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HomeMy WebLinkAboutAGENDApacket__04-08-24_1256_587       NOTICE OF MEETING REGULAR MEETING FOUNTAIN HILLS PLANNING AND ZONING COMMISSION      Chairperson Peter Gray  Vice Chairperson Rick Watts Commissioner Patrick Dapaah Commissioner Clayton Corey Commissioner Susan Dempster Commissioner Dan Kovacevic Commissioner Scott Schlossberg    TIME:6:00 P.M. – REGULAR MEETING WHEN:MONDAY, APRIL 8, 2024 WHERE:FOUNTAIN HILLS COUNCIL CHAMBERS 16705 E. AVENUE OF THE FOUNTAINS, FOUNTAIN HILLS, AZ Commissioners of the Town of Fountain Hills will attend either in person or by telephone conference call; a quorum of the Town’s Council,  various Commission, Committee or Board members may be in attendance at the Commission meeting. Notice is hereby given that pursuant to A.R.S. §1-602.A.9, subject to certain specified statutory exceptions, parents have a right to consent before the State or any of its political subdivisions make a video or audio recording of a minor child. Meetings of the Commission are audio and/or video recorded and, as a result, proceedings in which children are present may be subject to such recording. Parents, in order to exercise their rights may either file written consent with the Town Clerk to such recording, or take personal action to ensure that their child or children are not present when a recording may be made. If a child is present at the time a recording is made, the Town will assume that the rights afforded parents pursuant to A.R.S. §1-602.A.9 have been waived.    REQUEST TO COMMENT   The public is welcome to participate in Commission meetings. TO SPEAK TO AN AGENDA ITEM, please complete a Request to Comment card, located in the back of the Council Chambers, and hand it to the Executive Assistant prior to discussion of that item, if possible. Include the agenda item on which you wish to comment. Speakers will be allowed three contiguous minutes to address the Commission. Verbal comments should be directed through the Presiding Officer and not to individual Commissioners. TO COMMENT ON AN AGENDA ITEM IN WRITING ONLY, please complete a Request to Comment card, indicating it is a written comment, and check the box on whether you are FOR or AGAINST and agenda item, and hand it to the Executive Assistant prior to discussion, if possible.   REGULAR MEETING        1.CALL TO ORDER, PLEDGE OF ALLEGIANCE AND MOMENT OF SILENCE – Chairperson Gray     2.ROLL CALL – Chairperson Gray     3.CALL TO THE PUBLIC Pursuant to A.R.S. §38-431.01(H), public comment is permitted (not required) on matters NOT listed on the agenda. Any such comment (i) must be within the jurisdiction of the Commission, and (ii) is subject to reasonable time, place, and manner restrictions. The Commission will not discuss or take legal action on matters raised during Call to the Public unless the matters are properly noticed for discussion and legal action. At the conclusion of the Call to the Public, individual commissioners may (i) respond to criticism, (ii) ask staff to review a matter, or (iii) ask that the matter be placed on a future Commission agenda.     4.CONSIDERATION AND POSSIBLE ACTION: approving the regular meeting minutes of the Planning and Zoning Commission March 11, 2024.     5.CONSIDERATION OF a preliminary plat for approximately 3 acres at the NEC of Palisades Blvd. and La Montana Drive, subdividing three commercially zoned parcels into four lots. PRP22-000001     6.PUBLIC HEARING, CONSIDERATION, AND POSSIBLE ACTION: Ordinance 24-05 amending Zoning Ordinance Section 5.13, Community Residences.     7.REVIEW AND DISCUSS issues related to the provision of wireless communication facilities.    8.COMMISSION DISCUSSION/REQUEST FOR RESEARCH to staff.    9.SUMMARY OF COMMISSION REQUESTS from Development Services Director.    10.REPORT from Development Services Director.    11.ADJOURNMENT     CERTIFICATE OF POSTING OF NOTICE Planning and Zoning Commission Meeting of April 8, 2024 2 of 3   CERTIFICATE OF POSTING OF NOTICE The undersigned hereby certifies that a copy of the foregoing notice was duly posted in accordance with the statement filed by the Planning and Zoning Commission with the Town Clerk. Dated this ______ day of ____________________, 2024. _____________________________________________  Paula Woodward, Executive Assistant   The Town of Fountain Hills endeavors to make all public meetings accessible to persons with disabilities. Please call 480-816-5199 (voice) or 1-800-367-8939 (TDD) 48 hours prior to the meeting to request a reasonable accommodation to participate in the meeting or to obtain agenda information in large print format. Supporting documentation and staff reports furnished the Commission with this agenda are available for review in the Development Services' Office. Planning and Zoning Commission Meeting of April 8, 2024 3 of 3   ITEM 4. TOWN OF FOUNTAIN HILLS STAFF REPORT    Meeting Date: 04/08/2024 Meeting Type: Planning and Zoning Commission Agenda Type: Submitting Department: Development Services Prepared by: Paula Woodward, Executive Assistant Staff Contact Information: Request to Planning and Zoning Commission (Agenda Language):  CONSIDERATION AND POSSIBLE ACTION: approving the regular meeting minutes of the Planning and Zoning Commission March 11, 2024. Staff Summary (Background) The intent of approving meeting minutes is to ensure an accurate account of the discussion and action that took place at the meeting for archival purposes. Approved minutes are placed on the Town's website and maintained as permanent records in compliance with state law.   Related Ordinance, Policy or Guiding Principle N/A Risk Analysis N/A Recommendation(s) by Board(s) or Commission(s) N/A Staff Recommendation(s) Staff recommends approving the meeting minutes of the regular meeting minutes of the Planning and Zoning Commission March 11, 2024.   SUGGESTED MOTION MOVE to approve the regular meeting minutes of the Planning and Zoning Commission  March 11, 2024. Attachments Summary Minutes & Verbatim Transcript  Planning and Zoning Commission February 12, 2024 1 of 2 TOWN OF FOUNTAIN HILLS SUMMARY MINUTES OF THE REGULAR MEETING OF THE PLANNING AND ZONING COMMISSION FEBRUARY 12, 2024 1. CALL TO ORDER, PLEDGE OF ALLEGIANCE AND MOMENT OF SILENCE Chairperson Gray called the Regular Meeting of the Fountain Hills Planning and Zoning Commission held on February 12, 2024, to order at 6:09 p.m. and led the Commission and audience in the Pledge of Allegiance and Moment of Silence. 2. ROLLCALL Commissioners Present: Chairperson Peter Gray; Vice Chairperson Rick Watts; Commissioner Clayton Corey (telephonically); Commissioner Patrick Dapaah (telephonically); Commissioner Susan Dempster Commissioner Dan Kovacevic; Commissioner Scott Schlossberg Staff Present: Development Services Director John Wesley (telephonically); Senior Planner Farhad Tavassoli and Executive Assistant Paula Woodward. 3. CALL TO THE PUBLIC None 4. CONSIDERATION AND POSSIBLE ACTION: approving the regular meeting minutes of the Planning and Zoning January 8, 2024. MOVED BY Commissioner Dempster to approve the regular meeting minutes of the Planning and Zoning January 8, 2024. SECONDED BY Commissioner Kovacevic. Vote:7-0 Unanimously 5. PUBLIC HEARING, CONSIDERATION, AND POSSIBLE ACTION: Amending Zoning Ordinance Sections 1.12, Definitions, Section 5.14, Home Occupations, Section 10.02, Permitted Uses, and Section 11.02 Permitted Uses as they pertain to prohibited uses. The following resident addressed the Commission: Larry Meyers MOVED BY Chair Gray to recommend the Town Council approve Amending Zoning Ordinance Sections 1.12, Definitions, Section 5.14, Home Occupations, Section 10.02, Permitted Uses, and Section 11.02 Permitted Uses as they pertain to prohibited uses with modifications recapped by Chair Gray. SECONDED BY Commissioner Kovacevic. Vote:7-0 Unanimously Commissioner Corey Aye Commissioner Dapaah Aye Commissioner Dempster Aye Commissioner Kovacevic Aye Commissioner Schlossberg Aye Vice Chair Watts Aye Chair Gray Aye 6. PUBLIC HEARING, CONSIDERATION, AND POSSIBLE ACTION: Ordinance 24-02 amending Zoning Ordinance Section 5.13, Community Residences, to provide for re-inspection of homes for compliance with ordinance requirements. Planning and Zoning Commission February 12, 2024 2 of 2 The following residents addressed the Commission: Larry Meyers Crystal Cavanaugh The following residents provided written statements stating that they were for the request: Liz Gildersleeve MOVED BY Vice Chair Watts to continue agenda item, #6, to the next scheduled Planning and Zoning Commission meeting, March 11, 2024. SECONDED BY Commissioner Kovacevic. Vote:7-0 Unanimously Commissioner Corey Aye Commissioner Dapaah Aye Commissioner Dempster Aye Commissioner Kovacevic Aye Commissioner Schlossberg Aye Vice Chair Watts Aye Chair Gray Aye 7. COMMISSION DISCUSSION/REQUEST FOR RESEARCH to staff. 8. SUMMARY OF COMMISSION REQUESTS from Development Services Director. 9. REPORT from Development Services Director. 10. ADJOURNMENT Chair Gray adjourned the Regular meeting of the Fountain Hills Planning and Zoning Commission held on February 12, 2024 at 7:58 p.m. PLANNING AND ZONING COMMISSION Chairperson Peter Gray ATTESTED AND PREPARED BY Paula Woodward, Executive Assistant CERTIFICATION I hereby certify that the foregoing minutes are a true and correct copy of the minutes of the Regular Meeting held by the Planning and Zoning Commission, Fountain Hills in the Town Hall Council Chambers on February 12, 2024 I further certify that the meeting was duly called and that a quorum was present. DATED this day of February 12, 2024 Paula Woodward, Executive Assistant TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 1 of 44 Post-Production File Town of Fountain Hills Planning and Zoning Commission Meeting Minutes February 12, 2024 Transcription Provided By: eScribers, LLC * * * * * Transcription is provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings. * * * * * TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 2 of 44 CHAIR GRAY: Let's go ahead and call this meeting to order with the Pledge of Allegiance and a moment of silence, please. ALL: I pledge allegiance to the flag of the United States of America and to the Republic for which it stands, one nation under God, indivisible, with liberty and justice for all. CHAIR GRAY: Thank you. All right. With two absent, let's go ahead and do roll call, Paula. WOODWARD: Commissioner Corey? COREY: Here. WOODWARD: Commissioner Dapaah? DAPAAH: Here. WOODWARD: Commissioner Dempster? DEMPSTER: Here. WOODWARD: Commissioner Kovacevic? KOVACEVIC: Here. WOODWARD: Commissioner Schlossberg? SCHLOSSBERG: Here. WOODWARD: Vice Chairman Watts? VICE CHAIR WATTS: Here. WOODWARD: CHAIR GRAY? CHAIR GRAY: Here. Thank you, Paula. Agenda item 3, call to the public. Paula, any speaker cards or written comments? WOODWARD: No, Chairman. CHAIR GRAY: Thank you. Agenda item 4, consideration and action on the January 8th meeting minutes. Commissioners, any discussion or a motion, please? Commissioner Dempster? DEMPSTER: I'd like to move to approve the regular meeting minutes of the Planning and Zoning Commission January 8th, 2024. DAPAAH: Chairman, I have a question about this minutes, and just for the record, if I misunderstood something, I heard the applicant's attorney mentioning to the mayor TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 3 of 44 and council that our discussion -- that we actually asked her extend the delivery time to 11. But according to the minutes, which I agree with, which is my understanding that we actually requested for her to apply to extend the storefront hours. Was that the understanding? CHAIR GRAY: There was discussion. Yeah, there was discussion on both fronts. But I don't recall asking the applicant to reapply or modify their application. VICE CHAIR WATTS: We offered. CHAIR GRAY: We offered? DAPAAH: And she declined. CHAIR GRAY: Right. Is that clarified, Commissioner? DAPAAH: Okay. Well, was that for delivery -- extension of the delivery time or the storefront hours? CHAIR GRAY: Storefront hours. DAPAAH: Okay. Okay. Good. Okay. So she stated it wrong to the council, just for the record. All right. Thank you. CHAIR GRAY: Thank you. Commissioner. Commissioner Dempster has a motion on the table. Is there a second? Commissioner Kovacevic? KOVACEVIC: Second. CHAIR GRAY: All in favor? ALL: Aye. WOODWARD: Seven-zero. CHAIR GRAY: All right. Agenda item 5, public hearing consideration and potential action on several sections related to home occupations, permitted uses, and prohibited uses. Director Wesley, are you giving the presentation on this? WOODWARD: John. CHAIR GRAY: Uh oh. WESLEY: There we go. I guess we got to unmute this, hadn't I? CHAIR GRAY: There you are. WESLEY: (Indiscernible) the presentation, couldn't hear it. TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 4 of 44 CHAIR GRAY: Yes, sir. WESLEY: Okay. Yeah. Farhad's going to adjust the slides for me, and I'm going to give the presentation. So hopefully, you can hear and it comes across. I apologize for not being able to be there this evening, but hopefully we can move through these anyway. So Farhad, hopefully, you're there, ready to move. There's a delay in the TV, so if I get too far off or anything, let me know. So this first text amendment is about our home occupation regulations. We've had a few challenges come up recently that we've been dealing with, in particular a situation where a home is being used. I'm going to describe this somewhat generally because it's still an active, ongoing issue we're dealing with, but it's being used by some people who are basically social media influencers. And every night a group of them will show up at the home, which is otherwise we're not sure being occupied. And photographers show up, and they take various pictures in and around the property. And activity occurs kind of through the night. And then they're all gone. And it doesn't neatly fit any of our current regulations and definitions. Because it's not really, truly a home occupation, but got us looking at those regulations and trying to make some adjustments. So hopefully we can address this type of thing and other changes that might occur in the future as technologies change and different types of activities change. So basically a little background, residential zoning districts, both single and multifamily, allow for home occupations. They're defined in section 1.12 of the zoning ordinance. Regulations are contained in 5.14. And again, these regulations have not been updated for a while to keep current with different technologies and do have some specific issues that we're trying to cover that are not adequately covered by the current codes. So moving to the next slide the definitions. Section 1.12, first change is a very minor change, but thought it may be helpful as we deal with these things. The current definition talks about the building being designed for residential uses but doesn't necessarily say they're being used for residential purposes. So I thought that would be helpful to add that language in there. In going back through the presentation and TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 5 of 44 looking at this definition, I think we may also want to take where it has single-family and multifamily and actually change that to an "or". So that's if that's agreeable, we'll probably make that change, and Chair, it might be helpful as we go through these, if anybody has any questions that we go ahead and handle them at the time as we're looking at each of these different proposed changes. CHAIR GRAY: Commissioners, any conversation on 1.12? Commissioner Dempster? DEMPSTER: Sorry, John. You said to change it to single-family or multifamily? WESLEY: Correct. DEMPSTER: You have and on here. Okay. WESLEY: Right. Yeah. "And" is in there. "And" is in the current ordinance, as I was reading back through that again, I thought "or" probably fits better. DEMPSTER: Okay. WESLEY: So that's another change that's not shown there. CHAIR GRAY: Commissioner Dapaah or Corey, you're going to have to flag me if you want to chime in here, please. DAPAAH: Okay. COREY: Okay. WESLEY: Moving on to the next one. Again, after I sent out the staff report going back through our ordinances, I'd forgotten that we actually had a definition of home occupation in the code. And so I've added that into the presentation this evening and would add it into the ordinance when it goes to council. I'm proposing to make some changes here. As you can see on the screen, the occupation or profession carried out in a dwelling unit by residents thereof, which user activity and then goes on with the same. So providing a, hopefully, a clear definition of what a home occupation is. The rest of that statement goes on and starts to provide some of these standards beyond the definition, which are contained in 5.14. And so I'm proposing to remove those and keep the standards in one place separate from the definition. It can be confusing when you forget you have them in two places to keep them the same. Plus, general practice is best to have definitions be definitions and standards be elsewhere in an ordinance. TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 6 of 44 CHAIR GRAY: So John, under 1.12 here, the intent is to enhance this language to where the primary use -- it has to be the -- it has to be the place of domicile for the business owner. Correct? Primary place of domicile. WESLEY: Okay. CHAIR GRAY: Correct. WESLEY: You have questions about that definition? Okay. We'll move on then. CHAIR GRAY: John, hold one second. Vice Chair Watts? WESLEY: Okay. VICE CHAIR WATTS: Does that mean that the resident has to reside there? CHAIR GRAY: Yes. VICE CHAIR WATTS: A hundred percent of the time? CHAIR GRAY: It has to be a registered physical address. VICE CHAIR WATTS: Okay. So what about winter visitors? WESLEY: Right. So that means they can -- then when they're living someplace else, have the same home occupation, wherever they're living at the time. VICE CHAIR WATTS: John, say that one again for me, please. WESLEY: So yeah. So a person living at -- at, you know, home A while, they're living there, they can occupy conduct the home occupation in that home. Somebody who doesn't live there can't conduct a home occupation there, or when if they're winter visitors and they go away for six months, that home occupation should cease at that dwelling during that time because they're not there. VICE CHAIR WATTS: Okay. So no activity when the resident isn't there? CHAIR GRAY: Well, there's several definitions that intertwine here. So. WESLEY: Right. CHAIR GRAY: Other employees needing to be members of the immediate family, et cetera. VICE CHAIR WATTS: But that goes back to the family. So as long as the family is represented there? WESLEY: Right. TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 7 of 44 CHAIR GRAY: So is a group of social media influencers family? VICE CHAIR WATTS: Could be. CHAIR GRAY: Could be. WESLEY: If they actually lived there and there were only four of them, they could. CHAIR GRAY: What if I lived there in spirit, John? WESLEY: We'll think on that one. CHAIR GRAY: Okay. Thanks. WESLEY: Any other questions on this one? Now moving to section 5.14, the next slide. And so this section provides actual standards associated with the occupation of -- operation of a home occupation. So again, trying to tighten it up a little bit in the first statement there about the home occupation shall be conducted only by persons who live at the property. And conducted in a manner clearly incidental when not the current. And B limits it to 25 percent. That's, honestly difficult to enforce. You really don't know how much of the home is being used. But sometimes as we get different applications in, we will raise the question because it's something that could easily exceed that. And so we'll make sure that they understand that provision. And then again trying to reinforce in C that any employees involved can't be working in the home. So I'm a contractor, and I work out of my home to schedule all my work and manage my contract business. But all the people who work for me on site, I'll meet them at site. They can't work at the home. Questions there? CHAIR GRAY: Vice chair Watts. VICE CHAIR WATTS: Chair and John, in C, no employees. But is there another section? As I recall, there was some other section that qualified the community homes and allowed for employees to be there. And then, we would defer back to another definition in the ordinance that established the number of employees that could be there at that given time. WESLEY: Correct. That's correct. VICE CHAIR WATTS: Should we have a reference -- TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 8 of 44 WESLEY: (Indiscernible). VICE CHAIR WATTS: Okay. CHAIR GRAY: Commissioner Dempster? DEMPSTER: I have a couple questions. Sorry. Going back to A, I missed a note that I made for myself. So with dwellings and sometimes homes have casitas and they have businesses or home offices, home occupations. They work out of their casita. When you have accessory buildings, does that cover casitas? WESLEY: So we're going to see a provision come up here a minute that limits the home occupation to be in the primary structure or in the garage. It's not supposed to be an accessory structure or in the yard. DEMPSTER: Okay. And then, I thought there was something contradictory. So with employees, there shall be no employees working at the home other than the members of the immediate family. But does that -- what happens when and you go on to say when the workers come to get assignments and equipment. So when they're coming to pick up equipment and get assignments and such, that is not considered work, correct? WESLEY: So that wouldn't be working at the home, necessarily. But that is covered under the trip generation. So there can't be a whole lot of employees coming and going to get assignments. DEMPSTER: So that would cover -- that would be counted under the six vehicle trips per day? WESLEY: Correct. DEMPSTER: Okay. WESLEY: Which we'll talk about a little bit more in a minute what that means. DEMPSTER: Okay. Thank you. WESLEY: There no other questions there, we can go to the next slide. So moving on. With the delivery vehicles, added a little bit of language there. Again, with the thing within C, a bunch of vehicles come, photographers come and go, people come and go carrying suitcases and whatever. So that's some vehicular activity that's really not customary to our residents. Right now we wouldn't even consider it a home occupation. TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 9 of 44 But in case they do some things that start to qualify it that way, just trying to cover more bases with that one. And then nuisances and signs, no proposed changes in those. Coming down to traffic, adding another provision for parking. But here's where we do have the six vehicle trips per day. Currently that says five trips, but when we look at the definitions and what that means, it's talking about a vehicle trips. Every time a vehicle moves, that's a trip. So I come -- I'm a worker, and I come to the property to pick up an assignment. That's one vehicle trip. When I leave, that's a second vehicle trip. So that's really three vehicles coming and going, is what that limits it to. And at five, that's two-and-a-half. So that was odd. And so it seemed like it ought to go to an even number either four or six. And we went up to six. But we wouldn't have a problem necessarily going down to four. But if you think of that contractor who lived there you know, four barely covers them. They leave in the morning, come back at lunch, leave again, come back in the evening. If they had any other reason to come back to the site, or if you think of some other ones. So it's maybe a realtor that's working from home, how many times might they come and go during the day? So six seemed more reasonable to us. And then we've had some challenges with the regulations in town code section twelve 12.310 with regard to commercial vehicles parked on the property. And again, thinking of people who don't even have a home occupation, but they work for a company that provides for them a work vehicle. And so they bring that home. So that's already happening with the commercial vehicle being parked on the property, or I'm the pool contractor or again, the realtor and I park my vehicle at my home. So I want to be a little bit more clear and reasonable with that. So certainly allowing for one commercial vehicle to be parked associated with the business perhaps to comply with the other section of town code, which we'll talk about a little bit later, because we're proposing some amendments there. Any questions on those? CHAIR GRAY: Commissioner Dempster? DEMPSTER: Yes. One quick question. So would the deliveries be included in the trip TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 10 of 44 total? WESLEY: Yes. That's customer patron and shipping receiving. DEMPSTER: Okay. Thank you. COREY: Chair? CHAIR GRAY: Commissioner Corey. COREY: All right. Thank you. So I agree with and definitely support your recommendations here, John. I'm curious, could you elaborate on, like, how would these trips and parking be monitored and enforced? WESLEY: Sure. So certainly on an ongoing basis, we don't have enough code officers to be around town checking everyone. And so it would be on a complaint basis. If we have somebody informing us that they're seeing a lot of vehicles coming and going, and we would start to investigate, monitor the property, make sure the owner of the business is aware of the ordinance requirements and go from there. COREY: Okay. Now I also work from home, so it sounds like I'm going to have to start tracking when I go to the coffee shop, and then when I go get my sub sandwich at lunchtime. And so what is it, six? WESLEY: Yeah. And certainly, that that is a challenge here. And all these things kind of come together, and you know, what needs to be enforced and what's really causing a problem. But you know, when you are a person that works at home because you're going, to the to get them lunch, is that a work trip or is that just because you live there trip. And it does get to be a little bit of a challenge. And it does say the customer patron and the shipping receiving, it doesn't necessarily say the resident trips. CHAIR GRAY: Commissioner Corey, you get that? You get that AI, assistant commissioner, then you just make one trip because she'd schedule it for you. COREY: Oh, All right. I like it. DEMPSTER: John, that was you kind of touched upon my clarification because, I do work from home at times. I also go to the office. But how -- I might get a delivery that's directly related to my business. But then I might get a delivery because I need, a new flower pot for my house. How do you differentiate between personal and your TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 11 of 44 business? WESLEY: And certainly that's a challenge with this. There's a lot of little challenges in here when you're mixing these two activities. And so, again, we would look at it, if somebody's seen enough trips coming and going that they're complaining, then we would monitor it and we would talk to the business and try to get a handle on what's going on. If they're just passionate Amazon shoppers and have lots of different Amazon's for personal reasons come and going, you know, it -- this would -- could be a challenge. CHAIR GRAY: John, any opinion from the chamber on the proposed amendment? WESLEY: We have not specifically run it by them. We could reach out to them before we go to council, if you'd like. Ready to go to the next slide? So going on here then to H is the exceptions that Commissioner VICE CHAIR WATTS brought up earlier, which does allow for the operation of the group home for the handicapped. That's another one that maybe could be amended here to say community residence. But to be consistent with other parts of the code today. But does allow the, those exceptions to some of the requirements in the code because they're just naturally going to not fit the standard type of home occupation being regulated. And then under hazardous materials. Again, reading through this today, I recognized another minor change ought to be made. It references the fire district, and that was written when we didn't have our own in-house fire department. So I'll tweak that language a little bit as I take it on to council something about the town fire marshal being assured that proper handling and storage and disposal. Yeah. And then in J, uses not permitted. We've had some situations recently we've dealt with, particularly with animals, people trying to run some animal boarding types of things, animal daycare things out of their home and caused some issues in the neighborhood. So we wanted to add that to a use not permitted to make that clear. Hmm. Any questions on those? KOVACEVIC: Sure. TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 12 of 44 CHAIR GRAY: Commissioner Kovacevic. KOVACEVIC: Yeah. The temporary overnight keeping of animals, where they keeping more than -- were they keeping a lot of dogs or cats or whatever? WESLEY: Yes. KOVACEVIC: So aren't we already in the other ordinances limited to four animals in a residence? WESLEY: Yes. KOVACEVIC: So isn't this kind of duplicative? WESLEY: Well, but here they were claiming they were only keeping four animals, which is what was allowed. But then they actually had their own. And at times there would be, five, six, eight animals running around the property. Some, they claimed, were theirs. Some they were caring for. Anyway, we just felt it would be better to add this extra enforcement tool when it was clear that they were taking care of other people's animals. KOVACEVIC: Well, I don't know, I guess I'm still wrestling with it. I mean, if they've got eight animals on the property, they're breaking the law outside of section 5.14. WESLEY: Correct. KOVACEVIC: So is this necessary? WESLEY: Well, by allowing the opportunity for someone to keep animals at their home, if we could be confident they'd always keep it at the four, I guess we'd be okay, but it just opens that door for them to start keeping them, and having their own, and it just becomes more confusing. CHAIR GRAY: I think it's fine to keep it a prohibited use in a residence. If you've got your own animals at home, you've got control of them. You can control the barking and everything else. When you're boarding, it's a different ballgame. KOVACEVIC: Yeah, but if I'm traveling and I drop my dog off at my neighbor's and slip the ten-year-old that's going to walk the dog every day, 20 bucks. CHAIR GRAY: Don't tell anybody. KOVACEVIC: Well, yeah, but I don't want to be a scofflaw. I mean, I don't like this. TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 13 of 44 WESLEY: Yeah. That's not a home occupation being set up for an ongoing job. That's a temporary -- having a neighbor do something for you. KOVACEVIC: Well, that's what it says. Temporary. WESLEY: Right. So we're under the definition of home occupation. And so is that somebody getting a business license to do that and operate an ongoing business out of their home? KOVACEVIC: Okay. CHAIR GRAY: Vice Chair Watts? VICE CHAIR WATTS: I've got a similar concern, but it's -- couldn't we alleviate some of the concerns by referencing the other component of the ordinance that's already established ,and I think that applies to the keeping of the animals because we could rather than prohibit it here. But in a temporary situation you've got the number of four. So you reference another piece of the ordinance somewhere else. So we make some references. And it's kind of like in the hazardous materials component. Pool companies have hazardous materials, flooring contractors, air conditioning contractors, welding companies that work out of their house. How do we regulate hazardous material today? Is there something in the ordinance that says they have to have the inspection? Because all of those are fairly volatile. And if we do, then we should have something that references here consistent with whatever that particular ordinance is. That make any sense? WESLEY: Well, sure. When a person applies for their business license to operate their home occupation, one of the people that gets notification of that business license is the fire marshal. And if he has any concerns about the business and what types of products they may have, then he can investigate it at the time. VICE CHAIR WATTS: Okay. CHAIR GRAY: I think we're okay to keep moving, John. WESLEY: Okay. And if you know, if there's a desire to take the animal piece out, we can do that. That was not one of the primary issues in bringing this forward, but we were TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 14 of 44 taking advantage of this to address some challenges we've had. But moving on then to sections 10.02 and 11.02, which provide for the permitted uses in the residential and multifamily zoning districts. In 10.02 item 9, proposing a slight wording change there, adding some words that are in the 11.02. Just to be clear on the section of the code for home occupations, that's a pretty minor change. But the bigger thing is to add in each of those. The new C on prohibited uses. So except for items listed above, which again, is a list of allowed uses, nonresidential uses, or activities of property or dwellings and associated structures are prohibited. So this is the one that we really are hoping to be able to use for some of the activities we're seeing, because it really isn't a home occupation that's happening. But it is definitely not a nonresidential activity going on. And so we want to clearly label that as being prohibited, so we can follow up, hopefully enforce that on the property owner and the people conducting those activities. CHAIR GRAY: No comments here, John. WESLEY: Okay. So related, I mentioned earlier, this isn't technically your item because it's not in the zoning ordinance, but I mentioned before section 12.310 of the town code dealing with parking of vehicles in residential areas. Want to clarify that one commercial vehicle can be allowed either on the driveway or behind a wall. Not in the street, not on the gravel. CHAIR GRAY: Commissioner Kovacevic? KOVACEVIC: Does this supersede or could this supersede any HOA requirements to the contrary? WESLEY: So they are different. Whatever we say that might be different than an HOA, it's always up to them to enforce their rules. So if the HOA has stricter rules, they can still enforce their stricter rules. CHAIR GRAY: Vice Chair Watts? VICE CHAIR WATTS: Is there any need for a height requirement on those vehicles? Some vehicles get fairly tall, and when they wrap them with advertisement, is that something to at least consider? TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 15 of 44 WESLEY: Possibly. And we have to consider the person that's driving their work vehicle home, whatever that might be. Don't want to necessarily pick on any business but a plumbing company or a whatever that is a chain plumbing company, and they send their employees home with their vehicles. So because they're on call, you know, standard vehicle, however tall that is, I'm not sure if we'd get things that are exceptionally tall semi-sized vehicles. VICE CHAIR WATTS: I'm thinking more about all the Peterbilt tractor trailers that are parked all around town. WESLEY: Right. VICE CHAIR WATTS: Maybe not too many. CHAIR GRAY: No other comments, John. WESLEY: Yeah. We haven't thought about that one. I think there's a need to add something there, we could take a look at that. But otherwise that's it for this presentation. DEMPSTER: Just one last comment, John. To clarify it states that it should be parked on the driveway or completely enclosed with the wall, blah, blah, blah, but that has to be on a solid surface, correct? Don't we have that rule in another section? WESLEY: Yeah. We have that in the RV language. I see that that doesn't say that here specifically. We could add that. DEMPSTER: The point to have it in the RV language is environmental or what? WESLEY: Well, yeah. I can only maybe speculate a little bit, since I didn't write that, it's been in the code for a while. But you got that bigger vehicle that's going to have a little bit more impact on the surface of the ground over time and doesn't maybe move it often. So making sure it has a solid base that it's parked on. DEMPSTER: Thank you. CHAIR GRAY: Vice Chair Watts? VICE CHAIR WATTS: One more. I think that where each of these items is enhanced or enforced, there ought to be a corresponding reference to another section of town ordinance. And if for no other reason than to make it easy for people to cross check TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 16 of 44 before they make a mistake, or for the inspector to be able to reference it, now they know, but the homeowner doesn't necessarily know. So we've talked a number of times about it's covered elsewhere in the ordinances. Shouldn't we have a reference in there that says where in the other ordinances so that it's easy to go double-check? WESLEY: Certainly would like to make it user friendly in that regard. Most of that is in 5.14, so they're all together. It probably would be good. Or we could come back to the definition of home occupation and put a reference in there to 5.14, so they know where to go for any details in case somebody just looked at that definition and thinks that's all there is. That would be a good modification to make. VICE CHAIR WATTS: Well, when you talk about the parking, where does it cross over to to parking in an ordinance? Where are the things like hazardous material referenced for, again, for ease of interpretation. I spent a couple hours going back and forth between these into the various, and I should have written them down, so I could tell you exactly where they were. But to look at the ordinance and look at the specifics of what you can and can't do in relationship to the changes that we're making. WESLEY: Yeah. I guess, maybe I'd like to see your list of what all it is that you had to go back and forth to. VICE CHAIR WATTS: You're going to make me do the list, are you? WESLEY: So I guess to get into hazardous materials because it makes a reference to special use permits. So maybe a reference there to section 2.0, whichever one it is for special use permits, if that's where you go to find out how to apply for one of those, that type of thing. VICE CHAIR WATTS: Yeah, yeah. Something to make it a little easier and user friendly from a readability standpoint. WESLEY: So we can certainly look for any further enhancements of that as we prepare a final ordnance to take to council. CHAIR GRAY: Commissioner Kovacevic? KOVACEVIC: The ordinance revision as written and that we're voting on or may vote on tonight, has a reference all of the zoning categories it applies to. It does not list TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 17 of 44 residential P.A.D.s. Are these activities permissible in the P.A.D. residences? WESLEY: It would depend upon how the P.A.D. language was written. So if a P.A.D. specifically says it's -- a, whatever, an R-135 zoning district with the following modifications and doesn't modify anything about home occupations. And yes, it would be allowed. If it says it doesn't allow home occupations then it wouldn't. KOVACEVIC: So how would it affect Park Place? WESLEY: Park Place is zoned C-2. It's not zoned residential. But still as a residence, it would apply. Yeah. It's still regulated by trying to operate a home occupation out of a residence. KOVACEVIC: And how would it affect the Four Peaks Plaza proposed apartments? WESLEY: Right. So residents there could also have home occupations. KOVACEVIC: Because that's still going to be zoned C1? WESLEY: No. It will be zoned P.A.D. KOVACEVIC: So there's no underlying zoning? CHAIR GRAY: Not anymore. WESLEY: Yeah. KOVACEVIC: So it's zoned -- CHAIR GRAY: Don't worry. There's no parks and no dog parks there. So there'll be no boarding to happen at that P.A.D. KOVACEVIC: Huh? All right. I don't know if I like that either. But -- all right. CHAIR GRAY: So to Commissioner Kovacevic's point, though, John, if there's no -- in that scenario where there's no underlying zoning to default to, if there's no carve-out, I think that's the gap he's highlighting there, right. WESLEY: Well, the home occupations take place in a dwelling unit. So if you've got a dwelling unit, you can have a home occupation. CHAIR GRAY: Well, that's the catch-all to it. KOVACEVIC: You can have the home occupation, but do the prohibited uses apply? I don't know that the prohibited uses apply in a dwelling unit in a P.A.D. WESLEY: Yes, they would. So because it doesn't reference zoning there. Following uses TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 18 of 44 are not permitted as a home occupation. KOVACEVIC: Well, can we add P.A.D. to the section 5-A in the ordinance as proposed and add P.A.D.? I can't tell 5.13 C-6 that lists all the R-1-190, R-1-143. Shouldn't P.A.D. be listed there? WESLEY: No. Because that's separate. But picking up on what you're saying, though, if we look at the very beginning, even before the A, home occupations are permitted in any residential zone. Okay. So we do have some things that aren't residential zones that have dwellings. So that's where maybe a slight modification could occur to either make sure it's clear that you can have the home occupation wherever you've got a dwelling, regardless of the zoning. Or if there's a need to restrict it clearly that you cannot have a home occupation if your dwelling is in a C-2 zone or a P.A.D. zone or anything else. KOVACEVIC: Yeah. My concern isn't that you -- my concern is not that it would prohibit home occupations in the P.A.D. zoning. My concern is that the restrictions don't apply because P.A.D. is not listed in the ordinance as amended here. WESLEY: But I guess neither is any other zoning district here in the regulations in 5.14. And the prohibition comes back to the home occupation. Following are not permitted in home occupation, and home occupations occur in a dwelling regardless of what the zoning is. KOVACEVIC: Why do we list all of the zoning categories and not list P.A.D.? WESLEY: So if you're talking about on the subsequent slide here with the 10.02 and 11.02, that's because those are the two zoning districts that specifically allow for residential uses, and specifically then allow for home occupations as part of a residence. KOVACEVIC: Do you have a slide with the ordinance on it? WESLEY: The entire ordinance? KOVACEVIC: The proposed -- no. The proposed ordinance that was in our packet. WESLEY: So no, just the pieces here as shown in the PowerPoint slides. KOVACEVIC: Commissioners, do you see what I'm referring to? CHAIR GRAY: I mean, the two examples, I think that I can think of that potentially TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 19 of 44 expose what you're talking about are one we voted on Dan Kaufman's development down in Kingstree and Saguaro, which was a residence above, commercial underneath. And they were supposed to be these hybrid-type work-live environments. That's one place that it could potentially be exposed because of the underlying zoning is CC. The other is the Four Peaks condos because part of the presentation and the premise of that whole development was that you could live upstairs, work upstairs, and then come down and work in the open communal workspaces down below, which is by and large, promoting this very scenario. So I think I'm more in your -- from your position on this, wondering how how do you tie that environment down? Not to exclude it, but how do you tie down the exclusions in those two environments? So you either have to broaden the front end and say it applies to any residential dwelling, regardless of type, across any zoning district. That's the easy way to do it. Or you've got to over label the back end as you're suggesting. VICE CHAIR WATTS: So you're saying you got a choice between striking A and A in both sections, or changing the verbiage at the front end? CHAIR GRAY: I -- yeah, to me it would be easier to change the verbiage in the front end and say the following applies to any residential dwelling, regardless of type. And then the only scenario where it could be carved out is in a P.U.D. scenario, if the P.U.D. said this P.U.D. allows for boarding of animals. Well, then the P.U.D.'s underlying characteristics would carve-out an exclusion from this. But notwithstanding that, I think you have to say all residences, regardless of type. KOVACEVIC: And regardless of underlying zoning. CHAIR GRAY: Well, let's think about that. Let's go to the public hearing. Paula, speaker cards. WOODWARD: We have one speaker card for Larry Meyers. MEYERS: Larry Meyers, Chair, Commissioners. I have more of a question. So the number of trips and this is a specific business at a specific location that I'm talking about, and we'll just leave that aside for now. So I know there's a parking regulation, and it has nothing to do with commercial vehicles, about how many vehicles you can TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 20 of 44 have at your home occupation. I don't know what that is, but to the number of vehicles that are convened at a home, is that limited? And what is that number? And do they have to be on the premises, rather than on the street of where the home is? And do those count as -- does each one of those count as a trip? Because the example that I'm going to give you is probably ten vehicles on a given morning. And then they leave, and then they reconvene sometime later in the day, particular days of the week. So that would be -- I don't know whether the ordinance states any of that, and we're not dealing with that. But that came to mind when the whole trip thing came up. And the fact that we're only monitoring a commercial vehicle on the property. This particular location has a pretty big driveway, which is typically filled up, and maybe ten cars on the street. So that's all I would be wondering about. Thank you. CHAIR GRAY: We'll close the public hearing. Back to discussion. I think Mr. Myer's concern is probably mitigated by the family component. At least in this language. Do you have to be a family member to work at an at-home business? And I think John, it's family member who also is residing at the business, right? You can't bring family in. WESLEY: Correct, Chair. 15.14C. No employees -- there shall be no employees working at the home other than members of the immediate family residing in the dwelling. And so Chair, I don't know if this is what Mr. MEYERS was referring to or not, but we do have a provision of the code that limits the total number of vehicles parked at a dwelling for more than 24 hours, at one for 750 square feet in the home. And that's in the driveway and the street within, I believe it's 1,000 feet of the home. So that's just a general parking requirement, it has nothing to do with whether a business is being conducted or not. VICE CHAIR WATTS: I think that's a good example of why we need the point of reference in the ordinance that says refer to this particular ordinance section. So now you've got some point of reference to say you can't. You can't have all of those cars, you have to defer back to the 750 square feet per vehicle. So I think there's numerous instances in here that there's another ordinance that kind of overshadows or defaults to whether it's more restrictive, less restrictive doesn't really matter. But there's another TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 21 of 44 one that adds more clarity to what this is and what you can and can't do. CHAIR GRAY: So you'd limit those supplemental references to the exclusion criteria. Right? VICE CHAIR WATTS: I think in some cases they could be a little more liberal. I'm not sure of that, though. I didn't see any that were more liberal than what was here. I mean, if somebody had a 6,000-square-foot house and you've got four-car garage, you could have a lot more vehicles, so it could be applicable because of the code, the way it sits today, but this could be more restrictive. I just think having that reference, that further reference gives, again, ease of understanding and a point to go -- trying to go through the ordinance sometimes is daunting. Staff works with the ordinances every single day, but -- and maybe code works with them every single day. But I know residents don't, and they want a point of reference to be, you know, directed to help them do the interpretation as well. And I think it's just fair. CHAIR GRAY: I think your point is valid, but I think the example maybe isn't the best example. Because the 750 that John's referring to is 24-hour parking limitations. Whereas Mr. Meyer's example is more about trip generation and customer traffic. Right? So there's a -- it's a another gap, but your point is is is valid. VICE CHAIR WATTS: I'm fine with that. But I'd also like either to whatever we do moving forward, we either change the front end verbiage or we add some additional verbiage to the zoning districts to Commissioner Kovacevic's point. CHAIR GRAY: And I think two or three years ago, we did a lot more of that. And John, tell me I'm wrong here. But I think we started to shy away from that because we were starting up with circular, inaccurate references, and it was hard to clean up all over the place, right? WESLEY: Yes, chair, that's correct. There was a concern with that because when you make a change one place, you've got to remember all the other places you have to make the change. CHAIR GRAY: I don't think this answers what your objective is, but what if we added language to say, the more stringent shall apply type of language. It's not going to point TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 22 of 44 you to the other section, but it at least allows for the teeth to be used if necessary. I think your ask is a big ask. VICE CHAIR WATTS: Well, I think the asks should be asked to Farhad. How hard is that? Is it a daunting task? TAVASSOLI: Be difficult. I wouldn't go so far as to say daunting as in time that needs to be put into it. VICE CHAIR WATTS: Well, maybe even if we put a footnote on some of these that say, please consult -- for further clarification, consult the corresponding ordinance. But something that doesn't just set a trap for the homeowner or for the business. There's a lot of punitive things that happen here that are detrimental to a business. But there's a lot of good things that happened here as well. It depends on how you interpret it and how familiar you are with the ordinances. I think that's the problem, to me, anyway. DEMPSTER: Yes. I was going to clarify or make a suggestion because you don't know what you don't know. Reading this I wouldn't know that there may be another piece in another section, and I understand that it could be daunting to go back and write, you know, 5-3.2, but maybe instead of the particular code, just note that further rules and regulations surrounding parking may apply or may require more research. CHAIR GRAY: Maybe we just need to change the preamble to say the underlying utilization of this dwelling is a dwelling and dwelling codes, ordinances are applied first. And this is a layer applied over top of its primary utilization. Right. This is a secondary use. So you got to first understand the ordinances around living at the dwelling in the first place. And then you can understand the nuances of operating a business out of it. VICE CHAIR WATTS: It would certainly help. TAVASSOLI: And Mr. Chairman if I may provide some context on what I was saying, sometimes when you refer back and forth between different sections of the ordinance, as they change over time, sometimes if you were to hyperlink it say in the ordinance and they would refer back to an ordinance when, for example, one or two other provisions were added in that section, it might throw some people off, but we need to keep track of that wherever the changes take place and update those links accordingly. TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 23 of 44 CHAIR GRAY: Commissioner? KOVACEVIC: I also want to revisit the reference to accessory structures. If I'm a CPA doing tax returns and I want to do them out of my casita, then -- so maybe in March, my clients that aren't computer savvy want to drop off their tax information. I mean, I think that's one thing. If I've got a material yard going on in my back yard, and I've got a barn with all kinds of landscape equipment, and I'm trying to run a landscape business out of my single-family house, I think that's a whole nother thing. And that's a different accessory structure, but I think you should be able to -- I think Susan should be able to work out of her casita if she wants to, as a realtor and and isn't generating a lot of traffic. How can we get those differences recognized in this ordinance? CHAIR GRAY: I think you can certainly allow it. But then are you also suggesting to modify the trip generation limits? KOVACEVIC: Not necessarily. CHAIR GRAY: Because it's three, right? Three three trips. Six total. Probably fine for the accountant, right? It's fine for most professional services. KOVACEVIC: I would think so. Yeah. I but I just think that a casita, doing office work out of a casita is a whole different story than manufacturing something out of an accessory building. CHAIR GRAY: And we're not going to open it up, in that case, to signage on the casita or its own -- it's not getting anything special. It's just an accessory. Right? KOVACEVIC: Right. No signage. It's just -- I mean, it's part of the house, but it's a -- I mean, the homes have casitas, and a person should be able to choose to work out of their casita rather than out of a bedroom. CHAIR GRAY: I'd be fine with it as long as it's limited to dwelling and not the other -- not the barn or the shed or whatever it's going to be. KOVACEVIC: I agree. I think I may. WESLEY: Chair, if I may? CHAIR GRAY: John doesn't agree. WESLEY: Well, I'm not sure whether I agree or disagree. Just want to, if I may, Chair. TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 24 of 44 Typically, we talk about as far as our permitting processes, accessory structures or accessory buildings. And we have certain parameters on those for location, size, setbacks, whatever. But what that accessory structure ultimately gets used for is not something we monitor. Is it a shed? Is it a casita? Is it a whatever, you're storing your RV in it. We don't necessarily know that long term. Maybe we have some idea up front, but so right now, from our perspective, it sounds like we would be allowing an accessory structure to be used for office-type activities. CHAIR GRAY: I think that's fair enough. KOVACEVIC: Yeah, I would agree with that. I think they should be used for office-type activities and the restriction in manufacturing or equipment intense service. WESLEY: Nonstorage. KOVACEVIC: Right. CHAIR GRAY: What about hair salons? KOVACEVIC: I think a hair salon would be hard pressed to survive six vehicle trips a day. VICE CHAIR WATTS: I think, also, most casitas don't have driveways to them. Which is somewhat indicative of professional services, or they're in the driveway of the primary residence. CHAIR GRAY: Accessory structures. VICE CHAIR WATTS: The accessory structure issue, yes. CHAIR GRAY: Commissioner. Any objection to extending to accessory structures? So long as we keep the trip limitations in place. Another reference for Commissioner VICE CHAIR WATTS to look up. VICE CHAIR WATTS: Yeah, thanks. CHAIR GRAY: Okay. Just want to call the discussion and start talking about motions? Any proposed motions from the Commission? WESLEY: Chair, if I may? CHAIR GRAY: Of course. WESLEY: So here's at least some of the things that I think I've heard that would go into a motion for approval. One would be that in that introductory statement at the start of TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 25 of 44 5.14 that would be amended to clearly state it applies to any dwelling unit in any zoning district. That we would amend A to provide for use of accessory structures to have office-type home occupations within them. I think that, other than the things I've already mentioned, is some slight changes to what you received, I think maybe those would be the two modifications to what you were presented and what we've discussed. CHAIR GRAY: John, what's the punitive side of -- I mean, we're really saying that the trip generation is going to be what anchors the rest of this. So what does that look like from a code enforcement perspective? WESLEY: Let's see. I don't recall we have anything here that makes it criminal. So it would be a civil citation. And so 183 of the town code, I think those start at 250 and go up from there. CHAIR GRAY: Okay. But one other -- we talked just briefly about it, but the branded vehicles. Is there any thoughts on carving that out to certainly allow vehicles associated with the business, but seeing other municipalities say you have to remove your magnet branding when it's parked in the driveway, that kind of thing? KOVACEVIC: Well, I think we're allowing residents who work for -- who bring home their employers' vehicles that are already branded to keep them in their driveway. So I don't know how you stop the home owner that's operating their business out of their home from having their business identification on their car in the driveway. CHAIR GRAY: I just don't like the idea of wrapped trailers and RVs being parked in driveways for even 24 hours. KOVACEVIC: But does this allow that? CHAIR GRAY: Yeah. KOVACEVIC: The trailers? CHAIR GRAY: Well, you can leave a trailer parked for up to three days, I think anywhere. Then you have to move it six inches, and it can sit there. KOVACEVIC: But is that addressed in this ordinance? CHAIR GRAY: No, it's in Commissioner VICE CHAIR WATTS' other references. KOVACEVIC: Should it be addressed here? TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 26 of 44 CHAIR GRAY: I don't know. I think it probably should be addressed more holistically elsewhere in the other ordinance. So maybe that's a takeaway later on in the agenda here, but. VICE CHAIR WATTS: I think you got to put it back in the parking ordinances. CHAIR GRAY: Yeah. VICE CHAIR WATTS: You got a lot of vehicles, even on Fountain Hills Boulevard, that already have wrapped vehicles. They have signage. You get it on Saguaro, you get it all over the place. CHAIR GRAY: Yeah. VICE CHAIR WATTS: And so it's primarily in commercial areas, but there's a lot in residential areas as well, and I don't -- it's an overnight thing for the most part. And HOAs really are strict on that. Much more so. DEMPSTER: Yes. VICE CHAIR WATTS: So do we really want to get involved in that? Not in this particular document, but in a parking ordinance, maybe, in the future once we have more data. Maybe. DEMPSTER: Can we allow it? VICE CHAIR WATTS: It's esthetics only on the property. So no. I mean, we don't get involved in that. We would defer to parking code here. CHAIR GRAY: Okay. So John's got 5.14, to modify the preamble and then modification to A to allow accessory structure. Any others? I think we want to put an emphasis on the hard cap on trip generation as this goes forward to council. KOVACEVIC: Then the zoning categories. CHAIR GRAY: That would be in the 5.14. KOVACEVIC: Okay. CHAIR GRAY: Right. Accessories is A, right, John. WESLEY: Yeah. CHAIR GRAY: And Commissioner Dapaah, Commissioner Corey? COREY: No comments. I'm in agreement. TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 27 of 44 DAPAAH: I'm in total agreement too, Chairman. CHAIR GRAY: Commissioner Dempster? DEMPSTER: What about the pet dog thing. I mean, do we have other exclusions or would this be the only exclusion kind of pointed out? Do we want to take that out and just leave our cap of four pets? KOVACEVIC: That's what I would think is that you'd leave it. Rather than specify it. I mean, there's a cap at four pets, and enforce that. CHAIR GRAY: John, is there a way to bifurcate between Commissioner Kovacevic's example of a neighbor watching a dog for a weekend versus somebody who's running a daycare -- pet daycare business out of the home? WESLEY: Chair, I don't know how we would do it, specifically in the code. I'd have to think about that a little longer. But I can only go back, I think, to what we've already talked about, that the person doing it occasionally for a neighbor, they're not trying to operate a home occupation, they're not getting a business license and all those things that would go in to this. And they do it for a weekend now and then, even if there were some type of complaint by the time we would learn about it and investigate, it probably already be over, so it wouldn't be really an opportunity to try and enforce something like that. KOVACEVIC: Did the person who was running this doggie daycare center get a business license? WESLEY: No. They never quite did. They talked about getting it like they were supposed to. KOVACEVIC: Well, that's kind of my point. I mean, a lot of these home businesses, people don't get business licenses anyway. But there are ordinances in place that can be enforced without calling them out in the home business. Because how are you going to know? You're going to know by trip generation is one way. You're going to know by dogs barking in the yard. That's another one. WESLEY: Right. KOVACEVIC: But they aren't necessarily -- TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 28 of 44 WESLEY: We'll find out by their advertising. KOVACEVIC: Right, by the advertising, but they aren't necessarily going to get business licenses. CHAIR GRAY: So what's the consensus amongst the commission? Remove it? So we're looking for a carve-out to allow up to four animals. KOVACEVIC: I don't think we need to say anything. We've got the restrictions on activities of a home -- the physical activity around a home business with the trip generation. And there's already an ordinance with a maximum of four animals in a dwelling. So we don't need to say anything about it. Enforce the ordinance we already have. VICE CHAIR WATTS: I think in addition to that you've got that it's -- if the home is operating in -- it's consistent with the neighborhood, doing a friend -- a favor for a friend is consistent with neighbors. CHAIR GRAY: That's not four -- that's not four animals, though. That's where I have a little bit of heartburn with the removal. VICE CHAIR WATTS: Well, I still would argue that it's it's not consistent with the neighborhood if you have a business that boards animals and we have another ordinance that supports that. So I think taking it out works. CHAIR GRAY: But you don't have another ordinance that supports that. VICE CHAIR WATTS: We do. The four. The maximum of four. By taking this particular -- CHAIR GRAY: So you're my neighbor and I board animals 360 days a year, and you're good with that? Not my animals. I'm boarding four animals. I've got a rolling cadence of animals coming in. VICE CHAIR WATTS: What kind? CHAIR GRAY: The worst kind you can imagine. I mean, that's my -- I'm really indifferent, but I just -- I don't think you should be boarding in animals in a residential district. That's what I think. KOVACEVIC: As your neighbor, do I have recourse if they're in your backyard barking? CHAIR GRAY: No. TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 29 of 44 DEMPSTER: Even if there's only four. CHAIR GRAY: I don't think so. KOVACEVIC: Then let's leave it in. CHAIR GRAY: No. WESLEY: Chair, we do have separate ordinance about dog barking. It's a bit of a challenge too sometimes to enforce, but there are ordinances about that. Disturbing the peace. CHAIR GRAY: But I'm just boarding. You can't come take an animal that I'm boarding on someone else's behalf. I'm fine to take it out. I just -- DEMPSTER: (Indiscernible) having that business period. CHAIR GRAY: Well, I just think that that having that business becomes potentially detrimental to a neighborhood. So I think there's places to board animals in commercial districts all over the place. I just don't think they probably belong in residential districts. That's my thought. But I'm not going to hold it up for that. I mean, four new dogs a day, every day. DEMPSTER: Yeah. CHAIR GRAY: And I even like dogs. DEMPSTER: I do too. CHAIR GRAY: It doesn't sound like it. I do like dogs. Just don't like other people's dogs. All right. Well, I guess I would suggest let's just pull that language out to Commissioner Kovacsevic's thoughts there. And then maybe John, in the council conversation, that can come up or it can't. I'm indifferent. So I think the motion on the table is -- VICE CHAIR WATTS: One last thing. And John, you are going to look at the height concern, whether it be an RV or a Peterbilt tractor trailer, at least? WESLEY: Yeah. We can see -- was trying to look otherwise about the storage of commercial vehicles. And we talk about the length. It's nothing that's ever been in the code about the height. VICE CHAIR WATTS: I think I hear more and more -- WESLEY: (Indiscernible) come up with what the height would be. TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 30 of 44 VICE CHAIR WATTS: I hear more and more complaints about the visibility of RVs, in particular behind the six-foot fence. And some are pretty exotic, and they just don't fit in the neighborhood. They're contrasting colors to the desert muted colors that we're looking for as a community. So there are some legitimate concerns. And when you've got something in there that is pretty tall, and I don't know how to define tall at this point, so I'm asking for you at least to consider it. WESLEY: Right. Well, it sounds like the issue, if it's the RVs being parked in people's side yards behind a six-foot wall and being very much taller than that six-foot wall, it sounds like that's a different topic than a commercial vehicle in the driveway. CHAIR GRAY: It's another one for our parking ordinance. VICE CHAIR WATTS: It probably is, right. Yeah, but some commercial vehicles, some of these vans are -- CHAIR GRAY: They're getting there. VICE CHAIR WATTS: They're getting there. Right. CHAIR GRAY: Twelve, twelve-six. VICE CHAIR WATTS: Yeah. CHAIR GRAY: Okay. So crafting a motion, recrafting a motion, motion is recommendation to approve with the following modifications. So modification to 5.14, adjusting the preamble to, essentially, stipulate any dwelling unit of any type. Modification to A, to allow for, I'll say professional service uses in accessory structures. Emphasis on a hard cap on the trip count generation and removal of the language excluding animal boarding as we default to other ordinance sections. Any others to add? Good. There a second commissioners? KOVACEVIC: I'll second it. CHAIR GRAY: Okay. Motion's on the table. Seconded by Commissioner Kovacevic. Let's just do a roll call. WOODWARD: Commissioner Corey? COREY: Aye. WOODWARD: Commissioner Dapaah? TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 31 of 44 DAPAAH: Aye. WOODWARD: Commissioner Dempster? DEMPSTER: Aye. WOODWARD: Commissioner Kovacevic? KOVACEVIC: Aye. WOODWARD: Commissioner Schlossberg? SCHLOSSBERG: Aye. WOODWARD: Vice Chair Watts? VICE CHAIR WATTS: Aye. WOODWARD: Chair Gray? CHAIR GRAY: Aye. WOODWARD: Seven zero. CHAIR GRAY: Thank you, Paula. CHAIR GRAY: Okay. Number 6, ordinance section 5.13 community residences to provide for re-inspection of homes for compliance with ordinance requirements. WESLEY: Okay. Chair, hopefully, Farhad's got this one up, and background slide. The council's requested that staff make this modification to our community residents ordinance to allow for some other inspections of community residents. Current regulations were approved about two years ago, in May. The goal is to provide some increased oversight. Currently, we only have one home to which these regulations would apply or this change would apply. And so moving to the next slide we've got two places that we're proposing to add some language to provide for additional inspections. The first one is under the registration section number two, to add a new sentence. The follow-up inspections may be conducted on a reasonable belief of noncompliance. We've had one comment from a citizen asking what reasonable belief is, and thinking that might be a little bit vague. We could look at something to try to tie that down, but I -- our attorneys are satisfied with this language. And if we do anything to try to define it, we're sure to leave something out that we wish we would have included. And so we think again, giving us kind of a TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 32 of 44 broad opportunity say an inspection is needed because we think there's something going on that doesn't meet the codes that works. And then the second one is under the reregistration provision. So number six on the list about reregistration to make a slight change there to the re-inspection piece. And clarify all the things we can look for in a re-inspection on the annual basis and to include the occupancy limits. That was kind of the one thing that was missing from the previous list. So those are the two proposed changes. CHAIR GRAY: Commissioners, any discussion? Commissioner VICE CHAIR WATTS? VICE CHAIR WATTS: Why does it say if applicable, on 6-B? Isn't it required? WESLEY: 6-B. So an individual home does not require a license, a business license. A business does. So if they operate more than one, they only need one license. So a given home may not need a license if they don't have one. VICE CHAIR WATTS: That's confusing. Can you give me an example of how that would work or home and/or an operator? WESLEY: So ABC assisted living home provider for seniors. And as a business, I operate three, four different homes in Fountain Hills. I need one business license for my business, but I don't need one for each home. VICE CHAIR WATTS: That seems like something that we should --because any business that has multiple branches works on its own basic budget and finances. Shouldn't they each be required to have a license to operate? WESLEY: We went through this discussion when we updated the code a couple of years ago. And because the homes are homes, they're not businesses, that's why we ended up where we're at. The business has a business license. The business happens to be providing homes for people. CHAIR GRAY: The other criteria pick up. VICE CHAIR WATTS: The other criteria is what? CHAIR GRAY: Well the other criteria, in C-1, 2, and 3. Or C-1 and 2, pick up. The reasons to inspect. I mean, you're going to know if a home or business has a license, that can be pulled remotely. This is all about physical presentation of a code TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 33 of 44 enforcement officer at a property. Right? So I think B is rather benign in the grand scheme of things. VICE CHAIR WATTS: How does the Code enforcement officer know which location holds the permit? The business license. WESLEY: They can find out if the business has a license or not. CHAIR GRAY: His question is a little different, John. His question is, if there's one business license operating two homes or three homes, how do you know the physical address is associated with the business licenses? WESLEY: When they would get their registration for the home that's one of the things that they would have to document is what business license they have. If they're a single entity, they would need a business license for that. If they're part of a larger entity, then they would demonstrate that they have the business license as that larger entity. CHAIR GRAY: So each home still carries its own registration? WESLEY: Correct. CHAIR GRAY: We're fine. I mean -- VICE CHAIR WATTS: I think it's -- CHAIR GRAY: Clinically, it's done the same way. They operate under one clinical license. VICE CHAIR WATTS: I think that's something you ought to be revisited, because I think there's another component of insurance and that sort of thing. Do we have all the insurances on all of the properties that are under that particular license? So I think there's more to the story. I'll leave it go for now, but I think we ought to visit at some point in the future. CHAIR GRAY: I think one -- two years ago we we did have insurance language in, and then it was stripped out as it swam upstream, right? VICE CHAIR WATTS: Yeah, I'm just talking about general business insurance. Not adding an additional insurer like to the town or not. So yes, but I think that issue is going to come back up as well. So I think in conjunction when it is reraised by council, they ought to look at business licenses per location. One restaurant has to have its own license over here. You don't have multiple restaurants under one license. So for now, if that TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 34 of 44 works, fine. But in the future, I think we ought to consider it. CHAIR GRAY: What's the semantics of whether or not the home is a business or not. And in our code application, it's being viewed as a residence, as a part of a business. VICE CHAIR WATTS: Semantics. CHAIR GRAY: Paula, we have any speaker cards? WOODWARD: Yes, Chair, there's two. Larry Meyers is our first speaker, and Crystal Cavanaugh is the second speaker. MEYERS: Commissioners, Chair. So the insurance provision was general insurance, and it was stripped out. And I think it needs to go back in, number one. Number two, I'm dead set against one blanket license for unknown houses, because in the transitional section of the community residents, you're not really supposed to know where these are, and the only way you know where they are is after there's a problem, which there has been, and we just found out about it because the sheriffs were called there because there was an assault. And it was a transitional housing. And they don't have a business license. So the other part that I would like to see in this is I want to see what are the ramifications for running a business without a license. It's sort of like back to the other home business. What if you get caught running a business without a license? $250 is just not going to cut it when it comes to this stuff, because you've got older folks and who knows how good the care is for them. And then we all know about the other side of this and what happens there. I mean, they're not in the Nicholas property anymore because somebody probably set a fire in there and set off the house sprinklers. Which didn't have any insurance because we stripped out the insurance program part of it. And now they moved, and we didn't even know where they moved the people to because we don't have any inspections. So I get it. You file a complaint, we should be able to go in there and inspect, but there's no penalties for this. And now, they're not in the other house that is currently grandfathered and licensed, but now they're somewhere else, but they haven't applied for a business license. Oh, I get it. They're blanketed under there one clinical license downtown. Excuse me? TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 35 of 44 Every house for every group home, whether it be community or transitional, should have its own license, period. And that way they're all registered. The town knows where they are. And when they get a complaint, they can go take care of the complaint. And if they're operating without a license, please, they got to pay. That will deter operating without the license and sort of make it easier on the town because they've got to enforce it. And then the other part of this whole thing who -- very quickly. So if you haven't applied for the town business license, how do we know they're licensed with the state for that particular location? Where's the chicken? Where's the egg? Who comes first, Peter or Paul? Those are my questions. And none of them are addressed in here. And this whole thing is designed to give us -- it says so, more oversight. I don't think we have it. Thank you. CAVANAUGH: Crystal Cavanaugh, community resident. Larry stole most of my thunder, but it doesn't mean I'm not going to repeat some of it. Because actually, this is occurring right now in my Sun Ridge Canyon community, which is an HOA community. So you know, some people are thinking we're protected, but we are not protected. And as I found out, this house on East Sundown, a very nice street, does not have a business license. And what I'm also wondering, does our state actually contact communities when one is applied for at the state level? Because we're always going to be chasing these things as it is. And I mean all group homes, not just the transitional community, they should have this vital component of inspection. I was outraged, it was actually stripped out by our town council in order to actually get the occupancy component through, which was really important to reduce occupancy in both these types of settings. So some agreed to do that. And I'm very happy this is back on the table with you guys. Because if you don't have inspections, how do you ever know what the occupancy is and how do you know if they're complying with other things? And the only reason this Sundown location was discovered, our town didn't know about it. But once again, the sheriffs were called. There was an assault. The neighbors TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 36 of 44 discovered it once again. And so now people are trying to play catch up and see if there's licensure. So I don't even know if this one's licensed with the state. So what if it isn't? So I would love to see some consequences put in to some of our ordinances because now it'll be like, okay, just apply for a license. I know you didn't, but let's apply, and you can keep operating. No, they should be disqualified. I know the particular owner of this property on Sundown owns nine properties in Fountain Hills, and so we may have to be looking in -- I think she lives in one of them. I don't know what's happening in all the others, but this stuff really needs to be clamped down on just for the protection of a surrounding neighborhood. Thanks so much. CHAIR GRAY: Just two cards, Paula? WOODWARD: Yes, Chair. But there was a written comment from Liz Gildersleeve that she was for -- she stated that she was for this particular ordinance. CHAIR GRAY: Yeah. We received that earlier this week or last week even. WOODWARD: Yes. CHAIR GRAY: All right. John, on the registration versus business license. When we wrote the ordinance up two years ago, it was all about registration of these addresses. And I mean, I certainly appreciate the chicken or the egg component here, but I'm not sure I understand why a business license is any more strict from a code enforcement perspective than registration. So maybe you could touch on that, and then also, I think we've got a basically a three-strike baseball policy in over the course of a rolling 13 or 14 months in the underlying ordinance. Could we look at failure to register as an automatic first knock against that? WESLEY: So Chair. Yes, to your first point. A resident would need both a business license and to be registered. Both can be followed up on for code enforcement activities. Probably the business license is actually the easier one of the two to get. It's less involved, typically with a business license, but they both work together as if we were to get a request for a business license for a community residence. We would look as a part of approving that business license, to see if they had the registration, and if TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 37 of 44 they didn't, we would stop that process to get the registration. Or if somebody registers, we would tell them they also need to get their business license to be approved. So they work together when somebody is following the process. I understand, we do have one -- we learned about it last week that has gotten started over, as Krystal said. And so we are following up on that and going through the enforcement procedures to get them properly licensed and registered. And so you're right in F2B, it says property owner, community residents, operates any -- receives any combination of three violations within a 12-month period, they're -- it says they can be required to vacate the property. So could this be a first one of those? Possibly. I guess I'd have to think about it a little bit harder. Maybe talk to the attorney. If you're not even registered yet, can you get a violation? . It seemed like you could -- but anyway, there's a little nuance there we'd have to talk through to make sure we were on solid ground for that. CHAIR GRAY: Well, I think that, I mean, the the scenario is generally that everybody wants to open these residences, these homes, these profit centers, and they look to fly under the radar until they get their knock. And so yeah, I mean I appreciate the attorney would want to weigh in on that, but I think that the industry also talks a little bit too. And if we become a municipality, who's going to take a little harder line there, then maybe that serves us well longer term. CHAIRPERSON GRAY: Correct. CHAIR GRAY: Commissioner Dempster? DEMPSTER: John, can you clarify? Does the violation go with the business license applicant, or does it go with the location? Because if they move locations, but it's the same person owns multiple houses. I mean, who -- WESLEY: Right. DEMPSTER: How do you -- how is that calculated? WESLEY: So again, Chair and Commissioner, in B, it says property owner or community residence operator. So we could go after either one or both. DEMPSTER: So if they move the location, it doesn't start back to zero? TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 38 of 44 WESLEY: Correct? DEMPSTER: Right. Okay. Thank you. WESLEY: Or if a property owner moves them from one of their properties to another property, it's still the same property owner. CHAIR GRAY: Vice Chair Watts? VICE CHAIR WATTS: I think B should say each home or operator. And I understand what you said about our council advising that we're making this as aggressive as we can. But I would let it up to town council to say whether or not. But I think each home should have a business license, just like every business branch or franchise, they all have their own business licenses. So that's that's one thing. And I think I'd recommend to council, again, to revisit the insurance issue because I think there's a lot to be missed by not having insurance. But at this point, John, can we change the home or operator to each home and/or operator has maintained a current town business license? WESLEY: Let's see here. CHAIR GRAY: What do we stand to gain by doing that? VICE CHAIR WATTS: Accountability. Now I know where they're at. If nothing else, I've got a little bit of revenue to pay for the code enforcement people. I can track them. WESLEY: Let's see here. So unfortunately, I'm not where I can look at this as much as I would like. We could potentially do that. It wasn't what we were asked to work on. I can't remember and I can't get to it right now, unfortunately, how specific I was in my public notice to see if we can get off into other sections of the code. CHAIR GRAY: Is that synonymous with the agenda language, John? WESLEY: It should be pretty close. CHAIR GRAY: It only references 5.13 community residences to provide for re-inspection of homes for compliance with ordinance requirements. It's pretty stringent. WESLEY: Yeah. That's what I thought. So that would require new notice for that additional language. VICE CHAIR WATTS: So what you're saying is that it would have to be changed in the -- that 5.13 community residents in the ordinance itself, before we could address it on 6-B. TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 39 of 44 CHAIR GRAY: To get it in, you would have to continue tonight and then re-notice for March. VICE CHAIR WATTS: Okay. CHAIR GRAY: So my only reservation, to play devil's advocate, is we're in a scenario where the closer we push to the line, eventually it's going to push someone to push back, right? And so are we getting enough juice for the squeeze of wanting to add a business license in on top? Because you're dealing with organizations that, one, claim to be residences, right? And two, by and large, don't file with the state because they think they can get away with it and collect revenue for X number of months before they finally get picked up. They don't file their municipal home registrations. So why are they going to go file for a town business license? That's my reservation. So if we push that and we push this over the line to where we're saying we know you say you're a residence, but we're going to push you to be a business, that to me, is where we crossed into another arena to where someone can bat back at us. I think if you want to do it, you got to go back to the mountains of research we did a couple of years ago and say, okay, there's two paths here. There's the path where the residences are a part of a business. Right? Which is by and large what we normally see. And then there's all of the scenarios out there that end up in court. And those are the -- What's it called, John? The Harbor House model. Something like -- Oxford. Oxford House model. WESLEY: Yeah. Oxford. Yeah. CHAIR GRAY: Which is basically a self-certifying self-chartered group of residents who band together as a family and live together, not as a part of any business model. It's just a cohabitation relationship. So if you're going to do it, you've got to carve-out to say if you are self-certifying, self-chartering your residence, you do not require a business license because that's where you tip that scale. VICE CHAIR WATTS: I think any business that charges, that makes money, that has a revenue stream should have a business license. And exclusive of just these -- these types of homes. That home by its design has income. They charge for the residence. So TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 40 of 44 aside from aside from the harbor. CHAIR GRAY: I agree with you. Most of the time that's going to be a true statement. VICE CHAIR WATTS: Okay. So why shouldn't they have a business license, and why shouldn't we have some degree of accountability? CHAIR GRAY: Because you're collect -- well, they're service industries so you're not collecting tax revenue. Theoretically, let's say you were, you would collect that, they would report out under the parent business license. Same scenario as having a fleet of vehicles, a fleet of busses, that you operate as a tour company. Each bus doesn't have its own business license. The tour company has a business license. I'm with you. But we've got to be really careful. VICE CHAIR WATTS: In a consolidated financial statement, you're going to account for each of the branches, and then you roll them up to the parent. That's true. But you're also going to remit to the municipality that collected sales tax. So we don't get anything. Why shouldn't they have a business license at least? It's a cost of doing business. WESLEY: They do have a business license. VICE CHAIR WATTS: Each home? CHAIR GRAY: What's the difference in the cost of a business license versus our cost of registration? WESLEY: Business license is $50. Registration, I don't recall what -- CHAIR GRAY: It's like 500. Wasn't it? WESLEY: Business license? CHAIR GRAY: No. I thought the registration license was closer -- I thought it was about 500 bucks. WESLEY: Let's see here if I could get to that. VICE CHAIR WATTS: Do we charge the same thing for a single business license as opposed to multiple addresses? You were going under your theory of saying, okay, you have one license, but multiple listings underneath that license, multiple branches. Or do you have incremental increases? TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 41 of 44 CHAIR GRAY: So I would say the answer is, no. Because if I have -- WOODWARD: Chair. Excuse me. I found the pricing for the community residence registration is 350, and then the annual renewal is 250. CHAIR GRAY: And that's per address. But I think the answer to your question is no. Because if I have two Subways, under my Subway holding company, the two Subways are treated independently. So I lose the argument on that accord. But what you have to remember here is these are, by and large, considered residential use as their underlying use of the physical address, even though we disagree with that. VICE CHAIR WATTS: I'd still ask John to talk to council about each home and/or operator has maintained a current business license and see if we get any traction there. And at a minimum, we're eventually going to get to suggestions by commissions for future work. So take note. CHAIR GRAY: So if you would like to see that under B, then we need to make a motion to continue this tonight. Is there any pressing reason, John, that this could not be continued for 30 days? WESLEY: Not really, thinking about a calendar. You know, council asked us to work on this, and I think they're anxious to see it come back. But as noted earlier, there's only one home currently that would be subject to this, and I believe their renewal will be in June. And so it won't impact that at this point. CHAIR GRAY: The other. So if we go down the continuance path, John, the other thing that I'd like to work the language in is, I'd like to make sure that the inspections are are not announced or scheduled. Right? WESLEY: Okay. Certainly the initial inspection that's done is announced because we coordinate that. And with the reregistration, there'd be at least some level of understanding what's coming up because they're going through the reregistration process. If it's the new one being added for we think there's some causes of an issue. Now, the inspector would show up at the door and knock on it and -- and you know, it's unlikely to try to schedule it. Unless he's never able to find anybody home and ultimately had to call somebody. TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 42 of 44 CHAIR GRAY: I mean, obviously, it becomes fairly self-fulfilling or satisfying, whatever the words are, if we're scheduling the inspections, I'm going to set the home up to meet your inspection criteria. I would think. So I think that we need to add a component in here that -- I mean let's be upfront and transparent with it. You're going to get inspected on the front and you're going to get inspected at the re-up interval. And then there's a reservation of right. I think this is exactly how we worded it the first time. There's a reservation of right to inspect on the basis of ordinance conformance or ordinance violation. And that can be effectively unannounced. You certify as an operator with your residence registration that you provision for unannounced inspections. WESLEY: Chair, it would seem that in the language proposed for number 2. Farhad, can go back to that slide. So the follow-up inspections may be conducted upon a reasonable belief of noncompliance, it would be pretty easy to work in unannounced in that sentence. CHAIR GRAY: Yeah. I think that's the operative word there for that to have value. VICE CHAIR WATTS: I agree with that. CHAIR GRAY: So John, if you have no reservation -- DEMPSTER: Well, just with that, how long? Do you need time frames on when they can correct the deficiencies or is that in another section? WESLEY: We don't have that covered here. That would just be typical part of the code enforcement process given them -- depending on what the violation was, giving them reasonable time to correct, whether that's a day or a week or whatever it may be, depending upon the violation. DEMPSTER: Okay. WESLEY: And so Chair, coming back to your comment about making further changes. I was given direction from council to do this. If the commission wants to do something more, I would need clear direction about what all that is to bring back. CHAIR GRAY: Well, is the council looking for us to stamp this and send it back to them, or were they seeking input from the commission? TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 43 of 44 WESLEY: Well, they were seeking input from the commission on this issue of inspections. They weren't seeking input on other changes to the code. CHAIR GRAY: Commissioner VICE CHAIR WATTS, this is your call, sir. VICE CHAIR WATTS: They asked for input on -- they didn't limit our input. If they had said only on these things, then the onus would be on them. They asked us to look at these and make our recommendations, and I would stick with that each home and/or operator. I'm going to stick there. CHAIR GRAY: Make a motion to continue, then. VICE CHAIR WATTS: Do we have any more discussion? Any? No. Okay. With that then I move to continue this to the next scheduled commission meeting. CHAIR GRAY: John, are you able to pull the discussion from the verbatims, or do you want us to outline them quickly? WESLEY: Oh, even better, I'll rewatch the meeting. KOVACEVIC: I'll second the motion. CHAIR GRAY: Okay. Motion on the table to continue to the next regular zoning meeting, which would be roughly March -- WOODWARD: --11th. CHARIMAN GRAY: -- 11th, 2024. Seconded by Commissioner Kovacevic. All in favor? IN UNISON: Aye. WOODWARD: Seven-zero. CHAIR GRAY: Thank you, Paula. All right. Number 7, Commission discussion or request to staff. Commissioner VICE CHAIR WATTS. VICE CHAIR WATTS: Not at this time. CHAIR GRAY: All right. John, anything from you under requests from development services? WESLEY: No. Not specifically. CHAIR GRAY: Okay. VICE CHAIR WATTS: We got two more hours. CHAIR GRAY: Yeah. I know. Agenda item 9 report. I assume that 9, John, is just a TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 44 of 44 stipulation in the front end of the code, which is why it has to be in there. We always seem -- WESLEY: Yeah. I'm not sure why. Yeah. We could probably look back at that someday and maybe redo that last piece of the agenda. But it's been that way forever. Okay. CHAIR GRAY: All right. We're adjourned. Thank you, thank you. ITEM 5. TOWN OF FOUNTAIN HILLS STAFF REPORT    Meeting Date: 04/08/2024 Meeting Type: Planning and Zoning Commission Agenda Type: Submitting Department: Development Services Prepared by: Farhad Tavassoli, Senior Planner Staff Contact Information: Farhad Tavassoli, Senior Planner Request to Planning and Zoning Commission (Agenda Language):  CONSIDERATION OF a preliminary plat for approximately 3 acres at the NEC of Palisades Blvd. and La Montana Drive, subdividing three commercially zoned parcels into four lots. PRP22-000001 Staff Summary (Background) The owners of three existing commercial properties at the northeast corner of Palisades Blvd and La Montana Drive have submitted a preliminary plat to subdivide the properties into four separate commercial lots. The subject property includes full improvements and currently supports three existing buildings and a vacant pad. Building 1 currently houses the HonorHealth Group medical office and urgent care facility. Building 2 currently contains the Sonoran Style home decorating store and a vacant unit (formerly Asian Fang restaurant). Dutch Bros Coffee is the newest business and is located on the southeast portion of the site. A number of commercial units connecting Buildings 1 and 2 were recently demolished to provide additional parking for the commercial site. The area contained within the proposed Lot 3 is currently vacant. Lot sizes are proposed as follows: Lot 1 - 51,758.51 or 1.188 acres Lot 2 - 26,095.29 or 0.599 acre Lot 3 - 17,735.50 or 0.407 acre Lot 4 - 36,249.05 or 0.832 acre  Ingress/egress is provided by two driveways along Palisades Blvd. measuring 24-feet and 30-feet wide. Additionally, there are two driveways along La Montana Drive, also measuring 24-feet and 30-feet wide. An existing parking lot supports the entire site. Staff will require an approved shared parking and maintenance agreement between owners of the four lots prior to final plat approval. Should council approve the preliminary plat, the applicant will follow with a request for final plat, which will be considered for approval by Town Council.   Related Ordinance, Policy or Guiding Principle Related Ordinance, Policy or Guiding Principle Zoning Ordinance                Chapter 12 - Commercial Zoning Districts Subdivision Ordinance        Article 2 - Platting Procedures Subdivision Ordinance        Section 2.03 - Preliminary Plats Subdivision Ordinance       Article 3 - Subdivision Design Principles & Standards Subdivision Ordinance       Article 4 - Public Improvement Requirements   Risk Analysis N/A Recommendation(s) by Board(s) or Commission(s) Approval will allow the applicants to subdivide and further develop the property as a four-lot commercial subdivision   Denial of the Preliminary Plat will require that the applicants re-design aspects of the proposal in order to address the reasons for denial. Staff Recommendation(s) Staff recommends approval of the Preliminary Plat for Palisades Blvd. and La Montana Drive. SUGGESTED MOTION MOVE to approve the preliminary plat for NEC of Palisades Blvd. and La Montana Drive. Attachments Case Map  Preliminary Plat  P&Z Commission Case Map Case Details CASE: PRP22-000001 SITE / ADDRESS: 16716; 16740; 16760 E. Palisades Blvd APN 176-24-251B; 251C; 251D REQUEST: PRELIMINARY PLAT for approximately 3 acres at the NEC of Palisades Blvd. and La Montana Drive, subdividing three commercially zoned parcels into four lots. Site Location 26,002 SF (QSR) PAD 2 .60 ACRES 16750 51,775 SF 1.19 ACRES PAD 1 BUILDING 16730 S S S S S S PALIS A D E S B O U L E V A R D LA MONTANA DRIVE CA M B R I A D R I V E VICINITY MAP PALIS A D E S B L V D SA G U A R O LA MONTANA DRIVEPALISADES BLVD & LA MONTANA DR BASIS OF BEARING Bo w m a n C o n s u l t i n g G r o u p L t d 16 0 0 N . D e s e r t D r i v e S t e 2 1 0 Te m p e , A r i z o n a 8 5 2 8 1 c 2 0 2 1 B o w m a n C o n s u l t i n g G r o u p L t d Ph o n e : ( 4 8 0 ) 6 2 9 - 8 8 3 0 ww w . b o w m a n c o n s u l t i n g . c o m PR E L I M I N A R Y P L A T FH S C - H H - D B C FO U N T A I N H I L L S MA R I C O P A C O U N T Y 11-MD-2022 JCB TKT HT 1"=50'NONE 090831-01-001 2/28/2024 PP01 01 02 PRELIMINARY PLAT FOUNTAIN HILLS, ARIZONA LOCATED IN THE NORTHEAST QUARTER OF SECTION 15 AND THE NORTHWEST QUARTER OF SECTION 14, TOWNSHIP 3 NORTH, RANGE 6 EAST, OF THE GILA AND SALT RIVER BASE AND MERIDIAN, MARICOPA COUNTY, ARIZONA CIVIL ENGINEERSUBDIVIDER/ DEVELOPER UTILITY SERVICES UTILITY COMPANY WATER EPCOR SEWER FOUNTAIN HILLS SANITARY DISTRICT POWER SRP TELEPHONE / CABLE COX COMMUNICATIONS GAS SOUTHWEST GAS Call at least two full working days before you begin excavation. Dial 8-1-1 or 1-800-STAKE-IT (782-5348) In Maricopa County: (602) 263-1100 Arizona Blue Stake, Inc. SITE DATA LEGEND THE PROMPT PAY LAW WILL BE ALTERED FOR THIS CONTRACT NOTICE OF EXTENDED PAYMENT PROVISION THE CONSTRUCTION CONTRACT WILL ALLOW THE OWNER TO MAKE PAYMENT WITHIN THIRTY (30) DAYS AFTER CERTIFICATION AND APPROVAL OF BILLINGS TS T BENCHMARK RETENTION CALCULATIONS VOLUME REQUIRED: Vr = D/12 x A x C WHERE: Vr=VOLUME REQUIRED Vp=VOLUME PROVIDED D= 100-YR,2-HR RAINFALL, 2.28-IN A=AREA IN SQUARE FEET C=COEFFICIENT OF RUNOFF: 0.65 (PRE) | 0.81 (POST) PRE VS POST (PARCEL 3) PRE: 0.65 X 17,714 X 2.28/12 = 2,187.68 POST: 0.81 X 17,714 X 2.28/12 = 2,726.18 RETENTION REQUIRED = 2,726.18 - 2,187.68 = 539 CF RETENTION REQUIRED = 738 CF VOLUME PROVIDED = 862 CF LEGAL DESCRIPTION (PARENT PARCELS) FIRST FLUSH (PARCEL 3) 1 X 17,714 X 0.5/12 = 738 RETENTION REQUIRED = 738 CF S S S S S S S S S S S S PALIS A D E S B O U L E V A R D E LA MONTANA DRIVE CA M B R I A D R I V E 26,002 SF (QSR) PAD 2 .60 ACRES 16750 PAD 3 (QSR) .41 ACRES 17,715 SF 51,775 SF 1.19 ACRES PAD 1 BUILDING 16730 PAD 4 (DUTCH BROS) .83 ACRES 36,222 SF Bo w m a n C o n s u l t i n g G r o u p L t d 16 0 0 N . D e s e r t D r i v e S t e 2 1 0 Te m p e , A r i z o n a 8 5 2 8 1 c 2 0 2 1 B o w m a n C o n s u l t i n g G r o u p L t d Ph o n e : ( 4 8 0 ) 6 2 9 - 8 8 3 0 ww w . b o w m a n c o n s u l t i n g . c o m PR E L I M I N A R Y P L A T FH S C - H H - D B C FO U N T A I N H I L L S MA R I C O P A C O U N T Y 11-MD-2022 JCB TKT HT 1"=30'NONE 090831-03-001 2/28/2024 PP02 02 02 Call at least two full working days before you begin excavation. Dial 8-1-1 or 1-800-STAKE-IT (782-5348) In Maricopa County: (602) 263-1100 Arizona Blue Stake, Inc. THE PROMPT PAY LAW WILL BE ALTERED FOR THIS CONTRACT NOTICE OF EXTENDED PAYMENT PROVISION THE CONSTRUCTION CONTRACT WILL ALLOW THE OWNER TO MAKE PAYMENT WITHIN THIRTY (30) DAYS AFTER CERTIFICATION AND APPROVAL OF BILLINGS TYPICAL PARKING DETAIL NTS TYPICAL TRASH ENCLOSURE PER FOUNTAIN HILLS DTL FH-135 NTS FIRE TRUCK TURNING RADIUS ITEM 6. TOWN OF FOUNTAIN HILLS STAFF REPORT    Meeting Date: 04/08/2024 Meeting Type: Planning and Zoning Commission Agenda Type: Submitting Department: Development Services Prepared by: John Wesley, Development Services Director Staff Contact Information: John Wesley, Development Services Director Request to Planning and Zoning Commission (Agenda Language):  PUBLIC HEARING, CONSIDERATION, AND POSSIBLE ACTION: Ordinance 24-05 amending Zoning Ordinance Section 5.13, Community Residences. Staff Summary (Background) April 8, 2024, Update Report: At the February 12, 2024, Commission meeting, the Commission reviewed a draft ordinance for changes to Zoning Ordinance Section 5.13 to provide for additional inspections of these homes.  The discussion by the Commission led to a request for further amendment to the ordinance regarding the requirement for a business license.  Because the notice for the hearing did not include consideration of other portions of these regulations, the case was continued for re-advertisement. The attached ordinance now includes an amendment to language regarding business licenses using the language stated by Commissioner Watts.  B. Application Requirements … 11. OWNER AND/OR OPERATOR RReceives a Town business license, if applicable. Related to this, Sections 5.13 C. 5. c. and 6.b. will also be amended as follows: 5. c. A Town business license, if applicable. 6. b. The home or operator has maintained a current Town business license, if applicable.    The adjustment to the public notice provided the opportunity to address one other correction needed to the existing ordinance.  When the previous ordinance was reviewed, there was significant discussion regarding the types of community residences and how many residents would be allowed in each kind to still qualify as a family.  There was also discussion about whether or not to include a provision for waivers.  The provision for waivers was initially written when the draft ordinance would still allow up to 10 residents in a home.  The provision allowing for the consideration of waivers was deleted from the ordinance as recommended to the Council.  The Council subsequently reinstated this deleted from the ordinance as recommended to the Council.  The Council subsequently reinstated this section, but staff failed to fully review the language in light of the reduction in the maximum number of allowed residents.  Therefore, the waiver language in Section 5.13 E 1 b still states the need for a waiver of more than 10 residents.  To correct this, staff is proposing to change the language in Section 5.13 E. 1 b. to:  b. The applicant demonstrates through documentation and evidence that the proposed community residence needs to house more than THE MAXIMUM NUMBER OFten (10) residents  FOR THE TYPE OF RESIDENCE or reduce the separation for financial or therapeutic reasons.   February 12 Report: On May 3, 2022, the Town Council adopted Ordinance 22-01 which established the current ordinance requirements for community residences (formerly group quarters).  Members of Town Council have asked staff prepare a text amendment to provide for ongoing inspections of these homes to ensure compliance with the adopted regulations.  To accomplish this objective, staff is proposing the Commission consider the following  two changes to Section 5.13 C. of the Zoning Ordinance.    The first change is to add a statement at the end of 5.13 C. 2. to allow follow-up inspections as needed when there is a reasonable belief the home may be out of compliance.    2. Following receipt of a complete application for registration, the property will be inspected by the Building Official and Fire Marshal for compliance with all life safety requirements. Any identified deficiencies must be addressed and compliance verified through a follow-up inspection before the registration will be completed. FOLLOW-UP INSPECTIONS MAY BE CONDUCTED UPON A REASONABLE BELIEF OF NON-COMPLIANCE.   The second proposed change is to Section 5.13 C 6 to expand what can be reviewed during the inspection conducted during the annual re-registration process. 6. Reregistration. The community residence operator must register annually by submitting a new application with any updated documents. The registration can be renewed if the following are met: a. The home has maintained a current license or certificate. b. The home or operator has maintained a current Town business license, if applicable. c. Re-inspection of the property has verified ongoing compliance with: i. life safety standards; ii. OCCUPANCY LIMITS; and, diii. The provider has complied with the policies and procedures established in subsection (B)(5) of this section. ed. Verification of the current, appropriate Maricopa County tax status. There is currently only one community residence in Town that is subject to the ordinance approved in 2022.  That residence will be subject to the re-inspection requirement when it updates is registration later this year. Related Ordinance, Policy or Guiding Principle Zoning Ordinance Section 5.13 Risk Analysis N/A Recommendation(s) by Board(s) or Commission(s) N/A Staff Recommendation(s) Staff supports a recommendation to adopt this ordinance modification. SUGGESTED MOTION MOVE to recommend adoption of Ordinance 24-05. Attachments Ordinance 24-05  ORDINANCE NO. 24-05 AN ORDINANCE OF THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, AMENDING THE FOUNTAIN HILLS ZONING ORDNANCE BY AMENDING 5.13, COMMUNITY RESIDENCES, TO PROVIDE FOR RE-INSPECTIONS ENACTMENTS: NOW THEREFORE BE IT ORDAINED BY THE MAYOR AND TOWN COUNCIL OF FOUNTAIN HILLS, ARIZONA, as follows: SECTION 1. That Chapter 5, General Provisions, Section 5.13 B, C and E are hereby amended as follows: … B. Application Requirements … 11. OWNER AND/OR OPERATOR RReceives a Town business license, if applicable. C. Registration 1. Registration of a community residence with the Town is required prior to beginning operation. An approved registration is valid for one (1) year from date administratively issued. 2. Following receipt of a complete application for registration, the property will be inspected by the Building Official and Fire Marshal for compliance with all life safety requirements. Any identified deficiencies must be addressed and compliance verified through a follow-up inspection before the registration will be completed. UNANNOUNCED FOLLOW-UP INSPECTIONS MAY BE CONDUCTED UPON A REASONABLE BELIEF OF NON-COMPLIANCE. 3. All required documents listed in subsection B of this section will be reviewed. Any required corrections or clarifications must be submitted to complete the registration process. 4. When all registration requirements have been met, the Development Services Director will administratively complete the Town’s registration process. 5. If all other requirements of this section are met, the Development Services Director may issue a conditional registration for up to ninety (90) days while the applicant applies for and receives: a. The license or certificate as required by subsection (B)(1) of this section; b. The Maricopa tax verification required by subsection (B)(8) of this section; and c. A Town business license, if applicable. The applicant may not occupy the residence until these items are received by the Town. If one (1) or more of these items are not received by the Town within ninety (90) days, or is not approved, the registration of the property will be rescinded. Should the license or certificate become revoked for any reason, the community residence operator will have forty-five (45) days to vacate the property. 6. Reregistration. The community residence operator must register annually by submitting a new application with any updated documents. The registration can be renewed if the following are met: a. The home has maintained a current license or certificate. b. The home or operator has maintained a current Town business license, if applicable. c. Reinspection of the property has verified ongoing compliance with: I. Llife safety standards;. II. OCCUPANCY LIMITS; AND, dIII. The provider has complied with Tthe policies and procedures established in subsection (B)(5) of this section. eD. Verification of the current, appropriate Maricopa County tax status. … E. Waiver. To establish a community residence that does not comply with the occupancy or separation requirements, the applicant may apply to the Development Services Department for a waiver. In all cases the Development Services Director shall submit the request to the waiver to the Community Residence Waiver Committee to make findings of fact in support of the determinations and shall render the decision in writing. The application will initially be reviewed by the Development Services Director for completeness. The Director may meet with and interview the applicant to request additional supporting information to determine the necessity of the accommodation and to ascertain or clarify information sufficient for the Committee to make the required findings. 1. To grant a waiver, the Committee shall find affirmatively all of the following standards: a. The applicant demonstrates through documentation and evidence that the proposed community residence can and will emulate a biological family and function as a residential use rather than an institutional or other nonresidential use. b. The applicant demonstrates through documentation and evidence that the proposed community residence needs to house more than THE MAXIMUM NUMBER OFten (10) residents FOR THE TYPE OF RESIDENCE or reduce the separation for financial or therapeutic reasons. … SECTION 2. In accordance with Article II, Sections 1 and 2, Constitution of Arizona, and the laws of the State of Arizona, the City/Town Council has considered the individual property rights and personal liberties of the residents of the City/Town and the probable impact of the proposed ordinance on the cost to construct housing for sale or rent before adopting this ordinance. PASSED AND ADOPTED by the Mayor and Council of the Town of Fountain Hills, Maricopa County, Arizona, this 7th day of May 2024. FOR THE TOWN OF FOUNTAIN HILLS: ATTESTED TO: ___________________________________ __________________________________ Ginny Dickey, Mayor Linda Mendenhall, Town Clerk REVIEWED BY: APPROVED AS TO FORM: ____________________________________ __________________________________ Rachael Goodwin, Town Manager Aaron D. Arnson, Town Attorney ITEM 7. TOWN OF FOUNTAIN HILLS STAFF REPORT    Meeting Date: 04/08/2024 Meeting Type: Planning and Zoning Commission Agenda Type: Submitting Department: Development Services Prepared by: John Wesley, Development Services Director Staff Contact Information: John Wesley, Development Services Director Request to Planning and Zoning Commission (Agenda Language):  REVIEW AND DISCUSS issues related to the provision of wireless communication facilities. Staff Summary (Background) At the January 8 Commission meeting, the Commissioners and public were given the opportunity to provide staff with comments, concerns, and questions with regard to how we regulate wireless communication facilities to provide direction on what areas of the code should be amended.  A number of comments and statements were made but the focus of the comments at that time were that the regulations for cellular service were okay, and the focus needed to be on regulating broadband.  At the March 11 Commission meeting, staff presented a first draft of possible ordinance amendments to address the concerns staff has been hearing over the last couple of years.  The public and Commission again provided comments regarding the concerns they have and what they would like to see addressed in the revised regulations, mostly focused on concerns with broadband.  The Commission voted to continue discussion of the draft ordinance to their May meeting. At both of the previous meetings there continued to be some degree of question and confusion regarding this land use activity.  To help prepare for the meeting and ordinance discussion in May, staff is taking this opportunity to review and address some of the comments and questions which have been made at previous meetings.  It is hoped that by providing a higher degree of clarity on these issues and topics, it will make the discussion of the ordinance next month go more smoothly. At these two previous meetings, various other cities have been mentioned as having ordinances worth looking at and following.  Staff has obtained copies of these ordinances and they are attached for Commissioners to review.  Because state statutes also impact what can and cannot be considered and included, staff has also obtained the regulations from several other Arizona cities and towns to use for comparison.  These are also attached for your review.  In particular, ordinances from Flagstaff, Sedona, and Bisbee are included because they tend to be the more progressive and environmentally sensitive cities in the state. Review of Comments Telecommunications Act of 1996 (TCA), Titles I and II At the January meeting, and again at the March meeting, there was discussion about TCA Title I, At the January meeting, and again at the March meeting, there was discussion about TCA Title I, Telecommunications, and Title II, Broadcast Services, and what is regulated by each.  The comments were that the Federal Communications Commission (FCC) has used the TCA to highly regulate and preempt local jurisdictions with regard to the communication services included under Title II, but they do not have the same level of regulation on the services included in Title I. Broadband services have been classified in Title I, so the suggestion has been that the Town has lots of flexibility in placing regulations on this type of communication service.  However, it should be noted action taken by the FCC on October 19, 2023, through a Notice of Proposed Rulemaking, has now raised the possibility that broadband service will be reclassified as a Title II communication service, making it subject to the same rules and regulations as cellular service. Staff has reviewed wireless communication ordinances from many other cities and towns.  None of the ordinances reviewed made any distinction for broadband service.  The draft ordinance from the Town's hired consultant also did not separate out broadband service. What is 5G? In its simplest terms, it is the fifth generation of wireless technology.  Previous generations have focused primarily on building the network of wireless service.  The first systems, which began in the United States in the early 1980s, had poor coverage, poor sound quality and slow download speeds.  The next generation of service, which rolled out in the early 1990s, had encryption for better security, better sound quality and faster download speeds.  3G came along in the early 2000s and the primary improvement was the download speed compared to 2G.  Smartphones became available as part of the 3G technology.  The next generation of the technology, 4G, began being used around 2009.  This technology continued to improve upon download speeds. 5G is the fifth generation of wireless cellular technology, offering higher upload and download speeds, more consistent connections, and improved capacity than previous networks.  As technology continues to evolve, additional generations or upgrades will occur to move beyond 5G.  This technology operates in high band and low band ranges.  The high band ranges utilize small cell antennas that provide high quality service, but do not have significant range and thus require more antennas. The 5G using the low band ranges reach further and can be deployed on standard cell towers. There has been discussion in the meetings suggesting a distinction between 5G cellular and 5G broadband.  Staff has found that the term 5G cellular is generally applied to wireless communication with mobile devices (smartphones, tablets, etc.), whereas 5G broadband is usually associated with fixed wireless services (a fixed antenna at the premises of an internet subscriber).  Staff has not found any distinctions in ordinances regarding these different aspects of 5G.   There will be thousands of antennas in Town; can we set a cap on the number of towers; can we force co-location A map of the current cell tower locations is attached.  The number of towers today providing consumer cellular and broadband service is around 27.  The concern for a significant increase in the number of towers comes from the possible addition of a significant number of small cell wireless facilities along the Town's streets. As will be discussed further below, the allowance for small cell wireless facilities is regulated by the state. The Town's ordinance to implement the state's requirements is contained in Chapter 16 of the Town Code and not in the zoning ordinance, so it is not part of this discussion. In the last five years there has been one tower added in Town, the small cell tower in Adero Canyon.  It is not in the right-of-way, so it was reviewed and approved through the Special Use Permit process.  Other changes which have occurred during this time have been upgrades to existing antennas and a few additional co-locations on existing towers.  There are no current requests for additional towers, but there has been discussion about replacing one more existing towers. It would be challenging to put an absolute cap on the number of towers allowed in the Town.  The separation requirements create the start of a limit.  The requirements in the code to justify additional towers based on gaps in service also work to limit the number of towers.  The ordinance requires the applicant to demonstrate that no existing tower or alternative technology will work to cover the gap.  All new towers are required to be designed to accommodate co-location.  Anthem, AZ, Farragut, TN, Davis, CA, and Malibu, CA Reference has been made to these communities and the way they have addressed wireless facilities.  The staff researched these locations and found the following. Anthem is a master planned community that began development in the late 1990s. It is in unincorporated Maricopa County and subject to their zoning regulations except for how they might have been amended through the specific zoning for this development.  Because this master-planned community developed as cellular networks were being developed, they were able to plan for those services upfront, install infrastructure and establish CC&R's and design guidelines to guide the installation of utility services of all kinds.  Staff is still working to find more details about their development process and requirements, but have found that their non-residential design guidelines prohibit antennas except as specifically approved by the Anthem Community Council.  A tour of the community shows there are at least a few large cell towers within Anthem. Farragut, TN, is a town of similar size to Fountain Hills.  It was stated in a meeting that their ordinance is a blend that encourages underground utilities and only allows above ground when they cannot go underground due to demographics or geological situations.  The Farragut ordinance is attached along with some design guidelines for above-ground utilities in the public right of way.  Like Fountain Hills, they are a newer city, incorporated in 1980 and have a similar population.  They require any new wires to be placed underground, the same as Fountain Hills.  They have an ordinance that provides for above-ground antennas.  Compared to the Fountain Hills ordinance, their's is short and includes small cell in the right-of-way.  Their guidelines include the following statement: 5. New vertical utility infrastructure, in the form of poles within the public rights-of-way, will only occur for those utilities, such as lighting and antenna-based technologies, that are dependent on being above ground in order to provide the service they are intended for. The pole and associated accessory structure standards required in this chapter account for this reality. Other utilities that are not dependent on being above ground shall be placed underground.  Davis, CA, was cited as a community that includes all types of antenna in one ordinance, whether it is for personal communication, communication within a utility system, etc. This is similar to what our ordinance does.  It was also stated that in Davis, if its broadband, it goes underground, period.  From reading the ordinance, staff was unable to verify this provision that all broadband goes underground.  An email was sent to the staff in Davis for clarification. They responded that they do not have a provision that requires all broadband to go underground. Malibu, CA, was brought up as a city that has spent time and effort on its ordinances related to wireless services.  Malibu has three documents that provide regulations and guidelines associated with wireless communications.  Section 12.02 addresses wireless facilities in rights-of-way, Section 17.46 provides the regulations for all other wireless communication facilities, and Resolution 21-17 provides guidelines for engineering and location requirements for facilities not in a right-of-way.  These regulations are similar to others. HB2365 This house bill was brought up at the March meeting.  This bill, which was approved and signed by the Governor in 2017, amended ARS Title 11 - Counties by adding Chapter 13 and provides regulations for wireless facilities.  Regulations for cities and towns are in Title 9; regulations in Title 11 do not apply to cities and towns. The wording in HB2365 that was of interest was in Section 11-1802 H 2 and states: "Applicants shall comply with nondiscriminatory undergrounding requirements that prohibit communications service providers from installing structures in a right-of-way without prior zoning approval in areas that are zoned for single-family residential use, if the requirements do not prohibit the replacement of existing structures."  A review of the actual language in the current, online version of the Arizona Revised Statutes, however, shows that this language is no longer in Section 11-1802.  A cursory review of the rest of this chapter has not found the language in other sections.  Research has not been done to determine what happened to this language because it is a moot point, these statutes do not apply to cities and towns. What is a small cell antenna? Small cell is a low-cost radio access point with low radio frequency (RF) power output, footprint and a range from 10 meters to a few miles.  Radio frequency is a rate of oscillation in the range of around 3 kHz to 300 GHz (Hz, hertz measures the number of wave cycles (or frequency) passing through a given point in a second), which corresponds to the frequency of radio waves, and the alternating currents which carry radio signals.  Small cell technology can be used for 4G and 5G wireless services.   Per the FCC, to be considered a small cell the antenna and equipment must meet the following specifications: Mounted on structures 50 feet or less in height including their antennas, or mounted on structures no more than 10% taller than other adjacent structures, or does not extend existing structures on which it is located to a height of more than 50 feet or by more than 10%, whichever is greater; 1. Each antenna associated with the deployment, excluding equipment associated with the antenna itself, is no more than three cubic feet in volume; and, 2. All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume. 3. Arizona small cell in the ROW Title 9 of the Arizona Revised Statutes provides the regulations for cities and towns.  Chapter 5 is for Public Utilities and Article 8 provides the regulations for Use of Public Highways and Private Property by Wireless Providers.  As stated in the last staff report:  "Small wireless facility" means a wireless facility that meets both of the following qualifications: (a) All antennas are located inside an enclosure of not more than six cubic feet in volume or, in the case of an antenna that has exposed elements, the antenna and all of the antenna's exposed elements could fit within an imaginary enclosure of not more than six cubic feet in volume. (b) All other wireless equipment associated with the facility is cumulatively not more than twenty-eight cubic feet in volume, or fifty cubic feet in volume if the equipment was ground mounted before August 9, 2017. The following types of associated ancillary equipment are not included in the calculation of equipment volume pursuant to this subdivision: (i) An electric meter. (ii) Concealment elements. (iii) A telecommunications demarcation box. (iv) Grounding equipment. (v) A power transfer switch. (vi) A cutoff switch. (vii) Vertical cable runs for the connection of power and other services.  Wireless communication facilities that meet this definition that do not exceed the height requirements (40 or 50 feet depending on the circumstances) and are placed in the public right-of-way are exempt from any zoning requirements. There is nothing in the statute that makes a distinction between cellular or broadband use of the small cell wireless communication facility in the right of way.  By state statute, any facility which meets this definition and these requirements is allowed by right in any zoning district.  As the Commission continues its review and discussion regarding regulations for wireless communication facilities, small cell wireless in the right-of-way, will not be part of the discussion.  Small cell antennas and equipment outside a right-of-way can be regulated the same as any other wireless tower and antenna. The ordinance has not provided protection to the public and their interest in their residences The draft ordinance takes several steps to protect the public and residences.  These include:  Addressing the visual impacts and providing aesthetic standards (Section 17.03 A 3) Encouraging co-location (Section 17.03 A 9 and 17.03 D) Requiring security fencing (Section 17.03 A 10) Requiring landscaping (Section 17.03 A 11) Setting noise standards and compliance provisions (Sections 17.03 A 13 and 17.06 D) Requiring structural certification by a registered Arizona engineer and verification by the Town Engineer (Section 17.03 A 14 and 15) Requiring a tower to be setback from a property line equal to the height of the tower (Section 17.03 B 1 a) or more as required by Table 1. Establishing minimum distances between towers (Section 17.03 B 2, Table 2) Requiring public review and Council approval for all towers in or within 300' of residentially zoned property Requirement to provide a review of alternative locations for new towers (17.05 A 6 h) to be backed up with a drive test if requested by Council (17.06 C 3 c) A statement of compliance with FCC radiofrequency exposure standards (17.05 A 6 j) and ongoing compliance (Section 17.06 B) with penalties for noncompliance (should probably be sectioned out for improved readability) The Town may impose conditions on approval to minimize adverse effects of a proposed tower (Section 17.06 C 4) Ongoing maintenance and operation requirements (17.06) How will the Town conduct the balance test in 17.01 B? Sections 17.01 A and B provide the background direction and desired objectives for drafting the ordinance and the regulations contained in the ordinance.  The rest of the ordinance, Sections 17.03 - 17.06, should be measured against the statements in these two sections.  Does the ordinance achieve the intent to provide a balance between enabling service providers to create and maintain networks, providing the quality of service needed by residents of the Town, protecting residents against the possible adverse impacts of the facilities, and maintaining compliance with the TCA? What kind of noise is being regulated? The addition of the noise requirements in the draft ordinance came from reviewing other codes and recognizing that what is in the current ordinance does not work.  This may warrant further review, but it seems that in other ordinances the noise regulations have to do with the equipment and facilities at the ground level, not the antenna. What are the height limits for towers? Section 5.07 B 6 of the Zoning Ordinance exempts towers from the height limits of the zoning district the tower is located in and allows for the height as approved by the Town through the review process.  The limits come from the requirements in Section 17.03 B 1 that a tower has to be set back from a property line at a distance at least equal to its height.  Table 1 provides some further setbacks from residential properties based on absolute amounts or as a percentage of the height of the tower, whichever is greater.  These create limits to the height of a tower. Should the separation distance from residential be increased for administrative review? The current and proposed ordinances require public review of an application if the proposed tower is located in residentially zoned property or within 300' of residentially zoned property.  This could be increased to a greater separation, such as 500' or 1000'.  Staff will prepare maps to show the impact of these different buffer widths.  If the goal is to keep the towers out of residential areas, it may be counterproductive to make the buffer too large.  Two modifications to the existing draft ordinance that should also be considered are to also include any OS zoned property and to make the separation from a residential use or residential zoning.  We have some significant areas in the downtown area that are zoned C-2 but developed with residential uses. What NEPA testing is required? A statement was made that NEPA recommends testing of antennas every six months and that NEPA recommends a scorecard with a decibel range between 80 and 125 to make it passable.  Cell phone signal strength is measured in decibels (dBm). Signal strengths can range from approximately -30 dBm to -110 dBm (dBm stands for decibel milliwatts, which is a concrete measurement of the wireless signal strength of wireless networks). The closer that number is to 0, the stronger the cell signal. In general, anything better than -85 decibels is considered a usable signal.  For broadband, the signal strength needs to be at least -67 dBm, the accepted range is between -67 dBm and -50 dBm. The FCC website provides some information on the role of NEPA with regard to cell towers.  NEPA The FCC website provides some information on the role of NEPA with regard to cell towers.  NEPA reviews can be required for the construction of new towers.  FCC environmental rules categorically exclude all actions from detailed environmental review except those associated with the construction of facilities that fall into certain categories.  The categories listed are not likely to be found when locating a tower in Fountain Hills.  The website goes on to state:  Section 332(c)(7) of the Communications Act preserves state and local authority over zoning and land use decisions for personal wireless service facilities, but sets forth specific limitations on that authority.  Specifically, a state or local government may not unreasonably discriminate among providers of functionally equivalent services, may not regulate in a manner that prohibits or has the effect of prohibiting the provision of personal wireless services, must act on applications within a reasonable period of time, and must make any denial of an application in writing supported by substantial evidence in a written record.  The statute also preempts local decisions premised directly or indirectly on the environmental effects of radio frequency (RF) emissions, assuming that the provider is in compliance with the Commission’s RF rules. Staff has not yet found a regulation stating that towers are subject to periodic NEPA review.  Several of the attached ordinances reference the requirement for NEPA review of new facilities as required by the FCC at the time the facility is being approved. Could we define broadband as a utility and, thereby, require it to be underground? Section 7-5 of the Town Code requires a permit from the Town Manager or designer prior to installing any new utility poles or wires.  The procedures for obtaining such a permit are provided in this section of the Town Code.  In addition, Section 4.04 M of the Subdivision Ordinance requires all new electric and communication lines to be placed underground.  Defining broadband as a utility will not require undergrounding of wireless aspects of the service. We have not defined what is on the antennas; what pollution it is, what it's bringing, what the service is, do we need it? Staff is still trying to understand this and what information could be provided that clarifies how the antenna will be used.  As stated above, the typical power range for antennas is -30 dBm to -110 dBm.  Cellular and broadband services both work within this range.  The FCC has established maximum exposure limits for RF radiation.  The code as proposed requires the owners of the towers and antenna to maintain compliance with those standards.  As stated above, the TCA prohibits local jurisdictions from making decisions premised directly or indirectly on environmental effects of RF.  The ordinance does require the applicant proposing a new tower to justify the need for the additional service.       Related Ordinance, Policy or Guiding Principle N/A Risk Analysis N/A Recommendation(s) by Board(s) or Commission(s) Recommendation(s) by Board(s) or Commission(s) N/A Staff Recommendation(s) N/A SUGGESTED MOTION N/A Attachments Farragut TN ordinance  Davis CA Ordinance  Malibu Ordinance - Towers  Malibu Resolution  Malibu SWF in Right of Way  Flagstaff Ordinance  Sedona Ordinance  Bisbee Ordinance  Paradise Valley Ordinance  Peoria Ordinance  Scottsdale Ordinance  Map of existing facilities  Created: 2023-11-09 14:36:09 [EST] (Supp. No. 17) Page 1 of 13 Sec. III. Antennas and towers. The following requirements shall apply to dish antennas, amateur radio towers (excluding towers, as defined in this ordinance), towers, non-tower wireless communication facilities, and small cell support structures: A. The following conditions shall apply to dish antenna placements in all zones: 1. No text, pictures, logos, or advertising shall be displayed on any surface of the dish antenna. 2. Installation of the required screening shall be done concurrently with the construction of the base mount for any dish antenna. 3. Where screening is required, the dish antenna shall be screened from view from public rights-of- way and from adjacent property by any combination or single treatment of vegetative or structural barriers. The screening shall provide 80 percent opacity at a height of seven feet within two years of its installation. Defective or dead screening shall be replaced to maintain the screening of the dish antenna while the dish antenna remains in its permitted location. 4. The dish antenna or any required screening shall not penetrate any recorded easement. B. The following conditions shall apply to dish antenna placements in residential and agricultural zoning districts: 1. Only one dish antenna shall be permitted per lot, parcel, or tract. 2. No freestanding dish antenna shall exceed 11 feet in height, as measured at its highest point above the surrounding grade. 3. No dish antenna with a dish size greater than 24 inches shall be placed on any roof or attached to any principal or accessory structure. Dish antennas with a dish size of 24 inches or less may be placed on a roof or wall of a principal or accessory structure provided it does not project above the roof line, it is not visible from any public rights-of-way, and it does violate any required setback. 4. Freestanding dish antennas shall be set back from the side and/or rear property lines a minimum distance equal to at least two times the height of the mounted dish antenna or the minimum distance for accessory structures, whichever is greater. 5. Screening shall be required for all dish antenna with a dish size greater than 24 inches. C. The following conditions shall apply to dish antenna placements in Community Service, Commercial, and Office Zoning Districts: 1. Only one dish antenna shall be permitted per business. 2. A ground-mounted dish antenna shall not exceed 11 feet in height, as measured at its highest point above the surrounding grade. A roof-mounted dish antenna shall not exceed 11 feet above the attachment of the base mount to the roof. 3. The maximum building height shall apply, relative to the particular zoning district in which the dish antenna is to be located. 4. Dish antennas may be permitted to be located in the rear yard or on the roof. A dish antenna with a dish size of 24 inches or less may be permitted to be attached to a wall provided it does not project above the roof line, it is not visible from any public rights-of-way, and it does not violate any required setback. 5. Rear yard placements of the dish antennas may not be located in any other required buffer zone or screening required for other purposes. Created: 2023-11-09 14:36:09 [EST] (Supp. No. 17) Page 2 of 13 6. Screening shall be required for all rear yard placements of dish antennas. 7. Roof-mounted dish antennas shall be screened on three sides. The open side shall correspond with the directional requirements of the dish antenna. D. The following conditions shall apply to amateur radio towers and other antenna placements, excluding towers, as defined in this Section: 1. All amateur radio towers and antennas shall be set back a minimum of ten feet from all rear and side property lines, plus an additional one-third (⅓) of a foot for each one foot of tower/antenna height over 35 feet tall. Setbacks shall be measured from the farthest most protrusion of the tower and its appurtenances. 2. All guy wires shall be set back from the side and/or rear property lines a minimum of ten feet. 3. No amateur radio tower shall exceed 70 feet in height and the combined total height of an amateur radio tower and its antenna shall not exceed 100 feet in height. 4. A certified survey shall be submitted at the discretion of the building official which shall verify amateur radio tower and antenna heights, and setbacks for the tower, its appurtenances, and the guy wires. 5. No amateur radio tower, antenna, or guy wires shall be located within a front yard or on any recorded easement. 6. No amateur radio tower shall be placed on a roof. 7. A maximum of one amateur radio tower greater than 35 feet in height shall be permitted per lot, parcel, or tract that is less than five acres. If a lot, parcel, or tract is greater than five acres, a maximum of one amateur radio tower per five acres shall be permitted. 8. A amateur radio tower shall be fenced, walled, or protected in some manner so as to prevent uncontrolled access by children from the street or from adjacent properties. Said wall, fence, or protection shall be maintained in good condition. 9. All amateur radio towers shall be removed when no longer in service. E. The following terms shall apply to commercial cellular towers and small cell support structures, as provided for in the remainder of this Section. For terms not defined herein, the Federal Communications Commission ("FCC") definition shall apply. Antennas or related equipment: Any transmitting, receiving or other equipment used in conjunction with a wireless communications facility. The term includes utility or transmission equipment, power supplies, generators, batteries, cables, equipment buildings, cabinets and storage sheds, shelters, or similar equipment. This definition does not include towers. Applicant: An applicant is a person or entity who is authorized by the provisions of this ordinance to file for approval under these regulations. Application: An application is the completed site plan application form and all accompanying documents, exhibits, and fees required of an applicant by the Town of Farragut as part of a submission for review. Base station: Equipment at a fixed location that enables Federal Communications Commission ("FCC") licensed or authorized wireless communication between user equipment and a communication network. Cellular telecommunications services: A retail telecommunications service that uses radio signals transmitted through cell sites and switching stations. Created: 2023-11-09 14:36:09 [EST] (Supp. No. 17) Page 3 of 13 Co-location: Locating more than one transmission antenna or related equipment on the same small cell support structure or tower. Monopole: A structure that consists of a single vertical pole without guy wires, designed and erected on the ground to support communications antennas and connected appurtenances. A monopole could be either a tower or a small cell support structure but would not include non-tower wireless communications facilities since those are not originally designed to support communications antennas and connected appurtenances. Non-tower wireless communications facilities: Wireless communications facilities other than tower-based wireless communications. This would include facilities mounted to existing structures that were not originally intended to accommodate wireless communications facilities, such as buildings, utility poles, water towers, steeples, billboards, flags, etc. Ordinance: Shall refer to this and any other applicable sections of the Farragut Municipal Code, as amended. Planning commission: The term "planning commission" shall mean the Farragut Municipal Planning Commission in Farragut, Tennessee. Planning jurisdiction: The planning jurisdiction includes those areas of Knox County, Tennessee, which fall under the jurisdictional authority of the planning commission. Right-of-way: The surface of and space above and below any real property in the municipality in which the federal government, state government, municipality, or municipal authority has a regulatory interest, or interest as a trustee for the public, as such interests now or hereafter exist, including, but not limited to, all streets, highways, avenues, roads, alleys, sidewalks, tunnels, bridges, or any other public place, area, or property under the control of the federal government, state, municipality, or municipal authority. private rights-of-way and other government-owned lands not listed above shall not be considered a right-of-way. the phrase "in the right(s)-of-way" means, in, on, over, along, above and/or under the right(s)-of-way. Small cell system/distributed antenna system ("DAS"): A network of remote antenna nodes that distribute radio frequency signals from a central hub through a high capacity signal transport medium to a specific area. Small cell support structure: For purposes of this ordinance, a small cell support structure could include a monopole or a non-tower wireless communications facility that is erected within the public right of way or on private property and that does not exceed the lesser of either the maximum building height permitted in the associated zoning district or no more than three feet above the predominant height of the shortest existing utility poles in the immediate area. any other monopole shall be considered a tower, as defined herein, and subject to the regulations that would apply to towers. Small cell support structures are constructed for the sole or primary purpose of supporting any federal communications commission-licensed or authorized antennas and their associated facilities, including structures that are constructed for wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul, and the associated site. Staff: Those employees of the Town of Farragut assigned to support and/or administer the powers and duties prescribed to the Farragut Municipal Planning Commission. Stealth technology: Design techniques applied to telecommunication structures that will help conceal them or make them less visible to the casual observer. Such techniques may include, but are not limited to, facilities constructed to resemble light poles, trees, flag poles, steeples, or other Created: 2023-11-09 14:36:09 [EST] (Supp. No. 17) Page 4 of 13 streetscape elements. Stealth technology may also include concealment wrap and similar technologies and placing applicable structures underground. Tower: A support structure and all appurtenances constructed for, or an existing facility that has been adapted for, the location of transmission or related equipment to be used in the provision of any telecommunications services or personal communication services. This would include traditional monopole commercial cell towers and transport poles. For purposes of this ordinance, a tower is differentiated from a small cell support structure in that a tower is a monopole that may exceed the permitted building height of the associated zoning district and is not permitted within the public right- of-way. Transport poles: A type of tower that includes microwave backhaul. transport poles are subject to all requirements associated with a tower. Transmission equipment: Equipment that facilitates transmission for any Federal Communications Commission-licensed or authorized wireless communication service, including, but not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, and regular and backup power supply. The term includes equipment associated with wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wirelesses services such as microwave backhaul. Utility: Has the meaning as defined in Tennessee Code Annotated. Utility, overhead: Utility infrastructure that is located primarily above ground as determined by staff. For purposes of this ordinance, overhead utilities include but are not limited to power lines and communications lines. Utility pole: A structure used for the support of electrical, telephone, cable television or other video services, street lighting, or other similar cables and located within the public right-of-way or utility easements. a small cell support structure may be incorporated onto a utility pole provided such pole does not extend, with the application of small cell support structures, to a height greater than three feet above the predominant height of the shortest utility poles within 500 feet. Utility, underground: Utility infrastructure that is located primarily underground as determined by Staff. For purposes of this ordinance, underground utilities include but are not limited to water lines, sanitary sewer lines, storm sewer lines, culverts, natural gas lines, power lines, certain small cell support system/DAS structures, and communications lines. Wireless communications facility: The set of equipment and network components including antennas, transmitters, receivers, base stations, cabling, and antenna or related equipment, used to provide wireless data and telecommunication services. F. Towers. The following provisions shall apply to towers, as defined herein: 1. Application requirements. Pre-application filing meeting. Prior to filing an application for a tower, a pre-application meeting with the staff is required. At this meeting, the applicable provisions associated with the requested tower can be reviewed and discussed. An application will not be accepted if the required pre-application meeting has not been completed. An application for a new tower shall include the following as applicable to the request: a) A completed site plan application and filing fee; b) A development site plan, per the requirements of this ordinance, showing but not limited to the following: the location of the structure, identification of structure type, location of any proposed equipment cabinets or buildings, identification of adjacent land owners; Created: 2023-11-09 14:36:09 [EST] (Supp. No. 17) Page 5 of 13 c) A map and plan for how fiber optics are being extended to the property and to the proposed tower and, where applicable, the non-tower wireless communications facility. fiber optics shall be placed underground in areas with primarily underground utilities and an additional right-of-way permit from the town shall be obtained for any work conducted within the right-of-way. Any fiber optics proposed outside the right-of-way or not within existing platted utility easements shall require an easement to be platted and presented to the staff and the planning commission for approval; d) A landscape plan, per the requirements of this ordinance; e) A map showing other Towers within a one mile radius of the proposed site showing their height and ground elevations at the base; f) A map and other documentation which demonstrates the coverage area for the proposed tower as related to the coverage areas of the alternative sites referenced below; g) A certified survey showing a circular setback for the tower, access road and road elevations to the site, adjacent property lines, existing landscaping features, identification of all nonresidential buildings and structures, property owners, existing topography and approximate delineation of any topographical changes shown by contour with intervals not to exceed ten feet, and all utility lines and easements; h) A list of other possible alternative sites within a one mile radius that were considered for possible use by applicant for the structure and the reason they were unsuccessful in each instance; i) The name and address of the initially proposed FCC-licensed entity to use the structure; j) Documentation from the Federal Aviation Administration (FAA) indicating whether lighting will be required for the tower and whether it is a hazard to air navigation; k) A recorded covenant or deed that runs with the land (or alternate assurance approved by the Town Attorney) that provides for the owner of the tower to remove such structure(s) at his/her expense if the structure has not been used for a period of six months or more; l) An affirmation by the applicant not only that the tower is currently needed to provide adequate coverage, but committing that if the site plan is approved, the tower and related equipment will be constructed and in use within 12 months of the approval. The affirmation will also acknowledge that as time passes, municipal planning circumstances will change, and agreeing to reapply for site plan approval if the tower approved by the original site plan is not timely constructed within the 12-month period if the tower is still desired. m) A letter from an appropriate officer of the applicant company stating that charges made to any user of the structure will be consistent with the charges made by other tower owners in the area; n) A copy of the lease agreement or letter from the property owner giving permission for the application request; o) Where applicable, a plat reflecting all newly established easements associated with a tower, in addition to all recorded covenants or deeds; p) Pre-addressed and unsealed postage stamped envelopes to be used by the staff to notify property owners that are within a 1,000 foot radius of the tower as measured from the base of the tower; and q) Any other document that the staff, planning commission, or their consultant may request. Created: 2023-11-09 14:36:09 [EST] (Supp. No. 17) Page 6 of 13 2. Processing of applications. a) Staff shall review all applications for new towers within 30 days of the application filing to determine if an application is complete. During this time frame, the staff may request a third party consultant review to verify certain applicable information. b) Staff shall issue initial comments to the applicant within this 30-day time frame so that the applicant can address any identified deficiencies. Once staff comments have been addressed the staff shall notify the applicant in writing that the application is complete. As applicable, the staff or the planning commission shall then either approve, approve with conditions, or deny the application within 60 days of the date the application is determined to be complete. If the town does not make a final decision within the required 60 days, the application shall be deemed to be approved as submitted. c) Requests for co-locations on existing towers shall be subject to obtaining a building permit. A site plan review will not be required for a co-location, provided the co-location is determined by staff to comply with all applicable provisions of this ordinance. d) An applicant claiming to be injuriously affected or aggrieved by an official action, order, requirement, interpretation, grant, refusal, or decision of the staff or planning commission in the administration of this ordinance may appeal the action to the Board of Zoning Appeals. Such appeal must be taken within 30 consecutive calendar days of the final action by the staff or planning commission. The appeal shall be filed with the Staff along with an appeal fee of $100.00. The Staff will fix a reasonable time for hearing the appeal and give public notice, as well as written notice to the appellant and the owner of right-of-way or property (if different from the jurisdiction) at least ten days prior to the hearing. e) An applicant claiming to be injured or aggrieved by any final action of the town rendered by the Board of Zoning Appeals may appeal from the final action to the Circuit Court of Knox County, Tennessee. Such appeal shall be taken within 30 days after such action. 3. Design standards for towers. a) At the time of application submittal, the applicant shall provide information demonstrating compliance with the applicable provisions of this ordinance. Where the planning commission finds that circumstances or conditions relating to the particular application are not necessary or desirable for the protection of surrounding property or the public health, safety, and general welfare, and that such conditions or circumstances make one or more requirements unreasonable, the planning commission may modify or waive such requirement, either permanently or on a temporary basis. Any modification or waiver, along with justification for each, shall be requested in writing by the applicant. b) All towers, as well as non-tower wireless communications facilities mounted on top of existing buildings or other structures, shall be constructed with Stealth Technology that has been approved by the planning commission. All cables and wires shall be installed inside the stealth monopole structure. Stealth technology shall not apply to existing towers, unless such towers are replaced or an existing lease is re-negotiated to provide for stealth technology. Replacement towers shall be constructed with stealth technology. c) All towers that are proposed on property that is not zoned residential and does not abut property that is zoned residential shall be set back a minimum of one-half of a foot for each one foot of tower and antenna height or 50 feet, whichever is greater. Setbacks shall be measured from the farthest most protrusion of the tower and antenna to the nearest point of any property line. Created: 2023-11-09 14:36:09 [EST] (Supp. No. 17) Page 7 of 13 d) All towers that are proposed on property that is zoned residential or towers that are proposed on property that is not zoned residential but abuts property that is zoned residential shall be set back a minimum of one foot for each one foot of tower and antenna height. Setbacks shall be measured from the farthest most protrusion of the tower and antenna to the nearest point of any property line. e) All equipment shelters, cabinets, fencing, and all other structures accessory to a Tower shall be set back a minimum of 50 feet on property that is not zoned residential and that does not abut property that is zoned residential. All equipment shelters, cabinets, fencing, and all other structures accessory to a Tower shall be set back a minimum of 60 feet on property that is zoned residential or property that is not zoned residential but abuts property that is zoned residential. Setbacks shall be measured from the farthest most protrusion of the structure(s) to the nearest point of any property line. f) All access ways leading to a tower and/or its accessory structures shall be set back a minimum of ten feet from all side and rear property lines. g) Towers and attached antennae, including a lightning rod, that are proposed on property that is not zoned residential shall not exceed a height of 165 feet. This also applies to a non-tower wireless communication facility that is constructed on top of another building or structure with the height being the overall height of the building/structure and tower together, measured from the average grade at the building or structure plane to the highest point. The setback requirements in this Ordinance shall apply regardless of whether the tower is a monopole or a non-tower wireless communication facility constructed on top of another building or structure. h) Towers and attached antennae, including a lightning rod, that are proposed on property that is zoned residential shall not exceed a height of 75 feet. This also applies to a tower that is constructed on top of another building or structure with the height being the overall height of the building/structure and Tower together, measured from the grade to the highest point. The setback requirements in this ordinance shall apply regardless of whether the tower is a monopole or a non-tower wireless communication facility constructed on top of another building or structure. i) No accessory building or structure for a tower shall exceed 15 feet in height. j) Towers shall not be permitted within the area adopted as the Mixed Use Town Center, as shown in the Comprehensive Land Use Plan Update, as amended. k) Towers shall not be illuminated, except in accordance with state or federal regulations. l) The site shall be unstaffed. Personnel may periodically visit the site for maintenance, equipment modification, or repairs. To accommodate such visits, ingress/egress shall only be from approved access points. m) Fencing used to enclose Towers and their accessory structures shall be properly maintained and in compliance with state or federal regulations. n) The fenced area that encloses the Tower and its accessory structures shall be landscaped with non-exotic, non-invasive plant material that is reviewed and approved as part of a landscape plan that shall accompany the application. This material shall meet the minimum sizes provided for in the town's landscaping requirements and shall include species and a spacing arrangement that will screen the fenced area from view. A landscape maintenance letter of credit shall be provided to cover the maintenance of the approved plant material for a minimum of two years. If an existing structure is being used for stealth purposes as Created: 2023-11-09 14:36:09 [EST] (Supp. No. 17) Page 8 of 13 part of a non-tower wireless communication facility, the plant material requirements may be waived by the planning commission. o) Existing trees around a tower site shall be preserved and may count toward fulfilling a portion or all of the landscaping requirements stipulated in this ordinance. p) All driveways and off-street parking areas shall be constructed with a non-erodible improved surface, such as asphalt, concrete, permeable pavers, that is properly drained and maintained. The driveway shall be a minimum width of 12 feet and a maximum width of 24 feet. The composition of the driveway and off-street parking areas shall be designed by the applicant's engineer and shall be based on the heaviest vehicles that are likely to use such facilities. A turn around area is also required for emergency responders and shall be a component of the approved design. q) There shall be no signs permitted, except those displaying emergency information, owner contact information, warning or safety instructions, or signs which are required by a federal, state, or local agency. Such signs shall not exceed five total square feet in area. r) All new towers shall be designed and constructed to provide for co-location unless an applicant can clearly demonstrate that co-location is not feasible given a proposed tower's height. A tower design, including stealth technology, and placement shall provide for any anticipated height extension that may occur in the future. Additional height shall require additional co-location. Options for co-location shall be reviewed with the staff and planning commission based on the height and placement of the proposed tower. s) All option and site lease agreements shall permit the possibility of co-location. t) To ensure the structural integrity of a tower, the owner of such tower shall ensure that the tower is maintained in compliance with standards contained in applicable state or local building codes and the applicable standards for structures that are published by the Electronic Industries Association, as amended from time to time. If upon inspection the Town of Farragut concludes that a tower fails to comply with applicable codes and standards and constitutes a danger to person or property, then upon notice being provided to the owner of the tower, the owner shall have 30 days to bring such tower into compliance with such standards. Failure to bring such tower into compliance within said 30 days shall constitute grounds for the removal of the tower at the owner's expense. G. Small cell support structures and distributed antenna systems (DAS). The following provisions shall apply to small cell support structures and das, as defined in this ordinance: 1. Application requirements. Pre-Application Filing Meeting. Prior to filing an application for a small cell support structure or DAS, a pre-application meeting with the staff is required. At this meeting, the applicable provisions associated with the request can be reviewed and discussed. An Application will not be accepted if the required pre-application meeting has not been completed. This meeting will allow for early coordination by identifying existing structures that might be suitable for co-location or that might qualify as non-tower wireless communication facilities. This will also help identify any other issues which may relate to (i) the use of right-of-way or utility poles and/or (ii) the application to the proposed request of any other local zoning, subdivision regulations, or other rules, regulations or adopted plans, including, but not limited to the Comprehensive Land Use Plan and Architectural Design Standards. The meeting will provide an opportunity for an initial discussion regarding proposed structure locations, design, and the application submittal and approval process. Coordination with utilities for possible use of pre- existing structures will be required. Applicants shall supply the provider's preferred locations, Created: 2023-11-09 14:36:09 [EST] (Supp. No. 17) Page 9 of 13 structure design, style, and structure height at least one week prior to the pre-application meeting or upon request for such meeting. Unless provided for otherwise, all proposed small cell support structures/DAS shall be subject to staff review and approval by the planning commission. Certain non-tower wireless communication facilities applications, including co-locations, may be reviewed and approved by the staff provided the staff determines that a more formal review with the planning commission is not necessary based on the location and/or physical characteristics of the proposed facilities. Applications for small cell support structures or DAS shall include the following information as applicable to the request: a) A completed site plan application and filing fee. Applications are limited to three structures per application. b) A development site plan, signed and sealed by a professional engineer registered in Tennessee, showing the proposed location of each small cell support structure and any existing small cell support structures within 500 feet of each proposed location. This plan shall specifically identify, for each location, existing utility poles within 500 feet and their predominant physical characteristics (type, material, height, color, etc.). The plan shall address whether an existing utility pole is proposed to be used to accommodate a small cell support structure or whether a new monopole is being requested. The plan shall also address if an existing utility pole is being replaced in order to accommodate a small cell support structure. c) A map and plan for how fiber optics are being extended to the small cell support structure/DAS and, where applicable, the non-tower wireless communications facility. Fiber optics shall be placed underground in areas with primarily underground utilities and an additional right-of-way permit from the town shall be obtained for any work conducted within the right-of-way. Any fiber optics proposed outside the right-of-way or not within existing platted utility easements shall require an easement to be platted and presented to the staff and the planning commission for approval. d) For non-tower wireless communications facilities proposed on buildings or other structures that are not within the right-of-way, the development site plan shall include the proposed small cell support structures, their physical characteristics, and stealth technology applications that would be proposed based on the proposed location and context. e) An indication of existing improvements, such as pedestrian facilities, accesses, landscaping, and underground utilities, that are within 25 feet of the proposed small cell support structure(s) and any other information that may be pertinent to or impact the decision on where to place the structure and its related equipment. f) A map and other documentation which demonstrates the coverage area for each proposed small cell support structure. This shall include a statement of the telecommunications objective(s) for each proposed small cell support structure location, whether the proposed facility is necessary to prevent or fill a gap or capacity shortfall in the applicant or provider's service area, whether it is the least obtrusive means of doing so, and whether there are any alternative sites or other applications that would have fewer aesthetic impacts while providing comparable service. g) A statement by an authorized representative that the Applicant or provider holds all applicable licenses or other approvals required by the FCC, and any other agency of state or federal government with authority to regulate telecommunications facilities that are required in order for the applicant to construct the proposed facility. Created: 2023-11-09 14:36:09 [EST] (Supp. No. 17) Page 10 of 13 h) A statement by an authorized representative that the applicant or provider is in compliance with all conditions required for such license and approvals. i) A full description of the number and dimensions of all small cell support structures to be installed including, but not limited to, all underground structures, antennae, the height of above ground structures and any equipment cabinets or buildings associated with the installation. j) Where structures are permitted above ground, a vertical profile sketch or drawing of the structures, signed and sealed by a professional engineer registered in Tennessee, indicating the height of the structure and the placement and physical dimensions of all antennas and equipment enclosures. k) For non-tower wireless communications facilities to be mounted on existing utility poles or replacement utility poles, the profile sketch shall verify compliance with the height parameters provided for in this ordinance. l) Written approval from the property owner(s) stating that the applicant or provider has permission to apply to construct a facility on their property (e.g., on an existing building with a non-tower wireless communication facility in the form of a small cell support structure). In the case of non-town-owned utility poles, the utility provider shall acknowledge permission for the applicant to apply to use their pole(s) for small cell support structures. Monopoles within the right-of-way or proposed on town-owned utility poles shall be considered by the staff and planning commission, as representatives of the town, as part of the application review. Final approval to use town-owned property for small cell support structures shall be acknowledged in writing by the duly authorized representative of the town. A lease agreement or a franchise agreement with the town will typically be required as a condition of staff or planning commission approval. m) Photographs of view shed from each proposed small cell support structure location taken in at least four directions. 2. Processing of applications. a) Staff shall review all Applications for new small cell support structures within 30 days of application filing to determine if an application is complete. During this time frame, the staff may request a third party consultant review to verify certain applicable information. b) Staff shall issue comments to the applicant within this 30-day time frame so that the applicant can address any identified deficiencies. Once staff comments have been addressed the staff shall notify the applicant in writing that the application is complete. As applicable, the staff or the planning commission shall then either approve, approve with conditions, or deny the application within 60 days of the date the application is determined to be complete. If the town does not make a final decision within the required 60 days, the application shall be deemed to be approved as submitted. c) An applicant claiming to be injuriously affected or aggrieved by an official action, order, requirement, interpretation, grant, refusal, or decision of the staff or planning commission in the administration of this ordinance may appeal the action to the Board of Zoning Appeals. Such appeal must be taken within 30 consecutive calendar days of the final action by the staff or planning commission. The appeal shall be filed with the staff along with an appeal fee of $100.00. The staff will fix a reasonable time for hearing the appeal and give public notice, as well as written notice to the appellant and the owner of right-of-way or property (if different from the jurisdiction) at least ten days prior to the hearing. Created: 2023-11-09 14:36:09 [EST] (Supp. No. 17) Page 11 of 13 d) An applicant claiming to be injured or aggrieved by any final action of the town rendered by the Board of Zoning Appeals may appeal from the final action to the Circuit Court of Knox County, Tennessee. Such appeal shall be taken within 30 days after such action. 3. Design standards for small cell support structures/DAS. The regulations in this subsection shall apply to small cell support structures and DAS. Temporary, mobile or wheeled cellular antenna structures shall not be permitted without prior approval from the staff or, where applicable, the planning commission. a) Monopole small cell support structures shall include stealth technology and shall not exceed the lesser of either the maximum building height for the zoning district within which they are located or three feet above the predominant height of the shortest Utility poles within 500 feet of the proposed monopole. Small cell support structures that involve replacing existing utility poles shall be subject to adhering to the height of the utility pole that is being replaced plus an additional three feet. Replacement utility poles that will more effectively accommodate a stealth technology shall be prioritized as part of the application review process. b) Non-tower wireless communication facilities that incorporate small cell support structures shall include stealth technology appropriate for the proposed location and context. With the exception of utility poles, non-tower wireless communications facilities shall not exceed the lesser of either the maximum building height permitted in the associated zoning district or ten feet above the height of the existing structure on which the small cell support structures are proposed. In relation to utility poles, non-tower wireless communications facilities shall not extend more than three feet above the predominant height of the shortest utility poles within 500 feet. c) Small cell support structures shall be designed and constructed to accommodate a minimum of two service providers. Based on the proposed location and context, this may be exempted for non-tower wireless communications facilities. d) Small cell support structures shall not interfere with other utilities, encroach onto or over sidewalks and other pedestrian or bicycle facilities, interfere with landscaping, visibility, or other matters of public safety. e) Small cell support structures proposed in an area with primarily underground utilities shall be placed underground with the exception of an antenna. all wiring shall be concealed within the pole and antenna and the antenna shall include stealth technology appropriate for the location and context. f) Small cell support structures proposed in an area with primarily overhead utilities shall apply stealth technology that is appropriate for the location and context. g) Where wiring to an antenna cannot be concealed within a utility pole (e.g., wooden poles), all wiring to the antenna shall be concealed within the most Stealth conduit possible that matches the color of the utility pole. h) Small cell support structures proposed on property zoned residential shall be encouraged to be non-tower wireless communication facilities (such as those contained behind building parapets or concealed within other existing structures) that include stealth technology appropriate for the location and context. i) Where an applicant can clearly demonstrate that employment of a non-tower wireless communication facility is not possible on a property zoned residential, all small cell support Created: 2023-11-09 14:36:09 [EST] (Supp. No. 17) Page 12 of 13 structures shall be placed underground. In all cases, antennas proposed on property zoned residential shall be concealed with concealment wrap or a similar application. j) Small cell support structures shall not be illuminated, except to fulfill certain state or federal regulations, or where illumination is integral to the stealth technology, such as a design intended to look like a street light pole. k) Small cell support structures shall not include advertisements and may only display information required by a federal, state, or local agency. Such display shall not exceed one square foot in area, unless required by state or federal regulations, or unless a larger display is integral to the stealth technology. Such display shall not exceed the width of the pole, unless a wider sign is integral to the stealth technology such as a design which integrates a decorative banner. l) The use of cooling fans is discouraged. When needed, fans with lower noise profiles must be used. m) Small cell support structures shall not be located within 500 feet of an existing small cell support structure unless an applicant can clearly demonstrate that such distance prohibits the carrier's ability to provide service. Multiple carriers are permitted and encouraged to locate on one small cell support structure, where possible. n) Reasonable efforts shall be made by the applicant and assessed as part of the application review process to locate new small cell support structures in the order of hierarchy below, based on the following functional roadway classification from the most to least preferred: Interstate Arterial Collector Local o) Reasonable efforts shall be made by the applicant and assessed as part of the application review process to locate new small cell support structures based on the following hierarchy of zones and land uses from the most to least preferred: Commercial Institutional Public parks Agricultural Residential H. Factors to consider in evaluation of applications. As part of Staff and Planning Commission review of Applications filed for telecommunications facilities, the conformity of the Application with the foregoing requirements, including but not limited to the following, shall apply: 1. The application is consistent with the objectives of this ordinance. 2. The adequacy of the proposed site, considering such factors as the sufficiency of the size of the site to comply with the established criteria, the configuration of the site, and the extent to which the site is formed by logical boundaries (e.g., topography, natural features, streets, relationship of adjacent uses, etc.) that provide for the ability to comply with the provisions of this ordinance. Created: 2023-11-09 14:36:09 [EST] (Supp. No. 17) Page 13 of 13 3. The extent to which the proposal responds to the impact of the proposed development on adjacent land uses, especially in terms of visual impact. 4. The extent to which the proposed telecommunications facility is camouflaged (i.e., use of stealth technology). 5. The extent to which the proposed facility is integrated with existing structures (i.e., buildings, signs, utility poles, etc.). 6. An applicant's compliance with all town requirements with respect to previous applications. I. Amendments to approved plans. Amendments to approved plans shall be reviewed by the Staff once the Application for the associated amendment is deemed complete and, where applicable, forwarded to the Planning Commission for consideration and approval. Evaluation of the amendment shall be based on the applicable criteria of this Ordinance. (Ord. No. 86-16, 4-1986; Ord. of 2-2006; Ord. No. 17-08, § 1, 4-27-2017) CHAPTER 17.46 WIRELESS TELECOMMUNICATIONS ANTENNAS AND FACILITIES §17.46.010.Purpose and objectives. (Prior code §9320;Ord. 155 §18, 1996;Ord. 253 §4, 2003) §17.46.020.Site plan review. A site plan review permit, pursuant to Section 17.62.040, shall be obtained prior to erecting a wireless telecommunications antenna and/or facility in any non-residential zoning district (except for the public open space and recreational vehicle park zoning districts) or in any public right-of-way regardless of zoning district, if such wireless telecommunications antenna and/or facility complies with the general requirements set forth in Section 17.46.060 and the most restrictive design standards set forth in Section 17.46.070. In addition to the site plan review permit, an encroachment permit shall be obtained for all wireless telecommunication antennas and facilities to be located in any public right-of-way. (Prior code §9321;Ord. 155 §18, 1996;Ord. 253 §4, 2003) §17.46.030.Conditional use permit. A conditional use permit, pursuant to Chapter 17.66, shall be obtained prior to erecting wireless telecommunication antennas and/or facilities within any rural residential, public open space, or recreational vehicle park zoning districts (unless the antenna and/or A.Purpose. The purpose and intent of this chapter is to provide a uniform and comprehensive set of standards for the development, siting and installation of wireless communication facilities and antennas. The regulations contained herein are designed to protect and promote the public health, safety and community welfare and the aesthetic quality of the city as set forth within the goals, objectives and policies of the general plan, while at the same time providing for managed development of wireless communications infrastructure in accordance with the guidelines and intent of the Telecommunications Act of 1996. B.Objectives. Recognizing the city's roles as regulator, service provider, facilitator and user, it is intended that the city shall apply these regulations in furtherance of the following goals and policy objectives, including but not limited to: 1.To retain control of private and public property within the confines of state and federal legislation to regulate wireless telecommunications services. 2.To facilitate the creation of an advanced wireless telecommunications infrastructure for citizens, businesses, industries and schools. 3.To protect the city from potential adverse effects of wireless telecommunications facility development. 4.Ensure that the wireless telecommunications infrastructure is designed to enhance and not interfere with the city's emergency response network. City of Malibu, CA §17.46.010 §17.46.030 Downloaded from https://ecode360.com/MA5043 on 2024-03-28 facility is to be erected in a public right-of-way and it complies with the general requirements set forth in Section 17.46.060 and the most restrictive design standards set forth in Section 17.46.070), or within any other non-residential zoning district if the proposed wireless telecommunications antenna and/or facility does not comply with the most restrictive design standards set forth in Section 17.46.070. Any wireless telecommunication antennas and/or facilities conditionally approved pursuant to this section shall comply with the general requirements set forth in Section 17.46.060. The conditional use permit shall be reviewed by the city based solely upon the location, design and other criteria of this chapter, as well as for consistency with the general plan and the health, safety and welfare of the public. (Prior code §9322;Ord. 155 §18, 1996;Ord. 253 §4, 2003) §17.46.040.Definitions. "ANSI/IEEE standards"means American National Standards Institute. A private organization that develops widely accepted standards for many pieces of modern day equipment. "Antenna"means a typically metallic device used for radiating or receiving radio waves. "Antenna, building mounted sites"means antennas which are located and/or mounted on an existing building's exterior walls. "Antenna equipment"means a cabinet, room, or similar structure which houses the electronic facilities used to operate an antenna. "Antenna, ground mounted sites"means antennas which are located and/or mounted on a pole, attached to the ground level and are, otherwise, freestanding. These antennas do not use a building or ancillary structures for mounting purposes. "Antenna height"means the vertical distance from the existing or proposed grade, whichever is lower, to the top of the antenna or its support structure. "Antenna, Roof-Mounted"means an antenna, and its associated support structure, that is attached to a roof of a building or similar structure. "Personal Communication Services (PCS)"is Federal Communication Commission (FCC) terminology describing intelligent, digital wireless, personal two-way communication systems. A broad range of telecommunications services that enable people and devices to communicate independent of location. PCS networks and devices operate over a wide range of frequencies assigned and authorized by the FCC. "Wireless telecommunications antennas"means a device used to transmit and/or receive radio or electromagnetic waves between terrestrial and/or orbital based systems, including but not limited to directional, omni-directional and parabolic antennas. This excludes non-commercial antennas, radio and television signals, and non-commercial satellite dishes. "Wireless telecommunications facilities"means an installation that sends and/or receives radio frequency signals, including but not limited to directional, omnidirectional and parabolic antennas, structures or towers to support receiving and/or transmitting devices, cabinets, equipment rooms, accessory equipment and other structures, and the land or City of Malibu, CA §17.46.030 §17.46.040 Downloaded from https://ecode360.com/MA5043 on 2024-03-28 structure on which they are all situated. The term does not include mobile transmitting devices, such as vehicle or hand held radios/telephones and their associated transmitting antennas. (Prior code §9323;Ord. 155 §18, 1996;Ord. 253 §4, 2003) §17.46.050.Health and safety. (Prior code §9324;Ord. 155 §18, 1996;Ord. 253 §4, 2003) §17.46.060.General requirements. The following general requirements apply at all times to all wireless telecommunications facilities located in all zoning districts: A.No wireless telecommunications facility shall be sited or operated in such a manner that it poses, either by itself or in combination with other such facilities, a potential threat to public health. To that end, no facility or combination of facilities shall produce at any time power densities in any inhabited area that exceed the FCC's Maximum Permissible Exposure (MPE) limits for electric and magnetic field strength and power density for transmitters or any more restrictive standard subsequently adopted or promulgated by the city, county, the State of California, or the federal government. B.Failure to remain in continued compliance with the MPE limits shall be grounds for revocation of the discretionary permit. A.Each facility must comply with any and all applicable provisions of the Malibu Municipal Code, including but not limited to provisions of the Uniform Building Code, National Electric Code, Uniform Plumbing Code, Uniform Mechanical Code, and Uniform Fire Code, and any conditions of approval imposed as part of the approval process. B.Each facility must comply with any and all applicable regulations and standards promulgated or imposed by any state or federal agency, including, but not limited to, the Federal Communications Commission and the Federal Aviation Administration. C.The facility must at all times comply with all applicable health requirements and standards pertaining to radio frequency emissions. D.Interference with city communications systems is prohibited. All proposed facility applications shall include reports, as required by the Los Angeles County Fire Department, to evaluate potential interference. The applicant shall be responsible for any costs incurred by the city, including the costs of retaining consultants, to review and analyze the reports. E.Freestanding wireless telecommunication facilities, including towers, lattice towers, and monopoles, shall not exceed 28 feet in height and shall not extend higher than the top of the ridgeline nearest the antenna. The height of a freestanding facility shall be measured from the natural undisturbed ground surface below the City of Malibu, CA §17.46.040 §17.46.060 Downloaded from https://ecode360.com/MA5043 on 2024-03-28 center of the base of the tower itself to the tip of the highest antenna or piece of equipment attached thereto. F.Building-mounted wireless telecommunication facilities shall not exceed 28 feet in height. However, antenna elements, mounted flush on the facade of an existing structure that exceeds 28 feet, may have a height equal to the height of the building. Roof-mounted antennas may extend no more than three feet above the roof from which they are attached. Associated roof-mounted equipment cabinets shall not extend more than five feet above the roof from which it is attached and shall be set back a minimum of 10 feet from the edge of the roof. All roof-mounted equipment cabinets shall be located behind a mechanical screen wall. In the event that a roof parapet wall screens the equipment cabinets, a mechanical screen wall will not be required. G.Not more than one ground-mounted antenna site, excluding licensed amateur radio station antennas, shall be permitted on each site. H.Wireless telecommunication facilities and antennas shall be co-located on existing poles or other facilities when possible. No permittee shall restrict access to an existing antenna location if required to colocate by the city, and if possible to do so. I.All electrical support equipment located within cabinets, shelters, or similar structures shall be screened from public view. Roof-mounted electrical support equipment shall be discouraged. Ground-mounted electrical support equipment shall be encouraged. In addition, under grounding of support equipment is required wherever practicable. J.When possible, wireless telecommunication facilities will be located on existing utility poles provided the antennas do not exceed the height of the utility poles and provided a less intrusive alternative is not available. K.All antennas shall meet the minimum siting distances to habitable structures required for compliance with Federal Communications Commission (FCC) regulations and standards governing the environmental effects of radio frequency emissions. L.All antennas shall be located such that any person walking adjacent to the transmitting surface of the antenna will be walking on a grade that is a minimum of eight and one-half feet below the transmitting surface. M.Lighting of antenna structures and their electrical support equipment is prohibited, except as required by any order or regulation of the Federal Communications Commission (FCC) or the Federal Aviation Administration (FAA) and except for manually operated emergency lights for use when official operating personnel are on site. N.No wireless telecommunication facility shall be located within 500 feet of any school ground, playground or park unless a finding is made, based on technical evidence acceptable to the planning manager, as appropriate, showing a clear need for the facility and that no technically feasible alternative site exists. City of Malibu, CA §17.46.060 §17.46.060 Downloaded from https://ecode360.com/MA5043 on 2024-03-28 (Prior code §9325;Ord. 155 §18, 1996;Ord. 253 §4, 2003) §17.46.070.Most restrictive design criteria. In addition to all other requirements set forth in this chapter, all wireless telecommunications facilities shall meet the following design requirements: O.Except for facilities co-located on the same pole or tower; wireless telecommunication facilities located within any residential zone district, except for those facilities placed on utility poles located along Pacific Coast Highway, shall not be located within 600 feet of any other wireless telecommunications facility, unless a finding is made, based on technical evidence acceptable to the planning manager, as appropriate, showing a clear need for the facility and that no technically feasible alternative site exists. This provision shall not apply to wireless telecommunication facilities located within any commercial zone district. A.Facade-mounted antennas and equipment shall be architecturally integrated into the building design and otherwise made as unobtrusive as possible. If possible, antennas should be located entirely within an existing or newly created architectural feature so as to be completely screened from view. Facade-mounted facilities shall generally not extend more than 18 inches out from the building face. B.Ground-mounted wireless telecommunication facilities shall be located near existing structures or trees at similar heights for screening purposes where feasible. C.All wireless telecommunication facilities shall be designed to minimize the visual impact to the greatest extent feasible by means of placement, screening, camouflaging, painting and texturing and to be compatible with existing architectural elements, building materials and other site characteristics. The applicant shall use the smallest and least visible antennas possible to accomplish the coverage objectives. D.All antennas and support structures shall be painted and/or textured to achieve architectural compatibility with the structures for which they are attached and/or located. If ground mounted, the antennas and support structure shall be painted, textured, landscaped or otherwise camouflaged as much as possible to integrate the structure into the environment. Colors and materials for facilities shall be non- reflective and chosen to minimize visibility to the greatest extent feasible. E.All wireless telecommunication facilities shall be designed to prevent unauthorized climbing. F.Roof-mounted antennas and necessary equipment shall be screened from above if visible from higher elevations. G.Satellite dish or parabolic antennas shall be situated as close to the ground as possible to reduce visual impact without compromising their function. H.Where appropriate, facilities shall be installed so as to maintain and enhance existing landscaping on the site, including trees, foliage and shrubs, whether or not utilized for screening. City of Malibu, CA §17.46.060 §17.46.070 Downloaded from https://ecode360.com/MA5043 on 2024-03-28 (Prior code §9326;Ord. 155 §18, 1996;Ord. 253 §4, 2003) §17.46.080.Standard conditions of approval. Each wireless telecommunications antenna and/or facility which is approved through either the site plan review process or a conditional use permit shall be subject to the following standard conditions of approval, in addition to any other condition deemed appropriate by the reviewing authority: I.All monopoles and lattice towers shall be designed to be the minimum functional height and width required to support the proposed antenna installation. Freestanding monopoles in highly visible locations shall incorporate stealth techniques to minimize their prominence. J.Support equipment pads, cabinets, shelters and buildings require architectural, landscape, color, fencing, or other camouflage treatment to minimize visual impacts to the extent deemed necessary by the Planning Manager. Landscaping screening should also be provided if irrigation water is available. K.No freestanding facility such as a monopole, lattice tower, or similar structure including ancillary support equipment may be located between the face of a building and a public street, bikeway or park. L.No wireless telecommunications facility shall emit a noise greater than 50 decibels (dB) as measured from the base of the facility. A.The wireless telecommunications antenna and/or facility shall be erected, operated, and maintained in compliance with the general requirements of Section 17.46.060 and, if applicable, with the most restrictive design standards set forth in Section 17.46.070. B.Within 30 calendar days following the installation of any wireless telecommunications antenna and/or facility, the applicant shall provide FCC documentation to the planning manager that the unit has been inspected and tested in compliance with FCC standards. Such documentation shall include the make and model (or other identifying information) of the unit tested, the date and time of the inspection, and a certification that the unit is properly installed and working within applicable FCC standards. C.The installation of any wireless telecommunications antenna and/or facility shall be in compliance with all applicable state and local building, electrical, and mechanical codes. D.Any substantial change in the type of antenna and/or facility installed in a particular location shall require the prior approval of the planning manager. E.The applicant shall pay to the city a permit compliance fee in an amount to be established by resolution of the city council. F.Co-location of wireless telecommunications antennas and facilities pursuant to Section 17.46.090 shall be required whenever it is feasible to do so. City of Malibu, CA §17.46.070 §17.46.080 Downloaded from https://ecode360.com/MA5043 on 2024-03-28 (Prior code §9327;Ord. 155 §18, 1996;Ord. 253 §4, 2003) §17.46.090.Locating antennas at existing sites. An effort should be made to locate new wireless telecommunications antennas and facilities on existing grandfathered or conforming facilities when feasible. (Prior code §9328;Ord. 155 §18, 1996;Ord. 253 §4, 2003) §17.46.100.Minimum application requirements. In addition to meeting standard application submittal requirements for discretionary permits, detailed in other chapters in this title, all wireless telecommunication facility carriers or providers shall provide the information listed below. As used herein, "Wireless telecommunication facility", "wireless facility", "telecommunication facility", or simply "facility", means an installation that sends and/or receives radio frequency signals, including but not limited to directional, omnidirectional and parabolic antennas, structures or towers to support receiving and/or transmitting devices, cabinets, equipment rooms, accessory equipment and other structures, and the land or structure on which they are all situated. The term does not include mobile transmitting devices, such as vehicle or hand held radios/telephones and their associated transmitting antennas. The planning manager may waive certain submittal requirements or require additional information based on specific project factors. A.Visual impact demonstration. A visual impact analysis shall be provided showing the maximum silhouette and proposed or required screening. The visual impact analysis shall include photo simulations and any required photo overlays, scaled models or architectural renderings necessary to determine visual impact. A map depicting where the photos were taken shall be included. B.Narrative. The applicant shall submit a narrative that addresses each of the following paragraphs and subparagraphs. The narrative shall be organized according to subject headings that match those in the paragraphs and subparagraphs listed below. 1.Antennas/Equipment. List the number of proposed antennas and base transceiver stations and/or equipment cabinets and any existing facilities on the site. As used herein, "Antenna" means a device used to transmit and/or receive radio or electromagnetic waves between terrestrial and/or orbital based systems. 2.Location. Describe the location and type of antenna installations (stand-alone rooftop, rooftop attached to a mechanical penthouse, building façade, or existing utility towers and poles) and location of the base transceiver station(s), equipment cabinets and/or buildings. 3.Height. List the height of the antenna installation. Carriers must provide documentation that establishes that the proposed facilities have been designed to the minimum height required from a technological standpoint for the proposed site. City of Malibu, CA §17.46.080 §17.46.100 Downloaded from https://ecode360.com/MA5043 on 2024-03-28 4.Radio frequency. List the radio frequency range in megahertz and list the wattage output of the equipment. 5.Radio frequency emissions. Provide a report listing the effective radiated power generated by the proposed facility. The report shall identify exposure levels for both controlled and uncontrolled areas where the levels are projected to be highest. 6.FCC compliance. Provide documentation certifying all applicable licenses or other approvals required by the Federal Communications Commission to provide the services proposed have been obtained. 7.Maintenance. Describe the anticipated maintenance and monitoring program for the facility. 8.Noise/acoustical information. Provide noise and acoustical information for equipment such as air conditioning units and back-up generators. 9.Site selection process. Provide a map and narrative description explaining the site selection process including information about other sites considered and reason for their rejection. This information is necessary to determine whether there will be a significant gap in coverage if the project is not approved or whether alternatives exist for providing coverage. 10.Geographic service area. Identify the geographic service area for the subject installation, including a map showing the site and the associated "next" cell sites within the network. Describe the distance between cell sites. Describe how this service area fits into and is necessary for the company's service network. Illustrate the geographic area in which the facility could be located showing all other sites that could be used for antenna location. This information is necessary to determine whether there will be a significant gap in coverage if the project is not approved or whether alternatives exist for providing coverage. 11.Preferred location sites. Each application shall identify the location preference, listed in Section 17.46.120 that the proposed facility is meeting. If the proposed location is not a preferred location, the applicant shall provide a list (by address and Assessor's Parcel Number) and a map at 1:200 scale of all preferred location sites within the service area; what good faith efforts and measures were taken to secure each other of these preferred location sites; describe why each such site was not technologically, legally or economically feasible and why such efforts were unsuccessful; how and why the proposed site is essential to meet service demands for the geographic service area and the citywide network. This information is necessary to determine whether there will be a significant gap in coverage if the project is not approved or whether alternatives exist for providing coverage. 12.Preferred mounting technique. Each applicant shall identify the antenna mounting preference, listed in Section 17.46.110 the proposed facility is City of Malibu, CA §17.46.100 §17.46.100 Downloaded from https://ecode360.com/MA5043 on 2024-03-28 meeting. If the proposed mounting technique is not a preferred technique, the applicant shall provide a list (by address and Assessor's Parcel Number) and a map at 1:200 scale of all such buildings/sites within the service area; what good faith efforts and measures were taken to secure each of these preferred mounting location/sites; describe why each such site was not technologically or legally feasible and why such efforts were unsuccessful; and how and why the proposed site is essential to meet service demands for the geographic service area and the citywide network. 13.Cumulative effects. Identify the location of all the applicant's antennas and backup facilities and location of other wireless telecommunications facilities on and near the property; include the following: a.Height. The height of all existing and proposed wireless telecommunications facilities on the property, shown in relation to the height limit for the zoning district; b.Antennas. The dimension of each existing and proposed antenna, base transceiver station, equipment cabinet and associated building and backup equipment on the property; c.Power rating. The power rating for all existing and proposed backup equipment; d.Total watts. The total number of watts per installation and the total number of watts for all installations on the building (roof or side); e.Facilities within 500 feet. The number and types of wireless telecommunication facilities within 500 feet of the proposed site and provide estimates of the cumulative electromagnetic radiation emissions at the proposed site. C.Co-location agreement. All wireless telecommunications carriers shall provide a letter stating their willingness to allow other carriers to co-locate on their facilities wherever technically feasible. When determined to be technically feasible and appropriate, the planning manager may require unutilized space to be made available for co-location of other wireless telecommunications facilities, including space for entities providing similar, competing services. Co-location is not required in cases where the addition of the new service or facilities would cause quality of service impairment to the existing facility or if it becomes necessary for the host to go off-line for a significant period of time. As used herein, "Co-location" means an arrangement whereby multiple wireless communication devices share the same structure or site. D.Planned facilities. The applicant shall provide a list of planned or anticipated facilities within the city, and their anticipated construction schedules. The planning manager may require concurrent processing of planned facilities. E.Independent consultant. At the discretion of the planning manager and as reasonably required, the applicant may be required to provide an authorization City of Malibu, CA §17.46.100 §17.46.100 Downloaded from https://ecode360.com/MA5043 on 2024-03-28 (Ord. 253 §4, 2003) §17.46.110.Preferred antenna siting and mounting techniques. The following antenna and equipment siting and mounting techniques are preferred: (Ord. 253 §4, 2003) §17.46.120.Location. Location preference for wireless communications facilities should be given to: waiver to permit the city to hire an independent, qualified consultant to evaluate any technical aspect of the proposed telecommunications facility, including, but not limited to, compliance with applicable federal emission standards, potential for interference with existing or planned public safety emergency response telecommunications facilities, or analysis of feasibility of alternate sites, screening methods or devices. Any authorization for this purpose shall include an agreement by the applicant to reimburse the city for all reasonable costs associated with the consultation. Any proprietary information disclosed to the city or the consultant is hereby deemed not be a public record, shall remain confidential, and not be disclosed to any third party without the express consent of the applicant. F.Other information. Any other relevant information as required by the planning manager. A.Facade mounted antennas that meet the visual requirements specified in this title. B.Roof mounted antennas that are not visible to the public. C.Existing monopoles or freestanding towers, utilizing stealthing techniques. D.Existing utility poles located within the public right-of-way. E.Monopoles or freestanding towers that utilize stealthing techniques. A.Co-location sites. Co-located and multiple-user wireless telecommunications facilities will be required when, in the determination of the planning manager, it is technically feasible and appropriate and will minimize overall visual impact to the community. B.Property designated non-residential (except for public open space and recreational vehicle park zoning districts), unless otherwise prohibited pursuant to this title. C.Facilities attached or sited adjacent to existing structures. Whenever possible, facilities shall be located on and/or inside existing structures. Appropriate types of existing structures may include, but are not limited to: buildings, water tanks, telephone poles and utility towers and poles, sign standards, traffic signals, light standards and roadway overpasses. D.Sites that are not highly visible from adjacent roadways. E.Sites with minimum separation. When co-location is determined to be infeasible by City of Malibu, CA §17.46.100 §17.46.120 Downloaded from https://ecode360.com/MA5043 on 2024-03-28 (Ord. 253 §4, 2003) §17.46.130.Indemnity and liability for damages. (Ord. 253 §4, 2003) §17.46.140.Cessation of use or abandonment. All improvements, including foundations and appurtenant ground wires, shall be removed from the property and the site restored to its original pre-installation condition within 90 days of cessation of operation or abandonment of the facility. (Ord. 253 §4, 2003) §17.46.150.Permit, review, renewal and revocation procedure. the planning manager, sites that are more than 500 feet from school grounds, playgrounds or parks and which are more than 450 feet from any other existing wireless facility within any residential zone district, except for those facilities placed on utility poles located along Pacific Coast Highway. F.Unless otherwise indicated in this title, no telecommunication facility shall be installed on an exposed ridgeline unless the facility blends with the surrounding existing natural and man-made environment and a finding is made that no other location is technically feasible. A.The wireless telecommunications facility provider shall defend, indemnify, and hold harmless the city or any of its boards, commissions, agents, officers, and employees from any claim, action or proceeding against the city, its boards, commission, agents, officers, or employees to attack, set aside, void, or annul, the approval of the project when such claim or action is brought within the time period provided for in applicable state and/or local statues. The city shall promptly notify the provider(s) of any such claim, action or proceeding if the city bears its own attorney's fees and costs, and the city defends the action in good faith. B.Wireless telecommunications facility operators shall be strictly liable for interference caused by their facilities with city communications systems. The operator shall be responsible for costs for determining the source of the interference, all costs associated with eliminating the interference (including but not limited to filtering, installing cavities, installing directional antennas, powering down systems, and engineering analysis), and all costs arising from third party claims against the city attributable to the interference. A.The city finds that the technology associated with telecommunications equipment is subject to rapid changes and upgrades as a result of industry competition and customer demands, and anticipate that telecommunications antennas and related equipment with reduced visual impacts will be available from time to time with comparable or improved coverage and capacity capabilities. The city further finds that it is in the interest of the public health, safety, and welfare that telecommunications providers be required to replace older facilities with newer equipment of equal or greater capabilities and reduced visual impacts as City of Malibu, CA §17.46.120 §17.46.150 Downloaded from https://ecode360.com/MA5043 on 2024-03-28 (Ord. 253 §4, 2003) §17.46.160.Exempt telecommunications facilities. technological improvements become available. Therefore, any modifications requested to an existing facility for which a permit issued pursuant to this title authorizing establishment of a wireless telecommunications facility shall permit the planning manager to review the carrier's existing facility to determine whether requiring newer equipment or applying new screening techniques that reduce visual impacts is appropriate if technically feasible. B.At any time, the planning manager may initiate proceedings to revoke a permit issued pursuant to this title. Grounds for revocation shall be limited to a finding that the owner or operator has abandoned the facility, the facility is no longer in compliance with either the general requirements or design standards of this title, the conditions of approval and the owner or operator has failed to bring the facility into compliance within 90 days after a notice has been sent by the planning manager requiring the facility to be brought into compliance, the facility is no longer in compliance with applicable FCC or FAA regulations, the facility has not been upgraded to reduce or minimize its impact to the extent reasonably permitted by the technology available at the time of any requested modifications, or if the planning manager determines that revocation would be in the best interest of the public health, safety, or welfare. A.Installation of the following antennas and/or appurtenant equipment which complies with all applicable health requirements and standards pertaining to RF emissions is exempt from the provisions of this chapter subject to any conditions included below: 1.Antennas designed to receive video programming signals from direct broadcast satellite (DBS) services, residential fixed wireless communications, multi-channel multi-point distribution providers (MMD) or television broadcast stations in all zoning districts are exempted, provided that all of the following conditions are met: a.The antenna is accessory to an existing use and measures 39 inches (one meter) or less in diameter. b.The antenna is installed in a location where it is not readily visible from the public right-of-way. c.The antenna shall not be located within a required setback area, driveway or parking space. 2.Amateur radio antenna (including ham and short wave) provided the antenna does not exceed the maximum building height for the zoning district in which it is located by more than 15 feet. 3.Telecommunications facilities exempt from the provisions of this chapter by operation of state or federal law. City of Malibu, CA §17.46.150 §17.46.160 Downloaded from https://ecode360.com/MA5043 on 2024-03-28 (Ord. 253 §4, 2003) B.The determination of whether or not a proposed facility meets the requirements for an exemption is at the discretion of the planning manager. The planning manager may require that the application be processed as a site development permit or conditional use permit if the requirements of this section cannot be met. City of Malibu, CA §17.46.160 §17.46.160 Downloaded from https://ecode360.com/MA5043 on 2024-03-28 RESOLUTION NO.21-17 A RESOLUTION OF THE CITY OF MALIBU ADOPTING ENGINEERING, DESIGN AND LOCATION STANDARDS,CONDITIONS OF APPROVAL AND BASIC APPLICATION REQUIREMENTS FOR WIRELESS COMMUNICATIONS FACILITIES ON LAND OTHER THAN PUBLIC RIGHT-OF-WAY;AND FINDING THE SAME EXEMPT FROM THE CALIFORNIA ENVIRONMENTAL QUALITY ACT The City Council of the City of Malibu does hereby find,resolve and order as follows: SECTION 1.Recitals A.Malibu Municipal Code (MMC)Chapter 17.46 governs the permitting,installation, and regulation of wireless communications facilities in the City,other than those in the public right-of-way,which are subject to MMC Chapter 12.02. B.Section 17.46.060(D)provides that “[a]ll applicants shall engineer,design and locate the wireless communications facilities in accordance with the standards and wireless regulations set forth separately though the resolution adopted by the City Council.” C.Being authorized to do so,the City wishes to establish engineering,design and development standards applicable to wireless installations. D.The City also wishes to set standard conditions of approval and basic application requirements applicable to wireless permits. E.On April 12,2021 the City Council conducted a duly noticed public hearing and received testimony from City staff and all interested parties regarding the and the standards, conditions and requirements. SECTION 2.Purpose.The purpose of this document is to (1)establish design and location standards (Standards)for wireless communications facilities on land other than public right-of- way;(2)set standard conditions of approval for Wireless Permits (WPs);and (3)set basic application requirements for WPs. SECTION 3.Definitions.For the purposes of these Standards,the definitions set forth in Malibu Municipal Code (MMC)Section 17.46.040 are incorporated by reference into this Resolution and in addition the following definitions apply: A.“Park”A parcel,parcels of land or a portion of a parcel intended for active public recreation uses.Parks may include sports fields,playgrounds community buildings and unique or specialized activity areas.Land dedicated for open space and trails are not considered parks for the purposes of this Chapter. Resolution No.21-17 Page 2 of 27 B.“Playground”A portion of land used for and equipped with public facilities for recreation specially by children.A playground includes the sand or rubberized floor around the apparatus. C.“Pole-mounted facility”means a wireless communications facility that is, or is proposed to be,attached to or contained in a pole. D.“School”any building,campus or sports field which is designed, constructed or used for education,instruction or school sports,whether public or private,in any branch of knowledge. E.“Stealth facility”(or “stealth facilities”)means a wireless communications facility designed to look like something other than a wireless tower or base station. SECTION 4.General Standards for all Facilities The following general requirements apply at all times to all wireless communications facilities located in all zoning districts: A.All wireless communications facilities shall be engineered and designed to minimize the visual impact by means of placement,screening, camouflaging,painting and texturing and to be compatible with existing architectural elements,building materials and other site characteristics.The applicant shall use the smallest and least visible antenna possible to accomplish the facility’s objectives.All antennas and support structures shall be painted and/or textured to achieve architectural compatibility with the structures for which they are attached and/or located. B.Each facility must comply with any and all applicable provisions of the Malibu Municipal Code,including but not limited to provisions of the California Building Code,California Electric Code,California Plumbing Code,California Mechanical Code,and California Fire Code, and any conditions of approval imposed as part of the approval process. C.Each facility must comply with any and all applicable regulations and standards promulgated or imposed by any state or federal agency,including, but not limited to,the Federal Communications Commission (FCC)and the Federal Aviation Administration (FAA).Further,all wireless communications facilities,associated equipment and services shall comply with Americans with Disabilities Act (ADA)requirements. D.Fire and Electrical Safety Standards.All wireless communications facilities shall contain: 1.Surge protection for lightning discharge or other significant electrical disturbances;and Resolution No.21-17 Page 3 of 27 2.Signage as required by the permit conditions,the National Electric Code or the Los Angeles County Fire Department Chief or their designee. E.The facility must at all times comply with all applicable health requirements and standards pertaining to radio frequency emissions. F.All antennas shall meet the minimum siting distances to habitable structures required for compliance with FCC regulations and standards governing the environmental effects of radio frequency emissions. G.Noise.Wireless communications facilities and equipment must comply with the City’s noise ordinance in MMC Chapter 8.24,or any successor provisions,and be designed to prevent noise and sound from being plainly audible at a distance of fifty (50)feet from the facility or within ten (10) feet of any residence. H.Signs.No facility may display any signage or advertisement unless it is expressly allowed by this paragraph,necessary for stealth concealment purposes,or required by law or a permit condition.Every facility shall at all times display signage that accurately identifies the facility owner and provides the owner’s unique site number and a local or toll-free telephone number to contact the facility owner’s operations center. Landscaping.Where appropriate,facilities shall be installed so as to maintain and enhance existing landscaping on the site,including trees, foliage and shrubs,whether or not utilized for screening.In addition to any landscaping used for concealment or screening purposes,the applicant shall replace any existing landscaping displaced during construction or installation ofthe applicant’s facility.The applicant’s landscaping plan shall be subject to the City’s review and approval but shall,at a minimum,match the existing landscaping and foliage surrounding the installation site consistent with MMC Section 17.53.090.The permittee shall ensure that any vegetation allowed to remain in place under the Fire Code,including vegetation provided for screening,is properly maintained and watered. J.All electrical support equipment located within cabinets,shelters,or similar structures shall be screened from public view.Roof-mounted electrical support equipment shall be discouraged.Ground-mounted electrical support equipment shall be encouraged.In addition,under grounding of support equipment is required wherever practicable. K.All antennas shall be located such that any person walking adjacent to the transmitting surface of the antenna will be walking on a grade that is a minimum of eight and one-half feet below the transmitting surface. Resolution No.21-17 Page 4 of 27 L.Lighting of antenna structures and their electrical support equipment is prohibited,except as required by any order or regulation of the FCC or the FAA and except for manually operated emergency lights for use when official operating personnel are on site. M.A backup power supply must be required for all new wireless communications facilities to the extent allowed by law and in compliance with California Fire Code 1206.2.2. SECTION 5.Location Standards for All Facilities The location standards for all wireless communications facilities,other than those that qualify as eligible facilities requests,are as follows: A.No wireless telecommunication facility shall be located within five hundred (500)feet of any school,playground,or park unless a finding is made,based on technical evidence acceptable to the reviewing authority showing a clear need for the facility and that no technically feasible alternative site exists. Except for facilities installed on the same pole or tower as an existing wireless telecommunication facility,wireless telecommunication facilities located within any residential zone district shall not be located within one thousand (1,000)feet of any other wireless communications facility,except from those facilities placed on utility poles along Pacific Coast Highway, unless a waiver is granted. B.All new freestanding wireless communications facilities and monopoles shall be set back a minimum distance of at least one hundred and twenty (120)percent of the height of the facility or monopole from any property line abutting a residentially zoned property.This minimum setback is not subject to the waivers allowed under Section 7 of this Resolution. C.Location preference for wireless communications facilities should be given to the following: 1.Property designated non-residential (except for public open space and recreational vehicle park zoning districts),unless otherwise prohibited pursuant to this title. 2.Facilities attached or sited adjacent to existing structures.Whenever possible,facilities shall be located on and/or inside existing structures.Appropriate types of existing structures may include,but are not limited to:buildings,water tanks,telephone poles and utility towers and poles,sign standards,light standards and roadway overpasses. 3.Sites with minimum separation.Sites that are more than five hundred (500)feet from school,playgrounds,and parks. Resolution No.21-17 Page 5 of 27 4.Sites that are not highly visible from adjacent roadways. 5.Unless otherwise indicated in MMC Chapter 17.46 or these Standards,no wireless facility shall be installed on an exposed ridgeline unless the facility blends with the surrounding existing natural and man-made environment and a finding is made that no other location is technically feasible. 6.The City expressly designates residential,public open space and recreational vehicle park zoning districts,parks and schools as the least appropriate possible locations,and the absolute last choices for siting. SECTION 6.Engineering and Design Standards for all Facilities The general design standards for wireless communications facilities subject to MMC Chapter 17.46 are as follows: A.Basic Requirements.The proposed wireless facility and its supporting structure (if needed)shall be limited to the minimum size necessary to serve the defined service objectives of the wireless service provider or providers that will be using the facility,except where a larger facility has superior concealment elements. B.Materials.The materials used shall be non-reflective and non-flammable. C.Cabinet doors and other openings must be designed to stay securely closed, and openings in all facilities shall be shielded or made the smallest size feasible to protect against fire and wind-blown embers. D.The tower,or other support structure,and all equipment shall be designed to withstand forces from seismic events.To that end,all wireless facility sites must be built to the applicable standards of Hardening Requirements including but not limited to APCO ANSI 2.106.1—2019,or their replacements.The telecommunications tower,pole or structure when fully loaded with antennas,transmitters,and other equipment and camouflaging shall be designed as determined by the Building Official.All equipment mounting racks and equipment used shall be anchored in such a manner that such a quake will not tip them over,throw the equipment off its shelves,or otherwise act to damage it. E.All connections between various components of the facility,power lines, and conduit shall be designed in a manner to protect against damage by a natural disaster,a vehicular accident,an act of vandalism or similar external forces. F.Stealth.The wireless facility shall be stealth.Stealth elements and techniques should be used to blend the facility with surrounding materials Resolution No.21-17 Page 6 of 27 and colors of the support structure and make the facility appear to be something other than a wireless facility.Stealth elements include,but are not limited to,the following: 1.Radio frequency (RF)transparent screening or shrouds; 2.Matching the color of the existing support structure by painting, coating,or otherwise coloring the wireless facility,equipment, mounting brackets,and cabling; 3.Placing cables and wires inside the pole or beneath conduit of the smallest size possible; 4.Minimizing the size of the site; 5.Installing new infrastructure that matches existing infrastructure in the area surrounding the proposed site;and 6.Using paint of durable quality. 7.Built with weather-resistant materials while permitting weathered treatment for aesthetic reasons and to avoid reflective material. 0.Minimum Height.All antennas shall be located such that:(1)any person walking adjacent to the transmitting surface of the antenna will be walking on a grade that is a minimum of eight and one-half feet below the transmitting surface;and (2)no person at ground level will be exposed to an exposure level that is higher than allowed by the FCC’s general population exposure rules. H.Facade-Mounted Equipment.Facade-mounted antennas and equipment shall be architecturally integrated into the building,or other support structure,design and otherwise made as unobtrusive as possible so that the facility does not appear to be a wireless facility.Antennas and equipment should be located entirely within an existing or newly created architectural feature so as to be completely screened from view.Facade-mounted facilities shall generally not extend more than eighteen (18)inches out from and may not project above the building face.Façade-mounted wireless telecommunication facilities shall not exceed twenty-eight (28)feet in height above the ground.However,antenna elements,mounted flush on the facade of an existing structure that exceeds twenty-eight (28)feet,may have a height equal to the height of the building. Ground-Mounted Equipment.Outdoor ground-mounted equipment associated with base stations shall be avoided whenever feasible.In locations visible or accessible to the public,applicants shall conceal outdoor Resolution No.21-17 Page 7 of 27 ground-mounted equipment,including ancillary power generation equipment,with opaque fences or landscape features that mimic the adjacent structure(s)(including,but not limited to,dumpster corrals and other accessory structures)and by painting,texturing,or otherwise concealing the facility as much as possible.Ground-mounted wireless communications facilities shall be located near existing structures or trees at similar heights for screening purposes where feasible.Not more than one ground-mounted antenna,provided that licensed amateur radio station antennas consistent with MMC 1 7.46.020(B)(2),shall also be permitted on each site. J.Roof-Mounted Facilities.Roof-mounted antennas and necessary equipment shall be screened from above if visible from higher elevations.Rooftop- mounted wireless telecommunication facilities shall not exceed twenty- eight (28)feet in height or three (3)feet above the roof parapet from which they are attached,whichever is less restrictive.Associated roof-mounted equipment cabinets shall not extend more than three (3)feet above the roof from which it is attached and shall be set back a minimum of ten (10)feet from the edge of the roof.All roof-mounted equipment cabinets shall be located behind a mechanical screen wall.In the event that a roof parapet wall screens the equipment cabinets,a mechanical screen wall will not be required. K.Freestanding Facilities.Freestanding facilities requiring a new monopole or other new support structure shall be stealth facilities.Further,they shall be located as close as possible to existing above-ground utilities,such as electrical towers or utility poles (which are not scheduled for removal or under grounding for at least 18 months after the date of application),light poles,trees of comparable heights,and in areas where they will not detract from the appearance of the City. 1.Freestanding wireless telecommunication facilities,including monopoles,shall not exceed twenty-eight (28)feet in height and shall not extend higher than the top of the ridgeline nearest the antenna.The height of a freestanding facility shall be measured from the natural undisturbed ground surface below the center of the base of the tower itself to the tip of the highest antenna or piece of equipment attached thereto. 2.Aside from the antenna itself,no additional equipment may be visible.All cables,including,but not limited to,electrical and utility cables,shall be run within the interior of the freestanding facility and shall be camouflaged or hidden to the fullest extent feasible without jeopardizing the physical integrity of the facility. Resolution No.21-17 Page 8 of 27 3.Monopole installations shall be situated so as to utilize existing natural or man-made features including topography,vegetation, buildings,or other structures to provide the greatest amount of visual screening. 4.All antenna components and accessory wireless equipment shall be treated with exterior coatings of a color and texture to match the predominant visual background or existing architectural elements so as to visually blend in with the surrounding development.Subdued colors and non-reflective materials that blend with surrounding materials and colors shall be used. 5.Monopoles shall be no greater in diameter or other cross-sectional dimensions than is necessary for the proper functioning of the facility. L.All wireless telecommunication facilities shall be designed to prevent unauthorized climbing and graffiti. M.Fire Safety Standards.All wireless facilities designs shall include: 1.a power shut off,such as by means of rapid entry Knox or similar type systems shall be installed; 2.surge protection devices capable of mitigating a direct or partial direct lightning discharge;and 3.surge protection devices capable of mitigating significant electrical disturbances that may enter the facility via conductive cables. N.Satellite dish or parabolic antennas shall be situated as close to the ground as possible to reduce visual impact without compromising their function. 0.Support equipment pads,cabinets,shelters and buildings require architectural,landscape,color,fencing,or other camouflage treatment to minimize visual impacts to the extent deemed necessary by the Planning Director.Landscaping screening should also be provided if irrigation water is available. P.No freestanding facility or ancillary support equipment may be located between the face of a building and a public street,bikeway,park or residence. Resolution No.2 1-17 Page 9 of 27 SECTION 7.Waivers of These Standards. A.A waiver of one or more of these Standards may be granted in the following circumstances: 1.Pursuant to MMC Section 17.46.060(D),if an applicant demonstrates to the Planning Commission through clear and convincing evidence that denial of an application would,within the meaning of federal law,prohibit or effectively prohibit the provision of personal wireless services,or otherwise violate applicable laws or regulations; 2.If an applicant demonstrates to the Planning Commission through clear and convincing evidence set forth in a feasibility study that compliance with a requirement of these Standards would be technically infeasible and the proposed wireless facility complies with the requirements of these Standards to the greatest extent technically feasible.For example,an exception to a requirement to conceal antennas in a shroud may be granted if shrouding is shown to be technically infeasible and an alternative concealment such as a colored film wrap is proposed;or 3.If an applicant demonstrates to the Planning Commission with clear and convincing evidence that the particular engineering,design or location proposed involves an alternative that better meets the purposes of Chapter 17.46 and only minor non-compliance with a requirement of these design Standards and results in no increase in public visual impact to the community or provides other benefits. For example,an exception to the wireless facility location limitations may be granted when the applicant can demonstrate that the placement is less visible from viewsheds of residences or shielded by vegetation or existing infrastructure (such as barriers), or is less physically intrusive (for example,less impactfiul to tree roots or reduces noise).Among other factors,in deciding whether or not to grant an exception,the Planning Commission may consider the impact of expansions to the facility that the applicant would be entitled to make as of right if granted. B.Waivers may only be requested at the time an application is initially submitted for a discretionary permit.The request must include both the specific provision(s)from which waiver is sought and the basis of the request,including all supporting evidence on which the applicant relies. Any request for waiver after the City has deemed an application complete constitutes a material change to the proposed wireless facility and shall be considered a new application.A request for waiver from one or more Resolution No.21-17 Page 10 of 27 requirements does not relieve the applicant from compliance with all other applicable provisions of law or of MMC Section 17.46.060. SEC1 ION 8.Standard Conditions of Approval for Permits Under MMC Chapter 17.46. A.Generally.In addition to any supplemental conditions imposed by the Planning Director or Planning Commission,as the case may be,all development permits or conditional use permits granted for wireless communications facilities subject to this Chapter 17.46 shall be subject to the following conditions,unless modified by the approving authority: 1.The permittee shall defend,indemnify,and hold harmless the city or any of its boards,commissions,agents,officers,and employees from any claim,action or proceeding against the city,its boards, commission,agents,officers,or employees to attack,set aside,void, or annul,the approval of the project,or to hold the City liable in whole or in part as a result of the engineering,design,construction or operation of the facility.The City shall promptly notify the provider(s)of any such claim,action or proceeding if the city bears its own attorney’s fees and costs,and the city defends the action in good faith. 2.The permittee shall be strictly liable for interference caused by its facilities with city communications systems.The permittee shall be responsible for costs for determining the source of the interference, all costs associated with eliminating the interference (including but not limited to filtering,installing cavities,installing directional antennas,powering down systems,and engineering analysis),and all costs arising from third party claims against the city attributable to the interference. 3.Subsequent submittals for this project shall be in substantial compliance with the plans date-stamped received by the Planning Department on ______________.The project shall comply with all conditions of approval stipulated in the referral sheets attached to the agenda report for this project.In the event the project plans conflict with any condition of approval,the condition shall take precedence and revised plans shall be submitted and approved by the Planning Director prior to the Environmental Sustainability Department for plan check. 4.The permit and rights conferred in this approval shall not be effective until the permittee signs,notarizes and returns the Acceptance of Conditions Affidavit accepting the conditions set forth herein.The applicant shall file this form with the Planning Department within 30 days of this decision or prior to issuance of Resolution No.21-17 Page 11 of27 any development,conditional use,building,electrical or encroachment permit. 5.The applicant shall digitally submit a complete set of plans, including the items required in Condition No.6 to the Planning Department for consistency review and approval prior to plan check and again prior to the issuance of any building or development permits. 6.The Notice of Decision (including the signed and notarized Acceptance of Conditions Affidavit)shall be copied in its entirety and placed directly onto a separate plan sheet(s)to be included in the development plans prior to submitting any development permits from the City of Malibu Environmental Sustainability Department and encroachment permit. 7.A development permit or conditional use permit,as applicable,shall be valid for a period often (10)years from issuance,unless pursuant to another provision of the Code or these conditions,it expires sooner or is terminated.At the end often (10)years from the date of issuance,such development or conditional use permit shall automatically expire,unless an extension or renewal has been granted.A person holding a development permit or conditional use permit must either (1)remove the facility within thirty (30)days following the permit’s expiration (provided that removal of support structure owned by City,a utility,or another entity authorized to maintain a support structure need not be removed,but must be restored to its prior condition,except as specifically permitted by the City);or (2)prior to expiration,submit an application to renew the permit,which application must,among all other requirements, demonstrate that the impact of the wireless facility cannot be reduced.The wireless facility must remain in place until it is acted upon by the City and all appeals from the City’s decision exhausted. 8.The installation and construction authorized by a permit shall be completed within three (3)years after its approval,or it will expire without further action by the City unless prior to the three (3)years the applicant submit an extension request and the City,in its sole discretion,grants a time extension for due cause.The installation and construction authorized by a permit shall conclude,including any necessary post-installation repairs and/or restoration to the property,within thirty (30)days following the day construction commenced.The permittee must provide written notice to City within ten (10)days after completing construction,and may not begin operations until all City and Fire Department (if applicable) inspections have been completed and the project is found to be Resolution No.2 1-17 Page 12 of27 consistent with the permit.The expiration date shall be suspended until an appeal and/or litigation regarding the subject permit is resolved. 9.The Planning Director may grant up to four one-year extensions of the timeline,in Condition 7 above,for completing the installation and construction authorized by a development or condition use permit,if the Planning Director finds that the conditions,including but not limited to changes in the wireless ordinance under which the permit approval was issued,have not significantly changed. 10.Any questions of intent or interpretation of any condition of approval will be resolved by the Planning Director upon written request of such interpretation. 11.All structures shall conform to the requirements of the Environmental Sustainability Department,City Public Works Department,FCC and Los Angeles County Fire Department requirements,as applicable.Notwithstanding this review,all required permits,including but not limited to an encroachment permit from the City,shall be secured. 12.Minor changes to the approved plans or the conditions of approval may be approved by the Planning Director,provided such changes achieve substantially the same results and the project is still in compliance with the MMC.An application with all required materials and fees shall be required. Cultural Resources 13.In the event that potentially important cultural resources are found in the course of geologic testing,work shall immediately cease until a qualified archaeologist can provide an evaluation of the nature and significance of the resources and until the Planning Director can review this information.Where,as a result of this evaluation,the Planning Director determines that the project may have an adverse impact on cultural resources,a Phase II Evaluation of cultural resources shall be required pursuant to MMC Section 1 7.54.040(D)(4)(b). 14.If human bone is discovered,the procedures described in Section 7050.5 of the California Health and Safety Code shall be followed. These procedures require notification of the coroner.If the coroner determines that the remains are those of a Native American,the applicant shall notif~’the Native American Heritage Commission by phone within 24 hours.Following notification of the Native Resolution No.21-17 Page 13 of27 American Heritage Commission,the procedures described in Section 5097.94 and Section 5097.98 of the California Public Resources Code shall be followed. Wireless Facility Conditions 15.All antennas shall meet the minimum siting distances to public/uncontrolled areas required for compliance with the FCC regulations and standards governing the environmental effects of radio frequency emissions.Permittee shall keep up-to-date on current information from the FCC in regards to maximum permissible radio frequency exposure levels.In the event that the FCC changes its guidelines for human exposure to radio frequency, permittee shall,within 30 days after any such change,submit to the Planning Director a report prepared by a qualified engineer that demonstrates actual compliance with such changed guidelines.The Director may,at permittee’s sole cost,retain an independent consultant to evaluate the compliance report and any potential modifications to the permit necessary to conform to the FCC’s guidelines.Failure to submit the compliance report required under this condition,or failure to maintain compliance with the FCC’s guidelines for human exposure to radio frequency at all times shall constitute grounds for permit revocation. 16.All antennas shall be located so that any person walking adjacent to the transmitting surface of the antenna will be walking on a grade, which is a minimum of eight and one-half feet below the transmitting surface. 17.All antennas,equipment,and support structures shall be engineered and designed to prevent unauthorized climbing. 18.The wireless facility shall be erected,operated,and maintained in compliance with the general requirements set forth in the Standards and any specific requirements in the permit. 19.The antenna and electrical support equipment shall,at all times,be operated in a manner that conforms to the applicable health and safety standards,including those imposed by MMC Chapter 17.46 and this Resolution. 20.Wireless communications facilities and equipment must comply with the City’s noise ordinance in MMC 8.24,or any successor provisions,and prevent noise and sound from being plainly audible at a distance of fifty (50)feet from the facility or within ten (10)feet of any residence. Resolution No.21-17 Page 14 of 27 21.The Planning Director’s approval is required if a generator is to be placed onsite for temporary or permanent use. 22.All non-ground-mounted equipment associated with the application shall be located no lower than eight feet above grade or ground level on the monopole or support structure. 23.The City or its designee may enter onto the facility area to inspect the facility upon 48 hours prior notice to the permittee.The permittee shall cooperate with all inspections and may be present for any inspection of its facility by the City.The City reserves the right to enter or direct its designee to enter the facility and support,repair, disable,or remove any elements of the facility in emergencies or when the facility threatens imminent harm to persons or property. The City shall make an effort to contact the permittee prior to disabling or removing any facility elements,but in any case,shall notify permittee within 24 hours of doing so. 24.Testing of any equipment shall take place on weekdays only,and only between the hours of 8:30 a.m.and 4:30 p.m.,except that testing is prohibited on holidays that fall on a weekday.In addition, testing is prohibited on weekend days. 25.Permittee shall obtain and maintain throughout the term of the permit commercial general liability insurance with a limit of five million dollars ($5,000,000)per occurrence for bodily injury and property damage and six million dollars ($6,000,000)general aggregate including premises operations,contractual liability, personal injury,and products completed operations.The relevant policy(ies)shall name the City,its elected/appointed officials, commission members,officers,representatives,agents,and employees as additional insureds.A true and correct copy of the policy of insurance shall constitute proof of insurance required by this Subsection.Permittee shall use its best efforts to provide thirty (30)days’prior notice to the City of to the cancellation or material modification of any applicable insurance policy.Failure to maintain insurance consistent with this Condition shall automatically void the permit,and the permittee shall immediately deenergize and remove the facility from operation.The policy shall not have a pollution or other exclusion which excludes injuries or damages from EMF/RF exposures. 26.Prior to issuance of a City permit or encroachment permit,the permittee shall file with the City,and shall maintain in good standing throughout the term of the approval,a performance bond or other surety or another form of security for the removal of the Resolution No.21-17 Page 15 of27 facility in the event that the use is abandoned or the permit expires, or is revoked,or is otherwise terminated.The security shall be in the amount equal to the cost of physically removing the facility and all related facilities and equipment on the site,based on the higher of two contractor’s quotes for removal that are provided by the permittee.The pennittee shall reimburse the city for staff time associated with the processing and tracking of the bond,based on the hourly rate adopted by the City Council.Reimbursement shall be paid when the security is posted and during each administrative review. 27.Permittee shall not move,alter,temporarily relocate,change,or interfere with any existing structure,improvement,or property without the prior consent of the owner of that structure, improvement,or property.No structure,improvement,or property owned by the City shall be moved to accommodate a permitted activity or encroachment,unless the City determines that such movement will not adversely affect the City or any surrounding businesses or residents,and the Permittee pays all costs and expenses related to the relocation of the City’s structure, improvement,or property.Prior to commencement of any work pursuant to any permit,the permittee shall provide the City with documentation establishing to the city’s satisfaction that the permittee has the legal right to use or interfere with any other structure,improvement,or property to be affected by permittee’s facilities. 28.No possessory interest is created by a Wireless Permit.However,to the extent that a possessory interest is deemed created by a governmental entity with taxation authority,permittee acknowledges that City has given to permittee notice pursuant to California Revenue and Taxation Code Section 107.6 that the use or occupancy of any public property pursuant to a development or conditional use permit may create a possessory interest which may be subject to the payment of property taxes levied upon such interest.Permittee shall be solely liable for,and shall pay and discharge prior to delinquency,any and all possessory interact taxes or other taxes,fees,and assessments levied against permittee’s right to possession,occupancy,or use of any public property pursuant to any right of possession,occupancy,or use created by this development or conditional use permit. 29.If not already completed,permittee shall enter into the appropriate agreement with the City,as determined by the City,prior to Resolution No.2 1-17 Page 16 of27 constructing,attaching,or operating a facility on municipal infrastructure.This permit is not a substitute for such agreement. 30.If a facility is not operated for a continuous period of three (3) months,the Wireless Permit and any other permit or approval therefor shall be deemed abandoned and terminated automatically, unless before the end of the three (3)month period (i)the Director has determined that the facility has resumed operations,or (ii)the City has received an application to transfer the permit to another service provider.No later than ninety (90)days from the date the facility is determined to have ceased operation,or the permittee has notified the Director of its intent to vacate the site,the permittee shall remove all equipment and improvements associated with the use and shall restore the site to its original condition to the satisfaction of the Director.The permittee shall provide written verification of the removal of the facilities within thirty (30)days of the date the removal is completed.If the facility is not removed within thirty (30)days after the permit has been discontinued pursuant to this subsection,the site shall be deemed to be a nuisance, and the City may cause the facility to be removed at permittee’s expense or by calling any bond or other financial assurance to pay for removal.If there are two (2)or more users of a single facility or support structure,then this provision shall apply to the specific elements or parts thereof that were abandoned but will not be effective for the entirety thereof until all users cease use thereof. 31.In the event the City determines that it is necessary to take legal action to enforce any of these conditions,or to revoke a permit,and such legal action is taken,the permittee shall be required to pay any and all costs of such legal action,including reasonable attorney’s fees,incurred by the City,even if the matter is not prosecuted to a final judgment or is amicably resolved,unless the City otherwise agrees,in its complete discretion,to waive said fees or any part thereof. 32.Interference with city communications systems and other governmental emergency systems is prohibited.Further,no permits issued pursuant to this chapter of the City Code establish any guarantee or warranty that Licensee’s facility will be free from interference from city or third-party communication systems. Construction 33.Installation hours shall be limited to Monday through Friday from 7:00 a.m.to 7:00 p.m.and Saturdays from 8:00 a.m.to 5:00 p.m.No installation activities shall be permitted on Sundays and City- Resolution No.21-17 Page 17 of27 designated holidays.The restricted work hours described in this condition do not apply to emergency maintenance necessary to protect health or property.The City of Malibu may issue a Stop Work Order if permittee violates this condition.Construction activities shall be conducted in compliance with,and abide by,all applicable safety codes and permit conditions. 34.All sites must be designed and build to the standards of ANSI/APCO Public Safety Grade Site Hardening Requirements,also referred to as “APCO ANSI 2.106.1-2019”. Site Specific Conditions 35.In the event that the electric service provider does not currently offer an alternative metering option,the permittee shall remove the above-grade electric meter when such option becomes available. Prior to removing the above-grade electric meter,the permittee shall apply for any encroachment and/or other ministerial permit(s) required to perform the removal.Upon removal,the permittee shall restore the affected area to its original condition that existed prior to installation of the equipment. 36.The permittee acknowledges that the City specifically includes conditions of approval related to (a)painting,coloring or finishing the equipment to match the monopole or support structure;(b) undergrounding all equipment to the extent possible;(c)installing equipment within shrouds,conduits and risers as concealment elements engineered and designed to integrate the wireless facility with the surrounding built and natural environment;and (d)specific structural,seismic,electrical,fire and operating/maintenance requirements.Any future modifications to the permittee’s wireless facility must maintain or improve all concealment elements and safety precautions. 37.Before the permittee submits any applications for construction, encroachment,excavation or other required permits in connection with this permit,the permittee must incorporate a true and correct copy of this permit,all conditions associated with this permit and any approved photo simulations into the project plans (collectively, the “Approved Plans”).The permittee must construct,install and operate the wireless facility in substantial compliance with the Approved Plans as determined by the Director or the Director’s designee.Any substantial or material alterations,modifications or other changes to the Approved Plans,whether requested by the permittee or required by other departments or public agencies with jurisdiction over the wireless facility,must be submitted in a written Resolution No.21-17 Page 18 of27 request subject to the Director’s prior review and approval,who may refer the request to the original approval authority if the Director finds that the requested alteration,modification or other change substantially deviates from the Approved Plans or implicates a significant or substantial land-use concern. 38.The permittee shall install and at all times maintain in good condition a “Network Operations Center Information”and “RF Caution”sign on the utility pole no less than three (3)feet below the antenna (measured from the top of the sign)and no less than nine (9)feet above the ground line (measured from the bottom of the sign).Signs required under this condition shall be installed so that a person can clearly see the sign as he or she approaches within three (3)feet of the antenna structure.If any person on or within the property is or may be exposed to emissions that exceed applicable FCC uncontrolled/general population limits at any time the sign shall expressly so state,and provide instructions on how persons can avoid any such exposure.The sign shall also include the name(s)of the facility owner(s),equipment owner(s)and operator(s)/carrier(s) of the antenna(s),property owner name,as well as emergency phone number(s)for all such parties.The sign shall not be lighted,unless applicable law,rule or regulation requires lighting.No signs or advertising devices other than required certification,warning, required seals or signage,other signage required by law,this Chapter,any City or applicable state code or the Los Angeles County Fire Department Chief or his or her designee shall be permitted.The sign shall be no larger than two (2)square feet. 39.The permittee shall ensure that all signage complies with FCC Office of Engineering and Technology Bulletin 65,CPUC General Order 95 or American National Standards Institute C95.2 for color, symbol,and content conventions.All such signage shall at all times provide a working local or toll-free telephone number to its network operations center,and such telephone number shall be able to reach a live person who can exert transmitter power-down control over this site as required by the FCC. 40.In the event that the FCC changes any of radio frequency signage requirements that are applicable to the project site approved herein or ANSI Z535.1,ANSI Z535.2,and ANSI C95.2 standards that are applicable to the project site approved herein are changed,the permittee,within 30 days of each such change,at its own cost and expense,shall replace the signage at the project site to comply with the current standards. Resolution No.21-17 Page 19 of 27 41.The permittee shall maintain the paint,color and finish of the facility in good condition at all times. 42.All improvements,including foundations,and appurtenant ground wires,shall be removed from the property and the site restored to its original pre-installation conditions within 90 days of cessation of operation or abandonment of the facility. 43.Build-Out Conditions. a.Permittee shall not commence any excavation,construction, installation or other work on the project site until and unless it demonstrates to the City Public Works Department that the project complies with these Conditions along with all applicable laws,regulations,codes and other rules related to public health and safety,including without limitation all applicable provisions in California Public Utilities Commission General Order 95 and MMC Chapters 8.12, 8.24 and 15.08. b.To the extent that a pole owner or any provision in the MMC or this resolution require greater or more restrictive standards than California Public Utilities Commission General Order 95,if applicable,those standards shall control. 44.Permittee shall at all times maintain compliance with all applicable federal,State and local laws,regulations,ordinances and other rules, including Americans with Disabilities Act (ADA)requirements. 45.The permittee shall cooperate with all inspections.The City and its designees reserve the right to support,repair,disable or remove any elements ofthe facility in emergencies or when the facility threatens imminent harm to persons or property. 46.Permittee shall at all times maintain accurate contact information for all parties responsible for the facility,which shall include a phone number,street mailing address and email address for at least one natural person.All such contact information for responsible parties shall be provided to the Planning Department at the time of permit issuance and within one business day of permittee’s receipt of City staffs written request. 47.Permittee shall undertake all reasonable efforts to avoid undue adverse impacts to adjacent properties and/or uses that may arise Resolution No.21-17 Page 20 of 27 from the construction,operation,maintenance,modification and removal of the facility. 48.The site and the facility must be maintained in a neat and clean manner and in accordance with all approved pians and conditions of approval. 49.Permittee shall promptly remove any graffiti on the wireless facility at permittee’s sole expense within 48 hours after notice. Prior to Operation 50.The applicant shall request a final Planning Department inspection and final building inspection by the City of Malibu Environmental Sustainability Department immediately after the wireless facility has been installed and prior to the commencement of services. 51.Within thirty (30)calendar days following the installation of any wireless communications facilities,the applicant shall provide to the Planning Department with a field report prepared by a qualified engineer verifying that the unit has been inspected,tested,and is operating in compliance with FCC standards.Specifically,the on- site post-installation radiofrequency (RF)emissions testing must demonstrate actual compliance with the FCC OET Bulletin 65 RF emissions safety guidelines for general population/uncontrolled RF exposure in all sectors.For this testing,the transmitter shall be operating at maximum operating power,and the testing shall occur outwards to a distance where the RF emissions no longer exceed the uncontrolled/general population limit.Such report and documentation shall include the make and model (or other identifying information)of the unit tested,the date and time of the inspection,a certification that the unit is properly installed and working within applicable FCC limits,and a specific notation ofthe distance from the transmitter at which the emissions are equal to or less than the uncontrolled/general population limit. 52.The operation of the approved facility shall commence no later than one (1)month after the City completes its post-installation inspections of the facility,any issues with the facility are resolved, and the City receives the RF testing report required in the condition of approval above,or the development or conditional use permit will expire without further action by the City. Resolution No,21-17 Page 21 of27 Fixed Conditions 53.Violation of any ofthe conditions of this approval shall be cause for revocation and termination of all rights thereunder. Eligible Facilities Requests All permits for an eligible facilities requests under MMC Chapter 17.46 shall be subject to the following conditions and all ofthe other conditions ofapproval placed on a Wireless Permit,unless modified by the approving authority: 54.Any permit granted in response to an application qualifying as an eligible facilities request shall be subject to the terms and conditions of the underlying permit. 55.The City’s grant or grant by operation of law of an eligible facilities request permit constitutes a federally-mandated modification to the underlying permit or approval for the subject tower or base station. Notwithstanding any permit duration established in another permit condition,the City’s grant or grant by operation of law of a eligible facilities request permit will not extend the permit term for the underlying permit or any other underlying regulatory approval,and its term shall be coterminous with the underlying permit or other regulatory approval for the subject tower or base station. 56.The City’s grant or grant by operation of law of an eligible facilities request does not waive,and shall not be construed to waive,any standing by the City to challenge Section 6409(a)of the Spectrum Act,any FCC rules that interpret Section 6409(a)of the Spectrum Act,or any modification to Section 6409(a)of the Spectrum Act. Small Cell Facilities In addition to the other conditions of approval placed on a Wireless Permit,all permits for a small cell facility under MMC Chapter 17.46 shall be subject to the following additional condition,unless modified by the approving authority: 57.The City’s grant of a permit for a small cell facility request does not waive,and shall not be construed to waive,any standing by the city to challenge any FCC orders or rules related to small cell facilities, or any modification to those FCC orders or rules. SECTION 9.Basic Application Requirements for Permits Under MMC Chapter 17.46. A.Generally.In addition to providing all required fees,all wireless telecommunication facility carriers or providers shall provide the information required by a separate application form published,and updated Resolution No.21-17 Page 22 of 27 from time to time,by the City.If no such form is available,then the applicant must submit all documents,information,and any other materials necessary to allow the City to make required findings and ensure that the proposed facility will comply with applicable laws and not endanger the public health,safety,or welfare.Such information may include: 1.Contact information for: a.Applicant and their representatives b.Owner of proposed wireless communications facility c.If different from facility owner,the identity of the person or entity responsible for operating the proposed wireless facility d.The property owner or owner of the structure on which the proposed wireless facility would be installed e.Names,addresses,telephone numbers,and email addresses of anyone acting on behalf ofthe applicant with regard to the application; f.The name,address and phone number of all persons that prepared or assisted in preparing the application and any required reports; g.The postal address,parcel number,or utility pole identifier of the property; h.The location of the schools,playgrounds and parks within 500 feet of the project site; i.Local contact person for emergencies j.Assessor’s Parcel Number 2.Purpose of new wireless communications facility or amendment 3.Type ofApplication (Select all that apply) a.Eligible Facilities Request b.Small Cell —Collocation C.Small Cell —New Structure d.Collocation (Non-Small Cell) e.All Other Wireless Communications Facilities f.Permit Renewal g.Waiver 4.Letter of authorization signed by the property owner authorizing the applicant to submit and process the application,including executed copies of any leases,letters of agency,or proof of ownership,of private property involved in the project. 5.Authorizations,and Licenses 6.Provide previous approvals,if applicable,and Certificate of Completion.Site inspection fees may apply if a final inspection was never requested 7.Identif~,r all other required permits and approvals for the subject facility. Resolution No.21-17 Page 23 of 27 8.Electrical and Structural Safety Information.The following engineering documents prepared under the responsible charge of and sealed by a California licensed Professional Engineer must be included in the application: a.A short circuit and coordination study (“SCCS”)calculated pursuant to the IEEE 551-2006:Recommended Practice for Calculating AC Short-Circuit Currents in Industrial and Commercial Power Systems or the latest version of that standard.The study must demonstrate the protection devices will ensure the equipment enclosure will not be breached. The SCCS must include analysis of Voltage Transient Surges due to contact of conductors of different voltages; b.A one-line diagram ofthe electrical system; c.Voltage Drop &Load Flow Study; d.Load Calculation; e.Panel Directories; f.A plot plan showing the location of the mounting structure including address,or structure designation,or GPS location on the front sheet; g.A plot plan showing the location ofthe service disconnecting means;and h.An elevation drawing of the equipment and the service disconnecting means. 9.Structural Safety Information.The structural/civil engineering documents prepared under the responsible charge of and sealed by a California licensed professional civil engineer. a.Photo simulations,from at least three different angles, showing the pole and streetscape before and after installation.In some cases,more than three different angles may be required; b.The azimuth,size and center-line height location of all proposed and existing antenna(s)on the supporting structure; c.The number,type and model of the antenna(s)that will be used with a copy of the specification sheet; d.The make,model,type and manufacturer of any tower involved and a design plan stating the tower’s capacity to accommodate multiple users; e.Site and Construction Plans.Complete and accurate plans, drawn to scale,signed,and sealed by a California-licensed engineer,land surveyor,and/or architect,which include the following items. (1)A site plan and elevation drawings for the facility as existing and as proposed with all height and width measurements explicitly stated. Resolution No.21-17 Page 24 of 27 (2)A site plan describing the proposed tower and antenna(s)and all related fixtures,structures, appurtenances and apparatus,including height above pre-existing grade,materials,color and lighting; (3)A depiction,with height and width measurements explicitly stated,of all existing and proposed transmission equipment. (4)A depiction of all existing and proposed utility runs and points of contact. (5)A depiction of the leased or licensed area of the site with all rights-of-way and easements for access and utilities labeled in plan view. f.Detailed map with locations ofthe poles or other property on which equipment is to be located,including specific pole identification number,if applicable,and the areas it will service; g.Description as to why the desired location is superior to other similar locations,from a community perspective,including, but not limited to: (1)Proximity to residential buildings and descriptions of efforts to prevent any blocking of views of impressive scenes;and (2)Written documentation demonstrating a good faith effort to locate the proposed facility in the least intrusive location in accordance with the location requirements of this Resolution. h.A description in writing and a visual rendering demonstrating effective screening of all ground-mounted or roof-mounted equipment of the facility from view. Color-coded carrier-generated RF Coverage (propagation) maps,at a scale no smaller than 1 inch (1”)to a quarter (1/4) mile with all appropriate legends,showing the coverage for the highest and lowest frequencies to be used by the facility. Frequencies are to be stated numerically,not qualitatively. Provide a represented value in dB of each colors it specifically represents. j.If the project involves,modifies or will use an existing facility or structure,a description of the type of structure (e.g.,guyed,self-supporting lattice or monopole),and a report on the physical condition of the facility certified by a professional engineer licensed in the state of California. k.If the application is for a new tower,clear and convincing technical evidence by a carrier or wireless service provider justifying the total height of the proposed facility and the need for such to the exclusion of all reasonable alternatives. Resolution No.2 1-17 Page 25 of 27 Evidence in the form of propagation studies must include all modeling data and assumptions used to produce the studies at the requested height and should take into consideration the ability to collocate other carriers in the future. A siting analysis which identifies other feasible locations within or outside the City which could serve the area intended to be served by the facility,unless the applicant provides compelling technical reasons for providing fewer than the minimum. m.An affirmation,under penalty of perjury,that the proposed installation will be FCC compliant,in that it will not cause members of the general public to be exposed to RF levels that exceed the emissions levels deemed safe by the FCC.A copy of the fully completed FCC form “A Local Government Official’s Guide to Transmitting Antenna RF Emission Safety:Rules,Procedures,and Practical Guidance: Appendix A”titled “Optional Checklist for Determination of Whether a Facility is Categorically Excluded”for each frequency band of RF emissions to be transmitted from the proposed facility upon the approval of the application.All planned radio frequency emissions on all frequency bands must be shown on the Appendix A form(s)attached to the application.All planned radio frequency emissions are to be entered on each Appendix A form only in wattage units of “effective radiated power.” n.A statement detailing the frequency,modulation and class of service of radio or other transmitting equipment; o.A copy of the FCC license applicable for the intended use of the proposed facilities; p.A HazMat Business Plan for all new generators,and any storage and/or use of hazardous materials during the project, to include: i.A list of toxic substances that may develop during arcing or fire that may impede fire suppression efforts; ii.A list of hazards that may develop during arcing or fire that may impede fire suppression efforts; q.A demolition plan,if applicable. r.A written statement of the applicant’s willingness to allow other carriers to co-locate on the proposed personal wireless service facility where technically and economically feasible and aesthetically desirable,subject to the qualification that colocation should not occur when public exposures from the resulting higher cumulative sources would exceed FCC limits. Resolution No.21-17 Page 26 of 27 s.Such other information as the Director shall establish. t.A statement signed by a person with legal authority to bind the applicant attesting under penalty of perjury to the accuracy of the information provided in the application.If attester not an authorized employee of the applicant,then the attester must demonstrate that it is an authorized agent of the applicant,with lawful Power of Attorney from the applicant. SECTION 10.Environmental Review This Resolution is not a project within the meaning of Section 15378 of the State of California Environmental Quality Act (CEQA)Guidelines,because it has no potential for resulting in physical change in the environment,directly or indirectly.The Resolution does not authorize any specific development or installation on any specific piece ofproperty within the City’s boundaries. Moreover,when and ifan application for installation is submitted,the City will at that time conduct preliminary review of the application in accordance with CEQA.Alternatively,even if the Resolution is a “project”within the meaning of State CEQA Guidelines section 15378,the Resolution is exempt from CEQA on multiple grounds.First,the Resolution is exempt CEQA because the City Council’s adoption of the Resolution is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment.(State CEQA Guidelines,§15061(b)(3)).That is,approval of the Resolution will not result in the actual installation of any facilities in the City.In order to install a facility in accordance with this Resolution,the wireless provider would have to submit an application for installation of the wireless facility.At that time,the City will have specific and definite information regarding the facility to review in accordance with CEQA.And,in fact,the City will conduct preliminary review under CEQA at that time.Moreover,in the event that the Resolution is interpreted so as to permit installation of wireless communications facilities on a particular site, the installation would be exempt from CEQA review in accordance with either State CEQA Guidelines section 15302 (replacement or reconstruction),State CEQA Guidelines section 15303 (new construction or conversion of small structures),and/or State CEQA Guidelines section 15304 (minor alterations to land). SECTION 11.This Resolution will become effective immediately upon adoption. SECTION 12.The City Clerk shall certif~’to the passage and adoption of this resolution and enter it into the book of original resolutions. PASSED,APPROVED,and ADOPTED this 12th day of April 2021. ///~//~ ~fi}~WF~PIE1~SON,Mayor Resolution No.21-17 Page 27 of 27 ATTEST: KELSEY i~fTIJOITf\~,Actfng~ty Clerk (seal) APPROVED AS TO FORM: JOHNj~OTTI,Interim City Attorney I CERTIFY THAT THE FOREGOING RESOLUTION NO.21-17 was passed and adopted by the City Council of the City of Malibu at the Regular meeting thereof held on the l2~day of April 2021 by the following vote: AYES:5 Councilmembers:Farrer,Silverstein,Ubring,Grisanti,Pierson NOES:0 ABSTAIN:0 ABSENT:0 KELSEY P~T!J~YHN,Actihg C~tyCierk (seat) Chapter 12.02 WIRELESS FACILITIES IN PUBLIC RIGHTS-OF-WAY (All Content Displayed) • 12.02.010 Purpose. • 12.02.020 Definitions. • 12.02.030 Scope. • 12.02.040 Administration. • 12.02.050 General standards for wireless facilities in the public rights-of-way. • 12.02.060 Applications. • 12.02.070 Findings—Decisions—Consultants. • 12.02.080 Conditions of approval—Generally. • 12.02.090 Breach—Termination of permit. • 12.02.100 Nondiscrimination. 12.02.010 Purpose. The purpose of this chapter is to establish a process for managing, and uniform standards for acting upon, requests for the placement of wireless facilities within the public rights-of-way of the city consistent with the city’s obligation to promote the public health, safety, and welfare, to manage the public rights-of-way, and to ensure that the public is not incommoded by the use of the public rights-of-way for the placement of wireless facilities. The city recognizes the role of personal wireless facilities to provide personal wireless service to the residents and businesses within the city. No provision of this chapter shall be interpreted in a manner that violates state or federal law. (Ord. 477 § 2, 2021; Ord. 477U § 2, 2020) 12.02.020 Definitions. The abbreviations, phrases, terms and words used in this chapter will have the following meanings assigned to them unless context indicates otherwise. Undefined phrases, terms or words in this policy will have their ordinary meanings. The definitions in this policy shall control over conflicting definitions for the same or similar abbreviations, phrases, terms or words as may be defined in the Malibu Municipal Code Chapter 17.02 and Section 17.46.040. “Applicant” means a person filing an application for placement or modification of a wireless facility in the public right-of-way. “Application” means a formal request, including all required and requested documentation and information, submitted by an applicant to the city for a wireless ROW permit. “Eligible facilities request” or “EFR” has the meaning as set forth in 47 C.F.R. Section 1.6100(b)(3), or any successor provision. “FCC” means the Federal Communications Commission or its lawful successor. “Municipal infrastructure” means city-owned or controlled property structures, objects, and equipment in the ROW, including, but not limited to, street lights, traffic control structures, banners, street furniture, bus stops, billboards, or other poles, lighting fixtures, or electroliers located within the ROW. “Permittee” means any person or entity granted a wireless ROW permit pursuant to this chapter. “Personal wireless services” has the same meaning as set forth in 47 U.S.C. Section 332(c)(7)(C)(i). “Personal wireless services facility” means a wireless facility used for the provision of personal wireless services. “Professional engineer (PE)” is as defined by Business and Professions Code Section 6701, and shall be interpreted to refer to the specific appropriate engineering branch in issue as defined in Sections 6702 through 6703 and “supervision of the construction of engineering structures” as defined in Section 6703.1. “Public right-of-way” or “ROW” means any public street, public way or public place within the city limits, either owned by the city or dedicated to the public for the purpose of travel and which the city has the responsibility to maintain or manage. The term includes all or any part of the entire width of right-of-way, and above and below the same, whether or not such entire area is actually used for travel purposes. “Small cell facility” has the same meaning as “small wireless facility” in 47 C.F.R. 1.6002(l), or any successor provision (which is a personal wireless services facility that meets the following conditions that, solely for convenience, have been set forth below): 1. The facility: a. Is mounted on a structure fifty (50) feet or less in height, including antennas, as defined in 47 C.F.R. Section 1.1320(d), or b Is mounted on a structure no more than ten (10) percent taller than other adjacent structures, or c. Does not extend an existing structure on which it are located to a height of more than fifty (50) feet or by more than ten (10) percent, whichever is greater; 2. Each antenna associated with the deployment, excluding associated antenna equipment (as defined in the definition of antenna in 47 C.F.R. Section 1.1320(d)), is no more than three cubic feet in volume; 3. All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than twenty-eight (28) cubic feet in volume; 4. The facility does not require antenna structure registration under 47 C.F.R. Part 17; 5. The facility is not located on Tribal lands, as defined under 36 C.F.R. Section 800.16(x); and 6. The facility does not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in 47 C.F.R. Section 1.1307(b). “Support structure” means any structure capable of supporting a base station. “Underground areas” means those areas where there are no electrical facilities or facilities of a local exchange carrier in the right-of-way; or where the wires associated with the same are or are required to be located underground; or where the same are scheduled to be converted from overhead to underground. Electrical facilities are distribution facilities owned by an electric utility and do not include transmission facilities used or intended to be used to transmit electricity at nominal voltages in excess of thirty-five thousand (35,000) volts. “Utility pole” means a structure in the ROW designed to support electric, telephone and similar utility lines. For the avoidance of doubt, any structure built for the sole or primary purpose of supporting any FCC-licensed or authorized antennas and their associated facilities is not a utility pole. “Wireless facility” or “facility” means the transmitters, antenna structures and other types of installations used for the provision of wireless services at a fixed location, including, without limitation, any associated tower(s), support structure(s), and base station(s). “Wireless infrastructure provider” means a person that owns, controls, operates or manages a wireless facility or portion thereof within the ROW. “Wireless regulations” means those regulations adopted pursuant to Section 12.02.050 and implementing the provisions of this chapter. “Wireless ROW permit” or “WRP” means a permit issued pursuant to this chapter authorizing the placement or modification of a wireless facility of a design specified in the permit at a particular location within the ROW; and the modification of any existing support structure to which the wireless facility is proposed to be attached. “Wireless service provider” means an entity that provides personal wireless services to end users. (Ord. 477 § 2, 2021; Ord. 477U § 2, 2020) 12.02.030 Scope. A. In General. There shall be a type of permit entitled a “wireless ROW permit (WRP),” which shall be subject to all of the requirements of this chapter. Unless exempted, every person who desires to place a wireless facility in the public rights-of- way or modify an existing wireless facility in the public rights-of-way must obtain a wireless ROW permit authorizing the placement or modification in accordance with this chapter. Except for small cell facilities, facilities qualifying as eligible facilities requests, or any other type of wireless facility expressly allowed in the public right-of-way by state or federal law, no other wireless facilities shall be permitted pursuant to this chapter. B. Exemptions. This chapter does not apply to: 1. The placement or modification of facilities by the city or by any other agency of the state solely for public safety purposes. 2. Installation of a “cell on wheels,” “cell on truck” or a similar structure for a temporary period in connection with an emergency or event, but no longer than required for the emergency or event, provided that installation does not involve excavation, movement, or removal of existing functional facilities. C. Other Applicable Requirements. In addition to the WRP required herein, the placement and operation of a wireless facility in the public rights-of-way requires the persons who will own or control those facilities to obtain all permits required by Chapter 12.04 (Highway Permits) and other applicable law, and to comply with applicable law, including, but not limited to, applicable law governing radio frequency (RF) emissions and the Americans with Disabilities Act (ADA) and electrical and fire codes. If an applicant meets the requirements of this chapter and obtains a wireless ROW permit, then the applicant does not need to obtain a site plan review permit or conditional use permit pursuant to Malibu Municipal Code Sections 17.46.020 and 17.46.030. D. Pre-Existing Facilities in the ROW. Any permitted wireless facility already existing in the ROW as of the date of this chapter’s adoption shall remain subject to the standards and conditions of the city code in effect prior to this chapter, unless and until a renewal of such facility’s then-existing permit is granted, at which time the provisions of this chapter shall apply in full force going forward as to such facility. The review of any request for a renewal of a permit for such pre-existing facilities shall be conducted pursuant to this chapter, rather than the portion(s) of the city code under which it was previously reviewed. E. Public Use. Except as otherwise provided by California law, any use of the public right-of-way authorized pursuant to this chapter will be subordinate to the city’s use and use by the public. (Ord. 477 § 2, 2021; Ord. 477U § 2, 2020) 12.02.040 Administration. A. Reviewing Authority. The planning director or designee (“director”) is responsible for administering this chapter. As part of the administration of this chapter, the director is responsible for the following: 1. Implement standards governing the placement and modification of wireless facilities consistent with the requirements of this chapter, including regulations governing collocation and resolution of conflicting applications for placement of wireless facilities; 2. Implement acceptable engineering design and development standards for wireless facilities in the public rights-of-way, taking into account the zoning districts adjacent to the public rights-of-way; 3. Develop forms and procedures for submission of applications for placement or modification of wireless facilities, and proposed changes to any support structure consistent with this chapter; 4. Collect, as a condition of the completeness of any application, any fee established by this chapter; 5. Establish deadlines for submission of information related to an application, and extend or shorten deadlines where appropriate and consistent with state and federal laws and regulations; 6. Issue any notices of incompleteness, requests for information, or conduct or commission such studies as may be required to determine whether a permit should be issued; 7. Require, as part of, and as a condition of completeness of any application, timely notice to members of the public that may be affected by the placement or modification of the wireless facility and proposed changes to any support structure; 8. Subject to appeal as provided herein, determine whether to approve, approve subject to conditions, or deny an application; and 9. Take such other steps as may be required to timely act upon applications for placement of wireless facilities, including issuing written decisions and entering into agreements to mutually extend the time for action on an application. B. Appeals. 1. Any person adversely affected by a decision of the director pursuant to this chapter may request an administrative hearing to appeal the director’s decision. In order to request a hearing, the person shall submit to the city clerk in the manner directed in the director’s decision notice a fully completed request for administrative hearing form along with a full amount of the appeal fee (by way of check or money order). The request for administrative hearing shall be incomplete if it does not include the deposit in the full amount of the appeal fee. The deposit will be retained in a noninterest bearing account until the matter is resolved. The appeal fee shall be refunded to the appellant if their appeal is granted. 2. Appeals must be filed within five business days of the mailing of decision notice of the director, unless a different time period is specified by the director in such notice. The director may extend the time period for filing an appeal for due cause but an extension may not be granted where such extension would result in approval of the application by operation of law. 3. If a timely and complete request for hearing is not submitted, the director’s decision shall be deemed final. 4. If a timely and complete request for hearing is submitted, the city manager shall appoint to an administrative hearing officer (“hearing officer”) to conduct the administrative hearing. The hearing officer may decide the issues de novo. Administrative hearings are informal, and formal rules of evidence and discovery do not apply. The appellant and the applicant shall have the opportunity to present evidence in support of their case. 5. Any administrative hearing shall be conducted so that a timely written decision may be issued in accordance with applicable law. 6. The hearing officer’s decision shall be in writing, shall explain the basis for the decision, and shall be served upon the applicant, and upon the appellant (if different) by first class mail, to the address stated on the request for hearing form. and the written decision of the hearing officer will be the final decision of the city effective on the date of mailing. (Ord. 477 § 2, 2021; Ord. 477U § 2, 2020) 12.02.050 General standards for wireless facilities in the public rights-of-way. A. Generally. Wireless facilities in the ROW shall meet the minimum requirements set forth in this chapter and the wireless regulations, in addition to the requirements of any other applicable law. B. Regulations. The wireless regulations and decisions on applications for placement of wireless facilities in the ROW shall, at a minimum, ensure that the requirements of this section are satisfied, unless a waiver is granted by the director or hearing officer pursuant to subsection E of this section. C. Minimum Standards. Wireless facilities shall be installed and modified in a manner that does not incommode the public use of the ROW, in that it minimizes risks to public safety, avoids placement of aboveground facilities in underground areas, avoids installation of new support structures or equipment cabinets in the public rights- of-way, makes facilities stealth by using concealment elements, and otherwise maintains the integrity and character of the neighborhoods and corridors in which the facilities are located; ensures that installations are subject to periodic review to minimize the intrusion on the rights-of-way; and ensures that the city bears no risk or liability as a result of the installations, and that such use does not inconvenience the public or cause personal or economic harm, interfere with the primary uses of the rights-of-way, or hinder the ability of the city or other government agencies to improve, modify, relocate, abandon, or vacate the public rights-of-way or any portion thereof, or to cause the improvement, modification, relocation, vacation, or abandonment of facilities in the rights-of-way. D. Engineering Design and Location Standards. All applicants shall engineer, design and locate the wireless facilities in accordance with the standards and wireless regulations set forth separately through the resolution adopted by the city council. E. Waivers. Requests for waivers from any requirement of this chapter shall be made in writing to the director. The director or hearing officer may grant a request for waiver only if it is demonstrated through clear and convincing evidence that denial of an application would, within the meaning of federal law, prohibit or effectively prohibit the provision of personal wireless services, or otherwise violate applicable laws or regulations. All waivers approved pursuant to this subsection shall be: (1) granted only on a case-by-case basis; and (2) narrowly-tailored so that the requirements of this chapter are waived only to the minimum extent required to avoid the prohibition or violation. (Ord. 477 § 2, 2021; Ord. 477U § 2, 2020) 12.02.060 Applications. A. Submission. Unless the wireless regulations provide otherwise, applicant shall submit a paper copy and an electronic copy of any application, amendments, or supplements to an application, or responses to requests for information regarding an application to the planning department. B. Pre-Application Meeting. Prior to filing an application for a WRP, applicant is encouraged to schedule a voluntary pre-application meeting with the director to discuss the proposed facility, the requirements of this chapter, and any potential impacts of the proposed facility. Conducting a voluntary pre-application meeting shall not initiate any applicable “shot clock.” C. Public Notice. 1. Within seven calendar days after an application is submitted to the city, the applicant shall: (a) post notice at the proposed project site in a location near to and visible from the ROW; and (b) provide the city with evidence that such notice has been posted. The applicant shall maintain and replace the posted notice as necessary during the entire application review process until the director acts on the application and all appeals have been exhausted. The posted notice shall be composed from durable quality and weather-resistant materials that will not deteriorate under normal circumstances for at least one hundred eighty (180) calendar days. The posted notice shall be at minimum seventeen (17) inches wide by eleven (11) inches tall. The posted notice shall not be placed in any location where it would obstruct travel or visibility for vehicles, bicycles, pedestrians or other users in the ROW. The city encourages applicants to consult with the planning department on placement locations to avoid any potential hazards. 2. Within five business days from the date on which an application is determined to be complete, the director shall notify in writing of the filing of the application property owners and residents of all property within a one thousand (1,000) foot radius of the proposed project, but in no event fewer than the owners and occupants of ten (10) developed properties. The purpose of the notice is to inform the surrounding property owners and residents of the filing of the application and provide an opportunity for comment on the application prior to the director’s decision. The notice shall describe the request, provide a map showing the specific location of the proposed project, describe the review process and timeframes, indicate how to contact the applicant and case planner assigned to the application, and the city-assigned application identifier. D. Content. An applicant shall submit an application on the form approved by the director, which may be updated from time to time, but in any event shall require the submission of all required fee(s), documents, information, and any other materials necessary to allow the director to make required findings and ensure that the proposed facility will comply with applicable federal and state law, the city code, and will not endanger the public health, safety, or welfare. If no form has been approved, applications must contain all information listed in any applicable city council resolution and as necessary to show that applicant is entitled to the WRP requested and must specify whether the applicant believes state or federal law requires action on the application within a specified time period. E. Fees. Application fee(s) shall be required to be submitted with any application for a wireless ROW permit and with any request for appeal of a director’s decision. At the time of the adoption of the ordinance codified in this chapter, the application and appeal fees are set forth in the planning department fees in the city’s Fiscal Year 2020- 2021 Citywide Fee Schedule, which may be amended from time to time. Notwithstanding the foregoing, no application fee shall be refundable, in whole or in part, to an applicant for a WRP unless paid as a refundable deposit. Simultaneously with an appeal request, an affected resident may submit a request for waiver of appeal fees based on a showing of undue financial burden. If the request for waiver is granted, no fee shall apply. If the request for waiver is denied, the affected resident shall submit payment of the fee within three days after notice of the waiver request has been denied. Failure to timely submit the fee will result in dismissal of the appeal. F. Incompleteness. Applications will be processed, and notices of incompleteness provided, in conformity with state, local, and federal law. If an application is incomplete, the director may notify the applicant in writing, and specifying the material omitted from the application. A failure to notify the applicant of any defect or omission does not relieve the applicant of its burden of proof on the merits and the city reserves the right to deny the application if all necessary information was not provided by the applicant. G. Denials Without Prejudice/Extensions. To promote efficient review and timely decisions, if the applicant fails to tender a substantive response to the director within ninety (90) calendar days after the director deems the application incomplete in a written notice to the applicant, the director may, in the director’s discretion, deny the application without prejudice. However, if the applicant submits a written request to the director prior to the 90th day that shows good cause to grant an extension, the director may instead grant a written extension for up to an additional thirty (30) calendar days for the applicant to tender a substantive response. (Ord. 477 § 2, 2021; Ord. 477U § 2, 2020) 12.02.070 Findings—Decisions—Consultants. A. Findings Required for Approval. 1. Except for eligible facilities requests, the director or hearing officer, as the case may be, shall approve an application if, on the basis of the application and other materials or evidence provided in review thereof, he or she finds the following: a. The facility is not detrimental to the public health, safety, and welfare; b. The facility complies with this chapter and all applicable design and development standards; c. The facility meets applicable requirements and standards of state and federal law; d. The application is complete and provides all information required by this chapter; and e. The applicant has satisfied the burden of proving full compliance with all procedural and substantive requirements in this chapter. 2. For eligible facilities requests, the director or hearing officer, as the case may be, shall approve an application if, on the basis of the application and other materials or evidence provided in review thereof, he or she finds the following: a. That the application qualifies as an eligible facilities request in that: i. The proposed colocation or modification meets each and every one of the applicable criteria for an eligible facilities request stated in 47 C.F.R. 1.6100(b)(3)-(9), after application of the definitions in 47 C.F.R. 1.6100(b). The director shall make an express finding for each criterion that applies and for any criterion found not to apply the director shall make independent findings justifying the determination that a criterion does not apply; ii. The existing facility complies 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 47 C.F.R. 1.6100(b)(7)(i) through (iv); and b. That the proposed facility will comply with all generally-applicable laws. B. Decisions. Decisions on an application by the director or hearing officer shall be in writing and include the reasons for the decision. C. Independent Consultants. The director or hearing officer, as the case may be, is authorized, in his or her discretion, to select and retain independent consultant(s) with expertise and appropriate credentials in telecommunications and/or electrical and fire safety in connection with the review of any application under this chapter. Such independent consultant review may be retained on any issue that involves specialized or expert knowledge in connection with an application, including, but not limited to, application completeness or accuracy, engineering analysis, or compliance with FCC radio frequency emissions limits. (Ord. 477 § 2, 2021; Ord. 477U § 2, 2020) 12.02.080 Conditions of approval—Generally. In addition to any supplemental conditions imposed by the director or hearing officer, as the case may be, all permits under this chapter shall be subject to the conditions in the design standards and standard conditions of approval resolution adopted by the city council, unless modified by the director or hearing officer. (Ord. 477 § 2, 2021; Ord. 477U § 2, 2020) 12.02.090 Breach—Termination of permit. A. For Breach. A WRP may be revoked for failure to comply with the conditions of the permit or applicable law or if the permittee becomes ineligible for franchise rights under state law or if the permittee’s FCC authorization to operate wireless facilities and/or provide wireless service is terminated for any reason. Upon revocation, the wireless facility must be removed; provided that removal of a support structure owned by city, a utility, or another entity authorized to maintain a support structure in the right- of-way need not be removed, but must be restored to its prior condition, except as specifically permitted by the city. All costs incurred by the city in connection with the revocation and removal shall be paid by entities who own or control any part of the wireless facility. B. For Installation Without a Permit. A wireless facility or its modification installed after the effective date of the ordinance codified in this chapter without a WRP (except for those exempted from, or not subject to, this chapter) must be removed; provided that removal of a support structure owned by city, a utility, or another entity authorized to maintain a support structure in the right-of-way need not be removed, but must be restored to its prior condition, except as specifically permitted by the city. All costs incurred by the city in connection with enforcement of this provision and removal shall be paid by entities who own or control any part of the wireless facility. C. Violations. In addition to any criminal, civil or other legal remedy established by law that may be pursued to address violations of the municipal code, violations of any provision of this chapter or the regulations adopted by this chapter are subject to the administrative penalty provisions of Chapter 1.10. (Ord. 477 § 2, 2021; Ord. 477U § 2, 2020) 10-40.60.310 Telecommunication Facilities A. Purposes. This section is intended to accommodate the communications needs of residents and businesses in the City while protecting public health, safety, and welfare by: 1. Establishing predictable and balanced regulations that facilitate the provision of communications services; 2. Minimizing adverse visual effects of telecommunications facilities through careful design, siting, landscape screening, height limitations, innovative camouflage techniques, and protection of view shed corridors; 3. Avoiding potential damage to adjacent properties from tower failure through appropriate engineering; 4. Maximizing use of existing and future towers to minimize the number of towers needed to serve the City; 5. Locating telecommunications facilities away from residential neighborhoods and historical sites whenever feasible; and 6. Requiring compliance with the important public interest protections of this section without taking into consideration economic considerations or cost, unless such economic considerations or costs are so extraordinary, substantial, and unusual so as to prohibit or have the effect of prohibiting the provision of telecommunications services. B. Permitting Applicability. 1. Uses Permitted by Right. a. FM/DTV/Low Wattage AM Broadcasting Facilities. All applications for new FM/DTV/low wattage AM broadcasting facilities shall be subject to review and approval by the Director, in compliance with the procedures provided in Division 10-20.30, Common Procedures. b. Attached Telecommunications Facilities. i. All applications for new attached telecommunications facilities shall be subject to review and approval by the Director, in compliance with the procedures provided in Division 10- 20.30, Common Procedures. ii. The Director may require an application for co-location to be considered by the Planning Commission at a public hearing on the basis of potential location, aesthetic or visually related impacts. c. Collocation Facilities. i. All applications for collocation of a new wireless communications facility on an existing antenna-supporting structure that has been designed and approved to accommodate multiple wireless communications facility providers shall be subject to review and approval by the Director, in compliance with the procedures provided in Division 10-20.30, Concept Plan Review. ii. The Director may require an application for co-location to be considered by the Planning Commission at a public hearing on the basis of potential location, aesthetic or visually related impacts. d. Stealth Telecommunication Facilities. All applications for new stealth telecommunications facilities shall be subject to review and approval by the Director, in compliance with the procedures provided in Section 10-20.30.050, Concept Plan Review. 2. Uses Requiring a Conditional Use Permit. a. Antenna-Supporting Structures. All new antenna-supporting structures and replacement antenna-supporting structures intended for commercial and emergency services or public facility use shall obtain a conditional use permit in compliance with Section 10-20.40.050, Conditional Use Permits, prior to submittal for building permit approval and the initiation of construction. b. AM Broadcasting Facilities. All applications for new AM broadcasting facilities shall obtain a conditional use permit in compliance with Section 10-20.40.050, Conditional Use Permits, prior to submittal for building permit approval and the initiation of construction. C. General Requirements for Telecommunications Facilities. The requirements set forth in this subsection shall govern the location, construction, and operation of all telecommunications facilities governed by this section. 1. Building Code and Safety Standards. Telecommunications facilities shall be maintained in compliance with applicable building and technical codes, including the most recent revision to the ANSI/TIA-222 Standards published by the Telecommunications Industries Association, as amended. Structural integrity shall be ensured through the approval of the applicable building permit. 2. Regulatory Compliance. All telecommunications facilities must comply with the regulations of the Federal Aviation Administration, the Federal Communications Commission, and any other agency of the State or Federal government with authority to regulate telecommunications facilities. 3. Security. All telecommunications facilities shall have appropriate security, as determined by the Director, including solid fencing that complies with Division 10-50.50, Fences and Screening. 4. Lighting. No artificial lighting of telecommunications facilities is permitted unless such artificial lighting is: a. Required by the Federal Aviation Administration, the Federal Communications Commission, or another State or Federal agency of competent jurisdiction; or b. Necessary for security. c. Such lighting shall comply with the development lighting regulations in Division 10-50.70, Outdoor Lighting Standards. 5. Advertising. No advertising is permitted on telecommunications facilities. Signage in compliance with Division 10-50.100, Sign Standards, is permitted at telecommunications facilities where personnel work permanently. 6. Visual Impact. Telecommunications facilities shall be sited and constructed to preserve the preexisting character of the surrounding buildings and vegetation, and shall comply with the natural resource protection standards in Division 10-50.90, Resource Protection Standards. a. All telecommunications facilities shall be painted a neutral non-reflective color, or be painted and/or textured to match adjoining structures or vegetation so as to reduce visual obtrusiveness, unless otherwise required by the Federal Aviation Administration or other competent State or Federal regulatory agency. Special attention shall be paid to camouflaging, to the maximum extent feasible, all portions of a telecommunications facility. b. To the maximum extent feasible, telecommunications facilities shall be placed directly above, below or incorporated with vertical design elements of a building to help in camouflaging. c. An equipment shelter or cabinet that supports telecommunications facilities shall be concealed from public view or made compatible with the architecture of surrounding structures. Equipment shelters or cabinets shall be screened from public view by using landscaping or materials and colors consistent with the surrounding backdrop. The shelter or cabinet shall be regularly maintained. d. Equipment shelters and screen units shall be in compliance with Division 10-50.50, Fences and Screening, and Division 10-30.60, Site Planning Design Standards. e. Camouflaged sites may be required by the Director and will be subject to the following minimum standards: (1) Simulated pine branches must be located from a point that is 25 percent the height of the tower measured from finished grade to the top of the tower. (2) A density of 2.3 simulated branches per one lineal foot of the tower is required. Branches shall be installed on the tower in a random organic pattern. (3) The minimum length for the lower level simulated branches is 10 feet long. Simulated branches must taper toward the top of the tower to give the appearance of a natural conically shaped evergreen tree. (4) The tower shall be painted to emulate a natural tree trunk, while the bottom 25 percent of the height of the trunk shall be covered with a simulated tree bark product. (5) Antennas shall be fitted with a cover or otherwise camouflaged, and shall not extend beyond the tree branches located immediately adjacent to the antennas. Figure 10-40.60.310A: Standards for Camouflaged Sites 7. Landscaping. Landscaping shall be used to mitigate the visual impact of telecommunications facilities and ancillary structures. Evergreen plant material of a minimum height of five feet shall be planted adjacent to the exterior of any wall or fence a minimum of every 10 feet on center. The Director or the Planning Commission may waive or reduce these landscaping requirements if it is determined that the landscaping is unnecessary or it is impractical to provide necessary screening. 8. Maintenance. The site of a telecommunications facility shall have sufficient room for maintenance vehicles and other equipment used for maintenance to maneuver on the property. Vehicles and other equipment not used in direct support of a telecommunications facility shall not be stored or parked on the site of a telecommunications facility. Unmanned sites shall provide a gravel area for parking of maintenance vehicles. 9. Site Size and Setbacks. a. The site of a telecommunications facility shall be of a size and shape sufficient to provide adequate landscape screening as required by subsection (C)(7) of this section. b. For rooftop antennas, a 1:1.2 setback ratio shall be maintained as a fall zone (for example, a 10-foot-tall antenna shall require a 12-foot setback from the edge of the building’s roof). 10. Height. a. Height of a tower shall be measured from the natural undisturbed ground surface below the center of the base of said tower to the top of the tower itself or, if higher, to the tip of the highest antenna or piece of equipment attached thereto. In the case of building mounted towers, the height of the tower includes the height of the portion of the building on which it is mounted. b. A telecommunications facility located on a preferred site, as defined in subsection (E)(1) of this section, shall not exceed a height of 100 feet. c. A telecommunications facility located on a neutral site, as defined in subsection (E)(2) of this section, shall not exceed a height of 75 feet. d. A telecommunications facility located on a disfavored site, as defined in subsection (E)(3) of this section, shall not exceed a height that is the greater of: (1) Sixty feet; or (2) Five feet above the average maximum height of the foliage within 200 feet of the telecommunications facility, but in no case greater than 70 feet. D. Additional Requirements for Towers. In addition to the general requirements set forth in subsection (C) of this section, towers shall be subject to the additional requirements set forth in this section. 1. Towers shall not be sited where they will negatively affect historic districts or scenic view corridors or where they will create visual clutter. 2. Towers shall be constructed to permit future co-location, unless doing so would be technically infeasible or aesthetically undesirable, as determined by the Planning Commission. Tower owners shall negotiate in good faith with providers of telecommunications services that seek to co-locate. 3. New towers shall not be located any closer than 300 feet from the right-of-way lines of the following streets and highways within the Flagstaff City limits: a. Interstate 40. b. Interstate 17. c. U.S. Highway 89N. d. U.S. Highway 89A. e. U.S. Highway 180/Fort Valley Road. f. Route 66. g. Milton Road. h. Switzer Canyon Drive. i. North Humphreys Street. j. Cedar Avenue from Turquoise Drive to West Street. k. Lake Mary Road. E. Preferred, Neutral and Disfavored Sites. 1. Preferred Sites. a. Community Structures. Any police or fire station, library, community center, civic center, courthouse, utility structure, smokestack, water tower, bridge, clock or bell tower, light pole, church steeple or other similar structure is a preferred site. b. Collocation. Any existing lawful wireless telecommunications facility shall be a preferred site. Any existing building where the antenna can be mounted directly to the side of the building or parapet is a preferred site. c. Industrial Zones and Public Land. Any site zoned LI, HI, or PF is a preferred site; provided, that such site is not park or open space land or a school site; and provided further, that such site is not a site described in subsection (E)(3) of this section. School sites are considered neutral or disfavored sites, depending on their zoning, proximity to residential neighborhoods, and the extent to which such sites meet the requirements of this section and the required findings listed in Section 10-20.40.050, Conditional Use Permits. d. Power Line Corridors. An existing tower structure that supports high voltage power lines in a power line corridor is a preferred site. 2. Neutral Sites. Any site zoned SC, CC, HC, CS, CB or RD is a neutral site; provided, that such site is not a site described in subsection (E)(3) of this section. 3. Disfavored Sites. a. Residential Neighborhoods. Any site in a zone not specified in subsection (E)(1) or (E)(2) of this section is a disfavored site, unless such site has a General Plan designation or current governmental use of industrial or commercial, which may reclassify the site as preferred or neutral, respectively. b. Designated Locales. Any site that is within a scenic view corridor as defined in subsection (E)(3)(c) of this section. c. Scenic Locales. Any site along an exposed ridgeline, a public trail, public park, or other outdoor recreation area is a disfavored site, unless the telecommunications facility blends with the surrounding existing natural and man-made environment in such a manner as to be effectively unnoticeable, as determined by the Planning Commission. F. Applications and Procedure. 1. Permit Requirements. An application for a conditional use permit for a telecommunications facility shall be submitted on a form prescribed by the City in compliance with Section 10-20.30.020, Application Process. The application shall include the information and materials specified in the checklist for applications for a telecommunications facility, together with the required fee established in Appendix 2, Planning Fee Schedule. Additional submittal requirements are also listed below. a. Engineering Report. Each application shall include a report from a structural engineer licensed in the State of Arizona documenting the following: (1) Telecommunications facility height and design, including technical, engineering, economic, and other pertinent factors governing selection of the proposed design; (2) Total anticipated capacity of the telecommunications facility, including, in the case of a tower, the number and types of antennas that can be accommodated; (3) Evidence of structural integrity; and (4) Structural failure characteristics of the telecommunications facility and demonstration that site and setbacks are adequate to contain debris. b. Five-Year Plan and Site Inventory. Each application shall include a five-year facilities plan and site inventory addressing the following: (1) A description of the type of technology (cellular, PCS, radio, television, etc.) that will be provided using the telecommunication facility over the next five years, including the radio frequencies to be used for each technology and the types of consumer services (voice, video, data transmission) to be offered; (2) A list of all of the applicant’s existing telecommunications facility sites within the City and the Flagstaff Metropolitan Planning Organization Area, a list of all of the applicant’s proposed telecommunications facility sites within the City and the Flagstaff Metropolitan Planning Organization Area for which the applicant has filed a conditional use permit application, and a map showing location of these sites and service boundaries of other facilities operated by the applicant/provider in the area; and (3) If the applicant does not know specific future telecommunications facility site locations but does know of the areas where the telecommunications facilities will be needed within the next five years to provide service, the applicant shall identify the areas. c. Additional Information for Sites that Are Not Preferred Sites. Whenever an applicant proposes to construct a telecommunications facility on a site that is not a preferred site, as defined in subsection (E)(1) of this section, the applicant shall provide the following additional information: (1) A map showing the area in which the proposed telecommunications facility could be sited to provide the needed coverage, and all preferred sites in that area; and (2) A justification as to why the applicant is not proposing a preferred site, including the best efforts made to secure each of the preferred sites, why such efforts were unsuccessful, and why each of the preferred sites is not technically or legally feasible. d. Additional Information for Towers. (1) The applicant must explain why existing towers and other supporting structures cannot accommodate the proposed telecommunications facility. The applicant should describe in detail its best efforts made to obtain the use of such facilities, including, where applicable, the names and phone numbers of property owners contacted, summaries of meetings held with property owners, and written documentation from property owners denying use of their property; (2) The applicant must state whether additional antennas can be co-located on the new tower and, if not, explain why the tower is not being constructed to accommodate future co- location; and (3) The applicant must prepare a site review plan application that meets the requirements of Section 10-20.40.140, Site Plan Review and Approval. 2. Technical Experts. The Director is authorized to employ on behalf of the City an independent technical expert to review any technical material submitted under this section. The applicant shall pay all costs of said review, including any administrative costs incurred by the City. Any proprietary information disclosed to the City or the expert hired shall remain confidential and shall not be disclosed to any third party. 3. Legal Counsel. The City Attorney may employ on behalf of the City legal counsel to assist in the review of an application for a conditional use permit submitted. The applicant shall pay all costs of said review, including any administrative costs incurred by the City. 4. Procedure – General. Applications for a conditional use permit for a telecommunications facility shall be subject to the general procedural requirements found in Section 10-20.40.050, Conditional Use Permits. Any decision to deny an application for a conditional use permit for a telecommunications facility, including on appeal to the Council, shall be in writing and shall be supported by substantial evidence in the written record. 5. Report of Director. In connection with the report of the Director required by Section 10-20.30.020, Application Process, the Director may require the applicant to submit additional justifications, documentation and other information in support of the showings that the applicant must make in compliance with the section. For each applicable showing or requirement of this section, the report shall: a. Review the application and the supporting documentation submitted by the applicant and any information prepared by or on behalf of the City or received by the City; and b. Explain how the information reviewed (or lack of information submitted) supports the recommendation to the Planning Commission required by Section 10-20.30.020, Application Process. Failure of the applicant to submit such information as the Director may require in compliance with this section shall be noted in the report and may be considered by the Planning Commission. 6. Review. The Planning Commission shall not issue a conditional use permit for a telecommunications facility, as required by subsection (B)(2) of this section, until: a. The applicant has submitted an application in the form set forth in subsection (F)(1) of this section; b. The Planning Commission has determined that the requirements set forth in subsection (C) of this section have been met; and c. The Planning Commission has made the findings required under Section 10-20.30.090, Findings Required. In addition, the following findings shall be required, where applicable: i. For Telecommunications Facilities Not on Preferred Sites. Applications for a conditional use permit for a telecommunications facility on a site other than a preferred site, as defined in subsection E.1. of this section, shall not be granted unless the applicant has shown that it made its best efforts to locate the telecommunications facility on a preferred site and that it is not technically or legally feasible or aesthetically desirable to locate the telecommunications facility on a preferred site. ii. For Towers. Applications for a conditional use permit for a tower shall not be granted unless the applicant has shown that: (a) Existing towers cannot accommodate the proposed telecommunications facility; (b) The new tower will have room to co-locate additional facilities or it is not technically or legally feasible or aesthetically desirable to construct a tower with such co-location capacity; and (c) Construction of the tower will not disrupt existing utilities. In addition, the applicant also must meet the requirements set forth in subsection D. of this section. iii. For Telecommunications Facilities on Disfavored Sites. Applications for a conditional use permit for a telecommunications facility on a disfavored site, as defined in subsection E.4. of this section, shall not be granted unless the applicant has shown that: (a) It has made its best efforts to locate the telecommunications facility on a site that is not a disfavored site; (b) It is not technically or legally feasible or it is aesthetically undesirable to locate the telecommunications facility on a site that is not a disfavored site; and (c) Denial of the conditional use permit would unreasonably discriminate among providers of functionally equivalent personal wireless services or prohibit or have the effect of prohibiting the provision of personal wireless services within the meaning of 47 U.S.C. § 332(c)(7)(B)(i). 7. Additional Information. The Planning Commission may require the applicant to submit additional information or provide further justification if the Planning Commission believes it is necessary or appropriate in light of the showings required by subsection F.6. of this section, the report submitted by the Director, the application, or the requirements of this section. 8. Waived Requirements for Collocation. The Director may waive the requirements for a conditional use permit for telecommunications facilities that meet all the criteria in subsection C. of this section if the new facility or equipment is co-located on or adjoining an existing telecommunications facility. G. Removal of Telecommunications Facilities. 1. All telecommunications facilities shall be maintained in compliance with the standards contained in applicable building and technical codes, including the most recent revision to the ANSI/TIA-222 Standards published by the Telecommunications Industries Association, as amended, so as to ensure the structural integrity of such facilities. 2. If upon inspection by the Review Authority any such telecommunications facility is determined not to comply with the code standards referenced in subsection G.1. of this section or to constitute a danger to persons or property, then upon notice being provided to the owner of the telecommunications facility and the owner of the site of the telecommunications facility, such owners shall have 30 days to bring the telecommunications facility into compliance. The following measures will be followed if telecommunication facility remains noncompliant based on this subsection: a. If such telecommunications facility is not brought into compliance within 30 days, the City may provide notice to the owners requiring the telecommunications facility to be removed and the site restored to its natural condition. b. If such telecommunications facility is not removed within 30 days of receipt of such notice and the site restored to its natural condition, the City may remove such telecommunications facility and place a lien upon the property for the costs of removal and restoration. c. Delays by the City in taking action shall not in any way waive the City’s right to take action. d. The City may pursue all legal remedies available to it to ensure that telecommunications facilities not in compliance with code standards or which constitute a danger to persons or property are brought into compliance or removed. e. The time periods for repair, removal and restoration set forth in subsection G.2. of this section may be shortened if the review authority determines that a telecommunications facility poses an immediate danger to persons or property. H. Abandoned Telecommunications Facilities. 1. Any telecommunications facility that is not operated for a continuous period of six months shall be considered abandoned, whether or not the owner or operator intends to make use of it or any part of it. The following persons have a duty to remove an abandoned telecommunications facility and restore the site to its natural condition: a. The owner of the abandoned telecommunications facility. b. The former operator of the abandoned telecommunications facility. c. The owner of the site upon which the abandoned telecommunications facility is located. d. Any lessee or sub-lessee of the site. e. Any telecommunications service provider that, by ceasing to utilize the telecommunications facility, caused the telecommunications facility to be abandoned. f. Any person to whom there has been transferred or assigned any license issued by the Federal Communications Commission under which the communications facility was operated. g. Any successor of any of the foregoing persons by asset sale or merger. h. Any parent, subsidiary, or affiliate of any of the foregoing persons. i. Any managing partner of any of the foregoing that is a limited partnership. j. Any general partner of any of the foregoing that is a general partnership. 2. If such telecommunications facility is not removed and the site is not restored to its natural condition within 60 days of receipt of notice from the City notifying the owner of such abandonment, the City may remove such telecommunications facility and restore such site to its natural condition and place a lien upon the property for the costs of removal. The City also may pursue all legal remedies available to it to ensure that abandoned telecommunications facilities are removed. Delay by the City in taking action against abandoned telecommunication facilities shall not in any way waive the City’s right to take action. The City may seek to have the telecommunications facility removed and the site restored to its natural condition regardless of the owner’s or operator’s intent to operate the telecommunications facility and regardless of any permits that may have been granted to do so. 3. A new conditional use permit must be granted before an abandoned telecommunications facility is brought back into use, and the applicant must meet all of the conditions of this section as if the abandoned telecommunications facility were a new telecommunications facility. I. Coordination with Federal Law. 1. A conditional use permit may be granted despite noncompliance with the provisions of this section whenever denial of conditional use permit would unreasonably discriminate among providers of functionally equivalent personal wireless services or prohibit or have the effect of prohibiting the provision of personal wireless services, within the meaning of 47 U.S.C. § 332(c)(7)(B)(i). 2. In evaluating an application for a conditional use permit, no consideration shall be given to the environmental effects of radio frequency emissions to the extent that such emissions are in compliance with the regulations of the Federal Communications Commission, as provided in 47 U.S.C. § 332(c)(7)(B)(iv). 3. If any portion of this section is found invalid by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision of this section, and such holding shall not affect the validity of the remaining portions of this section. J. Exclusions. The following shall be exempt from this section: 1. Any tower and antenna under 60 feet in total height above the ground that is owned and operated by an amateur radio operator licensed by the Federal Communications Commission; and 2. Any receive-only consumer device designed for over-the-air reception of television broadcast signals, multi-channel multi-point distribution service, or direct broadcast satellite service. (Ord. 2019-22, Amended, 7/2/2019 (Res. 2019-31); Ord. 2016-07, Amended, 2/16/2016 (Res. 2016-02)) 4.1. 4.2. 4.3. 4.4. 4.5. 4.6. 4.7. 4.8. Article 4: Wireless Communication Facilities Sections: Title Purpose Administration General Development and Design Standards and Processes Noncommercial Amateur Radio Tower or Oversized Satellite Earth Station Interference with Public Safety Communications Post-Construction Inspections Abandonment and Removal 4.1. Title This Article shall be known as the Sedona Wireless Communication Facilities Ordinance. [Ord. 2018-12, 11-14-18 (Res. 2018-34)]. 4.2. Purpose The purpose of this article is to: A. Provide protection of the unique natural beauty and small-town character of the City as specified in the Sedona Community Plan while meeting the needs of its citizens to enjoy the benefits of wireless communication services; B. Promote the health, safety and general welfare of the public by regulating the siting of wireless communication facilities, including satellite earth stations; C. Consider potential impact on historical and environmentally sensitive areas and adjacent properties; D. Minimize the impacts of wireless communication facilities on surrounding areas by establishing standards for location, structural integrity and compatibility; Article 4 Wireless Communication Facilities | Sedona Land Development Code Page 1 of 29 The Sedona Land Development Code is current through Ordinance 2023-09, passed October 24, 2023. E. Encourage the location and collocation of wireless communication equipment on existing structures thereby minimizing new visual, aesthetic and public safety impacts, effects upon the natural environment and wildlife, and the need for additional towers; F. Encourage antenna configurations that minimize additional visual impact through careful and innovative siting; G. Accommodate the growing need and demand for wireless communication services; H. Encourage coordination between suppliers of wireless communication services in the City; I. Respond to the policies embodied in the Telecommunications Act of 1996 and the 2012 Spectrum Act in such a manner as not to unreasonably discriminate between providers of functionally equivalent personal wireless service or to prohibit or have the effect of prohibiting personal wireless service in the City; J. Establish predictable and balanced regulations governing the construction and location of wireless communication facilities, within the confines of permissible local regulation for locations outside of public rights-of-way. Wireless communication facilities within a ROW shall be regulated in accordance with the provisions of Sedona City Code Title 12 and the provisions of A.R.S. § 9-591 et seq.; and K. Establish review procedures to ensure that applications for wireless communication facilities are reviewed and acted upon within a reasonable period of time. [Ord. 2018-12, 11-14-18 (Res. 2018-34)]. 4.3. Administration A. Applicability (1) Except as provided for in subsection 4.3.A(2) below, this article shall apply to development activities including installation, construction, or modification to all the following wireless communication facilities: a. Existing towers, concealed and nonconcealed; publicly and privately owned; b. Proposed towers, concealed and nonconcealed; publicly and privately owned; c. Replacement of any existing tower; d. Collocation on any existing tower or base station; e. Existing concealed and nonconcealed base stations, publicly and privately owned; Article 4 Wireless Communication Facilities | Sedona Land Development Code Page 2 of 29 The Sedona Land Development Code is current through Ordinance 2023-09, passed October 24, 2023. f. Proposed concealed and nonconcealed base stations, publicly and privately owned; g. AM/FM/TV/DTV broadcasting facilities; and h. Amateur radio tower(s). (2) The following items are exempt from the provisions of this article, notwithstanding any other regulations established in this Code: a. Noncommercial, amateur radio towers or antennas that are less than 65 feet in height and attached to the rear or side of residential or commercial structures or freestanding in an area directly behind the rear structural wall of a residential or commercial structure. Noncommercial, amateur, ham radio or citizens’ band towers, antennas or antenna arrays with heights greater than 65 feet or not located directly behind the rear structural wall of a residential or commercial structure, or attached to the rear or side of residential or commercial structures shall be regulated in accordance with Section 4.4, General Development and Design Standards and Processes; b. Regular maintenance of any existing wireless communication facility that does not include an increase in the size or number of antenna; the addition of radio heads or other similar structures; the addition of coaxial cable; or the addition of equipment shelters, cabinets or generators; c. The replacement of existing antennas, antenna panels, antenna elements or other equipment on an existing tower or base station by the same owner or wireless communication facility provider; provided, that the replaced antennas, antenna elements or equipment meet building code requirements (including wind loading) and provided such replacement does not increase the overall height or width of the structure; d. A government-owned wireless communication facility, upon the declaration of a state of emergency by federal, state, or local government and a written determination of public necessity by the Fire Chief or Chief of Police; except that such facility must comply with all federal and state requirements. No wireless communication facility shall be exempt from the provisions of this article beyond the duration of the state of emergency; e. Data, video or information transmission as part of the day-to-day operations of a commercial business, including, for example, processing of credit card sales, automatic inventory control, and the like, which are mounted on and do not extend more than two meters or six and one-half feet above the roof surface of any building. Where technologically feasible, such antennas shall not be mounted on an exterior parapet wall facing a ROW or private easement; f. A commercial or residential wireless internet send/receive antenna that is required to be located at the point of use. Where technologically feasible, such antennas shall not be mounted on an exterior parapet wall facing a ROW or private easement; g. OTARD including satellite earth stations, so long as the device does not require construction of a tower or other structure exceeding 12 feet above the home or building and the device is no more than one Article 4 Wireless Communication Facilities | Sedona Land Development Code Page 3 of 29 The Sedona Land Development Code is current through Ordinance 2023-09, passed October 24, 2023. meter in diameter in a residential zone or two meters in any other zone district. Where technologically feasible, such antennas shall not be mounted on an exterior parapet wall facing a ROW or private easement; h. Any antenna-supporting structure that is damaged or destroyed by fire, flood, explosion, earthquake, war, riot, or act of God may be reconstructed and used as before if done within 12 months of such calamity; provided, that there is no increase in structure height, width or number of antennas. If a new, larger antenna-supporting structure is proposed as a replacement structure, then the requirements of Section 4.3.B, Approvals Required, shall be satisfied; i. A temporary PWSF, utilized for not more than 60 calendar days, which does not require FAA lighting or marking and does not require any kind of excavation; and j. A wireless communication facility located within a ROW, which shall be regulated in accordance with the provisions of Sedona City Code Title 12 and the provisions of A.R.S. § 9-591 et seq. (3) Siting Preferences for New Wireless Communication Facilities a. Siting of new PWSF of any type shall be in accordance with the siting preferences below and with the use table below. Where a lower-ranked alternative is proposed, the applicant must demonstrate through relevant information including, but not limited to, an affidavit by a radio frequency engineer demonstrating that despite diligent efforts to adhere to the established preferences within the geographic search area, higher ranked options are not technically feasible, practical or justified given the location of the proposed facilities, by clear and convincing evidence. The applicant must provide such evidence in its application in order for the application to be considered complete. No new PWSF shall be permitted unless the applicant demonstrates that no existing PWSF can accommodate the applicant’s proposed facility; or that use of such existing facilities would prohibit personal wireless services in the area of the City to be served by the proposed antenna-supporting structure. b. Evidence submitted to demonstrate that no existing PWSF could accommodate the applicant’s proposed facility may consist of any of the following: 1. No existing PWSF located within the geographic search ring or a one-half mile around the geographic search ring meet the applicant’s engineering requirements. 2. Existing PWSF are not of sufficient height to meet the applicant’s engineering requirements. 3. Existing PWSF do not have sufficient structural strength to support the applicant’s proposed wireless communication facilities and related equipment. 4. The applicant demonstrates that there are other limiting factors that render existing PWSF unsuitable. c. Siting for new PWSFs is as shown in Table 4.1. The preferred order of alternative ranking, from highest to lowest, shall be 1, 2, 3, 4, and 5 (and within each ranking a, b, c, etc.). Article 4 Wireless Communication Facilities | Sedona Land Development Code Page 4 of 29 The Sedona Land Development Code is current through Ordinance 2023-09, passed October 24, 2023. Table 4.1 Siting for New PWSFs PWSF Type Tower Example Base Station Example Other Example 1. Concealed Base Station a. City-owned property Not applicable b. Other public property c. Privately-owned property zoned nonresidential d. Privately-owned property zoned: i. Non-residential use in residential single family (RS) or residential multi-family (RM) districts ii. Non-residential multi-family structures in high density multi-family (RM) districts. iii. Residential multi-family structures in high density multi-family (RM) districts. 2. Collocation Article 4 Wireless Communication Facilities | Sedona Land Development Code Page 5 of 29 The Sedona Land Development Code is current through Ordinance 2023-09, passed October 24, 2023. Table 4.1 Siting for New PWSFs PWSF Type Tower Example Base Station Example Other Example a. Concealed collocation on an existing concealed tower or concealed base station Not applicable b. On a non-concealed tower or base station 3. Replacement Replacement of existing non-concealed tower with a concealed tower No picture available No picture available No picture available 4. Concealed Tower for Small Cell, DAS or Node (not macro) Article 4 Wireless Communication Facilities | Sedona Land Development Code Page 6 of 29 The Sedona Land Development Code is current through Ordinance 2023-09, passed October 24, 2023. Table 4.1 Siting for New PWSFs PWSF Type Tower Example Base Station Example Other Example a. City-owned property Not applicable b. Public property c. Privately-owned property zoned nonresidential d. Privately-owned property that is: i. Nonresidential use in residential single-family (RS) or residential multifamily (RM) districts ii. Nonresidential multifamily structures in high density multifamily (RM) districts iii. Residential multifamily structures in high density multifamily (RM) districts B. Approvals Required All applications for PWSF shall be considered by the Planning and Zoning Commission (Commission) at a public hearing as set forth in Section 8.4.B, Conditional Use Permit, based on potential location, aesthetic or visually related impacts as a result of the proposed antenna’s height, color, size and the like, except as set forth below. (1) All applications for: (a) concealed replacement tower collocations that do not constitute a “substantial change” on an existing tower or base station that has been designed and approved to accommodate multiple wireless collocations; or (b) replacements of existing nonconcealed towers with concealed towers; shall each be subject to review and approval by the Director, relative to the review criteria provided in Section 4.3.C, Approval Criteria. Article 4 Wireless Communication Facilities | Sedona Land Development Code Page 7 of 29 The Sedona Land Development Code is current through Ordinance 2023-09, passed October 24, 2023. (2) All applications for any wireless communication facilities within a ROW that meet the eligibility criteria for “small cell facilities” in A.R.S. §9-591 et seq. shall be subject to review and approval by the City Engineer in accordance with the provisions of application processes and approval criteria that are set forth in Title 12, Sedona City Code and A.R.S. §9-591. C. Approval Criteria In considering any application for a conditional use permit for the establishment of a tower or base station, the Director or Commission’s decision shall be guided by the application of the following criteria: (1) Use of suitable existing towers or base stations is preferred over placement of new towers; (2) New base stations that do not exceed height limitations for the zoning district are preferred over base stations that do exceed the height limitation for the zoning district; (3) Concealed wireless communication facilities that cannot be readily observable by pedestrians on adjacent streets to such facility are preferred over facilities that are readily observable by pedestrians on adjacent streets; (4) Collocation of multiple uses on a single wireless communication facility will have significant favorable weight in evaluating the application; (5) Network development plans that achieve the fewest number of wireless communication facilities of all users reasonably necessary for commercial coverage are preferred; (6) Location in nonresidential zoning districts is preferred over residential districts; (7) Suitability of the location for collocation of governmental public service wireless service facilities. D. Location by Zoning District (1) Generally a. No wireless communication facilities shall be allowed in any Open Space Districts. b. Wireless communication facilities may be permitted in the following districts subject to approval by the Director or Commission as set forth in Section 4.3.B, Approvals Required. Article 4 Wireless Communication Facilities | Sedona Land Development Code Page 8 of 29 The Sedona Land Development Code is current through Ordinance 2023-09, passed October 24, 2023. Table 4.2 Table of Allowed Uses for Wireless Communication Facilities P = permitted C = conditional use permit required A = accessory Blank Cell = use prohibited Residential Non-Residential Other Wireless Communication Facilities Concealed Base Station on Property with a Nonresidential Land Use City-Owned Property C C C C C C C C C C C C C C C Other Public Property C C C C C C C C C C C C C C C Private Property C C C C C C C C C C C C C C C Replacement of Existing Non-Concealed Tower With a New Concealed Tower Other Public Property M M M M M M M M M M M M M M M Private Property M M M M M M M M M M M M M M M Concealed Small Cell Tower, DAS or Node (Not Macro) on Property with a Residential Land Use City-Owned Property C C C C C C Other Public Property C C C C C C Private Property C C C C C C Concealed Small Cell Tower, DAS or Node (Not Macro) on Property with a Nonresidential Land Use City-Owned Property C C C C C C C C C C C C C C C C C Other Public Property C C C C C C C C C C C C C C C C C Private Property C C C C C C C C C C C C C C C C C Concealed Macro Tower on Property with a Nonresidential Land Use City-Owned Property C C C C C C C C C C C C C C C C Other Public Property C C C C C C C C C C C C C C C C Private Property C C C C C C C C C C C C C C C C RS - 7 0 RS - 3 5 RS - 1 8 RS - 1 0 RS - 6 RM H RM - 1 RM - 2 RM - 3 M1 M2 M3 CO IN L CF OS OC Article 4 Wireless Communication Facilities | Sedona Land Development Code Page 9 of 29 The Sedona Land Development Code is current through Ordinance 2023-09, passed October 24, 2023. Table 4.2 Table of Allowed Uses for Wireless Communication Facilities P = permitted C = conditional use permit required A = accessory Blank Cell = use prohibited Residential Non-Residential Other Collocation on Eligible Facility Non-substantial Change M M M M M M M M M M M M M M M M Collocation on Eligible Facility with Substantial Change or on a Non-Eligible Facility on Property with a Nonresidential Land Use City-Owned Property C C C C C C C C C C C C C C C C Other Public Property C C C C C C C C C C C C C C C C Private Property C C C C C C C C C C C C C C C C 2. City Parks Concealed wireless communication facilities may be permitted within City park areas. Consideration will be given to locating wireless communication facilities on athletic field lighting standards, provided the equipment does not interfere with the primary purpose of the lights and does not detract from the overall aesthetics of the facility. RS - 7 0 RS - 3 5 RS - 1 8 RS - 1 0 RS - 6 RM H RM - 1 RM - 2 RM - 3 M1 M2 M3 CO IN L CF OS OC E. Application Submittal Requirements Prior to submitting an application as described below, an applicant shall conduct a pre-application meeting with the City to discuss the application and the applicant’s plans. (1) Application An application for any type of wireless communication facility shall include the following information: a. A completed application form and any appropriate fees. b. An accurate inventory of applicant’s existing wireless communication facilities, which are existing or for which application for approval or permit has been submitted for zoning or construction, which are within the jurisdiction of this article or within one mile of the City limits. The inventory shall include the location, height, type, ownership and all tenants of each facility. Article 4 Wireless Communication Facilities | Sedona Land Development Code Page 10 of 29 The Sedona Land Development Code is current through Ordinance 2023-09, passed October 24, 2023. c. A map of all locations owned, leased, or operated by the applicant and their coverage that are located within the jurisdiction of this article or within one mile of the City limits of the proposed site or which are capable of service with the proposed site by wireless means. d. An accurate site plan of the proposed wireless communication facility showing the means of access, all adjacent roadways, and a complete landscape plan. e. A scaled drawing of the exterior of the proposed wireless communication facility, clearly showing the method of fencing; coloration; materials; illumination; and camouflage. f. Photo-simulated pre- and post-construction renderings of the proposed wireless service facilities, equipment enclosures and ancillary structures as they would look after construction from locations to be determined at the time of application submittal (but shall, at a minimum, include renderings from the vantage point of any adjacent roadways and occupied commercial or residential structures), as well as photo-simulations of the antenna-supporting structure after it has been fully developed with antenna structures (applicant may assume for the purpose of the simulation that other antenna structures on the facility will resemble their proposed structure in size and design). g. Exterior paint or finish samples of the colors to be used in the construction of the tower, base station and ground equipment facilities. h. Proof of ownership or a letter of authorization from the property owner stating that the applicant may install a wireless communication facility on their property. i. A signed statement from the wireless communication facility owner or owner’s agent stating that the radio frequency emissions comply with FCC standards for such emissions as set forth in 47 CFR 1.1307, 1.310, 2.091 or 2.093, as amended and as applicable (Report and Order, ET Docket 93-62 (Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation), 11 FCC Rcd 15123 (1996); Second Memorandum Opinion and Order and Notice of Proposed Rule Making, ET Docket 93-62 (WT Docket 97-192), 12 FCC Rcd 13494 (1997)). In particular, the statement shall demonstrate the proposed facility, individually and cumulatively, will not exceed the maximum permissible exposure level to the general public of approximately 580 microwatts per square centimeter. In addition, any collocation application shall contain an analytical report which confirms that following installation, the composite facility will remain in compliance with FCC standards as stated in OET-65. j. Proof of an FCC license to transmit and/or receive radio signals in the City prior to commencement of operations. k. Prior to issuance of a building permit, a stamped or sealed structural analysis of the proposed antenna-supporting structure prepared by a licensed Arizona engineer indicating the proposed and future loading capacity of the antenna-supporting structure. l. Prior to issuance of a building permit, proof of FAA compliance with Subpart C of the Federal Aviation Regulations Part 77, Objects Affecting Navigable Airspace. Article 4 Wireless Communication Facilities | Sedona Land Development Code Page 11 of 29 The Sedona Land Development Code is current through Ordinance 2023-09, passed October 24, 2023. m. A signed statement from the wireless communication facility owner agreeing to allow the collocation of other wireless equipment on the proposed antenna-supporting structure. n. When conditional use permit is required, an ownership map of property owners within 300 feet of the exterior boundaries of the subject property as shown on the last assessment of the property. A list of these property owners shall also be provided on mailing labels and keyed to a map showing the location of the identified properties. o. Cover letter describing the overall project and addressing in writing how the proposed wireless communication facility satisfies the requirements of this article. p. All other documentation, evidence or materials necessary to demonstrate compliance with the applicable approval criteria set forth in this article, including where applicable: 1. Existing wireless communication facilities to which the proposed facility will be a handoff candidate, including latitude, longitude and power levels of each; 2. A radio frequency plot indicating the coverage of existing wireless service sites, and that of the proposed site sufficient to demonstrate radio frequency search area, coverage prediction with legend and signal levels, and design radius, together with a certification from the applicant’s radio frequency engineer that the proposed facility’s coverage or capacity potential cannot be achieved by any higher ranked alternative such as collocation, attached facility, replacement facility or concealed facility; 3. Prior to issuance of a building permit, a statement by a qualified professional engineer specifying the design structural failure modes of the proposed facility; 4. Antenna heights and power levels of the proposed facility and all other facilities on the subject property; and 5. A statement from the applicant that demonstrates that alternative locations, configurations and facility types have been examined; and addresses in narrative form the feasibility of any alternatives that may have fewer adverse effects on adjacent properties than the facility, configuration and location proposed including but not limited to: i. Height; ii. Mass and scale; iii. Materials and color; iv. Illumination; and v. Information addressing the following items: a. The extent of any commercial development within the geographic search ring of the proposed facility; Article 4 Wireless Communication Facilities | Sedona Land Development Code Page 12 of 29 The Sedona Land Development Code is current through Ordinance 2023-09, passed October 24, 2023. b. The proximity of the structure to any residential dwellings; c. The proximity of the structure to any public buildings or facilities; d. The existence of tall and like structures within the geographic search ring of the proposed structure. q. Citizen Participation Plan and Report as set forth in Section 8.3.D, Citizen Review Process, when a conditional use permit is required. r. A statement that the proposed facility conforms with state of the art, as defined herein, or alternatively, that state of the art technology is unsuitable for the proposed facility and the basis for same. Costs of state of the art technology that exceed facility development costs shall not be presumed to render the technology unsuitable. s. Any other materials and data as may be required by the Director. F. Expert Review (1) Because of the complexity of the methodology or analysis required to review an application for a wireless communication facility requiring a conditional use permit, the Director may require a technical review by a third-party expert. The costs of this review shall be payable in advance by the applicant, in accordance with the Fee Schedule of the City of Sedona and shall be in addition to applicable conditional use permit and building permit fees. (2) The expert review may address any or all the following: a. The accuracy and completeness of submissions; b. The applicability of analysis techniques and methodologies; c. The validity of conclusions reached; d. Whether the proposed wireless communication facility complies with the applicable approval criteria set forth in these regulations; e. Other matters deemed by the Director to be relevant to determining whether a proposed wireless communication facility complies with the provisions of these regulations. (3) Based on the results of the expert review, the Director may require changes to the applicant’s application or submittals. Article 4 Wireless Communication Facilities | Sedona Land Development Code Page 13 of 29 The Sedona Land Development Code is current through Ordinance 2023-09, passed October 24, 2023. [Ord. 2018-12, 11-14-18 (Res. 2018-34)]. G. Essential Public Services (1) Wireless communication facilities outside public right-of-way shall be regulated and permitted pursuant to this article and shall not be regulated or permitted as essential services, public utilities or private utilities. (2) By submitting any application under this article, applicant shall be deemed to agree that their service is subordinate to essential public service services, and agrees to suspend use of any site, which may conflict with such services, regardless of the reason for such conflict, until such conflict is resolved. H. Enforcement Wireless communication facilities that are not in compliance with all portions of this article shall be removed at the owner’s expense if not brought into compliance within 30 days after written demand by the City. 4.4. General Development and Design Standards and Processes A. General Standards All wireless communication facilities regulated under this article shall meet the following general development and design standards and processes at a minimum: (1) Impact Fee Calculation a. For the purposes of impact fee calculation, the floor area for a wireless communication facility shall be considered a commercial use and shall include the total square footage of all equipment enclosures and the areas of the antenna-supporting structure foundation at or above grade. b. The following shall be considered as development area and shall be required to meet the setbacks and open space ratio requirements for the land use district where they are located: 1. The area beneath all equipment enclosures; 2. The area of the antenna-supporting structure foundation at or above grade; 3. The area beneath ancillary structures; Article 4 Wireless Communication Facilities | Sedona Land Development Code Page 14 of 29 The Sedona Land Development Code is current through Ordinance 2023-09, passed October 24, 2023. 4. The area inside the antenna-supporting structure framework. (2) Signage a. Identification Signage Identification signage for each wireless communication facility shall be required for the purpose of identifying the owner as well as the tenants, responsible party for the operation and maintenance of the facility, its current address and telephone number, ASR registration number, site name, security or safety signs and property manager information (if applicable). Identification signage on wireless communication facilities shall not exceed four square feet. b. High Voltage Signage If more than 220 voltage is necessary for the operation of the facility and is present in a ground grid or in the structure, signs located every 20 feet and attached to an enclosing fence or wall shall display in large, bold, high contrast letters (minimum height of each letter: four inches) the following: “HIGH VOLTAGE – DANGER.” (3) Sounds No unusual sound emissions such as alarms, bells, buzzers or the like are permitted and shall be consistent with City Code. Sounds shall not exceed 65 dba at any exterior line of a property in a commercial district and 55 dba at any exterior line of a property in a residential district. (4) Antenna Mounting Antennas and related service equipment mounted on a service tower shall be mounted as close to the tower as possible. (5) Equipment Cabinets a. Vaulting underground freestanding equipment cabinet or shelter and/or power meter not attached to an existing structure is preferred. However, if the applicant can demonstrate that underground water table or floodplain issues prevent vaulting the supporting ground equipment then it may be placed on the ground. In no instance shall supporting ground equipment be located farther than two feet from the base of the structure and it shall not interfere with pedestrian or vehicular traffic. b. Equipment shelters or cabinets not vaulted shall be consistent with the general character of the neighborhood and historic character if applicable. Equipment shelters or cabinets shall be screened from the public view by using landscaping, or materials and colors consistent with the surrounding backdrop. c. Screening enclosures shall be allowed when the design is architecturally compatible with the building. d. Screening materials shall consist of materials and colors consistent with the surrounding backdrop and/ or textured to match the existing structure. Article 4 Wireless Communication Facilities | Sedona Land Development Code Page 15 of 29 The Sedona Land Development Code is current through Ordinance 2023-09, passed October 24, 2023. e. The use of foliage and vegetation around ground equipment may be required based on conditions of the specific area where the ground equipment is to be located. (6) Maintenance Wireless communication facilities shall be maintained in compliance with standards contained in applicable state or local building codes and the applicable health and safety standards established by the FCC or other bodies having jurisdiction, as amended from time to time. (7) Structural Integrity The entire tower or base station and all appurtenances shall be designed pursuant to the design requirements of the most current edition of the IBC adopted by the City of Sedona. In addition, the entire tower or base station and all appurtenances shall be designed pursuant to the design requirements of ASCE 7, including wind speed design requirements, and tower loading/wind design requirements of EIA/TIA 222-G, Series II, including any subsequent modification to those specifications. (8) Lighting New towers shall be illuminated only when required and in accordance with FAA requirements to provide aircraft obstruction lighting. All other on-site lighting required for security or emergency purposes shall be in accordance with Section 5.8, Exterior Lighting, and be activated by timers or motion detectors. (9) Grading and Drainage Applicants shall furnish evidence that the proposed facility does not violate requirements in Section 5.3, Grading and Drainage. (10) Historical/Environmental Review Compliance Applicants shall furnish evidence that the proposed facility has completed any applicable federal/state/tribal historical review or environmental review processes. B. Standards for Specific Types of Facilities In addition to the foregoing general development and design standards, the following additional development and design standards apply to the specific type of wireless communication facility identified below: (1) New Concealed Base Station Facilities for Macro, Small Cell, DAS, or Nodes The following additional standards and processes apply to all new concealed base station facilities: a. Height Article 4 Wireless Communication Facilities | Sedona Land Development Code Page 16 of 29 The Sedona Land Development Code is current through Ordinance 2023-09, passed October 24, 2023. 1. The overall height of any new base station facility on a rooftop shall not exceed more than 10 feet above the rooftop or parapet whichever is greater. “Height” for all purposes in this subsection shall mean the linear distance from the rooftop where the antenna is attached to the highest physical point on the wireless communication facility. 2. The overall height of any new base station facility on an existing utility or light pole shall not exceed five feet above the existing pole. b. Color, Screening, and Placement 1. Buildings i. Where feasible, antennas shall be placed directly above, below or incorporated with vertical design elements of a building or structure to maximize concealment. ii. Base station facilities shall be concealed in some fashion (e.g., screened by a parapet or other device to minimize its visual impact as measured from the boundary line of the subject property). iii. Base stations shall be designed in such a manner as to be compatible with the existing structure. The base station facility shall be constructed to integrate with the existing architecture. There shall be as little contrast as possible between the communications equipment and the structure. 2. Poles i. All cables shall be installed internally; but where internal mounting is not possible, surface mounted wires shall be enclosed within conduit or a similar cable cover which shall be painted to match the structure or building on which that DAS is mounted. ii. Attached equipment box and power meter is discouraged; however, if attachment is justified, equipment box and meter shall be located on the pole at a height that does not interfere with pedestrian or vehicular traffic or visibility and where applicable shall not interfere with street name signs or traffic lighting standards. c. Approval Process Approvals for any proposed facility under this section shall be pursuant to Section 4.3.B, Approvals Required. d. Timing for Review A new concealed base station facility shall be reviewed and a decision rendered within 150 days of receipt of the application, subject to any applicable tolling for application deficiencies and resubmissions, so long as the applicant demonstrates that the facilities will be used, immediately upon completion of construction, to provide personal wireless services, or within such other mutually agreed upon time. Article 4 Wireless Communication Facilities | Sedona Land Development Code Page 17 of 29 The Sedona Land Development Code is current through Ordinance 2023-09, passed October 24, 2023. (“Spec” base stations are not entitled to review and decision within 150 days, or to any of the other protections of the Telecommunications Act.) Construction permits issued for new concealed base stations shall be valid for a term of 180 days and shall lapse and be void if construction of the contemplated concealed base station is not completed within that time. (2) Collocations on Existing Towers or Base Stations The following additional standards and processes apply to all collocation facilities: a. On Eligible Facility; Nonsubstantial Change 1. Any collocation that is on an eligible tower or eligible base station, and that is not a substantial change as defined in Section 9.8, Wireless Communication Facility Definitions, shall be subject to the approval process set forth in Section 4.3.B. 2. Approval Process i. Applicants shall complete a wireless infrastructure application and building permit application and submit applicable filing fees. ii. The Director shall review application and decide if the application meets the nonsubstantial change definitions and notify applicant in writing within 30 days of submission if the application is incomplete or complete. If incomplete, the City shall specifically delineate the missing information. The applicant shall resubmit the missing information. The timeframe for review will begin running again when the applicant makes a supplemental submission. The City shall review and provide written notice to the applicant within 10 days if the application is approved or remains incomplete. If incomplete the City shall provide in writing specifically delineating the missing information. iii. City shall complete review process within 60 days, accounting for any tolling, including any review to determine whether an application is complete unless there is a mutual agreement to an extension of time. The request will be deemed granted is not approved within the 60-day period, accounting for any tolling or mutually agreed upon extension of time. b. Collocation on Noneligible Facility or a Substantial Change 1. Approval Process Any and all collocations that exceed the parameters set forth in the substantial change definition or are on a noneligible facility are subject to discretionary approval on a case-by-case and site-specific basis through the conditional use process as set forth in Section 4.3.B, Approvals Required. Applicants shall minimize substantial changes as much as possible. 2. Antenna Mounting Article 4 Wireless Communication Facilities | Sedona Land Development Code Page 18 of 29 The Sedona Land Development Code is current through Ordinance 2023-09, passed October 24, 2023. Antennas and related service equipment mounted on a service tower shall be mounted as close to the tower as possible. 3. Timing for Review of Substantial Change Collocations A substantial change collocation shall be reviewed, and a decision rendered within 90 days of receipt of the application, subject to any applicable tolling for application deficiencies and resubmissions, so long as the applicant demonstrates that the facilities will be used, immediately upon completion of construction, to provide personal wireless services, or within such other mutually agreed upon time. (“Spec” collocations are not entitled to review and decision within 90 days, or to any of the other protections of the Telecommunications Act.) (3) Concealed DAS, Small Cell, or Nodes a. New Freestanding Concealed DAS, Small Cell, and Node Facility Development Standards The following additional standards and processes apply to all new concealed freestanding DAS, node and small cell tower facilities: 1. Height The total height of a DAS / small cell facility including antenna shall not exceed 30 feet. 2. Setbacks Setbacks for DAS / small cell facility shall meet the same setbacks of the underlying zoning district. 3. Ground Equipment The use of foliage and vegetation around ground equipment may be required by the City based on conditions of the specific area where the ground equipment is to be located. In order to avoid the clustering of multiple items of ground equipment in a single area, a maximum of two ground equipment boxes may be grouped together in any single location. Individual ground equipment boxes shall not exceed the dimensions provided for in Section 9.8, Wireless Communication Facility Definitions. 4. Visibility of New DAS / Small Cell Facility i. New DAS / small cell facilities shall be configured and located in a manner that minimizes adverse effects on the landscape and adjacent properties, with specific design considerations as to height, scale, color, texture and architectural design of the buildings on the same and adjacent zoned lots. Concealment design is required to minimize the visual impact of wireless communication facilities. ii. All cables, conduits, electronics, and wires shall be enclosed within the structure. Article 4 Wireless Communication Facilities | Sedona Land Development Code Page 19 of 29 The Sedona Land Development Code is current through Ordinance 2023-09, passed October 24, 2023. iii. Small cell facilities shall be no larger in size than what is specified in Section 9.8, Wireless Communication Facility Definitions. 5. Timing for Review A new concealed DAS, node and concealed small cell tower shall be reviewed, and a decision rendered within 150 days of receipt of the application, subject to any applicable tolling for application deficiencies and resubmissions, so long as the applicant demonstrates that the facilities will be used, immediately upon completion of construction, to provide personal wireless services, or within such other mutually agreed upon time. (“Spec” towers are not entitled to review and decision within 150 days, or to any of the other protections of the Telecommunications Act.) Construction permits issued for new concealed PWSF towers shall be valid for a term of 180 days and shall lapse and be void if construction of the contemplated concealed PWSF tower is not completed within that time. b. DAS Hub Development Standards 1. Setbacks Setbacks for DAS hubs shall meet the setback standards of the underlying zoning district. 2. Equipment Shelters or Cabinets DAS hub equipment shelters or cabinets shall be consistent with the general character of the neighborhood and historic character if applicable. Equipment shelters or cabinets shall be screened from the public view by using landscaping or materials and colors consistent with the surrounding backdrop. i. Screening enclosures shall be allowed when the design is architecturally compatible with the building; ii. Screening materials shall consist of materials and colors consistent with the surrounding backdrop and/or textured to match the existing structure; iii. The use of foliage and vegetation around ground equipment may be required based on conditions of the specific area where the ground equipment is to be located. (4) Concealed Macro or Replacement Tower The following additional standards and processes apply to new or replacement concealed macro wireless communication facilities: a. Setbacks Concealed facilities shall meet the greater of either: 1. The minimum setback requirements for the zoning district; or Article 4 Wireless Communication Facilities | Sedona Land Development Code Page 20 of 29 The Sedona Land Development Code is current through Ordinance 2023-09, passed October 24, 2023. 2. Away from single-family residential use properties by a minimum distance of 100 percent of the tower height; notwithstanding the foregoing requirements, if the antenna-supporting structure has been constructed using “breakpoint” design technology, the minimum setback distance shall be equal to 110 percent of the distance from the top of the structure to the “breakpoint” level of the structure. For example, on a 70-foot-tall monopole with a “breakpoint” at 50 feet, the minimum setback distance would be 22 feet (110 percent of 20 feet, the distance from the top of the monopole to the “breakpoint”). Certification by an Arizona professional engineer of the “breakpoint” design and the design’s fall radius shall be provided together with the other information required in Section 4.3.E, Application Submittal Requirements. 3. The Planning and Zoning Commission shall have the authority to waive any applicable setback requirements where the City favors a more desirable location within the applicable parcel for the concealed facility. b. Construction The new tower shall be designed to accommodate the maximum amount of wireless communication equipment, including that of other wireless communication providers, with all transmission lines contained within the structure. In all cases, the minimum number of collocated facilities on a new tower 60 or more feet shall be three. No new or replacement concealed wireless communication facility shall be guyed or have a lattice type construction. c. Design Standards 1. No concealed facility, whether fully enclosed within a building or otherwise, shall have antennas, antenna arrays, transmission lines, equipment enclosures or other ancillary equipment that is readily identifiable from the public domain as wireless communication equipment. Examples of concealed facilities include, but are not limited to, flagpoles, light standards, utility poles, church steeples, bell towers, clock towers, and artificial trees. 2. Concealed wireless communication facilities shall be placed and constructed in such a manner as to be compatible with the existing structure or surrounding natural terrain, preferably with both. There shall be as little contrast as possible between the communications equipment and the structure or natural terrain. A determination of appropriate concealment type shall be based on the proposed location and environment. 3. Concealed facilities constructed in the form of a “faux” tree shall mimic a tree native to Sedona with sufficient number of “faux” branches and foliage to conceal all external antenna, panels, trays, cables, support rods, crossbars, port holes, splitters, couplers and attenuators and any other equipment external to the tower mast, which shall be painted or have applied material to simulate tree bark, branches, and leaves indigenous to the area, with variations in color and shape to replicate natural fauna. “Faux” branches shall surround the tower in a multi-dimensional pyramid shape pattern to the top of the tower, with branches and foliage material in variable length, width and depth sufficient to obscure physical view of the tower, antenna elements and brackets. Article 4 Wireless Communication Facilities | Sedona Land Development Code Page 21 of 29 The Sedona Land Development Code is current through Ordinance 2023-09, passed October 24, 2023. 4. Placement of Equipment for Pole-Mounted Antennas Any ground-mounted equipment and equipment shelters shall be located outside of the ROW. Such ground-mounted equipment and equipment shelters shall be painted to comply with the color requirements of Section 5.7.F(5), Building Color, and shall be screened from public view with appropriate landscaping. In the alternative, equipment may be mounted on the pole; provided, that access to the pole and to any other services or equipment above it is not impeded. Pole-mounted equipment shall also be designed and placed to be aesthetically compatible with existing and proposed uses and as visually inconspicuous as possible. 5. Security An opaque fence or masonry wall no greater than eight feet in height from finished grade shall be provided around the perimeter of all development areas for ground-mounted wireless communication facilities. The decision to provide either a fence or a wall shall rest with the Director and/or Commission. If a fence is used to enclose the site, the fence shall be constructed of wire mesh, metal picket or an alternative material as approved by the Director and/or Commission. If a wall is used to enclose the site, the wall shall have a decorative finish of native stone, stucco, split- faced block, brick, or an alternative material as approved by the Director and/or Commission. The Director will give administrative approvals; and for conditional use permits the Director will make recommendations and the Commission will give approvals. Access to the development area shall be through a locked gate. 6. Landscaping Landscaping and buffering shall be required around the perimeter of development areas, except that the Director or Commission, as applicable, may waive any applicable landscaping requirements as outlined in this Code on one or more sides of the development areas or allow the placement of required landscaping elsewhere on the development area when the required landscape area is located adjacent to undevelopable lands or lands not in public view. Landscaping shall be installed on the outside of the perimeter fence or wall. Existing vegetation shall be preserved to the maximum extent practicable and may be used as a substitute for or in supplement towards meeting the landscaping requirements, subject to approval by the Director (for administrative approvals) or Commission (for conditional use permits). Landscaping shall be placed in a manner so as to maximize the screening between residential areas and the wireless communication facility and minimize the view of the facility from any residential areas. The Director or Commission may approve an alternate method of compliance for the landscaping on a case-by-case basis. 7. Control Buildings and Ground-Mounted Equipment i. The control buildings shall be designed to be architecturally compatible with adjacent buildings and shall comply with the provisions of Article 5: Development Standards. The control buildings shall not be placed in minimum setback areas as required in Article 2: Zoning Districts, nor shall they encroach into required landscape areas. Article 4 Wireless Communication Facilities | Sedona Land Development Code Page 22 of 29 The Sedona Land Development Code is current through Ordinance 2023-09, passed October 24, 2023. ii. Ground-mounted equipment shall not be visible from beyond the boundaries of the site and shall be screened by a solid wall or fence and dense landscaping materials as described in subsections 4.4.B(4)c.5 and 4.4.B(4)c.6 above. 8. Height The overall height of any concealed tower including antennas shall not exceed the lesser of: (i) 70 feet or (ii) 20 feet above the tallest tree within a 500-foot radius of the proposed facility. “Height” for all purposes in this subsection shall mean the linear distance from the ground to the highest physical point on the antenna-supporting structure, including all antennas and antenna arrays. 9. Adverse Effects on Properties i. New concealed towers shall be configured and located in a manner that shall minimize adverse effects including visual impacts on adjacent properties. The applicant shall demonstrate that alternative locations, configurations, and facility types have been examined and shall address in narrative and graphic form the feasibility of any alternatives that may have fewer adverse effects on adjacent properties than the facility, configuration, and location proposed. ii. An applicant shall demonstrate through the photo-simulation requirements under Section 4.3.E, Application Submittal Requirements, that the project design employs each of these attributes in a manner that minimizes adverse effects to the greatest extent feasible. iii. The following attributes shall be considered from vantage points at adjacent properties, roadways and occupied structures: a. Height and location; b. Mass and scale; c. Materials and color; d. Illumination; e. Existing and proposed vegetation and intervening structures. 10. Timing for Review of New Concealed Tower Applications A new concealed PWSF tower shall be reviewed and a decision rendered within 150 days of receipt of the application, subject to any applicable tolling for application deficiencies and resubmissions, so long as the applicant demonstrates that the facilities will be used, immediately upon completion of construction, to provide personal wireless services or within such other mutually agreed upon time. (“Spec” towers are not entitled to review and decision within 150 days, or to any of the other protections of the Telecommunications Act.) Construction permits issued for new concealed PWSF towers shall be valid for a term of 180 days and shall lapse and be void if construction of the contemplated concealed PWSF tower is not completed within that time. Article 4 Wireless Communication Facilities | Sedona Land Development Code Page 23 of 29 The Sedona Land Development Code is current through Ordinance 2023-09, passed October 24, 2023. (5) AM/FM/TV/DTV Broadcasting Facilities The following standards apply to new AM/FM/TV/DTV broadcasting facilities: a. An antenna, antenna array and/or antenna-supporting structure for AM/FM/TV/DTV facilities licensed by the Federal Communications Commission shall only be permitted in zoning districts CO or IN in the City. b. Any applicant for the construction or installation of any antenna, antenna array and/or antenna-supporting structure for use as an AM, FM, TV or DTV broadcasting facility must demonstrate, prior to submitting an application, a valid FCC construction permit for the proposed location (showing NAD 27 coordinates and appropriate conversion to NAD 83 coordinates) together with an FAA Determination of No Hazard to Air Navigation (Form 7460) for the same coordinates. c. An antenna, antenna array and/or antenna-supporting structure for use as an AM, FM, TV or DTV broadcasting facility shall, in no event, exceed 250 feet in height. d. Any antenna-supporting structure, equipment enclosures and ancillary structures shall meet the minimum setback requirements for the land use district where they are located, except that where the minimum setback distance for an antenna-supporting structure from any property line or ROW is less than the height of the proposed antenna-supporting structure, the minimum setback distance shall be increased to equal the height of the proposed antenna-supporting structure. However, in all instances, the minimum setback distance from the setback line of any residentially zoned property, with a constructed residence or potential residence, shall be at least 200 percent of the height of the entire proposed structure. e. The entire antenna-supporting structure and all appurtenances shall be designed pursuant to the wind speed design requirements of ASCE 7-95, including any subsequent modification to those specifications. f. Any facility shall be illuminated in accordance with FAA requirements to provide aircraft obstruction lighting, where required. Any lighting required by the FAA must be of the minimum intensity and number of flashes per minute (such as the longest duration between flashes) allowable by the FAA. No strobes or other lighting shall be permitted unless required by the FAA. g. New towers shall maintain a galvanized gray finish or other accepted contextual or compatible color, except as required by federal rules or regulations. h. The radio frequency emissions shall comply with FCC standards for such emissions on an individual and cumulative basis with any adjacent facilities. The applicant shall certify that any and all new services shall cause no harmful interference to the existing City of Sedona Public Safety Communications equipment. i. Applicants shall provide for a fence or wall around the proposed facility that meets the requirements of Section 4.4.B(4)c.5. j. Landscaping and buffering shall be required around the perimeter of development areas, as required by Section 5.6, Landscaping, Buffering, and Screening, except that the Planning and Zoning Commission may waive the required landscaping otherwise required under Section 5.6 on one or more sides of the Article 4 Wireless Communication Facilities | Sedona Land Development Code Page 24 of 29 The Sedona Land Development Code is current through Ordinance 2023-09, passed October 24, 2023. [Ord. 2018-12, 11-14-18 (Res. 2018-34)]. development areas or allow the placement of required landscaping elsewhere on the development area when the required landscape area is located adjacent to undevelopable lands or lands not in public view. Alternative landscaping may be approved by the Planning and Zoning Commission. Landscaping shall be installed on the outside of the perimeter fence or wall. k. The only signage that is permitted upon an antenna-supporting structure, equipment enclosure, or fence (if applicable) shall be informational, and for the purpose of identifying the tower (such as ASR registration number), as well as the party responsible for the operation and maintenance of the facility, its current address and telephone number, security or safety signs, and property manager signs (if applicable). If more than 220 voltage is necessary for the operation of the facility and is present in a ground grid or in the tower, signs located every 20 feet and attached to the fence or wall shall display in large, bold, high contrast letters (minimum height of each letter: four inches) the following: “HIGH VOLTAGE – DANGER.” l. Grading and Drainage Applicant shall furnish evidence that the proposed facility does not violate requirements in Section 5.3, Grading and Drainage. m. Adverse Effects on Adjacent Properties 1. New towers shall be configured and located in a manner that shall minimize adverse effects including visual impacts on adjacent properties. The applicant shall demonstrate that alternative locations, configurations, and facility types have been examined and shall address in narrative and graphic form the feasibility of any alternatives that may have fewer adverse effects on adjacent properties than the facility, configuration and location proposed. 2. The following attributes shall be considered from vantage points at adjacent properties, roadways and occupied structures: i. Height and location; ii. Mass and scale; iii. Materials and color; iv. Illumination; v. Existing and proposed vegetation and intervening structures; and vi. Overall aesthetics of the proposed structure. Article 4 Wireless Communication Facilities | Sedona Land Development Code Page 25 of 29 The Sedona Land Development Code is current through Ordinance 2023-09, passed October 24, 2023. 4.5. Noncommercial Amateur Radio Tower or Oversized Satellite Earth Station An applicant proposing either (A) a satellite earth station larger than the parameters set forth in Section 4.3.A(2)g or (B) an amateur radio tower that is 65 feet or greater or is not located either directly behind the rear structural wall of a residential or commercial structure, or is attached to the rear or side of a residential or commercial structure, shall obtain a conditional use permit as set forth in Section 8.4.B, Conditional Use Permit, relative to the review criteria provided in Section 4.3.C, Approval Criteria, prior to submittal for building permit approval and the initiation of construction. A. Application Requirements (1) Site plan application in accordance with the site plan requirements of the codes of the City. (2) Applicant’s copy of current, valid FCC license for amateur radio tower operation (not applicable for satellite earth station applicants). (3) Site plan sketch showing all proposed structures (such as support structures, anchorage) and setbacks from such structures to property boundaries. B. Approval Standards Approval standards for amateur radio tower in excess of 65 feet: (1) The facility shall be accessory to a legal, principal use on site (such as a residence). (2) Structures, including towers, shall meet the setback requirements for primary structures for the zoning district in which the proposed facility shall be located. (3) Applicant shall commit in writing that the facility will be erected in accordance with manufacturer’s recommendations. (4) If more than 220 voltage is present in the ground grid or in the tower, a sign shall be attached to the tower and shall display in large bold letters the following: “HIGH VOLTAGE – DANGER.” (5) Applicant shall certify that the proposed facility meets or exceeds FCC guidelines for radio frequency radiation exposure. (6) Applicant shall furnish evidence that the proposed facility does not violate requirements in Section 5.3, Grading and Drainage. Article 4 Wireless Communication Facilities | Sedona Land Development Code Page 26 of 29 The Sedona Land Development Code is current through Ordinance 2023-09, passed October 24, 2023. [Ord. 2018-12, 11-14-18 (Res. 2018-34)]. C. Collocation Prohibited Collocation of any antenna, antenna arrays, microwave or similar type equipment not used for the purposes of either a satellite earth station or an amateur radio tower is prohibited. 4.6. Interference with Public Safety Communications In order to ensure that the City’s public safety radio services will be free from objectionable technical interference, all applicants requesting a permit for a wireless communication facility or an AM/FM/TV/DTV facility shall agree, in addition to any other requirements: A. To demonstrate compliance with good engineering practices; B. To provide the City a copy of all inter-modulation studies submitted to the FCC; C. Not to induce objectionable technical interference to the City’s public safety radio services; D. To comply with FCC regulations regarding susceptibility to radio frequency interference, frequency coordination requirements, general technical standards for power, antenna, bandwidth limitations, frequency stability, transmitter measurements, operating requirements, and any and all other federal statutory and regulatory requirements relating to radio frequency interference (RFI); E. In the case of collocation of wireless communications facilities either in the same location or on the same tower as the City’s, to not cause or permit to be caused by its transmissions or other activities on the premises, objectionable technical interference of any kind whatsoever to the broadcasting transmissions, reception, or electromagnetic communications of the City; F. To pay for any studies requested by the City’s Director to determine if the applicant’s wireless communication facilities are causing objectionable technical interference; and G. Upon notification by the Director, if the operations of the applicant are causing objectionable technical interference, to immediately undertake all steps necessary to determine the cause of and eliminate such interference utilizing the procedures set forth in the joint wireless industry-public safety “Enhanced Best Practices Guide,” released by the FCC in Appendix D of FCC 04-168 (released August 6, 2004), including the “Good Engineering Practices,” as may be amended or revised by the FCC from time to time in any successor regulations, at the cost of the applicant. If said interference continues for a period in excess of 48 hours after notice from the Director, the City shall have the right to cause the applicant to cease operating the equipment Article 4 Wireless Communication Facilities | Sedona Land Development Code Page 27 of 29 The Sedona Land Development Code is current through Ordinance 2023-09, passed October 24, 2023. that is causing the objectionable technical interference or to reduce the power sufficiently to ameliorate the objectionable technical interference until the condition causing said interference has abated. [Ord. 2018-12, 11-14-18 (Res. 2018-34)]. 4.7. Post-Construction Inspections A. Wireless communication facility owners (other than amateur radio towers) shall submit a report to the Community Development Department certifying structural and electrical integrity, as well as continued compliance with RF exposure standards specified in OET-65, upon activation of the facility and thereafter once every two years on the anniversary of the certificate of completion. B. Inspections shall be conducted by an engineer licensed to practice in the state of Arizona. Based upon the results of an inspection, the Director of the Community Development Department may require repair or removal of a wireless communication facility. C. The City may conduct periodic inspections with the cost of such inspection paid by the owner of the wireless communication facility as provided in the fee schedule of the City to ensure structural and electrical integrity. The owner of the wireless communication facility may be required by the City to have more frequent inspections if there is evidence that the wireless communication facility has a safety problem or is exposed to extraordinary conditions. [Ord. 2018-12, 11-14-18 (Res. 2018-34)]. 4.8. Abandonment and Removal A. Towers and base stations shall be removed and the site restored at the owner’s expense, within 180 days of cessation of use. B. An owner wishing to extend the time for removal or reactivation shall submit an application stating the reason for such extension. The Director may extend the time for removal or reactivation up to 60 additional days upon a showing of good and unique cause. If the tower or base station is not removed within this time, the City may give notice that it will contract for removal within 30 days following written notice to the owner. Thereafter, the City may cause removal at the cost of the owner. C. Upon removal of the tower or base station, the site shall be returned to its natural state and topography and vegetation consistent with the natural surroundings or consistent with the current uses of the surrounding or adjacent land at the time of removal, excluding the foundation, which does not have to be removed. The Article 4 Wireless Communication Facilities | Sedona Land Development Code Page 28 of 29 The Sedona Land Development Code is current through Ordinance 2023-09, passed October 24, 2023. The Sedona Land Development Code is current through Ordinance 2023-09, passed October 24, 2023. Disclaimer: The City Clerk’s Office has the official version of the Sedona Land Development Code. Users should contact the City Clerk’s Office for ordinances passed subsequent to the ordinance cited above. City Website: www.SedonaAZ.gov Hosted by Code Publishing Company, A General Code Company. Director may extend the time for returning the site to its natural state, topography, and vegetation up to 60 additional days upon a showing of good and unique cause. If the site improvements are not made, the City may give notice that it will contract for the improvements within 30 days following written notice to the owner. Thereafter, the City may contract the improvements at the cost of the owner. [Ord. 2018-12, 11-14-18 (Res. 2018-34)]. Article 4 Wireless Communication Facilities | Sedona Land Development Code Page 29 of 29 The Sedona Land Development Code is current through Ordinance 2023-09, passed October 24, 2023. Zoning Code Adopted June 8, 1998 Ordinance O-98-13 Updated June, 2019 06-2019 Update 1 Bisbee Zoning Code, 1998 ARTICLE 1 General……………………………………………………………………………………4 1.1 Purpose and Title ........................................................................................................................ 4 1.2 Interpretation .............................................................................................................................. 4 1.3 Repeal of Inconsistent Ordinances............................................................................................ 4 1.4 Violation and Penalty ................................................................................................................. 4 1.5 Nonconforming Use ..................................................................................................................... 4 1.6 Severability ................................................................................................................................... 5 1.7 Authority ...................................................................................................................................... 5 1.8 Relationship to Land Use Plans and Policies ............................................................................ 5 ARTICLE 2 OFFICIALS, BOARDS AND COMMISSIONS ................................................................................6 2.1 (Reserved) ..................................................................................................................................... 6 2.2 Zoning Administrator ................................................................................................................. 6 2.3 Planning and Zoning Commission ............................................................................................. 6 2.4 Board of Adjustment .................................................................................................................. 7 2.5 Site Planning Committee ........................................................................................................... 8 2.6 Design Review Board ................................................................................................................... 8 ARTICLE 3 PROCEDURES ................................................................................................................10 3.1 Amendments / Rezoning ............................................................................................................ 10 3.2 Special Use Permit ..................................................................................................................... 12 3.3 Variance ...................................................................................................................................... 13 3.4 Site Plan ...................................................................................................................................... 13 3.5 Architectural Design Review for Historic Preservation (HP) Overlay District ................... 15 3.6 Building Permits ........................................................................................................................ 17 ARTICLE 4 DISTRICTS AND BOUNDARIES................................................................................................18 4.1 Division of City into Districts; Enumeration ........................................................................... 18 4.2 Boundaries of Districts .............................................................................................................. 19 ARTICLE 5 SPECIFIC PLAN ZONING ........................................................................................................19 5.1 General ........................................................................................................................................ 19 5.2 R Zone (Residential) ................................................................................................................ 19 5.3 HP (Historic Preservation) Overlay Zone ............................................................................... 22 ARTICLE 6 GENERAL PROVISIONS ..........................................................................................................26 6.1 Additional Height Restrictions ................................................................................................ 26 6.2 Height Limitations for Corner Lots ........................................................................................ 26 6.3 Additional Area Regulations ................................................................................................... 26 6.4 Walls and Fences........................................................................................................................ 27 6.5 Landscaping and Open Space................................................................................................... 27 6.6 Proximity to Runways and Landing Strips ............................................................................. 27 6.7 Manufactured Homes in the RM Zone .................................................................................... 27 06-2019 Update 2 Bisbee Zoning Code, 1998 6.8 Outdoor Storage ......................................................................................................................... 28 6.9 Vehicle Storage ........................................................................................................................... 28 6.10 Pool Safety ................................................................................................................................ 29 6.11 Effect of Establishment of Zoning Districts .......................................................................... 29 6.12 Clearing Land .......................................................................................................................... 29 6.13 Community Gardens ............................................................................................................... 30 6.15 Solar Energy Devices ................................................................................................................ 32 ARTICLE 7 SIGN REGULATIONS ..............................................................................................................35 7.1 Purpose ....................................................................................................................................... 35 7.2 Requirements and Procedures ................................................................................................ 35 7.3 Residential Zone Sign Regulations......................................................................................... 37 7.4 Commercial and Manufacturing Zone Sign Regulations ..................................................... 38 7.5 Historical Preservation Overlay District Sign Regulations .................................................. 39 7.6 Signs Allowed by Special Use Permits .................................................................................... 40 7.7 Nonconforming Signs .............................................................................................................. 40 ARTICLE 8 PARKING AND LOADING .........................................................................................................43 8.1 Requirements ............................................................................................................................ 43 8.2 Combination of Uses ................................................................................................................. 44 8.3 Commercial and Manufacturing Parking in Residential Areas .......................................... 44 8.4 General ...................................................................................................................................... 45 8.5 Off-Street Loading .................................................................................................................... 45 8.6 Residential Permit Parking ..................................................................................................... 45 9.1 Rules of Interpretation ............................................................................................................. 47 9.2 Definitions ................................................................................................................................. 47 ARTICLE 10 DEVELOPMENT STANDARDS FOR WIRELESS COMMUNICATIONS FACILITIES ..................55 10.1 Statement of Purpose .............................................................................................................. 55 10.2 Review Process ......................................................................................................................... 55 10.3 Co-Location .............................................................................................................................. 55 10.4 Design ........................................................................................................................................ 55 10.5 Certification Required for Building Permit Issuance .......................................................... 55 10.6 Setbacks .................................................................................................................................... 56 10.7 Minimum Site Area Requirements ........................................................................................ 56 10.8 Fencing Requirements ............................................................................................................. 56 10.9 Parking ..................................................................................................................................... 56 10.10 Noise or Vibration ............................................................................................................... 56 10.11 Removal of Abandoned Wireless Communication Facilities .......................................... 56 10.12 Historic Districts ................................................................................................................. 56 06-2019 Update 3 Bisbee Zoning Code, 1998 ARTICLE 10A REGISTERED NONPROFIT MEDICAL MARIJUANA DISPENSARIES ..................................57 ARTICLE 11 MASTER DEVELOPMENT PLANS .........................................................................59 11.1 Purpose of Master Development Plans ................................................................................... 59 11.2 Requirement for a Master Development Plan ....................................................................... 59 11.3 Status of Master Development Plans ...................................................................................... 59 11.4 Effect of Master Development Plans upon Zoning Changes and Subdivision Plat Approvals .................................................................................................................................. 59 11. 5 Submittal Requirements for Master Development Plans ................................................ 60 11.6 Schedule of Development ................................................................................................... 62 11.7 Revocation of a Master Development Plan ....................................................................... 62 11.8 Procedure and Standards for Adopting and Amending Master Development Plans ........ 62 11.9 Pre-application Citizen Review Process ................................................................................. 63 ARTICLE 12 WATER CONSERVATION PROGRAM .................................................................65 12.1 Purpose and Intent. .................................................................................................................. 65 12.2 Outdoor Water Conservation Requirements. ........................................................................ 65 12.4 Educational Programs and Demonstration Projects ............................................................. 66 APPENDIX TO THE ZONING CODE ...............................................................................................................67 CITY OF BISBEE: USES AND ZONE MATRIX ................................................................................................1 06-2019 Update 4 Bisbee Zoning Code, 1998 ARTICLE 1 GENERAL 1.1 Purpose and Title The purpose of this ordinance is for the protection of the public health, safety, comfort, convenience and general welfare and in order to secure the social, physical and economic advantages of the citizens of the City of Bisbee, Arizona. The Zoning Ordinance shall be available for public inspection in the Bisbee Community Development Department and are hereby adopted by the City Council. This Ordinance shall be known, cited and pleaded as the “Zoning Code” of the City of Bisbee. 1.2 Interpretation A. When the provisions of this ordinance are interpreted or applied they shall be held to be the minimum requirements for the promotion of the public safety, health, and general welfare. B. Any provision of this Zoning Code, as it may be amended, shall not impair interfere with, abolish, or annul any contract, easement, covenant, or any other private agreements, except as allowed by the state and federal constitutions. This Zoning Code shall apply independently of any easement, covenant, deed restriction or other agreement between private persons. 1.3 Repeal of Inconsistent Ordinances All ordinances and portions of ordinances of the City of Bisbee in conflict with this ordinance are hereby expressly repealed. 1.4 Violation and Penalty 1.4.1 General Any person, firm, or corporation, including the principal, owner, agent and tenant who violates, disobeys, omits, or refuses to comply with, or who resists the enforcement of any of the provisions of the Zoning Code shall receive a written notice citing the specific violation and a copy of the applicable Code sections. Such party shall be given 30 days to correct the violation. The written notice shall include an explanation of the appeal procedures. The written notice shall also include notice of the potential fine, not to exceed $750 per violation if the violation continues. 1.4.2 Enforcement A. If the recipient of any notice of violation fails to submit an appeal within thirty (30) days from the date of such notice, the notice of violation shall constitute a final administrative decision on the issue. B. If an appeal is made to the Board of Adjustment, the decision of the Code Enforcement Officer and Planning and Zoning Director may be affirmed, reversed, or modified. C. If the violation continues for more than 30 days after the issuance of the original notice of violation and no appeal is filed, or if an appeal is taken and the violation continues for 30 days or more after a decision upholding the original action, the Code Enforcement Officer may initiate an enforcement action in the City of Bisbee Magistrate Court. The Magistrate Court shall fix and finally determine the amount of any fine, not to exceed $750 per violation, and order such other and additional relief as may be necessary to correct the violation. D. Any use of property contrary to the provisions of the Zoning Code is unlawful and constitutes a public nuisance. The Code Enforcement Officer, under direction of the Planning and Zoning Director shall immediately commence, or request the City Attorney to commence, all necessary actions or proceedings for the abatement, injunction, and removal of any violation, in the manner provided by law. 1.5 Nonconforming Use 1.5.1 Nonconforming Use of Building or Land Nothing adopted into this Zoning Code shall affect the right to the continued use of any property for the purpose used at the time that any such ordinance or regulation takes effect, nor to the right to make any reasonable repairs or alterations in any buildings, improvements or property used for such pre-existing purpose. 1.5.2 Nonconforming Use Created by Change in Zoning Ordinance or District Boundaries Whenever the use of a building or land becomes nonconforming through a change in the Zoning Code or zoning district boundaries, the use may be continued together with reasonable repairs and alterations. A nonconforming use may be changed to another nonconforming use of the same or of a more restricted classification, if approved by a Special Use Permit. 1.5.3 Termination of Nonconforming Use of a Building or Land 06-2019 Update 5 Bisbee Zoning Code, 1998 In the event that a nonconforming use of any building or land ceases for a period of greater than one (1) year, due to an act or omission within the control of or attributable to the property owner, then any future use shall be in conformity with provisions of this Zoning Code. 1.6 Severability If any section, subsection, sentence, clause, phrase or portion of this Zoning Code is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, the remaining portions of this Zoning Code shall remain in full force and effect. 1.7 Authority The City of Bisbee (Hereinafter referred to as the “City”) is authorized by title 9, chapter 4, Article 6, Sections 9-461 et seq,, Arizona Revised Statutes (ARS) and the Charter of the City of Bisbee to regulate land use and development within the City of Bisbee. 1.8 Relationship to Land Use Plans and Policies It is intended that this Zoning Code provide for the implementation over time of the land use and development policies of the General Plan. 06-2019 Update 6 Bisbee Zoning Code, 1998 ARTICLE 2 OFFICIALS, BOARDS AND COMMISSIONS 2.1 (Reserved) 2.2 Zoning Administrator 2.2.1 Duties A. The Zoning Administrator, who shall be the Community Development Director unless another person shall be specifically appointed by the City Council, is responsible for the enforcement of this Ordinance and shall have the power to enforce the provisions of this Ordinance. For purposes of enforcement, the Zoning Administrator shall issue notices or orders as may be necessary. B. The Zoning Administrator or Building Inspector may call upon the City of Bisbee Police Department for assistance in enforcement of this Ordinance when necessary. C. The Zoning Administrator may institute procedures and rules regarding enforcement of this Ordinance. 2.2.2 Inspection Inspections shall be made by the Building Inspector or by a duly appointed assistant for the purpose of obtaining compliance with the land use and building codes adopted by the City of Bisbee. The Building Inspector has the responsibility of reporting all known or suspected violations of this Zoning Code to the Zoning Administrator for further action. 2.2.3 Records A. The Building Inspector and Zoning Administrator shall keep careful and comprehensive records of all related matters with regard to their duties as outlined in the Zoning Code, including; 1. Copies of all papers in connection with building work as long as the structure is in existence. 2. Records of Planning and Zoning Commission proceedings 3. Records of Board of Adjustment proceedings. 4. Records of Design Review Board proceedings. 5. The Bisbee General Plan. 6. The official Zoning Map(s) 7. Records of violations and corrective action taken. All records shall be open to the public during normal business hours but shall not be removed from City Hall. 2.3 Planning and Zoning Commission 2.3.1 Creation, Composition and Operation There shall be a Planning and Zoning Commission consisting of seven (7) members who shall be appointed for three (3) year staggered terms. The members must be residents of the City of Bisbee. The filling of vacancies of members is established under this Zoning Code. The Planning and Zoning Commission shall have full authority to carry out the provision of this Zoning Code as the Planning Commission. A. The members of the Planning and Zoning Commission are to be appointed by the Mayor and City Council. Each ward in the City is to be represented if possible. Commission members may be removed by the Mayor and Council with or without cause. B. The Commission shall elect a chair and vice chair from among the membership as set out in their bylaws. 2.3.2 Powers and Duties The Planning and Zoning Commission shall: A. Make studies and recommend to the City Council plans, goals and objectives relating to growth, development, and redevelopment of the City and surrounding planning area. B. Develop and recommend to the City Council policies, Ordinances, administrative procedures, and other means for carrying out plans and land use decisions in a coordinated and efficient manner. 06-2019 Update 7 Bisbee Zoning Code, 1998 C. Make recommendations to the City Council concerning proposed special use permits and proposed Zoning map changes. As provided for in this Ordinance (Section 3.1 & 3.2). D. Perform other duties assigned by the City Council within the scope of land use regulation. E. Hold monthly meeting and public hearings when necessary in accordance with section 3.1.4. F. When any Planning and Zoning commission member has a conflict of interest in any matter before the Commission, the member shall be disqualified from participating while the Commission is hearing that particular matter. 2.4 Board of Adjustment 2.4.1 Creation, Composition, and Operation There shall be a Board of Adjustment consisting of seven (7) members, each of whom shall reside within the City Limits of the City of Bisbee. Members of the Board shall be appointed by the Mayor, with the consent of the City Council. The City Council shall have the power to remove any member of the Board. 2.4.2 Powers and Duties A. The Board of Adjustment shall: 1. Hear and decide appeals in which it is alleged that there is an error in an order, requirement or decision made by the Zoning Administrator or Enforcement Officer in the enforcement of the Zoning Code. Any such appeal may arise from the interpretation of any word, phrase, district boundary, or section of this Code or when there is a dispute between the appellant and the enforcing officer. 2. Hear and decide appeals for variances from the terms of the Zoning Code. A variance may be granted only if, because of special circumstances applicable to property, including its size, shape topography, location, or surroundings, the strict application of the Zoning Code will deprive such property of privileges enjoyed by other property of the same classification in the same zoning district. Any variance granted is subject to such conditions as will assure that the adjustment authorized shall not constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and zone in which the property is located. 3. Reverse or affirm, wholly or partly, or modify the order, requirement or decision of the Zoning Administrator or Code Enforcement Officer appealed from, and make such order, requirement, decision or determination as necessary. B. An appeal to the Board of Adjustment must be filed within thirty (30) days of the date of a written decision from the Zoning Administrator or Code Enforcement Officer. An appeal shall stay all proceedings in the matter appealed from, unless the stay would cause imminent peril to life or property. Proceedings shall not be stayed if the Zoning Administrator certifies in writing to the Board that a stay would cause imminent peril to life or property. A reasonable time for hearing appeals shall be fixed and notice of the hearing shall be given to parties of interest by mail. Notice of the hearing shall be provided to the public by one publication in the City’s newspaper of record and by posting notice on the property at issue. C. The concurring vote of a majority of the Board members present shall be necessary to reverse any order or decision of an administrative official, or to grant a variance from the terms and conditions of the Zoning Code. D. The Board of Adjustment may not: 1. Make any changes in the uses permitted in any zoning classification or zoning district, or make any changes in the terms of the Zoning Code, provided the restriction in this paragraph shall not affect the authority to grant variances pursuant to this article. 2. Grant a variance if the special circumstances applicable to the property are self-imposed by the property owner. E. The Board of Adjustment shall elect a Chair and Vice Chair from among their membership. The Chair shall have the power to administer oaths, take evidence and control the meeting. F. A person aggrieved by a decision of the Board of Adjustment or an officer or department of the City affected by the decision may, at any time within thirty days after the decision is rendered, appeal the decision to the Superior Court in the manner provided by law 2.4.3 Meetings, Hearings and Procedures The Board of Adjustment shall meet at least once a year to conduct annual business and meet as often as necessary to hear variances and appeals. It shall elect its own officers, establish its own rules and procedures, keep a public record of its actions 06-2019 Update 8 Bisbee Zoning Code, 1998 and findings including all rules and procedures. The Board must render a report to the City Council and Planning and Zoning Commission when action is taken. Any finding, ruling or decision of the Board relating to the administration of the Zoning Ordinance shall be made by an order at either a regular or special meeting of the Board and shall be fully reported in the minutes of the Board. 2.5 Site Planning Committee 2.5.2 Creation, Composition, and Operation A Site Planning Committee composed of five (5) Members shall meet within fifteen (15) days from the date of submission of a site plan application. The five members shall be a City Councilman, a City Planning Commission member, the Community Development Director, the Public Works Director, and the Building Inspector. If the project is in the historic district, a member of the Design Review Board shall be included in the review process. 2.5.2 Powers and Duties A. The Committee shall approve, approve with stipulations deemed necessary to protect the public health safety and welfare, or deny the site plan. B. A public hearing by the Planning Commission shall be set in the event that two of the five present members of the Site Planning Committee feel it is necessary. C. The Committee shall select a Chairman from its membership. 2.6 Design Review Board 2.6.1 Creation, Composition, and Operation A. There is hereby created a Design Review Board to comply with certified Local Government regulations for Historic District consisting of seven (7) members. Design Review Board members shall serve without compensation and must all be residents of the City of Bisbee. A majority must be residents or property owners of the Historic Preservation (HP) District. B. Meetings shall be held on a monthly basis or more frequently as required. C. The members of the Design Review Board will be appointed by and serve at the pleasure of the Mayor and Council. Design Review Board terms shall be three (3) year renewable terms. The terms will be staggered so that no more than three terms expire in the same year. D. The members of the Design Review Board shall have the following qualifications: 1. Members shall be interested in and knowledgeable of the historic and architectural character of the Bisbee Historic District(s). 2. Members shall have the ability to read two dimensional drawings that will be submitted, and shall have the ability to conceptualize changes to the submitted plans. 3. When any Design Review Board member has direct pecuniary interest in any matter before the Design Review Board, the member shall be disqualified from participating while the Design Review Board is hearing that particular matter. E. The Design Review Board shall obtain the services of architects, landscape architects, or other persons qualified by design background, training, or experience to advise on design aspects as or when appropriate. The Design Review has no authority to commit or expend funds without prior approval of City Council. F. The majority of the Design Review Board must be present for a quorum. 2.6.2 Powers and Duties A. The Design Review Board shall have the power in the Historic District Overlay Zone to review proposals for exterior construction, reconstruction, alterations or structural changes and to approve, conditionally approve, or disapprove an application. Said powers may be delegated by the Design Review Board to the Planning and Zoning Administrator to approve, conditionally approve, or deny an application for minor remodel, signs, or demolition. An application denied by the Planning and Zoning Administrator shall, at the election of the applicant, be submitted to the Design Review Board for its consideration at its next regularly scheduled meeting. (O-99-11) B. All applications for Design Review can be appealed by the process set forth in this Ordinance. 06-2019 Update 9 Bisbee Zoning Code, 1998 C. It shall be the responsibility of the applicant to prove to the Design Review Board or its designee, the Planning and Zoning Administrator, that the project in question conforms with the intent and purpose established in this Ordinance and with the adopted design guidelines. (O-99-11) D. Design Review Board, upon hearing an application, shall impose such reasonable conditions as it may deem necessary in order to carry out fully the provisions and intent of this ordinance. E. Any exterior changes, requiring a building permit or not, must have approval of the Design Review Board prior to the commencement of work. When any project has been started without Design Review Board approval, the Design Review Board shall request that the building Official issue a Stop Work Order which shall be in effect until approval is granted by the Design Review Board. F. Design Review Board is authorized to survey and inventory the historical properties in the Bisbee Historic District. Furthermore, the Design Review Board shall hold public hearings, at its own initiative or at the request of any other for the purpose of making nominations to the National Register of Historic Places. At the conclusion of the public hearing, the Board shall forward a recommendation to the City Council regarding the nomination to the National Register. The Council shall hold a second public hearing, at which time the City Council shall determine whether to nominate the property to the National Register of Historical Properties. G. The Design Review Board will submit a yearly written report to the Mayor and Council and make the report available to the public. H. The Design Review Board shall elect a Chair and Vice Chair from among their membership. 2.6.3 Establishment and Extension of the Bisbee Historic District A. The Bisbee Historic District is hereby created and has the same boundaries as the Historical Preservation District created by the 1971 City of Bisbee Ordinance adopted March 7, 1972. The boundary of this district encompasses all properties within the City Northwest of the intersection of Naco Road and Highway U.S. 80. B. Additional areas may be added to the Bisbee Historic District at any time by the following procedure: 1. Owners of 51% of the properties within the proposed district shall submit a written request or petition to the Design Review Board. 2. A public hearing on the request shall be scheduled by the Design Review Board and every reasonable effort will be made by the City to notify property owners within the proposed district of the hearing. 3. Within ten (10) working days after the hearing, the Design Review Board and shall make its recommendation on the proposed addition to the Planning and Zoning Commission. 4. Within twenty (20) working days of the recommendation, the Planning and Zoning Commission will forward its recommendation along with that of the Design Review Board to the City Council. Failure to act within this period by the Planning and Zoning Commission shall constitute endorsement of the Design Review Board’s recommendation. 5. After receipt of the Planning and Zoning Commissions recommendation or within thirty (30) working days of the public hearing, whichever comes first, the City Council shall schedule a hearing on the proposed district at its next regular session. 6. Approval of the proposal by the City Council shall constitute an amendment to the Zoning Ordinance in lieu of the procedures of Section 3.1. The addition shall be subject to the Bisbee Historic District regulations which supersede the zoning classification regulations. C. The Bisbee Historic District is an overlay to the basic zoning district. 06-2019 Update 10 Bisbee Zoning Code, 1998 ARTICLE 3 PROCEDURES 3.1 Amendments / Rezoning The provisions of this Ordinance may from time to time be amended, supplemented, changed, modified or repealed. 3.1.1 Pre-application Meeting It is required that all potential rezoning applicants meet with planning staff before filing a Rezoning application. 3.1.2 Application and Filing Fee Requests to amend this Ordinance may be initiated by the Planning Commission, the City Council, or a real property owner in the area included in the proposed amendment. Applications for amendments shall be made in the office of the City Clerk, accompanied by a non-refundable fee per City of Bisbee fee Schedule. The Planning Commission and City Council are exempt from filing fees. 3.1.3 Planning Commission Hearing and Report to the City Council All Applications for amendment of this Ordinance must first be submitted to the Planning Commission. The Planning Commission shall hold a public hearing in relation to the proposed amendment at which citizens shall have an opportunity to be heard, the Planning staff shall make a report on the Commission’s recommendation to the City Council. This report shall be made by forwarding the applications for amendment to the City Council, with the appropriate recommendations, unless the applicant shall request the application be withdrawn. 3.1.4 Notification of Planning and Zoning Commission Public Hearing Upon receipt in proper form of an application, the Planning and Zoning Commission shall proceed to hold a public hearing on the application. At this hearing all persons shall be given a reasonable opportunity to be heard. At least ten (10) days before the hearing, but not more than twenty-five (25) days, one (1) notice of the hearing shall be published in the official newspaper of the City of Bisbee and one (1) notice of the hearing shall be posted on the subject property. Notice by First class mail shall be sent to each real property owner, as shown on the last assessment of the property, within three hundred (300) feet of the subject property. The applicant shall maintain the posting of the property. Each notice shall state the date, time and place where the public hearing will be held and the nature of the amendment. Time requirements are for calendar days unless otherwise specified. 3.1.5 Re-application If an applicant is denied by the City Council or the application for amendment is withdrawn after the Planning Commission hearing, the Planning Commission is not required to accept another application for the same amendment within a year of the date of the previous hearing. 3.1.6 Protest Against Application If a written protest against a proposed amendment is presented at any Council Hearing, the amendment shall not become effective except by a favorable vote of three-fourths of all the members of the Council of the City of Bisbee qualified or able to vote on the amendment which in no event will be less than four votes. A written protest must be submitted by 20% of the owners included in at least one of the following categories: A. of the area of the lots included in the proposed change, B. of those immediately adjacent in the area within one hundred fifty (150) feet of the subject property, C. of those directly opposite the subject property. 3.1.7 Rezoning Application Evaluation Criteria An analysis of how the project addresses these evaluation factors is necessary for the staff report to the Commission and Council. The Rezoning application must provide sufficient information for staff to make this analysis. Rezoning Evaluation Factors: 1. Application. The Application Concept/Site Plan must provide sufficient information to determine that the proposed size and layout would comply with the applicable uses and standards for the types and intensity of uses permitted in the requested zoning district. 2. Compliance with Site Development Standards. Each parcel must meet the site development 06-2019 Update 11 Bisbee Zoning Code, 1998 standards of the proposed zoning district including minimum lot size, setbacks, lot coverage, driveway width, parking and ADA-access requirements. The rezoning Concept/Site Plan should show how these standards would be met. 3. Adjacent Districts Remain Capable of Development. Adjacent parcels should be able to meet minimum lot size and development standards of the remaining zoning district. 4. Limitation on Creation of Nonconforming Uses. The subject property should contain no structures or uses that would not be permitted or would not meet development standards of the new district. 5. Compatibility With Existing Development. The proposed rezoning district should be compatible with existing development in the vicinity. 6. Rezonings To More Intense Districts. The proposed new district should: • Be buffered by an intermediate district of sufficient size to provide a reasonable transition of intensity from the existing area; • Be a reasonable extension of a similar density district within the area; and • Provide a transition between an existing less intense district and a more intensive district or an arterial street; or • Provide adequate protection to the adjacent less intense development in the form of enhanced screening, landscaping, setbacks, large lot size, building orientation or other design measures. 7. Adequate Services and Infrastructure. The following factors are used to determine if there are adequate services and infrastructure to serve an intensification of zoning: (a) For a rezoning to a more intensive district, the applicant has provided adequate information to evaluate the impacts of the rezoning on roads, other infrastructure, and public facilities. The applicant must demonstrate that there are adequate provisions to address the impacts identified. (b) If the site accesses on a road where existing demonstrable traffic problems created by incremental development have already been identified, such as a high number of accidents, substandard road design or surface, or the road is near or over capacity, the applicant has proposed a method to address these problems. (c) The proposed development meets or will meet the applicable requirements for street, sewer, or water improvements. (d) The site has access to streets that are adequately designed and constructed to handle the volume and nature of traffic typically generated by the use. 8. Traffic Circulation Criteria. (a) Any rezoning shall be consistent with preservation of the functions of surrounding streets. (b) If the rezoning is to C, CM or M, the development shall not result in the use of any residential street for through traffic to and from the proposed district. 9. Development Along Major Streets. The rezoning size [the size of the land area to be rezoned] limits the number of access points on major thoroughfares or arterial streets, and collectors through the use of frontage roads, shared access, no access easements or other safe methods designed to minimize road cuts that create unsafe traffic conflicts, hazardous traffic congestion and obstruct the functioning of arterials. 10. Infill. This factor is designed to encourage infill in areas where commercial and industrial development already exists, thereby discouraging sprawl and locating new non-residential developments where adequate infrastructure may already exist and where they are most likely to be compatible with existing uses. 11. Unique Topographic Features. A rezoning to a more intensive zoning district shall not take place if there are areas of unstable soils, steep slopes, severe washes, floodplains, etc. which are not appropriate for intense development. Rezonings encompassing such areas will be discouraged unless the developer carefully plans development around these areas, such that they are appropriately protected. 12. Water Conservation. Uses proposed with the rezoning shall show compliance with the water conservation regulations of Article 12 in the City Zoning Code. 06-2019 Update 12 Bisbee Zoning Code, 1998 13. Public Input. If there is a major public opposition to a proposed rezoning, this may indicate that the technical evaluation regarding compatibility of the proposed district does not concur with the view of local residents and a recommendation of denial may be appropriate. If public concerns have been raised, it is fair to ask if the applicant has made a reasonable effort to address these concerns. 14. Hazardous Materials. Adequate data has been submitted to determine that impacts from uses that may involve hazardous or dangerous materials are adequately mitigated. 15. Compliance with General Plan or other Applicable Area Plans. The rezoning conforms to land use designations and policies set forth in the City’s General Plan or any other adopted Area or Master Plan. 3.2 Special Use Permit 3.2.1 Issuance Special Use Permits, which may be revocable, conditional or valid, for a time period, are a privilege, not a right, and may be granted only after review and recommendation by the Planning and Zoning Commission to the City Council, and only after the City Council has found in writing that the granting of the Special Use Permit will not be materially detrimental to the public health, safety, or welfare. Special uses that may be applied for are set forth in the Appendix, designated by blank spaces in the Uses and Zone Matrix and in the chart entitled “Special Use Permit Required.” 1. In arriving at such a determination, the factors which will be considered shall include the following: A. Damage or nuisance arising from noise, smoke, odor, dustU,U traffic, vibration, illumination or parking. B. Hazards to persons and property from possible explosion, contamination, fire or flood. C. Whether infrastructure impacts are minimized; and D. Whether the proposed use is reasonably compatible with the types of use permitted in the surrounding area. The burden of proof for satisfying the aforementioned requirements shall rest with the applicant. Uses incidental to the approved zoning and primary use do not require a Special Use Permit. Uses permitted as a matter of right in each zoning district are indicated in Appendix 1, Bisbee Zoning Matrix. 3.2.2 Application and Filing Fee Application for a Special Use Permit shall be made in writing to the Planning Commission with a non-refundable fee per the City of Bisbee Fee Schedule, the application shall also be accompanied by a site plan, drawn to scale. 3.2.3 Public Hearing Upon receipt in proper form of an application, the Planning Commission shall set a date for a public hearing for the next scheduled Planning and Zoning Commission meeting within forty-five (45) days from the date of the application. At least ten (10) days before the hearing, but not more than twenty-five (25) days, one (1) notice of the hearing shall be published in the official newspaper of the City of Bisbee and one (1) notice of the hearing shall be posted on the subject property. Notice by first class mail shall be sent to each real property owner as shown on the last assessment of the property, within three hundred (300) feet of the subject property. The date, time and place of the public hearing and the nature of the use permit requested shall be included in the notice. The applicant shall maintain the posting of the property. If a public hearing is not held within forty-five (45) days from the date of the application, the application shall be forwarded to the City Council with the recommendation of approval. Time requirements are for calendar days unless otherwise specified. 3.2.4 Action of The City Planning Commission Upon completion of the public hearing on the Special Use Permit, the Planning Commission shall transmit a copy of its findings and recommendations to the applicant and to the City Council. The report order of filing shall become a permanent record of the Planning Commission and the City Clerk. 3.2.5 Action of City Council 06-2019 Update 13 Bisbee Zoning Code, 1998 The City Clerk shall schedule a public hearing before the City Council at which citizens shall have an opportunity to be heard. At least ten (10) days before the City Council hearing but not more than twenty-five (25) days, one (1) notice of the hearing shall be published in the official newspaper of the City of Bisbee and one (1) notice of the hearing shall be posted on the subject property. Notice by first class mail shall be sent to each real property owner as shown on the last assessment of the property, within three hundred (300) feet of the subject property. The date, time and place of the City Council hearing and the nature of the use permit requested shall be included in the notice. 3.2.6 Decision The Council may grant a Special Use Permit stipulating those conditions it feels necessary to carry out the provisions and intent of this Ordinance. A copy of the Special Use Permit shall be posted at all times on the premises. The Special Use Permit will be granted to the applicant but will run with the property unless for a specific time period. 3.2.7 Violation The violation of any condition imposed by a Special Use Permit shall constitute a violation of this Ordinance and render any such permit null and void. Amendment or addition to any Special Use Permit is subject to the same procedures as those which apply to a new applicant. Violations may be appealed to the Hearing Officer. 3.3 Variance 3.3.1 Issuance A variance is a request for an exception to the regulations governing the zoning district. The Board of Adjustment may grant a variance only as authorized by Section 2.4 of this Zoning Code. 3.3.2 Application and Filing Fee A. An appeal or application for Variance shall be filed with the Zoning Administrator upon form provided by the Zoning Administrator, and shall be accompanied by: 1. Plans and description sufficient to indicate the nature of the project involved and the proposed use. 2. A complete explanation of the reasons that the variance is required and the specific variance of the regulations that is being requested. 3. Evidence satisfactory to the Board of Adjustment of the intention of the applicant to proceed with actual construction work in accordance with the plans within six months after issuance of variance. 4. A non-refundable filing fee per City of Bisbee fee schedule. B. From the time the application is filed until the time of the hearing, the application and all maps, plans and other accompanying data shall be available for public inspection during office hours at the office of the Community Development Department. 3.3.3 Hearing and Notice Upon receipt in proper form of an application, the Board of Adjustment shall proceed to hold a public hearing upon the application at which time all persons shall be given a reasonable opportunity to be heard. At least ten (10) days before the hearing, but not more than twenty-five (25) days, one notice of the hearing shall be published in the official newspaper of the City of Bisbee and one (10 notice of the hearing shall be posted on the subject property. Notice by first class mail shall be sent to each real property owner, as shown on the last assessment of the property, within three hundred (300) feet of the subject property. Each notice shall state the time, date and place where the hearing will be held and the nature of the variance and shall state that anyone wanting to oppose or support the relief sought by the applicant may appear in person or may submit a written objection or support statement. 3.3.4 Action The board shall prescribe in connection with any Variance such conditions as the Board may deem necessary in order to fully carry out the provisions and intent of this Ordinance. The conditions may include, among other things, a limitation of the time for which the variance shall be valid. Violation of any such condition shall be a violation of this Ordinance and shall render the Variance null and void. 3.3.5 Review Any person aggrieved be a decision of the Board after hearing an application made by any taxpayer or municipal officer, may bring a special action in the Superior Court of Cochise County. 3.4 Site Plan 06-2019 Update 14 Bisbee Zoning Code, 1998 3.4.1 Site Plan Approval Site Plan approval is required for all commercial and multi- family projects over a half acre (21,788 square feet) in size unless otherwise specified. When site plan approval is required by this Ordinance, an application will be submitted to the Planning Department for the Site Planning Committee and will be accompanied by a non-refundable fee per the City of Bisbee fee schedule. No separate site plan application is required when a site plan is filed with a Special Use Permit. The application will be accompanied by the following information when applicable for the proposed development: A. Site Plan, drawn to scale showing: 1. Name of applicant and agent. 2. Scale. Not greater then 1”=100” 3. Date, title and any required notations. 4. Legal Description. 5. Lot dimensions 6. All building and structures: location, size, height and materials. 7. Yards and space between buildings 8. Walls, fences, and landscaping: location, height and materials. 9. Off Street parking: location, number of spaces and/or dimensions of parking area, arrangement of spaces, internal circulation pattern, and landscaping. 10. Access- pedestrian, vehicular, service: points of ingress and egress. 11. Signs: Location, dimensions, number of spaces, internal circulation. 12. Loading: Location, dimensions, number of spaces, internal circulation. 13. Lighting: location and general nature, hooding devices. 14. Street dedications and improvements. 15. Landscaping, where required by or relevant to the provisions of this Ordinance. 16. Outdoor storage and activities, where permitted in the district: Type, location, height of screening devices. 17. Drainage and Grading. 18. Waste disposal facilities. 19. Renderings and other data as may be required to permit the staff to make the required findings B. The applicant shall submit ten (10) prints of the site plan which meets the Ordinance requirements to the Community Development Director. 3.4.2 Procedure A. The site plan shall be submitted to the Site Planning Committee, which shall determine whether: 1. All provisions of this Ordinance are compiled with. 2. The following are so arranged that traffic congestion is avoided. Pedestrian and vehicular Safety and welfare is protected, and there will be no adverse effect on surrounding property: A. Location of buildings, structures and improvements. B. Vehicular ingress, egress and internal circulation. C. Yards. D. Height of buildings E. Location of service F. Walls G. Landscaping 06-2019 Update 15 Bisbee Zoning Code, 1998 3. Proposed lighting shall be in accordance with the City “Light Pollution Code”. 4. Proposed signs will not by size, location, color, or lighting, interfere with traffic visibility. B. The site Planning Committee’s decisions shall be final unless the applicant requests in writing a public hearing. The request shall be filed with the secretary of the Planning Commission within ten (10) days after the decision, and shall be placed on the agenda of the Planning Commission. C. All copies of the approved site plan, including any conditions, shall be mailed to the applicant. One copy shall be filed with the Building Inspection Department, and one with the City Clerk. 3.4.3 Time Limit of the Site Plan Approval A. One year from the date of approval, a site plan approval becomes void if a building permit has not been issued, unless a different time period is made a condition of site plan approval. B. An extension of approval may be granted if the applicant files for an extension prior to the approval becoming Void and the extension is granted by the approving body. 3.5 Architectural Design Review for Historic Preservation (HP) Overlay District 3.5.1 Purpose Architectural Design Review is intended to encourage and enhance the historical character and natural attractiveness of the City of Bisbee. It is a recognized fact that part of the economic well-being of the City depends upon its tourism development. It is also the intent of this district to protect the City’s unique architecture and items of historical significance from the effects of inharmonious, bizarre, and out-of-scale development. Architectural Design Review requires a review of the exterior design for all buildings, structures, or appurtenances which are to be erected, constructed, converted, established, altered or enlarged within those districts subject to Architectural Design Review, by the Design Review Board. The Historical Preservation District is a supplemental special district which, when superimposed over any other zoning district, requires the plans for all sites, buildings, structures, or appurtenances to be erected, constructed, converted, established, altered or enlarged within the district to be reviewed and approved by the Zoning Administrator and the Design Review Board prior to any construction, removal, or site work. 3.5.2 Review Requirements and Procedures A. Prior to the change of any building’s exterior features, by remodeling or alteration, and prior to any new construction within the District, the property owner, or his designated agent, shall secure the approval of the Design Review Board. For commercial buildings located within the portion of the District that is officially included within the National Register of Historic Places, each property owner shall obtain specific approval from the Design Review Board prior to painting or re-surfacing any existing, unpainted brick structures and prior to covering or altering any of the existing signs painted on the building facades in this area. B. Prior to the preparation of final architectural or engineering drawings for all sites, buildings, structures, enclosures or appurtenances to be erected, constructed, converted, remodeled, altered or enlarged, and prior to the issuance of any building permit, the property owner shall submit the following for the Design Review Boards consideration: 1. An application for Design Review approval which includes the applicant’s name, mailing address, location of property, legal description of property and other information deemed necessary by the Building Inspector and the Design Review Board. 2. Adequate illustration of the building or structure’s character and treatment to scale through elevations of the front, sides and rear of the building. The maximum heights of all structures shall be included. 3. A site plan, to scale, showing area covered by the building or structure, parking areas, and landscaping treatment and any other information pertinent to understanding the application. 4. A list of exterior materials. In case of a sign, the method of attachment. 5. A copy of the assessor’s map of the property. 6. Photographs of the building and of neighboring structures, upon request from the Building Inspector. C. Prior to the issuance of a building permit for any improvements within the District, the Building Inspector shall determine that the Design Review Board has approved plans, as required herein, which are in substantial conformance to those presented with the building permit application. A building permit must be applied for within 1 06-2019 Update 16 Bisbee Zoning Code, 1998 year of approval by the Design Review Board, or otherwise, the applicant must resubmit to the Design Review Board. An application form signed by the chair of the Design Review Board showing the action taken will be kept in the Planning and Zoning Department files. A copy will be retained in the Building Inspection Files and a copy will be given to the applicant. D. The Design Review Board shall impose such conditions as it may deem necessary in order to fully carry out the provisions and intent of the historic district regulations. E. The Building Inspector shall insure that all matters approved by the Design Review Board are undertaken and completed according to the approval of the Design Review Board. The Building Inspector is authorized and required to stop any work attempted to be done without or contrary to the approval of the Design Review Board, and shall cite any violator into magistrate court. F. General applications must be received at City Hall no less than ten (10) calendar days prior to the next regularly scheduled meeting of the Design Review Board in order to be presented at the next meeting. If the applicant fails to appear in person or through a designated representative at the scheduled meeting, the Board may table the application to its next meeting or may consider the application if adequate information has been included. G. Certain applications for work that may have a greater potential to impact the character of the historic district shall require additional notification, to be completed by City staff, prior to presentation to the Design Review Board. These shall include the following proposed activities: 1. the construction of a new building or structure within the District, other than the construction of a sign, fence or wall; 2. the demolition of any building or structure, other than minor storage facilities or accessory buildings; 3. the increase of the height of any existing building; or 4. any substantial modification to any building or structure that has been designated as having special significance or as a contributing structure within the District. Written notification of the application, including a description of the proposed action and a drawing depicting the proposed exterior elevations, must be mailed by first class mail to all property owners located within 300 feet of the subject property not less than fifteen (15) days prior to the Design Review Board hearing. The subject property must be posted with this same information for this same time period. H. Applications may be reviewed by the Zoning Administrator and the Building Inspector for recommendation to the Design Review Board. The Zoning Administrator or the Building Inspector may make a recommendation to the Design Review Board and shall advise the applicant of any such proposed recommendation prior to the meeting, if possible. 3.5.3 Criteria In considering any application for Design Review approval, the Design Review Board shall be guided by the Design Guidelines for the Bisbee Historic District and the Secretary of the Interior’s Standards for the Treatment of Historic Properties and Standards for Rehabilitation. 3.5.4 Maintenance Property owners of the historic district shall have the right and are encouraged to maintain their property. The Building Inspector may approve a building permit without Design Review Board approval for any work that consists of nothing more than repair work where there will be no exterior change that will alter the character of the structure or where only similar replacement materials will be used. Repairs and improvements such as re-roofing, the replacement of windows, doors and stairs in the same locations, and the replacement of gutters, fencing, utility connections, and other similar non-structural elements may also be directly authorized by the Building Inspector. An Administrative Approval from the Community Development Director must be obtained prior to the issuance of a building permit for any such work. 3.5.5 Demolition and Movement of Historic Buildings The Design Review Board must approve all demolition permits and relocation permits for any significant part of any building in the Historic Preservation (HP) Overlay District. No permit shall be issued by the Building Inspector until DRB approval. However, if a structure is judged by the Building Inspector to be a hazard to public safety, the Building Inspector may order the immediate demolition of the building in accord with his charge to protect the public health and safety. The Inspector will notify the DRB members of his decision. In making its’ decision, the Design Review Board should determine whether and to what extent demolition or movement affects the structure in question or any contributing structure within the district as demolition and/or movement can have significant impact on the City in general. For permit approval the applicant must show 06-2019 Update 17 Bisbee Zoning Code, 1998 that preserving the building is not physically and/or economically feasible. The DRB reserves the right to gain access to the structure to inspect it, in line with a demolition application. A. Approval: The Design Review Board may recommend approval of the demolition or relocation permit if any of the following conditions exist: 1. It is demonstrated that the structure is a deterrent to a major improvement program which will be of substantial community benefit 2. A determination is made that a building or structure no longer presents an opportunity for feasible rehabilitation, which is arrived at after an on-site visit by a licensed contractor, structural engineer or architect experienced in historic preservation work. Any costs shall be borne by owner. 3. The investment required to preserve to preserve or rehabilitate the structure could not be offset by the return on the property. 4. The Design Review Board shall notify the Building Official that the demolition permit is approved. The Building Official may do the following: a. Issue the permit, or, b. Deny the permit based on other duly adopted and applicable ordinances or regulations. B. Denial: If preservation or rehabilitation is determined to be feasible, and if the structure has been designated as one having special significance or as a contributing property within the District, the Design Review Board shall deny the permit for demolition or movement of a structure. C. Demolition by Neglect: If a structure in the District is judged by the Building Inspector to be in danger of falling into irreparable condition because of neglect, a Notice of Neglect will be sent to the Legal Owner(s) stating the conditions that must be remedied. Within 60 days of such notice, the Owner(s) may request a public hearing before the DRB Board. The DRB Board may rescind or confirm all or part of the Notice of Neglect based on information provided by the Owner(s). If the DRB confirms the Notice of Neglect or the Owner(s) fails to correct the conditions listed, the City of Bisbee will begin issuing violation notices and seek all remedies and penalties in accordance with Bisbee City Code. 3.5.6 Appeal A. Any applicant for Design Review Board approval or any other person that is dissatisfied or aggrieved by the decision of the Design Review Board may appeal the decision to the Board of Adjustment by filing a written Notice of Appeal with the Community Development Director no later than thirty (30) days from the date of the Design Review Board’s decision. Any such Notice of Appeal shall include a detailed explanation of the basis of the appeal and copies of all documents which the appellant wishes to have the Board of Adjustment consider in any appeal. B. The Board of Adjustment shall review the decision of the Design Review Board and the record presented to it and may affirm, reverse or modify any such decision. The appellant and any other aggrieved party, including members of the Design Review Board, may be heard in any appeal to the Board of Adjustment during the time scheduled for any such appeal. 3.6 Building Permits 3.6.1 When Required Building Permits will be issued by the Building Inspector in accordance with the current International Building Code and other building regulations adopted by City Council. 3.6.2 Completion of Existing Buildings Nothing in this Ordinance shall require changes in the plans or construction of a building for which a lawful permit has been issued or which has been otherwise lawfully authorized. 3.6.3 Revocation The Zoning Administrator may revoke a building permit or approval issued under provisions of this Ordinance where there has been any false statement or misrepresentation as to material fact in the application or plans on which the building permit or approval was based. The Zoning Administrator will notify the Building Inspector in writing of the interpretation and Decision. 06-2019 Update 18 Bisbee Zoning Code, 1998 ARTICLE 4 DISTRICTS AND BOUNDARIES 4.1 Division of City into Districts; Enumeration In order to provide an environment that is people friendly and allows for flexibility in land use, a zoning system has been devised to meet the needs of Bisbee. Further, to classify, regulate, restrict and separate the use of land, Buildings and structures and to regulate and to limit the type, height and bulk of buildings and structures and to regulate the areas of yards and other open areas around and between buildings and structures and to regulate the density of dwelling units, the City is hereby divided into the following districts: 4.1.1 Specific Plan Zones (Lot configurations and setbacks apply to new sites outside the Historic Preservation Overlay Zone) A. Residential 1. R-1 2. R-2 3. R-3 4. RM B. Commercial Districts 1. C-1 2. C-2 3. C-3 4. C-4 C. Commercial Mixed 1. CM-1 2. CM-2 D. Manufacturing 1. M-1 2. M-2 3. M-3 06-2019 Update 19 Bisbee Zoning Code, 1998 E. PAD Zone (Planned Area Development) 4.1.2 HP (Historic Preservation) Overlay District 4.2 Boundaries of Districts Where uncertainty exists with respect to the boundaries of the various districts as shown on the Zoning District Map made a part of this Ordinance, the Following rules apply: A. The district boundaries are either street lines or alley lines unless otherwise shown, and where the districts designated on the Zoning District Map made part of this Ordinance are bounded approximately by street or alley lines, the street lines shall be construed to be the boundaries of the district. B. Where the district boundaries are not otherwise indicated and where the property has been or may in the future be divided into blocks and lots, the district boundaries shall be construed as lot lines, and where the districts designated on the map accompanying and made part of this Ordinance are bounded approximately by lot lines, the lot lines shall be construed to be the boundaries of the districts unless the boundaries are otherwise indicated on the map. ARTICLE 5 SPECIFIC PLAN ZONING 5.1 General • All property located within the corporate boundaries of the City of Bisbee shall be designated with a specific zoning, as indicated on the approved zoning maps for the City of Bisbee.  In the event that any existing rights to use, divide, sell or possess private real property are reduced by the enactment or applicability of any land use law enacted after the date of transfer of such property to the owner and such action reduces the fair market value of the property in such a manner as to give rise to a claim for just compensation pursuant to A.R.S. § 12-1134 (Proposition 207), then the City Manger is authorized to issue a binding waiver of enforcement of the particular land use law on the specific parcel of land, as necessary to preclude any claim for such compensation. • No future divisions of tracts, lots, or parcels resulting in lots in developed areas will be approved. • Setbacks for existing lots in developed areas shall be determined by setbacks on comparable lots within the area. • Setbacks for reconstruction may be determined by previous building footprint in case of fire or demolition. • Building and areas within the Historic Preservation Overlay District shall be subject to standards and procedures outlined in the City of Bisbee Zoning Code (Article 5.3) and these standards and procedures supersede all other zoning requirements. 5.2 R Zone (Residential) Allowable R zone uses: Division1. Any one family dwelling, excluding mobile homes and manufactured homes, and including private garages, accessory living quarters, recreational rooms or private stables accessory to the main use, churches, recreational and educational facilities. Division2. Any use permitted in the R, Division 1 zone, and two family dwellings. Division3. Any use permitted in the R, Division 2 zones and multiple dwellings, apartment houses and condominiums. Density shall be determined by the Site Plan Committee. The Use Matrix. Appendix Figure One, further details allowed Uses. All lots shall have access for fire fighting apparatus based on the adopted Bisbee Fire Code. 06-2019 Update 20 Bisbee Zoning Code, 1998 Table 5.2– R Zone Regulations (in feet, unless noted otherwise) Division Min. Lot Area (SF) Min. Lot Width Min. Lot Depth Min. Front Setback Min. Side Setback Min. Rear Setback Max Building Height 1 35,000 125 150 25 10 30 35 20,000 100 125 20 5 25 35 10,000 75 100 20 5 25 30 6,000 60 90 15 5 20 30 2 10,000 60 70 20 5 20 30 6,000 60 70 15 5 20 30 3 6,000 60 70 15 5 20 30 5.2.1. Home Occupations. Home Occupations that meet the following criteria are permitted, without need for additional approval, in all residential dwellings provided that: 1. The home occupation is incidental and subordinate to the primary use of the property as a residence. Uses that do not exceed more than twenty-five percent (25%) of the floor area of the dwelling will be deemed to be subordinate to a co- existing residential occupancy. 2. No more than one non-resident of the dwelling may be employed in connection with the home occupation. 3. The use of the dwelling and associated property shall not result in any sustained or loud noises, vibrations, fumes or odors, glare, electromagnetic interference, emissions or other impacts to adjacent properties or utilities that are in excess of what typically results from a residential occupancy. 4. All materials and equipment used and maintained in connection with the home occupation must be used and stored inside of the dwelling, in associated accessory structures, or in some other manner such that the materials and equipment are screened from sight from adjacent properties. 5. The home occupation shall not generate vehicular traffic or any demand for off site parking that is in excess of what is typically associated with a residential occupancy. 6. On site retail or consumer sales may not be the primary function of a home occupation, but may occur incidentally to the occupation. 7. The only signage allowed in connection with the home occupation is an identifying sign not larger than two (2) square feet, located on the inside of a window of the dwelling. A business use that does not meet each of these standards will require either a special use permit or relocation to a more appropriate site. A home occupation that is conducted in a manner that is consistent with these standards is incidental to a residential occupancy and will not be classified as a “business,” “trade” or “occupation” for purposes of the Business License Tax rules of the Bisbee City Code. No business license will be required for a home occupation that is conducted in compliance with these requirements. 5.2.2 RM Zone (Manufactured Home Residential) The principal land use is for the installation and occupancy of a manufactured home or a rehabilitated mobile home to be used as a single family dwelling, with incidental or accessory uses. All uses allowed in the R Zones are permitted in the RM zones and the R Zone Regulations apply. Mobile homes shall not be allowed as a new use on any site within the City of Bisbee, except as expressly authorized in this article. Mobile homes that are legally established within the City on or before March 1, 2006, are allowed to remain on any site within the City and any such mobile home may be relocated to an existing site within any existing mobile home park, provided that the mobile home meets the requirements of Article 6 for installation and skirting. 06-2019 Update 21 Bisbee Zoning Code, 1998 Manufactured Home Parks shall only be allowed within RM Zone areas and shall require special use permit approval prior to construction. The Use Matrix, Appendix Figure One, further details allowed uses. All lots shall have access for firefighting apparatus based on the adopted Bisbee Fire Code. 5.2.3 C Zone (Residential/Commercial) Allowable C Zone uses: Division1. Any residential, office, retail, automobile service station, restaurant, day-care center, churches, recreational and educational facilities, small–scale retail and personal service use that serves the day-to-day needs of the residents of the surrounding area Division2. Any use permitted in the C, Division 1 zone and residential, nurseries, physical fitness centers, community and fraternal clubs, libraries and governmental offices. Division3. Any use permitted in the C, division 2 zone and supermarkets, department stores, hospitals, automobile sales, lumber yards, wholesale outlets, printing plants, cocktail lounges and taverns, self-storage centers, theaters, bowling alleys, museums, hotels and motels, except residential. Division4. Any use permitted in the C, Division 3 zones and large scale retail, commercial and wholesale uses, bakeries, storage yards, distributors, machine shops and woodworking shops, except residential. Table 5.2.3A C Zone Regulations (In feet, unless noted otherwise) Division Min. Lot Area (SF) Min. Lot Width Min. Lot Depth Min. Front Setback Min. Side Setback Min. Rear Setback Max Building Height 1 6,000 30 70 0 0 0 30 2 N/A 30 70 0 0 0 40 3 N/A 75 100 0 0 0 50 4 N/A 75 100 0 0 0 50 All lots shall have access for firefighting apparatus based on the adopted Bisbee Fire Code. The Use Matrix, Appendix Figure One, further details allowed uses. 5.2.4 CM Zone (Commercial Mixed Use) Allowed CM zone uses: Division1. Any C, Division 1 use. Residential uses allowed. Division2. Any C, Division 2 use, and cocktail lounges and taverns. Residential uses allowed. C Zone regulations apply to CM zones. The Use Matrix, Appendix Figure One, further details allowed uses. The development or improvement of all such properties shall be done in conformance with the applicable building codes and the Bisbee Fire Code. 5.2.5 M Zones (Manufacturing) Allowable M Zone Uses: Division1. Any light manufacturing or industrial use, such as warehouses, research or testing laboratories, product distribution centers, woodworking shops, auto body shops, furniture assembly, dry cleaning plants, machine shops and boat building storage yards Division2. Any use permitted in the M Division 1 zone and stadiums and arenas, indoor swap meets, breweries, liquid fertilizer manufacturing, carpet manufacturing, monument works and a regional recycling center. 06-2019 Update 22 Bisbee Zoning Code, 1998 Division3. Any permitted in the M Division 2 zone and auto dismantling yards, alcohol manufacturing, cotton gin, paper manufacturing, quarries, salt works, petroleum refining and similar uses. Table 5.2.5A M Zone regulations (In feet unless otherwise noted) Division Min. Lot Area (SF) Min. Lot Width Min. Lot Depth Min. Front Setback Min. Side Setback Min. Rear Setback Max Building Height 1 N/A 50 75 0 0 0 60 2 N/A 75 100 0 0 0 80 3 N/A 100 150 0 0 0 80 All lots shall have access for fire fighting apparatus based on the adopted Bisbee Fire Code. The Use Matrix, appendix Figure One, further details allowed uses. 5.2.6 PAD Zone (Planned Area Development) The PAD, Planned Area Development, Zone is intended to allow a combination of various types of single family and multi- family housing and compatible commercial and manufacturing uses on one or more parcels or lots. All permitted uses allowed in R, RM, C, CM and M-1 Zones may be included. To obtain PAD Zone designation, the property owner must submit an application that includes the information required for a Master Development Plan, as described in Article 11.5. For smaller projects or those with a limited range of impacts, the Zoning Administrator has the authority to waive or to limit certain submittal requirements of Article 11.5, as may be appropriate in each particular circumstance. This application may be combined with an application for the approval of a Master Development Plan, where any such plan is required, and shall be subject to the same standards for approval as are described in Article 11.8. Upon the final approval of the development plan for a PAD Zone and the rezoning application, the property shall be designated as PAD Zone property. The property owner or developer may use the PAD Zone property for the specific types of uses that are designated in the approved plan, at the locations that are specified in the plan. Minor amendments to an approved plan for a PAD Zone property may be authorized by the Zoning Administrator. A “minor amendment” is an alteration that is in accord with all applicable Zoning Regulations in effect at the time of requested change; that is consistent with the purpose and scope of the approved plan; that is unlikely to result in any increase in off-site impacts; and that is consistent with the General Plan, as applicable at the time of the proposed change. Any proposed amendment that is other than a “minor amendment” shall require formal approval in the same manner as an original application. 5.3 HP (Historic Preservation) Overlay Zone 5.3.1 Purpose The Historic Preservation Overlay Zone or Historic District is intended to protect, preserve and enhance the City’s character, historical significance and distinctive architecture. This zone enhances the City’s general health, safety and welfare. The Historic Preservation Overlay Zone is superimposed over other zones. Land use zoning designations are defined in Section 5.2, but the general regulations on lot area, width, depth, building height and setbacks do not apply within this District. The particular regulations for the Historic District are specified within the Special Provisions for the Historic District. 5.3.2 Special Provisions for the Historic District A. Building Heights. 1. The maximum building height and size for a new or renovated commercial structure or multiple family residential structure shall be determined by the Design Review Board, based upon the heights and sizes of the surrounding properties and the public interest in maintaining compatible mass and scale within this District; the public interest in maintaining the public views of the District and surrounding mountainsides that could be impacted by a particular structure; and the public’s overall interest in maintaining the compatible characteristics of the commercial areas within the District. 2. The maximum building height for a new single family residential structure shall be twenty-three (23) feet, provided that the Design Review Board has the authority to increase or decrease this height limit by up to six 06-2019 Update 23 Bisbee Zoning Code, 1998 (6) feet if the Board makes a specific finding that any such adjustment is consistent with the public interest in maintaining compatible mass and scale in the District; preserving the public views of the District and surrounding areas; and protecting the public interest in maintaining the compatible characteristics of the particular area, including the protection of access to air and light for adjacent properties. 3. The maximum building height of an existing single family residential structure that is subject to remodeling, renovation or an addition shall be not more than the height of the existing structure or the height of a new single family residential structure, whichever is greater. If the standard for new structures is applicable, the Design Review Board may adjust this height in the same manner and based upon the same factors as are applicable to a new structure. 4. The maximum building height of a new, remodeled, or renovated accessory building shall not typically be more than nineteen (19) feet. The Design Review Board may increase this height for an appropriate accessory use that is subordinate in size and scope to the primary structure, that is compatible in mass and scale with the structures in the immediate area of the District, and that is not inconsistent with the other public interests expressed in paragraph 2 above. In no event shall the height of an accessory structure be greater than twenty- nine (29) feet. The Design Review Board may also require a reduction in the proposed height below nineteen (19) feet, where such adjustment is warranted by these same factors. Any such adjustment, either up or down, shall require a specific finding by the Board explaining the reasons for any such adjustment. 5. Each of these heights shall be measured along a vertical line from the lowest point of the grade abutting the building to a perpendicular line extended from the highest gross elevation of the structure. 6. In the event that an applicant who is seeking to obtain approval for any increase in the maximum height of a structure may fail to provide sufficient information to allow the Design Review Board to make the required determinations, the Board, at its discretion, may table the application and require the applicant to provide additional information, in form of graphic design information or other means, which will provide a more complete depiction of the potential impacts of any such project. B. Set Backs. 1. The minimum set backs for a new single family residential structure or accessory building shall be not less than the following: a. Front set back of not less than ten (10) feet. b. Side set back of not less than five (5) feet. c. Rear set back of not less than ten (10) feet. Accessory structures may be located within three (3) feet of the rear lot line if this will not adversely impact the adjacent property. 2. In those areas in which there are established front or rear set backs for the existing developed properties within the same or adjacent blocks that are greater than or less than ten (10) feet, the Design Review Board may increase or decrease the front or rear set back for new structures as necessary to maintain the uniform characteristics of that particular street frontage. 3. Renovations, repairs and additions to existing single family residential structures and accessory structures shall not reduce the existing set backs to less than what is required for new residential structures or to less than what currently exists, whichever is the lesser distance, unless the Design Review Board makes a specific finding that this construction will be consistent with the uniform characteristics, if any, of the adjacent properties and that any such reduction will not adversely impact adjacent properties. C. Maximum Residential Building Size. The maximum area within the exterior perimeter (the building footprint) of a new single family residential structure within the District shall be two thousand (2000) square feet. Existing structures shall not be remodeled or added to in a manner that increases the area of the structure beyond this limit unless the Design Review Board makes a specific finding that any such expansion is compatible with the mass, scale and shape of the of other properties in the immediate area and consistent with the interests to be protected by these regulations. D. Division of Building Lots and Minimum Lot Size. 1. Within the District, the legal descriptions, sizes and shapes of existing, adjacent lots may be adjusted, re- described or corrected by sales or exchanges between the property owners without further approval provided that there is no net increase in the number of residential or commercial lots within the District. 06-2019 Update 24 Bisbee Zoning Code, 1998 2. The minimum lot size for any lawfully authorized and newly created building site, resulting from a split of another existing lot or parcel, within the District shall be not less than four thousand (4000) square feet. 5.3.3 Historic District Design Review Board The intent of the Design Review process as applied within the Bisbee Historic District is to: A. Improve and encourage uses leading to the conservation and/or rehabilitation of buildings, structures, sites, objects and spaces within the Historic District, while allowing for a vibrant, creative and livable community. B. Encourage harmonious growth and orderly development. C. Assure that future setting, design and construction will correspond to and enhance the visual characteristics of the district. D. Prevent construction, alteration or remodeling from occurring in a manner that would be detrimental to the historical or visual characteristics of the district. 5.3.4 Criteria for Plan Evaluation The historic and architectural characteristics of an alteration to an existing structure or of a proposed new structure shall: A. Properly preserve and/or generally conform to the character of the structures located with the district as defined in the Design Guidelines for the Bisbee Historic Districts. B. Adhere to the “Secretary of the Interior’s Standards for the Treatment of Historic Properties with Guidelines for Preserving, Rehabilitating, Restoring, and Reconstructing Historic Buildings”. 5.3.5 Historic District Criteria for Alterations/Secretary of Interior Guidelines A. Secretary of Interior Guidelines for Rehabilitation and their Interpretations 1. Every reasonable effort shall be made to provide a compatible use for a property which requires minimal alterations of the building, structure, or site and its environment, or to use a property for its original intended use. 2. The distinguishing original qualities or character of a building, structure or site, and its environment shall not be destroyed. The removal of alteration of any historic or distinctive architectural features should be avoided when possible. 3. All buildings, strikers, and sites shall be recognized as products of their own time. Alterations that have no historical basis and which seek to create an earlier appearance shall be discouraged. 4. Changes which may have taken place in the course of time are evidence of the history and development of a building, structure, or site and its environment. These changes may have acquired significance in their own right, and this significance shall be recognized and respected. 5. Distinctive stylistic features or examples of skilled craftsmanship which characterized a building, structure, or site, shall be treated with sensitivity. 6. Deteriorated architectural features shall be repaired rather then replaced, whenever possible. In the event of replacement is necessary, the new material should match the material being replaced in composition, design, color, texture, and other visual qualities. Repair or replacement of missing architectural features should be based on accurate duplications of features, substantiated by historic, physical pictorial evidence rather than on conjectural design or availability of different architectural elements from other building or structures. 7. The surface cleaning of structures shall be undertaken with the most gentle means possible. Sandblasting and other cleaning methods that will damage the historic building materials shall not be undertaken. 8. Every reasonable effort shall be made to protect and preserve archeological resources affected by or adjacent to any project. 9. Contemporary design for alterations and additions to structures shall be constructed so that, if the addition or alterations and additions do not destroy significant historical, architectural or cultural material. Also, if the design is compatible with the size, scale, material, and character. 10. Whenever possible, additions or alterations to structures shall be constructed so that, if the addition or alteration is later removed, the essential form and integrity of the structure would be unimpaired. 06-2019 Update 25 Bisbee Zoning Code, 1998 B. New construction design shall be compatible with volume, mass, scale, color, material, and textures of the Bisbee Historic District. C. Mobile homes shall not be permitted with the boundaries of the Bisbee Historic District D. Manufactured homes and modular buildings shall not be permitted within the Bisbee Historic District except upon a Design Review Board determination that the proposed structure is consistent with the Design Guidelines and all applicable standards for this district. E. Fences, walls, or other physical features used to enclose open space or provide privacy shall be compatible with the architectural style of the subject property and compatible with other historic structures within the Historic District and reflect the historic period of the district. F. Any existing building, structure, or appurtenance thereto in the Bisbee Historic District which does not meet the requirements of the district’s criteria shall be considered nonconforming except for repairs and maintenance. No nonconforming building or structure may be added to or altered in any way unless the proposed addition or alteration will bring the whole to a higher degree of conformity with design components of the district. 5.3.6 Historic District Definitions Within the Bisbee Historic District, the following words shall have the indicated meanings: A. Historic site, structure, or landmark – a site or structure with special significance including attached signs which: 1. Is documented as dating from a particular significant period(s) in Bisbee’s history; 2. Is associated with the lives of historic people, significant historic events or occurrences; 3. Exemplifies the architectural period in which it was built and has distinguishing characteristics of an architectural style or method of construction; 4. Contributes information of archaeological, historical, cultural or social importance relating to the heritage of the community; and/or; 5. Relates positively to buildings in the immediate vicinity in terms of scale, size, massing, etc., so that its removal would be an irreparable loss to the setting. B. Intrusion – a structure which detracts from the districts sense of time and place or its architectural continuity. 06-2019 Update 26 Bisbee Zoning Code, 1998 ARTICLE 6 GENERAL PROVISIONS 6.1 Additional Height Restrictions Accessory structures or appurtenances such as chimneys, church steeples, cooling towers, or necessary mechanical equipment shall not require a Special Use Permit unless they exceed the maximum building height of the principal building to which they are attached by more than eight (8) feet. Article 10 details wireless communication tower requirements. (O-00-20). Authorization for the construction of other free-standing towers and similar structures shall be obtained through the Special Use Permit process. 6.2 Height Limitations for Corner Lots The height of all structures, including sight obstructing fences, walls and ornamentation, and landscaping located on corner lots within the area of the sight triangles necessary for viewing intersecting traffic shall be limited to not more than three (3) feet. For the purposes of this requirement, the sight triangle at each intersection shall be that area of the lot formed by extending the legs of this triangle twenty (20) feet from the corner of the curb or right-of-way boundary in each direction along the lot lines and joining these legs by a hypotenuse that extends through this lot. If a more comprehensive study, performed by either the Zoning Inspector or by the property owner, and conducted in accordance with standard traffic engineering practices, indicates that a larger or smaller sight triangle may be appropriate in a particular circumstance, the results of the more detailed study shall be used. 6.3 Additional Area Regulations 6.3.1 Accessory Buildings A. No accessory building shall be constructed on a lot before the construction of the main building has begun. B. No accessory building shall be used for dwelling purposes. C. No accessory building, other than a private garage or carport, shall be permitted in a front yard. D. Accessory buildings shall not be constructed closer than three (3) feet to the side or rear lot line. Private garages and carports shall not be constructed closer to the front lot line than the distance that is required for the front setback of the principal structure on that lot. 6.3.2 Projections Near Property Boundaries 06-2019 Update 27 Bisbee Zoning Code, 1998 A. Balconies, stairs (other than as required under the building and safety code), porches, and decks may not project closer than two (2) feet from the property boundary. The applicable building and safety code may require additional fire protection measures or limitations for certain projections into the boundary areas between adjacent properties. B. No projections beyond the recognized property lines will be permitted. 6.3.3 Basement or Cellar Occupancies No basement or cellar shall be occupied for residential purposed until construction of the remainder of the building has been completed. 6.3.4 Temporary Buildings Temporary buildings used in conjunction with the construction work shall be permitted during construction. These temporary building must be removed within nine (9) months of completion or abandonment of the construction work. 6.4 Walls and Fences Walls and fences shall meet the following requirements, and shall be subject to the requirements of Section 6.2, as applicable: A. On property zoned R or RM, Residential, walls and fences: 1. Shall not exceed four (4) feet in height in the front yard and in that portion of the side yard that is between the front lot line and a parallel line extended from the front of the main building to the side lot line. 2. Shall not exceed six (6) feet in height in the remaining portion of the side yard and rear yard. 3. Shall not obstruct the view within the sight triangle as needed for viewing intersecting traffic on corner lots. B. On property zoned C and M, Commercial and Manufacturing, walls and fences: 1. Shall not exceed eight (8) feet in height. 2. Are required for screening on the side and rear property lines where commercial and industrial uses are adjacent to residential districts, and shall be constructed of masonry, wood, or slatted chain link fencing or approved landscaping, as necessary to be sight-obscuring, and shall be maintained in this condition. Screening fences shall not be less than six (6) feet in height and may be required to be up to eight (8) feet in height, if necessary to effectively screen the adjacent residential properties, under the particular circumstances. 3. Shall be set back sufficiently from the property lines on corner lots to avoid interference with the sight triangle as needed for viewing intersecting traffic on corner lots. C. Parks, Utilities, and Government Maintenance Yards 1. Open fencing not to exceed eight (8) feet in height may be placed around parks, utilities, and government maintenance yards for security and safety. 6.5 Landscaping and Open Space A. Native landscaping is encouraged on all developments. B. A minimum of 10% of the site for all projects in all zones shall be landscaped. This does apply to the Historic Zone. C. Parking and maneuvering areas are not considered part of the required open space. 6.6 Proximity to Runways and Landing Strips No building or structure that would constitute an “obstruction,” as that term is defined under applicable federal regulations, shall be permitted. 6.7 Manufactured Homes in the RM Zone Manufactured homes placed in the RM Zone shall meet the following minimum standards: A. Each manufactured home placed in the RM Zone shall be permanently affixed with a decal or label certifying that the dwelling has been inspected and manufactured in accordance with the June 15, 1976 rules, regulations and requirements of the United States Department of Housing and Urban Development, as amended, or such other insignia as may be authorized by law. The decal or insignia of approval shall be conspicuously affixed to the dwelling and shall not be removed or altered in any manner. 06-2019 Update 28 Bisbee Zoning Code, 1998 Each rehabilitated mobile home placed in the RM Zone shall be permanently affixed with a Rehabilitation Certificate certifying that the dwelling has been inspected and found to meet or exceed the minimum standards of the State of Arizona Department of Housing, Office of Manufactured Housing for rehabilitated mobile homes. B. Permit. The installation of any manufactured home or rehabilitated mobile home shall be subject to the issuance of a permit by the City Building Inspector, or his designated representative. Prior to the issuance of the permit, the City Building Inspector, or his designee, shall ensure that such installation or construction, as well as the proposed occupancy, conforms to applicable federal and state manufactured housing regulations, plus applicable local ordinances. C. Skirting. As a condition for the issuance of any final installation permit, skirting enclosing the entire perimeter of the manufactured home or rehabilitated mobile home shall be installed, in accordance with the State standards. The skirting shall enclose the entire area between the finished floor level of the home and the ground surface; shall be constructed of durable materials, firmly affixed to the home; and shall be finished to match the home. D. Installation. The manufactured home or mobile home or rehabilitated mobile home shall be set upon appropriate footings and installed as required by the applicable State regulations. Any device used to transport a manufactured home to the site of installation, including, but not limited to, the hitch, wheels, axles, or other devices used primarily for transport, other than the chassis, shall be detached from the dwelling as part of the installation process and removed from the site or put in covered storage. E. Plan Submittal. Notwithstanding any other provision or language of the Bisbee Zoning Code, any application for a permit for installation of a manufactured home or rehabilitated mobile home, including any addition or modification thereto, shall be accompanied by a site plan for review by the City Building Inspector or his designee, to determine compliance with this Article, applicable State law and other local ordinances. The site plan shall be drawn to scale and shall contain complete dimensions of the lot or parcel upon which the dwelling is to be installed or constructed, as well as the dimensions and location of the dwelling on the lot or parcel, plus finished floor levels and all setbacks from property lines. The points of connection for all utilities shall be designated on the site plan. 6.8 Outdoor Storage A. Permanent outdoor storage means the presence of item(s) on a parcel for a period of thirty (30) or more consecutive days. This term shall not include the maintenance of garden and landscape improvements, garden tools, recreational equipment, outdoor furniture, patio improvements, outdoor cooking devices, monuments, and decorative items, provided that all such items are reasonably incidental and accessory to the residential use of any property. B. No portion of any front yard, being that area between the front lot line and a parallel line extended from the front of a main building to the side lot lines, shall be used for permanent outdoor storage on a parcel in any district except Commercial (C) and Manufacturing (M). Building materials that are being stored for use on any site during the time a valid building permit is in effect for construction on the site may be stored in any area of the site. C. Trailers, campers, trucks, vans, buses or parts thereof shall not be used for permanent outdoor storage on a parcel in any District Except Commercial (C) and Manufacturing (M), unless building materials are being stored for use on the site during the time a valid building permit is in effect for construction on the site. D. No side yard, being that area between the front yard and the back yard, that is less than five feet in width shall be used for permanent outdoor storage. E. No back yard, being that area between the rear lot line and a parallel line extended from the main building to the side lot lines, or side yard shall be used for permanent outdoor storage of appliances that are not currently connected to power or water and being used as intended, waste tires, indoor furniture, or junk, unless all such materials are maintained in an enclosed area and not visible from surrounding properties or roadways. F. All materials that are stored or maintained in a back yard or side yard shall be maintained in an orderly manner as necessary to provide appropriate emergency access to all structures on the property and to avoid creating a hazardous condition. 6.9 Vehicle Storage Nothing in this section shall prohibit a licensed business from conducting its legal activities. A licensed business may maintain such vehicles as are reasonably related to its operations, subject to any conditions that may be included in its permit. 06-2019 Update 29 Bisbee Zoning Code, 1998 A. The provisions of Section 6.8 regarding the permissible locations for permanent storage shall also be applicable to the storage or maintenance of motor vehicles, provided that motor vehicles may be parked or stored in an established driveway or parking place, subject to the provisions below. B. No more than one (1) inoperable motor vehicle, or significant parts thereof, may be stored or maintained on any parcel unless all such vehicles are stored within an enclosed area and screened by fencing or otherwise so that none of the vehicles are visible from surrounding properties and roadways. For purposed of this section, an “operable vehicle” means a motor vehicle that is both physically and legally capable of being driven under its own power on a public road. An “inoperable vehicle” is one that fails to meet one or both of these conditions and that has not been repaired or restored to such condition within thirty days of receiving notice from the Code Enforcement Officer or Zoning Inspector. C. All vehicles deemed abandoned shall be removed at the owner’s expense upon the formal request of the Zoning Inspector. Reasonable effort shall be made by the Zoning Inspector to notify the registered owner of the violation so that he or she may remedy the situation. The property owner shall be responsible for removing each abandoned vehicle remaining on his or her property if the registered owner fails to act following a request or cannot be located. D. The storing of three (3) or more junk vehicles in an area not enclosed shall be considered an operation of a junk yard which is not permitted in the residential or commercial zones. 6.10 Pool Safety A swimming pool, or other contained body of water that contains water eighteen (18) inches or more in depth at any point and that is wider than eight (8) feet at any point and is intended for swimming, shall be entirely enclosed by at least a five (5) foot wall, fence or other barrier as measured on the exterior side of the wall, fence or barrier. All fences shall be self-closing and self-latching, with the latch located at a height of at least fifty-four (54) inches and have no openings in them through which a spherical object four (4) inches in diameter can pass. This section shall not apply to: A. A system of sumps, irrigation canals, irrigation flood control or drainage works constructed or operated for the purpose of storing, delivering, distributing or conveying water. B. Stock ponds, storage tanks, livestock watering troughs or other structures used in normal agricultural practices. 6.11 Effect of Establishment of Zoning Districts No building or land shall be devoted to any use other than a use permitted in the zoning district in which the building or land is located, with the exception of the following: A. Uses lawfully established as of the effective date of the comprehensive amendment. B. Special Uses when allowed by permit in accordance with the zoning district in which the building or land shall be located. C. Analogous uses. D. Accessory uses customarily incidental to the permitted uses. 6.12 Clearing Land A. No surface area of vegetation, soil or rock greater than four thousand (4000) square feet in area shall be cleared, graded or excavated on any undeveloped lot or parcel of land prior to the issuance of a building permit, the approval of a preliminary subdivision plat, approval of a special use permit, or the City’s written approval in some other form for the development of such property. B. In connection with the issuance of any approval of development for previously undeveloped property, the Zoning Administrator shall impose reasonable requirements on the method and manner of land clearing and grading to reduce the dust, erosion and run-off resulting from any such activity. For projects that will include clearing, grading or excavating more than one acre of land, the applicant shall be required to produce an analysis of the impacts on adjacent properties resulting from this activity and to submit a proposed course of action that will minimize any such adverse impacts. C. These requirements shall not prevent mowing of grasses or weeds, gardening, agricultural cultivation or the regular maintenance of any existing roadway. These requirements shall not be applicable to any development which is exempt from the permitting requirements of this City. 06-2019 Update 30 Bisbee Zoning Code, 1998 6.13 Community Gardens A. Purpose and Authorization. Community Gardens provide a beneficial means to enhance sustainability through the local production of food; to promote a healthy lifestyle; and to bring members of the community together for a worthwhile purpose. Community Gardens that meet the criteria of this Section shall be permitted, without the need for any additional approval, in all Residential Zones, including all CM Zones, and in the C-1 Commercial Zone. B. Definition of a Community Garden A “Community Garden” is single area of land that is collectively cultivated, for the production of food crops or ornamental crops, by two or more persons who do not reside upon or own the subject property. The garden area may be divided into individual plots and allocated to each of the individual participants, or cultivated as a single unit by the group. The organization and management of the community garden is to be determined by the owner of the property and the participants. The only organizational provision required by these regulations is that the owner of the property consent in writing to the use of the subject property for this purpose. C. Criteria for a Community Garden 1. A Community Garden is distinguishable from an urban farm, fits within the existing neighborhood community, and shall have a maximum total area of Ten Thousand (10,000) square feet of garden area. 2. The hours of operation of the garden may be from dawn to dusk, but no motorized equipment shall be used before 7 A.M. and after 6 P. M. All work on the site shall be performed in a manner that minimizes all potentially adverse impacts upon surrounding properties, both public and private. No water shall be permitted to run off or escape the site. Any use of pesticides and herbicides shall be in strict compliance with the label directions and controlled so that no such materials escape from the boundaries of the garden area. 3. No on-site sales to the public of any products or materials are permitted at the Community Garden site. The Farmers’ Market and similar commercial areas are available for any associated commercial transactions. 4. No animals, including poultry, may be housed or maintained at the Community Garden site. 5. All lighting used on the site must comply with the City of Bisbee Light Pollution Code. 6. The height of fences and walls surrounding the garden shall not exceed six (6) feet and shall be subject to the general rules of this Code applicable to walls and fences if any such walls or fences are located within a sight triangle, on or near a roadway intersection. Cyclone, chain link, poultry netting and other similar modern fencing may be used for these purposes in the Historic District, provided that for properties located with this District, the owner must remove any fencing that does not comply with the applicable Design Guidelines within 60 days after the site ceases to be used as a Community Garden. 7. Signage for the Community Garden shall be limited to a single sign, of not more than Two (2) square feet, that identifies the name of the community group responsible for the garden and that may include contact information. Any sign meeting these requirements shall be exempt from the sign permit requirements. 8. Prior to beginning operation at the site, the person or persons responsible for the Community Garden shall provide the Community Development Director with a written statement that identifies the person or persons responsible for the management of this garden by name, address and phone number; that specifically describes the location of the garden by address and parcel number; and that identifies the owner of the subject property by name, address and phone number, together with the signed consent of the owner. 9. If the responsible parties are not able to conduct their operations in a manner that is consistent with these criteria, a special use permit shall be required as a condition for the use of that site for the purposes of operating any form of community gardening activity. D. Exemptions for Community Gardens 1. A Community Garden shall not be required to include or provide on-site or off-site parking for vehicles. 06-2019 Update 31 Bisbee Zoning Code, 1998 2. Accessory buildings to be used only for garden purposes may be constructed on the garden site without any requirement for the construction of a main or principle building, providing that any such accessory structure is only a single story, not higher than twelve (12) feet, not larger than one hundred and twenty (120) square feet in area, and is used only to store materials and equipment for the garden. The set back rules shall be applicable to this structure. Any accessory building constructed on a garden site under this exception must be removed by the property owner within 60 days after the site ceases to be used as a Community Garden. 3. No building permit or design review approval shall be required for the construction or installation of cold frames, hoop frames, or accessory buildings, including a detached green house within the garden, provided that no such structure is larger than one hundred and twenty (120) square feet in area, no higher than twelve (12) feet, and that any such structure is used only for garden storage or the propagation or protection of plants. The set back rules shall be applicable to any greenhouse structure. 4. The on-site construction or installation of irrigation lines and water storage containers shall not require a building permit. All applicable permits shall be required for any construction or installation that includes a connection to a public water supply, other than by a removable garden hose connected to an existing hose bib; a connection to a public wastewater system; or a connection to any electric or gas utility line. 6.14 Prohibition of Occupancy of Vehicles and Trailers for Residential Purposes; Authorization of Temporary Occupancy. A. Except as allowed in an Alternative Lodging Park through a special use permit, buses, motor vehicles, recreational vehicles, trailers, semi-trailers and travel trailers, as those terms are defined in this Code and the Arizona Revised Statutes, shall not be used as residential dwellings or for permanent occupancy in any zoning district. Properly licensed and registered recreational vehicles and travel trailers only may be used for temporary occupancy, subject to the conditions and limitations stated below. B. A properly licensed and registered recreational vehicle or travel trailer may be used for temporary occupancy by a guest or visitor on a lawfully occupied residential property, provided that such use does not exceed 30 days per year at that location; does not exceed 30 days in any one continuous time period; and provided further that all applicable terms and conditions of this section are met. C. For any temporary occupancy of a recreational vehicle or travel trailer on a lawfully occupied residential property: 1. No fees or compensation may be charged for such use by the owner or occupant of the residential property. 2. The vehicle or trailer must be either fully self-contained with sanitation facilities or the occupants must have full access to existing sanitation facilities located on that property. 3. If a generator is used in connection with the vehicle or trailer, that usage must limited the daylight hours only. 4. No more than two such vehicles or trailers are allowed on any one residential location at any one time. 5. For any such occupancy that will exceed seventy-two (72) hours or extend over a four day period, the owner or occupant of the residential property must obtain a permit issued by the Zoning Administrator or Code Enforcement Officer specifically authorizing any such extended use. D. A properly licensed and registered recreational vehicle or travel trailer may be used for temporary occupancy by a property owner, contractor or worker who is constructing a building upon that site, provided that a building permit has been issued for this work. This temporary occupancy shall not exceed the completion of construction, and is conditioned upon reasonable progress being made on this work during the entire time of this occupancy. 06-2019 Update 32 Bisbee Zoning Code, 1998 E. Any utility connections made to a recreational vehicle or travel trailer during any authorized temporary occupancy, for purposes of providing water, electricity, gas, sewer service or otherwise, shall comply with all applicable building and safety codes of the City of Bisbee. Any electrical connections to the vehicle or travel trailer shall comply with the requirements of Article 551.71 of the National Electrical Code. 6.15 Solar Energy Devices A. The City of Bisbee supports the use and development of solar energy devices as an important means to make this community more self-sustaining, to reduce the amount of non-renewable energy used in this area, and to improve the quality of our environment. There are however, certain situations in which the use of these beneficial devices must also be balanced with other significant interests in this community and the interests of the owners of the surrounding properties. The purpose of this Code section is to help to achieve the appropriate balance of interests that is necessary for a viable, sustainable community. B. Within the City of Bisbee, outside of the designated Bisbee Historic Preservation Overlay District, the installation of solar energy devices on the roofs of existing or permitted buildings, no higher than sic(6) feet above the roof surface, measured from the mounting location, or which do not exceed the limits of the following paragraph E.2, shall be subject to compliance with all applicable building and safety codes, but shall not require any additional form of public review. C. Applications for permits to install solar devices within the Bisbee Historic District, which are proposed to be installed in a manner that is consistent with those Design Principles stated below, which can be reasonably met under the particular circumstances, as determined by the Building Inspector, shall be subject to compliance with all applicable building and safety codes, and shall not require any additional form of public review. The following Design Principles are intended to minimize the adverse impact of any such development on the special characteristics that are to be protected by the creation of the Historic District. 1. Locate the solar devices in an inconspicuous location. Can the solar device be located in a rear or side yard, low to the ground, in a manner that limits their visibility, but with due respect to any historic landscape features? 2. Locate the solar device on new construction. Are there areas of new construction or additions where the solar devices could be located, in order to maintain compatibility with the historic building and protect it from alteration? 3. Locate the solar device in an area that minimizes its visibility from the public streets and roads. Can the solar devices be placed on locations other than street-facing walls and roof, or below and behind parapet walls and dormers? 4. Avoid installations that would result in the permanent loss of significant character-defining features of historic structures. Can the solar devices be installed without altering existing roof lines or obstructing the views of significant architectural features? 5. Avoid installations that result in the removal or permanent alteration of significant architectural features. Can the solar devices be installed in a manner that is reversible, and that will not result in the permanent alteration of intact historic materials and features? 6. Require low profiles. Can the solar devices be mounted flush with, or no higher than a few inches above, the existing roof surface, so that they are not visible above the roof line of the primary façade? 7. On flat roofs, set the solar device back from the edge. Can the solar devices be set back from the roof edge, and adjusted so that they are not visible from below? 8. Avoid disjointed or multi-roof installations. Can the solar devices be installed at angles that are consistent with the slope and pitch of the supporting roof and on one roof plane, in a manner that matches the general shape and configuration of the roof upon which they are mounted? 06-2019 Update 33 Bisbee Zoning Code, 1998 9. Ensure that the solar device, support structures, and conduits blend into the surrounding features of the supporting structure. Can the visibility of the solar devices be reduced by matching them in color and texture to the surrounding historic building? 10. Do not exceed a height of more than six (6) feet above the roof surface, measured from the mounting location; or, if the device is not mounted on a roof, have a cumulative foot print or total surface collection area in excess of six hundred (600) square feet or a maximum height more than ten (10) feet above the existing grade. D. For all building permits authorized pursuant to this Article, installation plans signed and sealed by a licensed engineer or architect shall not be required in connection with the building permit for installation of the device unless, due to the proposed size and shape of the particular device, the Building Inspector has a reasonable belief that this particular device may pose a hazard to the structure, its occupants, or the surrounding properties, as shall be explained in a written request for any such additional approval. Solar devices shall not be subject to any additional height restrictions in this Zoning Code and their additional height shall not be included in the determination of the maximum height of the building or structure. Roof mounted solar devices shall not extend beyond the perimeter of the supporting building or structure. No solar device shall be constructed or maintained within or over the required set back area for that property. E. The following criteria will determine whether or not a particular solar device installation will be subject to additional public notice and review. The public notice process described in the following sections shall be applicable for those proposed solar device installations for which any of the following are true: 1. any part of the solar device installation will be located more than six (6) feet above the roof surface, as measured from the mounting surface; or 2. the solar device will not be located on a roof surface and will have a cumulative foot print or total surface collection area in excess of six hundred (600) square feet or a maximum height of more than ten (10) feet above the existing grade; or 3. for applications for projects within the Bisbee Historic District, the Building Inspector has determined that the application is not consistent with the Design Principles in paragraph C. above. F. If the public notice process is applicable, the applicant must present to the Building Inspector a description of the proposed project with a conceptual drawing or scaled rendering of where the proposed solar devices will be located on the property and the proposed sizes and heights of each such device, together with any additional description of the project and the reasons for its proposed design and location, that the applicant is able to provide. The applicant is not required to present final engineering plans at this stage, but should attempt to provide sufficient information to assist the adjacent property owners in understanding the nature and extent of the project. The applicant is encouraged to provide the most realistic presentation of the exterior elevations and relative heights of the proposed project to the surrounding structures as can be feasibly provided within the time and resources available. G. The Building Inspector will send a copy of these materials to the owner, as determined by the available Assessor records, of each property located within three hundred (300) feet of the subject property, together with a notice indicating that: 1. The applicant may be able to provide additional information about this proposed project, with contact information for applicant; and 2. The date, time, and location of any neighborhood meeting, if any, that the applicant has scheduled to discuss this project; and 3. The date and time of the public hearing scheduled for this application. For applications for projects located within the Bisbee Historic District, the hearing shall be scheduled before the Design Review Board. For all other applications, the hearing shall be scheduled before the Planning and Zoning Commission. 06-2019 Update 34 Bisbee Zoning Code, 1998 H. If a public hearing is required, a meeting will be scheduled at the soonest possible date that is sufficient to allow written notice of not less than ten days to the applicant and adjacent property owners. At the hearing, the designated public body shall consider such information as the applicant, the property owners, and anyone else who may be qualified to offer an informed opinion on the issues may provide. The public body shall review the following issues: 1. Whether the proposed installation is a reasonable facility for that location, given the needs of the applicant and the potential impacts upon the surrounding properties? The potential impacts upon surrounding properties that may be considered include, but are not limited to, whether the installation would shade other properties; block views; reflect glare, light, or heat; cause water run-off; or generate noise that may be heard off-site; or generate noise that may be heard off-site. Within the Historic District, potential impacts may also include impacts on the protection and preservation of the District, its attributes, and its contributing properties. 2. Whether the proposed location on the subject property is necessary or appropriate for the safe, efficient, and economical installation of this installation, or whether an alternative location with less potential off- site impacts may be suitable for the installation? 3. Whether there are other potential mitigating actions that could be reasonably taken to lessen the potential impacts of the proposed installation upon adjacent properties? I. At the conclusion of this hearing, the public body may either approve the proposed installation; condition its approval of the installation upon other measures or the use of another suitable location, as necessary to minimize adverse impacts, without significantly compromising the efficiency of the device; or deny the application and request the applicant to review other means to achieve the desired results, with lesser adverse impacts upon the community. J. For purposes of this Article, the term “solar device” means a system or series of mechanisms designed primarily to provide heating, to provide cooling, to produce electrical power, to produce mechanical power, to produce biological sources of combustible fuel, or to provide any combination of the foregoing, by means of collecting and transferring solar generated energy into such uses either by active or passive means. Such systems may also include the capacity of storing energy for future utilization. 06-2019 Update 35 Bisbee Zoning Code, 1998 ARTICLE 7 SIGN REGULATIONS 7.1 Purpose The regulation of signs within the City of Bisbee is necessary to protect and to enhance the economic well-being of this community, to preserve the aesthetics and the historic character of this unique city, and to provide necessary protection to the traveling public through the limitation of unnecessary distractions and obstructions. These sign regulations shall be interpreted and applied to accomplish these goals, while at the same time allowing signs to be used in a reasonable manner as a means of both commercial and non-commercial communication, for the benefit of individual property owners and as may be required by other applicable law. 7.2 Requirements and Procedures 7.2.1 Permit requirements An approved sign permit is required prior to the installation and maintenance of any sign that is not specifically exempted by these regulations. Any person who places, installs or maintains any sign within in the City of Bisbee in a manner that violates these regulations may be subject to the penalties provided in this Zoning Code. 7.2.2. Signs Exempt from Permit Requirements The following types of signs, as described herein, shall be allowed in all zoning districts of the City and shall not require a sign permit. These exempt signs shall be subject to any specific standards stated below for each designated type of sign and shall be installed and maintained in a manner that does not violate the general requirements applicable to the installation of all signs, as stated in this Article. Except for traffic control devices, exempt signs may not include internal, direct or indirect lighting or electrification. A. Name plate signs and address signs. A name plate sign indicates the name of the family or other occupant of the structure or the name of the building and does not exceed two square feet on any face. An address sign indicates the street name and address for the property and may not exceed one square foot on any face. B. Historic designation plaques. An historic designation plaque indicates the name and date of the structure and may include a brief description of the property. It shall not exceed three square feet on any face. 06-2019 Update 36 Bisbee Zoning Code, 1998 C. Temporary signs. A temporary sign is one for a specific event, such as for a grand opening, a community gathering or fund raising event, garage or yard sale or some other circumstance that will not reoccur more often than on an annual basis. These may include banners, streamers, balloons and other types of specialty signs. Temporary signs shall not be maintained for a period longer than thirty days and those associated with a particular event must be removed within five (5) days of the end of the event. D. Political or public speech signs. Campaign signs and other signs supporting or opposing a particular candidate or official, cause, party or position do not require a permit unless any such sign is erected in a manner or at a height that requires specific approval under these or other applicable regulations. Within a residential zoning district, the size and construction of any exempt sign shall not exceed the limits of a reasonable residential accessory use. Within a commercial or manufacturing zoning district, any such sign shall not exceed the size and height limitations imposed on signs in those districts. E. Real estate sale or rental signs. Real estate sale or rental signs are signs located on the subject property, or other property in the vicinity of the subject property, advertising the sale or lease of the property and not exceeding seven (7) square feet in area on any face. F. Home occupation sign. A home occupation may be identified by a sign not larger than two (2) square feet located on the inside of a window of a dwelling. G. Traffic control and directional signs. Traffic control and directional signs are signs located within or adjacent to the public right-of-way, installed by or on behalf of a public agency, and conforming to the requirements of the manual on uniform traffic control devices. These may also include directional and control signs on private property developments where such signs are required in connection with the approval of the project. H. Sandwich board and other portable signs. A sandwich board, A-frame or free-standing portable sign may be located on the subject property or in the vicinity of the subject property provided that the sign does not exceed four feet in height and the sign is removed by the close of business each night. I. Integral building sign. An integral building sign is one that includes the name of a building, date of construction, persons responsible for the construction, or other similar information regarding the history of the building and that is carved into the building stone or concrete or installed as a plaque permanently connected to the building. J. “Sign walker” signs. A “sign walker” sign is one that is worn, held or balanced by a person and is not installed or attached to real property. 7.2.3 Applications for Sign Permits All applicants for a sign permit shall submit a signed application on the form provided by the City. This permit form shall include the following: A. The name, address and contact information of the applicant. B. The street address and the specific location of the proposed sign on the subject property. C. The name of the property owner, if different than the applicant. D. The name and contact information of the person or firm who will be installing the sign. E. A specific description of the proposed sign including dimensions, design, height, and materials. F. A specific description of the manner in which the sign and any supporting structures will be installed and mounted, including construction plans where required by the applicable codes or by the Building Inspector under the authority of any such codes. 7.2.4 Permit Fees The sign permit fee, as adopted by the Mayor and Council, shall be paid by the applicant at the time that a sign permit application is submitted. The fee for a sign that was installed or erected prior to the issuance of a sign permit shall be twice the amount of the original fee. 7.2.5 Issuance of the Sign Permit. Upon the submission of a complete and appropriate sign permit application and the payment of the required fees, the Building Inspector, or his or her designee, shall issue an approved sign permit. If the construction, repair, maintenance, 06-2019 Update 37 Bisbee Zoning Code, 1998 improvement or alteration of any sign also includes activities that require approval under the City’s Building Code, Electrical Code, or any other code that has been adopted by the City, authorization for such work may be included within an approved sign permit. The sign permit shall specifically advise the permittee which additional code provisions are applicable and which inspections are required for final approval. Inspections may be required for footing or foundation construction, electrical installation, anchoring connections and lighting functions. 7.2.6 General Requirements Applicable to All Signs All signs located within the City of Bisbee, including those otherwise exempt from obtaining sign permits under these regulations, must be installed and maintained in a manner that this consistent with these requirements. A. All signs, other than traffic control devices, directional signs or signs installed or approved by a public agency, shall be located on and attached to private property. Only traffic control devices and directional signs are permitted to be installed or maintained on or within the public roads, streets, alleys, sidewalks or other public rights-of-way of the City of Bisbee. City personnel are authorized to remove all unauthorized signs from City property without further notice. B. Signs may be located over or across a public right-of-way or sidewalk provided that the sign meets all applicable height requirements under these regulations and the applicable building code and that the sign does not create an obstruction for pedestrians or vehicles that may use the travel way. C. The owner of the property to which the sign is attached is responsible for the maintenance of the sign. Signs must be installed and maintained as necessary to prevent them from creating hazardous conditions for the traveling public or for occupants of the subject or adjacent properties. Any sign that is constructed of paper, cloth, canvas, light-weight fabric or plastic, cardboard or other light-weight material must be removed or replaced when it becomes torn, dilapidated, disconnected or damaged by the wind, sun, rain or other circumstances. D. Any lighting or illumination that is associated with a sign must be installed to prevent any direct beam or glare from falling on any adjacent property or travel way, must be shielded as required by applicable City regulations, and must not provide more illumination than the minimum amount that is necessary for the reasonable purposes of the sign. E. All non-exempt signs and exempt signs with a surface area on any face of more than twenty (20) square feet shall be constructed and installed in a manner that is sufficient to withstand a wind load of not less than thirty (30) pounds per square foot of exposed surface. F. All signs that exceed more than three (3) feet in height above the adjacent grade shall be located so that they do not interfere with the view of on-coming or intersecting traffic through the sight triangle at a corner or driveway intersection. For purposes of this regulation, the length of the legs of any such triangle shall be twenty (20) feet, in the absence of a specific study performed by either the Zoning Inspector or the property owner, conducted in accordance with standard traffic engineering practices. G. Billboards, defined as any freestanding sign exceeding fifty (50) square feet in surface area on any one face, are prohibited in all zoning districts in the City of Bisbee. 7.2.7 Message Substitution These regulations are not intended to infringe upon the ability of a person to communicate with the public in the manner protected by the state and federal constitutions. Nothing in these regulations shall be construed as prohibiting any person, with the approval of the subject property owner, from including or substituting non-commercial speech for the copy of any sign that is otherwise permitted or allowed by these regulations. 7.3 Residential Zone Sign Regulations The following types of signs may be permitted, upon the submittal of an appropriate application, on property which is located within any R, Residential, or RM, Manufactured Home Residential, zoning district in connection with these specified types of development. 7.3.1 Entrance Signs for Subdivisions which meet the following conditions: A. These signs may be used to identify the entrance to a subdivision. They shall be limited to a maximum of two (2) signs per entry, and shall be for the exclusive purpose or identifying the subdivision entrance. B. The overall height of the sign may not exceed five (5) feet. 06-2019 Update 38 Bisbee Zoning Code, 1998 C. The size of each sign shall not exceed twenty four (24) square feet on each face. This sign may be freestanding. 7.3.2 Identification Signs for Multiple Family Dwellings which meet the following conditions: A. One wall sign may be placed and maintained upon one building for each street that the dwelling complex abuts. B. The total sign area of each wall sign shall not exceed twenty four (24) square feet and no part of the sign shall extend above the building plate line. Wall signs may be illuminated by internal or indirect lighting, subject to approval of appropriate lighting plans. C. One (1) free-standing sign may be placed and maintained on the subject property for each street that the dwelling complex abuts. This free-standing sign: (1) Shall not exceed twelve (12) square feet in total area per sign face. (2) Shall include only the name and address of the complex. 7.3.3 Mobile Home and Manufactured Home Park Signs which meet the following conditions: A. These signs may be used to identify the entrance to the park. They shall be limited to a maximum of two signs per entry, and shall be for the exclusive purpose or identifying the park entrance. B. The overall height of the sign may not exceed five (5) feet. C. The size of each sign shall not exceed twenty four (24) square feet on each face. This sign may be freestanding. 7.3.4 Subdivision Development Signs which meet the following conditions: A. Not more than two (2) thirty two (32) square foot signs for the sale of lots or homes in a subdivision are allowed. B. These signs shall be erected not less than two hundred (200) feet apart and the signs may be double-sided. C. No part of any subdivision sign shall be more than fifteen (15) feet above the ground level or closer than fifteen (15) feet to the public right of way. D. The signs must be placed on the property, near the main entrance of the property being subdivided or developed. E. Signs advertising new subdivisions are temporary and must be removed after ninety-five (95) percent of the subdivision is sold to residents. 7.3.5 Signs for Churches, Recreational and Educational Facilities and Non-conforming Uses. Signs for churches, recreational and educational facilities, non-conforming uses, and other types of occupancies that are lawfully allowed within R and RM zoning districts shall conform to the sign rules that are applicable to C, Commercial, zone districts. 7.4 Commercial and Manufacturing Zone Sign Regulations The following types of signs may be permitted, upon the submittal of an appropriate application, on property which is located within any C, Commercial; CM, Commercial Mixed Use, or M, Manufacturing zoning district in connection with existing or proposed development on the subject property. No occupancy in these zoning districts may have more than three (3) of the following types of signs at any one location. 7.4.1 Individual Business Wall Signs A. The size of a wall sign shall be limited to one and a half (1.5) square feet of sign area per each linear foot of building frontage. B. Wall signs may be internally or indirectly lighted. C. One sign per wall is permitted for each wall of the building. 7.4.2 Projecting Signs A. Projecting signs are permitted over sidewalks only and shall be located a minimum of nine (9) feet above grade of the sidewalk. B. Projecting signs may be double-faced and shall not exceed twenty (20) square feet in area. C. No part of any sign shall project more than four (4) feet from the wall. D. Projecting signs shall be placed perpendicular to the building wall. 06-2019 Update 39 Bisbee Zoning Code, 1998 7.4.3 Marquee Signs A. Indoor theatres and public assembly areas shall be allowed a change panel, marquee sign which may be affixed to the building or a marquee. B. Marquee signs may illuminated by direct or internal lighting. C. Marquee signs shall not exceed one hundred (100) square feet in area. 7.4.4 Signs in Windows A. The size of a business name sign and other advertising in or on a business window shall not cover more than fifty percent (50) of the window area. B. A sign permit is required for window signs advertising the business name. Temporary or changeable product advertisement signs in windows do not require an additional permit. C. Information about the hours of operation may be posted on or inside a door or window. This signage shall not be included in the calculation of any limitations of the number or area of signs allowed under these regulations. 7.4.5 Free-Standing Signs A. Only monument type signs will be permitted. A monument sign has a self-supporting permanent structure, detached from supportive elements of the building, on a base that has an aggregate width of at least fifty percent (50) of the total width of the sign. The materials of a monument sign complement or are compatible with the materials and colors of the architecture on the site. B. One double-faced free-standing monument sign with a maximum area of thirty-two (32) square feet per sign face may be permitted at a single business location. C. Freestanding monument signs may be illuminated by indirect or internal lighting. D. The top of the monument sign shall be no higher than eight (8) feet from the ground level. E. On properties such as strip malls, shopping centers, business plazas or other commercial properties with two or more separate businesses operating on a commercial site that is subject to common ownership and management, freestanding signs that identify multiple businesses located on the property may exceed these limitations. Each such property may include one sign that identifies the name of the development and one or more of the businesses on site and may be up to forty-eight (48) square feet per sign face. This sign may be no higher than eight (8) feet. 7.4.6 Motel, Hotels, Resorts, and Service Station Change Panel Signs Motels, hotels, resorts and service stations may use change panel signs for one of the three types of signs associated with any such business. Change panel signs are subject to the following requirements. A. Only one (1) change panel sign is allowed for each street that the business abuts. B. Change panel signs shall not exceed twelve (12) feet in overall height from ground level for pole signs or eight (8) feet in height when a monument sign is used. C. Change panel signs shall not exceed fifty (50) square feet in area and the horizontal dimension shall not exceed ten (10) feet. D. Change panel signs may be double faced and illuminated indirectly or internally. 7.4.7 Signs on Parked Vehicles Commercial signs or advertising on parked vehicles or trailers are prohibited unless the vehicles or trailers are primarily used in conducting business and the signs advertise or identify the business and the products or services offered on the premises. This paragraph shall not apply to signs affixed to vehicles or trailers used as public carriers, businesses, taxis, or vehicles when operating during the normal course of business. Nor does it apply to non-commercial signs. 7.5 Historical Preservation Overlay District Sign Regulations Applications for non-exempt signs to be installed and maintained within the Historic District must first be submitted to the Design Review Board for a determination by that Board that the proposed sign or signs are consistent with the regulations of this Code and the Design Guidelines, as applicable to the Historic District. The Design Review Board has the authority to provide design approval for sign applications which are consistent with the requirements of this Article, subject to the general limitations associated with each respective zoning district. The Design Review Board shall also make a recommendation to 06-2019 Update 40 Bisbee Zoning Code, 1998 the Planning and Zoning Commission for the approval, disapproval or modification of any special use application for a sign within the Historic District. The Design Review Board has the authority to impose additional limitations or requirements upon the signs to be installed or maintained within the Historic District as necessary to insure that such signs are consistent with the Design Guidelines and the regulations adopted to protect this area and are compatible with the existing development within this district. Signs that are out of proportion or scale to the existing development within the district, that are to be illuminated in a manner that would not be consistent with the color, lettering or techniques of lighting that were prevalent in the historic period of the district, or that employ technology that would be out of place in the district will not be permitted. 7.6 Signs Allowed by Special Use Permits A. The following types of signs may be allowed within a commercial or manufacturing zoning district, or in connection with a lawful non-residential use, upon the approval of a Special Use Permit for the sign. 1. Electronic change panel signs, action signs and animated signs. 2. Off-premises directional or advertising signs, provided that any such sign is smaller than a billboard, fifty (50) square feet. 3. Signs with external lighting not otherwise permitted under these regulations. 4. Marquee and change panel signs that exceed the limitations of these regulations. 5. Signs for shopping centers, strip malls, business plazas and other types of commercial developments with two (2) or more separate businesses operating on a commercial site that is subject to common ownership and management and for which the proposed signs are not permitted by these regulations. 6. All other signs, excluding billboards that are not otherwise expressly authorized as permitted signs under these regulations. This special use procedure is not available to circumvent any limitations that have been previously imposed within the Historic District by the Design Review Board. B. In the consideration of a special use permit application for any such sign, the Planning and Zoning Commission and the Mayor and Council shall consider the following factors, in addition to those generally applicable to a special use application: 1. Whether the nature, size or location of the proposed sign will interfere with the interests of the City and its citizens in protecting the unobstructed views of the architecture, scenery and surrounding areas of this community? 2. Whether the nature, size or location of the proposed sign will distract the traveling public or impede the ability of drivers to safely navigate the City streets? 3. Whether the nature, size or location of the proposed sign will impose any adverse impacts upon the owners or occupants of other properties within the vicinity of the proposed sign? The Planning and Zoning Commission may recommend and the Mayor and Council may require conditions or restrictions in connection with the approval of any special use sign application as necessary to limit any adverse impacts of any such sign. The Mayor and Council may approve, deny or approve with certain conditions or restrictions, any such special use application. 7.7 Nonconforming Signs A. These regulations shall not prevent any property owner from continuing to maintain any sign which was lawfully constructed or installed prior to the effective date of these regulations. Nor shall these regulations prevent any reasonable repairs or alterations to any such signs, provided that these do not alter the size, shape or impacts associated with any such sign. B. In the event that an existing sign is damaged, destroyed or deteriorated to the extent that it must be replaced with a new sign structure, any such replacement shall be made in a manner that is consistent with these regulations. 06-2019 Update 41 Bisbee Zoning Code, 1998 ARTICLE 7.8 Murals in the Historic District 7.8.1 Purpose: City of Bisbee’s Design and Review Board to adopt guidelines for murals on commercial properties within the historic district. These guidelines for murals in the historic district were formulated as a means of ensuring the continued visual aesthetic of the historic district while allowing for creative expression in appropriate locations and designs. The established review criteria provide guidance concerning the compatibility and appropriateness of the placement, massing, scale and materials of mural art with minimal intrusion into the artistic expression and content of the work. Murals and other similar forms of visual art can both add or detract from the character of a building, structure, or district based upon their location, size, shape, color palette, materials used, and relationship to historic context. 7.8.2 Review Criteria When a building owner is considering adding a Mural to their building or wall an application must be made to the Design and Review Board for consideration. When the building or wall is public property of the City of Bisbee the application process will follow the city’s Art and Monuments in Public Space Application and Instructions. 7.8.3 Mural Art vs. Signage Content distinguishes mural art from signage. While a sign specifically advertises a business, product or service through graphics or text, murals are solely artistic in nature. Murals may not include trademarks, service marks, or other markings, colors, or patterns identifying or associated with a business, profession, trade, occupation, or entity. When an official interpretation is deemed necessary, Bisbee’s Community Development Department will determine if a proposal is a mural or a sign. Mural art that constitutes a sign shall conform to the signage regulations of the zoning ordinance and applicable design guidelines. 7.8.4 Guidelines A. Location 1. Murals are not permitted on unpainted contributing or landmark structures. Murals on unpainted non-contributing buildings or walls will be considered on a case-by-case basis. 2. Paint or mount all murals or other similar forms of visual art on the side or rear walls of the building, and not on its primary façade, above its roof line, or on any of its decorative elements. 3. The installation of a mural should complement and enhance the building or wall and be incorporated architecturally into the character of the historic district. 4. The location of a mural on the building should not cover or detract from significant or character-defining architectural features. 5. The location, size, nature, or type of mural shall not create a hazard to the safe and efficient operation of vehicles, or create a condition that endangers the safety of persons or property thereon. Murals may not extend beyond the eaves, parapet, or sides of a building. 6. If a mural is allowed to be mounted onto the building it must be done to prevent damage from moisture/condensation behind the attached panel. Generally, the hanging and/or anchoring of a mural should be reversible. B. Design & Materials 1. The mural shall not obscure key features of the building or wall. 2. Paint utilized should be intended for exterior use and which will not compromise the integrity of the material to which it is applied. Reflective neon and fluorescent paint should not be used. 06-2019 Update 42 Bisbee Zoning Code, 1998 3. The application of murals on historic material should follow all relevant Preservation Briefs as published by the National Park Service's; “The Secretary of the Interior’s Standards for the Treatment of Historic Properties with Guidelines for Preserving, Rehabilitating, Restoring and Reconstructing Historic Buildings Technical Preservation Services.” 06-2019 Update 43 Bisbee Zoning Code, 1998 ARTICLE 8 PARKING AND LOADING 8.1 Requirements Lots existing at the time of the adoption of this Ordinance which may not be able to meet these parking requirements are exempt. It is the intent of this article to require the minimum number of on-site parking and loading spaces with maneuvering areas, driveways and surface materials for the efficient movement of vehicular traffic. Off-street automobile parking space shall be provided according to the following schedule and subject to the following conditions in any zone in which any of the following uses are established. A. A percentage of the required parking space shall be designated for handicap use and located closest to the entrance. Specific requirements for number of handicap spaces are in the appendix B. Parking space diagrams and maneuvering dimensions are in the appendix. 8.1.1 Employees In addition to the requirements of any other section of this Ordinance, one (1) off-street parking space for each two (2) employees shall be provided for any land use other than an office building. The number of employees used in computing parking requirements shall be the greatest number of persons employed at any time of the day or night; each space shall not be farther than six hundred (600) feet distant in a direct line from the nearest part of the structure. 8.1.2 Residential One (1) parking space for each family dwelling unit less than 1,000 square feet; and a minimum of two (2) spaces per unit for each dwelling unit more than 1,000 square feet ; each space shall be provided on the building site on which the dwelling is located, except as provided in section 8.6 of this Ordinance. The building of new structures on lots without street access may provide the required on-site parking off of the building site, so long as it is off of the street and in a location approved by the Zoning Administrator. 8.1.3 Hotels, Motels, and Boarding Houses One (1) parking space for each one (1) guest room or dwelling unit. One (1) additional parking space for each two hundred (200) square feet of actual usable service area, including basements and attics. 8.1.5 Hospitals One parking space for each three (3) patient beds in a hospital. Each space shall not be farther than six hundred (600) feet distant in a direction line from the nearest part of the structure. 8.1.6 Churches One parking space for every four (4) persons for whom seating is provided in the main auditorium. 8.1.7 Theaters, Auditorium, and Stadiums One parking space for each five (5) seats or similar accommodations in any theater, auditorium or stadium, each of which shall not be farther than six hundred (600) feet distant in a line from the nearest part of the structure. 8.1.8 General Requirement One parking space for each two hundred (200) square feet of floor area used for the following: Each parking space shall not be farther then six hundred (600) feet in distant line from the nearest part of the structure. A. Shopping center, retail store, service business. B. Community and recreational buildings C. Government, business or professional offices D. Restaurants E. Medical or dental clinics F. Primary and secondary schools G. Any retail commercial use not otherwise listed in this section 06-2019 Update 44 Bisbee Zoning Code, 1998 8.1.9 Dance Halls, Night Clubs, Assembly Halls One parking space for each two hundred (200) square feet of floor area used for a dance hall, night club, assembly hall without fixed seats, or establishment for the sale and consumption of alcoholic beverages, food or refreshments on the premises. Each parking space shall not be farther than six hundred (600) feet distant in a direct line from the nearest part of the structure. 8.1.10 Funeral Homes and Funeral Parlors One parking space for every four (4) persons for whom seating is provided in the main auditorium. 8.1.11 Furniture Stores and Furniture Repair Shops One (1) parking space for each one thousand (1000) square feet of floor area used for a furniture store, furniture repair shop. Each parking space shall not be farther than six hundred (600) feet distant in a direct line from the nearest part of the structure. 8.1.12 Bowling Alleys Two (2) parking spaces for each alley in a bowling alley. Parking space shall not be farther than six hundred (600) feet distant in a direct line from the nearest part of the structure. 8.1.13 Gasoline Service Station and Auto Services For a gasoline service station, carwash or public repair garage, automobile storage or parking space sufficient in area to accommodate the automobiles of the operator patrons of such commercial uses. Parking space shall not be farther than six hundred (600) feet distant in a direct line from the nearest part of the structure. 8.1.14 Manufacturing uses Manufacturing uses shall provide one (1) parking space for each five hundred (500) square feet of enclosed floor area. 8.1.15 Automobile Sales Lots One parking space for one thousand (1000) square feet of floor space used for new and/or used automobile sales. Parking space shall not be farther than six hundred (600) feet distant in a direct line from the nearest part of the structure. 8.1.16 Parks and Open Spaces Three (3) parking spaces for each acre of park or open area. 8.2 Combination of Uses Where there is a combination of uses on a lot, the number of parking spaces shall be the sum of the requirements of the various uses. If, in the opinion of the Building Official, the uses would not be operated simultaneously, the number of parking spaces shall be determined by the use with the highest parking demand. 8.2.1 Combination of uses within a Mixed Economic Use Zone Where a combination of uses occurs on a single lot within a mixed economic use zone, the aggregate parking requirement of this section may be satisfied by the procurement of private, off-street parking. 8.2.2 Development of Parking Area In any multiple-use zone, where parking space is required, the surface of each parking space shall be paved and maintained to standards established by the Public Works Department. 8.3 Commercial and Manufacturing Parking in Residential Areas Where a parking area for a business or industrial use adjoins or is within a residential zone, there shall be solid wall of masonry or other approved fireproof material, not more than five (5) and not less than four (4) feet in height, along the boundaries adjoining residence lots, except that adjoining the front yard of a residence lot, the wall shall be three (3) feet, six (6) inches in height. Anywhere a wall is required, a minimum landscaped yard of five (5) feet shall be provided between the wall and property line. 06-2019 Update 45 Bisbee Zoning Code, 1998 8.4 General A. Off-street automobile parking space being maintained in connection with any existing main building or use shall be maintained so long as the main building or use remains. B. The standards for providing off-street parking required by this article shall apply at the time of the erection of any main building or when off-street parking is established. These standards shall also be complied with when an existing building or use is altered, extended or enlarged, or where the use is intensified by a change in occupancy. Examples of such alterations include the addition of dwelling units, guest rooms, floor area, seating capacity, or seats. 8.5 Off-Street Loading All buildings erected or established shall have and maintain loading space(s) as determined by Site Plan Approval as outlined in Article 3, Section 3.4 and be subject to the following conditions: A. No part of any alley or street shall be used for loading except areas designated by the City. B. No loading space that is provided on an approved Site Plan shall be eliminated, reduced or converted, unless equivalent facilities are provided elsewhere. C. All loading space shall be surfaced and maintained subject to the standards of the Public Works Department. 8.6 Residential Permit Parking The Public Works Director and Police Chief may designate. Subject to approval by the Mayor and Council, a residential area or areas consisting of streets or portions of streets on which the parking of motor vehicles may be restricted in whole or in part to motor vehicles bearing a valid parking permit issued pursuant to these provisions to residents of the area so designated. 8.6.1 Eligibility of Residential Areas for Designation A residential area shall be deemed eligible for designation for residential parking where the Public Works Director and Police Chief find that parking in the area is significantly impacted by motor vehicles owned by nonresident. In arriving at such findings, the Public Works Director and Police Chief shall consider the following factors: A. The extent to which any period between the hours of 7:00 a.m. and 5:00 p.m., weekdays except holidays, the number of parked motor vehicles approaches the legal on-street parking capacity of the area; B. The extent to which, during the same period described in subsection A., The number of parked motor vehicles in the area is comprised of motor vehicles not registered to persons residing in the area. C. The extent to which parking by motor vehicles registered to nonresidents of the area places unreasonable burdens on area residents attempting to gain access to their residences; and the extent to which the area residents are willing to bear the administrative costs associated with the establishment of a residential permit parking area. D. The extent to which the area for which residential parking is being considered and adjacent areas are served by public transportation; and, E. The extent to which the designation of the area for residential permit parking will help to alleviate traffic congestion, illegal parking, hazards to pedestrians and related health and safety dangers. 8.6.2 Designation of Residential Permit Parking Areas Following Mayor and Council approval of this designation of a residential permit parking area, the Public Works Director and Police Chief shall provide for the issuance of permits and cause parking signs to be erected in the area. Indicating the times and conditions under which parking shall be by permit only. A permit shall be issued upon application and payment of the applicable fee, only to the owner or operator of a motor vehicle who resides within the designated residential permit parking areas. 8.6.3 Fees The Public Works Director is hereby authorized to establish, with Mayor and Council approval, an annual residential parking fee to cover the administrative costs of permits issued to these provisions. 8.6.4 Administrative Guidelines 06-2019 Update 46 Bisbee Zoning Code, 1998 The Public Works Director and Police Chief are directed to prepare, and the City Manager may issue as an administrative directive, administrative guidelines as they may deem necessary and desirable to implement the provisions of this action. 8.6.5 Parking Citations The Police are herby authorized to issue citations enforcing regulations of any residential parking permit area. 8.7 Historic District Permanent Exemption (Ordinance O-11-11 June, 2011) Within the Bisbee Historic Preservation Overlay Zone, for all alterations, additions, extensions or enlargements of existing structures and associated improvements for commercial development and for residential development within an existing CM zoned structure, the parking requirements of Article 8.1 of this Zoning Code shall not be applicable. No additional parking spaces shall be required by this Article in connection with any such construction, enlargement or renovation or the subsequent use of that commercial space for the uses specifically designated in any such building permit. Off-street parking currently being maintained in connection with any existing building or use shall be maintained so long as that building exists or its use continues. 8.7.1 Exemption New Residential Construction in the Bisbee Historic Preservation Overlay Zone from Parking Requirements Notwithstanding any other provision of this Zoning Code, for new residential construction in the Bisbee Historic Preservation Overlay Zone, if onsite parking or offsite parking is not feasible, the parking requirements of Article 8.1 of this Zoning Code shall not be applicable. The determination of feasibility shall be made by the Zoning Inspector. A property owner can appeal the Zoning Inspector's determination of feasibility to the Board of Adjustment. 8.8 Arizona Street Parking Requirements For purposes of determining compliance with the applicable parking requirements under this Article for any new development, or for any alteration or expansion of any existing occupancy, for each property with frontage on Arizona Street in Warren, the number of parking spaces on Arizona Street that are available within that same block, on both sides of that street, may be included in the determination of the number of parking spaces that are available for that occupancy or development and may be substituted for an equal number of off-street parking spaces currently being maintained for any existing main building. 06-2019 Update 47 Bisbee Zoning Code, 1998 ARTICLE 9 DEFINITIONS 9.1 Rules of Interpretation For purposes of interpreting this Ordinance, unless the context otherwise requires, the singular shall include the plural and the plural shall include the singular, the word “may” is permissive, and the word “shall” is mandatory. Words shall be given their common and ordinary meanings unless a specific definition is provided in the Zoning Code. 9.2 Definitions In this Ordinance, unless the context otherwise requires: 1. Abandoned Vehicles shall mean a vehicle that is subject to registration that is not owned or claimed by the owner of the property on which it is located and that has been left unattended for a period of seventy-two (72) hours or more. 2. Abut shall mean any two or more buildings or lots or part there of that share a common border. 3. Access or Access-Way shall mean the place, means, or way by which pedestrians and vehicles shall have safe, adequate, and useable ingress and egress to a property or use as required by this Ordinance. 4. Accessory Building shall mean a subordinate building, the use of which is customarily incidental to that of a dominant use of the main building or premises. 5. Accessory Use shall mean a use customarily incidental to, related appropriately, and clearly subordinate to the main use of the lot of building. The accessory use does not alter the principal use of the subject lot of building or adversely affect other properties in the district. 6. Action Sign shall mean a sign which rotates, revolves, or moves by mechanical or any other means. 7. Adjacent shall mean to be abutting, adjoining, and surrounding area, to the extent that the proposal may impact or be impacted by the area. The widths of Public right of way shall not be counted when determining distance for the adjacent properties, uses, etc. 8. Adult Bookstore shall mean a commercial establishment having a substantial portion of its stock in trade, books, magazines and other periodicals depicting, describing or relating to “specified sexual activities” or are characterized by their emphasis on matters pertaining to “specified anatomical areas” or any establishment that has a substantial portion of its stock in trade in books, magazines and other periodicals and which excludes all minors from the premises or a section therein. 9. Alley shall mean a public thoroughfare which affords only a secondary means of vehicular access to abutting property and is not intended for general traffic circulation. An alley line shall mean the center line of an alley right-of-way as determined by the Public Works Director. 10. Alteration shall mean any aesthetic, architectural, mechanical or structural change to the exterior surface or any part of an existing structure. 11. Alternative Lodging Park shall mean a temporary or permanent use that allows a variety of housing options including manufactured and mobile homes, recreational vehicles, travel trailers, tiny homes and temporary camping facilities that may be granted by Special Use Permit on a case by case basis in any zoning district. The proposed park will require at a minimum a detailed site plan that identifies the number of unit spaces, access points to public streets, internal circulation, buffer zones and screening devices, open space/recreational facilities and additional buildings, etc. The minimum parcel size for a proposed Alternative Lodging Park shall be one-half acre with a maximum parcel size of 5 acres. The maximum units per acre for any park will be determined by the Planning Commission based on site conditions. All manufactured homes to be sited in an Alternative Lodging Park are subject to the minimum standards in Article 6 General Provisions, Section 6.7 in the Bisbee Zoning Code. All pre-1976 rehabilitated mobile homes are subject to the Arizona Department of Housing, Office of Manufactured Housing minimum rehabilitated home standards. Refer to the tiny home definition for the minimum building code standards. 12. Amendment shall mean a change in District boundaries or zoning ordinance text. 13. Analogous Use shall mean any use which is comparable to the permitted uses, is similar in one or more important ways to the permitted uses, or resembles the permitted uses in one or more aspects, including the impacts that are likely to result from such use. 14. Animal Clinic or Animal Hospital shall mean a place where animal or pets are given medical or surgical treatment in emergency cases and are cared for during the time of treatment. Use as a kennel shall be limited to short time boarding, shall be only incidental to the hospital use, and shall be enclosed in a soundproof structure. 06-2019 Update 48 Bisbee Zoning Code, 1998 15. Animated Sign shall mean a sign containing light movement such as blinking, traveling, flaring, changing intensity or any light movement. Traditional holiday decorations shall not be considered an animated sign. 16. Antenna – Any exterior transmitting device which may be mounted on a tower, building or structure and used in communications that radiate or capture digital signals, analog signals, radio frequencies (excluding radar signals), wireless telecommunications signals, electromagnetic waves or other communication signals. (O-00-20) 17. Apartment House – See Multiple Dwelling. 18. Area of Lot shall mean the total horizontal area included within the lot lines 19. Awning shall mean a roof-like covering made of cloth, metal or other material attached to a structure, which may be raised or retracted to a position against the structure when not in use, providing shade to a window or shelter. 20. Bed and Breakfast shall mean an owner-occupied residence providing sleeping rooms and breakfast only for transient, traveling public with adequate parking for guests. 21. Billboard shall mean any freestanding signs exceeding fifty (50) square feet. 22. Boardinghouse shall mean a building where, for compensation and by prearrangement for definite periods, lodging and/or meals, are provided for three (3) or more persons, but not exceeding twenty (20) persons. 23. Building shall mean any structure for the shelter, housing, or enclosure of person, animals, chattels, or property of any kind. If a building is divided in the permitting process, each portion is considered a separate building. 24. Building Official shall mean an individual designated by the building inspection division of the Planning and Community Development Department. 25. Canopy shall mean a structure supported by a frame bearing on the ground. A canopy may be either free standing or attached to a structure. 26. Carport shall mean an accessory building or portion of a main building with two or more open sides designated or use for the parking of motor vehicles. Enclosed storage facilities may be provided as part of a carport. 27. Change Panel Sign shall mean a sign designed to permit immediate change of copy which may be other than the name of the business. 28. Common Areas shall mean all areas of a project excepting units therein granted or reserved. 29. Condominium shall mean an estate in real property consisting of an undivided interest in common in a portion of a parcel of real property together with separate interest in air space in a residential, industrial, or commercial building on the real property, such as an apartment, office, or store. 30. Convalescent Home or Nursing Home shall mean any place or institution which makes provisions for bed care, or for chronic or convalescent care for one or more persons exclusive of relatives, who by reason of illness or physical infirmity are unable to properly care for themselves. 31. Day Care Center shall mean an establishment licensed by the State Of Arizona providing care on a regular basis for more than twelve attendees at any given time. 32. Demolition shall mean destruction of a building. 33. Density shall mean the number of dwelling or commercial or industrial units per acre. Gross density shall include the area of right-of-way and open space in the total area. Net density shall not include the right-of-way or open space within the total area. 34. Directional Sign shall mean any sign that directs the movement or placement of any or all forms of traffic. 35. District shall mean any Zone as shown on the Zoning Map of the City of Bisbee for which there are uniform regulations governing the use of buildings and premises or the height and area of buildings. 36. District Map shall mean the Official Zoning Map of the City of Bisbee. 37. Dwelling shall mean any building or portion thereof, which is designed or used for residential purposes, designed for occupancy by one family for living purposes and having its own cooking and sanitary facilities. 38. Easement shall mean any recorded interest in land owned by another for a specific (limited) use (i.e., access). 39. Farm Animals shall mean: horses, mules, asses, cattle, fowl, goats, and other neat animals used for food and farm work. 40. Fence shall mean any barrier constructed to prevent intrusion or to mark a boundary. Does not include retaining walls. 06-2019 Update 49 Bisbee Zoning Code, 1998 41. Free-Standing Sign shall mean a sign which is not attached to a building. 42. Frontage shall mean all property on one side of a street between two intersection streets (crossing or terminating) measured along the line of the street, or, abutting on one side between an intersecting street and the dead end of the street including property on a cul-de-sac. 43. Garage, Private shall mean any accessory building or portion of a main building designed or used for the storage of not more than three (3) motor-driven vehicles, provided that no private garage may be used or rented for the storage of commercial trucks having a capacity in excess of one ton. 44. Garage, Repair shall mean a building or portion thereof, other than a private or storage garage, designed or used for servicing, repairing, equipping, hiring, selling or storing motor-driven vehicles. 45. Garage, Storage shall mean a building or portion thereof designed or used exclusively for housing of four (4) or more motor-driven vehicles. 46. Gasoline Service Station shall mean any establishment that provides for the refueling or servicing of automobiles. This does not include any form of body painting or repair. 47. Grade shall mean the lowest point of elevation of the finished surface of the ground between the exterior wall of a building and a point five (5) feet distant from the wall, or the lowest point of elevation of the finished surface of the ground between the exterior wall of a building and the property line if it is less than five (5) feet distant from the wall. In case walls are parallel to and within five (5) of a public sidewalk, alley or other public way, the grade shall be the elevation of the sidewalk, alley or public way. 48. Group Home shall mean any facility in which custodial care or a protected living environment is provided. The care may be of a voluntary or involuntary nature. 49. Guest Room shall mean a room which is designed to be occupied by one or more guests for sleeping purposes, and having no kitchen facilities and not including dormitories for sleeping. 50. Half-way House shall mean any facility with personnel providing for the care and supervision, treatment and shelter of persons who have demonstrated tendencies toward substance addiction of any type, mental illness, or anti-social or criminal behavior. 51. Height shall mean the vertical distance measured between the highest part of a structure and the finished grade at the midpoint of the front facade of the principal structure, excluding chimneys, mechanical equipment and other miscellaneous additions. 52. Historic Preservation Overlay, see Article 5.3 53. Historic Sign shall mean a sign which has been in existence for fifty (50) years or longer and does not advertise a current product or business. 54. Homeless/Rehabilitation Center shall mean any care facility that provides services and shelter to those persons needing a time for rehabilitation of health, mental and/or living conditions/practices. 55. Home Occupation shall mean any occupation or profession carried on by a resident of a dwelling which use is clearly incidental to the use of the structure for dwelling purposes and which does not change the exterior character of the premises and is in conformance with the requirements of this Code. 56. Hospital shall mean a place for treatment or other care of human ailments, and shall include “a sanitarium,” “a clinic,” and “a maternity home,” unless otherwise specified. 57. Hotel shall mean a facility offering transient lodging accommodations to the general public and may provide additional services such as restaurants, meeting rooms, and recreation facilities. 58. Indirect Lighting shall all mean a source of external illumination located away from the sign which is not visible to persons viewing the sign. 59. Industrial Park shall mean any large tract of land that has been planned, developed, zoned or operated as an integrated facility for a number of individual industrial uses, with special attention to circulation, parking, utility needs, aesthetics, and compatibility. 60. Institution shall mean a building or buildings occupied by a nonprofit corporation or a nonprofit establishment for a public use. 61. Integral Sign shall mean signs that include names of buildings, dates of erection, monumental citations, commemorative tablets, and the like which are carved into stone, concrete or similar material made of bronze, aluminum, or other 06-2019 Update 50 Bisbee Zoning Code, 1998 permanent type construction and made as an integral part of the structure. 62. Internal Lighting shall mean a source of illumination entirely within the sign which makes the sign visible at night. 63. Junk shall mean refuse scrap or discarded materials, including metal, glass, wood, rope, rags, paper, batteries, tires, solid waste, dismantled or wrecked vehicles and parts thereof, which are no longer useful for the purpose for which they were originally intended. Refuse shall include all putrescible and non-putrescible waste materials. 64. Junk Vehicle shall mean any vehicle or major portion thereof which is incapable of movement under its own power and that cannot be reasonably restored to a working condition without undue expense. 65. Kennel shall mean any premises where four (4) or more animals older than the age of four (4) months are maintained (City Code, Chapter 6). 66. Land-Locked Parcel shall mean any parcel without access of record to a public right-of-way or easement to such right- of-way. 67. Landscaped Area shall mean an area containing living plants void of asphalt or concrete pavement. 68. Lodging House shall mean a building where lodging only is provided for compensation to three (3) or more, but not exceeding 20 persons. 69. Lot shall mean a legally created parcel of land occupied or intended for occupancy by one main building together with its accessory buildings, and uses customarily incident to it, including the open spaces required by this ordinance and having its principal frontage upon a street as defined in this ordinance. 70. Lot Area shall mean the area of the lot, not including any area in a public way. 71. Lot, Corner shall mean a lot adjoining two or more streets at their intersections. 72. Lot, Depth of shall mean horizontal distance between the front and rear lot lines. 73. Lot, Double Frontage shall mean a lot having a frontage on two non-intersecting streets, as distinguished from a corner lot. 74. Lot Lines shall mean the lines bounding a lot. 75. Lot of Record shall mean a lot which is a part of a subdivision, the plat of which has been recorded in the office of the Cochise County Recorder; or parcel of land, the deed of which is recorded in the Office of the County Recorder. 76. Lot Width shall mean, in the case of irregularly shaped lots, lots having side lot lines not parallel, or lots on the curve of a street, the distance between side lot lines measured thirty (30) feet behind the required minimum front setback line parallel to the street or street chord. 77. Lot, Zoning shall mean a single tract of land located within a single block, which (at the time of filing for a building permit) is designated by its owner or developer as tract to be used, developed or built upon as a unit, under single ownership or control. A “Zoning Lot” may or may not coincide with a lot of record. 78. Maintenance shall mean replacement or repair made necessary by ordinary wear, tear or damage. 79. Manufactured Home mean a building manufactured after June 15, 1976, in accordance with National Manufactured Home Construction and Safety Standards Act of 1974 and title VI of the Housing and Community Development Act of 1974, as amended which is delivered to a home site in one or more sections. 80. Mobile Home means a structure built prior to June 15, 1976, on a permanent chassis, capable of being transported in one or more sections and designed to be used with or without a permanent foundation as a dwelling when connected to on- site utilities. This definition shall not include travel trailers, motorized homes, pickup coaches, camping trailers, modular buildings or park models. 81. Mobile Home or Manufactured Home Park means three or more spaces, lots, tracts or parcels of land, under common ownership or management, used or offered for use, in whole or in part, with or without charge for parking of mobile homes, manufactured homes or trailer coaches used for sleeping or household purposes. 82. Modular Home or Building means a factory-built home or building, or module or component thereof, which is factory fabricated and assembled, and then transported to the site for final construction. Modular units are connected together and are set and securely connected to utilities to make a single structure. Modular structures must be securely attached to a permanent foundation, i.e., cement pad. This term does not include a “manufactured home,” “recreational vehicle,” or “mobile home,” as defined in this Code. 83. Mobile Home or Manufactured Home Space means a plot of ground within a mobile home or manufactured home 06-2019 Update 51 Bisbee Zoning Code, 1998 park designed for the accommodation of one residential unit. 84. Motel means any building or group of buildings containing guest rooms or dwelling units, some or all of which have a separate entrance leading directly from the outside of the building with garage or parking space located on the lot and designed, used, or intended wholly or in part for the accommodation of automobile transients. Motel includes motor court, motor lodge and tourist court, but not a mobile home or manufactured home park. 85. Multiple Dwelling shall mean a building or portion thereof designed for occupancy by two (2) or more families. 86. Natural Hazard shall mean a geologic, floodplain, or wildlife hazard. 87. Nonconforming Building shall mean a building or portion thereof which is lawful when established but which does not conform to a subsequently established district or district regulation. 88. Nonconforming Lot shall mean a parcel of land having less area, frontage or dimensions than required in the district in which it is located, which is lawful when established but which does not conform to a subsequently established district or region. 89. Nonconforming Use shall mean any building or land lawfully occupied by a use at the time of passage of this ordinance or amendment thereto which does not conform after the passage of this ordinance or amendment thereto with the use regulations of the district in which it is located. 90. Off Premises Sign shall mean a sign not located on the premises of the use identified or advertised by that sign. 91. On Premises Sign shall mean a sign located on the same premises of the use identified or advertised by that sign. 92. Parapet shall mean either the edge of the roof or the top of a wall which forms the top line of a building silhouette. 93. Parcel shall mean a tract or plot of land under one ownership as defined by the legal description recorded at the County Recorders office. 94. Parking Lot shall mean a parcel of land devoted to unenclosed parking space. 95. Parking Space shall mean a permanently surfaced area, enclosed or unenclosed, having an area of not less than one hundred sixty (160) square feet which will accommodate a car, minimum width eight (8) feet. Parking as used in this ordinance is to mean off-street parking with access from a street or secondary means or as approved by subdivision plat. 96. Permitted Use shall mean a use specifically permitted or use analogous to those specifically permitted. 97. Prefabricated Dwelling shall mean a building utilizing prefabricated or precut wall panels, roof and ceiling panels, pre- hung doors and windows delivered to the site and assembled on the site to form the building, and having permanent footings and foundations securely connected to the wall panels. 98. Principal Structure or Use shall mean the main or primary use for a structure or parcel of land. This shall include any attached accessory structures. 99. Prohibited Use shall mean a use not specifically permitted or a use analogous to those not specifically permitted. 100. Projecting Sign shall mean any sign attached to a building or other structure and extending, in whole or in part, beyond the building line on a plane perpendicular to the wall. 101. Public Storage Facility shall mean a building or group of buildings in a controlled access and fenced compound that contains varying sizes of individual compartmentalized, and controlled access stalls or lockers for the storage of customer’ property. 102. Receive Only Earth Station shall mean any antenna and attendant for the processing of the reception of electronic signals from satellites. 103. Recreational Vehicle shall mean a vehicular type unit that is primarily used as temporary, mobile, recreational living quarters. This term includes motor homes, travel trailers, campers, and tent trailers and shall have the same meaning as defined under state law, A.R.S. § 41-2142 (30). Recreational vehicles may not be used for residential purposes. 104. Rehabilitated Mobile Home shall mean a mobile home that has been permanently affixed with a Rehabilitation Certificate from the State of Arizona Office of Manufactured Housing, certifying that the dwelling has been inspected and found to meet or exceed the minimum standards of the State of Arizona Department of Housing, Office of Manufactured Housing for rehabilitated mobile homes. 105. Residential Care Facility shall mean a facility that provides residential care of mentally or physically challenged persons not exceeding ten such persons not related to the head of the household. Such homes must comply with any and all applicable State and local laws, licenses, etc. 06-2019 Update 52 Bisbee Zoning Code, 1998 106. Resort shall mean a group of buildings containing more than five (5) dwelling units and/or guest rooms and providing outdoor recreational activities which may include golf, horseback riding, swimming, shuffleboard, tennis and similar activities. A resort may be furnished by a hotel, including a restaurant, cocktail lounge and convention facilities. 107. Restaurant shall mean an establishment whose primary business is the serving of food to the public. 108. Retail shall mean the sale of commodities or goods in small quantities to ultimate consumers. 109. Rooming House see “Lodging House”. 110. School or College: Public Schools: Any school licensed by the State under the purview of the State Board of Education and administered by a legally organized school district. Non-Public Schools: All private, parochial, and independent schools which provide education of compulsory school age pupils and which satisfy the State compulsory education requirements. Vocational/Technical/Special Schools: Educational facilities primarily teaching usable skills to prepare students for jobs in a trade or profession. Examples include but are not limited to schools for art, business, trade, or secretarial. College/University: Educational institutions authorized by the State or other nationally recognized agencies to award baccalaureate or higher degrees. 111. Service Station, Automotive shall mean a retail business engaged primarily in the sale of motor fuels but also in supplying goods and services generally required in the operation and maintenance of automotive vehicles. These may include sale of petroleum products; sale and servicing of tires, batteries, automotive accessories and replacement items; washing and lubrication services; automotive repairs, painting and body and fender work, rental or sales of motor bikes, automobiles, boats, trailers, truck and any other type of sales or services not specifically referred to herein are limited to the service area of the site and if not specifically approved as part of the original use permit, a use permit must be approved prior to the area being used for any of these purposes. 112. Setback shall mean the distance that structures are required to be located from the property lines of a parcel of land, building or other established reference points. 113. Shopping Center shall mean a group of stores planned and designed for the site on which it is built, functioning as a unit, with off-street parking, landscaped area and pedestrian malls or plazas provided on the property as an integral part of the unit. 114. Sign shall mean: Any device for visual communication that is used for the purpose of bringing the subject thereof to the attention of the public, but not including any flag, badge, or insignia of any government or religious, patriotic, fraternal, or similar organization. The term “sign” shall mean and include any display of any letter, numeral, figure, emblem, picture, outline, character, spectacle, delineation, announcement or anything in part or in combination by any means whereby the same are made visible to the eye and for the purpose of attracting attention outdoors to make anything known, whether the display be made on, attached to or as a part of a structure erected for the purpose, or attached to or as a part of any other structure, surface of thing, including but not limited to, the ground or any rock, tree or other natural object, which display is visible beyond the boundaries of the lot or parcel of property on or over which the same is made. 115. Sign Area shall mean the total area of the facing or the total area within the outer edge of any existing signs on the premises, whether the signs be legal or legal nonconforming under the terms of this ordinance. Freestanding letters used as a sign shall be computed by taking the area enclosed within the smallest geometric figure needed to completely encompass all letters, words, insignias or symbols of the sign, including vertical and horizontal spacing between letters. 116. Sign/Product shall mean signs which are manufactured and distributed by a product representative and advertise a specific product or brand name. 117. Single Family Dwelling shall mean a building constructed on the site (by craftsman utilizing basic building materials delivered to the site) and designed for occupancy for one family. The building shall consist of footings and foundations poured in place and solidly attached materials, interior and exterior finishes shall be applied on the site. 118. Site Plan shall mean a plan showing lot configuration and improvements. 119. Special Use shall mean a use not permitted in a particular zoning district and not analogous or incidental to the permitted use. A Special Use Permit must be obtained before commencing or constructing any such use. 06-2019 Update 53 Bisbee Zoning Code, 1998 120. Street shall mean a dedicated public or private passageway which affords a principal means of access to abutting property. 121. Street Center Line shall mean a center line of a street right-of-way as determined by the Public Works Director. 122. Street Line shall mean a dividing line between a lot, tract or parcel of land and a contiguous street (right-of-way). 123. Structural Alterations shall mean any change in the supporting members of a building, such as bearing walls or partitions, columns, beams or girders, or any complete rebuilding of the roof. 124. Structure shall mean any artificial piece of work constructed or erected, the use of which requires a location on the ground or attached to something having a location on the ground, but not including a tent, vehicle, or trailer coach. 125. Substantial Improvement shall mean any repair, reconstruction, or improvement of a structure that equals or exceeds fifty percent (50) of the market value of the structure before any improvement or damage has occurred. Substantial improvement is considered to begin when any work relating to the structural parts of the building commences, regardless of whether the improvements change the external dimensions of the structure. 126. Swimming Pool shall mean a contained body of water, used for swimming purposes, either above ground level or below ground level, with the depth of the container being more than eighteen (18) inches or the area being more than thirty- eight (38) square feet. 127. Temporary Sign shall mean any sign intended to be displayed on the ground or building for no more than a total of thirty (30) calendar days. 128. Temporary Structure shall mean an artificial piece of work which is readily movable and used or intended to be used for a period not to exceed ninety (90) consecutive days. A temporary structure shall be subject to all applicable property development standards for the district in which it is located. 129. Tiny Home shall mean tiny home shall meet the minimum size requirements allowed by the current International Residential Code as adopted by the City of Bisbee. 130. Tower shall mean any structure that is designed and constructed primarily for the purpose of supporting one or more antenna telecommunications services, including self-supporting lattice towers, guyed towers or monopole towers. The term includes radio and television transmission towers, microwave towers, common-carrier towers, cellular telephone towers, tower alternative structures and the like. The term includes the structure and any support thereto. (O-00-20) 131. Travel Trailer shall mean a portable unit or structure designed and constructed to permit temporary residential occupancy, designed and constructed to be towed on its own chassis behind an automobile and which can be operated independently of utility connections for short durations. A travel trailer shall be limited in width to eight (8) feet, in length to thirty-two (32) feet. A travel trailer shall neither be considered nor occupied as a dwelling. 132. Truck Park shall mean any building or premises or land in which or upon which a business, service or industry involving the maintenance, servicing, storage, or repair of commercial vehicles is conducted. This may include the dispensing of motor fuels or other petroleum products directly into motor vehicles, the sales of accessories or equipment for trucks and similar commercial vehicles. These facilities may also include overnight accommodations and restaurant facilities solely for the use of truck crews. 133. Truck Transfer Stations shall mean a building or area in which trucks, including tractor trailer units, are parked, stored, or serviced, including the transfer, loading and unloading of goods. A transfer station may include facilities for the temporary storage of loads prior to transshipment. 134. Unit Density shall mean the ratio between land area and dwelling units within the project. 135. Use shall mean the purpose for which land or building is occupied or maintained, arranged, designed, or intended. 136. Used Car Dealer shall mean the operation of a used car sales business not connected with a franchised new car dealership. 137. Utilities shall mean any service or facility provided by public agency and public monopolies such as natural gas, sewage disposal, water delivery, solid waste disposal etc. 138. Vest shall mean the right to undertake and complete the development and use of a property under the terms and conditions of a site specific development/site plan. 139. Wall shall mean any structure or device required by this ordinance for screening purposes forming a physical barrier, which is so constructed that fifty percent (50) or more of the vertical surface is closed and prevents the passage of light, air, and vision thorough the surface in a horizontal plane. This shall include concrete, concrete block, wood, or other 06-2019 Update 54 Bisbee Zoning Code, 1998 materials that are solids and are so assembled as to form a screen. Where a solid wall is specified, one hundred percent (100) of the vertical surface shall be closed, except for approved gates or other access ways. Where a masonry wall is specified, the wall shall be concrete block, brick, stone, or other similar material and one hundred (100) of the vertical surface shall be closed, except for approved gates or other access ways. 140. Wall Sign shall mean a sign attached to, painted on, or erected against the wall of a building or structure with the exposed face of the sign on a plane parallel to the face of the wall. A wall sign shall not project from the wall in excess of twelve inches. 141. Warehouse shall mean a building primarily used for the storage of goods and materials. This shall also include terminal facilities for handling freight with or without maintenance facilities. 142. Window Sign shall mean: a. Permanent: any sign visible form the exterior of the building or structure which is painted, glued, or otherwise affixed to a window or depicted upon a paper or other material affixed to a window for the purpose of identifying the proprietor or name of the business to the passerby. b. Temporary: any sign visible from the exterior of the building or structure which is painted, glued, or otherwise affixed to a window or depicted upon a paper or other material affixed to a window for the purpose of attracting the attention of the passerby to a sale or promotional items or other products or services, other than the identity of the proprietor or name of the business. 143. Wireless Communication Facilities shall mean any facilities for the transmission and/or reception of Federal Communications Commission (FCC) licensed wireless communications services including, but not limited to, cellular, personal communications services (PCS), specialized mobile radio (SMR), enhanced specialized mobile radio (ESMR), paging, television and radio broadcasting usually consisting of an antenna array, connection cables, an equipment facility and a support structure (including monopole or lattice type towers) to achieve the necessary elevation. (O-00-20) 144. Yard shall mean an open space at the grade level between a building and the adjoining lot lines, unoccupied and unobstructed by any portion of a structure from the ground upward, except as otherwise provided herein. In measuring a yard, the depth of a front yard or depth of a rear yard, the minimum horizontal distance between the lot line and the main building shall be used. 145. Yard, Front shall mean an open unoccupied space on the same lot with a main building, extending the full width of the lot and situated between the street line and the front line of the building projected to the side line of the lot. The front yard of a corner lot is the yard adjacent to the shorter street frontage. 146. Yard, Rear shall mean an open space on the same lot with a main building between the rear line of the building and the rear line of the lot extending the full width of the lot. 147. Yard, Side shall mean an open unoccupied space on the same lot with a main building situated between the building and the side line of the lot and extending from the front yard to the rear yard. Any lot line not a rear line or a front shall be deemed a side adjacent to a common lot line. 148. Zone See “District” 06-2019 Update 55 Bisbee Zoning Code, 1998 ARTICLE 10 DEVELOPMENT STANDARDS FOR WIRELESS COMMUNICATIONS FACILITIES (Ordinance O-00-20) 10.1 Statement of Purpose The purpose of this section, which supersedes Article 6.1 of the Bisbee Zoning Ordinance, is to provide for reasonable regulation of personal wireless communication facilities. Advances in wireless technology and the rapidly growing public demand for wireless services have created a need for governmental regulation, with appropriate regard for the following considerations: A. The Federal Telecommunications Act of 1996 specifically provides that local authority may not prohibit the provision of wireless services, and has pre-empted the regulation of radio frequency emissions, but has otherwise preserved local zoning authority to reasonably regulate wireless communication facilities. B. Wireless communication facilities provide the general public with desired and useful portable communication convenience, business and emergency purposes and therefore promote the health, safety and welfare of the community which they serve. C. Although local authority cannot prohibit wireless communication facilities, nor regulate their environmental impact, the location and appearance of these facilities should be regulated in order to: 1. Protect residential areas and authorized land uses from potential adverse impact of towers and telecommunication facilities. 2. Preserve the aesthetic qualities of the community, and minimize the visual impact of towers and telecommunication facilities while providing the quality of communication services that the public want and need. 10.2 Review Process A. Towers – Special Use Permit is required for all towers. B. Antennas – Not allowed in residential zoning areas except by Special Use Permit on property with non-residential uses including churches, schools and government buildings. No Special Use Permit required for antennas attached to existing structures in commercial or manufacturing zoning districts. 10.3 Co-Location New tower(s) will not be permitted as a Special Use unless the applicant demonstrates to the satisfaction of the Planning and Zoning Commission and City Council that an existing tower or alternative tower structure is not capable of accommodating the applicant’s proposed antenna. A list and analysis of alternative existing sites inventoried must be submitted. The need for an additional tower may be demonstrated by the applicant if no existing towers or suitable alternative tower structures are located within the geographic antenna placement area required to meet the applicant’s engineering requirements including height, structural strength and interference with other antennas. The applicant must demonstrate any limiting factors that render the existing towers and structures unsuitable. 10.4 Design A. All tower applicants must submit a design showing the visual impact of the maximum number of carriers proposed for the tower. Any additional carriers not approved in the original Special Use Permit will require a separate Special Use Permit. A list of specific carriers is not required. B. Lattice type towers are discouraged and monopole towers are encouraged. Lattice type towers may be approved if the applicant can demonstrate that a monopole will not fill the applicant’s engineering requirements. C. All new wireless communication facilities will be designed and manufactured to meet the Electronic Industries Association engineering standards. D. For towers up to one hundred fifty feet (150) in height, the structure and fenced compound will be designed to accommodate at least two providers. E. For towers greater than one hundred fifty feet (150) in height, the structure and fenced compound will be designed to accommodate at least three (3) providers. F. Towers will not be lighted unless required by the FFA. 10.5 Certification Required for Building Permit Issuance 06-2019 Update 56 Bisbee Zoning Code, 1998 A. Affidavits will be provided to show conformance with all Federal Aviation Administration (FAA) requirements. B. Affidavits will be provided to show conformance with all FCC technical emissions standards and licensing requirements. C. Prior to permit issuance, an operational certificate prepared by a professional engineer will be provided by the applicant that indicates compliance with applicable building code requirements and EIA standards. 10.6 Setbacks Tower bases shall be located away from the property lines by a minimum of one foot (1) for each one foot (1) of tower height. 10.7 Minimum Site Area Requirements Wireless communication facilities are exempt from the zoning districts’ minimum site area requirements. Site area is determined by setback and parking requirements. 10.8 Fencing Requirements All facilities must be enclosed by appropriate fencing of chain link, wood or other approved alternative. Fencing may not exceed twelve feet (12) in height. 10.9 Parking Site must be able to accommodate off-street parking so as not to impede rights-of-way. 10.10 Noise or Vibration No noise, odor or vibration shall be emitted so that it exceeds the general level of noise, odor or vibration emitted by uses outside the site. Such a comparison shall be made at the boundary of the site. 10.11 Removal of Abandoned Wireless Communication Facilities Any facility that is not operated for a continuous period exceeding twelve months will be considered abandoned and the owner of such facility will remove the structure(s) within 90 days of receipt of notice from the Code Enforcement Officer. At the time of application for a building permit a bond must be posted by the applicant to cover removal costs of the tower and facility, should the applicant fail to remove the tower within the 90 day notice of abandonment. The cash or surety bond will be released upon removal of the facility by the owner. A surety bond will be limited to 5 years, at which time the City may require renewal for another 5 year period. 10.12 Historic Districts Prior to the Special Use Permit process all facilities constructed within the Historic Districts shall be reviewed by the Design Review Board for aesthetic blending. The recommendation of the Design Review Board shall accompany the recommendation of the Planning and Zoning Commission to the Public Hearing before Council. (O-00-20) 06-2019 Update 57 Bisbee Zoning Code, 1998 ARTICLE 10A REGISTERED NONPROFIT MEDICAL MARIJUANA DISPENSARIES (Ordinance O-11-04, APRIL 2011) 10A.1 Statement of Purpose The City of Bisbee hereby exercises its authority, pursuant to A.R.S. 36-2806.01, to enact reasonable zoning regulations that specifically limit the use of land within this jurisdiction to specific areas for the establishment and operation of medical marijuana dispensaries. The existence of these land use regulations does not alter or amend the applicable state and federal laws which govern the use of marijuana in this state. All of the terms used in these regulations shall have the same meanings as these same terms have in the applicable laws and regulations of the State of Arizona governing the use of medical marijuana in this State. 10A.2 Location of Medical Marijuana Dispensaries A. Medical marijuana dispensaries may only be located within C1, C2, C3, C4 and M1 zoning districts within this City and are subject to the Special Use Permit process as established in this Zoning Code. Any such medical marijuana dispensary, or any component of such dispensary, may only be authorized upon the approval of a Special Use Permit for such use, within one of the designated districts, subject to such terms and conditions as the Mayor and Council may impose upon such use. B. In the event that transactions and operations authorized by the State of Arizona for a medical marijuana dispensary are to be conducted at more than one contiguous location, the applicant shall obtain separate Special Use Permits for each such location. 10A.3 Application for and Approval of the Special Use Permit A. In addition to the information typically provided for a Special Use Permit application, the applicant for a medical marijuana dispensary Special Use Permit shall provide the City with a copy of the same detailed information that has been or will be provided to the State of Arizona describing the facility that is proposed and the manner in which the requirements of the applicable the laws and regulations of the State of Arizona will be met. This application shall include a detailed site plan, complete explanation of all of the functions that are proposed for this location, description of anticipated off-site impacts, and proposals for how each of these impacts will be mitigated. B. The City may grant a Special Use Permit prior to the final issuance of the certificate and registration of this dispensary by the State of Arizona. In any such case, a Special Use Permit issued prior to final State approval shall not constitute any right to operate or to conduct the business of a dispensary at any such facility prior to the time that the applicant delivers to the City a copy of all necessary approval and certification documents for this facility, as issued by the State of Arizona, and has obtained written confirmation from the Planning Director that all of the Special Use Permit conditions have been met. C. In the event that the State of Arizona requires any substantial amendment to the construction, lay out or physical dimensions of the dispensary, or adds any types of operations not previously approved for this site by the City, as a condition for its approval, the applicant will be required to obtain an amended Special Use Permit that includes any such changes prior to beginning its operations. D. A Special Use Permit for a medical marijuana dispensary shall terminate upon the revocation or termination of the certification from the State of Arizona which authorizes the operation of any such facility at that site. A new Special Use Permit will not be required in the event that ownership of the facility is transferred from one owner to another without any substantial break in service, provided that the dispensary will continue to be operated in the same manner and under the same terms and conditions. 10A.4 Standard Conditions for Medical Marijuana Dispensaries A. Unless expressly modified in this Article or by applicable State law or regulations, all of the general provisions of the City of Bisbee Zoning Code and each of its building, construction and safety codes shall be applicable to these uses. B. For any medical marijuana dispensary that will provide any services directly to the public, there must be provided on the site, or immediately adjacent to the public entrance way if the parking lot is located on a 06-2019 Update 58 Bisbee Zoning Code, 1998 separate parcel or pad, not less than four (4) paved, public and free parking spaces, at least two (2) of which must be fully compliant with all applicable requirements for full disability access. In addition, the dispensary must have one (1) additional such parking space for each two (2) employees working at that location at the same time, in excess of the first two such employees; one (1) additional such parking space for every two hundred (200) square feet of retail floor space in excess of the first two hundred (200) square feet; and one (1) additional such parking space for each five hundred (500) square feet of manufacturing or production floor space. For every ten (10) parking spaces provided, not less than two (2) shall meet all disability access requirements. C. For the portions of each existing dispensary structure that will be accessible to the public, the applicant will be required to comply with all regulations and standards for disability access in the same manner as would be applicable to the construction of a new building for this purpose. 10A.5 Operations of a Registered Caregiver A. The operations of a duly registered and designated caregiver may be conducted as a home occupation provided that any such caregiver meets all of the conditions of this Zoning Code for a lawful home occupation. Any registered caregiver who cannot meet these standards will be required to obtain a Special Use Permit at an appropriate location, within one of the zoning districts that are available for medical marijuana dispensaries. B. A caregiver may be subject to criminal prosecution for any marijuana related actions that are not in strict compliance with the terms and conditions of his or her registration as a caregiver or that are not in conformance with all applicable criminal laws. 06-2019 Update 59 Bisbee Zoning Code, 1998 ARTICLE 11 MASTER DEVELOPMENT PLANS (O-06-25) 11.1 Purpose of Master Development Plans A master development plan is a duly adopted component of the City of Bisbee land use planning process. It is intended to provide a detailed framework for the coordinated development of a specific area. A properly developed master development plan is intended to provide a means for addressing what may be required for the orderly development of a particular area and what may be required for the integration of this area into the larger community, without placing undue burdens upon the existing community. A master development plan will include, but is not limited to, the determination of basic land use densities; the identification of specific future land uses and the boundaries of such uses; the description of the general character, extent, and location of major thoroughfares, collector streets, major drainage ways, and the overall plan for the transportation network; and the specification of the requirements for open space, schools, parks, and community and local area recreation facilities within the plan area. 11.2 Requirement for a Master Development Plan A master development plan shall be required if one or more of the following are proposed: A. A proposed zoning amendment, or initial City zoning in the case of an annexed area, for any area that is proposed to be developed with one hundred (100) or more residential units or that includes twenty-five (25) acres or more that will be subject to future development. B. A proposed zoning amendment, or initial City zoning in the case of an annexed area, for any area proposed to include multiple zoning districts and a mixture of residential and non-residential zoning districts or to include a Planned Area Development (PAD) zone. A Master Development Plan may be submitted by any property owner who is proposing a phased development for which integrated planning would be appropriate. 11.3 Status of Master Development Plans A. Master development plans constitute official guides for the Planning and Zoning Commission, the Mayor and Council, and all City officials for accomplishing a coordinated, orderly and well-planned development of specific areas through zoning regulations, subdivision design regulations, establishment of setback lines, road alignments, land use locations, and other methods provided by law. Master development plans shall be consistent with the City’s General Plan. B. Master development plans constitute official notice to all agencies and to the general public of the general nature of the proposed development for the designated areas. C. All development within an approved master development plan area shall be substantially in conformance with the provisions of that plan. D. All development within an approved master development plan area shall conform to all site development standards, and the City of Bisbee subdivision regulations, as applicable, unless specifically waived or modified by the Mayor and Council in the approval of the master development plan. 11.4 Effect of Master Development Plans upon Zoning Changes and Subdivision Plat Approvals In amending zoning classifications, changing zoning district boundaries, or approving subdivision plats for properties included within an adopted master development plan, the Planning and Zoning Commission and the Mayor and Council shall be guided by any applicable plan, but may allow minor variations from the adopted plan for zoning district boundaries, exact land use classification, or the exact character, extent and location of major thoroughfares, collector streets, drainage ways, structures, open space, schools, parks and other community facilities. However, in allowing these minor variations, the Planning and Zoning Commission and Mayor and Council shall not alter the policies set by the master development plan with regard to basic densities, general boundaries of the various land use districts, and the general character, extent and location of the major thoroughfares, collector streets, drainage ways, structures, open space, schools, parks and other community 06-2019 Update 60 Bisbee Zoning Code, 1998 facilities. In the event that the Planning and Zoning Commission and Mayor and Council desire to alter any policy established by a master development plan, they may amend the plan by following the procedures set forth herein. Zoning amendments which conform to adopted master development plans shall not be considered to be "spot" zoning. 11. 5 Submittal Requirements for Master Development Plans A. The applicant shall submit a master development plan map or maps, drawn at a scale of either fifty (50), one hundred (100), or two hundred (200) feet to one inch, or at a scale approved by the Zoning Administrator, and including the following information: 1. Title of the development, a legal description of the property, parcel number(s), name of the developer and registered land surveyor or engineer, date of the plan, a north arrow and scale. 2. A vicinity map showing the general location of the property and development. 3. Boundary lines and ties to at least two section corners or quarter corners, and dimensions of plan area boundaries, by bearing and distance. Section lines and mid-section lines shall be clearly designated. 4. Existing land uses, zoning status, roads and wash corridors within the designated area and within one quarter (¼) mile of the proposed plan area. 5. Proposed sizes and uses of the various types of lots or parcels to be developed, including acreage or square footage. 6. General topography of all drainage ways or watercourses within the plan area and all flood hazard zones; at contours approved by the Zoning Administrator, and preliminary plans for addressing off-site and on-site run-off. 7. Major street layout, including existing major thoroughfares serving, abutting, or located within one quarter mile of the proposed plan area; proposed collector and arterial streets, with proposed right-of-way widths; existing easements and rights-of-way within the plan area; and all existing and proposed points of ingress and egress. 8. If more than one zoning district is proposed, boundaries of the different zoning districts. 9. The general location of proposed residential areas, including the housing types proposed for each area; the types of proposed building construction, per the Building Code; the location of local and general commercial and industrial areas, if any; the location and approximate sizes of open space areas, major off- street parking and loading areas, and pedestrian and equestrian circulation systems, if any; and the proposed locations of public facilities such as schools, parks and recreation facilities, if any. 10. The general location of existing and proposed utilities, treatment plants, access easements and other utility service facilities. 11. The intended phasing of the development, if applicable. B. The Master Development Plan Map shall be accompanied by a written report, to be adopted as a part of the master development plan, that includes the following information: 1. Methods of screening and buffering, where incompatible land use configurations necessitate protection for the proposed development or surrounding development. 2. Provisions for creation, use and maintenance of open space, recreation areas and preservation of scenic features of the land. 3. General provisions for pedestrian, bicycle and equestrian circulation throughout the development, if applicable. 06-2019 Update 61 Bisbee Zoning Code, 1998 4. Statement specifying how roads, State-approved waste disposal, water supply, fire protection, and utilities will be provided, with approximate timing and location, including closest sewer and community waterlines and capacity to serve this development. 5. Statement specifying how amenities are to be provided (sidewalks, open space, parks, recreational facilities, streetlights, curb and gutter, landscaping) including approximate timing and locations. 6. Statement of general kinds of development standards intended to be controlled through deed restrictions (i.e., architectural design, building height, construction materials, common area development and maintenance, landscaping, screening and buffering of individual sites). 7. Statement of the projected population and anticipated impact of the development upon existing regional utilities and community facilities and services including, but not limited to water, electricity, sewer and solid waste disposal, schools and parks, police and fire protection. 8. Report or narrative assessing adequacy of the water supply to serve the proposed development and the anticipated impacts upon other existing users of this same water source. 9. Projected trip generation for the entire project at completion. If projected trip generation is of sufficient magnitude to significantly increase traffic in the area, thereby reducing the level of service on one or more abutting or surrounding streets; or where existing demonstrable traffic problems have already been identified such as a high number of accidents, substandard road design or road surface; or where existing roads in the area are near, at, or over capacity, a traffic impact study including the following additional information is necessary: a. Survey of thoroughfares, collectors and arterial streets, existing and planned, within at least one half (½) mile of the proposed plan area. b. Consolidation of existing traffic data; estimates of future traffic. c. Trip assignments and their effect on traffic flow along streets serving the site. d. Proposed thoroughfare alignments, capacities, signalization requirements, lanes and intersection configurations. e. Timing and methods of right-of-way improvements as necessary to serve projected traffic loads. f. Current level of improvement of major routes serving the site. g. An inventory and analysis of off-site improvements to be made, with approximate timing for each phasing. h. Provisions for controlling access to major streets. 10. Provisions for water conservation measures, including but not limited to effluent re-use, recharge facilities, low-flow appliances, and deed restrictions governing water use, drought-tolerant landscaping or limitations on irrigation. 11. Soils analyses for any proposed plan area shown on the most recent soil survey (USDA, Natural Resources Conservation Service) as containing soils having moderate to severe erosion hazard or corrosivity. 12. Statement of development time period, not to exceed five (5) years from approval unless otherwise approved by the Mayor and Council. C. For proposed developments within the San Jose planning and growth areas, including all areas south of the Old Bisbee planning area and west of the Tintown neighborhood, the applicant shall submit a written report that analyzes how the “Guiding Principles and Best Practices for the San Jose District,” included in Volume II, Appendix D of the 06-2019 Update 62 Bisbee Zoning Code, 1998 City of Bisbee General Plan, have been applied in this proposed master plan. This report shall address how the designated principles will be addressed and which of the best practices will be employed in any implementation of the proposed plan. D. The applicant shall also submit a written report describing the pre-application citizen review process. This report shall include a copy of the notice sent to neighboring property owners, copies of the information provided to the public, the sign up sheet for the public meeting, copies of any written responses received, a summary of the comments received at the public meeting and a description of how the applicant has responded or intends to respond to the comments that have been received. E. Certain submittal requirements in Sections A and B, but not C and D, may be waived upon a determination by the Zoning Administrator that they are not applicable or necessary to the proposed application. 11.6 Schedule of Development The Mayor and Council may approve a master development plan conditioned upon a schedule for the development of the specific use or uses, and associated improvements designated in the plan. This schedule shall not exceed five (5) years unless a longer period is specifically authorized by the Mayor and Council. If, at the expiration of any designated term, the developer has failed to comply with the applicable conditions, the Mayor and Council shall schedule a public hearing to consider granting an extension, establishing an amended compliance schedule for development, or revoking approval of the master development plan. The owner and the applicant who requested plan approval, or any successor in interest, shall be notified of the hearing by certified mail. 11.7 Revocation of a Master Development Plan If the Mayor and Council revokes its approval of a master development plan, the plan shall no longer provide a basis for any future development. If the developer has completed certain phases of the project as required by the approved plan, any such specific areas shall continue to be subject to the applicable, approved uses, densities, site development standards and conditions of the master development plan. All uncompleted phases will be subject to the plan area, category, site development standards and densities of the original zoning district, as if the master development plan had never been implemented, until such time that a new master development plan is adopted or a new zoning district is approved. 11.8 Procedure and Standards for Adopting and Amending Master Development Plans The Mayor and Council may approve a plan as submitted, adjust or amend it as may be appropriate, or disapprove a proposed plan. A master development plan shall be adopted and amended by ordinance, in the same manner as amendments to the Zoning Ordinance. See Article 3. A master development plan, or any amendment thereof, may be approved provided that the Mayor and Council determine that it would be in the public interest to do so and the plan, or amendment, is found to be consistent with the following criteria: A. That the location, design and size of the development can be integrated with the surroundings and it will harmonize with any existing development on adjacent properties, or in the case of a departure of character from surrounding uses, that the location and design will adequately reduce potential impacts of the development so that the project will not be detrimental to the neighboring properties or uses within the City. B. That the streets and roads proposed for the development, both within and without the plan area, are suitable and adequate to serve the proposed uses and the anticipated traffic which will be generated thereby and that proper provisions for the maintenance of such streets has been addressed in a manner that will not impose an undue burden upon the City. C. The use and value of adjacent properties will not be adversely impacted to a significant extent by the proposed project as a result of appropriate physical barriers, buffer zones, or the design of the proposed development for the perimeter of the plan area. D. That suitable retention, detention and drainage areas have been provided for the development, as necessary to protect the property and the neighboring properties from any hazards resulting from water falling on or flowing across the site and that proper provisions for the maintenance of any retention, detention or water storage areas has been provided. 06-2019 Update 63 Bisbee Zoning Code, 1998 E. That the location, design, size and types of the proposed uses are such that the residents or establishments to be located on the site will be adequately served by the existing or planned public facilities and utility services and that the continuing availability of water resources to the existing community will not be adversely impacted. F. That the parks, open space and recreational facilities of the plan area are adequate for the uses and needs of the occupants of the plan area. G. That the development of the plan area will not adversely impact the City’s pre-existing interests in protecting the health, safety and welfare of its residents. H. That the proposed master development plan or amendment is consistent with the policies established in the City’s General Plan. For proposed developments within the San Jose planning and growth areas, including all areas south of the Old Bisbee planning area and west of the Tintown neighborhood, this shall include a determination that the approval of the proposed development plan will be consistent with the policies of the “Guiding Principles and Best Practices for the San Jose District,” as included in Volume II, Appendix D of the City of Bisbee General Plan. 11.9 Pre-application Citizen Review Process A. The purpose of this pre-application citizen review process is to achieve the following: 1. To require applicants to seek early and informed citizen input on their applications, giving the applicant an opportunity to learn of any objections and to mitigate any real or perceived impacts that their applications may have on the neighborhood or community, prior to expending significant funds on this process; 2. To allow the citizens and property owners to have an adequate opportunity to learn about applications that may affect them and applicants to address concerns at an early stage of the process; and 3. To facilitate ongoing communication between the applicant, interested citizens, property owners and City staff throughout the application review process. B. The citizen review process is not intended to produce consensus on all applications. It is intended to provide applicants with the information necessary to be good neighbors and to allow for informed decision- making. This procedure is not a substitute for the other public hearings that are required by Arizona law and City Code. C. Prior to submitting a formal application, an applicant shall meet with the planning staff for the following purposes: 1. To familiarize staff with the project and to identify and discuss any issues related to the application. 2. To go over the application requirements, including the pre-application citizen review report. Staff will make arrangements with the applicant at this time for identifying the property owners that will need to be notified. D. The applicant shall provide a summary of the proposed plan, including the nature of the property uses that are proposed, the number of occupants and business that are anticipated, the improvements to be constructed by the developers and the specific location of the property, including a map. This summary shall also include the date, time and location of a public meeting scheduled for the explanation and discussion of this proposal. This notice shall be sent to the following, not less than 15 days prior to the public meeting: 06-2019 Update 64 Bisbee Zoning Code, 1998 1. All of the property owners who own property that is located within the area subject to the application. 2. All of those property owners who own property that is located, in whole or in part, within 500 feet from the boundaries of the subject property, including those within and without the corporate limits of the City. 3. The Mayor and Council of the City of Bisbee. 4. The notice of the public meeting shall also be posted on the subject property, on at least two locations that will be visible to the public, and shall be published as a display ad in the City’s newspaper of record not less than ten days prior to the hearing. For purposes of this section and all other provisions requiring notice to property owners, “property owners” shall be deemed to be those owners designated in the available records of the most recent assessment of the property for property tax purposes. E. Prior to submitting an application, the applicant shall hold at least one public meeting to explain the proposal, to receive public comments and to discuss the impacts on the community and possible ways alleviate these. 06-2019 Update 65 Bisbee Zoning Code, 1998 ARTICLE 12 WATER CONSERVATION PROGRAM (O-08-01) 12.1 Purpose and Intent. The City of Bisbee is located in a semi-arid region, near the boundaries of the Chihuahua and Sonora Deserts. This is an area of limited available water resources which periodically experiences long-term droughts. Significant portions of the City of Bisbee are within the Upper San Pedro Watershed and the City derives its domestic water from this area. The City of Bisbee recognizes that the continuing use of the limited water resources within this area will have an impact upon the both the groundwater and surface water resources of this area, and in particular upon the viability of the San Pedro River. The City and its citizens further recognize that they have an obligation to use and to manage these water resources wisely and in a manner that will sustain these resources for future generations. Prudent use of the available water resources is necessary to protect the health, safety and well-being of this community and to avoid potential conflicts with applicable federal law. The City of Bisbee’s Water Conservation Program is intended to apply on a multi-faceted basis to fulfill these purposes. It includes elements that are intended to limit the impacts of new and additional water uses in this area in a reasonable manner, to apply appropriate regulations that will improve the efficiency of new and remodeled facilities and to encourage the citizens of Bisbee to engage in conservation practices, based upon an educational program. 12.2 Outdoor Water Conservation Requirements. 12.2.1 Site plans, as required for a commercial or multi-family project, subdivision improvement plans and master development plans, shall include a specific description of the landscaping plan with the locations of the species to be planted, the irrigation plan and an estimate of the proposed water usage for all proposed areas of turf and other irrigated vegetation. For subdivisions and multifamily projects, this analysis shall also include the estimated areas for all common and park space and for all residential yards that are not restricted to low water use vegetation. The developer shall demonstrate how any such proposed irrigation usage will be consistent with the purpose and intent of this conservation program. Irrigated turf shall not be allowed in new commercial development. 12.2.2 Site plans, as required for a commercial or multi-family project, subdivision improvement plans and master development plans, shall include a specific description of the landscaping plan with the locations of the species to be planted, the irrigation plan and an estimation of the proposed water usage for all proposed areas of turf and other irrigated vegetation. For subdivisions and multifamily projects, this analysis shall also include the estimated areas for all common and park space and for all residential yards that are not restricted to low water use vegetation. The developer shall demonstrate how any such proposed irrigation usage will be consistent with the purpose and intent of this conservation program. 12.2.3 If a subdivision developer provides one or more model homes with any landscaping or yard improvements, at least one of any such model units shall include low water use, xeriscape-type landscaping as an option. If developer or builder- provided landscaping is offered to the buyer of a new home, low water use, xeriscape-type landscaping shall be included as one of the available options. 12.2.4 All new outdoor swimming pools and spas shall be equipped with a cover which shall be used when the pool or spa is not occupied to limit water loss due to evaporation. 12.2.5 New golf courses shall only be permitted upon a demonstration by the developer that the proposed course has been designed and will be maintained in a manner that is consistent with the best available low water use designs and practices; that treated effluent will be used to the fullest extent that it is available; that any ponds, lakes and artificial water features will only be used as a necessary component for water reclamation or re-use, recharge or storm water control; that the course design will result in as little impact upon the natural topography and native vegetation as may be reasonably possible; and that the proposed course would be beneficial to the community and consistent with the purpose and intent of this water conservation policy. Irrigated turf areas for golf courses shall not exceed an average of five (5) acres per hole. 12.2.6 Water-impermeable ground covers or barriers, such as plastic, shall not be used on or under landscaping, mulch, or rock, unless the barrier is included as a component of an approved water collection or storm-water management plan. Permeable weed barriers are acceptable. 12.2.7 Landscaping and irrigated vegetation shall be installed and maintained in a manner that is consistent with the approved site plans for the project. All exposed soil shall be covered with not less than 2 inches of mulch material. Irrigation systems 06-2019 Update 66 Bisbee Zoning Code, 1998 shall be installed with 30-day scheduling capacity and with rainfall shutoff devices which interrupt the delivery of irrigation water when effective rainfall is present. Irrigation systems shall be designed and installed to avoid runoff and overspray during operation. 12.2.8 Vegetation and landscaping within street medians, parking areas, common areas, conservation areas and open space areas shall meet the following requirements: a. Irrigated turf shall only be allowed in common areas that are available for public use. b. Irrigated turf shall not be allowed in areas that are eight (8) feet wide or less. c. Irrigated turf and high-water use plants shall not be allowed on slopes that exceed twenty-five percent. d. Irrigation systems on commercial property or commercially managed multi-family residential property shall include timers and rain sensors and shall be designed and managed to limit unnecessary run-off. 12.4 Educational Programs and Demonstration Projects The City shall support and implement, subject to the availability of funds, educational and demonstration programs to assist the citizens of this community in reducing their usage of water. This may include, but shall not be limited to, programs to encourage the members of the public to avoid wasting water resources through such activities as the following: Using alternative means, other than water, to clear off parking lots, driveways, sidewalks or other public spaces, except as may be necessary to alleviate an immediate health or safety concern; Conducting outdoor irrigation in a manner and at a time that increases efficiency and limits the use of water; Developing recommended lists and educational information on low water use trees and other plants that are well adapted to this area and discouraging the use of plants that have high water demands; Limiting the use of excessive or unnecessary amounts of water for consumption at public or private eating establishments; or Otherwise using water resources in a more efficient manner. The City will investigate and encourage various means of implementing successful water harvesting and conservation programs from other jurisdictions, including the University of Arizona Cooperative Extension Water Wise program. The City will also investigate and implement, subject to the availability of any necessary funds, the means to provide water conservation and wise water use practices on the City’s public property, such as water harvesting and the more effective use of storm water runoff. Homeowner and Building Management Education. The builder or developer of a new residential project shall provide the first owner/occupant with an Operating Manual that includes specific instruction for the efficient use, operation, and maintenance of all water consumptive appliances, irrigation and water delivery systems, pools and spas, as applicable. If an irrigation system is installed, the builder shall provide the single –family homeowner and/or commercial site owners with an “as-built” drawing (e.g. schematic) of the system, an itemized list of irrigation components, copies of the irrigation schedules, and instructions on the how to reprogram the schedule after the landscaping is established. 06-2019 Update 67 Bisbee Zoning Code, 1998 APPENDIX APPENDIX TO THE ZONING CODE Bisbee Zoning Code – APPENDIX UAPPENDIX UFigure One (1) City of Bisbee: Uses and Zone Matrix LEGEND R = Residential Zone RM = Manufactured Home Zone C = Commercial Zone CM = Commercial Mixed Zone M = Manufactured Zone Blank Spaces = Uses Require Special Use Permit X = Permitted Use *Those uses that have been specifically precluded within this Code cannot be authorized by the Special Use process. RETAIL USE R1 R2 R3 RM C1 C2 C3 C4 CM 1 CM2 M1 M2 M3 Adult Bookstore / Entertainment Automobile Supply x x x x x x Automobile Rental x x x x x Automobile Sales New/Used x x Bakery x x x x x x Department Store x x Drug Store x x x x x x Electronics Store x x x x x x Farmers Market x x x x x x Feed & Seed Store x x x x x x Furniture Store x x x x Garden & Nursery x x x Hardware Store x x x x x x Home Supply / Lumber Yard x x Indoor Swap meet x Liquor/Wine Store – Package x x x x x x Publishing, Printing x x Shopping Center, Plaza, Malls x Specialty Retail Store x x x x x x Supermarket x x Thrift Store x x x x x x Video Store x x x x x x Bisbee Zoning Code – APPENDIX SERVICE USES R1 R2 R3 RM C1 C2 C3 C4 CM1 CM2 M1 M2 M3 Alcoholic Bev. Estab (Off premise consumption) x x Auction House/ Yard x Auto Cleaning/ Detailing x x x x x x Automotive Gas Station/ Convenience Store x x x x x x Automotive Full Service x x x x x x Auto Repair Garage/ Auto Body x x x x x x Bed & Breakfast x x x x x x Commercial/Industrial Rentals Equipment Rental/ Leasing x x x x Funeral Home / Mortuary x x Hotel/ Convention Center X x Motel x x Radio / TV Broadcasting x x PERSONAL PROFESSIONAL SERVICES R1 R2 R3 RM C1 x C2 x C3 x C4 x CM 1 x CM2 x M1 M2 M3 Including, but not limited to: Commercial Photography, Computer Maintenance, Hairstyling Shop, Kennels, Sewing-alteration, Tattoo Parlor, Dog Grooming, Gunsmith, Pest Control Services, Print Shop, Professional/Business Office, Repair Large Appliance, Security System Service, Coin Op Laundry, Financial Institution, Massage Therapist. EDUCATIONAL RECREATIONAL/SOCIAL R1 R2 R3 RM C1 C2 C3 C4 CM 1 CM2 M1 M2 M3 Antique Gallery/ Museum Art Gallery x x x x x x Auditorium x x Boarding School x x x x x x Bowling Ctr/ Skating Rink x x Cemetery x x x x x x x x x x Church/ Place of Worship x x x x x x x x x x College/ University x x x x x x x x x x Bisbee Zoning Code – APPENDIX EDUCATIONAL RECREATIONAL/SOCIAL (cont’d) R1 R2 R3 RM C1 C2 C3 C4 CM 1 CM2 M1 M2 M3 Community Educ. Center x x x x x x x x x x Dance. Art, Music Studio x x x x x x Golf Course, Driving Range x x Motion Picture Theatre x x Parking Garage/Lot Commercial x x x x x x Physical Fitness Center x x x x Pool Hall/Arcades x x x x x x Private Clubs x x x x Recreational Fac.-Indoor x x x x x x x x Schools-Pre school-12 x x x x x x x x Swimming Pool- Public x x x x x x x x Vocational/ Professional School x x x x x x x x Off Track Betting x x x x Gaming Center x x x x x x STORAGE USES R1 R2 R3 RM C1 C2 C3 C4 CM 1 CM2 M1 M2 M3 Self-storage – individual units for rent x x x x x Self-storage (auto, RV, trailer, boat) x x x x Towing Yard/Impound Lot (towed vehicles only) x x x x x x x Warehousing, retail/wholesale goods, non-flammable, non- hazardous x x x x x x x x x Warehousing, flammable, hazardous material storage x x x Vehicle salvage, recycling, junk yard, dismantling &/or scrapping (includes long term storage of junked vehicles for parts, sales x Bisbee Zoning Code – APPENDIX PUBLIC USES R1 R2 R3 RM C1 C2 C3 C4 CM 1 CM2 M1 M2 M3 Library / Museum x x x x x x x x x x Government Offices x x x x x Park / Open Space Area x x x x x x x x x x x x x Post Office x x x x x x x x x x x x x Public Transportation Terminal / Taxi x x x x x x x x x x x x x Fire/ Police/ Rescue Stations x x x x x x x x x x x x x * See Section 5.2.3 • R3 Density to be determined by Site Plan Committee HEALTH CARE USES R1 R2 R3 RM C1 C2 C3 C4 CM 1 CM2 M1 M2 M3 Day Care Center x x x x x x x x x x Family Foster Home x x x x Group Care Home x x x x Half way House x x x x x x x x x x Homeless / Rehab Center x x x x x x Hospital x x Medical & Dental Lab Office x x x x x x Scientific research Lab x x x Veterinarian Office x x x x x x Residential Care Establishment (Over Ten) x x x x x x Residential Care Facility (Under Ten) x x x x x x x x MANUFACTURING USES R1 R2 R3 RM C1 C2 C3 C4 CM 1 CM2 M1 M2 M3 Cabinet Repair / Woodworking x x x x Comm Meat Processing x Dry Cleaning Plant x x x Fabrication & Assembly x x x L.P. Gas & Equipment x x Manuf-Mod. Homes/ RV x Medical Waste Facility x Product Distrib. Center x x x Receive Only earth Station x x Retail w/Assembly or Light Manufacturing x x x Solid Waste Landfill Solid Waste Landfill x RESIDENTIAL USE R1 R2 R3 RM C1 C2 C3 C4 CM1 CM2 M1 M2 M3 One Family Dwelling X X X X X X * * Two Family Dwelling X X X * * Multiple Dwellings X X * * Apartment Houses X X * * Condominiums X X * * Manufactured Home X Bisbee Zoning Code – APPENDIX Special Use Permit Required R1 R2 R3 RM C1 C2 C3 C4 CM 1 CM2 M1 M2 M3 Airport Extraction - Mining, Sand, Gravel, Oil, Gas Guest Ranches Lakes / Reservoirs (Man-made) Overnight Campgrounds Race Tracks Rodeo Arena/ Commercial Stables Shooting Ranges Temp. Sales Structure Heli Pad / Heli Port Signage – All Signage outside allowable Uses Communications facilities/ Antennas Alternative Lodging Parks Bisbee Zoning Code – APPENDIX ZONING ORDINANCE Article XII. PERSONAL WIRELESS SERVICE FACILITIES 437 455 511 564 Section 1201. Purpose A. The purpose of this ordinance is to establish appropriate locations, site development standards, and permit requirements to allow for personal wireless services to the residents of the Town, in a manner which will facilitate the location of various types of personal wireless service facilities in locations consistent with the residential character of the Town. The nature of residences, their scale (height and mass), their proximity to each other and the street, and the extensive natural, informal landscaping all contribute to this distinctive character. Precluding the adverse visual impact of these facilities within this virtually developed residential area is one of the primary objectives of this ordinance. Limitations on the height of antennas are intended to conform the antennas to the existing limitations of height of residential buildings. The ordinance is intended to allow personal wireless service facilities which are sufficient to provide adequate service to citizens, the traveling public and others within the Town and to accommodate the need for connection of such services to wireless facilities in adjacent and surrounding communities. B. It is also the intent that this ordinance and its purposes are implemented as allowed by applicable law, particularly in light of evolving federal and state regulations, laws and interpretations, evolving technology and land uses for personal wireless services. Section 1202. Definitions For the purpose of this Article, the following terms shall have the meanings prescribed herein unless the context clearly requires otherwise: 1 "Antenna" means the surface from which wireless radio signals are sent from and received by a personal wireless service facility; 2 "Applicant" means a person or other entity who submits an application with the Town for a special use permit or major amendment to a special use permit for a personal wireless service facility. A personal wireless service carrier and the owner of the subject property shall be an applicant(s) or co-applicant(s) on such application; 3 "Co-location" means the use of a single mount and/or site by more than one personal wireless service; 4 "Commercial mobile radio service" means any of several technologies using radio signals at various frequencies to send and receive voice, data or video to and from mobile transceivers; 5 "Design" means the appearance of a personal wireless service facility, including but not limited to its material, color or shape; 6 "Equipment cabinet" means an enclosed mobile home, shed or box at the base of or near a mount within which are housed, among other things, batteries and electrical equipment (hereinafter referred to as "equipment"). This equipment is connected to the antenna by cable. Equipment cabinets are also called "base transceiver stations"; 7 "Licensed carrier" means a company authorized by the FCC to build and operate a commercial mobile radio services system; ZO-XII -1 ZONING ORDINANCE 8 "Location" means property(ies) or site(s) where personal wireless service facilities are located or could be located; 9 "Modification" means any physical or operational change, alteration, or other modification of any of the following as they relate to a personal wireless service facility or the subject property upon which it is located, including but not limited to: a. The site plan; b. The sight line representation; c. The design submittal as required in this Article; The conversion of a single-use personal wireless service facility to a co-location is also considered a modification; 10 "Monopole" means a type of mount that is self-supporting with a single shaft of steel or concrete or other acceptable material; 11 "Permittee" means the owner of a subject property and a personal wireless service carrier; 12 "Personal wireless service facility" or "PWSF" means a facility for the provision of personal wireless services as defined by the Telecommunications Act 1996, and any amendments thereto. PWSFs are composed of two (2) or more of the following components: a. Antenna b. Mount c. Equipment Cabinet d. Security Barrier; 13 "Personal wireless services" means commercial mobile radio services, unlicensed wireless services and common carrier wireless exchange access services as defined in the Telecommunications Act of 1996, and any amendments thereto; 14 "Security barrier" means a locked, impenetrable wall or fence that completely seals an area from unauthorized entry or trespass; 15 "Sight line representation" means a drawing in which a sight line is drawn from the closest facade of each building, private road or right of way (viewpoint) within five hundred (500) feet of the PWSF to the highest point (visible point) of the PWSF. Each sight line shall be depicted in profile, drawn at one inch equals forty (40) feet unless otherwise specified by the Town. The profiles shall show all intervening trees and structures; 16 "Site" means the subject property where a personal wireless service facility is located or proposed to be located and includes any contiguous property(ies) under the same ownership as the subject property; 17 "Siting" means the method and form of placement of a personal wireless service facility on a specific area of a subject property; 18 "Subject property" means all the area within a lot, lots, or tax parcel(s) under common ownership upon which a personal wireless service facility is either proposed to be, or already is, developed, located, constructed or operated; 19 "Unlicensed wireless service" means commercial mobile services that can operate on public domain frequencies and that therefore need no FCC license. ZO-XII -2 ZONING ORDINANCE Section 1203. General Requirements 564 A. The determination of where a PWSF shall be located is subject to the following. Certain locations have been identified by the Town as potential PWSF sites and are subject to all of the provisions of this Article and the Town Code. Said locations are set forth in Town of Paradise Valley Resolution No. 932 as it may be amended from time to time. Any subject property that meets the requirements of this Article may be eligible for consideration for a PWSF, or modification thereof, pursuant to a conditional use permit, in accordance with the standards in this article. B. A PWSF or modification thereof is permitted only with a conditional use permit, granted pursuant to Article 11, Sections 1103 et seq of the Zoning Ordinance and this Article. No PWSF may be developed, located, constructed or operated without a conditional use permit. A conditional use permit is required for any modification to a PWSF. C. A PWSF may be mounted on a structure which is not a dwelling unit on the side or roof in accordance with the requirements of this Article. A PWSF is prohibited on any dwelling unit or site containing dwelling unit (s) unless otherwise authorized pursuant to Subsection A of this section. Section 1204. Siting Standards 511 564 The following siting criteria apply to consideration of a conditional use permit for a PWSF: 1 A PWSF shall be: a. Completely screened from public view and rights of way by trees, mature vegetation, natural features or structures on the subject property, and b. Completely camouflaged in a manner that is architecturally compatible with the structure on which it is mounted and integrated as an integral architectural element of the structure; 2. The screening required in this section may exist on the subject property or be installed as part of the proposed PWSF or a combination of both; 3. A PWSF shall not be approved for a location on a site containing a dwelling unit, except where the dwelling unit is located on the site of an existing Special Use Permit granted by the Town for a resort or guest ranch. A PWSF shall not be initially approved for a location closer than two hundred (200) feet from a dwelling unit in existence at the time of the initial approval of the conditional use permit for such PWSF site. For a proposed PWSF site that is adjacent to residentially zoned lots or parcels that are vacant at the time of the initial approval of the proposed conditional use permit for a PWSF, the proposed PWSF site shall be located no closer that two hundred (200) feet from the lot line of such vacant parcel or lot, less the greater of any applicable setback from such lot line or any platted or recorded easement adjacent to such lot line on the vacant parcel or lot. Once initially approved, changes to the dwelling unit locations or any changes in the setbacks or platted or recorded easements on the lots or parcels adjacent to the PWSF site shall not compel the removal or relocation of the PWSF that was initially approved for a conditional use permit in compliance with this section, nor shall the renewal of the conditional use permit for such a PWSF be withheld due to such changes in the adjacent lots or parcels. ZO-XII -3 ZONING ORDINANCE 4. A PWSF shall be set back from all property lines a distance equal to the height of the mount or the antenna, whichever is higher, and comply with all zoning setback requirements; 5. The height of a PWSF shall be limited to a The maximum height applicable to a building on the subject property pursuant to the Town's Zoning Ordinance Table 1001-A1. A roof-mounted PWSF may project a maximum of four and one-half (4 1/2) feet above the highest point of the roof so long as it does not exceed the maximum height provided in Table 1001-A1, whichever is lower; or b If mounted to an existing structure on the subject property, the height of that structure. Any PWSF shall be screened and camouflaged as required herein. The height requirements of this Section supersede requirements specified for antenna in Section 1003 and Table 1003-1 of the Town's Zoning Ordinance as applied to a PWSF; 6. A side-mounted PWSF shall not project more than forty-two (42) inches from the side a nondwelling unit facade, shall not extend above the highest point of the roof of the structure and shall be screened and camouflaged as required herein. The PWSF shall not project into an easement, driveway or setback unless otherwise specified in the conditional use permit; 7. An equipment cabinet shall be located within or adjacent to the structure on which a PWSF is placed, or located below natural grade underground if site conditions permit and if technically feasible. An equipment cabinet shall be completely screened from view by compatible wall, fence or landscaping consistent with Town landscaping guidelines except that an equipment cabinet larger than one hundred forty-four (144) cubic feet may not be required to be totally screened from view if the Planning Commission finds, in its discretion, that the cabinet has been designed with a structure or facade, materials, colors or detailing that effect a structure which emulates the residential character of the area; 8. A security barrier shall be screened from view through the use of appropriate landscaping materials consistent with Town landscaping guidelines. Section 1205. Design Standards 564 The following design criteria apply to consideration of a conditional use permit for a PWSF, in addition to others which may be identified and utilized by the Planning Commission in its consideration of the conditional use permit: 1. Appearance. The degree to which the PWSF "blends with" or "disturbs" the setting, the subject property and its character and use, or neighboring properties and their character and use; 2. Form. The degree to which the shape of the PWSF and any equipment cabinet relates to its surroundings; 3. Color. A PWSF shall be in natural tones and a non-reflective color or color scheme appropriate to the background against which the PWSF would be viewed from a ZO-XII -4 ZONING ORDINANCE majority of points within its viewshed. "Natural" tones are those reflected in the natural features and structural background against which the PWSF is viewed from a majority of points within its viewshed. Final colors and color scheme must be approved by the Planning Commission; 4. Size. The silhouette of the PWSF shall be reduced to minimize visual impact. To the extent allowed by law, the Town shall consider the cumulative visual effects of PWSFs and any mount, specifically their appearance or domination of the skyline, natural and structural features or terrain, in determining whether to approve a conditional use permit. Section 1206. Radiofrequency (RF) Performance and Interference Standards and Monitoring 564 A. To the extent allowed by law, the following radiofrequency (RF) performance standards apply to consideration of a conditional use permit for a PWSF, in addition to monitoring requirements as required in this Article: 1. All equipment proposed for a PWSF shall meet the current FCC RF Guidelines and any amendments thereto (hereafter "FCC Guidelines"); 2. Any side-mounted or roof-mounted equipment shall meet FCC Guidelines, including but not limited to the following: a. At the roof-mount or at the side-mount, the equipment shall meet the FCC Guidelines for occupational/controlled conditions; b. At ground level at the point of the structure closest to the antenna, the equipment shall meet FCC Guidelines for general population/uncontrolled conditions. B. Within ninety (90) days after FCC issuance of an operational permit for the PWSF, and annually thereafter, the personal wireless service carrier shall submit a written report providing existing and maximum future projected measurements of RF radiation from the PWSF for: 1. Existing PWSF: Maximum RF radiation from the PWSF RF radiation environment. These measurements shall be for the measurement conditions specified in Subsection A of this Section; 2. Existing PWSF plus cumulative: Maximum estimate of RF radiation from the existing PWSF plus the maximum estimate of RF radiation from the total addition of co-located PWSFs. These measurements shall be for the measurement conditions in Subsection A of this Section; 3. Certification, signed by an RF engineer, stating that RF radiation measurements are accurate and meet FCC Guidelines as specified in Subsection A of this Section. If FCC Guidelines are changed during the period of any conditional use permit for a PWSF use, then the PWSF shall be brought into compliance with such revised guidelines within the time period provided by the FCC or if no time period is stated, then within sixty (60) days of the effective date of such guidelines. ZO-XII -5 ZONING ORDINANCE C. If at any time during the term of the permit the Town has reasonable evidence that the Permittee or personal wireless service carrier is not in compliance with FCC Guidelines, and the Town provides notice of such, the Permittee or personal wireless service carrier so notified shall provide to the Town, within thirty (30) days after such notice, an analysis and determination of its compliance with FCC guidelines showing the data collected and status pursuant to FCC Guidelines. If on review, the Town finds that the PWSF does not meet FCC Guidelines, the Permittee or personal wireless service carrier shall have sixty (60) days from the date of the Town's finding of noncompliance to bring the PWSF into compliance. If compliance is not achieved in the sixty-day period, the conditional use permit may be revoked or modified by the Town. D. The Permittee shall ensure that the PWSF does not cause localized interference with the reception of area television or radio broadcasts or to personal wireless services. If on review the Town finds that the PWSF interferes with such reception, and if such interference is not cured by the Permittee within sixty (60) days after notice from the Town, the Town may revoke or modify the conditional use permit. Section 1207. Noise and Environmental Standards 564 A. To the extent allowed by law, the following noise and environmental standards apply to consideration of a conditional use permit for a PWSF in addition to the monitoring requirements of this Article: 1 Roof-mounted or side-mounted equipment for a PWSF shall not generate noise in excess of fifty (50) decibels (dba) at ground level at the base of the facility closest to the antenna; 2 An environmental assessment is required by the National Environmental Policy Act (NEPA) for any PWSF prior to commencing operations where any of the following exist: a. Wilderness area; b. Wildlife preserve; c. Endangered species; d. Historical site; e. Indian religious site; f. Flood plain; g. High intensity white lights in residential neighborhoods; h. Excessive radiofrequency radiation exposure. 3 An environmental assessment which, at a minimum, conforms with FCC requirements shall be submitted to the Town for each PWSF where any of the above exists, and when the FCC requires such an environmental assessment to be submitted to the FCC. If the applicant has determined that an environmental assessment is not required pursuant to FCC rules, this Article and applicable state law and Town Code, a written certification to that effect must be submitted to the Town. If an applicant has not included an environmental assessment that the Town finds to be necessary under the National Environmental Policy Act, the Town may prepare, or cause to be prepared, such an environmental assessment at the applicant's expense. The environmental assessment shall be amended or revised by the applicant within thirty (30) days after notice to do so from ZO-XII -6 ZONING ORDINANCE the Town when modifications are made or occur on the PWSF. Failure to amend or revise shall constitute grounds for revocation of the conditional use permit. B. Within ninety (90) days after the approval of the conditional use permit and annually from the date of approval of the permit, the Permittee shall submit existing and maximum future projected measurements of noise from the PWSF for the following: 1. Existing PWSF: Maximum noise radiation from the PWSF. These measurements shall be for the type of mounts specified in Subsection A of this section; 2. Existing PWSF plus cumulative: Maximum estimate of noise from the existing PWSF plus the maximum estimate of noise from the total addition of co-located PWSFs. These measurements shall be for the type of mounts specified in Subsection A of this section; 3. Certification, signed by an acoustical engineer, stating that noise measurements are accurate and meet Subsection A of this section. Section 1208. Co-Location and Limitations 564 A. A Permittee shall cooperate with other personal wireless service carriers in co-locating antennas and mounts provided the proposed co-locators have received a conditional use permit for the use at such site from the Town. A Permittee shall exercise good faith in co- locating other personal wireless service carriers and sharing the permitted site, provided such shared use does not give rise to a substantial technical level impairment of the ability to provide the permitted use (i.e., a significant interference in broadcast or reception capabilities). Applicants shall demonstrate a good faith effort to co-locating with other personal wireless service carriers, including but not limited to: 1. Contact with all other personal wireless service carriers operating in the Town; 2. Sharing information necessary to determine if co-location is feasible under the design configuration most accommodating to co-location; In the event a dispute arises as to whether a Permittee has exercised good faith in accommodating other users, the Town may require a third party technical study at the expense of either or both the applicant and Permittee. B. All applicants shall demonstrate reasonable efforts in developing a co-location alternative for their proposal. C. Failure to comply with the co-location requirements of this Section may result in the denial of a permit request or revocation of an existing permit. Section 1209. Submittal Requirements 564 A. In addition to the information requested in the Town's conditional use permit application, the following items shall be required for a PWSF application: ZO-XII -7 ZONING ORDINANCE 1. A master site plan in accordance with Planning Commission rules and regulations showing the subject property and adjacent properties; all existing and proposed buildings on the subject property and their purpose; the specific placement of the PWSF antenna, mount and equipment cabinet; security barrier (if any), including type and extent and point of controlled entry on the site; fall zone; all proposed changes to the existing site, including grading, vegetation, roads, sidewalks and driveways; 2. A landscape plan showing specific placement of existing and proposed vegetation, trees, shrubs, identified by species and size of specimen at installation in accordance with Town landscape guidelines; 3. Photographs, diagrams, photosimulations and sight line representations as listed below: a. A diagram or map showing the viewshed of the proposed facility; b. Sight line representation; c. Existing (before condition) photographs illustrated by four (4) by six (6) inch color photograph(s) of what can currently be seen from any adjacent residential buildings or properties, private roads and rights of way adjacent to the site; d. Photosimulations of the proposed facility from each adjacent residential properties or buildings, private roads and public rights-of-way adjacent to the site (after condition photographs). Such photosimulations shall include, but not be limited to, each of the existing condition photographs with the proposed PWSF superimposed on it to show what will be seen from residential buildings, properties, private roads and rights of way adjacent to the site; e. Aerial photograph as required by the Planning Commission rules and regulations; 4. Siting elevations, or views at natural grade, from all directions (north, south, east, west) for a fifty-foot radius around the proposed PWSF plus from all existing rights of way and private roads that serve the subject property. Elevations shall be at one-quarter inch equals one foot scale and show the following: a. Antenna, mount, equipment cabinet; b. Security barrier. If the security barrier will block views of the PWSF, the barrier drawing shall be cut away to show the view behind the barrier; c. Any and all structures on the subject property, existing trees and shrubs at current height and proposed trees and shrubs at proposed height at time of installation; d. Grade changes or cuts and fills to be shown at original grade and new grade line; 5. Design submittals as follows: a. Equipment brochures for the PWSF such as manufacturer's specifications or trade journal reprints; b. Materials of the PWSF and security barrier, if any, specified by generic type and specific treatment, such as anodized aluminum, stained wood, painted fiberglass, etc.; c. Colors represented by samples or a color board showing actual colors proposed; d. Dimensions of all equipment specified for all three dimensions: height, width and breadth; ZO-XII -8 ZONING ORDINANCE e. Appearance shown by at least two (2) photographic superimpositions of the PWSF within the site. The photographic superimpositions shall include the antenna, mount, equipment cabinet and security barrier, if any, for the total height, width and breadth. The submittal may also include, if required by the Town, a scaled three-dimensional model of the PWSF on the site; 6. Market and service maps as follows: a. A map showing the service area of the proposed PWSF and the explanation of the need for that facility. b. A map showing the locations and service areas of other PWSF sites operated by the applicant and those that are proposed by the applicant which are close enough to impact service within the Town or are within a two-mile radius of the limits of the Town; 7. Co-location submittals, including signed statements indicating: a. The applicant agrees to allow for the potential co-location of additional PWSF(s) by other personal wireless services and carriers on the applicant's structure or facility or within the same site; b. That the applicant agrees to remove the PWSF as required by this Article; c. That the applicant has made a good faith effort to achieve co-location with other carriers and facilities as required in this Article, and if co-location is not feasible for this application for a substantial technical reason, a written statement of the reasons for the infeasibility; 8. A lease agreement with the owner or landholder shall also be submitted that: a. Allows the landholder to enter into leases with other providers; b. Specifies that if the carrier fails to remove the PWSF when required by this Article, the responsibility for removal falls upon the landholder; and c. Allows entry by the Town and its agent for the purpose of inspection and compliance with Town Codes; d. Consents to the terms of Section 1211 of this Article; 9 To the extent allowed by law, radiofrequency (RF) radiation performance submittals shall include in a form or study acceptable to Town staff the applicant's written statement of the existing and maximum future projected measurements of RF radiation from the proposed PWSF: a. Existing or ambient: measurement of existing RF radiation; b. Existing plus proposed PWSF: maximum estimate of RF radiation from the proposed PWSF plus the existing RF radiation environment. These measurements shall be for the conditions specified in the RF performance standards in this Article; c. Existing plus proposed PWSF plus cumulative: maximum estimate of RF radiation from the proposed PWSF plus the maximum estimate of RF radiation from the total addition of co-located PWSF plus the existing RF radiation environment. These measurements shall be for the conditions specified in the RF performance standards in this Article; ZO-XII -9 ZONING ORDINANCE d. Certification, signed by an RF engineer, stating that RF radiation measurements are accurate and meet FCC Guidelines as specified in the RF performance standards in this Article; 10 To the extent allowed by law, noise performance submittals shall include a statement of the existing and maximum future projected measurements of noise from the proposed PWSF measured in decibels (logarithmic scale, accounting for greater sensitivity at night) for the following: a. Existing or ambient: the measurement of existing noise; b. Existing plus proposed PWSF: maximum estimate of noise from the proposed PWSF plus the existing noise environment; c. Existing plus proposed PWSF plus cumulative: maximum estimate of noise from the proposed PWSF plus the maximum estimate of noise from the total addition of co-located PWSFs plus the existing noise environment; d. Certification signed by an acoustical engineer stating that noise measurements are accurate and meet the noise performance standards section of this Article; 11. To the extent allowed by law, environmental submittals shall include an environmental assessment if required in the environmental standards section of this ordinance. If the applicant determines that the environmental assessment is not required, certification to that effect shall be provided. The applicant shall also list location, type and amount of any materials proposed for use within the PWSF that are considered hazardous by the federal, state or town government. B. In addition to the requirements of this Article, processing and consideration of a PWSF conditional use permit shall comply with the conditional use permit requirements specified in Article 11, Sections 11031 et seq. of the Zoning Ordinance. Section 1210. Technological Change and Periodic Review. A. The Town recognizes that PWSFs and communication technologies in general are currently subject to rapid change. Innovations in such things as switching hardware and software, transmission/receiving equipment, communications protocols, and development of hybrid cable/wireless systems may result in reducing the impact of individual facilities and to render specific portions of this ordinance obsolete. Therefore, the Town may review this Article periodically and assess its provisions relative to current trends in the communications industry, innovations in communications technology, permit activity during the preceding years, and effectiveness in producing PWSFs that are compatible with the Town's residential character. B. The Town may recommend updates to this Article that may include, but not be limited to the deletion, modification, or addition of allowed locations; allowed heights; site development requirements; administrative review possibilities; or permitting procedures. C. When changes are made pursuant to Subsection B, the Town and Permittees agree in good faith to review and modify the stipulations and terms of such permits during their terms in order to reflect current technologies and then current laws and ordinances. If such modifications adversely and materially affect, either operationally or monetarily, Permittee's use of a PWSF, such modifications may not be made without a Permittee's consent. If such ZO-XII -10 ZONING ORDINANCE modifications adversely affect the Town's regulations or this permit, such modifications may not be made without the Town's consent. Section 1211. Permit Limitations and General Conditions. 564 A. A conditional use permit shall expire five (5) years after the date of the permit approval. A Permittee wishing to continue the use at the end of the five-year period must apply for a conditional use permit renewal application to continue that use at least six months prior to its expiration. In ruling on the renewal the Planning Commission shall apply all then existing regulations affecting the application. B. The conditional use permit shall become null, void and non-renewable if the permitted facility is not constructed and placed into use within one year of the date of permit approval, provided that the conditional use permit may be extended one time for six (6) months if construction has commenced before expiration of the initial year. C. The permit shall expire and the Permittee must remove the PWSF if the use is discontinued for a period in excess of ninety (90) days in any three-hundred-sixty-five (365) day period. A Permittee shall notify the Town in writing at least thirty (30) days prior to abandonment or discontinuance of operation of the PWSF. Failure to give such notice shall be considered abandonment of the special use permit or amendment by the Permittee. D. If the conditional use permit expires, terminates, is abandoned or revoked for any reason pursuant to this Article or the Town Code, if removal of the PWSF is required in this Article, or if the use is discontinued pursuant to this Article, the PWSF shall be removed as required herein. If the PWSF is not so removed, the Town may cause the facility to be removed and all expenses of removal shall be paid by the owner of the land where the facility is located. If not paid by the owner within thirty (30) days of notice by the Town, the Permittee agrees that the Town's costs shall constitute a lien upon the subject property upon its execution and filing with the county recorder's office. The term "remove" shall include but not be limited to the following: 1 Removal of antenna, mount, equipment, equipment cabinet, security barrier from the site; 2 Transportation of the antenna, mount, equipment, equipment cabinet or security barrier to a location off-site; if the location is within the Town limits, it is subject to approval by the Town. 3 Restoration of the site of the PWSF to its natural condition, except that any landscaping and grading shall remain in finished condition. E. A personal wireless service carrier, upon granting of a conditional use permit for a PWSF use, shall indemnify, protect and hold harmless the Town, its officers and agents, from and against any and all liabilities, losses, damages, demands, claims and costs, including court costs and attorney fees (collectively "liabilities") incurred by the Town arising directly or indirectly from 1) the PWSF use as contemplated herein and in the use permit; and 2) the installation and operation of the PWSF permitted thereby, including without limitation, any and all liabilities arising from emission by the PWSF of electromagnetic fields or other energy waves or emissions. The personal wireless service carrier's compliance with this Section is an express condition of the conditional use permit and is binding on any and all of ZO-XII -11 ZONING ORDINANCE personal wireless service carrier's successors and assigns. The requirements of this section shall survive the termination of any such permit. F. The Permittee shall maintain the PWSF to standards that are imposed by the Town at the time of granting of a permit. Such maintenance shall include, but shall not be limited to, maintenance of the paint, structural integrity and landscaping. If the Permittee fails to maintain the facility, the Town may undertake the maintenance at the expense of the Permittee or terminate or revoke the permit, at its sole option. If such maintenance expense is not paid by the owner within thirty (30) days of notice by the Town, the Permittee agrees that the Town's costs shall constitute a lien upon the subject property upon its execution and filing with the county recorder's office. G. A conditional use permit granted to a Permittee is specific to the owner and personal wireless service carrier and may not be assigned, provided however that the personal wireless service carrier may assign its interest in the permit to any subsidiary or other affiliate of the personal wireless service carrier. In the event of such assignment, the assignee shall re-execute the conditional use permit within thirty (30) days of the effective date of the assignment or the permit shall automatically expire. Permittee shall notify the Town of any change in ownership or operation of the PWSF at least ninety (90) days prior to such change taking place for approval by the Town, which approval shall not be unreasonably withheld. H. In its consideration of applications herein, and in addition to criteria provided in this article, Article 11 (Sections 1103 et seq) of the Zoning Ordinance and within the authority granted by law, the Town may also consider and prescribe limitations on the locations and numbers of special use permits which may be granted pursuant to this article. I. Where the Planning Commission finds that strict compliance with the requirements of this Article may result in extraordinary hardship or are needed to ensure the Town's compliance with Federal or state law, the Planning Commission may modify such requirements only upon a showing of noncompliance with applicable law or extraordinary hardship so that substantial justice may be done and the public interest secured. Hardship as used herein shall include, but not be limited to, a finding that special circumstances applicable to the property, including its size, shape, topography, location or surroundings, will deprive such property of privileges enjoyed by other property in the same classification in the same zoning district through the strict application of the zoning ordinance. In granting such modifications, the Planning Commission may require such conditions as will, in its judgment, secure substantially the objectives of the standards or requirements so varied and modified. J. Any violation of the terms of this Article or the conditional use permit may result in revocation by the Town of the conditional use permit. Acceptance of any portion of the conditional use permit is acceptance of the entire conditional use permit and the terms of this Article. K. Within ninety (90) days after issuance of the FCC operational permit, the personal wireless service carrier shall provide a copy of such permit to the Town and register the PWSF, providing information and data as may be requested by the town. Any change in the permit or registration data shall be filed with the Town within thirty (30) days after the change is made. The personal wireless service carrier shall submit to the Town a copy of is FCC Form ZO-XII -12 ZONING ORDINANCE 600 prior to the Town's approval of final inspection of a building permit for the PWSF or portion thereof. L. The Town and its agents are authorized to enter on the subject property and PWSF site for the purpose of inspection and determining compliance with this Article and the provisions of the special use permit or amendment thereto. Section 1212. Applicability The requirements of this ordinance apply to all new PWSFs and modification of any existing PWSFs. FOOTNOTES 437 Ordinance #437 - 02/13/97 455 Ordinance #455 - 02/26/98 511 Ordinance #511 – 07/26/2001 564 Ordinance #564 – 11/03/2005 ZO-XII -13 Sec. 21-813. Wireless Communication Facilities. A. General Requirements. All Wireless Communication Facilities, hereinafter referred to as WCF shall meet each of the following general requirements. 1. WCFs must meet or exceed all current state and federal standards and regulations. 2. WCFs shall be constructed, maintained, and modified in compliance with all adopted Peoria building codes. 3. To ensure compliance with the National Environmental Policy Act (NEPA), a Finding of No Significant Impact (FONSI) issued by the FCC may be required for new WCFs and co- locations. 4. A WCF shall be removed by the provider or the property owner within six (6) months of cessation of use, along with returning the area to its condition prior to the construction of the WCF. 5. A WCF shall not be located within one thousand three hundred and twenty (1,320) feet of a City, State, or Nationally designated historical site. 6. Commercial advertising or signage on the WCF or associated aerial or ground mounted equipment is prohibited. 7. Artificial lighting of a WCF is prohibited, unless required by the Federal Aviation Administration (FAA) or Federal Communications Commission (FCC). 8. WCFs located within a residential zoning district shall be allowed a single microwave dish not in excess of twenty-four (24) inches in diameter. WCF located within non-residential zoning districts shall be allowed a maximum of two (2) microwave dishes which shall not exceed forty-eight (48) inches in diameter per microwave dish unless otherwise approved through a Conditional Use Permit. Such dishes shall be appropriately integrated into concealment efforts to minimize the visual presence of the microwave equipment. 9. Screening of ground mounted equipment shall adhere to the rules and regulations set forth in accordance with the screening provisions found in Section 21-804. 10. Colors and materials of the WCF shall be compatible with the surrounding environment as determined by the City, except as otherwise required by the FAA; 11. One (1) parking space is required per WCF and shall be designed to meet City standards; this includes maneuvering and access. 12. A WCF shall not Alter the Mountain Top Ridge Line as defined in Section 21-711. 13. A WCF located in the right-of-way shall be exempt from the standards contained within this ordinance; however they must comply with all standards and practices established by the Engineering Director including but not limited to all applicable agreements and permits. 14. Co-locations on a utility pole not located in the right-of-way or co-locations located on a public/quasi- public property shall not be required to meet the setback requirements set forth in this section; provided that the ground equipment does not expand the perimeter of the utility facilities. Quasi-public property includes, but is not limited to: a. Schools, to include private, public, charter; b. College or University Campus; c. Power substations; or, d. Water pumping plants and storage tanks. B. Development Standards. 1. Permitted Principal Use. a. A Facility shall be deemed a Permitted Principal Use if the following development standards are met: Development Standards Zoning District Distance to Residential PropertyLine Maximum Heightc Distance to Nonresidential Property Line Equipment Enclosure Antenna Distance from Pole Alternate Design WCFd Permitted Principal Use Residentialb >110%a 50' >50%a 450 SF 6%a Required Nonresidential >130%a 65' a Percentage (%) figures listed shall be based on the height of the pole from adjacent finished grade. Distance is measured from the edge of the tower. b In instances where residential and non-residential uses occupy the same footprint, residential standards shall apply. c If facility WCF is located on or within a height exempt structure per Section 21-8802, the height will be measured to the top of the antennae. For ground mounted WCFs height shall be measured from finished grade to the top of the structure including any associated concealment materials. d Fronds, branches, or other methods of concealment shall completely conceal any antennae or other associated Aerial Mounted Equipment. b. Rooftop and wall-mounted equipment: 1) Shall follow the height restrictions as listed in the above permitted principal use development standards table; unless otherwise permitted in the height exception provision of Section 21-802. 2) Shall be integrated into the design of the building. 3) Shall be fully screened from public view. c. The co-location of aerial mounted equipment on an existing WCF: 1) Shall not constitute a substantial change unless otherwise identified within Section 21-813.C of the City Code. 2) Shall not be more than an overall height of eighty (80) feet. 3) Shall not otherwise inhibit stealth aesthetics. 2. Permitted Conditional Use. a. Any facility which does not meet the Permitted Principal development standards shall require a Conditional Use Permit, and shall be in accordance with the following development standards: Development Standardsd Zoning District Distanceto Residential Property Line Maximum Heightc Distanceto Nonresidential Property Line Distance Between Non- Alternate Design WCF (Monopole) Permitted Conditional Use Residentialb >110%a 65' >5'1,320' Nonresidential >130%a 80' a Percentage (%) figures listed shall be based on the height of the pole from adjacent finished grade. Distance is measured from the edge of the tower. b In instances where residential and non-residential occupy the same footprint, residential standards shall apply. c If facility is located on or within a height exempt structure per Section 21-802, the height will be measured to the top of the antennae. For ground mounted WCFs height shall be measured from finished grade to the top of the structure including any associated concealment materials. d All conditions not specifically identified within this section shall be approved through the Conditional Use Permit process. b. Rooftop and wall-mounted equipment. 1) Shall follow the height restrictions as listed in the above conditional use development standards table; unless otherwise permitted in the height exception provision of Section 21-802. 2) Shall be integrated into the design of the building. 3) Shall be fully screened from public view. c. All monopoles shall be constructed to allow for co-location by other wireless providers. The applicant shall demonstrate that the engineering of the tower and the placement of ground mounted facilities will not preclude other providers. The owner of the proposed tower must certify in writing that the tower will be available for use by other wireless communication providers on an economically reasonable and non-discriminatory basis. d. The co-location of aerial mounted equipment on an existing WCF: 1) Shall not constitute a substantial change unless otherwise identified within Section 21-813.C of the City Code. 2) Shall not be more than an overall height of ninety-five (95) feet. 3) Shall not otherwise inhibit stealth aesthetics. C. Administrative Procedures. 1. Permitted Principal Use. a. All facilities categorized as a permitted principal use are subject to site plan review process as set forth in Section 21-321. 2. Permitted Conditional Use. a. All facilities categorized as a permitted conditional use are subject to the following processes as set forth in Section 21-321 and Section 21-322: 1) Site Plan Review; and, 2) Conditional Use Permit. b. The Applicant shall be provided the opportunity to execute a Waiver of Proposition 207 as to only the property leased by the Applicant. In addition to any other grounds the City may have, the City expressly reserves the right to recommend denial of such applications in the event the Applicant elects not to execute a Waiver of Proposition 207. 3. The following criteria shall identify what constitutes a substantial change to a facility. All modifications deemed substantial shall refer to 21-813.B Development Standards: a. An increase in the originally approved WCF height by more than twenty (20) feet or ten percent (10%), whichever amount is greater; b. An increase in the Width more than twenty (20) feet from the Edge of the Tower to the Face of the Antennae. c. An increase in the height of Ground Mounted Equipment by more than ten percent (10%) or ten (10) feet, whichever amount is greater; d. An increase in the Width of a non-tower structure by six (6) feet or more; e. The installation of more than the standard number of Equipment Cabinets needed, not to exceed four (4); f. Excavation outside the current boundaries of the WCF; g. Proposed changes that would defeat the existing concealment elements of the WCF; and, h. Proposed changes that do not comply with prior approval of the WCF unless the non- compliance is within the thresholds outlined in this section. 4. Any proposed facility that does not meet the standards identified within this section shall be prohibited. 5. No facility shall be installed, erected, modified, repaired, or altered without receiving all necessary permit approvals. D. Exemptions from Section 21-320 and Section 21-321 1. Routine maintenance of a WCF; and, 2. Modifications to a WCF that are not considered a substantial change as specified in Section 21-813.A. 3. WCFs that are owned and operated by a governmental entity for the purposes of public safety or governmental operations. (Ord. No. 98-15, 3-3-98; Ord. No. 98-110, 10-13-98; Ord. No. 98-111, 10-13-98; Ord. No. 07-14, 4-17-07, eff. May 17, 2007; Ord. No. 2017-33, § 176, 6-13-17; Ord. No. 2017-44, § 1(Exhs. B, C), 11-7-17) Zoning Ordinance Sec. 7.200 – Additional Area Regulations H. Wireless communications facilities (WCF). The purpose of the WCF regulations is to encourage and promote wireless communications coverage for all areas of the city while minimizing the visual, environmental, and neighborhood impacts. The preferred WCF locations include locations having the least amount of visual and neighborhood impact. More preferred locations include commercial and industrial areas, and less preferred locations include residential and school areas. The wireless communications service providers shall adhere to all applicable federal regulations, such as the Federal Communications Commission (FCC) and the National Environmental Protection Act (NEPA). Locations may require an environmental assessment. 1. WCF concealment and screening. All WCF antennas, mounting hardware, and cabling shall be covered or painted to match the color and texture of the building, tower, or pole on which it is mounted. Equipment cabinets, service panels, and service connections shall be screened by solid walls, landscaping, or berms. Screening shall blend with or enhance the surrounding context in terms of scale, form, texture, materials, and color. WCF shall be concealed as much as possible by blending into the natural and/or physical environment. All gates shall be opaque. 2. WCF height. The height of free-standing WCF shall be measured from natural grade to the top of all appurtenances. 3. WCF setbacks. The setback of all WCF shall meet the yard development standards and step back requirements of the underlying zoning district, except as otherwise permitted herein. 4. WCF co-location. All new monopoles or towers over forty (40) feet in height shall allow for co- location by other wireless communications service providers. The applicant shall demonstrate that the engineering of the monopole or tower and the placement of ground-mounted WCF will accommodate other providers' WCF. The owner of the tower or monopole and the property on which it is located must certify that the monopole or tower is available for use by another wireless communications service provider on a reasonable and non-discriminatory basis. 5. WCF lighting. Any exterior lighting for WCF shall be fully shielded, screened by the same screening surrounding the WCF, and located below the height of the screening. 6. WCF identification. Each WCF shall be identified by a permanently installed plaque or marker, no larger than four (4) inches by six (6) inches, clearly identifying the wireless communications service provider's name, address, e-mail contact, and emergency phone number. 7. Temporary WCF. All temporary WCF shall be limited to being in conjunction with a special event, or be in response to an emergency or disaster as determined by the Zoning Administrator. 8. WCF Types. All WCF are classified as Type 1, Type 2, Type 3, or Type 4 (except temporary WCF). WCF Types are in order of preference, with Type 1 being the most preferable with the least number of impacts, and Type 4 being the least preferable with the most number of impacts. Each Type has specific criteria, requirements, processes, and guidelines. WCF user guidelines have been created to provide additional standards and expectations. In the event of a conflict, the more restrictive Type shall apply. A. Type 1 WCF. Type 1 WCF have antennas and equipment cabinets that are fully concealed. Type 1 WCF have an expedited review process and are subject to approval by the Zoning Administrator, subject to Section 1.906. 1. Type 1 WCF shall not include the following: A. WCF on lots where the existing or planned primary use is a single-family dwelling; B. WCF within one hundred fifty (150) feet of a lot where the existing or planned primary use is a single-family dwelling; C. WCF on school property (K-12); and D. WCF within the recommended study boundary for the McDowell Sonoran Preserve as approved by city council. 2. Type 1 WCF shall only include the following: A. The replacement of any existing WCF, if the replacement is smaller and/or more concealed than the original WCF, or there is no obvious visible change from the original WCF. B. WCF on or within existing buildings, walls, and water tanks subject that antennas and equipment cabinets shall be fully concealed within or behind existing buildings, existing walls, and/or buried completely underground. All wall replacements shall match the existing colors and materials. Antenna and equipment cabinet locations shall comply with the height and yard development standards of the underlying zoning district. All equipment cabinets that are located within the right-of-way or completely underground are exempt from yard development standards. C. On existing or replaced traffic signal poles, limited only to pre-approved pole designs with all equipment cabinets buried underground. B. Type 2 WCF. All Type 2 WCF shall blend with the surroundings and are subject to approval by the Zoning Administrator, subject to Section 1.906. 1. Type 2 WCF shall not include the following: A. WCF antennas on lots where the existing or planned primary use is a single-family dwelling; B. WCF antennas within one hundred fifty (150) feet of a lot where the existing or planned primary use is a single-family dwelling; C. WCF on school property (K-12); and D. WCF within the recommended study boundary for the McDowell Sonoran Preserve as approved by city council. 2. Type 2 WCF shall only include the following: A. WCF on or within buildings, walls, and water tanks subject to the following criteria: 1. Does not include R1 zoned properties with visible changes; 2. Antennas shall be fully concealed or snug-mount; 3. Existing building heights shall not increase by more than fifteen (15) percent, and no increase in height of water tanks; 4. Existing rooftop appurtenances shall not be raised in height more than two (2) feet; 5. New rooftop appurtenances shall comply with Section 7.100, shall be no more than ten (10) percent of the roof area, shall not exceed six-hundred (600) square feet, and shall not exceed six (6) feet in height; and 6. Antenna and equipment cabinet locations shall comply with the height and yard development standards of the underlying zoning district, except as provided in 7.C below. 7. Equipment cabinets: A. Shall be located inside buildings, screened behind walls, or buried underground; B. Ground-mounted equipment cabinets shall not exceed eight (8) feet in height and one hundred fifty (150) cubic feet (measured above ground); and C. All equipment cabinets that are located within the right-of-way or completely underground are exempt from yard development standards. B. WCF co-located on existing monopoles and towers subject to the following criteria: 1. Monopole or tower shall not increase in height by more than six (6) feet, and shall not exceed eighty (80) feet (including the antenna) in total height; 2. Monopole diameter or tower footprint shall not increase; 3. Antennas shall be limited to snug-mount, canister-mount, and concealed antennas; 4. Canister shall not exceed eighteen (18) inches in diameter; 5. There shall be no more than three (3) separate WCF on each monopole or tower; 6. All cables shall be located inside the monopole or tower; and 7. Equipment cabinets: A. Shall be located inside buildings, screened behind walls, or buried underground: B. Equipment cabinet locations shall comply with the height and yard development standards of the underlying zoning district, except as provided in E. below. C. Equipment cabinets located in ESL right-of-way or ESL scenic corridor shall not exceed four (4) feet tall above natural grade and one hundred fifty (150) cubic feet measured above natural grade. Colors shall match corridor colors and no screenwall is required. D. Equipment cabinets located outside of ESL shall not exceed eight (8) feet in height and one hundred fifty (150) cubic feet (measured above ground); and E. All equipment cabinets that are located within the right-of-way or completely underground are exempt from yard development standards. C. WCF located on existing or replaced utility poles and towers, subject to the following criteria: 1. WCF shall not be located on utility poles/towers planned for removal by the city, utility company, or improvement district; 2. Antennas located on twelve-kilovolt (12-KV) utility line poles shall only be located along collector, arterial, or higher classification streets; 3. Pole/tower size, diameter, and height shall be no larger/taller than would normally accommodate the necessary utility, as determined by the utility company; 4. Antennas shall be limited to snug-mount, canister-mount, and concealed antennas; 5. Canister shall not increase the pole height by more than six (6) feet, and shall not exceed eighty (80) feet in height; 6. Canister shall not exceed eighteen (18) inches in diameter; 7. There shall be no more than three (3) separate WCF on each pole or tower; 8. All cables shall be located inside the pole or concealed behind the tower structure; and 9. Equipment cabinets: A. Shall be located inside buildings, screened behind walls, or buried underground; B. Equipment cabinet locations shall comply with the height and yard development standards of the underlying zoning district, except as provided in E. below; C. Equipment cabinets located in ESL right-of-way or ESL scenic corridor shall not be more than four (4) feet tall measured above natural grade and one hundred fifty (150) cubic feet above natural grade. Colors shall match corridor colors and no screenwall is required. D .Equipment cabinets located outside ESL right-of-way and ESL scenic corridor shall not exceed eight (8) feet in height and one hundred fifty (150) cubic feet (measured above ground). F. All equipment cabinets that are located within the right-of-way or completely underground are exempt from yard development standards. D. WCF located on existing or replaced sports and field light poles, subject to the following criteria: 1. WCF located in the ESL district and within scenic corridors shall not be type 2; 2. Replacement poles or pole reinforcement shall not exceed the diameter of the existing pole by more than forty (40) percent; 3. Antennas shall be limited to snug-mount, canister-mount, and concealed antennas; 4. Canister shall not increase the pole height by more than six (6) feet, and the pole shall not exceed eighty (80) feet (including the antenna); 5. Canister shall not exceed eighteen (18) inches in diameter; 6. There shall be no more than three (3) separate WCF on each pole; 7. All cables shall be located inside the pole, or match existing condition on nearby poles on same site; and 8. Equipment cabinets: A. Shall be located inside buildings, screened behind walls, or buried underground; B. Shall comply with the height and yard development standards of the underlying zoning district, except as provided in D. below; C. Shall not exceed eight (8) feet in height and one hundred fifty (150) cubic feet (measured above ground); and D. All equipment cabinets that are located within the right-of-way or completely underground are exempt from yard development standards. E. WCF located on traffic signal poles, subject to the following criteria: 1. New traffic signal poles shall be warranted by traffic volumes, as determined by the city; 2. Traffic signal pole diameter shall not exceed fourteen and one-half (14½) inches (city standard); 3. Antennas shall be limited to canister-mount antennas, shall be no more than eighteen (18) inches in diameter, and shall not increase the city standard traffic signal pole height by more than six (6) feet; 4. All cables shall be located inside the pole; and 5. Equipment cabinets: A. Shall be located inside buildings, screened behind walls, pole mounted, or buried underground; B. Shall comply with the height and yard development standards of the underlying zoning district, except as provided in E. below; C. Equipment cabinets located in ESL right-of-way or ESL scenic corridor shall not exceed four (4) feet tall measured above natural grade and one hundred fifty (150) cubic feet above natural grade. Colors shall match approved corridor colors and no screenwall is required. D. Equipment cabinets located outside ESL right-of-way and ESL scenic corridor shall not exceed eight (8) feet tall and one hundred fifty (150) cubic feet (measured above ground). E. All equipment cabinets that are located within the right-of-way or completely underground are exempt from yard development standards F. WCF located on freeway directional sign poles, subject to the following criteria: 1. Antennas shall be limited to snug-mount, canister-mount, and concealed antennas; 2. Canisters shall not exceed eighteen (18) inches in diameter, and shall not increase the standard sign pole height by more than six (6) feet; 3. All cables shall be located inside the sign pole; 4. Equipment cabinets shall be screened behind walls, pole mounted, or buried underground; and 5. Colors shall match approved corridor colors. G. WCF monopoles (new or replacement), not including monopoles with a flag, subject to the following criteria: 1. Limited to existing utility substations and limited to one (1) WCF monopole for every twenty thousand (20,000) square feet of substation; 2. Monopole and equipment cabinets shall be located in an existing utility substation enclosure that is fully screened by a solid wall (no WCF monopoles outside substation screen walls); 3. Monopole shall not exceed forty (40) feet in height, including antennas; 4. Monopole shall not exceed a diameter of fourteen (14) inches; 5. Antennas shall be limited to snug-mount, canister-mount, and concealed antennas; 6. Canister shall not exceed eighteen (18) inches in diameter; and 7. Equipment cabinets shall not be visible from outside the wall. H. WCF equipment cabinets on single-family lots, subject to the following criteria: 1. Limited to equipment cabinets only (no antennas); 2. Lots shall be a minimum size of one (1) acre; 3. Equipment cabinets shall be buried, screened, and/or hidden; 4. Equipment cabinet locations shall comply with the height and yard development standards of the underlying zoning district, except as provided in 6. below; 5. Equipment cabinets with air-conditioning shall be enclosed by walls and setback a minimum of fifteen (15) feet from other lots where the existing or planned primary use is a single-family dwelling; and 6. All equipment cabinets that are located completely underground are exempt from yard development standards. C. Type 3 WCF. All Type 3 WCF shall blend with the surrounding environment and require Development Review Board approval, subject to Section 1.900. 1. Type 3 WCF shall not include the following: A. WCF antennas on lots where the existing or planned primary use is a single-family dwelling; B. WCF within the recommended study boundary for the McDowell Sonoran Preserve as approved by city council. 2. Type 3 WCF shall only include the following: A. WCF on or within buildings, walls, and water tanks, subject to the following criteria. 1. WCF shall be designed to match the structure on which it is mounted; 2. Equipment cabinets: A. Shall be located inside buildings, screened behind walls, pole mounted, or buried underground; B. Shall comply with the height and yard development standards of the underlying zoning district, except as provided in C. and D. below; C. Equipment cabinets with air-conditioning shall be enclosed by walls and setback a minimum of fifteen (15) feet from lots where the existing or planned primary use is a single-family dwelling; and D. All equipment cabinets that are located within the right-of-way or completely underground are exempt from yard development standards. B. WCF co-located on existing monopoles and towers subject to the following criteria: 1. Monopole or tower shall not increase in height by more than twelve (12) feet, and shall not exceed eighty (80) feet (including the antenna) in total height; 2. Monopole shall not increase the diameter of the existing monopole by more than sixty percent (60%); 3. Antennas shall not extend more than two (2) feet from the monopole or tower; 4. Limited to three (3) separate WCF on each monopole or tower; 5. All cables shall be located inside the monopole or tower or within an encasement colored to match the monopole and located on a side with the least visual impact; 6. Equipment cabinets: A. Shall be located inside buildings, screened behind walls, pole mounted, or buried underground; B. Equipment cabinets located in ESL right-of-way or ESL scenic corridor shall not be more than six (6) feet tall measured above natural grade and one hundred fifty (150) cubic feet above natural grade. Colors shall match corridor colors and no screenwall is required. C. Equipment cabinets located outside ESL right-of-way and ESL scenic corridor shall comply with the height and yard development standards of the underlying zoning district, except as provided in D. and E. below; D. Equipment cabinets with air-conditioning shall be enclosed by walls and setback a minimum of fifteen (15) feet from lots where the existing or planned primary use is a single-family dwelling; and E. All equipment cabinets that are located within the right-of-way or completely underground are exempt from yard development standards. C. WCF located on existing or replaced utility poles and towers, subject to the following criteria: 1. WCF shall not be located on poles/towers planned for removal by the city, utility company, or improvement district; 2. Antennas located on twelve-kilovolt (12-KV) power line poles shall only be located along collector, arterial, or higher classification streets; 3. There shall be no more than three (3) separate WCF on each pole or tower; 4. Pole/tower size, diameter, and height shall be no larger/taller than would normally accommodate the necessary utility (not to exceed an eight (8) foot height increase); 5. Canister shall not increase the pole height by more than twelve (12) feet, not to exceed eighty (80) feet (including the antenna); 6. Canister shall not exceed eighteen (18) inches in diameter; 7. On poles, antennas shall not extend more than two (2) feet from the pole; 8. On towers, antennas shall not extend more than two (2) feet from the tower or exceed the maximum width of the tower; 9. All cables shall be located inside the pole or within an encasement to hide all cables colored to match the pole/tower and located to a side with the least visual impact; 10. Equipment cabinets: A. Shall be located inside buildings, screened behind walls, pole-mounted, or buried underground; B. Equipment cabinets located in ESL right-of-way or ESL scenic corridor shall not be more than six (6) feet tall measured above natural grade and one hundred fifty (150) cubic feet above natural grade. Colors shall match approved corridor colors and no screenwall is required. C. Equipment cabinets located outside ESL right-of-way and ESL scenic corridor shall comply with the height and yard development standards of the underlying zoning district; D. Equipment cabinets with air-conditioning shall be enclosed by walls and setback a minimum of fifteen (15) feet from lots where the existing or planned primary use is a single-family dwelling; and E. All equipment cabinets that are located within the right-of-way or completely underground are exempt from yard development standards. D. WCF located on existing or replaced sports and field light poles, subject to the following criteria: 1. There shall be no more than three (3) separate WCF on each pole; 2. Pole shall not exceed the diameter of the existing pole by sixty percent (60%); 3. Canister shall not increase the pole height by more than twelve (12) feet, not to exceed eighty (80) feet (including the antenna); 4. Canister shall not exceed eighteen (18) inches in diameter; 5. Antennas shall not extend more than two (2) feet from the pole; 6. All cables shall be located inside the pole or within an encasement to hide all cables colored to match the pole and oriented to a side with the least visual impact; 7. Equipment cabinets: A. Shall be located inside buildings, screened behind walls, pole mounted, or buried underground; B. Equipment cabinet locations shall comply with the height and yard development standards of the underlying zoning district; C. Equipment cabinets with air-conditioning shall be enclosed by walls and setback a minimum of fifteen (15) feet from lots where the existing or planned primary use is a single-family dwelling; and D. All equipment cabinets that are located within the right-of-way or completely underground are exempt from yard development standards. E. WCF located on traffic signal poles, subject to the following criteria: 1. New signal poles shall be warranted by traffic volumes, as determined by the city; 2. Traffic signal poles and WCF shall be no more than eighteen (18) inches in diameter and shall not increase the city standard signal pole height by more than six (6) feet; 3. Antennas shall be limited to snug-mount, canister-mount, and concealed antennas; 4. All cables shall be located inside the pole or within an encasement to hide all cables colored to match the pole and oriented to a side with the least visual impact; 5. Equipment cabinets: A. Shall be located inside buildings, screened behind walls, pole-mounted, or buried underground; B. Equipment cabinets located in ESL right-of-way or ESL scenic corridor shall not be more than six (6) feet tall measured above natural grade and one hundred fifty (150) cubic feet above natural grade. Colors shall match corridor colors and no screenwall is required. C. Equipment cabinets located outside ESL right-of-way and ESL scenic corridor shall comply with the height and yard development standards of the underlying zoning district; D. Equipment cabinets with air-conditioning shall be enclosed by walls and setback a minimum of fifteen (15) feet from lots where the existing or planned primary use is a single-family dwelling; and E. All equipment cabinets that are located within the right-of-way or completely underground are exempt from yard development standards. F. WCF located on existing or replaced street light poles, parking lot light poles, and street sign poles, subject to the following criteria: 1. The replacement pole and WCF shall not increase the diameter of the existing pole by more than sixty (60) percent, not to exceed eighteen (18) inches total, or increase the height of the existing pole by more than six (6) feet; 2. Antennas shall be limited to snug-mount, canister-mount, and concealed antennas; 3. All cables shall be located inside the pole or within an encasement to hide all cables colored to match the pole and oriented to a side with the least visual impact; 4. Equipment cabinets: A. Shall be located inside buildings, screened behind walls, pole mounted, or buried underground; B. Equipment cabinet locations shall comply with the height and yard development standards of the underlying zoning district; C. Equipment cabinets with air-conditioning shall be enclosed by walls and setback a minimum of fifteen (15) feet from lots where the existing or planned primary use is a single-family dwelling; and D. All equipment cabinets that are located within the right-of-way or completely underground are exempt from yard development standards. G. WCF located on freeway directional sign poles, subject to the following criteria: 1. Antennas shall be limited to snug-mount, canister-mount, and concealed antennas 2. Canisters shall be no more than eighteen (18) inches in diameter, and shall not increase the standard sign pole height by more than six (6) feet; 3. All cables shall be located inside the pole or encased in a sheath to match pole; 4. Equipment cabinets shall be screened behind walls, pole mounted, or buried underground; and5.Colors shall match corridor colors. H. Alternative concealment WCF, subject to the following criteria: 1. WCF shall comply with the height requirements of the underlying zoning district; 2. Equipment cabinets shall be concealed within the structure, fully screened, or buried underground; 3. Equipment cabinet locations shall comply with the height and yard development standards of the underlying zoning district; 4. Equipment cabinets with air-conditioning shall be enclosed by walls and setback a minimum of fifteen (15) feet from lots where the existing or planned primary use is a single-family dwelling; and5.All equipment cabinets that are located within the right-of-way or completely underground are exempt from yard development standards. D. Type 4 WCF. Type 4 WCF are the least preferred and generally have the most impact on their surrounding environments. All Type 4 WCF shall require a conditional use permit and are subject to Development Review Board approval (subject to Zoning Ordinance article 1). 1. Type 4 WCF include: A. The following WCF are classified as Type 4 if they do not meet the criteria to be classified as Type 1, 2, or Type 3: 1. WCF located on or within buildings, walls, and water tanks; 2. WCF co-located on existing communication monopoles and towers; 3. WCF located on existing or replaced utility poles and towers; 4. WCF located on existing or replaced sports and field light poles; 5. WCF located on existing or replaced street light poles, parking light poles, and street sign poles; 6. WCF located on existing or replaced traffic signal poles; and7.Alternative concealment WCF. B. WCF concealed within flagpoles (monopoles with a flag). C. WCF, including both antennas and equipment cabinets, located on lots where the existing primary use is a single-family dwelling and where the lot size is a minimum of five (5) acres. These WCF shall meet the height and yard development standards of the underlying zoning district, and shall be architecturally integrated into an existing building. No WCF shall be allowed on structures needing additional height allowed in Section 7.100 unless the additional height was built prior to the effective date of this ordinance provision. D. WCF located within the recommended study boundary for the McDowell Sonoran preserve as approved by City Council, except new monopoles or towers. E. The fourth or more separate WCF co-located on any one tower or pole. F. WCF located on utility poles/towers that are planned for removal by the city, utility company, or improvement district. G. Communication (WCF) monopoles or towers (new or replacement), not including monopoles with a flag, subject to the following: 1. Monopoles or towers on any school property (K—12): A. Antenna heights shall not exceed eight (8) feet, not to exceed eighty (80) feet in total height (including the antenna). 2. Monopoles or towers in the I-1, C-4, and S-S districts: A. Height shall not exceed eighty (80) feet including all antennas; B. Shall be separated from the nearest monopole or tower a minimum distance of one-quarter (¼) mile; and C. WCF which are located within two hundred (200) feet of a designated arterial or collector street, or within three hundred (300) feet of a R1 zoned property, shall have front and side yard setbacks a minimum of two (2) feet for every one (1) foot in height. 3. Monopoles or towers in the C-S, C-2, C-3, P.N.C., P.C.C., P.R.C., C-O, PCP, and W-P districts: A. Height shall not exceed forty (40) feet including all antennas. Monopoles up to fifty (50) feet in height will be allowed in these districts if two (2) providers locate WCF on the pole at the time of final plans approval. B. Any new monopole or tower shall be separated from the nearest monopole or tower a minimum distance of one-quarter (¼) mile. 4. Additional setbacks for monopoles and towers. A. Monopoles or towers shall have a setback from the nearest edge of a scenic corridor, vista corridor or any land zoned open space (O-S), conservation open space (COS), hillside conservation (HC) or conservation area a minimum of three (3) feet for every one (1) foot in height. B. Monopoles or towers shall have a minimum setback from any ESLO special feature of three hundred (300) feet. C. Monopoles or towers shall have a setback from lots where the existing or planned primary use is a single-family dwelling a minimum of three (3) feet for every one (1) foot of height. H. Type 4 equipment cabinets. Equipment cabinets for all type 4 WCF shall be located inside buildings/structures, screened behind walls, pole mounted, or buried underground. All equipment cabinets that are located within the right-of-way or completely underground are exempt from these setback requirements. However, all equipment cabinets with air-conditioning shall be enclosed and setback a minimum of fifteen (15) feet from other lots where the existing or planned primary use is a single-family dwelling. 9. WCF submittal requirements. Applicants proposing WCF (Types 1, 2, 3, or 4) shall submit the following: A. All WCF: 1. A written report verifying that, at its maximum load, including cumulative effects of multiple facilities, the WCF meets or exceeds the Federal Communication Commission's radio frequency safety standards. Submission of this report is required before communication operations can begin, before any extension periods are granted, and before the city's acceptance of any improvements or upgrades to the WCF; 2. A map of the service area for the WCF; 3. A map that shows other existing or planned WCF that will be used by the WCF provider who is making the application. Describe the height, mounting style, and number of antennas on each WCF; 4. Photo documentation of existing conditions; 5. A photo simulation (except for type 1 WCF); 6. A concealment and screening plan showing the WCF blending with the existing environment; 7. Written description of efforts to minimize the visual impact of the antennas and equipment cabinets; 8. A site line representation drawing; 9. Community notification documentation, including the names and dates (notification shall be a minimum fifteen (15) days prior to application submittal); and 10. Written description of conformance with applicable design guidelines and use permit criteria. B. New towers and monopoles (including monopoles with flags): 1. A map that shows any WCF monopoles or towers, and monopoles with flags, within a mile radius of the project that are existing or are currently under construction; 2. Written description of any efforts to co-locate the proposed WCF on another site or building. Include a map of the sites and provide engineering information or letters from the owners of the site describing why co-location is not a possibility; 3. A map that shows other potential stand-alone locations for the proposed WCF that have been explored. Describe why the proposed location is superior to other potential locations. Factors to consider in the community perspective shall include: costs, visual aspects, setbacks, and proximity to single family residences; 4. Written description of efforts to blend the WCF with the surrounding area, including the process for arriving at the color and materials for the proposed monopole or tower; 5. Written description of efforts to minimize the diameter of the monopole and the mass of the tower supporting the proposed WCF. Provide engineering/structural information related to these efforts; and 6. Written description of all equipment that will be ancillary to the antennas, such as whip and dish antennas. Describe the function of this ancillary equipment and the need to locate it on this WCF. C. Properties within the environmentally sensitive lands (ESL) district:1.Photo simulations taken from the closest streets and single family residences surrounding the proposed site;2.Color samples and their light reflective values; and3.Written analysis describing the most effective way to screen or blend the new WCF with the surrounding environment. D. All WCF located on school properties (K—12) shall provide a letter demonstrating that the parents of the students and the surrounding neighbors were properly noticed of the proposed WCF (letters sent out, dates and times of public meetings, list of attendees, and minutes of meeting). The Zoning Administrator may require additional information or may waive submittal requirements determined unnecessary for appropriate review of the project. 10. Community notification. For all WCF applications, the applicant shall provide written notice to residences, businesses, schools, and public facilities within seven hundred fifty (750) feet of the proposed WCF. All notices shall include a request that the recipient post and distribute the notice to all tenants, employees, and students. 11. Continued monitoring. Every three (3) years, each wireless communications service provider shall submit to the city a written report verifying that, at its maximum load, including cumulative effects of multiple facilities, each WCF was tested and certified to meet or exceed the Federal Communication Commission's radio frequency safety standards. The three (3) years shall be from the most recent approval of the respective WCF or from the effective date of this ordinance, whichever is earlier, and every three (3) years thereafter. 12. Third party review. The Zoning Administrator may require a third party review of the technical data submitted by the provider, to be paid for by the applicant. Selection of the third party expert may be by mutual agreement among the applicant and interested parties or at the discretion of the city, with a provision for the applicant and interested parties to comment on the proposed expert(s) and to review qualifications. The expert review is intended to be a site-specific review of technical aspects of the wireless communications service WCF and not a subjective review of the site selection. Such a review shall 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 Council, Planning Commission, the Zoning Administrator, or interested parties. The expert review of technical submission shall address the following: A. The accuracy and completeness of submissions; B. The applicability of analysis techniques and methodologies C. The validity of conclusions reached; and D. Any specific technical issues designated by the city council or planning commission. 13. Abandonment. WCF which are not in use for six (6) or more months shall be removed by the wireless communications service provider or the property owner. This removal shall occur within ninety (90) days of the end of such six-month period. Upon removal, the site shall be revegetated to blend with the surrounding vegetation.