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HomeMy WebLinkAboutAGENDApacket__07-08-24_0608_639       NOTICE OF MEETING REGULAR MEETING FOUNTAIN HILLS PLANNING AND ZONING COMMISSION      Chairperson Peter Gray  Vice Chairperson Rick Watts Jr. Commissioner Patrick Dapaah Commissioner Clayton Corey Commissioner Dan Kovacevic Commissioner Scott Schlossberg Commissioner Phil Sveum      TIME:6:00 P.M. – REGULAR MEETING WHEN:MONDAY, JULY 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      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 June 10, 2024.     5.CONSIDERATION AND POSSIBLE ACTION: Ordinance #24-08 amending Chapter 17, Wireless Telecommunication Towers and Antenna.     6.COMMISSION DISCUSSION/REQUEST FOR RESEARCH to staff.    7.SUMMARY OF COMMISSION REQUESTS from Development Services Director.    8.REPORT from Development Services Director.    9.ADJOURNMENT       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 July 8, 2024 2 of 2 ITEM 4. TOWN OF FOUNTAIN HILLS STAFF REPORT    Meeting Date: 07/08/2024 Meeting Type: Planning and Zoning Commission Agenda Type: Submitting Department: Development Services Prepared by: Paula Woodward, Executive Assistant Staff Contact Information: Paula Woodward, Executive Assistant Request to Planning and Zoning Commission (Agenda Language):  CONSIDERATION AND POSSIBLE ACTION: approving the regular meeting minutes of the Planning and Zoning Commission June 10, 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 June 10, 2024.   SUGGESTED MOTION MOVE to approve the regular meeting minutes of the Planning and Zoning Commission between June 10, 2024. Attachments Summary Minutes and Verbatim Transcript  Planning and Zoning Commission June 10, 2024 1 of 3 TOWN OF FOUNTAIN HILLS SUMMARY MINUTES OF THE REGULAR MEETING OF THE PLANNING AND ZONING COMMISSION JUNE 10, 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 June 10, 2024, to order at 6:00 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; Commissioner Patrick Dapaah; Commissioner Dan Kovacevic Commissioners Absent: Commissioner Scott Schlossberg Staff Present: Development Services Director John Wesley; Senior Planner Farhad Tavassoli and Executive Assistant Paula Woodward. 3. CALL TO THE PUBLIC The following residents addressed the Commission: Larry Meyers 4. CONSIDERATION AND POSSIBLE ACTION: approving the regular meeting minutes of the Planning and Zoning April 8, 2024 and May 13, 2024. MOVED BY Vice Chair Watts to approve the regular meeting minutes of the Planning and Zoning April 8, 2024 and May 13, 2024 SECONDED BY Commissioner Dapaah. Vote: 5-0 Unanimously Chairperson Gray stated that agenda item 6 would be taken out of order and reviewed before agenda item 5. 5. CONSIDERATION AND POSSIBLE ACTION: annual report on the implementation of the Fountain Hills General Plan 2020. The following residents addressed the Commission: Larry Meyers Lori Troller MOVED BY Commissioner Corey to recommend the Town Council approve the annual report on the implementation of the Fountain Hills General Plan 2020. SECONDED BY Vice Chair Watts. Vote:5-0 Unanimously Commissioner Corey Aye Commissioner Dapaah Aye Commissioner Kovacevic Aye Vice Chair Watts Aye Planning and Zoning Commission June 10, 2024 2 of 3 Chair Gray Aye 6. HOLD A PUBLIC HEARING, REVIEW, AND CONSIDER: Rezoning 11044 and 11052 N. Indigo Dr, located on the west side of Indigo Drive north of Kingstree, from R1-18 to R1-10A to allow the construction of single-family homes. The following residents addressed the Commission: Larry Meyers Rick Murdock James Miller Ashleigh Gerhardt The following residents provided written comments against the project: Diana March Vicki Lynes Rosemary DiPietra Bill Pape Gail Hallstrom Pape Leslie Bush Don Fisher Julie Fisher Brenda Samaniego Anne Habel George T Habel MOVED BY Vice Chair Watts to deny recommendation to the town council the rezoning of 11044 and 11052 N. Indigo Dr, located on the west side of Indigo Drive north of Kingstree, from R1-18 to R1-10A to allow the construction of single-family homes. SECONDED BY Commissioner Dapaah. Vote:4-1 Unanimously Commissioner Corey Aye Commissioner Dapaah Aye Commissioner Kovacevic Nay 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 June 10, 2024 at 7:48 p.m. PLANNING AND ZONING COMMISSION Chairperson Peter Gray Planning and Zoning Commission June 10, 2024 3 of 3 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 June 10, 2024. I further certify that the meeting was duly called and that a quorum was present. DATED this day of June 10, 2024 Paula Woodward, Executive Assistant TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 1 of 45 Post-Production File Town of Fountain Hills Planning and Zoning Commission Meeting Minutes June 10, 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 JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 2 of 45 CHAIR GRAY: All right. Good evening. This is the June 10th version of the Fountain Hills Planning and Zoning Commission. If you would all please rise for pledge of allegiance and a moment of silence. 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. Paula, roll call, please? WOODWARD: Commissioner Corey? COREY: Here. WOODWARD: Commissioner Dapaah? DAPAAH: Here. WOODWARD: Commissioner Kovacevic? KOVACEVIC: Here. WOODWARD: Vice Chair Watts? VICE CHAIR WATTS: Here. WOODWARD: Chair Gray? CHAIR GRAY: Here. Thank you, Paula. Agenda item number 3: Call to the public. Paula, do we have any speaker cards? WOODWARD: Yes, Chair. One speaker card from Larry Meyers. MEYERS: Farmers, butchers, those of lower intellect. I want to talk about how much work you put in and what you get out. I see you guys putting in a lot of work, and then I see you not getting a lot out. The town council under this administration isn't the first town council to have viewed planning and zoning in a lower or lesser light, but never to the level that we see currently. Dennis Brown, in the last council, once said in 2018, while we were arguing about whether to put a nursing home at the entrance to Fountain Hills. Well, the planning and zoning commissioners do a lot of research, and they're pretty smart, but they don't know how to run a town like we do. That was the level of his insult. The level of insult that was exhibited by our council towards this body in the last council meeting is absolutely beyond my 42 years here in Fountain Hills, TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 3 of 45 which includes having worked with or worked for commissions the government. I've known every mayor we have, dead and alive. I've seen lots of Planning and Zoning Commissions. I've seen some that work hard, some that don't work hard. Most of the time they take the input of residents, and they take it seriously, and they consider it, and they make their decision, and they pass on their recommendation. They don't make policy. Obviously, the council makes policy, but sometimes the council places people on the commission and gives them a mandate. It's happened before. It's happening now. We're ignoring the intent of Fountain Hills because when it was created, there was an intent. It had nothing to do with apartment buildings. It had nothing to do with crosswalks. It had nothing to do whether you had an acre and a half or an R1-10 zone, it had to do with what it was planned from the very beginning. And then you purchased it, and when you purchased it, you expected it to be your neighbors as to what you expected. So I would encourage you to do as much work as you feel fit. Know full well that the people are behind you, and we're ignoring the council and their insults. Thank you. CHAIR GRAY: Paula, any more speaker cards? WOODWARD: No Chair. CHAIR GRAY: Thank you, Paula. All right. Agenda item 4: Consideration of possible action on two sets of meeting minutes from April 8th, '24 and May 13th, '24. Commissioners, any conversation or a motion, please? Commissioner Watt? VICE CHAIR WATTS: I move to approve as submitted. CHAIR GRAY: Commissioner Dapaah? DAPAAH: I'll second that. CHAIR GRAY: All in favor? ALL: Aye. WOODWARD: five, zero. CHAIR GRAY: Thank you. Paula. All right. We're going to flip-flop to make best use of people's time here this evening. We'll flip TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 4 of 45 flop agenda item 5 and agenda item 6. So keeping with the with the numbering on the agenda, agenda item 6 is: Public hearing, review, and consideration of rezoning of two lots on Indigo from R1-18 to R1-10A. And I don't see a case number on that. WESLEY: I guess I forgot to put the case number on. That's okay. It's not required. Commissioners, good evening. I will step through a presentation of the request and then see what questions that you have. As has been mentioned, we're looking at a couple of lots on the west side of Indigo, between Kingstree and Emerald Drive, currently zoned R1-18, with a request to rezone to R1-10A. The proposal is to then also subdivide the two lots to create four, and the R1-10A specifically allows the 30-foot access drive configuration, what's often called a flag lot type development. They're proposing that on the lots then, that they will be built with homes ranging in size from 22 to 2,800 square feet and one story in height. So here is a map that illustrates the existing zoning pattern in this area. So the lots in question is shown in green. And you can see the surrounding zoning that ranges from the R3 to the R1-18. The area was initially platted in 1972, with block 8 having two lots. Those two lots have subsequently been further subdivided so that the lot 2 on the north is now two lots, and the lot on the south has also been divided into two lots. So looking a bit more closely at this zoning pattern and the history of development that has occurred on this property, starting with the lots to the north, back in 2015, there was a request to rezone those parcels from the R1-18 to R3 with the proposal to put a four-unit condominium building on that lot. That was approved. However, the condominium development did not go in, and the owner decided instead to divide it into the two lots that we have today and build those homes on there. The lots to the east are, as were originally platted, to R1-18 lots, each with one house. The southern lot built in some time prior to '86, and the one to the north prior to '93. To the southeast, we have a R-2 zoned lot. It was originally platted as one lot in 1972. Subsequently, replatted into four lots, and each built with a home between '98 and 2000. To the immediate south, abutting this property, we have originally zoned R3 tract. In TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 5 of 45 '96, it was rezoned to an R-3 PUD for the condominium development. Originally platted in '72, Replatted in '99 for the condos, and homes were pretty much built out in that by 2000. Immediately to the west, we also have R-3 zoning. Originally platted in '72, condominium plat in '97, and homes constructed in 2000. So you can see three sides of this abuts multiple residence zone at R-3 and then multifamily to the southeast and single-family immediately to the east. When we look at all these together, you can see the types of units built and the density on those properties. And we take the entire area there, leaving out the parcels in question for the rezone, we have an average of 6.7 units per acre. General plan and the character element has a couple of goals and some policies that relate to the request that address infill development and how we might view that in context of the surrounding neighborhood. I won't review all those specifically here because I'll cover them a little bit more in just a moment. But also of note, the previous general plan, which was more specific in terms of designations, did designate this entire block as multifamily medium, four to ten units per acre. So going through the request and looking at it, particularly with the general plan designations in mind, does the requested rezoning encourage infill development in a manner that will maintain and protect the existing neighborhood? As shown, the proposed lot sizes and density is very similar to the existing development, particularly that to the southeast across Indigo. It will continue to develop single-family homes along Indigo, and the anticipated house sizes and sales prices are very similar to those in the neighborhood. Having flag lots is a little bit different. We don't see those all the time, but there are examples of those in town, so this isn't totally unique. Particularly, the one-off of Chicory Drive is pretty much the same type in an R1-8 district. And also having zoning districts across from each other that are somewhat different is not unusual, as you can see from these different examples of many that could be shown from around town, of smaller lots across from larger lots. Again, a very common zoning pattern here in town. TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 6 of 45 Will the infill development be compatible with adjacent densities and development form? Again, the densities being proposed is very similar to what's in the area, lower than the average, similar to what's to the southeast. The R-2 and R-3 properties that are in this area would allow a 50 percent lot coverage. The R1-10A allows a 40 percent lot coverage, and the R1-18 allows a 25 percent lot coverage. So it's again in that same similar range. Existing zoning districts allow 30-foot of height, as does the R1-10A. Everything in the area is one-story except for the multifamily to the west and south, which are both built as two stories. So again, very similar to what's there. The last one from the general plan: will the proposed development provide a wide range of housing types, densities, and prices support the current projected populations? It's a pretty small development. So there's really not much different going on here in terms of providing that wider range of housing that we're looking for in the town. Citizen participation. The applicant held a neighborhood meeting; 24 people attended. We received multiple emails about this request, which have been passed on to you and were the ones we had, at the time of the packet, were included in the packet. And we've had a number of concerns listed. You can read them here: Not in line with the character of the neighborhood; people in the area bought their homes based on a certain zoning development pattern and expect that to stay; concern with traffic, character, environment; having multiple backyards where they weren't expected; privacy and esthetics and diminishing views. In the staff summary, we find that the proposal is consistent with the previous and current general plans; provides the transitions from the surrounding higher intensity R-3 zones to the R1-18 across the street; the impact of two additional homes will be minimal on the area and on the traffic; and it is consistent with the density and character of the area, therefore, staff has recommended approval. I've included one additional slide here, as you have the citizens come speak about this, it might be helpful. The stars represent the properties that we had emails from of people expressing their opposition to the request. In addition to the ones shown there, we had TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 7 of 45 one with no address listed, so we couldn't put it on. And one with a property there, Kingstree and Indigo that indicated she owned two lots but didn't say which two lots those were, so I couldn't put the stars on those. Otherwise, those represent the locations of the people with emails. So again, as people come up this evening to speak, hopefully, they'll make it easy for them to identify where they're from in the neighborhood. Any questions you have for me at this time? CHAIR GRAY: Question to John, Commissioner? VICE CHAIR WATTS: Not at this time. WESLEY: Okay. CHAIR GRAY: I don't think so, John. Paula, let's go to speaker cards. WOODWARD: All right. There were written speaker cards that -- there were 11 written speaker cards against the project. And we have four speakers. The first speaker will be Larry Meyers, and the speaker thereafter is Rick Murdock. MEYERS: I won't insult you again, Chair and Vice Chair and commissioners. So out of the playbook, written and adapted many times over for Fountain Hills, we have a landowner who seeks to make more money by coming to the town for a rezone. We also have a realtor who is also seeking to make more money because the more the landowner makes, the more the realtor makes because they're probably selling the land. We have neighbors who purchased their properties, knowing that this was zoned one way. And then we have our general plan, which is written by -- I won't insult them -- people who don't take any of those things into consideration and only pass judgment for the rest of us for the benefit of the town. The town being everyone, I guess. So this playbook's been run over and over and over again. It was run on the five-acre parcel at Saguaro and Trevino when they wanted to rezone it to C-2 so they could make more money -- bought the land distressed, rezoned it to C-2, sell it for $2.5 million. Screw the neighbors who are on the hill looking at a three-story nursing home. Ran it there. Ran it at Daybreak -- blow the top off of a mountain, change L-3 lodging resort into a bunch of apartments next to multi-million dollar homes TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 8 of 45 looking down on the crappy complex. Ran it out on Ivory and Pueblo, bought distressed property, couldn't use it for what it was zoned, you guys rezoned it to multiuse with some sort of a condo thing going on upstairs, and it still hasn't been built. Let's see Kingstree and Saguaro. Bought that commercial, couldn't make that work. So now we're going to rezone that to multiuse, and we don't have enough parking for that. And then, again, we have the Target Plaza, which was bought distressed in 2014. It should have never been a shopping center in the first place, so it didn't work. So now we're going to change that into a whole bunch of apartments. The playbook goes on and on and on. And this is just another example. The people, especially across the street in those big old homes, they didn't think they were going to have a bunch of little homes across the street from them. And over the years, we've changed all of the zoning in this area so that it could be higher density. I don't blame them. I wouldn't like it either. You're devaluing someone's investment. They came here for a reason, and now you're giving them a reason to be mad. So please don't listen to town staff. Recommend not approval. Thank you. WOODWARD: Rick Murdock. CHAIR GRAY: Commission, Rick is going to speak on behalf of a large number of homeowners. So no time on the clock for Rick. MURDOCK: Appreciate it. Good evening. Thank you, Commissioners. Rick Murdock, 11200 North Indigo Drive. I appreciate the opportunity to speak tonight. And thanks to the Harr family as well for hosting the participation plan meeting that we participated in several weeks ago. Filled out their complete office with many of our neighbors that are concerned about this, that are here tonight and those that have sent letters, and unfortunately, those that may be traveling and weren't able to attend tonight. So hopefully, you can get a feel for really how that map of all the stars represents just a few, and there's much more than that. We do have a great neighborhood. We're very well organized, and we have a great deal of respect for one another. We've hosted many -- several in-person meetings with one another where we've been able to share our concerns. We've attended meetings to talk with the Harr family about the TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 9 of 45 construction and our concerns about their development. And we've shared numerous emails, more than I can count, about the concerns and how best we could come together as a one unit to present to the town our concerns about what is happening here with this rezone. We, collective -- the collective "we" that I use is that we have invested millions of dollars into this street and this neighborhood. We continue to invest as we improve the community. We do this as we build out our properties, as we expand our properties. And we've done this all as we've followed the letter of the current zoning, we knew that this was a contract when we came into place, and we continue to follow it to today. The change in the zoning that's been requested allows for variances that we believe are completely outside the character of the neighborhood. If you had an opportunity to drive this lot and you look at this space and you imagine the four homes going in there, visibly it's just hard to even visualize what that might look like because it's so tight. Allowing for these houses to be double-deep housing in here, essentially adding an internal road into our neighborhood -- in the very middle of our neighborhood, isn't really rational when giving our current residential layout here. Thanks to the staff that showed the video of current flag pole developments that have happened in this community, you saw the very first example of Chicory Street. It looks very crowded, very congested. I couldn't even tell you whose backyards were and belonged to which neighborhood there. We believe that the intent -- if you look at the current map that's shown here, the intent when this committee, not necessarily you individuals, but when this committee approved the subdivision into these four lots, the intent were for four homes to be built on this lot. Now we're here chasing after one developer's pro forma. Rather than investing in the community the way it's been, supporting the community members in the way that they've developed and followed the rules, we're asking that we continue that as we move forward. We would completely welcome two new neighbors into our street. We love our neighborhood. We know that we can bring value into the entire community, but we want to do it as the character of the neighborhood currently exists. TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 10 of 45 I think I'll close there with just saying that we hope that the commission supports what we know the vision and intent has always been for these four lots. We appreciate the time, and we hope to work with the Harr family in finding a solution here. Thank you. WOODWARD: Next speaker is James Miller, and then Ashley Gerhardt. MILLER: Good evening. Thank you for your time tonight. My name is James Miller. My wife, Rosemary, and I live at 11208, the corner lot between Indigo and Emerald. We bought the house exactly four years ago this month. And when we bought it, we asked the realtors that were involved, what about that land? Oh, two home -- zoned for two homes. Okay. That was what we expected. And you know, I think what Rick was saying and other people have said, we're looking to get exactly what we expected when we bought the house four years ago; it's not unreasonable. If you bought -- if you lived on a cul de sac in town here, and then the town decided someone would rezone, take some land out of a ravine, and make a through road, those people, they'd go nuts. They say, wait a second, we had a nice, quiet street, now we've got a throughfare. Not that a throughfare is bad, it's just not what they expected when they bought the home. The kids play on the cul de sac. They expect that there's not traffic going whizzing past. And that's what they expected. We expected to have two homes built there one day, and we expected them to be a similar home. The density of these four homes is twice what it should be, and the noise level we'll get from the homes, with cars coming out into Indigo straight from that flag lot, will be, you know, a lot more than what we've seen there. We just don't really want to change the character of the neighborhood, and we feel that this is a character changer for us. I've spoken to many realtors, and they all tell me -- I said, well, is it going to impact the value of my house? They all say yes. You've got a -- you've got postage stamp-sized homes built one house away from you, it's going to downgrade your neighborhood. The Harr family, very nice presentation they have -- they were very, very gentlemanly -- but they're talking about selling these houses for anywhere from 1.2 to 1.6. I don't know. I see houses in Fountain Hills that are having trouble selling up higher, with great views and bigger homes, and they're having trouble getting $2 million. So I don't -- I think that TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 11 of 45 1.6 is a dream. It's not going to happen. And then we're going to have homes in there that are much less valuable than ours. They're going to be less. This is a poster-sized lot. It's a lot less square footage. The homes are going to be worth less. He's trying to say, well, because they're new homes. My home is only four years old -- four or five years old, you know, it's it's not been devalued because of its age. It's still quite valuable. So I think, you know, just in closing, I'd like to say we want to maintain the same type of neighborhood we bought into when we moved here. And just like the cul de sac -- person who lived in a cul de sac and get a through street, they weren't expecting that, they weren't planning on that, and they don't want it. So thank you very much for your time. Appreciate it. CHAIR GRAY: Mr. Miller? MILLER: Yes. CHAIR GRAY: You're the southeast adjacent parcel there? MILLER: I'm the star at the top of the corner of Emerald and Indigo. 2B. CHAIR GRAY: 2B, okay. MILLER: The one that has a lot of improvements I put in -- we put into the home. Hundreds of thousands of dollars we put into the home. What's that? All legally done. GERHARDT: Hi. Good evening. I'm Ashley Gerhardt. I reside on lot 2A, 11200 North Indigo Drive. So much like Jim and what Rick has stated, we purchased these homes not too long ago with expectation that the lots would be zoned as current state. So we heard a very good presentation tonight about the reason why, and it showed some examples of zoning. But they missed the mark on the north and east properties, which my property sits directly to the north. And personally, I think has a great deal of impact here with the requirements that they're requesting, such as seven-foot setbacks. As you can imagine, that would be a little tight to current zoning. So honestly, it's very disappointing that we are here tonight to discuss these requirements that have been in place for several years and that we all bought into. The proposed setbacks will unreasonably encroach on my property, as well as the other neighbors that you see on the other lot in the Emerald Townhomes. And we've discussed these concerns with the TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 12 of 45 Harr family in their meetings. We've tried to come up with some solutions with current zoning requirements, only to receive a response that does not fit in their pro forma. That was very disheartening to hear. And I'll just close on, I support, too, the properties being zoned as current zoning. And I do feel that we do need to have some new neighbors, just not four at a time. Thank you. CHAIR GRAY: Farhad, are you going to look into Mr. Miller's permit applications? Okay. Any more speaker cards, Paula? WOODWARD: No Chair. CHAIR GRAY: All right. Mr. Harr, no time on the clock for you. But if you'd like to speak, you're welcome to. HARR: Thank you for your time. I just want to, probably, maybe hit the highlights. That the neighborhood is a mixed -- a mixed character neighborhood. The property that we are on, that whole block, including the neighbors to the north, are all zoned -- except for us at this point -- are zoned multifamily. The people to the north, if somebody were to purchase their house, they could tear it down and build apartments at this point or condominiums, and still be within the existing zoning that is on their property. The average density surrounding the area is 6.7 dwelling units per acre. The proposed density for the lots that we were doing will be three dwelling units per acre. The character of neighborhood is currently multifamily or smaller lots. There is no cul de sac planned for this lot. It's two homes sitting on the center of what would be the both lots with a easement -- two easements in the back to access the back. So yes, there are four driveways, but there's two houses on the street. The -- you know, if it's a big thing for the owners to the north of us at the 10200 hundred North Indigo, we would be happy to stipulate a ten-foot side yard setback abutting their property. They do have a six or seven-foot block wall fence there at this time. I don't know how much difference that would make, but we would be happy to stipulate to that. With the requested change, we are actually building on lots of similar size to most, well, probably 90 percent of the other single-family residential homes of similar value surrounding it. TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 13 of 45 According to the general plan review, infill is compatible with adjacent residential densities and development to protect the character of the residential neighborhoods, which I believe we're doing by buffering between two-story multifamily condo developments and single-family residences on the east side of the road, which there's if I remember correctly, there's five; four of which are on smaller lots than we are proposing. Character type typically includes lots between 6,000 and 15,000 square feet. Ours are a minimum of 11,700 up to 16,600 square feet. These lots have been vacant for 24 years since all the surrounding properties have been built. And lastly, according to the staff report, to meet the policy of the general plan, a more appropriate consideration would be to have smaller lots to achieve a density of six to eight units per acre for more variety of housing options. We're proposing three units to the acre, which is half or less than what the general plan suggested. So thank you for your time. If you have any questions, I'd be happy to answer them. CHAIR GRAY: Commissioners, any questions for the applicant? Commissioner Kovacevic? KOVACEVIC: Yeah. A ten-foot side -- I assume the houses are going to be oriented -- it would be to the east. HARR: The the houses, the front of the houses will face east, the rears where most of the open space is -- KOVACEVIC: Okay. HARR: -- will be to the west on all four lots. KOVACEVIC: And what do you anticipate the -- I mean, with a 103-foot minimum frontage, what do you anticipate the width of the houses to be? HARR: They'll be in the 68- to 74-foot wide, which is about typical for all the properties to the to the south or to the east, the four lots there. I don't know if there's a specific -- there's no designator on there, which those lots are. Yeah, those four lots. I think they average 86-foot wide lots. And they're probably, my guess is they're probably under 70- foot wide homes on those lots. And then as far as the two lots to the north, I believe TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 14 of 45 those lots -- and this is going from memory -- I believe they're 89- and 96- or 97-foot wide. The zoning as it is, of our specific property of R1-18 requires 120-foot-wide lot. And I'm going to try and look up really quick what are frontages are on the lots that we were -- that we are proposing. Here it is. An average of 103 feet. KOVACEVIC: Do do the lots narrow as they go back? HARR: No, they do not. Not -- well, a little bit, but not. KOVACEVIC: Not a lot. HARR: But the frontage is still - KOVACEVIC: I'm -- HARR: -- exceeds any other lots. KOVACEVIC: Okay. HARR: Except for the one directly across the street. KOVACEVIC: Because just the one thing and I appreciate your offer to -- your stipulation of a ten-foot side yard, but that's still only ten percent of the width of the lot. HARR: But typical sidewalks are either seven foot or ten foot. That's the -- that's the zoning and the building setback and the people -- which is the correct? Well -- sorry. UNIDENTIFIED SPEAKER: Broke it. HARR: Okay. That would be better. This property here and this property, their average side yard setback is ten feet. And so they were asking -- what I got out of the conversation was that the owners of this lot were saying that they have a ten-foot side yard setback on the the left side of their house, which would be the south side. And were -- felt that the seven-foot setback that we would have abutting their property wasn't the same. And so we're saying we would meet that ten-foot side setback on that side of the property, so it matched their setback. That make sense? KOVACEVIC: Yeah. That makes sense. As my experience with these is pretty much a -- and it's not necessarily here, but a ten percent side yard. HARR: That's not the case -- KOVACEVIC: -- is -- so anyway, that's where I was coming from because it's not ten percent. So --okay. TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 15 of 45 HARR: Again, just to reiterate, the typical side yard setback is anywhere from seven to ten feet in the building envelope requirements in Fountain Hills. So what we're offering is to go to the same that they have on the lot next door. KOVACEVIC: Okay. CHAIR GRAY: Before -- Commissioner Watts, I'll get to you. But before we move off of that -- and, John, maybe you can speak to this, maybe you can't. But what's interesting about the prior subdivision of these -- the original lot to the current lots is we've had other zoning cases in the past where we've actually turned down variances. The one on Trevino sticks in my mind. Trevino and Nelson, there's a parcel there that was R-1 to 34. When it was subdivided, all of the original setbacks were required to be retained in that. Why would this be different? Because we would have gone from side yard setbacks here of 20 foot now down to 10, and now we're saying down to 7. So is there precedent there? WESLEY: Let me just see if I can follow your comments. Are you talking about on these two lots or the lots to the north? Or on other lots? CHAIR GRAY: Well, I'm just saying, once upon a time, this -- what's in green there was 1 to 34, right? WESLEY: No. CHAIR GRAY: It was never. WESLEY: No. It's always been R1-18 from the original zoning at the time. CHAIR GRAY: Okay. I thought that that was 1 to 34, which would have had 20 yards. So it was always ten? WESLEY: Yes. CHAIR GRAY: Okay. Okay, Commissioner Watts. VICE CHAIR WATTS: You mentioned that those lots have been vacant for 24 years. Why? HARR: Well, they've been vacant for 50-some years since the town was built, but it's been -- I was referring to the -- VICE CHAIR WATTS: Well, I guess the question really isn't how long, it's why. And with TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 16 of 45 this market, the way the real estate market is, and the way lots get snatched up here, why have they been sitting for so long? HARR: Well, my guess is because of -- they're surrounded on two sides by two-story multifamily structures. SEVERAL UNIDENTIFIED SPEAKERS: No. That's not correct. VICE CHAIR WATTS: Okay. And this is the second time in recent history that I've heard reference to the general plan that you don't want to make any concessions other than that ten-foot setback to a seven-foot -- or seven-foot setback to a ten-foot setback. Any other concessions? HARR: Nobody has asked for other concessions other than us to just build two homes, one on each lot. VICE CHAIR WATTS: Okay. And you told the residents that were at the meeting that it wasn't in your pro forma to just build two homes there? HARR: What I probably said is it did not make financial sense based on the size of these lots and the fact that they're surrounded on two sides by multifamily, to be able to build a house to generate the income -- the sales price to pay what we're having to pay for these lots. It's not -- it's a financial decision. VICE CHAIR WATTS: Okay. Thank you. HARR: Which is probably why they haven't sold in the past. CHAIR GRAY: Commissioner Corey. COREY: Yes. Hi Mr. Harr. HARR: Hi. COREY: I think I read in one of the comments that one of the neighbors was concerned they would have two yards adjacent to theirs; maybe that was in 2A. So is that the way that that configuration would be set up? They would be split in the middle and then have two yards next to their property? HARR: John, can you go back to that screen (indiscernible). COREY: With the red lines, yeah. Thank you. The one you accidentally went to earlier. HARR: Both of these -- so this is the property of the person who made that comment. TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 17 of 45 COREY: Okay. HARR: And so there would be two side yards. These two lots would abut their property. What I can say -- what I can say is that these are side yards -- COREY: Okay. HARR: -- they're not the backyards. So it's not like there's going to be pools or anything else, especially on the front lot. There's no -- there's not going to be any pool or area there that is going to create, I would think, a lot of noise. Yes, there -- it's possible that somebody will put in a pool here or play in their backyard. Same thing for here. But you know, with this -- with a ten-foot side yard setback, if that was approved, that's not space to do anything on the side here. COREY: Okay. So it could be a portion of that backyard but just not directly facing it? HARR: Correct. COREY: And then, if I'm imagining where all four driveways would be, there's two in the middle. HARR: Um-hum. COREY: And then where would the other two be? HARR: They would be on the opposite sides. So on the far right, the far left. COREY: Okay. Just concerned about that house that is -- HARR: 1104? COREY: -- directly -- is it 1104? Looks like they may have four driveways facing them. I could see a lot of lights hitting that house as the people are leaving their driveways there. Was there any other configuration that you looked at? HARR: Not that would be able to allow us to build a house of the size that we would want to build, to be able to support and not diminish the value of the homes in the neighborhood. COREY: I'm seeing this -- so I'm just seeing that dirt road on the bottom left there. Was there any configuration that, maybe, would have one driveway on the left with one home in the back instead of four, or any other configurations that you looked at there? HARR: Entirely possible. You know, I mean. TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 18 of 45 COREY: Okay. Because I could definitely see driveways would be a concern there. CHAIR GRAY: Even if it is, you could put a (indiscernible) over it. COREY: That might just be less impactful to the neighbor there. Okay. Thank you. CHAIR GRAY: Commissioners -- Commissioner Dapaah? DAPAAH: Yes. So Mr. Harr, what are you looking to do by design? What, two-, three-, four-bedroom homes? HARR: They're all three-bedroom plus den. Triple car or bigger garages. One level. Mostly contemporary styling because that's what buyers want right now. And then nice outdoor areas in the back for patios and outdoor living. DAPAAH: Yeah. HARR: It would be in the 20 -- I think 2,400 square feet is one of the plans that we've designed. The others would be in the 2,800 feet range, 2,900 feet range. It would be probably priced in the 1.2 million to 1.6 million range, because, economically, that's what it has to be based on the cost of building today, and plus the cost of the lots, the long driveways, in the case of the two in the rear. And I believe we actually had our realtor do us a map of the area. I don't know if it was included in this package. It was included in the package, too, when we had the -- what was it called? The meeting that we hosted shows Zillow values for the area -- the houses in the area and our homes would be right in with what the values of the existing homes are, both on Indigo and on Emerald Drive. DAPAAH: So John, as dense as the area is now, what has been the process to make sure that the infrastructure is good for homes? WESLEY: Chair, Commissioner Dapaah, at this point in the process, it's maybe somewhat minimal. We have been looking at the subdivision plat. It has been reviewed by the town engineer and also by the sanitary district, and nobody's raised any concerns about infrastructure capabilities in this area at this point. HARR: If I may follow up with that? We have checked with both SRP and the water company, and they have the facilities there. They would -- we would not have to tear up roads or anything else. It would just be additional taps. TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 19 of 45 DAPAAH: Thank you. CHAIR GRAY: Commissioners, bring John back up? VICE CHAIR WATTS: I got one more question, before we do that, if you would? CHAIR GRAY: No problem. VICE CHAIR WATTS: The 22 to 2,800 square feet that's a livable area. What's the footprint of the house? HARR: I think it ran almost up to the 4,500 square feet between covered patios, garages, and front porches. VICE CHAIR WATTS: And that's -- HARR: Which, really, it did not exceed our our allowance of imperviable area. VICE CHAIR WATTS: And that's for the three-car garage. But you couldn't put a four-car garage in because that would push it over? HARR: On one of the lots we plan on a four-car garage. VICE CHAIR WATTS: You could do a four-car? HARR: Yes. VICE CHAIR WATTS: Okay. I just want to clear -- make clear was livable -- HARR: Yes. VICE CHAIR WATTS: --and what the -- what the footprint was. HARR: Yeah. That is actual livable square footage. Again, it's three bedrooms, three baths, a den, a great room concept as well. We typically build -- the homes we build in Fountain Hills are in that same typical 2,800 to 3,000 range. They're in the 2 to $2.5 million range. This is a -- this is an opportunity for us. My background -- our background are family homes. As we built 3,000 homes over the last 49 years, most of them were back in Washington State, where it was more of a -- affordable housing back then, which is a real great desire of ours to provide housing to anybody that -- VICE CHAIR WATTS: Thank you. HARR: -- we can. COREY: Just one more quick question for Mr. Harr. The lots in the back, and I'm not familiar with, like, the elevation back there, but is there any -- what would be the -- is TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 20 of 45 there any view back there for the homeowner? HARR: When you're on those lots, and you know, you see the -- this area right here, this fence? COREY: Yep. HARR: There is no fence there right now. It just looks onto the condominium units right behind it. We've shot our grades, and by the time we put in a six-foot masonry fence, it will have views of the McDowells. COREY: Okay. HARR: And it will not be looking in the windows of the units behind it. The actual -- the fence will come up above the window height. So we'll see a little bit of that roof, but it will have McDowell's. And then if you -- if you were able to look this direction, you actually will get Four Peaks views. The lots in the back might be (indiscernible) because of the views. COREY: Okay. UNIDENTIFIED SPEAKER: That is not correct. Incorrect. We live there. I walked over there. I live in the corner, and when you put six-foot-high fences, people on the first floor will have no view. People on the second floor will have a nice view into the backyard of the people. But that's it. HARR: I'd be happy to meet you there, and we can show you. I mean, we -- UNIDENTIFIED SPEAKER: The lots are like 12 feet above the parking lot of every (indiscernible). Are you talking about Main Street, or you're talking about the -- UNIDENTIFIED SPEAKER: We're talking about Four Peaks. I'm talking about that (indiscernible) right there. HARR: Yeah. MILLER: the ones they're building on the south side there, those would be the ones that are somewhat in question. The ones below that are way down below that. Anything you put up is going to experience -- WESLEY: The person recording this is not able to get this, plus, anybody watching TV they can't hear any of this discussion that's going on, which probably should come to the TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 21 of 45 mic if you're going to allow it. CHAIR GRAY: Yeah. Mr. Miller, do you want to come up and repeat some of that? We we've got folks watching at home and a transcriber. MILLER: Those are all condos that you're looking at there. The ones that are to the southwest there, those are up higher than the other condos. The other condos that split they are way below the ground. My house sits on the corner there, and then they're quite far below me. So any view that they have over there, any type of -- any type of wall or fence, they're done. And most of those people don't have a view on the first floor anyhow. It's the second floor people. Now, as you go for the second half to the south of those condos, I walked over there and looked at them and stood there, and currently the people on the first floor have a view of the mountains. You put up a six- foot-high -- they're like this. You put up a six-foot-high fence like this. The closer you are, the more elevation it's going to take to see. You won't see them. It's not going to happen. And the people on the second floor will see over the wall right into the backyard of these people. I also think that -- you know the traffic -- you know, those people in the back lots there, they're not going to be backing out of that lot. They're coming out headlights first. And so now we've got that. And if you put a three- or four- car garage in some of these homes. You know, I think you're going to have headlights coming out on the street all the time, and -- and people like Vicki (ph.) and stuff like that, you know, who live across the street of that are going to get that in their face all the time, which they don't currently. Again, it's the character of the neighborhood is changing to the point where, you know, you sit in your house, and you get headlights that are right in your windows, and you say, who's here to see me? Nobody. Just somebody who's leaving. There's four houses there now. Certainly, two of them are going to come out head first all the time. HARR: Maybe for a point of clarity, and I'll show this again. From this point here on the property, to this point here on the property, there's nine feet of climb, according to a survey topography. And so that is why this backyard here actually sees over this fence and across there and has views of the the mountains. TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 22 of 45 CHAIR GRAY: John, let's bring you back up. MILLER: Can I ask one more -- one more question before you go. On the on the north, are you building a fence or wall screening on the north end of the property against the single-family lot? HARR: There already is a six- to seven-foot wall on this whole length of property. MILLER: Okay. HARR: We will be building a wall here. And then we'll be building a wall coming down this way. MILLER: Okay. HARR: Which this -- and this wall because the topography from this point to this point also rises quite a bit. People on their patios here will be able to see over the wall. UNIDENTIFIED SPEAKER: No, they won't. UNIDENTIFIED SPEAKER: No possibility. HARR: Okay. CHAIR GRAY: All right. John? So, I guess, first and foremost, this is a zoning case. So we can talk about walls and views and everything, and it's all hypothetical, right? WESLEY: Correct. CHAIR GRAY: If I was going to develop these lots at this price point, I'd be putting a two- story structure in what precludes that from happening in this rezone? WESLEY: Mr. Chairman, both the existing and proposed zoning allow up to 30 foot of building height. There's nothing here that could -- prevents that from happening. CHAIR GRAY: What's that? Can you repeat that? WESLEY: The current 1-18 and the proposed R1-10A both allow 30 foot of building height, so there's no change in that. Saying that's allowed on all the surrounding lots. CHAIR GRAY: Has the town done any analysis on why these lots haven't been developed historically? WESLEY: No. CHAIR GRAY: It seems to me watching them over time, it's purely price point of the lots with the current ownership. And I'm not sure that that's a really good reason to force TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 23 of 45 something into a rezone, but it's something to consider, nonetheless. General plan, we reference a lot. We reference it every month that we sit here, I think. I think I've always interpreted the intent of the language in the general plan to be geared towards soaking up the vacant C-1 and C-0 and essentially converting, doing a lot of what we've done over the years here, which is convert commercial to residential. Do you feel that this is in line with that intent being underlying residential already? WESLEY: So yes, Chair. The general plan is meant to cover all different types of land use and development aspects within the town, including situations such as this, and giving some guidance and direction for the things the commission and council should look at in considering whether or not a request is appropriate for the town. CHAIR GRAY: Didn't really answer, though. WESLEY: So -- CHAIR GRAY: I mean, so words on the page aside for a second, the underlying intent or the spirit of it is really, when we set that up, it was to soak up -- it was to soak up vacancies, right? But it was predominantly geared towards soaking up commercial vacancies. Which can have and we've seen evidence of it, it can have impact on existing adjacent stakeholders. I don't think we really intended to apply that to residential and down zoning. WESLEY: Chair, I guess I can agree in part and disagree in part. CHAIR GRAY: I figured you would. WESLEY: The language with regard to infill development is intended to look at all types of development that could occur. Now, for the most part, the residential situations that we have are a lot here and a lot there -- see if I've got one of these maps that kind of has some of that if we go all the way to the last one again. But yeah, so for instance if we look at this lot just to the east here, I believe it's undeveloped. And so certainly we would expect, in terms of infill on that lot, it's more in the middle of the neighborhood for the general plan to suggest anything other than maintaining exactly what's there. CHAIR GRAY: We wouldn't expect it. WESLEY: You would not expect that. But here where you've got a different set of TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 24 of 45 circumstances and the variety of zoning that's going on around it and the variety of dwelling types that are going on around it, you could think that it's not unreasonable for a property owner to want to do something that blends a little bit more with those surrounding uses. And so yes, the general plan was meant to give at least some level of guidance and thought on how do you look at that. It is general, though, as stated. And so what is the character and what impacts character, and how to maintain the character, that is an important aspect of it. And would, in the Commission's view, the proposed change, change that character or somehow take away from that established character of the area? If you believe that is true, then you should recommend denial. If you feel that it is consistent with what's there and would just continue to add to the overall land use quality and development pattern, then you could recommend approval. CHAIR GRAY: So I mean -- I'll answer. I'll answer split by return here, I guess. As zoning principles go, this makes sense, right? I mean, if you were to do this -- if you were to do this in a blue ocean, carte blanche, let's zone forty acres of state trust land, this makes sense. Whether it's 1 to 7, whether it's 1 to 10, whether it's 1 to 18, it all makes sense. It's all hierarchical, it's all step up or step down, right? What I want to be really careful of is that we don't look at a recommendation through the lens of the general plan as though it's prescriptive, right? So it's got to be applied in consideration of the context of all of the other adjacencies and the stakeholders, and I guess, frankly, the investments that have been made. So I just want to be clear that it's a guiding principle -- WESLEY: Yes. CHAIR GRAY: -- but it's to be applied to the situation, not a mandate. We hear so often that it's a mandate. The general plan is in place, and we're supposed to drive more residences into holes in the map. And that's just not always the case. WESLEY: Correct. So I guess, maybe a couple of things I can add to that. Hopefully not belabor the point too much. CHAIR GRAY: I like belaboring things. WESLEY: By statute, in order to approve a rezoning, you need to find that it is consistent with the plan. So that is one of the founding reasons here, why we review the general TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 25 of 45 plan. If what's been requested, you believe is not consistent with the general plan, then you really shouldn't, couldn't recommend approval. The previous general plan was much more prescriptive by showing specific land use types and densities. So the previous general plan showed this at multi-residence four to ten units per acre. So, actually to do this rezoning, they would have also had to do a general plan amendment under the old plan to reduce that density. So it would be consistent with what was being proposed. We went from being that prescriptive to something that gives more flexibility to the commission and council to really take into consideration what's going on in the area as part of making that recommendation. It makes it harder in some ways but gives that an opportunity for really thinking about an area and what's important, rather than just to color on a map. CHAIR GRAY: Changing gears a little bit here, has town staff seen any sidings or side adaptations of structures on the parcels yet to see how all these relationships work? WESLEY: Chair, it seems like they showed us a sketch one time. I have that in my mind, but I look back through the documents that were submitted, I don't have one. And so either I'm thinking of something else, or they just showed it to us and didn't submit it. CHAIR GRAY: Okay. Commissioner Watts? VICE CHAIR WATTS: John, I think the first thing that caught my eye is in the staff recommendation, it's a proposed slight reduction. When it's a 45, 40 percent reduction in size, I don't consider that slight. Is that just a typo? Because that -- you know, going from 18 to 10 is more than slight. WESLEY: Chair, Vice Chair, without going back to seeing where I put that in, as I recall, what I was thinking was in terms of the overall density of the area. VICE CHAIR WATTS: Okay. WESLEY: Rather than the specific lots. VICE CHAIR WATTS: But it says in lot -- a reduction in lot size. So I think that's a little bit disingenuous. I'll accept the fact that it was maybe an improper word or an incorrect word at that point in time. But the the sentiment that I got was, that's doggone near a 50 percent reduction, which I don't consider slight. I have the same concerns, without TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 26 of 45 seeing any elevations, without seeing what the actual orientation is, we heard what the applicant said about orientation of the homes and so on, but they could just as easily turn the houses north and south, east, west, whichever way they wanted to. So I'd like to see some elevations before I support this. And the last thing is -- CHAIR GRAY: It's nonbinding, so it doesn't matter. VICE CHAIR WATTS: I understand that, but still. And the last thing is, I'd really like to help our town council along by doing what they profess to do, which is listen to the public. And I haven't heard one person other than the applicant be in support of this. And if the town council truly believes what they say, which is we listen to the public, then they'll go along with denying this. And if they don't, then their words are for naught. Thank you. CHAIR GRAY: Commissioners, any other discussion? MILLER: Can I make one comment? CHAIR GRAY: One second. Anything else, guys? KOVACEVIC: Well, just a comment. I know you mentioned that it is a variety of housing. But I think given the location, how it's more on -- are we talking -- is this Indigo? I forgot what the road was. Yes. It's more -- I kind of see it encroaching a little bit because the other properties you kind of enter from other areas. So I understand what the goal is here, but I can also see how it is not compatible with the residents that are on Indigo. Given that, it kind of seems like we're encroaching on those properties a little bit. So I can see that. And when we talk about -- you know, this is very difficult because we've had many different discussions like this. When we talk about zoning is a promise, I think about that more so when we're talking about residential properties, because somebody bought their property, and they expect that the land around it would stay the same. If it's commercial, it's a little bit different. We have flexibility for mixed use housing around there. But I hear that what the neighbors are saying here, when they knew this was two lots, I would be concerned looking at splitting this into four. But I also wonder if there's, like I mentioned earlier, any -- was there any discussion on maybe splitting it into three. I think the two that are on the front of Indigo would be sufficient. And if TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 27 of 45 there is any room to maybe fit one in the back there, maybe that would be a compromise. But I think four is a little bit against the plan for that area. CHAIR GRAY: Mr. Miller, do you have a comment? MILLER: I'm just going to make my comment. MURDOCK: Chairman, Vice Chairman, you both asked a question about why these properties have sat vacant for so long. It's because the owners of the Indigo or Town -- sorry, Kingstree Condos, went in together and purchased this property, and they've held it back from the market, especially when we subdivided it into four. They immediately knew what the current zoning they could go to 30 feet blocking their views. So they -- four families got together, purchased those lots. It wasn't until recently that they passed away and moved on that these lots came to the open market. An investor bought it a few years ago. It sat vacant since then, and now we've got the Harr family moving in. And to the question, I think one of the commissioners was talking about with the number of people that are impacted here because of the density is high, we're talking about several hundred people that are involved in this particular lot being over- developed. And so that's what we wanted to call out as well. So thank you. COREY: Rick, which -- can you clarify, you at that property right above, right north to it? MURDOCK: The first part of the drive. COREY: The first one? MURDOCK: Yes. COREY: Okay. CHAIR GRAY: All right. Commissioners, any final discussion? DAPAAH: Yeah. CHAIR GRAY: Commissioner Dapaah? DAPAAH: Yeah. It's a straightforward zoning case, and we're the zoning commission. I believe that the use transition from the R-3 high-density residential to the low-density residential is entirely appropriate. And I don't like the flags. I don't like the -- I would like to hear the developer decide to have a larger side yard to the north, but I'm inclined to support the development. TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 28 of 45 CHAIR GRAY: Commissioner Corey? COREY: I'm done. CHAIR GRAY: You're sure? COREY: Yeah. CHAIR GRAY: Okay. I don't often go against Commissioner Kovacevic. I'm really kind of torn on this one. Mr. Harr, I know you do a very nice product. I've seen several of them here in town. I do completely concur with Commissioner Kovacevic that as zoning principles go, it's an appropriate step up or step down. There's no dispute there. The difference here is the citizen participation and the adjacent stakeholders. I mean, normally, we see a ratio of for or against or those that are rather agnostic. And in this case we're, I've got all the tick boxes in the against category. I think the reason we're here is the price point that the current investor wants to get out of their parcels, and I don't see that as a reason to change the rule book given the adjacency. So if this was first in and the rest of the lots were vacant or still with MCO, that's a different story. But this is last in, and I don't think that we're obliged to change the rule book to make that pro forma work in this case. Absolutely appreciate the conversation between residents and developer and town staff. We get a lot of these that are not amicable. And I think from what we've observed tonight, I think you guys have held the bar pretty high in that regard, so very appreciative of that. But in this -- in this particular case, when we consider the intent of the plan, the change that's related to the ask, and the adjacent stakeholders I'm going to be a recommendation to decline on this. But I'll withhold a motion for Commissioner Watts. VICE CHAIR WATTS: I move to deny the application for rezone, and I don't have the details, but the summary version. CHAIR GRAY: You don't have. VICE CHAIR WATTS: I can scroll up and get them. CHAIR GRAY: Yeah. Put them in the motion. VICE CHAIR WATTS: Hang on. I move to deny the rezoning of 11044 and 11052 North Indigo, located on the west side of Indigo Drive, north of Kingstree, from R1-18 to R1- TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 29 of 45 110, to allow for the construction of single-family homes. CHAIR GRAY: Commissioners. A second to Commissioner Watt's motion. DAPAAH: Yeah. CHAIR GRAY: Commissioner Dapaah? COREY: I'll second that as well. CHAIR GRAY: Commissioner Dapaah seconded. Commissioner Watts has made a motion to forward a recommendation to the town council of denial of the rezone on the basis of context discussed here tonight. Commissioner Dapaah has seconded that motion. Paula, let's go to a roll call. WOODWARD: Commissioner Corey. COREY: Aye. WOODWARD: Commissioner Dapaah. DAPAAH: Nay. CHAIR GRAY: You just seconded it. DAPAAH: Oh. I'm sorry. I meant no, not to change the zoning. So sorry about that. CHAIR GRAY: That's a double negative. Paula, he means, aye. WOODWARD: So you want to backtrack? CHAIR GRAY: Let's start over. WOODWARD: Okay. All right. Commissioner Corey? COREY: Aye. WOODWARD: Commissioner Dapaah? DAPAAH: Aye. WOODWARD: Commissioner Kovacevic? KOVACEVIC: Nay. WOODWARD: Vice Chair Watts? VICE CHAIR WATTS: Aye. WOODWARD: Chair Gray? CHAIR GRAY: Aye. WOODWARD: Four, one. TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 30 of 45 CHAIR GRAY: Thank you, Paula. All right. We are going to backtrack to agenda item 5, consideration of possible action in regard to the annual report and the implementation of the Fountain Hills General Plan 2020. Farhad, let's give the room a couple minutes. WOODWARD: It's four, one. CHAIR GRAY: Oh, Paula, let's just do a quick five-minute recess. Let everything clear out. [RECESS] CHAIR GRAY: All right. Farhad, let's continue the party. TAVASSOLI: Ready, Mr. Chairman. CHAIR GRAY: Yes, sir. TAVASSOLI: Or should I wait for Paula? CHAIR GRAY: Do you want me to do it? I've never done it. Ever. TAVASSOLI: I'm used to it. CHAIR GRAY: Not in my DNA. TAVASSOLI: All right. Mr. Chairman, members of the commission, as you recall, I came before you with the annual report highlighting the progress we made in implementing the general plan in the calendar year 2023. I highlighted for you, I guess, progress as far as the implementation is concerned. At the conclusion of that meeting, I was asked to revise and resubmit, following some corrections to some typos and also removing some references to the environmental plan, particularly the reference to biophilic design -- actually, any reference to the environmental plan was removed altogether. And I have also added some page numbers and there were some comments made by the public as well, and I've tried to reflect those in this revision. So -- CHAIR GRAY: Can I ask you, while you're on the word "biophilic", did it actually prove out that the council had taken action to remove that from the plan? TAVASSOLI: Mr. Chairman, members of the commission, I believe staff is still seeking some clarification with council members. That has been -- those discussions have been TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 31 of 45 taking place -- CHAIR GRAY: Okay. TAVASSOLI: -- outside my realm. CHAIR GRAY: Okay. TAVASSOLI: And for the time being, I -- CHAIR GRAY: I was just curious. I mean, I -- TAVASSOLI: Right. CHAIR GRAY: -- the letters and the word are a little out of context, and I just -- a solution to that is to tie it down to the American Institute of Architects' definition of biophilic. If that continues the Ninth Circuit's version. TAVASSOLI: So yeah. If you have any more questions, I welcome them. CHAIR GRAY: I just wanted to ask you just for the sport of it, really. We talked a little bit about the, well, a couple things. So look at my highlights here. We talked a little bit about the state trust land and is that -- is that really a viable aspiration or study for the town? I don't suppose in a month we've learned anything from State Land Department, but any anything new on that contextually? TAVASSOLI: Mr. Chairman, I don't have anything new -- CHAIR GRAY: No. TAVASSOLI: -- on that. CHAIR GRAY: And then we talked a little bit about the -- on page 5, let's call it paragraph one, two, three, four, paragraph 5. The visitor analytics software under economic development. I'm just curious. I have no real feedback on that as a bullet point in the report if it's accurate, but -- and maybe I should just table this for later, but I think it would be interesting to understand that a little bit. Just contextual understanding, what is the software, and what do we actually get from it? Not that it relates to zoning, but that's interesting to me. And then let me find my last -- just one clarity, in page 11 of 11. Middle of the page mid-range and long-range goals. Under goal, work with ASLD. I didn't see Arizona State Land Department and then ALSD identified earlier in the report. Maybe I walked past it, but might just spell that out. TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 32 of 45 TAVASSOLI: Okay. CHAIR GRAY: I don't think most are going to know what that is. And I missed my other. TAVASSOLI: Mr. Chairman, so that was goal was taken verbatim from the general plan. But I could in brackets. CHAIR GRAY: It just -- it took me a second to ALSD, what's ALSD? TAVASSOLI: Right. CHAIR GRAY: I have to find -- I've got one more. Sorry, Farhad. TAVASSOLI: No. No problem. CHAIR GRAY: Page 5 of 11, paragraph 3. And again, nothing wrong with it as a component of the report. But something I'd like to understand is it says, "2023 calendar year, following parking review, staff entered a contract with a consultant." That's after the parking table adjustments that we -- I think we did that in early '23, right? TAVASSOLI: Right. CHAIR GRAY: Is this a new -- is this layered on top of that? TAVASSOLI: Right. This follows that, Mr. Chairman, and this is particularly focused on the downtown area. The parking -- the adjustments that you're talking about that were approved last year, earlier last year, those are townwide. CHAIR GRAY: And being an outside consultant, is that contract -- that's with the planning department, or is that with -- TAVASSOLI: Mr. Chairman, that's what the Public Works Department. CHAIR GRAY: Public Works Department. So it's not with the town attorney, then? TAVASSOLI: Not. CHAIR GRAY: Okay. TAVASSOLI: Not having seen the contract, I can't say for sure, but I know this is a joint effort between the Public Works Department and the -- and the consultant. CHAIR GRAY: I was just curious, contextually, what would be the difference in that consultant study and the other studies we've been talking about of late. So I'll yield. Commissioner? COREY: Yes. All right, Farhad, just the one thing that stood out to me was in the TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 33 of 45 immediate goals was the staff plans to kick off a -- kind of almost like, project management kind of work for all the capital improvement projects. TAVASSOLI: Um-hum. COREY: So you were saying here, the -- here it is, "The plan monitoring system coordinating with capital improvement projects." CHAIR GRAY: No. COREY: So it almost looks like there's not a whole lot of organization around what's being done and what needs to be done. And you said there were some issues during COVID. CHAIR GRAY: That's all outlined. COREY: So what's the status of that? Have they figured out some sort of mechanism for tracking all this? TAVASSOLI: Correct. Mr. Chairman, commissioners, I mentioned somewhere in this report that we're going to be forming an ad hoc group. COREY: Yep. TAVASSOLI: Between mostly planning and public works, to kind of coordinate and jointly discuss the Capital Improvement program, in which policies in the general plan those aim to implement. COREY: Okay. When you say "planning," is it the planning department? Like, you wouldn't be engaging us or -- TAVASSOLI: It would be -- well, it would be the planning division, which is really myself and perhaps John, but we're within the Development Services Division. Yeah. Or Development Services Department. COREY: Got it. Okay. So that hasn't kicked off, but that is going to be a group that starts to evaluate -- TAVASSOLI: Yeah. That is -- we still intend to get that going this summer. Okay. COREY: Yeah. It sounds like that would be a good idea to kind of get a grasp on planning all those activities and organizing them appropriately. Okay. Thank you. CHAIR GRAY: Commissioner Watts? TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 34 of 45 VICE CHAIR WATTS: I think the first comment is the last couple of pages when you consolidated the things that were scattered in the original presentation. You did a nice job of summarizing them, so the topics that I'm scrambling to try and tell you exactly which ones, but it's where you've got short-term goals, and then you've listed each of the goals. And they were kind of scattered in the original, and now you've consolidated them. So that makes it much easier to read. I was curious about in the Pumphouse Project on page 4, the word "local" is gone. TAVASSOLI: Yes. VICE CHAIR WATTS: I thought the original approval was for local artists only. Did we change that? TAVASSOLI: Mr. Chairman, Commissioner Watts, I cannot say for sure. I've been -- again, that's another, I guess, dialogue outside my realm. It's between the Community Services Department and perhaps whichever artist they're soliciting for their work. But I have not been involved with the Pumphouse Art Project, either directly or indirectly. VICE CHAIR WATTS: But my point was that if it was originally approved for local artists, we don't really have the ability to change local to anybody. And that's what this document is now saying. No, you don't agree? CHAIR GRAY: Well, I get your point, but this document isn't changing anything. It's merely 60,000-foot reporting out on delivery of the general plan. So if you want to put the clarification and put it in, but it's not -- nothing in this changes -- VICE CHAIR WATTS: The original plan? CHAIR GRAY: Correct. VICE CHAIR WATTS: Okay. No, I agree with that. So this is kind of a summary of where we're at today. So shouldn't we include what the original verbiage was, which included local. CHAIR GRAY: Or go the other way and say it's been expanded out? VICE CHAIR WATTS: That's fine, too, because part of this is conditioned upon these being amendments. And if it's an amendment, if it's deleted, then it should be noted as an amendment. TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 35 of 45 TAVASSOLI: Okay. CHAIR GRAY: Recommended amendment? VICE CHAIR WATTS: Or recommended amendment. And Chairman Gray stole my, the results viewable for the visitor analysis. So I'd still like to see that. I'd still like to see the safe design. And I think one of the notes that on page 5, I'm pretty much sure I made a comment about including the Indian community because they are part and parcel of the garden center -- TAVASSOLI: Yes, you did. VICE CHAIR WATTS: -- and we don't have that. Is there a reason we don't have it included? Are they not? TAVASSOLI: Mr. Chairman, Commissioner Watts, yeah, I do remember you making that that comment. Although, it seemed like that comment, as you had written in your red line, was out of place. So what I did was the reference where I did make reference to merely tribal communities, I believe it was -- let me find that bullet here. Page 5, last bullet where I talk about the grants. That was the only place where I mentioned, in the original report, I had mentioned the tribal communities, and in this case here, as you can see here, I actually mentioned them by their proper names. Fort McDowell Yavapai Nation, as well as the salt River Pima-Maricopa Indian Community. VICE CHAIR WATTS: Right. No, I see that there. I didn't know if there was any necessity to give them recognition in relation to the community garden, though. I know we've got some -- planted some beds up there that -- and I don't remember exactly how many kids are working those garden beds. TAVASSOLI: Okay. I -- you know what? Maybe I didn't find that reference to the -- with the tribal community and their involvement with the community garden. VICE CHAIR WATTS: Yeah. Because I think it's good that we've got the tribes mentioned in the grants, but -- that's positive, but that recognition in the community gardens as well, I think if we can -- TAVASSOLI: Okay. I see the point that you're trying to make now. VICE CHAIR WATTS: Yeah. It's -- TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 36 of 45 TAVASSOLI: I did not know they were involved and -- VICE CHAIR WATTS: Yeah. They're -- TAVASSOLI: Yeah, I see. VICE CHAIR WATTS: On page 7. This is kind of out of context, I'll admit that. The natural resources and the fourth bullet point, where we require restoration of disturbed areas of native plants. Is that only applicable to construction, or is that anytime, anywhere? Is there another building a town code that requires it? If somebody lets their landscaping get out of hand or it's not complete? TAVASSOLI: Yeah. Mr. Chairman, Commissioners, so this reference is made particularly for residential projects, projects that are on -- that are what we would classify hillsides where the slopes are greater than 20 percent or more. Now there may be some cases -- so each hillside lot has a disturbance limit depending on size and slope and so forth. So in cases where they do need to exceed that, for example, to provide, for example, like a construction corridor around the property or if there's like a slight disturbance outside the disturbable boundary, those areas need to be reseeded with native vegetation prior to inspection. VICE CHAIR WATTS: Okay. I think that answers it. We've got some expansion on it because of fire requirements now. But that's a different topic, different day, so. And then the last thing is the project management chart as well as the capital improvement projects. Is there something in the works to do, something like a project chart or a Gantt chart to show what the processes are going on and where they're at in their whole scope? TAVASSOLI: Right. Mr. Chairman, Commissioners, I believe there will be -- I'm sure there will be a visual representation of all this following our ad hoc meetings between public works and myself. VICE CHAIR WATTS: That will be next week? TAVASSOLI: Well -- VICE CHAIR WATTS: Thank you. TAVASSOLI: It'll certainly be there for when I come to you about this time next year for TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 37 of 45 the 2024 calendar year. VICE CHAIR WATTS: Thank you. CHAIR GRAY: Farhad, I want to clarify for Commissioner Watts, he indicated that I stole words from him. I just want to point out I was actually faster to my mic than he was. Commissioner Corey? COREY: Commissioner Watts, they'll add you to their JIRA board, you can see all the activity. One thing I noticed you mentioned the Pumphouse Project, and I was just going back to reading this. I don't know if you -- you said local, and I don't see local in here. And I know that's come up in the past, but as far as I know, that Pumphouse artwork project was not meant to be local. It was going to change year over year to be different installations. And I think the last one was a special niche portrait that anybody could contribute to, so. And I think that's good because actually, I heard that somebody traveled into town who was one of the artists. So there's a benefit in having that not be local is that it could attract people to come to Fountain Hills. They could participate in this thing. And then, oh, this Town of Fountain Hills is going to share my art. I'm going to go visit and see what it's all about. And I think one artist did that. So I think it does change every year. And it may come back to being local again with, maybe, ducks in the pond or something. But I think it is supposed to be broad. And then the second thing I noticed, we're saying that we installed chargers, I use them, the two here at the community center are broken. The handles are broken. In order to use them, you have to get like a penny in there and try to flick it up so you can plug it into your car. CHAIR GRAY: That's dangerous. COREY: Yeah. Yeah. Well, you just going to -- or a fingernail or something. You have to try to pick up the piece of plastic that's broken so that it charges. I don't know about the ones at the fountain, but I use the ones here, and they've been broken for a while. TAVASSOLI: I'll tell our facilities manager. COREY: All right. And they're slow. It takes a long time to charge anything, so I don't know if we put that in the plan for -- if we include more in the future, maybe we can up TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 38 of 45 that power level a little bit. TAVASSOLI: Like super power? COREY: Yeah. KOVACEVIC: I'm sure even a hybrid. COREY: No gas. KOVACEVIC: Electrical vehicle. COREY: But other than that -- CHAIR GRAY: You know who shares your view on chargers? COREY: Who? CHAIR GRAY: The councilman. COREY: Sharron? CHAIR GRAY: No. KOVACEVIC: Peggy? CHAIR GRAY: No. No. VICE CHAIR WATTS: Allen. CHAIR GRAY: Allen. All right. Yeah, well. VICE CHAIR WATTS: Good for him. So I'm just clear -- Clayton is -- Commissioner Corey, sorry. Were you saying that the in the original verbiage about the Pumphouse, it did not have local in it? COREY: I don't know where the original one is published. VICE CHAIR WATTS: Okay. So I -- and so I don't disagree. I just was seeking clarity because I think it should be expanded. But if the original said local artists then we should stay with that. And if not, we should amend it and just make sure we're clear. COREY: Ah, so if it's referenced somewhere else? VICE CHAIR WATTS: Yeah. I mean, if it's referenced somewhere else and it's just -- it's just something we left out, then I'm fine with that. COREY: Sure. VICE CHAIR WATTS: Because I think it really comes out nice. And I spent a lot of time there looking at some of those -- the talent of those photographers and artists. TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 39 of 45 COREY: Yes. Okay. I agree. VICE CHAIR WATTS: It was pretty amazing. COREY: Yeah. I wasn't sure what you were saying there, but yeah. VICE CHAIR WATTS: No. I just want the word either -- note that it's in or note that it's out, one or the other, so. COREY: Yep. CHAIR GRAY: I wonder if it's biophilic art. VICE CHAIR WATTS: That would be different. CHAIR GRAY: Environmentally engaging art. VICE CHAIR WATTS: Environmentally engaging biophilic? COREY: Yeah. VICE CHAIR WATTS: I'll leave it at that. I think Commissioner Corey and I can figure this out. COREY: Okay. CHAIR GRAY: All right. Paula, speaker cards? WOODWARD: Yes, Chair. There's two speaker cards. The first speaker is -- CHAIR GRAY: Who might those be? WESLEY: -- Larry Meyers, and the second speaker is Lori Troller. MEYERS: I'm going to go back to farmers and butchers. Well, I'm going -- I'm going. I'm going there. UNIDENTIFIED SPEAKER: Who's the butcher? MEYERS: I'm going to try -- I don't know. I never did figure that one out. Anyway, in general, the general plan, since I've seen them all, it's a really nice document written by generally the SPAC people. Who are populated by the environmental, social, and economic justice sustainable crowd. Always have been. Probably always will be. They write this stuff down for Fountain Hills, then nobody reads it and then they vote on it. And then everybody, when it's convenient, leans on the general plan when they want something like Kingstree and Indigo or the parking that we waived for the Target Center apartments. That seems to be part of the general plan, and we redid it, but it didn't fit TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 40 of 45 down there. So we just sort of looked the other way on that one. So the general plan generally is generally useless to me, who's lived here for 42 years because the people, left to their own devices, would probably come up with something. And by the way, if you go back and check the motion, biophilic was removed -- amended and removed and voted on four to three to remove the word biophilic. I don't give a crap what their discussions are now because I'm sure they're discussing how to put it back in, in private, in secret, and nontransparently. So with regard to this general plan review, it's just like all the other general plan reviews. When it fits, we lean on it, and when it doesn't, we look the other way. I wish I could stand up here just once and say something positive. But if you look up at the Adero Canyon mountainside strip mine that's taken place courtesy of Art Tollis and a few others from back then, vegetation being put back in? Uh? I haven't seen any. Also, the medical center who completely cut the hillside out and was supposed to put 100 trees in? Haven't seen a single tree. It's part of a plan, right, John? It's not there. There's two instances where the general plan says to do something, and we didn't feel like doing it, so we didn't. So our discussion of this falls on deaf ears to me, who has probably stood up here a million times. Every time it comes around, I say the same thing, and the same thing happens. So I appreciate you just listening to me. Someday, I'm going to step up here, and I'm going to say something positive. Thanks. TROLLER: Chair, Commission, Lori Troller, resident. I'm going to kind of go against what Larry said. I'm going to put a little more importance on this document. And my angle right now is the verbiage of it. So the verbiage of our previous general plan has been casual and not restrictive as to let our development go where it's going to go with the original intent of the community years ago. So the tone of the document is really important, and it's part of our permanent record. And the council can and will refer back to this and any embellishments we make here. But the tone can lead to us saying five years from now, how do we get to this point? And I'm very concerned about that. It's a big issue with me. It's a big issue with a lot of people. So whenever anything wonderful is built, people want to be a part of it naturally, but they want to make their TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 41 of 45 changes to it. And again, kind of comes around to, how do we get to this point? So the fact that this was a retirement town 30 years ago is the very thing that preserved it. Isn't that ironic? The preservation being one of the goals that's what's in this general plan. It's on page 3. That's our goal, is to preserve it. We keep trying to change it. So the original town community doesn't want public showers for the homeless. And that's just an example of how do we get there when it happens. So the verbiage of this entire document it's open as it always was, but I think it's time to tighten it up a little bit. So at the beginning of the general plan, it talks about the preservation of neighborhoods. And in at least two years, the preservation of neighborhoods in this town was fought by us. It was fought tooth and nail to keep sober homes, residential detox, overpopulated housing, sex trafficking, and now the invasion of utility equipment over or off or away from our properties. And that's the residents. We don't have to go by this general plan, the council does. And when that when this document is open, that leaves us fighting for all this stuff. We're getting a little tired, but we'll stay here. So that's my point. On page 10, this reads, "With the changing socioeconomic and environmental factors, it's worthwhile to review the specifications to determine if they meet the town's current needs." That's this open -- that's this open feeling I'm talking about. We don't want this. We don't want to lay ourselves open like this. There's another on page 3, where -- you know what I've got? I've got the last month's thing, so it might not be page 3. It's right underneath thriving neighborhoods. It talks about, hey, we're we're here to preserve the neighborhoods. But then the very next paragraph is to accommodate a variety of housing types. It's not specified. The council goes wild with it. They start putting -- and voting in high-density housing. I just think the verbiage of this document is really important, the tone of it. It's our permanent record. And that's my point. Thank you. CHAIR GRAY: Thank you, Lori. Farhad, just for my understanding and clarity, so that the reference that Lori made there on page 10 is the top -- the first of the three goals there, it's commission, a cost-benefit study to identify the gap between actual subdivision regulations, infrastructure specification and determine the cost of meeting such TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 42 of 45 specifications. That, and the next -- the paragraph under it, those are lifted straight out of the general plan today. Correct? TAVASSOLI: Yes. That is true. CHAIR GRAY: Okay. So Lori. I think your position on the inclusions in this, I think when you go to council, you're really saying, hey, I think we ought to propose amendments to the general plan because this is all verbatim language that's in the published general plan today. And this report is recommending no amendments today. And what you're suggesting is, hey, we need to tighten it up and really ought to consider a few amendments. So all right. Thanks. COREY: Yeah. Farhad, I just have one last thing. Lori said a word that triggered me. It was "naturally." I don't know what context she used it in, but it reminded me we have in addition to the new logo, we have that new branding that I didn't see in here. "Naturally Fountain Hills, Naturally Innovative. Naturally" -- there's a whole, like, theme around those, and in fact, it's on the home page of our town's website right now too. So maybe we could add that in as another achievement. TAVASSOLI: Yeah. Mr. Chairman, Commissioner Corey, I did make a reference here to our rebranding, but I can get into the logo and -- COREY: Yeah. And I don't know what they call it, but it's right there, "Naturally Fountain Hills." It's the new -- CHAIR GRAY: (Indiscernible) what you call it? COREY: The new slogan or something? Maybe. Okay. Thank you. TAVASSOLI: Okay. CHAIR GRAY: All right. Commissioners, a motion? The options for a motion are simply -- VICE CHAIR WATTS: Aye or nay. CHAIR GRAY: -- continue. Well, there's no nay. Nay is not an option. So it's either continue for modifications or a motion to recommend. We forward this to council for their review, inclusive of tonight's conversation. Commissioner Kovacevic? KOVACEVIC: Do we need one more look at it after the amendments that were made TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 43 of 45 tonight? CHAIR GRAY: We were advised by the vice mayor not to let perfection get in the way of progress. So I'll let whoever makes the motion make that determination. COREY: Think that you've done a great job taking our feedback and making updates, and I think we just discussed some minor stuff tonight. So I think it'd be appropriate to motion to move that forward. CHAIR GRAY: I agree. VICE CHAIR WATTS: How many changes did you count that we -- or suggestions that we made that you've got to incorporate? Half a dozen? TAVASSOLI: You mean prior to today? VICE CHAIR WATTS: No. Tonight. You got most of them already. So how many? TAVASSOLI: I probably, like five or six, yeah. VICE CHAIR WATTS: Five or six additional. TAVASSOLI: I can go back and look at the -- VICE CHAIR WATTS: And they're just tweaks too. I mean, that's really what they are. They're not significant, so. CHAIR GRAY: Yeah. I'd let them roll. VICE CHAIR WATTS: Yeah. CHAIR GRAY: Personally. VICE CHAIR WATTS: No, I agree. I second the motion. CHAIR GRAY: Okay. All in favor. ALL: Aye. WESLEY: Five, zero. CHAIR GRAY: Five, zero. Thank you. Paula. All right. Typical combo of agenda item 7 and 8. Commission discussion, request for research to staff. Slightly out of turn, John, but we didn't get the chance to speak to Commissioner Dempster before she resigned the commission. Some of us worked with Susan a long time. I was trying to count how long. I think I had six years with her. Clayton, you were pretty close to the same. TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 44 of 45 COREY: Yeah. CHAIR GRAY: Really going to Commissioner Dempster's input here. She rounded us out on a lot of topics and was very, very grounded in her positions and research. So appreciate her time here and wish her all the best in her next ventures. KOVACEVIC: I'll second that. VICE CHAIR WATTS: Me too. Do we have any candidates at this point? It's probably not appropriate to ask you, but I'm going to anyway. CHAIR GRAY: Well, it's appropriate. WOODWARD: Yes, there are candidates. And we're currently setting up interviews with the town council subcommittee. CHAIR GRAY: How many? WOODWARD: I believe there are four. VICE CHAIR WATTS: Are they properly trained in John Deere equipment? CHAIR GRAY: Or how to site dress cattle? WOODWARD: We will keep you posted. CHAIR GRAY: Okay. Why John Deere? VICE CHAIR WATTS: It's the only big green harvester that I know. CHAIR GRAY: You're such a sucker for marketing. Okay. So we think they'll be in place possibly by the July venue? COREY: Are we meeting July? CHAIR GRAY: That's the hope. All right. COREY: What's the summer schedule like? CHAIR GRAY: Summer schedule for us is July what? 10th-ish. VICE CHAIR WATTS: 9th. CHAIR GRAY: July 8th. COREY: We're going to meet in July? VICE CHAIR WATTS: Yes. CHAIR GRAY: We have to. We have to meet on Chapter 17. John might as well give commission an update on the council's feedback on that, so we can prep accordingly for TOWN OF FOUNTAIN HILLS JUNE 10, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 45 of 45 the July session. WESLEY: Yes. Chairman, in case anybody's not aware, the town council, at their meeting last week, considered the topics of release of the Campanella draft ordinance. Chose not to do that. And also considered the topic of combining Town Code Chapter 16 or Article 16-2 in with your review of Chapter 17 of the Zoning Ordinance and chose not to do that. So the commission is focused on just looking at and recommending potential amendments to Chapter 17. At your May meeting, the work on that was continued to your July meeting. And so that's what we'll be on that agenda. CHAIR GRAY: So and inappropriate, probably, to continue this, but from recollection -- I have to look back at our meeting minutes, but we talked a little bit about combo-ing, but really what we were asking, I think what we ended up with on the table was, can we look at 16? So if their denial was on the basis of combo-ing it, I get it. But I think we were -- we had stumbled on the idea that they were highly complementary to each other, if we're going to talk about towers, let's talk about towers and placement throughout. I'll just ask, is there any chance of of going back for a second opinion, or is it all in and all done? WESLEY: Chairman, the commission -- or the council was presented with four options. One was to basically keep things going as they are, just review Chapter 17, and that's it. One was to allow you to give some thought and comment on anything that ought to change in 16-2 while you working on 17? Three was a little bit more aggressive than that, in terms of specifically looking at and offering suggestions on the small cell wireless. And four, was a total combination. And they chose not to do anything. I can't remember how they actually worded the motion, but I recall it was just focus on 17, and that's the direction that you have. CHAIR GRAY: Okay. So that'll be taken up at the July 8th meeting, then. WESLEY: Correct. CHAIR GRAY: Everybody present for that meeting? Yeah. August, we're definitely out. Okay. Anything else? Commissioners. Anything else, John? Okay. Let's adjourn. ITEM 5. TOWN OF FOUNTAIN HILLS STAFF REPORT    Meeting Date: 07/08/2024 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):  CONSIDERATION AND POSSIBLE ACTION: Ordinance #24-08 amending Chapter 17, Wireless Telecommunication Towers and Antenna. Staff Summary (Background) Attached for Commission review and recommendation is an ordinance proposing modifications to Zoning Ordinance Chapter 17, Wireless Telecommunication Towers and Antennas.  Modifications to this chapter of the zoning ordinance have been under discussion since January. Over the last several months, a number of related topics have been brought up and discussed, but are not part of this proposed ordinance modification.  These include:  Making modifications to the rules and regulations for small cell wireless facilities in the right of way.  These regulations are in Article 16-2 of the Town Code, not the Zoning Ordinance, and the Council has determined this separation should continue.  Any changes to that ordinance or the implementation documents would need to be handled as a separate project as directed by the Town Council. Making a distinction in the regulations between voice and broadband services. In a review of ordinances and regulations, including the draft ordinance from the consultant hired by the Town, staff did not find any distinctions being made in how these two types of service are handled any differently in other tower and antenna ordinances.  Any effort to provide a distinction between these two types of service would require hiring a technical expert. Promoting the development of a comprehensive underground broadband network.  It is understood that the best broadband service comes through an underground fiber optic network.  Promoting that option may be something the Town wants to do at some point.  Currently, however, the goal and direction has been to review and possibly modify the existing tower and antenna regulations to ensure quality service while protecting the citizens of the Town. Chapter 17 of the Zoning Ordinance addresses all towers and antennas used for wireless telecommunication (except small cell wireless facilities in Town rights-of-way).  This includes all types of towers and antennas used to transmit either voice or data, or both. The draft ordinance takes several steps to protect the public and residents.  These include:  Addressing the visual impacts and providing aesthetic standards (Section 17.03 A 3) Encouraging co-location (Sections 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 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) Review of Draft Ordinance The draft ordinance was reviewed in a report prepared for the May 2024 Planning and Zoning Commission meeting.  There were comments made at that meeting and at the June Planning and Zoning Commission meeting regarding possible changes to the draft ordinance.  Following is the same review and presentation of the draft ordinance as presented in May, but some additional comments have been provided where there are options to consider based on the recent discussions.   Overview of Primary Ordinance Changes  Re-organization and consolidation of the sections Additional design requirements in Section 17.03 A 3. Improved noise provisions in Sections17.03 A 13 and 17.06 D. Increased requirements for certification of design by an engineer with verification by the Town Engineer in Section 17.03 A 14 and 15. Expanded and clarified review processes based types of applications in Section 17.04. Clarified the submittal requirements for the different types of applications in Section 17.05 A. Added information about shot clocks in Section 17.05 B. Clarified and added to review standards and processing in Section 17.05 C. Added additional ongoing compliance review in Section 17.06 B. Existing: Section 17.01 Purpose Proposed: Section 17.01 Purpose, Intent, and Applicability Changes to this section include:  The purpose statements in A were broken into a numbered list to make them easier to read.  As previously presented, the language in this section was not changed. previously presented, the language in this section was not changed. There were a couple of comments at a previous meeting that these statements should be more definitive, e.g. change from "encourage" in most of the statements to something stronger.  This could be done if the Commission so chooses.  Optional language for consideration: 2. EncouragePromote the location of towers in nonresidential areas; 3. MinimizeLimit the total number of towers throughout the community; 5. EncourageRequire users of towers and antennas to locate them, to the extent possible, in areas where the adverse impact on the community is minimal; 6. EncourageRequire users of towers and antennas to configure them in a way that minimizes the adverse visual impact of the towers and antennas through careful design, siting, landscape screening, and innovative camouflaging techniques Adding a new Intent section B to further define the Town's interest and concerns regarding wireless communications.   There were questions about how the four-part test in 17.01 B 2 would be applied or used.  As part of this introductory section of the code, this is a "test" for understanding the purpose and intent of the code, what the Town was trying to achieve in the drafting and adoption of the ordinance.  The ordinance provides a balance between these competing desires and requirements.  These are not tests to be applied to the review of applications for towers or antennas.  These statements come from the draft consultant ordinance and are designed to help show the ordinance has been written in a manner to address both industry and citizen needs. Moving what was Section 17.03 up to this introductory section as 17.01 C. The draft includes two items that were added to the list of exceptions: Small Cell Towers in the right-of-way.  These are covered in Town Code Section 16-2.  By providing a reference here, it clarifies for anyone not familiar with our ordinance where to find these specific requirements. Mobile or temporary wireless facilities (sometimes referred to as Cell on Wheels - COW). These temporary facilities are sometimes needed during large special events or during a change out of an existing tower.  These facilities are not currently covered in our ordinance.  This provision states a temporary facility that will be used for seven days or less is not subject to this ordinance.  Later in the ordinance, language has been added for temporary facilities that will be used for more than seven consecutive days. Existing: Section 17.02 Definitions Proposed: Section 17.02 Definitions This section has stayed the same except for adding three new definitions at the end.  The current code addresses all types of antennas, but the existing rules are particularly directed toward typical cell towers.  We are increasingly finding other types of towers, such as the ones attached to SRP utility boxes or placed on water towers that allow for communication within the utility system.  There is a need to provide some regulations for these types of antennas, but not to the same level as the typical cell tower.  Therefore, a new term was created and used in the ordinance to carve out this type of antenna. The current code does not define wireless communication.  This is pretty straight forward, but staff felt it may be beneficial to have this definition given all the confusion about what is being regulated in the discussions thus far. Also added is a definition of wireless facility to better describe what all is meant when using the term. Existing: Section 17.03 Applicability The existing applicability section was moved to 17.01 C. This section was reused for basic requirements of the code. Existing: Section 17.04 General Requirements Proposed: Section 17.03 Requirements  A. General Requirements.  This section is mostly the same as the current Section 17.04 with reformatting based on the new structure.  The following changes were made: What was 17.04 C, Inventory of Existing Sites, has been moved to the new 17.05 A 3. The section on Aesthetic (was 17.04 D, now 17.03 A 3) has been expanded (see d. - i.) based on language found in other codes. The last provision, j., Utility Services Antennas, has been added as described above to address these types of antennas. What was Sections 17.04 F and G have been moved to Section 17.06, Maintenance and Operations, as B and C. What was 17.04 K, Public Notice, has been removed because the notice requirements are being handled differently, as will be explained in the new Section 17.05 D. What was 17.04 M., Buildings and Support Equipment, has been removed as unnecessary with the language that was in Section 17.08, now moved to 17.03 C. A new Section 17.03 A 13, Noise, has been added to address concerns about possible noise issues from the equipment associated with wireless communication facilities.  As will be discussed in more detail later, this replaces what is currently in Section 17.06 B 2. There have been questions regarding what "noise" this regulates, i.e. is it the noise from the equipment and generators or the "florescent light" type of electronic noise that can come from the antennas.  The ordinance as drafted addresses the noise that would come from the ground equipment and generators.  Staff have not seen any examples of an ordinance dealing with noise that would come from the antenna. What are now Sections 17.03 A 14 and 15 were 17.06 A 4 and 6.  There are slight word changes to fit the new format. B. Minimum Setbacks and Separations.  This is Section 17.07 in the current ordinance.  Staff has not proposed any changes to this section, just moved the location. Section 17.03 B 2 addresses the distance towers are to be from the specified land uses and from other towers.  The separation requirements listed in subsections a. and b. are required unless the Council finds the goals of this chapter are better served by a reasonable reduction.  Therefore, any application that does not meet these separation requirements would have to be considered by the Town Council. Note: As part of the ongoing staff review of the draft ordinance and preparation of this report, it was noted that the ordinance as written could cause an issue with the placement of utility service antenna.  These antenna need to go on the utility equipment they serve.  Therefore, staff added language to Sections 17.03 B 1 and 2 to exempt utility service antenna from the setback and separation requirements.  Subsection 17.03 B 2 a. Table 1 provides the required separation from various land uses.  For example, a new tower must be at least 200' from an existing single-family home, or 300% of the height of the tower, whichever is greater.  Based on these standards, a tower would have to be over 66' tall to be required to be more than 200' from a single-family residence.  In contrast, if the adjacent land use is existing multi-family development greater than a duplex, the separation distance is 100' or 100% of the height of the tower. At the May meeting, a suggestion was made that all the distances in Table 1 should be increased to 500'.  Staff prepared a map showing the impact of this separation requirement.  The map is attached for Commission review.  When this separation distance is applied, the blue highlighted areas are the areas of town that remain where a tower could be installed without Council approval as an exception.  When the required separation from an existing towers is applied, the number and area available for new towers without Council review is reduced as shown on the map to 5 areas with green boarders.  Several of these areas include site specific reasons why a tower could not be placed in those locations. At the May meeting a suggestion was also made that the separation distances between towers as provided in Table 2 should also be increased.  The suggestion staff heard was to increase the 2,000' to 1/2 mile, the 1,500' separation to 2,000', the 1,000' to 1,500', and the 750' to 1,000'.  Increasing the separation distances would further limit some of the areas currently available for consideration of a new tower without Council approval. Some ordinances include a section on "hierarchy of sites" or "Preferred Locations."  While these hierarchies do not prohibit towers in any locations, they do require applicants to look first at the preferred sites and, if they propose using a less preferred site, provide the justification for not using a more preferred site.  Hierarchies typically encourage locating along major streets and on industrial property and discourage placement along local streets in residential areas.  Given the Town's zoning and development pattern, the use of the hierarchy approach has not seemed necessary.   If the Commission wants to add a hierarchy of sites section, staff suggests consideration of the following as a new "C": C.  Hierarchy of Sites 1.  Siting of new towers of any type, except utility service antennas, shall be in accordance with the siting preferences 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 tower shall be permitted unless the application to be considered complete. No new tower shall be permitted unless the applicant demonstrates that no existing tower can accommodate the applicant’s proposed facility; or that use of such existing facilities would prohibit personal wireless services in the area of the Town to be served by the proposed antenna-supporting structure. 2. Evidence submitted to demonstrate that no existing tower could accommodate the applicant’s proposed facility may consist of any of the following: a. No existing tower located within the geographic search ring or a one-half mile around the geographic search ring meet the applicant’s engineering requirements. b. Existing towers are not of sufficient height to meet the applicant’s engineering requirements. c. Existing towers do not have sufficient structural strength to support the applicant’s proposed wireless communication facilities and related equipment. d. The applicant demonstrates that there are other limiting factors that render existing towers unsuitable. 3. Tower locations in order from most preferred to least preferred are: a. Industrial properties b. Commercial properties not along an arterial street c. Other commercial properties d. Multi-family properties and single-family properties with non-residential uses e. Schools, parks and athletic facilities f. Single-family properties C. Buildings or Other Equipment Storage. This is Section 17.08 in the current ordinance.  The only change made in this section was in 2. a. i. where the language was changed from "three and one-half (3.5) feet in height or twenty (20) square feet" to "and."  The Town Engineer was concerned the current language could allow a rather tall structure in the setback area that could block visibility along a street.  Other Town regulations prohibit walls taller than 3.5 feet in the setback area. D.  Co-location.  This is Section 17.09 in the current ordinance. The only change in this section was the addition of what is now D. 1. to require new towers to be designed to accommodate future co-location. Existing: Section 17.05 Permitted Uses Proposed: Section 17.04 Application Types This section was significantly re-worked, but the basic concept is the same.  A tower in a residential district or within 300' of a residential district requires Council approval, all others can be approved administratively.  One change has been made to the draft ordinance for clarification.  The ordinance provision has been a separation of 300' from residentially zoned property.  Our zoning maps zone the right-of-way.  A question could arise as to whether the right-of-way is "property" for the application of this ordinance.  Therefore, staff has changed the language to state the distance is measured from the zoning boundary.  This provides the greater protection to the residential properties. The existing separation distance could be changed to increase the distance from residential areas that requires Council review, or require all towers to receive Council review.  If Table 1 in Section 17.03 B 2 a is changed to increase those separation requirements, this distance should be changed to be consistent. A purpose and intent statements of the ordinance include the desire to direct towers away from residential areas, especially single-family residence areas, and to nonresidential areas.  If all towers require Council approval, there is less incentive to look for a non-residential location.  Given the limited number of non-residential areas in Town and the small size of those areas, there are few locations which would allow a tower without going to the Town Council.  Therefore, staff left the basic requirements the same. A shortcoming of the current ordinance is the lack of direction on modifications to existing towers and the replacement or modification of antennas.  This section now describes all the types of applications which can be received that would be considered and reviewed administratively versus those that require public review.  Sections A. 2. and 4. include criteria that are used to determine if a modification is significant enough to require Council review.  These criteria are taken directly from the consultant's draft ordinance. Existing: Section 17.06 Special Use Permits Proposed: Section 17.05 Application Submittal, Review, and Processing The current ordinance provides limited direction on the submittal requirements, review, and processing for all types of towers and antenna.  The current section is set up to just describe what is needed for an application that requires review as a Special Use Permit.  This section has been expanded to also provide information regarding shot clocks and tolling of application review. A. Provides an overview of general application requirements.  The language with regards to a special use permit requirement has been moved to 17.05 A 6 and 17.05 C 3. The submittal requirements include: 1.Complete application. The language has been modified to be the same as what has been used in the changes to Chapter 2 for other types of applications. 2. This is a simple reference to the items listed in Section 17.03 A that need to be addressed in an application. 3. This provision is currently in Section 17.04 C and has been relocated to this section of the ordinance. A slight change has been made to require the existing inventory only with new towers or additional antenna being co-located on an existing tower.  This is not needed for the simple modification of existing antennas. Former 2, deleted, covered in 17.04 A 6. Former 3, moved to 17.05 C 4 with slight changes in wording to fit the current format. Former 4, moved to 17.03 A 14. Former 5, deleted, requirement handled in alternate language. Former 6, moved to 17.03 A 15. 4. Utility Service Antennas.  This is a new section added to give direction on how staff processes these types of antenna.  These are typically small towers and antenna used to provide communication within the utility system to turn on and off valves or switches.   5. Applications Using Existing Towers.  This section provides the minimum information required on an application to modify the antenna on an existing tower. 6. This is 17.06 B in the current ordinance.  This section has been kept mostly the same but now requires photo simulations of the tower to help review the impacts. 7. Filing Fee. This is standard language for paying the required application fee. Former B. 2. Noise.  This wording did not work well.  New language was added to Section 17.03 A 13 establishing the requirement to submit information addressing noise and to 17.06 D regarding ongoing compliance with noise regulations. B. Covers the required "shot clocks" and tolling of applications.  Federal regulations place time limits (shot clocks) on local communities for the processing of applications.  The time runs while the application is in the hands of the local jurisdiction and is stopped, or tolled, when the application has been sent back to the applicant for additional information, corrections, or revisions.  One of the concerns staff has heard in regard to our current ordinance is that it does not have any provisions outlining how these are handled. This section is entirely new to the Town's ordinance.  The 30, 90, and 150 day review times are consistent with Federal requirements. C. Provides the review and processing requirements for all types of applications. 1. Provides review standards for all application types.  The standards listed are a combination of what was 17.06 B 3 and language found in other codes. 2. Provides the process for administrative review.  This is the same as any building permit application review.  A section was added for temporary, mobile towers that will be in place for more than 7 consecutive days. 3. Provides the process for public review applications. Public review applications will use the same notice, processing and approval requirements for SUP as contained in Section 2.02 of the Zoning Ordinance.  This clears up a current issue with cell towers on Town property that need Council approval, but there is no process for review provided.  This section requires facilities requiring public review to meet the review criteria established in 17.05 C 1 and those required in Section 2.02 for Special Use Permits.  It also requires an examination of existing towers for co-location as currently required in Section 17.06 B 4 and adds a requirement for a drive test if required by the Council. 4. Is the same as the current ordinance Section 17.06 A 3, with a few modifications to fit the current format.    Existing: Section 17.07 Minimum Setbacks and Separation - moved to the new Section 17.03 B. Existing: Section 17.08 Buildings or Other Equipment Storage - moved to the new Section 17.03 C. Existing Section 17.09 Co-Location - moved to the new Section 17.03 D. Existing: Section 17.10 Removal of Abandoned Antennas and Towers Proposed: Section 17.06 Maintenance and Operations A. Removal of Abandoned Antennas and Towers is the same as current Section 17.10. B. State and Federal Requirements. The first paragraph was Section 17.04 F. This paragraph states that, within six months of new regulations by the FAA and FCC, existing towers must be upgraded to comply. The remainder of this section has been added to address concerns about the ongoing compliance with RF radiation limits.  Verification of a new or modified tower meeting RF emission standards within 45 days of completion (from consultant's draft ordinance). 1. Random RF testing by the Town at the operator's expense (from consultant's draft ordinance).  There was a statement in a previous meeting that the ordinance should have RF exposure standards, or at least a reference to the existing federal regulations.  This section includes reference to 47 CFR §1.1310(e)(1), Table 1 Sections (i) and (ii). 2. The content of this section was in the previous draft ordinance but has been divided out in this version as a new #3 to bring greater attention to the enforcement options in the new ordinance. 3. C. Building Code; Safety Standards is the same as the current Section 17.04 G. D. Noise.  This section has been added in conjunction with the language in Section 17.03 A 13.  This section provides an ongoing ability to enforce noise limits. Existing Section 17.11 Nonconforming Uses. Changed to Section 17.07 Nonconforming Uses and keep the same except for updating references. Related Ordinance, Policy or Guiding Principle Zoning Ordinance Chapter 17   Risk Analysis N/A Recommendation(s) by Board(s) or Commission(s) N/A Staff Recommendation(s) Staff supports the changes contained in the draft ordinance and described in this report.  There are several areas the Commission may want to review further and may propose additional changes.  Staff supports a recommendation of approval subject to the final deliberations of the Commission. SUGGESTED MOTION Move to recommend adoption of Ordinance #24-08 (with modifications as determined by the Commission). Attachments Revised Ordinance Outline  Strikethrough Ordinance  Draft Revised Chapter 17, no strikethrough  Existing Ordinance, Chapter 17  500' setback option  Revised Chapter 17 Wireless Telecommunications Towers and Antennas 17.01 Purpose, Intent, and Applicability A. Purpose B. Intent C. Applicability 17.02 Definitions 17.03 Requirements A. General Requirements B. Minimum Setbacks and Separations C. Buildings or Other Equipment Storage D. Co-location 17.04 Application Types A. Administrative B. Public Review 17.05 Application Submittal, Review, and Processing A. General B. Shot Clocks and Tolling C. Review and Processing of Applications 17.06 Maintenance and Operation A. Removal of Abandoned Antennas and Towers B. State or Federal Requirements C. Building Codes; Safety Standards 17.07 Nonconforming Uses Page 1 of 37 Chapter 17 Wireless Telecommunications Towers and Antennas Section 17.01 Purpose, Intent, and Applicability A. The purpose of this ordinance is to establish general guidelines for the siting of wireless communications towers and antennas. The goals of this ordinance are to: (1.) protect Protect residential areas and land uses from potential adverse impacts of towers and antennas; (2.) encourage Encourage the location of towers in nonresidential areas; (3.) minimize Minimize the total number of towers throughout the community; (4.) strongly Strongly encourage the joint use of new and existing tower sites as a primary option rather than construction of additional single-use towers; (5.) encourage Encourage users of towers and antennas to locate them, to the extent possible, in areas where the adverse impact on the community is minimal; (6.) encourage Encourage users of towers and antennas to conflgure them in a way that minimizes the adverse visual impact of the towers and antennas through careful design, siting, landscape screening, and innovative camoufiaging techniques; (7.) enhance Enhance the ability of the providers of telecommunications services to provide such services to the community quickly, effectively, and efflciently; (8.) consider Consider the public health and safety of communication towers; and (9.) avoid Avoid potential damage to adjacent properties from tower failure through engineering and careful siting of tower structures. In furtherance of these goals, Town of Fountain Hills shall give due consideration to the Town of Fountain Hills General Plan, the Town of Fountain Hills Zoning Ordinance, existing land uses, and environmentally sensitive areas in approving sites for the location of towers and antennas. B. It is the intent of this ordinance: Page 2 of 37 1. That no wireless communication towers or antenna be sited, constructed, reconstructed, installed, materially changed, expanded, or used unless in conformity with this Chapter. 2. To achieve a balance between the need to provide wireless services with the health, safety, and general welfare of the residents of Fountain Hills the by balancing four (4) simultaneous objectives: a. Enabling personal wireless service providers to provide adequate personal wireless services throughout the Town so that Town residents can enjoy the beneflts of same, from any FCC-licensed wireless carrier from which they choose to obtain such services; b. Minimizing the number of cell towers and/or other personal wireless service facilities needed to provide such coverage; c. Preventing, to the greatest extent reasonably practical, any unnecessary adverse impacts upon the Town’s communities, residential areas, and individual homes; and, d. Complying with all the legal requirements which the Telecommunications Act of 1996, as amended (“TCA”) imposes upon the Town, when the Town receives, processes and determines applications seeking approvals for the siting, construction and operation of cell towers and/or other personal wireless service facilities. AC. Applicability. New Towers and Antennas: All new towers or antennas in Town of Fountain Hills shall be subject to these regulations. The following exceptions apply: B. Exceptions: 1. Amateur Radio Station Operators/Receive Only Antennas. This ordinance shall not govern any tower, or the installation of any antenna, that is under the maximum building height of the zoning district in which such structure is located and which is owned and operated by a federally-licensed amateur radio station operator or is used exclusively for receive only operations. 2. Preexisting Towers or Antennas. Legally established preexisting towers and preexisting antennas shall not be required to meet the requirements of this ordinance, other than the requirements of Sections 17.046 B. and C(F) & . Page 3 of 37 3. AM Array. For purposes of implementing this ordinance, an AM array, consisting of one or more tower units and supporting ground system which functions as one AM broadcasting antenna, shall be considered one tower. Measurements for setbacks and separation distances shall be measured from the outer perimeter of the towers included in the AM array. Additional tower units may be added within the perimeter of the AM array by right. 4. Small Cell Towers in the Right-of-Way. Wireless communication towers and antenna meeting the deflnition of small wireless facilities as contained in A.R.S. 9-591 are subject to the requirements of Article 16-2, Small Wireless Facilities, of the Town Code. 5. Mobile or Temporary Towers. Mobile wireless facilities when placed on site for seven (7) consecutive days or less, provided any necessary building permit or encroachment permit is obtained. Section 17.02 Definitions As used in this ordinance, the following terms shall have the meanings set forth below: Alternative Tower Structure: means man-made trees, clock towers, bell steeples, light poles and similar alternative-design mounting structures that camoufiage or conceal the presence of antennas or towers. Antenna: means any exterior transmitting or receiving device mounted on a tower, building or structure and used in communications that radiates or captures electromagnetic waves, digital signals, analog signals, radio frequencies (excluding radar signals), wireless telecommunications signals or other communication signals. Backhaul network: means the lines that connect a provider's towers/cell sites to one or more cellular telephone switching offlces, and/or long distance providers, or the public switched telephone network. Existing Structure: means light poles, power poles, chimneys, billboards, and other similar structures, which are placed, within the Town at the time of adoption of this Chapter, except existing buildings. Page 4 of 37 FAA: means the Federal Aviation Administration. FCC: means the Federal Communications Commission. Height: means, when referring to a tower or other structure, the vertical distance measured from the natural grade level to the highest point of the structure directly above the natural grade when such structure is not located in a platted subdivision. If the structure is located in a platted subdivision, the height shall be the vertical distance measured from the flnished grade as shown on the subdivision grading plans or flnished grade as shown on the individual lot's grading plans, (whichever is lower), to the highest point of the structure directly above the flnished grade. In the event that terrain problems prevent an accurate determination of height, the Zoning Administrator shall rule as to height and appeal from that decision shall be to the Board of Adjustment. Pre-existing towers and preexisting antennas: means any tower or antenna for which a building permit has been properly issued prior to the effective date of this ordinance, including permitted towers or antennas that have not yet been constructed so long as such approval is current and not expired. Tower: means any structure that is designed and constructed primarily for the purpose of supporting one or more antennas for telephone, radio and similar communication purposes, 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, alternative tower structures, and the like. The term also includes the structure and any support thereto. Utility service antennas: means antenna attached to utility boxes, poles, switches, storage tanks, etc. and used by a utility provider to facilitate the operation of the utility system. Wireless communication: means the transmission of voice or data without cable or wires. Wireless facility: means wireless communication facilities including, but not limited to, facilities that transmit and/or receive electromagnetic signals for cellular radio telephone service, personal communications services, enhanced specialized mobile services, paging systems, and related technologies. Such facilities also include antennas, microwave dishes, parabolic antennas, and all other types of equipment used in the transmission or reception of such signals; telecommunication towers or similar structures supporting said equipment; associated Page 5 of 37 equipment cabinets and/or buildings; and all other accessory development used for the provision of personal wireless services. These facilities do not include radio and television broadcast towers and government-operated public safety networks. Section 17.03 Applicability A. New Towers and Antennas: All new towers or antennas in Town of Fountain Hills shall be subject to these regulations. B. Exceptions: 1. Amateur Radio Station Operators/Receive Only Antennas. This ordinance shall not govern any tower, or the installation of any antenna, that is under the maximum building height of the zoning district in which such structure is located and which is owned and operated by a federally-licensed amateur radio station operator or is used exclusively for receive only operations. 2. Preexisting Towers or Antennas. Legally established preexisting towers and preexisting antennas shall not be required to meet the requirements of this ordinance, other than the requirements of Sections 17.04(F) & (G). 3. AM Array. For purposes of implementing this ordinance, an AM array, consisting of one or more tower units and supporting ground system which functions as one AM broadcasting antenna, shall be considered one tower. Measurements for setbacks and separation distances shall be measured from the outer perimeter of the towers included in the AM array. Additional tower units may be added within the perimeter of the AM array by right. Section 17.034 General Requirements A. General Requirements Page 6 of 37 1. Principal or Accessory Use: Antennas and towers may be considered either principal or accessory uses. A different existing use of an existing structure on the same lot shall not preclude the installation of an antenna or tower on such lot. B2. Lot Size: For purposes of determining whether the installation of a tower or antenna complies with district development regulations, including but not limited to setback requirements, lot-coverage requirements, and other such requirements, the dimensions of the entire lot shall control, even though the antennas or towers may be located on leased parcels within such lot. C. Inventory of Existing Sites: Each applicant for an antenna and/or tower shall provide to the Community Development Director an inventory of its existing towers, antennas, or sites approved for towers or antennas, that are either within the jurisdiction of the Town of Fountain Hills or within one mile of the border thereof, including speciflc information about the location, height, and design of each tower. Each applicant shall also provide a one-year build-out plan for all other wireless communications facilities within the Town. The Community Development Director may share such information with other applicants applying for administrative approvals or special use permits under this ordinance or with other organizations seeking to locate antennas within the jurisdiction of Town of Fountain Hills, provided, however that the Community Development Director is not, by sharing such information, in any way representing or warranting that such sites are available or suitable. D3. Aesthetics: Towers and antennas shall meet the following requirements: 1a. Towers shall, subject to any applicable standards of the FAA, be painted a neutral color so as to reduce visual obtrusiveness. 2b. At a tower site, the design of the buildings and related structures shall, to the extent possible, use materials; colors, textures, screening, and landscaping that will blend them into the natural setting and surrounding buildings. 3c. If an antenna is installed on a structure other than a tower, the antenna and supporting electrical and mechanical equipment must be of a neutral color that is identical to, or closely compatible with, the color of the supporting structure so as to make the antenna and related equipment as visually unobtrusive as possible. Page 7 of 37 d. The choice of design for installing a new personal wireless service facility or the substantial modiflcation of an existing personal wireless service facility shall be chosen to minimize the potential adverse impacts that the new or expanded facility may, or is likely to, infiict upon nearby properties. e. Unless speciflcally required by other regulations, a telecommunications tower shall have a flnish (either painted or unpainted) that minimizes its degree of visual impact. f. Accessory Structures i. Accessory structures shall maximize the use of building materials, colors, and textures designed to blend with the natural surroundings. The use of camoufiage communications towers may be required by the Council to blend the communications tower and/or its accessory structures further into the natural surroundings. "Camoufiage" is deflned as the use of materials incorporated into the communications tower design that give communications towers the appearance of tree branches and bark coatings, church steeples and crosses, sign structures, lighting structures, or other similar structures. ii. Accessory structures shall be designed to be architecturally similar, compatible with each other, and shall be no more than twelve (12) feet high. The buildings shall be used only for housing equipment related to the particular site. Whenever possible, the buildings shall be joined or clustered so as to appear as one building. iii. No portion of any telecommunications tower or accessory structure shall be used for a sign or other advertising purpose, including but not limited to the company name, phone numbers, banners, and streamers, except the following. A sign of no greater than two square feet indicating the name of the facility owner(s) and a twenty-four-hour emergency telephone shall be posted adjacent to any entry gate. In addition, "no trespassing" or other warning signs may be posted on the fence. All signs shall conform to the sign requirements of the Town. g. Towers must be placed to minimize visual impacts. Applicants shall place towers on the side slope of the terrain so that, as much as possible, the top of the tower does not protrude over the ridgeline, as seen from public ways. Page 8 of 37 h. Existing vegetation. Existing vegetation shall be preserved to the maximum extent possible. No cutting of trees shall take place on a site connected with an application made under this article prior to the approval of the special use permit use. i. Screening. i. Tree plantings may be required to screen portions of the telecommunications tower and accessory structures from nearby residential property as well as from public sites known to include important views or vistas. Additional palm trees may be required to accompany towers which use a palm tree stealth design. ii. Where a site adjoins a residential property or public property, including streets, screening suitable in type, size and quantity shall be required by the Town Council. iii. The applicant shall demonstrate to the approving board that adequate measures have been taken to screen and abate noise emanating from on-site equipment, including but not limited to heating and ventilating units, air conditioners, and emergency power generators. Telecommunications towers shall comply with all applicable sections of this chapter as it pertains to noise control and abatement. j. Utility Services Antennas i. For antenna placed in the Town’s right-of-way with the top of the antenna less than six (6’) feet above ground level, the support structure and antenna shall be painted a neutral color to blend with the surrounding area. If the top of the antenna is six (6’) feet or more above ground level, the antenna and support structure shall utilize the approve Saguaro cactus stealth design. ii. For antenna placed on private property: 1. If placed on another utility structure such as a water tower, the antenna shall be painted to blend with the building or equipment it placed on. 2. If a separate tower structure is used, the antenna design shall comply with the provisions above in this section. Page 9 of 37 E4. Lighting: Towers shall not be artiflcially lighted, unless required by the FAA or other applicable authority. If lighting is required, the lighting alternatives and design chosen must cause the least disturbance to the surrounding views. F. State or Federal Requirements: All towers must meet or exceed current standards and regulations of the FAA, the FCC, and any other agency of the state or federal government with the authority to regulate towers and antennas. If such standards and regulations are changed, then the owners of the towers and antennas governed by this chapter shall bring such towers and antennas into compliance with such revised standards and regulations within six (6) months of the effective date of such standards and regulations, unless a different compliance schedule is mandated by the controlling state or federal agency. Failure to bring towers and antennas into compliance with such revised standards and regulations shall constitute grounds for the removal of the tower or antenna at the owner's expense. G. Building Codes; Safety Standards: To ensure the structural integrity of towers, the owner of a tower shall ensure that it is maintained in compliance with standards contained in applicable state or local building codes and the applicable standards for towers that are published by the Electronic Industries Association, as amended from time to time. If, upon inspection, the Town of Fountain Hills concludes that a tower fails to comply with such codes and standards and constitutes a danger to persons or property, then upon notice being provided to the owner of the tower, the owner shall have thirty (30) days to bring such tower into compliance with such standards. Failure to bring such tower into compliance within said thirty (30) days shall constitute grounds for the removal of the tower or antenna at the owner's expense. H5. Measurement: For purposes of measurement, tower setbacks and separation distances shall be calculated and applied to facilities located in the Town of Fountain Hills irrespective of municipal and county jurisdictional boundaries. I6. Not Essential Services: Towers and antennas shall be regulated and permitted pursuant to this chapter and shall not be regulated or permitted as essential services, public utilities, or private utilities. J7. Franchises: Owners and/or operators of towers or antennas shall certify that all franchises required by law for the construction and/or operation of a wireless communication system in the Town of Fountain Hills have been obtained and shall flle a copy of all required franchises with the Community Development Director. Page 10 of 37 K. Public Notice: For purposes of this chapter, any special use request shall require public notice pursuant to Section 2.02(C) of this Zoning Ordinance except that the notice required shall include posting of the property, and mailing to all property owners within 300 feet of the proposed use, and publication in a newspaper of general circulation regardless of any expression to the contrary in Section 2.02. L8. Signs: No signs shall be allowed on an antenna or tower. M. Buildings and Support Equipment: Buildings and support equipment associated with antennas or towers shall comply with the requirements of Section 17.08. N9. Co-location and Multiple Antenna/Tower Plan: The Town of Fountain Hills encourages tower and antenna users to submit a single application for approval of multiple towers and/or antenna sites and to submit applications, which utilize co-location with an existing wireless telecommunications provider. Applications for approval of multiple sites or for co- location with an existing provider shall be given priority in the review process. O10. Security fencing: Towers shall be enclosed by security fencing not less than six (6) feet in height and no more than eight (8) feet in height, shall be constructed of a block or masonry, and shall be equipped with an appropriate anti-climbing device; provided however, that the Town Council may waive such requirements, as it deems appropriate. P11. Landscaping: The following requirements shall govern the landscaping surrounding towers; provided, however, that the Town Council may waive such requirements if the goals of this chapter would be better served thereby. 1a. Tower facilities shall be landscaped with a buffer of plant materials that effectively screens the view of the tower compound from residential property. The standard buffer shall consist of a landscaped strip at least four (4) feet wide outside the perimeter of the compound. 2b. In locations where the visual impact of the tower would be minimal, the landscaping requirement may be reduced or waived. 3c. Existing mature plant growth and natural landforms on the site shall be preserved to the maximum extent possible. Page 11 of 37 13. Noise: Submission of applications for towers and associated equipment shall include noise and acoustical information, prepared by a qualifled flrm or individual, for the base transceiver station(s), equipment buildings, and associated equipment such as air conditioning units and backup generators. The Town may require the applicant to incorporate appropriate noise baffiing materials and/or strategies to avoid any ambient noise from equipment reasonably likely to exceed the applicable noise regulations contained in Section 11-1-7 of the Town Code. 14. Any information of an engineering nature that the applicant submits, whether civil, mechanical, or electrical, shall be certifled by an Arizona Licensed Professional Engineer. 15. Application approval issued under this Chapter shall be conditioned upon veriflcation by the Town Engineer or designee that such tower structure is structurally sound. Such veriflcation shall be received by the applicant prior to submission. B. Minimum Setbacks and Separations 1. Setbacks: Except for utility service antennas, the following setback requirements shall apply to all towers; provided, however, that the Town Council may reasonably reduce the standard setback requirements if the goals of this chapter would be better served thereby: a. Towers must be set back a distance equal to at least one hundred percent (100%) of the height of the tower from any adjoining lot line. Provided, however, that separation distances from residential uses shall be in accordance with Table 1 set forth below. b. Accessory buildings must satisfy the minimum zoning district setback requirements. 2. Separation: Except for utility service antennas, the following separation requirements shall apply to all towers and antennas provided, however, that the Town Council may reasonably reduce the standard separation requirements if the goals of this chapter would be better served thereby. a. Separation from off-site uses/designated areas. i. Tower separation shall be measured from the base of the tower to the lot line of the off-site uses and/or designated areas as specifled in Table 1, except as otherwise provided in Table 1. Page 12 of 37 ii. Separation requirements for towers shall comply with the minimum standards established in Table 1. Table 1. Separation Requirements from Offsite Uses/Areas Off-site Use/Designated Area Separation Distance Single-family or duplex residential units1 200 feet or 300% of tower height, whichever is greater Vacant single-family or duplex residentially zoned land which is either platted or has preliminary plat approval which is not expired 200 feet or 300% of tower height, whichever is greater2 Vacant unplatted residentially zoned lands3 100 feet or 100% of tower height, whichever is greater Existing multifamily residential units greater than duplex units 100 feet or 100% of tower height, whichever is greater Nonresidentially zoned lands or nonresidential uses None, only setbacks apply 1 Includes modular homes and mobile homes used for living purposes. 2 Separation measured from base of tower to closest building setback line. 3 Includes any unplatted residential use properties without a valid preliminary subdivision plan or valid development plan and any multifamily residentially zoned land greater than a duplex. b. Separation distances between towers: Separation distances between towers shall be applicable for and measured between the proposed tower and preexisting towers. The separation distances shall be measured by drawing or following a straight line between the base of the existing tower and the proposed base, pursuant to a site plan, of the proposed tower. The separation distances (listed in linear feet) shall be as shown in Table number 2. Table 2. Separation Distances between Towers Page 13 of 37 Monopole 65 ft. in height or greater Monopole less than 65 ft. in height but greater than 40 ft. in height Monopole less than 40 ft. in height Monopole 65 ft. in height or greater 2,000 feet 1,500 feet 1,000 feet Monopole less than 65 ft. in height but greater than 40 ft. in height 1,500 feet 1,500 feet 1,000 feet Monopole less than 40 ft. in height 1,000 feet 1,000 feet 750 feet C. Buildings or Other Equipment Storage 1. Antennas Mounted on Structures or Rooftops: The equipment cabinet or structure used in association with antennas shall comply with the following: a. The cabinet or structure shall not contain more than one hundred-twenty (120) square feet of gross fioor area or be more than eight (8) feet in height and shall be located on the ground. b. Equipment storage buildings or cabinets shall comply with all applicable building codes. 2. Antennas Mounted on Utility Poles, Light Poles, or Towers: The equipment cabinet or structure used in association with antennas shall be located in accordance with the following: a. In residential districts, the equipment cabinet or structure may be located: i. In a required front yard or required street side yard, provided the cabinet structure is no greater than three and one-half (3.5) feet in height and twenty (20) square feet of gross fioor area and the cabinet/structure is located a minimum of three (3) feet from all lot lines. The cabinet/structure shall be screened by sight Page 14 of 37 obscuring landscaping which obscures at least ninety-flve percent (95%) of the structure at planting and throughout the duration of the cabinet or structure’s existence with an ultimate height not to exceed forty-two (42) inches. ii. In a required rear yard, provided the cabinet or structure is no greater than flve (5) feet in height or one hundred-twenty (120) square feet in gross fioor area. The cabinet/structure shall be screened by sight obscuring landscaping which obscures at least ninety-flve percent (95%) of the structure at planting and throughout the duration of the cabinet or structure’s existence with an ultimate height of six (6) feet. iii. The entry or access side of a cabinet or structure shall be gated by a solid, sight- obscuring gate that is separate from the cabinet or structure. b. In commercial or industrial districts the equipment cabinet or structure shall be no greater than fourteen (14) feet in height or three hundred (300) square feet in gross fioor area. The structure or cabinet shall be screened by sight-obscuring landscaping with an ultimate height of sixteen (16) feet and a planted height of at least six (6) feet. The entry or access side of a cabinet or structure shall be gated by a solid, sight- obscuring gate that is separate from the cabinet or structure. Such access way shall not face residentially zoned property. 3. Modiflcation of Building Size Requirements: The requirements of Sections 17.08(A) through (C) may be modifled by the Town Council in the case of uses permitted by special use to encourage collocation. D. Co-location 1. Any new telecommunications tower shall be designed to accommodate future shared use by other communications providers. 2. Good Faith: Applicants and permittees shall cooperate and exercise good faith in co- locating wireless telecommunications facilities on the same support structures or site, if the Town so requests. Good faith shall include sharing technical information to evaluate the feasibility of co-location, and may include negotiations for erection of a replacement support structure to accommodate co-location. A competitive confiict to co-location or flnancial burden caused by sharing such information normally will not be considered as an excuse to comply with this section. Page 15 of 37 3. Third Party Technical Review: In the event a dispute arises as to whether a permittee has exercised good faith in accommodating other users, the Town may require the applicant to obtain a third-party technical study at the applicant’s expense. The Town may review any information submitted by the applicant and permittee(s) in determining whether good faith has been exercised. 4. Exceptions: No co-location may be required where the shared use would or does result in signiflcant interference in the broadcast or reception capabilities of the existing wireless telecommunications facilities or failure of the existing wireless telecommunications facilities to meet federal standards for emissions. 5. Violation; penalty: Failure to comply with co-location requirements when feasible may result in denial of a permit request or revocation of an existing permit. Section 17.0504 Permitted UsesApplication Types A. General: The uses listed in this Section are deemed to be permitted uses and shall not require administrative approval or a special use permit. B. Permitted Uses: The following uses are speciflcally permitted: 1. Antennas or towers located on property owned, leased, or otherwise controlled by the Town of Fountain Hills provided a license or lease authorizing such antenna or tower has been approved by the Town of Fountain Hills. No such license or lease shall be issued for a tower located within three hundred (300) feet of any residentially zoned property until a public hearing has been held at a regular or special Town Council meeting. 2. Alternative tower structures when such structures and their accompanying equipment are appropriately blended into the surrounding terrain, are within the height limitations of the underlying zoning district and are not nearer than three hundred (300) feet to residentially zoned and platted property.A. Administrative: The following types of applications are processed administratively by staff: Page 16 of 37 1. Applications to change or modify an existing administratively approved wireless communication facility that remains in compliance with all ordinance requirements. 2. Applications to change or modify an existing wireless communication facility approved through public review, provided that the modiflcation will not: a. Increase the approved height of the supporting structure by more than 10% or twenty (20) feet, whichever is greater; b. Cause the original approved number of antennas to be exceeded by more than 50%; c. Increase the original approved square footage of accessory buildings by more than 200 square feet; d. Add new, additional, or larger microwave antenna dishes; e. Expand the footprint of said support structure; or f. Potentially cause signiflcant adverse impacts on the existing support structure or the surrounding area. 3. Applications for co-location of additional antenna for an additional service provider on an existing administratively approved tower that remains in compliance with all ordinance requirements. 4. Applications for co-location of additional antenna for an additional service provider on an existing tower approved through public review, provided that the modiflcation will not: a. Increase the approved height of the supporting structure by more than 10% or twenty (20) feet, whichever is greater; b. Cause the original approved number of antennas to be exceeded by more than 50%; Page 17 of 37 c. Increase the original approved square footage of accessory buildings by more than 200 square feet; d. Add new, additional, or larger microwave antenna dishes; e. Expand the footprint of said support structure; or f. Potentially cause signiflcant adverse impacts on the existing support structure or the surrounding area. 5. Applications for new utility service antenna that comply with the height and setback requirements of the zoning district in which they are located. 6. Applications for mobile or temporary wireless facilities for more than seven (7) consecutive days. 7. Applications for new towers in the following locations: a. Town property with the tower located at least three hundred (300’) from a residential zoning boundary. b. On commercial, industrial, utility, or lodging zoned property and located at least three hundred feet (300’) from a residential zoning boundary. c. Alternative tower structures when such structures and their accompanying equipment are appropriately blended into the surrounding terrain, are within the height limitations of the underlying zoning district and are at least three hundred feet (300’) from a residential zoning boundary. B. Public Review: The following types of applications require review and approval by the Town Council: Page 18 of 37 1. Towers on Town property when the tower will be located less than 300’ from a residential zoning boundary. 2. All other towers and antenna not meeting the requirements in Sec. 17.04 A or Sec. 17.04 B 1. Section 17.0605 Special Use PermitsApplication Submittal, Review, and Processing A. General: The following provisions shall govern the issuance of special use permits for towers or antennas by the Town Councilreview of all wireless communication facility applications: 1. If the tower or antenna is not a permitted use under Section 17.05 of this chapter, then a special use permit shall be required for the construction of a tower or the placement of an antenna in all zoning districts. Complete Application. Applications for wireless communication facilities shall be flled electronically on the Town’s website by an owner of real property and shall contain the area proposed for the wireless communication facility using the process established by the Director for such applications. All such applications shall include the information required in this section. Applications flled on behalf of the property owner by a third party shall include a statement from the property owner authorizing the submittal of the application. 2. Applications shall include documentation of compliance with items listed in Section 17.03 A as applicable to the application submitted. C3. Inventory of Existing Sites: Each applicant for an new antenna and/or tower or co- location of new antenna on an existing tower shall provide to the Community Development Services Director an inventory of its existing towers, antennas, or sites approved for towers or antennas, that are either within the jurisdiction of the Town of Fountain Hills or within one mile of the border thereof, including speciflc information about the location, height, and design of each tower. Each applicant shall also provide a one-year build-out plan for all other wireless communications facilities within the Town. The Community Development Services Director may share such information with other applicants applying for administrative approvals or special use permits under this ordinance or with other Page 19 of 37 organizations seeking to locate antennas within the jurisdiction of Town of Fountain Hills, provided, however that the Community Development Services Director is not, by sharing such information, in any way representing or warranting that such sites are available or suitable. 2. Applications for special use permits under this Section shall be subject to the procedures and requirements of Chapter 2, Section 2.02, of this Zoning Ordinance, except as modifled in this Section. 3. In granting a special use permit, the Town Council may impose conditions to the extent such conditions are necessary to minimize any adverse effect of the proposed tower on adjoining properties. 4. Any information of an engineering nature that the applicant submits, whether civil, mechanical, or electrical, shall be certifled by an Arizona Licensed Professional Engineer. 5. An applicant for a special use permit shall submit the information described in this section and a nonrefundable fee established pursuant to Section 2.02(H) of this Zoning Ordinance. 6. A Special Use Permit issued under this Chapter shall be conditioned upon veriflcation by the Town Engineer or designee that such tower structure is structurally sound. Such veriflcation shall be received by the applicant prior to submission. 4. Utility Service Antennas: a. Located in public right-of-way. These types of application are reviewed and approved through the Town’s Encroachment Permit process as provided in Town Code Article 16-1, Encroachments. b. Located on property owned by the utility company. i. If the antenna complies with the height requirements of the underlying zoning district, the plans for the antenna will be reviewed and approved with the overall site development plans if the site is being developed concurrently. If the antenna is being added to an existing utility site, the plans will be reviewed and processed consistent with the requirements of Section 17.05 C. Page 20 of 37 ii. If the antenna does not comply with the height requirements of the underlying zoning district, the plans for the antenna will be reviewed and processed consistent with the requirements of Section 17.05 D. 5. Applications Using Existing Towers: a. Dimensioned, to-scale drawings showing the existing and proposed antenna on the tower including the height of the tower and the antennas. b. The number and type of existing and proposed antenna. c. Engineering calculations documenting the structural changes and certifying the tower’s ability to carry the new antennas. d. Dimensioned, to-scale drawings illustrating modiflcation of ground equipment, if any. B6. Applications Using New Towers: 1. Information required. In addition to any information required for applications for special use permits pursuant to Chapter 2, Section 2.02 of this Zoning Ordinance, applicants for a special use permit for a tower shall submit the following information: a. A site Plan as required in Section 2.04 plus zoning, General Plan classiflcation of the site and all properties within the applicable separation distances set forth in Section 17.0703 (B)., adjacent roadways, proposed means of access, elevation drawings of the proposed tower and any other structures, photo simulations showing the tower in the proposed location from at least four directions, and other information deemed by the Development Services Director to be necessary to assess compliance with this chapter. b. The setback distance between the proposed tower and the nearest residential unit and residentially zoned properties. c. The separation distance from other towers described in the inventory of existing sites submitted pursuant to Section 17.0403 (CB.) shall be shown on an updated site plan or map. The applicant shall also identify the type of construction of the existing tower(s) and the owner/operator of the existing tower(s), if known. Page 21 of 37 d. Method of fencing, and flnished color and, if applicable, the method of camoufiage and illumination. e. A description of compliance with Sections 17.04(C), (D), (E), (F), (G), (J), (L) 17.03 C. 3, 4, 5, 7, 8, 9, 10, 11, and (M), (N), (O)17.03 B. and (P), 17.07(A), 17.07(B)17.05 A. 3, and 17.06 A. and B., and all applicable federal, state or local laws. f. A notarized statement by the applicant as to whether construction of the tower will accommodate collocation of additional antennas for future users. g. Identiflcation of the entities providing the backhaul network for the tower(s) described in the application and other cellular sites owned or operated by the applicant in the municipality. h. A description of the suitability of the use of existing towers, other structures or alternative technology not requiring the use of towers or structures to provide the services to be provided through the use of the proposed new tower. i. A description of the feasible alternative location(s) of future towers or antennas within the Town of Fountain Hills based upon existing physical, engineering, technological or geographical limitations in the event the proposed tower is erected. j. A statement of compliance with Federal Communications Commission (FCC) Radio Frequency (RF) exposure standards. 7. Filing Fee. Payment of a flling fee in an amount established by a schedule adopted by resolution of the Council and flled in the offlces of the Town Clerk. No part of the flling fee shall be returnable. 2. Noise: No permit shall be issued for any facility, which generates a noise level greater than flfty decibels (50 db) as measured at the edge of the property upon which such facility is sited. B. Shot Clocks and Tolling. To comply with the requirements of Section 47 U.S.C. §332(c)(7)(B)(ii) of the TCA, the following shot clock periods set forth herein below shall be presumed to be reasonable periods within which the Town shall render determinations upon applications for wireless communication facilities. Page 22 of 37 The Town shall render determinations upon such applications within the periods set forth hereinbelow, unless the applicable shot clock period listed below is tolled, extended by agreement or the processing of the application is delayed due to circumstances beyond the Town’s controls. 1. Application Shot Clocks. a. Receipt of Initial Application. Upon receipt of an application, the Development Services Director, or designee, shall review the application for completeness. If the Director determines the application is: (a) incomplete, (b) missing required application materials, (c) is the wrong type of application, or (d) is otherwise defective, then, within ten (10) days for administrative applications and thirty (30) days for public hearing applications of the Town’s receipt of the application, the Director, or their designee, shall notify the applicant of the flnding and state what is needed to have a complete application. The notice of incompleteness shall toll the shot clock, which shall not thereafter resume running unless and until the applicant tenders an additional submission to the Director to remedy the issues identifled in the notice of incomplete application. The submission of any responsive materials by the applicant shall automatically cause the shot clock period to resume running. If upon receipt of any additional materials from the applicant, the Director determines that the application is still incomplete and/or defective, then the Director shall, once again notify the applicant within ten (10) days for administrative applications and thirty (30) days for public hearing applications of the applicant having flled its supplemental or corrected materials to the Town and the shot clock shall once again be tolled, and the same procedure provided for hereinabove shall be repeated. b. Application Review. The shock clock for Administrative applications which do not involve new towers is ninety (90) days. The shot clock for Administrative applications with new towers and Public Review applications is one hundred flfty (150) days. 2. Shot Clock Tolls, Extensions & Reasonable Delay Periods Consistent with the letter and intent of Section 47 U.S.C. §332(c)(7)(B)(ii) of the TCA, each of the shot clock periods set forth within Section 17.05 B. hereinabove shall generally be Page 23 of 37 presumed to be sufflcient periods within which the Town shall render decisions upon applications. Notwithstanding same, the applicable shot clock periods may be tolled, extended by mutual agreement between any applicant and/or its representative and the Town, and the Town shall not be required to render its determination within the shot clock period presumed to be reasonable for each type of application, where the processing of such application is reasonably delayed, as described hereinbelow. a. Tolling of the Applicable Shot Clock Due to Incompleteness and/or Applicant Error As provided for within Section 17.05 B. 1. hereinabove, in the event that the Development Services Director deems an application incomplete, the Director shall send a Notice of Incompleteness to the applicant to notify the applicant that its application is incomplete and/or contains material errors, and shall reasonably identify the missing information and/or documents and/or the error(s) in the application. If the Director sends a Notice of Incompleteness as described hereinabove, the applicable shot clock shall automatically be tolled, meaning that the applicable shot clock period within which the Town is required to render a flnal decision upon the application shall immediately cease running, and shall not resume running, unless and until the Town receives a responsive submission from the applicant. If and when the applicant thereafter submits additional information in an effort to complete its application, or cure any identifled defect(s), then the shot clock shall automatically resume running, but shall not be deemed to start running anew. The applicable shot clock period shall, once again, be tolled if the Director thereafter provides a second notice that the application is still incomplete or defective, despite any additional submissions which have been received by the Town, from the applicant, up to that point. b. Shot Clock Extension by Mutual Agreement The Town shall be free to extend any applicable shot clock period by mutual agreement with any respective applicant. This discretion on the part of the Town shall include the Town’s authority to request, at any time, and for any period of time the Town may deem Page 24 of 37 reasonable or appropriate under the circumstances, consent from a respective applicant to extend the applicable shot clock period to enable the Town, the applicant, or any relevant third party, to complete any type of undertaking or task related to the review, analysis, processing, and determination of the particular application, which is then pending before the Town, to the extent that any such Undertaking, task, or review is consistent with, or reasonably related to, compliance with any federal, state, or local law and/or the requirements of any provision of the Town Code, including but not limited to this Chapter. In response to any request by the Town, the applicant, by its principal, agent, attorney, site acquisition agent, or other authorized representative, can consent to any extension of any applicable shot clock by afflrmatively indicating its consent either in writing or by afflrmatively indicating its consent on the record at any public hearing or public meeting. The Town shall be permitted to reasonably rely upon a representative of the applicant indicating that they are authorized to grant such consent on behalf of the respective applicant, on whose behalf they have been addressing the Town within the review process. c. Reasonable Delay Extensions of Shot Clock Periods The Town recognizes that there may be situations wherein, due to circumstances beyond the control of the Town and/or the Town Council, the review and issuance of a flnal decision upon an application for a wireless communication facility cannot reasonably be completed within the application shot clock periods delineated within Section 17.05 B hereinabove. If, despite the exercise of due diligence by the Town, the determination regarding a speciflc application cannot reasonably be completed within the applicable shot clock period, the Town shall be permitted to continue and complete its review and issue its determination at a date beyond the expiration of the applicable period, if the delay of such flnal decision is due to circumstances including, but not limited to, those enumerated hereinbelow, each of which shall serve as a reasonable basis for a reasonable delay of the applicable shot clock period. i. In the event that the rendering of a flnal decision upon an application under this Chapter is delayed due to natural and/or unnatural events and/or forces which are not within the control of the Town, such as the unavoidable delays experienced in Page 25 of 37 government processes due to the COVID 19 pandemic, and/or mandatory compliance with any related federal or state government orders issued in relation thereto, such delays shall constitute reasonable delays which shall be recognized as acceptable grounds for extending the period for review and the rendering of flnal determinations beyond the period allotted under the applicable shot clock. ii. In the event that applicant tenders eleventh-hour submissions to the Town in the form of (a) expert reports, (b) expert materials, and/or (c) materials which require a signiflcant period for review due either to their complexity or the sheer volume of materials which an applicant has chosen to provide to the Town at such late point in the proceedings, the Town shall be afforded a reasonable time to review such late-submitted materials. If reasonably necessary, the Town shall be permitted to retain the services of an expert consultant to review any late-submitted expert reports which were provided to the Town, even if such review or services extend beyond the applicable shot clock period, so long as the Town completes such review and retains and secures such expert services within a reasonable period of time thereafter and otherwise acts with reasonable diligence in completing its review and rendering its flnal decision. C. Review and Processing of Applications 1. Conformity to the following shall be considered in review of all applications: a. The application is consistent with the objectives of this ordinance. b. The height of the proposed tower. c. 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. d. The extent to which the proposal responds to the impact of the proposed development on adjacent land uses, especially in terms of visual impact. Page 26 of 37 e. The extent to which the proposed telecommunications facility is camouflaged (i.e., use of stealth technology). f. The extent to which the proposed facility is integrated with existing structures (i.e., buildings, signs, utility poles, etc.) with particular reference to design characteristics that have the effect of reducing or eliminating visual obtrusiveness. g. An applicant's compliance with all town requirements with respect to previous applications. 2. Review of Administrative Applications. a. Administrative applications will be reviewed by staff using the Town’s standard permit plan review processes. Applications for new towers shall provide staff with the same information as required in Section 17.05 C 3 for Public Review Applications. b. Applications for mobile or temporary wireless facilities which remain in place for more than seven (7) consecutive days must submit a request for a Temporary Use Permit as provided in Section 2.03 of the Zoning Ordinance. 3. Review and Processing of Public Review Applications a. Applications which require public hearing review and approval on private property will be processed as Special Use Permits and follow the requirements listed in Section 2.02 of the Town’s Zoning Ordinance for Special Use Permits. Applications on Town owned property will not require a Special Use Permit, but will follow the same requirements for notice for review by the Town Council. 3b. Factors Considered in Granting Special Use Permits for Towers: In addition to the factors listed in 17.05 C 1 for review of applications, public review applications will also be subject to the any standards for consideration of special use permit applications pursuant to Chapter 2, Section 2.02 of this Zoning Ordinance, the Town Council shall consider the following factors in determining whether to issue a special use permit, although the Town Council may waive or reduce the burden on the applicant of one or more of these criteria if the Town Council concludes that the goals of this ordinance are better served thereby: Page 27 of 37 a. Height of the proposed tower; b. Proximity of the tower to residential structures and residentially zoned district boundaries; c. Nature of uses on adjacent and nearby properties; d. Surrounding topography; e. Surrounding tree coverage and foliage; f. Design of the tower, with particular reference to design characteristics that have the effect of reducing or eliminating visual obtrusiveness. g. Proposed ingress and egress; and h. Availability of suitable existing towers, other structures, or alternative technologies not requiring the use of towers or structures, as discussed in Section 17.06(B)(4) of this chapter. 4c. Availability of Suitable Existing Towers, Other Structures, or Alternative Technology: No new tower shall be permitted unless the applicant demonstrates to the reasonable satisfaction of the Town Council that no existing tower, structure or alternative technology that does not require the use of towers or structures can accommodate the applicant's a proposed antenna. An applicant shall submit information requested by the Town Council related to the availability of suitable existing towers, other structures or alternative technology. Evidence submitted to demonstrate that no existing tower, structure or alternative technology can accommodate the applicant's proposed antenna may consist of any of the following: ai. No existing towers or structures are located within the geographic area, which meet applicant's engineering requirements. bii. Existing towers or structures are not of sufflcient height to meet applicant's engineering requirements. ciii. Existing towers or structures do not have sufflcient structural strength to support applicant's proposed antenna and related equipment. Page 28 of 37 div. The applicant's proposed antenna would cause electromagnetic interference with the antenna on the existing towers or structures, or the antenna on the existing towers or structures would cause interference with the applicant's proposed antenna. ev. The fees, costs, or contractual provisions required by the owner in order to share an existing tower or structure or to adapt an existing tower or structure for sharing are unreasonable. Costs exceeding new tower development are presumed to be unreasonable. fvi. The applicant demonstrates that there are other limiting factors that render existing towers and structures unsuitable. gvii. The applicant demonstrates that an alternative technology that does not require the use of towers or structures, such as a cable micro cell network using multiple low-powered transmitters/receivers attached to a wire line system, is unsuitable. Costs of alternative technology that exceed new tower or antenna development shall not be presumed to render the technology unsuitable. viii. If the applicant asserts a claim that a proposed facility is necessary to remedy one or more existing signiflcant gaps in an identifled wireless carrier’s personal wireless services, the Council may require the applicant to provide drive-test generated coverage maps, as opposed to computer-generated coverage maps, for each frequency at which the carrier provides personal wireless services, to show signal strengths in bins of three (3) DBM each, to enable the Council to assess the existence of such signiflcant gaps accurately, and/or whether the carrier possesses adequate coverage within the geographic area which is the subject of the respective application. 4. In granting a permit, the Town may impose conditions to the extent such conditions are necessary to minimize any adverse effect of the proposed tower on adjoining properties. Page 29 of 37 Section 17.07 Minimum Setbacks and Separation A. Setbacks: The following setback requirements shall apply to all towers; provided, however, that the Town Council may reduce the standard setback requirements if the goals of this chapter would be better served thereby: 1. Towers must be set back a distance equal to at least one hundred percent (100%) of the height of the tower from any adjoining lot line. Provided, however, that separation distances from residential uses shall be in accordance with Table 1 set forth below. 2. Accessory buildings must satisfy the minimum zoning district setback requirements. B. Separation: The following separation requirements shall apply to all towers and antennas provided, however, that the Town Council may reduce the standard separation requirements if the goals of this chapter would be better served thereby. 1. Separation from off-site uses/designated areas. a. Tower separation shall be measured from the base of the tower to the lot line of the off-site uses and/or designated areas as specifled in Table 1, except as otherwise provided in Table 1. b. Separation requirements for towers shall comply with the minimum standards established in Table 1. Table 1. Separation Requirements from Offsite Uses/Areas Off-site Use/Designated Area Separation Distance Single-family or duplex residential units1 200 feet or 300% of tower height, whichever is greater Vacant single-family or duplex residentially zoned land which is either platted or has preliminary plat approval which is not expired 200 feet or 300% of tower height, whichever is greater2 Vacant unplatted residentially zoned lands3 100 feet or 100% of tower height, whichever is greater Page 30 of 37 Off-site Use/Designated Area Separation Distance Existing multifamily residential units greater than duplex units 100 feet or 100% of tower height, whichever is greater Nonresidentially zoned lands or nonresidential uses None, only setbacks apply 1 Includes modular homes and mobile homes used for living purposes. 2 Separation measured from base of tower to closest building setback line. 3 Includes any unplatted residential use properties without a valid preliminary subdivision plan or valid development plan and any multifamily residentially zoned land greater than a duplex. 2. Separation distances between towers: Separation distances between towers shall be applicable for and measured between the proposed tower and preexisting towers. The separation distances shall be measured by drawing or following a straight line between the base of the existing tower and the proposed base, pursuant to a site plan, of the proposed tower. The separation distances (listed in linear feet) shall be as shown in Table number 2. Table 2. Separation Distances between Towers Monopole 65 ft. in height or greater Monopole less than 65 ft. in height but greater than 40 ft. in height Monopole less than 40 ft. in height Monopole 65 ft. in height or greater 2,000 feet 1,500 feet 1,000 feet Monopole less than 65 ft. in height but greater than 40 ft. in height 1,500 feet 1,500 feet 1,000 feet Monopole less than 40 ft. in height 1,000 feet 1,000 feet 750 feet Page 31 of 37 Section 17.08 Buildings or Other Equipment Storage A. Antennas Mounted on Structures or Rooftops: The equipment cabinet or structure used in association with antennas shall comply with the following: 1. The cabinet or structure shall not contain more than one hundred-twenty (120) square feet of gross fioor area or be more than eight (8) feet in height and shall be located on the ground. 2. Equipment storage buildings or cabinets shall comply with all applicable building codes. B. Antennas Mounted on Utility Poles, Light Poles, or Towers: The equipment cabinet or structure used in association with antennas shall be located in accordance with the following: 1. In residential districts, the equipment cabinet or structure may be located: a. In a required front yard or required street side yard provided the cabinet structure is no greater than three and one-half (3.5) feet in height or twenty (20) square feet of gross fioor area and the cabinet/structure is located a minimum of three (3) feet from all lot lines. The cabinet/structure shall be screened by sight obscuring landscaping which obscures at least ninety-flve percent (95%) of the structure at planting and throughout the duration of the cabinet or structure’s existence with an ultimate height not to exceed forty-two (42) inches. b. In a required rear yard, provided the cabinet or structure is no greater than flve (5) feet in height or one hundred-twenty (120) square feet in gross fioor area. The cabinet/structure shall be screened by sight obscuring landscaping which obscures at least ninety-flve percent (95%) of the structure at planting and throughout the duration of the cabinet or structure’s existence with an ultimate height of six (6) feet. c. The entry or access side of a cabinet or structure shall be gated by a solid, sight- obscuring gate that is separate from the cabinet or structure. 2. In commercial or industrial districts the equipment cabinet or structure shall be no greater than fourteen (14) feet in height or three hundred (300) square feet in gross fioor area. The structure or cabinet shall be screened by sight-obscuring landscaping with an ultimate height of sixteen (16) feet and a planted height of at least six (6) feet. The entry or access side of a cabinet or structure shall be gated by a solid, sight-obscuring gate that is Page 32 of 37 separate from the cabinet or structure. Such access way shall not face residentially zoned property. C. Modiflcation of Building Size Requirements: The requirements of Sections 17.08(A) through (C) may be modifled by the Town Council in the case of uses permitted by special use to encourage collocation. Section 17.09 Co-Location A. Good Faith: Applicants and permittees shall cooperate and exercise good faith in co-locating wireless telecommunications facilities on the same support structures or site, if the Town so requests. Good faith shall include sharing technical information to evaluate the feasibility of co- location, and may include negotiations for erection of a replacement support structure to accommodate co-location. A competitive confiict to co-location or flnancial burden caused by sharing such information normally will not be considered as an excuse to the duty of good faith. B. Third Party Technical Review: In the event a dispute arises as to whether a permittee has exercised good faith in accommodating other users, the Town may require the applicant to obtain a third party technical study at the applicant’s expense. The Town may review any information submitted by the applicant and permittee(s) in determining whether good faith has been exercised. C. Exceptions: No co-location may be required where the shared use would or does result in signiflcant interference in the broadcast or reception capabilities of the existing wireless telecommunications facilities or failure of the existing wireless telecommunications facilities to meet federal standards for emissions. D. Violation; penalty: Failure to comply with co-location requirements when feasible may result in denial of a permit request or revocation of an existing permit. Page 33 of 37 Section 17.1006 Removal of Abandoned Antennas and TowersMaintenance and Operation A. Removal of Abandoned Antennas and Towers. Any antenna or tower that is not operated for a continuous period of ninety (90) days shall be considered abandoned, and the owner of such antenna or tower shall remove the same within ninety (90) days of receipt of notice from the Town of Fountain Hills notifying the owner of such abandonment. Failure to remove an abandoned antenna or tower within said ninety (90) day period shall be grounds to remove the tower or antenna at the owner's expense. If there are two or more users of a single tower, then this provision shall not become effective until all users cease using the tower for the prescribed period. FB. State or Federal Requirements: All towers must meet or exceed current standards and regulations of the FAA, the FCC, and any other agency of the state or federal government with the authority to regulate towers and antennas. If such standards and regulations are changed, then the owners of the towers and antennas governed by this chapter shall bring such towers and antennas into compliance with such revised standards and regulations within six (6) months of the effective date of such standards and regulations, unless a different compliance schedule is mandated by the controlling state or federal agency. Failure to bring towers and antennas into compliance with such revised standards and regulations shall constitute grounds for the removal of the tower or antenna at the owner's expense. To ensure continuing compliance with such limits by all owners and/or operators of wireless communication facilities within the Town, all owners, and operators of wireless communication facilities shall submit reports as required by this section. As set forth hereinbelow, the Town may additionally require, at the owner and/or operator’s expense, independent veriflcation of the results of any analysis set forth within any reports submitted to the Town by the owner and/or operator. 1. Certiflcation of Compliance with Applicable RF Radiation Limits Within forty-flve (45) days of initial operation or a substantial modiflcation of a wireless communication facility, the owner and/or operator of each telecommunications antenna shall submit to the Development Services Director a written certiflcation by a licensed professional engineer, sworn to under penalties of perjury, that the facility’s radio frequency Page 34 of 37 emissions comply with the limits codifled within 47 CFR §1.1310(e)(1), Table 1 Sections (i) and (ii), as made applicable pursuant to 47 CFR §1.1310(e)(3). The engineer shall measure the emissions of the approved facility, including the cumulative impact from other nearby facilities, and determine if such emissions are within the limits described hereinabove. A report of these measurements and the engineer’s flndings with respect to compliance with the FCC’s Maximum Permissible Exposure (MPE) limits shall be submitted to the Development Services Director. If the report shows that the facility does not comply with applicable limits, then the owner and/or operator shall cease operation of the facility until the facility is brought into compliance with such limits. Proof of compliance shall be a certiflcation provided by the engineer who prepared the original report. The Town may require, at the applicant’s expense, independent veriflcation of the results of the analysis. 2. Random RF Radiofrequency Testing At the operator’s expense, the Town may retain an engineer to conduct random unannounced RF Radiation testing of such facilities to ensure the facility’s compliance with the limits codifled within 47 CFR §1.1310(e)(1) et seq. The Town may cause such random testing to be conducted as often as the Town may deem appropriate. However, the Town may not require the owner and/or operator to pay for more than one test per facility per calendar year unless such testing reveals that one or more of the owner and/or operator’s facilities are exceeding the limits codifled within 47 CFR §1.1310(e)(1) et seq., in which case the Town shall be permitted to demand that the facility be brought into compliance with such limits, and to conduct additional tests to determine if, and when, the owner and/or operator thereafter brings the respective facility and/or facilities into compliance. 3. Actions for Non-compliance If the Town at any time flnds that there is good cause to believe that a wireless communication facility and/or one or more of its antennas are emitting RF radiation at levels in excess of the legal limits permitted under 47 CFR §1.1310(e)(1) et seq., then a hearing shall be scheduled before the Town’s Zoning Administrator at which the owner Page 35 of 37 and/or operator of such facility shall be required to show cause why any and all permits and/or approvals issued by the Town for such facility and/or facilities should not be revoked, and a flne should not be assessed against such owner and/or operator. The owner and/or operator shall be afforded not less than two (2) weeks' written notice of the hearing. At such hearing, the burden shall be on the Town to show that, by a preponderance of the evidence, the facilities emissions exceeded the permissible limits under 47 CFR §1.1310(e)(1) et seq. In the event that the Town establishes same, the owner and/or operator shall then be required to establish, by clear and convincing evidence, that a malfunction of equipment caused their failure to comply with the applicable limits through no fault on the part of the owner/operator. If the owner and/or operator fails to establish same, the Town shall have the power to revoke any permit, building permit, and/or any other form of approval(s) which the Town Council or any other representative of the Town may have then issued to the owner and/or operator, for the respective facility. The Zoning Administrator may revoke an administrative approval. The decision of the Zoning Administrator may be appealed to the Town Manager. If the tower or antenna was approved by the Town Council, revocation will be considered by the Town Council in the same manner as the original approval. In addition, the Town may issue a civil citation for non-compliance as provided in Section 1- 8-3 of the Town Code. In the event that an owner or operator of one or more wireless communication facility is found to violate subparagraph 1. hereinabove three or more times within any flve (5) year period, then in addition to revoking any zoning approvals for the facilities which were violating the limits codifled in 47 CFR §1.1310(e)(1) et seq., the Town Council shall render a determination within which it shall deem the owner/operator prohibited from flling any applications for any new wireless personal services facilities within the Town for a period of flve (5) years. GC. Building Codes; Safety Standards: To ensure the structural integrity of towers, the owner of a tower shall ensure that it is maintained in compliance with standards contained in Page 36 of 37 applicable state or local building codes and the applicable standards for towers that are published by the Electronic Industries Association, as amended from time to time. If, upon inspection, the Town of Fountain Hills concludes that a tower fails to comply with such codes and standards and constitutes a danger to persons or property, then upon notice being provided to the owner of the tower, the owner shall have thirty (30) days to bring such tower into compliance with such standards. Failure to bring such tower into compliance within said thirty (30) days shall constitute grounds for the removal of the tower or antenna at the owner's expense. D. Noise: Wireless facilities and all related equipment must comply with all noise regulations and shall not exceed such regulations, either individually or collectively. Backup generators shall only be operated during power outages and/or for testing and maintenance purposes between the hours of 9:00 a.m. and 4:00 p.m. Section 17.1107 Nonconforming Uses A. Not Expansion of Nonconforming Use: Towers that are constructed, and antennas that are installed, in accordance with the provisions of this chapter shall not be deemed to constitute the expansion of a nonconforming use or structure. B. Pre-existing towers: Pre-existing towers shall be allowed to continue their usage as they presently exist. Routine maintenance (including replacement with a new tower of like construction and height) shall be permitted on such preexisting towers. New construction other than routine maintenance on a preexisting tower shall comply with the requirements of this chapter. C. Rebuilding Damaged or Destroyed Nonconforming Towers or Antennas: Notwithstanding other provisions of this chapter, bona flde nonconforming towers or antennas that are damaged or destroyed may be rebuilt without having to flrst obtain a special use permit and without having to meet the separation requirements specifled in Sections 17.037(A) and 17.07(B). The type, height, and location of the tower onsite shall be of the same type and intensity as the original facility approval; provided, however, that any destroyed lattice or guyed tower shall be replaced with a monopole structure only. Building permits to rebuild the facility shall comply with the then applicable building codes and shall be obtained within ninety (90) days from the date the facility is damaged or destroyed. If no permit is obtained or if said Page 37 of 37 permit expires, the tower or antenna shall be deemed abandoned as specifled in Section 17.16 A.0. Page 1 of 28 Chapter 17 Wireless Telecommunications Towers and Antennas Section 17.01 Purpose, Intent, and Applicability A. The purpose of this ordinance is to establish general guidelines for the siting of wireless communications towers and antennas. The goals of this ordinance are to: 1. Protect residential areas and land uses from potential adverse impacts of towers and antennas; 2. Encourage the location of towers in nonresidential areas; 3. Minimize the total number of towers throughout the community; 4. Strongly encourage the joint use of new and existing tower sites as a primary option rather than construction of additional single-use towers; 5. Encourage users of towers and antennas to locate them, to the extent possible, in areas where the adverse impact on the community is minimal; 6. Encourage users of towers and antennas to conflgure them in a way that minimizes the adverse visual impact of the towers and antennas through careful design, siting, landscape screening, and innovative camoufiaging techniques; 7. Enhance the ability of the providers of telecommunications services to provide such services to the community quickly, effectively, and efflciently; 8. Consider the public health and safety of communication towers; and 9. Avoid potential damage to adjacent properties from tower failure through engineering and careful siting of tower structures. In furtherance of these goals, Town of Fountain Hills shall give due consideration to the Town of Fountain Hills General Plan, the Town of Fountain Hills Zoning Ordinance, existing land uses, and environmentally sensitive areas in approving sites for the location of towers and antennas. B. It is the intent of this ordinance: Page 2 of 28 1. That no wireless communication towers or antenna be sited, constructed, reconstructed, installed, materially changed, expanded, or used unless in conformity with this Chapter. 2. To achieve a balance between the need to provide wireless services with the health, safety, and general welfare of the residents of Fountain Hills the by balancing four (4) simultaneous objectives: a. Enabling personal wireless service providers to provide adequate personal wireless services throughout the Town so that Town residents can enjoy the beneflts of same, from any FCC-licensed wireless carrier from which they choose to obtain such services; b. Minimizing the number of cell towers and/or other personal wireless service facilities needed to provide such coverage; c. Preventing, to the greatest extent reasonably practical, any unnecessary adverse impacts upon the Town’s communities, residential areas, and individual homes; and, d. Complying with all the legal requirements which the Telecommunications Act of 1996, as amended (“TCA”) imposes upon the Town, when the Town receives, processes and determines applications seeking approvals for the siting, construction and operation of cell towers and/or other personal wireless service facilities. C. Applicability. New Towers and Antennas: All new towers or antennas in Town of Fountain Hills shall be subject to these regulations. The following exceptions apply: 1. Amateur Radio Station Operators/Receive Only Antennas. This ordinance shall not govern any tower, or the installation of any antenna, that is under the maximum building height of the zoning district in which such structure is located and which is owned and operated by a federally-licensed amateur radio station operator or is used exclusively for receive only operations. 2. Preexisting Towers or Antennas. Legally established preexisting towers and preexisting antennas shall not be required to meet the requirements of this ordinance, other than the requirements of Sections 17.06 B. and C. 3. AM Array. For purposes of implementing this ordinance, an AM array, consisting of one or more tower units and supporting ground system which functions as one AM Page 3 of 28 broadcasting antenna, shall be considered one tower. Measurements for setbacks and separation distances shall be measured from the outer perimeter of the towers included in the AM array. Additional tower units may be added within the perimeter of the AM array by right. 4. Small Cell Towers in the Right-of-Way. Wireless communication towers and antenna meeting the deflnition of small wireless facilities as contained in A.R.S. 9-591 are subject to the requirements of Article 16-2, Small Wireless Facilities, of the Town Code. 5. Mobile or Temporary Towers. Mobile wireless facilities when placed on site for seven (7) consecutive days or less, provided any necessary building permit or encroachment permit is obtained. Section 17.02 Definitions As used in this ordinance, the following terms shall have the meanings set forth below: Alternative Tower Structure: means man-made trees, clock towers, bell steeples, light poles and similar alternative-design mounting structures that camoufiage or conceal the presence of antennas or towers. Antenna: means any exterior transmitting or receiving device mounted on a tower, building or structure and used in communications that radiates or captures electromagnetic waves, digital signals, analog signals, radio frequencies (excluding radar signals), wireless telecommunications signals or other communication signals. Backhaul network: means the lines that connect a provider's towers/cell sites to one or more cellular telephone switching offlces, and/or long distance providers, or the public switched telephone network. Existing Structure: means light poles, power poles, chimneys, billboards, and other similar structures, which are placed, within the Town at the time of adoption of this Chapter, except existing buildings. FAA: means the Federal Aviation Administration. FCC: means the Federal Communications Commission. Page 4 of 28 Height: means, when referring to a tower or other structure, the vertical distance measured from the natural grade level to the highest point of the structure directly above the natural grade when such structure is not located in a platted subdivision. If the structure is located in a platted subdivision, the height shall be the vertical distance measured from the flnished grade as shown on the subdivision grading plans or flnished grade as shown on the individual lot's grading plans, (whichever is lower), to the highest point of the structure directly above the flnished grade. In the event that terrain problems prevent an accurate determination of height, the Zoning Administrator shall rule as to height and appeal from that decision shall be to the Board of Adjustment. Pre-existing towers and preexisting antennas: means any tower or antenna for which a building permit has been properly issued prior to the effective date of this ordinance, including permitted towers or antennas that have not yet been constructed so long as such approval is current and not expired. Tower: means any structure that is designed and constructed primarily for the purpose of supporting one or more antennas for telephone, radio and similar communication purposes, 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, alternative tower structures, and the like. The term also includes the structure and any support thereto. Utility service antennas: means antenna attached to utility boxes, poles, switches, storage tanks, etc. and used by a utility provider to facilitate the operation of the utility system. Wireless communication: means the transmission of voice or data without cable or wires. Wireless facility: means wireless communication facilities including, but not limited to, facilities that transmit and/or receive electromagnetic signals for cellular radio telephone service, personal communications services, enhanced specialized mobile services, paging systems, and related technologies. Such facilities also include antennas, microwave dishes, parabolic antennas, and all other types of equipment used in the transmission or reception of such signals; telecommunication towers or similar structures supporting said equipment; associated equipment cabinets and/or buildings; and all other accessory development used for the provision of personal wireless services. These facilities do not include radio and television broadcast towers and government-operated public safety networks. Page 5 of 28 Section 17.03 Requirements A. General Requirements 1. Principal or Accessory Use: Antennas and towers may be considered either principal or accessory uses. A different existing use of an existing structure on the same lot shall not preclude the installation of an antenna or tower on such lot. 2. Lot Size: For purposes of determining whether the installation of a tower or antenna complies with district development regulations, including but not limited to setback requirements, lot-coverage requirements, and other such requirements, the dimensions of the entire lot shall control, even though the antennas or towers may be located on leased parcels within such lot. 3. Aesthetics: Towers and antennas shall meet the following requirements: a. Towers shall, subject to any applicable standards of the FAA, be painted a neutral color so as to reduce visual obtrusiveness. b. At a tower site, the design of the buildings and related structures shall, to the extent possible, use materials; colors, textures, screening, and landscaping that will blend them into the natural setting and surrounding buildings. c. If an antenna is installed on a structure other than a tower, the antenna and supporting electrical and mechanical equipment must be of a neutral color that is identical to, or closely compatible with, the color of the supporting structure so as to make the antenna and related equipment as visually unobtrusive as possible. d. The choice of design for installing a new personal wireless service facility or the substantial modiflcation of an existing personal wireless service facility shall be chosen to minimize the potential adverse impacts that the new or expanded facility may, or is likely to, infiict upon nearby properties. Page 6 of 28 e. Unless speciflcally required by other regulations, a telecommunications tower shall have a flnish (either painted or unpainted) that minimizes its degree of visual impact. f. Accessory Structures i. Accessory structures shall maximize the use of building materials, colors, and textures designed to blend with the natural surroundings. The use of camoufiage communications towers may be required by the Council to blend the communications tower and/or its accessory structures further into the natural surroundings. "Camoufiage" is deflned as the use of materials incorporated into the communications tower design that give communications towers the appearance of tree branches and bark coatings, church steeples and crosses, sign structures, lighting structures, or other similar structures. ii. Accessory structures shall be designed to be architecturally similar, compatible with each other, and shall be no more than twelve (12) feet high. The buildings shall be used only for housing equipment related to the particular site. Whenever possible, the buildings shall be joined or clustered so as to appear as one building. iii. No portion of any telecommunications tower or accessory structure shall be used for a sign or other advertising purpose, including but not limited to the company name, phone numbers, banners, and streamers, except the following. A sign of no greater than two square feet indicating the name of the facility owner(s) and a twenty-four-hour emergency telephone shall be posted adjacent to any entry gate. In addition, "no trespassing" or other warning signs may be posted on the fence. All signs shall conform to the sign requirements of the Town. g. Towers must be placed to minimize visual impacts. Applicants shall place towers on the side slope of the terrain so that, as much as possible, the top of the tower does not protrude over the ridgeline, as seen from public ways. h. Existing vegetation. Existing vegetation shall be preserved to the maximum extent possible. No cutting of trees shall take place on a site connected with an application made under this article prior to the approval of the special use permit use. i. Screening. Page 7 of 28 i. Tree plantings may be required to screen portions of the telecommunications tower and accessory structures from nearby residential property as well as from public sites known to include important views or vistas. Additional palm trees may be required to accompany towers which use a palm tree stealth design. ii. Where a site adjoins a residential property or public property, including streets, screening suitable in type, size and quantity shall be required by the Town Council. iii. The applicant shall demonstrate to the approving board that adequate measures have been taken to screen and abate noise emanating from on-site equipment, including but not limited to heating and ventilating units, air conditioners, and emergency power generators. Telecommunications towers shall comply with all applicable sections of this chapter as it pertains to noise control and abatement. j. Utility Services Antennas i. For antenna placed in the Town’s right-of-way with the top of the antenna less than six (6’) feet above ground level, the support structure and antenna shall be painted a neutral color to blend with the surrounding area. If the top of the antenna is six (6’) feet or more above ground level, the antenna and support structure shall utilize the approve Saguaro cactus stealth design. ii. For antenna placed on private property: 1. If placed on another utility structure such as a water tower, the antenna shall be painted to blend with the building or equipment it placed on. 2. If a separate tower structure is used, the antenna design shall comply with the provisions above in this section. 4. Lighting: Towers shall not be artiflcially lighted, unless required by the FAA or other applicable authority. If lighting is required, the lighting alternatives and design chosen must cause the least disturbance to the surrounding views. Page 8 of 28 5. Measurement: For purposes of measurement, tower setbacks and separation distances shall be calculated and applied to facilities located in the Town of Fountain Hills irrespective of municipal and county jurisdictional boundaries. 6. Not Essential Services: Towers and antennas shall be regulated and permitted pursuant to this chapter and shall not be regulated or permitted as essential services, public utilities, or private utilities. 7. Franchises: Owners and/or operators of towers or antennas shall certify that all franchises required by law for the construction and/or operation of a wireless communication system in the Town of Fountain Hills have been obtained and shall flle a copy of all required franchises with the Community Development Director. 8. Signs: No signs shall be allowed on an antenna or tower. 9. Co-location and Multiple Antenna/Tower Plan: The Town of Fountain Hills encourages tower and antenna users to submit a single application for approval of multiple towers and/or antenna sites and to submit applications, which utilize co-location with an existing wireless telecommunications provider. Applications for approval of multiple sites or for co- location with an existing provider shall be given priority in the review process. 10. Security fencing: Towers shall be enclosed by security fencing not less than six (6) feet in height and no more than eight (8) feet in height, shall be constructed of a block or masonry, and shall be equipped with an appropriate anti-climbing device; provided however, that the Town Council may waive such requirements, as it deems appropriate. 11. Landscaping: The following requirements shall govern the landscaping surrounding towers; provided, however, that the Town Council may waive such requirements if the goals of this chapter would be better served thereby. a. Tower facilities shall be landscaped with a buffer of plant materials that effectively screens the view of the tower compound from residential property. The standard buffer shall consist of a landscaped strip at least four (4) feet wide outside the perimeter of the compound. b. In locations where the visual impact of the tower would be minimal, the landscaping requirement may be reduced or waived. Page 9 of 28 c. Existing mature plant growth and natural landforms on the site shall be preserved to the maximum extent possible. 13. Noise: Submission of applications for towers and associated equipment shall include noise and acoustical information, prepared by a qualifled flrm or individual, for the base transceiver station(s), equipment buildings, and associated equipment such as air conditioning units and backup generators. The Town may require the applicant to incorporate appropriate noise baffiing materials and/or strategies to avoid any ambient noise from equipment reasonably likely to exceed the applicable noise regulations contained in Section 11-1-7 of the Town Code. 14. Any information of an engineering nature that the applicant submits, whether civil, mechanical, or electrical, shall be certifled by an Arizona Licensed Professional Engineer. 15. Application approval issued under this Chapter shall be conditioned upon veriflcation by the Town Engineer or designee that such tower structure is structurally sound. Such veriflcation shall be received by the applicant prior to submission. B. Minimum Setbacks and Separations 1. Setbacks: Except for utility service antennas, the following setback requirements shall apply to all towers; provided, however, that the Town Council may reasonably reduce the standard setback requirements if the goals of this chapter would be better served thereby: a. Towers must be set back a distance equal to at least one hundred percent (100%) of the height of the tower from any adjoining lot line. Provided, however, that separation distances from residential uses shall be in accordance with Table 1 set forth below. b. Accessory buildings must satisfy the minimum zoning district setback requirements. 2. Separation: Except for utility service antennas, the following separation requirements shall apply to all towers and antennas provided, however, that the Town Council may reasonably reduce the standard separation requirements if the goals of this chapter would be better served thereby. a. Separation from off-site uses/designated areas. Page 10 of 28 i. Tower separation shall be measured from the base of the tower to the lot line of the off-site uses and/or designated areas as specifled in Table 1, except as otherwise provided in Table 1. ii. Separation requirements for towers shall comply with the minimum standards established in Table 1. Table 1. Separation Requirements from Offsite Uses/Areas Off-site Use/Designated Area Separation Distance Single-family or duplex residential units1 200 feet or 300% of tower height, whichever is greater Vacant single-family or duplex residentially zoned land which is either platted or has preliminary plat approval which is not expired 200 feet or 300% of tower height, whichever is greater2 Vacant unplatted residentially zoned lands3 100 feet or 100% of tower height, whichever is greater Existing multifamily residential units greater than duplex units 100 feet or 100% of tower height, whichever is greater Nonresidentially zoned lands or nonresidential uses None, only setbacks apply 1 Includes modular homes and mobile homes used for living purposes. 2 Separation measured from base of tower to closest building setback line. 3 Includes any unplatted residential use properties without a valid preliminary subdivision plan or valid development plan and any multifamily residentially zoned land greater than a duplex. b. Separation distances between towers: Separation distances between towers shall be applicable for and measured between the proposed tower and preexisting towers. The separation distances shall be measured by drawing or following a straight line between the base of the existing tower and the proposed base, pursuant to a site plan, of the proposed tower. The separation distances (listed in linear feet) shall be as shown in Table number 2. Page 11 of 28 Table 2. Separation Distances between Towers Monopole 65 ft. in height or greater Monopole less than 65 ft. in height but greater than 40 ft. in height Monopole less than 40 ft. in height Monopole 65 ft. in height or greater 2,000 feet 1,500 feet 1,000 feet Monopole less than 65 ft. in height but greater than 40 ft. in height 1,500 feet 1,500 feet 1,000 feet Monopole less than 40 ft. in height 1,000 feet 1,000 feet 750 feet C. Buildings or Other Equipment Storage 1. Antennas Mounted on Structures or Rooftops: The equipment cabinet or structure used in association with antennas shall comply with the following: a. The cabinet or structure shall not contain more than one hundred-twenty (120) square feet of gross fioor area or be more than eight (8) feet in height and shall be located on the ground. b. Equipment storage buildings or cabinets shall comply with all applicable building codes. 2. Antennas Mounted on Utility Poles, Light Poles, or Towers: The equipment cabinet or structure used in association with antennas shall be located in accordance with the following: a. In residential districts, the equipment cabinet or structure may be located: i. In a required front yard or required street side yard, provided the cabinet structure is no greater than three and one-half (3.5) feet in height and twenty (20) Page 12 of 28 square feet of gross fioor area and the cabinet/structure is located a minimum of three (3) feet from all lot lines. The cabinet/structure shall be screened by sight obscuring landscaping which obscures at least ninety-flve percent (95%) of the structure at planting and throughout the duration of the cabinet or structure’s existence with an ultimate height not to exceed forty-two (42) inches. ii. In a required rear yard, provided the cabinet or structure is no greater than flve (5) feet in height or one hundred-twenty (120) square feet in gross fioor area. The cabinet/structure shall be screened by sight obscuring landscaping which obscures at least ninety-flve percent (95%) of the structure at planting and throughout the duration of the cabinet or structure’s existence with an ultimate height of six (6) feet. iii. The entry or access side of a cabinet or structure shall be gated by a solid, sight- obscuring gate that is separate from the cabinet or structure. b. In commercial or industrial districts the equipment cabinet or structure shall be no greater than fourteen (14) feet in height or three hundred (300) square feet in gross fioor area. The structure or cabinet shall be screened by sight-obscuring landscaping with an ultimate height of sixteen (16) feet and a planted height of at least six (6) feet. The entry or access side of a cabinet or structure shall be gated by a solid, sight- obscuring gate that is separate from the cabinet or structure. Such access way shall not face residentially zoned property. 3. Modiflcation of Building Size Requirements: The requirements of Sections 17.08(A) through (C) may be modifled by the Town Council in the case of uses permitted by special use to encourage collocation. D. Co-location 1. Any new telecommunications tower shall be designed to accommodate future shared use by other communications providers. 2. Good Faith: Applicants and permittees shall cooperate and exercise good faith in co- locating wireless telecommunications facilities on the same support structures or site, if the Town so requests. Good faith shall include sharing technical information to evaluate the feasibility of co-location, and may include negotiations for erection of a replacement support structure to accommodate co-location. A competitive confiict to co-location or Page 13 of 28 flnancial burden caused by sharing such information normally will not be considered as an excuse to comply with this section. 3. Third Party Technical Review: In the event a dispute arises as to whether a permittee has exercised good faith in accommodating other users, the Town may require the applicant to obtain a third-party technical study at the applicant’s expense. The Town may review any information submitted by the applicant and permittee(s) in determining whether good faith has been exercised. 4. Exceptions: No co-location may be required where the shared use would or does result in signiflcant interference in the broadcast or reception capabilities of the existing wireless telecommunications facilities or failure of the existing wireless telecommunications facilities to meet federal standards for emissions. 5. Violation; penalty: Failure to comply with co-location requirements when feasible may result in denial of a permit request or revocation of an existing permit. Section 17.04 Application Types A. Administrative: The following types of applications are processed administratively by staff: 1. Applications to change or modify an existing administratively approved wireless communication facility that remains in compliance with all ordinance requirements. 2. Applications to change or modify an existing wireless communication facility approved through public review, provided that the modiflcation will not: a. Increase the approved height of the supporting structure by more than 10% or twenty (20) feet, whichever is greater; b. Cause the original approved number of antennas to be exceeded by more than 50%; c. Increase the original approved square footage of accessory buildings by more than 200 square feet; Page 14 of 28 d. Add new, additional, or larger microwave antenna dishes; e. Expand the footprint of said support structure; or f. Potentially cause signiflcant adverse impacts on the existing support structure or the surrounding area. 3. Applications for co-location of additional antenna for an additional service provider on an existing administratively approved tower that remains in compliance with all ordinance requirements. 4. Applications for co-location of additional antenna for an additional service provider on an existing tower approved through public review, provided that the modiflcation will not: a. Increase the approved height of the supporting structure by more than 10% or twenty (20) feet, whichever is greater; b. Cause the original approved number of antennas to be exceeded by more than 50%; c. Increase the original approved square footage of accessory buildings by more than 200 square feet; d. Add new, additional, or larger microwave antenna dishes; e. Expand the footprint of said support structure; or f. Potentially cause signiflcant adverse impacts on the existing support structure or the surrounding area. 5. Applications for new utility service antenna that comply with the height and setback requirements of the zoning district in which they are located. Page 15 of 28 6. Applications for mobile or temporary wireless facilities for more than seven (7) consecutive days. 7. Applications for new towers in the following locations: a. Town property with the tower located at least three hundred (300’) from a residential zoning boundary. b. On commercial, industrial, utility, or lodging zoned property and located at least three hundred feet (300’) from a residential zoning boundary. c. Alternative tower structures when such structures and their accompanying equipment are appropriately blended into the surrounding terrain, are within the height limitations of the underlying zoning district and are at least three hundred feet (300’) from a residential zoning boundary. B. Public Review: The following types of applications require review and approval by the Town Council: 1. Towers on Town property when the tower will be located less than 300’ from a residential zoning boundary. 2. All other towers and antenna not meeting the requirements in Sec. 17.04 A or Sec. 17.04 B 1. Section 17.05 Application Submittal, Review, and Processing A. General: The following provisions shall govern the review of all wireless communication facility applications: 1. Complete Application. Applications for wireless communication facilities shall be flled electronically on the Town’s website by an owner of real property and shall contain the area proposed for the wireless communication facility using the process established by the Page 16 of 28 Director for such applications. All such applications shall include the information required in this section. Applications flled on behalf of the property owner by a third party shall include a statement from the property owner authorizing the submittal of the application. 2. Applications shall include documentation of compliance with items listed in Section 17.03 A as applicable to the application submitted. 3. Inventory of Existing Sites: Each applicant for a new tower or co-location of new antenna on an existing tower shall provide to the Development Services Director an inventory of its existing towers, antennas, or sites approved for towers or antennas, that are either within the jurisdiction of the Town of Fountain Hills or within one mile of the border thereof, including speciflc information about the location, height, and design of each tower. Each applicant shall also provide a one-year build-out plan for all other wireless communications facilities within the Town. The Development Services Director may share such information with other applicants applying for administrative approvals or special use permits under this ordinance or with other organizations seeking to locate antennas within the jurisdiction of Town of Fountain Hills, provided, however that the Development Services Director is not, by sharing such information, in any way representing or warranting that such sites are available or suitable. 4. Utility Service Antennas: a. Located in public right-of-way. These types of application are reviewed and approved through the Town’s Encroachment Permit process as provided in Town Code Article 16-1, Encroachments. b. Located on property owned by the utility company. i. If the antenna complies with the height requirements of the underlying zoning district, the plans for the antenna will be reviewed and approved with the overall site development plans if the site is being developed concurrently. If the antenna is being added to an existing utility site, the plans will be reviewed and processed consistent with the requirements of Section 17.05 C. ii. If the antenna does not comply with the height requirements of the underlying zoning district, the plans for the antenna will be reviewed and processed consistent with the requirements of Section 17.05 D. Page 17 of 28 5. Applications Using Existing Towers: a. Dimensioned, to-scale drawings showing the existing and proposed antenna on the tower including the height of the tower and the antennas. b. The number and type of existing and proposed antenna. c. Engineering calculations documenting the structural changes and certifying the tower’s ability to carry the new antennas. d. Dimensioned, to-scale drawings illustrating modiflcation of ground equipment, if any. 6. Applications Using New Towers: Information required. In addition to any information required for applications for special use permits pursuant to Chapter 2, Section 2.02 of this Zoning Ordinance, applicants for a special use permit for a tower shall submit the following information: a. A site Plan as required in Section 2.04 plus zoning, General Plan classiflcation of the site and all properties within the applicable separation distances set forth in Section 17.03 B., adjacent roadways, proposed means of access, elevation drawings of the proposed tower and any other structures, photo simulations showing the tower in the proposed location from at least four directions, and other information deemed by the Development Services Director to be necessary to assess compliance with this chapter. b. The setback distance between the proposed tower and the nearest residential unit and residentially zoned properties. c. The separation distance from other towers described in the inventory of existing sites submitted pursuant to Section 17.03 B. shall be shown on an updated site plan or map. The applicant shall also identify the type of construction of the existing tower(s) and the owner/operator of the existing tower(s), if known. d. Method of fencing, and flnished color and, if applicable, the method of camoufiage and illumination. e. A description of compliance with Sections 17.03 C. 3, 4, 5, 7, 8, 9, 10, 11, and 17.03 B. and 17.05 A. 3, and 17.06 A. and B., and all applicable federal, state or local laws. Page 18 of 28 f. A notarized statement by the applicant as to whether construction of the tower will accommodate collocation of additional antennas for future users. g. Identiflcation of the entities providing the backhaul network for the tower(s) described in the application and other cellular sites owned or operated by the applicant in the municipality. h. A description of the suitability of the use of existing towers, other structures or alternative technology not requiring the use of towers or structures to provide the services to be provided through the use of the proposed new tower. i. A description of the feasible alternative location(s) of future towers or antennas within the Town of Fountain Hills based upon existing physical, engineering, technological or geographical limitations in the event the proposed tower is erected. j. A statement of compliance with Federal Communications Commission (FCC) Radio Frequency (RF) exposure standards. 7. Filing Fee. Payment of a flling fee in an amount established by a schedule adopted by resolution of the Council and flled in the offlces of the Town Clerk. No part of the flling fee shall be returnable. B. Shot Clocks and Tolling. To comply with the requirements of Section 47 U.S.C. §332(c)(7)(B)(ii) of the TCA, the following shot clock periods set forth herein below shall be presumed to be reasonable periods within which the Town shall render determinations upon applications for wireless communication facilities. The Town shall render determinations upon such applications within the periods set forth hereinbelow, unless the applicable shot clock period listed below is tolled, extended by agreement or the processing of the application is delayed due to circumstances beyond the Town’s controls. 1. Application Shot Clocks. a. Receipt of Initial Application. Upon receipt of an application, the Development Services Director, or designee, shall review the application for completeness. If the Director determines the application is: (a) incomplete, (b) missing required application Page 19 of 28 materials, (c) is the wrong type of application, or (d) is otherwise defective, then, within ten (10) days for administrative applications and thirty (30) days for public hearing applications of the Town’s receipt of the application, the Director, or their designee, shall notify the applicant of the flnding and state what is needed to have a complete application. The notice of incompleteness shall toll the shot clock, which shall not thereafter resume running unless and until the applicant tenders an additional submission to the Director to remedy the issues identifled in the notice of incomplete application. The submission of any responsive materials by the applicant shall automatically cause the shot clock period to resume running. If upon receipt of any additional materials from the applicant, the Director determines that the application is still incomplete and/or defective, then the Director shall, once again notify the applicant within ten (10) days for administrative applications and thirty (30) days for public hearing applications of the applicant having flled its supplemental or corrected materials to the Town and the shot clock shall once again be tolled, and the same procedure provided for hereinabove shall be repeated. b. Application Review. The shock clock for Administrative applications which do not involve new towers is ninety (90) days. The shot clock for Administrative applications with new towers and Public Review applications is one hundred flfty (150) days. 2. Shot Clock Tolls, Extensions & Reasonable Delay Periods Consistent with the letter and intent of Section 47 U.S.C. §332(c)(7)(B)(ii) of the TCA, each of the shot clock periods set forth within Section 17.05 B. hereinabove shall generally be presumed to be sufflcient periods within which the Town shall render decisions upon applications. Notwithstanding same, the applicable shot clock periods may be tolled, extended by mutual agreement between any applicant and/or its representative and the Town, and the Town shall not be required to render its determination within the shot clock period presumed to be reasonable for each type of application, where the processing of such application is reasonably delayed, as described hereinbelow. Page 20 of 28 a. Tolling of the Applicable Shot Clock Due to Incompleteness and/or Applicant Error As provided for within Section 17.05 B. 1. hereinabove, in the event that the Development Services Director deems an application incomplete, the Director shall send a Notice of Incompleteness to the applicant to notify the applicant that its application is incomplete and/or contains material errors, and shall reasonably identify the missing information and/or documents and/or the error(s) in the application. If the Director sends a Notice of Incompleteness as described hereinabove, the applicable shot clock shall automatically be tolled, meaning that the applicable shot clock period within which the Town is required to render a flnal decision upon the application shall immediately cease running, and shall not resume running, unless and until the Town receives a responsive submission from the applicant. If and when the applicant thereafter submits additional information in an effort to complete its application, or cure any identifled defect(s), then the shot clock shall automatically resume running, but shall not be deemed to start running anew. The applicable shot clock period shall, once again, be tolled if the Director thereafter provides a second notice that the application is still incomplete or defective, despite any additional submissions which have been received by the Town, from the applicant, up to that point. b. Shot Clock Extension by Mutual Agreement The Town shall be free to extend any applicable shot clock period by mutual agreement with any respective applicant. This discretion on the part of the Town shall include the Town’s authority to request, at any time, and for any period of time the Town may deem reasonable or appropriate under the circumstances, consent from a respective applicant to extend the applicable shot clock period to enable the Town, the applicant, or any relevant third party, to complete any type of undertaking or task related to the review, analysis, processing, and determination of the particular application, which is then pending before the Town, to the extent that any such Undertaking, task, or review is consistent with, or reasonably related to, compliance with any federal, state, or local law and/or the requirements of any provision of the Town Code, including but not limited to this Chapter. Page 21 of 28 In response to any request by the Town, the applicant, by its principal, agent, attorney, site acquisition agent, or other authorized representative, can consent to any extension of any applicable shot clock by afflrmatively indicating its consent either in writing or by afflrmatively indicating its consent on the record at any public hearing or public meeting. The Town shall be permitted to reasonably rely upon a representative of the applicant indicating that they are authorized to grant such consent on behalf of the respective applicant, on whose behalf they have been addressing the Town within the review process. c. Reasonable Delay Extensions of Shot Clock Periods The Town recognizes that there may be situations wherein, due to circumstances beyond the control of the Town and/or the Town Council, the review and issuance of a flnal decision upon an application for a wireless communication facility cannot reasonably be completed within the application shot clock periods delineated within Section 17.05 B hereinabove. If, despite the exercise of due diligence by the Town, the determination regarding a speciflc application cannot reasonably be completed within the applicable shot clock period, the Town shall be permitted to continue and complete its review and issue its determination at a date beyond the expiration of the applicable period, if the delay of such flnal decision is due to circumstances including, but not limited to, those enumerated hereinbelow, each of which shall serve as a reasonable basis for a reasonable delay of the applicable shot clock period. i. In the event that the rendering of a flnal decision upon an application under this Chapter is delayed due to natural and/or unnatural events and/or forces which are not within the control of the Town, such as the unavoidable delays experienced in government processes due to the COVID 19 pandemic, and/or mandatory compliance with any related federal or state government orders issued in relation thereto, such delays shall constitute reasonable delays which shall be recognized as acceptable grounds for extending the period for review and the rendering of flnal determinations beyond the period allotted under the applicable shot clock. ii. In the event that applicant tenders eleventh-hour submissions to the Town in the form of (a) expert reports, (b) expert materials, and/or (c) materials which Page 22 of 28 require a signiflcant period for review due either to their complexity or the sheer volume of materials which an applicant has chosen to provide to the Town at such late point in the proceedings, the Town shall be afforded a reasonable time to review such late-submitted materials. If reasonably necessary, the Town shall be permitted to retain the services of an expert consultant to review any late-submitted expert reports which were provided to the Town, even if such review or services extend beyond the applicable shot clock period, so long as the Town completes such review and retains and secures such expert services within a reasonable period of time thereafter and otherwise acts with reasonable diligence in completing its review and rendering its flnal decision. C. Review and Processing of Applications 1. Conformity to the following shall be considered in review of all applications: a. The application is consistent with the objectives of this ordinance. b. The height of the proposed tower. c. 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. d. The extent to which the proposal responds to the impact of the proposed development on adjacent land uses, especially in terms of visual impact. e. The extent to which the proposed telecommunications facility is camouflaged (i.e., use of stealth technology). f. The extent to which the proposed facility is integrated with existing structures (i.e., buildings, signs, utility poles, etc.) with particular reference to design characteristics that have the effect of reducing or eliminating visual obtrusiveness. g. An applicant's compliance with all town requirements with respect to previous applications. Page 23 of 28 2. Review of Administrative Applications. a. Administrative applications will be reviewed by staff using the Town’s standard permit plan review processes. Applications for new towers shall provide staff with the same information as required in Section 17.05 C 3 for Public Review Applications. b. Applications for mobile or temporary wireless facilities which remain in place for more than seven (7) consecutive days must submit a request for a Temporary Use Permit as provided in Section 2.03 of the Zoning Ordinance. 3. Review and Processing of Public Review Applications a. Applications which require public hearing review and approval on private property will be processed as Special Use Permits and follow the requirements listed in Section 2.02 of the Town’s Zoning Ordinance for Special Use Permits. Applications on Town owned property will not require a Special Use Permit, but will follow the same requirements for notice for review by the Town Council. b. In addition to the factors listed in 17.05 C 1 for review of applications, public review applications will also be subject to the standards for consideration of special use permit applications pursuant to Chapter 2, Section 2.02 of this Zoning Ordinance c. Availability of Suitable Existing Towers, Other Structures, or Alternative Technology: No new tower shall be permitted unless the applicant demonstrates to the reasonable satisfaction of the Town Council that no existing tower, structure or alternative technology that does not require the use of towers or structures can accommodate the applicant's a proposed antenna. An applicant shall submit information requested by the Town Council related to the availability of suitable existing towers, other structures or alternative technology. Evidence submitted to demonstrate that no existing tower, structure or alternative technology can accommodate the applicant's proposed antenna may consist of any of the following: i. No existing towers or structures are located within the geographic area, which meet applicant's engineering requirements. ii. Existing towers or structures are not of sufflcient height to meet applicant's engineering requirements. Page 24 of 28 iii. Existing towers or structures do not have sufflcient structural strength to support applicant's proposed antenna and related equipment. iv. The applicant's proposed antenna would cause electromagnetic interference with the antenna on the existing towers or structures, or the antenna on the existing towers or structures would cause interference with the applicant's proposed antenna. v. The fees, costs, or contractual provisions required by the owner in order to share an existing tower or structure or to adapt an existing tower or structure for sharing are unreasonable. Costs exceeding new tower development are presumed to be unreasonable. vi. The applicant demonstrates that there are other limiting factors that render existing towers and structures unsuitable. vii. The applicant demonstrates that an alternative technology that does not require the use of towers or structures, such as a cable micro cell network using multiple low-powered transmitters/receivers attached to a wire line system, is unsuitable. Costs of alternative technology that exceed new tower or antenna development shall not be presumed to render the technology unsuitable. viii. If the applicant asserts a claim that a proposed facility is necessary to remedy one or more existing signiflcant gaps in an identifled wireless carrier’s personal wireless services, the Council may require the applicant to provide drive-test generated coverage maps, as opposed to computer-generated coverage maps, for each frequency at which the carrier provides personal wireless services, to show signal strengths in bins of three (3) DBM each, to enable the Council to assess the existence of such signiflcant gaps accurately, and/or whether the carrier possesses adequate coverage within the geographic area which is the subject of the respective application. 4. In granting a permit, the Town may impose conditions to the extent such conditions are necessary to minimize any adverse effect of the proposed tower on adjoining properties. Page 25 of 28 Section 17.06 Maintenance and Operation A. Removal of Abandoned Antennas and Towers. Any antenna or tower that is not operated for a continuous period of ninety (90) days shall be considered abandoned, and the owner of such antenna or tower shall remove the same within ninety (90) days of receipt of notice from the Town of Fountain Hills notifying the owner of such abandonment. Failure to remove an abandoned antenna or tower within said ninety (90) day period shall be grounds to remove the tower or antenna at the owner's expense. If there are two or more users of a single tower, then this provision shall not become effective until all users cease using the tower for the prescribed period. B. State or Federal Requirements: All towers must meet or exceed current standards and regulations of the FAA, the FCC, and any other agency of the state or federal government with the authority to regulate towers and antennas. If such standards and regulations are changed, then the owners of the towers and antennas governed by this chapter shall bring such towers and antennas into compliance with such revised standards and regulations within six (6) months of the effective date of such standards and regulations, unless a different compliance schedule is mandated by the controlling state or federal agency. Failure to bring towers and antennas into compliance with such revised standards and regulations shall constitute grounds for the removal of the tower or antenna at the owner's expense. To ensure continuing compliance with such limits by all owners and/or operators of wireless communication facilities within the Town, all owners, and operators of wireless communication facilities shall submit reports as required by this section. As set forth hereinbelow, the Town may additionally require, at the owner and/or operator’s expense, independent veriflcation of the results of any analysis set forth within any reports submitted to the Town by the owner and/or operator. 1. Certiflcation of Compliance with Applicable RF Radiation Limits Within forty-flve (45) days of initial operation or a substantial modiflcation of a wireless communication facility, the owner and/or operator of each telecommunications antenna shall submit to the Development Services Director a written certiflcation by a licensed professional engineer, sworn to under penalties of perjury, that the facility’s radio frequency emissions comply with the limits codifled within 47 CFR §1.1310(e)(1), Table 1 Sections (i) and (ii), as made applicable pursuant to 47 CFR §1.1310(e)(3). Page 26 of 28 The engineer shall measure the emissions of the approved facility, including the cumulative impact from other nearby facilities, and determine if such emissions are within the limits described hereinabove. A report of these measurements and the engineer’s flndings with respect to compliance with the FCC’s Maximum Permissible Exposure (MPE) limits shall be submitted to the Development Services Director. If the report shows that the facility does not comply with applicable limits, then the owner and/or operator shall cease operation of the facility until the facility is brought into compliance with such limits. Proof of compliance shall be a certiflcation provided by the engineer who prepared the original report. The Town may require, at the applicant’s expense, independent veriflcation of the results of the analysis. 2. Random RF Radiofrequency Testing At the operator’s expense, the Town may retain an engineer to conduct random unannounced RF Radiation testing of such facilities to ensure the facility’s compliance with the limits codifled within 47 CFR §1.1310(e)(1) et seq. The Town may cause such random testing to be conducted as often as the Town may deem appropriate. However, the Town may not require the owner and/or operator to pay for more than one test per facility per calendar year unless such testing reveals that one or more of the owner and/or operator’s facilities are exceeding the limits codifled within 47 CFR §1.1310(e)(1) et seq., in which case the Town shall be permitted to demand that the facility be brought into compliance with such limits, and to conduct additional tests to determine if, and when, the owner and/or operator thereafter brings the respective facility and/or facilities into compliance. 3. Actions for Non-compliance If the Town at any time flnds that there is good cause to believe that a wireless communication facility and/or one or more of its antennas are emitting RF radiation at levels in excess of the legal limits permitted under 47 CFR §1.1310(e)(1) et seq., then a hearing shall be scheduled before the Town’s Zoning Administrator at which the owner and/or operator of such facility shall be required to show cause why any and all permits Page 27 of 28 and/or approvals issued by the Town for such facility and/or facilities should not be revoked, and a flne should not be assessed against such owner and/or operator. The owner and/or operator shall be afforded not less than two (2) weeks' written notice of the hearing. At such hearing, the burden shall be on the Town to show that, by a preponderance of the evidence, the facilities emissions exceeded the permissible limits under 47 CFR §1.1310(e)(1) et seq. In the event that the Town establishes same, the owner and/or operator shall then be required to establish, by clear and convincing evidence, that a malfunction of equipment caused their failure to comply with the applicable limits through no fault on the part of the owner/operator. If the owner and/or operator fails to establish same, the Town shall have the power to revoke any permit, building permit, and/or any other form of approval(s) which the Town Council or any other representative of the Town may have then issued to the owner and/or operator, for the respective facility. The Zoning Administrator may revoke an administrative approval. The decision of the Zoning Administrator may be appealed to the Town Manager. If the tower or antenna was approved by the Town Council, revocation will be considered by the Town Council in the same manner as the original approval. In addition, the Town may issue a civil citation for non-compliance as provided in Section 1- 8-3 of the Town Code. In the event that an owner or operator of one or more wireless communication facility is found to violate subparagraph 1. hereinabove three or more times within any flve (5) year period, then in addition to revoking any zoning approvals for the facilities which were violating the limits codifled in 47 CFR §1.1310(e)(1) et seq., the Town Council shall render a determination within which it shall deem the owner/operator prohibited from flling any applications for any new wireless personal services facilities within the Town for a period of flve (5) years. C. Building Codes; Safety Standards: To ensure the structural integrity of towers, the owner of a tower shall ensure that it is maintained in compliance with standards contained in applicable state or local building codes and the applicable standards for towers that are published by the Page 28 of 28 Electronic Industries Association, as amended from time to time. If, upon inspection, the Town of Fountain Hills concludes that a tower fails to comply with such codes and standards and constitutes a danger to persons or property, then upon notice being provided to the owner of the tower, the owner shall have thirty (30) days to bring such tower into compliance with such standards. Failure to bring such tower into compliance within said thirty (30) days shall constitute grounds for the removal of the tower or antenna at the owner's expense. D. Noise: Wireless facilities and all related equipment must comply with all noise regulations and shall not exceed such regulations, either individually or collectively. Backup generators shall only be operated during power outages and/or for testing and maintenance purposes between the hours of 9:00 a.m. and 4:00 p.m. Section 17.07 Nonconforming Uses A. Not Expansion of Nonconforming Use: Towers that are constructed, and antennas that are installed, in accordance with the provisions of this chapter shall not be deemed to constitute the expansion of a nonconforming use or structure. B. Pre-existing towers: Pre-existing towers shall be allowed to continue their usage as they presently exist. Routine maintenance (including replacement with a new tower of like construction and height) shall be permitted on such preexisting towers. New construction other than routine maintenance on a preexisting tower shall comply with the requirements of this chapter. C. Rebuilding Damaged or Destroyed Nonconforming Towers or Antennas: Notwithstanding other provisions of this chapter, bona flde nonconforming towers or antennas that are damaged or destroyed may be rebuilt without having to flrst obtain a special use permit and without having to meet the separation requirements specifled in Sections 17.03. The type, height, and location of the tower onsite shall be of the same type and intensity as the original facility approval; provided, however, that any destroyed lattice or guyed tower shall be replaced with a monopole structure only. Building permits to rebuild the facility shall comply with the then applicable building codes and shall be obtained within ninety (90) days from the date the facility is damaged or destroyed. If no permit is obtained or if said permit expires, the tower or antenna shall be deemed abandoned as specifled in Section 17.16 A. Chapter 17 Wireless Telecommunications Towers and Antennas Section 17.01 Purpose The purpose of this ordinance is to establish general guidelines for the siting of wireless communications towers and antennas. The goals of this ordinance are to: (1) protect residential areas and land uses from potential adverse impacts of towers and antennas; (2) encourage the location of towers in nonresidential areas; (3) minimize the total number of towers throughout the community; (4) strongly encourage the joint use of new and existing tower sites as a primary option rather than construction of additional single-use towers; (5) encourage users of towers and antennas to locate them, to the extent possible, in areas where the adverse impact on the community is minimal; (6) encourage users of towers and antennas to conflgure them in a way that minimizes the adverse visual impact of the towers and antennas through careful design, siting, landscape screening, and innovative camoufiaging techniques; (7) enhance the ability of the providers of telecommunications services to provide such services to the community quickly, effectively, and efficiently; (8) consider the public health and safety of communication towers; and (9) avoid potential damage to adjacent properties from tower failure through engineering and careful siting of tower structures. In furtherance of these goals, Town of Fountain Hills shall give due consideration to the Town of Fountain Hills General Plan, the Town of Fountain Hills Zoning Ordinance, existing land uses, and environmentally sensitive areas in approving sites for the location of towers and antennas. Section 17.02 Definitions As used in this ordinance, the following terms shall have the meanings set forth below: Alternative Tower Structure: means man-made trees, clock towers, bell steeples, light poles and similar alternative-design mounting structures that camoufiage or conceal the presence of antennas or towers. Antenna: means any exterior transmitting or receiving device mounted on a tower, building or structure and used in communications that radiates or captures electromagnetic waves, digital signals, analog signals, radio frequencies (excluding radar signals), wireless telecommunications signals or other communication signals. Backhaul network: means the lines that connect a provider's towers/cell sites to one or more cellular telephone switching offices, and/or long distance providers, or the public switched telephone network. Existing Structure: means light poles, power poles, chimneys, billboards, and other similar structures, which are placed, within the Town at the time of adoption of this Chapter, except existing buildings. FAA: means the Federal Aviation Administration. FCC: means the Federal Communications Commission. Height: means, when referring to a tower or other structure, the vertical distance measured from the natural grade level to the highest point of the structure directly above the natural grade when such structure is not located in a platted subdivision. If the structure is located in a platted subdivision, the height shall be the vertical distance measured from the flnished grade as shown on the subdivision grading plans or flnished grade as shown on the individual lot's grading plans, (whichever is lower), to the highest point of the structure directly above the flnished grade. In the event that terrain problems prevent an accurate determination of height, the Zoning Administrator shall rule as to height and appeal from that decision shall be to the Board of Adjustment. Pre-existing towers and preexisting antennas: means any tower or antenna for which a building permit has been properly issued prior to the effective date of this ordinance, including permitted towers or antennas that have not yet been constructed so long as such approval is current and not expired. Tower: means any structure that is designed and constructed primarily for the purpose of supporting one or more antennas for telephone, radio and similar communication purposes, 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, alternative tower structures, and the like. The term also includes the structure and any support thereto. Section 17.03 Applicability A. New Towers and Antennas: All new towers or antennas in Town of Fountain Hills shall be subject to these regulations. B. Exceptions: 1. Amateur Radio Station Operators/Receive Only Antennas. This ordinance shall not govern any tower, or the installation of any antenna, that is under the maximum building height of the zoning district in which such structure is located and which is owned and operated by a federally-licensed amateur radio station operator or is used exclusively for receive only operations. 2. Preexisting Towers or Antennas. Legally established preexisting towers and preexisting antennas shall not be required to meet the requirements of this ordinance, other than the requirements of Sections 17.04(F) & (G). 3. AM Array. For purposes of implementing this ordinance, an AM array, consisting of one or more tower units and supporting ground system which functions as one AM broadcasting antenna, shall be considered one tower. Measurements for setbacks and separation distances shall be measured from the outer perimeter of the towers included in the AM array. Additional tower units may be added within the perimeter of the AM array by right. Section 17.04 General Requirements A. Principal or Accessory Use: Antennas and towers may be considered either principal or accessory uses. A different existing use of an existing structure on the same lot shall not preclude the installation of an antenna or tower on such lot. B. Lot Size: For purposes of determining whether the installation of a tower or antenna complies with district development regulations, including but not limited to setback requirements, lot-coverage requirements, and other such requirements, the dimensions of the entire lot shall control, even though the antennas or towers may be located on leased parcels within such lot. C. Inventory of Existing Sites: Each applicant for an antenna and/or tower shall provide to the Community Development Director an inventory of its existing towers, antennas, or sites approved for towers or antennas, that are either within the jurisdiction of the Town of Fountain Hills or within one mile of the border thereof, including speciflc information about the location, height, and design of each tower. Each applicant shall also provide a one-year build-out plan for all other wireless communications facilities within the Town. The Community Development Director may share such information with other applicants applying for administrative approvals or special use permits under this ordinance or with other organizations seeking to locate antennas within the jurisdiction of Town of Fountain Hills, provided, however that the Community Development Director is not, by sharing such information, in any way representing or warranting that such sites are available or suitable. D. Aesthetics: Towers and antennas shall meet the following requirements: 1. Towers shall, subject to any applicable standards of the FAA, be painted a neutral color so as to reduce visual obtrusiveness. 2. At a tower site, the design of the buildings and related structures shall, to the extent possible, use materials; colors, textures, screening, and landscaping that will blend them into the natural setting and surrounding buildings. 3. If an antenna is installed on a structure other than a tower, the antenna and supporting electrical and mechanical equipment must be of a neutral color that is identical to, or closely compatible with, the color of the supporting structure so as to make the antenna and related equipment as visually unobtrusive as possible. E. Lighting: Towers shall not be artiflcially lighted, unless required by the FAA or other applicable authority. If lighting is required, the lighting alternatives and design chosen must cause the least disturbance to the surrounding views. F. State or Federal Requirements: All towers must meet or exceed current standards and regulations of the FAA, the FCC, and any other agency of the state or federal government with the authority to regulate towers and antennas. If such standards and regulations are changed, then the owners of the towers and antennas governed by this chapter shall bring such towers and antennas into compliance with such revised standards and regulations within six (6) months of the effective date of such standards and regulations, unless a different compliance schedule is mandated by the controlling state or federal agency. Failure to bring towers and antennas into compliance with such revised standards and regulations shall constitute grounds for the removal of the tower or antenna at the owner's expense. G. Building Codes; Safety Standards: To ensure the structural integrity of towers, the owner of a tower shall ensure that it is maintained in compliance with standards contained in applicable state or local building codes and the applicable standards for towers that are published by the Electronic Industries Association, as amended from time to time. If, upon inspection, the Town of Fountain Hills concludes that a tower fails to comply with such codes and standards and constitutes a danger to persons or property, then upon notice being provided to the owner of the tower, the owner shall have thirty (30) days to bring such tower into compliance with such standards. Failure to bring such tower into compliance within said thirty (30) days shall constitute grounds for the removal of the tower or antenna at the owner's expense. H. Measurement: For purposes of measurement, tower setbacks and separation distances shall be calculated and applied to facilities located in the Town of Fountain Hills irrespective of municipal and county jurisdictional boundaries. I. Not Essential Services: Towers and antennas shall be regulated and permitted pursuant to this chapter and shall not be regulated or permitted as essential services, public utilities, or private utilities. J. Franchises: Owners and/or operators of towers or antennas shall certify that all franchises required by law for the construction and/or operation of a wireless communication system in the Town of Fountain Hills have been obtained and shall flle a copy of all required franchises with the Community Development Director. K. Public Notice: For purposes of this chapter, any special use request shall require public notice pursuant to Section 2.02(C) of this Zoning Ordinance except that the notice required shall include posting of the property, and mailing to all property owners within 300 feet of the proposed use, and publication in a newspaper of general circulation regardless of any expression to the contrary in Section 2.02. L. Signs: No signs shall be allowed on an antenna or tower. M. Buildings and Support Equipment: Buildings and support equipment associated with antennas or towers shall comply with the requirements of Section 17.08. N. Co-location and Multiple Antenna/Tower Plan: The Town of Fountain Hills encourages tower and antenna users to submit a single application for approval of multiple towers and/or antenna sites and to submit applications, which utilize co-location with an existing wireless telecommunications provider. Applications for approval of multiple sites or for co-location with an existing provider shall be given priority in the review process. O. Security fencing: Towers shall be enclosed by security fencing not less than six (6) feet in height and no more than eight (8) feet in height, shall be constructed of a block or masonry, and shall be equipped with an appropriate anti-climbing device; provided however, that the Town Council may waive such requirements, as it deems appropriate. P. Landscaping: The following requirements shall govern the landscaping surrounding towers; provided, however, that the Town Council may waive such requirements if the goals of this chapter would be better served thereby. 1. Tower facilities shall be landscaped with a buffer of plant materials that effectively screens the view of the tower compound from residential property. The standard buffer shall consist of a landscaped strip at least four (4) feet wide outside the perimeter of the compound. 2. In locations where the visual impact of the tower would be minimal, the landscaping requirement may be reduced or waived. 3. Existing mature plant growth and natural landforms on the site shall be preserved to the maximum extent possible. Section 17.05 Permitted Uses A. General: The uses listed in this Section are deemed to be permitted uses and shall not require administrative approval or a special use permit. B. Permitted Uses: The following uses are speciflcally permitted: 1. Antennas or towers located on property owned, leased, or otherwise controlled by the Town of Fountain Hills provided a license or lease authorizing such antenna or tower has been approved by the Town of Fountain Hills. No such license or lease shall be issued for a tower located within three hundred (300) feet of any residentially zoned property until a public hearing has been held at a regular or special Town Council meeting. 2. Alternative tower structures when such structures and their accompanying equipment are appropriately blended into the surrounding terrain, are within the height limitations of the underlying zoning district and are not nearer than three hundred (300) feet to residentially zoned and platted property. Section 17.06 Special Use Permits A. General: The following provisions shall govern the issuance of special use permits for towers or antennas by the Town Council: 1. If the tower or antenna is not a permitted use under Section 17.05 of this chapter, then a special use permit shall be required for the construction of a tower or the placement of an antenna in all zoning districts. 2. Applications for special use permits under this Section shall be subject to the procedures and requirements of Chapter 2, Section 2.02, of this Zoning Ordinance, except as modifled in this Section. 3. In granting a special use permit, the Town Council may impose conditions to the extent such conditions are necessary to minimize any adverse effect of the proposed tower on adjoining properties. 4. Any information of an engineering nature that the applicant submits, whether civil, mechanical, or electrical, shall be certifled by an Arizona Licensed Professional Engineer. 5. An applicant for a special use permit shall submit the information described in this section and a nonrefundable fee established pursuant to Section 2.02(H) of this Zoning Ordinance. 6. A Special Use Permit issued under this Chapter shall be conditioned upon veriflcation by the Town Engineer or designee that such tower structure is structurally sound. Such veriflcation shall be received by the applicant prior to submission. B. Towers: 1. Information required. In addition to any information required for applications for special use permits pursuant to Chapter 2, Section 2.02 of this Zoning Ordinance, applicants for a special use permit for a tower shall submit the following information: a. A site Plan as required in Section 2.04 plus zoning, General Plan classiflcation of the site and all properties within the applicable separation distances set forth in Section 17.07(B), adjacent roadways, proposed means of access, elevation drawings of the proposed tower and any other structures, and other information deemed by the Development Services Director to be necessary to assess compliance with this chapter. b. The setback distance between the proposed tower and the nearest residential unit and residentially zoned properties. c. The separation distance from other towers described in the inventory of existing sites submitted pursuant to Section 17.04(C) shall be shown on an updated site plan or map. The applicant shall also identify the type of construction of the existing tower(s) and the owner/operator of the existing tower(s), if known. d. Method of fencing, and flnished color and, if applicable, the method of camoufiage and illumination. e. A description of compliance with Sections 17.04(C), (D), (E), (F), (G), (J), (L), and (M), (N), (O) and (P), 17.07(A), 17.07(B) and all applicable federal, state or local laws. f. A notarized statement by the applicant as to whether construction of the tower will accommodate collocation of additional antennas for future users. g. Identiflcation of the entities providing the backhaul network for the tower(s) described in the application and other cellular sites owned or operated by the applicant in the municipality. h. A description of the suitability of the use of existing towers, other structures or alternative technology not requiring the use of towers or structures to provide the services to be provided through the use of the proposed new tower. i. A description of the feasible alternative location(s) of future towers or antennas within the Town of Fountain Hills based upon existing physical, engineering, technological or geographical limitations in the event the proposed tower is erected. j. A statement of compliance with Federal Communications Commission (FCC) Radio Frequency (RF) exposure standards. 2. Noise: No permit shall be issued for any facility, which generates a noise level greater than flfty decibels (50 db) as measured at the edge of the property upon which such facility is sited. 3. Factors Considered in Granting Special Use Permits for Towers: In addition to any standards for consideration of special use permit applications pursuant to Chapter 2, Section 2.02 of this Zoning Ordinance, the Town Council shall consider the following factors in determining whether to issue a special use permit, although the Town Council may waive or reduce the burden on the applicant of one or more of these criteria if the Town Council concludes that the goals of this ordinance are better served thereby: a. Height of the proposed tower; b. Proximity of the tower to residential structures and residentially zoned district boundaries; c. Nature of uses on adjacent and nearby properties; d. Surrounding topography; e. Surrounding tree coverage and foliage; f. Design of the tower, with particular reference to design characteristics that have the effect of reducing or eliminating visual obtrusiveness. g. Proposed ingress and egress; and h. Availability of suitable existing towers, other structures, or alternative technologies not requiring the use of towers or structures, as discussed in Section 17.06(B)(4) of this chapter. 4. Availability of Suitable Existing Towers, Other Structures, or Alternative Technology: No new tower shall be permitted unless the applicant demonstrates to the reasonable satisfaction of the Town Council that no existing tower, structure or alternative technology that does not require the use of towers or structures can accommodate the applicant's a proposed antenna. An applicant shall submit information requested by the Town Council related to the availability of suitable existing towers, other structures or alternative technology. Evidence submitted to demonstrate that no existing tower, structure or alternative technology can accommodate the applicant's proposed antenna may consist of any of the following: a. No existing towers or structures are located within the geographic area, which meet applicant's engineering requirements. b. Existing towers or structures are not of sufficient height to meet applicant's engineering requirements. c. Existing towers or structures do not have sufficient structural strength to support applicant's proposed antenna and related equipment. d. The applicant's proposed antenna would cause electromagnetic interference with the antenna on the existing towers or structures, or the antenna on the existing towers or structures would cause interference with the applicant's proposed antenna. e. The fees, costs, or contractual provisions required by the owner in order to share an existing tower or structure or to adapt an existing tower or structure for sharing are unreasonable. Costs exceeding new tower development are presumed to be unreasonable. f. The applicant demonstrates that there are other limiting factors that render existing towers and structures unsuitable. g. The applicant demonstrates that an alternative technology that does not require the use of towers or structures, such as a cable micro cell network using multiple low- powered transmitters/receivers attached to a wire line system, is unsuitable. Costs of alternative technology that exceed new tower or antenna development shall not be presumed to render the technology unsuitable. Section 17.07 Minimum Setbacks and Separation A. Setbacks: The following setback requirements shall apply to all towers; provided, however, that the Town Council may reduce the standard setback requirements if the goals of this chapter would be better served thereby: 1. Towers must be set back a distance equal to at least one hundred percent (100%) of the height of the tower from any adjoining lot line. Provided, however, that separation distances from residential uses shall be in accordance with Table 1 set forth below. 2. Accessory buildings must satisfy the minimum zoning district setback requirements. B. Separation: The following separation requirements shall apply to all towers and antennas provided, however, that the Town Council may reduce the standard separation requirements if the goals of this chapter would be better served thereby. 1. Separation from off-site uses/designated areas. a. Tower separation shall be measured from the base of the tower to the lot line of the off-site uses and/or designated areas as specifled in Table 1, except as otherwise provided in Table 1. b. Separation requirements for towers shall comply with the minimum standards established in Table 1. Table 1. Separation Requirements from Offsite Uses/Areas Off-site Use/Designated Area Separation Distance Single-family or duplex residential units1 200 feet or 300% of tower height, whichever is greater Off-site Use/Designated Area Separation Distance Vacant single-family or duplex residentially zoned land which is either platted or has preliminary plat approval which is not expired 200 feet or 300% of tower height, whichever is greater2 Vacant unplatted residentially zoned lands3 100 feet or 100% of tower height, whichever is greater Existing multifamily residential units greater than duplex units 100 feet or 100% of tower height, whichever is greater Nonresidentially zoned lands or nonresidential uses None, only setbacks apply 1 Includes modular homes and mobile homes used for living purposes. 2 Separation measured from base of tower to closest building setback line. 3 Includes any unplatted residential use properties without a valid preliminary subdivision plan or valid development plan and any multifamily residentially zoned land greater than a duplex. 2. Separation distances between towers: Separation distances between towers shall be applicable for and measured between the proposed tower and preexisting towers. The separation distances shall be measured by drawing or following a straight line between the base of the existing tower and the proposed base, pursuant to a site plan, of the proposed tower. The separation distances (listed in linear feet) shall be as shown in Table number 2. Table 2. Separation Distances between Towers Monopole 65 ft. in height or greater Monopole less than 65 ft. in height but greater than 40 ft. in height Monopole less than 40 ft. in height Monopole 65 ft. in height or greater 2,000 feet 1,500 feet 1,000 feet Monopole 65 ft. in height or greater Monopole less than 65 ft. in height but greater than 40 ft. in height Monopole less than 40 ft. in height Monopole less than 65 ft. in height but greater than 40 ft. in height 1,500 feet 1,500 feet 1,000 feet Monopole less than 40 ft. in height 1,000 feet 1,000 feet 750 feet Section 17.08 Buildings or Other Equipment Storage A. Antennas Mounted on Structures or Rooftops: The equipment cabinet or structure used in association with antennas shall comply with the following: 1. The cabinet or structure shall not contain more than one hundred-twenty (120) square feet of gross fioor area or be more than eight (8) feet in height and shall be located on the ground. 2. Equipment storage buildings or cabinets shall comply with all applicable building codes. B. Antennas Mounted on Utility Poles, Light Poles, or Towers: The equipment cabinet or structure used in association with antennas shall be located in accordance with the following: 1. In residential districts, the equipment cabinet or structure may be located: a. In a required front yard or required street side yard provided the cabinet structure is no greater than three and one-half (3.5) feet in height or twenty (20) square feet of gross fioor area and the cabinet/structure is located a minimum of three (3) feet from all lot lines. The cabinet/structure shall be screened by sight obscuring landscaping which obscures at least ninety-flve percent (95%) of the structure at planting and throughout the duration of the cabinet or structure’s existence with an ultimate height not to exceed forty-two (42) inches. b. In a required rear yard, provided the cabinet or structure is no greater than flve (5) feet in height or one hundred-twenty (120) square feet in gross fioor area. The cabinet/structure shall be screened by sight obscuring landscaping which obscures at least ninety-flve percent (95%) of the structure at planting and throughout the duration of the cabinet or structure’s existence with an ultimate height of six (6) feet. c. The entry or access side of a cabinet or structure shall be gated by a solid, sight- obscuring gate that is separate from the cabinet or structure. 2. In commercial or industrial districts the equipment cabinet or structure shall be no greater than fourteen (14) feet in height or three hundred (300) square feet in gross fioor area. The structure or cabinet shall be screened by sight-obscuring landscaping with an ultimate height of sixteen (16) feet and a planted height of at least six (6) feet. The entry or access side of a cabinet or structure shall be gated by a solid, sight-obscuring gate that is separate from the cabinet or structure. Such access way shall not face residentially zoned property. C. Modiflcation of Building Size Requirements: The requirements of Sections 17.08(A) through (C) may be modifled by the Town Council in the case of uses permitted by special use to encourage collocation. Section 17.09 Co-Location A. Good Faith: Applicants and permittees shall cooperate and exercise good faith in co-locating wireless telecommunications facilities on the same support structures or site, if the Town so requests. Good faith shall include sharing technical information to evaluate the feasibility of co- location, and may include negotiations for erection of a replacement support structure to accommodate co-location. A competitive confiict to co-location or flnancial burden caused by sharing such information normally will not be considered as an excuse to the duty of good faith. B. Third Party Technical Review: In the event a dispute arises as to whether a permittee has exercised good faith in accommodating other users, the Town may require the applicant to obtain a third party technical study at the applicant’s expense. The Town may review any information submitted by the applicant and permittee(s) in determining whether good faith has been exercised. C. Exceptions: No co-location may be required where the shared use would or does result in signiflcant interference in the broadcast or reception capabilities of the existing wireless telecommunications facilities or failure of the existing wireless telecommunications facilities to meet federal standards for emissions. D. Violation; penalty: Failure to comply with co-location requirements when feasible may result in denial of a permit request or revocation of an existing permit. Section 17.10 Removal of Abandoned Antennas and Towers Any antenna or tower that is not operated for a continuous period of ninety (90) days shall be considered abandoned, and the owner of such antenna or tower shall remove the same within ninety (90) days of receipt of notice from the Town of Fountain Hills notifying the owner of such abandonment. Failure to remove an abandoned antenna or tower within said ninety (90) day period shall be grounds to remove the tower or antenna at the owner's expense. If there are two or more users of a single tower, then this provision shall not become effective until all users cease using the tower for the prescribed period. Section 17.11 Nonconforming Uses A. Not Expansion of Nonconforming Use: Towers that are constructed, and antennas that are installed, in accordance with the provisions of this chapter shall not be deemed to constitute the expansion of a nonconforming use or structure. B. Pre-existing towers: Pre-existing towers shall be allowed to continue their usage as they presently exist. Routine maintenance (including replacement with a new tower of like construction and height) shall be permitted on such preexisting towers. New construction other than routine maintenance on a preexisting tower shall comply with the requirements of this chapter. C. Rebuilding Damaged or Destroyed Nonconforming Towers or Antennas: Notwithstanding other provisions of this chapter, bona flde nonconforming towers or antennas that are damaged or destroyed may be rebuilt without having to flrst obtain a special use permit and without having to meet the separation requirements specifled in Sections 17.07(A) and 17.07(B). The type, height, and location of the tower onsite shall be of the same type and intensity as the original facility approval; provided, however, that any destroyed lattice or guyed tower shall be replaced with a monopole structure only. Building permits to rebuild the facility shall comply with the then applicable building codes and shall be obtained within ninety (90) days from the date the facility is damaged or destroyed. If no permit is obtained or if said permit expires, the tower or antenna shall be deemed abandoned as specifled in Section 17.10. The Fountain Hills Zoning Ordinance is current through Ordinance 23-06, and legislation passed through September 19, 2023. Disclaimer: The town clerk’s office has the official version of the Fountain Hills Zoning Ordinance. Users should contact the town clerk’s office for ordinances passed subsequent to the ordinance cited above. Town Website: www.fh.az.gov Hosted by Code Publishing Company, A General Code Company. DEVELOPMENT SERVICES All that is A r i z o n a F O U N T A IN HI L L S T OWN OF INC. 1989 Existing Cell Tower LEGEND: 500' Buffer From Residential Zoning Residential Zoning