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Home My WebLink AboutAGENDApacket__09-04-24_0303_630 NOTICE OF MEETING - AMENDED REGULAR MEETING FOUNTAIN HILLS TOWN COUNCIL Mayor Ginny Dickey Vice Mayor Brenda J. Kalivianakis Councilmember Peggy McMahon Councilmember Hannah Toth Councilmember Gerry Friedel Councilmember Sharron Grzybowski Councilmember Allen Skillicorn TIME:5:30 P.M. – REGULAR MEETING WHEN:TUESDAY, WEDNESDAY, SEPTEMBER 4, 2024 WHERE: FOUNTAIN HILLS COUNCIL CHAMBERS 16705 E. AVENUE OF THE FOUNTAINS, FOUNTAIN HILLS, AZ Councilmembers of the Town of Fountain Hills will attend either in person or by telephone conference call; a quorum of the Town’s various Commission, Committee or Board members may be in attendance at the Council 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 Town Council 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 Council 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 Town Clerk 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 Council. Verbal comments should be directed through the Presiding Officer and not to individual Councilmembers. 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 Town Clerk prior to discussion, if possible. TO COMMENT IN WRITING ONLINE: Please feel free to provide your comments by visiting https://www.fountainhillsaz.gov/publiccomment and SUBMIT a Public Comment Card by 3:00 PM on the day of the meeting. These comments will be shared with the Town Council. NOTICE OF OPTION TO RECESS INTO EXECUTIVE SESSION Pursuant to A.R.S. §38-431.02, notice is hereby given to the members of the Town Council, and to the general public, that at this meeting, the Town Council may vote to go into executive session, which will not be open to the public, for legal advice and discussion with the Town's attorneys for legal advice on any item listed on the following agenda, pursuant to A.R.S. §38-431.03(A)(3). 1.CALL TO ORDER AND PLEDGE OF ALLEGIANCE – Mayor Dickey 2.INVOCATION - Pastor Keith Pavia, Christ's Church of Fountain Hills 3.ROLL CALL – Mayor Dickey 4.STATEMENT OF PARTICIPATION 5.REPORTS BY MAYOR, COUNCILMEMBERS AND TOWN MANAGER A.PROCLAMATION: Designation of September as Ovarian Cancer Awareness Month. 6.PRESENTATIONS A.Presentation: Economic Development Fourth Quarter Update 7.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 Council, and (ii) is subject to reasonable time, place, and manner restrictions. The Council 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 councilmembers may (i) respond to criticism, (ii) ask staff to review a matter, or (iii) ask that the matter be placed on a future Council agenda. 8.CONSENT AGENDA ITEMS All items listed on the Consent Agenda are considered to be routine, noncontroversial matters and will be enacted by one motion of the Council. All motions and subsequent approvals of consent items will include all recommended staff stipulations unless otherwise stated. There will be no separate discussion of these items unless a councilmember or member of the public so requests. If a councilmember or member of the public wishes to discuss an item on the Consent Agenda, he/she may request so prior to the motion to accept the Consent Agenda or with notification to the Town Manager or Mayor prior to the date of the meeting for which the item was scheduled. The items will be removed from the Consent Agenda and considered in its normal sequence on the agenda. Town Council Regular Meeting of September 4, 2024 2 A.CONSIDERATION AND POSSIBLE ACTION: Approval of a Final Plat for approximately 3 acres at the NEC of Palisades Blvd. and La Montana Drive, subdividing three commercially zoned parcels into four lots, FNP24-000001. 9.REGULAR AGENDA A.CONSIDERATION AND POSSIBLE ACTION: Appointment of a Youth Commissioner to the Community Services Advisory Commission. B.CONSIDERATION AND POSSIBLE ACTION: Adopting Resolution 2024-28 Approving the Downtown Strategy C.PUBLIC HEARING, CONSIDERATION AND POSSIBLE ACTION: Ordinance #24-08 amending Chapter 17, Wireless Telecommunication Towers and Antenna. D.CONSIDERATION AND POSSIBLE ACTION: Adopting Ordinance #24-16, Utility Service Antennas as part of the Town Code. 10.COUNCIL DISCUSSION/DIRECTION to the TOWN MANAGER Item(s) listed below are related only to the propriety of (i) placing such item(s) on a future agenda for action, or (ii) directing staff to conduct further research and report back to the Council. 11.FUTURE AGENDA ITEMS 12.SPECIAL RECOGNITION OF OUTGOING COUNCILMEMBER SHARRON GRZYBOWSKI 13.ADJOURNMENT Town Council Regular Meeting of September 4, 2024 3 Dated this ______ day of ____________________, 2024. _____________________________________________ Angela Padgett-Espiritu, Acting Town Clerk The Town of Fountain Hills endeavors to make all public meetings accessible to persons with disabilities. Please call 480-816-5100 (voice) or 1-800-367-8939 (TDD) 48 hours prior to the meeting to request reasonable accommodation to participate in the meeting or to obtain agenda information in large print format. Supporting documentation and staff reports furnished to the Council with this agenda are available for review in the Clerk's Office. On the day of the Council Meeting, the Council Chamber doors open at 5:15 p.m. for public seating. Town Council Regular Meeting of September 4, 2024 4 ITEM 5. A. TOWN OF FOUNTAIN HILLS STAFF REPORT Meeting Date: 09/04/2024 Meeting Type: Town Council Regular Meeting Agenda Type: Reports Submitting Department: Administration Prepared by: Angela Padgett-Espiritu, Executive Assistant to Manager, Mayor/Council Staff Contact Information: Request to Town Council Regular Meeting (Agenda Language): PROCLAMATION: Designation of September as Ovarian Cancer Awareness Month. Staff Summary (Background) Mayor Dickey will proclaim September as Ovarian Cancer Awareness Month. Attachments PROCLAMATION: Designation of September as Ovarian Cancer Awareness Month Form Review Form Started By: Angela Padgett-Espiritu Started On: 07/29/2024 09:33 AM Final Approval Date: 07/29/2024 ITEM 6. A. TOWN OF FOUNTAIN HILLS STAFF REPORT Meeting Date: 09/04/2024 Meeting Type: Town Council Regular Meeting Agenda Type: Presentations Submitting Department: Administration Prepared by: Amanda Jacobs, Economic Development Director Staff Contact Information: Amanda Jacobs, Economic Development Director Request to Town Council Regular Meeting (Agenda Language): Presentation: Economic Development Fourth Quarter Update Staff Summary (Background) Economic Development Director Amanda Jacobs will be presenting a fourth quarter (April 1, 2024 - June 30, 2024) Economic Development Update to the Town Council at its meeting on August 20, 2024. The presentation will include town efforts on business attraction, business retention and expansion, marketing, advertising, tourism and strategic partnerships. Attachments Fourth Quarter Report Form Review Inbox Reviewed By Date Town Attorney Aaron D. Arnson 08/08/2024 09:37 AM Town Attorney Linda Mendenhall 08/12/2024 11:50 AM Town Manager Rachael Goodwin 08/12/2024 06:22 PM Form Started By: Amanda Jacobs Started On: 08/06/2024 03:26 PM Final Approval Date: 08/12/2024 Economic Development 4th Quarter Update •New Openings •Elite Repeat (Volunteer based) •Peak Dermatology Aesthetics and Wellness (7 employees) •Coming Soon •Coffee Roasters Business Attraction •Relocations/Remodels •Guardian Training and Consulting •Spark by Hilton (formerly Comfort Inn) •Shop Local Summer Campaign •May 1 – July 31, 2024 •Partnership with FH Chamber •Collaboration with Clason Communications Business Retention & Expansion Apartment Occupancy Rate Apartment Occupancy Rate Gunsight 100% Casa Del Lago 100% Four Peaks Vista Condos 80% Pillar at Fountain Hills 93% Luna at Fountain Hills 87% Park Place at Fountain Hills 95% Average 93% Apartment Pipeline Apartmentt Namee ## off Unitss Status Redrock Center 17 Waiting for Resubmittal Malta & Saguaro 10 Waiting to Issue Park Place II & III 184 Waiting to Issue Arrow Dr. 5 Waiting to Issue Fountain Hills Blvd & Glenbrook 10 Building Permit In Review Mountainside 70 No Application Submitted Sunflower 4 No Application Submitted Rand & Saguaro 5 Under Construction Ivory & El Pueblo 11 Issued Cambria Drive & La Montaña 8 Building Permit In Review Total 324 Vacancy Rate – Existing Buildings *Calculated by the amount of vacant rental building area (RBA) in the property divided by the total existing RBA. Category Vacancy Rate (3rd Quarter) Staff Change Vacancy Rate (4th Quarter) CoStar Vacancy Rate (4th Quarter) Staff Office 23.8% (-0.8%) 10% 23% Industrial 15.7% (-4.5%) 0.8% 11.2% Retail 21.1% (-2%) 19.7% 23.1% •AOT Prop 302 •$76,351 •Fort McDowell Yavapai Nation •Pending •Salt River Pima Maricopa Indian Community •$50k for FY24 for Music Fest •FY25 Pending Grant Funding Partnerships •Arizona Office of Tourism •Fort McDowell Yavapai Nation •Fountain Hills Chamber of Commerce •Fountain Hills Unified School District •International Dark Sky Discovery Center •Fountain Hills Times Independent •Greater Phoenix Economic Development Council •River of Time Museum •Southern Arizona Arts and Cultural Alliance •Attendees •7,500 •Salt River Pima Maricopa Indian Community Grant Funding •$50,000 •Media •12 News •Fox 10 Music Fest •Hotel Occupancy: 63.6% •Social Media: 13.8% Increase •Fountain Live Feed: 153,837 views •Experience Fountain Hills Website •28k unique views (30.4% Decrease) Tourism Tourism Continued Experience FH Website Viewership Top 5 AZ Top 5 National Phoenix Los Angeles Scottsdale Las Vegas Tempe San Francisco Fountain Hills Chicago Mesa Salt Lake City Questions? ITEM 8. A. TOWN OF FOUNTAIN HILLS STAFF REPORT Meeting Date: 09/04/2024 Meeting Type: Town Council Regular Meeting Agenda Type: Consent Submitting Department: Development Services Prepared by: Farhad Tavassoli, Senior Planner Staff Contact Information: Farhad Tavassoli, Senior Planner Request to Town Council Regular Meeting (Agenda Language): CONSIDERATION AND POSSIBLE ACTION: Approval of a Final Plat for approximately 3 acres at the NEC of Palisades Blvd. and La Montana Drive, subdividing three commercially zoned parcels into four lots, FNP24-000001. Staff Summary (Background) The owners of three existing commercial properties at the northeast corner of Palisades Blvd and La Montana Drive have submitted a Final Plat to subdivide the properties into four separate commercial lots. The subject property includes full improvements and currently supports three existing buildings and a vacant pad. Building 1 currently houses the HonorHealth Group medical office and urgent care facility. Building 2 currently contains the Sonoran Style home decorating store and a vacant unit (formerly Asian Fang restaurant). Dutch Bros Coffee is the newest business and is located on the southeast portion of the site. A number of commercial units connecting Buildings 1 and 2 were recently demolished to provide additional parking for the commercial site. The area contained within the proposed Lot 3 is currently vacant. Lot sizes are proposed as follows: Lot 1 - 51,758.51 or 1.188 acres Lot 2 - 26,095.29 or 0.599 acre Lot 3 - 17,735.50 or 0.407 acre Lot 4 - 36,249.05 or 0.832 acre Ingress/egress is provided by two driveways along Palisades Blvd. measuring 24-feet and 30-feet wide. Additionally, there are two driveways along La Montana Drive, also measuring 24-feet and 30-feet wide. An existing parking lot supports the entire site. The preliminary plat for this site was approved by Town Council on May 7, 2024. To satisfy a condition prior to approval of this Final Plat, the applicant also provided staff with a copy of the recorded Codes, Covenants, and Restrictions for the site, which includes a shared parking agreement for all four lots throughout the site. Related Ordinance, Policy or Guiding Principle Zoning Ordinance Chapter 12 - Commercial Zoning Districts Subdivision Ordinance Article 2 - Platting Procedures Subdivision Ordinance Article 3 - Subdivision Design Principles & Standards Subdivision Ordinance Article 4 - Public Improvement Requirements Risk Analysis Approval will allow the applicants to further develop the property as a four-lot commercial subdivision. Denial of the Final Plat will require that the applicants re-design aspects of the proposal in order to address the reasons for denial. Recommendation(s) by Board(s) or Commission(s) N/A Staff Recommendation(s) Staff recommends approval of the Final Plat for Palisades Blvd. and La Montana Drive. SUGGESTED MOTION MOVE to approve the final plat for NEC of Palisades Blvd. and La Montana Drive. Attachments Final Plat Form Review Inbox Reviewed By Date Development Services Director John Wesley 08/22/2024 07:12 AM Form Started By: Farhad Tavassoli Started On: 08/19/2024 04:03 PM Final Approval Date: 08/22/2024 AV E LN RD A F I N A L P L A T O F 1 2 PA L I S A D E S B L V D & L A M O N T A N A D R FO U N T A I N H I L L S , A R I Z O N A VICINITY MAP A FINAL PLAT OF PALISADES BLVD & LA MONTANA DR LOCATED IN THE NORTHEAST QUARTER OF SECTION 15, AND THE NORTHWEST QUARTER OF SECTION 14, TOWNSHIP 3 NORTH, RANGE 6 EAST, OF THE GILA AND SALT RIVER MERIDIAN, MARICOPA COUNTY, ARIZONA TOWN APPROVAL SURVEYOR'S CERTIFICATION SURVEYOR SHEET INDEX BASIS OF BEARINGS SITE DATA OWNER LEGAL DESCRIPTION NOTARY ACKNOWLEDGMENT APPROVALS ASSURED WATER SUPPLY UTILITY AND PUBLIC SERVICES NOTES CONVEYANCE AND DEDICATION OWNER NOTARY ACKNOWLEDGMENT LA M O N T A N A D R PALIS A D E S B L V D EL LA G O B L V D F O U N T A I N H I L L S B L V D PALI S A D E S B O U L E V A R D LA MONTANA DRIVE CA M B R I A D R I V E 1 2 4 3 LA M O N T A N A D R I V E VE R D E R I V E R D R LEGEND A F I N A L P L A T O F 2 2 PA L I S A D E S B L V D & L A M O N T A N A D R FO U N T A I N H I L L S , A R I Z O N A ITEM 9. A. TOWN OF FOUNTAIN HILLS STAFF REPORT Meeting Date: 09/04/2024 Meeting Type: Town Council Regular Meeting Agenda Type: Regular Agenda Submitting Department: Community Services Prepared by: Kevin Snipes, Community Services Director Request to Town Council Regular Meeting (Agenda Language): CONSIDERATION AND POSSIBLE ACTION: Appointment of a Youth Commissioner to the Community Services Advisory Commission. Staff Summary (Background) The Council Subcommittees for the Towns Boards, Commissions, and Committees conduct interviews and make recommendations for membership based on the term expiration, vacancies from resignations, or changes in membership eligibility status. An appointment for the Community Services Advisory Commission Youth Commissioner will be held in September, allowing them to participate from September 2024 until June 2025. Based on the recommendation from the Council Subcommittee, the Mayor will announce the appointment to the commission. Related Ordinance, Policy or Guiding Principle Chapter 2A of the Town Code. Risk Analysis N/A Recommendation(s) by Board(s) or Commission(s) A recommendation to the Mayor has been made by the Council Subcommittee B. Staff Recommendation(s) To approve the Council Subcommittee recommendation as follows: Community Services Advisory Commission Youth Commissioner Appoint ________________________________ for a term from September 23, 2024, to June 23, 2025. SUGGESTED MOTION MOVE to approve the Council Subcommittee recommendation for the appointment of a Youth Commissioner to the Community Services Advisory Commission, as presented Form Review Inbox Reviewed By Date Town Attorney Aaron D. Arnson 08/21/2024 04:37 PM Town Manager Rachael Goodwin 08/23/2024 11:39 AM Form Started By: Patti Lopuszanski Started On: 08/21/2024 10:41 AM Final Approval Date: 08/23/2024 ITEM 9. B. TOWN OF FOUNTAIN HILLS STAFF REPORT Meeting Date: 09/04/2024 Meeting Type: Town Council Regular Meeting Agenda Type: Regular Agenda Submitting Department: Administration Prepared by: Amanda Jacobs, Economic Development Director Request to Town Council Regular Meeting (Agenda Language): CONSIDERATION AND POSSIBLE ACTION: Adopting Resolution 2024-28 Approving the Downtown Strategy Staff Summary (Background) The Downtown Strategy has not been updated since 2009. In September 2023, Council unanimously approved a three-year Community Economic Development Strategy (CEDS). One of the implementation strategies within the CEDS is to “Create a new Downtown Strategy consistent with current economic trends.” In November 2023, Council provided support for a staff-driven process to update the Downtown Strategy. For the purpose of developing this updated strategy, the area considered was north of El Lago, east of La Montana, and west of Foutain Park. This total area was divided into five sub-areas to consider some of the unique aspects of different portions of the downtown area. Staff held six focus group meetings with residents and businesses, conducted four electronic surveys and a public open house. Based on the feedback received, the Downtown Strategy focuses on four focus areas: · Land Use · Infrastructure · Economic Vitality · Public Spaces/Placemaking The new Downtown Strategy (Attachment 2) will be accomplished over multiple years and budget cycles. During the September 4 Council meeting, staff will provide a high-level overview and identify what implementation strategies are policy related and what strategies will have a future budgetary impact. Related Ordinance, Policy or Guiding Principle The Downtown Strategy is consistent with the Town's General Plan, Strategic Plan and Community Economic Development Strategy. Risk Analysis Risk Analysis If the strategy is not approved, Downtown Fountain Hills will remain "status quo" and efforts to attract and retain new businesses that generate jobs and sales tax revenue will remain difficult. Recommendation(s) by Board(s) or Commission(s) N/A Staff Recommendation(s) Staff recommends approval. SUGGESTED MOTION MOVE to Adopt Resolution 2024-28 Approving the Downtown Strategy. Attachments Resolution 2024-28 Downtown Strategy Downtown Strategy Downtown Strategy PPT Downtown Map Form Review Inbox Reviewed By Date Town Attorney Aaron D. Arnson 08/21/2024 08:53 AM Economic Development Director Amanda Jacobs 08/21/2024 08:41 PM Town Attorney Aaron D. Arnson 08/22/2024 09:19 AM Town Manager Rachael Goodwin 08/27/2024 07:58 AM Form Started By: Amanda Jacobs Started On: 08/06/2024 02:53 PM Final Approval Date: 08/27/2024 PAGE 1 RESOLUTION NO. 2024-28 A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, ADOPTING THE DOWNTOWN STRATEGY RECITALS: WHEREAS, the Town of Fountain Hills’ adopted General Plan and Strategic Plan identifies economic development as a priority; and WHEREAS, the 2023-2026 Community Economic Development Strategy (CEDS) includes an implementation strategy to “Create a new Downtown Strategy consistent with current economic trends.” WHEREAS, a healthy, vibrant downtown is an indicator of the economic and community condition of the Town, which in turn contributes to its overall growth, economic potential and perception. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS as follows: ENACTMENTS: BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS as follows: SECTION 1. The recital above is hereby incorporated as if fully set forth herein. SECTION 2. Staff is hereby authorized and directed to take the necessary steps to implement the Downtown Strategy attached hereto as Exhibit A. SECTION 3. The Mayor, the Town Manager, the Town Clerk, and the Town Attorney are hereby authorized and directed to execute all documents and to take all steps necessary to carry out the purpose and intent of this Resolution. This Resolution supersedes Resolution 2009-40 and replaces all other Resolutions pertaining to the Downtown Vision Plan or in any way addresses the Downtown Strategy for the Town of Fountain Hills. PASSED AND ADOPTED by the Mayor and Council of the Town of Fountain Hills, Arizona, this 4th day of September, 2024. (Signatures on the following page) PAGE 2 FOR THE TOWN OF FOUNTAIN HILLS: ATTESTED TO: Ginny Dickey, Mayor Angela Padgett-Espiritu, Acting Town Clerk REVIEWED BY: APPROVED AS TO FORM: Rachael Goodwin, Town Manager Aaron D. Arnson, Town Attorney PAGE 3 “EXHIBIT A” 1 | Page DRAFT Downtown Strategy Town’s Mission The Town of Fountain Hills’ purpose is to serve the best interests of the community by: providing for the safety and well-being of its residents and visitors; respecting its special, small-town character and quality of life; providing superior public services; sustaining the public trust through open and responsive government; and maintaining the stewardship and preservation of its financial and natural resources. To serve and respect and provide trust and stewardship. Town’s Vision Fountain Hills is a distinctive community designed to invigorate the body, mind and spirit, and strives to: Be stewards of this unique enclave, dedicated to preserving the environment and visual aesthetic and to living in balance with the Sonoran Desert; Champion the diversity of experiences our residents bring to our community and rely on this depth of experience to innovatively address our challenges; Be economically sustainable and anchor our vitality in an active, vibrant town core that serves us culturally, socially and economically; and, Be civic-minded and friendly, taking responsibility for our Town’s success by building partnerships and investing our talent and resources. Executive Summary The Downtown Strategy has not been updated since 2009. In September 2023, Council unanimously approved a three-year Community Economic Development Strategy (CEDS). One of the implementation strategies within the CEDS is to “Create a new Downtown Strategy consistent with current economic trends.” In November 2023, Council provided support for a staff-driven process to update the Downtown Strategy. For the purpose of developing this updated strategy, the area considered was north of El Lago, east of La Montana, and west of Foutain Park. This total area was divided into five sub-areas to consider some of the unique aspects of different portions of the downtown area. Staff held six focus group meetings with residents and businesses, conducted four electronic surveys and a public open house. Based on the feedback received, the Downtown Strategy focuses on four focus areas: • Land Use • Infrastructure • Economic Vitality • Public Spaces/Placemaking Background A vision plan was developed for the Downtown (formerly Town Center) in 2009. Over the last 14 years, several elements have been implemented to include the installation of the Avenue Linear Park and Park Place I and II. 2 | Page Focus Area 1: Land Use Having the appropriate mix of uses in a commercial area is important to its success. The types of uses desirable in a given location vary depending on the intended nature of the area. The core of a downtown depends heavily on uses that attract pedestrians and relies on a high density of customers from nearby offices, residences, and entertainment activities. The Fountain Hills primary urban core area is along the Avenue, particularly from Saguaro to Verde River. This is an area that should have a predominance of restaurants, retail stores, and entertainment venues on the ground floor facing the street. Shade and outdoor activities such as sidewalk cafes and sitting areas should be readily available. Store fronts should be highly transparent to provide interest to the pedestrians on the sidewalk. Moving away from the intense core of the Avenue, the uses can become broader with a greater mix of commercial and office uses that can be less pedestrian oriented. One of the keys to a successful urban space is the energy that comes from activity that occurs consistently throughout the day and the week. Having residents in and near the area to provide activity and support for the businesses is essential. Implementation Strategies: • Improve the use and activity within the Avenue District by: o Amending ordinances to allow sidewalk cafes and developing standards for implementation. o Encouraging active front patio usage. • Amend the zoning ordinance to require active first floor uses (restaurants, retail, entertainment) along the Avenue District. • Improve maintenance of vacant properties by amending ordinances and enforcement practices for these properties. • Remove obstacles to development and encouraging the right uses in different areas by: o Reviewing practices and procedures to assist with development. o Amending ordinances to allow up to 12 dwelling units by right on upper floors o Reviewing and amend ordinances as necessary to allow a wide range of businesses on Parkview. • Improve the design quality of buildings in the Downtown through: o Developing design guidelines for the downtown. o Establishing a façade improvement program. • Explore options to work with building owners to improve the amount and quality of shade through building awnings. Focus Area 2: Infrastructure A high-quality built environment that is safe, comfortable, and attractive is important to the success of a downtown area. Through the focus groups, surveys, and open house, a consistent theme was the need for the Town to continue to improve the public space along our streets with outdoor gathering areas, room for sidewalk 3 | Page cafes, additional shade, and lighting. There is a strong desire for creating a place where people can gather to dine, shop, and enjoy a variety of activities and walk comfortably throughout the downtown. The public right-of-way and the sidewalk system are key components of the urban fabric that provides a place for citizens to interact. Providing a consistent sidewalk system that provides connectivity throughout the downtown is critical to the long-term viability of the area. The sidewalk system needs to be free of obstructions and include ADA access to buildings and public spaces. In our environment shade is also an important part of the sidewalk system. Shade can be from trees, building awnings, or other shade structures. Given our otherwise dark skies, pedestrian oriented lighting is also important for safety. Implementation Strategies: • Implement streetscape improvements to include: o More trees and shade along the Avenue o Add sidewalks and trees along Parkview o Fill in sidewalk gaps within downtown boundary o Provide shade over gathering areas along the streets o Provide lighting at street crossings o Add festive lighting in the Avenue entertainment area • Create small, unique gathering places along the streets with shade and appropriate lighting. • Explore options to improve pedestrian connectivity between downtown and Fountain Park. • Evaluate options for improved event parking as recommended by the Downtown Parking Analysis. • Partner with Plat 208 for redevelopment of the pocket parks along the Avenue. • Coordinate with Plat 208 to improve connections from parking areas to streets within the downtown. • Determine the feasibility of installing public restrooms in the downtown area through a public- private partnership. Focus Area 3: Economic Vitality Economic vitality involves taking a proactive and collaborative approach to building and growing a diverse economic base through smart new investment, cultivating a robust ecosystem for small businesses, focusing on the unique assets of the Fountain Hills community, and fostering an environment to help build local wealth. Implementation Strategies: • Create flexible zoning uses within the Business District to attract targeted industries and new skilled talent. • Evaluate the current Entertainment District and modify to include uses such as dining, shopping and live entertainment. • Continue to collaborate with Shea-Connelly on the completion of Park Place. • Modify the Zoning Code to allow temporary uses on vacant properties. • Determine the feasibility of creating programming within the Avenue Linear Park to attract residents, visitors and businesses. 4 | Page • Continue small and large-scale events within the Avenue District and determine the feasibility of expanding event footprints to include other districts within the downtown. • Partner with The Avenue Merchant Association (TAMA), local attractions and businesses within the downtown area to create a newsletter and schedule of events that can be promoted locally and regionally. Focus Area 4: Public Spaces/Placemaking Placemaking inspires people to collectively reimagine and reinvent public spaces as the heart of every community. Strengthening the connection between people and the places they share, placemaking refers to a collaborative process by which we can shape our public realm in order to maximize shared value. With community-based participation at its center, an effective placemaking process capitalizes on a local community's assets, inspiration, and potential, and it results in the creation of quality public spaces that contribute to people's health, happiness, and well-being. Placemaking shows people just how powerful their collective vision can be. It helps them to re-imagine everyday spaces, and to see anew the potential of parks, downtowns, waterfronts, plazas, neighborhoods, streets, markets, campuses and public buildings. During the April 2023 Economic Development workshop, the following question was asked: Placemaking inspires people to collectively reimagine and reinvent public spaces as the heart of every community. Where should Fountain Hills prioritize placemaking? Below are the results: 1. Downtown 2. Four Peaks Plaza/Target Shopping Center 3. Town Hall Campus/Centennial Circle 4. Fountain Park Implementation Strategies: Arts • Partner with the Southern Arizona Arts and Cultural Alliance (SAACA) to administer murals in strategic locations identified by the town. • Partner with Plat 208 to streamline the architectural review requirements to install exterior murals on buildings located within Plat 208. • Install murals on utility boxes located in Downtown Fountain Hills over the next six years, based on town funding. (Exhibit A). • Modify the public art policy to allow for performing and temporary art. Signage • Implement Town-wide Wayfinding Signage by December 2025. • Install entryway/monument signs within each district to identify and distinguish Fountain Hills’ downtown area. • Update the existing street banners along the Avenue District. • Provide pedestrian oriented signage to direct people to businesses. • Allow for additional temporary signage during special events. 5 | Page Budget Implementation Plan The Downtown Strategy will be a multi-year plan that will have budgetary impacts that will include one- time and ongoing expenses. Budget priorities and implementation plans will be part of the annual budget process. Downtown Strategy Background •2009 Downtown Vision Plan •September 2023 Approved Community Economic Development Strategy •“Create a new Downtown Strategy consistent with current economic trends.” •November 2023 Update Downtown Strategy 2009 Downtown Plan 2024 Downtown Plan PROPOSED •Six Focus Group Meetings with Residents/Businesses •Four Electronic Surveys •Public Open House Public Outreach Focus Areas •Land Use •Infrastructure •Economic Vitality •Public Spaces/Placemaking •Allow sidewalk cafes •Active front patio usage•Active first floor uses (restaurants, retail, entertainment) •Improve maintenance of vacant properties •Amend ordinances to allow up to 12 dwelling units by right on upper floors •Develop Design Guidelines •Establish Façade Improvement Program Land Use •Implement streetscape improvements •Create small, unique gathering places •Improve pedestrian connectivity between downtown and Fountain Park •Evaluate options for improved event parking as recommended by the Downtown Parking Analysis. •Partner with Plat 208 •Redevelopment of the pocket parks along the Avenue•Improve connections from parking to streets•Restrooms (public private partnership) Infrastructure •Flexible zoning uses within the Business District •Entertainment District •Completion of Park Place •Allow temporary uses on vacant properties •Programming within the Avenue Linear Park •Expanding event footprint •Partnership with The Avenue Merchant Association (TAMA) •Downtown FH promotion and marketing Economic Vitality •Arts •Murals on utility boxes •Murals on existing buildings •Modify public art policy •Signage •Wayfinding Signage •Entryway/Monument Signs •Avenue Banners •Pedestrian oriented •Expand temporary signage during events Public Spaces/Placemaking Staff Recommendation •Staff recommends approval. Next Steps •Begin Implementing Policy Changes •Prepare Proposed Budget Requests •Initial Discussions –December 2024 Council Retreat Questions? Aven u e o f t h e F o u n t a i n s Ve r d e R i v e r D r Palis a d e s B l v d Sa g u a r o B l v d Park v i e w A v e La M o n t a n a D r Paul N o r d i n P k w y P a n o r a m a D r El La g o B l v d Districts District Strategy Business District The Avenue District South End District Civic District Saguaro Frontage Sidewalk Downtown Center Map Revised: November 14, 2023 El Lago B l v d Fountain Lake ITEM 9. C. TOWN OF FOUNTAIN HILLS STAFF REPORT Meeting Date: 09/04/2024 Meeting Type: Town Council Regular Meeting Agenda Type: Regular Agenda Submitting Department: Development Services Prepared by: John Wesley, Development Services Director Staff Contact Information: John Wesley, Development Services Director Request to Town Council Regular Meeting (Agenda Language): PUBLIC HEARING, CONSIDERATION AND POSSIBLE ACTION: Ordinance #24-08 amending Chapter 17, Wireless Telecommunication Towers and Antenna. Staff Summary (Background) Background Attached for Council review 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 with the Planning and Zoning Commission since January 2024. This topic came to the attention of the attention of the Council and staff with public comments starting in 2022. The initial comments centered primarily on concerns about 5G and the possibility of many small cell towers being located in residential areas of the Town. Concerns were also expressed about cell towers and wireless services in general. Subsequently, concerns have also been expressed about broadband services, the need to have an underground broadband network throughout the town, and understanding and controlling the amount of RF radiation in Town. Based on the initial comments from the public, the state statute limitations on regulating small cell facilities, challenges staff has with the current regulations, and discussions with the Council, staff has prepared the attached update to Chapter 17 of the Zoning Ordinance. This chapter of the Zoning Ordinance addresses all towers and antennas other than small cell facilities located in the public right-of-way. We do not currently have any small cell facilities in Town right-of-ways, no pending applications, or inquiries about installing such towers. In the future, as directed by the Town Council, the following items could also be addressed: Modifications to the rules and regulations for small cell wireless facilities in the right of way. 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 Promoting the development of a comprehensive underground broadband network. It is understood that the most reliable broadband service comes through an underground fiber optic network. 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) There are federal rules which impact a local jurisdiction's ability to regulate the provision of wireless communication services. The rules are found in 47 U.S.C. §332, specifically 47 U.S.C. §332 (c) (7) A which provides the allowance and limitations on local review. Key components of these rules state a local government's regulations cannot have the effect of prohibiting the provision of personal wireless services, that the local government must act on a request within a reasonable period of time, and that a local government cannot regulate based on the basis of the environmental effects of radio frequency emissions. A copy of this section is attached. Review of Draft Ordinance The draft ordinance was reviewed in a report prepared for the May and July 2024 Planning and Zoning Commission meetings. There were comments made at those meetings, as well as at the June Planning and Zoning Commission meeting regarding possible changes to the draft ordinance. The Commission ultimately voted to forward the draft ordinance to the Council without a recommendation. Based on comments made at the Commission meetings and further review by staff, some modifications were made to the ordinance as presented to the Planning and Zoning Commission. The following is a review of the ordinance as attached to this Council report. 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 The purpose statements in A. were broken into a numbered list to make them easier to read. Purpose statements give an overview of the need for the regulation and what the Town is trying to accomplish through the regulation. These statements are not regulatory. Adding a new Section B, Intent, to further define the Town's interest and concerns regarding wireless communications. Section 17.01 B 2 provides a four-part test for the purpose and intent of this ordinance. As part of this introductory section of the code, this is a "test" for understanding the purpose and intent of the code which the Town was trying to achieve in the drafting and adoption of the ordinance. The ordinance should provide 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, Applicability, up to this introductory section as 17.01 C. This section starts by stating all wireless communication towers and antennas shall be subject to these regulations. The section then provides six exemptions. The first three are in the current ordinance; three additional items 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. Utility Service Antennas in the right-of-way. These will be covered in a new Article 16-3 being added to the Town Code to address these types of towers and antennas. 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, utility service antenna, 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. Also added is a definition of wireless communication 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 number was reused for basic requirements of the code. Existing: Section 17.04 General Requirements Proposed: Section 17.03 Requirements This section contains the requirements and standards applied to the location and construction of towers and antennas. Most of the requirements are the same as the current ordinance but there are some additions and changes based on identified needs and standards contained in the consultant's draft ordinance. Some standards of the current ordinance have been relocated to provide a better flow to the ordinance requirements. Subsection A provides a list of design criteria for towers and antennas, Subsection B provides the requirements for setbacks and separations from uses and other towers, Subsection C provides standards for other buildings and equipment, and Subsection D address co-location. 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 as part of the application requirements. 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 standards provided are designed to help hide the towers and antennas as well as the ground equipment. 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. This replaces what is currently in Section 17.06 B 2. What are now Sections 17.03 A 14 and 15 were 17.06 A 4 and 6 in the existing ordinance. 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 proposed a few changes to this section for clarification. The standards themselves are unchanged. Section 17.03 B 1 provides a minimum setback for a freestanding tower from any property lines Section 17.03 B 1 provides a minimum setback for a freestanding tower from any property lines for the property containing the tower. Changes made in this section include: Adding an exception for utility service antennas. These antennas typically go on other existing equipment and must have a line of sight connection to other antennas. They are also typically smaller towers and antennas. Given the constraints on location, it could present an issue to require the lot line setback requirement. Section 17.03 B 2 provides separation requirements. The first part deals with separation of towers from different land uses and the second part addresses separation between towers. Changes made in this section include: An exception for utility service antennas for the same reasons as described above. In Table 1, amended the word unit to building in the first box. and amended the footnote to clarify where the measurements are made. In Table 1, moved footnote 2 from the right column to the left column. 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. 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. 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 and provide a minimum level of required co-location capability. 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. Administrative. This section describes the different types of applications which can be reviewed and approved administratively. Most of the administrative approvals are for modifications to previously approved towers and antennas. Items 5, 6, and 7 allow for administrative review of new towers under very specific conditions. administrative review of new towers under very specific conditions. A shortcoming of the current ordinance is the lack of direction on modifications to existing towers and the replacement or modification of existing 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. B. Public Review. A tower in a residential district or within 300' of a residential district requires Council approval. 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 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 greater protection for residential properties. The other type of towers that require Council review are those that do not meet the separation requirements specified in Section 17.03 B 2. 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 ordinance 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 provide clear directions for all types of applications and also provides information regarding shot clocks and tolling for application review. A. Provides an overview of general application requirements. The language regarding 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 antennas used to provide communication within the utility system. 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 and was taken from the consultant's draft 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 on private property 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. For applications on Town property, the notice requirements of Section 2.02 apply, but the application is only reviewed by the Town Council because these do not require a SUP. 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). 2. Provides the actions which can be taken to enforce the RF limits (from the consultant's draft 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) The Planning and Zoning Commission began their review of this topic at their January 2024 meeting with an opportunity for input from the public and Commissioners. This was followed up by discussions at the February, April, and June meetings. The draft ordinance was reviewed at the May and July meetings of the Commission. Discussions by the Commission focused on topics of protecting property values, radiation limits, regulating broadband. The Zoning Ordinance requires the Planning and Zoning Commission to make a recommendation on an ordinance amendment within 90 days of their public hearing. Their hearing was conducted on May 13, therefore, they needed to act prior to their August 12 meeting date. At their July meeting there was extensive discussion and comments for possible modification. Given they did not have the opportunity for an additional meeting to work out the possible modifications to the ordinance as presented by staff, the Commission voted to send the draft ordinance on with no recommendation. Staff Recommendation(s) Staff supports the changes contained in the draft ordinance and described in this report. SUGGESTED MOTION Move to adopt Ordinance #24-08. Attachments Attachments Ordinance 24-08 Strikethrough ordinance changes Existing Ordinance, Chapter 17 Federal Requirements Opposition memo from CTIA Form Review Inbox Reviewed By Date Development Services Director (Originator)John Wesley 08/12/2024 11:56 AM Form Started By: John Wesley Started On: 07/10/2024 05:45 PM Final Approval Date: 08/12/2024 ORDINANCE NO. 24-08 AN ORDINANCE OF THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, AMENDING THE FOUNTAIN HILLS ZONING ORDNANCE BY REPEALING AND REPLACING CHAPTER 17 WIRELESS TELECOMMUNICATIONS TOWERS AND ANTENNAS ENACTMENTS: NOW THEREFORE BE IT ORDAINED BY THE MAYOR AND TOWN COUNCIL OF FOUNTAIN HILLS, ARIZONA, as follows: SECTION 1. That Chapter 17, Wireless Telecommunications Towers and Antennas is hereby repealed and replaced with a new Chapter 17, Wireless Telecommunications Towers and Antennas as contained in Exhibit A attached hereto. SECTION 2. In accordance with Article II, Sections 1 and 2, Constitution of Arizona, and the laws of the State of Arizona, the City/Town Council has considered the individual property rights and personal liberties of the residents of the City/Town and the probable impact of the proposed ordinance on the cost to construct housing for sale or rent before adopting this ordinance. PASSED AND ADOPTED by the Mayor and Council of the Town of Fountain Hills, Maricopa County, Arizona, this 4th day of September 2024. FOR THE TOWN OF FOUNTAIN HILLS: ATTESTED TO: ___________________________________ __________________________________ Ginny Dickey, Mayor Angela Padgett-Espiritu, Acting Town Clerk REVIEWED BY: APPROVED AS TO FORM: ____________________________________ __________________________________ Rachael Goodwin, Town Manager Aaron D. Arnson, Town Attorney Exhibit A 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 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; 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. B. It is the intent of this ordinance: 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 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 benefits 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. 1. 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 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 definition 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. 6. Utility Service Antennas in the Right-of-Way. Utility service antennas as defined in this Chapter placed in the public right-of-way are subject to the requirements of Article 16-3, Utility Service Antenna, of the Town Code. 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 camouflage 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 finished grade as shown on the subdivision grading plans or finished grade as shown on the individual lot's grading plans, (whichever is lower), to the highest point of the structure directly above the finished 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 placed on or near 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 communication 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. 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 wireless communication facility or the substantial modification of an existing wireless communication facility shall be chosen to minimize the potential adverse impacts that the new or expanded facility may, or is likely to, inflict upon nearby properties. Stealth designs such as mono-palms or flagpoles should be utilized to camouflage the pole and antennas. 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 camouflage communications towers may be required by the Council to blend the communications tower and/or its accessory structures further into the natural surroundings. "Camouflage" is defined 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 application. 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. The standard buffer shall consist of a landscaped strip at least four (4) feet wide outside the perimeter of the compound. 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. If placed on another utility structure such as a water tower, the antenna shall be painted to blend with the building or equipment it is placed on. ii. If a separate tower structure is used, the design shall comply with the provisions in this section. 4. Lighting: Towers shall not be artificially 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. 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 file a copy of all required franchises with the Community Development Director. 8. Signs: No signs other than those required by law 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. Noise: Submission of applications for towers and associated equipment shall include noise and acoustical information, prepared by a qualified firm 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 baffling 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. 12. Any information of an engineering nature that the applicant submits, whether civil, mechanical, or electrical, shall be certified by an Arizona Licensed Professional Engineer. 13. Application approval issued under this Chapter shall be conditioned upon verification by the Town Engineer or designee that such tower structure is structurally sound. Such verification shall be received by the applicant prior to submission. B. Minimum Setbacks and Separations 1. Setbacks from property lines: 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 fi 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 the setback distance shall be increased as required to comply with the separation distances from residential uses in accordance with Table 1 set forth below. b. Accessory buildings must satisfy the minimum zoning district setback requirements. 2. Separations from adjacent uses: 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 specified 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 buildings1 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 expired2 200 feet or 300% of tower height, whichever is greater 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. Separation measured from base of tower to the closest building wall. 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 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 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 floor 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 floor 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-five 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 five (5) feet in height or one hundred-twenty (120) square feet in gross floor area. The cabinet/structure shall be screened by sight obscuring landscaping which obscures at least ninety-five 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 floor 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. Modification of Building Size Requirements: In the case of wireless facilities considered by the Town Council, the requirements of Sections 17.03 C. 1. and 2. may be modified by the Town Council to address site specific conditions and requirements. D. Co-location 1. Any new telecommunications tower shall be designed to accommodate future shared use by other communications providers. Design considerations shall include sufficient area for additional ground equipment, structural design of the tower, and sufficient electrical power available for the load of at least two (2) additional wireless service 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 conflict to co-location or financial 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 significant 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 modification 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 significant 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 modification 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 significant 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: 1. Any new tower or modification to existing towers or antennas that do not meet the requirements in Section 17.04 A. for administrative review shall require review and approval as provided in Section 17.05 C. 3. 2. Any new tower not meeting the setback or separation requirements in Section 17.03 B. 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 filed 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 filed 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 specific 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. 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. 2. b. 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 C. 3. 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 antennas. c. Engineering calculations documenting the structural changes and certifying the tower’s ability to carry the new antennas. d. Dimensioned, to-scale drawings illustrating modification 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 new wireless facility shall submit the following information: a. A Site Plan as required in Section 2.04 plus zoning, General Plan classification of the site and all properties within the applicable separation distances set forth in Section 17.03 B. 1., 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. 2. 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 finished color and, if applicable, the method of camouflage 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. f. A notarized statement by the applicant as to whether construction of the tower will accommodate collocation of additional antennas for future users. g. Identification 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 filing fee in an amount established by a schedule adopted by resolution of the Council and filed in the offices of the Town Clerk. No part of the filing 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: i. incomplete, ii. missing required application materials, iii. is the wrong type of application, or iv. 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 finding 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 identified 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 filed 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 shot 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 fifty (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 sufficient 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 final 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 identified 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. 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 affirmatively indicating its consent either in writing or by affirmatively 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 final 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 specific 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 final 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 final 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 final 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 significant 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 final 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. 2. Review of Administrative Applications. a. Administrative applications will be reviewed by staff using the Town’s standard building permit review processes. b. Applications for new towers shall provide staff with the same information as required in Section 17.05 C. 3. for Public Review Applications.c. 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 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 sufficient height to meet applicant's engineering requirements. iii. Existing towers or structures do not have sufficient 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 significant gaps in an identified 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 significant 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. 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. 1. 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. 2. 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 verification of the results of any analysis set forth within any reports submitted to the Town by the owner and/or operator. a. Certification of Compliance with Applicable RF Radiation Limits Within forty-five (45) days of initial operation or a substantial modification of a wireless communication facility, the owner and/or operator of each telecommunications antenna shall submit to the Development Services Director a written certification by a licensed professional engineer, sworn to under penalties of perjury, that the facility’s radio frequency emissions comply with the limits codified 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 also measure the emissions of the approved wireless facility, including the cumulative impact from other nearby wireless facilities, and determine if such emissions are within the limits described hereinabove. A report of these measurements and the engineer’s findings 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 certification provided by the engineer who prepared the original report. The Town may require, at the applicant’s expense, independent verification of the results of the analysis. b. Random RF Radiofrequency Testing At the operator’s expense, the Town may retain an engineer to conduct random unannounced RF Radiation testing of such wireless facilities to ensure the facility’s compliance with the limits codified 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 codified within 47 CFR §1.1310(e)(1) et seq., in which case the Town shall be permitted to demand that the wireless 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 wireless facility and/or facilities into compliance. 3. Actions for Non-compliance If the Town at any time finds 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 and/or approvals issued by the Town for such facility and/or facilities should not be revoked, and a fine 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 five (5) year period, then in addition to revoking any zoning approvals for the facilities which were violating the limits codified 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 filing any applications for any new wireless personal services facilities within the Town for a period of five (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 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 fide nonconforming towers or antennas that are damaged or destroyed may be rebuilt without having to first obtain a special use permit and without having to meet the separation requirements specified in Section 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 specified in Section 17.06 A. 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 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. 1. and C(F) & . Field Code Changed 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. 6. Utility Service Antennas in the Right-of-Way. Utility service antennas as deflned in this Chapter placed in the public right-of-way are subject to the requirements of Article 16-3, Utility Service Antenna, of the Town Code. 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. Page 4 of 37 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. Utility service antennas: means antenna placed on or near 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 communication 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, Page 5 of 37 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. 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. Field Code Changed Field Code Changed Page 6 of 37 Section 17.034 General 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. 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 Page 7 of 37 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 wireless communication facility or the substantial modiflcation of an existing wireless communication 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. Stealth designs such as mono-palms or fiagpoles should be utilized to camoufiage the pole and antennas. 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 application. 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. The standard buffer shall consist of a landscaped strip at least four (4) feet wide outside the perimeter of the compound. 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. If placed on another utility structure such as a water tower, the antenna shall be painted to blend with the building or equipment it is placed on. ii. If a separate tower structure is used, the design shall comply with the provisions in this section. 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 Page 9 of 37 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. 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. Page 10 of 37 L8. Signs: No signs other than those required by law 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. 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. 11. 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 Page 11 of 37 noise from equipment reasonably likely to exceed the applicable noise regulations contained in Section 11-1-7 of the Town Code. 12. Any information of an engineering nature that the applicant submits, whether civil, mechanical, or electrical, shall be certifled by an Arizona Licensed Professional Engineer. 13. 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 from property lines: 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 fl 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 the setback distance shall be increased as required to comply with the 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. Separations from adjacent uses: 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. ii. Separation requirements for towers shall comply with the minimum standards established in Table 1. Page 12 of 37 Table 1. Separation Requirements from Offsite Uses/Areas Off-site Use/Designated Area Separation Distance Single-family or duplex residential buildings1 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 expired2 200 feet or 300% of tower height, whichever is greater 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. Separation measured from base of tower to the closest building wall. 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 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: In the case of wireless facilities considered by the Town Council, the requirements of Sections 17.03 C. 1. and 2. may be modifled by the Town Council to address site speciflc conditions and requirements. D. Co-location 1. Any new telecommunications tower shall be designed to accommodate future shared use by other communications providers. Design considerations shall include sufflcient area for additional ground equipment, structural design of the tower, and sufflcient electrical power available for the load of at least two (2) additional wireless service 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 Page 15 of 37 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. 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 Page 16 of 37 zoned and platted property.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; 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; Page 17 of 37 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. 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. Page 18 of 37 B. Public Review: 1. Any new tower or modiflcation to existing towers or antennas that do not meet the requirements in Section 17.04 A. for administrative review shall require review and approval as provided in Section 17.05 C. 3. 2. Any new tower not meeting the setback or separation requirements in Section 17.03 B. 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 Page 19 of 37 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 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. 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. 2. Page 20 of 37 b. 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 C. 3. 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 antennas. 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 new wireless facility use permit for a tower shall submit the following information: a. A sSite 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.) 1., 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.) 2. 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: i. incomplete, ii. missing required application materials, iii. is the wrong type of application, or iv. 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 shot 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 building permit review processes. b. Applications for new towers shall provide staff with the same information as required in Section 17.05 C. 3. for Public Review Applications. c. 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 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.: 1. 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. 2. 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. a. 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 Page 34 of 37 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). The engineer shall also measure the emissions of the approved wireless facility, including the cumulative impact from other nearby wireless 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. b. Random RF Radiofrequency Testing At the operator’s expense, the Town may retain an engineer to conduct random unannounced RF Radiation testing of such wireless 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 wireless 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 wireless 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 Page 35 of 37 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 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. Page 36 of 37 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 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 Page 37 of 37 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 17.1006 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. 47 USC §332 (c) (7) Preservation of local zoning authority (A) General authority Except as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities. (B) Limitations (i) The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof— (I) shall not unreasonably discriminate among providers of functionally equivalent services; and (II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services. (ii) A State or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request. (iii) Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record. (iv) No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission’s regulations concerning such emissions. (v) Any person adversely affected by any final action or failure to act by a State or local government or any instrumentality thereof that is inconsistent with this subparagraph may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction. The court shall hear and decide such action on an expedited basis. Any person adversely affected by an act or failure to act by a State or local government or any instrumentality thereof that is inconsistent with clause (iv) may petition the Commission for relief. (C) Definitions For purposes of this paragraph— (i) the term “personal wireless services” means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services; (ii) the term “personal wireless service facilities” means facilities for the provision of personal wireless services; and (iii) the term “unlicensed wireless service” means the offering of telecommunications services using duly authorized devices which do not require individual licenses, but does not mean the provision of direct-to-home satellite services (as defined in section 303(v) of this title). 1400 16th Street, NW · Suite 600 · Washington, DC 20036 · www.ctia.org July 8, 2024 Chairperson Peter Gray Fountain Hills Planning and Zoning Commission 16705 E. Avenue of the Fountains Fountain Hills, AZ 85268 RE: Amendments to Zoning Ordinance Chapter 17, Wireless Telecommunications Towers and Antennas Dear Chairperson Gray and Commissioners: CTIA®, the trade association for the wireless communications industry, respectfully submits these comments on the proposed amendments to Chapter 17 of Fountain Hills’s Zoning Ordinance, entitled “Wireless Telecommunications Towers and Antennas” (“Ordinance”). Fountain Hills’s residents, schools, government, and other users increasingly count on wireless services for their voice, text, and broadband communications, including Internet access, and rely on wireless connectivity in emergencies. Meeting their growing demand for wireless communications requires reliable and ubiquitous service, which in turn requires our members to continually upgrade and expand networks. Reasonable, transparent regulations help our members deliver high-quality service while also promoting the Town’s interests. As such, CTIA appreciates the opportunity to submit these comments on the proposed amendments to the Ordinance. While many provisions are reasonable and workable, CTIA is concerned that other provisions impose unwarranted and burdensome requirements that could impair wireless service or could be inconsistent with federal law, and urge the Commission to reject these amendments. Our members look forward to working with you to advance high-quality wireless service to Fountain Hills and meet the Ordinance’s stated purposes. Section 17.03.A.3.1 These amendments would add multiple new requirements to regulate the appearance of wireless towers and antennas. It is unclear how these new requirements, set out in Sections A.3.d. through j., mesh with the existing appearance requirements that are not being amended. The new requirements would impose varying standards and terms (e.g., “visual obtrusiveness” vs. “visual impact”) that will complicate application reviews and leave wireless providers uncertain as to how to comply. For example, the new provisions impose different landscaping standards than the old provisions, but the old provisions remain in the Ordinance. In addition, there is no explanation as to why the existing regulations have proven insufficient to achieve the Town’s policies for wireless siting. In fact, existing regulations ensure that antennas and towers have minimal visual impacts on nearby properties. Grafting multiple new and different requirements onto them is 1 References to section numbers are to the “new” numbers in the Ordinance as it would be amended. 1400 16th Street, NW · Suite 600 · Washington, DC 20036 · www.ctia.org unnecessary. Several specific new provisions in Section 17.03.A.3 raise additional problems and should not be included in the amended Ordinance. Section 17.03.A.3.d This section requires that site design “shall be chosen to minimize the potential adverse effects that the new or expanded facility may, or is likely to, inflict upon nearby properties.” However, there is no basis for the Town to police an applicant’s design. Rather, design choice should be up to the applicant if the design meets the Ordinance’s objective standards, such as antenna dimensions. In addition, the new language is subjective – it fails to provide applicants with fair notice as to what designs are acceptable. Applying it will lead to uncertainty and delay. Section 17.03.A.3.g. This new provision requires that "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." This restriction is likely to undermine the Town’s objective to minimize new sites because placing a site below a ridgeline on a slope will severely restrict signal propagation from the tower since wireless signals travel via line of sight. The smaller coverage area is thus likely to generate more applications for facilities to cover the same service area. Section 17.03.A.3.h. The second sentence prohibits any tree cutting without a special use permit. The flat prohibition would impose significant delays and further submissions to apply for and obtain the permit, which are likely to deter locating any site in a wooded area even though a site in that area is needed for coverage or improved service. The first sentence requiring preservation of existing vegetation to the maximum extent possible is sufficient. Section 17.03.A.3.i(iii). This provision states, “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.” The second sentence is reasonable and fully protects against excessive noise. However, the first sentence imposes additional requirements that are subjective – what are “adequate measures” – and is also arbitrary because it imposes requirements on wireless providers that do not apply to other entities that install similar equipment. This sentence should be deleted. Section 17.03.A.3.j(i). This new provision would require a specific design, the “Saguaro cactus stealth design,” for utility service antennas. In this case, the Ordinance would AGAIN unnecessarily micromanage providers’ choices among designs. Moreover, requiring a specific design for any site is likely to be cost-prohibitive and likely to deter deployment. Section 17.03.A.8. This provision states, “No signs shall be allowed on an antenna or tower.” However, FCC rules require that signs may need to be attached to provide notification or warnings as to RF radiation exposure. See 47 C.F.R. § 1.1307. The section should be revised to allow such signs to be installed. Section 17.03.A.14. This provision requires that the applicant provide a certification by an “Arizona Licensed Professional Engineer” as to “any information of an engineering nature that an applicant submits.” However, there is no reason to impose this restriction. An engineer licensed by any state is fully capable of conducting the study and providing the certification. 1400 16th Street, NW · Suite 600 · Washington, DC 20036 · www.ctia.org Section 17.04.A. The “application types” in this provision do not include the federal requirement that localities must approve certain modifications of existing wireless facilities, including collocations, without requiring an application. Congress enacted Section 6409(a) of the Spectrum Act of 2012 to expedite modifications to existing facilities by providing that a state or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.”2 The FCC implemented Section 6409(a) by adopted rules defining “eligible facilities requests;” no application for approval can be required for these requests. However, the Ordinance does not appear to include provisions that incorporate this federally required process; instead, all modified facilities require an application. While the application may be “administratively processed,” it still seeks the Town’s approval – which federal law does not allow. The Town thus needs to modify Section 17.04 to specify that modifications meeting the requirements of the FCC’s rules for eligible facilities requests do not require an application and will be approved. Section 17.04.C.3.c(viii). This new provision requires that when an applicant seeks to construct a facility to remedy a significant coverage gap, it must produce specific types of drive test maps as well as other data, “to enable the Council to assess the existence of such significant gaps accurately, and/or whether the carrier possesses adequate coverage . . . .” These demonstrations are inconsistent with federal law. Sections 253(a) and 332(c)(7) of the Communications Act preempt a state or local regulation or requirement that “may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.”3 In a 2018 order that was affirmed by a United States appeals court, the FCC held that state or local siting regulations that inhibit deployment of facilities violate Sections 253. Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, 33 FCC Rcd 9088, 9102, aff’d in part sub nom. City of Portland v. U.S., 969 F.3d 1020 (9th Cir. 2020) (“State/Local Siting Order”). The FCC also held that “local jurisdictions do not have the authority to require that providers offer certain types or levels of service, or to dictate the design of a provider’s network.” Id. at 9104 (emphasis added). By requiring the applicant to prove a coverage gap or capacity need to the satisfaction of the Town Council, Section 17.04.C.3.c.viii is inconsistent with the State/Local Siting Order because it empowers the Town to deny an application based on these grounds and to second-guess the applicant’s showing. It should thus be deleted. Section 17.05.A.3. This section requires the wireless provider to submit a “one-year buildout plan” of planned future sites, and staff may “share such information with other applicants.” It should be deleted for two reasons. First, because the provider’s plans for possible future sites is proprietary as well as competitively sensitive, requiring it to be submitted – much less made available to competitors – is inappropriate and unjustified. Second, whatever future plans the provider may have been not relevant to the merits of its pending application. Section 17.05.C. This new provision would adopt multiple new criteria that “shall be considered” in reviewing applications. Those criteria transform the permit reviews into a vague process that is built on subjective determinations. For example, the staff is directed to evaluate “the adequacy of the proposed site by considering such factors as the sufficiency of the size of the site” – plus other non-exclusive 2 This statute is codified at 47 U.S.C. § 1455(a). 3 These provisions are codified at 47 U.S.C. §§ 253(a) and 332(c)(7). 1400 16th Street, NW · Suite 600 · Washington, DC 20036 · www.ctia.org factors. It is also to consider “the extent to which the proposal responds to the impact of the proposed development on adjacent land uses, especially in terms of visual impact.” This vague and non-exclusive list of considerations leaves applicants without clear or objective conditions they must meet and empowers the Town to deny applications based on subjective considerations. The provision is also unnecessary because many other sections in the Ordinance provide detailed conditions that an application needs to comply with; there is no basis or need for imposing on top of those conditions these additional “considerations.” Section 17.05.C should be deleted. Section 17.06.B.2, 3. This new section would impose multiple new requirements on wireless providers regarding radiofrequency (RF) emissions from a site. However, Congress preempted localities from regulating RF emissions in Section 332(c)(7)(B) of the Communications Act. The FCC has exclusive authority to determine substantive compliance with its RF emissions regulations. FCC Review of RF Exposure Policies, 28 FCC Rcd 3498, 3699 (2013). The proposed regulations would intrude on that exclusive federal authority by empowering the Town to require repeated RF testing, require a third party to conduct “random” testing “at the operator’s expense,” and penalize the provider for RF emissions that exceed FCC standards. The Ordinance already obligates providers to review RF emissions levels when they install a facility and to notify the Town that the site complies with the FCC’s RF rules. However, the additional provisions intrude on federal authority, which imposes no such reporting obligations. In addition, these detailed Town requirements are unnecessary because wireless operators are subject to enforcement actions by the FCC and penalties if they do not comply with federal RF emissions regulations. Those federal sanctions provide an ample incentive for compliance. Thank you for the opportunity to submit this testimony on the Ordinance. CTIA would be happy to discuss its concerns with the Commission staff. Sincerely, Annissa Reed Director, State and Local Affairs ITEM 9. D. TOWN OF FOUNTAIN HILLS STAFF REPORT Meeting Date: 09/04/2024 Meeting Type: Town Council Regular Meeting Agenda Type: Regular Agenda Submitting Department: Development Services Prepared by: John Wesley, Development Services Director Staff Contact Information: John Wesley, Development Services Director Request to Town Council Regular Meeting (Agenda Language): CONSIDERATION AND POSSIBLE ACTION: Adopting Ordinance #24-16, Utility Service Antennas as part of the Town Code. Staff Summary (background) Staff have been working on an update to Zoning Ordinance Chapter 17, Wireless Telecommunication Towers and Antennas. That ordinance provides the regulations and procedures for all towers and antennas, except those located in the public right-of-way. One of the types of antennas staff addressed in the update to Chapter 17 is what are being called "utility service antennas." These are antennas connected to transformers, water towers, and other pieces of utility equipment and infrastructure that allow wireless communication between parts of the utility system. Because the utilities are often in the streets and the equipment is often in the public right-of-way, a code amendment to the Town Code is also needed to address the towers and antennas in these locations. Chapter 16, Streets and Sidewalks, of the Town Code addresses encroachments that occur within the public right-of-way. Article 16-2 provides the regulations and procedures for small cell wireless facilities in the public right-of-way. Staff is proposing to add a new article, Article 16-3, Utility Service Antennas, to provide the standards and review procedures for these types of towers and antennas. The regulations for these types of towers and antenna are divided into those less than 6' all and those 6' tall or taller. The facilities less than 6' tall will need approval of an encroachment permit and any associated permits, such as an electrical permit, and be painted a neutral color. The facilities that will be 6' tall or taller, require use of a stealth design (a Saguaro cactus or similar as approved by the Public Works Director), approval of an encroachment permit, and approval of a building permit. There have been several of these types of towers and antenna installed in the Town's rights-of-way over the last few years without the benefit of any local review or regulations. Town staff have been working with SRP staff to rectify this situation. A standard design has been developed for the Saguaro cactus that will replace some of the existing towers and antennas. 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 adoption of the ordinance as presented. SUGGESTED MOTION MOVE to adopt Ordinance #24-16. Attachments Ordinance 24-16 Form Review Inbox Reviewed By Date Development Services Director (Originator)John Wesley 08/14/2024 11:38 AM Town Attorney Aaron D. Arnson 08/21/2024 08:53 AM Town Manager Rachael Goodwin 08/23/2024 11:40 AM Form Started By: John Wesley Started On: 08/08/2024 05:09 PM Final Approval Date: 08/23/2024 ORDINANCE NO. 24-16 AN ORDINANCE OF THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, AMENDING THE FOUNTAIN HILLS TOWN CODE CHAPTER 16, STREETS AND SIDEWALKS, ADDING A NEW ARTICLE 16-3 UTILIITY SERVICE ANTENNAS ENACTMENTS: NOW THEREFORE BE IT ORDAINED BY THE MAYOR AND TOWN COUNCIL OF FOUNTAIN HILLS, ARIZONA, as follows: Section 1. That the following Article 16-3 be added: ARTICLE 16-3 UTILITY SERVICE ANTENNAS 16-3-1 PURPOSE THE PURPOSE OF THIS ORDINANCE IS TO ESTABLISH GENERAL GUIDELINES FOR THE SITING OF WIRELESS COMMUNICATIONS TOWERS AND ANTENNAS PLACED IN THE PUBLIC RIGHT- OF-WAY USED BY UTILITY COMPANIES TO COMMUNICATE WITHIN THE UTILITY SYSTEM. 16-3-2 DEFINITIONS UTILITY SERVICE ANTENNAS: MEANS ANTENNA PLACED ON OR NEAR UTILITY BOXES, POLES, SWITCHES, STORAGE TANKS, ETC. AND USED BY A UTILITY PROVIDER TO FACILITATE THE OPERATION OF THE UTILITY SYSTEM. 16-3-3 UTILITY SERVICE ANTENNAS IN THE PUBLIC RIGHT-OF-WAY A. GENERAL REQUIREMENT. 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 TOWN’S APPROVED SAGUARO CACTUS STEALTH DESIGN, OR A SIMILAR STEALTH DESIGN APPROPRIATE TO THE GIVEN LOCATION AS APPROVED BY THE PUBLIC WORKS DIRECTOR. B. REVIEW PROCESS. 1. FOR ANTENNAS WITH A MAXIMUM HEIGHT LESS THAN SIX (6’) FEET ABOVE GROUND LEVEL, APPLICATIONS ARE REVIEWED AND APPROVED THROUGH THE TOWN’S ENCROACHMENT PERMIT PROCESS AS PROVIDED IN TOWN CODE ARTICLE 16-1, ENCROACHMENTS. AN ELECTRICAL PERMIT SHALL ALSO BE REQUIRED FOR ANY ASSOCIATED ELECTRICAL WORK. 2. FOR ANTENNAS WITH A MAXIMUM HEIGHT SIX (6’) FEET OR MORE ABOVE GROUND LEVEL, APPLICATIONS WILL REQUIRE AN ENCROACHMENT PERMIT AS REQUIRED BY TOWN CODE ARTICLE 16-1, ENCROACHMENTS, AND REVIEW AND APPROVAL THROUGH THE TOWN’S BUILDING PERMIT PROCESS. Section 2. In accordance with Article II, Sections 1 and 2, Constitution of Arizona, and the laws of the State of Arizona, the City/Town Council has considered the individual property rights and personal liberties of the residents of the City/Town and the probable impact of the proposed ordinance on the cost to construct housing for sale or rent before adopting this ordinance. PASSED AND ADOPTED by the Mayor and Council of the Town of Fountain Hills, Maricopa County, Arizona, this 4TH day of September, 2024. FOR THE TOWN OF FOUNTAIN HILLS: ATTESTED TO: ___________________________________ _______________________________________ Ginny Dickey, Mayor Angela Padgett-Espiritu, Acting Town Clerk REVIEWED BY: APPROVED AS TO FORM: ____________________________________ __________________________________ Rachael Goodwin, Town Manager Aaron D. Arnson, Town Attorney