation of this chapter is warranted and necessary to:

a. Manage the location of towers and antennas in the City;

b. Protect residential areas and other land uses from potential adverse impacts of towers and antennas;

c. Minimize visual impacts of towers and antennas through careful design, siting, landscaping, screening, innovative camouflaging techniques and concealment technology;

d. Accommodate the growing need for towers and antennas;

e. Promote and encourage shared use and co-location on existing towers as a desirable option rather than construction of additional single-use towers; and

f. Avoid potential damage to adjacent properties through engineering and proper siting of PWSF.

117.15 Definitions

For the purpose of this chapter, the following terms shall have the meaning ascribed to them below. Terms not defined in this section shall be defined as set forth in Chapter 5 KZC:

1.  “Antenna” shall mean any exterior apparatus designed for telephonic, radio, data, Internet or other communications through the sending and/or receiving of radio frequency signals including, but not limited to, equipment attached to a tower, pole, light standard, building or other structure for the purpose of providing personal wireless services and its attendant base station. Types of antennas include:

a. An “omni-directional antenna” receives and transmits radio frequency signals in a 360-degree radial pattern;

b. A “whip antenna” is an omni-directional antenna that is up to 15 feet in height and up to four inches in diameter; and

c. A “directional or panel antenna” receives and transmits radio frequency signals in a specific directional pattern of less than 360 degrees.

2.  “Antenna height” shall mean the vertical distance measured from average building elevation to the highest point of the antenna, or if on a rooftop or other structure, from the top of the roof or structure to the highest point of the antenna. For replacement structures, antenna height is measured from the top of the existing structure to the highest point of the antenna or new structure, whichever is greater.

3.  “Cell site” shall mean a tract or parcel of land or building that contains the PWSF including any antenna, antenna support structure, accessory buildings, and associated parking, and may include other uses associated with and ancillary to personal wireless services.

4.  “Co-location” shall mean the use or placement of PWSF on a tower by two or more personal wireless service providers or by one personal wireless service provider for more than one type of communication technology.

5.  “Conductor” means a material or object designed and used to conduct heat, electricity, light, or sound, and contains electrical charges that are relatively free to move through the material. The term “conductor” does not include “insulator” or any connecting or support device.

6.  “Equipment structure” shall mean a facility, shelter, cabinet or vault used to house and protect electronic or other associated equipment necessary for processing wireless communications signals. “Associated equipment” may include, for example, air conditioning, backup power supplies and emergency generators.

7.  “Existing structure” shall mean, but is not limited to, any existing building, utility pole, water reservoir, other support structure, and structures accessory thereto.

8.  “Insulator” means a material in a unit form designed and used so as to support a charged conductor and electrically isolate it.

9.  “Nonresidential” or “nonresidential zone” shall mean (1) all portions of the City (including rights-of-way adjacent thereto, measured to the centerline of the right-of-way) in an area not zoned residential as defined in this chapter, or (2) the I-405 or SR 520 right-of-way.

10. “Other support structure” shall mean a structure used to support PWSF or equipment structures, excluding buildings, utility poles, and water reservoirs. Examples of “other support structure” include flagpoles and ballfield light standards.

11. “Personal wireless services” and “personal wireless service facilities (PWSF),” as used in this chapter, shall be defined in the same manner as in Title 47, United States Code, Chapter 5, Subchapter III, Part I, Section 332(c)(7)(C), as they may be amended now or in the future.

12. “Replacement structure” shall mean a structure that replaces or is intended to replace an existing structure of a similar design and similar primary purpose, to enable the installation of new or additional PWSF on that structure. If a “replacement structure” meets the definition of “tower,” it shall be regulated as a new tower.

13. “Residential zone,” for the purpose of this chapter, shall be as defined in KZC 5.10.785, together with the PLA1 and P zones; and rights-of-way adjacent to each of the aforementioned zones, measured to the centerline of the right-of-way.

14. “Tower” shall mean any structure that is designed and constructed primarily for the purpose of supporting one or more antennas, including any antenna support structure, self-supporting lattice towers or monopole towers. A “tower” shall not include a replacement utility pole as authorized by KZC 117.65(6).

15. “Utility pole” shall mean a structure designed and used primarily for the support of electrical wires, telephone wires, television cable, traffic signals, or lighting for streets, parking areas, or pedestrian paths.

117.20 Applicability

1.  New Antennas and Towers – All new antennas and towers shall comply with this chapter unless the applicant had a vested application to site said PWSF under a prior version of this chapter, or unless specifically exempted by KZC 117.25.

2.  Existing Antennas and Towers

a. The usage of existing antennas and towers shall be allowed to continue as they exist as of the effective date of this chapter. Routine maintenance and reconfiguration of antennas shall be permitted on such existing antennas and towers, subject to the limitations below.

b. Any reconfiguration pursuant to subsection (2)(a) of this section that increases the height or number of antennas shall be treated and processed as a new facility.

c. Existing antennas that conform to the provisions of this chapter may be replaced by new antennas, if such new antennas are approved as a minor modification pursuant to KZC 117.105.

d. The replacement of existing antennas that do not conform to the provisions of this chapter shall be treated and processed as a new facility.

e. The replacement of an existing tower, whether that tower conforms or does not conform to the provisions of this chapter, shall be treated and processed as a new facility.

3.  Equipment Structures

a. The usage of existing equipment structures shall be allowed to continue as it exists as of the effective date of this chapter. Routine maintenance, reconfiguration of, or additions to equipment structures shall be permitted, subject to the limitations below.

b. Existing equipment structures may be replaced, and new equipment structures may be added to an approved antenna and/or tower; provided, that the new equipment structures conform with the provisions of this chapter, and are approved as a minor modification pursuant to KZC 117.105.

c. Reconfiguration or addition of equipment structures that increases the size of the equipment structure enclosure shall be treated and processed as a new facility.

d. Reconfiguration of or additions to a non-approved antenna or tower are not permitted, unless the entire facility obtains approval as a new facility through the appropriate review process.

4.  Other Wireless Communication Facilities – All of the provisions of this chapter, which address personal wireless services and PWSF, shall also be deemed to cover other wireless communications facilities (and, in particular, but without limitation, television, satellite radio, global positioning systems (GPS), and AM/FM radio towers) to the maximum extent allowed by law.

117.25 Exemptions

The following are exempt from the provisions of this chapter and shall be permitted in all zones, subject to any other applicable provisions of this code:

1.  Temporary PWSF during an emergency declared by the City.

2.  Temporary PWSF located on the same site as, and during the construction of, a permanent PWSF for which appropriate permits have been granted.

3.  Licensed amateur (ham) radio stations.

4.  Satellite dish antennas two meters or less in diameter when located in non-residential zones, and satellite dish antennas one meter or less in diameter when located in residential zones, including direct to home satellite services, when used as an accessory use of the property.

117.30 Prohibited Devices

Except as exempted pursuant to KZC 117.25, PWSF that are not permanently affixed to a support structure and which are capable of being moved from location to location (e.g., “cell on wheels”) are prohibited.

117.35 Permit Required

In all instances, a permit must be obtained from the City before any PWSF may be constructed on any public or private land or right-of-way, including I-405, SR 520, and the Burlington Northern Railroad right-of-way, within the City limits.

117.40 Application Review Process

After the applicant has satisfied the pre-submittal meeting requirements of KZC 117.45, an application to site a PWSF shall be processed according to the table below. This table does not include all requirements for PWSF. Additional requirements and standards affecting design and location of PWSF can be found in KZC 117.65 (PWSF Standards), 117.70 (Equipment Structure Standards), and 117.75 (Screening).

Review Process	Facility Type1
1. Planning Official Decision (Planning Official issues decision.)	a) Co-location of antennas on existing towers in nonresidential zones. b) Attachment of antennas to existing buildings or mechanical equipment enclosures in a nonresidential zone. See KZC 117.65(7). c) Attachment of antennas to existing water reservoirs, utility poles, or other support structures in any zone.2 See KZC 117.65(6) and (7). d) Attachment of antennas to replacement utility poles in any zone, where the diameter of the replacement pole will not exceed 18 inches or increase the diameter of the existing pole by more than 50 percent, whichever is less.2 See KZC 117.65(6). e) Attachment of antennas to existing buildings within a public park, regardless of zone, if approved by the Park Board.
2. Process I Permit (Planning Director decision following public notice and comment, per Chapter 145 KZC.)	a) Co-location of antennas on existing towers in residential zones, not resulting in any increase to tower height. b) New towers in nonresidential zones, not exceeding 40 feet in height.4 c) Attachment of antennas to replacement utility poles in any zone, where the diameter of the replacement pole will not exceed 24 inches or increase the diameter of the existing pole by more than 100 percent, whichever is less.2 See KZC 117.65(6). d) Attachment of antennas to nonresidential buildings, such as schools or churches, in residential zones, except when located in a public park.3 See KZC 117.65(7).
3. Process IIA Permit (Hearing Examiner holds public hearing and issues decision, per Chapter 150 KZC.)	a) New towers in nonresidential zones, exceeding 40 feet in height.4 b) Attachment of antennas to replacement utility poles in any zone, where the diameter of the replacement pole will exceed the diameter of the existing pole by more than 100 percent, or 24 inches, whichever is less. c) Attachment of antennas to multifamily residential buildings in residential zones.3
4. Process IIB Permit (Hearing Examiner holds public hearing, City Council issues decision, per Chapter 152 KZC.)	a) Co-location of antennas on existing towers in residential zones resulting in an increase in tower height.3 b) New towers in residential zones, not exceeding 40 feet in height.3, 4 c) Departures from standards contained in this chapter, subject to the limitations of KZC 117.80. d) Any facility that does not qualify for review as a Planning Official Decision, Process I permit, or Process IIA permit as listed above.3

Footnotes:

1 Although this table specifically addresses antennas and towers, it is presumed that for each facility there will be associated equipment structures, and there may be structural alterations to existing support structures. Such equipment structures and structural alterations shall be reviewed through the same process as the facility with which they are associated, subject to the limitations of KZC 117.20.

2 Attachment of antennas to existing water reservoirs or other support structures, or to existing or replacement utility poles, where such attachment results in a height increase to the original support structure, may be approved only once through the review process indicated. Any subsequent proposal that would result in a height increase shall be reviewed through Process IIB.

3 If in a residential zone, the applicant shall demonstrate that a diligent effort has been made to locate the proposed facility in a nonresidential zone, and that due to valid considerations including physical constraints or technological feasibility, no other location is available.

4 An application for a new tower shall not be approved unless the applicant demonstrates, to the satisfaction of the City, that an attempt was made to co-locate the proposed antenna on an existing structure, and that such attempt was spatially, structurally, or technically infeasible.

117.45 Pre-Submittal Meeting

Before an application requiring review through Planning Official decision, Process I, Process IIA, or Process IIB will be accepted for processing, the applicant shall attend a pre-submittal meeting with the Planning Official, as required by KZC 145.12, 150.12, or 152.12.

117.50 Application Requirements

1.  The City shall act within a reasonable period of time on a complete application submitted pursuant to this chapter, taking into account the nature and scope of the request. Any decision to deny such a request shall be in writing and supported by substantial evidence contained in a written record.

2.  All applications required pursuant to this chapter shall be made using forms provided by the Planning Department and shall be accompanied by the information and support materials identified on said forms.

117.55 Determination of Application Completeness

1.  Planning Official Decisions – Within 28 calendar days after the date of submittal of the application, the Planning Official shall determine whether the application is complete. If the application is not complete, the Planning Official shall identify and communicate the needed components to the applicant. Once the application is complete, the Planning Official shall process the application.

2.  Process I, Process IIA, and Process IIB Permits – The determination of completeness for Process I, Process IIA, and Process IIB permit applications shall occur pursuant to the process set forth in Chapters 145, 150, and 152 KZC, respectively.

117.60 Third Party Review

In certain instances (particularly Process IIA and Process IIB permit applications) there may be a need for expert review by a third party of the technical data submitted by the applicant. The City may require such a technical review, to be paid for by the applicant. The selection of the third party expert shall be by mutual agreement between the applicant and the City, and such agreement not to be unreasonably withheld by either party. The third party expert shall have recognized training and qualifications in the field of radio frequency engineering.

The expert review is intended to be a site-specific review of technical aspects of the PWSF, and other matters described herein, and not a subjective review of the site selection. In particular, but without limitation, the expert shall be entitled to provide a recommendation on the height of the proposed facilities relative to the applicant’s coverage objectives and system design parameters. Such a review should address the accuracy and completeness of the technical data, whether the analysis techniques and methodologies are legitimate, the validity of the conclusions, and any specific technical issues outlined by the City or other interested parties.

To facilitate the expert review, an applicant for a Process IIB permit for a new tower in a residential zone, or for the co-location of antennas on existing towers in residential zones resulting in an increase in tower height, the applicant shall submit a map of the area to be served by the facility, its relationship to other sites in the applicant’s network, and an evaluation of existing available land and buildings and structures taller than 30 feet within one-quarter mile of the proposed site. The applicant shall demonstrate that he/she contacted the landowners or owners of structures taller than 30 feet within a one-quarter-mile radius of the proposed site, and was denied permission by those owners to locate the facility on their land or their structures.

Based on the results of the third party review, the City may require changes to the application to comply with the recommendations of the expert.

117.65 PWSF Standards

1.  Context – The location and design of a cell site shall consider its visual and physical impact on the surrounding neighborhood and shall, to the extent feasible, reflect the context within which it is located.

2.  Design Compatibility – PWSF shall be architecturally compatible with the surrounding buildings and land uses or otherwise integrated, through location, design, and/or concealment technology, to blend in with the existing characteristics of the site and streetscape to the maximum extent practical.

3.  Concealment Technology – One or more of the following concealment measures must be employed unless the City determines through the applicable review process that alternative measures would be more appropriate given the contextual setting of the PWSF:

a. For personal wireless service towers:

If within an existing stand of trees, the tower shall be painted a dark color, and be made of wood or metal. A greenbelt easement is required to ensure permanent retention of the surrounding trees.

Towers in a more open setting shall have a backdrop (for example, but not limited to, trees, a hillside, or a structure) on at least two sides, be a color compatible with the backdrop, be made of materials compatible with the backdrop, and provide architectural or landscape screening for the remaining sides. If existing trees are the backdrop, then a greenbelt easement is required to ensure permanent retention of the surrounding trees. The greenbelt easement shall be the minimum necessary to provide screening and may be removed at the landowner’s request in the event the facility is removed.

Antennas shall be integrated into the design of any tower to which they are attached. External projections from the tower shall be limited to the greatest extent technically feasible. Where antennas are completely enclosed within the tower, the need for the backdrop described in the preceding paragraph may be reduced or eliminated, depending on the tower design and context.

b. For rooftop antennas or antennas mounted on other structures:

Omni-directional antennas mounted on the roof shall be of a color compatible with the roof, structure or background.

Other antennas shall use compatible colors and architectural screening or other techniques approved by the City.

Antennas shall be integrated into the design of the structure to which they are attached. External projections from the structure shall be limited to the greatest extent technically feasible.

c. Antennas mounted on one or more building facades shall:

(1) Use color and materials to provide architectural compatibility with the building;

(2) Be mounted on a wall of an existing building in a configuration as flush to the wall as technically possible; and

(3) Not project above the wall on which it is mounted.

d. Where feasible, cable and/or conduit shall be routed through the inside of any new tower, utility pole, or other support structure. Where this is not feasible, or where such routing would result in a structure of a substantially different design or substantially greater diameter than that of other similar structures in the vicinity or would otherwise appear out of context with its surroundings, the City may allow or require that the cable or conduit be placed on the outside of the structure. The outside cable or conduit shall be the color of the tower, utility pole, or other support structure, and the City may require that the cable be placed in conduit.

e. Alternative measures for concealment may be proposed by the applicant and approved by the City, if the City determines through the applicable review process that the optional measures will be at least as effective in concealing the PWSF as the measures required above.

f. Notwithstanding the above, the manner of concealment for any PWSF that requires approval through Process IIA or Process IIB shall be reviewed and determined as part of that process.

4.  Setbacks – The following regulations apply, except for structures located in public right-of-way:

a. New towers in any zone shall be set back a minimum of 20 feet from any property line, plus an additional one-half foot for each foot of tower height above 40 feet (e.g., if the tower is 40 feet in height, the setback will be 20 feet from any property line; if the tower is 50 feet in height, the setback shall be 25 feet from any property line).

b. Replacement structures intended to accommodate a PWSF shall be set back a distance equal to or greater than the setback of the original structure from any property line adjacent to or across the street from a residential use or residential zone; and the lesser of 10 feet or the distance of the original structure from any property line adjacent to or across the street from all other uses or zones.

5.  Tower and Antenna Height – The applicant shall demonstrate, to the satisfaction of the City, that the tower and antenna are the minimum height required to function satisfactorily. Personal wireless service towers shall not exceed 40 feet in residential zones, as measured from the average building elevation at the tower base to the highest point of the tower, antenna, or other physical feature attached to or supported by the tower. Examples of information that can be used to demonstrate that the tower and antennas are the minimum height necessary include, but are not limited to, propagation maps showing the necessity of the height to provide the required coverage, and a letter from a radio frequency engineer stating and explaining the necessity of the proposed height.

6.  Antennas on a Utility Pole – Antennas mounted to an existing or replacement utility pole shall be subject to the following height limits:

a. In any zone, 15 feet above the top of a pole not used to convey electrical service;

b. In a residential zone, 15 feet above the electrical distribution or transmission conductor (as opposed to top of pole) if the pole is used to convey electrical service; and

c. In a nonresidential zone, 15 feet above an electrical distribution conductor or 21 feet above an electrical transmission conductor (as opposed to top of pole) if the pole is used to convey electrical service.

d. On Seattle City Light transmission towers, regardless of zone, 15 feet above the top of the tower, before any tower extensions, subject to the concealment measures identified in subsection (3) of this section.

7.  Antennas on a Building, Mechanical Equipment Enclosure, or Water Reservoir

a. Antennas, including panel or directional antennas, may be attached to the sides, parapets, mechanical penthouses, or similar elements, of buildings, subject to the limitations of this chapter.

b. Antenna height is measured above the top of the roof, not from the parapet or from the average building elevation of the building, mechanical equipment enclosure, or water reservoir.

c. Omni-directional antennas may be roof-mounted, but may not be mounted on top of rooftop appurtenances. No panel or directional antennas may be mounted on roofs or project above the roofline, except as provided in subsection (7)(g) of this section. The “roofline” of a water reservoir that incorporates a curved roof shall be the point at which the vertical wall of the water reservoir ends and the curvature of the roof begins.

d. Whip antennas may exceed the structure height by 15 feet, and other omni-directional antennas may exceed the structure height by 10 feet.

e. Roof-mounted antennas must be set back from the edge of the roof a distance equal to 100 percent of antenna height.

f. Roof-mounted antennas shall be consolidated and centered in the roof to the maximum extent feasible rather than scattered.

g. Antennas, including flush-mounted panel or directional antennas, may be attached to an existing conforming mechanical equipment enclosure or stair or elevator penthouse or similar rooftop appurtenance which projects above the roof of the building, but may not project any higher than the enclosure.

h. Except for PWSF installed in an existing rooftop penthouse, PWSF shall occupy no more than 10 percent of the total roof area of a building. Rooftop conduit shall be excluded from this calculation.

i. Building parapets or other architectural features, including rooftop mechanical equipment enclosures, stair or elevator penthouses, or similar rooftop appurtenances, shall not be increased in size or height solely for the purpose of facilitating the attachment of PWSF components.

8.  Historic or Landmark Locations – No antennas shall be permitted on property designated as a historic resource or community landmark as identified in the Comprehensive Plan, unless such antennas have been approved in accordance with design requirements pertaining to historic structures.

9.  Signal Interference – No antennas shall cause localized interference with the transmission or reception of any other communications signals including, but not limited to, public safety signals, and television and radio broadcast signals.

10. Support Wires – No guy or other support wires shall be used in connection with antennas, antenna arrays or support structures except when required by construction codes adopted by the City.

11. Views – PWSF, including towers, must be located and oriented in such a way as to minimize view blockage.

12. Lights, Signals and Signs – No signals, lights or signs shall be permitted on towers unless required by the FCC or the FAA.

13. Noise – The installation and operation of PWSF shall comply with the noise standards set forth in KZC 115.95.

14. Federal Requirements – All PWSF must meet current standards and regulations of the FAA, the FCC and any other agency of the federal government with the authority to regulate towers and antennas. If such standards and regulations are changed, the owners of the PWSF shall bring such PWSF into compliance with such changes in accordance with the compliance deadlines and requirements of such changes. Failure to bring towers and antennas into compliance shall constitute grounds for the removal of the tower or antenna at the owner’s expense. If, upon inspection, the City concludes that a PWSF fails to comply with such regulations and standards and constitutes a danger to persons or property, then, upon notice being provided to the owner of the PWSF, the owner shall have 30 days to bring such PWSF into compliance with such standards and regulations. If the owner fails to bring such PWSF into compliance within said 30 days, the City may remove such PWSF at the owner’s expense.

117.70 Equipment Structure Standards

1.  Maximum Size in Residential Zones – Equipment structures shall not exceed five feet in height. Equipment structure enclosures shall not exceed 125 square feet each. These limitations shall apply to each individual equipment structure and enclosure; provided, that equipment structures that are fully contained within a legally established building that houses or is accessory to a principal permitted use shall not be subject to these limitations.

2.  Maximum Size in Nonresidential Zones – Gross floor area of equipment structures shall be the minimum necessary but not greater than 240 square feet per provider. Maximum height is 10 feet above average building elevation. These limitations shall not apply to equipment structures that are fully contained within a building that houses or is accessory to a principal permitted use and that satisfies the dimensional regulations of the underlying zone.

3.  Equipment Structures Located in Right-of-Way

a. If ground-mounted, equipment structures shall not exceed a height of 30 inches. If mounted on poles, said structures shall comply with subsection (6) of this section. Setback requirements do not apply to equipment structures located in the right-of-way.

b. Exception – The Planning Official may increase the 30-inch height limitation for ground-mounted equipment structures to a maximum of 66 inches, if:

1) The height increase is required by the serving electrical utility; and

2) No feasible alternative exists for reducing the height of the structure; and

3) Concealment measures are employed; and

4) The height increase will not adversely impact the neighborhood or the City.

4.  Setbacks When Located on Private Property – Ground-mounted equipment structures over 30 inches in height shall be set back at least 10 feet from all property lines; provided, that equipment structures that are fully contained within a legally established building that houses or is accessory to a principal permitted use shall not be subject to this requirement.

5.  Equipment Structures on or Above a Structure – Equipment structures on or above a structure shall be subject to the following criteria:

a.   Equipment structure height is measured above the top of the roof, not the parapet.

b.   When mounted to the roof of a building with a pitched or stepped roof form, roof-mounted equipment structures shall be incorporated into the stepped roof form, and not appear as a separate penthouse or box.

6.  Equipment Structures Mounted on Poles or Towers

a. Equipment structures may be mounted on utility poles or towers. The location and vertical clearance of such structures shall be reviewed by the Public Works Department and verified by the underlying utility owner to ensure that the structures will not pose a hazard to other users of the right-of-way.

b. Equipment structures mounted on utility poles or towers shall be located in a manner that minimizes clutter and visual impact.

7.  Compatibility – Equipment structures shall be designed to be compatible with the surrounding area in which they are located. For example, in a residential area, a sloped roof or wood siding may be required.

8.  Concealment – One or more of the following concealment measures must be employed unless the City determines through the applicable review process that alternative measures would be more appropriate given the contextual setting of the equipment structure:

a. Locating within a building or building appendage constructed in accordance with all applicable City codes;

b. Locating on top of a building, with architecturally compatible screening;

c. Locating underground;

d. Locating above ground with a solid fence and landscaping subject to the limitations of KZC 117.75(3); or

e. If mounted on a utility pole or tower, the equipment structure shall be of a similar color to that of the pole or tower to which it is attached, unless alternative measures are approved by the City as part of the applicable review process.

9.  Noise Standards – Equipment structures shall be oriented so that exhaust ports or outlets are pointed away from properties that may be impacted by noise. The installation and operation of equipment structures shall comply with noise regulations in KZC 115.95. The City may require an assessment of noise after operation begins and remediation if the noise levels created are not within the prescribed limits. Cumulative noise impacts will be measured in cases where there is more than one equipment structure.

117.75 Screening

1.  General – Landscaping shall be required to screen as much of the PWSF and any ground-mounted features, including fencing, as possible, and in general soften the appearance of the site. The City may allow or require the use of concealment technology, as described in KZC 117.65(3), either instead of or in addition to required landscaping, to achieve effective screening. The effectiveness of visual mitigation techniques will be evaluated by the City, taking into consideration the site as built. If the antenna is mounted on a building, and the equipment structure is housed inside the building, landscaping shall not be required.

2.  Existing Vegetation – Existing vegetation shall be preserved or improved, and disturbance of the existing topography of the site shall be minimized, unless such disturbance will result in less visual impact of the site on the surrounding area.

3.  Buffering

a. Except for PWSF located in a public right-of-way and subject to review as a Planning Official decision, buffering of ground-mounted PWSF shall be required around the perimeter of the facility as follows:

1) Provide a five-foot-wide landscaped strip with one row of trees planted no more than 10 feet apart on center along the entire length of the buffer, with deciduous trees of two-inch caliper, minimum, and/or coniferous trees at least six feet in height, minimum. At least 50 percent of the required trees shall be evergreen.

2) Living ground covers planted from either four-inch pots with 12-inch spacing or one-gallon pots with 18-inch spacing to cover within two years 60 percent of the land use buffer not needed for viability of the trees.

b. As an option to the buffering measures described in subsection (3)(a) of this section, the City may approve or require one or more of the measures provided for below, if the City determines that such measures will provide effective screening. Such optional measures include, but are not limited to, the following:

1) Walls or solid fencing, of a height at least as high as the equipment it screens, subject to subsection (4) of this section, Fencing.

2) Architectural features, such as parapets, mechanical penthouses, or building fin walls.

3) Climbing vegetation supported by a structure such as a fence or trellis, of a type and size that will provide a dense visual barrier at least as high as the equipment it screens within two years from the time of planting.

4) Screening by the natural topography of the site or the adjoining property or right-of-way.

4.  Fencing – Fencing may be allowed or required if it is needed for security purposes, or if it is part of concealment technology. The use of chain link, plastic, vinyl or wire fencing is prohibited

Note: Section 117.75(4) continues on page 724.3.

      unless it is fully screened from public view. Landscaping shall be installed on the outside of fences. Fencing installed specifically for the purpose of screening ground-mounted PWSF shall not be taller than necessary to provide appropriate screening.

5.  Maintenance – The applicant shall maintain the screening in good condition and shall replace any plants required by this chapter or approved or required as part of the permit approval that are unhealthy or dead. In the event that screening is not maintained at the required level, the City, after giving 30 days’ advance written notice to the provider, may maintain or establish the screening and bill both the landowner and provider for such costs until such costs are paid in full.

6.  Notwithstanding the above, the manner of screening for any PWSF that requires approval through Process IIA or Process IIB shall be reviewed and determined as part of that process.

117.80 Departures from Chapter Provisions

Provisions of this chapter shall not be subject to variances described in Chapter 120 KZC. However, through Process IIB, Chapter 152 KZC, the City may consider departures from chapter provisions, except for the following:

1.  The 40-foot height limit for personal wireless service towers in residential zones; and/or

2.  The 15-foot limit for antennas projecting above an existing or replacement utility pole or electrical distribution or transmission conductor in residential zones.

117.85 Nonuse/Abandonment

1.  Bond – The City may require a bond or other suitable performance security pursuant to Chapter 175 KZC to cover the costs of removal of the antenna or tower.

2.  In the event the use of any PWSF will be discontinued for a period of 60 consecutive days, the owner or operator shall so notify the City in writing, and the PWSF shall thereafter be deemed to be abandoned. Determination of the date of abandonment shall be made by the City which shall have the right to request documentation and affidavits from the PWSF owner or operator regarding the issue of PWSF usage. Upon such abandonment, the owner or operator of the PWSF or the owner of the property upon which such facility is located shall have an additional 60 days within which to:

a. Reactivate the use of the PWSF or transfer the PWSF to another owner or operator who makes actual use of the PWSF; or

b. Dismantle and remove the PWSF. If such PWSF is not removed within said 60 days from the date of abandonment, the City may remove such PWSF at the facility owner’s and property owner’s expense. If there are two or more users of a single tower, then this provision shall not become effective until all users cease using the tower.

At the earlier of 60 days from the date of abandonment without reactivation or upon completion of dismantling and removal, City approval of the tower or antenna PWSF shall automatically expire.

117.90 Removal from City Property – When Required

A PWSF mounted to any City-owned property, utility pole, or other structure shall be removed if the City deems removal is necessary for the undergrounding of utilities, the sale, development, or redevelopment of City-owned property, or the demolition or alteration of a City-owned building or other structure. The PWSF shall be removed at no expense to the City.

117.95 Appeals and Judicial Review

1.  An applicant may appeal a Planning Official decision to the Hearing Examiner. A written notice of appeal shall be filed with the Planning Department within 14 days of the date the Planning Official’s decision was mailed or otherwise delivered to the applicant. The office of the Hearing Examiner shall give notice of the hearing to the applicant at least 17 days prior to the hearing. The applicant shall have the burden of proving that the Planning Official made an incorrect decision. Based on the Hearing Examiner’s findings and conclusions, he or she may affirm, reverse, or modify the decision being appealed.

2.  Appeals of Process I, IIA, or IIB permits are processed, and judicial review shall occur, according to the appeal and judicial review procedures and provisions for Process I, IIA, or IIB respectively.

117.100 Lapse of Approval

The applicant must begin construction or submit to the City a complete building permit application for the development activity or other actions approved under this chapter within one year after the final approval of the City of Kirkland on the matter, or the decision becomes void; provided, however, that in the event judicial review is initiated per KZC 117.95, the running of the one year is tolled for any period of time during which a court order in said judicial review proceeding prohibits the development activity or other actions. The applicant must substantially complete construction for the development or other actions approved under this chapter and complete the applicable conditions listed on the notice of decision within two years after the final approval on the matter, or the decision becomes void. For development activity or other actions with phased construction, lapse of approval may be extended when approved under this chapter and made a condition of the notice of decision.

117.105 Complete Compliance Required

1.  General – Except as specified in subsection (2) of this section, the applicant must comply with all aspects, including conditions and restrictions, of an approval granted under this chapter in order to do everything authorized by that approval.

2.  Exception – Subsequent or Minor Modification – The Planning Official may approve a modification to the permit approved for the PWSF if:

a. The modification is minor and will not substantially change the proposed facility; and

b. The proposed modification will comply with the provisions of this chapter in effect at the time of the modification request; and

c. There will not be any substantial changes in the impacts on the neighborhood or the City as a result of the change.

Any modification, other than as specified in subsection (2) of this section, must be reviewed and decided upon as a new PWSF approval under this chapter.

117.110 Time Limit

Any time limit, pursuant to Chapter 36.70B RCW, upon the City’s processing and decision upon applications under this chapter may, except as specifically otherwise stated in this chapter, be modified by a written agreement between the applicant and Planning Director. In the event a permit constitutes or presents a special circumstance under the provisions of this chapter, the time limits for the City to make a final decision and issue its notice of decision under Chapter 36.70B RCW are extended by the number of days that the final decision of the City was delayed as a result of that special circumstance.

117.115 Compliance with Other City Codes

Compliance with the provisions of this chapter does not constitute compliance, or remove from the applicant the obligation to comply, with other applicable provisions of this code, the Comprehensive Plan, or any other ordinance or regulation of the City including, but not limited to, regulations governing construction or implementing the State Environmental Policy Act or the Shoreline Management Act.

117.120 Conflict

Notwithstanding the requirements of KZC 117.115, to the extent that any provision or provisions of this chapter are inconsistent or in conflict with any other provision of the Zoning Code, Comprehensive Plan or any ordinance or regulation of the City, the provisions of this chapter shall be deemed to control. PWSF are permitted in the City pursuant to this chapter notwithstanding the fact they are not mentioned in the use zone charts in Chapters 15 through 60 KZC.

117.125 Violations and City Remedies

Any person who violates any of the provisions of this chapter shall be subject to the provisions of Chapter 170 KZC, Code Enforcement. In addition to fines, the City shall have the right to seek damages and injunctive relief for any and all violations of this chapter and all other remedies provided at law or in equity.