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HomeMy WebLinkAbout2025.0310.PZCAgendaPacket       AMENDED 3/10/25 NOTICE OF MEETING REGULAR MEETING FOUNTAIN HILLS PLANNING AND ZONING COMMISSION      Chairperson Dan Kovacevic  Vice Chairperson Clayton Corey Commissioner Mathew Corrigan Commissioner VACANT Commissioner Peter Gray Commissioner Scott Schlossberg Commissioner Phil Sveum      TIME:6:00 P.M. – REGULAR MEETING WHEN:MONDAY, MARCH 10, 2025 WHERE:FOUNTAIN HILLS COUNCIL CHAMBERS 16705 E. AVENUE OF THE FOUNTAINS, FOUNTAIN HILLS, AZ Commissioners of the Town of Fountain Hills will attend either in person or by telephone conference call; a quorum of the Town’s Council,  various Commission, Committee or Board members may be in attendance at the Commission meeting. Notice is hereby given that pursuant to A.R.S. §1-602.A.9, subject to certain specified statutory exceptions, parents have a right to consent before the State or any of its political subdivisions make a video or audio recording of a minor child. Meetings of the Commission are audio and/or video recorded and, as a result, proceedings in which children are present may be subject to such recording. Parents, in order to exercise their rights may either file written consent with the Town Clerk to such recording, or take personal action to ensure that their child or children are not present when a recording may be made. If a child is present at the time a recording is made, the Town will assume that the rights afforded parents pursuant to A.R.S. §1-602.A.9 have been waived.    REQUEST TO COMMENT   The public is welcome to participate in Commission meetings. TO SPEAK TO AN AGENDA ITEM, please complete a Request to Comment card, located in the back of the Council Chambers, and hand it to the Executive Assistant prior to discussion of that item, if possible. Include the agenda item on which you wish to comment. Speakers will be allowed three contiguous minutes to address the Commission. Verbal comments should be directed through the Presiding Officer and not to individual Commissioners. TO COMMENT ON AN AGENDA ITEM IN WRITING ONLY, please complete a Request to Comment card, indicating it is a written comment, and check the box on whether you are FOR or AGAINST and agenda item, and hand it to the Executive Assistant prior to discussion, if possible.   REGULAR MEETING        1.CALL TO ORDER, PLEDGE OF ALLEGIANCE AND MOMENT OF SILENCE – Chairperson Kovacevic     2.ROLL CALL     3.CALL TO THE PUBLIC Pursuant to A.R.S. §38-431.01(H), public comment is permitted (not required) on matters NOT listed on the agenda. Any such comment (i) must be within the jurisdiction of the Commission, and (ii) is subject to reasonable time, place, and manner restrictions. The Commission will not discuss or take legal action on matters raised during Call to the Public unless the matters are properly noticed for discussion and legal action. At the conclusion of the Call to the Public, individual commissioners may (i) respond to criticism, (ii) ask staff to review a matter, or (iii) ask that the matter be placed on a future Commission agenda.     4.CONSIDERATION AND POSSIBLE ACTION: approving the regular meeting minutes of the Planning and Zoning Commission January 13, 2025. APPROVED   5.HOLD A PUBLIC HEARING, CONSIDERATION AND POSSIBLE ACTION: Ordinance 25-02 amending Zoning Ordinance by amending Chapter 25, Entertainment Overlay to Chapter 25,Downtown Overlay District, with associated permitted uses, parking, lot coverage, and setback provisions.  CONTINUED   6.REVIEW, DISCUSS, AND PROVIDE DIRECTION: A) Overview of wireless communication ordinances, resolutions, and associated documents and Town Council direction for review and possible modification; and B) Review of Zoning Ordinance Chapter 17, Wireless Telecommunication Towers and Antenna compared to draft Campanelli ordinance. DISCUSSION ONLY   7.CONSIDERATION AND POSSIBLE ACTION: Annual report on the implementation of the Fountain Hills General Plan 2020.     8.COMMISSION DISCUSSION/REQUEST FOR RESEARCH to staff.    9.SUMMARY OF COMMISSION REQUESTS from Development Services Director.   Planning and Zoning Commission Meeting of March 10, 2025 2 of 3     10.REPORT from Development Services Director.    11.ADJOURNMENT       Dated this ______ day of ____________________, 2025. _____________________________________________  Paula Woodward, Executive Assistant The Town of Fountain Hills endeavors to make all public meetings accessible to persons with disabilities. Please call 480-816-5199 (voice) or 1-800-367-8939 (TDD) 48 hours prior to the meeting to request a reasonable accommodation to participate in the meeting or to obtain agenda information in large print format. Supporting documentation and staff reports furnished the Commission with this agenda are available for review in the Development Services' Office. Planning and Zoning Commission Meeting of March 10, 2025 3 of 3   ITEM 4. TOWN OF FOUNTAIN HILLS STAFF REPORT    Meeting Date: 03/10/2025 Meeting Type: Planning and Zoning Commission Agenda Type: Submitting Department: Development Services Prepared by: Paula Woodward, Executive Assistant Staff Contact Information: Paula Woodward, Executive Assistant Request to Planning and Zoning Commission (Agenda Language):  CONSIDERATION AND POSSIBLE ACTION: approving the regular meeting minutes of the Planning and Zoning Commission January 13, 2025. Staff Summary (Background) The intent of approving meeting minutes is to ensure an accurate account of the discussion and action that took place at the meeting for archival purposes. Approved minutes are placed on the Town's website and maintained as permanent records in compliance with state law.   Related Ordinance, Policy or Guiding Principle N/A Risk Analysis N/A Recommendation(s) by Board(s) or Commission(s) N/A Staff Recommendation(s) Staff recommends approving the meeting minutes of the regular meeting minutes of the Planning and Zoning Commission January 13, 2025.   SUGGESTED MOTION MOVE to approve the regular meeting minutes of the Planning and Zoning Commission January 13, 2025. Attachments 250113 Summary Minutes & Verbatim Transcript  TOWN OF FOUNTAIN HILLS MINUTES OF THE REGULAR MEETING OF THE FOUNTAIN HILLS PLANNNING & ZONING COMMISSION January 13, 2025 A Regular Meeting of the Fountain Hills Planning & Zoning Commission was convened at 16705 E. Avenue of the Fountains in open and public session at 6:00 p.m. Members Present: Chairperson Peter Gray; Commissioner Clayton Corey; Commissioner Mathew Corrigan; Commissioner Patrick Dapaah; Commissioner Dan Kovacevic; Commissioner Scott Schlossberg and Commissioner Phil Sveum Staff Present: Development Services Director John Wesley, Senior Planner Farhad Tavassoli, And Executive Assistant Paula Woodward. Planning and Zoning Commission January 13, 2025 1 of 3 TOWN OF FOUNTAIN HILLS SUMMARY MINUTES OF THE REGULAR MEETING OF THE PLANNING AND ZONING COMMISSION JANUARY 13, 2025 1. CALL TO ORDER, PLEDGE OF ALLEGIANCE AND MOMENT OF SILENCE Chairperson Gray called the Regular Meeting of the Fountain Hills Planning and Zoning Commission held on January 13, 2025, to order at 6:00 p.m. and led the Commission and audience in the Pledge of Allegiance and Moment of Silence. 2. ROLL CALL Commissioners Present: Chairperson Peter Gray; Commissioner Clayton Corey; Commissioner Mathew Corrigan; Commissioner Patrick Dapaah; Commissioner Dan Kovacevic; Commissioner Scott Schlossberg and Commissioner Phil Sveum Staff Present: Development Services Director John Wesley, Senior Planner Farhad Tavassoli, and Executive Assistant Paula Woodward. 3. CALL TO THE PUBLIC The following resident addressed the Commission: Larry Meyers 4. CONSIDERATION AND POSSIBLE ACTION: approving the regular meeting minutes of the Planning and Zoning Commission November 18, 2024 and December 9, 2024. MOVED BY Commissioner Corey to approve the regular meeting minutes of the Planning and Zoning Commission November 18, 2024 and December 9, 2024. SECONDED BY Commissioner Schlossberg. Vote: 6/0 Unanimously Commissioner Corey Aye Commissioner Corrigan Abstained Commissioner Dapaah Aye Commissioner Kovacevic Aye Commissioner Sveum Aye Commissioner Schlossberg Aye Chair Gray Aye 5. CONSIDERATION AND POSSIBLE ACTION of Appointing a Chairperson to the Planning and Zoning Commission. MOVED BY Commissioner Schlossberg to nominate Commissioner Kovacevic to the Planning & Zoning Commission Chairperson for the term from January 13, 2025 through December 31, 2025. SECONDED BY Commissioner Corrigan Vote: 7/0 Unanimously Commissioner Corey Aye Commissioner Corrigan Aye Commissioner Dapaah Aye Planning and Zoning Commission January 13, 2025 2 of 3 Commissioner Kovacevic Aye Commissioner Sveum Aye Commissioner Schlossberg Aye Chair Gray Aye 6. CONSIDERATION AND POSSIBLE ACTION: Appointing a Vice Chairperson to the Planning and Zoning Commission. MOVED BY Commissioner Kovacevic to nominate Commissioner Corey to the Planning & Zoning Commission Vice Chairperson for the term from January 13, 2025 through December 31, 2025. SECONDED BY Commissioner Schlossberg. Vote: 7/0 Unanimously Commissioner Corey Aye Commissioner Corrigan Aye Commissioner Dapaah Aye Commissioner Kovacevic Aye Commissioner Schlossberg Aye Commissioner Sveum Aye Chair Gray Aye 7. HOLD A PUBLIC HEARING, CONSIDERATION, AND POSSIBLE ACTION: A request for a Special Use Permit to allow vehicle sales with outdoor display at 15225 N. Fountain Hills Blvd. The following resident addressed the Commission: Crystal Cavanaugh MOVED BY Commissioner Corrigan to recommend the Town Council approve a request for a Special Use Permit to allow vehicle sales with outdoor display at 15225 N. Fountain Hills Blvd., to include electric golf carts only. SECONDED BY Commissioner Corey. Vote: 7/0 Unanimously Commissioner Corey Aye Commissioner Corrigan Aye Commissioner Dapaah Aye Commissioner Kovacevic Aye Commissioner Schlossberg Aye Commissioner Sveum Aye Chair Gray Aye 8. HOLD A PUBLIC HEARING, CONSIDERATION, AND POSSIBLE ACTION: A request for a Special Use Permit to allow ten (10) single family residential units on six (6) properties in a commercial subdivision (Plat 106) generally located 400 feet west of the northwest corner of Fountain Hills Blvd. and El Pueblo Blvd. (15012-15014- 15016-15018-15020-15022-15026 N. Ivory Dr.) in the C-C (Community Commercial) zoning district. The following residents addressed the Commission: Barry McBride Larry Meyers Crystal Cavanaugh MOVED BY Chairperson Gray to recommend the Town Council DENY a Special Use Permit to allow ten (10) single family residential units on six (6) properties in a Planning and Zoning Commission January 13, 2025 3 of 3 commercial subdivision (Plat 106) generally located 400 feet west of the northwest corner of the northwest corner of Fountain Hills Blvd. and El Pueblo Blvd. (15012- 15014-15016-15018-15020-15022-15026 N. Ivory Dr.) in the C-C (Community Commercial) zoning district. SECONDED BY Commissioner Sveum. Vote: 7/0 Unanimously Commissioner Corey Aye Commissioner Corrigan Aye Commissioner Dapaah Aye Commissioner Kovacevic Aye Commissioner Schlossberg Aye Commissioner Sveum Aye Chair Gray Aye 9. HOLD A PUBLIC HEARING, CONSIDERATION, AND POSSIBLE ACTION: A request for a Special Use Permit to allow four (4) multi-family buildings containing 3 dwellings each on four (4) adjacent 1,250 square-foot parcels generally located 200 feet east of the northeast corner of Fountain Hills Blvd. and El Pueblo Blvd. (15037-15039-15041-15043 N. Fountain Hills Blvd.) in the C-C (Community Commercial) zoning district. MOVED BY Chairperson Gray to recommend the Town Council DENY a request for a Special Use Permit to allow four (4) multi-family buildings containing 3 dwellings each on four (4) adjacent 1,250 square-foot parcels generally located 200 feet east of the northeast corner of Fountain Hills Blvd. and El Pueblo Blvd. (15037-15039-15041-15043 N. Fountain Hills Blvd.) in the C-C (Community Commercial) zoning district. SECONDED BY Commissioner Sveum. Vote: 7/0 Unanimously Commissioner Corey Aye Commissioner Corrigan Aye Commissioner Dapaah Aye Commissioner Kovacevic Aye Commissioner Schlossberg Aye Commissioner Sveum Aye Chair Gray Aye 10. DISCUSS AND PROVIDE COMMENTS ON: First draft of a proposed new Downtown Overlay District. The following resident addressed the Commission: Larry Meyers 11. COMMISSION DISCUSSION/REQUEST FOR RESEARCH to staff. 12. SUMMARY OF COMMISSION REQUESTS from Development Services Director. 13. REPORT from Development Services Director. 14. ADJOURNMENT Chairperson Gray adjourned the Regular meeting of the Fountain Hills Planning and Zoning Commission held on January 13, 2025, at 8:30 p.m. TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 1 of 68 Post-Production File Town of Fountain Hills Planning and Zoning Commission Meeting Minutes January 13, 2025 Transcription Provided By: eScribers, LLC * * * * * Transcription is provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings. * * * * * TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 2 of 68 GRAY: All right. It's 6 p.m. Let's go ahead and call this meeting to order. This is the January 13th version of the Fountain Hills Planning and Zoning Commission. If you would all please rise for the Pledge of Allegiance and a moment of silence. IN UNISON: I pledge allegiance to the flag of the United States of America and to the Republic for which it stands, one nation under God, indivisible, with liberty and justice for all. GRAY: Thank you. Paula, roll call, please? WOODWARD: Commissioner Corey? COREY: Here. WOODWARD: Commissioner Corrigan? CORRIGAN: Here. WOODWARD: Commissioner Dapaah? DAPAAH: Here. WOODWARD: Commissioner Kovacevic? KOVACEVIC: Here. WOODWARD: Commissioner Schlossberg? SCHLOSSBERG: Here. WOODWARD: Commissioner Sveum? SVEUM: Here. WOODWARD: Chairman Gray? GRAY: Here. Thank you, Paula. Agenda item number 3, open call to the public. Paula, any speaker cards? WOODWARD: Yes, Chair. One speaker card. Larry Meyers. MEYERS: Happy New Year. So I -- my question is -- when I looked at the discussion of a new commissioner or new chair, my question is what are you tired of the job or are you termed out? Nothing against the other people that want to be the chair, but I've lived through some pretty serious discussions on multiple topics that were extremely thought out and completely organized by this chair, so of course, I'm partial. One of which was the transitional housing, which quite possibly is a model for the entire country to not TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 3 of 68 have their towns taken over by that horrible business that we so aptly named transitional housing, which is just a code word for residential detox. So that just being one example of Chairman Gray's good work working with residents, researching, figuring a way to get something that our town attorney said couldn't be done, but it could be. So I understand there are other candidates. I don't know what their resume -- I know what Mr. Kovacevic's resume is. I don't know what Commissioner Corey's resume is in terms of business experience or whatever, but that was my question. Are you termed out, or are you tired of this? Thanks. GRAY: Thank you, Mr. Meyers. I can respond to that, right, Paula? WOODWARD: Sure. GRAY: So the answer is neither termed out nor tired, but probably time for somebody else to take the seat after several years. So any other speaker cards, Paula? WOODWARD: No, Chair. GRAY: Thank you, Paula. All right. Let's move to agenda item number 4, consideration and possible action to approve the regular meeting minutes of the Planning and Zoning Commission from November 18th and December 9th. Commissioners, any deliberation or a motion, please? Mr. Corrigan, you were first with the mic. CORRIGAN: Oh, I would decline. GRAY: So I think let's have Commissioner Corrigan abstain from this one, being the new seat because it's meeting minutes from the prior. So -- CORRIGAN: I'm just reading the documents. GRAY: Who was first? Commissioner Corey? COREY: Sure. I'll make a motion to approve regular meeting minutes from the November 18th and December 9th meeting. SCHLOSSBERG: I'll second. GRAY: All in favor? IN UNISON: Aye. WOODWARD: Six-zero. TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 4 of 68 GRAY: Thank you, Paula. Agenda item number 5, consideration and action to appoint a chair to the Planning and Zoning Commission. Commissioners, we will seek nomination and a second on that nomination for the chair position. Commissioner Schlossberg? SCHLOSSBERG: Yeah. I'll make a nomination to appoint Commissioner Kovacevic to the chair position. CORRIGAN: I second that. GRAY: Motion made by Commissioner Schlossberg, seconded by Commissioner Corrigan to appoint Commissioner Kovacevic to the role of chair. Paula, roll call, please? WOODWARD: Commissioner Corey? COREY: Aye. WOODWARD: Commissioner Corrigan? CORRIGAN: Aye. WOODWARD: Commissioner Dapaah? DAPAAH: Aye. WOODWARD: Commissioner Kovacevic? KOVACEVIC: Aye. WOODWARD: Commissioner Schlossberg? SCHLOSSBERG: Aye. WOODWARD: Commissioner Sveum? SVEUM: Aye. WOODWARD: Chairperson Gray? GRAY: Aye. WOODWARD: Seven-zero. GRAY: Thank you, Paula. Agenda item number 6, consideration and action to appoint a vice chair to the Planning and Zoning Commission for the term of one year. Commissioners, a motion, please? Commissioner Kovacevic? KOVACEVIC: I'll nominate Commissioner Corey. GRAY: Looking for a second on Commissioner Kovacevic's motion. SCHLOSSBERG: I'll second that. TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 5 of 68 GRAY: Motion made by Commissioner Kovacevic, seconded by Commissioner Schlossberg. Paula, roll call, please? WOODWARD: Commissioner Corey? COREY: Aye. GRAY: Are you sure? WOODWARD: Commissioner Corrigan? CORRIGAN: Aye. WOODWARD: Commissioner Dapaah? DAPAAH: Aye. WOODWARD: Commissioner Kovacevic? KOVACEVIC: Aye. WOODWARD: Commissioner Schlossberg? SCHLOSSBERG: Aye. WOODWARD: Commissioner Sveum. SVEUM: Aye. WOODWARD: Chair Gray? GRAY: Aye. Thank you, Paula. WOODWARD: Seven-zero. GRAY: All right. As we fly through our agenda, we are to number 7, public hearing consideration and possible action to request a Special Use Permit to allow vehicle sales with outdoor displays at 15225 North Fountain Hills Boulevard.. WESLEY: Chairman, guests, and commissioners, Happy New Year. Good to be with you this evening. I'll go through this presentation fairly quickly because you've already seen it once before, but for the benefit of any who haven't been -- new Commissioner Corrigan, who was in the audience but not up there before. We'll go through a quick presentation. So we are talking about a tract of land up northeast corner of Glenbrook and Fountain Hills Boulevard. The applicant has been operating a golf cart sales business there for a period of time. The Zoning District C-1 does not allow outdoor display. TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 6 of 68 However, the commission has recommended and council have on their agenda next week a change in the ordinance to allow display of small vehicles in the parking lot. So we're processing this SUP back through you in anticipation of that text amendment being approved. So again, here is the property at the northeast corner, Zone C-1. We got a commercial to the north and south and residential around it. And again, the area with the land uses, a variety of residential, commercial, and institutional type uses in the area. So again with the change -- so C-1 allows vehicle sales of all types indoors. The change that's been approved is to allow outdoor display of non-gasoline vehicles up to one ton or less in size with approval of a Special Use Permit. But the text amendment also then would allow special approval of gas-powered for maximum of 30 days on display. The request involves Suites 103, 4, and 5 for the sales cart -- the golf cart sales business. They're requesting SUP for outdoor display. The applicant requested up to six parking spaces along the Fountain Hills Boulevard side for that use. The required -- when we applied -- the required parking requirements based on the building size, there's really only one space left available that's over that could be used for display. The general plan recognizes as -- recognizes this area as a neighborhood-oriented commercial site serving the surrounding area. The development pattern also -- we want to keep this in that scale of the small neighborhood focus type uses. The Zoning Ordinance in Section 2.02(F)(1)(d) lays out the criteria for consideration and recommendation on a Special Use Permit. There are basically three questions we look at when we do this. What would be the impact on the public health, safety, peace, and comfort of the neighborhood? Again, this has been operating there for about a year. We've had no problems with the use, except for the outdoor display that's been in violation of the current code. Any impact on those residing or working in the neighborhood? Again, staff has not identified anything. They have not heard any negative comments from the TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 7 of 68 neighborhood. And would this be detrimental and injurious to the property? We have not identified anything that would be a problem to the town by allowing the outdoor display of small vehicles, golf carts at this property. So the one consideration that we do have for you to give us some direction on would be how many parking spaces we should devote towards the display. Staff would suggest the area highlighted in red on this map be designated as the display area. That's for actual parking spaces and one kind of leftover area. Golf carts, they could probably get five or six golf carts in that area. Citizen participation, they had no attendees at their meeting, and staff had not had any contacts or interest from the public. The Good Neighbor Policy, working with citizens and working to avoid any conflicts. Again, zoning recommendation, staff does recommend approval and looks for the commission direction on the number of spaces. Questions? GRAY: Commissioner Corrigan, question? CORRIGAN: John, we talked earlier about -- WOODWARD: Reverse it. CORRIGAN: Oh, thank you. We talked earlier, but you can accommodate then up to six vehicles on this as long as they're electric. We hadn't talked about -- I heard earlier in last year's meeting that it could possibly be something besides a golf cart. I mean, it could be something -- another recreational vehicle as long as it's electric; is that correct? WESLEY: Chair, Commissioner Corrigan, yes. The ordinance -- if I go back to that slide here. This one. So the Special Use Permit specifically would allow small vehicles, non- gas powered up to one ton. And then if commission includes in their motion, could allow display of gas-powered for a maximum of 30 days. CORRIGAN: Thank you. WESLEY: That would take a kind of a special statement in the approval that you're doing that. GRAY: Commissioners, other questions or we go to public hearing? Commissioner TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 8 of 68 Dapaah? DAPAAH: Yeah. John, I drove by there and couldn't identify which side of the building does this business occupy. Is it the first building there? WESLEY: Let's see which looks better. DAPAAH: Was it that second one? WELSEY: Let me use this one. I'm going to go back, I guess, actually to the-- over -- more overall map. This map indicates the area where they are operating and the south three suites of the building I believe are correct. The applicant can correct that if I'm wrong, but it's the south three. DAPAAH: So it's the first three from -- WESLEY: Yeah, up north from Glenbrook. Yes. DAPAAH: Okay. Thank you. GRAY: Commissioner Corrigan, do you have another one? CORRIGAN: I do not. Thank you, Chair. GRAY: Thank you. Let's go ahead and open the public hearing. Paul, any speaker cards? WOODWARD: Yes. One speaker card. Crystal Cavanaugh. CAVANAUGH: Is there a reason that it can't just be a simple statement text amendment? This is a golf cart business. Why are we going into electric versus gas versus -- he might hardly ever have anything in gas, or he just might want to sell all those. It's not like he's going to have them running out in the lot for a significant time period. I'm just sensing mostly from the -- I think when I listened to it about the council too before it came back here, it just started getting more complicated than it needed. Why don't you just give him an SUP for his golf carts and use the word golf cart display during business hours, just like people have to put out their A-frame and then bring in their A- frame at the end of business hours? I might be missing something, but I just think it's way simpler than it's been being presented. GRAY: Any others, Paula? WOODWARD: No, Chair. TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 9 of 68 GRAY: All right. That was simple. We'll go ahead and close the public hearing. Commissioners, any final discussion or a motion, please? COREY: Yes, Chair. John, could we address the point that she brought up? I think it does -- WESLEY: Chair, Commissioner, yes. It is a valid point. Certainly the commission could, with a specific application. If you wanted to limit it to just golf carts, you could do that. The text that we processed, we had a little bit broader because we didn't know what all else might, you know, work in a given situation. But -- GRAY: So we talked about this last time through. And the reason that it got expanded was if he could take something in on trade, right? And so we wanted to account for the Vespa or something else to where we weren't limiting him from being able to move or, you know, handle a transaction. And so yeah, I get it. You know, it's more complicated, but unintended consequences of not doing it is why we did it. UNIDENTIFIED SPEAKER: Okay. Thank you. GRAY: All right. No further discussion. Looking for a motion from the commission. COREY: So again -- sorry, just to clarify then. So what we're looking at is just allowing sales in that red -- that square red area. Nothing outside of that. And that's what five spaces did I see on the picture? WESLEY: Let me go back to that again, that -- Chair, Commissioner. So yes, that's what staff is proposing, is that you designate these areas south of the driveway -- COREY: Okay. WESLEY: -- off of Fountain Hills Boulevard and west of the driveway off of Glenbrook as a place where display could occur. COREY: Okay. WESLEY: You could do more or less than that if you -- if you'd like. COREY: And I think I read that it's technically four spaces. And then the fifth one is kind of a partial space. WESLEY: Yes. TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 10 of 68 COREY: Okay. And to clarify, I heard this from my fellow colleague here, that building on the bottom. I drove by it today. It says e-bikes on the corner of that one. Is that -- that's the same business? UNIDENTIFIED SPEAKER: Yes. COREY: Okay. Okay. Thank you. GRAY: Are you in the market? COREY: I just got one. GRAY: Okay. CORRIGAN: Mr. Chair? GRAY: Commissioner? CORRIGAN: Can we in fact expand -- here we are. I'll get it. Can we, in fact, expand this beyond, you know, a reasonable explanation of golf carts in general rather than just e- carts or electric carts? GRAY: We're free to make any recommendation or modifications to the language that that we see fit. It was just that in the last session when this came before us, the question came up to the applicant of, well, do you have any desire to move a scooter, you know, a small CC motorcycle through? And he said, yeah, not really. But occasionally he could take -- he might take something in on trade but would want to flip that, you know, back to the market or sell it -- you know, sell it off within 30 days. And so that's why that gas-powered component got bolted on there. But you know, we're free to make any recommendation we see fit. CORRIGAN: I might recommend that we use the golf cart in general rather than a specific category of electric versus gas. That would allow him a lot more latitude to, you know, be free within his business rights to make a trade if it's a Vespa or another gas powered cart. I think that's a reasonable thing to do given his businesses is golf carts. GRAY: Commissioner Sveum? SVEUM: The discussion was centered on golf carts. The other types of vehicles was kind of a side note. Originally, it was just the -- it was just electric carts. And I asked specifically if he was going to -- he may take a trade-in with a gas cart that he may want TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 11 of 68 to display it. That's why this extra one got -- the extra gas cart got it included this time around. I mean, I don't -- personally, I don't have any problem either way, but it was set up originally as just electric carts. Was there a reason for that with the planning department or -- I can't remember exactly, or was it what the applicant requested? GRAY: I think originally we were doing a text amendment to C-1, right, and then we -- SVEUM: That's whole other --- GRAY: -- pivoted off of that because we've done that before, and it hadn't worked out in the second time through the gate. WESLEY: Yes. Chairman, Commissioner, yes, when staff brought it forward, we were focused on the electric because of some potential concerns. You get gas-powered vehicles out there and the noise of them being, you know, started and run and whatever have a little bit more of an impact in this neighborhood commercial area. It doesn't stop them from having them for sale inside the building, just not on the display outside. The commission looked at it and felt, as you just explained, well, you know, there could be those instances where gas-powered would be okay. And so you amended what was proposed by staff which was certainly fine. And so it now does this -- assuming the commission -- or the council next week approves it as you've recommended it, it would allow the option to also approve the gas-powered on the limited basis. SVEUM: Well, it seems that the applicant was fine with that -- WESLEY: Yes. SVEUM: -- when we got together last time, correct? UNIDENTIFIED SPEAKER: Correct. SVEUM: Yeah. So that's what -- that's why we ended up where we did. CORRIGAN: Okay. If he's comfortable with that latitude then I'm okay with it. It's his business. Yeah. RUCCI: John is right. If I have a gas vehicle -- GRAY: Let's have you -- let's have you come up to the mic so they can hear at home. RUCCI: John's correct. If I have a gas vehicle, I can just display it inside. I don't -- it TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 12 of 68 doesn't have to be outside, so I'm okay with that. GRAY: So applicant is okay with either. I would say keep it simple and let's move on with it. So I'll call for a motion. Commissioner Corrigan, do you want to make a motion? CORRIGAN: Motion to approve. GRAY: It would be a motion to approve simplifying language to golf carts of the electronic variety only, correct? CORRIGAN: Correct, as stated. GRAY: And inclusive of all staff comments? RUCCI: Spaces. GRAY: Spaces. Okay. COREY: Second. GRAY: All right. Motion on the table from Commissioner Corrigan, seconded by Commissioner Corey to make a recommendation to approve inclusive of staff comments and recommendations for space allocation. However, simplifying the language to include electric golf carts only. Capture it all? All right. CORRIGAN: Thank you. GRAY: Paula, roll call, please? WOODWARD: Commissioner Corey. COREY: Aye. WOODWARD: Commissioner Corrigan? CORRIGAN: Aye. WOODWARD: Commissioner Dapaah? DAPAAH: Aye. WOODWARD: Commissioner Kovacevic? KOVACEVIC: Aye. WOODWARD: Commissioner Schlossberg? SCHLOSSBERG: Aye. WOODWARD: Commissioner Sveum? SVEUM: Aye. TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 13 of 68 WOODWARD: Chair Gray? GRAY: Aye. WOODWARD: Seven-zero. GRAY: Thank you, Paula. All right. We're going to break protocol here just a little bit due to the intermingled complexities of the next two agenda items being adjacent to each other, although they're dissimilar uses. We're going to have staff -- we're going to have Farhad present both cases, then open one public hearing that will address both and then draw a closure with two recommendations, one, on agenda item 8 and one on agenda item 9. So in opening the hearing for both agenda item 8 and 9, they are both to hold a hearing, consideration and possible action for the request of a Special Use Permit to allow ten single family residential units on six properties in the commercial subdivision Plat 106. And in addition to that agenda item number 9, a request for Special Use Permit to allow for four multifamily buildings containing three dwelling units each on four adjacent 1,250 square foot parcels located at -- generally located 200 feet east the northeast corner of Fountain Hills Boulevard at El Pueblo Drive. Farhad, presentations, please? TAVASSOLI: Okay. Thank you, Mr. Chairman. Members of the commission, a Happy New Year. I want to apologize in advance. I'm on the mend, so I hope you don't mind if my presentations get interrupted by an intermittent cough or two or three. So Mr. Chairman, as you mentioned, these two cases are interrelated, one of which was actually originally brought before you in November of last year. That was continued. This one that I'm presenting to you today, first, is a new item that I'm presenting before you. Same applicant, same site, different type of residential project. So the applicant in this case is proposing, as you mentioned, ten single-family units as he refers to them in his proposal, the cottages, rather small units. The site is Plat 106 of -- up on the north, far northern part of the town, at the northeast corner of El Pueblo and Fountain Hills Boulevard. And more specifically, they involve the lots that you see here. It was platted back in 1974. And as you can see, there has been TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 14 of 68 minimal development. There were three recent approvals in this area. And by recent, I mean just within the last year or so for residential in this commercial area. And as you all know, any type of residential use would require a Special Use Permit if it's in a commercially zoned area. This is just to emphasize how little it has developed, Plat 106, and just within the past -- well, now 20, 21, 22 years. So the applicant is proposing a Special Use Permit to allow ten single-family residential -- excuse me, there it is -- units on six properties in a commercial subdivision known as Plat 106 with the coordinates that you mentioned, Mr. Chairman -- I won't go through that again -- in the Community Commercial zoning district. And what you're seeing below, to start, are some -- obviously some color renderings of the alley-loaded garage for each of these units, which also would include the front entry entrance. And you'll see more detail in the site plans that follow. So the -- just so we have our bearing straight down here is El Pueblo Boulevard and the existing parking lot. The common parking lot is further to the west, and it's adjacent to Fountain Hills Boulevard, just actually south of the subject property for the use permit in the previous case. And it is bifurcated by an alley as you can see here. And you can see the convenience store located here adjacent to El Pueblo Boulevard and the church here in the interior. Now the ten units are being proposed for the lots that use -- the vacant lots that you see here. And also these -- this row here, this parcel currently exists as one lot. The applicant, should the commission or council be inclined to approve it, would need to split these lots in order to accommodate for the four single-family units. And as you can see in most cases here the -- it's a zero lot line orientation and one -- at least on one side of the -- each of these units. So again, ten single-family units, they're approximately a little over 1,300 square feet, two stories. The applicant is proposing a tandem garage for each of these units. And the tandem garage is largely following staff's suggestion, or I should say staff's comment, that typically for residential -- single-family residential units, there are at least TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 15 of 68 two covered parking spaces that are required for each single-family residential unit. But that only applies to single-family zoning districts. So one thing -- one consideration that we may, you know, request further consideration on from -- or direction from the commission is, should that requirement apply here as well? The initial proposal came in with only one garage and right in front of that, it would have been a single-family garage. And in front of that would have been an open- air parking spot. So again, that's something that staff could use some direction on if the applicant were to come forward with any alternative design following tonight's meeting. So in doing a review and analysis, and much of this analysis is the same with the case that follows, the general plan does, of course, encourage infill in areas that are underutilized in a broad range of housing types and densities. So generally speaking, we think from a land use standpoint, Plat 106 would be appropriate for this kind of infill opportunity. And again, I would refer to the Zoning Ordinance to determine whether or not this use would have any impacts to public health, safety, and welfare. Again, cookie cutter type of point to bring up when looking at Special Use Permits cases such as this. But it goes for just about all of them. The applicant has gone through the citizen participation process and has not to date received any opposition. There were some suggestions that were shared by the Plat 106 committee that are reflected on the site plan. And I'll have the applicant provide some details on that. But again, to date, we have not received any expressed opposition to the case. There are some design concerns that staff has spelled out in the staff report. One is particularly the row of homes being proposed for this to the north. Here's the alley. And just beyond -- I mean, I could -- you could probably see it here better. Yeah. So this is where the -- those four homes are proposed. Back here is the rear yard of a single family residential unit. And as you saw in those elevations earlier, there was a balcony proposed, which would be overlooking the rear yard here. So that's a design consideration that you know, we'd be ready to look at some alternative design methods TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 16 of 68 to kind of mitigate that. The building footprint for the far western unit here. I'll go back to this slide. It does seem to be awfully close to the property line. I'll have the applicant explain some possible solutions to that, but one of which was to, in the future, acquire a -- sorry -- at least a portion of this commonly owned area, common to Plat 106 here is to shift over the units to provide a little bit more clearance here at the two adjoining alleys. The other concern is trash collection and mail delivery. There are a couple of trash enclosures. One here where my -- encircling right now, and actually, the closest one to most of the units is over here on the eastern common parking area. It's about 230 feet away. The applicant has, you know, shared the idea of putting some trash bins out in the alley -- out in the alleys, I should say. We are a little concerned about the narrowness of these alleys and whether or not any solid vehicles can -- solid waste vehicles can go through, and even with the common trash, dumpster or trash enclosures. Plat 106 so far has not expressed any opposition to the project. But you know, there was nothing specific about trash being taken out there, you know, frequently by the residents and whether that would cause any concern. Guest parking -- well, guest parking is provided by the in the common areas. There are no separate guest parking for -- guest parking stalls for each of the units. And also there are -- aside from the balconies and I think there was a few units that had, you know, a rather small patio, there are no open space amenities being offered here. Now, I do want to emphasize that the applicant, yes, he is coming to you as proposed. But he has expressed flexibility and is also looking to get input for perhaps some alternative designs to come back before you in the future. But as it stands right now, as we said -- the staff said that we would support the use, but we also would suggest some modifications to the proposal before approval. And the applicant, as I said, has expressed flexibility and is willing to listen to your suggestions. So that concludes the single-family cottages. GRAY: So can we take -- TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 17 of 68 TAVASSOLI: Um-hum. GRAY: -- a few elements of this before we -- TAVASSOLI: Absolutely. GRAY: -- move on because I've got -- TAVASSOLI: Yeah. GRAY: -- well, I'm sure you're going to bridge both, but I've got one comment specific to this one. And it's specific to the Parcel 15026, which is the northwesternmost parcel. When you move up a sheet to your aerial overlay that shows you know the subject properties of -- there you go. We talked about that alleyway with a prior zoning case and how that all works and, you know, what rights are afforded to those single-family homes given they've used that as a primary means of ingress and egress, you know, for -- I don't know how many years, a lot of years. What happens to that alley? How does that get treated with respect to their accesses and the legacy, you know, entitlement to that passageway? And then whom, either developer or town, is responsible for the civil improvements of that alley to support this type of development? TAVASSOLI: Mr. Chairman so this alley here, that's actually, town's right of way. This one here to the -- GRAY: Right, that's the one I'm referring to. TAVASSOLI: Yeah. That's the one you're referring to. GRAY: Well, really both. But that's the one that's got the access, you know -- TAVASSOLI: Right. GRAY: -- entitlements to it. TAVASSOLI: Right. This is actually a common property to the Plat 106, this alley here. And so as far as accessibility, vehicular accessibility, of course, Plat 106 would need to provide their buy-in. Yeah? Correction? Yeah. Okay. WESLEY: Chair, the applicant for these homes over here, this apartment, as part of his site plan, he is working on the improvement of the alley past his property into this area. TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 18 of 68 And he knows about this development to the west and the need to work together to tie that in. But as far as this property owner to the north, they'll have a paved alley in the future that they'll be able to use to access into there. GRAY: So it's the development's -- WESLEY: The developer. GRAY: -- that -- WESLEY: The developer. GRAY: -- clear the cost -- WESLEY: Correct. GRAY: -- of those improvements? WESLEY: Yes. GRAY: And so does something like that find its way into a development agreement with the town? WESLEY: No, that's too minor. It's just part of the development process. GRAY: And the same would hold true for the -- WESLEY: Yes. GRAY: -- southern? And then my second thought, which I think is going to be common to both cases, is that, you know, this is complicated being Plat 106 and having its own board. That's an alternate use of 15026 in particular that should not bear any adverse effect on those adjacent stakeholders, you know, albeit they're across the -- you know, they're across an alleyway. But for us to even try and sort out the refuse side of this and the utility side of it, I think, is disingenuous to those stakeholders. And so I think Plat 106 needs to deal with Plat 106 trash internally to Plat 106. I'm willing to be talked off of that, but I've got that as a big sticking point as we continue on. Commissioner Schlossberg? SCHLOSSBERG: A question is might -- the applicant might be better to answer this one, but it goes back to when it was first brought up in November. And it's on the plans on both of them, but it's not mentioned here. This home of the aged for both of these, so is this some type of senior living or -- for both projects? TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 19 of 68 TAVASSOLI: Mr. Chairman and Commissioner Schlossberg, this particular project, the cottages, is not targeting any particular demographic. So no, it's not for -- SCHLOSSBERG: Okay. TAVASSOLI: -- any (indiscernible). SCHLOSSBERG: But on the plan -- on the plan right here, it's home of the aged. It says it that -- GRAY: Oh, good reading. SCHLOSSBERG: So it's on the -- I'm just saying it's on the plan. So on the right-hand side of the -- TAVASSOLI: Oh. SCHLOSSBERG: -- right there. GRAY: The project type. SCHLOSSBERG: Over to the far right. WESLEY: To the right. SCHLOSSBERG: Project type -- TAVASSOLI: Oh. SCHLOSSBERG: -- in bold. TAVASSOLI: Okay. Yeah, that's obviously an error. GRAY: Commissioner Kovacevic? KOVACEVIC: Are these designated for sale or are they rentals? TAVASSOLI: Mr. Chairman, I believe these are going to be individually titled. Each of the -- as I was saying, with the row of homes further to the north, they're going to be individually platted. So I think there will be fee simple lots. I'll have the applicant correct me otherwise, but we move forward with the idea that this is a -- they're going to be sold. GRAY: Commissioner Sveum? SVEUM: Well, four-bedroom units; is that correct? Is that correct? They're all upstairs. TAVASSOLI: Right. SVEUM: So I assume that this is not home of the aged? TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 20 of 68 TAVASSOLI: No. SVEUM: So a family, perhaps. There's no playground area, right? There's no place for kids to play? No green space or desert scape at all? I think that's a real problem as far as I'm concerned with having this built there as well as the design of these buildings. I realize we're on your -- the applicant's objective is to create some affordable housing. But I really strongly object to the east side and west side how they look. I think it's a very problematic, whether there's four-feet of separation between these buildings or 40 feet. There should be more. And maybe this is out of the zoning -- it's not part of the zoning. I understand that. But there should be more attention given to how these -- how the outside of these buildings are built, how they look, and the maintenance of these buildings over time is four bedroom rentals. So I have a strong objection to how they've been designed. I think as well, with the setback of four feet as we're seeing in LA right now that there should be more separation. And I want to -- I don't think the fire department has voiced any opinion on these yet, from what I gathered anyway. TAVASSOLI: Yeah. Typically at this stage, when the -- yeah, the fire department is included in the routing during the staff review, and they had no comment at this point. SVEUM: Well, he wants feedback. TAVASSOLI: Right. Right. SVEUM: So I think these are worthy of consideration. TAVASSOLI: Right. KOVACEVIC: Is this the time to get into -- how deep in the weeds are we getting? Are we getting a -- GRAY: Well, I think -- KOVACEVIC: -- presentation? GRAY: So I think we'll -- well, yeah, we'll get a presentation on the other application. So any comments specific to -- you know, that might be site specific to these parcels now? And then we'll pick the others up and then we'll kind of tie it all back together at the end. TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 21 of 68 KOVACEVIC: Okay. Specific to these, I don't understand why -- I'm going to piggyback on Commissioner Sveum's comment -- I don't understand why they wouldn't just be attached and eliminate the small side yards. I mean, I'm concerned with the criteria. They can't be detrimental to public health and safety, but there's zero side yard or a four-foot side yard on the alley. People driving in and out of -- from the alley where the garages are on to the main alley, the existing alley to get to one of the streets, there is no room to see what's coming down the alley. And you're going to have ten families driving down that main alley to get to El Pueblo or Glenbrook or whatever the east-west streets are. So that's a problem. And I don't know -- what are the dimensions of these lots? Are they 25 by 50 to get to 1,250? TAVASSOLI: They're each -- I don't know the exact dimensions, but they're each about 1,125 square feet -- 25, okay. Do you know the dimensions, approximately? Okay. Thank you. 25 by 50. Yeah. KOVACEVIC: So why couldn't you -- I mean, we're looking for suggestions because I think the way it's laid out is a problem. Why couldn't you re-subdivide the lots and make them 20 feet wide, attach the units, and that'll give you 20 feet clearance so that somebody can see what's coming down the alley or go, you know, 22 feet wide, and then you have 12 feet of clearance. Whatever it is, but somebody's got to be able to see what is coming down the alley. Those vehicles are -- it's going to be bumper cars. So that's my -- and I don't have a problem with attaching the units, rather than -- UNIDENTIFIED SPEAKER: (Indiscernible) KOVACEVIC: Yeah. And I think it's safer, yeah, from the fire standpoint too. So those are my comments for what it's worth. GRAY: Commissioner Dapaah. DAPAAH: Yeah, I would like more clarity on trash management. I'm a little confused by that. But I have a question relating to Lot 18 and 19. That mixed-use building that is sitting behind it. Was that approved through a Special Use Permit also? TAVASSOLI: Mr. Chairman, Commissioner Dapaah, what's existing right there right now, the pharmacy, that was not approved through a Special Use Permit. That's a by right TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 22 of 68 use. DAPAAH: Okay. TAVASSOLI: So -- DAPAAH: It's a pharmacy and -- TAVASSOLI: Yeah, so it's not entirely accurate mixed-use -- I mean, the nature of the building might be mixed-use, but -- DAPAAH: There are some dwelling units there too, right, some residential units? WESLEY: Chair, Commissioner Dapaah, yes, Special Use Permit did approve residential on the second floor of that building several years ago. Yes. DAPAAH: Okay. So someone in the future could take that building and do whatever else they want with it without the -- TAVASSOLI: This one here, as long as it's consistent with the CC Zoning District. DAPAAH: Right. TAVASSOLI: And the Special Use Permit that John just corrected me with, it would carry with the land. DAPAAH: So that's a pharmacy now? TAVASSOLI: The first floor. DAPAAH: Are there any kind of hazardous compounding activities going on there or for a pharmacy? TAVASSOLI: There have been none that have been brought to our attention. No violations. No, you know -- I'm not sure what impacts -- DAPAAH: Well, not violations but some pharmacies have compounding rooms -- TAVASSOLI: Right. DAPAAH: -- hazardous compounding rooms where they mix up drugs for use in the elderly communities here in town or whatever. Are they doing -- is that activity happening at this pharmacy? TAVASSOLI: I am not aware of any. DAPAAH: Okay. That's another concern of mine. That would mean that there's some kind of an exhaust system that may be putting out fumes or something hazardous. We TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 23 of 68 would need to look into that and make sure of it as well because you have two dwelling units right behind it. And that was just my question about that. GRAY: That’s more of a good neighbor question because ASHRAE 170 wouldn't come into play being an unlicensed pharmacy by your definitions, but point taken nonetheless. Commissioner Corey? COREY: Yes, I understand you're trying to maximize the value of what you get on this lot here. But I think the point about -- there's four bedrooms, and there's a tandem garage. So it sounds like it will be families there. And I could see the tandem garage could become an issue because most likely a family with four bedrooms is going to have two cars that they'll use regularly. So I think that's something to consider if there's one car that's in the back. You know, those two cars are going to be used all the time. So that could present a problem with cars being parked on the road there. Sometimes those types of garages are used for storage in the back and only one car gets used. So that's just something that was on my mind. And then in the image that you're showing, you mentioned the balconies. Let's say A, B, C, and D. The balconies are on the north side. Well, go up a little bit to the top of the page there. Yeah, right where it -- the cottages A, B, C and D. TAVASSOLI: Right. COREY: So the balconies are on the north side -- TAVASSOLI: That's correct. COREY: -- and that would be what's looking at that residential property? TAVASSOLI: Correct. COREY: Okay. So those are the little squares. And then on the bottom, those are the yards? TAVASSOLI: Correct. The patios. Yeah. COREY: Okay. TAVASSOLI: Um-hum. COREY: Thank you for clarifying. TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 24 of 68 GRAY: Commissioner Corrigan. CORRIGAN: So I noticed in the analysis by the staff that item number 2, the balconies actually overhang the property line. Can you explain in a little more detail about that? TAVASSOLI: Yeah. Mr. Chairman, Commissioner Corrigan, particularly for what's labeled as Lot A here, it appears that the balcony -- although I'm not sure if it's entirely clear here -- but balconies basically are not allowed to overhang a property line, whether it's one feet or two feet. So that is a design concern. That's why, you know, the tightness of this setup here, particularly to the north, might create some accessibility issues, especially for like larger fire trucks. So it is a concern for accessibility for emergency vehicles and trash pickup if that applies here. CORRIGAN: Okay. Thank you. TAVASSOLI: Um-hum. GRAY: Farhad, two more specific to these parcels and Plat 106. What would the residential -- what would the commensurate residential zoning for us be at this density and with these setbacks, or what's the most limiting of those two? TAVASSOLI: Mr. Chairman it would be a -- with the types of minimum setbacks shown here and the density, probably a multifamily designation anywhere between R-2 to R-5, but yeah, probably closer to R-5. GRAY: And then the other one specific to these parcels; how do you treat open space requirements in a plat like this? Does the open asphalt of the common lot count as open space, or are we only calculating, you know, what's left of non -- you know, the non-parceled -- TAVASSOLI: Right. GRAY: -- zones? TAVASSOLI: Right. Mr. Chairman, so the ordinance doesn't address open space requirements in that terminology, but there are some landscaping requirements typically for -- say, if this were a subdivision or if the applicant was proposing a subdivision with this type of housing type, then there would be a minimum open space TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 25 of 68 requirement. I don't quite remember what that formula is off the top of my head, but in this case, the property is already platted, or I should say Plat 106, obviously, is already platted -- GRAY: So -- TAVASSOLI: --but. GRAY: I guess that's where I wanted to go with it is -- I understand that by right that open space calculation doesn't come in because of the legacy platting. But when we consider this type of alternate use of the underlying zoning, I just wonder if it's something that we shouldn't consider as a town, as a commission, to fold that into the equation, right? I mean, if we're going to -- if we're going to change that use type -- TAVASSOLI: Um-hum. GRAY: -- we probably ought to start bringing some of the rest of that with it. Because to Commissioner Sveum's point, you know, there's no place for a swing set. Well, the reason there's no place is because it's a commercial plat. And to Commissioner Kovacevic's point, which, you know, personally I think maybe he's exaggerating a little bit, but I get it. There should be some astro triangle considerations to those T-intersections, and that's a given when you start talking about that ratio of open space to build whereas here the underlying zoning, you know, is not to have tandem parked cars and four bedrooms worth of kids or three bedrooms worth of kids. So I think it's probably really important for us to consider that, not related to this case, but in the more macro sense going forward. And I think as we, you know, work our way towards a recommendation on this, I think that's going to weigh pretty heavily for me. So Commissioners, anything else on this one or should we move to the other -- Commissioner Kovacevic? KOVACEVIC: Yeah, I do. One more question. What's the height of the cottages? TAVASSOLI: The maximum is at 25 feet, which is the maximum for the CC zoning district. KOVACEVIC: And are you -- well, I thought I saw the maximum height was 23 feet in CC zoning. I could be wrong, too. I mean, I get lost in the zoning codes, but I thought I saw TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 26 of 68 a maximum height was 23 feet. TAVASSOLI: Yeah, I'm fairly certain it's 25 feet, but I can double-check that for you. KOVACEVIC: Okay. UNIDENTIFIED SPEAKER: 25. KOVACEVIC: 25? And if he wanted to go up, could he do that in a PUD? PAD -- I'm sorry, PAD, if he wanted a height? TAVASSOLI: Mr. Chairman, Commissioner Kovacevic, if these properties met the prerequisites for that type of designation, PAD, which it doesn't, yeah, he may do that -- KOVACEVIC: Okay. But it doesn't. TAVASSOLI: -- but they don't meet the minimum lot size requirements -- KOVACEVIC: Okay. TAVASSOLI: -- for PAD. KOVACEVIC: Thank you. TAVASSOLI: Um-hum. GRAY: And since he went there, I'll chase the rabbit a little further. What did we say that the separation is if we don't go to a common demising wall? It's a four-foot between the buildings? Six is minimum, right? And in either case, my question is at 25 feet, and by all accounts, the elevations show that it's a completely pitched roof, where's the condenser going to go and still allow for all the clearances by electric code to access meters and condensers and so on? They're going in the back. Yeah. Probably not. Speaker cards? All right. Okay. How many cards do we have specific to this agenda item, Paula? WOODWARD: For number 8 there are three. GRAY: And for the second -- for agenda item 9? WOODWARD: Looks like two. GRAY: Are they common? WOODWARD: Yes. GRAY: So who are they? WOODWARD: Larry Meyers, Barry McBride (ph.) and Crystal Cavanaugh. TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 27 of 68 GRAY: Larry, Barry, Crystal, if we give you six minutes and one trip to the mic, does that work for you guys? Yeah? Okay. Let's do that. So let's go ahead with your second presentation and then we'll open up the speakers. WOODWARD: Okay. TAVASSOLI: Okay. All right. So Mr. Chairman, as I said, the second one was presented before you back in November of 2025. For the benefit of Commissioner Corrigan and maybe as a refresher, I'll go through some of this without sounding too repetitive with some of -- because many of the introductory slides are the same. The zoning is the same as in the previous case, CC. Same site, obviously. This is a Special Use Permit to allow four multifamily buildings -- four different multifamily buildings containing three dwelling units each on four adjacent 1,250 square foot parcels. And I am going to skip over right by the slide, but just to clarify. So obviously the subject parcels are outlined in red, but in relation to the cottages they are fairly close to the subject property here. So two of those cottages would be going over here and directly across would be the multifamily dwellings. And so the applicant has provided a rendering here as well as a preliminary site plan. These buildings will also be two stories. Each building, each of the four buildings, will have three units. The largest of the units will be on the second floor. That would be about 966 square feet. The first floor would feature two much smaller floor plans. So the footprint is about 966 square feet. About a third of that would be the one- bedroom unit that you see here to the north, and then a two-bedroom unit adjacent to that. The second floor would be accessible via a stairway. There would be no elevator accesses as you see here. I know that question was brought up previously. I'll go over some of those comments that were brought up in November's meeting. Again, the gaps or the setbacks in between the buildings, the widest setback between the two buildings would be for the two middle units. That's about eight -- that is eight feet as shown here and then four feet for the units on the outside between the two TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 28 of 68 adjacent units. Again, in looking at the general plan, this does offer a mix of a broad range of units. And again, as far as the land use is concerned, the staff has no issues. I should mention, as I mentioned before in the November meeting, the target demographic, the market here is for the aged. It is for the elderly. Now, I do want to make clear, and I was clear in the staff report, this is not being proposed as an assisted living facility. These would be rental units. And the applicant or the owner may be providing some concierge services, such as like trash pickup or deliveries of some type or transportation. But it will not be characterized as an assisted living facility. So looking at the commission's comments from November, I've mentioned them here. As I mentioned earlier, there will be a staircase access to the second floor, but there will be no elevator. I know that was a concern with regards to -- especially in regards to the fact that this is targeting the aged. There were a few details that could be shared at the time about the leasing arrangement between the owner and the tenants. The applicant is ready to provide more information about that. The tight separation between the buildings that was mentioned with the previous case as well, there is no option for private parking in this case. All parking is provided in the common area. That was a concern that was brought up. There was little detail about the outdoor lighting, and the color rendering provided minimal detail as far as the materials and colors but kind of gave a general idea. So as with the -- just as the previous case where, again, staff, you know, supports the use for this area because it's so underutilized. But we would also in this case recommend some modifications to address some of the concerns that commission brought up last time. So I'll conclude with that. GRAY: Farhad, similar question related to access rights from a legacy route crossing Parcel 39 and 37 and potentially 51. It looks like there's a walking path that extends from the municipal curb cut at the crossing there on kind of a, let's call it a 30 degree angle to the northwest. Any concerns or reservations? That just looks like a pretty well- TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 29 of 68 traveled path. That -- TAVASSOLI: And just to be clear, you're talking about -- GRAY: No. So -- TAVASSOLI: (Indiscernible) GRAY: -- right where your cursor is there's a -- draw a 30 degree angle southeast to northwest. TAVASSOLI: Oh, I see. Oh, okay. GRAY: That's coming from a city ADA walk across -- it just looks like that's very well- traveled. TAVASSOLI: Right. GRAY: Is that for the javelinas or is that (indiscernible)? TAVASSOLI: Yeah, Mr. Chairman, I'm not sure if that's just like a path that's been beaten over time. But yeah, I don't have information on that. It certainly doesn't appear on the plat as, like, any kind of easement or it's just been, I guess, established -- GRAY: Established. TAVASSOLI: -- over the past 50 years. Yeah. GRAY: Well, yeah. My question is, it's established? TAVASSOLI: Yeah. GRAY: I'm curious what the implications of that might be if someone took offense to building on those parcels. But Commissioners, site specific comments to this development? Commissioner Corey was first. COREY: Oh, thank you. I guess my primary concern, you weren't here last time we talked about this, is why was this decided to be a home of the aged? And if there's no elevator, if the aged are going to be walking up a flight of stairs to the second floor. I would like to hear a little bit about that. Like, what was the thought process behind that? Is that, A, an opportunity to change it from home of the aged to maybe other residential or put in some sort of an elevator or something so people can get up there? That's my primary concern. GRAY: And we'll let the applicant address that. TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 30 of 68 COREY: Sounds good. GRAY: Commissioner Sveum? SVEUM: I think the chair made an excellent point before on the previous one. And that is if you're going to tag along with a residential use and a commercial property, you should be bringing forward a residential subdivision type of requirements. Whether it's -- whatever they may hold, but there should be much more consideration made for this -- as a residential property and not just a converted commercial property. There's a lot of things that are missing. GRAY: Commissioner Corrigan? CORRIGAN: I do share some of the same concerns about the lack of elevator for an elderly home and lack of private parking and actually agree with the six stipulations or analysis of the staff. And this has been, you know, discussed before, but somewhat new to me. So yeah, those are all issues that I see. GRAY: Commissioner Dapaah? DAPAAH: Yeah. During your review of these requests, do we consult with the fire department at all? TAVASSOLI: Mr. Chairman, during the review, as I mentioned earlier, they are included in the review process, but they did not call out any violations of the Fire Code, at least none that stood out at this stage of development. DAPAAH: So this particular one has been reviewed, and they had no concerns with the space between? Okay. TAVASSOLI: Correct. DAPAAH: Thank you. GRAY: Commissioner Kovacevic? KOVACEVIC: So how many units are in this building again? TAVASSOLI: So four buildings, three units in each building, twelve altogether. KOVACEVIC: Twelve? Yeah. On a 5,000 square foot lot -- 5,000 square feet of lot. There are four lots; combined are 5,000 square feet? TAVASSOLI: Right. TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 31 of 68 KOVACEVIC: So that's about 96 units an acre? TAVASSOLI: Give or take. KOVACEVIC: Give or take. TAVASSOLI: Yes. KOVACEVIC: The maximum density in our code is 25 in the zoning ordinance. And then we moved heaven and earth to get to 45. It's a nonstarter to me. I don't know how we get there from here. And I don't understand -- I mean, let's have some uniformity. I'm like staff, I'm open to residential here. I think commercial has been vacant for so long. Commercial just has an inherent problem. You know, what, 500 feet, 1,000 feet north of here is parkland. How far east? Maybe half a mile east is reservation land. You don't have population density to support commercial here. So if we're going to use the land residential, it makes sense. There's something that works, but not 96 units an acre. And you know, if he's got control of the whole thing, let's do something with some uniformity. And those are my comments. GRAY: All right, Commissioners. Paula, let's go ahead and open the public hearing. I think what we should probably do is anybody who's specific to agenda item 8, first. And then we'll do -- does the applicant -- did you want to give a presentation ahead, or did you want to wait until after public comment? UNIDENTIFIED SPEAKER: (Indiscernible) ahead. GRAY: Okay. UNIDENTIFIED SPEAKER: (Indiscernible). GRAY: Okay. So Paula, as he's making his way up, we'll do 8, then 9, and then the combo comments of those last three cards. TAVASSOLI: Okay. WOODWARD: Okay. TAVASSOLI: I'll hang on to the keyboard if in case we need to flip through slides. UNIDENTIFIED SPEAKER: Yeah. GRAY: Okay. EJIM: My name is Wilson Ejim, and I'm the developer. And again, I want to apologize TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 32 of 68 for -- UNIDENTIFIED SPEAKER: (Indiscernible). EJIM: Okay. Thank you. I want to apologize for November. I thought it was all moved to January. That's why I left. But I didn't know that some of them was held back, so I'm very sorry for that. But the project, of course, is challenging. And I have worked with the POA for the last two years trying to figure out the best way to address the concerns. At the initial time my proposal was slightly different, but parking seems to be an issue. So that was why we decided to, okay, let me provide single-family that will have tandem garages. So that was what drove to that need. But in the process of that, I thought about, okay, what varieties of housing need can I meet? So that brings into the home of the aged because I know there are some people that could not afford a nursing home or assisted living. That doesn't mean they're in wheelchairs, just that maybe they retired, and they don't have that much income. So then I could provide a home for those 55 and older. They don't necessarily have to have an elevator. They still walk around, but their income has dropped so we could provide additional services, but I will talk more about that. But some of the issues that I encountered with the parking space. I had to address. Now, I just got the staff report today. So some of the things I'm going to tell you was not -- it's not on the drawing yet but getting -- you know, because of the holidays, we just go back to the office. And I heard today -- I saw the report. I said, well, I'm here to solve problems. That's what we do. But what I've decided was Lot 18, 20 and Lot A, that is east of the alley, that we can give up to provide additional parking space. So if you take all those along that eastern line, that will open up the question talking about visibility, about somebody not seeing other things coming, but also give us parking along that area, which will alleviate some of the parking issues we have and open up that alley. So then each of the units have ten feet back yard. It's not much, but it's still enough to have kids play and a family gathering. You know, we have done that in Vegas; it works TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 33 of 68 in a small lot like this. I still have a property in Vegas that's just about that size with a ten-foot backyard, and it works very well by new homes. So then when it comes to the trash collection, there are some trash collection areas right now. Meeting with the POA board, we decided that we'll be working with John, the other developer, to expand the existing collection center to accommodate more and then we share the cost. So that was some of the ideas that were brought up. And I'm very comfortable with that. You know, so they have some piece of land there that we can expand it, make it much bigger so people can have a central collection area for the trash over there. Now, the balcony issue on Lot 25, that's where we have the A, B, C, and D. Those balconies can be eliminated. These are all in conceptual stages. So the actual -- as I go to site planning, some of this is going to be resolved. But for privacy issues, the balconies are overlooked. These areas will be eliminated. Okay. Parking issues, we are giving up almost three lots that border the alley, so that would mitigate the constraint in that area and also provide additional parking. Now, when it comes to the open space, it's part of overall master plan. So I would think that they will also be able to utilize the same public space that the residents right now use because they are part of that community. The small lots we are trying to do something separate for them. There is no space for that, you know, but I did provide ten feet back yard, so that way they could have a place for the kids. But my vision of what I envision is more younger couples or older couples because, number one, older couples have the clinic close by, so they're going to want to make use of that. Younger couples may be those that are just trying to start off, you know, they want somewhere they can -- cheaper, they can just go live. And when they start having kids, they may sell and go somewhere bigger. So the market target I'm reaching are those that need a way to get in and be able to really sustain life or living. So that is the market target. Now when it comes to the home of the aged, my envision is, or my vision is if somebody TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 34 of 68 is using the upper level and have an issue, maybe develop some conditions, they can no longer climb stairs. Those are wide enough for a stair lift. Stair lift is a chair that you hook up to the rail, it takes you up there. But I'm 64, I walk up the stairs all the time. A 55 year old person that is healthy would love to go up and down. It's part of exercising yourself. But for any reason they have issues, the stair lift solves our problem. We don't need an elevator to go upstairs, you know? But because there are other ways to get up there without an elevator. But those that may be older, that don't want to go upstairs, have the ground unit on the lower level to meet their needs. So that is some of the thinking. Now, the building on the home of the aged partially solved sprinkler system. They offer sprinklers. So the fire issue there is resolved. And most fire trucks are 150 feet reach, and it's still close by where they can reach to the furthest part of the building, you know. So those things are put into consideration. And again, my whole idea on this is what can -- how can I use that property to serve the needs of the community or the needs that I have right now? And I think affordable housing is something that everyone that's in need across the whole nation to provide affordable housing, whether for seniors or for starters. And this is targeting those -- these are the market targets I'm trying to serve. GRAY: Okay. Commissioners, any questions for the applicant? SCHLOSSBERG: Is the for-sale housing or rental housing? EJIM: The single-family, those will be sold by the home of the aged. We will maintain that. The reason being what I envision is if these people are there, I will provide services like home care. You don't have to be -- there are businesses that will send people to help them out. No food is -- if they can't cook for themselves, you have people that are bringing food, and those businesses have contacted -- they exist. They're local that will serve them. The home care will come and help you clean, go to the grocery, and clean, you know, do whatever they can for you. If you need to go to the hospital, they have a medical rides that will take you there. So these ones will provide services. Now it will be as needed, TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 35 of 68 you know, because if it's not assisted living, it's just independent living, but provides some support services. GRAY: Commissioner Dapaah? DAPAAH: So this centralized trash area that you're collaborating with John on. EJIM: Yes. DAPAAH: Will the church, the pharmacy, and the convenience store use that same central trash? EJIM: I don't know whether they're using the same now. I would think so. But it's being used right now. All I'm doing is, okay, I'm providing additional trash. So I will have to add more in their space there that they've given us to expand the trash collection center. And I think it's much easier than trying to provide individual ones. So meeting with the board I was -- I'm willing to do that work to expand what we have right now. DAPAAH: And that is this one that is displayed here sitting in the middle of the parking lot? EJIM: Yeah. DAPAAH: So residents would have to come across that parking lot to toss their trash? EJIM: Well, the thing about it is, the residences have a choice, you know, because they have garages. If they want to put their trash can in the garage and roll it once a week. Well, they then want to bring in a trash truck, they can't afford to do that because there's no trash service right now. I would think if I lived there, everyone is taking their trash there, I'm going to roll mine there and put it away. But for the home of the aged, the home care that comes in and clean their homes once a week or twice a week would do that for them. But given the constraints of the space, I think it's more practical to take the trash to where we have the dumpsters. DAPAAH: Affordable housing without a concrete trash management, you know, leaves a big question mark for me. Okay. Because that area, too, as Clayton was saying, that's the marching grounds for javelinas. Okay. They run around there. And I can just TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 36 of 68 imagine trash coming across the back breaks, and they just walk away, you know? They drag it on the floor, it breaks, and they walk away. EJIM: Okay. DAPAAH: Trash management is -- you know, there needs to be some clarity on that because -- EJIM: Okay. DAPAAH: -- it can get out of hand for everyone. EJIM: That is another possibility. On that alley right behind the drugstore, the owner of the drugstore has a trash collection, a private one there. Okay. Now, since I'm giving up the lots along that alley, it gives me another opportunity to create my own trash collection. You know, I'm trying not to put more traffic on that alley, you know, because it was brought up in our conversation. But I have the option of putting my own trash collection there so it's more closer to the resident. DAPAAH: Okay. Thank you. GRAY: Commissioner Corey? COREY: Thank you. Thank you, Mr. Wilson. So I just wanted to clarify, you mentioned -- I mean, it's pretty significant that you mentioned, I believe it was Unit 19 -- EJIM: Yeah. COREY: -- 20 and A. So you would nix those -- EJIM: Yeah. What I'm doing is -- I think it's 18. COREY: I think it was maybe 19 on that one I saw. EJIM: Okay. That's the one that's -- COREY: On the lot. EJIM: -- east of the alley. That is 19, 20, and A. COREY: Yes. EJIM: Okay. So those ones that border the alley I'm willing to let go. So then I'll use that to provide additional parking. COREY: Um-hum. EJIM: They are 50 feet long. So that would give at least four to five parking spaces. So I TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 37 of 68 have potential up to 12 to 15 parking spaces there. Now, if we take a portion of that for the trash collection and the -- and since this has an exit, so I think a dump truck can easily come pick it up and continue because if they turn around, it takes a lot of space. So we can put one there, they pick it up and then continue drive out the other way so that'll solve it. COREY: So you're thinking it's like four to five spaces per lot if you were to -- EJIM: Yes. Yeah. COREY: -- remove it though. Okay. EJIM: Yeah, a 9 foot lot so we could get up to four or five or more. COREY: Okay. So that would significantly reduce -- what did you say earlier? It was 90- something dwelling units. So what does that bring it down to -- KOVACEVIC: That's not the -- that was just the home for the -- that was just the home for the aged. That had nothing to do with -- you combine them. What do you have? You have 10, 14, and then the 12 is 26 on 25,000. No, not 20 -- 22,000 feet. So about a half -- you're still at 52 for the whole site. COREY: Okay. EJIM: What I envision on that is when I did some of the -- for the assisted living before, they don't want to keep the cost down. They don't mind sharing beds -- I mean room, you know. So one should have fixed financial income. Now, I'm not talking about those that could afford it. I'm talking about those that need a place to stay and can't afford to pay assisted living. COREY: Yes. EJIM: And those that are willing to share rooms. So what now -- even though I have three units there, one is a one-bedroom, that's at the back, if you want to be by yourself. If the other one say, I can pay the two, the whole unit with two bed. Fine. Or maybe I don't mind sharing my own room. They have the individual rooms -- they have an individual bath, they should have a common area. And when they have a cluster like that, they love it because they're able to make friends than staying by themselves, you know, because they're not living with TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 38 of 68 young people. They're not living with their grandkids. They're living with other elderly people. And if they could have a roommate, they're more lively. They enjoy that better than just being stuck up by themselves. COREY: Yes. No, thank you for explaining that. I mean, we appreciate that you're bringing this to us and that you're looking at developing that area. We're just trying to make sure that it makes sense. And the other comment I wanted to make to address what some of my colleagues said was the kind of the elevations and look and feel. So you've got different sites. Would you consider bringing elements in that would be -- that would kind of make some consistency, so this area has some uniformity? EJIM: Yes. COREY: Okay. EJIM: Yes. COREY: Okay. Thank you. EJIM: Very open. GRAY: Commissioner Schlossberg? SCHLOSSBERG: So I'm going to go back to the home of the aged again here, so I can be clear on what I'm thinking or seeing. So this is going to be a mandate 55 plus. Nobody under 55 -- EJIM: Yes. SCHLOSSBERG: -- can live there. And you're obviously representing someone, so who is going to manage this entity once it's completed? EJIM: We will maintain that, you know. Basically they'd be a management maintaining that section. It is not for sale. It's for you know -- it will be leased out to these people, and we will provide services. SCHLOSSBERG: So would it be subsidized in any way? EJIM: No. Subsidize any tax credit from the city. Something you know, that -- I've never looked into that. There is incentives that could help then, it will help to subsidize the rent, you know. So right now I've not thought that through about subsidizing the rent. TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 39 of 68 SCHLOSSBERG: So by designating it as 55 plus there are special incentives and -- okay. EJIM: Yeah. SCHLOSSBERG: That's kind of where I was going. All right. Thank you. GRAY: So to follow on to your inquiry, Commissioner, if I am interpreting correctly, we're talking about renting beds and not necessarily renting units by -- EJIM: No, no, no it's the units. But what I'm saying is some of them, you know, from experience, they don't mind sharing a room -- I mean, an apartment. So basically, let's just assume -- because you have placement companies. Let's say, Mr. Jones, this is X amount of dollars. Well, I don't have that much. Do you mind sharing with somebody? And that way both of them can share because they have a common kitchen, a common living room, a common -- you know, and they're all full apartments. But some of them may say, look, I'm moving in with my wife. I don't want to share or I'm okay. I can take care of that. And they stay about themselves. SCHLOSSBERG: So you will hold one lease, but the residents of your property might seek roommates through a third-party platform; is that what we're saying? EJIM: No, no, no, no. What we're going to do, we are going to manage the entire unit. So if you're going to bring a roommate, it's something that we work together and find a roommate that both of you agreed to stay and manage that because that is -- the essence of managing it is because we are providing other services. They may need occupational therapy. They may need physical therapy. They may need speech therapy. It depends on the needs. SCHLOSSBERG: Understood. EJIM: So since they are seniors, we want to make sure that they are well taken care of; we're able to provide services they may need. GRAY: Very good. John, can I ask you, are we broaching in the community residents with all of these services and components to this dwelling unit? WESLEY: Chairperson, that's certainly been on our mind as we've listened to him and what he's proposing to do and how he is structuring it. Right now, it's still individual units. And so each unit could have -- TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 40 of 68 GRAY: It seems like a lot of good ideas culminated in a community residence is the way I'm interpreting this. WESLEY: Yeah. Again, it's been close to that, and it's what we've been listening to. And so far, from my perspective, he hasn't quite gotten there. They have been still individual apartment units for rent that on the side have had some services, but not to the level of a residence. It's operating as one facility. GRAY: Okay. WESLEY: It was something we discussed with him earlier; is the idea of ultimately turning it into an institutional use. So it is more clearly providing those services, but not as a community residence, but more as the nursing -- not nursing home's an overstatement. The other way. But you can understand kind of that's got ten or more people in that congregate -- GRAY: Understood. WESLEY: -- type -- GRAY: Yeah. WESLEY: -- setting. But he didn't want to go there for various reasons, so. GRAY: Yeah. Okay. I understand, thank you. Commissioner, did you have one? Commissioner Corrigan? CORRIGAN: I've got my answer. Thank you. GRAY: Very good. All right, Commissioners, last chance. We'll call you back up, Mr. Ejim, after the public hearing. Paula, let's go ahead and open that hearing, and we'll call on agenda item number 8, specific speakers. WOODWARD: Okay. There are three speakers. The first speaker is Larry Meyers, the second speaker is Barry McBride, and the third speaker is Crystal Cavanaugh. GRAY: Okay. And they're speaking on both 8 and 9 then as they -- WOODWARD: Well, Barry McBride is number 8. Larry Meyers and Crystal are both. GRAY: Let's bring up Mr. McBride then -- WOODWARD: Okay. GRAY: -- first so we can try and tease out 8 versus 9. TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 41 of 68 WOODWARD: Okay. MCBRIDE: Mr. Chairman and Commissioners, I apologize for my appearance. A hat on the inside. If my dad saw me, I'd be doing push-ups right now. But in my appearance, I've been in cancer treatment today for the top of my head. I have to have a hat on. And Mr. Wesley pointed out this is the first time he's ever seen me without a necktie, and he's absolutely correct. So I do apologize. WESLEY: That's true. MCBRIDE: Ladies and gentlemen, I just have a couple of comments, if I may. First of all, I am a board member of Tract 106, and every so often, it seems as though there's in a presentation that we're just not involved. And I have to say that as a board member, we are very involved with the operation of our tract. We've always considered it to be commercial, and we have put hours into this proposed development. And we really do like Dr. Ejim as a gentleman. He's a fine man. There is no question about that. But I want to point out the fact that a perceived underdevelopment or a lack of development does not open the window to change a commercial property into a residential property. Already the pharmacy has a Special Use Permit, residential above with pharmacy below. There's also a Special Use Permit on the southeast corner of the property. And there has been approved true residential development on the northeast corner. And so we have to express the amount of stress that comes to the board when we protect the other commercial owners as it relates to a mixed-use of truly a commercial development. So while we do respect the importance of developing property -- I purchased two buildings. I've got over a million invested in my two buildings that I purchased in good faith that those would be commercial properties in a commercial area, and I do use them for commercial purpose. So I present to the board and I ask for consideration for the future, possibly, as you see, the stress that's involved trying to force residential into commercial, is it such that the council might want to consider the respect of commercial in commercial and look at TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 42 of 68 development of residential in residential areas, properties that have not yet been developed. I thank you so much for your time. Good evening. MEYERS: Well, rarely would I say I couldn't have said it better, but I can't say it better than that. So on the 26th of January, I'm supposed to go to a meeting in which I'm a newly-minted Economic Development Committee member. Economic development. Let's talk about this whole plat, globally, and let's talk about the common language that I think Mr. McBride just referred to that constantly comes up whenever there's some change in zoning that we want to do. And I want you to take your zoning hats off, and I want you to think about planning because planning doesn't involve something five minutes from now, ten months from now, five years from now, ten years from now because I've been doing it for 43 years in this town or trying to. So Economic Development requires planning; something we don't have in this town. We have somebody like Mr. Ejim, who's probably a fine man, buys up a bunch of property, tries to shoehorn it, get y'all to change the zoning on it, and then shoehorns something in it that wasn't designed to be there. It was designed to be commercial. And as the years have gone by, we have rezoned away our economic development opportunities. Why do I say that? Because in 1999, I had to stand before a whole bunch of people just like you and tell them that the Target Plaza was a bad idea. The math didn't work. The place was designed for a corporate center to employ 2- or 300 people to create economic development activity in this town. I got the same blank stares then as I got now. Oh, the Target's going to be great. And here we are. Here we are. We had to rezone one end of it because it's failing. Because it was always going to fail. Because it wasn't meant to be zoned as commercial. It was industrial, corporate center. Now, just because this -- and this language is constantly used, "staff supports the proposed use as an infill opportunity for Plat 106, which is vastly underutilized". Underutilized, why? Because nobody plans. Nobody works at anything. So if I'm going to sit on this committee on the 26th with a bunch of other smart people and try and do some economic development, I'm going to sit here and forever sit here TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 43 of 68 and tell you that every time some developer who wants you to save his investment, it's all this is. The same thing that the Sandor guys are wanting you to do. They wanted you to save their investment. They bought the Target Plaza from Barclay Holdings for 14.4 million. They knew it would be a failed commercial center. And now they want to throw up onto a bunch of crappy apartments. I'm looking at this the same way, only on a smaller scale. It's a chunk of land. What can I use that land for? Could I have a corporate headquarters there of maybe 100 people? Could the rest of the commercial people out there decide to sell all of their property to one entity, and we end up with 100 employees? Maybe. But if you don't work at it, you'll never get it. And nobody ever works at it. They just rezone for crap. This to me is crap. Sorry, Mr. Ejim. And I don't buy the baloney, oh, I'm going to bring in business. And the more people we have, the more business we'll have. I got news for you. Another 20, 30 people in this town spending a few dollars in a restaurant somewhere for sales tax revenue is not what I'm talking about. I'm talking about 2-, 300 employees with families and kids going in the school that's failing because we don't have any young people. And he's going to build a home for the aged. That's what we need, another one of those in Fountain Hills. So from a global perspective, forget the rezoning. Don't rezone any more stuff because it's vastly underutilized. Stuff was vastly underutilized in 1999, in 2000, in 2010. But if you don't try to work at it to fill it with something that actually means something rather than meaningless apartments. Apartments are not economic development. They don't generate squat. And so from a global perspective -- just give me one more minute. From a global perspective, every time one of these rezones SUPs where it takes away land that was supposed to be used for something, when the master planners thought this place out and you rezone it to build an apartment, think about what you're taking away. You just took away the ability to actually plan. And you just took away the town's economic development possibilities because every time you take one of these little places, a little one here, a little one there, you've taken away another possibility for something that TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 44 of 68 actually really matters. And this, sorry, matters to you, financially, doesn't matter squat to me, and I don't think it matters squat to 55 percent of the voters of this town. And that's what I want to say, globally, about 8 and 9. Neither one means anything in the grand scheme of things in Fountain Hills. Thank you. CAVANAUGH: Hello. I'm not going to talk globally. I'm actually not going to address the whole commercial aspect either because they both have done that. But my radar goes up on a few of these things. On number 8, for example. Overall, it's pretty unattractive for a single family residential area and in a scenic community. Number one, that's a concern of mine. Commissioner Corey mentioned, you know, obviously it's probably going to be a family and then it's going to be parking concerns. There are four bedrooms in 1,325 square feet. It's quite small. Like you also mentioned, nowhere for small children to play. So this leads me to worry. What four adults will reside here? And I've heard the term affordable housing a few times. Now, the developer and all developers need to make money. So what's affordable? For one thing, they're going to have to get their money back. Then they sell to who? And then they're going to want their money back. And so without government subsidies, affordable housing doesn't really exist during these economic times. So that worries me. And so he's talking about solving our needs. I'm not really thinking those are our needs. And then it bounces me over to number 9, the home for the aged. So this was my question too. So what is aged? So is this going to be an over 55 community? Can you just designate a few apartments as over 55, or is that some sort of discrimination? I don't know. I know communities I've been in, gated communities, they'll have an over 55 section. I just don't know the rules on that for one. And so that bothered me. And I'm going to say I actually have talked to Dr. Ejim two or three years ago when we were worried, when he was buying up all these parcels that had been unused for years. And of course, you know, my major concerns at the time, and I was worried that's what TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 45 of 68 was going to happen, so I actually called him, and he eventually called me back. And what he told me was his goals were group homes for the elderly. He did say group homes though. And that kind of leads me to something else I heard here. So he keeps saying home for the aged, and then he's talking about home care and then he's talking about services. And to me, he's talking in terms of this building as a unit -- as a unit. Almost like a nursing home, but it isn't a nursing home. And so those were my other concerns that you guys did bring up. It's sounding a little like community services. And my notes on the side, before I ever knew, how do you get to the second floor if you're disabled or have a bad ankle or carrying your groceries because there is no elevator? That was my question. Is there one? And you guys answered that there was not one. And another thing is when you ask something about a development contract, you know, would this be stipulated in it? And then I think, John, you might have said it was a minor issue and no, no, no, no, everything better be stipulated if something like this is going to go forward. And I truly think something like this shouldn't go forward because he also used the word affordable for this development also. So I'm worried, I'm suspicious, and that's all I got to say at this point. I think there's way too many unanswered questions and whether it should even be changed at all for zoning. Thanks. GRAY: No more cards? WOODWARD: No, Chair. GRAY: Any written comments that came in late that we might not have seen? WOODWARD: No, Chair. GRAY: Thank you, Paula. All right. Go ahead and close the public hearing. Mr. Ejim, you'd like to address any of the comments made from the public tonight? EJIM: Yes. Thank you. Well, she mentioned that she had spoken to me ,and I spoke to quite a few over the phone. I can't recall that. But one thing I do know, I've never used the word "group home". The presenters here never approached me for group home. TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 46 of 68 John, all the time we discuss, never talk about group home. Yeah, I've talked about a way to help an assisted living form. Then I look at the -- what the code allowed such that with John and say, okay, what I'm trying to do, this is the right use for that. So that's how -- I work with the city and the community all these years to make sure that I define where I'm going and make sure I fall within the premises of the zoning ordinance. So what I'm doing is exactly for the home of the aged and trying to find a way that I could bring support services to meet their needs. Okay. GRAY: Commission, open the table to discussion. Let's kind of tease these two apart at this point. So let's work with agenda item 8, which is a Plat 106 single-family residence, first and then we'll move on to agenda item 9 for discussion. So open floor comments, clarifications needed from applicant, or staff at this time? Commissioner Sveum. SVEUM: With all due respect this is -- I have to look at both 8 and 9. And I understand maybe protocol isn't the right way to that I'm doing it. But this is so disjointed in my mind. I have a hard time tracking what is where anymore. I think that it's just -- it's not very well thought out. There should be more -- if you want to do a development there, I think you need to look at more of a centralized building, whether it's mixed-use or whatever. But this can't be -- I don't believe the way you've got set up is very attractive. I think that there's a very mysterious, cloudy business model going on with whatever the housing is going to be. I just think I'd feel very uncomfortable if I was a neighbor hearing a presentation like this and feeling very comfortable with what's going on in that location. I also agree. I think converting our -- see the commercial properties to residential. We did one a few months ago that I voted against, an office building that's going to be converted to an apartment building. I agree, Mr. Meyers, with your assessment that economic development is not necessarily residential housing it is. It has a lot to do with jobs being created and services being created. That's what belongs in these commercially zoned parcels. And TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 47 of 68 we're making too many concessions and not looking at long-term from this perspective. I haven't been here 43 years, but I've done a lot over the years in this industry. And I've never felt I could bring something that has such short or such small thinking of -- and just trying to throw things against the wall and hopefully something sticks. And I don't know if you bought the property or not. It's not ours to even look into. I don't really care. I think it's very poor planning. And in fact, I don't even care about how many units per acre when you're only putting up 25 units. It's irrelevant to me. It's just the way this is planned out with the alleyways, with no park space, with removing units and creating more parking, it doesn't deserve the hour we've taken, frankly. Unfortunately, we need to do better when you present these things. And this is, I think, very poorly designed, and I don't think it should have been even brought forward, so I can't support this, not at all. GRAY: Commissioner Corey? COREY: I'm trying to remember our discussions. Did we ever talk about the commercial element on the first floor in this area because, you know, we've -- what's this? TAVASSOLI: Mr. Chairman -- COREY: Did that come up to the Planning and Zoning Commission, other ways to design this? TAVASSOLI: In regards to particularly these two cases? COREY: Yes. TAVASSOLI: Mr. Chairman, Commissioner Corey, there was -- I may have brought up the possibility of -- the applicant was thinking maybe one of the units on the ground floor can be used as an office for the -- and this is in reference to the multifamily for the homes for the age -- COREY: Okay. TAVASSOLI: -- could be used as an office for like administering, you know, trash pickup or -- COREY: Yeah. Okay. TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 48 of 68 TAVASSOLI: -- some other services. COREY: Because yeah -- because I mean --thank you. TAVASSOLI: But that would be compatible with the CC zoning district. COREY: Yes. TAVASSOLI: Yeah. COREY: Okay. So what we're hearing a lot tonight is, you know, we don't have a lot of this property left. So we're taking away the commercial aspect and just replacing it 100 percent with residential. But we've been in this plat before and I think that southwest corner -- southeast corner, we approved the commercial on the first floor and residential on the second. And that seems to be something that works well for us. And that could be something that we want to discuss moving forward is to help appease the people that want to keep commercial there and keep that a vibrant commercial area, but with residential units on the top. So as we go forward, that might be something that we want to talk about. GRAY: Commissioners, last chance comments on agenda item 8, single families. Commissioner Corrigan? CORRIGAN: Chair, I just agree with the staff's report in basically rejecting the project as is for their concerns. I share all of their concerns, not just one or two. And I'll reiterate -- excuse me. I'll reiterate it again that I don't think that's been addressed adequately. And I don't think this answers the overall problem that we have with commercial space. And I do agree with Commissioner Sveum that we should look at this differently rather than a Special Use Permit. These concerns are staff-identified. And when I see them highlight recommended rejection, I take that not lightly. GRAY: Commissioner Kovacevic? KOVACEVIC: Well, I have concern -- I am concerned that Plat 106 itself doesn't support this project. I think this is a tough commercial site. And I think it'd be it -- so I am open at looking at some sort of residential that might make sense. But again, Mr. O'Brien (ph.), it concerns me that you're not in support of it. But I have no interest in the home for the aged putting 13 units on 5,000 square feet. TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 49 of 68 And I think that I don't -- this wasn't designed as a residential site, and a lot of modifications have to be made to provide for the health and safety of residents that might be living there, and I don't think any thought's been given to that. GRAY: All right. Just final comments from me before we go to a vote on agenda item 8. These are really specific to Plat 106 and the application. I generally concur with the statements of the other Commissioners and staff across the board, but I think I said this the last time we looked at a rezone within 106. It feels like 106 wants to go through a master plan as a plat. It feels like 106 needs a new vision for 106, but that's not ours to govern. We've routed through and approved two prior conversions. Yes, one was a mixed-use. One was strictly residential, with some pretty significant municipal improvements, civil improvements associated with it. I think we've levied a heavy enough hand in the conversion of Plat 106 without Plat 106 wanting to carry that through. And to carry that through, I believe you've got a master plan it. You can't have whatever that is, 160 parking spaces, stuck in the middle of this thing, and us trying to arm wave infills and infills that just barely make sense if they do. So that's my thoughts related to 106. And then again I should bring this up later as we talk about, you know, discussion with staff. But I think I've learned the lesson this time around that as we look at these conversions, the general plan isn't -- it's not an edict to convert it. There's those that would tell you that it is, but it's not. We need to really say convert it when it makes perfect sense to convert it. And that means -- to me, that means we really start to take a look at that open space ratio, those setbacks, those densities, those things that are commensurate with what the underlying residential zoning would be if applied. And obviously, we were a long ways away from that here. So with that, I'm going to call for a motion, or if you guys allow me to do it, it's going to be a motion to deny. All right. With respect to agenda item 8, let me get the right language here. Maybe? Agenda item 8, request for Special Use Permit to allow ten single-family residential units TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 50 of 68 on six parcels within Plat 106. I'm Making the recommendation to council to deny on the basis of discussion had here this evening, inclusive of all staff comments as well. SVEUM: Second. GRAY: All right. I've made the motion. Commissioner Sveum has seconded. Paula, let's do a roll call. WOODWARD: Commissioner Corey? COREY: Aye. WOODWARD: Commissioner Corrigan? CORRIGAN: Aye. WOODWARD: Commissioner Dapaah? DAPAAH: Aye. WOODWARD: Commissioner Kovacevic? KOVACEVIC: Aye. WOODWARD: Commissioner Schlossberg? SCHLOSSBERG: Aye. WOODWARD: Commissioner Sveum? SVEUM: Aye. WOODWARD: Chair Gray? WOODWARD: Seven-zero. GRAY: Thank you, Paula. All right. And then on to agenda item 9. This is specific to the four multifamily buildings containing three dwelling units each on four adjacent 1,250 square foot parcels, otherwise known as home for the aged. Commission, any discussion amongst us for the applicant or staff ahead of a motion? Okay. Commissioner Sveum, or are you guys just -- SVEUM: (Indiscernible) -- GRAY: -- mics still on or -- that's my cue. SVEUM: I was just going to second. GRAY: Okay. Anything from you guys? You guys want me to make the motion? IN UNISON: Yeah. TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 51 of 68 GRAY: All right. Well, before I make the motion, agenda item 9 leaves itself open. You know, amongst all the planning -- you know, underlying planning issues that I don't think that we have any ability to jump over here this evening or even with modification. What I see, intentional or not, with agenda item 9 is a compartmentalization strategy to work around the community residence provision in our ordinance. I think that's something. I don't know what we do with that, you know, between commission and staff, but something, you know -- certainly it's an angle we didn't consider. And I don't know that it's intentional here tonight, but that's what's possible. And so for that reason, along with just a general disposition, that I don't think we can make this work -- you know, make this conversion work in that zoning on those parcels, I'm going to make a motion to forward a recommendation of denial to the council with respect to agenda item 9. SVEUM: Second. GRAY: Motion made. Commissioner Sveum seconded. Paula? WOODWARD: Commissioner Corey? COREY: Aye. WOODWARD: Commissioner Corrigan? CORRIGAN: Aye. WOODWARD: Commissioner Dapaah? DAPAAH: Aye. WOODWARD: Commissioner Kovacevic? KOVACEVIC: Aye. WOODWARD: Commissioner Schlossberg? SCHLOSSBERG: Aye. WOODWARD: Commissioner Sveum? SVEUM: Aye. WOODWARD: Chair Gray? GRAY: Aye. WOODWARD: Seven-zero deny. TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 52 of 68 GRAY: Thank you, Paula. All right. Agenda item number 10. John, this one is yours. Discuss and provide comments on the first draft of a new downtown overlay district. WESLEY: If I can find it. I'm going past it. There you go. Okay. Chairman, Commissioners, we had this opportunity last month but delayed it to this month. So the council has recently approved a downtown strategy, and the strategy calls for several items for staff to be working on over the coming months and couple of years to help improve the vibrancy and activity in the downtown area trying to create more employment opportunities, mixed-use, and better use and maintenance of vacant properties. As part of that, we are looking at the opportunity to update the zoning as it applies to the primary downtown area, in this case, the area that is the Plat 208 area so from Avenue -- the Fountains on up here to La Montana SWO (ph.) in this area. Currently, in the southern portion here over Plat 208, it's mostly zoned C-2 with a little bit of C-3 and has two overlays, the Economic Development overlay and the planned shopping plaza overlay. They do slightly different things but overlap to some degree, and having the two of them is always a bit confusing in trying to describe to somebody what they can and can't do to the property. And so we're proposing that we replace those two existing overlays with one new overlay that we're calling Downtown Overlay. And that overlay would divide the area into three subdistricts, the Innovation District, the Business District, and the Avenue District. The Avenue District is, as it says, right along the avenue with also part of Verde River, it keeps the uses pretty much the same as what is allowed today. I did note, however, that in the ordinance I had one typo. And the sections listed here are the ones that would be allowed. But the one restriction or the one main change that is proposed is that on the ground floor in these areas we would restrict uses to active retail restaurant type uses, ones that add to that vibrancy and no longer allow office type uses on those ground floors. They would be allowed to stay as long as they're here, but when things become vacant TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 53 of 68 and it's time to fill them, it would have to be with the new uses. It continues the same -- items that are in the current entertainment overlay in terms of allowing for outdoor seating and the associated entertainment that goes with that. Today, however, if you're familiar along the avenue, the room for those outdoor activities is somewhat limited. As we can see with this one example here by Sofritas. Nice to have that dining along the avenue, but the area left for the pedestrians is rather narrow. And so as a separate item, the staff has been proposing to the town council, and it would be part of their budget considerations for the coming year, that we fund improvements along the avenue. So we take those curb lines and move them out to give us more space for those sidewalk type activities and bring that liveliness and vibrancy to the businesses, allow for more opportunities for the sidewalk cafes and room for the pedestrians. So another part of this is that -- currently, as you know, because we've had this discussion a few times, is that the current Overlay District allows for a maximum of eight units by right on the second floors. We're always coming to you with Special Use Permits. Special Use Permits create challenges in the development world. It's time. It's money. It's a question. Can I get it? Can I not? So feedback we've gotten from people who work in this area and trying to build in the downtown is we need to increase that allowed by right density. So we've proposed in the ordinance that we increase that to 15 units per acre. And I'll talk about that here in a little bit. So some of the questions and comments that we've had, excuse me, is again, how does this impact current uses? It does not impact current uses if it's adopted. And we do limit the ground floors that would affect future uses. Existing uses would be able to continue. We've had some question about, well, what are those allowed uses because the ordinance language is pretty broad. We didn't want to get specific in an ordinance because then you start tying your hands too much. But looking through the different TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 54 of 68 types of commercial establishments in the codes, this is an example of types of uses that could go in those ground floor spaces. Coming back to the density issue currently again, most of our lots are 6,000 square foot lots. At eight units per acre, you can get 1.1 under the current ordinance. I've actually been allowing people to do two by right, just because one just really doesn't make any sense. So usually we round down, but in this case I'll round it up. We up it to 15 units per acre. That's 2.6 units per acre. So we really haven't accomplished anything by going to the 15 units per acre. So another thought that's come to mind since we sent out the ordinance draft that I'll be looking at and looking for any feedback you have on, instead is to look at it in terms of number of units per square foot of the building footprint. So you have a 6,000 square foot lot. If we allow one unit per 2,000 square foot of your footprint, then you could get three units per floor. So if you have, you know, three floors or two floors of residential, you'd have six units on that. So that's still pretty low density. But I think that math works easy for everybody to understand what they can do and does increase it a little bit over what that 15 is. The next district we have is to the north. So between the Avenue and Palisades, calling up the Business District and trying to expand some of the uses allowed in there, some of the uses that may we -- we aren't as excited to see on the avenue. The offices would be very welcome in the Business District area, as well as continuing the other uses that are there with the restaurants and entertainment type activities. So all those would still be allowed. Again, proposing to increase the dwelling unit to 15 units per acre and limits the SUPs to things for residential densities only. And then going further north of Palisades up to the La Montana in that triangle area, trying to expand that even more in terms of business opportunities and employment type opportunities. So here again, the typical commercial districts, but starting to expand a little bit into some of the light industrial type things with the laboratories, some of the manufacturing assembly of nonhazardous, nontoxic light assembly and storage, as long as it's less than 50 percent of the building. Another thing we're looking at is temporary uses. We've got a number of vacant lots in the downtown area that are TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 55 of 68 sitting there idle, and maybe not as attractive as they could be, and so could we allow some temporary type activities and uses on those that would get them cleaned up a little bit, utilized a little bit, but don't require a big investment upfront until the more permanent type uses could come along. And with that, we've again left the ordinance fairly general, with the idea that we would create some guidelines that could be used by myself and the town engineer to guide that development. So again, cleans up the lot, addresses some of the concerns you might have with dust or access or some of those things, but they can be used. The ordinance continues the same allowances for common-use parking in Plat 208 and another item that we may wish to consider. However, particularly in the Plat 208 area, right now it has a zero setback so you can build to the property line, but you don't have to, particularly along the avenue and really on most of the Plat 208. We really want those businesses brought to the street, so you create that street wall and that interest and vibrancy and not be set back. And so maybe we want to change that in what's called in some codes as a build two line. So you have to build within five feet or ten feet of the property line to make sure they are bringing those buildings forward. So we might consider that as an amendment to what's been looked at so far. Again, with regard to the vacant properties I mentioned earlier, the temporary uses as a separate item, we're also going to be looking at, are there some things we can do on our property maintenance code to step up the level of maintenance that's required on these vacant properties to keep them clean and attractive for the public and for visitors to come and potential investors? So that's an overview of this draft ordinance. We've had a preliminary discussion with the Avenue Merchants Association. We've mailed out the ordinance to different property owners within the Town Center area, been talking to the Plat 208 board about it and plan to go to their meeting in February and discuss it with them to continue that public input. We want to go ahead and get started with this commission to see if you had any early thoughts for us. But we will -- when we're ready here, hopefully by March, to set it for TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 56 of 68 public hearing for more formal discussions. But any preliminary comments that you have would be appreciated at this time. GRAY: Commissioner Corey, I'll let you go first. COREY: Thank you. Just a few comments, John. One of them is the grandfathered in aspect. So just for clarification, so if the business owner or the building owner is going to re-lease or re-rent that to another business, then they would need to be -- they would be then in the new plat, right? Not plat but the new -- WESLEY: The new ordinance. Yes. Yes. COREY: Yes. So would that potentially cause any issues, like they were expecting that they could provide one service and now it's going to change? Have we heard any issues there. WESLEY: So thus far, I have not heard any. I would expect to hear them. That's the most controversial thing in this proposal is the impact that that could have. COREY: Okay. And then I saw that the third -- the innovation area, I kind of like that. I think I read in the agenda was that that would allow new businesses to have a quicker approval process, right? One of the elements of that district would be that we'd let them come in quicker and set up shop a little bit quicker. WESLEY: Chair, Commissioner Corey, yes. Especially in terms of some of these uses right now, if they're allowed -- some of these extra uses shown on the screen, if they're allowed through Special Use Permit, but if we make it by right then certainly it would be quicker or to keep them from having to rezone to allow the uses. COREY: Yes. And I remember hearing that, you know, the process of getting the business license was time-consuming so maybe that's something -- I do like hearing about that. I want to talk a little bit about the move to curb, the street wall element. So I think in the picture that you showed, it reminds me of like the Sofritas area. There you go. It is Sofritas. If you go back one more. So that shows what it looks like today, and we can see that there's only room for maybe one wheelchair if you're in a wheelchair to go straight down there. The other people have to kind of wait. I think I brought this up last TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 57 of 68 year because I was very concerned about it. So in the new image, it looks like this is a rendering of that same spot. WESLEY: Yes. COREY: So help me understand. The fence is in the same spot? WESLEY: Yes. This dashed line represents the current location of the curb -- COREY: As it is today? WESLEY: -- (indiscernible) -- yes. COREY: I see. WESLEY: And so the proposal is that the curb gets moved out to create that additional landscape and -- COREY: Okay. WESLEY: -- pedestrian area. COREY: So I see -- I still see cars parked there. WESLEY: Yes. COREY: So what does that mean to the street? Does that mean the cars are just pushed closer to the street and the street's still there? WESLEY: Yes. Chairman, Commissioner, I didn't bring those slides cause I didn't want to get, you know, off into that it's not really part of this proposal too much. So I didn't bring the details. But yes, the center parkway stays the same -- COREY: Okay. WESLEY: -- but the drive aisles currently are almost two lanes wide, but not quite. COREY: Yes. I see. WESLEY: And so that's what we're doing is taking that extra wide drive lane and putting it over here on the pedestrian side. COREY: Okay. WESLEY: Everything else stays -- COREY: Okay. Thank you. That makes sense. WESLEY: -- remains the same. COREY: It's unfortunate we didn't think of this a long time ago because it looks like, you TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 58 of 68 know, it was recently paved and redone, but that's great to hear that. Okay. Thank you. GRAY: It's recyclable. COREY: Yeah. GRAY: It'll be fine. How will we drag race? WESLEY: You can still do it. Just got to stay in a straight line. GRAY: It's new pavement. Brand new pavement, as you stated. Commissioner Kovacevic? KOVACEVIC: So I'm glad to hear you say that the most controversial thing are the uses on the avenue because this would render the title company noncompliant or nonconforming, right? WESLEY: So Chairman, Commissioner Kovacevic, the title company I can think of is on the south side. Maybe there's one on the north side. This just affects the north side of the street. KOVACEVIC: Okay. WESLEY: But there are a number -- KOVACEVIC: (Indiscernible) -- WESLEY: -- of realty offices in particular on that north side that would be affected. KOVACEVIC: Yeah. WESLEY: (Indiscernible). KOVACEVIC: Okay. So that helps. What about -- there's some mortgage companies -- WESLEY: Right. There's -- KOVACEVIC: -- on the north side as well. WESLEY: -- right. There's various office type uses. KOVACEVIC: Are they an insurance -- insurance, those are nonconforming? WESLEY: Those would be. KOVACEVIC: And I guess I have a concern there because it was so hard for the developer to lease the retail space in the apartments on the south side. How -- the demand -- and my concern is that you're eliminating so many uses that you could be creating a vacancy problem on the north side of the street. I do have some concern for TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 59 of 68 that, and I would hate to see you eliminate so many uses that demand couldn't support enough of the right kind of businesses that are approved for the north side of the street. WESLEY: Yes, Chairperson and Commissioner, we are concerned about that also. We know it's a balancing act that we need to strike here. The plan is that as we do a combination of things, these streetscape improvements that provide the room for the different, more vibrant types of uses and other improvements in the lighting and the amenities that would drive that demand so that the restaurants and the retail will want the avenue. And it'll be that process of filling in and basically pushing then the other uses out, and it won't be so much because again, anybody that's there can stay there as long as they want to stay. It's only when a vacancy occurs that the refill would need to be within the code. But it is something we will continue to look at and see what kind of feedback we continue to get from the businesses and property owners. KOVACEVIC: Because I understand the merit of making it a -- you know, a Restaurant and Entertainment District. Like I said, I'm just concerned about the demand and you know whether it's there to support the whole north side of the avenue. WESLEY: Right. GRAY: Commissioner Sveum? Oh, sorry. Commissioner Schlossberg first. SCHLOSSBERG: I think you and I had spoken about this earlier, and I was a little irritated that I was going to be eliminated from being able to have an office space on the ground floor of the avenue. But I will tell you, over the weekend, I was down in Naples, Florida, my old hometown on 5th Avenue, and I was trying to get -- wrap my head around what's different here than what is going on in our avenue? And at the end of the day, I started doing an inventory and that's what it was. So I think you're definitely on the right track. As much as it pains me that I won't be able to have an office there, but I think at the end of the day to create the true, vibrant avenue that we really all want, I think you're on the right track. WESLEY: Thank you. SVEUM: Commissioner Schlossberg, did you say Naples? TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 60 of 68 SCHLOSSBERG: Correct. SVEUM: Well, just a little bit different population as well, I mean, right? SCHLOSSBERG: Very similar. SVEUM: I mean, 25,000 people? SCHLOSSBERG: I'd say demographically -- SVEUM: Okay. SCHLOSSBERG: -- (indiscernible). SVEUM: Yeah. I think that maybe there might be -- rather than seeing what types of businesses can be put in there, if the entertainment and dining and bar is the main draw or the main objective is to maybe look at percentages of square footage that is being used by those. And maybe there's a sliding scale over a period of time. Because I agree. I think there's a potential of vacancy that may be hard to fill up, right? So I understand. It's a hard. It's tough to balance. Did you say you presented it to TAMA? WESLEY: Yes. SVEUM: And the thoughts were positive about this? WESLEY: Yes. Excuse me. Yes, it was we had -- I'm trying to remember now. It's been a month or so ago. We had, I don't know, six or eight people in the meetings. MEYERS: Six or eight. WESLEY: Yeah, so it wasn't an extensive group, but it was a representative group, and they were supportive. SVEUM: They're not all property owners, though, are they? WESLEY: Correct. SVEUM: There are a lot of tenants that are there. WESLEY: Correct. SVEUM: It might be good to get some feedback from property owners -- WESLEY: Right. SVEUM: -- as well. WESLEY: Right. And so we have, again, through Plat 208 supplied them with that so they can distribute it out to their membership and otherwise for the area north of TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 61 of 68 Palisades, mailed directly to the property owners that we could identify there. And again, received really no particular feedback at this point. SVEUM: Thanks, John GRAY: Commissioner Corrigan? CORRIGAN: Thank you, Chair. This may have been a question that was asked before in a different way by Commissioner Corey, but looking at the streetscape, I see the sidewalk being expanded. And I thought you said, John, that the street was then narrowed from two lanes to one lane. WESLEY: Chairperson, Commissioner, so right now it's technically a one-lane street. It's just a very, very wide one lane. It feels like two lanes and that causes some confusion. Yeah, it causes confusion because people do pass others. CORRIGAN: Yeah, it feels like two lanes. WESLEY: And so this will -- CORRIGAN: But to follow up on that, does it add any parking or take away parking? WESLEY: I don't remember now, Commissioner, how the parking numbers turned out. It's certainly very similar. If it's not exactly the same, it's plus or minus. Very close. CORRIGAN: Okay. My concern is that parking places are at a minimum right now downtown, and I don't want to see anything taken away. If anything, added. WESLEY: Right. CORRIGAN: Because if there's no place to park, you're not going to spend a lot of time downtown. WESLEY: Right. GRAY: Okay. All right. I've got a couple. He was telling jokes. It's not my fault. So a macro thought here first. Four commissioners have talked about use restriction, not restriction, you know, are we doing too much? We're one small piece of this. Economic development is a macro, heavy hitter in this scheme, and we haven't had that here as long as I've been a homeowner in Fountain Hills. I'm assuming there's a town-level strategy that's going to champion that side of it, which is going to help fulfill the zoning vision that underlies this whole thing, right? TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 62 of 68 WESLEY: Yes. GRAY: Okay. So then just cherry-picking from within, on the uses by right, I almost think, you know, on the first district, on the -- what do we call it? The Avenue District? WESLEY: Yes. GRAY: I think that we've done enough of it. We committed to Park Place. We just rezoned for Mr. Ejim and his investors across the street. I think we ought to consider -- and I mean, of course, this is just exploratory, but we ought to consider allowing residential above by right in that Avenue District, I think is one. WESLEY: Chair, which we do, currently. GRAY: Oh, we do? Okay. I thought it was carved out there. WESLEY: No, we currently do, and we will continue to. The question is at what density. GRAY: Okay. So I think the density should be significantly higher. WESLEY: Okay. GRAY: You know, if ever there was a place for density in residential, it's in that Avenue District. WESLEY: Okay. GRAY: Right? WESLEY: So -- GRAY: And I don't know why we would do anything that's not commensurate with -- what is it? Are we 35 across the street? MEYERS: 45. GRAY: 45. Maybe it doesn't need to be 45, but it can be at least our version of R-5. What was I going to say? So going back to the Economic Development interface here, I'm just curious, as, you know -- hopefully we get maybe a joint session with that group. And I don't know what the board that Mr. Meyers sits on, but maybe we can get a joint working session with them and zoning potentially. But I'm curious, in a conversation like that, how close are we to density and catchment that would support, you know, various tiers of commercial and FNB coming in because we -- you know, we throw these darts, but we never really have a conversation about TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 63 of 68 what's it take to -- you know, to support those and to be able to allow Economic Development to go out and grab, grab those folks and start to have those conversations, put the fliers in the airplane seat pockets, so to speak. You talked about -- I'm trying to read my own typed notes. That's really bad. You talked about setback building line. I think that what I also would envision in concert with that is a prescribed landscape plan for continuity, especially along the avenue. So you don't get -- you know, you don't go through multiple reviews or versions as different parcels are developed that it's, here's the prescription and the avenue, you know, is structured from end to end. And then I just want to ask the question. So Clayton obviously loves the idea of sidewalk outside of Sofritas. But didn't we just put an ordinance through, I must say, a year and a half ago that allowed businesses to -- I don't think it was even through a permit. They could just by right extend their seating areas onto the sidewalk. So we extend this sidewalk then does that not just -- does that not just, you know, elastic, you know, balloon out to take over that whole footprint again? WESLEY: Chairman, I'm trying to remember exactly what that change was. The main thing I remember, and I think Farhad worked on it, maybe he'll remember a little bit better than I can. We had -- GRAY: I think we said you had the four foot clear -- WESLEY: Right. GRAY: -- but you could -- you know, you could let your seating encroach onto the public walk. WESLEY: Right. So we had a little difference between what was allowed in the TCDD District, which is what we have here on this side of the avenue with Park Place versus the Entertainment District on the other side. And so we made some amendments to the Entertainment District to make those more similar in terms of what those outdoor uses could be. But you still have to get a encroachment permit for any use out into the right of way. And so that is something else too, that we may try to shorten up with this once this -- if and when the street does get widened. TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 64 of 68 GRAY: Okay. WESLEY: But yes, we did do something along that line. GRAY: Okay. WESLEY: But it's not to the extent of this. GRAY: And then just one last one, and I know it's very, very early here, but I think, you know, as we talk about making better use of our ultra-wide avenue there, probably you know, looking at bike lane dedication and so on, maybe not a street bike lane, but a, you know -- but a concrete pathway while we're doing those improvements in that scheme. So but buy in large, I think this is a great idea. WESLEY: Thank you. GRAY: All right. WESLEY: Appreciate the feedback. And we'll be back with the public hearing in a month or two. GRAY: Sounds good. Paula, we've got one speaker card on the agenda item, not a public hearing, but a speaker card. WOODWARD: Yes, Chair. Larry Myers. GRAY: He's already exhausted his attempts tonight, Paula. MEYERS: No, I haven't. Actually, my idea, you already spoke it. I think when I go on the 26th, I will recommend that somebody from this Planning and Zoning Commission be added to the committee because I think it's a really good idea. And tonight it's like you've outdone yourself with regard to thinking. When Scott said, I really wanted to have an office on the ground floor of the Avenue, but I see your point. Planning, you can't plan with fear. So my word to Mr. Kovacevic is, yeah, I get it. You don't want to be worried about, oh, my God, can we fill the spaces up? Think about the Avenue and then think about -- forget all the realtors because they're useless at night, taking up space that could be -- I could be entertained in. GRAY: No, that was dangerous about a year ago up here. We were half realtors at one point. TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 65 of 68 MEYERS: Yes. So let's think about something, I mean, even worse than the realtors would be Fearless Kitty. But let's think about something for all the farmers and butchers who sit on this commission. Sometimes you have to thin the herd to get a healthier herd, and you can't be afraid of it. Otherwise, you're frozen in time. And so I like this idea. Proceed with caution. Do it overtime, and you'll be just dandy. Thanks. And I will recommend one of y'all get on that. GRAY: You know, we'll talk about that in the next agenda item. But I think what we look at is maybe a brief from that commission. I mean, certainly anybody could sit there but a brief from that commission at the hearing, if -- you know, if someone's willing -- MEYERS: I will -- GRAY: -- to volunteer for that. MEYERS: -- bring it up. Thanks. GRAY: All right. Commission, any other thoughts? We've got a long road on that one it sounds like. So John, what does that timeline look like? WESLEY: So again, the hope is meet with the Plat 208 committee again, I think it's in the February meeting. Depending upon what feedback we get at that point, make any adjustments and advertise for March P&Z Commission meeting and then on to council from there. If we get there and we get a lot of rocks and bricks and things thrown at us and realize we need to step back, then it may be a little bit longer. But given the fact that we haven't gotten anything significant at this point, I think it'll go fairly well. GRAY: Okay. Commissioners, last chance. We're moving on. Moving on. All right. Number 11, commission discussion a request for research to staff. John, just pick up with some of -- some of my comments from the agenda items 8 and 9. I think there's some takeaways there that we should probably consider. WESLEY: Yes. Chairman, I will mention that back before we came forward with the seven-unit departments, that the Economic Development director and I did meet with some representatives of Plat 106, suggesting to them basically the same thing. We need a kind of a, I'll use the term, comprehensive plan for what's going to happen here. This piecemealing isn't going to be the best approach. And we weren't quite able to get TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 66 of 68 there at that time. Maybe this will help motivate it. GRAY: And I guess my main takeaway tonight is we really should consider factoring open space and density in these conversions, and not just go with the prevailing assumption that a conversion is what the voting populace wants, right? WESLEY: Right. Yes. Something that's a little bit lacking in our code even in the multifamily districts. There is really a percentage of open space that's required. And so that might be really the first step is what that is. And then in the commercial districts saying if you're going to do the SUP here's the residential piece you need to mirror. GRAY: Okay. Commissioner Sveum? SVEUM: John, I just had the -- what was the per acre density for that project we approved on the Avenue? WESLEY: It was right at 45, 46, I believe. SVEUM: Yeah. Yeah. So it was like 12 units or something like that -- WESLEY: Right. Right. SVEUM: -- was it? WESLEY: Yeah, 12 units on 12,000 square feet. SVEUM: 45 or 46 per acre? WESLEY: Right. SVEUM: Okay. WESLEY: Yeah, I guess, you got to think about it. Yeah. Because there's one per 1,000 square feet, so it's 43.56. SVEUM: Yeah. WESLEY: Just as a quick side note on that, Chairman, and so the Commissioners are aware, that request was scheduled for council next Tuesday but has been withdrawn by the property owner. GRAY: Okay. Completely? WESLEY: Completely. Yes. She has sold the property. And so the new buyer will have to move forward with -- and we've had the preliminary discussion with him, and he's looking at something similar but different. So he'll have to start over again. TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 67 of 68 GRAY: And Mr. Ejim's proposal of last month on the Avenue -- WESLEY: Yes. GRAY: Okay. So the special use -- well, it never went to a vote. WESLEY: Right. GRAY: So it's application is -- WESLEY: Right. GRAY: -- (indiscernible)? WESLEY: And so maybe not to beat this too far, but this is an example. If it had gone to council and they would have approved it, sell the property, it hadn't been developed. He had to start over at square one anyway because it doesn't vest until it's built. GRAY: Good. We put that in some time ago. I think that's going to bear fruit over time here. So that was a good pick -- good pick up. Commissioner Corey? COREY: Yes. We're on 11 still? Commission discussion. GRAY: Yeah. COREY: I just wanted to take this moment to thank Chairman Gray for all of his service to the commission for -- GRAY: I'm not going anywhere. COREY: Well, as chair -- GRAY: Oh. COREY: -- as chair, let me add that part. I don't know, it's been a few years, I think, and I appreciate the way that you've led the group and made everyone feel valued and welcomed here. And yeah. GRAY: Appreciate it. COREY: Thank you. GRAY: All right. Number 12. Moving on. Quickly. WESLEY: I don't have my agenda up here. So is 12 back from me? GRAY: That's you. Yeah. WESLEY: Okay. So yes, Chairman Gray, it's been a pleasure having you as chair. Future Chairman Kovacevic, we're glad to have you on board as chair. I look forward to TOWN OF FOUNTAIN HILLS JANUARY 13, 2025 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 68 of 68 working with you. Knowing there's a learning curve there, we're going to -- looks like you have until March to get comfortable in your role. We're not aware right now of anything that we have for a February meeting. First time we've had a break in a while, I think and so Happy Valentine's Day. UNIDENTIFIED SPEAKER: Thank you. WESLEY: You know, on that subject, a little bit will change if something comes up, but right now, we know of nothing for a February meeting. GRAY: Okay. The dreaded number 13 report. WESLEY: That's it. GRAY: Okay. We're adjourned. Thanks, guys. Thank you. TOWN OF FOUNTAIN HILLS _______________________ Dan Kovacevic, Chairperson ATTEST AND PREPARED BY: __________________________ Paula Woodward, Executive Assistant CERTIFICATION I hereby certify that the foregoing minutes are a true and correct copy of the minutes of the Regular Meeting held by the Planning & Zoning Commission of Fountain Hills in the Town Hall Council Chambers on the 13th day of January 2025. I further certify that the meeting was duly called and that a quorum was present. DATED this 10th Day of March 2025. _____________________________ Paula Woodward, Executive Assistant ITEM 5. TOWN OF FOUNTAIN HILLS STAFF REPORT    Meeting Date: 03/10/2025 Meeting Type: Planning and Zoning Commission Agenda Type: Submitting Department: Development Services Prepared by: John Wesley, Development Services Director Staff Contact Information: John Wesley, Development Services Director Request to Planning and Zoning Commission (Agenda Language):  HOLD A PUBLIC HEARING, CONSIDERATION AND POSSIBLE ACTION: Ordinance 25-02 amending Zoning Ordinance by amending Chapter 25, Entertainment Overlay to Chapter 25,Downtown Overlay District, with associated permitted uses, parking, lot coverage, and setback provisions.  Staff Summary (Background) In October, the Town Council approved an updated Downtown Strategy.  The goal of the updated strategy is to provide the framework for continued improvements to the downtown area to make it a vibrant, active commercial district serving the needs of residents and visitors.   The Strategy was developed following a series of focus group meetings, community surveys, and an open house.  Public input was used throughout the process to determine the priorities that should be implemented to address the needs of the community.   Regarding land use, there was a strong desire among those who participated to see the Avenue as a more vibrant entertainment and shopping area, to see better use and maintenance of the vacant properties, allow for an increase in residents in the area, and to see an expansion of the uses available in the area north of Palisades to address employment needs.   Currently, most of the area bounded by the Avenue of the Fountains, La Montana, and Saguaro is zoned C-2, Intermediate Commercial (there is one small area of C-3 zoning).  The area from the Avenue to Palisades also has two overlay districts which modify the underlying zoning rules: the Entertainment Overlay, and the Planned Shopping Plaza Overlay.  Applying two similar zoning overlays in this one area creates some confusion in understanding and applying the zoning regulations.    To address the goals of the Strategy and to simplify the zoning rules, staff is proposing to combine the two existing overlays into one new overlay called the Downtown Overlay District.  A copy of the proposed ordinance and the current zoning requirements are attached for your review.  It is also anticipated that the new overlay will be extended to include the area north of Palisades.   The draft new ordinance divides the entire area into three districts to allow for slightly different regulations in each area (see attached map).  Following is a brief overview of the key provisions of the regulations in each area (see attached map).  Following is a brief overview of the key provisions of the new ordinance with the changes from the current regulations. The Innovation District  Continues to permit all the same uses currently listed. Except for residential uses, it does not allow uses which require a Special Use Permit as provided in Sections 12.03 and 12.05. Does allow by right a few of the uses that would have required a Special Use Permit and some that are not currently allowed to include:  Laboratories, (research, experimental and testing). Manufacture and assembly of nonhazardous and nontoxic materials. Light assembly and storage as an accessory use if all the following criteria are met: a. Any assembly, or storage areas associated with assembly activities, shall not occupy more than fifty (50%) percent of enclosed building space used for the business; and, b. There shall be no use of hazardous materials involved in the assembly operation(s).    The Business District  The allowed uses in this District are increased by clearly allowing all of the office uses allowed Section 12.02 A of the zoning ordinance. This District does not restrict ground floor uses. The allowed residential density will increase from 8 units per acre to 15 units per acre.  Ground floor residential and density higher than 15 units per acre can be considered through a Special Use Permit.   The Avenue District  The same uses are allowed, but the ordinance will limit the ground floor uses to active retail, restaurant, bar, entertainment, and similar uses.  Office uses will not be allowed on the ground floor.  Existing offices will be able to continue to operate and will be “grandfathered” in.  Only when a tenant space becomes vacant would the ordinance require compliance with the new use regulations. The allowed density by right for residential use will increase from 8 dwelling units per acre to 15 dwelling units per acre.  Increases above 15 units per acre will require Council approval of a Special Use Permit.  In this area, ground floor residential will not be allowed. Except for residential uses, the uses allowed through approval of a Special Use Permit as listed in Sec. 12.03 will no longer be an option in this District.  The uses that will no longer be available due to this change are:  Amusement park, arcade, drive-in theater, or outdoor theater, miniature golf course, and golf driving range. Cemetery, pet cemetery, and mausoleum. Community residences subject to the requirements in Section 5.13, nursing home, homes for the aged, convalescent home. Kennels, indoors or outdoors. Sports arenas. Section 25.03 of the ordinance makes provision for allowing temporary uses on vacant land in all the Districts.  The temporary uses must comply with guidelines established by the Town Engineer and the Zoning Administrator; a copy of the draft guidelines is attached.  The idea is to generate more activity by allowing temporary uses that are easy to implement and then easy to change when a permanent development can be constructed.  The temporary uses may also aid in cleaning up some of the vacant lots.   The other land use regulations in the current ordinance with regard to things such as lot coverage, setbacks, parking, signage, outdoor entertainment, etc. are not being changed. Comments Received Copies of the draft ordinance were shared with property owners in Plat 208 through distribution by the Plat 208 Board.  Copies were also mailed to the property owners in the area north of Palisades Boulevard.  Staff met with representatives of The Avenue Merchants' Association and with the Plat 208 Board at their annual meeting to explain the ordinance and receive feedback.  One individual has shared comments and questions.  Overall, responses received by staff to date have been positive and supportive of the text amendment.  Some comments and questions for the Commission to consider in reviewing and making a recommendation on the ordinance include:  Why not also apply this overlay to the area on the south side of the Avenue?  That area is zoned TCCD, not C-2 and does not currently have any overlay zoning designations.  The current and planned developments are subject to regulation through a development agreement.  Consideration for amending the zoning regulations in this area could be considered, but it would be done separately from this change to the existing overlay. The most significant change being proposed in the ordinance is the limitation of ground floor uses along the Avenue.  This has generated several comments and questions.  The language on allowed uses is somewhat general, what uses will be allowed?  Attached is a document which lists types of uses which would meet the code allowance for ground floor uses.  As a reminder, all existing businesses will be "grandfathered in" and can remain and do business.  It is only when a space becomes vacant that the new ordinance would apply and the new business would have to meet the ordinance requirements. Is it really necessary to extend the limitation on office uses the full length of the Avenue, along Verde River, and La Montana?  Should the limitation be just for buildings that front on the Avenue?  Staff is open to the idea of reducing the area that limits the ground floor uses.  The primary objective is for any building face that fronts along the Avenue. Some of the buildings will be very difficult to reuse for restaurant or retail commercial uses.  They were designed and built for other purposes and retrofitting will be expensive. Another item that has come up is the allowed density for residential uses.  Given market conditions, it is very difficult to build a commercial building without a residential component and the residential component needs to have a sufficient number of units for it to work.  The current ordinance is 8 dwelling units per acre, which is way too low to encourage development.  The draft ordinance suggests an increase to 15 units per acre.  The recent cases that have been processed are above 40 units per acre. Because of the small lot sizes, it is difficult to easily understand the number of units that can go on these lots when using a number of units per acre.  The majority of the lots in Plat 208 are 6000 sq. ft. in size.  Another way to approach it would be to use the R-4 zoning district as a guide.  The R-4 allows one unit per 2,000 sq. ft. of lot area.  If the overlay district would allow one dwelling unit by right for each 2,000 sq. ft of floor area per floor, the density by right would be similar to that of the R-4 zoning district.  A building with two residential floors at 5,000 sq. ft. per floor would be allowed four units by right. It has been pointed out that the Plat 208 CC&R's limit building height to 30'.  The C-2 district and the Planned Shopping Plaza Overlay have always allowed 40' of building height.  While the discrepancy can cause some confusion, at the Plat 208 Board meeting, there was support for allowing the 40' as long as the Town did not allow variances above that limit. Next Steps and Implementation As staff has continued to work on this text amendment, it has become clear that this new overlay district needs to be adopted as a new chapter in the Zoning Ordinance.  This modification will be made when it moves on to the Town Council.  The ordinance will be modified, designating this overlay district as Chapter 27. Once the P&Z Commission makes a recommendation to the Council a public hearing will be scheduled for Council consideration of this new zoning district.  The public will again have the opportunity to comment on the proposed ordinance. After the new zoning district is adopted, the next step will be to process a rezoning application to apply the new overlay district to the area it is designed to cover.  The process will be the same as any other rezoning to include public notice and hearings before the P&Z Commission and Town Council.  Staff anticipates processing this rezoning after the summer break.   Related Ordinance, Policy or Guiding Principle General Plan 2020 Community Economic Development Strategy 2023-2026 Downtown Strategy Zoning Ordinance Chapter 12, Commercial Zoning Districts Zoning Ordinance Chapter 25, Entertainment District Overlay Zoning Ordinance Chapter 26, Planned Shopping Plaza Overlay Risk Analysis N/A Recommendation(s) by Board(s) or Commission(s) N/A Staff Recommendation(s) Staff recommends approval subject to modification made by the Commission following the public hearing and discussion. SUGGESTED MOTION MOVE to recommend adoption of Ordinance 25-02. Attachments Draft Ordinance 25-02  Uses allowed on the Avenue  Temporary Use Guidelines  ORDINANCE NO. 25-02 AN ORDINANCE OF THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, AMENDING THE FOUNTAIN HILLS ZONING ORDINANCE CHAPTER 25, ENTERTAINMENT OVERLAY DISTRICT, TO CHAPTER 25, DOWNTOWN OVERLAY DISTRICT ENACTMENTS: NOW THEREFORE BE IT ORDAINED BY THE MAYOR AND TOWN COUNCIL OF FOUNTAIN HILLS, ARIZONA, as follows: SECTION 1. That Chapter 25, Entertaiment Overlay District, of the Fountain Hills Zoning Ordinance is amended as provided in Exhibit A attached hereto. PASSED AND ADOPTED by the Mayor and Council of the Fountain Hills, Maricopa County, Arizona, this 15th day of April, 2025. FOR THE TOWN OF FOUNTAIN HILLS: ATTESTED TO: ___________________________________ __________________________________ Gerry M. Friedel, Mayor Kandace French Contreras, Town Clerk REVIEWED BY: APPROVED AS TO FORM: ____________________________________ __________________________________ Rachael Goodwin, Town Manager Aaron D. Arnson, Town Attorney ORDINANCE 25-02 PAGE 2 Exhibit A Chapter 25 Entertainment DOWNTOWN Overlay District Section 25.01 Purpose and Intent The Entertainment DOWNTOWN Overlay District is an overlay zoning district covering portions of downtown within the Downtown Area Specific Plan area, as shown in Figure 25-1 below; any property located either partially or wholly within the district is allowed the uses in this Chapter. The overlay district is intended to allow for outdoor entertainment and uses to establish a more vibrant and active downtown area. FOR DEVELOPMENT OF THE DOWNTOWN AREA OF FOUNTAIN HILLS. THE INTENT OF THIS DISTRICT IS TO INTEGRATE COMMERCIAL ACTIVITY AND PROFESSIONAL OFFICES WITH RESIDENTIAL USES, VISITOR ATTRACTIONS AND PARKS AS APPROPRIATE FOR THE ESTABLISHED DISTRICTS WITHIN THE DOWNTOWN AREA. The EntertainmentDOWNTOWN Overlay District modifies the underlying zoning district regulations only to the extent specifically set forth in this Chapter. If not specifically modified in this Chapter, all of the regulations in effect in the underlying zoning districts will remain in full force and effect. ORDINANCE 25-02 PAGE 3 Section 25.02 Provisions Applicable to all PERMITTED Uses USES PERMITTED IN THE DOWNTOWN OVERLAY DISTRICT SHALL BE: A. THE AVENUE DISTRICT: 1. USES PERMITTED IN ZONING ORDINANCE SECTIONS 12.02 B. AND C. PROVIDED, HOWEVER, THAT GROUND FLOOR USES SHALL BE LIMITED RESTAURANTS AND CAFES; BARS AND TAVERNS; GIFT SHOPS, APPAREL STORES, VARIETY STORES AND SIMILAR RETAIL COMMERCIAL STORES; ENTERTAINMENT VENUES; OR SIMILAR USES. A2. Outdoor Entertainment is permitted at any establishment with dedicated outdoor seating areas for food and beverage service WITH ASSOCIATED OUTDOOR ENTERTAINMENT SUBJECT TO THE FOLLOWING REQUIREMENTS. BA. Any recorded or live music or sound that is electronically amplified and played outside an establishment shall only be permitted at establishments with dedicated outdoor seating areas for food and beverage service. CB. Establishments with dedicated outdoor seating areas for food and beverage service shall comply with the sound level requirements set forth in the Fountain Hills Town Code Section 11- 1-7, as amended. DC. Outdoor seating areas for food and beverage service shall comply with any applicable barrier requirements from the Arizona Department of Liquor Licenses and Control. ED. Outdoor seating areas for food and beverage service are allowed within the sidewalk areas, provided an encroachment permit is approved by the Town Council, in its sole discretion, for any seating areas located in a public right-of-way. Such outdoor seating areas must be properly maintained to ensure safe access and mobility for business patrons. 3. MUSEUMS 4. MULTIFAMILY RESIDENTIAL UP TO 15 UNITS PER ACRE ABOVE THE GROUND FLOOR. 5. USES PERMITTED BY SPECIAL USE PERMIT SHALL BE MULTIFAMILY RESIDENTIAL ABOVE THE GROUND FLOOR AT A DENSITY MORE THAN 15 UNITS PER ACRE. B. THE BUSINESS DISTRICT: 1. THOSE USES PERMITTED IN ZONING ORDINANCE SECTIONS 12.02 A. B. AND C. ORDINANCE 25-02 PAGE 4 2. OUTDOOR SEATING AREAS FOR FOOD AND BEVERAGE SERVICE WITH ASSOCIATED OUTDOOR ENTERTAINMENT SUBJECT TO THE FOLLOWING REQUIREMENTS: A. ANY RECORDED OR LIVE MUSIC OR SOUND THAT IS ELECTRONICALLY AMPLIFIED AND PLAYED OUTSIDE AN ESTABLISHMENT SHALL ONLY BE PERMITTED AT ESTABLISHMENTS WITH DEDICATED OUTDOOR SEATING AREAS FOR FOOD AND BEVERAGE SERVICE. B. ESTABLISHMENTS WITH DEDICATED OUTDOOR SEATING AREAS FOR FOOD AND BEVERAGE SERVICE SHALL COMPLY WITH THE SOUND LEVEL REQUIREMENTS SET FORTH IN THE FOUNTAIN HILLS TOWN CODE SECTION 11-1-7, AS AMENDED. C. OUTDOOR SEATING AREAS FOR FOOD AND BEVERAGE SERVICE SHALL COMPLY WITH ANY APPLICABLE BARRIER REQUIREMENTS FROM THE ARIZONA DEPARTMENT OF LIQUOR LICENSES AND CONTROL. 3. MULTIFAMILY RESIDENTIAL UP TO 15 UNITS PER ACRE ABOVE THE GROUND FLOOR. 4. USES PERMITTED BY SPECIAL USE PERMIT SHALL BE RESIDENTIAL USES ON THE GROUND FLOOR OR IN EXCESS OF 15 UNITS PER ACRE. C. THE INNOVATION DISTRICT: 1. THOSE USES PERMITTED IN ZONING ORDINANCE SECTIONS 12.02 A. B. AND C. 2. LABORATORIES, (RESEARCH, EXPERIMENTAL AND TESTING). 3. MANUFACTURE AND ASSEMBLY OF NONHAZARDOUS AND NONTOXIC MATERIALS. 4. LIGHT ASSEMBLY AND STORAGE AS AN ACCESSORY USE IF ALL OF THE FOLLOWING CRITERIA ARE MET: A. ANY ASSEMBLY OR STORAGE AREAS ASSOCIATED WITH ASSEMBLY ACTIVITIES SHALL NOT OCCUPY MORE THAN FIFTY (50%) PERCENT OF ENCLOSED BUILDING SPACE USED FOR THE BUSINESS; AND, B. THERE SHALL BE NO USE OF HAZARDOUS MATERIALS INVOLVED IN THE ASSEMBLY OPERATION(S). 5. USES PERMITTED BY SPECIAL USE PERMIT SHALL BE RESIDENTIAL USES. ILLUSTRATION 25.02. DOWNTOWN DISTRICT BOUNDARIES ORDINANCE 25-02 PAGE 5 Section 25.03 Permitted TEMPORARY Uses TEMPORARY USES ARE PERMITTED AS ALLOWED BY ZONING ORDINANCE SECTION 2.03. IN ADDITION, VACANT LOTS MAY ESTABLISH TEMPORARY USES AS APPROVED BY THE ZONING ADMINISTRATOR AND TOWN ENGINEER CONSISTENT WITH ADOPTED GUIDELINES. A. Any permitted use identified in the underlying zoning districts. ORDINANCE 25-02 PAGE 6 B. Single- or multifamily residential dwellings located on the second story or above of a building, so long as the residential dwelling and the underlying use/structures are in compliance with the following: 1. The technical codes set forth in Article 7-1 of the Town Code. 2. The height and coverage restrictions in the underlying zoning districts. 3. A maximum of eight dwelling units per acre. SECTION 25.04 GENERAL PROVISIONS EXCEPT AS MAY BE MODIFIED BY THIS OVERLAY DISTRICT, THE GENERAL PROVISIONS IN CHAPTER 5 SHALL APPLY. SECTION 25.05 SIGNS THE REGULATIONS IN CHAPTER 6, SIGNS, SHALL APPLY. SECTION 25.06 PARKING AND LOADING A. AREA SOUTH OF PALISADES BOULEVARD. 1. THE PARKING REGULATIONS IN CHAPTER 7, PARKING AND LOADING REQUIREMENTS, SHALL APPLY TO ALL LOTS OVER 10,800 SQUARE FEET IN AREA AS OF JANUARY 1, 1992. THE COUNCIL MAY APPROVE UP TO A FIFTY PERCENT (50%) REDUCTION IN REQUIRED ON-SITE PARKING THROUGH APPROVAL OF A SPECIAL USE PERMIT. 2. FOR LOTS 10,800 SQUARE FEET OR LESS AS OF JANUARY 1, 1992, THE COMMON PARKING LOT AREAS SHALL SATISFY ALL OF THE OFF-STREET PARKING REQUIREMENTS REGARDLESS OF THE LAND USE. ANY ELIMINATION OF PARKING SPACES IN THE COMMON PARKING AREA BY A LOT OWNER OR USER IS REQUIRED TO BE REPLACED BY ADDING THE LOST SPACES ON SITE OR ON ANOTHER LOT IN THE SAME BLOCK. B. AREA NORTH OF PALISADES BOULEVARD. THE REGULATIONS IN CHAPTER 7, PARKING AND LOADING REQUIREMENTS, SHALL APPLY. SECTION 25.07 OUTDOOR LIGHTING THE PROVISIONS OF CHAPTER 8, OUTDOOR LIGHTING CONTROL, SHALL APPLY. SECTION 25.08 PLAN REVIEW THE PROVISIONS OF SECTION 2.04, SITE PLAN REVIEW REGULATIONS, SHALL APPLY. ORDINANCE 25-02 PAGE 7 SECTION 25.09 DENSITY, AREA, BUILDING AND YARD REGULATIONS A. BUILDING HEIGHT: BUILDING HEIGHT ALLOWANCES SHALL BE THE SAME AS PERMITTED IN THE UNDERLYING ZONING DISTRICT. B. BUILDING SETBACKS: 1. AREA SOUTH OF PALISADES BOULEVARD. A. FRONT YARD: I. LOTS 10,800 SQUARE FEET AND UNDER DO NOT HAVE A FRONT YARD SETBACK REQUIREMENT BUT MUST MEET SIGHT TRIANGLE REQUIREMENTS WHEN A CORNER LOT (SEE CHAPTER 7, EXHIBIT 7.03 G). MUST NOT ENCROACH INTO PLATTED EASEMENTS. II. LOTS OVER 10,800 SQUARE FEET MUST PROVIDE A 10-FOOT FRONT YARD AND MUST MEET SIGHT TRIANGLE REQUIREMENTS WHEN A CORNER LOT. MUST NOT ENCROACH INTO PLATTED EASEMENTS. B. SIDE YARD. NONE REQUIRED, EXCEPT ON CORNER LOTS AS REQUIRED BY CHAPTER 12, SECTION 12.13. STREET SIDE YARDS MUST MEET SIGHT TRIANGLE REQUIREMENTS. MUST NOT ENCROACH INTO PLATTED EASEMENTS. C. REAR YARD. NONE REQUIRED; MUST NOT ENCROACH INTO PLATTED EASEMENTS. 2. AREA NORTH OF PALISADES BOULEVARD. AS REQUIRED BY THE UNDERLYING ZONING DISTRICT. C. MAXIMUM LOT COVERAGE: 1. SOUTH OF PALISADES BOULEVARD. LOTS MAY HAVE ONE HUNDRED PERCENT (100%) LOT COVERAGE EXCLUSIVE OF ANY EASEMENTS OR REQUIRED SETBACKS. 2. NORTH OF PALISADES BOULEVARD. AS REQUIRED BY THE UNDERLYING ZONING DISTRICT. Uses allowed on AOTF with new ordinance using North America Industry Classiflcation System (NAICS) codes 445230 Fruit and Vegetable Retailers This industry comprises establishments primarily engaged in retailing fresh fruits and vegetables. 445291 Baked Goods Retailers This U.S. industry comprises establishments primarily engaged in retailing baked goods not for immediate consumption and not made on the premises. 445292 Confectionery and Nut Retailers This U.S. industry comprises establishments primarily engaged in retailing candy and other confections, nuts, and popcorn not for immediate consumption and not made on the premises. 445298 All Other Specialty Food Retailers This U.S. industry comprises establishments primarily engaged in retailing miscellaneous specialty foods (except fruit and vegetables, meat, flsh, seafood, confections, nuts, popcorn, and baked goods) not for immediate consumption and not made on the premises. Illustrative Examples: Coffee and tea (i.e., packaged) retailers Soft drink (i.e., bottled) retailers Dairy product retailers Spice retailers Gourmet food retailers Water (i.e., bottled) retailers 449210 Electronics and Appliance Retailers This industry comprises establishments primarily engaged in one of the following: (1) retailing an array of new household-type appliances and consumer-type electronic products, such as televisions, computers, electronic tablets, and cameras; (2) specializing in retailing a single line of new consumer-type electronic products; (3) retailing these new products in combination with repair and support services; (4) retailing new prepackaged or downloadable computer software (without publishing); and/or (5) retailing prerecorded audio and video media, such as downloadable digital music and video flles (without production or publishing), CDs, and DVDs. Illustrative Examples: Appliance retailers, household-type Consumer-type electronics retailers (e.g., televisions, computers, cameras) Cellular telephone accessories retailers Stereo and sound system retailers (except automotive) 455110 Department Stores This industry comprises establishments generally known as department stores that have separate departments for general lines of new merchandise, such as apparel, jewelry, home furnishings, and toys, with no one merchandise line predominating. Department stores may sell perishable groceries, such as fresh fruits, vegetables, and dairy products, but such sales are insigniflcant. Department stores with flxed point-of-sale locations may have separate customer checkout areas in each department, central customer checkout areas, or both. 456120 Cosmetics, Beauty Supplies, and Perfume Retailers This industry comprises establishments primarily engaged in retailing cosmetics, perfumes, toiletries, and personal grooming products. 456130 Optical Goods Retailers This industry comprises establishments primarily engaged in one or more of the following: (1) retailing and fltting prescription eyeglasses and contact lenses; (2) retailing prescription eyeglasses in combination with the grinding of lenses to order on the premises; and (3) retailing nonprescription eyeglasses. 456191 Food (Health) Supplement Retailers This U.S. industry comprises establishments primarily engaged in retailing food supplement products, such as vitamins, nutrition supplements, and body enhancing supplements. 458110 Clothing and Clothing Accessories Retailers This industry comprises establishments primarily engaged in retailing general or specialized lines of new clothing and clothing accessories, such as hats and caps, costume jewelry, gloves, handbags, ties, wigs, toupees, and belts. These establishments may provide basic alterations, such as hemming, taking in or letting out seams, or lengthening or shortening sleeves. 458310 Jewelry Retailers This industry comprises establishments primarily engaged in retailing one or more of the following items: (1) new jewelry (except costume jewelry); (2) new sterling and plated silverware; and (3) new watches and clocks. Also included are establishments retailing these new products in combination with lapidary work and/or repair services. 458320 Luggage and Leather Goods Retailers This industry comprises establishments primarily engaged in retailing new luggage, briefcases, and trunks, or retailing these new products in combination with a general line of leather items (except leather apparel), such as belts, gloves, and handbags. 459110 Sporting Goods Retailers This industry comprises establishments primarily engaged in retailing new sporting goods, such as bicycles and bicycle parts; camping equipment; exercise and fltness equipment; athletic uniforms; specialty sports footwear; and other sporting goods, equipment, and accessories. Illustrative Examples: Fishing supply retailers Bicycle (except motorized) retailers Golf pro shops Bowling equipment and supply retailers Tack shops Sporting goods (e.g., scuba, skiing, ball sports) retailers Exercise equipment retailers Sporting gun and hunting equipment retailers Camping and hiking equipment retailers 459120 Hobby, Toy, and Game Retailers This industry comprises establishments primarily engaged in retailing new toys, games, and hobby and craft supplies (except needlecraft). 59130 Sewing, Needlework, and Piece Goods Retailers This industry comprises establishments primarily engaged in retailing new sewing supplies, fabrics, patterns, yarns, and other needlework accessories or retailing these products in combination with new sewing machines. Illustrative Examples: Fabric retailers Sewing supply retailers Needlecraft sewing supply retailers Upholstery materials retailers Quilting supply retailers 459140 Musical Instrument and Supplies Retailers This industry comprises establishments primarily engaged in retailing new musical instruments, sheet music, and related supplies; or retailing these new products in combination with musical instrument repair, rental, or music instruction. Illustrative Examples: Musical instrument retailers Sheet music retailers Piano retailers 459210 Book Retailers and News Dealers This industry comprises establishments primarily engaged in retailing new books, newspapers, magazines, and other periodicals (without publishing). 459310 Florists This industry comprises establishments generally known as fiorists primarily engaged in retailing cut fiowers, fioral arrangements, and potted plants grown elsewhere. These establishments may prepare the arrangements they sell. 459410 Office Supplies and Stationery Retailers This industry comprises establishments primarily engaged in one or more of the following: (1) retailing new office supplies, stationery, and school supplies; (2) retailing a combination of new office equipment, furniture, and supplies; and (3) retailing new office equipment, furniture, and supplies in combination with selling new computers. 459420 Gift, Novelty, and Souvenir Retailers This industry comprises establishments primarily engaged in retailing new gifts, novelty merchandise, souvenirs, greeting cards, seasonal and holiday decorations, and curios. Illustrative Examples: Greeting card retailers Seasonal and holiday decoration retailers Novelty retailers Souvenir retailers Gift retailers Fruit basket or fruit bouquet retailers 459920 Art Dealers This industry comprises establishments primarily engaged in retailing original and limited edition art works created by others. Included in this industry are establishments primarily engaged in displaying works of art for retail sale in art galleries. 522110 Commercial Banking This industry comprises establishments primarily engaged in accepting demand and other deposits and making commercial, industrial, and consumer loans. Commercial banks and branches of foreign banks are included in this industry. 522130 Credit Unions This industry comprises establishments primarily engaged in accepting members' share deposits in cooperatives that are organized to offer consumer loans to their members. 712110 Museums This industry comprises establishments primarily engaged in the preservation and exhibition of objects of historical, cultural, and/or educational value. Illustrative Examples: Art galleries (except retail) Planetariums Art museums Science or technology museums Halls of fame Wax museums 713120 Amusement Arcades This industry comprises establishments primarily engaged in operating amusement (except gambling, billiard, or pool) arcades and parlors. 713990 All Other Amusement and Recreation Industries This industry comprises establishments (except amusement parks and arcades; gambling industries; golf courses and country clubs; skiing facilities; marinas; fltness and recreational sports centers; and bowling centers) primarily engaged in providing recreational and amusement services. Illustrative Examples: Amusement ride or coin- or card-operated nongambling amusement device concession operators (i.e., supplying and servicing in others' facilities) Outdoor adventure operations (e.g., white water rafting) without accommodations Miniature golf courses Golf driving ranges Archery or shooting ranges Recreational day camps (except instructional) Billiard or pool parlors Recreational chess or bridge clubs Boating clubs (without marinas) Recreational or youth sports clubs (i.e., sports teams) not operating sports facilities Escape rooms Riding stables (except boarding horses) 722410 Drinking Places (Alcoholic Beverages) This industry comprises establishments known as bars, taverns, nightclubs, or drinking places primarily engaged in preparing and serving alcoholic beverages for immediate consumption. These establishments may also provide limited food services. 722511 Full-Service Restaurants This U.S. industry comprises establishments primarily engaged in providing food services to patrons who order and are served while seated (i.e., waiter/waitress service) and pay after eating. These establishments may provide this type of food service to patrons in combination with selling alcoholic beverages, providing carryout services, or presenting live nontheatrical entertainment. 722513 Limited-Service Restaurants This U.S. industry comprises establishments primarily engaged in providing food services (except snack and nonalcoholic beverage bars) where patrons generally order or select items and pay before eating. Food and drink may be consumed on premises, taken out, or delivered to the customer's location. Some establishments in this industry may provide these food services in combination with selling alcoholic beverages. Illustrative Examples: Delicatessen restaurants Pizza delivery shops Family restaurants, limited-service Takeout eating places Fast-food restaurants Fast casual restaurants Takeout sandwich shops Limited-service pizza parlors 722514 Cafeterias, Grill Buffets, and Buffets This U.S. industry comprises establishments, known as cafeterias, grill buffets, or buffets, primarily engaged in preparing and serving meals for immediate consumption using cafeteria-style or buffet serving equipment, such as steam tables, refrigerated areas, display grills, and self-service nonalcoholic beverage dispensing equipment. Patrons select from food and drink items on display in a continuous cafeteria line or from buffet stations. 722515 Snack and Nonalcoholic Beverage Bars This U.S. industry comprises establishments primarily engaged in (1) preparing and/or serving a specialty snack, such as ice cream, frozen yogurt, cookies, or popcorn, or (2) serving nonalcoholic beverages, such as coffee, juices, or sodas for consumption on or near the premises. These establishments may carry and sell a combination of snack, nonalcoholic beverage, and other related products (e.g., coffee beans, mugs, coffee makers) but generally promote and sell a unique snack or nonalcoholic beverage. Illustrative Examples: Beverage bars, nonalcoholic, flxed location Doughnut shops, on premise baking and carryout service Bagel shops, on premise baking and carryout service Pretzel shops, on premise baking and carryout service Cookie shops, on premise baking and carryout service Coffee shops, on premise brewing Ice cream parlors Juice bars, nonalcoholic, flxed location Temporary Use Guidelines within the Downtown Overlay District Purpose. The purpose of these guidelines is to provide direction on the establishment of temporary uses on vacant properties within the Downtown Overlay District as permitted by Section 25.03 of the Zoning Ordinance. Definition. For the purposes of implementing the Temporary Use Permit allowance in Section 25.03 of the Zoning Ordinance, temporary uses must meet the following criteria to be considered: 1. Either be an ongoing activity that can operate without permanent improvements to the property, or 2. Be a regular, periodic activity occurring over several months. The temporary uses permitted under this Section of the Zoning Ordinance are uses that would not be classifled as Special Events as deflned in Section 8-3 of the Town Code and this designation does not apply to one-time activities that would require a TUP as described in Section 2.02 of the Zoning Ordinance. Permitted Uses/Activities. Any use or activity allowed in the base zoning district, as amended by the Downtown Overlay, is allowed to be considered for a temporary use. Other similar uses may be considered and approved on an individual basis. Standards to be applied as appropriate for the given use or activity include: Parking. Parking is provided by the existing Plat 208 parking lot and the adjacent on-street parking spaces. If any vehicles are to be brought on site as part of the use or activity, a dustproof surface as approved by the Town Engineer will be required. Lighting. Any lighting installed or used must comply with any applicable building codes and receive any required permits and inspections and must comply with the Outdoor Lighting Control Ordinance. Noise. All activities must comply with the Town’s noise ordinance. Applicants should include a description of any noise-generating equipment or activities in the application. Surfacing. A dustproof surface must be provided for any use or activity. Areas for pedestrian activity must be cleared of rocks and other hazards. The surface should be ADA-compliant where applicable. Stormwater. Temporary uses must address stormwater management to prevent fiooding, erosion, or sedimentation that could impact neighboring properties or public infrastructure. The following requirements apply: • Stormwater Management Plan/Narrative: Applicants must submit a Stormwater Plan/Narrative for the temporary use explaining how stormwater runoff will be directed to appropriate locations and will not create hazards or nuisances. • Erosion Control Measures: If any grading or earthwork operations are proposed as part of the application, erosion control measures, such as silt fencing or wattles, must be installed to prevent sediment from leaving the site during storm events, until such time when the surface is stabilized. • No Impact Certiflcation: For sites with no signiflcant grading, the applicant may provide a certiflcation from a licensed professional stating that the proposed use will not impact existing stormwater patterns or increase runoff. Landscaping. Temporary uses must incorporate landscaping elements to maintain the aesthetic quality of the Downtown Overlay District while addressing environmental considerations. The following requirements apply: • Native Vegetation: Landscaping must prioritize the use of drought-tolerant, native species that require minimal maintenance. • Tree Preservation: Existing trees must be preserved and protected during temporary use activities. Any damage to existing landscaping must be repaired or mitigated by the applicant. Maintenance. The lot must be maintained free of trash and debris. Any structures or equipment placed on the property must also be kept in good repair. Failure to maintain the property in a clean and orderly condition may result in revocation of the Temporary Use Permit. Application. An application for a temporary use shall be submitted through the Town’s online application portal TOPPS. The application must include: • A site plan showing how the property will be used and any temporary improvements that will be made to the property to facilitate the proposed use or activity. • The dates/times and duration for the proposed use or activity. • A narrative describing the proposed use or activity. Enforcement and Compliance. The Town Engineer or their designee will inspect the site to ensure compliance with these guidelines. Failure to comply with approved plans and conditions may result in suspension or revocation of the Temporary Use Permit. ITEM 6. TOWN OF FOUNTAIN HILLS STAFF REPORT    Meeting Date: 03/10/2025 Meeting Type: Planning and Zoning Commission Agenda Type: Submitting Department: Development Services Prepared by: John Wesley, Development Services Director Staff Contact Information: John Wesley, Development Services Director Request to Planning and Zoning Commission (Agenda Language):  REVIEW, DISCUSS, AND PROVIDE DIRECTION: A) Overview of wireless communication ordinances, resolutions, and associated documents and Town Council direction for review and possible modification; and B) Review of Zoning Ordinance Chapter 17, Wireless Telecommunication Towers and Antenna compared to draft Campanelli ordinance. Staff Summary (Background) In 2024, the P&Z Commission reviewed and discussed Zoning Ordinance Chapter 17 to prepare recommendations for modifications to this chapter of the zoning ordinance.  The last discussion by the Commission was on July 8, 2024.  The Commission review resulted in discussion of numerous possible modifications, but a recommendation was not made prior to the ordinance going to the Town Council for their consideration.  Staff presented a revised ordinance to the Town Council at their regular meeting on September 4, 2024, at which time the Council adopted the revised ordinance. At the January 21, 2025, Town Council meeting, the Council voted to "Send back to Planning and Zoning the review of existing ordinances, resolutions, and documents associated with the provisions of wireless communication services to revise these regulations, to designate Councilman Watts to be the point of contact with Planning and Zoning and staff and have input with regard to finding one or more consultants to assist with the process of reviewing this topic, and to release the Campanelli consultant report for Planning and Zoning and for the public.” As directed by the Town Council, the following documents are attached to this report for review by the Commission:  Zoning Ordinance Chapter 17 Draft Campanelli Ordinance Town Code Article 16-2 Resolution 2018-03 Resolution 2018-18 Town Code Article 16-3 The plan for the review process is to first review and prepare amendments to Zoning Ordinance Chapter 17.  This will be followed by review of the ordinance and documents associated with small cell wireless facilities and then utility service antennas. To start the review and discussion, this report outlines the differences between the existing Chapter 17 and the draft ordinance by Mr. Campanelli that are not included in the current Town ordinance.  In a subsequent report for a future meeting, there will be a review of the approved ordinance against items that were previously discussed by the Commission that were not included in the ordinance provided to the Town Council. Review of Campanelli Draft Ordinance and Approved Ordinance Section 17 Personal Wireless Service Facilities  The first paragraph is not used in the codified ordinance but was stated in the heading of the adopting ordinance in regard to replacing the previously existing Chapter 17. The second paragraph was used for Section 17.01 B. 1. The remaining items in this section are generally covered in other portions of the adopted ordinance regarding the types of applications required for different types of situations.  The basic concept contained in the Campanelli ordinance is that towers will generally require a Special Use Permit and that maintenance of existing towers and equipment will not.  This is similar to the adopted ordinance. Section 17-1 Purpose and Legislative Intent  This is similar to adopted Section 17.01 and serves the same purpose of stating the intent of the ordinance and efforts to balance community and industry needs. The second paragraph was used for Section 17.01 B. 2. The other paragraphs go into greater detail but are also being used to establish the understanding that the regulations have been developed to balance community needs with those of the industry. Section 17-2 Definitions; Word Usage  There are some definitions which are similar to the ones used in the adopted ordinance, but none of the definitions contained in the Campanelli ordinance were used in the adopted ordinance. Section 17-3 Application Types  Section 17.04 of the adopted ordinance is the comparison to this section of the Campanelli ordinance.  While the categories suggested in this ordinance were not used, what was adopted is similar to the structure and intent of this draft ordinance. 1. Type I Applications  Colocations of Small Wireless Facilities  This ordinance allows SWF in the ROW by right as allowed by state statute.  This is the same as stated in Town Code Article 16-2 This ordinance requires a SUP for all SWF not in the ROW.  The adopted ordinance would most often require a Special Use Permit unless located at least 300' from residential zoning and single-residence homes and meeting the separation requirements from other towers. 2. Type II Applications Co-locations that do not meet the definition of a Small Wireless Facility  This allows co-location by right based on the criteria in (a) to (f).  In the adopted ordinance, whether a co-location is allowed administratively or requires a SUP depends on the approval of the existing tower.  If the existing tower did not require an SUP or the SUP approved for the tower included an allowance for co-location, then a SUP would not be required.  After that is determined, then the application is reviewed against the criteria listed in 17.04 A. 2. and 4. of the adopted ordinance to describe the types of applications that can be reviewed administratively.  These criteria are the same as in the Campanelli draft ordinance.  One change was to (a), instead of an increase of 15%, the adopted ordinance states an increase of 10% or 20 feet, whichever is greater.  This change was based on staff research on the established FCC criteria for administrative review. Instead of listing all the individual zoning districts (some were missed) that could allow co-location administratively, the adopted ordinance uses the overall category name in Section 17.04 A. 7. This ordinance had the applications going through the Town Engineer.  That is not the practice in Fountain Hills, so it was not used in the adopted ordinance. This ordinance referenced both special use permits and site plans going to Town Council if they did not meet the requirements for administrative review.  Because the special use permit process requires site plan review, the adopted ordinance does not state both. This ordinance did not seem to include the Planning and  Zoning Commission in the review process.  The adopted ordinance includes review by the Planning and Zoning Commission in the review process for the SUP. 3. Type III Applications New Small Wireless Facilities  This type applies only to new small wireless facilities not in the right-of-way and requires all of them to obtain special use permit and site plan approval by the Town Council.  In the adopted ordinance, these would be handled as any other new tower and antenna application and would require an SUP in most cases. It should be noted that these application types do not include any provisions for new small wireless facilities in the right-of-way. 4. Type IV Applications  New Towers and All Other Wireless Facilities  This requires Town Council approval of a special use permit and site plan for all other types of applications This is the same as Section 17.04 B. which requires public review of all applications that do not meet the criteria for administrative review. Section 17-4 Shot Clock Periods & 17-5 Shot Clock Tolls, Extensions & Reasonable Delay Periods  With adjustments to fit the format of our ordinance, these provisions are in Section 17.05 B 1. & 2. of the Town's adopted ordinance. This ordinance goes through the four application types and describes the Shot Clock and Tolling for each type.  The adopted ordinance uses a two application types, so the discussion is greatly simplified in the adopted ordinance. This ordinance has 60-, 90-, and 150-day review times.  Because of our organizational structure we just used the 90- and 150-day time frames.  It should be noted that the timeframes include issuance of a building permit, they do not end with Council action. Notices to applicants in the draft ordinance are in writing by mail.  The Town uses an electronic system and will notify the applicants by email using the online system. Section 17-6 Application Requirements  This ordinance includes a mailed Notice of Incompleteness.  The adopted ordinance does not go into these details.  For items going through the SUP process, the completeness review is stated in Section 2.02.  The Town uses an electronic application and response system rather than mailed communication to applicants. The adopted ordinance lists the required submittal items in Section 17.05 A.  Of the items listed in the Campanelli draft ordinance, the adopted ordinance requires the same information (but not necessarily to the same level of detail in the draft ordinance) except: 8, Environmental Assessment Form; 12, FCC License; 13, Effective Prohibition Claims (but the adopted ordinance, Sec. 17.05 C. 3. c. viii., does include some of the language from the draft ordinance regarding drive tests); 14, Estimate for Cost of Removal of Facility; 15, Property Owner Consent & Liability Acknowledgment (our adopted ordinance requires the consent but not the liability acknowledgement). Section 17-7 Design Standards  1. Small Wireless Facilities.  Small wireless facilities covered in Chapter 17 (those not in the ROW) are subject to the same design requirements as any other tower as provided in Section 17.03.  Small Wireless Facilities in the ROW are subject to the design standards adopted as part of that set of regulations. 2. Towers other than SWF. Much of this section was copied directly into the adopted ordinance in Section 17.03 A. 3. Section 17-8 Town Council Initial Review  This is not included in the adopted ordinance.  There is an overall timeframe for review and approval of the building permit of 150 days.  Adding in this step creates some challenges to meeting that time frame. Section 17-9 Hearings and Public Notices  Our Zoning Ordinance Section 2.02 for Special Use Permits sets forth all the notice and hearing requirements.  It is problematic to establish competing notice and hearing requirements in this section.  Therefore, this language was not used. Section 17-10  Factual Determination to be Rendered by the Town Council  None of this section was used in the adopted ordinance. This ordinance did not appear to include P&Z in the application review process. Section 17-11 Retention of Consultants  This was not used in the adopted ordinance.  Sections 17.06 B. 2. a. and b. allow the Town to hire a consultant at the applicant's expense.  There is nothing in the Town's rules or procedures that would prohibit hiring an outside consultant to assist with the review and monitoring of wireless communication facilities. Section 17-12 Setback Requirements  1. SWF.  In this ordinance, the setback proposed for non-residentially zoned property is 50', but it is not clear what the setback is from.  In residential districts, the setback is 300' from any residential dwelling or structure unless on an existing pole.  This is the same for SWF in the adopted ordinance. 2. Non-SWF. The only specific setback in this ordinance is that it be 110% of the height of the tower from the property line.  There is nothing about setback or separation of residential uses or distance between towers.  The adopted ordinance is 100% of the height and includes separation distances from different uses and other towers. Section 17-13 Height Restrictions  1. SWF cannot exceed 60' in nonresidential or 45' in residential districts.  In the adopted ordinance, a tower not in the ROW would require a SUP if taller than the maximum height in the zoning district where it is being sited, but there is no stated maximum height. 2. Non-SWF cannot exceed 150' in nonresidential or 100' in residential districts.  In the adopted ordinance, any tower that exceeds the maximum height of the zoning district where it is being located would require a SUP; no maximum height limit is provided. located would require a SUP; no maximum height limit is provided. Section 17-14 Use Restrictions and Variances  This section was not used.  Use variances are not allowed under Arizona law. This section of the draft Campanelli ordinance seems to mostly state that towers are a permitted use in all zoning districts and all but SWF in the ROW require review and approval of a SUP.  Section 17.03 A. 1. establishes the same concept that towers are allowed in all zoning districts.  The adopted ordinance also requires SUP's in most cases. Section 17-15 Environmental Impacts  This was not used in the adopted ordinance. Section 17-16 Historic Sites Impacts  This was not used in the adopted ordinance. Section 17-17  Force Majeure  This was not used in the adopted ordinance. Section 17-18 Eleventh Hour Submissions  This was not used in the adopted ordinance. Section 17-19  Prohibition Against Illegally Excessive Emissions and RF Radiation Testing  Portions of Subsections 1 and 2 were used as Section 17-06 B of the adopted ordinance. Section 17-20 Bond Requirements, Removal of Abandoned Facilities and Reclamation  Similar provisions are in Section 17-06 A. of the adopted ordinance. Section 17-21 ADA Accommodations  This section was reserved in the draft Campanelli ordinance. Section 17-22 General Provisions  This was not used in the adopted ordinance.   Related Ordinance, Policy or Guiding Principle Zoning Ordinance Chaper 17, Wireless Telecommunications Towers and Antennas Risk Analysis N/A Recommendation(s) by Board(s) or Commission(s) N/A Staff Recommendation(s) N/A SUGGESTED MOTION SUGGESTED MOTION N/A Attachments Zoning Ordinance Chapter 17  Draft Campanelli Ordinance  Town Code Article 16-2  Resolution 2018-03  Resolution 2018-18  Town Code Article 16-3  Chapter 17 Wireless Telecommunications Towers and Antennas Section 17.01 Purpose, Intent, and Applicability A. The purpose of this chapter is to establish general guidelines for the siting of wireless communications towers and antennas. The goals of this chapter 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 chapter: 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: Ch. 17 Wireless Telecommunications Towers and Antennas | Fountain Hills Zoning Ordinance Page 1 of 21 The Fountain Hills Zoning Ordinance is current through Ordinance 24-15, passed October 15, 2024. 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 chapter 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. Pre-existing Towers or Antennas. Legally established pre-existing towers and pre-existing antennas shall not be required to meet the requirements of this chapter, other than the requirements of Sections 17.06(B)(1) and 17.06(C). 3. AM Array. For purposes of implementing this chapter, an AM array, consisting of one (1) or more tower units and supporting ground system which functions as one (1) AM broadcasting antenna, shall be considered one (1) 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. (24-08, Amended, 09/04/2024, Deleted and replaced) Ch. 17 Wireless Telecommunications Towers and Antennas | Fountain Hills Zoning Ordinance Page 2 of 21 The Fountain Hills Zoning Ordinance is current through Ordinance 24-15, passed October 15, 2024. Section 17.02 Definitions As used in this chapter, 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 (1) 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 pre-existing antennas” means any tower or antenna for which a building permit has been properly issued prior to the effective date of the ordinance codified in this chapter, 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 (1) 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 Ch. 17 Wireless Telecommunications Towers and Antennas | Fountain Hills Zoning Ordinance Page 3 of 21 The Fountain Hills Zoning Ordinance is current through Ordinance 24-15, passed October 15, 2024. 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. (24-08, Amended, 09/04/2024, Deleted and replaced) 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. e. 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 Ch. 17 Wireless Telecommunications Towers and Antennas | Fountain Hills Zoning Ordinance Page 4 of 21 The Fountain Hills Zoning Ordinance is current through Ordinance 24-15, passed October 15, 2024. 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 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 (1) 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 2 square feet indicating the name of the facility owner(s) and a twenty-four (24) 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. f. 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. g. 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 chapter prior to the approval of the application. h. 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 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. i. Utility Services Antennas. Ch. 17 Wireless Telecommunications Towers and Antennas | Fountain Hills Zoning Ordinance Page 5 of 21 The Fountain Hills Zoning Ordinance is current through Ordinance 24-15, passed October 15, 2024. 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 6 feet in height and no more than 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. Ch. 17 Wireless Telecommunications Towers and Antennas | Fountain Hills Zoning Ordinance Page 6 of 21 The Fountain Hills Zoning Ordinance is current through Ordinance 24-15, passed October 15, 2024. 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 if the goals of this chapter would be better served thereby: a. Towers must be set back a distance equal to at least one hundred percent (100%) of the height of the tower from any adjoining lot line; provided, however, that 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 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. Separation measured from base of tower to the closest building wall. Ch. 17 Wireless Telecommunications Towers and Antennas | Fountain Hills Zoning Ordinance Page 7 of 21 The Fountain Hills Zoning Ordinance is current through Ordinance 24-15, passed October 15, 2024. 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 pre-existing 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 120 square feet of gross floor area or be more than 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 3.5 feet in height and 20 square feet of gross floor area and the cabinet/structure is located a minimum of 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 Ch. 17 Wireless Telecommunications Towers and Antennas | Fountain Hills Zoning Ordinance Page 8 of 21 The Fountain Hills Zoning Ordinance is current through Ordinance 24-15, passed October 15, 2024. 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 5 feet in height or 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 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 14 feet in height or 300 square feet in gross floor area. The structure or cabinet shall be screened by sight- obscuring landscaping with an ultimate height of 16 feet and a planted height of at least 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 subsections (C)(1) and (C)(2) of this section 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. Ch. 17 Wireless Telecommunications Towers and Antennas | Fountain Hills Zoning Ordinance Page 9 of 21 The Fountain Hills Zoning Ordinance is current through Ordinance 24-15, passed October 15, 2024. 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. (24-08, Amended, 09/04/2024, Deleted and replaced) 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 chapter 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 ten percent (10%) or 20 feet, whichever is greater; b. Cause the original approved number of antennas to be exceeded by more than fifty percent (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 chapter 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 ten percent (10%) or 20 feet, whichever is greater; b. Cause the original approved number of antennas to be exceeded by more than fifty percent (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. Ch. 17 Wireless Telecommunications Towers and Antennas | Fountain Hills Zoning Ordinance Page 10 of 21 The Fountain Hills Zoning Ordinance is current through Ordinance 24-15, passed October 15, 2024. 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 300 feet from a residential zoning boundary. b. On commercial, industrial, utility, or lodging zoned property and located at least 300 feet 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 300 feet 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 subsection (A) of this section for administrative review shall require review and approval as provided in subsection 17.05(C)(2). Any new tower not meeting the setback or separation requirements in Section 17.03(B). (24-08, Amended, 09/04/2024, Deleted and replaced) 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 (1) mile of the border thereof, including specific information about the location, height, and design of each tower. Each applicant shall also provide a one (1) 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 chapter or with Ch. 17 Wireless Telecommunications Towers and Antennas | Fountain Hills Zoning Ordinance Page 11 of 21 The Fountain Hills Zoning Ordinance is current through Ordinance 24-15, passed October 15, 2024. 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 subsection (C)(2) of this section. 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 subsection (C)(3) of this section. 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, 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 (4) 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. Ch. 17 Wireless Telecommunications Towers and Antennas | Fountain Hills Zoning Ordinance Page 12 of 21 The Fountain Hills Zoning Ordinance is current through Ordinance 24-15, passed October 15, 2024. 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(A)(3), 17.03(A)(4), 17.03(A)(5), 17.03(A)(7), 17.03(A)(8), 17.03(A)(9), 17.03(A)(10), 17.03(A)(11), 17.03(B), subsection (A)(3) of this section, Sections 17.06(A) and 17.06(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 hereinbelow 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 control. 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 Ch. 17 Wireless Telecommunications Towers and Antennas | Fountain Hills Zoning Ordinance Page 13 of 21 The Fountain Hills Zoning Ordinance is current through Ordinance 24-15, passed October 15, 2024. 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 and 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 subsection (B) of this section shall generally be presumed to be sufficient periods within which the Town shall render decisions upon applications. Notwithstanding the 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 subsection (B)(1) of this section, 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 Ch. 17 Wireless Telecommunications Towers and Antennas | Fountain Hills Zoning Ordinance Page 14 of 21 The Fountain Hills Zoning Ordinance is current through Ordinance 24-15, passed October 15, 2024. 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 subsection (B) of this section. 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 Ch. 17 Wireless Telecommunications Towers and Antennas | Fountain Hills Zoning Ordinance Page 15 of 21 The Fountain Hills Zoning Ordinance is current through Ordinance 24-15, passed October 15, 2024. 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 chapter. 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 chapter. 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 subsection (C)(3) of this section 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. 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 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. Ch. 17 Wireless Telecommunications Towers and Antennas | Fountain Hills Zoning Ordinance Page 16 of 21 The Fountain Hills Zoning Ordinance is current through Ordinance 24-15, passed October 15, 2024. b. In addition to the factors listed in subsection (C)(1) of this section 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 chapter. 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 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 (1) 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. Ch. 17 Wireless Telecommunications Towers and Antennas | Fountain Hills Zoning Ordinance Page 17 of 21 The Fountain Hills Zoning Ordinance is current through Ordinance 24-15, passed October 15, 2024. 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. (24-08, Amended, 09/04/2024, Deleted and replaced) 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 (2) 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. Ch. 17 Wireless Telecommunications Towers and Antennas | Fountain Hills Zoning Ordinance Page 18 of 21 The Fountain Hills Zoning Ordinance is current through Ordinance 24-15, passed October 15, 2024. 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 (1) test per facility per calendar year unless such testing reveals that one (1) 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 Noncompliance. If the Town at any time finds that there is good cause to believe that a wireless communication facility and/or one (1) 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 noncompliance as provided in Section 1-8-3 of the Town Code. Ch. 17 Wireless Telecommunications Towers and Antennas | Fountain Hills Zoning Ordinance Page 19 of 21 The Fountain Hills Zoning Ordinance is current through Ordinance 24-15, passed October 15, 2024. In the event that an owner or operator of one (1) or more wireless communication facility is found to violate subsection (B)(1) of this section three (3) 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. (24-08, Amended, 09/04/2024, Deleted and replaced) 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 pre-existing towers. New construction other than routine maintenance on a pre-existing 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 on site 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). (24-08, Amended, 09/04/2024, Deleted and replaced) Ch. 17 Wireless Telecommunications Towers and Antennas | Fountain Hills Zoning Ordinance Page 20 of 21 The Fountain Hills Zoning Ordinance is current through Ordinance 24-15, passed October 15, 2024. The Fountain Hills Zoning Ordinance is current through Ordinance 24-15, passed October 15, 2024. 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 General Code. Section 17.08 Reserved Section 17.09 Reserved Section 17.10 Reserved Section 17.11 Reserved Ch. 17 Wireless Telecommunications Towers and Antennas | Fountain Hills Zoning Ordinance Page 21 of 21 The Fountain Hills Zoning Ordinance is current through Ordinance 24-15, passed October 15, 2024. 1 INDEX §17 Personal Wireless Service Facilities §17-1 Purpose and Legislative Intent §17-2 Definitions; Word Usage §17-3 Application Types §17-4 Shot Clock Periods §17-5 Shot Clock Tolls, Extensions & Reasonable Delay Periods §17-6 Application Requirements §17-7 Design Standards §17-8 Town Council Initial Review §17-9 Hearings and Public Notices §17-10 Factual Determinations to be Rendered by the Town Council §17-11 Retention of Consultants §17-12 Setback Requirements §17-13 Height Restrictions §17-14 Use Restrictions and Variances §17-15 Environmental Impacts §17-16 Historic Site Impacts §17-17 Force Majeure §17-18 Eleventh Hour Submissions §17-19 Prohibition Against Illegally Excessive Emissions & RF Radiation Testing §17-20 Bond Requirements & Removal of Abandoned Facilities and Reclamation §17-21 ADA Accommodations §17-22 General Provisions 2 §17 Personal Wireless Service Facilities This Chapter 17 is intended to repeal and replace all previous versions of, and amendments to, Chapter 17 (“Wireless Telecommunications Towers and Antennas”) and Article 16-2 (“Small Wireless Facilities”) of the Zoning Ordinance of the Town of Fountain Hills (“Town Code”), all of which are hereby repealed and replaced in their entirety by this Chapter 17 et. seq., as of the effective date hereof. No Personal Wireless Service Facility (“PWSF”) shall be sited, constructed, reconstructed, installed, materially changed or altered, expanded, or used unless in conformity with this Chapter. For the installation, construction, erection, relocation, substantial expansion, or material alteration of any PWSF that is not classified as a Small Wireless Facility as hereinafter defined and discussed, the Town shall require a special use permit and site plan approval pursuant to the provisions of this Chapter, which shall be applied for in accord with the procedure set forth in Chapter 2, §2.02, unless otherwise provided herein below. The performance of maintenance, routine maintenance, in-kind replacement of components, and/or repairs (as defined herein) to an existing PWSF and/or existing personal wireless service equipment shall not require a special use permit. Each application for a special use permit under this Chapter and each individual PWSF for which an application for a special use permit is submitted shall be considered based on the individual characteristics of each respective installation at each proposed location as an individual case. In other words, each installation at each proposed location shall be reviewed and considered independently for its own characteristics and potential impacts, irrespective of whether the proposed facility is designed and intended to operate independently or whether the installation is designed and/or intended to operate jointly as part of a Distributed Antenna System. §17-1 Purpose and Legislative Intent The purpose of this section is to promote the health, safety, and general welfare of the residents of the Town of Fountain Hills and to preserve the scenic, historical, natural, and man-made character and appearance of the Town while simultaneously providing standards for the safe provision, monitoring, and removal of cell towers and other personal wireless service facilities consistent with applicable federal, state and local laws and regulations. Consistent with the balancing of interests which the United States Congress intended to embed with the federal Telecommunications Act of 1996 (hereinafter “the TCA”), Chapter 17 is intended to serve as a Smart Planning Provision, designed to achieve the four (4) simultaneous objectives of: (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, while (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 3 impacts upon the Town’s communities, residential areas, and individual homes, and (d) complying with all of the legal requirements which the 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. The Town seeks to minimize, to the greatest extent possible, any unnecessary adverse impacts caused by the siting, placement, physical size, and/or unnecessary proliferation of personal wireless service facilities, including, but not limited to, adverse aesthetic impacts, adverse impacts upon property values, adverse impacts upon the character of any surrounding properties and communities, adverse impacts upon historical and/or scenic properties and districts, and the exposure of persons and property to potential dangers such as structural failures, ice fall, debris fall, and fire. The Town also seeks to ensure that, in applying this section, the Town Council (“Council”) is vested with sufficient authority to require applicants to provide sufficient, accurate, and truthful probative evidence to enable the Council to render factual determinations consistent with both the provisions set forth herein below and the requirements of the TCA when rendering decisions upon such applications. To achieve the objectives stated herein, the Town seeks to employ the “General Authority” preserved to it under Section 47 U.S.C.A. §332(c)(7)(A) of the TCA, to the greatest extent which the United States Congress intended to preserve those powers to the Town, while simultaneously complying with each of the substantive and procedural requirements set forth within subsection 47 U.S.C.A. §332(c)(7)(B) of the TCA. §17-2 Definitions; Word Usage For the purposes of this article, and where not inconsistent with the context of a particular section, the defined terms, phrases, words, abbreviations, and their derivations shall have the meanings provided in this section. When not inconsistent with the context, words in the present tense include the future tense, words used in the plural number include words in the singular number, and words in the singular number include the plural number. The word “shall” is always mandatory and not merely directory. The definitions set forth herein shall supersede any definitions set forth within the Town Code, and the definitions set forth herein below shall control and apply to Chapter 17 and all subparagraphs herein. ACCESSORY FACILITY OR ACCESSORY STRUCTURE A facility or structure serving or being used in conjunction with a personal wireless services facility or complex and located on the same property or lot as the personal wireless services facility or complex or an immediately adjacent lot, including, but not limited to utility or transmission equipment storage sheds or cabinets. ACHP The Federal Advisory Council on Historic Preservation. 4 ADEQ The Arizona Department of Environmental Quality. ADEQUATE COVERAGE As determined by the Town Council, adequate coverage means that a specific wireless carrier’s personal wireless service coverage is such that the vast majority of its customers can successfully use the carrier’s personal wireless service the vast majority of the time, in the vast majority of the geographic locations within the Town, that the success rate of using their devices exceeds 97%, and that any geographic gaps in a carrier’s gaps in personal wireless services are not significant gaps, based upon such factors including, but not limited to, lack of significant physical size of the gap, whether the gap is located upon a lightly traveled or lightly occupied area, whether only a small number of customers are affected by the gap, and/or whether or not the carrier’s customers are affected for only limited periods of time. A wireless carrier’s coverage shall not be deemed inadequate simply because the frequency or frequencies at which its customers are using its services are not the most preferred frequency of the wireless carrier. ANTENNA An apparatus designed for emitting radiofrequency (RF) radiation to be operated or operating from a fixed location for personal wireless service. APPLICANT Any individual, corporation, limited liability company, general partnership, limited partnership, estate, trust, joint-stock company, association of two or more persons having a joint common interest, or any other entity submitting an application for a special use permit, site plan approval, variance, building permit, and/or any other related approval, for the installation, operation and/or maintaining of one or more personal wireless service facilities. APPLICATION Refers to all necessary and required documentation and evidence that an applicant must submit to receive a special use permit, building permit, or other approval for personal wireless service facilities from the Town. BOARD OF ADJUSTMENT The Board of Adjustment of the Town of Fountain Hills, established pursuant to §1.06 of the Zoning Ordinance with membership, powers, duties, and responsibilities as set forth in Article 2- 8 of the Town Code. COUNCIL OR TOWN COUNCIL The Town Council of the Town of Fountain Hills. CELL TOWER A free-standing, guy-wired, or otherwise supported pole, tower, or other structure designed to support or employed to support equipment and/or antennas used to provide personal wireless services, including, but not limited to, a pole, monopole, monopine, slim stick, lattice tower or other types of standing structures. 5 CEQ The Council on Environmental Quality, as established under NEPA. COLOCATION, CO-LOCATION, and/or CO-LOCATE To install, mount or add new or additional equipment to be used for the provision of personal wireless services to a pre-existing structure, facility, or complex which is already built and is currently being used to provide personal wireless services by a different provider of such services, wireless carrier or site developer. COMPLETE APPLICATION, COMPLETED APPLICATION An application that contains all the necessary and required information, records, evidence, reports, and/or data necessary to enable an informed decision to be made with respect to an application. Where any information is provided pursuant to the terms of this Chapter and the Community Development Director, Engineer or the Town’s expert or consultant or the Council determines, based upon information provided, that any additional, further, or clarifying information is needed as to one or more aspects, then the application will be deemed incomplete until that further or clarifying information is provided to the satisfaction of the Community Development Director, Engineer, Town Council or the Town’s expert or consultant of the Council. COMPLEX The entire site or facility, including all structures and equipment, located at the site. DBM (dBm) DBM stands for decibel milliwatts, which is a concrete measurement of the wireless signal strength of wireless networks. Signal strengths are recorded in negative numbers and can range from approximately -30 dBm to -110 dBm. The closer the number is to 0, the stronger the cell signal. DEPLOYMENT The placement, construction, or substantial modification of a personal wireless service facility. DISTRIBUTED ANTENNA SYSTEM, DAS A network of spatially separated antenna nodes connected to a common source via a transport medium that provides personal wireless service within a geographic area. EFFECTIVE PROHIBITION A finding by the Town Council that if an application seeking approval for a specific new Personal Wireless Service Facility at a specific location, and a specific height, were to be denied, such denial would either: (a) prevent an identified Wireless Carrier from providing personal wireless services within a specific geographic area, or areas, within the Town, or (b) would prevent a specific Wireless Carrier from constructing a sufficient number of such facilities necessary to enable it to provide Personal Wireless Services within the Town. 6 An effective prohibition shall not be found to exist if a Wireless Carrier has Adequate Coverage in a specified geographic area, such that its end-use customers can use their cellular telephones to connect to landlines using the Carrier’s Personal Wireless Services; however, the frequencies are not the “most preferred” frequencies of the Carrier. An effective prohibition shall also not be found to exist if an applicant fails to establish before the Town Council that any existing geographic gap or capacity deficiency in the specific Wireless Carrier’s coverage cannot be remedied through a less intrusive means than what is being proposed, including, but not limited to, potential installations on alternative less intrusive sites, a shorter tower or facility, the incorporation of a more stealthy design, etc. A finding of Effective Prohibition, or lack thereof, shall be based upon an applicant’s submission of sufficient probative, relevant, and sufficiently reliable evidence and the appropriate weight the Town Council deems appropriate to afford. ELEVENTH HOUR SUBMISSIONS An applicant’s submission of new and/or additional materials in support of an application less than five (5) business days before the expiration of an applicable shot clock or at an otherwise unreasonably short period of time before the expiration of the shot clock, making it impracticable for the Town Council to adequately review and consider such submissions due to their complexity, volume, or other factors, before the expiration of the shot clock. ENURE To operate or take effect. To serve to a person or party's use, benefit, or advantage. EPA The United States Environmental Protection Agency. FAA The Federal Aviation Administration or its duly designated and authorized successor agency. FACILITY A set of wireless transmitting and/or receiving equipment, including any associated electronics and electronics shelter or cabinet and generator. FCC The Federal Communications Commission. GENERAL POPULATION/UNCONTROLLED EXPOSURE LIMITS The applicable radiofrequency radiation exposure limits set forth within 47 CFR §1.1310(e)(1), Table 1 Section (ii), made applicable pursuant to 47 CFR §1.1310(e)(3). HEIGHT When referring to a tower, personal wireless service facility, or personal wireless service facility structure, the height shall mean the distance measured from the pre-existing grade level to the highest point on the tower, facility, or structure, including, but not limited to, any accessory, fitting, 7 fitment, extension, addition, add-on, antenna, whip antenna, lightning rod or other types of lightning-protection devices attached to the top of the structure. HISTORIC STRUCTURE Any structure that is either on the National Register of Historic Places or is eligible for inclusion in the national register, irrespective of whether or not an application for inclusion onto the national register has been filed or not filed. ILLEGALLY EXCESSIVE RF RADIATION or ILLEGALLY EXCESSIVE RADIATION RF radiation emissions at levels that exceed the legally permissible limits set forth within 47 CFR §1.1310(e)(1), Table 1 Sections (i) and (ii), as made applicable pursuant to 47 CFR §1.1310(e)(3). IN-KIND REPLACEMENT The replacement of a malfunctioning component(s) with a properly functioning component of substantially the same weight, dimensions, and outward appearance. MACROCELL A cellular base station that typically sends and receives radio signals from large towers and antennas. These include traditionally recognized cell towers, typically ranging from 50 to 199 feet in height. MAINTENANCE or ROUTINE MAINTENANCE Plumbing, electrical or mechanical work that may require a building permit but that does not constitute a modification to the personal wireless service facility. It is work necessary to assure that a wireless facility and/or telecommunications structure exists and operates reliably and in a safe manner, presents no threat to persons or property, and remains compliant with the provisions of this chapter and FCC requirements. NECESSARY or NECESSITY or NEED What is technologically required for the equipment to function as designed by the manufacturer and anything less will result in prohibiting the provision of service as intended and described in the narrative of the application. “Necessary” or “need” does not mean what may be desired, preferred, or the most cost-efficient approach and is not related to an applicant’s specific chosen design standards or unspecified “coverage objectives.” Any situation involving a choice between or among alternatives or options is not a need or a necessity. NEPA The National Environmental Policy Act, 42 U.S.C. §4321, et seq. NHPA The National Historic Preservation Act, 54 U.S.C. 300101 et seq, and 36 CFR Part 800, et seq. NODE, DAS NODE A fixed antenna and related equipment installation that operates as part of a system of spatially separated antennas, all of which are connected through a medium through which they work 8 collectively to provide personal wireless services, as opposed to other types of personal wireless facilities, such as macrocells, which operate independently. NOTICE ADDRESS An address, which is required to be provided by an applicant at the time it submits an application for a special use permit, at which the Town, Town Council, and/or Community Development Director or Engineer can mail notice, and the mailing of any notice to such address by first-class mail shall constitute sufficient notice to any and all applicants, co-applicants, and/or their attorneys, to satisfy any notice requirements under this Chapter, as well as any notice requirements of any other local, state and/or federal law. NOTICE OF INCOMPLETENESS, NOTICE OF INCOMPLETE APPLICATION A written notice, mailed by first class mail, to an applicant seeking approval for the installation of a PWSF, wherein the sender advises the applicant that its application is either incomplete, the wrong type of application, or is otherwise defective, and setting for the reason or reasons why the application is incomplete and/or defective. NOTICE OF EFFECTIVE PROHIBITION CONDITIONS A written notice, which is required to be provided to the Town at the time of the filing of any application by all applicants seeking any approval, of any type, for the siting, installation, and/or construction of a PWSF, wherein the respective applicant asserts, claims or intends to assert or claim, that a denial of their respective application, by any agent, employee, board or body of the Town, would constitute an “effective prohibition” within the meaning of the TCA, and concomitantly, that a denial of their respective application or request would violate Section 47 U.S.C. §332(c)(7)(B)(i)(II) of the TCA. OCCUPATIONAL/CONTROLLED EXPOSURE LIMITS The applicable radiofrequency radiation exposure limits set forth within 47 CFR §1.1310(e)(1), Table 1 Section (i), made applicable pursuant to 47 CFR §1.1310(e)(2). PERSONAL WIRELESS SERVICE/PERSONAL WIRELESS SERVICES Commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services, within the meaning of 47 U.S.C. §332(c)(7)(c)(i), and as defined therein. PERSONAL WIRELESS SERVICE FACILITY, PERSONAL WIRELESS SERVICES FACILITY or PWSF A facility or facilities used for the provision of personal wireless services, within the meaning of 47 U.S.C. §332(c)(7)(c)(ii). It means a specific location at which a structure that is designed or intended to be used to house or accommodate antennas or other transmitting or receiving equipment is located. This includes, without limitation, towers of all types and all kinds of support structures, including but not limited to buildings, church steeples, silos, water towers, signs, utility poles, or any other structure that is used or is proposed to be used as a telecommunications structure for the placement, installation and/or attachment of antennas or the functional equivalent of such. It expressly includes all related facilities and equipment such as cabling, radios and other electronic equipment, equipment shelters and enclosures, cabinets, and other structures enabling the complex to provide personal wireless services. 9 PROBATIVE EVIDENCE Evidence which tends to prove facts, and the more a piece of evidence or testimony proves a fact, the greater its probative value, as shall be determined by the Town Council, as the finder-of-fact in determining whether to grant or deny applications for special permits under this provision of the Town Code. REPAIRS The replacement or repair of any components of a wireless facility or complex where the replacement is substantially identical to the component or components being replaced, or for any matters that involve the normal repair and maintenance of a wireless facility or complex without the addition, removal, or change of any of the physical or visually discernible components or aspects of a wireless facility or complex that will impose new visible intrusions of the facility or complex as originally permitted. RF Radiofrequency. RF RADIATION Radiofrequency radiation. That being electromagnetic radiation, which is a combination of electric and magnetic fields that move through space as waves, and can include both Non-Ionizing radiation and Ionizing radiation. SECTION 106 REVIEW A review under Section 106 of the National Historic Preservation Act. SETBACK For purposes of special use permit applications, a setback shall mean the distance between (a) any portion of a personal wireless facility and/or complex, including but not limited to any and all accessory facilities and/or structures, and (b) the exterior line of any parcel of real property or part thereof which is owned by, or leased by, an applicant seeking a special use permit to construct or install a personal wireless facility upon such real property or portion thereof. In the event that an applicant leases only a portion of real property owned by a landlord, the setback shall be measured from the facility to the line of that portion of the real property that is actually leased by the applicant, as opposed to the exterior lot line of the non-leased portion of the property owned by the landlord. SHOT CLOCK The applicable period, which is presumed to be a reasonable period within which the Town is generally required to issue a final decision upon an application seeking special use permit approval for the installation or substantial modification of a personal wireless services facility or structure to comply with Section 47 U.S.C. §332(c)(7)(B)(ii) of the TCA. SHPO The Arizona State Historic Preservation Office 10 SITE DEVELOPER or SITE DEVELOPERS Individuals and/or entities engaged in the business of constructing wireless facilities and wireless facility infrastructure and leasing space and/or capacity upon, or use of, their facilities and/or infrastructure to wireless carriers. Unlike wireless carriers, site developers generally do not provide personal wireless services to end-use consumers. SMALL CELL A fixed cellular base station that sends and receives radio signals and is typically mounted upon poles or support structures at substantially lower elevations than macrocell facilities. SMALL WIRELESS FACILITY A personal wireless service facility that meets all of the following criteria (a) The facility does not extend the height of an existing structure to a total cumulative height of more than fifty (50) feet from ground level to the top of the structure, and any equipment affixed thereto; (b) Each antenna associated with the deployment is no more than three (3) cubic feet in volume; (c) All wireless equipment associated with the facility, including any pre-existing equipment and any proposed new equipment, cumulatively total no more than twenty-eight (28) cubic feet in volume; (d) The facility is not located on tribal land; and (e) The facility will not result in human exposure to radiofrequency radiation in excess of the applicable FCC safety standards set forth within Table 1 of 47 CFR §1.1310(E)(1). SPECIAL USE PERMIT The official document or permit granted by the Town Council pursuant to which an applicant is allowed to file for and obtain a building permit to construct and use a personal wireless services facility, personal wireless service equipment, and/or any associated structures and/or equipment which are used to house, or be a part of, any such facility or complex, or to be used to provide personal wireless services. STATE The State of Arizona. STEALTH or STEALTH TECHNOLOGY A design or treatment that minimizes adverse aesthetic and visual impacts on the land, property, buildings, and other facilities adjacent to, surrounding, and generally in the same area as the requested location of such personal wireless service facilities. This shall mean building the least visually and physically intrusive facility and complex under the facts and circumstances. STRUCTURE A pole, tower, base station, or other building, physical support of any form used for, or to be used for, the provision of personal wireless service. 11 SUBSTANTIAL EVIDENCE Substantial Evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It means less than a preponderance but more than a scintilla of evidence. TCA The Telecommunications Act of 1996, 47 U.S.C. §332(c) TOLLING or TOLLED The pausing of the running of the time period permitted under the applicable shot clock for the respective type of application for a personal wireless services facility. Where a shot clock is tolled because an application has been deemed incomplete and timely notice of incompleteness was mailed to the applicant, the submission of additional materials by the applicant to complete the application will end the tolling, thus causing the shot clock period to resume running, as opposed to causing the shot clock to begin running anew. TOWER, TELECOMMUNICATIONS TOWER Any structure designed primarily to support one or more antennas and/or equipment used or designed for receiving and/or transmitting a wireless signal. TOWN The Town of Fountain Hills. TOWN CODE The Zoning Code of the Town of Fountain Hills. UNDERTAKING Any application for a special use permit seeking Council approval for the installation of a personal wireless services facility licensed under the authority of the FCC shall constitute an undertaking within the meaning of NEPA, in accord with 42 CFR §137.289 and 36 CFR §800.16. WIRELESS CARRIERS or CARRIER Companies that provide Personal Wireless Services to end-use consumers. ZONING ORDINANCE The Zoning Ordinance of the Town of Fountain Hills, as codified in Chapter 1, §1.01 of the Town Code. §17-3 Application Types There shall be four (4) specific types of applications for special use permits under this section, which shall include Type I, Type II, Type III, and Type IV applications. It shall be the obligation of any applicant to explicitly and correctly identify which type of application they are filing. 12 1. Type I Applications Colocations of Small Wireless Facilities Type I applications shall be limited to applications wherein an applicant seeks to co-locate a new small wireless facility, as defined in this Chapter, by installing new personal wireless service equipment upon an already existing small personal wireless services facility structure. If the completed facility would still meet the physical limits and requirements to meet the definition of a small wireless facility after the installation of the new equipment, then the application to install such new equipment is a Type I application. Type I applications for co-location of a small wireless facility in a public right of way as set forth in A.R.S. §9-592(J) and A.R.S. §9-593(C) shall be a permitted use with a building permit. Type I applications for co-location of a small wireless facility in all other areas or zones shall require an applicant to obtain a special use permit from the Town Council. 2. Type II Applications Co-locations that do not meet the definition of a Small Wireless Facility. Type II applications shall be limited to applications wherein an applicant is seeking to co-locate new personal wireless service equipment by installing such new wireless equipment upon an already existing personal wireless services facility structure, tower, or complex which does not meet the definition of a small wireless facility or which will not meet the definition of a small wireless facility if and when the proposed new personal wireless service equipment is installed upon the existing facility and/or structure. Type II applications for co-location of personal wireless service facility equipment shall either be a permitted use with a building permit or a special use permit, as set forth below. The co-location of personal wireless service facility equipment on an approved PWSF tower or PWSF structure on property within C-O Commercial Office Zoning District; C-C Common- Commercial Zoning District; C-1 Neighborhood Commercial Professional District; C-2 Intermediate Commercial Zoning District; C-3 General Commercial Zoning District; IND-1 Planned Industrial Zoning District; IND-2 Light Industrial Zoning District; and UT Utility Zoning District is a permitted use subject to the issuance of a building permit, provided that the Town Engineer determines that the proposed co-location will not: (a) Increase the approved height of the supporting structure by more than 15%; (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 or additional 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. 13 If the Town Engineer cannot make the findings above, special use permit and site plan approvals will be required in accord with the provisions of the Zoning Ordinance, and the Town Engineer shall refer the application to the Town Council, where it will be subject to the terms and conditions specified in the requirements and standards in this Chapter as part of the special use permit and site plan review process. The co-location of personal wireless service facility equipment on an approved PWSF tower or PWSF structure on property within all other zoning districts shall require a special permit and site plan approvals as provided in this Chapter. 3. Type III Applications New Small Wireless Facilities Type III applications shall be limited to applications seeking to install and/or construct a new small wireless facility, as defined in Section §17-2 hereinabove, which is not collocated in a public right of way. Type III applications shall require applicants to obtain a special use permit and site plan approvals from the Town Council in all zoning districts. 4. Type IV Applications New Towers and All Other Wireless Facilities Type IV applications shall include applications for the installation of a new telecommunications tower, personal wireless service facility, complex, structure, or equipment that does not meet the criteria for Type I, Type II, or Type III applications. Type IV applications shall require applicants to obtain a special use permit and site plan approvals from the Town Council in all zoning districts. §17-4 Shot Clock Periods 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 Council shall render determinations upon special use permit applications for personal wireless service facilities. The Town Council 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 Council and/or Town’s controls, as addressed within subsections §17-15, §17-16, §17-17 and §17-18 herein below. 1. Type I Applications Colocations of Small Wireless Facilities Sixty (60) Days Unless extended by agreement, tolled, or subject to reasonable delays, the Town Council shall 14 issue a written decision upon a Type I application within sixty (60) days from the date when the Town receives a Type I application. Upon receipt of a Type I application, the Town Engineer shall review the application for completeness. If the Town Engineer determines the application is: (a) incomplete, (b) missing required application materials, (c) is the wrong type of application, or (d) is otherwise defective, then, within ten (10) days of the Town’s receipt of the application, the Town Engineer, or their designee, shall mail the applicant a Notice of Incompleteness by first class mail, to the Notice Address provided by the applicant. Within such Notice of Incompleteness, the Town Engineer shall advise the applicant, with reasonable clarity, of the defects within its application, including a description of such matters as what items are missing from the application and/or why the application is incomplete and/or defective. The mailing of a Notice of Incomplete Application by the Town Engineer shall toll the sixty (60) day shot clock, which shall not thereafter resume running unless and until the applicant tenders an additional submission to the Town Engineer to remedy the issues the Town Engineer identified in the Notice of Incomplete Application, which they had mailed to the applicant. 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 Town Engineer determines that the application is still incomplete and/or defective, then the Town Engineer shall, once again, mail a Notice of Incompleteness within ten (10) days 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. 2. Type II Applications Colocations on existing Towers, Structures, or other Facilities which do not meet the definition of a Small Wireless Facility. Ninety (90) Days Unless extended by agreement, tolled, or subject to reasonable delays, the Town Council shall issue a written decision upon a Type II application within ninety (90) days from the date when the Town receives a Type II application. Upon receipt of a Type II application, the Town Engineer shall review the application for completeness. If the Town Engineer determines the application is: (a) incomplete, (b) missing required application materials, (c) is the wrong type of application, or (d) is otherwise defective, then, within thirty (30) days of the Town’s receipt of the application, the Town Engineer, or their designee, shall mail the applicant a Notice of Incompleteness by first class mail to the Notice Address provided by the applicant. Within such Notice of Incompleteness, the Town Engineer shall advise the applicant, with reasonable clarity of the defects within its application, including a description of such matters as what items are missing from the application and/or why the application is incomplete and/or 15 defective. The mailing of a Notice of Incomplete Application by the Town Engineer shall toll the ninety (90) day shot clock, which shall not thereafter resume running unless and until the applicant tenders an additional submission to the Town Engineer to remedy the issues the Town Engineer identified in the Notice of Incomplete Application, which they had mailed to the applicant. 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 Town Engineer determines that the application is still incomplete and/or defective, then the Town Engineer shall, once again, mail a Notice of Incompleteness within ten (10) days of the applicant having filed its supplemental or corrected materials to the Town. The shot clock shall be tolled again, and the same procedure provided hereinabove shall be repeated. 3. Type III Applications New Small Wireless Facilities Sixty (60) Days Unless extended by agreement, tolled, or subject to reasonable delays, the Town Council shall issue a written decision upon a Type III application within sixty (60) days from the date when the Town receives a Type III application. Upon receipt of a Type III application, the Town Engineer shall review the application for completeness. If the Town Engineer determines the application is: (a) incomplete, (b) missing required application materials, (c) is the wrong type of application, or (d) is otherwise defective, then, within ten (10) days of the Town’s receipt of the application, the Town Engineer, or their designee, shall mail the applicant a Notice of Incompleteness by first class mail to the Notice Address that the applicant has provided. Within such Notice of Incompleteness, the Town Engineer shall advise the applicant, with reasonable clarity, the defects within its application, including a description of such matters as what items are missing from the application, and/or why the application is incomplete and/or defective. The mailing of a Notice of Incomplete Application by the Town Engineer shall toll the sixty (60) day shot clock, which shall not thereafter run unless and until the applicant tenders an additional submission to the Town Engineer to remedy the issues the Town Engineer identified in the Notice of Incomplete Application, which they had mailed to the applicant. The submission of any responsive materials by the applicant shall automatically cause the shot clock period to start running anew, consistent the 47 CFR §1.6003(d). 16 If upon receipt of any additional materials from the applicant, the Town Engineer determines that the application is still incomplete and/or defective, then the Town Engineer shall, once again, mail a Notice of Incompleteness within ten (10) days 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. 4. Type IV Applications New Towers and All Other Wireless Facilities One Hundred Fifty (150) Days Unless extended by agreement, tolled, or subject to reasonable delays, the Town Council shall issue a written decision upon a Type IV application within one hundred fifty (150) days from the date when the Town receives a Type IV application. Upon receipt of a Type IV application, the Town Engineer shall review the application for completeness. If the Town Engineer determines the application is: (a) incomplete, (b) missing required application materials, (c) is the wrong type of application, or (d) is otherwise defective, then, within thirty (30) days of the Town’s receipt of the application, the Town Engineer, or their designee, shall mail the applicant a Notice of Incompleteness by first class mail to the Notice Address provided by the applicant. Within such Notice of Incompleteness, the Town Engineer shall advise the applicant, with reasonable clarity, the defects within its application, including a description of such matters as what items are missing from the application, and/or why the application is incomplete and/or defective. The mailing of a Notice of Incomplete Application by the Town Engineer shall toll the one hundred fifty (150) day shot clock, which shall not thereafter resume running unless and until the applicant tenders an additional submission to the Town Engineer to remedy the issues the Town Engineer identified in the Notice of Incomplete Application, which they had mailed to the applicant. 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 Town Engineer determines that the application is still incomplete and/or defective, then the Town Engineer shall, once again, mail a Notice of Incompleteness within ten (10) days 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 hereinabove shall be repeated. §17-5 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 §17-4 hereinabove shall generally be presumed to be sufficient periods within which the Town Council shall render decisions upon special permit applications. 17 Notwithstanding same, the applicable shot clock periods may be tolled, extended by mutual agreement between any applicant and/or its representative and the Town Council, and the Town Council 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. 1. Tolling of the Applicable Shot Clock Due to Incompleteness and/or Applicant Error As provided for within Section §17-4 hereinabove, in the event that the Town Engineer deems an application incomplete, the Town Engineer 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 Town Engineer mails 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 Council 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 Town Engineer 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. 2. Shot Clock Extension by Mutual Agreement The Town Council, in its sole discretion, shall be free to extend any applicable shot clock period by mutual agreement with any respective applicant. This discretion on the part of the Council shall include the Council’s authority to request, at any time, and for any period of time the Council may deem reasonable or appropriate under the circumstances, consent from a respective applicant to extend the applicable shot clock period to enable the Council, 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 Council, 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 Council, the applicant, by its principal, agent, attorney, site acquisition agent, or other authorized representative, can consent to any extension of any 18 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 Council 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 Council within the hearing process. 3. 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 a special permit application for a personal wireless facility cannot reasonably be completed within the application shot clock periods delineated within Section §17-4 hereinabove. If, despite the exercise of due diligence by the Town and the Town Council, the determination regarding a specific application cannot reasonably be completed within the applicable shot clock period, the Council 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. Reasonable delays that may constitute proper grounds for extending the presumed sufficient periods for rendering determinations under the applicable shot clock periods may include but are not necessarily limited to, those set forth within Sections §17-15, §17-16, §17-17, and §17-18 herein below. §17-6 Application Requirements Applications for special use permits under this section shall be made to the Town Engineer, who shall initially determine whether or not the application is complete and/or free of defects upon receipt of the same. If the Town Engineer determines that the application is defective or incomplete, they shall promptly mail a Notice of Incompleteness to the applicant, in accord with §17-4 to toll the applicable shot clock, to ensure that the Town and the Town Council are afforded sufficient time to review and determine each respective application. Each application shall include the following materials, the absence of any one of which listed hereinbelow shall render the respective application incomplete: 1. Special Use Permit and Site Plan Applications Completed applications for a special use permit and site plan that shall identify all applicants, co-applicants, site developer(s), and wireless carrier(s) on whose behalf the application is being submitted, as well as the property owner of the proposed site. 19 2. Filing Fees The appropriate filing fees then being charged by the Town for applications for special use permit applications, site plan applications, and other related applications. 3. A “Notice Address” A “Notice Address,” that being a specific address to which the Town, Town Council, and/or Town Engineer may mail any type of notice, and that the mailing of same to such address shall constitute sufficient notice to any applicant, co-applicant, and/or their attorney, to comply with any requirement under this section as well as any local, state and/or federal law 4. Proof of Authorization for Site Occupancy Where an applicant is not the owner of the real property upon which it seeks to install its equipment or facility, it shall submit proof of authorization to occupy the site at issue. If the applicant is leasing all or a portion of real property upon which it intends to install its new facility or equipment, then the applicant shall provide a written copy of its lease with the owner of such property. The applicant may redact any financial terms contained within the lease, but it shall not redact any portion of the lease which details the amount of area leased nor the specific portion of the real property to which the applicant has obtained the right to occupy, access, or preclude others from entering. Where an applicant seeks to Co-Locate new equipment into an existing facility, it shall provide a copy of its written co-location agreement with the owner of such pre-existing facility, from which it may redact any financial terms. 5. A Drawn-To-Scale Depiction The applicant shall submit drawn-to-scale depictions of its proposed wireless support structure and all associated equipment to be mounted thereon or to be installed as part of such facility, which shall clearly and concisely depict all equipment and the measurements of same to enable the Town Engineer to ascertain whether the proposed facility would qualify as a small wireless facility as defined under this Chapter. If the applicant claims that its proposed installation qualifies as a small wireless facility within this Chapter, the drawn-to-scale depiction shall include complete calculations for all of the antennas and equipment of which the facility will be comprised, depicting that, when completed, the installation and equipment will meet the physical size limitations which enable the facility to qualify as a small wireless facility. 6. Site plan The applicant shall submit a site plan and site plan application in accordance with §2.04 of the Zoning Ordinance. The site plan shall show all existing and proposed structures 20 and improvements, including antennas, roads, buildings, guy wires and anchors, parking, and landscaping. It shall include grading plans for new facilities and roads. Any methods used to conceal the modification of the existing facility shall be indicated on the site plan. 7. Engineer’s Report To the extent that an application proposes the co-location of new equipment onto an existing tower or facility, the applicant shall provide an engineer's report certifying that the proposed shared use will not diminish the structural integrity and safety of the existing structure and explaining what modifications, if any, will be required in order to certify to the above. 8. Environmental Assessment Form A completed environmental assessment form (EAF) and a completed visual EAF addendum if required by ADEQ. 9. Visual Impact Analysis A completed visual impact analysis, which, at a minimum, shall include the following: (a) Small Wireless Facilities For applications seeking approval for the installation of a small wireless facility, the applicant shall provide a visual impact analysis which shall include photographic images taken from the perspectives of the properties situated in closest proximity to the location being proposed for the siting of the facility, as well as those properties which would reasonably be expected to sustain the most significant adverse aesthetic impacts due to such factors as their close proximity to the site, their elevation relative to the site, the existence or absence of a “clear line of sight” between the tower location and their location. (b) Telecommunications Towers and Personal Wireless Service Facilities which do not meet the definition of a Small Wireless Facility For applications seeking approval for the installation of a telecommunications tower or a personal wireless service facility that does not meet the definition of a small wireless facility, the applicant shall provide: (i) A “Zone of Visibility Map” to determine locations from where the new facility will be seen. (ii) A visual impact analysis which shall include photographic images taken from the perspectives of the properties situated in closest proximity to the location being proposed for the siting of the facility, as well as those 21 properties which would reasonably be expected to sustain the most significant adverse aesthetic impacts due to such factors as their close proximity to the site, their elevation relative to the site, the existence or absence of a “clear line of sight” between the tower location and their location. The photographic images shall depict the height at which the proposed facility shall stand when completed, including all portions and proposed attachments to the facility, including, but not limited to, the main support structure, all antennas, transmitters, whip antennas, lightning rods, t-bars, crossbars, and cantilever attachments which shall, in whole or in part, be affixed to it, any and all surrounding equipment compound(s), fencing, cellular equipment cabinets, transformers, transformer vaults and/or cabinets, sector distribution boxes, ice bridges, backup generators, switch boxes etc., to the extent that any of such compound and/or equipment will be visible from properties other than the property upon which the proposed tower and compound are to be installed. The visual impact analysis shall include an assessment of alternative designs and color schemes, as well as an assessment of the visual impact of the proposed facility, taking into consideration any supporting structure which is to be constructed, as well as its base, guy wires, accessory structures, buildings, and overhead utility lines from abutting properties and streets. 10. Alternative Site Analysis A completed alternative site analysis of all potential less intrusive alternative sites which the applicant has considered, setting forth their respective locations, elevations, and suitability or unsuitability for remedying whatever specific wireless coverage needs the respective applicant or a specific Wireless Carrier is seeking to remedy by the installation of the new facility which is the subject of the respective application for a special use permit. If, and to the extent that an applicant claims that a particular alternative site is unavailable, in that the owner of an alternative site is unwilling or unable to accommodate a wireless facility upon such potential alternative site, the applicant shall provide probative evidence of such unavailability, whether in the form of communications or such other form of evidence that reasonably establishes same. The alternative site analysis shall contain: (a) an inventory of all existing tall structures and existing or approved communications towers within a two-mile radius of the proposed site. (b) a map showing the exact location of each site inventoried, including latitude and longitude (degrees, minutes, seconds), ground elevation above sea level, the height of the structure and/or tower, and accessory buildings on the site of the inventoried location. 22 (c) an outline of opportunities for shared use of an existing wireless facility as opposed to the installation of an entirely new facility. (d) a demonstration of good-faith efforts to secure shared use from the owner of each potential existing tall structure and existing or approved communications tower, as well as documentation of the physical, technical, and/or financial reasons why shared usage is impractical in each case. 11. FCC Compliance Report An FCC compliance report, prepared by a licensed engineer, and certified under penalties of perjury, that the content thereof is true and accurate, wherein the licensed engineer shall certify that the proposed facility will be FCC compliant as of the time of its installation, meaning that the facility will not expose members of the general public to radiation levels that exceed the permissible radiation limits which the FCC has set. If it is anticipated that more than one carrier and/or user is to install transmitters into the facility, the FCC compliance report shall take into account anticipated exposure from all users on the facility and shall indicate whether or not the combined exposure levels will or will not exceed the permissible General Population Exposure Limits, or alternatively, the occupational Exposure Limits, where applicable. Such FCC Compliance Report shall provide the calculation or calculations with which the engineer determined the levels of RF radiation and/or emissions to which the facility will expose members of the general public. On the cover page of the report, the report shall explicitly specify: (a) Whether the applicant and their engineer are claiming that the applicable FCC limits based upon which they are claiming FCC compliance are the General Population Exposure Limits or the Occupational Exposure Limits. If the applicant and/or their engineer are asserting that the Occupational Exposure Limits apply to the proposed installation, they shall detail a factual basis as to why they claim that the higher set of limits is applicable, (b) The exact minimum distance factor, measured in feet, which the applicant’s engineer used to calculate the level of radiation emissions to which the proposed facility will expose members of the general public. The minimum distance factor is the closest distance (i.e., the minimum distance) to which a member of the general public shall be able to gain access to the transmitting antennas mounted upon, or which shall be a part of, the proposed facility. 12. FCC License A copy of any applicable Federal Communications Commission license possessed by any carrier named as an applicant, co-applicant, or whose equipment is proposed for installation as of the time the application is being filed with the Town. 13. Effective Prohibition Claims 23 The Town is aware that applicants seeking approvals for the installation of new wireless Facilities often assert that federal law, and more specifically the TCA, prohibits the local government from denying their respective applications. In doing so, they assert that their desired facility is “necessary” to remedy one or more significant gaps in a carrier’s personal wireless service, and they proffer computer- generated propagation maps to establish the existence of such purported gaps. The Town is additionally aware that, in August 2020, driven by a concern that propagation maps created and submitted to the FCC by wireless carriers were inaccurate, the FCC caused its staff to perform actual drive tests, wherein the FCC staff performed 24,649 tests, driving nearly ten thousand (10,000) miles through nine (9) states, with an additional 5,916 stationary tests conducted at 42 locations situated in nine (9) states. At the conclusion of such testing, the FCC Staff determined that the accuracy of the propagation maps submitted to the FCC by the wireless carriers had ranged from as little as 16.2% accuracy to a maximum of 64.3% accuracy. As a result, the FCC Staff recommended that the FCC no longer accept propagation maps from wireless carriers without supporting drive test data to establish their accuracy. A copy of the FCC Staff’s 66-page report is made a part of this Chapter as Appendix 1. The Town considers it of critical import that applicants provide truthful, accurate, complete, and sufficiently reliable data to enable the Town Council to render determinations upon applications for new wireless facilities consistent with this Chapter's requirements and the TCA's statutory requirements. Consistent with same, if, at the time of filing an application under this Chapter, an applicant intends to assert before the Town Council or the Town that: (a) an identified wireless carrier suffers from a significant gap in its personal wireless services within the Town, (b) that the applicant’s proposed installation is the least intrusive means of remedying such gap in services, and/or (c) that under the circumstances pertaining to the application, a denial of the application by the Town Council would constitute an “effective prohibition” under Section 47 U.S.C. §332 the TCA, then, at the time of filing such application, the applicant shall be required to file a written statement which shall be entitled: “Notice of Effective Prohibition Conditions” If an applicant files a Notice of Effective Prohibition Conditions, then the applicant shall be required to submit Probative Evidence to enable the Town Council to reasonably determine: (a) whether or not the conditions alleged by the respective applicant exist, (b) whether there exists a significant gap or gaps in an identified wireless carrier’s personal wireless services within the Town, (c) the geographic locations of any such gaps, and (d) the geographic boundaries of such gaps, to enable the Town Council to determine whether granting the respective application would be consistent with the requirements of this Chapter and the legislative intent behind same, and whether or not Federal law would require the Town Council to grant the respective application, even if it would otherwise violate the Town Code, including, but not limited to, this Chapter. 24 The additional materials which the applicant shall then be required to provide shall include the following: (a) Drive Test Data and Maps If, and to the extent that an applicant claims that a specific wireless carrier suffers from a significant gap in its personal wireless services within the Town, the applicant shall conduct or cause to be conducted a drive test within the specific geographic areas within which the applicant is claiming such gap or gaps exist, for each frequency at which the carrier provides personal wireless services. The applicant shall provide the Town and the Town Council with the actual drive test data recorded during such drive test, in a simple format which shall include, in table format: (i) the date and time for the test or tests, (ii) the location, in longitude and latitude, of each point at which signal strength was recorded and (iii) each signal strength recorded, measured in DBM, for each frequency. Such data is to be provided in a separate table for each frequency at which the respective carrier provides personal wireless services to any of its end-use customers. (iv) The applicant shall also submit drive test maps depicting the actual signal strengths recorded during the actual drive test for each frequency at which the carrier provides personal wireless services to its end-use customers. If an applicant claims that it needs a “minimum” signal strength (measured in DBM) to remedy its gap or gaps in service, then for each frequency, the applicant shall provide three (3) signal strength coverage maps reflecting actual signal strengths in three (3) DBM bins, the first being at the alleged minimum signal strength, and two (2) additional three (3) DBM bin maps depicting signal strengths immediately below the alleged minimum signal strength claimed to be required. By way of example, if the applicant claims that it needs a minimum signal strength of – 95 DBM to remedy its alleged gap in service, then the applicant shall provide maps depicting the geographic area where the gap is alleged to exist, showing the carrier’s coverage at – 95 to -98 DBM, -99 to -101 DBM, and -102 to -104 DBM, for each frequency at which the carrier provides personal wireless services to its end-use customers. (b) Denial of Service and/or Dropped Call Records 25 If and to the extent that an applicant claims that a specific wireless carrier suffers from a capacity deficiency or a gap in service that renders the carrier incapable of providing adequate coverage of its personal wireless services within the Town, then the applicant shall provide dropped call records and denial of service records evidencing the number and percentage of calls within which the carrier’s customers were unable to initiate, maintain and conclude the use of the carrier’s personal wireless services without actual loss of service, or interruption of service. 14. Estimate for Cost of Removal of Facility A written estimate for the cost of the decommissioning, and removal of the facility, including all equipment that comprises any portion or part of the facility, compound, and/or complex, as well as any accessory facility or structure, including the cost of the full restoration and reclamation of the site, to the extent practicable, to its condition before development in accord with the decommissioning and reclamation plan required herein 15. Property Owner Consent & Liability Acknowledgement A signed written consent from each owner of the subject real property upon which the respective applicant is seeking installation of its proposed personal wireless service facility, wherein the owner or owners both authorize the applicant to file and pursue its special use permit application and acknowledge the potential landowner’s responsibility, under section §17-11 for engineering, legal and other consulting fees incurred by the Town. §17-7 Design Standards The following design standards shall apply to all applications for the siting, construction, maintenance, use, erection, movement, reconstruction, expansion, material change, or structural alteration of a personal wireless service facility. 1. Small Wireless Facilities Small Wireless Facilities (SWF) shall be sited to inflict the minimum adverse impacts upon individual residential properties and, specifically, to minimize, to the greatest extent reasonably feasible, adverse aesthetic impacts upon residential homes or reductions in the property values of same. SWFs attached to pre-existing wooden and non-wooden poles shall conform to the following criteria: (a) Proposed antenna and related equipment shall meet: (i) design standards which the Town may maintain and update as needed, provided that the Town makes its designed standards publicly available for review by any potential applicant seeking approval for the installation of an SWF within the Town, and 26 (ii) National Electric Safety Code (NESC) standards; and (iii) National Electrical Code (NEC) standards. (b) Antennas and antenna equipment, including but not limited to radios, cables, associated shrouding, disconnect boxes, meters, microwaves, and conduit, which are mounted on poles, shall be mounted as close to the pole as technically feasible. They shall not be illuminated except as required by municipal, federal, or state authority, provided this shall not preclude deployment on a new or replacement street light. (c) Antennas and associated equipment enclosures must be camouflaged to appear as an integral part of the pole or be mounted as close to the pole as feasible. Conduits and cabinets shall cover all cables and wiring to the extent that it is technically feasible, if allowed by the pole owner. The number of conduits shall be minimized to the extent technically feasible. To the extent it is technically feasible, antennas, equipment enclosures, and all ancillary equipment, boxes, and conduits shall match the approximate material and design of the surface of the pole or existing equipment to which they are attached. SWFs attached to replacement poles and new poles shall conform to the criteria set forth herein above for SWFs attached to pre-existing wooden and non-wooden poles but shall additionally conform to the following criteria: (a) The Town prefers that wireless providers and site developers install SWFs on existing or replacement poles instead of installing new poles, and accordingly, to obtain approval for the installation of a new pole, the provider shall be required to document that installation on an existing or replacement pole is not technically feasible. (b) To the extent technically feasible, all replacement poles and new poles and pole- mounted antennas and equipment shall substantially conform to the material and design of the pole being replaced, or in the case of a new pole, it shall conform to the nearest adjacent pole or poles. (c) The height of replacement poles and new poles shall conform with the height limitations applicable to the district within which the applicant seeks to install their proposed SWF unless the applicant obtains a variance to obtain relief from any such limitation(s). 2. Telecommunications Towers and Personal Wireless Service Facilities which do not meet the definition of a Small Wireless Facility The design of a proposed new telecommunications tower or personal wireless service facility shall comply with the following: 27 (a) The choice of design for installing a new personal wireless service facility or the substantial modification of an existing personal wireless service facility shall be chosen to minimize the potential adverse impacts that the new or expanded facility may, or is likely to, inflict upon nearby properties. (b) Any new telecommunications tower shall be designed to accommodate future shared use by other communications providers. (c) Unless specifically required by other regulations, a telecommunications tower shall have a finish (either painted or unpainted) that minimizes its degree of visual impact. (d) Notwithstanding the height restrictions listed elsewhere in this chapter, the maximum height of any new telecommunications tower shall not exceed that which shall permit operation without artificial lighting of any kind or nature in accordance with municipal, state, and/or federal law and/or regulation. (e) 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 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. 28 (f) 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. (g) Existing vegetation. Existing on-site vegetation shall be preserved to the maximum extent possible. No cutting of trees shall take place on a site connected with an application made under this article prior to the approval of the special use permit use. (h) Screening. (i) Deciduous or evergreen 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. (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 site noises, such as 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. (i) Lighting. Telecommunications towers shall not be lighted except where FAA/FCC required lighting of the telecommunications towers necessary. No exterior lighting shall spill from the site in an unnecessary manner. (j) Access. (a) Adequate emergency and service access shall be provided and maintained. Maximum use of existing roads, public or private, shall be made. Road construction shall always minimize ground disturbance and vegetation cutting to the top of fill, the top of cuts, or no more than 10 feet beyond the edge of any pavement. Road grades shall closely follow natural contours to assure minimal visual disturbance and reduce soil erosion potential. (b) To the extent feasible, all network interconnections to and from the telecommunications site and all power to the site shall be installed underground. At the initial construction of the access road to the site, 29 sufficient conduit shall be laid to accommodate the maximum possible number of telecommunications providers that might use the facility. (k) Parking. Parking shall be provided to assure adequate emergency and service access. The Town Council shall determine the number of required spaces, but in no case shall the number of parking spaces be less than two spaces. (l) Fencing. A fence shall adequately enclose the telecommunications tower and any accessory structures, the design of which shall be approved by the Town Council. The Town Council may waive this requirement if the applicant demonstrates that such measures are unnecessary to ensure the security of the facility. §17-8 Town Council Initial Review 1. Initial Review Upon the acceptance of an application that appears to be complete, the Town Engineer shall transmit the application to the Town Council for initial review. The Town Council shall then conduct an initial review to consider whether or not to establish itself as Lead Agency pursuant to ADEQ and/or NEPA and whether or not a use or area variance is required for the proposed application such that a referral for an application to the Board of Adjustment will be required to be made after the Town Council has declared itself to serve as Lead Agency and during the process of the Town Council considering an ADEQ determination of environmental significance. That consideration of granting any required variances by the Board of Adjustment is done concurrently with the Town Council’s review and consideration of special permit and site plan approval. The Town Council shall then conduct a public hearing upon each application and render its determinations in accord with Sections §17-9 and §17-10 herein below and shall ultimately determine whether or not to grant each applicant a special use permit and/or site plan approval. §17-9 Hearings and Public Notices 1. Public Hearings The Town Council shall conduct a public hearing upon each special permit application, except the Town Council shall have the authority to schedule such additional or more frequent public hearings as may be necessary to comply with the applicable shot clocks imposed upon the Town and the Town Council under the requirements of the TCA. 2. Required Public Notices 30 The Town Council shall ensure that both the public and property owners whose properties might be adversely impacted by the installation of a wireless facility receive Notice of any public hearing pertaining to same and shall ensure that they are afforded an opportunity to be heard concerning same. Before the date scheduled for the public hearing, the Town Council shall cause to be published a “NOTICE OF PUBLIC HEARING FOR NEW WIRELESS FACILITY” Each “Notice of Public Hearing for New Wireless Facility” shall state the name or names of the respective applicant or co-applicants, provide a brief description of the personal wireless facility for which the applicant seeks a special permit and the date, time, and location of the hearing. Each “Notice of Public Hearing for New Wireless Facility” shall be published both: (a) once per week for two successive weeks in the official newspaper of the Town of Fountain Hills and (b) by mailing copies of such notice to property owners, as provided for herein below. The face of each envelope containing the notices of the public hearing shall state, in all bold typeface, in all capital letters, in a font size no smaller than 12 point, the words: “NOTICE OF PUBLIC HEARING FOR NEW WIRELESS FACILITY” For Type I and Type III applications, notices of public hearing shall be mailed to all property owners whose real properties are situated within 300 feet of any property line of the real property upon which the applicant seeks to install its new wireless facility. If the site for the proposed facility is situated on, or adjacent to, a residential street containing twelve (12) houses or less, the Town Council shall additionally mail a copy of such notices to all homeowners on that street, even if their home is situated more than 300 feet from any property line of the property upon which the applicant proposes to install its facility. For Type II and Type IV applications, the applicant shall mail such notices of public hearing to all property owners whose real properties are situated within 1,500 feet of any property line of the real property upon which the applicant seeks to install its new wireless facility. The applicant shall additionally post a notice upon the proposed site advising the public of the public hearing. Prior to the date of the hearing, the respective applicant shall file an Affidavit of Mailing, attesting to whom the applicant mailed such notices and the content of the notices which were mailed to such recipients. 31 §17-10 Factual Determinations to be Rendered by the Town Council 1. Evidentiary Standards In determining special use permit applications for personal wireless service facilities, the Town Council shall have sole discretion to determine what probative evidence it shall require each applicant to produce in support of its application to enable the Council to make each of the factual determinations enumerated below. By way of common examples of the types of evidence that the Council may require an applicant to produce are the following: (a) where an applicant is not the owner of the real property upon which it proposes to install a new wireless facility, the Council can require the applicant to provide a copy of the applicant’s lease with the property owner (including any schedules, property descriptions, appendices or other attachments), from which the applicant may censor or delete any financial terms which would be irrelevant to the factual issues which the Council is required to determine; (b) where the Council deems it appropriate, the Council can require the applicant to perform what is commonly known as a “balloon test” and to require the applicant to publish a reasonably sufficient advance public notice of same to enable the Council, property owners, and the community, an opportunity to assess the actual adverse aesthetic impact which the proposed facility is likely to inflict upon the nearby properties and surrounding community; (c) where 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. (d) where the applicant asserts that a potential less intrusive alternative location for a proposed facility is unavailable because the owner of the potential alternative site is incapable or unwilling to lease space upon such site to the applicant, the Council may require the applicant to provide proof of such unwillingness in the form of communications to and from such property owner, and/or a sworn affidavit wherein a representative of the applicant affirms, under penalty of perjury, that they attempted to negotiate a lease with the property owner, what the material terms of any such offer to the property owner were, when the offer was tendered, and how, if at all, the property owner responded to such offer. 32 The Council shall have sole discretion to determine, among other things, the relevance of any evidence presented, the probative value of any evidence presented, the credibility of any testimony provided, whether expert or otherwise, and the adequacy of any evidence presented. The Council shall not be required to accept, at face value, any unsupported factual claims asserted by an applicant but may require the production of evidence reasonably necessary to enable the Council to determine the accuracy of any factual allegations asserted by each respective applicant. Conclusory factual assertions by an applicant shall not be accepted as evidence by the Council. 2. Factual Determinations To decide applications for special use permits under this Section, the Town Council shall render factual determinations, which shall include two (2) specific types of factual determinations, as applicable. First, the Council shall render local zoning determinations according to Section (a) hereinbelow. Then, if, and only if, an applicant asserts claims that: (a) a denial of its application would effectively prohibit an identified Wireless Carrier from providing Personal Wireless Services within the Town, or (b) its proposed wireless facility or installation is necessary to remedy a significant gap in personal wireless services for an explicitly identified Wireless Carrier, and that its proposed installation is the least intrusive means of remedying a specifically identified significant gap or gaps. The Council shall then additionally render TCA determinations in accord with Section (b) herein below. The Council shall separately record each factual determination it makes in a written decision and shall reference, or make note of, the evidence-based upon which it rendered each of its factual determinations. Each factual determination made by the Council shall be based upon Substantial Evidence. For purposes of this provision, “Substantial Evidence” shall mean such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It means less than a preponderance but more than a scintilla of evidence. Evidence that the Council may consider shall include any evidence submitted in support of an application and any evidence submitted by anyone opposing a respective 33 application, whether such evidence is in written or photographic form or whether it is in the form of testimony by any expert, or any person who has personal knowledge of the subject of their testimony. The Council may, of course, additionally consider as evidence any information or knowledge which they, themselves, personally possess and any documents, records, or other evidence which is a matter of public record, irrespective of whether such public record is a record of the Town, or is a record of or is maintained by, another federal, state and/or other governmental entity and/or agency which maintains records which are available for, or subject to, public review. The requirements for specific factual determinations set forth below are intended to enure to the benefit of the Town, its residents, and property owners, and not applicants. If, and to the extent that the Town Council fails to render one or more of such determinations, that omission shall not constitute grounds upon which the respective applicant can seek to annul, reverse or modify any decision of the Town Council. (a) LOCAL ZONING DETERMINATIONS The Council shall make the following factual determinations as to whether the application meets the requirements for granting a special use permit under this Chapter. (i) Compliance with §2.02 Whether the proposed installation will meet each of the conditions and standards set forth within §2.02 in the absence of which the Town Council is not authorized to grant a special use permit. (ii) Potential Adverse Aesthetic Impacts Whether the proposed installation will inflict a significant adverse aesthetic impact upon properties located adjacent to, or in close proximity to, the proposed site or any other properties situated in a manner that would sustain significant adverse aesthetic impacts by the installation of the proposed facility. (iii) Potential Adverse Impacts Upon Real Estate Values Whether the proposed installation will inflict a significant adverse impact upon the property values of properties that are located adjacent to, or in close proximity to, the proposed site or properties that are otherwise situated in a manner that would cause the proposed installation to inflict a significant adverse impact upon their value. (iv) Potential Adverse Impact Upon the Character of the Surrounding Community Whether the proposed installation will be incompatible with the use and/or character of properties located adjacent to or in close proximity to the proposed 34 site or other properties situated in a manner that would cause the proposed installation to be incompatible with their respective use. (v) Potential Adverse Impacts Upon Historic Properties or Historic Districts Whether the proposed installation will be incompatible with and/or would have an adverse impact upon, or detract from the use and enjoyment of, and/or character of a historic property, historic site, and/or historic district, including, but not limited to, historic structures, properties and/or districts which are listed on, or are eligible for listing on, the National Register of Historic Places. (vi) Potential Adverse Impacts Upon Ridgelines or Other Aesthetic Resources of the Town Whether the proposed installation will be incompatible with and/or would have an adverse aesthetic impact upon or detract from the use and enjoyment of, and/or character of, recognized aesthetic assets of the Town, including, but not limited to, scenic areas and/or scenic ridgelines, scenic areas, public parks, and/or any other traditionally or historically recognized valuable scenic assets of the Town. (vii) Sufficient Fall Zones Whether the proposed installation shall have a sufficient fall zone and/or safe zone around the facility to afford the general public safety against the potential dangers of structural failure, icefall, debris fall, and fire. (viii) Mitigation Whether the applicant has mitigated the potential adverse impacts of the proposed facility to the greatest extent reasonably feasible. To determine mitigation efforts on the part of the applicant, the mere fact that a less intrusive site, location, or design would cause an applicant to incur additional expense is not a reasonable justification for an application to have failed to propose reasonable mitigation measures. If, when applying the evidentiary standards set forth in subparagraph (a) hereinabove, the Town Council determines that the proposed facility would not meet the standards set forth within §2.02 or that the proposed facility would inflict one or more of the adverse impacts described hereinabove to such a substantial extent that granting the respective application would inflict upon the Town and/or its citizens and/or property owners the types of adverse impacts which this provision was enacted to prevent, the Town Council shall deny the respective application for a special use permit unless the Council additionally finds that a denial of the application would constitute an Effective Prohibition, as provided for in Sections (b) and (c) immediately hereinbelow. (b) TCA DETERMINATIONS 35 In cases within which an applicant has filed a “Notice of Effective Prohibition Conditions,” the Town Council shall determine if a denial of the respective application would “Effectively Prohibit” a specifically identified Wireless Carrier from providing Personal Wireless Services within any geographic area or areas in the Town. More specifically, the Town Council shall determine whether a denial of the specific application would either: (i) prevent an identified Wireless Carrier from providing personal wireless services within a specific geographic area or areas within the Town or (ii) would prevent a specific Wireless Carrier from constructing a sufficient number of such facilities necessary to enable it to provide Personal Wireless Services within the Town. In determining whether a denial of any specific application would constitute an “Effective Prohibition,” the Town Council shall determine: (1) whether an applicant has established that an identified Wireless Carrier suffers from one or more significant gaps in its Personal Wireless Services, and (2) whether its proposed installation is the least intrusive means of remedying any such gap or gaps. (1) Significant Gap in Personal Wireless Services of an Identified Carrier The Town Council shall determine whether the applicant has established, based upon probative evidence provided by the applicant and/or its representative, that a specific Wireless Carrier suffers from a significant gap in its personal wireless services within the Town. In rendering such determination, the Council shall consider factors including, but not necessarily limited to: (a) whether the identified Wireless Carrier, which is alleged to suffer from any significant gap in their personal wireless services, already provides Adequate Service in its Personal Wireless Services to its customers at any frequency being used by the carrier to provide personal wireless services to its end-use customers, (b) whether any such alleged gap is relatively large or small in geographic size, (c) whether the number of the carrier’s customers affected by the gap is relatively small or large, (d) whether or not the location of the gap is situated on a lightly traveled road, or sparsely or densely occupied area, and/or (e) overall, whether the gap is relatively insignificant or otherwise relatively de minimis. An Effective Prohibition shall not be found to exist under subparagraph (c) hereinbelow if a Wireless Carrier has adequate coverage in any specified geographic area, such that its end-use customers can use their cellular telephones 36 to connect to landlines using the Carrier’s Personal Wireless Services, but the frequency at which the customers are using such services is not the frequency most desired by the Carrier. (2) Least Intrusive Means of Remedying Gap(s) in Service The Town Council shall determine whether the applicant has established, based upon probative evidence provided by the applicant and/or its representative, that the installation of the proposed facility at the specific site proposed by the applicant and the specific portion of the site proposed by the applicant, and at the specific height proposed by the applicant, is the least intrusive means of remedying whatever significant gap or gaps which the applicant has contemporaneously proven to exist as determined by the Town Council based upon any evidence in support of, and/or in opposition to, the subject application. In rendering such determination, the Council shall consider factors including, but not necessarily limited to: (a) whether the proposed site is the least intrusive location at which a facility to remedy an identified significant gap may be located, and the applicant has reasonably established a lack of potential alternative less intrusive sites and lack of sites available for co- location, (b) whether the specific location on the proposed portion of the selected site is the least intrusive portion of the site for the proposed installation (c) whether the height proposed for the facility is the minimum height actually necessary to remedy an established significant gap in service, (d) whether or not a pre-existing structure can be used to camouflage the facility and/or its antennas, (e) whether or not, as proposed, the installation mitigates adverse impacts to the greatest extent reasonably feasible through the employ of Stealth design, screening, use of color, noise mitigation measures, etc., and/or (f) overall whether or not there is a feasible alternative to remedy the gap through alternative, less intrusive substitute installations. An Effective Prohibition shall also not be found to exist in subparagraph (c) hereinbelow if an applicant fails to establish before the Town Council that any existing geographic gap or capacity deficiency in the specific Wireless Carrier’s coverage cannot be remedied through a less intrusive means than what is being proposed, including, but not limited to, potential installations on alternative less intrusive sites, a shorter tower or facility, the incorporation of a more stealthy design, etc. 37 (c) Finding of Effective Prohibition or Lack of Effective Prohibition After considering the evidence presented before it, the Town Council shall determine whether or not a denial of the respective application would constitute an effective Prohibition. If the Town Council affirmatively determines that the applicant has failed to establish either: (i) that a denial of the application would prevent an identified Wireless Carrier from providing personal wireless services within a specific geographic area or areas within the Town or (ii) that a denial of the application would prevent a specific Wireless Carrier from constructing a sufficient number of such facilities necessary to enable it to provide Personal Wireless Services within the Town, then the Town Council shall find that a denial of the application does not constitute an Effective Prohibition. If the Town Council affirmatively determines that: (i) a denial of the application would prevent an identified Wireless Carrier from providing personal wireless services within a specific geographic area or areas within the Town, or (ii) that a denial of the application would prevent a specific Wireless Carrier from constructing a sufficient number of such facilities necessary to enable it to provide Personal Wireless Services within the Town, then the Town Council shall find that a denial of the application would constitute an Effective Prohibition, and the Town Council shall grant the subject application, irrespective of whether or not the granting of same would otherwise be inconsistent with any other provision of this Section §17-10. §17-11 Retention of Consultants 1. Use of Consultants Where deemed reasonably necessary by the Town Council and/or the Town, the Town Council and/or the Town may retain the services of professional consultants to assist the Town Council in carrying out its duties in deciding special use permit applications for personal wireless service facilities. Where the Town Council uses the services of private engineers, attorneys, or other consultants for purposes of engineering, scientific, land use planning, environmental, legal, or similar professional reviews of the adequacy or substantive aspects of applications or of issues raised during the course of review of applications for special use permit approvals of personal wireless service facilities, the applicant and landowner, if different, shall be jointly and severally responsible for payment of all the reasonable and necessary costs incurred by the Town for such services. That responsibility shall not exceed the actual cost to the Town of such engineering, legal, or other consulting services. 2. Advance Deposits for Consultant Costs The Town and/or Town Council may require advance periodic monetary deposits held by the Town on account of the applicant or landowner to secure the reimbursement of the 38 Town's consultant expenses. The Town Council shall establish policies and procedures for the fixing of escrow deposits and the management of payment from them. After the audit and approval of itemized vouchers by the Town Clerk as to the reasonableness and necessity of the consultant charges, the Town may make payments from the deposited funds for engineering, legal, or consultant services. Upon receiving a request by the applicant or landowner, the Town shall supply copies of such vouchers to the applicant and/or landowner reasonably in advance of audit and approval, appropriately redacted where necessary to shield legally privileged communications between Town officers or employees and the Town's consultant. When it appears that there may be insufficient funds in the account established for the applicant or landowner by the Town to pay current or anticipated vouchers, the Town shall cause the applicant or landowner to deposit additional sums to meet such expenses or anticipated expenses in accordance with policies and procedures established by the Town Council. Consultants shall undertake no review on any matter scheduled before the Town Council until the initial escrow deposit has been made or requested replenishment of the escrow deposit has been made. No reviewing agency shall be obligated to proceed unless the applicant complies with escrow deposit requirements. 3. Reasonable Limit Upon Consultant Expenses A consultant expense or part thereof is reasonable in amount if it bears a reasonable relationship to the customary fee charged by engineers, attorneys, or planners within the region for services performed on behalf of applicants or reviewing boards in connection with comparable applications for land use or development. The Town may also take into account any special conditions for consideration as it may deem relevant, including but not limited to the quality and timeliness of submissions on behalf of the applicant and the cooperation of the applicant and agents during the review process. A consultant expense or part thereof is necessarily incurred if it was charged by the engineer, attorney or planner, or other consultants for a service that was rendered to assist the Town Council in: (a) making factual determinations consistent with the goals of protecting or promoting of the health, safety or welfare of the Town or its residents; (b) assessing potential adverse environmental impacts such as those identified within an ADEQ process; (c) accessing potential adverse impacts to historic properties, structures and/or districts, and/or (d) assessing and determining factual issues relevant to Effective Prohibition claims, as addressed herein, enabling the Council to best comply with the letter and intent of the provision of the TCA which is relevant thereto. 4. Audits Upon the Request of an Applicant Upon request of the applicant or landowner, the Town Council shall review and audit all vouchers and determine whether such engineering, legal, and consulting expenses are reasonable in amount and necessarily incurred by the Town in connection with the review and consideration of a special use permit application for personal wireless service 39 facility. In the event of such a request, the applicant or landowner shall be entitled to be heard by the Town Council on reasonable advance notice. 5. Liability for Consultant Expenses For a land-use application to be complete, the applicant shall provide the written consent of all owners of the subject real property, both authorizing the applicant to file and pursue land development proposals and acknowledging potential landowner responsibility, under this section, for engineering, legal, and other consulting fees incurred by the Town. If different from the applicant, the owner(s) of the subject real property shall be jointly and severally responsible for reimbursing the Town for funds expended to compensate services rendered to the Town under this section by private engineers, attorneys, or other consultants. The applicant and the owner shall remain responsible for reimbursing the Town for its consulting expenses, notwithstanding that the escrow account may be insufficient to cover such expenses. No building permit or other permit shall be issued until reimbursement of costs and expenses determined by the Town to be due. In the event of failure to reimburse the Town for such fees, the following shall apply: The Town may seek recovery of unreimbursed engineering, legal, and consulting fees by court action in an appropriate jurisdiction, and the defendant(s) shall be responsible for the reasonable and necessary attorney's fees expended by the Town in prosecuting such action. Alternatively, and at the sole discretion of the Town, a default in reimbursement of such engineering, legal, and consulting fees expended by the Town shall be remedied by charging such sums against the real property that is the subject of the special use permit application by adding that charge to and making it a part of the next annual real property tax assessment roll of the Town. Such charges shall be levied and collected simultaneously and in the same manner as Town-assessed taxes and applied in reimbursing the fund from which the costs were defrayed for the engineering, legal, and consulting fees. Prior to charging such assessments, the owners of the real property shall be provided written notice to their last known address of record by certified mail, return receipt requested, of an opportunity to be heard and object before the Town Council to the proposed real property assessment, at a date to be designated in the notice, which shall be no less than 30 days after its mailing. §17-12 Setback Requirements 1. Small Wireless Facilities (a) Within C-O Commercial Office Zoning District; C-C Common-Commercial Zoning District; C-1 Neighborhood Commercial Professional District; C-2 Intermediate Commercial Zoning District; C-3 General Commercial Zoning District; IND-1 Planned Industrial Zoning District; IND-2 Light Industrial Zoning District; and UT Utility Zoning District, the minimum setback shall be 40 fifty (50) feet, unless the facility is being installed upon a pre-existing utility pole or other utility structure. (b) Within all residentially-zoned and other districts, all small wireless facilities shall be set back a minimum of three hundred (300) feet from any residential dwelling or structure unless the facility is being installed upon a pre-existing utility pole or is being co-located upon a pre-existing personal wireless service facility. 2. Cell Towers and all Personal Wireless Service Facilities that do not meet the definition of a Small Wireless Facility (a) Each proposed wireless personal service facility and personal wireless service facility structure, compound, and complex shall be located on a single lot and comply with applicable setback requirements. Adequate measures shall be taken to contain on-site all icefall or debris from tower failure and preserve the privacy of any adjoining residential properties. (b) Each lot containing a wireless personal service facility and personal wireless service facility structure, compound, and complex shall have the minimum area, shape, and frontage requirements generally prevailing for the zoning district where located in the Schedules of Regulations for Nonresidential and Residential Districts of this chapter, and such additional land if necessary to meet the setback requirements of this section. (c) Cell towers and personal wireless service facilities that do not meet the definition of a small wireless facility shall maintain a minimum setback of a distance equal to one hundred ten (110%) percent of the height of the facility, for front yard setbacks, rear yard setbacks, and side yard setbacks, in all zoning districts. §17-13 Height Restrictions 1. Small Wireless Facilities Personal Wireless Service Facilities which meet the definition of a small wireless facility shall not exceed a maximum height of sixty (60) feet above ground elevation in C-O Commercial Office Zoning District; C-C Common-Commercial Zoning District; C-1 Neighborhood Commercial Professional District; C-2 Intermediate Commercial Zoning District; C-3 General Commercial Zoning District; IND-1 Planned Industrial Zoning District; IND-2 Light Industrial Zoning District; and UT Utility Zoning District and shall not exceed a maximum height of forty-five (45) feet within all other zoning districts. 2. Non-Small Wireless Facilities Personal Wireless Service Facilities which do not meet the definition of a small wireless facility shall not exceed a maximum height of one hundred fifty (150) feet above ground elevation in C-O Commercial Office Zoning District; C-C Common-Commercial Zoning District; C-1 Neighborhood Commercial Professional District; C-2 Intermediate Commercial Zoning District; C-3 General Commercial Zoning District; IND-1 Planned 41 Industrial Zoning District; IND-2 Light Industrial Zoning District; and UT Utility Zoning District, and 100 feet above ground level in all other zoning districts. §17-14 Use Restrictions and Variances 1. Use Restrictions by Application Type and Zoning District Type I applications No Use Variance Required Type I applications for co-location of a small wireless facility in a public right of way as set forth in A.R.S. §9-592(J) and A.R.S. §9-593(C) shall be a permitted use with a building permit. Type I applications for co-location of a small wireless facility in all other areas or zones shall require an applicant to obtain a special use permit from the Town Council. Type II applications No Use Variance Required Unless Determined Otherwise Applications for colocations of a wireless personal services facility, which do not meet the definition of a small wireless facility, shall be considered a special use permit in all districts and shall require a special use permit and a building permit but shall not require a use variance, unless the Town Council, in its sole discretion, determines that the proposed colocation will increase the overall intrusiveness of the site to a sufficient extent that its presence would no longer be compatible with the surrounding properties and/or surrounding community, in which case the Town Council shall issue a decision determining that the applicant shall be required to obtain a variance from the Board of Adjustment in accord with §2.07 of the Zoning Ordinance. In rendering a determination of whether or not a variance shall be required, the Town Council shall consider, among other things: (a) the physical size, number, and potential intrusiveness of each new item of equipment to be installed as part of the proposed colocation, (b) the extent to which the installation of such equipment is to require or effectuate a significant physical expansion of the size or area of the facility or complex, (c) the extent to which the addition of such additional equipment will likely increase the adverse aesthetic impact of the facility, and/or any other potentially significant adverse impacts which are likely to cause a significant increase in the overall intrusiveness of the wireless facility, and/or its compound or complex, such that it will no longer be reasonably compatible with the use of nearby or surrounding properties and/or that its presence would be incompatible with the character and use of the nearby properties and/or surrounding community. If the Town Council determines that a variance is required for a specific proposed facility, then the applicant shall be required to file an application for a variance to the Board of Adjustment. The Board of Adjustment shall thereafter have the authority to (a) determine that no variance is necessary, (b) grant the application for a variance, or (c) deny the application for a variance. 42 Type III Applications No Use Variance Required Applications for installing new Small Wireless Facilities that meet the criteria for Type III applications, which are not collocated in a public right of way, shall be considered a special use permit use in all districts. They shall require a special use permit and building permit but shall not require a variance unless they do not meet the applicable setback requirements or height limitation. Type IV Applications Variance Requirements Type IV applications seeking approval for the installation of a new cell tower and/or all other wireless facilities that are not a small wireless facility shall be a permitted use in all districts, which shall not need a use variance but shall require a special use permit, building permit, and area variance if the proposed facility does not meet the applicable height limitation and/or setback requirements. §17-15 Environmental Impacts If, and to the extent that, the Town Council determines a proposed installation bears the potential for a significant adverse impact upon the environment within the meaning of ADEQ and/or the NEPA, then the Council shall be expected to comply with the requirements of ADEQ in determining both (a) the extent of adverse impacts upon the environment and/or historic properties and (b) what mitigation measures the applicant should be required to undertake to minimize the adverse environmental impacts and/or adverse impacts upon historic sites, structures and/or districts. If a respective applicant fails to obtain a review from the ADEQ and/or NEPA and opinion letters from the ADEQ and the FCC pertaining to its proposed installation prior to a first public hearing before the Town Council for the respective application, then the Town Council may make direct requests to the ADEQ and the FCC for their review of the application. The Town Council may request SHPO and the FCC’s review and input in completing the statutorily- required environmental impact analysis pursuant to ADEQ and NEPA. In addition, the Town Council shall comply with the statutory requirements of ADEQ to complete an ADEQ review, make determinations of significance, and, where appropriate, require the applicant to complete a draft environmental impact statement and, if additionally appropriate, to thereafter complete a final environmental impact statement and analysis. So long as the Town Council acts with reasonable diligence in completing its ADEQ and NEPA review, if compliance with the statutory requirements for environmental review requires a period of effort that extends beyond the expiration of the applicable shot clock period, the delays beyond such period shall be deemed reasonable. 43 §17-16 Historic Site Impacts The Town Council shall consider the potential adverse impacts of any proposed facility upon any historic site, district, or structure consistent with the Town’s historic preservation law requirements and comprehensive plan and ADEQ. If, and to the extent that, the Town Council determines that a proposed installation bears the potential for a significant adverse impact on a historic site or a historic district within the meaning of ADEQ and/or the NHPA (especially if the historic site at issue is listed upon the National Register of historic places), then the Council shall comply with the requirements of both ADEQ and Town law in determining both: (a) the extent of adverse impacts upon the historic properties and (b) what mitigation measure might the applicant be required to undertake to minimize the adverse environmental impacts and/or adverse impacts upon historic sites, structures and/or district. Should a respective applicant fail to obtain a SHPO and/or a Section 106 review under NHPA, and opinion letters from SHPO and the FCC pertaining to its proposed installation prior to a first public hearing before the Town Council for the respective application, then the Town Council shall make direct requests to SHPO and the FCC for their review of the application. They shall request SHPO and the FCC’s review and input in completing the statutorily-required environmental/historic impact analysis pursuant to ADEQ and NHPA. This request shall include, but not be limited to, a request to the FCC for a Section 106 review, as defined in this Chapter, as the Town recognizes each application for a special use permit for the installation of a personal wireless services facility shall constitute “an undertaking” for purposes of compliance with the National Historic Preservation Act. In addition, the Town Council shall comply with the statutory requirements of ADEQ to complete a SEQ ADEQ RA review, make determinations of significance, and, where appropriate, require the applicant to complete a draft environmental impact statement, and if additionally appropriate, to thereafter complete a final environmental impact statement and analysis. So long as the Town Council acts with reasonable diligence in completing its ADEQ and NHPA review, if compliance with the statutory requirements for historic preservation review requires a period of effort that extends beyond the expiration of the applicable shot clock period, the delays beyond such period shall be deemed reasonable. §17-17 Force Majeure In the event that the rendering of a final decision upon a special use permit 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 or the Town Council, 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 44 review and the rendering of final determinations beyond the period allotted under the applicable shot clock. §17-18 Eleventh Hour Submissions In the event that applicant tenders eleventh-hour submissions to the Town, the Council, and/or the Town Engineer 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 Council at such late point in the proceedings, the Town Council shall be afforded a reasonable time to review such late-submitted materials. If reasonably necessary, the Town Council shall be permitted to retain the services of an expert consultant to review any late-submitted expert reports which were provided to the Council, even if such review or services extend beyond the applicable shot clock period, so long as the Council 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. §17-19 Prohibition Against Illegally Excessive Emissions and RF Radiation Testing As disclosed on the FCC’s public internet website, personal wireless services facilities erected at any height under 200 feet are not required to be registered with the FCC. Of even greater potential concern to the Town is the fact that the FCC does not enforce the RF radiation limits codified within the CFR by either: (a) testing the actual radiation emissions of wireless Facilities either at the time of their installation or at any time thereafter, or (b) requiring their owners to test them. See relevant excerpts from the FCC’s public internet website annexed as Appendix 2. This means that when wireless Facilities are constructed and operated within the Town, the FCC will have no idea where they are located and no means of determining, much less ensuring, that they are not exposing residents within the Town and/or the general public to Illegally Excessive levels of RF Radiation. The Town deems it to be of critical importance to the health, safety, and welfare of the Town, its residents, and the public at large that personal wireless service facilities do not expose members of the general public to levels of RF radiation that exceed the limits which have been deemed safe by the FCC, and/or are imposed under CFR. In accord with the same, the Town enacts the following RF Radiation testing requirements and provisions set forth herein below. No wireless telecommunications facility shall at any time be permitted to emit illegally excessive RF Radiation as defined in §17-2 or to produce power densities that exceed the legally permissible limits for electric and magnetic field strength and power density for transmitters, as 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). 45 To ensure continuing compliance with such limits by all owners and/or operators of personal wireless service facilities within the Town, all owners, and operators of personal wireless service 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 an owner and/or operator. If an operator of a personal wireless service facility fails to supply the required reports or fails to correct a violation of the legally permissible limits described hereinabove, following notification that their respective facility is believed to be exceeding such limits, any special use permit or other zoning approval granted by the Town Council or any other body or representative of the Town is subject to modification or revocation by the Town Council following a public hearing. 1. Initial Certification of Compliance with Applicable RF Radiation Limits Within forty-five (45) days of initial operation or a substantial modification of a personal wireless service facility, the owner and/or operator of each Telecommunications antenna shall submit to the Town Engineer 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 measure the emissions of the approved facility, including the cumulative impact from other nearby Facilities, and determine if such emissions are within the limits described hereinabove. A report of these measurements and the engineer’s findings with respect to compliance with the FCC’s Maximum Permissible Exposure (MPE) limits shall be submitted to the Town Engineer. 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. 2. Random RF Radiofrequency Testing At the operator’s expense, the Town may retain an engineer to conduct random unannounced RF Radiation testing of such Facilities to ensure the facility’s compliance with the limits 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 facility 46 be brought into compliance with such limits, and to conduct additional tests to determine if, and when, the owner and/or operator thereafter brings the respective facility and/or facilities into compliance. If the Town at any time finds that there is good cause to believe that a personal wireless service 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 Council 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. Such hearing shall be duly noticed to both the public and the owner and/or operator of the respective facility or facilities at issue. The owner and/or operator shall be afforded not less than two (2) weeks' written notice by first-class mail to its Notice Address. 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 Council shall have the power to and shall revoke any special use permit, variance, building permit, and/or any other form of zoning-related approval(s) which the Town Council, Board of Adjustment, Town Engineer and/or any other representative of the Town may have then issued to the owner and/or operator, for the respective facility. In addition, the Town Council shall impose a fine of not less than $1,000, nor more than $5,000 for such violation of subparagraph 1. hereinabove, or, in the case of a second offense within less than five (5) years, a minimum fine of $5,000, nor more than $25,000. In the event that an owner or operator of one or more personal wireless service facilities 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. §17-20 Bond Requirements, Removal of Abandoned Facilities and Reclamation 1. Bond Requirement 47 At or prior to the filing of an application for a special use permit for the installation of a new personal wireless service facility, each respective applicant shall provide a written estimate for the cost of the decommissioning and removal of the facility, including all equipment that comprises any portion or part of the facility, compound and/or complex, as well as any accessory facility or structure, including the cost of the full restoration and reclamation of the site, to the extent practicable, to its condition before development in accord with the decommissioning and reclamation plan required herein. The Town Council’s Engineer shall review this estimate. Upon receiving a special use permit approval from the Town Council and a building permit, prior to the commencement of installation and/or construction of such facility or any part thereof, the applicant shall file with the Town a bond for a length of no less than three (3) years in an amount equal to or exceeding the estimate of the cost of removal of the facility and all associated structures, fencing, power supply, and other appurtenances connected with the facility. The bond must be provided within thirty (30) days of the approval date and before any installation or construction begins. Replacement bonds must be provided ninety (90) days prior to the expiration of any previous bond. At any time the Town has good cause to question the sufficiency of the bond at the end of any three-year (3) period, the owner and/or operator of the facility, upon request by the Town, shall provide an updated estimate and bond in the appropriate amount. Failure to keep the bonds in effect is cause for the removal of the facility at the owner's expense. Each facility will require a separate bond, regardless of the number of owners or location. 2. Removal of Abandoned Facilities Any personal wireless service facility that is not operated or used for a continuous period of twelve (12) consecutive months shall be considered abandoned. At the owner's expense, the owner of said facility shall be required to remove the facility and all associated equipment buildings, power supply, fence, and other items associated with such facility, compound, and/or complex, and permitted with the facility. If the facility is not removed within ninety (90) days, the bond secured by the facility owner shall be used to remove the facility and any accessory equipment and structures. §17-21 ADA Accommodations [Reserved] §17-22 General Provisions 1. Balancing of Interests 48 The Town formally recognizes that, as has been interpreted by federal courts, when it enacted the TCA, Congress chose to preserve local zoning authority over decisions regarding the placement, construction, and modification of personal wireless facilities (47 U.S.C. §332(c)(7)(A)) subject only to the limitations set forth in subsection §332(c)(7)(b), consistent with the holding of the United States Court of Appeals in Sprint Telephony PCS v. County of San Diego, 543 F.3d 571 (9th Cir. 2008) and its progeny, and the Town has relied upon such federal courts’ interpretations of the TCA in enacting Chapter §17 et seq. The Town similarly embraces the Federal courts’ determinations that the TCA as the Court additionally articulated in Sprint Telephony PCS v. County of San Diego, 543 F.3d 571 (9th Cir. 2008) This includes preserving to local governments, including the Town of Fountain Hills, the power to deny applications for the installation of wireless personal services facilities based upon traditional grounds of zoning denials, including, but not limited to, the potential adverse aesthetic impacts or a reduction in property values which the construction of any proposed structure may inflict upon nearby properties or the surrounding community. This additionally includes the recognition that, under this balancing of interest test, “once an area is sufficiently serviced by a wireless service provider, the right to deny applications (for new wireless facilities) becomes broader” Crown Castle NG East LLC v. The Town of Hempstead, 2018 WL 6605857. It is the intent of the Town that this Chapter be applied in a manner consistent with the balancing of interests codified within the TCA. Consistent with same, the Town rejects and shall reject any current and/or future FCC interpretations of any provision of the TCA which are clearly inconsistent with, and/or are clearly contrary to, both the language of the TCA and binding decisions of the United States Court of Appeals for the Ninth Circuit and United States District Courts within the Ninth Circuit. This includes a rejection of any FCC interpretations inconsistent with Sprint and any claims that the FCA legally prohibits the Town Council from denying a permit application based solely upon a claim that an applicant desires the installation of its new facility for “densification” of its existing personal wireless services, or to offer a new service, irrespective of whether or not the carrier already possesses adequate coverage within the Town, and irrespective of the potential adverse impact which the installation of such new facility or facilities would inflict upon the Town, its property owners, citizens and/or communities. 2. Conflict With Federal or State Laws To the extent that any provision of this Chapter is found to conflict with any applicable federal or State law, it is the intent of the Town that the remaining portion of this Chapter, which has not been found to conflict with such law, be deemed to remain valid and in full force and effect. 16-2-1 16-2-2 16-2-3 16-2-4 Article 16-2 Small Wireless Facilities Sections: Purpose Definitions Small Wireless Facilities in the Public Right-of-Way Rates and Fees Section 16-2-1 Purpose The intent and purpose of this article is to facilitate the development and installation of small wireless facilities in the Town of Fountain Hills to supplement existing wireless communications networks and to increase capacity in high demand areas, while simultaneously promoting and preserving the health, safety, and general welfare of the residents of the Town and protecting and preserving the aesthetic qualities of the natural and built environment of the Town. Through this article, the Town seeks to balance the need for increased wireless communications capacity with the need for reasonable standards to preserve the aesthetic values of the Town and to ensure the safe placement of small wireless facilities. (18-01, Added, 02/20/2018) Section 16-2-2 Definitions The definitions contained in A.R.S. § 9-591 are incorporated by this reference and shall apply to this article as if fully set forth here. (18-01, Added, 02/20/2018) Section 16-2-3 Small Wireless Facilities in the Public Right-of-Way This section permits the installation of small wireless facilities in the right-of-way subject to the following requirements: A. No monopoles, utility poles associated with small wireless facilities, or small wireless facilities shall be collocated, installed, modified, or replaced in the public right-of-way unless the following requirements are met: 1. The applicant participates in a pre-application conference with the Department of Development Services; 2. An Application is submitted to and approved by the Town pursuant to this section; 3. All Town requirements as set forth in this article are met; Art. 16-2 Small Wireless Facilities | Fountain Hills Town Code Page 1 of 3 The Fountain Hills Town Code is current through Ordinance 24-19, passed October 1, 2024. 4. All other applicable codes and requirements are met; 5. A Wireless Facility License Agreement is signed; and 6. A Wireless Facility Encroachment Permit issued. B. The collocation, installation, modification, maintenance, and replacement of monopoles, utility poles associated with small wireless facilities, or small wireless facilities in the public right-of-way shall be subject to and comply with reasonable requirements, including the Wireless Facilities Standard Terms and Conditions, the Town’s Design Standards and Guidelines, and any site-specific requirements developed based upon consultation with the Town through the site review and permitting process. C. The Development Services Department shall prescribe and provide a regular form of Application for use by applicants for the collocation, installation, modification, maintenance, and replacement of monopoles, utility poles associated with small wireless facilities, or small wireless facilities in the public right-of-way. The Application shall include such information and details as the Department deems necessary to establish the exact location, nature, dimensions, duration and purpose of the proposed monopoles, utility poles, or small wireless facilities in the public right-of-way. D. The Application shall be accompanied by maps, sketches, diagrams or similar exhibits. The accompanying materials shall be of the size and in the quantity prescribed by the Development Services Department and of sufficient clarity to illustrate the location, dimensions, nature and purpose of the proposed monopoles, utility poles associated with small wireless facilities, or small wireless facilities in the public right-of-way and its relation to existing and proposed facilities in the right-of-way. E. No changes shall be made in the location, dimensions, character or duration of the monopoles, utility poles associated with small wireless facilities, or small wireless facilities in the public right-of-way as granted by the permit except upon written authorization of the Development Services Department. F. Approval of an Application is contingent upon the applicant demonstrating compliance with the Wireless Facilities Standard Terms and Conditions, the Town’s Design Standards and Guidelines, and any site-specific requirements developed based upon consultation with the Town through the site review and permitting process. G. An applicant may appeal denial of an Application to the Town Council by following this procedure: Within seven calendar days of the denial of an Application, an applicant shall file a notice of appeal, in writing, with the Town Clerk. The Town Council may affirm, modify, or reverse the action from which the appeal is taken. H. Upon approval of an Application, a Wireless Facility Encroachment Permit will be issued for each monopole, utility pole associated with small wireless facilities, or small wireless facility included in the Application. However, nothing in this article shall be construed to exempt monopoles, utility poles associated with small wireless facilities, or small wireless facilities in the public right-of-way from the requirements of Article 16-1 as an encroachment in the public right-of-way. Art. 16-2 Small Wireless Facilities | Fountain Hills Town Code Page 2 of 3 The Fountain Hills Town Code is current through Ordinance 24-19, passed October 1, 2024. The Fountain Hills Town Code is current through Ordinance 24-19, passed October 1, 2024. Disclaimer: The town clerk’s office has the official version of the Fountain Hills Town Code. 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 General Code. I. The collocation, installation, modification, maintenance, and replacement of monopoles, utility poles associated with small wireless facilities, or small wireless facilities shall be subject to rates and fees pursuant to Section 16-2-4 of this article. (18-01, Added, 02/20/2018) Section 16-2-4 Rates and Fees A. The Town Council shall, by ordinance or resolution, set and amend any rate, rate component, charge, or fee authorized by state law for the use of the public right-of-way and Town utility poles in connection with small wireless facilities including: 1. Fees for special use permit applications 2. Fees for collocation applications; 3. Fees for the use of the right-of-way; 4. Rates for the use of the Town’s utility poles; 5. Fees for Encroachment Permit Applications; 6. Fees to recover legal costs resulting from enforcement to any noncompliance including, but not limited to, administrative expenses, investigation, testing, legal proceedings and filings, and continued monitoring; and 7. Other fees as the Town may determine necessary to carry out the requirements contained herein. B. All rates and fees set or amended pursuant to this article shall be reasonable and shall not exceed the amounts permitted by state law. C. The Town shall publish and make available its schedule of rates and fees. D. These fees relate solely to the matters covered by this article and are separate from all other fees, fines and penalties chargeable by the Town. (18-01, Added, 02/20/2018) Art. 16-2 Small Wireless Facilities | Fountain Hills Town Code Page 3 of 3 The Fountain Hills Town Code is current through Ordinance 24-19, passed October 1, 2024. RESOLUTION NO. 2018-03 A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, MARICOPA COUNTY, ARIZONA, DECLARING AS A PUBLIC RECORD THAT CERTAIN DOCUMENT FILED WITH THE TOWN CLERK AND ENTITLED "SMALL WIRELESS FACILITIES." BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, AS FOLLOWS: SECTION 1. That certain document entitled "Small Wireless Facilities," attached hereto as Exhibit "A", of which one paper copy and one electronic copy maintained in compliance with Ariz. Rev. Stat. § 44-7041 are on file in the office of the Town Clerk and open for public inspection during non -nal business hours, is hereby declared to be a public record, and said copies are ordered to remain on file with the Town Clerk. PASSED AND ADOPTED by the Mayor and Council of the Town of Fountain Hills, Maricopa County, Arizona, this 20th day of February, 2018. FOR THE TOWN OF FOUNTAIN HILLS: 4WIN1tee . REVIEWED BY: f Grac y E.eller, own Manager PHOENIX 77018-1 430829v2 ATTESTED TO: Bevelyn J. B d - , Town Clerk APPROVED AS TO FORM: Fri J isman, Town Attorney CERTIFICATION I, Bevelyn J. Bender, the duly appointed Clerk of the Town of Fountain Hills, Arizona, do hereby certify that the above and foregoing Resolution No. 2018-03 was duly passed by the Mayor and Council of the Town of Fountain Hills, Arizona, at a regular meeting held on February 20, 2018, and the roll call of the vote thereon was Ayes, ) Nays, and that the Mayor and .6 Councilmembers were present thereat. Bevelyn J. nd , Town Clerk Town of Fountain Hills, Arizona PHOENIX 77018-1 430829v2 EXHIBIT A TO RESOLUTION NO. 2018-03 TOWN CODE ARTICLE 16-2] See following pages. PHOENIX 77018-1 430829v2 ARTICLE 16-2 Small Wireless Facilities Section 16-2-1 Purpose The intent and purpose of this article is to facilitate the development and installation of small wireless facilities in the Town of Fountain Hills to supplement existing wireless communications networks and to increase capacity in high demand areas, while simultaneously promoting and preserving the health, safety, and general welfare of the residents of the Town and protecting and preserving the aesthetic qualities of the natural and built environment of the Town. Through this article, the Town seeks to balance the need for increased wireless communications capacity with the need for reasonable standards to preserve the aesthetic values of the Town and to ensure the safe placement of small wireless facilities. Section 16-2-2 Definitions The definitions contained in A.R.S. § 9-591 are incorporated by this reference and shall apply to this article as if fully set forth here. Section 16-2-3 Small Wireless Facilities in the Public Right of Way This section permits the installation of small wireless facilities in the right of way subject to the following requirements: A. No monopoles, utility poles associated with small wireless facilities, or small wireless facilities shall be collocated, installed, modified, or replaced in the public right of way unless the following requirements are met: 1) The applicant participates in apre-application conference with the Department of Development Services; 2) An Application is submitted to and approved by the Town pursuant to this section; 3) All Town requirements as set forth in this article are met; 4) All other applicable codes and requirements are met; 5) A Wireless Facility License Agreement is signed; and 6) A Wireless Facility Encroachment Permit issued. B. The collocation, installation, modification, maintenance, and replacement of monopoles, utility poles associated with small wireless facilities, or small wireless facilities in the public right of way shall be subject to and comply with reasonable requirements, including the 'Wireless Facilities Standard Terms and Conditions, the Town's Design Standards and Guidelines, and any site-specific requirements developed based upon consultation with the Town through the site review and permitting process. C. The Development Services Department shall prescribe and provide a regular form of Application for use by applicants for the collocation, installation, modification, maintenance, and replacement of monopoles, utility poles associated with small wireless facilities, or small PHOENIX 77018-1 430829v2 wireless facilities in the public right of way. The Application shall include such information and details as the Department deems necessary to establish the exact location, nature, dimensions, duration and purpose of the proposed monopoles, utility poles, or small wireless facilities in the public right of way. D. The Application shall be accompanied by maps, sketches, diagrams or similar exhibits. The accompanying materials shall be of the size and in the quantity prescribed by the Development Services Department and of sufficient clarity to illustrate the location, dimensions, nature and purpose of the proposed monopoles, utility poles associated with small wireless facilities, or small wireless facilities in the public right of way and its relation to existing and proposed facilities in the right-of-way. E. No changes shall be made in the location, dimensions, character or duration of the monopoles, utility poles associated with small wireless facilities, or small wireless facilities in the public right of way as granted by the permit except upon written authorization of the Development Services Department. F. Approval of an Application is contingent upon the applicant demonstrating compliance with the Wireless Facilities Standard Terms and Conditions, the Town's Design Standards and Guidelines, and any site-specific requirements developed based upon consultation with the Town through the site review and permitting process. G. An applicant may appeal denial of an Application to the Town Council by following this procedure: Within seven calendar days of the denial of an Application, an applicant shall file a notice of appeal, in writing, with the Town Clerk. The Town Council may affirm, modify, or reverse the action from which the appeal is taken. H. Upon approval of an Application, a Wireless Facility Encroachment Permit will be issued for each monopole, utility pole associated with small wireless facilities, or small wireless facility included in the Application. However, nothing in this article shall be construed to exempt monopoles, utility poles associated with small wireless facilities, or small wireless facilities in the public right of way from the requirements of Article 16-1 as an encroachment in the public right of way. I. The collocation, installation, modification, maintenance, and replacement of monopoles, utility poles associated with small wireless facilities, or small wireless facilities shall be subject to rates and fees pursuant to Section 16-2-4 ofthis article. Section 16-2-4 Rates and Fees A. The Town Council shall, by ordinance or resolution, set and amend any rate, rate component, charge, or fee authorized by state law for the use of the public right of way and Town utility poles in connection with small wireless facilities including: 1) Fees for special use permit applications 2) Fees for collocation applications; PHOENIX 77018-1 430829v2 3) Fees for the use of the right of way; 4) Rates for the use of the Town's utility poles; 5) Fees for Encroachment Permit Applications; 6) Fees to recover legal costs resulting from enforcement to any noncompliance including, but not limited to, administrative expenses, investigation, testing, legal proceedings and filings, and continued monitoring; and 7) Other fees as the Town may determine necessary to carry out the requirements contained herein. B. All rates and fees set or amended pursuant to this article shall be reasonable and shall not exceed the amounts permitted by state law. C. The Town shall publish and make available its schedule of rates and fees. D. These fees relate solely to the matters covered by this article and are separate from all other fees, fines and penalties chargeable by the Town. PHOENIX 77018-1 43082M RESOLUTION NO. 2018-18 A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, ADOPTING THE WIRELESS FACILITY LICENSE AGREEMENT AND THE WIRELESS FACILITIES STANDARD TERMS AND CONDITIONS FOR LOCATING WIRELESS FACILITIES WITHIN TOWN RIGHTS-OF-WAY, THE 2018 TOWN OF FOUNTAIN HILLS WIRELESS FACILITIES IN THE RIGHT-OF-WAY DESIGN STANDARDS AND GUIDELINES, AND AMENDING THE TOWN COMPREHENSIVE FEE SCHEDULE; AND DECLARING AN EMERGENCY. BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, as follows: SECTION 1. That the Wireless Facility License Agreement is hereby approved in the form as set forth in Exhibit "A", attached hereto and incorporated herein by reference. SECTION 2. That the Wireless Facilities Standard Terms and Conditions are hereby approved in the form as set forth in Exhibit "B", attached hereto and incorporated herein by reference. SECTION 3. That the 2018 Town of Fountain Hills Wireless Facilities in the Right-of-Way Design Standards and Guidelines are hereby approved in the form as set forth in Exhibit "C", attached hereto and incorporated herein by reference. SECTION 4. That the proposed amendments to the Fee Schedule, initially posted as Development Services Department Fees, are now included in Public Works Department Fees as Encroachment/Engineering Permit Fees. SECTION 5. That the Town Comprehensive Fee Schedule, of the Fiscal Year 2017-2018 Adopted Budget is hereby amended by adding the line items set forth in Exhibit"D", attached hereto and incorporated herein by reference. SECTION 6. That the Mayor, the Town Manager, the Town Clerk and the Town Attorney are hereby authorized and directed to execute all documents and take all steps necessary to carry out the purpose and intent of this Resolution. SECTION 7. Because of the urgent need for the implementation of the Town's regulations concerning small wireless facilities, and the immediate operation of this Resolution is necessary for the preservation of the public peace, health and welfare, an emergency is hereby declared to exist and this Resolution shall be in full force and effect I 400, from and after its passage and approval by the Mayor and Council as required by law and 1 is hereby exempt from the referendum provisions of the Constitution and laws of the State of Arizona. PASSED AND ADOPTED by the Mayor and Council of the Town of Fountain Hills, February 20, 2018. FOR THE TOWN OF FOUNTAIN HILLS:ATTESTED TO: d M. Ka nagh Bevelyn J. B de own Clerk REVIEWED BY: APPROVED AS TO FORM: OZ:›47/1N .. •VA•AIL--- Grady E. Miller, Tawn Manager Fr d isman, Town Attorney 111) 2 CERTIFICATION I, Bevelyn J. Bender, the duly appointed Clerk of the Town of Fountain Hills, Arizona, do hereby certify that the above and foregoing Resolution No. 2018-18 was duly passed by the Mayor and Council of the Town of Fountain Hills, Arizona, at a re lar meeting held on February 20, 2018, and the roll call of the vote thereon was Ayes, 0 Nays, and that the Mayor and 5 Councilmembers were present thereat. Bevelyn J. nder, own Clerk Town of Fountain Hills, Arizona 3 EXHIBIT A TO 416, RESOLUTION NO. 2018-18 Wireless Facility License Agreement] See following pages. II Town License# Wireless Provider's Name: WIRELESS FACILITY LICENSE AGREEMENT THIS WIRELESS FACILITY LICENSE AGREEMENT (the "License Agreement") is made and entered into this day of 20 ("Effective Date"), by and between the Town of Fountain Hills, an Arizona municipal corporation ("Town"), and a Wireless Provider"). RECITALS A. The Town of Fountain Hills "Wireless Facilities Standard Terms and Conditions" sets out various recitals and terms (collectively the "Terms"). B. Town holds interests in certain parcels of land (the "Street Parcels") comprising street Right- of-way within the Town of Fountain Hills. C. This License Agreement allows Wireless Provider to use certain limited portions of Town's specific Street Parcels pursuant to an approved Wireless Facilities Encroachment Permit ("Encroachment Permit"). D. The portions of the Street Parcels that this License Agreement permits Wireless Provider to use (the "Use Areas") are defined in the package of maps and related materials (the "Boundary Plan") attached to each Encroachment Permit Application. E. Wireless Provider desires to install and operate on the Use Areas the wireless telecommunications receiving, processing and transmitting devices and related electronic equipment that is specified on each Site Plan (the "Communications Equipment") subject to the requirements of this License Agreement and associated Encroachment Permit. The Communications Equipment is limited to the actual electronic equipment, portable cabinets for such equipment, enclosures, and antennas ("Antennas") utilized for wireless communications, all as shown on the drawings (the "Site Plans") attached to each Encroachment Permit. Notwithstanding anything in this License Agreement or associated Encroachment Permit to the contrary, the Communications Equipment excludes any item not shown on the approved Site Plan. F. The volume of the Enclosure and the above ground portion of its pad shall be 2 as shown in the Site Plan incorporated into each Encroachment Permit Application and shall be limited as stated on that Site Plan. G. The Street Parcel in each Encroachment Permit Application shall state whether it is currently improved with an electrical, traffic signal, street light, or antenna support pole (the "Utility Pole") which is owned by Town, and the approximate height of the Utility Pole. H. In the Encroachment Permit Application, the Wireless Provider will indicate whether it proposes to use the existing Utility Pole, replace the existing Utility Pole, or install a new Utility Pole that Town or Wireless Provider will own. If the Utility Pole is owned by a third-party, the Wireless Provider shall provide documentation confirming the third-party owners' consent for Wireless Provider's use of the Utility Pole. I. In order to install the Communications Equipment, Wireless Provider desires to construct supporting improvements and perform all other work shown on the Site Plan collectively the "Project") for each site. J. Wireless Provider shall complete the entire Project and put the Communications Equipment in full operation no later than one hundred eighty (180) days after the date of the issuance of the Encroachment Permit (the "Completion Deadline") for each site. K. Town desires to grant to Wireless Provider the right to install, maintain, operate and repair the Communications Equipment (the "Permitted Uses") subject to the requirements of this License Agreement and as specified in each specific Encroachment Permit granted pursuant to this License Agreement. NOW, THEREFORE, for and in consideration of the foregoing, the amounts hereinafter to be paid by Wireless Provider, and the covenants and agreements contained herein to be kept and performed by Wireless Provider, and other good and valuable consideration, Town and Wireless Provider agree as follows: I.LICENSE TERMS 1 . License Terms. Town hereby grants to Wireless Provider a license to use the Use Areas as follows: 1.1 Terms Incorporated. The Terms (as defined in the Recitals above) are all incorporated by reference as if set out in full herein. WIRELESS PROVIDER WARRANTS AND REPRESENTS THAT WIRELESS PROVIDER HAS READ AND AGREES TO THE TERMS. Capitalized terms used but not defined in this License Agreement shall have the meanings assigned by the Terms. 1.2 Terms Application. Wireless Provider shall comply with all of the Terms. Without limitation, the Terms shall apply to the Use Areas as follows: 3 1.2.1 Wireless Provider's Boundary Plan Responsibility. It is Wireless Provider's responsibility before submitting any Encroachment Permit Application authorized by this License Agreement to ensure that the Boundary Plan is prepared as follows: 1.2.1.1 Wireless Provider shall insure that the Boundary Plan clearly depicts all portions of the Street Parcel that Wireless Provider desires to use and that each such area is clearly shown on the Boundary Plan and labeled to clearly indicate which of the categories of Exclusive Areas or Shared Areas set out in the Terms applies to the area. 1.2.1.2 If the Boundary Plan does not clearly show any portion of the Street Parcel as one of the categories of Exclusive Areas or Shared Areas set out in the Terms, then such portion of the Street Parcel is not part of the Use Areas and Wireless Provider may not use such portion of the Street Parcel, even if the use is discussed in the Terms. 1.2.1.3 Any Exclusive Area or Shared Area described or named in the Terms that is not clearly depicted and correctly labeled on the Boundary Plan is excluded from this License Agreement and Encroachment Permit and unavailable for Wireless Provider's use. 1.2.1.4 Any portion of the Boundary Plan or the Site Plan that indicates a Wireless Provider's use of the Street Parcel that is not one of the Exclusive Areas or Shared Areas specifically enumerated in the Terms is excluded from this License Agreement and Encroachment Permit and not available for Wireless Provider's use. 1.2.1.5 All work, improvements and equipment within an Exclusive Area or Shared Area is limited to the purposes enumerated in the Terms for that particular Exclusive Area or Shared Area. 1.2.1.6 This License Agreement and Encroachment Permit does not allow use of any land other than the specified portions of the Street Parcel that are Exclusive Areas or Shared Areas. 1.2.1.7 Any change to the Boundary Plan after Town issues the Encroachment Permit is void unless it is memorialized in a formal amendment to this License Agreement. 1.2.2 Site Plan. It is Wireless Provider's responsibility before submitting any Encroachment Permit Application authorized by this License Agreement to ensure that the Site Plan correctly shows the work that Wireless Provider intends to perform, that the Site Plan correctly shows all improvements and equipment that Wireless Provider intends be located on the Use Areas, that the Site Plan shows no work, improvements or equipment outside the Exclusive Areas and Shared Areas properly depicted and labeled on the Boundary Plan, and that all work, improvements and equipment is encompassed within the purposes enumerated in the Terms for that particular Exclusive Area or Shared Area. Any 4 work, improvements or equipment not conforming to all the foregoing is prohibited, even if it is clearly shown on the Site Plan or discussed in the Terms. Any refinement or other change to the Site Plan after Town issues a Encroachment Permit is void unless Wireless Provider obtains Town's approval of the change pursuant to the plans approval processes set out in the Terms and pursuant to all applicable regulatory requirements. 1.2.3 Term of Agreement. The term of this Agreement is as stated in the Terms. 1.2.4 Wireless Provider's Payments. Wireless Provider shall pay to Town the amounts described in the Terms. 1.2.5 Use Restrictions. Wireless Provider shall comply with the use restrictions set out in the Terms. 1.2.6 Encroachment Permits. This Agreement constitutes an "Encroachment Permit" under Chapter 16-1-4.F of the Town of Fountain Hills Town Code to the extent of granting permission for the Communications Equipment to exist on the Street Parcel but not to allow any construction or other work of any description in the Right-of-way or to allow obstruction of traffic or alteration of Town's improvements. Before performing any work on the Right-of-way, Wireless Provider shall obtain the following additional encroachment permits, as applicable: 41161, 1.2.6.1 Permission to work in the Right-of-way. 1.2.6.2 Traffic control plan. 1.2.6.3 Any other applicable permits regarding work in the Right-of- way. 1.2.7 Compliance with Law. Wireless Provider acknowledges that this License Agreement or any issued Encroachment Permit does not constitute, and Town has not promised or offered, any type of waiver of, or agreement to waive (or show any type of forbearance, priority or favoritism to Wireless Provider with regard to) any law, ordinance, power, regulation, tax, assessment or other legal requirement now or hereafter imposed by the Town of Fountain Hills or any other governmental body upon or affecting Wireless Provider's use of the Street Parcel. For example, Wireless Provider shall comply with all zoning, building and Right-of-way codes, ordinances and policies. 2. Permitted Uses. Town hereby grants to Wireless Provider the right to install, maintain, operate and repair the Communications Equipment (the "Permitted Uses") subject to the requirements of this License Agreement and as specified in each specific Encroachment Permit granted pursuant to this License Agreement. 3. Annual Blanket Encroachment Permit for Incidental Work at a Site: On or before January 1 of each calendar year, the Wireless Provider shall submit an application for a 5 Blanket Encroachment Permit to perform incidental and routine maintenance work at any site in the Town's Right-of-way. The Blanket Encroachment Permit shall only cover such activities as checking and inspecting communications equipment and antennas, changing circuit packs and cards, cleaning the cabinets and immediate area, and other similar activity. The Blanket Encroachment Permit does not include any work that requires the replacement of cabinets, antennas, or communications equipment, or any excavation, trenching, or concrete or roadway cutting within the Boundary Plan use area. 4. Town's Initial Information. Unless and until Town gives notice otherwise, Town's contract administrator shall be the Development Services Director. 5. Wireless Provider's Initial Information. Unless and until Wireless Provider gives notice otherwise: 5.1 Wireless Provider's network operations center phone number as required by the Terms is ( 0 0 5.2 Wireless Provider's address for notices as required by the Terms shall be: L 5.3 Wireless Provider's billing address for routine billing invoices as required by the Terms shall be: 7 . EXECUTED as of the date first given above. TOWN: Town of Fountain Hills, an Arizona municipal corporation By: Town Manager WIRELESS PROVIDER: a By: Name: Its: 40 0 EXHIBIT B TO RESOLUTION NO. 2018-18 Wireless Facilities Standard Terms and Conditions] See following pages. 9 WIRELESS FACILITIES STANDARD TERMS AND CONDITIONS The Common Council of the Town of Fountain Hills ("Town") has adopted the following recitals, terms and conditions (collectively, the "Terms") to govern the use of Town owned right-of-way for the placement of wireless facilities by a Wireless Provider as defined by the Arizona Revised Statutes, Section 9-591, et. seq. These Terms are effective as of 2018, and may be amended only upon approval of the Town Council. RECITALS a. Town owns the public street and alley rights-of-way and public utility easements within the boundaries of the Town of Fountain Hills that are designed for use by utility companies for installation, operation and repair of water, electrical and other utilities pursuant to franchise, licenses or other agreements between utility companies and Town (collectively the "Right-of-way"). b. Town is the owner of certain street lights and traffic signals (individually a "Utility Pole" or collectively "Utility Poles") located in the Right-of-way (as hereinafter defined). c. Pursuant to A.R.S. 9-591, et seq., one or more Wireless Providers may desire to establish and operate a network of Small Wireless Facilities to enhance wireless service coverage within the Town. d. Town anticipates that one or more Wireless Providers may desire to install Small Wireless Facilities on the Town's Utility Poles, install new and replacement Utility Poles capable of supporting Small Wireless Facilities, and in certain cases and where permitted by the Town's Code, install other Small Wireless Facilities or monopole towers in the Right-of-way. e. Wireless Providers agree to comply with the Town's Right-of-way use requirements as provided in these Terms. Furthermore, Wireless Providers agree to file the appropriate applications and secure the appropriate licenses and permits required by the Town for placement of Wireless Facilities within the Town's boundaries. f. Town Utility Poles approved for Small Wireless Facilities shall retain their primary governmental purpose, and use of the Right-of-way by Wireless Providers shall not interfere with the Town's use thereof. The primary purpose of these Terms is to protect the health, safety and welfare of the public, and to protect the value of and physical integrity of publicly-owned property and assets. g. Because Town's existing streetlight poles and traffic signal poles are not designed to safely support the additional weight and stress of Wireless Facilities, Wireless Service Providers shall be required to provide poles designed to support these facilities to replace existing poles prior to attaching Wireless Facilities. TERMS to 1. DEFINITIONS. For the purposes of the Terms: Antenna" means communications equipment that transmits or receives electromagnetic radio frequency signals and that is used in providing wireless services. Application Fee" means the Town's encroachment permit application, review and other fees related to the issuance of the permit. Base Use Fee" means the amount that the Company shall pay to Town for each year of this license for use of Town Right-of-way and Town-owned Pole, as set out in the current fee schedule. Communications Equipment" means any and all electronic equipment at the Small Wireless Facility location that processes and transports information from the antennas to the Wireless Provider's network. Competing Users" means entities that own the water pipes, cables and wires, pavement, and other facilities which may be located within the Right-of-way. The Competing Users include without limitation, the Town, the State of Arizona and its political subdivisions, the public, and all manner of utility companies and other existing or future users of the Use Areas. Encroachment Permit" means a permit issued pursuant to Chapter 16 of the Fountain Hills Town Code allowing a a utility pole, monopole, small wireless facility or wireless support structure to be placed in the Town's Right-of-way pursuant to the Wireless Provider's License Agreement. FCC" means the Federal Communications Commission. FCC Rules" means all applicable radio frequency emissions laws and regulations. FCC OET Bulletin 65" means the FCC's Office of Engineering & Technology Bulletin 65 that includes the FCC Radio Frequency Exposure Guidelines. License Agreement" means the license incorporating these Terms for Wireless Providers to install and operate Wireless Facilities in the Town's Right-of-way. Monopole" means a wireless support structure that is not more than forty inches in diameter at the ground level and that has all of the wireless facilities mounted on the pole or contained inside of the pole. RF" means radio frequency. II RF Letter" means a letter attesting to the Wireless Provider's compliance with FCC RF exposure guidelines from the Wireless Provider's senior internal 11 engineer. Right-of-way" as defined for wireless sites in A.R.S. §9-591(18) means the area on, below or above a public roadway, highway, street, sidewalk, alley, or utility easement. Right-of-way does not include a Federal Interstate Highway, a state highway or state route under the jurisdiction of the Department of Transportation, a private easement, property that is owned by a special taxing district, or a utility easement that does not authorize the deployment sought by the wireless provider. Site Documents" means the depiction of the use area, schematic plans and map showing location of the installation of the Wireless Facility in the Right-of- way, including but not limited to the title report of the use area, vicinity map, site plan, elevations, technical specifications and the cubic feet of the non- antenna wireless equipment. Small Wireless Facility" as defined in A.R.S. §9-591(19), means a Wireless Facility that meets both of the following qualifications: a. All antennas are located inside an enclosure of not more than six (6) cubic feet in volume or, in the case of an antenna that has exposed elements, the antenna and all of the antenna's exposed elements could fit within an imaginary enclosure of not more than six (6) cubic feet in volume. b. All other wireless equipment associated with the facility is cumulatively not more than twenty-eight (28) cubic feet in volume, or fifty (50) cubic feet in volume if the equipment was ground mounted before the effective date of this section. The following types of associated ancillary equipment are not included in the calculation of equipment volume pursuant to this subdivision: An electric meter. ii.Concealment elements. iii.A telecommunications demarcation box. iv.Grounding equipment. v.A power transfer switch. vi.A cutoff switch. vii.Vertical cable runs for the connection of power and other services. Supplemental Parcel Agreement" means an agreement authorizing the Wireless Provider to use property outside of the Town's Right-of-way, whether 12 owned by the Town or a third-party. Third Party Areas" means the portions of the Right-of-way, such as canal crossings or other areas that for any reason have limited Right-of-way dedications or that have regulatory use restrictions imposed by a third party. Violation Use Fee" means the types of fees that the Town has available to remedy certain breaches of the License Agreement by a Wireless Provider. Wireless Facility" as defined in A.R.S. §9-591(22): a. Means equipment at a fixed location that enables wireless communications between user equipment and a communications network, including both of the following: Equipment associated with wireless communications. ii. Radio transceivers, antennas, coaxial or fiber-optic cables, regular and backup power supplies and comparable equipment, regardless of technological configuration. b. Includes small wireless facilities. c. Does not include the structure or improvements on, under or within which the equipment is collocated, wireline backhaul facilities, coaxial or fiber-optic that is between wireless support structures or utility poles or coaxial or fiber-optic cable that is otherwise not immediately adjacent to, or directly associated with, an antenna. d. Does not include Wi-Fi radio equipment described in Section 9-506, Subsection I or microcell equipment described in Section 9-584, Subsection E. Wireless Infrastructure Provider" as defined in A.R.S. §9-591(23) means any person that is authorized to provide telecommunications service in this state and that builds or installs wireless communications transmission equipment, wireless facilities, utility poles or monopoles but that is not a wireless service provider. Wireless Infrastructure Provider does not include a special taxing district. Wireless Provider" as defined in A.R.S. §9-591(24) means a Cable Operator, Wireless Infrastructure Provider or Wireless Services Provider. Wireless Provider's Improvements" means all improvements installed by the Wireless Provider, including, but not limited to: all elements of the Wireless ow Facility, all screening elements, any landscaping plants or materials, and any 13 other elements provided by the Wireless Provider in the approved License Agreement. Wireless Services" as defined in A.R.S. §9-591(25) means any services that are provided to the public and that use licensed or unlicensed spectrum, whether at a fixed location or mobile, using wireless facilities. Wireless Services Provider" as defined in A.R.S. §9-591(26) means a person that provides wireless services. Wireless Services Provider does not include a special taxing district. Wireless Support Structure" as defined in A.R.S. §9-591(27): a) Means: A freestanding structure, such as a monopole. ii.A tower, either guyed or self-supporting. iii.A sign or billboard. iv.Any other existing or proposed structure designed to support or capable of supporting small wireless facilities. v.Does not include a utility pole. 2. USE AREAS. Upon approval of a License Agreement, Town grants to Wireless Service Provider the right to install Wireless Facilities in the Town's Right-of-way upon issuance of an Encroachment Permit for each Use Area as set forth below: 2.1 Limitations. Notwithstanding anything herein to the contrary, the Use Areas include and are limited to only certain areas that Wireless Provider is permitted to exclusively use and occupy (the "Exclusive Area") and certain areas that Wireless Provider is permitted to use on a shared basis (the "Shared Area"). The Use Areas are defined by the Boundary Plan. 2.2 Use Areas Boundary. The Use Areas is the smallest geometric shape that includes the Exclusive Areas and the Shared Areas. The Use Areas exclude other parts of the Street Parcel or and all other land. Wireless Provider shall not occupy or use any other portion of the Street Parcel or adjoining lands. An approved License Agreement or any associated Encroachment Permit(s) does not allow any use by Wireless Provider of land outside the Street Parcel. If any portion of Wireless Provider's work, improvement or equipment is to be located on other land, then such work, improvements and equipment are prohibited unless Wireless Provider first obtains from the owner of said land including Town, if applicable) a Supplemental Parcel Agreement allowing such work, improvements and equipment. 14 2.3 Exclusive Areas. The Exclusive Areas are limited to the following, if and as defined by the Boundary Plan: 2.3.1 The land area defined as "Enclosure" on the Boundary Plan to be used by Wireless Provider solely for the enclosure housing the electronic ground equipment shown on the Site Plan the "Enclosure"). Such area is confined to the actual area occupied by the exterior structure and the interior of the enclosure. If the Boundary Plan does not show a clearly defined and correctly labeled "Enclosure" area, then no enclosure area is available for Wireless Provider's use and any enclosure for Wireless Provider's use must be located outside the Street Parcel and authorized by a Supplemental Parcel Agreement. 2.3.2 The area on the Pole defined as "Antennas" on the Boundary Plan to be used by Wireless Provider solely for mounting the Antennas. Such area is confined to the Town approved elevations and locations actually occupied by the Antennas and their supporting brackets. If the Boundary Plan does not show a clearly defined and correctly labeled "Antennas" area, then no main antennas area is available for Wireless Provider's use and any main antennas for Wireless Provider's use must be located outside the Street Parcel and authorized by a Supplemental Parcel Agreement. 2.4 Shared Areas. Shared Areas are limited to the following areas, if and as defined by the Boundary Plan: 2.4.1 A motor vehicle Parking space (the "Parking Space") at the Parking Space" location described on the Boundary Plan to be used by Wireless Provider solely for parking a service vehicle to service the Communications Equipment and for ingress and egress to that Parking Space. 2.4.2 No temporary construction area is provided by these Terms, an approved License Agreement or Encroachment Permit. Wireless Provider must obtain from Town a separate written document giving Wireless Provider permission to work in the Right- of-way, as described elsewhere herein. 2.4.3 An underground cable route (the "Signal Route") labeled as the "Signal Route" described on the Boundary Plan from the Enclosure to the Antenna to be used by Wireless Provider solely for underground radio frequency lines between the Enclosure and the Antenna. Notwithstanding the preceding sentence, the portion of the Signal Route upon the Pole shall not be underground but shall be within the Pole. If the Boundary Plan does not show a clearly IDdefined and correctly labeled "Signal Route" area, then no signal route area is available for Wireless Provider's use and any signal 15 route for Wireless Provider's use must be separately authorized by Town. 2.5 Power and Telephone Service. Nothing herein grants permission for Wireless Provider to use any portion of power, telephone or other service routes, if any. Wireless Provider acknowledges that use of the public street Right-of-way or public utility easements for these purposes, if any, is governed by Town's normal Right-of-way rules and policies, and by the franchise agreements between the Town and the electrical and telephone service providers. 2.6 Rights in Adjacent Land. Wireless Provider's rights are expressly limited to the real property defined as the "Use Areas" an issued Encroachment Permit. Without limitation, in the event any public Right-of-way or other public or private property at or adjacent to the Use Areas is owned, dedicated, abandoned or otherwise acquired, used, improved or disposed of by Town, such property shall not accrue to Wireless Provider but shall be the Town's property and not subject to the Use Areas. 2.7 Variation in Area. In the event the Use Areas consist of more or less than any stated area, Wireless Provider's obligations hereunder shall not be increased or diminished. 2.8 Condition of Title. Wireless Provider shall not have power to amend, modify, terminate or otherwise change the Site Documents or create new Site Documents. 2.8.1 Town does not warrant its own or any other person's title to or rights to use the Use Areas or any other property. 2.8.2 Wireless Provider shall pay, indemnify, defend and hold harmless Town and its agents and representatives of, from and against any and all claims, demands, damages, expenses, interest or penalties of any kind or nature whatsoever, including attorneys', arbitrators' and experts' fees and court costs that arise from or relate to Wireless Provider's non-compliance with the Site Documents. 2.9 Condition of Use Areas. The Use Areas are being made available in an as is" condition without any express or implied warranties of any kind, including without limitation any warranties or representations as to their condition or fitness for any use. 2.10 No Real Property Interest. Notwithstanding any provision hereof to the contrary, and notwithstanding any negotiation, correspondence, course of performance or dealing, or other statements or acts by or between the parties, Wireless Provider's rights herein are limited to use and occupation of the Use Areas for the Permitted Uses. 16 2.11 Limited Rights in Use Areas. Wireless Provider's rights in the Use Areas are limited to the specific rights expressly granted in Wireless Provider's approved License Agreement. 2.12 Reserved Right and Competing Users and Activities. Notwithstanding anything herein to the contrary, Town specifically reserves to itself and excludes from any Encroachment Permit a non-exclusive delegable right (the "Reserved Right") over the entire Use Areas for all manner of real and personal improvements and for streets, sidewalks, trails, landscaping, utilities and every other land use of every description. Without limitation: 2.12.1 Competing Users. Wireless Provider accepts the risk that Town and others (the "Competing Users") may now or in the future install their facilities in the Use Areas in locations that make parts of the Right-of-way unavailable for Wireless Provider's use. 2.12.2 Competing Activities. Wireless Provider accepts the risk that there may now or in the future exist upon the Use Areas all manner of work and improvements upon the Use Areas (the Competing Activities"). The Competing Activities include without limitation any and all laying construction, erection, installation, use, operation, repair, replacement, removal, relocation, raising, lowering, widening, realigning or other dealing with any or all of the following, whether above, upon or below the surface of the Use 4110 Areas and whether occasioned by existing or proposed uses of the Right-of-way or existing or proposed uses of adjoining or nearby land: 2.12.2.1 All manner of streets, alleys, sidewalks, trails, ways, traffic control devices, subways, tunnels, trains and gates of every description, and all manner of other transportation facilities and their appurtenances. 2.12.2.2 All manner of pipes, wires, cables, conduits, sewers, pumps, valves, switches, conductors, connectors, poles, supports, access points and guy wires of every description, and all manner of other utility facilities and their appurtenances. 2.12.2.3 All manner of drains, bridges, viaducts, overpasses, underpasses, culverts, markings, balconies, porches, overhangs and other encroachments of every description and all manner of other facilities and their appurtenances. 2.12.2.4 All other uses of the Right-of-way that Town may permit from time to time. 40 17 2.12.3 Town's Rights Cumulative. All of Town's Reserved Rights under various provisions of the License Agreement, these Terms and Encroachment Permits shall be cumulative to each other. 2.12.4 Use Priorities. These Terms do not grant to Wireless Provider or establish for Wireless Provider any exclusive rights or priority in favor of Wireless Provider to use the Use Areas. Wireless Provider shall not obstruct or interfere with or prevent any Competing User from using the Use Areas. 2.12.5 Regulation. Town shall have full authority to regulate use of the Use Areas and to resolve competing demands and preferences regarding use of the Use Areas and to require Wireless Provider to cooperate and participate in implementing such resolutions. Without limitation, Town may take any or all of the following into account in regulating use of the Use Areas: 2.12.5.1 All timing, public, operational, financial and other factors affecting existing and future proposals, needs and plans for Competing Activities. 2.12.5.2 All other factors Town may consider relevant, whether or not mentioned in the License Agreement, these Terms and Encroachment Permit(s). 2.12.5.3 Differing regulatory regimes or laws applicable to claimed rights, public benefits, community needs and all other factors relating to Competing Users and Competing Activities. 2.12.6 Communications Equipment Relocation. Upon one hundred eighty (180) days' notice from Town, Wireless Provider shall temporarily or permanently relocate or otherwise modify the Communications Equipment Relocation (the "Relocation Work") as follows: 2.12.6.1 Wireless Provider shall perform the Relocation Work at its own expense when required by Town's town manager or designee. 2.12.6.2 The Relocation Work includes all work determined by Town to be necessary to accommodate Competing Activities, including without limitation temporarily or permanently removing, protecting, supporting, disconnecting or relocating any portion of the Communications Equipment. 0 2.12.6.3 Town may perform any part of the Relocation Work that has not been performed within the allotted 18 time. Wireless Provider shall reimburse Town for its actual costs in performing any Relocation Work. Town has no obligation to move Wireless Provider's, Town's or others' facilities. 2.12.6.4 Town and not Wireless Provider shall be entitled to use any of Wireless Provider's facilities that are abandoned in place or that are not relocated on Town's request. 2.12.6.5 All Relocation Work shall be subject to and comply with all other provisions of the License Agreement. 2.12.7 Disruption by Competing Users. Neither Town nor any agent, contractor or employee of Town shall be liable to Wireless Provider, its customers or third parties for any service disruption or for any other harm caused them or the Communications Equipment due to Competing Users or Competing Activities. 2.12.8 Emergency Disruption by Town. Town may remove, alter, tear out, relocate or damage portions of the Communications Equipment in the case of fire, disaster, or other emergencies if Town's town manager or designee deems such action to be reasonably necessary under the circumstances. In such event, neither Town nor any agent, contractor or employee of Town shall be liable to Wireless Provider or its customers or third parties for any harm so caused to them or the Communications Equipment. When practical, Town shall consult with Wireless Provider in advance to assess the necessity of such actions and to minimize to the extent practical under the circumstances damage to and disruption of operation of the Communications Equipment. In any event, Town shall inform Wireless Provider after such actions. Wireless Provider's work to repair or restore the Communications Equipment shall be Relocation Work. 2.12.9 Public Safety. If the Communications Equipment or any other Wireless Provider equipment, improvements or activities present any immediate hazard or impediment to the public, to Town, to Town's equipment or facilities, to other improvements or activities within or without the Use Areas, or Town's ability to safely and conveniently operate the Right-of-way or perform Town's utility, public safety or other public health, safety and welfare functions, then Wireless Provider shall immediately remedy the hazard, comply with Town's requests to secure the Street Parcel, and otherwise cooperate with Town at no expense to Town to remove any such hazard or impediment. Wireless Provider's work crews shall report the Use Areas within four (4) hours of any request by Town under this paragraph (the "RF Safety Paragraph"). 19 2.13 Third Party Permission. There may be portions of the Right-of-way or other areas that for any reason have limited Right-of-way dedications or that have regulatory use restrictions imposed by a third party ("Third Party"). Areas subject to such restrictions or regulations by Third Parties are referred to as Third Party Areas" and communications equipment may not be built without permission from the Third Party or Third Parties that have property rights or regulatory authority over a specific Third Party Area. Wireless Provider's right to use any Use Areas shall be suspended, but not its obligations with respect thereto, during any period that a Third Party Permission is not in effect. 3.DURATION; EXTENSIONS. 3.1 Term. The original term of each License Agreement shall be for a period of ten (10) years commencing on the effective date stated therein ("Initial Term"). The Term of any associated Encroachment Permits issued to Wireless Provider shall be the same as Wireless Provider's approved License Agreement. 3.2 Extensions. The term of the License Agreement may be extended for one (1) additional ten (10) year period ("Extension Term") subject to consent by Town and Wireless Provider, which either may withhold in its sole and absolute discretion. Both Town and Wireless Provider shall be deemed to have elected to extend unless Town or Wireless Provider, respectively, gives notice to the contrary to the other at least ninety (90) days prior to the end of the initial Term. 3.3 Holding Over. In any circumstance whereby Wireless Provider would remain in possession or occupancy of the Use Areas after the expiration of this License Agreement (as extended, if applicable), such holding over shall not be deemed to operate as a renewal or extension of the License Agreement or Encroachment Permits, but shall only create a use right from month to month that may be terminated at any time by Town upon thirty (30) days' notice to Wireless Provider, or by Wireless Provider upon sixty (60) days' notice to Town. 3.4 Town's Right to Cancel. Notwithstanding anything contained herein to the contrary, Town shall have the unconditional right, with or without cause, to terminate any Encroachment Permit for reasons including but not limited to street widening, Right-of-way abandonment, or development that may impact the location of the site, upon one hundred eighty (180) days' prior written notice given at any time after the first one hundred eighty (180) days. 3.5 Wireless Provider's Right to Cancel. Wireless Provider shall have the unilateral right to terminate any License Agreement without cause upon thirty 30) days' prior written notice. Wireless Provider has no right to terminate any time after an event of default by Wireless Provider has occurred (or an event has occurred that would become a default after passage of time or giving of notice). 20 3.6 Removal and Restoration Obligations. Upon expiration or termination of any License Agreement or Encroachment Permit, or any abandonment of any Wireless Facilities, Wireless Provider shall remove its Wireless Facilities from the Right-of-way, at is sole cost and expense as provided in Section 12.4 hereto. 4.WIRELESS PROVIDER'S PAYMENTS. Wireless Provider shall make payments to Town as follows: 4.1 Use Fee Items. Wireless Provider shall pay to Town each of the following separate and cumulative amounts (collectively the "Use Fees"): 4.1.1 An annual amount (the "Base Use Fee"). 4.1.2 An amount (the "Application Fee") based on Wireless Provider's application and permit review and other costs as set out below. 4.1.3 An amount (the "Violation Use Fee") based on certain breaches by Wireless Provider of the License Agreement as set out below. 4.1.4 All other amounts required by the License Agreement. 4.2 Base Use Fee Amount. The amount of Base Use Fee Wireless Provider shall pay to Town for each year of this Agreement shall be the total of all applicable fee line items for wireless communications facilities (including without limitation "antenna base fee" and "ground equipment fee", as applicable) as set out in the then current fee schedule as it may be amended from time to time by Town's town council. 4.3 Application Fee Amount. The amount of the Application Fee for Small Wireless Facilities under A.R.S. § 9-592 shall be Seven Hundred Fifty Dollars 750.00) and the Application Fee for wireless sites under A.R.S. § 9-594 shall be One Thousand Dollars ($1000.00). Nothing herein shall prevent the Town from charging any other applicable fees ordinarily charged by the Town for review of plans, issuance of permits, and inspection of Wireless Provider's work upon the Use Areas (including, without limitation, encroachment permits, traffic control fees, technology fees) as set out in the then current fee schedule as it may be amended from time to time by Town's town council. 4.4 Use Fees Cumulative. All items of Use Fees shall be cumulative and separate from each other. 4.5 Use Fee Schedule. Provider shall pay all Use Fees at the times and in lir the amounts specified by Town's normal processes. Town's failure to collect 21 any item of the Use Fees does not waive Wireless Provider's liability for such Use Fee, nor shall such failure be deemed a waiver by the Town to collect such Use Fee thereafter. 4.6 Letter of Credit. The Initial Letter of Credit amount shall be based upon the Wireless Provider's good faith projection of the number of sites to be constructed within the Town of Fountain Hills during the current calendar year. The Initial Letter of Credit shall be received by the Town before any construction and encroachment permits are issued as follows: 4.6.1 The amount of the letter of credit shall be as follows: Thirty Thousand Dollars ($30,000.00) for up to ten (10) wireless sites; Sixty Thousand Dollars ($60,000) for eleven (11) to twenty (20) wireless sites; One Hundred Five Thousand Dollars ($105,000) for twenty one (21) to thirty five (35) wireless sites; One Hundred Eighty Thousand Dollars ($180,000) for thirty six (36) to sixty (60) wireless sites; Three Hundred Thousand Dollars ($300,000) for sixty one 61) to one hundred (100) wireless sites; Four Hundred Fifty Thousand Dollars ($450,000) for one hundred one (101) to one hundred fifty (150) wireless sites; Six Hundred Seventy Five Thousand Dollars ($675,000) for one hundred fifty one (151) to two hundred twenty five (225) wireless sites; One Million Fifty Thousand Dollars ($1,050,000) for two hundred twenty six (226) to three hundred fifty (350) wireless sites; One Million Five Hundred S Thousand Dollars ($1,500,000) for three hundred fifty one (351) to five hundred (500) wireless sites; Two Million Two Hundred Fifty Thousand Dollars ($2,250,000) for five hundred one (501) to seven hundred fifty (750) wireless sites; and Three Million Dollars 3,000,000) for seven hundred fifty one (751) to one thousand 1,000) wireless sites. If the number of Wireless Provider's wireless sites is more than one thousand (1,000), the Three Million Dollar 3,000,000) letter of credit shall remain in effect and the letter of credit for the wireless sites in excess of one thousand sites shall be calculated using the schedule provided in this subsection. 4.6.2 The Town will determine at least once annually if the number of Wireless Provider's wireless sites that are licensed require that the letter of credit be upgraded to a higher amount. If Town requires a new letter of credit, it shall provide formal notice in writing to the Wireless Provider. The Wireless Provider must provide the new letter of credit within 45 days of receiving written notice. 4.6.3 The letter of credit is a security deposit for Wireless Provider's performance of all of its obligations under these Terms within the Town of Fountain Hills. 0 4.6.4 The letter of credit shall meet the requirements listed on Exhibit "B" attached hereto. 22 4.6.5 Wireless Provider shall provide and maintain the letter of credit during the entire term of the License Agreement as follows: 4.6.5.1 Wireless Provider shall cause the original letter of credit to be delivered to Town's Development Services Director. 4.6.5.2 Wireless Provider shall pay all costs associated with the letter of credit, regardless of the reason or manner such costs are required. 4.6.5.3 Within ten (10) business days after Town gives Wireless Provider notice that Town has drawn on the letter of credit, Wireless Provider shall cause the letter of credit to be replenished to its prior amount. 4.6.6 Town may draw on the letter of credit upon any Event of Default, and in the following circumstances whether or not they are an Event of Default: 4.6.6.1 Wireless Provider fails to cause the letter of credit to be renewed, extended, increased in amount or otherwise maintained as required by these Terms. 4.6.6.2 Wireless Provider fails to make monetary payments as required by these Terms. 4.6.6.3 The issuer of the letter of credit fails to immediately honor a draft on the letter of credit or otherwise repudiates or fails to honor the letter of credit. 4.6.7 Town shall also have such additional rights regarding the letter of credit as may be provided elsewhere in the License Agreement. 4.7 Late Fees. Any fee payable under this Agreement is deemed paid only when Town actually receives good cash payment. Should any fee not be paid on or before the date due, a late fee shall be added to the amount due in the amount of the greater of ten percent (10%) of the amount due, or One Hundred Dollars ($100.00). Furthermore, any fee that is not timely paid shall accrue simple interest at the rate of one and one-half percent (1 1/ 2 %) per month from the date the amount first came due until paid. Wireless Provider expressly agrees that the foregoing represent fair and reasonable estimates by Town and Wireless Provider of Town's costs (such as accounting, administrative, legal and processing costs, etc.) in the event of a delay in payment of the fee. Town shall have the right to allocate payments received from Wireless Provider 40, among Wireless Provider's obligations. 23 4.8 Fee Amounts Cumulative. All amounts payable by Wireless Provider hereunder or under any tax, assessment or other existing or future ordinance, law or other contract or obligations to the Town of Fountain Hills or the State of Arizona shall be cumulative and payable in addition to each other payment required hereunder, and such amounts shall not be credited toward, substituted for, or setoff against each other in any manner. 5. USE RESTRICTIONS. Wireless Provider's use and occupation of the Use Areas shall in all respects conform to all and each of the following cumulative provisions: 5.1 Permitted Uses. Wireless Provider shall use the Use Areas solely for the Permitted Uses and shall conduct no other activity at or from the Use Areas without Town's prior written consent, which may be withheld in Town's sole and absolute discretion. 5.2 Enclosure Use. Wireless Provider shall use the Enclosure solely for locating utility cabinets and housing the Communications Equipment used for the Antennas. 5.3 Small Wireless Facility. Wireless Provider may install a Small Wireless Facility, as defined in A.R.S. 9-591(19), to be limited to: 5.3.1 All antennas, including the antenna's exposed elements, are located inside an enclosure of not more than six (6) cubic feet in volume, and 5.3.2 All other wireless equipment associated with the facility is cumulatively not more than twenty-eight (28) cubic feet in volume. 5.3.3. The following ancillary equipment is not included in the equipment volume: electric meter, concealment elements, telecom demarcation box, grounding equipment, power transfer switch, cutoff switch, and vertical cable runs. 5.4 Communications Operations Restriction. Pursuant to A.R.S. 9- 592(F)(3), Wireless Provider shall not install, operate, or allow the use of equipment, methodology or technology that interferes or is likely to interfere with the optimum effective use or operation of Town's existing or future fire, emergency or other communications equipment, methodology or technology i.e., voice or other data carrying, receiving or transmitting equipment). If such interference should occur, Wireless Provider shall immediately discontinue using the equipment, methodology or technology that causes the interference until Wireless Provider takes corrective measures to alter the Communications Equipment to eliminate such interference. Any such corrective measures shall be made at no cost to Town. Wireless Provider shall give to Town advance ti.r written notice containing a list of the radio frequencies Wireless Provider is 24 using at the Use Areas and shall give advance written notice to Town of any change in frequencies. 5.5 Other Equipment. Wireless Provider shall not disturb or otherwise interfere with any other antennas or other equipment Town or an authorized third party may have already installed or may yet install upon the Street Parcel. 5.6 Signs. All signage is prohibited except in compliance with the following requirements: 5.6.1 Wireless Provider shall install and thereafter maintain the following signs and other markings as reasonably determined by Town from time to time: 5.6.1.1 All signs and markings required for safe use of the Use Areas by Town, Wireless Provider and other persons who may be at the Use Areas at any time for any reason. 5.6.1.2 Any signage Town may request directing parking, deliveries and other vehicles and other users to comply with this License Agreement. 5.6.1.3 Warning signs listing only Wireless Provider's ID name, permanent business address, telephone number, emergency telephone number, and any information required by law. 5.6.2 All signage not expressly allowed by these Terms is prohibited. 5.6.3 The location, size, content and style of each sign shall be subject to the provisions of the applicable sign ordinance and shall comply with Town's sign programs as the same may change from time to time. Wireless Provider shall update signs, at Wireless Provider's sole cost and expense, as required to comply with changes in the applicable sign ordinance and Town's sign programs. 5.6.4 Wireless Provider shall design, make, install and maintain all signage in a first class, professional manner without broken panels, faded or peeling paint or other damage. Town reserves the right to require Wireless Provider to install, at Wireless Provider's cost, new or updated signage if the existing signage is not compliant with this Agreement. 5.6.5 Wireless Provider shall bear all costs pertaining to the L erection, installation, operation, maintenance, replacement and removal of all signs including, but not limited to, the application for 25 and obtaining of any required sign, building or other permits regardless of the reason for any such activity, even if such activity is required by Town pursuant to these Terms. 5.6.6 The requirements of this paragraph apply to all signs, designs, monuments, decals, graphics, posters, banners, markings, and other manner of signage. 5.7 Wireless Provider's Lighting. Except for security lighting temporarily operated with Town's approval from time to time, Wireless Provider shall not operate outdoor lights at the Use Areas. 5.8 Noise. Except during construction permitted under the License Agreement and for burglar alarms and other safety devices, outdoor loud speakers, sirens or other devices for making noise are prohibited. All equipment shall be operated so that sound coming therefrom is compliant with Section 11- 1-7 of the Town Code and does not exceed the ambient noise level at the boundary of the Street Parcel. The preceding sentence does not apply to use of normal, properly maintained construction equipment used as permitted by the approved License Agreement or permit issued to Wireless Provider by the Town, to infrequent use of equipment that is as quiet or quieter than a typical well maintained gasoline powered passenger automobile, to use of an air conditioning unit that is no noisier than a typical well maintained residential air conditioning unit. 5.9 Limited Access. It is Wireless Provider's and not Town's responsibility to keep unauthorized persons from accessing the Communications Equipment and the Exclusive Areas. 5.10 Standards of Service. Wireless Provider shall operate the Use Areas in a first-class manner, and shall keep the Use Areas attractively maintained, orderly, clean, neat and tidy at all times. Wireless Provider shall not allow any person or persons in or about the Use Areas related to Wireless Provider's operations who shall fail to be clean, courteous, efficient and neat in appearance. 5.11 Wireless Provider's Agent. Wireless Provider shall at all times retain on call available to Town by telephone an active, qualified, competent and experienced person to supervise all activities upon the Use Areas and operation of the Communications Equipment. Wireless Provider's agent shall be authorized to represent and act for Wireless Provider in matters pertaining to all emergencies and the day-to-day operation of the Right-of-way and all other matters affecting a License Agreement or Encroachment Permit. Wireless Provider shall also provide notice to Town of the name, street address, electronic mail address, and regular and afterhours telephone number of a person to handle Wireless Provider's affairs and emergencies at the Right-of- way. Any change shall be given in writing to Town's Development Services Director in the manner stated for notices required herein. 26 5.12 Coordination Meetings. Wireless Provider shall meet with Town and other Right-of-way users from time to time as requested by Town to coordinate and plan construction on the Use Areas and all matters affected by these Terms. 5.13 Toxic Substances. Wireless Provider's activities upon or about the Use Areas shall be subject to the following regarding any hazardous or toxic substances, waste or materials or any substance now or hereafter subject to regulation under the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. §§ 9601, et seq., the Arizona Hazardous Waste Management Act, A.R.S. §§ 49-901, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901, et seq., the Toxic Substances Control Act, 15 U.S.C. §§ 2601, et seq., or any other federal, state, county, or local law pertaining to hazardous substances, waste or toxic substances and their reporting requirements (collectively "Toxic Substances"): 5.13.1 Wireless Provider understands the hazards presented to persons, property and the environment by dealing with Toxic Substances. Town has made no warranties as to whether the Use Areas contain actual or presumed asbestos or other Toxic Substances. 5.13.2 Within twenty-four (24) hours after discovery by Wireless Provider of any Toxic Substances, Wireless Provider shall report tilar such Toxic Substances to Town in writing. Within fourteen (14) days thereafter, Wireless Provider shall provide Town with a written report of the nature and extent of such toxic substances found by Wireless Provider. 5.13.3 Disturbance of Toxic Substances. Prior to undertaking any construction or other significant work, Wireless Provider shall cause the Use Areas to be inspected to prevent disturbance of potential asbestos or other Toxic Substances. Prior to any work of any description that bears a material risk of disturbing potential asbestos or other Toxic Substances, Wireless Provider shall cause the contractor or other person performing such work to give to Town written notice by the method described in these Terms to the effect that the person will inspect for Toxic Substances, will not disturb Toxic Substances, and will indemnify, defend and hold Town harmless against any disturbance in Toxic Substances in the course of the contractor's or other person's work. Wireless Provider shall cause any on-site or off-site storage, inspection, treatment, transportation, disposal, handling, or other work involving Toxic Substances by Wireless Provider in connection with the Use Areas to be performed by persons, equipment, facilities and other resources who are at all times properly and lawfully trained, authorized, licensed, permitted and otherwise qualified to perform such services. Wireless Provider shall promptly deliver to Town 27 copies of all reports or other information regarding Toxic Substances. 5.14 Required Operation. During the entire term of the License Agreement and associated Encroachment Permit(s), and any renewals or extensions thereof, Wireless Provider shall actively and continuously operate the Communications Equipment twenty-four (24) hours per day, seven (7) days per week, for the Permitted Uses. Notwithstanding anything contained in this paragraph to the contrary, the operation requirements of this paragraph shall be effective commencing on the completion of the Project and shall continue through the date the License Agreement terminates or expires for any reason. In the event of relocation of the Communications Equipment or damage to the Use Areas severe enough that the Communications Equipment cannot reasonably be operated during repairs, the operation requirements of this paragraph shall be suspended during the time specified by these Terms for accomplishing repair of such damage or relocation of the Communications Equipment. Wireless Provider may temporarily cease operating the Communications Equipment for short periods necessary to test, repair, service or upgrade the Communications Equipment. Notwithstanding the foregoing to the contrary, any suspension in operations, whether or not authorized pursuant to the License Agreement, shall not serve to extend any Term of the License Agreement. 5.15 Actions by Others. Wireless Provider shall be responsible to ensure 40 compliance with the License Agreement by all persons using the Right-of-way through or under Wireless Provider. 6. WIRELESS PROVIDER'S IMPROVEMENTS. All of Wireless Provider's improvements and other construction work whether or not specifically described herein upon or related to the Use Areas (collectively "Wireless Provider's Improvements") shall comply with the following: 6.1 Wireless Provider's Improvements. Wireless Provider's Improvements include without limitation, all modification, replacement, repairs, installation, construction, grading, structural, utility, lighting, plumbing, sewer or other alterations, parking or traffic alterations, removal, demolition or other cumulatively significant construction or similar work of any description and all installation or alteration of the Communications Equipment. 6.2 Zoning and Similar Approval Process. The zoning processes, building permit processes, Right-of-way management policies and similar regulatory requirements that apply to Wireless Provider's Improvements are completely separate from the plans approval processes set forth in these Terms. Wireless Provider's satisfaction of any requirement set forth these Terms does not substitute for compliance with any regulatory requirement. Wireless Provider's satisfaction of any regulatory requirement does not substitute for compliance with any requirement of these Terms. Wireless Provider must make all 28 submittals and communications regarding the requirements of these Terms through Town's Development Services Director and not through other staff. Wireless Provider shall be responsible to directly obtain all necessary permits and approvals from any and all governmental or other entities having standing or jurisdiction over the Use Areas. Wireless Provider bears sole responsibility to comply with all stipulations and conditions that are required in order to secure such rezoning and other approvals. Notwithstanding anything in this paragraph to the contrary, to the extent regulatory requirements and requirements of these Terms are identical, compliance with regulatory requirements shall constitute compliance with these Terms and vice versa. 6.2.1 Batching Sites for Approval. Only sites that do not have a new or a replacement pole required for the antennas, and do not have any underground cables, conduit, and foundations, are eligible for batch processing of the applications. 6.3 Relationship of Plans Approval to Regulatory Processes. Wireless Provider's submission of plans under these Terms, Town's approval of plans for purposes of these Terms, and the plans approval process herein shall be separate and independent of all development, zoning, design review and other regulatory or similar plans submittal and approval processes, all of which shall continue to apply as provided under state law, in addition to the requirements of these Terms and its approvals. BUILDING PERMITS, ZONING CLEARANCES, OR ANY OTHER GOVERNMENTAL REVIEWS OR ACTIONS DO NOT O CONSTITUTE APPROVAL OF ANY PLANS FOR PURPOSES OF THE LICENSE AGREEMENT. 6.4 Town's Fixtures and Property. Wireless Provider shall not remove, alter or damage in any way any improvements or any personal property of Town upon the Use Areas without Town's prior written approval. In all cases, Wireless Provider will repair any damage or other alteration to Town's property caused by Wireless Provider or its contractors, employees or agents to as good or better condition than existed before the damage or alteration. 6.5 Design Requirements. All Wireless Provider's Improvements shall comply with the following design requirements: 6.5.1 All Wireless Provider's Improvements shall be contained entirely within the Use Areas and without any encroachment or dependence upon any other property, except for permitted utility service. 6.5.2 Any changes to utility facilities shall be strictly limited to the Use Areas, shall not affect utilities used by Town or any authorized users thereof, and shall be undertaken by Wireless Provider at its sole cost and expense. 6.5.3 The Antennas and other Communications Equipment shall be properly designed, installed and maintained so as not to create a 29 risk of damage to the Pole, to persons or property upon or using the Street Parcel or Town's other property. 6.5.4 To the extent requested by Town, Wireless Provider's plans shall include a description of construction methods employed to address environmental issues affecting or affected by the Use Areas and protect other facilities at the Street Parcel and surrounding properties. 6.5.5 All specifications set forth in the Town of Fountain Hills's Design Standards for Small Wireless Facilities in the Right-of-Way, attached here to as Exhibit "A." 6.6 Approval Required. Wireless Provider shall not construct any Wireless Provider's Improvements (including work on adjacent public lands, if applicable) without having first received an executed License Agreement, written plans approval from Town and any and all permits deemed necessary by the Town. Such consent requirement shall apply to all improvements, furnishings, equipment, fixtures, paint, wall treatments, utilities of every description, communications cabling and other construction work of any description as described in all plans heretofore or hereafter delivered by Wireless Provider to Town. Such consent requirement does not apply to work to the Communications Equipment confined completely inside the Enclosure and not visible, audible, or otherwise discernible outside the Enclosure. 6.7 Effect of Plans Approval. Wireless Provider shall submit engineering and construction plans to the Town for review and approval. Town's approval of plans submitted shall be for purposes of these Terms only and shall constitute irrevocable approval (but only at the level of detail of the applicable stage of the review process) of the matters plainly shown on the plans approved. Town shall not reject subsequent plans to the extent the matter to which Town objects was plainly shown on plans previously approved by Town. However, Town is not precluded from objecting to matters not previously approved, changes to plans, matters not previously clearly disclosed on approved plans, or refinements or implementation of matters previously approved. 6.8 Plans Required. Wireless Provider's design of all Wireless Provider's Improvements shall occur in three stages culminating in final working construction documents for the Wireless Provider's Improvements (the "Final Plans"). The three stages are, in order of submission and in increasing order of detail, as follows: 6.8.1 Conceptual plans showing the general layout, locations, elevations, configuration, and capacities of all significant improvements, topographical features, pedestrian and vehicular ways, buildings, utilities, and other features significantly affecting the appearance, design, function or operation of each element of Wireless Provider's Improvements. 30 6.8.2 Preliminary plans showing all surface finishes and treatments, finished elevations, general internal and external design including without limitation colors, textures and materials), mechanical, communications, electrical, plumbing and other utility systems, building materials, landscaping and all other elements necessary prior to preparation of final working construction documents and showing compliance with all requirements of these Terms. The preliminary plans shall show all detail necessary prior to preparation of Final Plans. 6.8.3 Final Plans. In addition to the information that Town required for Preliminary plans, the Final Plans shall include a title report for the Use Area and the Shared Use Area, engineering design documents for the pole foundation, pole structural design, and other generally required engineering specifications for construction drawings or "CD" plans for permits. 6.9 Approval Process. The following procedure shall govern Wireless Provider's submission to Town of all plans for Wireless Provider's Improvements, including any proposed changes by Wireless Provider to previously approved plans: 6.9.1 All plans Wireless Provider submits under these Terms shall show design, appearance, capacity, views, and other information reasonably deemed necessary by Town for a complete understanding of the work proposed, all in detail reasonably deemed appropriate by Town for the level of plans required herein. 6.9.2 Wireless Provider shall deliver all plans submissions for non-regulatory approvals required herein directly to Town's Development Services Director and shall clearly label the submissions to indicate that they are submitted pursuant to the Terms and not for building permits, zoning or other approvals. Each submittal of plans by Wireless Provider for Town's review shall include five (5) complete sets of the plans on paper and, if requested, two (2) copies of the plans in electronic form. 6.9.3 All construction plans shall be prepared by qualified registered professional engineers. 6.9.4 Town and Wireless Provider shall endeavor to resolve design and construction issues to their mutual satisfaction but, in the event of an impasse for any reason or however arising, in light of Town's ownership and other uses of the Use Areas, and as a condition of Town's entering into a License Agreement or issuing an Encroachment Permit, final decision authority regarding all design and construction issues shall rest with Town. 31 6.9.5 All Wireless Provider's Improvements shall comply with all requirements of law, any applicable insurance contracts and these Terms. 6.10 Cost of Wireless Provider Improvements. All Wireless Provider's Improvements shall be designed and constructed by Wireless Provider at Wireless Provider's sole cost and expense, including without limitation any alteration or other change to Town's equipment or other improvements or property that may occur. In no event shall Town be obligated to compensate Wireless Provider in any manner for any of Wireless Provider's Improvements or other work provided by Wireless Provider during or related to the term of any approved License Agreement and Encroachment Permit(s). Wireless Provider shall timely pay for all labor, materials, work, and all professional and other services related thereto and shall pay, protect, indemnify, defend and hold harmless Town and Town's employees, officers, contractors and agents against all claims related to such items. Wireless Provider shall bear the cost of all work required from time to time to cause the Use Areas and Town's adjoining property (if directly affected by Wireless Provider's work) to comply with local zoning rules, the Americans with Disabilities Act, building codes and all similar rules, regulations and other laws if such work is required because of work performed by Wireless Provider, by Wireless Provider's use of the Use Areas, or by any exercise of the rights granted to Wireless Provider under this License Agreement or associated Encroachment Permit(s). 6.11 Improvement Quality. Any and all work performed on the Use Areas by Wireless Provider shall be performed in a workman-like manner meeting9 or exceeding the best practices of similar facilities in Maricopa County, Arizona, and shall be diligently pursued to completion and in conformance with all building codes and similar rules. All of Wireless Provider's Improvements shall be high quality, safe, fire resistant, modern in design, and attractive in appearance, all as approved by Town through the plans approval processes described in these Terms in addition to any zoning, building code or other regulatory processes that may apply. 6.12 Ownership of Wireless Provider's Improvements. All Wireless Provider's Improvements (including without limitation poles and lights) except the Communications Equipment shall be and become part of the real property of Town as the same is constructed or installed. 6.13 Damage During Work. Upon performing any work upon the Right-of- way, Wireless Provider shall simultaneously restore the Right-of-way to its prior condition, as directed by Town and repair any holes, mounting surfaces or other damage whatsoever to the Right-of-way. Such work shall include revegetation and appropriate irrigation systems for revegetated areas. 6.14 Replacement Pole. If Town approves a Wireless Provider proposal to install Antennas on a Town owned pole, then in addition to the other 40 requirements, the following shall apply: 32 6.12.1 Wireless Provider shall provide and deliver to Town a replacement pole, including mast arm, so that a replacement is immediately available to Town in case the original pole is damaged. 6.12.2 If Town uses a replacement pole, then Wireless Provider shall provide another replacement pole. 6.12.3 Upon installation of a replacement pole, the Town will determine if the original pole, mast arm(s), signal head(s), and light fixture(s) shall be delivered by Wireless Provider to the Town's Corporation Yard or if the Wireless Provider shall dispose of the original pole, mast arm, signal head and light fixture. 6.12.4 All performance under this paragraph shall be at Wireless Provider's expense. Town owns the original pole and all replacement poles. 6.15 Coordination with Encroachment Permit. The Street Parcel is located in Town's public street Right-of-way. Wireless Provider shall obtain encroachment permits at Wireless Provider's expense as follows: 6.15.1 Wireless Provider shall perform no construction work in the Right-of-way without obtaining from Town a permit giving permission to work in the Right-of-way. 6.15.2 Wireless Provider shall not alter or modify its antennas, wireless equipment or any improvements without submitting plans or drawings of the proposed alteration or modification to Town and obtaining approval from Town's Development Services Director. 6.15.3 Wireless Provider shall not perform any work on its own antennas or wireless equipment without first obtaining from Town an encroachment permit giving it permission to work in the Right-of- way. 6.15.4 Wireless Provider shall not in any way obstruct pedestrian or vehicular traffic within the Right-of-way without first obtaining from Town a permit giving permission to obstruct traffic. 6.16 Time for Completion. Wireless Provider shall diligently and expeditiously pursue to completion the construction of all approved Wireless Provider's Improvements. Wireless Provider shall complete construction of all Wireless Provider's Improvements no later than one hundred eighty (180) days of permit issuance unless Town and Wireless Provider agree to extend this period or a delay is caused by a lack of commercial power at the site. If Town, in its sole examination of the construction activity at a site, determines that Wireless Provider has not substantially performed construction at a site within 11, one hundred eighty (180) days of the permit issuance date, Town may require the Wireless Provider to cease construction and resubmit the site for approval. 33 6.17 Construction Notification. Town may establish requirements for notification of nearby residents and property owners prior to construction. 6.18 Work Time and Manner Restrictions. All installation, construction, maintenance, inspection, repair and other work of any kind shall be done in a manner that does not disrupt traffic (except in compliance with appropriate permits) or nearby land uses. Without limitation, such work shall be done in compliance with applicable Town policies and directions from time to time, taking into account the various sensitivities of traffic, tourism, events, adjoining land uses, other Right-of-way uses, and all other needs and concerns that are likely to be affected by Wireless Provider's work. 7.RF SAFETY FOR TOWN'S EMPLOYEES. Prior to performing any work on a wireless site in the Right-of-way, an employee or authorized agent of the Town will contact Wireless Provider's Network Operations Center (the NOC") whose information shall be located on the ground equipment or on the pole. The Town's employee or agent shall identify himself or herself as an employee or agent of Town and the need for the RF to be turned off at the site for a specified period to perform maintenance or repair work at the site. Upon completion of the work, the Town's employee shall contact the NOC and inform them that the site may activate the RF signals. Furthermore, as Town's employees, agents, and representatives must have uninterrupted and safe access to the Right-of-way and all structures located thereon, Wireless Provider must comply with at least one of the following safety protocols: 7.1 Provide access to a "kill switch" for each wireless site that the Town's employees, agents, or representatives can use to turn off all power to the Wireless Provider's Facilities while Town's work is performed at the location. 7.2 Within 24 hours of a request, agree to send a technician with an RF monitor to confirm that all RF emitting equipment has, in fact, been deactivated, and to install all appropriate lockout tags and devices. 8. MAINTENANCE AND UTILITIES. Except as expressly provided below, Wireless Provider shall be solely responsible for all maintenance, repair and utilities for the Use Areas during the term of an approved License Agreement and associated Encroachment Permit(s). Without limitation, Wireless Provider shall perform the following: 8.1 Maintenance by Town. Town has no maintenance or repair obligations for the Communications Equipment or other Wireless Provider's Improvements. 34 8.2 Maintenance by Wireless Provider. Wireless Provider shall at all times repair and maintain the Use Areas at Wireless Provider's sole expense in a first- class, sound, clean, safe and attractive manner, meeting or exceeding the manner of maintenance at first class comparable facilities in Maricopa County, Arizona, as determined in Town's reasonable discretion. The preceding sentence does not require Wireless Provider to repair or maintain Town's facilities at the Use Area unless such work is attributable in whole or in part to Wireless Provider's use of the Use Areas. 8.3 Utility Service. Wireless Provider shall contract for and pay all charges, fees, deposits and other amounts for electricity and telephone and other data communication service to the Use Areas at the rates applicable thereto. Wireless Provider shall use no other utilities at the Use Areas, unless otherwise authorized by Town. 8.4 Utility Interruptions. Town is not responsible for any interruption of utilities to or upon the Use Areas or other difficulties related to utilities at the Use Areas. 8.5 Right of Inspection. Town shall be entitled to inspect all construction, reconstruction or installation work and to make such tests as it deems necessary to ensure compliance with the terms herein and any applicable laws and regulations. All Town plans reviews, inspections, standards and other rights and actions with relation to Wireless Provider's Improvements are for Town's sole and exclusive benefit and neither Wireless Provider nor any other person shall rely thereon or have any rights related thereto. The preceding sentence does not prevent Wireless Provider from relying on consents, permits or approvals Town may grant based on Town's plans, reviews, and inspections. This right of access is in addition to access rights for Town inspectors or other employees and officers acting within their legal authority. 8.6 Construction Notification. Town may establish requirements for Wireless Provider to notify nearby residents prior to construction. 8.7 Blue Stake. Wireless Provider shall register with and comply with the local Blue Stake program. 9.BREACH BY WIRELESS PROVIDER. Wireless Provider shall comply with, perform and do each obligation required of Wireless Provider herein and shall cause all persons using the Use Areas through or under Wireless Provider or these Terms to do the same. Wireless Provider's failure to do so shall be a material breach by Wireless Provider of these Terms. 9.1 Events of Default. All License Agreements and Encroachment Permits are approved upon the condition that each and every one of the following events herein shall be deemed an "Event of Default" by Wireless Provider of Wireless Provider's material obligations under these Terms: 35 9.1.1 If Wireless Provider shall be in arrears in the payment of Use Fee and shall not cure such arrearage within ten (10) days after Town has notified Wireless Provider of such arrearage. 9.1.2 If Wireless Provider shall fail to operate the Communications Equipment (except during specific periods expressly excused herein) for a period of five (5) consecutive days or a total of thirty (30) days within any twelve (12) month period. 9.1.3 If Wireless Provider shall fail to maintain any insurance required under these Terms. Notwithstanding the preceding sentence, such failure shall not be a default if, within ten (10) days after notice from Town, Wireless Provider provides to Town the required insurance and the required evidence thereof. Such insurance must cover the past for a period adequate that there is no gap in the insurance coverage required by these Terms. 9.1.4 If the Wireless Provider's right to use a Utility Pole expires or is terminated for any reason. 9.1.5 If Wireless Provider does not commence and diligently pursue to completion each required stage of construction of the site within the times required herein. The times specified for concluding 40 each stage of required construction have been established far enough in advance, and have taken into account the likelihood of construction delays, so that no cure period is provided. 9.1.6 If Wireless Provider shall be the subject of a voluntary or involuntary bankruptcy, receivership, insolvency or similar proceeding or if any assignment of any of Wireless Provider's or such other person's property shall be made for the benefit of creditors or if Wireless Provider or such other person dies or is not regularly paying its debts as they come due (collectively a "Wireless Provider Insolvency"). 9.1.7 If the issuer of any letter of credit shall fail for any reason to timely and fully honor any request by Town for funds or other performance under the instrument and Wireless Provider fails to cause the issuer, or some other person, to honor the request within ten (10) days after Town notifies Wireless Provider that such request has not been honored. 9.1.8 If Wireless Provider shall fail to obtain or maintain any licenses, permits, or other governmental approvals pertaining to the Right-of-way or timely pay any taxes pertaining to the Right-of-way and does not cure such failure within thirty (30) days. 0 36 9.1.9 If Town shall be exposed to any liability, obligation, damage, cost, expense, or other claim of any description, whether or not asserted, unless Wireless Provider gives immediate notice to Town of Wireless Provider's commitment to indemnify, defend and hold Town harmless against such claim, and Wireless Provider does in fact promptly commence and continue to indemnify, defend and hold Town harmless against such claim. 9.1.10 If Wireless Provider shall fail to meet its obligations under the RF Safety Paragraph. 9.1.11 If Wireless Provider shall engage in a pattern of repeated failure (or neglect) to timely do or perform or observe any provision contained herein. After Town has once given notice of any failure by Wireless Provider to comply with its obligations set forth in these Terms, the following shall constitute a repeated failure by Wireless Provider to comply with such provision: h. 9.1.11.1 Another failure to comply with any provision of these Terms during the following thirty (30) day period. i. 9.1.11.2 Three (3) or more failures to comply with any provision of these Terms during any ninety (90) day period. 410 j. 9.1.11.3 Six (6) or more failures to comply with any provision of these Terms during any twelve (12) month period. 9.1.12 If Wireless Provider shall fail to or neglect to timely and completely do or perform or observe any other provisions herein and such failure or neglect shall continue for a period of thirty (30) days after Town has notified Wireless Provider in writing of such failure or neglect. 9.2 Town's Remedies. Upon the occurrence of any Event of Default or at any time thereafter, Town may, at its option and from time to time, exercise at Wireless Provider's expense any or all or any combination of the following cumulative remedies in any order and repetitively at Town's option: 9.2.1 Terminate the License Agreement or any or all Encroachment Permits due to Wireless Provider's breach or for any other reason, however, such termination does not terminate Wireless Provider's obligations arising during the time simultaneous with or prior to or the termination, and in no way terminates any of Wireless Provider's liability related to any breach of these Terms. 9.2.2 Pay or perform, for Wireless Provider's account, in Wireless Provider's name, and at Wireless Provider's expense, any or all payments or performances required hereunder to be paid or performed by Wireless Provider. 37 9.2.3 Abate at Wireless Provider's expense any violation of these Terms. 9.2.4 Notwithstanding anything under these Terms to the contrary, unilaterally and without Wireless Provider's or any other person's consent or approval, draw upon, withdraw or otherwise realize upon or obtain the value of any letter of credit, escrowed funds, insurance policies, or other deposits, sureties, bonds or other funds or security held by Town or pledged or otherwise obligated to Town by Wireless Provider or by any third party (whether or not specifically mentioned herein) and use the proceeds for any remedy permitted by these Terms. 9.2.5 Require an additional security deposit adequate in Town's sole discretion to protect Town and the Right-of-way. 9.2.6 Require that the Wireless Provider remedy any and all violations and pay any and all outstanding fees in full (before accepting applications for new Encroachment Permits). 9.2.7 Assert, exercise or otherwise pursue at Wireless Provider's expense any and all other rights or remedies, legal or equitable, to which Town may be entitled, subject only to the limitation set out 40 below on Town's ability to collect money damages in light of the Violation Use Fee. 9.3 Violation Use Fee. Wireless Provider and Town agree that Wireless Provider's failure to comply with the provisions herein will result in damages to Town, including but not limited to expenses related to administrative costs, staff time, field work and inspections, legal services, etc. Wireless Provider's failure to comply with the provisions herein will result in damages in an amount that is and will be impracticable to determine. Therefore, the parties have agreed that Wireless Provider shall pay the Violation Use Fee set out below in accordance with the following (the "Violation Fee Provisions"): 9.3.1 Violation Use Fee is only intended to remedy damages that Town suffers because of Wireless Provider's breach of this Agreement. Wireless Provider's payment of Violation Use Fee does not in any way excuse any breach by Wireless Provider of these Terms or limit in any way Town's obtaining any other legal or equitable remedy provided by these Terms or otherwise for such breach. For example, Wireless Provider's obligation to pay Violation Use Fee does not in any way detract from Wireless Provider's indemnity and insurance obligations under these Terms, which shall apply according to their terms in addition to Wireless Provider's obligation to pay Violation Use Fee. 38 9.3.2 Town may elect to draw upon the letter of credit to collect the Violation Use Fee. 9.3.3 The Violation Fee Provisions and the amount of the Violation Use Fee per day or part thereof are as follows: 9.3.3.1 The amount of Six Hundred Dollars 600.00) per day for Wireless Provider's failure to properly restore the public Right-of-way or to correct related violations of specifications, code, ordinance or standards within ten (10) business days after Town's notice to correct such defects. Such Violation Use Fee shall be in addition to any cost the Town may incur to restore the Right-of-way or correct the violation. 9.3.3.2 The amount of Five Hundred Dollars 500.00) per instance of any other action or non-action by the Wireless Provider contrary to these Terms herein and that is not cured after three (3) business days' notice. 9.3.4 Violation Use Fees shall be assessed as follows: 9.3.4.1 If Town determines that Wireless Provider is 0 liable for Violation Use Fee, then Town shall issue to Wireless Provider a notice of Town's assessing a Violation Use Fee. The notice shall set forth the nature of the violation and the amount of the assessment. 9.3.4.2 Wireless Provider shall pay the Violation Use Fee within ten (10) days after Town's notice. However, if the Violation Use Fee amount exceeds Five Thousand Dollars ($5,000), then the following shall apply: 9.3.4.2.1 Wireless Provider shall have thirty (30) days after the notice to pay the Violation Use Fee or give Town notice contesting the assertion of noncompliance. 9.4 Reimbursement of Town's Expenses. Wireless Provider shall pay to Town within thirty (30) days after Town's demand any and all amounts expended or incurred by Town in performing Wireless Provider's obligations upon Wireless Provider's failure to perform the same after notice from Town) together with interest thereon at the rate of twelve percent (12%) per annum from the date expended or incurred by Town. 0 10. BREACH BY TOWN. 39 Notwithstanding anything in these Terms to the contrary, if Town at any time is required to pay to Wireless Provider any amount or render any performance, such amount or performance is not due until thirty (30) days after notice by Wireless Provider to Town that the amount has become payable or that the performance is due. In the event a cure cannot be effected during that period, Town shall not be in default so long as Town commences cure during the period and diligently prosecutes the cure to completion provided such cure must be completed within sixty (60) days after the notice. 10.1 Right to Setoff and Credit. In addition to its other rights and remedies Town shall have the right to setoff and credit from time to time and at any time, any and all amounts due from Wireless Provider to Town, whether pursuant to these Terms herein or otherwise, against any sum which may be due from Town to Wireless Provider. 11. NON-WAIVER. Wireless Provider acknowledges Wireless Provider's unconditional obligation to comply with these Terms herein. No failure by Town to demand any performance required of Wireless Provider under these Terms herein, and no acceptance by Town of any imperfect or partial performances under these Terms herein, shall excuse such performance or impair in any way Town's ability to insist, prospectively and retroactively, upon full compliance with these Terms herein. No acceptance by Town of Use Fee payments or other performances hereunder shall be deemed a compromise or settlement of any right Town may have for additional, different or further payments or performances as provided for in these Terms. Any waiver by Town of any breach of condition or covenant herein contained to be kept and performed by Wireless Provider shall not be deemed or considered as a continuing waiver and shall not operate to bar or otherwise prevent Town from declaring a default for any breach or succeeding or continuing breach either of the same condition or covenant or otherwise. No statement, bill or notice by Town or Wireless Provider concerning payments or other performances due hereunder, or failure by Town to demand any performance hereunder, shall excuse Wireless Provider from compliance with its obligations nor estop Town (or otherwise impair Town's ability) to at any time correct such notice and/or insist prospectively and retroactively upon full compliance with the License Agreement. No waiver of any description (INCLUDING ANY WAIVER OF THIS SENTENCE OR PARAGRAPH) shall be effective against Town unless made in writing by a duly authorized representative of Town specifically identifying the particular provision being waived and specifically stating the scope of the waiver. WIRELESS PROVIDER EXPRESSLY DISCLAIMS AND SHALL NOT HAVE THE RIGHT TO RELY ON ANY SUPPOSED WAIVER OR OTHER CHANGE OR MODIFICATION, WHETHER BY WORD OR CONDUCT OR OTHERWISE, NOT CONFORMING TO THIS PARAGRAPH. 12. TERMINATION. 40 The following provisions shall apply at the expiration of the term or earlier termination of each License Agreement and Encroachment Permit: 12.1 Surviving Obligations. Expiration or termination of a License Agreement or Encroachment Permit does not terminate Wireless Provider's obligations existing or arising prior to or simultaneous with, or attributable to, the termination or events leading to or occurring before termination. 12.2 Delivery of Possession. Wireless Provider shall cease using the Use Areas associated with the expired or terminated License Agreement or Encroachment Permit. Wireless Provider shall, without demand, peaceably and quietly quit and deliver up the Use Areas to Town thoroughly cleaned, in good repair with the Use Areas maintained and repaired and in as good order and condition, reasonable use and wear excepted, as the Use Areas now are or in such better condition as the Use Areas may hereafter be placed. 12.3 Confirmation of Termination. Upon expiration or termination of a License Agreement or Encroachment Permit for any reason, Wireless Provider shall provide to Town upon demand recordable disclaimers covering the Use Areas executed and acknowledged by Wireless Provider and by all persons claiming through this License Agreement, Encroachment Permit or Wireless Provider any interest in or right to use the Use Areas. 12.4 Removal of Improvements. Wireless Provider shall remove all Communications Equipment and restore the Use Areas including Utility Pole, mast arms, luminaires, or wireless support structure to its prior condition, or to a condition matching Town's surrounding land and improvements, as directed by Town, at Wireless Provider's expense prior to normal expiration of the term of a License Agreement or Encroachment Permit; or within sixty (60) days after early termination of a License Agreement or Encroachment Permit. Without limitation, such work shall include revegetation and appropriate irrigation systems for revegetated areas. Notwithstanding anything in the License Agreement and these Terms to the contrary, Town may elect to require Wireless Provider to leave any or all construction or other items (except the Communications Equipment) in place, and all such items shall be owned by Town. Unless Town directs otherwise, all wiring, pipes and conduits shall be left in good and safe condition, in working order, with each end properly labeled and enclosed in proper junction boxes. 12.5 Prior Improvements. This article also applies to any improvements that Wireless Provider may have made to the Use Areas. 13. INSURANCE. During the entire term of any License Agreement or Encroachment Permit, Wireless Provider shall insure its property and activities at and about the Use Areas and shall provide insurance and indemnification as follows: 41 13.1 Insurance Required. Not later than the date of this License Agreement, and at all times thereafter when Wireless Provider is occupying or using the Use Areas in any way, Wireless Provider shall obtain and cause to be in force and effect the following insurance: 13.1.1 Commercial General Liability. Commercial general liability insurance with a limit of Ten Million and No/100 Dollars 10,000,000.00) for each occurrence, a limit of Ten Million and No/100 Dollars ($10,000,000.00) for products and completed operations annual aggregate, and a limit of Ten Million and No/100 Dollars ($10,000,000.00) general aggregate limit per policy year. The policy shall cover liability arising from premises, operations, independent contractors, products, completed operations, personal injury, bodily injury, advertising injury, and liability assumed under an "insured contract" including this License Agreement. The policy will cover Wireless Provider's liability under the indemnity provisions set forth in these Terms. The policy shall contain a "separation of insured's" clause. 13.1.2 Automobile Liability. Automobile liability insurance with a limit of One Million Dollars ($1,000,000) for each occurrence covering any and all owned, hired, and non-owned vehicles assigned to or used in any way in connection with Wireless Provider's use of the Right-of-way. Without limitation, such insurance shall cover hazards of motor vehicle use for loading and off loading. 13.1.3 Workers' Compensation. Such workers' compensation and similar insurance as is required by law and employer's liability insurance with a minimum limit of One Hundred Thousand Dollars 100,000) for each accident, One Hundred Thousand Dollars 100,000) disease for each employee, Five Hundred Thousand Dollars ($500,000) policy limit for disease. All contractors and subcontractors must provide like insurance. 13.1.4 Special Risk Property. Unless waived by Town in writing, all risk property insurance covering damage to or destruction of all real and personal improvements to the Right-of-way, including without limitation, all improvements existing upon the Right-of-way prior to this License Agreement or hereafter constructed in an amount equal to full replacement cost of all such improvements. Such insurance shall be special causes of loss policy form minimally including perils of fire, lightning, explosion, windstorm, hail, smoke, aircraft, vehicles, riot, civil commotion, theft, vandalism, malicious mischief, collapse and flood). Coverage shall include pollutant clean up and removal with minimum limits coverage of Fifty-Thousand Dollars ($50,000.00). 42 13.1.5 Other Insurance. Any other insurance Town may reasonably require for the protection of Town and Town's employees, officials, representatives, officers and agents (all of whom, including Town, are collectively "Additional Insureds"), the Right-of-way, surrounding property, Wireless Provider, or the activities carried on or about the Right-of-way. Such insurance shall be limited to insurance a reasonable person owning, leasing, designing, constructing, occupying, or operating similar facilities might reasonably purchase. 13.2 Policy Limit Escalation. Town may elect by notice to Wireless Provider to increase the amount or type of any insurance to account for inflation, changes in risk, or any other factor that Town reasonably determines to affect the prudent amount of insurance to be provided. 13.3 Form of All Insurance. All insurance provided by Wireless Provider with respect to the Right-of-way, whether required in these Terms or not, shall meet the following requirements: 13.3.1 "Occurrence" coverage is required. 13.3.2 If Wireless Provider uses any excess insurance then such excess insurance shall be "follow form" equal to or broader in coverage than the underlying insurance. 0 13.3.3 Policies must also cover and insure Wireless Provider's activities relating to the business operations and activities conducted away from the Right-of-way. 13.3.4 Within five (5) business days of receiving a written request from the Town, Wireless Provider shall provide copies of insurance certificates, insurance policies, formal endorsements or other documentation acceptable to Town that all insurance coverage required herein is provided. 13.3.5 Wireless Provider's insurance shall be primary insurance with respect to claims arising out of Wireless Provider's operations, activities and obligations set forth in these Terms. 13.3.6 All policies, including workers' compensation, shall waive transfer rights of recovery (subrogation) against Town, and the other Additional Insureds. 13.3.7 All deductibles, retentions, or "self-insured" amounts shall be subject to the following: 13.3.7.1 Wireless Provider shall be solely responsible 4110 for any self-insurance amount or deductible. 43 13.3.7.2 Such amounts shall not exceed in total One Hundred Thousand Dollars ($100,000.00) per loss. At such times as Wireless Provider's net worth is more than One Hundred Million Dollars ($100,000,000.00), such limit shall be One Million and No/100 Dollars 1,000,000.00). 13.3.7.3 Any self-insured exposure shall be deemed to be an insured risk under this License Agreement. 13.3.7.4 Wireless Provider shall provide to the beneficiaries of all such amounts no less insurance protection than if such self-insured portion was fully insured by an insurance company of the quality and caliber required hereunder. 13.3.7.5 The right to self-insure is limited and specific to Wireless Provider and does not extend to Wireless Provider's contractors or others. 13.3.8 All policies except workers' compensation must name Town and the other Additional Insureds as additional insureds. Wireless Provider shall cause coverage for Additional Insureds to be incorporated into each insurance policy by endorsement with respect to claims arising out of Wireless Provider's operations, activities and obligations under the License Agreement. 13.3.9 All policies must require the insurer to provide Town with at least thirty (30) days' prior notice of any cancellation. The insurer's duty to notify Town of changes in coverage shall not include phrases such as "endeavor to" or "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representatives." 13.3.10 All policies shall require that notices be given to Town in the manner specified for notices to Town set forth in the License Agreement and these Terms. 13.4 Insurance Certificates. Wireless Provider shall evidence all insurance by furnishing to Town certificates of insurance annually and with each change in insurance coverage. Certificates must evidence that the policy described by the certificate is in full force and effect and that the policy satisfies each requirement of these Terms applicable to the policy. For example, certificates must evidence that Town and the other Additional Insureds are additional insureds. Certificates must also be in an industry standard form reasonably acceptable to Town. Wireless Provider shall provide updated certificates at Town's request. 13.5 Acceptable Insurers. All insurance policies shall be issued by insurers acceptable to Town. At a minimum, all insurers shall be duly licensed (or 44 qualified unlicensed non-admitted insurer) by the State of Arizona, Department of Insurance. At a minimum, all insurers shall have and maintain an A.M. Best, Inc. rating of B++ 6. 13.6 No Representation of Coverage Adequacy. By requiring insurance herein, Town does not represent that coverage and limits will be adequate to protect Wireless Provider. Town reserves the right to review any and all of the insurance policies and/or endorsements cited in these Terms but has no obligation to do so. Failure to demand such evidence of full compliance with the insurance requirements set forth in these Terms or failure to identify any insurance deficiency shall not relieve Wireless Provider from, nor be construed or deemed a waiver of, Wireless Provider's obligation to maintain the required insurance at all times. 13.7 Risk of Loss. Wireless Provider assumes the risk of any and all loss, damage or claims related to Wireless Provider's use of the Right-of-way or other property of Town, Wireless Provider or third parties throughout the term of any License Agreement or Encroachment Permit. Wireless Provider shall be responsible for any and all damage to its property and equipment related to the License Agreement or Encroachment Permit. 13.8 Insurance to be Provided by Others. Wireless Provider shall cause its contractors or other persons occupying, working on or about, or using the Right- of-way pursuant to these Terms to be covered by their own or Wireless 1110 Provider's insurance as required by these Terms. The required policy limits for commercial general liability insurance provided by such persons shall be One Million Dollars ($1,000,000) for each occurrence, One Million Dollars 1,000,000) for products and completed operations annual aggregate, and Two Million Dollars ($2,000,000) general aggregate limit per policy year. This paragraph does not apply to persons who do not actually perform physical labor in the Right-of-way (such as Wireless Provider's consulting design engineers). 14. INDEMNITY. In addition to all other indemnities and other obligations hereunder, to the fullest extent permitted by law, throughout the term of any License Agreement or Encroachment Permit and until all obligations and performances under or related to the License Agreement (including these Terms) are satisfied and all matters described in this Paragraph are completely resolved, Wireless Provider and all other persons using, acting, working or claiming through or for Wireless Provider (if they or their subcontractor, employee or other person or entity hired or directed by them participated in any way in causing the claim in question) shall jointly and severally indemnify, defend and hold harmless Town and all other Additional Insureds for, from and against any and all claims or harm related to Wireless Provider's use of the Right- of-way or the rights granted to Wireless Provider with respect to the Right-of-way or Wireless Provider's exercise of its rights under these Terms (the "Indemnity"). Without I limitation, the Indemnity shall include and apply to any and all allegations, demands, judgments, assessments, taxes, impositions, expenses, proceedings, liabilities, 45 obligations, suits, actions, claims (including without limitation claims of personal injury, bodily injury, sickness, disease, death, property damage, destruction, loss of use, financial harm, or other impairment), damages, losses, expenses, penalties, fines or other matters (together with all attorney fees, court costs, and the cost of appellate proceedings and all other costs and expenses of litigation or resolving the claim) that may arise in any manner out of any use of the Right-of-way or other property pursuant to any License Agreement or Encroachment Permit or any actions, acts, errors, mistakes or omissions relating to work or services in the performance of or related to the License Agreement, including without limitation any injury or damages or cause of action claimed or caused by any employees, contractors, subcontractors, tenants, subtenants, agents or other persons upon or using the Right-of-way or surrounding areas related to Wireless Provider's exercise of its rights under this License Agreement, including without limitation, claims, liability, harm or damages caused in part by Town or any other Additional Insured or anyone for whose mistakes, errors, omissions or negligence Wireless Provider or Town may be liable (collectively, Claims"). As a condition to Town's approval of any License Agreement or Encroachment Permit, Wireless Provider specifically agrees that to the extent any provision of this paragraph is not fully enforceable against Wireless Provider for any reason whatsoever, this Paragraph shall be deemed automatically reformed to the minimal extent necessary to cause it to be enforceable to the fullest extent permitted by law. The Indemnity shall also include and apply to any environmental injury, personal injury or other liability relating to Wireless Provider's use of real property under the License Agreement or any Encroachment Permits. Notwithstanding the foregoing, the Indemnity does not apply to Claims arising only from the sole gross negligence or intentionally wrongful acts of Town or to Claims that the law prohibits from being imposed upon the indemnitor. 15. CONDEMNATION. The following shall govern any condemnation of any part of or interest in the Use Areas and any conveyance to Town or another condemnor in avoidance or settlement of condemnation or a threat of condemnation: 15.1 Termination for Condemnation. The Encroachment Permit for the Use Area shall terminate on the date (the "Condemnation Date") that is the earlier of the date title vests in the condemnor, or the date upon which the condemnor is let into possession. Notwithstanding the foregoing, if Town reasonably determines that the Use Areas continue to be suitable for Wireless Provider to conduct the Permitted Uses, Town may elect to cause the Encroachment Permit to continue to remain in effect as to the part of the Use Areas not taken and the Use Fee shall not be reduced or abated. Nevertheless, if Wireless Provider reasonably determines that the Use Areas are not suitable for Wireless Provider to conduct the Permitted Uses, then the Encroachment Permit shall terminate. 15.2 Condemnation Proceeds. Wireless Provider hereby assigns and transfers to Town Wireless Provider's entire interest in all condemnation damages, interest, severance damages, and any other payments or proceeds of any kind relating to the condemnation (collectively the "Condemnation 46 Proceeds"). Wireless Provider shall execute and deliver to Town assignments or other instruments requested by Town confirming such assignment and transfer. Wireless Provider shall immediately pay to Town any Condemnation Proceeds Wireless Provider may receive. The Condemnation Proceeds shall not include relocation benefits, if any, awarded specifically to Wireless Provider to cover expenses of relocating Wireless Provider's business located at the Use Areas at the time of the condemnation, or any compensation specifically awarded to Wireless Provider for any taking of the Communications Equipment itself. Any repair, relocation or similar costs relating to the Communications Equipment shall be borne by Wireless Provider. 15.3 Power to Condemn. Wireless Provider acknowledges that Town and others from time-to-time may use the power to condemn the Use Areas or any interest therein or rights thereto. Town has not relinquished any right of condemnation or eminent domain over the Use Areas. Town does not warrant that Town will not condemn the Use Areas during the term of this License Agreement, but Town does not presently have intentions to condemn the Use Areas. 16. DAMAGE TO OR DESTRUCTION OF USE AREAS. The following provisions shall govern damage to or destruction of the Use Areas by fire, flood, explosion, the elements, the public enemy, or other casualty (collectively "Casualty Damage"): 16.1 Damage to Wireless Provider's Improvements. Wireless Provider shall commence restoring the Casualty Damage to Wireless Provider's Improvements within thirty (30) days after any Casualty Damage occurs. Wireless Provider shall complete the restoration work within thirty (30) days after commencement. Such work shall be subject to the plans approval process and all other requirements for Wireless Provider's Improvements. Wireless Provider shall perform all restoration work at Wireless Provider's sole cost and expense. 16.2 Monthly Restoration Work Report. Wireless Provider shall provide to Town no later than the tenth day of each month a written narrative report of the progress of the restoration work. 17. WIRELESS PROVIDER'S RECORDS. During the entire term of any License Agreement, Wireless Provider shall keep records and provide information to Town as follows: 17.1 Scope of Information. Unless otherwise specified, all of Wireless Provider's recordkeeping and disclosure obligations under this article are limited to the following (collectively the "Covered Information"): 47 17.1.1 The status of the construction, repair or restoration of Wireless Provider Improvements. 17.1.2 Information indicating whether Town or Wireless Provider is in compliance with the terms herein. 17.2 Records Inspection. At Wireless Provider's expense, Wireless Provider shall: 17.2.1 Permit and assist Town and its representatives upon twenty- one (21) days' notice to inspect, audit, and copy Wireless Provider's records of Covered Information. 17.2.2 Make the records of Covered Information (and reasonable accommodations for Town's audit and inspection) available to Town at Wireless Provider's offices in Maricopa County, Arizona. 17.2.3 Cause Wireless Provider's employees and agents and accountants to give their full cooperation and assistance in connection with Town's access to the Covered Information. 17.3 Record Retention. Wireless Provider shall preserve records of the Covered Information in a secure place at Wireless Provider's corporate headquarters in the continental United States for a period ending seven (7) years 0 after the time period reported by the records. 17.4 Record Media Included. Town's and Wireless Provider's rights and obligations regarding the Covered Information apply regardless of the type of media, materials, or data repositories that may contain the Covered Information. Town shall have access to Covered Information contained, without limitation, in records, books, papers, documents, recordings, computer data, contracts, logs, notes, ledgers, correspondence, reports, drawings, and memoranda, and any and all other sources, records and repositories of Covered Information. 17.5 Reports. Wireless Provider shall deliver to Town written reports (and, if requested by Town, a presentation to Town's governing council or designee) covering such Covered Information as Town may request from time to time. 17.6 Standards for Records. Wireless Provider shall maintain a standard, modern system of record keeping for the Covered Information and shall keep and maintain proper and accurate books and other repositories of information relating to the Covered Information. 18. COMPLIANCE WITH LAW. Wireless Provider shall perform its obligations under the License Agreement including these Terms ) and any Encroachment Permit in accordance with all federal, state, county and local laws, ordinances, regulations or other rules or policies as are 48 now in effect or as may hereafter be adopted or amended. Without limiting in any way the generality of the foregoing, Wireless Provider shall comply with all and each of the following: 18.1 Applicability of Municipal Law. Without limitation, Wireless Provider shall comply with municipal laws as follows: 18.1.1 Wireless Provider acknowledges nothing set forth herein or by approval of a License Agreement or issuance of an Encroachment Permit constitutes, and Town has not promised or offered, any type of waiver of, or agreement to waive (or show any type of forbearance, priority or favoritism to Wireless Provider with regard to) any law, ordinance, power, regulation, tax, assessment or other legal requirement now or hereafter imposed by the Town of Fountain Hills or any other governmental body upon or affecting Wireless Provider, the Use Areas, or the Street Parcel or Wireless Provider's use of the Use Areas, the Street Parcel or the Right-of- way. 18.1.2 All of Wireless Provider's obligations hereunder are in addition to, and cumulative upon (and not to any extent in substitution or satisfaction of), all existing or future laws and regulations applicable to Wireless Provider. 18.1.3 Town by approving this License Agreement or any Encroachment Permit cannot, and has not, relinquished or limited any right of condemnation or eminent domain over the Right-of-way or any other property related to the License Agreement or Encroachment Permit, or within the Right-of-way. 18.1.4 The approval of this License Agreement or issuance of any Encroachment Permit cannot and does not impair Town's, power to enact, apply or enforce any laws or regulations, or exercise any governmental powers affecting in any way Wireless Provider, the Use Areas, the Street Parcel, or the Right-of-way. 18.1.5 Town's rights and remedies under this License Agreement and any Encroachment Permit for Wireless Provider's failure to comply with all applicable laws supplement and are in addition to and do not replace otherwise existing powers of the Town of Fountain Hills or any other governmental body. 18.1.6 Wireless Provider's rights under this License Agreement and any Encroachment Permit are further subject to all present and future building restrictions, regulations, zoning laws, and all ordinances, resolutions, rules and orders of all bodies, bureaus, commissions and bodies of any municipal, county, state, or federal authority, now or hereafter having jurisdiction over the Use Areas or 49 Wireless Provider's use thereof. Wireless Provider shall comply with all of the foregoing. 18.2 Radio Frequency Compliance Requirements. Wireless Provider shall document, report and confirm its compliance with Federal Communications Commission ("FCC") Radio Frequency Exposure Guidelines (FCC OET Bulletin 65) and all other applicable radio frequency emissions laws and regulations in effect from time to time (collectively, the "FCC Rules") as follows: 18.2.1 Wireless Provider shall cause its senior internal engineer responsible for compliance with the FCC Rules to deliver to Town a written letter (the "RE Letter"), as follows: 18.2.1.1 The RF Letter shall attest that Wireless Provider's operation of the Communications Equipment is in compliance with the FCC Rules. A statement from Wireless Provider declaring exemption from reporting to FCC is not acceptable to comply with the requirements of this paragraph. 18.2.2 Wireless Provider shall maintain records of radio frequency measurements and Communications Equipment performance in accordance with the FCC Rules. 18.2.3 Wireless Provider shall also evidence and demonstrate its compliance with the FCC Rules in such manner and at such intervals as the Town of Fountain Hills Zoning Ordinance and other applicable laws and regulations may mandate. 18.3 Use Area Regulations. Town reserves the right to adopt, amend and enforce against Wireless Provider rules and regulations governing the operation of the Street Parcel, including the Use Areas, Wireless Provider's activities therein and thereon, and the public areas and facilities used by Wireless Provider in connection therewith. 18.4 Taxes, Liens and Assessments. In addition to all other amounts herein provided and to the extent consistent with applicable law, Wireless Provider shall pay, when the same become due and payable, all taxes and general and special fees, charges and assessments of every description that during the term of any License Agreement or Encroachment Permit may be levied upon or assessed upon or with respect to Wireless Provider's use of the Right-of-way, the operations conducted therein, any amounts paid or other performances required by these Terms by either party, and all possessory interest in the Right-of-way and Wireless Provider's improvements and other property thereon. Wireless Provider shall pay, indemnify, defend and hold harmless Town from any and all such obligations, including any interest, penalties and other expenses which may be imposed, and from any lien therefor or sale or other proceedings to enforce payment thereof. 50 18.5 Permits. Nothing in these Terms relieves Wireless Provider of the obligation to obtain permits, licenses and other approvals from Town or other units of government that are required for the erection, construction, reconstruction, installation, operation or maintenance of the Communications Equipment or provision of telecommunications services; or from compliance with applicable municipal codes, ordinances, laws and policies, such as zoning and land use ordinances and regulations, pavement cut and restoration ordinances and regulations, subdivision and project improvement ordinances, curb cut permits, building permits, Right-of-way permits, encroachment permits, traffic control permits and the like. 19. ASSIGNABILITY. The License Agreement or Encroachment Permit(s) are not assignable by Wireless Provider (and any assignment shall be void and vest no rights in the purported assignee) unless the assignment is made in strict compliance with the following: 19.1 Assignments Affected. Every assignment of any of Wireless Provider's interest in the Right-of-way, the License Agreement, Encroachment Permit(s) or these Terms or any of Wireless Provider's rights or interests hereunder is prohibited unless Wireless Provider first receives from Town notice of Town's consent to the assignment, where Town's consent to such assignment not to be unreasonably withheld, conditioned, or delayed. All references in these Terms to assignments by Wireless Provider or to assignees shall be deemed also to apply to all of the following transactions, circumstances and conditions and to all persons claiming pursuant to such transactions, circumstances and conditions: 19.1.1 Any voluntary or involuntary assignment, conveyance or transfer of Wireless Provider's right to use the Right-of-way under this License Agreement or any interest or rights of Town under this License Agreement, in whole or in part. 19.1.2 Any voluntary or involuntary pledge, lien, mortgage, security interest, judgment, claim or demand, whether arising from any contract, any agreement, any work of construction, repair, restoration, maintenance or removal, or otherwise affecting Wireless Provider's rights to use the Right-of-way (collectively "Liens"). 19.1.3 Any assignment by Wireless Provider of any interest in the License Agreement or Encroachment Permit(s) for the benefit of creditors, voluntary or involuntary. 19.1.4 A Wireless Provider Insolvency. 19.1.5 The occurrence of any of the foregoing by operation of law or otherwise. 51 19.1.6 The occurrence of any of the foregoing with respect to any assignee or other successor to Wireless Provider. 19.2 Pre-approved Assignments. Subject to certain conditions hereafter stated, Town hereby consents to certain assignments (the "Pre-approved Assignments"). Only the following assignments are Pre-approved Assignments: 19.2.1 Complete Assignment of License Agreement and Encroachment Permits. Wireless Provider's complete assignment of all of Wireless Provider's rights and Interests in the Right-of-way, the approved License Agreement and all Encroachment Permits to a single assignee who meets all of the following requirements, as determined by Town in Town's reasonable discretion (a "Qualified Operator"): 19.2.1.1 The assignee has experience, management, credit standing and financial capacity and other resources equal to or greater than Wireless Provider's and adequate to successfully perform the obligations set forth herein. 19.2.1.2 The assignee is experienced in the management and operation of similar projects. ID 19.2.1.3 The assignee assumes all of Wireless Provider's obligations herein. 19.2.1.4 The assignee has a net worth of not less than Fifty Million and No/100 Dollars ($50,000,000.00). 19.2.2 Stock Transfers. The transfer of publicly traded stock, regardless of quantity. 19.2.3 Merger. The merger or consolidation of Wireless Provider with another entity that is a Qualified Operator. 19.2.4 Common Ownership Transfer. Wireless Provider's complete assignment of all of Wireless Provider's rights and interests in the Right-of-way, the approved License Agreement and Encroachment Permits to single assignee who is and remains a wholly owned subsidiary of Wireless Provider's sole owner as of the date of the License Agreement (or a wholly owned subsidiary of a wholly owned subsidiary of Wireless Provider's sole owner as of the date of the License Agreement). 19.3 Limitations on Assignments. Town's consent to any assignment, including without limitation, Pre-approved Assignments, is not effective until the kV following conditions are satisfied: 52 19.3.1 Except for the sale of stock, Wireless Provider shall provide to Town a complete copy of the document assigning its interests, or other such documentation acceptable to the Town. 19.3.2 Each assignee must execute an assumption of the License Agreements and/or the Encroachment Permits in form acceptable to Town. 19.3.3 Each Pre-approved Assignment must satisfy all other requirements of these Terms pertaining to assignments. 19.4 Assignment Remedies. Any assignment without Town's consent shall be void and shall not result in the assignee obtaining any rights or interests. Town may, in its sole discretion and in addition to all other remedies available to Town under these Terms or otherwise, and in any combination, terminate any and all of the License Agreement and Encroachment Permits, collect Use Fees from the assignee and/or declare the assignment to be void, all without prejudicing any other right or remedy of Town under these Terms. No cure or grace periods shall apply to assignments prohibited under these Terms or to enforcement of any provision under these Terms against an assignee who did not receive Town's consent. 19.5 Effect of Assignment. Prior to any effective assignment, each assignee must execute an assumption of each License Agreement and Encroachment IP Permit in the form attached hereto as Exhibit "C." No action or inaction by Town shall be deemed a waiver of the prohibition on assignments or any other provision herein, or the acceptance of the assignee, Wireless Provider or occupant as Wireless Provider, or a release of Wireless Provider from the further performance by Wireless Provider of the provisions of these Terms. Consent by Town to an assignment shall not relieve Wireless Provider from obtaining Town's consent to any further assignment. No assignment shall release Wireless Provider from any liability hereunder. 19.6 Enforceability after Assignment. No consent by Town shall be deemed to be a novation. Town's consent to any assignment does not in any way expand or modify the terms set forth in these Terms or waive, diminish or modify any of Town's rights or remedies under the License Agreement or any Encroachment Permit. The terms set forth in these Terms shall be enforceable against Wireless Provider and each successor, partial or total, and regardless of the method of succession, to Wireless Provider's interest hereunder. Each successor having actual or constructive notice of the License Agreement, these Terms or any Encroachment Permit shall be deemed to have agreed to the preceding sentence. 19.7 Grounds for Refusal. Except for the Preapproved Assignments, no assignment of the License Agreement or any Encroachment Permit by Wireless Provider is contemplated or bargained for. Without limitation, Town has the right IPto impose upon any consent to assignment such conditions and requirements as Town may deem appropriate. 53 19.8 Consent to Assignments. Wireless Provider shall attach to each Pre- approved Assignment a copy of Wireless Provider's notice to Town of the Pre- approved Assignment and other required documents. Wireless Provider shall attach to each other assignment, a copy of Town's notice to Wireless Provider of Town's consent to the assignment. These Terms shall continue to be enforceable according to its terms in spite of any provisions of any documents relating to an assignment. 19.9 Assignment Fee. Wireless Provider shall pay to Town in advance the sum of Five Hundred Dollars ($500) as a nonrefundable fee for legal, administrative and other expenses related to every Pre-approved Assignment other than the sale of publicly traded stock) or to any request for a consent to assignment, whether or not Town grants such request. 20. MISCELLANEOUS. The following additional provisions apply to these Terms: 20.1 Amendments. These Terms may not be amended except by a formal writing executed by all of the parties. 20.2 Dates. Any reference to a year shall refer to a calendar year unless a fiscal year is specifically stated. Sunday, Saturday and Arizona legal holidays are holidays for purposes of the License Agreement and issued Encroachment Permits. 20.3 Time of Essence. Time is of the essence of each and every provision of the License Agreement and issued Encroachment Permits. 20.4 Severability. If any provision of these Terms shall be ruled by a court or agency of competent jurisdiction to be invalid or unenforceable for any reason, then: 20.2.1 The invalidity or unenforceability of such provision shall not affect the validity of any remaining provisions of these Terms. 20.2.2 These Terms shall be automatically reformed to secure to the parties the benefits of the unenforceable provision, to the maximum extent consistent with law. 20.5 Conflicts of Interest. No officer, representative or employee of Town shall have any direct or indirect interest in the License Agreement or any Encroachment Permit, nor participate in any decision relating to the License Agreement or any Encroachment Permit that is prohibited by law. Notwithstanding the foregoing, pursuant to A.R.S. § 38-511, the Town of Fountain Hills may cancel the License Agreement or any Encroachment Permit, without penalty or further obligation, if any person significantly involved in 54 initiating, negotiating, securing, drafting or creating the License Agreement or associated Encroachment Permits on behalf of the Town is, at any time while the License Agreement or Encroachment Permits is in effect, or any extension thereof, an employee, agent or consultant to Wireless Provider in any capacity. 20.6 No Partnership. The transactions and performances contemplated hereby shall not create any sort of partnership, joint venture or similar relationship between the parties. 20.7 Nonliability of Officials and Employees. No official, representative or employee of Town shall be personally liable to any party, or to any successor in interest to any party, in the event of any default or breach by Town or for any amount which may become due to any party or successor, or with respect to any obligation of Town or otherwise under the terms of any License Agreement or related to any License Agreement or Encroachment Permit. 20.8 Notices. Notices hereunder shall be given in writing delivered to the other party or mailed by registered or certified mail, return receipt requested, postage prepaid or a national overnight express courier (such as Federal Express or UPS) to the addresses set forth in the License Agreement and to the Town as follows: If to Town: Town of Fountain Hills 16705 E. Avenue of the Fountains II Fountain Hills, AZ 85268 Attn: Town Manager Copy to: Town of Fountain Hills 16705 E. Avenue of the Fountains Fountain Hills, AZ 85268 Attn: Development Services Director 0 55 Town of Fountain Hills 0 16705 E. Avenue of the Fountains Fountain Hills, AZ 85268 Attn: Town Attorney By notice from time to time, a person may designate any other street address within Maricopa County, Arizona as its address for giving notice hereunder. Service of any notice (i) if by registered or certified ail shall be deemed to be complete three (3) days (excluding Fridays, Saturday, Sunday and legal holidays) after the notice is deposited in the United States mail or (ii) if by overnight courier upon receipt. 20.9 Construction. Whenever the context of these Terms requires herein the singular shall include the plural, and the masculine shall include the feminine. 20.10 Funding. This subparagraph shall control notwithstanding any provision of the License Agreement or any exhibit or other agreement or document related hereto. If funds necessary to fulfill Town's obligations under the License Agreement or any Encroachment Permit are not appropriated by the Town of Fountain Hills Town Council, Town may terminate the License Agreement or any Encroachment Permit, by notice to Wireless Provider. Town shall use best efforts to give notice of such a termination to Wireless Provider at least thirty 30) days prior to the end of Town's then current fiscal period. Termination in accordance with this provision shall not constitute a breach of the License Agreement or Encroachment Permit byTown. No person will be entitled to any compensation, damages or other remedy from Town if the License Agreement or any Encroachment Permit is terminated pursuant to the terms of this subsection. 20.11 Paragraph Headings. The paragraph headings contained herein are for convenience in reference and not intended to define or limit the scope of any provision of the License Agreement. 20.12 No Third Party Beneficiaries. No person or entity shall be a third party beneficiary to the License Agreement or shall have any right or cause of action hereunder. Town shall have no liability to third parties for any approval of plans, Wireless Provider's construction of improvements, Wireless Provider's negligence, Wireless Provider's failure to comply with the provisions of these Terms (including any absence or inadequacy of insurance required to be carried by Wireless Provider). 20.13 Exhibits. All Exhibits specifically stated to be attached hereto as specified herein are hereby incorporated into and made an integral part of the License Agreement for all purposes. 20.14 Attorneys' Fees. If any action, suit or proceeding is brought by either 0 party hereunder to enforce the License Agreement or any issued Encroachment Permit or for failure to observe any of the covenants of the License Agreement, 56 these Terms or any issued Encroachment Permit, or to vindicate or exercise any rights or remedies hereunder, the prevailing party in such proceeding shall be entitled to recover from the other party such prevailing party's reasonable attorneys' fees and other reasonable litigation costs (as determined by the court and not a jury) in such proceeding). 20.15 Approvals and Inspections. All approvals, reviews and inspections by Town are for Town's sole benefit and not for the benefit of Wireless Provider, its contractors, engineers or other consultants or agents, or any other person. 20.16 Legal Workers. If and to the extent A.R.S. § 41-4401 is applicable, Wireless Provider shall comply with laws regarding workers as follows: 20.16.1 Wireless Provider warrants to Town that Wireless Provider and all its subcontractors will comply with all federal immigration laws and regulations that relate to their employees and that Wireless Provider and all its subcontractors now comply with the E- Verify Program under A.R.S. § 23-214(A). 20.16.2 A breach of the foregoing warranty by Wireless Provider shall be deemed a material breach of the License Agreement and any issued Encroachment Permit that is subject to penalties up to and including termination of this License Agreement and any issued Encroachment Permits. 20.16.3 Town retains the legal right to inspect the papers of any employee of Wireless Provider or any subcontractor who works on a Use Area pursuant to License Agreement and any Encroachment Permit to ensure that they or the subcontractor is complying with the warranty given above. 20.16.4 Town may conduct random verification of Wireless Provider's and its subcontractors' employment records to ensure compliance with the warranty given above. 20.16.5 Wireless Provider shall indemnify, defend and hold Town harmless for, from and against all losses and liabilities arising from any and all violations of the warranty given above. 57 EXHIBIT A le TOWN'S DESIGN GUIDELINES] See following pages 58 vx'tAINxjl z fl that tio0i 2018 Town of Fountain Hills Small Wireless Facilities in the Right-of-Way Design Standards & Guidelines 59 Town of Fountain Hills Design Standards, Concepts and Requirements Small Wireless Facilities in the Right-of-Way Table of Contents Table of Contents 60 Definitions 62 Small Wireless Facility on Existing Streetlight 65 Small Wireless Facility on Traffic Signal Pole 68 Small Wireless Facility on Existing Utility Pole 71 Common Standard Design Concepts, Requirements and Details 76 Town of Fountain Hills Contacts 83 Exhibit Al Calculation Points for Height of an Existing Streetlight with Separated Luminaire Mast Arm ..... 84 Exhibit A2 Calculation Points for Height of an Existing Streetlight with Integrated Luminaire Mast Arm 85 IL Exhibit B Calculation Points for Height of Existing Traffic Signal Pole 86 Exhibit C Dog House— Cable Transition from Underground to Electric Utility Pole 87 Exhibit D1 Antenna Shrouds—45 Degrees 88 Exhibit D2 Antenna Shrouds —90 Degrees 89 Exhibit D3 Unacceptable Visible Cables 90 Exhibit El Examples of Electrical Meter Pedestals—"Myers" or"Milbank" Style 91 Exhibit E2 Ground Equipment Screening Examples 92 Exhibit E2 Ground Equipment Screening Examples (continued) 93 Exhibit F Cannister Antenna 94 60 Exhibit G Larsen Camouflage Examples 95 411 61 Definitions Standard Design Requirements for Small Wireless Facility Antenna" means communications equipment that transmits or receives electromagnetic radio frequency signals and that is used in providing wireless services. Antenna Mounting Bracket" means the hardware required to secure the antenna to the pole. Antenna Mounting Post" means the vertical post or pipe that the antenna mounting bracket is mounted to in order for the antenna to be attached to the pole. Antenna Shroud" means the three-sided cover that is mounted at the base of the antenna to conceal the appearance of the cables and wires from the hand-hole port on the pole to the bottom-fed antenna. Canister Antenna" means the canister or cylinder style housing used to conceal the antenna(s), amplifier(s), radio(s), cables, and wires at the top of a pole. Communications Equipment" means any and all electronic equipment at the Small Wireless Facility location that processes and transports information from the antennas to the Wireless Provider's network. 1w• Dog House" means the plastic or metal attachment to the base of a pole that covers the transition point of underground cables and wires to the vertical section of the pole. Ground Mounted Equipment" means any communications equipment that is mounted to a separate post or to a foundation on the ground. Light Emitting Diode" also referred to as "LED" is a type of lighting fixture installed on Town streetlight and traffic signal poles. Light Fixture" means the lighting unit or luminaire that provides lighting during the evening hours or during the hours of darkness. Luminaire Mast Arm" means the horizontal post that attaches the light fixture to the streetlight pole or traffic signal pole. Omni-directional Antenna" also referred to as an "omni antenna" this antenna is round in shape, like a pipe, and may be about one (1) inch diameter up to about six 6) inches diameter. Outside Diameter" also referred to as "OD" means the points of measurement, using the outer edges of a pole, pipe or cylinder. 62 Panel Antenna" means the style of antenna that is rectangular in shape and with dimensions that are generally four (4) feet to eight (8) feet in height, by eight (8) inches to twelve (12) inches wide, and four (4) inches to nine (9) inches deep. Remote Radio Heads (RRH) / Remote Radio Units (RRU)" means the electronic devices that are used to amplify radio signals so that there is increased performance farther distance) of the outgoing radio signal from the antenna. Right-of-way" as defined for wireless sites in A.R.S. §9-591(18) means the area on, below or above a public roadway, highway, street, sidewalk, alley, or utility easement. Right-of-way does not include a Federal Interstate Highway, a state highway or state route under the jurisdiction of the Department of Transportation, a private easement, property that is owned by a special taxing district, or a utility easement that does not authorize the deployment sought by the wireless provider. Sight Distance Easements" means the area of land adjacent to an intersection, driveway or roadway that has restrictive uses in order to preserve the view of oncoming or crossing vehicular and pedestrian traffic by drivers in vehicles attempting to merge with traffic or enter a roadway. Sight Visibility Triangles" means the traffic engineering and safety concept that requires clear view by the driver of a vehicle to crossing traffic at a stop sign, driveway or intersection. In order to achieve clear visibility of the cross traffic, the land areas in the sight visibility triangle has specific maximum heights on landscaping, cabinets, and other potential view obstructions. Signal Head" means the "Red, Yellow and Green" light signals at a signal-controlled intersection. Signal Head Mast Arm" means the horizontal pole that has the signal heads mounted to it and attaches to the traffic signal pole. Small Wireless Facility" as defined in A.R.S. 9-591(19), means a Wireless Facility that meets both of the following qualifications: a) All antennas are located inside an enclosure of not more than six (6) cubic feet in volume or, in the case of an antenna, that has exposed elements, the antenna and all of the antenna's exposed elements could fit within an imaginary enclosure of not more than six (6) cubic feet in volume. b) All other wireless equipment associated with the facility is cumulatively not more than twenty-eight (28) cubic feet in volume, or fifty (50) cubic feet in volume if the equipment was ground mounted before the effective date of this section. The following types of associated ancillary equipment are not included in the calculation of equipment volume pursuant to this subdivision: i) An electric meter. ii) Concealment elements. 63 iii)A telecommunications demarcation box. 0 iv)Grounding equipment. v) A power transfer switch. vi)A cutoff switch. vii) Vertical cable runs for the connection of power and other services. Stealth and Concealment Elements" means the use of shrouds, decorative elements, design concepts and faux elements so that a small wireless facility can be designed to blend in with the surrounding streetscape with minimal to any visual impact. Utility Pole" as defined in A.R.S. §9-591(21) means a pole or similar structure that is used in whole or in part for communications services, electric distribution, lighting or traffic signals. Utility pole does not include a monopole. 0 64 411. Town of Fountain Hills Standard Design Requirements Small Wireless Facility on Existing Streetlight The following design standards shall apply, in addition to the Common Standards Design Concepts, Requirements and Details that is included in this document, to a Small Wireless Facility (SWF) proposed for a location with an existing Town-owned or third party-owned streetlight in the Town of Fountain Hills Right-of-way (ROW). These design standards are not exhaustive and the Town, as the owner, keeper and manager of the ROW retains the right to modify or adjust the requirements on a case-by-case basis. A. Pole Criteria: 1. Purpose of Streetlight Pole: The primary purpose of the pole shall remain as a pole structure supporting a streetlight luminaire and related streetlight fixtures used to provide lighting to the Town ROW. The attachment of wireless equipment to an existing streetlight pole or to a replacement pole that impedes this primary purpose will not be approved. 2. General Requirement: a) An SWF shall be designed to blend in with the surrounding streetscape with minimal to any visual impact. b) A replacement pole shall match the Town of Fountain Hills standard streetlight pole for the location in which it is installed, as closely as possible, subject to more specific criteria below. c) As specified in Section 6.14 of the Town of Fountain Hills's Wireless Facilities Standard Terms and Conditions, for each individual pole type or style used to support the wireless equipment, one spare replacement pole shall be provided by the wireless provider to Town in advance so the pole can be replaced promptly in case of a knockdown. d) All plans shall be signed and sealed by a Professional Engineer licensed in the State of Arizona. e) All other details in the Town of Fountain Hills street light design standards shall apply. 3. Specific Criteria: a) New or Replacement Pole Height A new or replacement pole may be installed without zoning review if one of the two height requirements is met: 1) Up to a ten (10) foot increase, not to exceed fifty (50) feet total (whichever is less), subject to the additional limitations in A.R.S. §9-592(I); or 2) Up to forty (40) feet above ground level, per A.R.S.§9-592(J). 110 65 b) Overall Height of Replacement Pole 1) The "base" height of an existing streetlight pole shall be the height of the vertical pole section from the existing grade. The height of the luminaire mast arm, if higher than the vertical pole section, shall not be used to determine the new overall height of the replacement pole. 2) If the antennas are the highest vertical element of the site, then the new overall height of the replacement pole is measured from the existing grade to the top of the canister, top of the omni-directional antenna, or the top of the panel antenna. c) Increase in Outside Diameter (OD) of Pole The non-tapered replacement pole outside diameter (OD) of the base section shall be equal to the top section, and the OD shall not exceed eight and five- eights (8-5/8) inches (the pole manufacturing industry standard OD for an 8 inch diameter pole) or a 100% increase in diameter of the original pole, whichever is less. d) Luminaire Mast Arms 1) All luminaire mast arms shall be the same length as the original luminaire arm, unless the Town requires the mast arm to be different (longer or shorter) based upon the location of the replacement pole. 2) Unless otherwise approved, all luminaire mast arms shall match the arc (if applicable) and style of the original luminaire arm. 3) The replacement luminaire mast arm shall be at the same height above the ground as the existing luminaire. e) Luminaire Fixtures 1) All replacement poles shall have the Town standard light-emitting diode LED) light fixture installed. 2) All replacement light fixtures shall have a new Town standard photo-cell or sensor provided by the wireless provider. f) Pole Foundation 1) All pole foundations shall conform to the Town's adopted standards and specifications on streetlight design and shall be modified for wireless communications equipment and cables. 2) The Town, in its sole discretion, may require the pole foundation design to be "worst case" for all soil conditions. 3) A separate, one-inch diameter conduit shall be installed in the pole foundation for the Town's luminaire wire and any additional Town wires or cables. The Town's conduit shall be trimmed to three (3) inches above 411, the top of the pole foundation. 66 4) The height of the pole foundation shall be two (2) inches above finished 410 grade. If the pole foundation encroaches into any portion of the sidewalk, then the pole foundation shall be flush with the sidewalk. 5) Shrouds for the streetlight pole mounting bolts may be required for the replacement pole. g) Painting of Replacement Pole 1) If the replacement pole is an unpainted galvanized pole, the pole shall not be painted or have a finish unless otherwise specified by the Town. 2) For powder coated type poles, the wireless provider shall replace with same powder coated color and/or color combination per Town of Fountain Hills street light design standards or as otherwise required by the Town to minimize visual impact. h) Painting Antennas and Mounting Equipment 1) All antenna mounting brackets and hardware, antenna mounting posts, cables, shrouds and other equipment mounted on a new or replacement unpainted galvanized pole shall be painted Sherwin Williams "Web Grey" SW7075) color or equivalent, unless specified otherwise by the Town. 2) All antenna mounting brackets and hardware, antenna mounting posts, cables, shrouds and all other equipment mounted on a painted new or 0 replacement pole shall be painted a color specified by the Town. i) Wireless provider shall install pole numbers on each replacement pole (to match the number on the existing streetlight pole being replaced) per Town of Fountain Hills street light design standards. 67 Town of Fountain Hills Standard Design Requirements Small Wireless Facility on Traffic Signal Pole The following design standards shall apply, in addition to the Common Standards Design Concepts, Requirements and Details included in this document, to a Small Wireless Facility (SWF) proposed for a location with an existing Town-owned traffic signal in the Town of Fountain Hills Right-of-way (ROW). These design standards are not exhaustive and the Town, as the owner and manager of the ROW retains the right to modify or adjust the requirements on a case-by-case basis. A. Pole Criteria: 1. Purpose of Traffic Signal Pole: The primary purpose of the traffic signal pole shall remain as a pole structure supporting a traffic signal and related streetlight fixtures used to provide traffic control and lighting to the Town ROW. The attachment of wireless equipment to a new or replacement traffic signal pole that impedes this primary purpose will not be approved. 2. General Requirement: a) An SWF shall be designed to blend in with the surrounding streetscape with minimal to any visual impact. b) A replacement pole shall match the Town of Fountain Hills standard traffic signal pole, as closely as possible, subject to more specific criteria below. c) As specified in Section 6.14 of the Town of Fountain Hills's Wireless Facilities Standard Terms and Conditions, for each individual pole type or style used to support the wireless equipment, one spare replacement pole shall be provided by Company to Town in advance so the pole can be replaced promptly in case of a knockdown. d) All plans shall be signed and sealed by a Professional Engineer licensed in the State of Arizona. e) All other details in the Town of Fountain Hills traffic signal design standards shall apply. 3. Specific Criteria: a) New or Replacement Pole Height A new or replacement pole may be installed without zoning review if one of the two height requirements is met: 1) Up to a ten (10) foot increase, not to exceed fifty (50) feet total (whichever is less), per A.R.S. §9-592(I); or 2) Up to forty (40) feet above ground level, per A.R.S. §9-592(J). b) Overall Height of Replacement Pole The height of the replacement pole is measured from grade to the top of the antenna canister or the top of the panel antennas if the antennas are the highest elements. 68 c) Increase in Outside Diameter (OD) of Pole 1) If the replacement pole is a taper design, the diameter of the base section of the replacement pole OD shall not exceed twelve (12) inches or a 100% increase in the OD of the base section, whichever is less. 2) If the replacement pole is non-tapered, then the diameter of the base section shall be equal to the top section and the OD shall not exceed twelve (12) inches or a 100% increase, whichever is less. d) Signal Head Mast Arms 1) The traffic signal head mast arms shall be the same length as the original signal head mast arm unless the Town requires the mast arm to be different (longer or shorter) based upon the location of the replacement pole. 2) All signal head mast arms shall match the arc (if applicable) and style of the original signal head mast arm. e) Luminaire Mast Arms 1) All luminaire mast arms shall be the same length as the original luminaire arm unless the Town requires the mast arm to be different (longer or shorter) based upon the location of the replacement pole. 2) All luminaire mast arms shall match the arc (if applicable) and style of the original luminaire arm. f) Signal Heads 1) All existing signal heads shall be replaced, at no cost to Town, with new light-emitting diode (LED) signal heads, per Town of Fountain Hills traffic signal design standards. 2) All signal heads shall be procured from a Town approved signal heads supplier or manufacturer. g) Luminaire Fixtures 1) All replacement poles shall have the Town standard LED light fixture installed. 2) All replacement light fixture shall have a new photo-cell or sensor installed to Town standard. h) Other Town Elements on Signal Mast Arm or Pole All existing emergency signal detection units, video detection cameras, video cameras, cross walk service buttons, cross walk signals, and any other pedestrian or traffic devices shall be replaced with new units by wireless provider and installed at no cost to the Town. All equipment shall be procured from a list of Town approved suppliers. i) Signs and Other Misc. All street name plates or signs, directional signs and any other Town 69 approved signs shall be replaced with new signs at no cost to the Town. All 40 signs and attachments shall be procured from a list of Town approved suppliers. j) Traffic Signal Pole Foundation 1) All pole foundations shall conform to the Town's standards and specifications on traffic signal pole design and shall be modified for wireless communications equipment, hand holes and cables. 2) The wireless provider shall install a three (3) inch diameter (OD) conduit in the pole foundation for the Town's cables and wires for the signal heads, luminaire and devices on the signal mast arm and luminaire mast arm. The Town's conduit shall be trimmed to three (3) inches above the top of the pole foundation. 3) In addition to the conduits for the Town's use inside the pole, the wireless provider shall install one of the two options for its cables and wires: a) One, six (6) inch diameter (OD) conduit in the pole foundation; or b) Two, four (4) inch diameter (OD) conduits in the pole foundation. The length of the conduit shall extend from the pole foundation to six (6) inches above the signal head mast arm. 4) Pole Foundation — Height Above Ground Level a) If the pole foundation is in a landscaped or unimproved area, the a. height of the caisson shall be two (2) inches above finished grade. However, if the pole foundation is adjacent to or within a sidewalk or ramp, the height of the pole foundation shall be flush with the surface of the immediate area. b) Shrouds for the traffic signal pole mounting bolts may be required for the replacement pole. k) Painting of Pole, Antennas and Mounting Equipment 1) Specifications on paint color and painting process are provided in the Town of Fountain Hills traffic signal design standards. 2) For powder-coated traffic signal poles, the wireless provider shall replace with same powder-coated color and/or color combination, or as otherwise specified by the Town. I) Construction of Traffic Signal The installation work of the replacement traffic signal pole, including mast arms, signal heads and devices, must be performed by a Arizona licensed Traffic Signal Contractor with a minimum of five (5) years of experience installing traffic signals. 40 70 0 Town of Fountain Hills Standard Design Requirements Small Wireless Facility on Existing Utility Pole The following design standards shall apply, in addition to the Common Standards Design Concepts, Requirements and Details that is included in this document, to a Small Wireless Facility (SWF) proposed for a location with an existing third party-owned utility pole in the Town of Fountain Hills Right-of-way (ROW). These design standards are not exhaustive and the Town, as the owner, keeper and manager of the ROW retains the right to modify or adjust the requirements on a case-by-case basis. A. Pole Criteria: 1. Purpose of Utility Pole: The primary purpose of the pole shall remain as a pole structure supporting a cables and wires used to provide communications services and electric distribution in the Town ROW. The attachment of wireless equipment to an existing third party-owned utility pole that impedes this primary purpose will not be approved. 2. General Requirement: a) An SWF shall be designed to blend in with the surrounding streetscape with minimal to any visual impact. b) A SWF mounted on an existing third party-owned utility pole is subject to more specific criteria below. c) All plans shall be signed and sealed by a Professional Engineer licensed in the State of Arizona. 3. Specific Criteria: a) Replacement Pole Height A replacement pole may be installed without zoning review if one of the two height requirements is met: 1) Up to a ten (10) foot increase, not to exceed fifty (50) feet total (whichever is less), per A.R.S. §9-592(I); or 2) Up to forty (40) feet above ground level, per A.R.S.§9-592(J). b) Overall Height of Replacement Utility Pole 1) The "base" height of an existing utility pole shall be the height of the vertical pole section from the existing grade. 2) If the antennas are the highest vertical element of the site, then the new overall height of the replacement pole is measured from the existing grade to the top of the canister or the top of the panel antenna. c) Use of Existing Pole — Wood 0 71 1) An existing wood pole used for a SWF shall have the antennas contained within an eighteen (18) inch (OD) canister mounted at the top of the pole. 2) Unless otherwise approved, the cables and wires from the base of the pole to the antennas shall be installed in a conduit or cable chase outside of the pole, facing away from the street or away from on-coming traffic. 3) If a "dog house" (see Exhibit C) is required as a transition point connecting the underground cables and wires from the ground mounted equipment to the pole, the Town shall provide the maximum size, dimension and shape of the dog house on a case-by-case basis. d) Use of Existing Pole — Metal 1) An existing metal pole used for a SWF shall have the antennas contained within an eighteen (18) inch (OD) canister mounted at the top of the pole. 2) Panel antennas on a metal pole shall have the same "RAD center" (center of radiation) so the antennas will be at the same height on the pole. 3) The cables and wires from the base of the pole to the antennas shall be installed inside of the pole. e) Painting of Pole and Dog House 1) If the replacement pole is an unpainted galvanized pole, the pole shall not be painted or have a finish unless otherwise specified by the Town. 2) If the existing or replacement pole includes a dog house for the transition of the cables and wires to the pole, the dog house shall be painted the same color as the pole or a color specified by the Town. f) Painting Antennas and Mounting Equipment 1) All antenna mounting brackets and hardware, antenna mounting posts, cables, shrouds and other equipment mounted on a new or replacement unpainted galvanized pole shall be painted Sherwin Williams "Web Grey" SW7075) color or equivalent, unless specified otherwise by the Town. 2) All antenna mounting brackets and hardware, antenna mounting posts, cables, shrouds and all other equipment mounted on a painted new or replacement pole shall be painted a color specified by the Town. 3) If the antenna is mounted on a wood pole, the color of the antenna, antenna canister, mounting brackets and posts, shrouds and cable chases shall be painted a color specified by the Town that will closely match the color of the wood. g) Ground Mounted Equipment The Town may require the ground-mounted wireless equipment to be screened or concealed to reduce the visual impact to the surrounding area. The screening or concealment shall take into account the location of the site, the use of the immediate area, and the existing aesthetic elements surrounding the site. 72 Town of Fountain Hills Standard Design Requirements Wireless Facility on New Structures in ROW The following design standards, in addition to the Common Standards Design Concepts, Requirements and Details that are included in this document, shall apply to a Wireless Facility that a wireless provider may install in the ROW that is not: 1) a replacement pole for an existing streetlight, 2) a replacement pole for an existing traffic signal or 3) a replacement pole for an existing utility pole. The new wireless support structure, monopole or utility pole (the "New Structure") shall incorporate the highest level of stealth and concealment of the antennas and wireless equipment in order to minimize the visual impact of the site to the public. A. Pole Criteria: 1. Purpose of the New Structure: The sole purpose of a new vertical element is to attach antennas for the provision of wireless services by a wireless provider in the Town's ROW. 2. General Requirement: a) The New Structure shall be designed to minimize the visual and aesthetic impact of the new vertical element and associated equipment upon the look, feel, theme, and use of the surrounding area. b) A wireless facilityshall be designed to blend in with the surrounding9 streetscape and/or landscape with minimal to no adverse visual impact. c) The New Structure shall be architecturally integrated and compatible with the use of the surrounding area. d) The height of the New Structure cannot exceed the maximum allowed height of the zoning district that the site is proposed. e) All plans shall be signed and sealed by a Professional Engineer licensed in the State of Arizona. 3. Specific Criteria: a) New Structure Height. A New Structure may be installed without zoning review if one of the two height requirements are met, see A.R.S. §9-592(I) and A.R.S. §9-592(J): 1) A.R.S. §9-592(I) states that the small wireless facility in the ROW is not subject to zoning review and approval in Section 9-594 if the utility pole does not exceed the greater of either: i. Ten feet in height above the tallest existing utility pole, other than a utility pole supporting only wireless facilities, that is in place on the effective date of this section, that is located within five hundred feet of the new, replacement or modified utility pole and 73 that is in the same right-of-way within the jurisdictional boundary of the authority, but no more than fifty feet above ground level. ii. Forty feet above ground level. 2) A.R.S. §9-592(J) states that new small wireless facilities collocated on a utility pole or wireless support structure in the right-of-way are not subject to zoning review and approval if they do not extend more than ten feet above the utility pole or wireless support structure and do not exceed fifty feet above ground level. b) Setbacks. Any New Structure subject to zoning review shall comply with all Town fall and setback requirements, including a 100% setback from all property lines, occupied structures, public roadways and sidewalks. c) Overall Height of New Structure. The height of the New Structure is measured from existing grade to the highest point of the New Structure. d) Stealth and Concealment Elements 1) New Structures shall be located in areas where they can blend into the existing built and natural environment, where existing landscape elements may assist with concealing the structure from view, and where the addition of the structure will least affect the view sheds from neighboring properties.0 2) Depending upon the location of the New Structure and the character of the neighboring area, the Town may require additional landscaping to be installed in connection with the Town's approval of the application. The additional landscaping may include trees, mature vegetation, natural features or hardscaping. 3) The Wireless Provider shall conceal all equipment within a faux cactus structure, similar to the 22' to 40' tall Larsen Camouflage design (see Exhibit G) or as otherwise approved by the Town. i. New Structures thus concealed shall comply with standard details, such as dimensions, colors and materials similar to existing faux cactus installations in the Town. 4) As part of the stealth and concealment elements of the New Structure, the Town may require the wireless provider to install street name plates, directional signs, and other decorative signs or artistic elements on the structure. 5) The wireless provider is solely responsible for the cost of all stealth and concealment elements and the installation of other elements required by the Town. 6) The wireless provider is responsible for the performance of and any costs incurred for regular upkeep, maintenance and replacement (if necessary) of these stealth and concealment elements. 74 e) Architectural Integration with Surrounding Area 4110 1) The New Structure shall be designed in consultation with various internal Town stakeholders and may include external stakeholders. 2) The Town may require the New Structure to be constructed of a specific material or specific design that will enhance the stealth and concealment of the site. f) Foundation 1) The foundation for the New Structure, if required, shall conform to civil and structural engineering standards acceptable to the Town, with design modifications for wireless communications equipment and cables. 2) Unless otherwise stated herein, the height of the New Structure foundation shall be two (2) inches above finished grade. However, if the New Structure foundation is adjacent to or within a sidewalk or ramp, the height of the pole foundation shall be flush with the surface of the immediate area. 3) Shrouds for the pole mounting bolts may be required. 4) If the New Structure is concealed as a faux cactus installation, the structure shall be installed to appear as part of the natural environment, and shall not be located on existing concrete such as sidewalks or curbs, nor shall concrete be placed around the base of the facility except as needed to anchor and support the structural elements of the structure. All such concrete and anchor devices shall be shielded from view by earth, rocks, decomposed granite and landscaping as required by the Town. g) Painting 1) The Town shall identify the paint colors, location of paint and any decorative work that may be painted onto the New Structure or ground equipment. 2) If visible, the Town shall identify the paint colors for the antennas, antenna mounting brackets and posts, antenna shrouds, and cables. 3) The Town may require the New Structure or ground equipment to be painted using a powder-coat or other process. h) Ground Mounted Equipment The Town may require the ground-mounted wireless equipment to be sited and screened or concealed to reduce the visual impact to the surrounding area. The screening or concealment shall take into account the location of the site, the use of the immediate area, and the existing aesthetic elements surrounding the site. 75 Town of Fountain Hills Small Wireless in the ROW Common Standard Design Concepts, Requirements and Details The following standard design requirements shall be applied to all new small wireless facilities in the Town's ROW, whether for a small wireless facility to be installed on an existing or replacement streetlight pole, an existing or replacement traffic signal pole, an existing or replacement utility pole, or on a New Structure. A. Pole Design & Installation 1. Replacement Pole Clearances — Underground Utilities All ground-mounted electrical equipment shall maintain minimum horizontal clearance from underground utilities. Clearance from water lines shall be at least six (6) feet. Clearance from sewer lines shall be at least six (6) feet. Clearance from telecommunications shall be at least one (1) foot. Clearance from cable television lines shall be at least one (1) foot. Clearance from all other underground infrastructure shall be at least six (6) feet. 1110 a) The Town, in its sole discretion, may grant a variance, upon approval by the Town Engineer, from these horizontal separation distances on a case-by- case basis. The approval of a variance is dependent factors specific to the site. b) In the case where there is an issue with horizontal separation from other underground utilities, the wireless provider may elect to work with the impacted utility to have lines, pipes or property moved so that minimum clearance is achieved. All relocation of Town-owned or a privately-owned utility shall be at the sole expense of the wireless provider. 2. Calculating the Base Height of an Existing Pole The base height, from which the calculation of the "increase in pole height" is referenced for determining the overall pole height, shall be calculated as follows: a) Streetlight Pole (see Exhibit Al and A2) 1) A streetlight with a separate luminaire mast arm mounted to the vertical pole shall use the top of the vertical pole as the base height. 2) A streetlight, with the luminaire mast arm integrated (e.g. telescopic style pole) into the top vertical section of the pole, shall use the point on the pole where the mast arm is connected plus twenty-four (24) inches as the base height. b) Traffic Signal Pole (see Exhibit B) A traffic signal pole with a luminaire mast arm that is mounted above the 76 signal head mast arm to the pole shall use the top of the vertical portion of the pole as the base height. 3. Replacement Pole Clearance — Original Streetlight Pole or Traffic Signal Pole The minimum distance of the replacement pole from the original pole location shall be sixty (60) inches or more so that construction can occur safely. The Town may change this minimum distance on a case-by-case basis. 4. Replacement Pole Clearances — Sidewalks The new or replacement pole shall maintain twelve (12) inch minimum clearance distance from sidewalks. The Town, in its sole discretion, may increase that minimum clearance on a case-by-case basis to ensure the safe use of the sidewalk and adjacent area. 5. Sight Distance Easements (SDE) and Sight Visibility Triangles (SVT) All new and replacement poles shall be installed in a location that does not impair or interfere with SDE or SVT safety requirements as reasonable determined by the Town. 6. Cables, Wires and Jumpers a) All cables for the wireless equipment and antennas — except where such cables or wires attach to the ports in the antenna — shall be located inside a conduit, inside the caisson, or inside the pole, as appropriate. There shall not be any "dog house" or externally visible conduit or entry point of the cables unless specified by the Town. b) All cables for the wireless equipment and antennas shall exit the pole or conduit at a location, behind the antenna shroud, and shielded from view. It is the intent of the Town that the cables shall not be visible. 1) See Exhibit D1 for examples of appropriately shielded cables. 2) See Exhibit D2 for examples of unacceptable cabling. c) All electrical wires for the streetlight luminaire, traffic signal heads, and any Town device on the pole shall be new and connected to the existing power source. 7. Hand-holes a) All hand-hole locations shall be called out on the plans. b) All hand-holes near antennas shall have the top of the hand-hole no lower than the bottom height of the antennas. c) The bottom of the hand-hole should not exceed six (6) inches below the bottom of the antenna. 8. Wireless Facility Identification Information 77 a) A four (4) inch by six (6) inch Radio Frequency Safety notice may be mounted no less than twenty-four (24) inches from the bottom of the antenna, facing away from traffic. b) The wireless provider may place on the pole a discreet site identification or number. The size, color and location of this identifier shall be determined by the Town. c) The Town, as specified in the Wireless Facilities Standard Terms and Conditions, may require the wireless provider to place on the pole, in a discreet but accessible location, the telephone number of wireless provider's network operations center. d) No wireless provider signs may be placed on a streetlight, traffic signal pole, wireless support structure, or a new or replacement pole except to the extent required by local, state or federal law or regulations. 9. Interference with Town Wireless Network The Town has, or may have in the future, certain wireless devices in a network that connects traffic signals, community centers, water sites, and other locations for the Town's proprietary use. The selection of a location for a wireless site shall consider the potential interference of the Town's wireless network with RF from a wireless provider's proposed site. 10. Cable Chase and Dog Houses The Town, in its sole discretion, shall determine if an exterior cable chase and dog house are aesthetically compatible with the pole and immediate area. The materials and paint color of the cable chase and dog house shall be determined on a case-by-case basis. B. Removal of Original Pole, Equipment and Pole Foundation 1. Removal of Original Signal Pole, Mast Arm, Signal Heads and Luminaire a) The Town shall determine what original components, (e.g., original pole, mast arm, signal heads and luminaire, etc.) shall be delivered by the wireless provider, at no cost to the Town, to a location specified by the Town. b) If the Town accepts some of the original components, then only those components shall be delivered by the wireless provider to the Town and the remaining components shall be discarded by the wireless provider. 2. Removal of Original Streetlight or Traffic Signal Pole Foundation The concrete pole foundation for the original streetlight or traffic signal pole shall be removed by the wireless provider as instructed by the Town: a) Partial Removal The original pole foundation shall be taken back to a level that is twelve (12) inches below existing grade and covered with four (4) inches of one-half (1/2") III inch to three (3/4") quarter inch rock materials. The remaining eight (8) inches shall be native soil. 78 b) Complete Removal If the entire original pole foundation must be removed, then all materials concrete, rebar, metals, bolts, etc.) shall be removed. The Town's Inspector shall determine, on a case-by-case basis, the type of backfill material and compaction required — ranging from native soil that is compacted to a half 1/2) sack slurry for the entire depth, or a combination of native soil and slurry. C. Antennas, RRH/RRU, Cables and Mounting on Pole: 1. General Requirement: All antennas shall be installed in a manner that minimizes the visual impact to the general public. In order to minimize the visual impact, wireless providers should use canister antennas, where possible and appropriate unless the Town's stealth and concealment requirements indicate otherwise. See Exhibit F. All work shall be performed in a professional manner that is consistent with the highest standards of workmanship. 2. Specific Criteria: a) Antenna Mounting Posts and Brackets 1) All panel antennas shall be mounted directly to the pole or onto a mounting pole so that the distance from the "face" of the streetlight pole to the back of the antenna does not exceed nine (9) inches. 2) All mounting posts shall be trimmed so that the poles do not extend higher than the top of the antenna or protrude lower than the antenna unless necessary to install the shroud. 3) All pole attached wireless equipment must be a minimum ten (10) feet from the sidewalk elevation. b) Panel Antennas 1) All panel antennas for a small cell site shall fit within an imaginary enclosure of not more than six (6) cubic feet in volume in accordance with A.R.S. §9-591(19)(a). (NOTE: This volume does not include antenna cable shrouds when required.) 2) All panel antennas with exposed cables from the bottom of the antenna shall have a shroud installed on the antenna or antenna mounting posts to conceal the cables. (see Exhibits D1 and D2) a. The type of shroud may be a forty-five (45) degree angle (away from the bottom of the antenna; toward the pole) or a ninety (90) degree angle (parallel to the bottom of the antenna) depending on the location of the site. b. The shroud shall extend from the bottom of the antenna to two (2) inches below the bottom of the nearest hand-hole. c) Canister Antennas 11110 79 1) All canister antennas shall fit within an imaginary enclosure of not more 0 than six (6) cubic feet in volume. (Note: This volume does not include the canister as it is a stealth device and not the antenna.) 2) The canister shall be no larger than eighteen (18) inches in diameter (OD). 3) All canister antennas shall be located in a canister that is mounted to a base plate at the top of the vertical section of the replacement pole. 4) All cables protruding from the canister shall be concealed within the canister or by a shroud at the point where the canister is mounted to the base plate. d) Remote Radio Heads (RRH) / Remote Radio Units (RRU) Under State Law §9-591(19)(a), the RRH/RRU is not considered part of the antenna. If allowed, the RRH/RRU shall be calculated as part of "All other wireless equipment associated with this facility..." in A.R.S. §9-591(19)(b) that is subject to the twenty-eight (28) cubic feet maximum size for small cell sites. 1) On a case-by-case basis, the Town in its sole discretion and — upon reviewing the landscape in the immediate surrounding area, the location of the pole, and stealth options, may allow a site to have an RRH/RRU installed on the pole. D. Ground-mounted Equipment: General requirement: All ground-mounted equipment shall be installed in a mannerLi.that minimizes the visual and ingress/egress impact to the general public. All work shall be performed in a professional manner that is consistent with the highest standards of workmanship. 2. Specific criteria: a) Sight Distance Easements (SDE) and Sight Visibility Triangles (SVT) All ground-based wireless equipment shall be installed in a location that does not impair or interfere with SDE or SVT safety requirements. To ensure proper sight distance, all Town of Fountain Hills Traffic Engineering Standard Details shall apply. b) Ground Equipment Location — Generally All ground-based wireless equipment, including but not limited to equipment cabinets or power pedestals, shall be placed as far as practical to the back of the ROW while maintaining at least three (3) feet of ingress/egress in the ROW or public utility easement (PUE) around the equipment. c) Ground Equipment Clearances—Underground Utilities 1) All ground-mounted electrical equipment shall maintain minimum horizontal clearance from below-ground utilities: Clearance from water lines shall be at least six (6) feet. Clearance from sewer lines shall be at least six (6) feet. 80 Clearance from telecommunications shall be at least one (1) foot. 0 Clearance from cable television lines shall be at least one (1) foot. Clearance from all other underground infrastructure shall be at least six 6) feet. 2) The Town, in its sole discretion, may grant a variance upon approval from the Town Engineer, from these horizontal separation distances on a case- by-case basis. The approval of a variance is dependent on factors specific to the site. i 3) In the case where there is an issue with horizontal separation from other underground utilities, the wireless provider may elect to work with the impacted utility to have its lines, pipes or property moved so that minimum clearance is achieved. All relocation work of Town-owned or a privately- owned utility shall be at the sole expense of the wireless provider. d) Ground Equipment Clearance — Sidewalks The ground equipment shall maintain a minimum twelve (12) inch clearance distance from sidewalks. The Town, in its sole discretion, may increase the minimum clearance on a case-by-case basis to ensure the safe use of the sidewalk and adjacent area. 11, e) Compliance with Height Requirements Evidence or documentation that, where the above-ground structure is over thirty-six (36) inches in height, given its proposed location, the structure will comply or be in compliance with applicable Town of Fountain Hills planning and zoning ordinances. f) Screening of Ground Equipment The Town requires that ground-mounted equipment be screened; the type of screening materials and design will be addressed on a case-by-case basis. See Exhibit E2 for general screening examples that the Town may consider on a case by case basis. 1) In cases when screening is not possible, the Town may specify the location, orientation or paint color of the ground-mounted equipment. 2) Town may require ground-mounted equipment to be located underground except for the electricity meters, kill switches, etc.). g) Decals and Labels 1) All equipment manufacturers' decals, logos and other identification information shall be removed unless required for warranty purposes. 2) The wireless provider of the site may place an "Emergency Contact" or Network Operations Center" decal or emblem to the ground equipment. 0 3) The ground-mounted equipment shall not have any flashing lights, sirens 81 or regular noise other than a cooling fan that may run intermittently. h) Equipment Cabinets on Residential Property 1) Residential Single-Family Lot The Wireless Equipment and Ancillary Equipment listed in A.R.S. §9- 591(19)(b) shall not exceed thirty-six (36) inches in height in the front yard of a residential single-family zoned property. 2) Air-conditioning Units Unless otherwise specified by Town, a wireless equipment cabinet with air-conditioning (not a fan only) shall be enclosed by walls and setback a minimum of fifteen (15) feet from lots where the existing or planned primary use is a residential single-family dwelling. i)Electric Company Meter 1) All electric company meters shall be installed in the ROW or PUE. The location of the meter equipment shall have minimum ingress and egress clearance from private property lines and driveways. 2) All electric company meters shall maintain minimum clearance from above-ground utility cabinets and below-ground utilities. 3) All electric company meters shall be installed in a location that does not impair or interfere with the SDE or SVT safety requirements of the Town. 4) The electric company meters shall be screened or contained within a Myers-type" or "Milbank-type" pedestal cabinet that is painted to match the ground equipment or as specified by the Town. (see Exhibit E) 5) In the case where screening is not required, the Town may specify the paint color of the electric company meter cabinet on a case-by-case basis. 82 Town of Fountain Hills Contacts For questions regarding the 2018 Town of Fountain Hills Design Standards, Concepts & Requirements for Wireless Facilities in the Right-of-Way, contact: Town of Fountain Hills Development Services Director: Robert Rodgers 480-816-5138 1 1 ill 83 0 Exhibit Al Calculation Points for Height of an Existing Streetlight with Separate Luminaire Mast Arm ip.7„,,, r f , i y/;a rram,-° • . a p M 141 The purple line next to the streetlight depicts the section of the existing1 i 1 ri streetlight pole that shall be used to calculate the height of the existing q pole. The lines are not to scale and II I., are solely used for illustrative purposes. a ro.r k -fin... a l 5 ji til s i', Yg cS t ,,flk"i3 r k,:,. a, 414 a ',J ,,#sd Y i.am,. .a a±.nm ww._ ' 84 Exhibit A2 Calculation Points for Height of an Existing Streetlight with Integrated Luminaire Mast Arm The"Connection Point"on an Existing Telescopic Style Streetlight Pole with an Integrated as;.o-aror.& r<mv«Wimae.; r,14.a,.-' k,.rMv Luminaire Mast Arm nA e • S f The top and Bottom Points on a telescopic Streetlight Pole to •"" Calculate the Verticle Height of the Existing Streetlight Pole Plus Twenty-four(24) inches 85 0 Exhibit B Calculation Points for Height of Existing Traffic Signal Pole The Top and Bottom Points on a Traffic Signal i Pole to Calculate the Base Vertical Height of the Existing Pole ff ram r:. 10 86 Exhibit C 0 Dog House—Cable Transition from Underground to Electric Utility Pole 4 'JOY f‘ig',' ,';,4";;-,?-;:',:4",''?,- -Y" 444,.,,w0:,:, , ' 7.,,-,, , -,', 5',: c''''*' I'''::; t:::%'i/c':' s: 6'' 4: 1::, b:'';',,,'',')",",100...,.....,....''''''''''''''://'''''''''' Ime'f ' i f is ' a , r ` A y ,p y i F„'q y` External cable chase the cables and wires are mounted underneath the chase. Algite f It 2, I II 1 ' -,410 ii 1, s 1 i, ! ,i4,14,44,, . , is, , Ns, 1 . . . le 40 0 1it,„,.. i, p ,6,.'fit,a' 4 4, r$,„ a w r sH c t, E nk Dog House"with external cable chase installed at the e." R base of a pole to cover the s ' a cables and wires when they ,,#ee'' cannot be installed inside the utility pole. 87 Exhibit D1 10 Antenna Shrouds—45 Degrees S , 'icy w x • 2a 9 Q Gk t ''•'AxQ of CA fir I f ms Ali t - z I 4. 41ter...,......... i'4-,',,,,'-.. C.%4•'S'i*,*,, 1,',.^..li wry. ..•_..... ter-_ 11 88 Exhibit D2 Antenna Shrouds—90 Degrees k d t rk a,•z '.•. z r ama 1 ikl4A*;;;67 i4$41.:tt, 4 r T yj a T D d j l• a 3Eb i b rs c r 7 1 7 ice 89 Exhibit D3 Unacceptable -Visible Cables ems• at.r 90 0 Exhibit E 1 Examples of Electrical Meter Pedestals—"Myers"or"Milbank" Style n d• ' w,roA- sw wa "saw..,e , ce<x, ",, nn.,d--- a r, - r> ,„,,.,st Ot*\\* t by Rya 1,,,).,:: 1"' '''' r 1""""" 111,t, 1 Sa c i .. i Rr y' Ire., ft A« 1471.,,,,,'",P, . =14.,'6,.*''' tlot- '4V01..)' 4"Oti':',i. tk3:*'-'..." ,r4t.',..' dtvitk;itp.„:„;.,:fih„ -0 ,‘„Ii.,;,11. ,,„7 4,,,,.',...f:t.„:: .. '%."141#.7s. ._ ' h .wort 4-. 1....r ..as *I, II 91 Exhibit E2 Ground Equipment Screening Examples A00 f i 111116,01aferilk 111**,4erot . ,,, . •, III r. .. _ r,,..„.:,„.... r.,- r „.„,„,.,,,,,,,,„:„,..,„.„,,y,,,,,,,,--,,,-„,-,,,,,,,,,,,,:, I Fr; i's 0 92 Exhibit E2 Ground Equipment Screening Examples (continued) ter 4; a . St s, E tea. t W T 11 , :+- AA e r1 93 Exhibit F Canister Antenna kt 94 Exhibit G L7117t5ON 4110 A oe, 4 A. A A.AotIrAt; Saguaros The need for concealed sites is also prevalent in the desert southwest region. To servemp bthisseil, w need we have developed a Saguaro Cactu .Utilizingan RF-friendly, naturalistic looking al,le to position antenna panels not only in the hollow shell of the upper main trunk.butalsoeintheindividualarms. This offers grenter flexibility in terms ofmultiple panels per sector, horizontal separation,and centerline height. OurSaguaros range from 10-40 feet tall,housing one to two antenna arrays. Scars,woodpecker holes thousands ofpainted needles enhance the realism. Even the birds can't tell the diff41411100 PHOENIX 77018-1 429462v3 95 EXHIBIT B 0 LETTER OF CREDIT FORMS AND INSTRUCTIONS] See following pages IP 0 96 Wireless Facility Irrevocable Letter of Credit Template iiiw Instructions: The following four (4) pages contain the template for an irrevocable letter of credit relating to wireless facilities to be located within Town rights-of-way. Throughout the document there are blank spaces into which should be inserted the wireless facility provider name, bank name and letter of credit document name. Please insert this information where requested. The irrevocable letter of credit number may not be available when the initial submission of the draft language for review is made. This can be inserted later when the letter is actually issued by the named financial institution. Submit the draft irrevocable letter of credit, together with to the Town's Development Services Director. The issuer of the irrevocable letter of credit shall be a federally-insured financial institution, a member of the New York Clearing House Association or another commercial bank or trust company satisfactory to the Town, having a net worth and financial wherewithal also satisfactory to the Town. As a reminder, any assurance submitted in a format other than the approved letter of credit template is subject to review by the Town Attorney and Town Development Services Director and may not be accepted. 0 97 FORM OF WIRELESS FACILITY LETTER OF CREDIT INSERT BANK NAME] INSERT LETTER OF CREDIT DOCUMENT NAME] 20 Letter of Credit No. Initial Expiration Date: Town of Fountain Hills 16705 E. Avenue of the Fountains Fountain Hills, AZ 85268 Attn: Small Cell Administrator At the request and for the account of our customer, [Insert Wireless Facility Provider name], a(n) Provider"), [Insert Bank Name] ("us", "we" or "Bank"), hereby establishes, in favor of Town of Fountain Hills, an Arizona municipal corporation ("Town"), this clean, irrevocable and unconditional [Insert Letter of Credit Document Name] Letter of Credit"). This Letter of Credit authorizes you to draw on us in amounts which in the aggregate shall not exceed the Stated Amount (herein so called) of Dollars We hereby engage with you that draft(s) drawn and presented in compliance with the terms contained in this Letter of Credit will be duly honored upon presentation as stated above, on or before the expiration date hereof. You may obtain the funds available under this Letter of Credit by presentment to us of your sight draft or drafts drawn on us in the form set forth as Exhibit A" hereto, accompanied by copies of the original of this Letter of Credit and amendment(s) thereto, if any. Within ten (10) days after we honor your draft, you must make the original of this Letter of Credit available to us in Maricopa County, Arizona upon which we may endorse our payment. Drafts may be presented by any of the following means: By telefax to ( By email to By hand or overnight courier service delivery to: This address must be in Maricopa County, Arizona.] Cor By hand or overnight courier service delivery to: 98 This address need not be in 41, Maricopa County, Arizona] This Letter of Credit is valid until 201_ and shall thereafter be automatically renewed for successive one (1) year periods, unless, at least one hundred twenty (120) days prior to expiration, we notify you in writing, by either registered or certified mail, that we elect not to renew the Letter of Credit for such additional period. In the event of such notification, any then unused portion of the Letter of Credit shall be available upon your presenting to us your draft on or before the then- current expiration date. If cancellation of this Letter of Credit is required before the expiry date stated herein (which may be extended from time to time either automatically as stated in Item 4 immediately above or by written amendment by us and acceptance by you), the original of this Letter of Credit and amendment(s) thereto, if any, must be returned to us accompanied by your letter requesting cancellation in the form attached hereto as Exhibit "B". This letter of credit may also be reduced upon our receipt of a reduction certificate, the form of Exhibit "B". You may draw the full amount of this Letter of Credit or only part of it from time to time, in your discretion; provided, that the total of all drafts honored by us under this Letter of Credit shall not exceed the Stated Amount available to you under this Letter of Credit. Unless otherwise expressly stated herein, this Letter of Credit is subject to the Uniform Customs and Practice for Documentary Credits (2007 Revision), International Chamber of Commerce Publication No. 600. Very truly yours, Insert Bank Name] By: Name: Its: 99 EXHIBIT A Drawn Under [Insert Bank Name] Insert Letter of Credit Document Name] No. U.S.) 20_ To: [Insert Bank Name] Drawn under [Insert Bank Name] [Insert Letter of Credit Document Name] No. I am the Development Services Director, and a duly authorized representative, of Town of Fountain Hills, an Arizona municipal corporation(the"Town"),the beneficiary of[Insert Bank Name] [Insert Letter of Credit Document Name] No. and hereby certify that the amount drawn hereunder represents funds currently due the Town under separate agreement(s)with [Insert Name of Provider]. Accordingly,please pay to the Town Dollars($ Please make payment to the Town in the form of a wire deposit to: If such deposit cannot be accomplished immediately for any reason, please make your payment in the form of a cashier's check issued by your institution and delivered to me at 16705 E Avenue of the Fountains Fountain Hills, AZ 85268, Attn: Development Services Director. If there is any imperfection or defect in this draft or its presentation, please inform me immediately at (480) 816-5122 so that I may correct it. Also, please immediately notify the Town Attorney. TOWN OF FOUNTAIN HILLS By: Name: Its: Development Services Director tor 100 EXHIBIT B Date: and Ref: Letter of Credit No. As parties to the above referenced Letter of Credit, we request that the following action(s)be taken as evidenced by our initials and signatures below: Please initial: Reduce the amount from U.S. $ to U.S. $ Extend the expiration date from to Cancel this Letter of Credit effective immediately. Enclosed herewith are the original Letter of Credit documents, including the amendment(s), if any,thereto. 1111 Note: If any of these documents are not included with this letter,you must specify each missing document and explain the reason why it is not being returned.) Town of Fountain Hills, an Arizona municipal corporation By: Name: Title: a(n) By: Name: Title: 41111 100 EXHIBIT C 0 FORM OF ASSIGNMENT] See following pages 1111 101 Assumption Of Wireless Facility License Agreement This assumption is made pursuant to Paragraph 19 of the Town of Fountain Hills Wireless Facilities Standard Terms and Conditions ("Terms"), incorporated by reference into that certain Wireless Facility License Agreement (the "License Agreement") between Town of Fountain Hills, an Arizona municipal corporation ("Town") and a Wireless Provider") dated 20 a Assignee"), having acquired the rights of the Wireless Provider under the License Agreement, hereby assumes the License Agreement, agrees to be bound thereby, and obligates itself to fully perform the terms and conditions of the License Agreement, all in favor of Town. ASSIGNEE WARRANTS AND REPRESENTS THAT ASSIGNEE HAS READ AND AGREES TO THE TOWN OF FOUNTAIN HILLS WIRELESS FACILITIES STANDARD TERMS AND CONDITIONS. After the Date of this assumption, notices to Assignee shall be addressed as follows: Assignee's network operations center phone number as required by the Terms is 1 Assignee's address for notices as required by the Terms shall be: i Assignee's billing address for routine billing invoices as required by the Terms shall be: 102 Assignee understands that nothing in this Assumption serves to modify any provision (except for the Notice addresses, as provided above) or extend the Term of the License Agreement. The person signing this document on behalf of Assignee warrants to Town his authority to do so. 111116, Dated: 20 ASSIGNEE: a By: Its: STATE OF ss. COUNTY OF The foregoing instrument was acknowledged before me this day of 20 ,by of a 40 Notary Public My Commission Expires: Date 103 EXHIBIT C TO RESOLUTION NO. 2018-18 2018 Town of Fountain Hills Wireless Facilities in the Right-of-Way Design Standards and Guidelines] See following pages. 410 411 104 1Ally c.tP 0 a - 9prbit is.._ i sop 2018 Town of Fountain Hills Small Wireless Facilities in the Right-of-Way Design Standards & Guidelines 105 Town of Fountain Hills Design Standards, Concepts and Requirements Small Wireless Facilities in the Right-of-Way Table of Contents Table of Contents 106 Definitions 62107 Small Wireless Facility on Existing Streetlight 110 Small Wireless Facility on Traffic Signal Pole 113 Small Wireless Facility on Existing Utility Pole 1171 Common Standard Design Concepts, Requirements and Details 122 Town of Fountain Hills Contacts 1283 Exhibit Al Calculation Points for Height of an Existing Streetlight with Separated Luminaire Mast Arm 129 Exhibit A2 Calculation Points for Height of an Existing Streetlight with Integrated Luminaire Mast Arm 130 Exhibit B Calculation Points for Height of Existing Traffic Signal Pole 131 Exhibit C Dog House— Cable Transition from Underground to Electric Utility Pole 132 Exhibit D1 Antenna Shrouds —45 Degrees 133 Exhibit D2 Antenna Shrouds — 90 Degrees 134 Exhibit D3 Unacceptable Visible Cables 135 Exhibit El Examples of Electrical Meter Pedestals —"Myers" or"Milbank" Style 136 Exhibit E2 Ground Equipment Screening Examples 137 Exhibit E2 Ground Equipment Screening Examples (continued) 138 Exhibit F Cannister Antenna 139 106 Exhibit G Larsen Camouflage Examples 140 c 107 Sier Definitions Standard Design Requirements for Small Wireless Facility Antenna" means communications equipment that transmits or receives electromagnetic radio frequency signals and that is used in providing wireless services. Antenna Mounting Bracket" means the hardware required to secure the antenna to the pole. Antenna Mounting Post" means the vertical post or pipe that the antenna mounting bracket is mounted to in order for the antenna to be attached to the pole. Antenna Shroud" means the three-sided cover that is mounted at the base of the antenna to conceal the appearance of the cables and wires from the hand-hole port on the pole to the bottom-fed antenna. Canister Antenna" means the canister or cylinder style housing used to conceal the antenna(s), amplifier(s), radio(s), cables, and wires at the top of a pole. Communications Equipment" means any and all electronic equipment at the Small Wireless Facility location that processes and transports information from the antennas to the Wireless Provider's network. Dog House" means the plastic or metal attachment to the base of a pole that covers the transition point of underground cables and wires to the vertical section of the pole. Ground Mounted Equipment" means any communications equipment that is mounted to a separate post or to a foundation on the ground. Light Emitting Diode" also referred to as "LED" is a type of lighting fixture installed on Town streetlight and traffic signal poles. Light Fixture" means the lighting unit or luminaire that provides lighting during the evening hours or during the hours of darkness. Luminaire Mast Arm" means the horizontal post that attaches the light fixture to the streetlight pole or traffic signal pole. Omni-directional Antenna" also referred to as an "omni antenna" this antenna is round in shape, like a pipe, and may be about one (1) inch diameter up to about six (6) inches diameter. Outside Diameter" also referred to as "OD" means the points of measurement, using the outer edges of a pole, pipe or cylinder. Panel Antenna" means the style of antenna that is rectangular in shape and with dimensions that are generally four(4) feet to eight (8)feet in height, by eight (8) inches to twelve (12) inches wide, and four(4) inches to nine (9) inches deep. Remote Radio Heads (RRH) / Remote Radio Units (RRU)" means the electronic devices that are used to amplify radio signals so that there is increased performance (farther 108 distance) of the outgoing radio signal from the antenna. Right-of-way" as defined for wireless sites in A.R.S. §9-591(18) means the area on, below or above a public roadway, highway, street, sidewalk, alley, or utility easement. Right-of-way does not include a Federal Interstate Highway, a state highway or state route under the jurisdiction of the Department of Transportation, a private easement, property that is owned by a special taxing district, or a utility easement that does not authorize the deployment sought by the wireless provider. Sight Distance Easements" means the area of land adjacent to an intersection, driveway or roadway that has restrictive uses in order to preserve the view of oncoming or crossing vehicular and pedestrian traffic by drivers in vehicles attempting to merge with traffic or enter a roadway. Sight Visibility Triangles" means the traffic engineering and safety concept that requires clear view by the driver of a vehicle to crossing traffic at a stop sign, driveway or intersection. In order to achieve clear visibility of the cross traffic, the land areas in the sight visibility triangle has specific maximum heights on landscaping, cabinets, and other potential view obstructions. Signal Head" means the "Red, Yellow and Green" light signals at a signal-controlled intersection. Signal Head Mast Arm" means the horizontal pole that has the signal heads mounted to it and attaches to the traffic signal pole. Small Wireless Facility" as defined in A.R.S. 9-591(19), means a Wireless Facility that meets both of the following qualifications: c) All antennas are located inside an enclosure of not more than six (6) cubic feet in volume or, in the case of an antenna, that has exposed elements, the antenna and all of the antenna's exposed elements could fit within an imaginary enclosure of not more than six (6) cubic feet in volume. d) All other wireless equipment associated with the facility is cumulatively not more than twenty-eight(28) cubic feet in volume, or fifty(50) cubic feet in volume if the equipment was ground mounted before the effective date of this section. The following types of associated ancillary equipment are not included in the calculation of equipment volume pursuant to this subdivision: i) An electric meter. ii) Concealment elements. iii) A telecommunications demarcation box. iv) Grounding equipment. v) A power transfer switch. vi) A cutoff switch. vii)Vertical cable runs for the connection of power and other services. Stealth and Concealment Elements" means the use of shrouds, decorative elements, 109 design concepts and faux elements so that a small wireless facility can be designed to blend in with the surrounding streetscape with minimal to any visual impact. Utility Pole" as defined in A.R.S. §9-591(21) means a pole or similar structure that is used in whole or in part for communications services, electric distribution, lighting or traffic signals. Utility pole does not include a monopole. 110 Town of Fountain Hills Standard Design Requirements Small Wireless Facility on Existing Streetlight The following design standards shall apply, in addition to the Common Standards Design Concepts, Requirements and Details that is included in this document, to a Small Wireless Facility (SWF) proposed for a location with an existing Town-owned or third party-owned streetlight in the Town of Fountain Hills Right-of-way (ROW). These design standards are not exhaustive and the Town, as the owner, keeper and manager of the ROW retains the right to modify or adjust the requirements on a case-by-case basis. A. Pole Criteria: 1. Purpose of Streetlight Pole: The primary purpose of the pole shall remain as a pole structure supporting a streetlight luminaire and related streetlight fixtures used to provide lighting to the Town ROW. The attachment of wireless equipment to an existing streetlight pole or to a replacement pole that impedes this primary purpose will not be approved. 2. General Requirement: a) An SWF shall be designed to blend in with the surrounding streetscape with minimal to any visual impact. b) A replacement pole shall match the Town of Fountain Hills standard streetlight pole for the location in which it is installed, as closely as possible, subject to more specific criteria below. 4111 c) As specified in Section 6.14 of the Town of Fountain Hills's Wireless Facilities Standard Terms and Conditions, for each individual pole type or style used to support the wireless equipment, one spare replacement pole shall be provided by the wireless provider to Town in advance so the pole can be replaced promptly in case of a knockdown. d) All plans shall be signed and sealed by a Professional Engineer licensed in the State of Arizona. e) All other details in the Town of Fountain Hills street light design standards shall apply. 3. Specific Criteria: a) New or Replacement Pole Height A new or replacement pole may be installed without zoning review if one of the two height requirements is met: 1) Up to a ten (10) foot increase, not to exceed fifty (50) feet total (whichever is less), subject to the additional limitations in A.R.S. §9-592(I); or 2) Up to forty (40)feet above ground level, per A.R.S.§9-592(J). b) Overall Height of Replacement Pole 1) The "base" height of an existing streetlight pole shall be the height of the vertical pole section from the existing grade. The height of the luminaire mast arm, if higher than the vertical pole section, shall not be used to determine the new 110 overall height of the replacement pole. 111 2) If the antennas are the highest vertical element of the site, then the new overall fil height of the replacement pole is measured from the existing grade to the top of the canister, top of the omni-directional antenna, or the top of the panel antenna. c) Increase in Outside Diameter(OD) of Pole The non-tapered replacement pole outside diameter(OD) of the base section shall be equal to the top section, and the OD shall not exceed eight and five-eights (8-5/8) inches (the pole manufacturing industry standard OD for an 8 inch diameter pole) or a 100% increase in diameter of the original pole, whichever is less. d) Luminaire Mast Arms 1) All luminaire mast arms shall be the same length as the original luminaire arm, unless the Town requires the mast arm to be different (longer or shorter) based upon the location of the replacement pole. 2) Unless otherwise approved, all luminaire mast arms shall match the arc (if applicable) and style of the original luminaire arm. 3) The replacement luminaire mast arm shall be at the same height above the ground as the existing luminaire. e) Luminaire Fixtures 1) All replacement poles shall have the Town standard light-emitting diode (LED) light fixture installed. 2) All replacement light fixtures shall have a new Town standard photo-cell or sensor provided by the wireless provider. f) Pole Foundation 1) All pole foundations shall conform to the Town's adopted standards and specifications on streetlight design and shall be modified for wireless communications equipment and cables. 2) The Town, in its sole discretion, may require the pole foundation design to be worst case" for all soil conditions. 3) A separate, one-inch diameter conduit shall be installed in the pole foundation for the Town's luminaire wire and any additional Town wires or cables. The Town's conduit shall be trimmed to three (3) inches above the top of the pole foundation. 4) The height of the pole foundation shall be two (2) inches above finished grade. If the pole foundation encroaches into any portion of the sidewalk, then the pole foundation shall be flush with the sidewalk. 5) Shrouds for the streetlight pole mounting bolts may be required for the replacement pole. g) Painting of Replacement Pole 1) If the replacement pole is an unpainted galvanized pole, the pole shall not be painted or have a finish unless otherwise specified by the Town. 2) For powder coated type poles, the wireless provider shall replace with same powder coated color and/or color combination per Town of Fountain Hills street 110 112 light design standards or as otherwise required by the Town to minimize visual impact. h) Painting Antennas and Mounting Equipment 1) All antenna mounting brackets and hardware, antenna mounting posts, cables, shrouds and other equipment mounted on a new or replacement unpainted galvanized pole shall be painted Sherwin Williams "Web Grey" (SW7075) color or equivalent, unless specified otherwise by the Town. 2) All antenna mounting brackets and hardware, antenna mounting posts, cables, shrouds and all other equipment mounted on a painted new or replacement pole shall be painted a color specified by the Town. i) Wireless provider shall install pole numbers on each replacement pole (to match the number on the existing streetlight pole being replaced) per Town of Fountain Hills street light design standards. 113 Town of Fountain Hills Standard Design Requirements Small Wireless Facility on Traffic Signal Pole The following design standards shall apply, in addition to the Common Standards Design Concepts, Requirements and Details included in this document, to a Small Wireless Facility SWF) proposed for a location with an existing Town-owned traffic signal in the Town of Fountain Hills Right-of-way (ROW). These design standards are not exhaustive and the Town, as the owner and manager of the ROW retains the right to modify or adjust the requirements on a case-by-case basis. A. Pole Criteria: 1. Purpose of Traffic Signal Pole: The primary purpose of the traffic signal pole shall remain as a pole structure supporting a traffic signal and related streetlight fixtures used to provide traffic control and lighting to the Town ROW. The attachment of wireless equipment to a new or replacement traffic signal pole that impedes this primary purpose will not be approved. 2. General Requirement: a) An SWF shall be designed to blend in with the surrounding streetscape with minimal to any visual impact. b) A replacement pole shall match the Town of Fountain Hills standard traffic signal pole, as closely as possible, subject to more specific criteria below. c) As specified in Section 6.14 of the Town of Fountain Hills's Wireless Facilities Standard Terms and Conditions, for each individual pole type or style used to support the wireless equipment, one spare replacement pole shall be provided by Company to Town in advance so the pole can be replaced promptly in case of a knockdown. d) All plans shall be signed and sealed by a Professional Engineer licensed in the State of Arizona. e) All other details in the Town of Fountain Hills traffic signal design standards shall apply. 3. Specific Criteria: a) New or Replacement Pole Height A new or replacement pole may be installed without zoning review if one of the two height requirements is met: 1) Up to a ten (10) foot increase, not to exceed fifty (50) feet total (whichever is less), per A.R.S. §9-592(I); or 2) Up to forty (40) feet above ground level, per A.R.S. §9-592(J). b) Overall Height of Replacement Pole The height of the replacement pole is measured from grade to the top of the antenna canister or the top of the panel antennas if the antennas are the highest elements. c) Increase in Outside Diameter (OD) of Pole 1) If the replacement pole is a taper design, the diameter of the base section of the replacement pole OD shall not exceed twelve (12) inches or a 100% increase in the OD of the base section, whichever is less. 114 2) If the replacement pole is non-tapered, then the diameter of the base section 0 shall be equal to the top section and the OD shall not exceed twelve (12) inches or a 100% increase, whichever is less. d) Signal Head Mast Arms 1) The traffic signal head mast arms shall be the same length as the original signal head mast arm unless the Town requires the mast arm to be different (longer or shorter) based upon the location of the replacement pole. 2) All signal head mast arms shall match the arc (if applicable) and style of the original signal head mast arm. e) Luminaire Mast Arms 1) All luminaire mast arms shall be the same length as the original luminaire arm unless the Town requires the mast arm to be different (longer or shorter) based upon the location of the replacement pole. 2) All luminaire mast arms shall match the arc (if applicable) and style of the original luminaire arm. f) Signal Heads 1) All existing signal heads shall be replaced, at no cost to Town, with new light- emitting diode (LED) signal heads, per Town of Fountain Hills traffic signal design standards. 2) All signal heads shall be procured from a Town approved signal heads supplier or manufacturer. g) Luminaire Fixtures 1) All replacement poles shall have the Town standard LED light fixture installed. 2) All replacement light fixture shall have a new photo-cell or sensor installed to Town standard. h) Other Town Elements on Signal Mast Arm or Pole All existing emergency signal detection units, video detection cameras, video cameras, cross walk service buttons, cross walk signals, and any other pedestrian or traffic devices shall be replaced with new units by wireless provider and installed at no cost to the Town. All equipment shall be procured from a list of Town approved suppliers. i) Signs and Other Misc. All street name plates or signs, directional signs and any other Town approved signs shall be replaced with new signs at no cost to the Town. All signs and attachments shall be procured from a list of Town approved suppliers. j) Traffic Signal Pole Foundation 1) All pole foundations shall conform to the Town's standards and specifications on traffic signal pole design and shall be modified for wireless communications equipment, hand holes and cables. 2) The wireless provider shall install a three (3) inch diameter (OD) conduit in the pole foundation for the Town's cables and wires for the signal heads, luminaire 0 115 and devices on the signal mast arm and luminaire mast arm. The Town's conduit 0 shall be trimmed to three (3) inches above the top of the pole foundation. 3) In addition to the conduits for the Town's use inside the pole, the wireless provider shall install one of the two options for its cables and wires: a) One, six (6) inch diameter (OD) conduit in the pole foundation; or b) Two, four (4) inch diameter (OD) conduits in the pole foundation. The length of the conduit shall extend from the pole foundation to six (6) inches above the signal head mast arm. 4) Pole Foundation — Height Above Ground Level a) If the pole foundation is in a landscaped or unimproved area, the height of the caisson shall be two (2) inches above finished grade. However, if the pole foundation is adjacent to or within a sidewalk or ramp, the height of the pole foundation shall be flush with the surface of the immediate area. b) Shrouds for the traffic signal pole mounting bolts may be required for the replacement pole. k) Painting of Pole, Antennas and Mounting Equipment 1) Specifications on paint color and painting process are provided in the Town of Fountain Hills traffic signal design standards. 2) For powder-coated traffic signal poles, the wireless provider shall replace with same powder-coated color and/or color combination, or as otherwise specified by the Town. I) Construction of Traffic Signal The installation work of the replacement traffic signal pole, including mast arms, signal heads and devices, must be performed by a Arizona licensed Traffic Signal Contractor with a minimum of five (5) years of experience installing traffic signals. 410 116 Town of Fountain Hills Standard Design Requirements Small Wireless Facility on Existing Utility Pole The following design standards shall apply, in addition to the Common Standards Design Concepts, Requirements and Details that is included in this document, to a Small Wireless Facility (SWF) proposed for a location with an existing third party-owned utility pole in the Town of Fountain Hills Right-of-way (ROW). These design standards are not exhaustive and the Town, as the owner, keeper and manager of the ROW retains the right to modify or adjust the requirements on a case-by-case basis. A. Pole Criteria: 1. Purpose of Utility Pole: The primary purpose of the pole shall remain as a pole structure supporting a cables and wires used to provide communications services and electric distribution in the Town ROW. The attachment of wireless equipment to an existing third party-owned utility pole that impedes this primary purpose will not be approved. 2. General Requirement: a) An SWF shall be designed to blend in with the surrounding streetscape with minimal to any visual impact. b) A SWF mounted on an existing third party-owned utility pole is subject to more specific criteria below. c) All plans shall be signed and sealed by a Professional Engineer licensed in the State of Arizona. 40 3. Specific Criteria: a) Replacement Pole Height A replacement pole may be installed without zoning review if one of the two height requirements is met: 1) Up to a ten (10) foot increase, not to exceed fifty (50) feet total (whichever is less), per A.R.S. §9-592(I); or 2) Up to forty (40) feet above ground level, per A.R.S.§9-592(J). b) Overall Height of Replacement Utility Pole 1) The "base" height of an existing utility pole shall be the height of the vertical pole section from the existing grade. 2) If the antennas are the highest vertical element of the site, then the new overall height of the replacement pole is measured from the existing grade to the top of the canister or the top of the panel antenna. c) Use of Existing Pole —Wood 1) An existing wood pole used for a SWF shall have the antennas contained within an eighteen (18) inch (OD) canister mounted at the top of the pole. 2) Unless otherwise approved, the cables and wires from the base of the pole to the antennas shall be installed in a conduit or cable chase outside of the pole, facing away from the street or away from on-coming traffic. 118 3) If a "dog house" (see Exhibit C) is required as a transition point connecting the 0 underground cables and wires from the ground mounted equipment to the pole, the Town shall provide the maximum size, dimension and shape of the dog house on a case-by-case basis. d) Use of Existing Pole — Metal 1) An existing metal pole used for a SWF shall have the antennas contained within an eighteen (18) inch (OD) canister mounted at the top of the pole. 2) Panel antennas on a metal pole shall have the same "RAD center" (center of radiation) so the antennas will be at the same height on the pole. 3) The cables and wires from the base of the pole to the antennas shall be installed inside of the pole. e) Painting of Pole and Dog House 1) If the replacement pole is an unpainted galvanized pole, the pole shall not be painted or have a finish unless otherwise specified by the Town. 2) If the existing or replacement pole includes a dog house for the transition of the cables and wires to the pole, the dog house shall be painted the same color as the pole or a color specified by the Town. f) Painting Antennas and Mounting Equipment 1) All antenna mounting brackets and hardware, antenna mounting posts, cables, shrouds and other equipment mounted on a new or replacement unpainted galvanized pole shall be painted Sherwin Williams "Web Grey" (SW7075) color or 0 equivalent, unless specified otherwise by the Town. 2) All antenna mounting brackets and hardware, antenna mounting posts, cables, shrouds and all other equipment mounted on a painted new or replacement pole shall be painted a color specified by the Town. 3) If the antenna is mounted on a wood pole, the color of the antenna, antenna canister, mounting brackets and posts, shrouds and cable chases shall be painted a color specified by the Town that will closely match the color of the wood. g) Ground Mounted Equipment The Town may require the ground-mounted wireless equipment to be screened or concealed to reduce the visual impact to the surrounding area. The screening or concealment shall take into account the location of the site, the use of the immediate area, and the existing aesthetic elements surrounding the site. 111 119 Town of Fountain Hills Standard Design Requirements Wireless Facility on New Structures in ROW The following design standards, in addition to the Common Standards Design Concepts, Requirements and Details that are included in this document, shall apply to a Wireless Facility that a wireless provider may install in the ROW that is not: 1) a replacement pole for an existing streetlight, 2) a replacement pole for an existing traffic signal or 3) a replacement pole for an existing utility pole. The new wireless support structure, monopole or utility pole (the "New Structure") shall incorporate the highest level of stealth and concealment of the antennas and wireless equipment in order to minimize the visual impact of the site to the public. A. Pole Criteria: 1. Purpose of the New Structure: The sole purpose of a new vertical element is to attach antennas for the provision of wireless services by a wireless provider in the Town's ROW. 2. General Requirement: a) The New Structure shall be designed to minimize the visual and aesthetic impact of the new vertical element and associated equipment upon the look, feel, theme, and use of the surrounding area. b) A wireless facility shall be designed to blend in with the surrounding streetscape and/or landscape with minimal to no adverse visual impact. c) The New Structure shall be architecturally integrated and compatible with the use of the surrounding area. d) The height of the New Structure cannot exceed the maximum allowed height of the zoning district that the site is proposed. e) All plans shall be signed and sealed by a Professional Engineer licensed in the State of Arizona. 3. Specific Criteria: a) New Structure Height. A New Structure may be installed without zoning review if one of the two height requirements are met, see A.R.S. §9-592(I) and A.R.S. §9- 592(J): 1) A.R.S. §9-592(I) states that the small wireless facility in the ROW is not subject to zoning review and approval in Section 9-594 if the utility pole does not exceed the greater of either: i. Ten feet in height above the tallest existing utility pole, other than a utility pole supporting only wireless facilities, that is in place on the effective date of this section, that is located within five hundred feet of the new, replacement or modified utility pole and that is in the same right-of-way within the jurisdictional boundary of the authority, but no more than fifty feet above ground level. ii. Forty feet above ground level. 120 0 2) A.R.S. §9-592(J) states that new small wireless facilities collocated on a utility pole or wireless support structure in the right-of-way are not subject to zoning review and approval if they do not extend more than ten feet above the utility pole or wireless support structure and do not exceed fifty feet above ground level. b) Setbacks. Any New Structure subject to zoning review shall comply with all Town fall and setback requirements, including a 100% setback from all property lines, occupied structures, public roadways and sidewalks. c) Overall Height of New Structure. The height of the New Structure is measured from existing grade to the highest point of the New Structure. d) Stealth and Concealment Elements 1) New Structures shall be located in areas where they can blend into the existing built and natural environment, where existing landscape elements may assist with concealing the structure from view, and where the addition of the structure will least affect the view sheds from neighboring properties. 2) Depending upon the location of the New Structure and the character of the neighboring area, the Town may require additional landscaping to be installed in connection with the Town's approval of the application. The additional landscaping may include trees, mature vegetation, natural features or hardscaping. 40 3) The Wireless Provider shall conceal all equipment within a faux cactus structure, similar to the 22' to 40' tall Larsen Camouflage design (see Exhibit G) or as otherwise approved by the Town. i. New Structures thus concealed shall comply with standard details, such as dimensions, colors and materials similar to existing faux cactus installations in the Town. 4) As part of the stealth and concealment elements of the New Structure, the Town may require the wireless provider to install street name plates, directional signs, and other decorative signs or artistic elements on the structure. 5) The wireless provider is solely responsible for the cost of all stealth and concealment elements and the installation of other elements required by the Town. 6) The wireless provider is responsible for the performance of and any costs incurred for regular upkeep, maintenance and replacement (if necessary) of these stealth and concealment elements. e) Architectural Integration with Surrounding Area 1) The New Structure shall be designed in consultation with various internal Town stakeholders and may include external stakeholders. 2) The Town may require the New Structure to be constructed of a specific material or specific design that will enhance the stealth and concealment of the site. f) Foundation 0 121 1) The foundation for the New Structure, if required, shall conform to civil and 1. structural engineering standards acceptable to the Town, with design modifications for wireless communications equipment and cables. 2) Unless otherwise stated herein, the height of the New Structure foundation shall be two (2) inches above finished grade. However, if the New Structure foundation is adjacent to or within a sidewalk or ramp, the height of the pole foundation shall be flush with the surface of the immediate area. 3) Shrouds for the pole mounting bolts may be required. 4) If the New Structure is concealed as a faux cactus installation, the structure shall be installed to appear as part of the natural environment, and shall not be located on existing concrete such as sidewalks or curbs, nor shall concrete be placed around the base of the facility except as needed to anchor and support the structural elements of the structure. All such concrete and anchor devices shall be shielded from view by earth, rocks, decomposed granite and landscaping as required by the Town. g) Painting 1) The Town shall identify the paint colors, location of paint and any decorative work that may be painted onto the New Structure or ground equipment. 2) If visible, the Town shall identify the paint colors for the antennas, antenna mounting brackets and posts, antenna shrouds, and cables. 3) The Town may require the New Structure or ground equipment to be painted using a powder-coat or other process. 40 h) Ground Mounted Equipment The Town may require the ground-mounted wireless equipment to be sited and screened or concealed to reduce the visual impact to the surrounding area. The screening or concealment shall take into account the location of the site, the use of the immediate area, and the existing aesthetic elements surrounding the site. 411,122 014 Town of Fountain Hills Small Wireless in the ROW Common Standard Design Concepts, Requirements and Details The following standard design requirements shall be applied to all new small wireless facilities in the Town's ROW, whether for a small wireless facility to be installed on an existing or replacement streetlight pole, an existing or replacement traffic signal pole, an existing or replacement utility pole, or on a New Structure. A. Pole Design & Installation 1. Replacement Pole Clearances — Underground Utilities All ground-mounted electrical equipment shall maintain minimum horizontal clearance from underground utilities. Clearance from water lines shall be at least six (6)feet. Clearance from sewer lines shall be at least six (6) feet. Clearance from telecommunications shall be at least one (1) foot. Clearance from cable television lines shall be at least one (1)foot. Clearance from all other underground infrastructure shall be at least six (6)feet. a) The Town, in its sole discretion, may grant a variance, upon approval by the Town Engineer, from these horizontal separation distances on a case-by-case basis. The approval of a variance is dependent factors specific to the site. b) In the case where there is an issue with horizontal separation from other underground utilities, the wireless provider may elect to work with the impacted utility to have lines, pipes or property moved so that minimum clearance is achieved. All relocation of Town-owned or a privately-owned utility shall be at the sole expense of the wireless provider. 2. Calculating the Base Height of an Existing Pole The base height, from which the calculation of the "increase in pole height" is referenced for determining the overall pole height, shall be calculated as follows: a) Streetlight Pole (see Exhibit Al and A2) 1) A streetlight with a separate luminaire mast arm mounted to the vertical pole shall use the top of the vertical pole as the base height. 2) A streetlight, with the luminaire mast arm integrated (e.g. telescopic style pole) into the top vertical section of the pole, shall use the point on the pole where the mast arm is connected plus twenty-four (24) inches as the base height. b) Traffic Signal Pole (see Exhibit 8) A traffic signal pole with a luminaire mast arm that is mounted above the signal head mast arm to the pole shall use the top of the vertical portion of the pole as the base height. 3. Replacement Pole Clearance — Original Streetlight Pole or Traffic Signal Pole The minimum distance of the replacement pole from the original pole location shall be sixty (60) inches or more so that construction can occur safely. The Town may change 1111 this minimum distance on a case-by-case basis. 123 4. Replacement Pole Clearances — Sidewalks The new or replacement pole shall maintain twelve (12) inch minimum clearance distance from sidewalks. The Town, in its sole discretion, may increase that minimum clearance on a case-by-case basis to ensure the safe use of the sidewalk and adjacent area. 5. Sight Distance Easements (SDE) and Sight Visibility Triangles (SVT) All new and replacement poles shall be installed in a location that does not impair or interfere with SDE or SVT safety requirements as reasonable determined by the Town. 6. Cables, Wires and Jumpers a) All cables for the wireless equipment and antennas —except where such cables or wires attach to the ports in the antenna — shall be located inside a conduit, inside the caisson, or inside the pole, as appropriate. There shall not be any"dog house" or externally visible conduit or entry point of the cables unless specified by the Town. b) All cables for the wireless equipment and antennas shall exit the pole or conduit at a location, behind the antenna shroud, and shielded from view. It is the intent of the Town that the cables shall not be visible. 1) See Exhibit D1 for examples of appropriately shielded cables. 2) See Exhibit D2 for examples of unacceptable cabling. c) All electrical wires for the streetlight luminaire, traffic signal heads, and any Town device on the pole shall be new and connected to the existing power source. 7. Hand-holes a) All hand-hole locations shall be called out on the plans. b) All hand-holes near antennas shall have the top of the hand-hole no lower than the bottom height of the antennas. c) The bottom of the hand-hole should not exceed six (6) inches below the bottom of the antenna. 8. Wireless Facility Identification Information a) A four (4) inch by six (6) inch Radio Frequency Safety notice may be mounted no less than twenty-four(24) inches from the bottom of the antenna, facing away from traffic. b) The wireless provider may place on the pole a discreet site identification or number. The size, color and location of this identifier shall be determined by the Town. c) The Town, as specified in the Wireless Facilities Standard Terms and Conditions, may require the wireless provider to place on the pole, in a discreet but accessible location, the telephone number of wireless provider's network operations center. d) No wireless provider signs may be placed on a streetlight, traffic signal pole, wireless support structure, or a new or replacement pole except to the extent required by local, state or federal law or regulations. 9. Interference with Town Wireless Network The Town has, or may have in the future, certain wireless devices in a network that 124 connects traffic signals, community centers, water sites, and other locations for the IL. Town's proprietary use. The selection of a location for a wireless site shall consider the potential interference of the Town's wireless network with RF from a wireless provider's proposed site. 10. Cable Chase and Dog Houses The Town, in its sole discretion, shall determine if an exterior cable chase and dog house are aesthetically compatible with the pole and immediate area. The materials and paint color of the cable chase and dog house shall be determined on a case-by-case basis. B. Removal of Original Pole, Equipment and Pole Foundation 1. Removal of Original Signal Pole, Mast Arm, Signal Heads and Luminaire a) The Town shall determine what original components, (e.g., original pole, mast arm, signal heads and luminaire, etc.) shall be delivered by the wireless provider, at no cost to the Town, to a location specified by the Town. b) If the Town accepts some of the original components, then only those components shall be delivered by the wireless provider to the Town and the remaining components shall be discarded by the wireless provider. 2. Removal of Original Streetlight or Traffic Signal Pole Foundation The concrete pole foundation for the original streetlight or traffic signal pole shall be removed by the wireless provider as instructed by the Town: 4110 a) Partial Removal The original pole foundation shall be taken back to a level that is twelve (12) inches below existing grade and covered with four (4) inches of one-half(1/2") inch to three 3/4") quarter inch rock materials. The remaining eight (8) inches shall be native soil. b) Complete Removal If the entire original pole foundation must be removed, then all materials (concrete, rebar, metals, bolts, etc.) shall be removed. The Town's Inspector shall determine, on a case-by-case basis, the type of backfill material and compaction required — ranging from native soil that is compacted to a half(1/2) sack slurry for the entire depth, or a combination of native soil and slurry. C. Antennas, RRH/RRU, Cables and Mounting on Pole: 1. General Requirement: All antennas shall be installed in a manner that minimizes the visual impact to the general public. In order to minimize the visual impact, wireless providers should use canister antennas, where possible and appropriate unless the Town's stealth and concealment requirements indicate otherwise. See Exhibit F. All work shall be performed in a professional manner that is consistent with the highest standards of workmanship. 2. Specific Criteria: a) Antenna Mounting Posts and Brackets 1) All panel antennas shall be mounted directly to the pole or onto a mounting pole so that the distance from the "face" of the streetlight pole to the back of the antenna does not exceed nine (9) inches. 125 2) All mounting posts shall be trimmed so that the poles do not extend higher than 0 the top of the antenna or protrude lower than the antenna unless necessary to install the shroud. 3) All pole attached wireless equipment must be a minimum ten (10) feet from the sidewalk elevation. b) Panel Antennas 1) All panel antennas for a small cell site shall fit within an imaginary enclosure of not more than six (6) cubic feet in volume in accordance with A.R.S. §9- 591(19)(a). (NOTE: This volume does not include antenna cable shrouds when required.) 2) All panel antennas with exposed cables from the bottom of the antenna shall have a shroud installed on the antenna or antenna mounting posts to conceal the cables. (see Exhibits D1 and D2) a. The type of shroud may be a forty-five (45) degree angle (away from the bottom of the antenna; toward the pole) or a ninety (90) degree angle parallel to the bottom of the antenna) depending on the location of the site. b. The shroud shall extend from the bottom of the antenna to two (2) inches below the bottom of the nearest hand-hole. c) Canister Antennas 1) All canister antennas shall fit within an imaginary enclosure of not more than six 6) cubic feet in volume. (Note: This volume does not include the canister as it is a stealth device and not the antenna.) III2) The canister shall be no larger than eighteen (18) inches in diameter(OD). 3) All canister antennas shall be located in a canister that is mounted to a base plate at the top of the vertical section of the replacement pole. 4) All cables protruding from the canister shall be concealed within the canister or by a shroud at the point where the canister is mounted to the base plate. d) Remote Radio Heads (RRH) / Remote Radio Units (RRU) Under State Law §9-591(19)(a), the RRH/RRU is not considered part of the antenna. If allowed, the RRH/RRU shall be calculated as part of"All other wireless equipment associated with this facility..." in A.R.S. §9-591(19)(b)that is subject to the twenty- eight (28) cubic feet maximum size for small cell sites. 1) On a case-by-case basis, the Town in its sole discretion and — upon reviewing the landscape in the immediate surrounding area, the location of the pole, and stealth options, may allow a site to have an RRH/RRU installed on the pole. D. Ground-mounted Equipment: 1. General requirement: All ground-mounted equipment shall be installed in a manner that minimizes the visual and ingress/egress impact to the general public. All work shall be performed in a professional manner that is consistent with the highest standards of workmanship. 2. Specific criteria: 0 a) Sight Distance Easements (SDE) and Sight Visibility Triangles (SVT) 126 All ground-based wireless equipment shall be installed in a location that does not impair or interfere with SDE or SVT safety requirements. To ensure proper sight distance, all Town of Fountain Hills Traffic Engineering Standard Details shall apply. b) Ground Equipment Location — Generally All ground-based wireless equipment, including but not limited to equipment cabinets or power pedestals, shall be placed as far as practical to the back of the ROW while maintaining at least three (3) feet of ingress/egress in the ROW or public utility easement (PUE) around the equipment. c) Ground Equipment Clearances—Underground Utilities 1) All ground-mounted electrical equipment shall maintain minimum horizontal clearance from below-ground utilities: Clearance from water lines shall be at least six (6) feet. Clearance from sewer lines shall be at least six (6) feet. Clearance from telecommunications shall be at least one (1)foot. Clearance from cable television lines shall be at least one (1) foot. Clearance from all other underground infrastructure shall be at least six (6) feet. 2) The Town, in its sole discretion, may grant a variance upon approval from the Town Engineer, from these horizontal separation distances on a case-by-case basis. The approval of a variance is dependent on factors specific to the site. 3) In the case where there is an issue with horizontal separation from other underground utilities, the wireless provider may elect to work with the impacted utility to have its lines, pipes or property moved so that minimum clearance is achieved. All relocation work of Town-owned or a privately-owned utility shall be at the sole expense of the wireless provider. d) Ground Equipment Clearance — Sidewalks The ground equipment shall maintain a minimum twelve (12) inch clearance distance from sidewalks. The Town, in its sole discretion, may increase the minimum clearance on a case-by-case basis to ensure the safe use of the sidewalk and adjacent area. e) Compliance with Height Requirements Evidence or documentation that, where the above-ground structure is over thirty-six 36) inches in height, given its proposed location, the structure will comply or be in compliance with applicable Town of Fountain Hills planning and zoning ordinances. f) Screening of Ground Equipment The Town requires that ground-mounted equipment be screened; the type of screening materials and design will be addressed on a case-by-case basis. See Exhibit E2 for general screening examples that the Town may consider on a case by case basis. 1) In cases when screening is not possible, the Town may specify the location, orientation or paint color of the ground-mounted equipment. 127 2) Town may require ground-mounted equipment to be located underground except for the electricity meters, kill switches, etc.). g) Decals and Labels 1) All equipment manufacturers' decals, logos and other identification information shall be removed unless required for warranty purposes. 2) The wireless provider of the site may place an "Emergency Contact" or"Network Operations Center" decal or emblem to the ground equipment. 3) The ground-mounted equipment shall not have any flashing lights, sirens or regular noise other than a cooling fan that may run intermittently. h) Equipment Cabinets on Residential Property 1) Residential Single-Family Lot The Wireless Equipment and Ancillary Equipment listed in A.R.S. §9-591(19)(b) shall not exceed thirty-six (36) inches in height in the front yard of a residential single-family zoned property. 2) Air-conditioning Units Unless otherwise specified by Town, a wireless equipment cabinet with air- conditioning (not a fan only) shall be enclosed by walls and setback a minimum of fifteen (15)feet from lots where the existing or planned primary use is a residential single-family dwelling. i) Electric Company Meter 1) All electric company meters shall be installed in the ROW or PUE. The location of the meter equipment shall have minimum ingress and egress clearance from private property lines and driveways. 2) All electric company meters shall maintain minimum clearance from above- ground utility cabinets and below-ground utilities. 3) All electric company meters shall be installed in a location that does not impair or interfere with the SDE or SVT safety requirements of the Town. 4) The electric company meters shall be screened or contained within a "Myers- type" or"Milbank-type" pedestal cabinet that is painted to match the ground equipment or as specified by the Town. (see Exhibit E) 5) In the case where screening is not required, the Town may specify the paint color of the electric company meter cabinet on a case-by-case basis. 40 128 Town of Fountain Hills Contacts For questions regarding the 2018 Town of Fountain Hills Design Standards, Concepts & Requirements for Wireless Facilities in the Right-of-Way, contact: Town of Fountain Hills Development Services Director: Robert Rodgers 480-816-5138 129 Exhibit Al Calculation Points for Height of an Existing Streetlight with Separate Luminaire Mast Arm o'1/'r /a'I dsr yi a,4 5/ r/.% / r ; E 114 The purple line next to the streetlight 11,depicts the section of the existing S streetlight pole that shall be used to calculate the height of the existing pole. The lines are not to scale and are solely used for illustrative purposes. w go or- D i. ., m ° fie 1 I r^z 3() Exhibit A2 Calculation Points for Height of an Existing Streetlight with Integrated Luminaire Mast Arm The "Connection Point" on an Existing Telescopic Style Streetlight Pole with an Integrated Luminaire Mast Arm 10 era E--- 24 inches The Top and Bottom Points s k % vonaTelescopicStreetlight Pole to Calculate the Vertical Height of the Existing Streetlight Pole PLUS Twenty-four (24) inches 131 Exhibit B Calculation Points for Height of Existing Traffic Signal Pole The Top and Bottom Points on a Traffic Signal Pole to Calculate the Base Vertical Height of the Existing Pole 11111 132 0 Exhibit C Dog House—Cable Transition from Underground to Electric Utility Pole x9 S//'P R .' -gr',i'; lr r e ' N r rc u 5/, gi£A art " a s'! 1 Jy k • 'fri ' fa".'a a Lr,,„, w, rkv ir ,1 r y, fG,JPfy rsxy/ (k ai 9 : r 1, t `t'""°° ri i set'',', k a £ ky w J r ss .v. r ' J' H a t Ali,popfo'/.0?,t;4114470464*, lo:t%! Vo$14,1,1(`16tV' ax\?\\ u W External cable chase 1..N the cables and w dra wires are mounted underneath the f chase.l e r ' t e It NOM 111. II:$1 li ti Iiii I ir,s. ,A i i 1 Mitt VI yd' .m' MYbC `M#4V.s44 Nk9 f ' r'S 1 riC Dog House"with externals cable chase installed at the a base of a pole to cover the cables and wires when they s a, cannot be installed inside the utility pole. 133 0 Exhibit D1 Antenna Shrouds —45 Degrees R k k m x 4,..'''. .i;',..1.1i'i:*16," l'''', :-. 4,e2), - , , , s-, ,, 17,, , ,,-,„:„ i.. ,.., , .., .,. :, .* ,,: .,.1/4,lay a`"• *+ e 'I . z 7 ",+d'8 J „, '''' y, lit':',it '{ F,`,„ ram, 1srew. 2 AIt+., i:i 4".,0'" .cam, k y„ ",1"' 2 Y• kpM '*"k $e i' 0 a` 8__ iu p •} ''""T5-'.d Yf" M t"A`. A . S h ( P- 7 4. 4'"; ' x. 7 A.-, - #fir q1+4r:; a' r a P 6"` 5k Y sc.. t„ m t i 1„ ,,,, , 4. E 1 4','", .110..........i . li 4 ,A A. 0 134 Exhibit D2 Antenna Shrouds — 90 Degrees 3,'•.•‘...'...,',;',,,,'''':‘,,,',•<,, At '• l'is.%,.j ,.;:''''''" 1 i • 1. l'A,,,,'•:1:.,A.,,,„,'' 4, o 4..,, ..,... ... . e'''::•.: .....: ..,...- • 2... 1, f'''''''' ';:' •'''•-4.*. ,.4. - ''. i',,ailIN''''''''',4','','''''';', -,••,'''''',', 4,- i‘..„,.,„',.,,,,,!,,,ii.:' ,,i1.,..,01f '..,,,,lritf. ,,,_______,,,,,....C.44,,,,',„!.'7A, , • i;:4;,1;',;,:.k".4"iis,'Ot::•7'i:I4'....ti'' 4",.t." -:,--,,,,,4,;-;,F4*., ..''''',..,!!,;',3.11,,.. iriti..i.,,,,,,,,,,f..i.;......,..,,,!....,,,./.,..•'F's..Z.7,'.;•";'•':' ' '^''''•ii `s''1'4: 1 i I •.,;.70,4110. rill iii, j" 111P1111 1 7',' ig'' ' ' ....,1, ::,'ti,,.,....,,4 bf, ,..•,:',J,« .. '',..r'0'41-....,...,.,..,.,'' '''' t,;., 135 0 Exhibit D3 Unacceptable -Visible Cables r 136 0 Exhibit El Examples of Electrical Meter Pedestals —"Myers" or"Milbank" Style Sedgy :..a u..1,,.eA A\•e¢s!1„,: q ,,"",c'; y" r F sir w, Ill JCL, 4;.4.4,, 9,,.,,44, 4 ill 3' 1.''„'1, 1-4",,,',.,-''„')„ Y.es' 44. f1.il"t' it..'U-,*lk..-: P,, 3, 7 4' s'.1k-,*.,,t.i.,,,„. 1.'4,li71*6--i1a4v, e'4i,, ,'.,*,,,-,,,-, V, ,,',; b y C 1 s 1(L ffnn R 'Y. „F 'ti wd A, .. '}.`Ni/. _ ' 1F - ,,,fit q," i IP. r '*A`. II'i .s .' h C^ x . 1. : " MM7y'MFFF1 r ° rV 137 Ground Equipment s c Examples bitreEen2 inq a 1 I 1 III 4 i 1 i ht1 1 9 . A s.* i 10 1 ;8 Exhibit E2 Ground Equipment Screening Examples (continued) W a eta4wwSVVSS, 5f oC +c 3. A y- 139 Exhibit F Canister Antenna tiff% t: M 3 a„ 4 140 Exhibit G 1711150N JFsax,. ' 10121., 1 I tro 0 4` Saguaros The need for concealed sites is also prevalent in the desert southwest region. To serve this need we have developed a Saguaro Cactus, Utilizing an RF-ftiendly, naturalistic looking FRP shell, we ure able to poaltion antenna panels not only in th.e hollnw shell of the upper main trunk, but also in the individual aims. This offers greater flexibility in terms of multiple panels per sector, horizontal separation,and centerline height. Our Saguarosrange from 10-40 feet tall, housing one to two antenna arrays. Scars, woodpecker holes thousands of painted needles enhance the realism. Even the birds can't tell the differenee 11110, 141 EXHIBIT D TO RESOLUTION NO. 2018-18 Amendments to Town Comprehensive Fee Schedule] See following pages. Sir ftny 142 Description Fee FY17-18 ENCROACI-[ME TT,Ir''C,INF,FRI'K PERMITS Small Wireless Facilities: ROW Use Fee 50/year x number of small wireless facilities Authority utility pole attachement 50/year Small Wireless Facilities collocation 100 per SWF up to five Small Wireless Facilities collocation 50 for SWF over five 100 per SWF up to five (at $100 each) ($500 Batched applications for up to 25 SWF's maximum fee) 50 per SWF 6 - 20 sites ($1000 maximum Batched applications for up to 25 SWF's fee) Applications for new, replacement or modified utility poles NOT subject to zoning review Not to Exceed $750 Applications for new, replacement or modified utility poles and collocation of wireless facilities subject to zoning review Not to Exceed $1000 PHOENIX 77018-1 430871v7 4 I I 4 I 4 4 Iall143 I 16-3-1 16-3-2 16-3-3 Article 16-3 Utility Service Antennas Sections: Purpose Definitions Utility Service Antennas in the Public Right-of-Way Section 16-3-1 Purpose The purpose of this article 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. (24-16, Added, 09/04/2024) Section 16-3-2 Definitions “Utility service antenna” means an 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. (24-16, Added, 09/04/2024) Section 16-3-3 Utility Service Antennas in the Public Right-of-Way A. General Requirement. For an antenna placed in the town’s right-of-way with the top of the antenna less than six 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 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 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 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. (24-16, Added, 09/04/2024) Art. 16-3 Utility Service Antennas | Fountain Hills Town Code Page 1 of 2 The Fountain Hills Town Code is current through Ordinance 24-19, passed October 1, 2024. The Fountain Hills Town Code is current through Ordinance 24-19, passed October 1, 2024. Disclaimer: The town clerk’s office has the official version of the Fountain Hills Town Code. 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 General Code. Art. 16-3 Utility Service Antennas | Fountain Hills Town Code Page 2 of 2 The Fountain Hills Town Code is current through Ordinance 24-19, passed October 1, 2024. ITEM 7. TOWN OF FOUNTAIN HILLS STAFF REPORT    Meeting Date: 03/10/2025 Meeting Type: Planning and Zoning Commission Agenda Type: Submitting Department: Development Services Prepared by: Farhad Tavassoli, Senior Planner Staff Contact Information: Farhad Tavassoli, Senior Planner Request to Planning and Zoning Commission (Agenda Language):  CONSIDERATION AND POSSIBLE ACTION: Annual report on the implementation of the Fountain Hills General Plan 2020. Staff Summary (Background) Arizona Revised Statutes Section 9-461.07 A. 2. states that after the municipal legislative body has adopted a general plan, the community’s planning agency shall render an annual report to the legislative body on the status of the plan and progress in its application.  The Town adopted its current general plan on November 3, 2020. The previous annual report was presented before the Planning and Zoning Commission on April 8, 2024, and was forwarded to Town Council following the summer break. The Fountain Hills General Plan 2020 includes the following requirement: Each year, the Fountain Hills Development Services Department must prepare, and the Fountain Hills Planning & Zoning Commission must review and submit to the Town Council an annual report on the status of the General Plan progress. The report must include, but not be limited to, the following:  A summary of General Plan amendments processed during the preceding year and those pending review, including General Plan amendments initiated by Town Council. A report on the progress and status of implementation actions enumerated in the General Plan Implementation Strategy. A review of policy issues which may have arisen regarding provisions of the General Plan. A recommendation for General Plan amendments to be initiated to maintain an effective, up-to-date General Plan including policy changes, clarifications, and new policy development; changes in character area; and other applicable changes. The recommendation may also include suggestions to change implementation actions priorities, as Town’s priorities shift, as well as General Plan amendments, if any, to be included in the work program for the following fiscal year. Attached is a draft report for the Commission's review and consideration. Report content includes status updates received from the lead departments for various goals and policies contained in the general plan. Based on comments from the Commission, staff will either bring the report back for further review or forward it to Council.  The attached draft report includes a brief overview of actions taken during the 2024 calendar year to implement provisions of the 2020 General Plan.  The report also discusses and reevaluates some implementation steps that are yet to be initiated.   Related Ordinance, Policy or Guiding Principle Fountain Hills General Plan 2020 Risk Analysis N/A Recommendation(s) by Board(s) or Commission(s) N/A Staff Recommendation(s) Staff recommends forwarding the annual report to the Town Council. SUGGESTED MOTION MOVE to forward the General Plan Annual Report to the Town Council. Attachments 2024 Annual Report  Page 1 of 12 Fountain Hills General Plan 2020 2024 Annual Report BACKGROUND AND PURPOSE Arizona Revised Statutes Section 9-461.07 A. 2. states that after the municipal legislative body has adopted a general plan, the community’s planning agency shall render an annual report to the legislative body on the status of the plan and progress in its application. The Town of Fountain Hills has adopted and implemented general plans in accordance with state statutes since 2002. The Fountain Hills General Plan 2010 was adopted by the Council on January 7, 2010 and was the guiding document for the Town until the voters ratified the 2020 General Plan on November 3, 2020. This annual report summarizes the Town’s implementation efforts for the 2024 calendar year. Fountain Hills General Plan 2020 The Fountain Hills General Plan 2020 was adopted by Council on May 19, 2020 and ratified by the voters on November 3, 2020 as a long-term vision for local development. The Plan did not become official for use by staff and the Town until it was ratified by the voters. Therefore, little actual implementation was reported in previous years, due in large part to challenges like the pandemic and staff turnover, especially at the management level. This report discusses some implementation advances in the 2024 calendar year and continued efforts going into the next several years. The report also identifies some implementation challenges and identifies a few immediate and short term General Plan goals that have fallen outside their expected completion window. Page 124 of the 2020 Plan includes direction regarding the annual report. It states: Each year, the Fountain Hills Development Services Department must prepare, and the Fountain Hills Planning & Zoning Commission must review and submit to the Town Council an annual report on the status of the General Plan progress. The report must include, but not be limited to, the following: 1. A summary of General Plan amendments processed during the preceding year and those pending review, including General Plan amendments initiated by Town Council. 2. A report on the progress and status of implementation actions enumerated in Page 2 of 12 the General Plan Implementation Strategy. 3. A review of policy issues which may have arisen regarding provisions of the General Plan. 4. A recommendation for General Plan amendments to be initiated to maintain an effective, up-to-date General Plan including: policy changes, clarifications, and new policy development; changes in character area; and other applicable changes. The recommendation may also include suggestions to change implementation actions priorities, as Town’s priorities shift, as well as General Plan amendments, if any, to be included in the work program for the following fiscal year. The remainder of this report is organized according to the four (4) required information items detailed above. The section pertaining to the Town’s progress and implementation actions primarily discusses activities that occurred within 2024 calendar year. Other implementation activities from previous years are provided for historical context. The conclusion of the report discusses some immediate and short-range goals that are yet to be initiated and may be reevaluated as part of a broader discussion with the Planning and Zoning Commission and Town Council. 1. SUMMARY OF GENERAL PLAN AMENDMENTS There were no General Plan Amendments in the calendar year 2024, nor were there any proposals for a General Plan Amendment. It is important to note that the Town of Fountain Hills is landlocked and approaching build-out. The 1,276-acre state trust land at the far northeast corner of the Town has the highest potential to be the subject for a major general plan amendment request in the future. It is also the largest contiguous undeveloped area with zoning to accommodate single-family homes, lodging, neighborhood commercial development, and a network of open space. After little to no interest development community over the past several years, Development Services staff was asked to assist with a due diligence effort by fulfilling a request from a potential future bidder for public records containing zoning information for the area. However, it should be noted that no auctions have been scheduled by the State Land Department for the site at this time. 2. PROGRESS ON IMPLEMENTATION ACTIONS The General Plan organizes the Town’s goals and policies according to three overarching principles that guide its development, including Thriving Environment, Thriving Neighborhoods, and Thriving Economy. These overarching principles contain eight (8) general plan elements required by Arizona statutes. This section briefly highlights progress and implementation actions Page 3 of 12 as they relate to each of the eight (8) general plan elements and their respective goals and policies. Each goal in the General Plan prescribes a time frame for initiation: • Ongoing • Immediate – (initiate no later than 6 months after General Plan ratification by the voters) • Short-range (First 4 years): Prioritizes development and redevelopment efforts that will support the fiscal viability of the Town. • Mid-range (5 to 8 Years): Prioritizes strategies that require funding and may not be pursue until funding is available. • Long-range (Within 10 years): Includes identification of funds for the preparation of conceptual plans for State Trust Land in coordination with ASLD. There is considerable progress to report on several fronts. This section briefly describes each of the three overarching principles of the General Plan and their essential elements, and also provides a brief description of the implementation actions taken during the 2024 calendar year. Thriving Neighborhoods Thriving Neighborhoods is the first of three overarching principles of the General Plan, addressing policies pertaining to housing, neighborhood preservation/revitalization, neighborhood-scale amenities and neighborhood safety to support healthy, complete, and vibrant neighborhoods. Most of the implementation actions are identified by the General Plan as “Ongoing” efforts and are realized daily. Housing Element Fountain Hills continues to accommodate a variety of housing types and quality development and continues to maintain its existing housing stock and residential areas as essential to sustaining Fountain Hills’ thriving neighborhoods. Residential permit and land entitlement activity in 2024, as in previous years, saw a higher percentage for single family residential use. Calendar year 2024 saw 53 permits issued for new single-family residential homes, slightly less than 57 permits issued in the prior year. A permit was also issued for a single-family attached building consisting of two condominiums. Special use permits were approved for 5 residential units on the Avenue of the Fountains in the Downtown area, as well as for 12 units in a commercial area along Panorama Drive. Furthermore, building permits are pending for 17 townhome-style units near Saguaro and Shea Boulevards. All three projects required and were granted Special Use Permits prior to submittal for site plan and construction review, as they were all proposed residential uses in a commercial area. In January, a rezone request was approved for 316 apartment units at Four Peaks Plaza. The proposal envisions a four-story wrap style apartment within a commercial center consisting of a high number of vacant commercial spaces. Page 4 of 12 Neighborhood Amenities In 2021, the Town approved the Active Transportation Plan (ATP) to ensure multimodal connectivity between neighborhoods, neighborhood parks, and significant natural open space. Pedestrian, bicycle and trail connectivity are further addressed in the Social Environment Element and in the Connectivity, Access and Mobility Element. Safety The Town applies Safe-by-Design concepts during the site plan review process. Safe-by-Design is about including safety at the earliest possible stage of development review. During the design review stage, staff implements concepts such as visibility of entryways, lighting, accessibility to outdoor areas, and clearly defined pedestrian, bicycle, trails and open space connectivity. Thriving Environment Thriving Environment integrates all aspects of the built, social, and natural environments by carefully knitting growth areas, infill, redevelopment and revitalization, place-based land use utilizing a character areas approach, connectivity, access and mobility supporting circulation for all travel modes, parks, recreation, trails, and open space, resource protection, energy conservation, air and water quality, infrastructure and public services in a cohesive manner as integral parts of Fountain Hills. Great Places The Great Places Element defines the Town of Fountain Hills major character areas and the land use mix supporting those areas. As a strategic tool, the Great Places Element guides new development, redevelopment and infill to sustain the long-range viability of the Town and continue to support the quality of life valued by the community. The following implementation activities for 2024 demonstrate considerable progress in creating and fostering Great Places: • Construction to build the long awaited International Dark Sky Discovery Center occurred on July 8. The first phase of work has been focused on laying underground utilities and earthwork that will prepare the site for the pouring of the foundation. The project is expected to take 15 to 18 months to complete. • The Pumphouse Pilot Art Project, a changing outdoor exhibition along the stucco wall adjacent to the Pumphouse at Fountain Park, continues to provide a changing 2-D display featuring panels from artists using a variety of mediums. The current installation is entitled "Expressions", with the artist's interpretation of a facial expression that portrays an emotion. The seven panels currently displayed were selected from a pool of over 300 applicants from various parts of the country. The exhibition includes a reusable framing and bracketing system that can be used continually and will not damage the art pieces when they removed for future exhibitions. Page 5 of 12 • On October 30, the Town debuted the new 80-foot diameter shade structure at Centennial Plaza. This new addition was designed to host special events, casual gatherings, meetups, concerts, and private ceremonies and receptions. The Town collaborated with a vendor to create a uniquely sized and designed structure. The absence of a central pole keeps the area open, making it adaptable and accessible year-round. An adjacent art piece made from galvanized and stainless steel, called Arizona State Donor Puzzle, the state of Arizona. The individual puzzle pieces can be purchased for $1,000. Purchases allow for a dedication to a group, in memory of a loved one, or to recognize a business, with up to 30 characters per piece. Buyers can choose any available spot on the Arizona replica. • Another shade structure was installed adjacent to the Rotary Splash Pad at Fountain Park. The 55-foot by 60-foot shade canopy covers a 17-table configuration with seating for well over 100 at one time. The shaded area, which was unusable in the past, creates an attractive year-round area for improved seating in the summer for splash pad users, enhanced seating for adjacent business, and a potential event gathering space. The project required several changes to the area, including, grading, drainage as well as tree removal and replacement. • The long awaited 42-toot Fountain Of Lights, made of steel and glass, was installed and dedicated by a local artist on September 25 at the linear park along the Avenue of the Fountains. • The Farmer’s Market, held every Wednesday between November and April, saw an increase of approximately 10 vendors since the previous year for a total exceeding 60 vendors. The Market offers healthy eating options and food trucks, as well as a variety of over 40 art vendors. The Market also hosted three special events featuring the Children’s Entrepreneur Market (CEM), featuring 50 booths for kids to make and sell all types of foods and crafts. CEM is a non-profit organization helping children learn business with first-hand experience. • The community garden, funded in part by the Ft. McDowell-Yavapai Nation, entered its seventh year. Garden organizers and members donate to local food pantry and hosts healthy cooking classes. Pavers were recently installed to improve accessibility throughout the garden compound. • The Town continues to coordinate service availability and enhancements with utility providers to ensure service capacity to new development, redevelopment or infill. Town staff coordinated with utility companies to relocate their infrastructure to accommodate the Saguaro Blvd. sidewalk infill project between Fountain Hills Blvd. and El Lago Blvd. • In the 2024 calendar year, following a review of all current parking standards and design guidelines, Town staff completed a Downtown Parking Study with additional technical Page 6 of 12 assistance from a consultant. The study assesses the required capacity and use of existing parking facilities and recommends parking standards based on today’s best parking practices. • Economic Development staff regularly utilizes visitor analysis software to identify various trade areas. The analyses assist the Town in mapping out business activity and consumer behavior at various points of interest. Analyzing a trade area entails studying things like traffic patterns, shopping habits, and existing businesses, for the purpose of exploring the market potential of a planning projects or impacts from a special event. • The City-County Communications & Marketing Association (3CMA) announced the winners of its 2024 Savvy Awards during a ceremony held in Arlington, Texas on September 5. Fountain Hills received a Silver Circle Award for Graphic Design Art in the Fountain Hills Branding category, thus recognizing the Town on a national stage. Town-wide brand features the new Town logo, which is used for marketing purposes to target new residents and businesses, such as the Town's, website, collateral material, and printed and digital ads. • A grant totaling approximately $60,000 was received from the neighboring Salt River Pima- Maricopa Indian Community. Another grant of $69,792 was received from the Arizona Office of Tourism. These grants help fund programs and projects that focus on education, public safety, health, environment, and economic and community development. The Town applied for a grant offered by the Fort McDowell-Yavapai Nation but was unsuccessful. Social Environment This Social Environment Element defines the Town of Fountain Hills’ built public spaces as areas for community interaction and networking. Such public spaces include community and regional parks as well as public gathering spaces like plazas and courtyards in association with compact or urban development. This element views streets, sidewalks and trails as social connectors and also addresses passive and active recreation. When addressed in an integrated manner, the social environment supports safety and a healthy and active lifestyle. The Town carried out a number of activities in 2024 to support a social environment that supports safety and a healthy and active lifestyle: • A new outdoor fitness facility opened in April at Desert Vista Park, featuring a full array of fitness equipment including an elliptical, stationary bike, rowing machine, weights and other equipment to help provide a complete workout. Area is sheltered by a large shade structure, which was donated to the Town by American Legion Post 58. • Fountain Hills Parks and Recreation began offering new adult leagues for cornhole, and pickleball and "Adult Return to Recess", offering beach volleyball, table tennis croque/bocce ball and kickball. Programs are sponsored by local companies. Page 7 of 12 • The Town Continues to design and maintain streetscapes that incorporate alternative travel modes. Completed roadwork on El Pueblo Blvd, Grande Blvd, Glenbrook Blvd and Panorama Drive, and restriped to include bicycle lanes on each street. Access, Connectivity, and Mobility In 2024, the following actions helped further improve the accessibility, connectivity and mobility throughout town: • Additional sidewalk infill on Saguaro Blvd. between Fountain Hills Boulevard and El Lago Boulevard has been added to provide improved connectivity accessibility to and from Fountain Park and neighboring businesses. • The Public Works Department oversaw design and construction of several crosswalks on Saguaro Boulevard at Gunsight Rd, Parkview Ave, Paul Nordin Rd and Kingstree Blvd, and a crosswalk at Palisades Blvd & Verde River Dr. A mid-block crosswalk was also installed on Eagle Mountain Parkway between the Clubhouse Drive and Summer Hill Boulevard. • The MAG Regional Bike Map was amended to add a bike route on Glenbrook Blvd. Public Facilities and Services The Town in conjunction with its servicing utility companies continues to ensure potable water and sanitation services to its residents while complying with all applicable environmental regulations at all levels of government. In 2024, a new restroom was constructed at Four Peak Park, as well as an upgraded recharge/recovery well for the Fountain Lake, which is operated by the Fountain Hills Sanitary District. Natural Resources and Open Space Element In its consistent support for preservation and conservation efforts, the Town values the natural environment as an essential component of a thriving community. • Three new trails were completed in our growing open space network, including the Upper Sonoran Trail, Remote Trail, and a new section of the Overlook Trail. The new section of the Overlook Trail adds a connector to the Easy Access Trail making it a loop trail, which is significantly more preferred by hikers, instead of an out and back trail where one sees the same views twice. It is not believed that these trails will greatly increase the hiking challenge and variety that the preserve trails offer to those who use them. Following the completion of these trails and all previous goals established by the McDowell Mountain Preservation Commission, the Town Council approved a resolution to officially sunset the Commission. Page 8 of 12 • Town staff, with assistance from the State Historic Preservation Office, formally initiated that application process to request designation of the Fountain to the National Register of Historic Places (NRHP). Listing in the National Register of Historic Places provides formal recognition of a property’s historical, architectural, or archeological significance based on national standards used by every state. • There have been three recycling events in 2024 sponsored in part by the Town, including the Household Hazardous Waste collection event, the Shred-a-Thon, and the Residential Electronic Recycling event. All three events were well attended by Fountain Hills residents. • The Town implements strict re-vegetation requirements for protected hillsides that require the restoration of disturbed areas with native plant species that are consistent in type and density with the surrounding native desert and encourage builders to design with a contextual emphasis. Thriving Economy Thriving Economy supports a strategic economic development approach to achieve the long- range viability of the Town and provides specific mechanisms to finance new development. Economic Development The following activities were performed in 2024 and pertain to the Economic Development Element of the General Plan and were largely guided by the 2022 Strategic Plan: • Downtown Strategy was approved by Council on September 4. The Strategy provides an implementation framework addressing land use, infrastructure, economic vitality, and public spaces/placemaking. Future implementation actions for the Downtown area will be primarily guided by this document. • The Town continues to own and maintain dual port charging stations - one at the Civic Center and the other at Fountain Park. The charging stations use the ChargePoint network which operates a nationwide charging system. Ninety percent of the revenue generated from people wishing to charge their vehicles goes to the Town, while 10% goes to ChargePoint. • Rezone proposals and special use permit for specific locations are guided by the General Plan and its identified Character Areas. Staff cites the general plan in their recommendations to the Planning and Zoning Commission. Page 9 of 12 Cost of Development The Town continues to honor its current development agreements with the landowners and developers, as well as its cost sharing through intergovernmental agreements with other jurisdictions. The Development Services department utilizes the Town Online Planning and Permitting System (TOPPS) to provide a streamlined design review process for development and redevelopment of the Town Center, Commerce Center, Saguaro Blvd and Shea Character Areas. 3. POLICY ISSUES As the 2020 General Plan enters into the fifth year of implementation, a few issues remain with regards to the timing and completion of some of the goals. Staff notes a number of immediate and short-range implementation actions that have yet to be initiated. Immediate goals are intended to be initiated within 6 months of ratification by voters. Short-range goals are to be initiated within the first four years. Some goals have fallen outside of the expected time frame for initiation. A number of factors have impacted its implementation progress, including staff turnover and vacancies in various departments as well as logistical challenges. The calendar year 2025 is an opportunity for staff to study the changing needs of the Town and identify opportunities and constraints that will better guide the Town in its policy direction. Immediate Goals There are two immediate goals for which progress was to be initiated within six months of ratification but have not yet begun. These two goals are listed below, followed by a brief statement regarding their status: • Goal: Consider Part time grant writer. (Economic Development, Goal 2, Policy 1) Department staff regularly searches for grant opportunities that could help fund new infrastructure, recreational amenities, and economic development. However, grant opportunities are limited, and not all grants awarded to the Town are accepted by Town Council after careful consideration. Although the Town will continue to seek grant opportunities where available, it may reconsider the feasibility of adding a part-time staff member whose exclusive task is to write grant proposals. • Goal: Establish a General Plan Monitoring System coordinated with the CIP in conformance with the policy direction supporting this goal [to share costs with other entities]. (Cost of Development, Goal 10, Policy 1-2) Due to a number of factors including disruption from the pandemic and staff turnover at the management level, efforts to coordinate the Capital Improvements Program with Page 10 of 12 goals of the General Plan have not been initiated. In 2023, Staff informed Council of plans to form an ad hoc group to begin this effort and ensure that implementation of the CIP and General Plan align in mutually supportive fashion. Since then, staff has formed a Capital Projects Review Committee that meets approximately every six weeks. Though these meetings are not exclusively intended to address this specific goal of the General Plan, it does allow planning staff to monitor how the Town’s resources are directed in implementing the General Plan’s policies while also identifying cost sharing opportunities. Short-Term Goals Steps toward completing the short-term goals of the General Plan are to be initiated within four years after voter ratification. The following are short-term goals, followed by a brief statement regarding their status: • Goal: Develop and implement an investment plan that responds to the Economic Development Plan’s priorities, and that prioritizes infrastructure improvements in the CIP. (Economic Development) Although the Town has not initiated a formal investment plan that ties together the CIP and Strategic Economic Development Plan and the CIP, staff makes sure that both are complementary in their vision. • Goal: Commission a cost/benefit study to identify the gap between actual subdivision regulations infrastructure specifications and determine the cost of meeting such specifications. (Economic Development) The Subdivision Regulations are a foundational part of shaping the Town’s housing stock and commercial uses, as well as the infrastructure that supports them. The Town has long believed that these regulations ensure quality infrastructure. Currently, there are few large privately-owned properties with the potential of being subdivided further into residential lots. As mentioned earlier, the 1,276-acre site owner by ASLD provides the best development opportunity, but no auctions are scheduled at this time. In anticipation of a successful acquisition from a developer, staff will be researching the feasibility of a cost/benefit study in the coming year. Goal: Prepare, adopt and implement an integrated Parks, Recreation, Trails and Open Space System Master Plan (Social Environment) As mentioned earlier in this report, the Town completed three new trails in its growing network. As efforts continue in maintaining or improving this network, the Town will be able to utilize these efforts in tying together a network of trails with its large inventory of open space into an integrated and organic master plan. Page 11 of 12 • Goal: Amend Zoning Ordinance to include, at a minimum, Safe-by-Design concepts. (Thriving Neighborhoods) Though not yet codified in the Zoning Ordinance, the Development Services department strongly advocates Safe-by-Design concepts in its site plan and design review processes. These concepts are similar to the Architectural Review Guidelines in Chapter 19 of the Zoning Ordinance. However, the extent to which Safe-by-Design concepts can be applied may vary depending on site conditions and related factors. Therefore, as stated in previous years, the concepts may better be suited to remain a policy in the General Plan rather than a development regulation in the zoning ordinance. However, staff welcomes feedback from the Planning and Zoning Commission and Town Council on this matter. • Goal: Amend the Zoning Ordinance to include Low Impact Development (LID). (Natural Resources and Open Space) The term low impact development (LID) refers to systems and practices that use or mimic natural processes that result in the infiltration, evapotranspiration or use of stormwater in order to protect water quality and associated aquatic habitat. Like the Safe-by-Design Concepts, the LID concepts have not been codified in the Zoning Ordinance. Many of the Town’s standards, such as requiring stormwater pollution prevention plans (SWPPP) and erosion control plans with new development plans largely align with many LID concepts. However, staff welcomes feedback from the Planning and Zoning Commission and Town Council on this matter. The General Plan also identifies a number of mid-range and long-range goals that will be initiated in the coming years: • Goal: Work with ASLD to prepare a feasibility study for State Trust land and based on the results [of a cost recovery study], consider future revenues that could be generated from development of Trust Land. (Cost of Development) This goal hinges on another goal which requires the Town to perform a cost recovery study mentioned earlier. When and if such a cost recovery study is completed, staff would invite a broader discussion with the Commission and Town Council before proposing amendments to the ordinances. Page 12 of 12 4. RECOMMENDATIONS FOR AMENDMENTS Although a number of policy issues have been identified, staff does not recommend any amendments to the General Plan at this time. Substantive changes to any goal in the general plan would require a Major Amendment per the Arizona Revised Statutes, which entails an extensive review and public notification process and could take several months from initiation to completion. However, changes to the implementation steps used to arrive at each goal may only require a minor amendment, which does not require extensive lead time and may be considered by the Planning and Zoning Commission and Town Council at any time. In any case, staff appreciates further direction from the Planning and Zoning Commission and Town Council.