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HomeMy WebLinkAboutagendapacket__03-11-24_0508_581       NOTICE OF MEETING REGULAR MEETING FOUNTAIN HILLS PLANNING AND ZONING COMMISSION      Chairperson Peter Gray  Vice Chairperson Rick Watts Commissioner Patrick Dapaah Commissioner Clayton Corey Commissioner Susan Dempster Commissioner Dan Kovacevic Commissioner Scott Schlossberg    TIME:6:00 P.M. – REGULAR MEETING WHEN:MONDAY, MARCH 11, 2024 WHERE:FOUNTAIN HILLS COUNCIL CHAMBERS 16705 E. AVENUE OF THE FOUNTAINS, FOUNTAIN HILLS, AZ Commissioners of the Town of Fountain Hills will attend either in person or by telephone conference call; a quorum of the Town’s Council,  various Commission, Committee or Board members may be in attendance at the Commission meeting. Notice is hereby given that pursuant to A.R.S. §1-602.A.9, subject to certain specified statutory exceptions, parents have a right to consent before the State or any of its political subdivisions make a video or audio recording of a minor child. Meetings of the Commission are audio and/or video recorded and, as a result, proceedings in which children are present may be subject to such recording. Parents, in order to exercise their rights may either file written consent with the Town Clerk to such recording, or take personal action to ensure that their child or children are not present when a recording may be made. If a child is present at the time a recording is made, the Town will assume that the rights afforded parents pursuant to A.R.S. §1-602.A.9 have been waived.    REQUEST TO COMMENT   The public is welcome to participate in Commission meetings. TO SPEAK TO AN AGENDA ITEM, please complete a Request to Comment card, located in the back of the Council Chambers, and hand it to the Executive Assistant prior to discussion of that item, if possible. Include the agenda item on which you wish to comment. Speakers will be allowed three contiguous minutes to address the Commission. Verbal comments should be directed through the Presiding Officer and not to individual Commissioners. TO COMMENT ON AN AGENDA ITEM IN WRITING ONLY, please complete a Request to Comment card, indicating it is a written comment, and check the box on whether you are FOR or AGAINST and agenda item, and hand it to the Executive Assistant prior to discussion, if possible.   REGULAR MEETING    REGULAR MEETING        1.CALL TO ORDER, PLEDGE OF ALLEGIANCE AND MOMENT OF SILENCE – Chair Gray     2.ROLL CALL – Chair Gray     3.CALL TO THE PUBLIC Pursuant to A.R.S. §38-431.01(H), public comment is permitted (not required) on matters NOT listed on the agenda. Any such comment (i) must be within the jurisdiction of the Commission, and (ii) is subject to reasonable time, place, and manner restrictions. The Commission will not discuss or take legal action on matters raised during Call to the Public unless the matters are properly noticed for discussion and legal action. At the conclusion of the Call to the Public, individual commissioners may (i) respond to criticism, (ii) ask staff to review a matter, or (iii) ask that the matter be placed on a future Commission agenda.     4.CONSIDERATION AND POSSIBLE ACTION: approving the regular meeting minutes of the Planning and Zoning Commission February 12, 2024.     5.REVIEW, DISCUSS, AND PROVIDE COMMENTS: Possible amendments to Chapter 17, Wireless Telecommunication Towers and Antenna     6.COMMISSION DISCUSSION/REQUEST FOR RESEARCH to staff.    7.SUMMARY OF COMMISSION REQUESTS from Development Services Director.    8.REPORT from Development Services Director.    9.ADJOURNMENT     CERTIFICATE OF POSTING OF NOTICE The undersigned hereby certifies that a copy of the foregoing notice was duly posted in accordance with the statement filed by the Planning and Zoning Commission with the Town Clerk. Dated this ______ day of ____________________, 2024. _____________________________________________  Paula Woodward, Executive Assistant The Town of Fountain Hills endeavors to make all public meetings accessible to persons with disabilities. Please call 480-816-5199 (voice) or 1-800-367-8939 (TDD) 48 hours prior to the meeting to request a reasonable accommodation to participate in the meeting or to obtain agenda information in large print format. Supporting documentation and staff reports furnished the Commission with this agenda are available for review in the Development Services' Office.    Planning and Zoning Commission Meeting of March 11, 2024 2 of 2 ITEM 4. TOWN OF FOUNTAIN HILLS STAFF REPORT    Meeting Date: 03/11/2024 Meeting Type: Planning and Zoning Commission Agenda Type: Submitting Department: Development Services Prepared by: Paula Woodward, Executive Assistant Staff Contact Information: John Wesley, Development Services Director Request to Planning and Zoning Commission (Agenda Language):  CONSIDERATION AND POSSIBLE ACTION: approving the regular meeting minutes of the Planning and Zoning Commission February 12, 2024. Staff Summary (Background) The intent of approving meeting minutes is to ensure an accurate account of the discussion and action that took place at the meeting for archival purposes. Approved minutes are placed on the Town's website and maintained as permanent records in compliance with state law.   Related Ordinance, Policy or Guiding Principle N/A Risk Analysis N/A Recommendation(s) by Board(s) or Commission(s) N/A Staff Recommendation(s) Staff recommends approving the meeting minutes of the regular meeting minutes of the Planning and Zoning Commission  February 12, 2024.   SUGGESTED MOTION MOVE to approve the regular meeting minutes of the Planning and Zoning Commission  February 12, 2024. Attachments Summary Minutes & Verbatim Transcript  Planning and Zoning Commission February 12, 2024 1 of 2 TOWN OF FOUNTAIN HILLS SUMMARY MINUTES OF THE REGULAR MEETING OF THE PLANNING AND ZONING COMMISSION FEBRUARY 12, 2024 1. CALL TO ORDER, PLEDGE OF ALLEGIANCE AND MOMENT OF SILENCE Chairperson Gray called the Regular Meeting of the Fountain Hills Planning and Zoning Commission held on February 12, 2024, to order at 6:09 p.m. and led the Commission and audience in the Pledge of Allegiance and Moment of Silence. 2. ROLLCALL Commissioners Present: Chairperson Peter Gray; Vice Chairperson Rick Watts; Commissioner Clayton Corey (telephonically); Commissioner Patrick Dapaah (telephonically); Commissioner Susan Dempster Commissioner Dan Kovacevic; Commissioner Scott Schlossberg Staff Present: Development Services Director John Wesley (telephonically); Senior Planner Farhad Tavassoli and Executive Assistant Paula Woodward. 3. CALL TO THE PUBLIC None 4. CONSIDERATION AND POSSIBLE ACTION: approving the regular meeting minutes of the Planning and Zoning January 8, 2024. MOVED BY Commissioner Dempster to approve the regular meeting minutes of the Planning and Zoning January 8, 2024. SECONDED BY Commissioner Kovacevic. Vote:7-0 Unanimously 5. PUBLIC HEARING, CONSIDERATION, AND POSSIBLE ACTION: Amending Zoning Ordinance Sections 1.12, Definitions, Section 5.14, Home Occupations, Section 10.02, Permitted Uses, and Section 11.02 Permitted Uses as they pertain to prohibited uses. The following resident addressed the Commission: Larry Meyers MOVED BY Chair Gray to recommend the Town Council approve Amending Zoning Ordinance Sections 1.12, Definitions, Section 5.14, Home Occupations, Section 10.02, Permitted Uses, and Section 11.02 Permitted Uses as they pertain to prohibited uses with modifications recapped by Chair Gray. SECONDED BY Commissioner Kovacevic. Vote:7-0 Unanimously Commissioner Corey Aye Commissioner Dapaah Aye Commissioner Dempster Aye Commissioner Kovacevic Aye Commissioner Schlossberg Aye Vice Chair Watts Aye Chair Gray Aye 6. PUBLIC HEARING, CONSIDERATION, AND POSSIBLE ACTION: Ordinance 24-02 amending Zoning Ordinance Section 5.13, Community Residences, to provide for re-inspection of homes for compliance with ordinance requirements. Planning and Zoning Commission February 12, 2024 2 of 2 The following residents addressed the Commission: Larry Meyers Crystal Cavanaugh The following residents provided written statements stating that they were for the request: Liz Gildersleeve MOVED BY Vice Chair Watts to continue agenda item, #6, to the next scheduled Planning and Zoning Commission meeting, March 11, 2024. SECONDED BY Commissioner Kovacevic. Vote:7-0 Unanimously Commissioner Corey Aye Commissioner Dapaah Aye Commissioner Dempster Aye Commissioner Kovacevic Aye Commissioner Schlossberg Aye Vice Chair Watts Aye Chair Gray Aye 7. COMMISSION DISCUSSION/REQUEST FOR RESEARCH to staff. 8. SUMMARY OF COMMISSION REQUESTS from Development Services Director. 9. REPORT from Development Services Director. 10. ADJOURNMENT Chair Gray adjourned the Regular meeting of the Fountain Hills Planning and Zoning Commission held on February 12, 2024 at 7:58 p.m. PLANNING AND ZONING COMMISSION Chairperson Peter Gray ATTESTED AND PREPARED BY Paula Woodward, Executive Assistant CERTIFICATION I hereby certify that the foregoing minutes are a true and correct copy of the minutes of the Regular Meeting held by the Planning and Zoning Commission, Fountain Hills in the Town Hall Council Chambers on February 12, 2024 I further certify that the meeting was duly called and that a quorum was present. DATED this day of February 12, 2024 Paula Woodward, Executive Assistant TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 1 of 44 Post-Production File Town of Fountain Hills Planning and Zoning Commission Meeting Minutes February 12, 2024 Transcription Provided By: eScribers, LLC * * * * * Transcription is provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings. * * * * * TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 2 of 44 CHAIR GRAY: Let's go ahead and call this meeting to order with the Pledge of Allegiance and a moment of silence, please. ALL: I pledge allegiance to the flag of the United States of America and to the Republic for which it stands, one nation under God, indivisible, with liberty and justice for all. CHAIR GRAY: Thank you. All right. With two absent, let's go ahead and do roll call, Paula. WOODWARD: Commissioner Corey? COREY: Here. WOODWARD: Commissioner Dapaah? DAPAAH: Here. WOODWARD: Commissioner Dempster? DEMPSTER: Here. WOODWARD: Commissioner Kovacevic? KOVACEVIC: Here. WOODWARD: Commissioner Schlossberg? SCHLOSSBERG: Here. WOODWARD: Vice Chairman Watts? VICE CHAIR WATTS: Here. WOODWARD: CHAIR GRAY? CHAIR GRAY: Here. Thank you, Paula. Agenda item 3, call to the public. Paula, any speaker cards or written comments? WOODWARD: No, Chairman. CHAIR GRAY: Thank you. Agenda item 4, consideration and action on the January 8th meeting minutes. Commissioners, any discussion or a motion, please? Commissioner Dempster? DEMPSTER: I'd like to move to approve the regular meeting minutes of the Planning and Zoning Commission January 8th, 2024. DAPAAH: Chairman, I have a question about this minutes, and just for the record, if I misunderstood something, I heard the applicant's attorney mentioning to the mayor TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 3 of 44 and council that our discussion -- that we actually asked her extend the delivery time to 11. But according to the minutes, which I agree with, which is my understanding that we actually requested for her to apply to extend the storefront hours. Was that the understanding? CHAIR GRAY: There was discussion. Yeah, there was discussion on both fronts. But I don't recall asking the applicant to reapply or modify their application. VICE CHAIR WATTS: We offered. CHAIR GRAY: We offered? DAPAAH: And she declined. CHAIR GRAY: Right. Is that clarified, Commissioner? DAPAAH: Okay. Well, was that for delivery -- extension of the delivery time or the storefront hours? CHAIR GRAY: Storefront hours. DAPAAH: Okay. Okay. Good. Okay. So she stated it wrong to the council, just for the record. All right. Thank you. CHAIR GRAY: Thank you. Commissioner. Commissioner Dempster has a motion on the table. Is there a second? Commissioner Kovacevic? KOVACEVIC: Second. CHAIR GRAY: All in favor? ALL: Aye. WOODWARD: Seven-zero. CHAIR GRAY: All right. Agenda item 5, public hearing consideration and potential action on several sections related to home occupations, permitted uses, and prohibited uses. Director Wesley, are you giving the presentation on this? WOODWARD: John. CHAIR GRAY: Uh oh. WESLEY: There we go. I guess we got to unmute this, hadn't I? CHAIR GRAY: There you are. WESLEY: (Indiscernible) the presentation, couldn't hear it. TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 4 of 44 CHAIR GRAY: Yes, sir. WESLEY: Okay. Yeah. Farhad's going to adjust the slides for me, and I'm going to give the presentation. So hopefully, you can hear and it comes across. I apologize for not being able to be there this evening, but hopefully we can move through these anyway. So Farhad, hopefully, you're there, ready to move. There's a delay in the TV, so if I get too far off or anything, let me know. So this first text amendment is about our home occupation regulations. We've had a few challenges come up recently that we've been dealing with, in particular a situation where a home is being used. I'm going to describe this somewhat generally because it's still an active, ongoing issue we're dealing with, but it's being used by some people who are basically social media influencers. And every night a group of them will show up at the home, which is otherwise we're not sure being occupied. And photographers show up, and they take various pictures in and around the property. And activity occurs kind of through the night. And then they're all gone. And it doesn't neatly fit any of our current regulations and definitions. Because it's not really, truly a home occupation, but got us looking at those regulations and trying to make some adjustments. So hopefully we can address this type of thing and other changes that might occur in the future as technologies change and different types of activities change. So basically a little background, residential zoning districts, both single and multifamily, allow for home occupations. They're defined in section 1.12 of the zoning ordinance. Regulations are contained in 5.14. And again, these regulations have not been updated for a while to keep current with different technologies and do have some specific issues that we're trying to cover that are not adequately covered by the current codes. So moving to the next slide the definitions. Section 1.12, first change is a very minor change, but thought it may be helpful as we deal with these things. The current definition talks about the building being designed for residential uses but doesn't necessarily say they're being used for residential purposes. So I thought that would be helpful to add that language in there. In going back through the presentation and TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 5 of 44 looking at this definition, I think we may also want to take where it has single-family and multifamily and actually change that to an "or". So that's if that's agreeable, we'll probably make that change, and Chair, it might be helpful as we go through these, if anybody has any questions that we go ahead and handle them at the time as we're looking at each of these different proposed changes. CHAIR GRAY: Commissioners, any conversation on 1.12? Commissioner Dempster? DEMPSTER: Sorry, John. You said to change it to single-family or multifamily? WESLEY: Correct. DEMPSTER: You have and on here. Okay. WESLEY: Right. Yeah. "And" is in there. "And" is in the current ordinance, as I was reading back through that again, I thought "or" probably fits better. DEMPSTER: Okay. WESLEY: So that's another change that's not shown there. CHAIR GRAY: Commissioner Dapaah or Corey, you're going to have to flag me if you want to chime in here, please. DAPAAH: Okay. COREY: Okay. WESLEY: Moving on to the next one. Again, after I sent out the staff report going back through our ordinances, I'd forgotten that we actually had a definition of home occupation in the code. And so I've added that into the presentation this evening and would add it into the ordinance when it goes to council. I'm proposing to make some changes here. As you can see on the screen, the occupation or profession carried out in a dwelling unit by residents thereof, which user activity and then goes on with the same. So providing a, hopefully, a clear definition of what a home occupation is. The rest of that statement goes on and starts to provide some of these standards beyond the definition, which are contained in 5.14. And so I'm proposing to remove those and keep the standards in one place separate from the definition. It can be confusing when you forget you have them in two places to keep them the same. Plus, general practice is best to have definitions be definitions and standards be elsewhere in an ordinance. TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 6 of 44 CHAIR GRAY: So John, under 1.12 here, the intent is to enhance this language to where the primary use -- it has to be the -- it has to be the place of domicile for the business owner. Correct? Primary place of domicile. WESLEY: Okay. CHAIR GRAY: Correct. WESLEY: You have questions about that definition? Okay. We'll move on then. CHAIR GRAY: John, hold one second. Vice Chair Watts? WESLEY: Okay. VICE CHAIR WATTS: Does that mean that the resident has to reside there? CHAIR GRAY: Yes. VICE CHAIR WATTS: A hundred percent of the time? CHAIR GRAY: It has to be a registered physical address. VICE CHAIR WATTS: Okay. So what about winter visitors? WESLEY: Right. So that means they can -- then when they're living someplace else, have the same home occupation, wherever they're living at the time. VICE CHAIR WATTS: John, say that one again for me, please. WESLEY: So yeah. So a person living at -- at, you know, home A while, they're living there, they can occupy conduct the home occupation in that home. Somebody who doesn't live there can't conduct a home occupation there, or when if they're winter visitors and they go away for six months, that home occupation should cease at that dwelling during that time because they're not there. VICE CHAIR WATTS: Okay. So no activity when the resident isn't there? CHAIR GRAY: Well, there's several definitions that intertwine here. So. WESLEY: Right. CHAIR GRAY: Other employees needing to be members of the immediate family, et cetera. VICE CHAIR WATTS: But that goes back to the family. So as long as the family is represented there? WESLEY: Right. TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 7 of 44 CHAIR GRAY: So is a group of social media influencers family? VICE CHAIR WATTS: Could be. CHAIR GRAY: Could be. WESLEY: If they actually lived there and there were only four of them, they could. CHAIR GRAY: What if I lived there in spirit, John? WESLEY: We'll think on that one. CHAIR GRAY: Okay. Thanks. WESLEY: Any other questions on this one? Now moving to section 5.14, the next slide. And so this section provides actual standards associated with the occupation of -- operation of a home occupation. So again, trying to tighten it up a little bit in the first statement there about the home occupation shall be conducted only by persons who live at the property. And conducted in a manner clearly incidental when not the current. And B limits it to 25 percent. That's, honestly difficult to enforce. You really don't know how much of the home is being used. But sometimes as we get different applications in, we will raise the question because it's something that could easily exceed that. And so we'll make sure that they understand that provision. And then again trying to reinforce in C that any employees involved can't be working in the home. So I'm a contractor, and I work out of my home to schedule all my work and manage my contract business. But all the people who work for me on site, I'll meet them at site. They can't work at the home. Questions there? CHAIR GRAY: Vice chair Watts. VICE CHAIR WATTS: Chair and John, in C, no employees. But is there another section? As I recall, there was some other section that qualified the community homes and allowed for employees to be there. And then, we would defer back to another definition in the ordinance that established the number of employees that could be there at that given time. WESLEY: Correct. That's correct. VICE CHAIR WATTS: Should we have a reference -- TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 8 of 44 WESLEY: (Indiscernible). VICE CHAIR WATTS: Okay. CHAIR GRAY: Commissioner Dempster? DEMPSTER: I have a couple questions. Sorry. Going back to A, I missed a note that I made for myself. So with dwellings and sometimes homes have casitas and they have businesses or home offices, home occupations. They work out of their casita. When you have accessory buildings, does that cover casitas? WESLEY: So we're going to see a provision come up here a minute that limits the home occupation to be in the primary structure or in the garage. It's not supposed to be an accessory structure or in the yard. DEMPSTER: Okay. And then, I thought there was something contradictory. So with employees, there shall be no employees working at the home other than the members of the immediate family. But does that -- what happens when and you go on to say when the workers come to get assignments and equipment. So when they're coming to pick up equipment and get assignments and such, that is not considered work, correct? WESLEY: So that wouldn't be working at the home, necessarily. But that is covered under the trip generation. So there can't be a whole lot of employees coming and going to get assignments. DEMPSTER: So that would cover -- that would be counted under the six vehicle trips per day? WESLEY: Correct. DEMPSTER: Okay. WESLEY: Which we'll talk about a little bit more in a minute what that means. DEMPSTER: Okay. Thank you. WESLEY: There no other questions there, we can go to the next slide. So moving on. With the delivery vehicles, added a little bit of language there. Again, with the thing within C, a bunch of vehicles come, photographers come and go, people come and go carrying suitcases and whatever. So that's some vehicular activity that's really not customary to our residents. Right now we wouldn't even consider it a home occupation. TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 9 of 44 But in case they do some things that start to qualify it that way, just trying to cover more bases with that one. And then nuisances and signs, no proposed changes in those. Coming down to traffic, adding another provision for parking. But here's where we do have the six vehicle trips per day. Currently that says five trips, but when we look at the definitions and what that means, it's talking about a vehicle trips. Every time a vehicle moves, that's a trip. So I come -- I'm a worker, and I come to the property to pick up an assignment. That's one vehicle trip. When I leave, that's a second vehicle trip. So that's really three vehicles coming and going, is what that limits it to. And at five, that's two-and-a-half. So that was odd. And so it seemed like it ought to go to an even number either four or six. And we went up to six. But we wouldn't have a problem necessarily going down to four. But if you think of that contractor who lived there you know, four barely covers them. They leave in the morning, come back at lunch, leave again, come back in the evening. If they had any other reason to come back to the site, or if you think of some other ones. So it's maybe a realtor that's working from home, how many times might they come and go during the day? So six seemed more reasonable to us. And then we've had some challenges with the regulations in town code section twelve 12.310 with regard to commercial vehicles parked on the property. And again, thinking of people who don't even have a home occupation, but they work for a company that provides for them a work vehicle. And so they bring that home. So that's already happening with the commercial vehicle being parked on the property, or I'm the pool contractor or again, the realtor and I park my vehicle at my home. So I want to be a little bit more clear and reasonable with that. So certainly allowing for one commercial vehicle to be parked associated with the business perhaps to comply with the other section of town code, which we'll talk about a little bit later, because we're proposing some amendments there. Any questions on those? CHAIR GRAY: Commissioner Dempster? DEMPSTER: Yes. One quick question. So would the deliveries be included in the trip TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 10 of 44 total? WESLEY: Yes. That's customer patron and shipping receiving. DEMPSTER: Okay. Thank you. COREY: Chair? CHAIR GRAY: Commissioner Corey. COREY: All right. Thank you. So I agree with and definitely support your recommendations here, John. I'm curious, could you elaborate on, like, how would these trips and parking be monitored and enforced? WESLEY: Sure. So certainly on an ongoing basis, we don't have enough code officers to be around town checking everyone. And so it would be on a complaint basis. If we have somebody informing us that they're seeing a lot of vehicles coming and going, and we would start to investigate, monitor the property, make sure the owner of the business is aware of the ordinance requirements and go from there. COREY: Okay. Now I also work from home, so it sounds like I'm going to have to start tracking when I go to the coffee shop, and then when I go get my sub sandwich at lunchtime. And so what is it, six? WESLEY: Yeah. And certainly, that that is a challenge here. And all these things kind of come together, and you know, what needs to be enforced and what's really causing a problem. But you know, when you are a person that works at home because you're going, to the to get them lunch, is that a work trip or is that just because you live there trip. And it does get to be a little bit of a challenge. And it does say the customer patron and the shipping receiving, it doesn't necessarily say the resident trips. CHAIR GRAY: Commissioner Corey, you get that? You get that AI, assistant commissioner, then you just make one trip because she'd schedule it for you. COREY: Oh, All right. I like it. DEMPSTER: John, that was you kind of touched upon my clarification because, I do work from home at times. I also go to the office. But how -- I might get a delivery that's directly related to my business. But then I might get a delivery because I need, a new flower pot for my house. How do you differentiate between personal and your TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 11 of 44 business? WESLEY: And certainly that's a challenge with this. There's a lot of little challenges in here when you're mixing these two activities. And so, again, we would look at it, if somebody's seen enough trips coming and going that they're complaining, then we would monitor it and we would talk to the business and try to get a handle on what's going on. If they're just passionate Amazon shoppers and have lots of different Amazon's for personal reasons come and going, you know, it -- this would -- could be a challenge. CHAIR GRAY: John, any opinion from the chamber on the proposed amendment? WESLEY: We have not specifically run it by them. We could reach out to them before we go to council, if you'd like. Ready to go to the next slide? So going on here then to H is the exceptions that Commissioner VICE CHAIR WATTS brought up earlier, which does allow for the operation of the group home for the handicapped. That's another one that maybe could be amended here to say community residence. But to be consistent with other parts of the code today. But does allow the, those exceptions to some of the requirements in the code because they're just naturally going to not fit the standard type of home occupation being regulated. And then under hazardous materials. Again, reading through this today, I recognized another minor change ought to be made. It references the fire district, and that was written when we didn't have our own in-house fire department. So I'll tweak that language a little bit as I take it on to council something about the town fire marshal being assured that proper handling and storage and disposal. Yeah. And then in J, uses not permitted. We've had some situations recently we've dealt with, particularly with animals, people trying to run some animal boarding types of things, animal daycare things out of their home and caused some issues in the neighborhood. So we wanted to add that to a use not permitted to make that clear. Hmm. Any questions on those? KOVACEVIC: Sure. TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 12 of 44 CHAIR GRAY: Commissioner Kovacevic. KOVACEVIC: Yeah. The temporary overnight keeping of animals, where they keeping more than -- were they keeping a lot of dogs or cats or whatever? WESLEY: Yes. KOVACEVIC: So aren't we already in the other ordinances limited to four animals in a residence? WESLEY: Yes. KOVACEVIC: So isn't this kind of duplicative? WESLEY: Well, but here they were claiming they were only keeping four animals, which is what was allowed. But then they actually had their own. And at times there would be, five, six, eight animals running around the property. Some, they claimed, were theirs. Some they were caring for. Anyway, we just felt it would be better to add this extra enforcement tool when it was clear that they were taking care of other people's animals. KOVACEVIC: Well, I don't know, I guess I'm still wrestling with it. I mean, if they've got eight animals on the property, they're breaking the law outside of section 5.14. WESLEY: Correct. KOVACEVIC: So is this necessary? WESLEY: Well, by allowing the opportunity for someone to keep animals at their home, if we could be confident they'd always keep it at the four, I guess we'd be okay, but it just opens that door for them to start keeping them, and having their own, and it just becomes more confusing. CHAIR GRAY: I think it's fine to keep it a prohibited use in a residence. If you've got your own animals at home, you've got control of them. You can control the barking and everything else. When you're boarding, it's a different ballgame. KOVACEVIC: Yeah, but if I'm traveling and I drop my dog off at my neighbor's and slip the ten-year-old that's going to walk the dog every day, 20 bucks. CHAIR GRAY: Don't tell anybody. KOVACEVIC: Well, yeah, but I don't want to be a scofflaw. I mean, I don't like this. TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 13 of 44 WESLEY: Yeah. That's not a home occupation being set up for an ongoing job. That's a temporary -- having a neighbor do something for you. KOVACEVIC: Well, that's what it says. Temporary. WESLEY: Right. So we're under the definition of home occupation. And so is that somebody getting a business license to do that and operate an ongoing business out of their home? KOVACEVIC: Okay. CHAIR GRAY: Vice Chair Watts? VICE CHAIR WATTS: I've got a similar concern, but it's -- couldn't we alleviate some of the concerns by referencing the other component of the ordinance that's already established ,and I think that applies to the keeping of the animals because we could rather than prohibit it here. But in a temporary situation you've got the number of four. So you reference another piece of the ordinance somewhere else. So we make some references. And it's kind of like in the hazardous materials component. Pool companies have hazardous materials, flooring contractors, air conditioning contractors, welding companies that work out of their house. How do we regulate hazardous material today? Is there something in the ordinance that says they have to have the inspection? Because all of those are fairly volatile. And if we do, then we should have something that references here consistent with whatever that particular ordinance is. That make any sense? WESLEY: Well, sure. When a person applies for their business license to operate their home occupation, one of the people that gets notification of that business license is the fire marshal. And if he has any concerns about the business and what types of products they may have, then he can investigate it at the time. VICE CHAIR WATTS: Okay. CHAIR GRAY: I think we're okay to keep moving, John. WESLEY: Okay. And if you know, if there's a desire to take the animal piece out, we can do that. That was not one of the primary issues in bringing this forward, but we were TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 14 of 44 taking advantage of this to address some challenges we've had. But moving on then to sections 10.02 and 11.02, which provide for the permitted uses in the residential and multifamily zoning districts. In 10.02 item 9, proposing a slight wording change there, adding some words that are in the 11.02. Just to be clear on the section of the code for home occupations, that's a pretty minor change. But the bigger thing is to add in each of those. The new C on prohibited uses. So except for items listed above, which again, is a list of allowed uses, nonresidential uses, or activities of property or dwellings and associated structures are prohibited. So this is the one that we really are hoping to be able to use for some of the activities we're seeing, because it really isn't a home occupation that's happening. But it is definitely not a nonresidential activity going on. And so we want to clearly label that as being prohibited, so we can follow up, hopefully enforce that on the property owner and the people conducting those activities. CHAIR GRAY: No comments here, John. WESLEY: Okay. So related, I mentioned earlier, this isn't technically your item because it's not in the zoning ordinance, but I mentioned before section 12.310 of the town code dealing with parking of vehicles in residential areas. Want to clarify that one commercial vehicle can be allowed either on the driveway or behind a wall. Not in the street, not on the gravel. CHAIR GRAY: Commissioner Kovacevic? KOVACEVIC: Does this supersede or could this supersede any HOA requirements to the contrary? WESLEY: So they are different. Whatever we say that might be different than an HOA, it's always up to them to enforce their rules. So if the HOA has stricter rules, they can still enforce their stricter rules. CHAIR GRAY: Vice Chair Watts? VICE CHAIR WATTS: Is there any need for a height requirement on those vehicles? Some vehicles get fairly tall, and when they wrap them with advertisement, is that something to at least consider? TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 15 of 44 WESLEY: Possibly. And we have to consider the person that's driving their work vehicle home, whatever that might be. Don't want to necessarily pick on any business but a plumbing company or a whatever that is a chain plumbing company, and they send their employees home with their vehicles. So because they're on call, you know, standard vehicle, however tall that is, I'm not sure if we'd get things that are exceptionally tall semi-sized vehicles. VICE CHAIR WATTS: I'm thinking more about all the Peterbilt tractor trailers that are parked all around town. WESLEY: Right. VICE CHAIR WATTS: Maybe not too many. CHAIR GRAY: No other comments, John. WESLEY: Yeah. We haven't thought about that one. I think there's a need to add something there, we could take a look at that. But otherwise that's it for this presentation. DEMPSTER: Just one last comment, John. To clarify it states that it should be parked on the driveway or completely enclosed with the wall, blah, blah, blah, but that has to be on a solid surface, correct? Don't we have that rule in another section? WESLEY: Yeah. We have that in the RV language. I see that that doesn't say that here specifically. We could add that. DEMPSTER: The point to have it in the RV language is environmental or what? WESLEY: Well, yeah. I can only maybe speculate a little bit, since I didn't write that, it's been in the code for a while. But you got that bigger vehicle that's going to have a little bit more impact on the surface of the ground over time and doesn't maybe move it often. So making sure it has a solid base that it's parked on. DEMPSTER: Thank you. CHAIR GRAY: Vice Chair Watts? VICE CHAIR WATTS: One more. I think that where each of these items is enhanced or enforced, there ought to be a corresponding reference to another section of town ordinance. And if for no other reason than to make it easy for people to cross check TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 16 of 44 before they make a mistake, or for the inspector to be able to reference it, now they know, but the homeowner doesn't necessarily know. So we've talked a number of times about it's covered elsewhere in the ordinances. Shouldn't we have a reference in there that says where in the other ordinances so that it's easy to go double-check? WESLEY: Certainly would like to make it user friendly in that regard. Most of that is in 5.14, so they're all together. It probably would be good. Or we could come back to the definition of home occupation and put a reference in there to 5.14, so they know where to go for any details in case somebody just looked at that definition and thinks that's all there is. That would be a good modification to make. VICE CHAIR WATTS: Well, when you talk about the parking, where does it cross over to to parking in an ordinance? Where are the things like hazardous material referenced for, again, for ease of interpretation. I spent a couple hours going back and forth between these into the various, and I should have written them down, so I could tell you exactly where they were. But to look at the ordinance and look at the specifics of what you can and can't do in relationship to the changes that we're making. WESLEY: Yeah. I guess, maybe I'd like to see your list of what all it is that you had to go back and forth to. VICE CHAIR WATTS: You're going to make me do the list, are you? WESLEY: So I guess to get into hazardous materials because it makes a reference to special use permits. So maybe a reference there to section 2.0, whichever one it is for special use permits, if that's where you go to find out how to apply for one of those, that type of thing. VICE CHAIR WATTS: Yeah, yeah. Something to make it a little easier and user friendly from a readability standpoint. WESLEY: So we can certainly look for any further enhancements of that as we prepare a final ordnance to take to council. CHAIR GRAY: Commissioner Kovacevic? KOVACEVIC: The ordinance revision as written and that we're voting on or may vote on tonight, has a reference all of the zoning categories it applies to. It does not list TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 17 of 44 residential P.A.D.s. Are these activities permissible in the P.A.D. residences? WESLEY: It would depend upon how the P.A.D. language was written. So if a P.A.D. specifically says it's -- a, whatever, an R-135 zoning district with the following modifications and doesn't modify anything about home occupations. And yes, it would be allowed. If it says it doesn't allow home occupations then it wouldn't. KOVACEVIC: So how would it affect Park Place? WESLEY: Park Place is zoned C-2. It's not zoned residential. But still as a residence, it would apply. Yeah. It's still regulated by trying to operate a home occupation out of a residence. KOVACEVIC: And how would it affect the Four Peaks Plaza proposed apartments? WESLEY: Right. So residents there could also have home occupations. KOVACEVIC: Because that's still going to be zoned C1? WESLEY: No. It will be zoned P.A.D. KOVACEVIC: So there's no underlying zoning? CHAIR GRAY: Not anymore. WESLEY: Yeah. KOVACEVIC: So it's zoned -- CHAIR GRAY: Don't worry. There's no parks and no dog parks there. So there'll be no boarding to happen at that P.A.D. KOVACEVIC: Huh? All right. I don't know if I like that either. But -- all right. CHAIR GRAY: So to Commissioner Kovacevic's point, though, John, if there's no -- in that scenario where there's no underlying zoning to default to, if there's no carve-out, I think that's the gap he's highlighting there, right. WESLEY: Well, the home occupations take place in a dwelling unit. So if you've got a dwelling unit, you can have a home occupation. CHAIR GRAY: Well, that's the catch-all to it. KOVACEVIC: You can have the home occupation, but do the prohibited uses apply? I don't know that the prohibited uses apply in a dwelling unit in a P.A.D. WESLEY: Yes, they would. So because it doesn't reference zoning there. Following uses TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 18 of 44 are not permitted as a home occupation. KOVACEVIC: Well, can we add P.A.D. to the section 5-A in the ordinance as proposed and add P.A.D.? I can't tell 5.13 C-6 that lists all the R-1-190, R-1-143. Shouldn't P.A.D. be listed there? WESLEY: No. Because that's separate. But picking up on what you're saying, though, if we look at the very beginning, even before the A, home occupations are permitted in any residential zone. Okay. So we do have some things that aren't residential zones that have dwellings. So that's where maybe a slight modification could occur to either make sure it's clear that you can have the home occupation wherever you've got a dwelling, regardless of the zoning. Or if there's a need to restrict it clearly that you cannot have a home occupation if your dwelling is in a C-2 zone or a P.A.D. zone or anything else. KOVACEVIC: Yeah. My concern isn't that you -- my concern is not that it would prohibit home occupations in the P.A.D. zoning. My concern is that the restrictions don't apply because P.A.D. is not listed in the ordinance as amended here. WESLEY: But I guess neither is any other zoning district here in the regulations in 5.14. And the prohibition comes back to the home occupation. Following are not permitted in home occupation, and home occupations occur in a dwelling regardless of what the zoning is. KOVACEVIC: Why do we list all of the zoning categories and not list P.A.D.? WESLEY: So if you're talking about on the subsequent slide here with the 10.02 and 11.02, that's because those are the two zoning districts that specifically allow for residential uses, and specifically then allow for home occupations as part of a residence. KOVACEVIC: Do you have a slide with the ordinance on it? WESLEY: The entire ordinance? KOVACEVIC: The proposed -- no. The proposed ordinance that was in our packet. WESLEY: So no, just the pieces here as shown in the PowerPoint slides. KOVACEVIC: Commissioners, do you see what I'm referring to? CHAIR GRAY: I mean, the two examples, I think that I can think of that potentially TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 19 of 44 expose what you're talking about are one we voted on Dan Kaufman's development down in Kingstree and Saguaro, which was a residence above, commercial underneath. And they were supposed to be these hybrid-type work-live environments. That's one place that it could potentially be exposed because of the underlying zoning is CC. The other is the Four Peaks condos because part of the presentation and the premise of that whole development was that you could live upstairs, work upstairs, and then come down and work in the open communal workspaces down below, which is by and large, promoting this very scenario. So I think I'm more in your -- from your position on this, wondering how how do you tie that environment down? Not to exclude it, but how do you tie down the exclusions in those two environments? So you either have to broaden the front end and say it applies to any residential dwelling, regardless of type, across any zoning district. That's the easy way to do it. Or you've got to over label the back end as you're suggesting. VICE CHAIR WATTS: So you're saying you got a choice between striking A and A in both sections, or changing the verbiage at the front end? CHAIR GRAY: I -- yeah, to me it would be easier to change the verbiage in the front end and say the following applies to any residential dwelling, regardless of type. And then the only scenario where it could be carved out is in a P.U.D. scenario, if the P.U.D. said this P.U.D. allows for boarding of animals. Well, then the P.U.D.'s underlying characteristics would carve-out an exclusion from this. But notwithstanding that, I think you have to say all residences, regardless of type. KOVACEVIC: And regardless of underlying zoning. CHAIR GRAY: Well, let's think about that. Let's go to the public hearing. Paula, speaker cards. WOODWARD: We have one speaker card for Larry Meyers. MEYERS: Larry Meyers, Chair, Commissioners. I have more of a question. So the number of trips and this is a specific business at a specific location that I'm talking about, and we'll just leave that aside for now. So I know there's a parking regulation, and it has nothing to do with commercial vehicles, about how many vehicles you can TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 20 of 44 have at your home occupation. I don't know what that is, but to the number of vehicles that are convened at a home, is that limited? And what is that number? And do they have to be on the premises, rather than on the street of where the home is? And do those count as -- does each one of those count as a trip? Because the example that I'm going to give you is probably ten vehicles on a given morning. And then they leave, and then they reconvene sometime later in the day, particular days of the week. So that would be -- I don't know whether the ordinance states any of that, and we're not dealing with that. But that came to mind when the whole trip thing came up. And the fact that we're only monitoring a commercial vehicle on the property. This particular location has a pretty big driveway, which is typically filled up, and maybe ten cars on the street. So that's all I would be wondering about. Thank you. CHAIR GRAY: We'll close the public hearing. Back to discussion. I think Mr. Myer's concern is probably mitigated by the family component. At least in this language. Do you have to be a family member to work at an at-home business? And I think John, it's family member who also is residing at the business, right? You can't bring family in. WESLEY: Correct, Chair. 15.14C. No employees -- there shall be no employees working at the home other than members of the immediate family residing in the dwelling. And so Chair, I don't know if this is what Mr. MEYERS was referring to or not, but we do have a provision of the code that limits the total number of vehicles parked at a dwelling for more than 24 hours, at one for 750 square feet in the home. And that's in the driveway and the street within, I believe it's 1,000 feet of the home. So that's just a general parking requirement, it has nothing to do with whether a business is being conducted or not. VICE CHAIR WATTS: I think that's a good example of why we need the point of reference in the ordinance that says refer to this particular ordinance section. So now you've got some point of reference to say you can't. You can't have all of those cars, you have to defer back to the 750 square feet per vehicle. So I think there's numerous instances in here that there's another ordinance that kind of overshadows or defaults to whether it's more restrictive, less restrictive doesn't really matter. But there's another TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 21 of 44 one that adds more clarity to what this is and what you can and can't do. CHAIR GRAY: So you'd limit those supplemental references to the exclusion criteria. Right? VICE CHAIR WATTS: I think in some cases they could be a little more liberal. I'm not sure of that, though. I didn't see any that were more liberal than what was here. I mean, if somebody had a 6,000-square-foot house and you've got four-car garage, you could have a lot more vehicles, so it could be applicable because of the code, the way it sits today, but this could be more restrictive. I just think having that reference, that further reference gives, again, ease of understanding and a point to go -- trying to go through the ordinance sometimes is daunting. Staff works with the ordinances every single day, but -- and maybe code works with them every single day. But I know residents don't, and they want a point of reference to be, you know, directed to help them do the interpretation as well. And I think it's just fair. CHAIR GRAY: I think your point is valid, but I think the example maybe isn't the best example. Because the 750 that John's referring to is 24-hour parking limitations. Whereas Mr. Meyer's example is more about trip generation and customer traffic. Right? So there's a -- it's a another gap, but your point is is is valid. VICE CHAIR WATTS: I'm fine with that. But I'd also like either to whatever we do moving forward, we either change the front end verbiage or we add some additional verbiage to the zoning districts to Commissioner Kovacevic's point. CHAIR GRAY: And I think two or three years ago, we did a lot more of that. And John, tell me I'm wrong here. But I think we started to shy away from that because we were starting up with circular, inaccurate references, and it was hard to clean up all over the place, right? WESLEY: Yes, chair, that's correct. There was a concern with that because when you make a change one place, you've got to remember all the other places you have to make the change. CHAIR GRAY: I don't think this answers what your objective is, but what if we added language to say, the more stringent shall apply type of language. It's not going to point TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 22 of 44 you to the other section, but it at least allows for the teeth to be used if necessary. I think your ask is a big ask. VICE CHAIR WATTS: Well, I think the asks should be asked to Farhad. How hard is that? Is it a daunting task? TAVASSOLI: Be difficult. I wouldn't go so far as to say daunting as in time that needs to be put into it. VICE CHAIR WATTS: Well, maybe even if we put a footnote on some of these that say, please consult -- for further clarification, consult the corresponding ordinance. But something that doesn't just set a trap for the homeowner or for the business. There's a lot of punitive things that happen here that are detrimental to a business. But there's a lot of good things that happened here as well. It depends on how you interpret it and how familiar you are with the ordinances. I think that's the problem, to me, anyway. DEMPSTER: Yes. I was going to clarify or make a suggestion because you don't know what you don't know. Reading this I wouldn't know that there may be another piece in another section, and I understand that it could be daunting to go back and write, you know, 5-3.2, but maybe instead of the particular code, just note that further rules and regulations surrounding parking may apply or may require more research. CHAIR GRAY: Maybe we just need to change the preamble to say the underlying utilization of this dwelling is a dwelling and dwelling codes, ordinances are applied first. And this is a layer applied over top of its primary utilization. Right. This is a secondary use. So you got to first understand the ordinances around living at the dwelling in the first place. And then you can understand the nuances of operating a business out of it. VICE CHAIR WATTS: It would certainly help. TAVASSOLI: And Mr. Chairman if I may provide some context on what I was saying, sometimes when you refer back and forth between different sections of the ordinance, as they change over time, sometimes if you were to hyperlink it say in the ordinance and they would refer back to an ordinance when, for example, one or two other provisions were added in that section, it might throw some people off, but we need to keep track of that wherever the changes take place and update those links accordingly. TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 23 of 44 CHAIR GRAY: Commissioner? KOVACEVIC: I also want to revisit the reference to accessory structures. If I'm a CPA doing tax returns and I want to do them out of my casita, then -- so maybe in March, my clients that aren't computer savvy want to drop off their tax information. I mean, I think that's one thing. If I've got a material yard going on in my back yard, and I've got a barn with all kinds of landscape equipment, and I'm trying to run a landscape business out of my single-family house, I think that's a whole nother thing. And that's a different accessory structure, but I think you should be able to -- I think Susan should be able to work out of her casita if she wants to, as a realtor and and isn't generating a lot of traffic. How can we get those differences recognized in this ordinance? CHAIR GRAY: I think you can certainly allow it. But then are you also suggesting to modify the trip generation limits? KOVACEVIC: Not necessarily. CHAIR GRAY: Because it's three, right? Three three trips. Six total. Probably fine for the accountant, right? It's fine for most professional services. KOVACEVIC: I would think so. Yeah. I but I just think that a casita, doing office work out of a casita is a whole different story than manufacturing something out of an accessory building. CHAIR GRAY: And we're not going to open it up, in that case, to signage on the casita or its own -- it's not getting anything special. It's just an accessory. Right? KOVACEVIC: Right. No signage. It's just -- I mean, it's part of the house, but it's a -- I mean, the homes have casitas, and a person should be able to choose to work out of their casita rather than out of a bedroom. CHAIR GRAY: I'd be fine with it as long as it's limited to dwelling and not the other -- not the barn or the shed or whatever it's going to be. KOVACEVIC: I agree. I think I may. WESLEY: Chair, if I may? CHAIR GRAY: John doesn't agree. WESLEY: Well, I'm not sure whether I agree or disagree. Just want to, if I may, Chair. TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 24 of 44 Typically, we talk about as far as our permitting processes, accessory structures or accessory buildings. And we have certain parameters on those for location, size, setbacks, whatever. But what that accessory structure ultimately gets used for is not something we monitor. Is it a shed? Is it a casita? Is it a whatever, you're storing your RV in it. We don't necessarily know that long term. Maybe we have some idea up front, but so right now, from our perspective, it sounds like we would be allowing an accessory structure to be used for office-type activities. CHAIR GRAY: I think that's fair enough. KOVACEVIC: Yeah, I would agree with that. I think they should be used for office-type activities and the restriction in manufacturing or equipment intense service. WESLEY: Nonstorage. KOVACEVIC: Right. CHAIR GRAY: What about hair salons? KOVACEVIC: I think a hair salon would be hard pressed to survive six vehicle trips a day. VICE CHAIR WATTS: I think, also, most casitas don't have driveways to them. Which is somewhat indicative of professional services, or they're in the driveway of the primary residence. CHAIR GRAY: Accessory structures. VICE CHAIR WATTS: The accessory structure issue, yes. CHAIR GRAY: Commissioner. Any objection to extending to accessory structures? So long as we keep the trip limitations in place. Another reference for Commissioner VICE CHAIR WATTS to look up. VICE CHAIR WATTS: Yeah, thanks. CHAIR GRAY: Okay. Just want to call the discussion and start talking about motions? Any proposed motions from the Commission? WESLEY: Chair, if I may? CHAIR GRAY: Of course. WESLEY: So here's at least some of the things that I think I've heard that would go into a motion for approval. One would be that in that introductory statement at the start of TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 25 of 44 5.14 that would be amended to clearly state it applies to any dwelling unit in any zoning district. That we would amend A to provide for use of accessory structures to have office-type home occupations within them. I think that, other than the things I've already mentioned, is some slight changes to what you received, I think maybe those would be the two modifications to what you were presented and what we've discussed. CHAIR GRAY: John, what's the punitive side of -- I mean, we're really saying that the trip generation is going to be what anchors the rest of this. So what does that look like from a code enforcement perspective? WESLEY: Let's see. I don't recall we have anything here that makes it criminal. So it would be a civil citation. And so 183 of the town code, I think those start at 250 and go up from there. CHAIR GRAY: Okay. But one other -- we talked just briefly about it, but the branded vehicles. Is there any thoughts on carving that out to certainly allow vehicles associated with the business, but seeing other municipalities say you have to remove your magnet branding when it's parked in the driveway, that kind of thing? KOVACEVIC: Well, I think we're allowing residents who work for -- who bring home their employers' vehicles that are already branded to keep them in their driveway. So I don't know how you stop the home owner that's operating their business out of their home from having their business identification on their car in the driveway. CHAIR GRAY: I just don't like the idea of wrapped trailers and RVs being parked in driveways for even 24 hours. KOVACEVIC: But does this allow that? CHAIR GRAY: Yeah. KOVACEVIC: The trailers? CHAIR GRAY: Well, you can leave a trailer parked for up to three days, I think anywhere. Then you have to move it six inches, and it can sit there. KOVACEVIC: But is that addressed in this ordinance? CHAIR GRAY: No, it's in Commissioner VICE CHAIR WATTS' other references. KOVACEVIC: Should it be addressed here? TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 26 of 44 CHAIR GRAY: I don't know. I think it probably should be addressed more holistically elsewhere in the other ordinance. So maybe that's a takeaway later on in the agenda here, but. VICE CHAIR WATTS: I think you got to put it back in the parking ordinances. CHAIR GRAY: Yeah. VICE CHAIR WATTS: You got a lot of vehicles, even on Fountain Hills Boulevard, that already have wrapped vehicles. They have signage. You get it on Saguaro, you get it all over the place. CHAIR GRAY: Yeah. VICE CHAIR WATTS: And so it's primarily in commercial areas, but there's a lot in residential areas as well, and I don't -- it's an overnight thing for the most part. And HOAs really are strict on that. Much more so. DEMPSTER: Yes. VICE CHAIR WATTS: So do we really want to get involved in that? Not in this particular document, but in a parking ordinance, maybe, in the future once we have more data. Maybe. DEMPSTER: Can we allow it? VICE CHAIR WATTS: It's esthetics only on the property. So no. I mean, we don't get involved in that. We would defer to parking code here. CHAIR GRAY: Okay. So John's got 5.14, to modify the preamble and then modification to A to allow accessory structure. Any others? I think we want to put an emphasis on the hard cap on trip generation as this goes forward to council. KOVACEVIC: Then the zoning categories. CHAIR GRAY: That would be in the 5.14. KOVACEVIC: Okay. CHAIR GRAY: Right. Accessories is A, right, John. WESLEY: Yeah. CHAIR GRAY: And Commissioner Dapaah, Commissioner Corey? COREY: No comments. I'm in agreement. TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 27 of 44 DAPAAH: I'm in total agreement too, Chairman. CHAIR GRAY: Commissioner Dempster? DEMPSTER: What about the pet dog thing. I mean, do we have other exclusions or would this be the only exclusion kind of pointed out? Do we want to take that out and just leave our cap of four pets? KOVACEVIC: That's what I would think is that you'd leave it. Rather than specify it. I mean, there's a cap at four pets, and enforce that. CHAIR GRAY: John, is there a way to bifurcate between Commissioner Kovacevic's example of a neighbor watching a dog for a weekend versus somebody who's running a daycare -- pet daycare business out of the home? WESLEY: Chair, I don't know how we would do it, specifically in the code. I'd have to think about that a little longer. But I can only go back, I think, to what we've already talked about, that the person doing it occasionally for a neighbor, they're not trying to operate a home occupation, they're not getting a business license and all those things that would go in to this. And they do it for a weekend now and then, even if there were some type of complaint by the time we would learn about it and investigate, it probably already be over, so it wouldn't be really an opportunity to try and enforce something like that. KOVACEVIC: Did the person who was running this doggie daycare center get a business license? WESLEY: No. They never quite did. They talked about getting it like they were supposed to. KOVACEVIC: Well, that's kind of my point. I mean, a lot of these home businesses, people don't get business licenses anyway. But there are ordinances in place that can be enforced without calling them out in the home business. Because how are you going to know? You're going to know by trip generation is one way. You're going to know by dogs barking in the yard. That's another one. WESLEY: Right. KOVACEVIC: But they aren't necessarily -- TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 28 of 44 WESLEY: We'll find out by their advertising. KOVACEVIC: Right, by the advertising, but they aren't necessarily going to get business licenses. CHAIR GRAY: So what's the consensus amongst the commission? Remove it? So we're looking for a carve-out to allow up to four animals. KOVACEVIC: I don't think we need to say anything. We've got the restrictions on activities of a home -- the physical activity around a home business with the trip generation. And there's already an ordinance with a maximum of four animals in a dwelling. So we don't need to say anything about it. Enforce the ordinance we already have. VICE CHAIR WATTS: I think in addition to that you've got that it's -- if the home is operating in -- it's consistent with the neighborhood, doing a friend -- a favor for a friend is consistent with neighbors. CHAIR GRAY: That's not four -- that's not four animals, though. That's where I have a little bit of heartburn with the removal. VICE CHAIR WATTS: Well, I still would argue that it's it's not consistent with the neighborhood if you have a business that boards animals and we have another ordinance that supports that. So I think taking it out works. CHAIR GRAY: But you don't have another ordinance that supports that. VICE CHAIR WATTS: We do. The four. The maximum of four. By taking this particular -- CHAIR GRAY: So you're my neighbor and I board animals 360 days a year, and you're good with that? Not my animals. I'm boarding four animals. I've got a rolling cadence of animals coming in. VICE CHAIR WATTS: What kind? CHAIR GRAY: The worst kind you can imagine. I mean, that's my -- I'm really indifferent, but I just -- I don't think you should be boarding in animals in a residential district. That's what I think. KOVACEVIC: As your neighbor, do I have recourse if they're in your backyard barking? CHAIR GRAY: No. TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 29 of 44 DEMPSTER: Even if there's only four. CHAIR GRAY: I don't think so. KOVACEVIC: Then let's leave it in. CHAIR GRAY: No. WESLEY: Chair, we do have separate ordinance about dog barking. It's a bit of a challenge too sometimes to enforce, but there are ordinances about that. Disturbing the peace. CHAIR GRAY: But I'm just boarding. You can't come take an animal that I'm boarding on someone else's behalf. I'm fine to take it out. I just -- DEMPSTER: (Indiscernible) having that business period. CHAIR GRAY: Well, I just think that that having that business becomes potentially detrimental to a neighborhood. So I think there's places to board animals in commercial districts all over the place. I just don't think they probably belong in residential districts. That's my thought. But I'm not going to hold it up for that. I mean, four new dogs a day, every day. DEMPSTER: Yeah. CHAIR GRAY: And I even like dogs. DEMPSTER: I do too. CHAIR GRAY: It doesn't sound like it. I do like dogs. Just don't like other people's dogs. All right. Well, I guess I would suggest let's just pull that language out to Commissioner Kovacsevic's thoughts there. And then maybe John, in the council conversation, that can come up or it can't. I'm indifferent. So I think the motion on the table is -- VICE CHAIR WATTS: One last thing. And John, you are going to look at the height concern, whether it be an RV or a Peterbilt tractor trailer, at least? WESLEY: Yeah. We can see -- was trying to look otherwise about the storage of commercial vehicles. And we talk about the length. It's nothing that's ever been in the code about the height. VICE CHAIR WATTS: I think I hear more and more -- WESLEY: (Indiscernible) come up with what the height would be. TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 30 of 44 VICE CHAIR WATTS: I hear more and more complaints about the visibility of RVs, in particular behind the six-foot fence. And some are pretty exotic, and they just don't fit in the neighborhood. They're contrasting colors to the desert muted colors that we're looking for as a community. So there are some legitimate concerns. And when you've got something in there that is pretty tall, and I don't know how to define tall at this point, so I'm asking for you at least to consider it. WESLEY: Right. Well, it sounds like the issue, if it's the RVs being parked in people's side yards behind a six-foot wall and being very much taller than that six-foot wall, it sounds like that's a different topic than a commercial vehicle in the driveway. CHAIR GRAY: It's another one for our parking ordinance. VICE CHAIR WATTS: It probably is, right. Yeah, but some commercial vehicles, some of these vans are -- CHAIR GRAY: They're getting there. VICE CHAIR WATTS: They're getting there. Right. CHAIR GRAY: Twelve, twelve-six. VICE CHAIR WATTS: Yeah. CHAIR GRAY: Okay. So crafting a motion, recrafting a motion, motion is recommendation to approve with the following modifications. So modification to 5.14, adjusting the preamble to, essentially, stipulate any dwelling unit of any type. Modification to A, to allow for, I'll say professional service uses in accessory structures. Emphasis on a hard cap on the trip count generation and removal of the language excluding animal boarding as we default to other ordinance sections. Any others to add? Good. There a second commissioners? KOVACEVIC: I'll second it. CHAIR GRAY: Okay. Motion's on the table. Seconded by Commissioner Kovacevic. Let's just do a roll call. WOODWARD: Commissioner Corey? COREY: Aye. WOODWARD: Commissioner Dapaah? TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 31 of 44 DAPAAH: Aye. WOODWARD: Commissioner Dempster? DEMPSTER: Aye. WOODWARD: Commissioner Kovacevic? KOVACEVIC: Aye. WOODWARD: Commissioner Schlossberg? SCHLOSSBERG: Aye. WOODWARD: Vice Chair Watts? VICE CHAIR WATTS: Aye. WOODWARD: Chair Gray? CHAIR GRAY: Aye. WOODWARD: Seven zero. CHAIR GRAY: Thank you, Paula. CHAIR GRAY: Okay. Number 6, ordinance section 5.13 community residences to provide for re-inspection of homes for compliance with ordinance requirements. WESLEY: Okay. Chair, hopefully, Farhad's got this one up, and background slide. The council's requested that staff make this modification to our community residents ordinance to allow for some other inspections of community residents. Current regulations were approved about two years ago, in May. The goal is to provide some increased oversight. Currently, we only have one home to which these regulations would apply or this change would apply. And so moving to the next slide we've got two places that we're proposing to add some language to provide for additional inspections. The first one is under the registration section number two, to add a new sentence. The follow-up inspections may be conducted on a reasonable belief of noncompliance. We've had one comment from a citizen asking what reasonable belief is, and thinking that might be a little bit vague. We could look at something to try to tie that down, but I -- our attorneys are satisfied with this language. And if we do anything to try to define it, we're sure to leave something out that we wish we would have included. And so we think again, giving us kind of a TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 32 of 44 broad opportunity say an inspection is needed because we think there's something going on that doesn't meet the codes that works. And then the second one is under the reregistration provision. So number six on the list about reregistration to make a slight change there to the re-inspection piece. And clarify all the things we can look for in a re-inspection on the annual basis and to include the occupancy limits. That was kind of the one thing that was missing from the previous list. So those are the two proposed changes. CHAIR GRAY: Commissioners, any discussion? Commissioner VICE CHAIR WATTS? VICE CHAIR WATTS: Why does it say if applicable, on 6-B? Isn't it required? WESLEY: 6-B. So an individual home does not require a license, a business license. A business does. So if they operate more than one, they only need one license. So a given home may not need a license if they don't have one. VICE CHAIR WATTS: That's confusing. Can you give me an example of how that would work or home and/or an operator? WESLEY: So ABC assisted living home provider for seniors. And as a business, I operate three, four different homes in Fountain Hills. I need one business license for my business, but I don't need one for each home. VICE CHAIR WATTS: That seems like something that we should --because any business that has multiple branches works on its own basic budget and finances. Shouldn't they each be required to have a license to operate? WESLEY: We went through this discussion when we updated the code a couple of years ago. And because the homes are homes, they're not businesses, that's why we ended up where we're at. The business has a business license. The business happens to be providing homes for people. CHAIR GRAY: The other criteria pick up. VICE CHAIR WATTS: The other criteria is what? CHAIR GRAY: Well the other criteria, in C-1, 2, and 3. Or C-1 and 2, pick up. The reasons to inspect. I mean, you're going to know if a home or business has a license, that can be pulled remotely. This is all about physical presentation of a code TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 33 of 44 enforcement officer at a property. Right? So I think B is rather benign in the grand scheme of things. VICE CHAIR WATTS: How does the Code enforcement officer know which location holds the permit? The business license. WESLEY: They can find out if the business has a license or not. CHAIR GRAY: His question is a little different, John. His question is, if there's one business license operating two homes or three homes, how do you know the physical address is associated with the business licenses? WESLEY: When they would get their registration for the home that's one of the things that they would have to document is what business license they have. If they're a single entity, they would need a business license for that. If they're part of a larger entity, then they would demonstrate that they have the business license as that larger entity. CHAIR GRAY: So each home still carries its own registration? WESLEY: Correct. CHAIR GRAY: We're fine. I mean -- VICE CHAIR WATTS: I think it's -- CHAIR GRAY: Clinically, it's done the same way. They operate under one clinical license. VICE CHAIR WATTS: I think that's something you ought to be revisited, because I think there's another component of insurance and that sort of thing. Do we have all the insurances on all of the properties that are under that particular license? So I think there's more to the story. I'll leave it go for now, but I think we ought to visit at some point in the future. CHAIR GRAY: I think one -- two years ago we we did have insurance language in, and then it was stripped out as it swam upstream, right? VICE CHAIR WATTS: Yeah, I'm just talking about general business insurance. Not adding an additional insurer like to the town or not. So yes, but I think that issue is going to come back up as well. So I think in conjunction when it is reraised by council, they ought to look at business licenses per location. One restaurant has to have its own license over here. You don't have multiple restaurants under one license. So for now, if that TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 34 of 44 works, fine. But in the future, I think we ought to consider it. CHAIR GRAY: What's the semantics of whether or not the home is a business or not. And in our code application, it's being viewed as a residence, as a part of a business. VICE CHAIR WATTS: Semantics. CHAIR GRAY: Paula, we have any speaker cards? WOODWARD: Yes, Chair, there's two. Larry Meyers is our first speaker, and Crystal Cavanaugh is the second speaker. MEYERS: Commissioners, Chair. So the insurance provision was general insurance, and it was stripped out. And I think it needs to go back in, number one. Number two, I'm dead set against one blanket license for unknown houses, because in the transitional section of the community residents, you're not really supposed to know where these are, and the only way you know where they are is after there's a problem, which there has been, and we just found out about it because the sheriffs were called there because there was an assault. And it was a transitional housing. And they don't have a business license. So the other part that I would like to see in this is I want to see what are the ramifications for running a business without a license. It's sort of like back to the other home business. What if you get caught running a business without a license? $250 is just not going to cut it when it comes to this stuff, because you've got older folks and who knows how good the care is for them. And then we all know about the other side of this and what happens there. I mean, they're not in the Nicholas property anymore because somebody probably set a fire in there and set off the house sprinklers. Which didn't have any insurance because we stripped out the insurance program part of it. And now they moved, and we didn't even know where they moved the people to because we don't have any inspections. So I get it. You file a complaint, we should be able to go in there and inspect, but there's no penalties for this. And now, they're not in the other house that is currently grandfathered and licensed, but now they're somewhere else, but they haven't applied for a business license. Oh, I get it. They're blanketed under there one clinical license downtown. Excuse me? TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 35 of 44 Every house for every group home, whether it be community or transitional, should have its own license, period. And that way they're all registered. The town knows where they are. And when they get a complaint, they can go take care of the complaint. And if they're operating without a license, please, they got to pay. That will deter operating without the license and sort of make it easier on the town because they've got to enforce it. And then the other part of this whole thing who -- very quickly. So if you haven't applied for the town business license, how do we know they're licensed with the state for that particular location? Where's the chicken? Where's the egg? Who comes first, Peter or Paul? Those are my questions. And none of them are addressed in here. And this whole thing is designed to give us -- it says so, more oversight. I don't think we have it. Thank you. CAVANAUGH: Crystal Cavanaugh, community resident. Larry stole most of my thunder, but it doesn't mean I'm not going to repeat some of it. Because actually, this is occurring right now in my Sun Ridge Canyon community, which is an HOA community. So you know, some people are thinking we're protected, but we are not protected. And as I found out, this house on East Sundown, a very nice street, does not have a business license. And what I'm also wondering, does our state actually contact communities when one is applied for at the state level? Because we're always going to be chasing these things as it is. And I mean all group homes, not just the transitional community, they should have this vital component of inspection. I was outraged, it was actually stripped out by our town council in order to actually get the occupancy component through, which was really important to reduce occupancy in both these types of settings. So some agreed to do that. And I'm very happy this is back on the table with you guys. Because if you don't have inspections, how do you ever know what the occupancy is and how do you know if they're complying with other things? And the only reason this Sundown location was discovered, our town didn't know about it. But once again, the sheriffs were called. There was an assault. The neighbors TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 36 of 44 discovered it once again. And so now people are trying to play catch up and see if there's licensure. So I don't even know if this one's licensed with the state. So what if it isn't? So I would love to see some consequences put in to some of our ordinances because now it'll be like, okay, just apply for a license. I know you didn't, but let's apply, and you can keep operating. No, they should be disqualified. I know the particular owner of this property on Sundown owns nine properties in Fountain Hills, and so we may have to be looking in -- I think she lives in one of them. I don't know what's happening in all the others, but this stuff really needs to be clamped down on just for the protection of a surrounding neighborhood. Thanks so much. CHAIR GRAY: Just two cards, Paula? WOODWARD: Yes, Chair. But there was a written comment from Liz Gildersleeve that she was for -- she stated that she was for this particular ordinance. CHAIR GRAY: Yeah. We received that earlier this week or last week even. WOODWARD: Yes. CHAIR GRAY: All right. John, on the registration versus business license. When we wrote the ordinance up two years ago, it was all about registration of these addresses. And I mean, I certainly appreciate the chicken or the egg component here, but I'm not sure I understand why a business license is any more strict from a code enforcement perspective than registration. So maybe you could touch on that, and then also, I think we've got a basically a three-strike baseball policy in over the course of a rolling 13 or 14 months in the underlying ordinance. Could we look at failure to register as an automatic first knock against that? WESLEY: So Chair. Yes, to your first point. A resident would need both a business license and to be registered. Both can be followed up on for code enforcement activities. Probably the business license is actually the easier one of the two to get. It's less involved, typically with a business license, but they both work together as if we were to get a request for a business license for a community residence. We would look as a part of approving that business license, to see if they had the registration, and if TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 37 of 44 they didn't, we would stop that process to get the registration. Or if somebody registers, we would tell them they also need to get their business license to be approved. So they work together when somebody is following the process. I understand, we do have one -- we learned about it last week that has gotten started over, as Krystal said. And so we are following up on that and going through the enforcement procedures to get them properly licensed and registered. And so you're right in F2B, it says property owner, community residents, operates any -- receives any combination of three violations within a 12-month period, they're -- it says they can be required to vacate the property. So could this be a first one of those? Possibly. I guess I'd have to think about it a little bit harder. Maybe talk to the attorney. If you're not even registered yet, can you get a violation? . It seemed like you could -- but anyway, there's a little nuance there we'd have to talk through to make sure we were on solid ground for that. CHAIR GRAY: Well, I think that, I mean, the the scenario is generally that everybody wants to open these residences, these homes, these profit centers, and they look to fly under the radar until they get their knock. And so yeah, I mean I appreciate the attorney would want to weigh in on that, but I think that the industry also talks a little bit too. And if we become a municipality, who's going to take a little harder line there, then maybe that serves us well longer term. CHAIRPERSON GRAY: Correct. CHAIR GRAY: Commissioner Dempster? DEMPSTER: John, can you clarify? Does the violation go with the business license applicant, or does it go with the location? Because if they move locations, but it's the same person owns multiple houses. I mean, who -- WESLEY: Right. DEMPSTER: How do you -- how is that calculated? WESLEY: So again, Chair and Commissioner, in B, it says property owner or community residence operator. So we could go after either one or both. DEMPSTER: So if they move the location, it doesn't start back to zero? TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 38 of 44 WESLEY: Correct? DEMPSTER: Right. Okay. Thank you. WESLEY: Or if a property owner moves them from one of their properties to another property, it's still the same property owner. CHAIR GRAY: Vice Chair Watts? VICE CHAIR WATTS: I think B should say each home or operator. And I understand what you said about our council advising that we're making this as aggressive as we can. But I would let it up to town council to say whether or not. But I think each home should have a business license, just like every business branch or franchise, they all have their own business licenses. So that's that's one thing. And I think I'd recommend to council, again, to revisit the insurance issue because I think there's a lot to be missed by not having insurance. But at this point, John, can we change the home or operator to each home and/or operator has maintained a current town business license? WESLEY: Let's see here. CHAIR GRAY: What do we stand to gain by doing that? VICE CHAIR WATTS: Accountability. Now I know where they're at. If nothing else, I've got a little bit of revenue to pay for the code enforcement people. I can track them. WESLEY: Let's see here. So unfortunately, I'm not where I can look at this as much as I would like. We could potentially do that. It wasn't what we were asked to work on. I can't remember and I can't get to it right now, unfortunately, how specific I was in my public notice to see if we can get off into other sections of the code. CHAIR GRAY: Is that synonymous with the agenda language, John? WESLEY: It should be pretty close. CHAIR GRAY: It only references 5.13 community residences to provide for re-inspection of homes for compliance with ordinance requirements. It's pretty stringent. WESLEY: Yeah. That's what I thought. So that would require new notice for that additional language. VICE CHAIR WATTS: So what you're saying is that it would have to be changed in the -- that 5.13 community residents in the ordinance itself, before we could address it on 6-B. TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 39 of 44 CHAIR GRAY: To get it in, you would have to continue tonight and then re-notice for March. VICE CHAIR WATTS: Okay. CHAIR GRAY: So my only reservation, to play devil's advocate, is we're in a scenario where the closer we push to the line, eventually it's going to push someone to push back, right? And so are we getting enough juice for the squeeze of wanting to add a business license in on top? Because you're dealing with organizations that, one, claim to be residences, right? And two, by and large, don't file with the state because they think they can get away with it and collect revenue for X number of months before they finally get picked up. They don't file their municipal home registrations. So why are they going to go file for a town business license? That's my reservation. So if we push that and we push this over the line to where we're saying we know you say you're a residence, but we're going to push you to be a business, that to me, is where we crossed into another arena to where someone can bat back at us. I think if you want to do it, you got to go back to the mountains of research we did a couple of years ago and say, okay, there's two paths here. There's the path where the residences are a part of a business. Right? Which is by and large what we normally see. And then there's all of the scenarios out there that end up in court. And those are the -- What's it called, John? The Harbor House model. Something like -- Oxford. Oxford House model. WESLEY: Yeah. Oxford. Yeah. CHAIR GRAY: Which is basically a self-certifying self-chartered group of residents who band together as a family and live together, not as a part of any business model. It's just a cohabitation relationship. So if you're going to do it, you've got to carve-out to say if you are self-certifying, self-chartering your residence, you do not require a business license because that's where you tip that scale. VICE CHAIR WATTS: I think any business that charges, that makes money, that has a revenue stream should have a business license. And exclusive of just these -- these types of homes. That home by its design has income. They charge for the residence. So TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 40 of 44 aside from aside from the harbor. CHAIR GRAY: I agree with you. Most of the time that's going to be a true statement. VICE CHAIR WATTS: Okay. So why shouldn't they have a business license, and why shouldn't we have some degree of accountability? CHAIR GRAY: Because you're collect -- well, they're service industries so you're not collecting tax revenue. Theoretically, let's say you were, you would collect that, they would report out under the parent business license. Same scenario as having a fleet of vehicles, a fleet of busses, that you operate as a tour company. Each bus doesn't have its own business license. The tour company has a business license. I'm with you. But we've got to be really careful. VICE CHAIR WATTS: In a consolidated financial statement, you're going to account for each of the branches, and then you roll them up to the parent. That's true. But you're also going to remit to the municipality that collected sales tax. So we don't get anything. Why shouldn't they have a business license at least? It's a cost of doing business. WESLEY: They do have a business license. VICE CHAIR WATTS: Each home? CHAIR GRAY: What's the difference in the cost of a business license versus our cost of registration? WESLEY: Business license is $50. Registration, I don't recall what -- CHAIR GRAY: It's like 500. Wasn't it? WESLEY: Business license? CHAIR GRAY: No. I thought the registration license was closer -- I thought it was about 500 bucks. WESLEY: Let's see here if I could get to that. VICE CHAIR WATTS: Do we charge the same thing for a single business license as opposed to multiple addresses? You were going under your theory of saying, okay, you have one license, but multiple listings underneath that license, multiple branches. Or do you have incremental increases? TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 41 of 44 CHAIR GRAY: So I would say the answer is, no. Because if I have -- WOODWARD: Chair. Excuse me. I found the pricing for the community residence registration is 350, and then the annual renewal is 250. CHAIR GRAY: And that's per address. But I think the answer to your question is no. Because if I have two Subways, under my Subway holding company, the two Subways are treated independently. So I lose the argument on that accord. But what you have to remember here is these are, by and large, considered residential use as their underlying use of the physical address, even though we disagree with that. VICE CHAIR WATTS: I'd still ask John to talk to council about each home and/or operator has maintained a current business license and see if we get any traction there. And at a minimum, we're eventually going to get to suggestions by commissions for future work. So take note. CHAIR GRAY: So if you would like to see that under B, then we need to make a motion to continue this tonight. Is there any pressing reason, John, that this could not be continued for 30 days? WESLEY: Not really, thinking about a calendar. You know, council asked us to work on this, and I think they're anxious to see it come back. But as noted earlier, there's only one home currently that would be subject to this, and I believe their renewal will be in June. And so it won't impact that at this point. CHAIR GRAY: The other. So if we go down the continuance path, John, the other thing that I'd like to work the language in is, I'd like to make sure that the inspections are are not announced or scheduled. Right? WESLEY: Okay. Certainly the initial inspection that's done is announced because we coordinate that. And with the reregistration, there'd be at least some level of understanding what's coming up because they're going through the reregistration process. If it's the new one being added for we think there's some causes of an issue. Now, the inspector would show up at the door and knock on it and -- and you know, it's unlikely to try to schedule it. Unless he's never able to find anybody home and ultimately had to call somebody. TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 42 of 44 CHAIR GRAY: I mean, obviously, it becomes fairly self-fulfilling or satisfying, whatever the words are, if we're scheduling the inspections, I'm going to set the home up to meet your inspection criteria. I would think. So I think that we need to add a component in here that -- I mean let's be upfront and transparent with it. You're going to get inspected on the front and you're going to get inspected at the re-up interval. And then there's a reservation of right. I think this is exactly how we worded it the first time. There's a reservation of right to inspect on the basis of ordinance conformance or ordinance violation. And that can be effectively unannounced. You certify as an operator with your residence registration that you provision for unannounced inspections. WESLEY: Chair, it would seem that in the language proposed for number 2. Farhad, can go back to that slide. So the follow-up inspections may be conducted upon a reasonable belief of noncompliance, it would be pretty easy to work in unannounced in that sentence. CHAIR GRAY: Yeah. I think that's the operative word there for that to have value. VICE CHAIR WATTS: I agree with that. CHAIR GRAY: So John, if you have no reservation -- DEMPSTER: Well, just with that, how long? Do you need time frames on when they can correct the deficiencies or is that in another section? WESLEY: We don't have that covered here. That would just be typical part of the code enforcement process given them -- depending on what the violation was, giving them reasonable time to correct, whether that's a day or a week or whatever it may be, depending upon the violation. DEMPSTER: Okay. WESLEY: And so Chair, coming back to your comment about making further changes. I was given direction from council to do this. If the commission wants to do something more, I would need clear direction about what all that is to bring back. CHAIR GRAY: Well, is the council looking for us to stamp this and send it back to them, or were they seeking input from the commission? TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 43 of 44 WESLEY: Well, they were seeking input from the commission on this issue of inspections. They weren't seeking input on other changes to the code. CHAIR GRAY: Commissioner VICE CHAIR WATTS, this is your call, sir. VICE CHAIR WATTS: They asked for input on -- they didn't limit our input. If they had said only on these things, then the onus would be on them. They asked us to look at these and make our recommendations, and I would stick with that each home and/or operator. I'm going to stick there. CHAIR GRAY: Make a motion to continue, then. VICE CHAIR WATTS: Do we have any more discussion? Any? No. Okay. With that then I move to continue this to the next scheduled commission meeting. CHAIR GRAY: John, are you able to pull the discussion from the verbatims, or do you want us to outline them quickly? WESLEY: Oh, even better, I'll rewatch the meeting. KOVACEVIC: I'll second the motion. CHAIR GRAY: Okay. Motion on the table to continue to the next regular zoning meeting, which would be roughly March -- WOODWARD: --11th. CHARIMAN GRAY: -- 11th, 2024. Seconded by Commissioner Kovacevic. All in favor? IN UNISON: Aye. WOODWARD: Seven-zero. CHAIR GRAY: Thank you, Paula. All right. Number 7, Commission discussion or request to staff. Commissioner VICE CHAIR WATTS. VICE CHAIR WATTS: Not at this time. CHAIR GRAY: All right. John, anything from you under requests from development services? WESLEY: No. Not specifically. CHAIR GRAY: Okay. VICE CHAIR WATTS: We got two more hours. CHAIR GRAY: Yeah. I know. Agenda item 9 report. I assume that 9, John, is just a TOWN OF FOUNTAIN HILLS FEBRUARY 12, 2024 PLANNING AND ZONING COMMISSION MEETING MINUTES Page 44 of 44 stipulation in the front end of the code, which is why it has to be in there. We always seem -- WESLEY: Yeah. I'm not sure why. Yeah. We could probably look back at that someday and maybe redo that last piece of the agenda. But it's been that way forever. Okay. CHAIR GRAY: All right. We're adjourned. Thank you, thank you. ITEM 5. TOWN OF FOUNTAIN HILLS STAFF REPORT    Meeting Date: 03/11/2024 Meeting Type: Planning and Zoning Commission Agenda Type: Submitting Department: Development Services Prepared by: John Wesley, Development Services Director Staff Contact Information: John Wesley, Development Services Director Request to Planning and Zoning Commission (Agenda Language):  REVIEW, DISCUSS, AND PROVIDE COMMENTS: Possible amendments to Chapter 17, Wireless Telecommunication Towers and Antenna Staff Summary (Background) Based on comments and input from citizens, the Council has directed staff to look into and propose amendments to our current regulations for wireless communication services in Town.  Currently, Town Code divides the regulations into two areas: Town Code Article 16-2 for Small Wireless in the ROW; Chapter 17 for all other wireless communication towers and antenna. As previously discussed, state statutes preempt the Town's ability to regulate wireless communication facilities in the right-of-way which meet the definition of a Small Wireless Facility.  As provided in state statutes, a Small Wireless Facility is defined as:  "Small wireless facility" means a wireless facility that meets both of the following qualifications: (a) All antennas are located inside an enclosure of not more than six cubic feet in volume or, in the case of an antenna that has exposed elements, the antenna and all of the antenna's exposed elements could fit within an imaginary enclosure of not more than six cubic feet in volume. (b) All other wireless equipment associated with the facility is cumulatively not more than twenty-eight cubic feet in volume, or fifty cubic feet in volume if the equipment was ground mounted before August 9, 2017. The following types of associated ancillary equipment are not included in the calculation of equipment volume pursuant to this subdivision: (i) An electric meter. (ii) Concealment elements. (iii) A telecommunications demarcation box. (iv) Grounding equipment. (v) A power transfer switch. (vi) A cutoff switch. (vii) Vertical cable runs for the connection of power and other services. Wireless communication facilities that meet this definition and do not exceed the height requirements (40 or 50 feet depending on the circumstances) are exempt from any zoning requirements.  In our code, the regulations for small wireless facilities are in Town Code Chapter 16, Streets, because this section the regulations for small wireless facilities are in Town Code Chapter 16, Streets, because this section addresses activities within the Town's rights-of-way.  Standards for these facilities are primarily applied through the lease agreement with the Town for use of our ROW.  At this time, no changes are being proposed regarding small cell wireless facilities. Chapter 17 of the Zoning Ordinance addresses all other towers and antennas used for wireless communication.  This includes all types of towers and antennas used to transmit either voice or data, or both.  Some challenges with the current ordinance include:  Has not kept up with all uses of wireless technology; Does not have clear application to non-personal wireless communication facilities; Not up to date with latest rulings regarding modifications; Does not clearly describe tolling of shot clocks; and Does not provide for ongoing regulation of RF radiation. There was some discussion at the previous Planning and Zoning Commission meeting regarding the desire to try and regulate broadband versus personal communication (voice) antennas or signals.  It was stated at the meeting that regulations from the Federal government specifically target personal communication and leave more latitude to regulate broadband; therefore, there was interest expressed in the meeting to focus on broadband.  Following the Commission discussion, staff reviewed the direction given by the Town Council regarding how to proceed.  The Council's direction was specific and did not include trying to address broadband versus cellular communication or hiring any additional consultants.  Based on the direction received, the draft ordinance modifications address towers and antennas, not what "G" it is or whether the antennas are used for broadband or not. Review of Draft Ordinance To prepare the attached draft ordinance, staff reviewed the current ordinance, the concerns expressed by citizens, ordinances from other communities (including Farragut, TN and Davis, CA), and the draft submitted by the consultant retained by the Town Council.  The attached draft ordinance is a compilation of recommended changes based on each of these sources.   Existing Section 17.01 Purpose Changed to 17.01 Purpose, Intent, and Applicability Changes to this section include:  Braking out the purpose statements in the first paragraph to make them easier to read. Adding a new Intent section to further define the Town's interest and concerns regarding wireless communications.  This section provides a balancing test that can be used when evaluating individual applications. Moving what was Section 17.03 up to this introductory section.  Two items were added to the list of exceptions, Small Cell Towers in the right-of-way and mobile or temporary wireless facilities (sometimes referred to as Cell on Wheels - COW). Existing Section 17.02 Definitions - not changed This section has stayed the same except for adding three new definitions at the end.  The current code addresses all types of antennas, but the existing rules are particularly directed toward typical cell towers.  We are increasingly finding other types of towers, such as the ones attached to SRP utility boxes or placed on water towers that allow for communication within the utility system.  There is a need to provide some regulations for these types of antennas, but not to utility system.  There is a need to provide some regulations for these types of antennas, but not to the same level as the typical cell tower.  Therefore, a new term was created and used in the ordinance to carve out this type of antenna. The current code does not define wireless communication.  This is pretty straight forward, but staff felt it may be beneficial to have this definition given all the confusion about what is being regulated in the discussions thus far. Also added is a definition of wireless facility to better describe what all is meant when using the term. Existing Section 17.03 Applicability The existing applicability section was moved to 17.01 C. This section was reused for basic requirements of the code. Existing Section 17.04 General Requirements Changed to Section 17.03 Requirements  A. General Requirements.  This section is mostly the same as the current Section 17.04 with reformatting based on the new structure.  The following changes were made: What was 17.04 C, Inventory of Existing Sites, has been moved to the new 17.05 A 3. The section on Aesthetic (was 17.04 D, now 17.03 A 3) has been expanded based on language found in other codes. The last provision, j., Utility Services Antennas, has been added as described above to address these types of antennas. What was Sections 17.04 F and G have been moved to Section 17.06, Maintenance and Operations, as B and C. What was 17.04 K, Public Notice, has been removed because the notice requirements are being handled differently, as will be explained in the new Section 17.05 D. What was 17.04 M., Buildings and Support Equipment, has been removed as unnecessary with the language that was in Section 17.08, now moved to 17.03 C. A new Section 17.03 A 13, Noise, has been added to address concerns about possible noise issues from the equipment associated with wireless communication facilities.  As will be discussed in more detail later, this replaces what is currently in Section 17.06 B 2. What are now Sections 17.03 14 and 15 were 17.06 A 4 and 6 with slight word changes to fit the new format. B. Minimum Setbacks and Separations.  This is Section 17.07 in the current ordinance.  Staff has not proposed any changes to this section, just moved the location. C. Buildings or Other Equipment Storage. This is Section 17.08 in the current ordinance.  The only change made in this section was in 2. a. i. where the language was changed from "three and one-half (3.5) feet in height or twenty (20) square feet" to "and."  The Town Engineer was concerned the current language could allow a rather tall structure in the setback area that could block visibility along a street.  Other Town regulations prohibit wall taller than 3.5 feet in the setback area. D.  Co-location.  This is Section 17.09 in the current ordinance. The only change in this section was D.  Co-location.  This is Section 17.09 in the current ordinance. The only change in this section was the addition of what is now D. 1. to require new towers to be designed to accommodate future co-location. Existing Section 17.05 Permitted Uses Changed to Section 17.04 Application Types This section was significantly re-worked, but the basic concept is the same.  A tower in a residential district or within 300' of a residential district requires Council approval, all others can be approved administratively.  This could be changed to increase the distance from residential areas that requires Council review, or require all towers to receive Council review.  There has been a desire to establish some kind of hierarchy for where towers will go.  If all towers require Council approval, there is no incentive to look for a non-residential location.  Therefore, staff left the basic requirements the same. A shortcoming of the current ordinance is the lack of direction on modifications to existing towers and the replacement or modification of antennas.  This section now describes all the types of applications which can be received that would be considered and reviewed administratively versus those that require public review.  Sections A. 2. and 4. include criteria that are used to determine if a modification is significant enough to require Council review.  These criteria are taken directly from the consultant's draft ordinance. Existing Section 17.06 Special Use Permits Changed to Section 17.05 Application Submittal, Review, and Processing The current ordinance provides limited direction on the submittal requirements, review, and processing for all types of towers and antenna.  The current section is set up to just describe what is needed for an application that requires review as a Special Use Permit.  This section now also provides information regarding shot clocks and tolling of application review. A. Provides an overview of general application requirements.  Those submittal requirements include: 1.Completing an application. The language used is the same as what has been used in the changes to Chapter 2 for other types of applications. 2. This is a simple reference to the items listed in Section 17.03 A that need to be addressed in an application. 3. This provision is currently in Section 17.04 C and has been relocated to this section of the ordinance. A slight change has been made to require the existing inventory only with new towers or additional antenna being co-located on an existing tower.  This is not needed for the simple modification of existing antenna. Former 2, moved to 17.05 D 1. Former 3, moved to 17.05 C 4 with slight changes in wording to fit the current format. Former 4, moved to 17.03 A 14. Former 5, requirement handled in alternate language. Former 6, moved to 17.03 A 15. 4. Utility Service Antennas.  This is a new section added to give direction on how staff processes these types of antenna. 5. Applications Using Existing Towers.  This section provides the minimum information required on an application modify antenna on an existing tower. 6.  Is 17.06 B in the current ordinance.  Has been kept mostly the same but now requires photo simulations of the tower to help review the impacts. 7. Filing Fee. This is standard language for paying the required application fee. Former B. 2. Noise.  This wording did not work well.  Language was added to Section 17.03 A 13 establishing the requirement to submit information addressing noise and to 17.06 D regarding ongoing compliance with noise regulations. B. Covers the required "shot clocks" and tolling of applications.  Federal regulations place time limits (shot clocks) on local communities for the processing of applications.  The time runs while the application is in the hands of the local jurisdiction and is stopped, or tolled, when the application has been sent back to the applicant for additional information, corrections, or revisions.  One of the concerns staff has heard in regard to our current ordinance is that it does not have any provisions outlining how these are handled. This section is entirely new to the Town's ordinance.  The 30, 90, and 150 day review times are consistent with Federal requirements. C. Provides the review and processing requirements for both types of applications. 1. Provides review standards for all application types.  The standards listed are a combination of what was 17.06 B 3 and language found in other codes. 2. Provides the process for administrative review.  This is the same as any building permit application review.  A section was added for temporary, mobile towers that will be in place for more than 7 consecutive days. 3. Provides the process for public review applications. Public review applications will use the same notice, processing and approval requirements for SUP as contained in Section 2.02 of the Zoning Ordinance.  This clears up a current issue with cell towers on Town property that need Council approval, but there is no process for review provided.  The review criteria that were in Section 17.06 B 3 have been moved to 17.05 C 2 as described above.  For new towers that can be approved administratively, the this section references the information required in the following section, 17.05 C 4, regarding application requirements. 4. Is the same as the current ordinance Section 17.06 B 4, with a few modifications to fit the current format. Also a new provision as added to the end of this section.   Existing Section 17.07 Minimum Setbacks and Separation - moved to the new Section 17.03 B. Existing Section 17.08 Buildings or Other Equipment Storage - moved to the new Section 17.03 C. Existing Section 17.09 Co-Location - moved to the new Section 17.03 D. Existing Section 17.10 Removal of Abandoned Antennas and Towers Changed to Section 17.06 Maintenance and Operations A. Removal of Abandoned Antennas and Towers is the same as the current Section 17.10. B. State and Federal Requirements. The first paragraph was Section 17.04 F. The remainder of this section has been added to address concerns about the ongoing compliance with RF radiation limits. C. Building Code; Safety Standards is the same as the current Section 17.04 G. D. Noise.  This section has been added in conjunction with the language in Section 17.03 A 13.  This section provides an ongoing ability to enforce noise limits. Existing Section 17.11 Nonconforming Uses. Changed to Section 17.07 Nonconforming Uses and kep the same except for updating references. Related Ordinance, Policy or Guiding Principle Zoning Ordinance Chapter 17   Risk Analysis N/A Recommendation(s) by Board(s) or Commission(s) N/A Staff Recommendation(s) While staff supports the changes contained in the draft ordinance and described in this report, staff does not have a recommendation at this time.  Staff is seeking further comment and discussion by the public and Commission in preparation for a public hearing to be held at the Commission's April meeting. SUGGESTED MOTION This text amendment has not yet been noticed for public hearing, so no action can be taken other than direction to staff.  No motions will be made. Attachments Revised Ordinance Outline  Draft Strikethrough Revised Chapter 17  Draft Revised Chapter 17, no strikethrough  Existing Ordinance, Chapter 17  Revised Chapter 17 Wireless Telecommunications Towers and Antennas 17.01 Purpose, Intent, and Applicability A. Purpose B. Intent C. Applicability 17.02 Definitions 17.03 Requirements A. General Requirements B. Minimum Setbacks and Separations C. Buildings or Other Equipment Storage D. Co-location 17.04 Application Types A. Administrative B. Public Review 17.05 Application Submittal, Review, and Processing A. General B. Shot Clocks and Tolling C. Review and Processing of Applications 17.06 Maintenance and Operation A. Removal of Abandoned Antennas and Towers B. State or Federal Requirements C. Building Codes; Safety Standards 17.07 Nonconforming Uses Page 1 of 36 Chapter 17 Wireless Telecommunications Towers and Antennas Section 17.01 Purpose, Intent, and Applicability A. The purpose of this ordinance is to establish general guidelines for the siting of wireless communications towers and antennas. The goals of this ordinance are to: (1.) protect Protect residential areas and land uses from potential adverse impacts of towers and antennas; (2.) encourage Encourage the location of towers in nonresidential areas; (3.) minimize Minimize the total number of towers throughout the community; (4.) strongly Strongly encourage the joint use of new and existing tower sites as a primary option rather than construction of additional single-use towers; (5.) encourage Encourage users of towers and antennas to locate them, to the extent possible, in areas where the adverse impact on the community is minimal; (6.) encourage Encourage users of towers and antennas to conflgure them in a way that minimizes the adverse visual impact of the towers and antennas through careful design, siting, landscape screening, and innovative camoufiaging techniques; (7.) enhance Enhance the ability of the providers of telecommunications services to provide such services to the community quickly, effectively, and efflciently; (8.) consider Consider the public health and safety of communication towers; and (9.) avoid Avoid potential damage to adjacent properties from tower failure through engineering and careful siting of tower structures. In furtherance of these goals, Town of Fountain Hills shall give due consideration to the Town of Fountain Hills General Plan, the Town of Fountain Hills Zoning Ordinance, existing land uses, and environmentally sensitive areas in approving sites for the location of towers and antennas. B. It is the intent of this ordinance: Page 2 of 36 1. That no wireless communication towers or antenna be sited, constructed, reconstructed, installed, materially changed, expanded, or used unless in conformity with this Chapter. 2. To achieve a balance between the need to provide wireless services with the health, safety, and general welfare of the residents of Fountain Hills the by balancing four (4) simultaneous objectives: a. Enabling personal wireless service providers to provide adequate personal wireless services throughout the Town so that Town residents can enjoy the beneflts of same, from any FCC-licensed wireless carrier from which they choose to obtain such services; b. Minimizing the number of cell towers and/or other personal wireless service facilities needed to provide such coverage; c. Preventing, to the greatest extent reasonably practical, any unnecessary adverse impacts upon the Town’s communities, residential areas, and individual homes; and, d. Complying with all the legal requirements which the Telecommunications Act of 1996, as amended (“TCA”) imposes upon the Town, when the Town receives, processes and determines applications seeking approvals for the siting, construction and operation of cell towers and/or other personal wireless service facilities. AC. Applicability. New Towers and Antennas: All new towers or antennas in Town of Fountain Hills shall be subject to these regulations. The following exceptions apply: B. Exceptions: 1. Amateur Radio Station Operators/Receive Only Antennas. This ordinance shall not govern any tower, or the installation of any antenna, that is under the maximum building height of the zoning district in which such structure is located and which is owned and operated by a federally-licensed amateur radio station operator or is used exclusively for receive only operations. 2. Preexisting Towers or Antennas. Legally established preexisting towers and preexisting antennas shall not be required to meet the requirements of this ordinance, other than the requirements of Sections 17.046 B. and C(F) & . Page 3 of 36 3. AM Array. For purposes of implementing this ordinance, an AM array, consisting of one or more tower units and supporting ground system which functions as one AM broadcasting antenna, shall be considered one tower. Measurements for setbacks and separation distances shall be measured from the outer perimeter of the towers included in the AM array. Additional tower units may be added within the perimeter of the AM array by right. 4. Small Cell Towers in the Right-of-Way. Wireless communication towers and antenna meeting the deflnition of small wireless facilities as contained in A.R.S. 9-591 are subject to the requirements of Article 16-2, Small Wireless Facilities, of the Town Code. 5. Mobile or Temporary Towers. Mobile wireless facilities when placed on site for seven (7) consecutive days or less, provided any necessary building permit or encroachment permit is obtained. Section 17.02 Definitions As used in this ordinance, the following terms shall have the meanings set forth below: Alternative Tower Structure: means man-made trees, clock towers, bell steeples, light poles and similar alternative-design mounting structures that camoufiage or conceal the presence of antennas or towers. Antenna: means any exterior transmitting or receiving device mounted on a tower, building or structure and used in communications that radiates or captures electromagnetic waves, digital signals, analog signals, radio frequencies (excluding radar signals), wireless telecommunications signals or other communication signals. Backhaul network: means the lines that connect a provider's towers/cell sites to one or more cellular telephone switching offlces, and/or long distance providers, or the public switched telephone network. Existing Structure: means light poles, power poles, chimneys, billboards, and other similar structures, which are placed, within the Town at the time of adoption of this Chapter, except existing buildings. Page 4 of 36 FAA: means the Federal Aviation Administration. FCC: means the Federal Communications Commission. Height: means, when referring to a tower or other structure, the vertical distance measured from the natural grade level to the highest point of the structure directly above the natural grade when such structure is not located in a platted subdivision. If the structure is located in a platted subdivision, the height shall be the vertical distance measured from the flnished grade as shown on the subdivision grading plans or flnished grade as shown on the individual lot's grading plans, (whichever is lower), to the highest point of the structure directly above the flnished grade. In the event that terrain problems prevent an accurate determination of height, the Zoning Administrator shall rule as to height and appeal from that decision shall be to the Board of Adjustment. Pre-existing towers and preexisting antennas: means any tower or antenna for which a building permit has been properly issued prior to the effective date of this ordinance, including permitted towers or antennas that have not yet been constructed so long as such approval is current and not expired. Tower: means any structure that is designed and constructed primarily for the purpose of supporting one or more antennas for telephone, radio and similar communication purposes, including self-supporting lattice towers, guyed towers, or monopole towers. The term includes radio and television transmission towers, microwave towers, common-carrier towers, cellular telephone towers, alternative tower structures, and the like. The term also includes the structure and any support thereto. Utility service antennas: means antenna attached to utility boxes, poles, switches, storage tanks, etc. and used by a utility provider to facilitate the operation of the utility system. Wireless communication: means the transmission of voice or data without cable or wires. Wireless facility: means wireless communication facilities including, but not limited to, facilities that transmit and/or receive electromagnetic signals for cellular radio telephone service, personal communications services, enhanced specialized mobile services, paging systems, and related technologies. Such facilities also include antennas, microwave dishes, parabolic antennas, and all other types of equipment used in the transmission or reception of such signals; telecommunication towers or similar structures supporting said equipment; associated Page 5 of 36 equipment cabinets and/or buildings; and all other accessory development used for the provision of personal wireless services. These facilities do not include radio and television broadcast towers and government-operated public safety networks. Section 17.03 Applicability A. New Towers and Antennas: All new towers or antennas in Town of Fountain Hills shall be subject to these regulations. B. Exceptions: 1. Amateur Radio Station Operators/Receive Only Antennas. This ordinance shall not govern any tower, or the installation of any antenna, that is under the maximum building height of the zoning district in which such structure is located and which is owned and operated by a federally-licensed amateur radio station operator or is used exclusively for receive only operations. 2. Preexisting Towers or Antennas. Legally established preexisting towers and preexisting antennas shall not be required to meet the requirements of this ordinance, other than the requirements of Sections 17.04(F) & (G). 3. AM Array. For purposes of implementing this ordinance, an AM array, consisting of one or more tower units and supporting ground system which functions as one AM broadcasting antenna, shall be considered one tower. Measurements for setbacks and separation distances shall be measured from the outer perimeter of the towers included in the AM array. Additional tower units may be added within the perimeter of the AM array by right. Section 17.034 General Requirements A. General Requirements Page 6 of 36 1. Principal or Accessory Use: Antennas and towers may be considered either principal or accessory uses. A different existing use of an existing structure on the same lot shall not preclude the installation of an antenna or tower on such lot. B2. Lot Size: For purposes of determining whether the installation of a tower or antenna complies with district development regulations, including but not limited to setback requirements, lot-coverage requirements, and other such requirements, the dimensions of the entire lot shall control, even though the antennas or towers may be located on leased parcels within such lot. C. Inventory of Existing Sites: Each applicant for an antenna and/or tower shall provide to the Community Development Director an inventory of its existing towers, antennas, or sites approved for towers or antennas, that are either within the jurisdiction of the Town of Fountain Hills or within one mile of the border thereof, including speciflc information about the location, height, and design of each tower. Each applicant shall also provide a one-year build-out plan for all other wireless communications facilities within the Town. The Community Development Director may share such information with other applicants applying for administrative approvals or special use permits under this ordinance or with other organizations seeking to locate antennas within the jurisdiction of Town of Fountain Hills, provided, however that the Community Development Director is not, by sharing such information, in any way representing or warranting that such sites are available or suitable. D3. Aesthetics: Towers and antennas shall meet the following requirements: 1a. Towers shall, subject to any applicable standards of the FAA, be painted a neutral color so as to reduce visual obtrusiveness. 2b. At a tower site, the design of the buildings and related structures shall, to the extent possible, use materials; colors, textures, screening, and landscaping that will blend them into the natural setting and surrounding buildings. 3c. If an antenna is installed on a structure other than a tower, the antenna and supporting electrical and mechanical equipment must be of a neutral color that is identical to, or closely compatible with, the color of the supporting structure so as to make the antenna and related equipment as visually unobtrusive as possible. Page 7 of 36 d. The choice of design for installing a new personal wireless service facility or the substantial modiflcation of an existing personal wireless service facility shall be chosen to minimize the potential adverse impacts that the new or expanded facility may, or is likely to, infiict upon nearby properties. e. Unless speciflcally required by other regulations, a telecommunications tower shall have a flnish (either painted or unpainted) that minimizes its degree of visual impact. f. Accessory Structures i. Accessory structures shall maximize the use of building materials, colors, and textures designed to blend with the natural surroundings. The use of camoufiage communications towers may be required by the Council to blend the communications tower and/or its accessory structures further into the natural surroundings. "Camoufiage" is deflned as the use of materials incorporated into the communications tower design that give communications towers the appearance of tree branches and bark coatings, church steeples and crosses, sign structures, lighting structures, or other similar structures. ii. Accessory structures shall be designed to be architecturally similar, compatible with each other, and shall be no more than twelve (12) feet high. The buildings shall be used only for housing equipment related to the particular site. Whenever possible, the buildings shall be joined or clustered so as to appear as one building. iii. No portion of any telecommunications tower or accessory structure shall be used for a sign or other advertising purpose, including but not limited to the company name, phone numbers, banners, and streamers, except the following. A sign of no greater than two square feet indicating the name of the facility owner(s) and a twenty-four-hour emergency telephone shall be posted adjacent to any entry gate. In addition, "no trespassing" or other warning signs may be posted on the fence. All signs shall conform to the sign requirements of the Town. g. Towers must be placed to minimize visual impacts. Applicants shall place towers on the side slope of the terrain so that, as much as possible, the top of the tower does not protrude over the ridgeline, as seen from public ways. Page 8 of 36 h. Existing vegetation. Existing vegetation shall be preserved to the maximum extent possible. No cutting of trees shall take place on a site connected with an application made under this article prior to the approval of the special use permit use. i. Screening. i. Tree plantings may be required to screen portions of the telecommunications tower and accessory structures from nearby residential property as well as from public sites known to include important views or vistas. Additional palm trees may be required to accompany towers which use a palm tree stealth design. ii. Where a site adjoins a residential property or public property, including streets, screening suitable in type, size and quantity shall be required by the Town Council. iii. The applicant shall demonstrate to the approving board that adequate measures have been taken to screen and abate noise emanating from on-site equipment, including but not limited to heating and ventilating units, air conditioners, and emergency power generators. Telecommunications towers shall comply with all applicable sections of this chapter as it pertains to noise control and abatement. j. Utility Services Antennas i. For antenna placed in the Town’s right-of-way with the top of the antenna less than six (6’) feet above ground level, the support structure and antenna shall be painted a neutral color to blend with the surrounding area. If the top of the antenna is six (6’) feet or more above ground level, the antenna and support structure shall utilize the approve Saguaro cactus stealth design. ii. For antenna placed on private property: 1. If placed on another utility structure such as a water tower, the antenna shall be painted to blend with the building or equipment it placed on. 2. If a separate tower structure is used, the antenna design shall comply with the provisions above in this section. Page 9 of 36 E4. Lighting: Towers shall not be artiflcially lighted, unless required by the FAA or other applicable authority. If lighting is required, the lighting alternatives and design chosen must cause the least disturbance to the surrounding views. F. State or Federal Requirements: All towers must meet or exceed current standards and regulations of the FAA, the FCC, and any other agency of the state or federal government with the authority to regulate towers and antennas. If such standards and regulations are changed, then the owners of the towers and antennas governed by this chapter shall bring such towers and antennas into compliance with such revised standards and regulations within six (6) months of the effective date of such standards and regulations, unless a different compliance schedule is mandated by the controlling state or federal agency. Failure to bring towers and antennas into compliance with such revised standards and regulations shall constitute grounds for the removal of the tower or antenna at the owner's expense. G. Building Codes; Safety Standards: To ensure the structural integrity of towers, the owner of a tower shall ensure that it is maintained in compliance with standards contained in applicable state or local building codes and the applicable standards for towers that are published by the Electronic Industries Association, as amended from time to time. If, upon inspection, the Town of Fountain Hills concludes that a tower fails to comply with such codes and standards and constitutes a danger to persons or property, then upon notice being provided to the owner of the tower, the owner shall have thirty (30) days to bring such tower into compliance with such standards. Failure to bring such tower into compliance within said thirty (30) days shall constitute grounds for the removal of the tower or antenna at the owner's expense. H5. Measurement: For purposes of measurement, tower setbacks and separation distances shall be calculated and applied to facilities located in the Town of Fountain Hills irrespective of municipal and county jurisdictional boundaries. I6. Not Essential Services: Towers and antennas shall be regulated and permitted pursuant to this chapter and shall not be regulated or permitted as essential services, public utilities, or private utilities. J7. Franchises: Owners and/or operators of towers or antennas shall certify that all franchises required by law for the construction and/or operation of a wireless communication system in the Town of Fountain Hills have been obtained and shall flle a copy of all required franchises with the Community Development Director. Page 10 of 36 K. Public Notice: For purposes of this chapter, any special use request shall require public notice pursuant to Section 2.02(C) of this Zoning Ordinance except that the notice required shall include posting of the property, and mailing to all property owners within 300 feet of the proposed use, and publication in a newspaper of general circulation regardless of any expression to the contrary in Section 2.02. L8. Signs: No signs shall be allowed on an antenna or tower. M. Buildings and Support Equipment: Buildings and support equipment associated with antennas or towers shall comply with the requirements of Section 17.08. N9. Co-location and Multiple Antenna/Tower Plan: The Town of Fountain Hills encourages tower and antenna users to submit a single application for approval of multiple towers and/or antenna sites and to submit applications, which utilize co-location with an existing wireless telecommunications provider. Applications for approval of multiple sites or for co- location with an existing provider shall be given priority in the review process. O10. Security fencing: Towers shall be enclosed by security fencing not less than six (6) feet in height and no more than eight (8) feet in height, shall be constructed of a block or masonry, and shall be equipped with an appropriate anti-climbing device; provided however, that the Town Council may waive such requirements, as it deems appropriate. P11. Landscaping: The following requirements shall govern the landscaping surrounding towers; provided, however, that the Town Council may waive such requirements if the goals of this chapter would be better served thereby. 1a. Tower facilities shall be landscaped with a buffer of plant materials that effectively screens the view of the tower compound from residential property. The standard buffer shall consist of a landscaped strip at least four (4) feet wide outside the perimeter of the compound. 2b. In locations where the visual impact of the tower would be minimal, the landscaping requirement may be reduced or waived. 3c. Existing mature plant growth and natural landforms on the site shall be preserved to the maximum extent possible. Page 11 of 36 13. Noise: Submission of applications for towers and associated equipment shall include noise and acoustical information, prepared by a qualifled flrm or individual, for the base transceiver station(s), equipment buildings, and associated equipment such as air conditioning units and backup generators. The Town may require the applicant to incorporate appropriate noise baffiing materials and/or strategies to avoid any ambient noise from equipment reasonably likely to exceed the applicable noise regulations contained in Section 11-1-7 of the Town Code. 14. Any information of an engineering nature that the applicant submits, whether civil, mechanical, or electrical, shall be certifled by an Arizona Licensed Professional Engineer. 15. Application approval issued under this Chapter shall be conditioned upon veriflcation by the Town Engineer or designee that such tower structure is structurally sound. Such veriflcation shall be received by the applicant prior to submission. B. Minimum Setbacks and Separations 1. Setbacks: The following setback requirements shall apply to all towers; provided, however, that the Town Council may reasonably reduce the standard setback requirements if the goals of this chapter would be better served thereby: a. Towers must be set back a distance equal to at least one hundred percent (100%) of the height of the tower from any adjoining lot line. Provided, however, that separation distances from residential uses shall be in accordance with Table 1 set forth below. b. Accessory buildings must satisfy the minimum zoning district setback requirements. 2. Separation: The following separation requirements shall apply to all towers and antennas provided, however, that the Town Council may reasonably reduce the standard separation requirements if the goals of this chapter would be better served thereby. a. Separation from off-site uses/designated areas. i. Tower separation shall be measured from the base of the tower to the lot line of the off-site uses and/or designated areas as specifled in Table 1, except as otherwise provided in Table 1. Page 12 of 36 ii. Separation requirements for towers shall comply with the minimum standards established in Table 1. Table 1. Separation Requirements from Offsite Uses/Areas Off-site Use/Designated Area Separation Distance Single-family or duplex residential units1 200 feet or 300% of tower height, whichever is greater Vacant single-family or duplex residentially zoned land which is either platted or has preliminary plat approval which is not expired 200 feet or 300% of tower height, whichever is greater2 Vacant unplatted residentially zoned lands3 100 feet or 100% of tower height, whichever is greater Existing multifamily residential units greater than duplex units 100 feet or 100% of tower height, whichever is greater Nonresidentially zoned lands or nonresidential uses None, only setbacks apply 1 Includes modular homes and mobile homes used for living purposes. 2 Separation measured from base of tower to closest building setback line. 3 Includes any unplatted residential use properties without a valid preliminary subdivision plan or valid development plan and any multifamily residentially zoned land greater than a duplex. b. Separation distances between towers: Separation distances between towers shall be applicable for and measured between the proposed tower and preexisting towers. The separation distances shall be measured by drawing or following a straight line between the base of the existing tower and the proposed base, pursuant to a site plan, of the proposed tower. The separation distances (listed in linear feet) shall be as shown in Table number 2. Table 2. Separation Distances between Towers Page 13 of 36 Monopole 65 ft. in height or greater Monopole less than 65 ft. in height but greater than 40 ft. in height Monopole less than 40 ft. in height Monopole 65 ft. in height or greater 2,000 feet 1,500 feet 1,000 feet Monopole less than 65 ft. in height but greater than 40 ft. in height 1,500 feet 1,500 feet 1,000 feet Monopole less than 40 ft. in height 1,000 feet 1,000 feet 750 feet C. Buildings or Other Equipment Storage 1. Antennas Mounted on Structures or Rooftops: The equipment cabinet or structure used in association with antennas shall comply with the following: a. The cabinet or structure shall not contain more than one hundred-twenty (120) square feet of gross fioor area or be more than eight (8) feet in height and shall be located on the ground. b. Equipment storage buildings or cabinets shall comply with all applicable building codes. 2. Antennas Mounted on Utility Poles, Light Poles, or Towers: The equipment cabinet or structure used in association with antennas shall be located in accordance with the following: a. In residential districts, the equipment cabinet or structure may be located: i. In a required front yard or required street side yard, provided the cabinet structure is no greater than three and one-half (3.5) feet in height and twenty (20) square feet of gross fioor area and the cabinet/structure is located a minimum of three (3) feet from all lot lines. The cabinet/structure shall be screened by sight obscuring landscaping which obscures at least ninety-flve percent (95%) of the Page 14 of 36 structure at planting and throughout the duration of the cabinet or structure’s existence with an ultimate height not to exceed forty-two (42) inches. ii. In a required rear yard, provided the cabinet or structure is no greater than flve (5) feet in height or one hundred-twenty (120) square feet in gross fioor area. The cabinet/structure shall be screened by sight obscuring landscaping which obscures at least ninety-flve percent (95%) of the structure at planting and throughout the duration of the cabinet or structure’s existence with an ultimate height of six (6) feet. iii. The entry or access side of a cabinet or structure shall be gated by a solid, sight- obscuring gate that is separate from the cabinet or structure. b. In commercial or industrial districts the equipment cabinet or structure shall be no greater than fourteen (14) feet in height or three hundred (300) square feet in gross fioor area. The structure or cabinet shall be screened by sight-obscuring landscaping with an ultimate height of sixteen (16) feet and a planted height of at least six (6) feet. The entry or access side of a cabinet or structure shall be gated by a solid, sight- obscuring gate that is separate from the cabinet or structure. Such access way shall not face residentially zoned property. 3. Modiflcation of Building Size Requirements: The requirements of Sections 17.08(A) through (C) may be modifled by the Town Council in the case of uses permitted by special use to encourage collocation. D. Co-location 1. Any new telecommunications tower shall be designed to accommodate future shared use by other communications providers. 2. Good Faith: Applicants and permittees shall cooperate and exercise good faith in co- locating wireless telecommunications facilities on the same support structures or site, if the Town so requests. Good faith shall include sharing technical information to evaluate the feasibility of co-location, and may include negotiations for erection of a replacement support structure to accommodate co-location. A competitive confiict to co-location or flnancial burden caused by sharing such information normally will not be considered as an excuse to comply with this section. Page 15 of 36 3. Third Party Technical Review: In the event a dispute arises as to whether a permittee has exercised good faith in accommodating other users, the Town may require the applicant to obtain a third party technical study at the applicant’s expense. The Town may review any information submitted by the applicant and permittee(s) in determining whether good faith has been exercised. 4. Exceptions: No co-location may be required where the shared use would or does result in signiflcant interference in the broadcast or reception capabilities of the existing wireless telecommunications facilities or failure of the existing wireless telecommunications facilities to meet federal standards for emissions. 5. Violation; penalty: Failure to comply with co-location requirements when feasible may result in denial of a permit request or revocation of an existing permit. Section 17.0504 Permitted UsesApplication Types A. General: The uses listed in this Section are deemed to be permitted uses and shall not require administrative approval or a special use permit. B. Permitted Uses: The following uses are speciflcally permitted: 1. Antennas or towers located on property owned, leased, or otherwise controlled by the Town of Fountain Hills provided a license or lease authorizing such antenna or tower has been approved by the Town of Fountain Hills. No such license or lease shall be issued for a tower located within three hundred (300) feet of any residentially zoned property until a public hearing has been held at a regular or special Town Council meeting. 2. Alternative tower structures when such structures and their accompanying equipment are appropriately blended into the surrounding terrain, are within the height limitations of the underlying zoning district and are not nearer than three hundred (300) feet to residentially zoned and platted property.A. Administrative: The following types of applications are processed administratively by staff: Page 16 of 36 1. Applications to change or modify an antenna on an existing administratively approved tower that remains in compliance with all ordinance requirements. 2. Applications to change or modify an antenna on an existing tower approved through public review, provided that the modiflcation will not: a. Increase the approved height of the supporting structure by more than 10% or twenty (20) feet, whichever is greater; b. Cause the original approved number of antennas to be exceeded by more than 50%; c. Increase the original approved square footage of accessory buildings by more than 200 square feet; d. Add new, additional, or larger microwave antenna dishes; e. Expand the footprint of said support structure; or f. Potentially cause signiflcant adverse impacts on the existing support structure or the surrounding area. 3. Applications for co-location of additional antenna for an additional service provider on an existing administratively approved tower that remains in compliance with all ordinance requirements. 4. Applications for co-location of additional antenna for an additional service provider on an existing tower approved through public review, provided that the modiflcation will not: a. Increase the approved height of the supporting structure by more than 10% or twenty (20) feet, whichever is greater; b. Cause the original approved number of antennas to be exceeded by more than 50%; Page 17 of 36 c. Increase the original approved square footage of accessory buildings by more than 200 square feet; d. Add new, additional, or larger microwave antenna dishes; e. Expand the footprint of said support structure; or f. Potentially cause signiflcant adverse impacts on the existing support structure or the surrounding area. 5. Applications for new utility service antenna that comply with the height and setback requirements of the zoning district in which they are located. 6. Applications for mobile or temporary wireless facilities for more than seven (7) consecutive days. 7. Applications for new towers in the following locations: a. Town property with the tower located at least three hundred (300’) from residentially zoned property. b. On non-residentially zoned property and located at least three hundred feet (300’) from residentially zoned property. c. Alternative tower structures when such structures and their accompanying equipment are appropriately blended into the surrounding terrain, are within the height limitations of the underlying zoning district, and are at least three hundred feet (300’) from residentially zoned property. B. Public Review: The following types of applications require review and approval by the Town Council: Page 18 of 36 1. Towers on Town property when the tower will be located less than 300’ of residentially zoned property. 2. All other towers and antenna not meeting the requirements in Sec. 17.04 A or Sec. 17.04 B 1. Section 17.0605 Special Use PermitsApplication Submittal, Review, and Processing A. General: The following provisions shall govern the issuance of special use permits for towers or antennas by the Town Councilreview of all wireless communication facility applications: 1. If the tower or antenna is not a permitted use under Section 17.05 of this chapter, then a special use permit shall be required for the construction of a tower or the placement of an antenna in all zoning districts. Complete Application. Applications for wireless communication facilities shall be flled electronically on the Town’s website by an owner of real property and shall contain the area proposed for the wireless communication facility using the process established by the Director for such applications. All such applications shall include the information required in this section. Applications flled on behalf of the property owner by a third party shall include a statement from the property owner authorizing the submittal of the application. 2. Applications shall include documentation of compliance with items listed in Section 17.03 A as applicable to the application submitted. C3. Inventory of Existing Sites: Each applicant for an new antenna and/or tower or co- location of new antenna on an existing tower shall provide to the Community Development Services Director an inventory of its existing towers, antennas, or sites approved for towers or antennas, that are either within the jurisdiction of the Town of Fountain Hills or within one mile of the border thereof, including speciflc information about the location, height, and design of each tower. Each applicant shall also provide a one-year build-out plan for all other wireless communications facilities within the Town. The Community Development Services Director may share such information with other applicants applying for administrative approvals or special use permits under this ordinance or with other Page 19 of 36 organizations seeking to locate antennas within the jurisdiction of Town of Fountain Hills, provided, however that the Community Development Services Director is not, by sharing such information, in any way representing or warranting that such sites are available or suitable. 2. Applications for special use permits under this Section shall be subject to the procedures and requirements of Chapter 2, Section 2.02, of this Zoning Ordinance, except as modifled in this Section. 3. In granting a special use permit, the Town Council may impose conditions to the extent such conditions are necessary to minimize any adverse effect of the proposed tower on adjoining properties. 4. Any information of an engineering nature that the applicant submits, whether civil, mechanical, or electrical, shall be certifled by an Arizona Licensed Professional Engineer. 5. An applicant for a special use permit shall submit the information described in this section and a nonrefundable fee established pursuant to Section 2.02(H) of this Zoning Ordinance. 6. A Special Use Permit issued under this Chapter shall be conditioned upon veriflcation by the Town Engineer or designee that such tower structure is structurally sound. Such veriflcation shall be received by the applicant prior to submission. 4. Utility Service Antennas: a. Located in public right-of-way. These types of application are reviewed and approved through the Town’s Encroachment Permit process as provided in Town Code Article 16-1, Encroachments. b. Located on property owned by the utility company. i. If the antenna complies with the height requirements of the underlying zoning district, the plans for the antenna will be reviewed and approved with the overall site development plans if the site is being developed concurrently. If the antenna is being added to an existing utility site, the plans will be reviewed and processed consistent with the requirements of Section 17.05 C. Page 20 of 36 ii. If the antenna does not comply with the height requirements of the underlying zoning district, the plans for the antenna will be reviewed and processed consistent with the requirements of Section 17.05 D. 5. Applications Using Existing Towers: a. Dimensioned, to-scale drawings showing the existing and proposed antenna on the tower including the height of the tower and the antennas. b. The number and type of existing and proposed antenna. c. Engineering calculations documenting the structural changes and certifying the tower’s ability to carry the new antennas. d. Dimensioned, to-scale drawings illustrating modiflcation of ground equipment, if any. B6. Applications Using New Towers: 1. Information required. In addition to any information required for applications for special use permits pursuant to Chapter 2, Section 2.02 of this Zoning Ordinance, applicants for a special use permit for a tower shall submit the following information: a. A site Plan as required in Section 2.04 plus zoning, General Plan classiflcation of the site and all properties within the applicable separation distances set forth in Section 17.0703 (B)., adjacent roadways, proposed means of access, elevation drawings of the proposed tower and any other structures, photo simulations showing the tower in the proposed location from at least four directions, and other information deemed by the Development Services Director to be necessary to assess compliance with this chapter. b. The setback distance between the proposed tower and the nearest residential unit and residentially zoned properties. c. The separation distance from other towers described in the inventory of existing sites submitted pursuant to Section 17.0403 (CB.) shall be shown on an updated site plan or map. The applicant shall also identify the type of construction of the existing tower(s) and the owner/operator of the existing tower(s), if known. Page 21 of 36 d. Method of fencing, and flnished color and, if applicable, the method of camoufiage and illumination. e. A description of compliance with Sections 17.04(C), (D), (E), (F), (G), (J), (L) 17.03 C. 3, 4, 5, 7, 8, 9, 10, 11, and (M), (N), (O)17.03 B. and (P), 17.07(A), 17.07(B)17.05 A. 3, and 17.06 A. and B., and all applicable federal, state or local laws. f. A notarized statement by the applicant as to whether construction of the tower will accommodate collocation of additional antennas for future users. g. Identiflcation of the entities providing the backhaul network for the tower(s) described in the application and other cellular sites owned or operated by the applicant in the municipality. h. A description of the suitability of the use of existing towers, other structures or alternative technology not requiring the use of towers or structures to provide the services to be provided through the use of the proposed new tower. i. A description of the feasible alternative location(s) of future towers or antennas within the Town of Fountain Hills based upon existing physical, engineering, technological or geographical limitations in the event the proposed tower is erected. j. A statement of compliance with Federal Communications Commission (FCC) Radio Frequency (RF) exposure standards. 7. Filing Fee. Payment of a flling fee in an amount established by a schedule adopted by resolution of the Council and flled in the offlces of the Town Clerk. No part of the flling fee shall be returnable. 2. Noise: No permit shall be issued for any facility, which generates a noise level greater than flfty decibels (50 db) as measured at the edge of the property upon which such facility is sited. B. Shot Clocks and Tolling. To comply with the requirements of Section 47 U.S.C. §332(c)(7)(B)(ii) of the TCA, the following shot clock periods set forth herein below shall be presumed to be reasonable periods within which the Town shall render determinations upon applications for wireless communication facilities. Page 22 of 36 The Town shall render determinations upon such applications within the periods set forth hereinbelow, unless the applicable shot clock period listed below is tolled, extended by agreement or the processing of the application is delayed due to circumstances beyond the Town’s controls. 1. Application Shot Clocks. a. Receipt of Initial Application. Upon receipt of an application, the Development Services Director, or designee, shall review the application for completeness. If the Director determines the application is: (a) incomplete, (b) missing required application materials, (c) is the wrong type of application, or (d) is otherwise defective, then, within ten (10) days for administrative applications and thirty (30) days for public hearing applications of the Town’s receipt of the application, the Director, or their designee, shall notify the applicant of the flnding and state what is needed to have a complete application. The notice of incompleteness shall toll the shot clock, which shall not thereafter resume running unless and until the applicant tenders an additional submission to the Director to remedy the issues identifled in the notice of incomplete application. The submission of any responsive materials by the applicant shall automatically cause the shot clock period to resume running. If upon receipt of any additional materials from the applicant, the Director determines that the application is still incomplete and/or defective, then the Director shall, once again notify the applicant within ten (10) days for administrative applications and thirty (30) days for public hearing applications of the applicant having flled its supplemental or corrected materials to the Town and the shot clock shall once again be tolled, and the same procedure provided for hereinabove shall be repeated. b. Application Review. The shock clock for Administrative applications which do not involve new towers is ninety (90) days. The shot clock for Administrative applications with new towers and Public Review applications is one hundred flfty (150) days. 2. Shot Clock Tolls, Extensions & Reasonable Delay Periods Consistent with the letter and intent of Section 47 U.S.C. §332(c)(7)(B)(ii) of the TCA, each of the shot clock periods set forth within Section 17.05 B. hereinabove shall generally be Page 23 of 36 presumed to be sufflcient periods within which the Town shall render decisions upon applications. Notwithstanding same, the applicable shot clock periods may be tolled, extended by mutual agreement between any applicant and/or its representative and the Town, and the Town shall not be required to render its determination within the shot clock period presumed to be reasonable for each type of application, where the processing of such application is reasonably delayed, as described hereinbelow. a. Tolling of the Applicable Shot Clock Due to Incompleteness and/or Applicant Error As provided for within Section 17.05 B. 1. hereinabove, in the event that the Development Services Director deems an application incomplete, the Director shall send a Notice of Incompleteness to the applicant to notify the applicant that its application is incomplete and/or contains material errors, and shall reasonably identify the missing information and/or documents and/or the error(s) in the application. If the Director sends a Notice of Incompleteness as described hereinabove, the applicable shot clock shall automatically be tolled, meaning that the applicable shot clock period within which the Town is required to render a flnal decision upon the application shall immediately cease running, and shall not resume running, unless and until the Town receives a responsive submission from the applicant. If and when the applicant thereafter submits additional information in an effort to complete its application, or cure any identifled defect(s), then the shot clock shall automatically resume running, but shall not be deemed to start running anew. The applicable shot clock period shall, once again, be tolled if the Director thereafter provides a second notice that the application is still incomplete or defective, despite any additional submissions which have been received by the Town, from the applicant, up to that point. b. Shot Clock Extension by Mutual Agreement The Town shall be free to extend any applicable shot clock period by mutual agreement with any respective applicant. This discretion on the part of the Town shall include the Town’s authority to request, at any time, and for any period of time the Town may deem Page 24 of 36 reasonable or appropriate under the circumstances, consent from a respective applicant to extend the applicable shot clock period to enable the Town, the applicant, or any relevant third party, to complete any type of undertaking or task related to the review, analysis, processing, and determination of the particular application, which is then pending before the Town, to the extent that any such Undertaking, task, or review is consistent with, or reasonably related to, compliance with any federal, state, or local law and/or the requirements of any provision of the Town Code, including but not limited to this Chapter. In response to any request by the Town, the applicant, by its principal, agent, attorney, site acquisition agent, or other authorized representative, can consent to any extension of any applicable shot clock by afflrmatively indicating its consent either in writing or by afflrmatively indicating its consent on the record at any public hearing or public meeting. The Town shall be permitted to reasonably rely upon a representative of the applicant indicating that they are authorized to grant such consent on behalf of the respective applicant, on whose behalf they have been addressing the Town within the review process. c. Reasonable Delay Extensions of Shot Clock Periods The Town recognizes that there may be situations wherein, due to circumstances beyond the control of the Town and/or the Town Council, the review and issuance of a flnal decision upon an application for a wireless communication facility cannot reasonably be completed within the application shot clock periods delineated within Section 17.05 B hereinabove. If, despite the exercise of due diligence by the Town, the determination regarding a speciflc application cannot reasonably be completed within the applicable shot clock period, the Town shall be permitted to continue and complete its review and issue its determination at a date beyond the expiration of the applicable period, if the delay of such flnal decision is due to circumstances including, but not limited to, those enumerated hereinbelow, each of which shall serve as a reasonable basis for a reasonable delay of the applicable shot clock period. i. In the event that the rendering of a flnal decision upon an application under this Chapter is delayed due to natural and/or unnatural events and/or forces which are not within the control of the Town, such as the unavoidable delays experienced in Page 25 of 36 government processes due to the COVID 19 pandemic, and/or mandatory compliance with any related federal or state government orders issued in relation thereto, such delays shall constitute reasonable delays which shall be recognized as acceptable grounds for extending the period for review and the rendering of flnal determinations beyond the period allotted under the applicable shot clock. ii. In the event that applicant tenders eleventh-hour submissions to the Town in the form of (a) expert reports, (b) expert materials, and/or (c) materials which require a signiflcant period for review due either to their complexity or the sheer volume of materials which an applicant has chosen to provide to the Town at such late point in the proceedings, the Town shall be afforded a reasonable time to review such late-submitted materials. If reasonably necessary, the Town shall be permitted to retain the services of an expert consultant to review any late-submitted expert reports which were provided to the Town, even if such review or services extend beyond the applicable shot clock period, so long as the Town completes such review and retains and secures such expert services within a reasonable period of time thereafter and otherwise acts with reasonable diligence in completing its review and rendering its flnal decision. C. Review and Processing of Applications 1. Conformity to the following shall be considered in review of all applications: a. The application is consistent with the objectives of this ordinance. b. The height of the proposed tower. c. The adequacy of the proposed site, considering such factors as the sufficiency of the size of the site to comply with the established criteria, the configuration of the site, and the extent to which the site is formed by logical boundaries (e.g., topography, natural features, streets, relationship of adjacent uses, etc.) that provide for the ability to comply with the provisions of this ordinance. d. The extent to which the proposal responds to the impact of the proposed development on adjacent land uses, especially in terms of visual impact. Page 26 of 36 e. The extent to which the proposed telecommunications facility is camouflaged (i.e., use of stealth technology). f. The extent to which the proposed facility is integrated with existing structures (i.e., buildings, signs, utility poles, etc.) with particular reference to design characteristics that have the effect of reducing or eliminating visual obtrusiveness. g. An applicant's compliance with all town requirements with respect to previous applications. 2. Review of Administrative Applications. a. Administrative applications will be reviewed by staff using the Town’s standard permit plan review processes. Applications for new towers shall provide staff with the same information as required in Section 17.05 C 3 for Public Review Applications. b. Applications for mobile or temporary wireless facilities which remain in place for more than seven (7) consecutive days must submit a request for a Temporary Use Permit as provided in Section 2.03 of the Zoning Ordinance. 3. Review and Processing of Public Review Applications a. Applications which require public hearing review and approval will be processed using the requirements listed in Section 2.02 of the Town’s Zoning Ordinance for Special Use Permits. 3b. Factors Considered in Granting Special Use Permits for Towers: In addition to the factors listed in 7.05 C 1 for review of applications, public review applications will also be subject to the any standards for consideration of special use permit applications pursuant to Chapter 2, Section 2.02 of this Zoning Ordinance, the Town Council shall consider the following factors in determining whether to issue a special use permit, although the Town Council may waive or reduce the burden on the applicant of one or more of these criteria if the Town Council concludes that the goals of this ordinance are better served thereby: a. Height of the proposed tower; b. Proximity of the tower to residential structures and residentially zoned district boundaries; Page 27 of 36 c. Nature of uses on adjacent and nearby properties; d. Surrounding topography; e. Surrounding tree coverage and foliage; f. Design of the tower, with particular reference to design characteristics that have the effect of reducing or eliminating visual obtrusiveness. g. Proposed ingress and egress; and h. Availability of suitable existing towers, other structures, or alternative technologies not requiring the use of towers or structures, as discussed in Section 17.06(B)(4) of this chapter. 4c. Availability of Suitable Existing Towers, Other Structures, or Alternative Technology: No new tower shall be permitted unless the applicant demonstrates to the reasonable satisfaction of the Town Council that no existing tower, structure or alternative technology that does not require the use of towers or structures can accommodate the applicant's a proposed antenna. An applicant shall submit information requested by the Town Council related to the availability of suitable existing towers, other structures or alternative technology. Evidence submitted to demonstrate that no existing tower, structure or alternative technology can accommodate the applicant's proposed antenna may consist of any of the following: ai. No existing towers or structures are located within the geographic area, which meet applicant's engineering requirements. bii. Existing towers or structures are not of sufflcient height to meet applicant's engineering requirements. ciii. Existing towers or structures do not have sufflcient structural strength to support applicant's proposed antenna and related equipment. div. The applicant's proposed antenna would cause electromagnetic interference with the antenna on the existing towers or structures, or the antenna on the existing towers or structures would cause interference with the applicant's proposed antenna. Page 28 of 36 ev. The fees, costs, or contractual provisions required by the owner in order to share an existing tower or structure or to adapt an existing tower or structure for sharing are unreasonable. Costs exceeding new tower development are presumed to be unreasonable. fvi. The applicant demonstrates that there are other limiting factors that render existing towers and structures unsuitable. gvii. The applicant demonstrates that an alternative technology that does not require the use of towers or structures, such as a cable micro cell network using multiple low-powered transmitters/receivers attached to a wire line system, is unsuitable. Costs of alternative technology that exceed new tower or antenna development shall not be presumed to render the technology unsuitable. viii. If the applicant asserts a claim that a proposed facility is necessary to remedy one or more existing signiflcant gaps in an identifled wireless carrier’s personal wireless services, the Council may require the applicant to provide drive-test generated coverage maps, as opposed to computer-generated coverage maps, for each frequency at which the carrier provides personal wireless services, to show signal strengths in bins of three (3) DBM each, to enable the Council to assess the existence of such signiflcant gaps accurately, and/or whether the carrier possesses adequate coverage within the geographic area which is the subject of the respective application. 4. In granting a permit, the Town may impose conditions to the extent such conditions are necessary to minimize any adverse effect of the proposed tower on adjoining properties. Section 17.07 Minimum Setbacks and Separation A. Setbacks: The following setback requirements shall apply to all towers; provided, however, that the Town Council may reduce the standard setback requirements if the goals of this chapter would be better served thereby: 1. Towers must be set back a distance equal to at least one hundred percent (100%) of the height of the tower from any adjoining lot line. Provided, however, that separation distances from residential uses shall be in accordance with Table 1 set forth below. Page 29 of 36 2. Accessory buildings must satisfy the minimum zoning district setback requirements. B. Separation: The following separation requirements shall apply to all towers and antennas provided, however, that the Town Council may reduce the standard separation requirements if the goals of this chapter would be better served thereby. 1. Separation from off-site uses/designated areas. a. Tower separation shall be measured from the base of the tower to the lot line of the off-site uses and/or designated areas as specifled in Table 1, except as otherwise provided in Table 1. b. Separation requirements for towers shall comply with the minimum standards established in Table 1. Table 1. Separation Requirements from Offsite Uses/Areas Off-site Use/Designated Area Separation Distance Single-family or duplex residential units1 200 feet or 300% of tower height, whichever is greater Vacant single-family or duplex residentially zoned land which is either platted or has preliminary plat approval which is not expired 200 feet or 300% of tower height, whichever is greater2 Vacant unplatted residentially zoned lands3 100 feet or 100% of tower height, whichever is greater Existing multifamily residential units greater than duplex units 100 feet or 100% of tower height, whichever is greater Nonresidentially zoned lands or nonresidential uses None, only setbacks apply 1 Includes modular homes and mobile homes used for living purposes. 2 Separation measured from base of tower to closest building setback line. 3 Includes any unplatted residential use properties without a valid preliminary subdivision plan or valid development plan and any multifamily residentially zoned land greater than a duplex. Page 30 of 36 2. Separation distances between towers: Separation distances between towers shall be applicable for and measured between the proposed tower and preexisting towers. The separation distances shall be measured by drawing or following a straight line between the base of the existing tower and the proposed base, pursuant to a site plan, of the proposed tower. The separation distances (listed in linear feet) shall be as shown in Table number 2. Table 2. Separation Distances between Towers Monopole 65 ft. in height or greater Monopole less than 65 ft. in height but greater than 40 ft. in height Monopole less than 40 ft. in height Monopole 65 ft. in height or greater 2,000 feet 1,500 feet 1,000 feet Monopole less than 65 ft. in height but greater than 40 ft. in height 1,500 feet 1,500 feet 1,000 feet Monopole less than 40 ft. in height 1,000 feet 1,000 feet 750 feet Section 17.08 Buildings or Other Equipment Storage A. Antennas Mounted on Structures or Rooftops: The equipment cabinet or structure used in association with antennas shall comply with the following: 1. The cabinet or structure shall not contain more than one hundred-twenty (120) square feet of gross fioor area or be more than eight (8) feet in height and shall be located on the ground. 2. Equipment storage buildings or cabinets shall comply with all applicable building codes. B. Antennas Mounted on Utility Poles, Light Poles, or Towers: The equipment cabinet or structure used in association with antennas shall be located in accordance with the following: 1. In residential districts, the equipment cabinet or structure may be located: Page 31 of 36 a. In a required front yard or required street side yard provided the cabinet structure is no greater than three and one-half (3.5) feet in height or twenty (20) square feet of gross fioor area and the cabinet/structure is located a minimum of three (3) feet from all lot lines. The cabinet/structure shall be screened by sight obscuring landscaping which obscures at least ninety-flve percent (95%) of the structure at planting and throughout the duration of the cabinet or structure’s existence with an ultimate height not to exceed forty-two (42) inches. b. In a required rear yard, provided the cabinet or structure is no greater than flve (5) feet in height or one hundred-twenty (120) square feet in gross fioor area. The cabinet/structure shall be screened by sight obscuring landscaping which obscures at least ninety-flve percent (95%) of the structure at planting and throughout the duration of the cabinet or structure’s existence with an ultimate height of six (6) feet. c. The entry or access side of a cabinet or structure shall be gated by a solid, sight- obscuring gate that is separate from the cabinet or structure. 2. In commercial or industrial districts the equipment cabinet or structure shall be no greater than fourteen (14) feet in height or three hundred (300) square feet in gross fioor area. The structure or cabinet shall be screened by sight-obscuring landscaping with an ultimate height of sixteen (16) feet and a planted height of at least six (6) feet. The entry or access side of a cabinet or structure shall be gated by a solid, sight-obscuring gate that is separate from the cabinet or structure. Such access way shall not face residentially zoned property. C. Modiflcation of Building Size Requirements: The requirements of Sections 17.08(A) through (C) may be modifled by the Town Council in the case of uses permitted by special use to encourage collocation. Section 17.09 Co-Location A. Good Faith: Applicants and permittees shall cooperate and exercise good faith in co-locating wireless telecommunications facilities on the same support structures or site, if the Town so requests. Good faith shall include sharing technical information to evaluate the feasibility of co- location, and may include negotiations for erection of a replacement support structure to Page 32 of 36 accommodate co-location. A competitive confiict to co-location or flnancial burden caused by sharing such information normally will not be considered as an excuse to the duty of good faith. B. Third Party Technical Review: In the event a dispute arises as to whether a permittee has exercised good faith in accommodating other users, the Town may require the applicant to obtain a third party technical study at the applicant’s expense. The Town may review any information submitted by the applicant and permittee(s) in determining whether good faith has been exercised. C. Exceptions: No co-location may be required where the shared use would or does result in signiflcant interference in the broadcast or reception capabilities of the existing wireless telecommunications facilities or failure of the existing wireless telecommunications facilities to meet federal standards for emissions. D. Violation; penalty: Failure to comply with co-location requirements when feasible may result in denial of a permit request or revocation of an existing permit. Section 17.1006 Removal of Abandoned Antennas and TowersMaintenance and Operation A. Removal of Abandoned Antennas and Towers. Any antenna or tower that is not operated for a continuous period of ninety (90) days shall be considered abandoned, and the owner of such antenna or tower shall remove the same within ninety (90) days of receipt of notice from the Town of Fountain Hills notifying the owner of such abandonment. Failure to remove an abandoned antenna or tower within said ninety (90) day period shall be grounds to remove the tower or antenna at the owner's expense. If there are two or more users of a single tower, then this provision shall not become effective until all users cease using the tower for the prescribed period. FB. State or Federal Requirements: All towers must meet or exceed current standards and regulations of the FAA, the FCC, and any other agency of the state or federal government with the authority to regulate towers and antennas. If such standards and regulations are changed, then the owners of the towers and antennas governed by this chapter shall bring such towers and antennas into compliance with such revised standards and regulations within six (6) Page 33 of 36 months of the effective date of such standards and regulations, unless a different compliance schedule is mandated by the controlling state or federal agency. Failure to bring towers and antennas into compliance with such revised standards and regulations shall constitute grounds for the removal of the tower or antenna at the owner's expense. To ensure continuing compliance with such limits by all owners and/or operators of wireless communication facilities within the Town, all owners, and operators of wireless communication facilities shall submit reports as required by this section. As set forth hereinbelow, the Town may additionally require, at the owner and/or operator’s expense, independent veriflcation of the results of any analysis set forth within any reports submitted to the Town by the owner and/or operator. 1. Certiflcation of Compliance with Applicable RF Radiation Limits Within forty-flve (45) days of initial operation or a substantial modiflcation of a wireless communication facility, the owner and/or operator of each telecommunications antenna shall submit to the Development Services Director a written certiflcation by a licensed professional engineer, sworn to under penalties of perjury, that the facility’s radio frequency emissions comply with the limits codifled within 47 CFR §1.1310(e)(1), Table 1 Sections (i) and (ii), as made applicable pursuant to 47 CFR §1.1310(e)(3). The engineer shall measure the emissions of the approved facility, including the cumulative impact from other nearby facilities, and determine if such emissions are within the limits described hereinabove. A report of these measurements and the engineer’s flndings with respect to compliance with the FCC’s Maximum Permissible Exposure (MPE) limits shall be submitted to the Development Services Director. If the report shows that the facility does not comply with applicable limits, then the owner and/or operator shall cease operation of the facility until the facility is brought into compliance with such limits. Proof of compliance shall be a certiflcation provided by the engineer who prepared the original report. The Town may require, at the applicant’s expense, independent veriflcation of the results of the analysis. 2. Random RF Radiofrequency Testing Page 34 of 36 At the operator’s expense, the Town may retain an engineer to conduct random unannounced RF Radiation testing of such facilities to ensure the facility’s compliance with the limits codifled within 47 CFR §1.1310(e)(1) et seq. The Town may cause such random testing to be conducted as often as the Town may deem appropriate. However, the Town may not require the owner and/or operator to pay for more than one test per facility per calendar year unless such testing reveals that one or more of the owner and/or operator’s facilities are exceeding the limits codifled within 47 CFR §1.1310(e)(1) et seq., in which case the Town shall be permitted to demand that the facility be brought into compliance with such limits, and to conduct additional tests to determine if, and when, the owner and/or operator thereafter brings the respective facility and/or facilities into compliance. If the Town at any time flnds that there is good cause to believe that a wireless communication facility and/or one or more of its antennas are emitting RF radiation at levels in excess of the legal limits permitted under 47 CFR §1.1310(e)(1) et seq., then a hearing shall be scheduled before the Town’s Zoning Administrator at which the owner and/or operator of such facility shall be required to show cause why any and all permits and/or approvals issued by the Town for such facility and/or facilities should not be revoked, and a flne should not be assessed against such owner and/or operator. The owner and/or operator shall be afforded not less than two (2) weeks' written notice of the hearing. At such hearing, the burden shall be on the Town to show that, by a preponderance of the evidence, the facilities emissions exceeded the permissible limits under 47 CFR §1.1310(e)(1) et seq. In the event that the Town establishes same, the owner and/or operator shall then be required to establish, by clear and convincing evidence, that a malfunction of equipment caused their failure to comply with the applicable limits through no fault on the part of the owner/operator. If the owner and/or operator fails to establish same, the Town shall have the power to revoke any permit, building permit, and/or any other form of approval(s) which the Town Council or any other representative of the Town may have then issued to the owner and/or operator, for the respective facility. The Zoning Administrator may revoke an Page 35 of 36 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 many issue a civil citation for non-compliance as provided in Section 1-8-3 of the Town Code. In the event that an owner or operator of one or more wireless communication facility is found to violate subparagraph 1. hereinabove three or more times within any flve (5) year period, then in addition to revoking any zoning approvals for the facilities which were violating the limits codifled in 47 CFR §1.1310(e)(1) et seq., the Town Council shall render a determination within which it shall deem the owner/operator prohibited from flling any applications for any new wireless personal services facilities within the Town for a period of flve (5) years. GC. Building Codes; Safety Standards: To ensure the structural integrity of towers, the owner of a tower shall ensure that it is maintained in compliance with standards contained in 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. 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. Page 36 of 36 Section 17.1107 Nonconforming Uses A. Not Expansion of Nonconforming Use: Towers that are constructed, and antennas that are installed, in accordance with the provisions of this chapter shall not be deemed to constitute the expansion of a nonconforming use or structure. B. Pre-existing towers: Pre-existing towers shall be allowed to continue their usage as they presently exist. Routine maintenance (including replacement with a new tower of like construction and height) shall be permitted on such preexisting towers. New construction other than routine maintenance on a preexisting tower shall comply with the requirements of this chapter. C. Rebuilding Damaged or Destroyed Nonconforming Towers or Antennas: Notwithstanding other provisions of this chapter, bona flde nonconforming towers or antennas that are damaged or destroyed may be rebuilt without having to flrst obtain a special use permit and without having to meet the separation requirements specifled in Sections 17.037(A) and 17.07(B). The type, height, and location of the tower onsite shall be of the same type and intensity as the original facility approval; provided, however, that any destroyed lattice or guyed tower shall be replaced with a monopole structure only. Building permits to rebuild the facility shall comply with the then applicable building codes and shall be obtained within ninety (90) days from the date the facility is damaged or destroyed. If no permit is obtained or if said permit expires, the tower or antenna shall be deemed abandoned as specifled in Section 17.16 A.0. Page 1 of 28 Chapter 17 Wireless Telecommunications Towers and Antennas Section 17.01 Purpose, Intent, and Applicability A. The purpose of this ordinance is to establish general guidelines for the siting of wireless communications towers and antennas. The goals of this ordinance are to: 1. Protect residential areas and land uses from potential adverse impacts of towers and antennas; 2. Encourage the location of towers in nonresidential areas; 3. Minimize the total number of towers throughout the community; 4. Strongly encourage the joint use of new and existing tower sites as a primary option rather than construction of additional single-use towers; 5. Encourage users of towers and antennas to locate them, to the extent possible, in areas where the adverse impact on the community is minimal; 6. Encourage users of towers and antennas to conflgure them in a way that minimizes the adverse visual impact of the towers and antennas through careful design, siting, landscape screening, and innovative camoufiaging techniques; 7. Enhance the ability of the providers of telecommunications services to provide such services to the community quickly, effectively, and efflciently; 8. Consider the public health and safety of communication towers; and 9. Avoid potential damage to adjacent properties from tower failure through engineering and careful siting of tower structures. In furtherance of these goals, Town of Fountain Hills shall give due consideration to the Town of Fountain Hills General Plan, the Town of Fountain Hills Zoning Ordinance, existing land uses, and environmentally sensitive areas in approving sites for the location of towers and antennas. B. It is the intent of this ordinance: Page 2 of 28 1. That no wireless communication towers or antenna be sited, constructed, reconstructed, installed, materially changed, expanded, or used unless in conformity with this Chapter. 2. To achieve a balance between the need to provide wireless services with the health, safety, and general welfare of the residents of Fountain Hills the by balancing four (4) simultaneous objectives: a. Enabling personal wireless service providers to provide adequate personal wireless services throughout the Town so that Town residents can enjoy the beneflts of same, from any FCC-licensed wireless carrier from which they choose to obtain such services; b. Minimizing the number of cell towers and/or other personal wireless service facilities needed to provide such coverage; c. Preventing, to the greatest extent reasonably practical, any unnecessary adverse impacts upon the Town’s communities, residential areas, and individual homes; and, d. Complying with all the legal requirements which the Telecommunications Act of 1996, as amended (“TCA”) imposes upon the Town, when the Town receives, processes and determines applications seeking approvals for the siting, construction and operation of cell towers and/or other personal wireless service facilities. C. Applicability. New Towers and Antennas: All new towers or antennas in Town of Fountain Hills shall be subject to these regulations. The following exceptions apply: 1. Amateur Radio Station Operators/Receive Only Antennas. This ordinance shall not govern any tower, or the installation of any antenna, that is under the maximum building height of the zoning district in which such structure is located and which is owned and operated by a federally-licensed amateur radio station operator or is used exclusively for receive only operations. 2. Preexisting Towers or Antennas. Legally established preexisting towers and preexisting antennas shall not be required to meet the requirements of this ordinance, other than the requirements of Sections 17.06 B. and C. 3. AM Array. For purposes of implementing this ordinance, an AM array, consisting of one or more tower units and supporting ground system which functions as one AM Page 3 of 28 broadcasting antenna, shall be considered one tower. Measurements for setbacks and separation distances shall be measured from the outer perimeter of the towers included in the AM array. Additional tower units may be added within the perimeter of the AM array by right. 4. Small Cell Towers in the Right-of-Way. Wireless communication towers and antenna meeting the deflnition of small wireless facilities as contained in A.R.S. 9-591 are subject to the requirements of Article 16-2, Small Wireless Facilities, of the Town Code. 5. Mobile or Temporary Towers. Mobile wireless facilities when placed on site for seven (7) consecutive days or less, provided any necessary building permit or encroachment permit is obtained. Section 17.02 Definitions As used in this ordinance, the following terms shall have the meanings set forth below: Alternative Tower Structure: means man-made trees, clock towers, bell steeples, light poles and similar alternative-design mounting structures that camoufiage or conceal the presence of antennas or towers. Antenna: means any exterior transmitting or receiving device mounted on a tower, building or structure and used in communications that radiates or captures electromagnetic waves, digital signals, analog signals, radio frequencies (excluding radar signals), wireless telecommunications signals or other communication signals. Backhaul network: means the lines that connect a provider's towers/cell sites to one or more cellular telephone switching offlces, and/or long distance providers, or the public switched telephone network. Existing Structure: means light poles, power poles, chimneys, billboards, and other similar structures, which are placed, within the Town at the time of adoption of this Chapter, except existing buildings. FAA: means the Federal Aviation Administration. FCC: means the Federal Communications Commission. Page 4 of 28 Height: means, when referring to a tower or other structure, the vertical distance measured from the natural grade level to the highest point of the structure directly above the natural grade when such structure is not located in a platted subdivision. If the structure is located in a platted subdivision, the height shall be the vertical distance measured from the flnished grade as shown on the subdivision grading plans or flnished grade as shown on the individual lot's grading plans, (whichever is lower), to the highest point of the structure directly above the flnished grade. In the event that terrain problems prevent an accurate determination of height, the Zoning Administrator shall rule as to height and appeal from that decision shall be to the Board of Adjustment. Pre-existing towers and preexisting antennas: means any tower or antenna for which a building permit has been properly issued prior to the effective date of this ordinance, including permitted towers or antennas that have not yet been constructed so long as such approval is current and not expired. Tower: means any structure that is designed and constructed primarily for the purpose of supporting one or more antennas for telephone, radio and similar communication purposes, including self-supporting lattice towers, guyed towers, or monopole towers. The term includes radio and television transmission towers, microwave towers, common-carrier towers, cellular telephone towers, alternative tower structures, and the like. The term also includes the structure and any support thereto. Utility service antennas: means antenna attached to utility boxes, poles, switches, storage tanks, etc. and used by a utility provider to facilitate the operation of the utility system. Wireless communication: means the transmission of voice or data without cable or wires. Wireless facility: means wireless communication facilities including, but not limited to, facilities that transmit and/or receive electromagnetic signals for cellular radio telephone service, personal communications services, enhanced specialized mobile services, paging systems, and related technologies. Such facilities also include antennas, microwave dishes, parabolic antennas, and all other types of equipment used in the transmission or reception of such signals; telecommunication towers or similar structures supporting said equipment; associated equipment cabinets and/or buildings; and all other accessory development used for the provision of personal wireless services. These facilities do not include radio and television broadcast towers and government-operated public safety networks. Page 5 of 28 Section 17.03 Requirements A. General Requirements 1. Principal or Accessory Use: Antennas and towers may be considered either principal or accessory uses. A different existing use of an existing structure on the same lot shall not preclude the installation of an antenna or tower on such lot. 2. Lot Size: For purposes of determining whether the installation of a tower or antenna complies with district development regulations, including but not limited to setback requirements, lot-coverage requirements, and other such requirements, the dimensions of the entire lot shall control, even though the antennas or towers may be located on leased parcels within such lot. 3. Aesthetics: Towers and antennas shall meet the following requirements: a. Towers shall, subject to any applicable standards of the FAA, be painted a neutral color so as to reduce visual obtrusiveness. b. At a tower site, the design of the buildings and related structures shall, to the extent possible, use materials; colors, textures, screening, and landscaping that will blend them into the natural setting and surrounding buildings. c. If an antenna is installed on a structure other than a tower, the antenna and supporting electrical and mechanical equipment must be of a neutral color that is identical to, or closely compatible with, the color of the supporting structure so as to make the antenna and related equipment as visually unobtrusive as possible. d. The choice of design for installing a new personal wireless service facility or the substantial modiflcation of an existing personal wireless service facility shall be chosen to minimize the potential adverse impacts that the new or expanded facility may, or is likely to, infiict upon nearby properties. Page 6 of 28 e. Unless speciflcally required by other regulations, a telecommunications tower shall have a flnish (either painted or unpainted) that minimizes its degree of visual impact. f. Accessory Structures i. Accessory structures shall maximize the use of building materials, colors, and textures designed to blend with the natural surroundings. The use of camoufiage communications towers may be required by the Council to blend the communications tower and/or its accessory structures further into the natural surroundings. "Camoufiage" is deflned as the use of materials incorporated into the communications tower design that give communications towers the appearance of tree branches and bark coatings, church steeples and crosses, sign structures, lighting structures, or other similar structures. ii. Accessory structures shall be designed to be architecturally similar, compatible with each other, and shall be no more than twelve (12) feet high. The buildings shall be used only for housing equipment related to the particular site. Whenever possible, the buildings shall be joined or clustered so as to appear as one building. iii. No portion of any telecommunications tower or accessory structure shall be used for a sign or other advertising purpose, including but not limited to the company name, phone numbers, banners, and streamers, except the following. A sign of no greater than two square feet indicating the name of the facility owner(s) and a twenty-four-hour emergency telephone shall be posted adjacent to any entry gate. In addition, "no trespassing" or other warning signs may be posted on the fence. All signs shall conform to the sign requirements of the Town. g. Towers must be placed to minimize visual impacts. Applicants shall place towers on the side slope of the terrain so that, as much as possible, the top of the tower does not protrude over the ridgeline, as seen from public ways. h. Existing vegetation. Existing vegetation shall be preserved to the maximum extent possible. No cutting of trees shall take place on a site connected with an application made under this article prior to the approval of the special use permit use. i. Screening. Page 7 of 28 i. Tree plantings may be required to screen portions of the telecommunications tower and accessory structures from nearby residential property as well as from public sites known to include important views or vistas. Additional palm trees may be required to accompany towers which use a palm tree stealth design. ii. Where a site adjoins a residential property or public property, including streets, screening suitable in type, size and quantity shall be required by the Town Council. iii. The applicant shall demonstrate to the approving board that adequate measures have been taken to screen and abate noise emanating from on-site equipment, including but not limited to heating and ventilating units, air conditioners, and emergency power generators. Telecommunications towers shall comply with all applicable sections of this chapter as it pertains to noise control and abatement. j. Utility Services Antennas i. For antenna placed in the Town’s right-of-way with the top of the antenna less than six (6’) feet above ground level, the support structure and antenna shall be painted a neutral color to blend with the surrounding area. If the top of the antenna is six (6’) feet or more above ground level, the antenna and support structure shall utilize the approve Saguaro cactus stealth design. ii. For antenna placed on private property: 1. If placed on another utility structure such as a water tower, the antenna shall be painted to blend with the building or equipment it placed on. 2. If a separate tower structure is used, the antenna design shall comply with the provisions above in this section. 4. Lighting: Towers shall not be artiflcially lighted, unless required by the FAA or other applicable authority. If lighting is required, the lighting alternatives and design chosen must cause the least disturbance to the surrounding views. Page 8 of 28 5. Measurement: For purposes of measurement, tower setbacks and separation distances shall be calculated and applied to facilities located in the Town of Fountain Hills irrespective of municipal and county jurisdictional boundaries. 6. Not Essential Services: Towers and antennas shall be regulated and permitted pursuant to this chapter and shall not be regulated or permitted as essential services, public utilities, or private utilities. 7. Franchises: Owners and/or operators of towers or antennas shall certify that all franchises required by law for the construction and/or operation of a wireless communication system in the Town of Fountain Hills have been obtained and shall flle a copy of all required franchises with the Community Development Director. 8. Signs: No signs shall be allowed on an antenna or tower. 9. Co-location and Multiple Antenna/Tower Plan: The Town of Fountain Hills encourages tower and antenna users to submit a single application for approval of multiple towers and/or antenna sites and to submit applications, which utilize co-location with an existing wireless telecommunications provider. Applications for approval of multiple sites or for co- location with an existing provider shall be given priority in the review process. 10. Security fencing: Towers shall be enclosed by security fencing not less than six (6) feet in height and no more than eight (8) feet in height, shall be constructed of a block or masonry, and shall be equipped with an appropriate anti-climbing device; provided however, that the Town Council may waive such requirements, as it deems appropriate. 11. Landscaping: The following requirements shall govern the landscaping surrounding towers; provided, however, that the Town Council may waive such requirements if the goals of this chapter would be better served thereby. a. Tower facilities shall be landscaped with a buffer of plant materials that effectively screens the view of the tower compound from residential property. The standard buffer shall consist of a landscaped strip at least four (4) feet wide outside the perimeter of the compound. b. In locations where the visual impact of the tower would be minimal, the landscaping requirement may be reduced or waived. Page 9 of 28 c. Existing mature plant growth and natural landforms on the site shall be preserved to the maximum extent possible. 13. Noise: Submission of applications for towers and associated equipment shall include noise and acoustical information, prepared by a qualifled flrm or individual, for the base transceiver station(s), equipment buildings, and associated equipment such as air conditioning units and backup generators. The Town may require the applicant to incorporate appropriate noise baffiing materials and/or strategies to avoid any ambient noise from equipment reasonably likely to exceed the applicable noise regulations contained in Section 11-1-7 of the Town Code. 14. Any information of an engineering nature that the applicant submits, whether civil, mechanical, or electrical, shall be certifled by an Arizona Licensed Professional Engineer. 15. Application approval issued under this Chapter shall be conditioned upon veriflcation by the Town Engineer or designee that such tower structure is structurally sound. Such veriflcation shall be received by the applicant prior to submission. B. Minimum Setbacks and Separations 1. Setbacks: The following setback requirements shall apply to all towers; provided, however, that the Town Council may reasonably reduce the standard setback requirements if the goals of this chapter would be better served thereby: a. Towers must be set back a distance equal to at least one hundred percent (100%) of the height of the tower from any adjoining lot line. Provided, however, that separation distances from residential uses shall be in accordance with Table 1 set forth below. b. Accessory buildings must satisfy the minimum zoning district setback requirements. 2. Separation: The following separation requirements shall apply to all towers and antennas provided, however, that the Town Council may reasonably reduce the standard separation requirements if the goals of this chapter would be better served thereby. a. Separation from off-site uses/designated areas. Page 10 of 28 i. Tower separation shall be measured from the base of the tower to the lot line of the off-site uses and/or designated areas as specifled in Table 1, except as otherwise provided in Table 1. ii. Separation requirements for towers shall comply with the minimum standards established in Table 1. Table 1. Separation Requirements from Offsite Uses/Areas Off-site Use/Designated Area Separation Distance Single-family or duplex residential units1 200 feet or 300% of tower height, whichever is greater Vacant single-family or duplex residentially zoned land which is either platted or has preliminary plat approval which is not expired 200 feet or 300% of tower height, whichever is greater2 Vacant unplatted residentially zoned lands3 100 feet or 100% of tower height, whichever is greater Existing multifamily residential units greater than duplex units 100 feet or 100% of tower height, whichever is greater Nonresidentially zoned lands or nonresidential uses None, only setbacks apply 1 Includes modular homes and mobile homes used for living purposes. 2 Separation measured from base of tower to closest building setback line. 3 Includes any unplatted residential use properties without a valid preliminary subdivision plan or valid development plan and any multifamily residentially zoned land greater than a duplex. b. Separation distances between towers: Separation distances between towers shall be applicable for and measured between the proposed tower and preexisting towers. The separation distances shall be measured by drawing or following a straight line between the base of the existing tower and the proposed base, pursuant to a site plan, of the proposed tower. The separation distances (listed in linear feet) shall be as shown in Table number 2. Page 11 of 28 Table 2. Separation Distances between Towers Monopole 65 ft. in height or greater Monopole less than 65 ft. in height but greater than 40 ft. in height Monopole less than 40 ft. in height Monopole 65 ft. in height or greater 2,000 feet 1,500 feet 1,000 feet Monopole less than 65 ft. in height but greater than 40 ft. in height 1,500 feet 1,500 feet 1,000 feet Monopole less than 40 ft. in height 1,000 feet 1,000 feet 750 feet C. Buildings or Other Equipment Storage 1. Antennas Mounted on Structures or Rooftops: The equipment cabinet or structure used in association with antennas shall comply with the following: a. The cabinet or structure shall not contain more than one hundred-twenty (120) square feet of gross fioor area or be more than eight (8) feet in height and shall be located on the ground. b. Equipment storage buildings or cabinets shall comply with all applicable building codes. 2. Antennas Mounted on Utility Poles, Light Poles, or Towers: The equipment cabinet or structure used in association with antennas shall be located in accordance with the following: a. In residential districts, the equipment cabinet or structure may be located: i. In a required front yard or required street side yard, provided the cabinet structure is no greater than three and one-half (3.5) feet in height and twenty (20) square feet of gross fioor area and the cabinet/structure is located a minimum of three (3) feet from all lot lines. The cabinet/structure shall be screened by sight obscuring landscaping which obscures at least ninety-flve percent (95%) of the Page 12 of 28 structure at planting and throughout the duration of the cabinet or structure’s existence with an ultimate height not to exceed forty-two (42) inches. ii. In a required rear yard, provided the cabinet or structure is no greater than flve (5) feet in height or one hundred-twenty (120) square feet in gross fioor area. The cabinet/structure shall be screened by sight obscuring landscaping which obscures at least ninety-flve percent (95%) of the structure at planting and throughout the duration of the cabinet or structure’s existence with an ultimate height of six (6) feet. iii. The entry or access side of a cabinet or structure shall be gated by a solid, sight- obscuring gate that is separate from the cabinet or structure. b. In commercial or industrial districts the equipment cabinet or structure shall be no greater than fourteen (14) feet in height or three hundred (300) square feet in gross fioor area. The structure or cabinet shall be screened by sight-obscuring landscaping with an ultimate height of sixteen (16) feet and a planted height of at least six (6) feet. The entry or access side of a cabinet or structure shall be gated by a solid, sight- obscuring gate that is separate from the cabinet or structure. Such access way shall not face residentially zoned property. 3. Modiflcation of Building Size Requirements: The requirements of Sections 17.08(A) through (C) may be modifled by the Town Council in the case of uses permitted by special use to encourage collocation. D. Co-location 1. Any new telecommunications tower shall be designed to accommodate future shared use by other communications providers. 2. Good Faith: Applicants and permittees shall cooperate and exercise good faith in co- locating wireless telecommunications facilities on the same support structures or site, if the Town so requests. Good faith shall include sharing technical information to evaluate the feasibility of co-location, and may include negotiations for erection of a replacement support structure to accommodate co-location. A competitive confiict to co-location or flnancial burden caused by sharing such information normally will not be considered as an excuse to comply with this section. Page 13 of 28 3. Third Party Technical Review: In the event a dispute arises as to whether a permittee has exercised good faith in accommodating other users, the Town may require the applicant to obtain a third party technical study at the applicant’s expense. The Town may review any information submitted by the applicant and permittee(s) in determining whether good faith has been exercised. 4. Exceptions: No co-location may be required where the shared use would or does result in signiflcant interference in the broadcast or reception capabilities of the existing wireless telecommunications facilities or failure of the existing wireless telecommunications facilities to meet federal standards for emissions. 5. Violation; penalty: Failure to comply with co-location requirements when feasible may result in denial of a permit request or revocation of an existing permit. Section 17.04 Application Types A. Administrative: The following types of applications are processed administratively by staff: 1. Applications to change or modify an antenna on an existing administratively approved tower that remains in compliance with all ordinance requirements. 2. Applications to change or modify an antenna on an existing tower approved through public review, provided that the modiflcation will not: a. Increase the approved height of the supporting structure by more than 10% or twenty (20) feet, whichever is greater; b. Cause the original approved number of antennas to be exceeded by more than 50%; c. Increase the original approved square footage of accessory buildings by more than 200 square feet; d. Add new, additional, or larger microwave antenna dishes; Page 14 of 28 e. Expand the footprint of said support structure; or f. Potentially cause signiflcant adverse impacts on the existing support structure or the surrounding area. 3. Applications for co-location of additional antenna for an additional service provider on an existing administratively approved tower that remains in compliance with all ordinance requirements. 4. Applications for co-location of additional antenna for an additional service provider on an existing tower approved through public review, provided that the modiflcation will not: a. Increase the approved height of the supporting structure by more than 10% or twenty (20) feet, whichever is greater; b. Cause the original approved number of antennas to be exceeded by more than 50%; c. Increase the original approved square footage of accessory buildings by more than 200 square feet; d. Add new, additional, or larger microwave antenna dishes; e. Expand the footprint of said support structure; or f. Potentially cause signiflcant adverse impacts on the existing support structure or the surrounding area. 5. Applications for new utility service antenna that comply with the height and setback requirements of the zoning district in which they are located. 6. Applications for mobile or temporary wireless facilities for more than seven (7) consecutive days. Page 15 of 28 7. Applications for new towers in the following locations: a. Town property with the tower located at least three hundred (300’) from residentially zoned property. b. On non-residentially zoned property and located at least three hundred feet (300’) from residentially zoned property. c. Alternative tower structures when such structures and their accompanying equipment are appropriately blended into the surrounding terrain, are within the height limitations of the underlying zoning district, and are at least three hundred feet (300’) from residentially zoned property. B. Public Review: The following types of applications require review and approval by the Town Council: 1. Towers on Town property when the tower will be located less than 300’ of residentially zoned property. 2. All other towers and antenna not meeting the requirements in Sec. 17.04 A or Sec. 17.04 B 1. Section 17.05 Application Submittal, Review, and Processing A. General: The following provisions shall govern the review of all wireless communication facility applications: 1. Complete Application. Applications for wireless communication facilities shall be flled electronically on the Town’s website by an owner of real property and shall contain the area proposed for the wireless communication facility using the process established by the Director for such applications. All such applications shall include the information required in this section. Applications flled on behalf of the property owner by a third party shall include a statement from the property owner authorizing the submittal of the application. Page 16 of 28 2. Applications shall include documentation of compliance with items listed in Section 17.03 A as applicable to the application submitted. 3. Inventory of Existing Sites: Each applicant for a new tower or co-location of new antenna on an existing tower shall provide to the Development Services Director an inventory of its existing towers, antennas, or sites approved for towers or antennas, that are either within the jurisdiction of the Town of Fountain Hills or within one mile of the border thereof, including speciflc information about the location, height, and design of each tower. Each applicant shall also provide a one-year build-out plan for all other wireless communications facilities within the Town. The Development Services Director may share such information with other applicants applying for administrative approvals or special use permits under this ordinance or with other organizations seeking to locate antennas within the jurisdiction of Town of Fountain Hills, provided, however that the Development Services Director is not, by sharing such information, in any way representing or warranting that such sites are available or suitable. 4. Utility Service Antennas: a. Located in public right-of-way. These types of application are reviewed and approved through the Town’s Encroachment Permit process as provided in Town Code Article 16-1, Encroachments. b. Located on property owned by the utility company. i. If the antenna complies with the height requirements of the underlying zoning district, the plans for the antenna will be reviewed and approved with the overall site development plans if the site is being developed concurrently. If the antenna is being added to an existing utility site, the plans will be reviewed and processed consistent with the requirements of Section 17.05 C. ii. If the antenna does not comply with the height requirements of the underlying zoning district, the plans for the antenna will be reviewed and processed consistent with the requirements of Section 17.05 D. 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. Page 17 of 28 b. The number and type of existing and proposed antenna. c. Engineering calculations documenting the structural changes and certifying the tower’s ability to carry the new antennas. d. Dimensioned, to-scale drawings illustrating modiflcation of ground equipment, if any. 6. Applications Using New Towers: Information required. In addition to any information required for applications for special use permits pursuant to Chapter 2, Section 2.02 of this Zoning Ordinance, applicants for a special use permit for a tower shall submit the following information: a. A site Plan as required in Section 2.04 plus zoning, General Plan classiflcation of the site and all properties within the applicable separation distances set forth in Section 17.03 B., adjacent roadways, proposed means of access, elevation drawings of the proposed tower and any other structures, photo simulations showing the tower in the proposed location from at least four directions, and other information deemed by the Development Services Director to be necessary to assess compliance with this chapter. b. The setback distance between the proposed tower and the nearest residential unit and residentially zoned properties. c. The separation distance from other towers described in the inventory of existing sites submitted pursuant to Section 17.03 B. shall be shown on an updated site plan or map. The applicant shall also identify the type of construction of the existing tower(s) and the owner/operator of the existing tower(s), if known. d. Method of fencing, and flnished color and, if applicable, the method of camoufiage and illumination. e. A description of compliance with Sections 17.03 C. 3, 4, 5, 7, 8, 9, 10, 11, and 17.03 B. and 17.05 A. 3, and 17.06 A. and B., and all applicable federal, state or local laws. f. A notarized statement by the applicant as to whether construction of the tower will accommodate collocation of additional antennas for future users. Page 18 of 28 g. Identiflcation of the entities providing the backhaul network for the tower(s) described in the application and other cellular sites owned or operated by the applicant in the municipality. h. A description of the suitability of the use of existing towers, other structures or alternative technology not requiring the use of towers or structures to provide the services to be provided through the use of the proposed new tower. i. A description of the feasible alternative location(s) of future towers or antennas within the Town of Fountain Hills based upon existing physical, engineering, technological or geographical limitations in the event the proposed tower is erected. j. A statement of compliance with Federal Communications Commission (FCC) Radio Frequency (RF) exposure standards. 7. Filing Fee. Payment of a flling fee in an amount established by a schedule adopted by resolution of the Council and flled in the offlces of the Town Clerk. No part of the flling fee shall be returnable. B. Shot Clocks and Tolling. To comply with the requirements of Section 47 U.S.C. §332(c)(7)(B)(ii) of the TCA, the following shot clock periods set forth herein below shall be presumed to be reasonable periods within which the Town shall render determinations upon applications for wireless communication facilities. The Town shall render determinations upon such applications within the periods set forth hereinbelow, unless the applicable shot clock period listed below is tolled, extended by agreement or the processing of the application is delayed due to circumstances beyond the Town’s controls. 1. Application Shot Clocks. a. Receipt of Initial Application. Upon receipt of an application, the Development Services Director, or designee, shall review the application for completeness. If the Director determines the application is: (a) incomplete, (b) missing required application materials, (c) is the wrong type of application, or (d) is otherwise defective, then, within ten (10) days for administrative applications and thirty (30) days for public hearing Page 19 of 28 applications of the Town’s receipt of the application, the Director, or their designee, shall notify the applicant of the flnding and state what is needed to have a complete application. The notice of incompleteness shall toll the shot clock, which shall not thereafter resume running unless and until the applicant tenders an additional submission to the Director to remedy the issues identifled in the notice of incomplete application. The submission of any responsive materials by the applicant shall automatically cause the shot clock period to resume running. If upon receipt of any additional materials from the applicant, the Director determines that the application is still incomplete and/or defective, then the Director shall, once again notify the applicant within ten (10) days for administrative applications and thirty (30) days for public hearing applications of the applicant having flled its supplemental or corrected materials to the Town and the shot clock shall once again be tolled, and the same procedure provided for hereinabove shall be repeated. b. Application Review. The shock clock for Administrative applications which do not involve new towers is ninety (90) days. The shot clock for Administrative applications with new towers and Public Review applications is one hundred flfty (150) days. 2. Shot Clock Tolls, Extensions & Reasonable Delay Periods Consistent with the letter and intent of Section 47 U.S.C. §332(c)(7)(B)(ii) of the TCA, each of the shot clock periods set forth within Section 17.05 B. hereinabove shall generally be presumed to be sufflcient periods within which the Town shall render decisions upon applications. Notwithstanding same, the applicable shot clock periods may be tolled, extended by mutual agreement between any applicant and/or its representative and the Town, and the Town shall not be required to render its determination within the shot clock period presumed to be reasonable for each type of application, where the processing of such application is reasonably delayed, as described hereinbelow. a. Tolling of the Applicable Shot Clock Due to Incompleteness and/or Applicant Error Page 20 of 28 As provided for within Section 17.05 B. 1. hereinabove, in the event that the Development Services Director deems an application incomplete, the Director shall send a Notice of Incompleteness to the applicant to notify the applicant that its application is incomplete and/or contains material errors, and shall reasonably identify the missing information and/or documents and/or the error(s) in the application. If the Director sends a Notice of Incompleteness as described hereinabove, the applicable shot clock shall automatically be tolled, meaning that the applicable shot clock period within which the Town is required to render a flnal decision upon the application shall immediately cease running, and shall not resume running, unless and until the Town receives a responsive submission from the applicant. If and when the applicant thereafter submits additional information in an effort to complete its application, or cure any identifled defect(s), then the shot clock shall automatically resume running, but shall not be deemed to start running anew. The applicable shot clock period shall, once again, be tolled if the Director thereafter provides a second notice that the application is still incomplete or defective, despite any additional submissions which have been received by the Town, from the applicant, up to that point. b. Shot Clock Extension by Mutual Agreement The Town shall be free to extend any applicable shot clock period by mutual agreement with any respective applicant. This discretion on the part of the Town shall include the Town’s authority to request, at any time, and for any period of time the Town may deem reasonable or appropriate under the circumstances, consent from a respective applicant to extend the applicable shot clock period to enable the Town, the applicant, or any relevant third party, to complete any type of undertaking or task related to the review, analysis, processing, and determination of the particular application, which is then pending before the Town, to the extent that any such Undertaking, task, or review is consistent with, or reasonably related to, compliance with any federal, state, or local law and/or the requirements of any provision of the Town Code, including but not limited to this Chapter. 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 Page 21 of 28 of any applicable shot clock by afflrmatively indicating its consent either in writing or by afflrmatively indicating its consent on the record at any public hearing or public meeting. The Town shall be permitted to reasonably rely upon a representative of the applicant indicating that they are authorized to grant such consent on behalf of the respective applicant, on whose behalf they have been addressing the Town within the review process. c. Reasonable Delay Extensions of Shot Clock Periods The Town recognizes that there may be situations wherein, due to circumstances beyond the control of the Town and/or the Town Council, the review and issuance of a flnal decision upon an application for a wireless communication facility cannot reasonably be completed within the application shot clock periods delineated within Section 17.05 B hereinabove. If, despite the exercise of due diligence by the Town, the determination regarding a speciflc application cannot reasonably be completed within the applicable shot clock period, the Town shall be permitted to continue and complete its review and issue its determination at a date beyond the expiration of the applicable period, if the delay of such flnal decision is due to circumstances including, but not limited to, those enumerated hereinbelow, each of which shall serve as a reasonable basis for a reasonable delay of the applicable shot clock period. i. In the event that the rendering of a flnal decision upon an application under this Chapter is delayed due to natural and/or unnatural events and/or forces which are not within the control of the Town, such as the unavoidable delays experienced in government processes due to the COVID 19 pandemic, and/or mandatory compliance with any related federal or state government orders issued in relation thereto, such delays shall constitute reasonable delays which shall be recognized as acceptable grounds for extending the period for review and the rendering of flnal determinations beyond the period allotted under the applicable shot clock. ii. In the event that applicant tenders eleventh-hour submissions to the Town in the form of (a) expert reports, (b) expert materials, and/or (c) materials which require a signiflcant period for review due either to their complexity or the sheer volume of materials which an applicant has chosen to provide to the Town at such Page 22 of 28 late point in the proceedings, the Town shall be afforded a reasonable time to review such late-submitted materials. If reasonably necessary, the Town shall be permitted to retain the services of an expert consultant to review any late-submitted expert reports which were provided to the Town, even if such review or services extend beyond the applicable shot clock period, so long as the Town completes such review and retains and secures such expert services within a reasonable period of time thereafter and otherwise acts with reasonable diligence in completing its review and rendering its flnal decision. C. Review and Processing of Applications 1. Conformity to the following shall be considered in review of all applications: a. The application is consistent with the objectives of this ordinance. b. The height of the proposed tower. c. The adequacy of the proposed site, considering such factors as the sufficiency of the size of the site to comply with the established criteria, the configuration of the site, and the extent to which the site is formed by logical boundaries (e.g., topography, natural features, streets, relationship of adjacent uses, etc.) that provide for the ability to comply with the provisions of this ordinance. d. The extent to which the proposal responds to the impact of the proposed development on adjacent land uses, especially in terms of visual impact. e. The extent to which the proposed telecommunications facility is camouflaged (i.e., use of stealth technology). f. The extent to which the proposed facility is integrated with existing structures (i.e., buildings, signs, utility poles, etc.) with particular reference to design characteristics that have the effect of reducing or eliminating visual obtrusiveness. g. An applicant's compliance with all town requirements with respect to previous applications. 2. Review of Administrative Applications. Page 23 of 28 a. Administrative applications will be reviewed by staff using the Town’s standard permit plan review processes. Applications for new towers shall provide staff with the same information as required in Section 17.05 C 3 for Public Review Applications.b. Applications for mobile or temporary wireless facilities which remain in place for more than seven (7) consecutive days must submit a request for a Temporary Use Permit as provided in Section 2.03 of the Zoning Ordinance. 3. Review and Processing of Public Review Applications a. Applications which require public hearing review and approval will be processed using the requirements listed in Section 2.02 of the Town’s Zoning Ordinance for Special Use Permits. b. In addition to the factors listed in 7.05 C 1 for review of applications, public review applications will also be subject to the standards for consideration of special use permit applications pursuant to Chapter 2, Section 2.02 of this Zoning Ordinance c. Availability of Suitable Existing Towers, Other Structures, or Alternative Technology: No new tower shall be permitted unless the applicant demonstrates to the reasonable satisfaction of the Town Council that no existing tower, structure or alternative technology that does not require the use of towers or structures can accommodate the applicant's a proposed antenna. An applicant shall submit information requested by the Town Council related to the availability of suitable existing towers, other structures or alternative technology. Evidence submitted to demonstrate that no existing tower, structure or alternative technology can accommodate the applicant's proposed antenna may consist of any of the following: i. No existing towers or structures are located within the geographic area, which meet applicant's engineering requirements. ii. Existing towers or structures are not of sufflcient height to meet applicant's engineering requirements. iii. Existing towers or structures do not have sufflcient structural strength to support applicant's proposed antenna and related equipment. iv. The applicant's proposed antenna would cause electromagnetic interference with the antenna on the existing towers or structures, or the antenna on the existing Page 24 of 28 towers or structures would cause interference with the applicant's proposed antenna. v. The fees, costs, or contractual provisions required by the owner in order to share an existing tower or structure or to adapt an existing tower or structure for sharing are unreasonable. Costs exceeding new tower development are presumed to be unreasonable. vi. The applicant demonstrates that there are other limiting factors that render existing towers and structures unsuitable. vii. The applicant demonstrates that an alternative technology that does not require the use of towers or structures, such as a cable micro cell network using multiple low-powered transmitters/receivers attached to a wire line system, is unsuitable. Costs of alternative technology that exceed new tower or antenna development shall not be presumed to render the technology unsuitable. viii. If the applicant asserts a claim that a proposed facility is necessary to remedy one or more existing signiflcant gaps in an identifled wireless carrier’s personal wireless services, the Council may require the applicant to provide drive-test generated coverage maps, as opposed to computer-generated coverage maps, for each frequency at which the carrier provides personal wireless services, to show signal strengths in bins of three (3) DBM each, to enable the Council to assess the existence of such signiflcant gaps accurately, and/or whether the carrier possesses adequate coverage within the geographic area which is the subject of the respective application. 4. In granting a permit, the Town may impose conditions to the extent such conditions are necessary to minimize any adverse effect of the proposed tower on adjoining properties. 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 Page 25 of 28 abandoned antenna or tower within said ninety (90) day period shall be grounds to remove the tower or antenna at the owner's expense. If there are two or more users of a single tower, then this provision shall not become effective until all users cease using the tower for the prescribed period. B. State or Federal Requirements: All towers must meet or exceed current standards and regulations of the FAA, the FCC, and any other agency of the state or federal government with the authority to regulate towers and antennas. If such standards and regulations are changed, then the owners of the towers and antennas governed by this chapter shall bring such towers and antennas into compliance with such revised standards and regulations within six (6) months of the effective date of such standards and regulations, unless a different compliance schedule is mandated by the controlling state or federal agency. Failure to bring towers and antennas into compliance with such revised standards and regulations shall constitute grounds for the removal of the tower or antenna at the owner's expense. To ensure continuing compliance with such limits by all owners and/or operators of wireless communication facilities within the Town, all owners, and operators of wireless communication facilities shall submit reports as required by this section. As set forth hereinbelow, the Town may additionally require, at the owner and/or operator’s expense, independent veriflcation of the results of any analysis set forth within any reports submitted to the Town by the owner and/or operator. 1. Certiflcation of Compliance with Applicable RF Radiation Limits Within forty-flve (45) days of initial operation or a substantial modiflcation of a wireless communication facility, the owner and/or operator of each telecommunications antenna shall submit to the Development Services Director a written certiflcation by a licensed professional engineer, sworn to under penalties of perjury, that the facility’s radio frequency emissions comply with the limits codifled within 47 CFR §1.1310(e)(1), Table 1 Sections (i) and (ii), as made applicable pursuant to 47 CFR §1.1310(e)(3). 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. Page 26 of 28 A report of these measurements and the engineer’s flndings with respect to compliance with the FCC’s Maximum Permissible Exposure (MPE) limits shall be submitted to the Development Services Director. If the report shows that the facility does not comply with applicable limits, then the owner and/or operator shall cease operation of the facility until the facility is brought into compliance with such limits. Proof of compliance shall be a certiflcation provided by the engineer who prepared the original report. The Town may require, at the applicant’s expense, independent veriflcation of the results of the analysis. 2. Random RF Radiofrequency Testing At the operator’s expense, the Town may retain an engineer to conduct random unannounced RF Radiation testing of such facilities to ensure the facility’s compliance with the limits codifled within 47 CFR §1.1310(e)(1) et seq. The Town may cause such random testing to be conducted as often as the Town may deem appropriate. However, the Town may not require the owner and/or operator to pay for more than one test per facility per calendar year unless such testing reveals that one or more of the owner and/or operator’s facilities are exceeding the limits codifled within 47 CFR §1.1310(e)(1) et seq., in which case the Town shall be permitted to demand that the facility be brought into compliance with such limits, and to conduct additional tests to determine if, and when, the owner and/or operator thereafter brings the respective facility and/or facilities into compliance. If the Town at any time flnds that there is good cause to believe that a wireless communication facility and/or one or more of its antennas are emitting RF radiation at levels in excess of the legal limits permitted under 47 CFR §1.1310(e)(1) et seq., then a hearing shall be scheduled before the Town’s Zoning Administrator at which the owner and/or operator of such facility shall be required to show cause why any and all permits and/or approvals issued by the Town for such facility and/or facilities should not be revoked, and a flne should not be assessed against such owner and/or operator. The owner and/or operator shall be afforded not less than two (2) weeks' written notice of the hearing. Page 27 of 28 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 many issue a civil citation for non-compliance as provided in Section 1-8-3 of the Town Code. In the event that an owner or operator of one or more wireless communication facility is found to violate subparagraph 1. hereinabove three or more times within any flve (5) year period, then in addition to revoking any zoning approvals for the facilities which were violating the limits codifled in 47 CFR §1.1310(e)(1) et seq., the Town Council shall render a determination within which it shall deem the owner/operator prohibited from flling any applications for any new wireless personal services facilities within the Town for a period of flve (5) years. C. Building Codes; Safety Standards: To ensure the structural integrity of towers, the owner of a tower shall ensure that it is maintained in compliance with standards contained in applicable state or local building codes and the applicable standards for towers that are published by the 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. Page 28 of 28 D. Wireless facilities and all related equipment must comply with all noise regulations and shall not exceed such regulations, either individually or collectively. Backup generators shall only be operated during power outages and/or for testing and maintenance purposes between the hours of 9:00 a.m. and 4:00 p.m. Section 17.07 Nonconforming Uses A. Not Expansion of Nonconforming Use: Towers that are constructed, and antennas that are installed, in accordance with the provisions of this chapter shall not be deemed to constitute the expansion of a nonconforming use or structure. B. Pre-existing towers: Pre-existing towers shall be allowed to continue their usage as they presently exist. Routine maintenance (including replacement with a new tower of like construction and height) shall be permitted on such preexisting towers. New construction other than routine maintenance on a preexisting tower shall comply with the requirements of this chapter. C. Rebuilding Damaged or Destroyed Nonconforming Towers or Antennas: Notwithstanding other provisions of this chapter, bona flde nonconforming towers or antennas that are damaged or destroyed may be rebuilt without having to flrst obtain a special use permit and without having to meet the separation requirements specifled in Sections 17.03. The type, height, and location of the tower onsite shall be of the same type and intensity as the original facility approval; provided, however, that any destroyed lattice or guyed tower shall be replaced with a monopole structure only. Building permits to rebuild the facility shall comply with the then applicable building codes and shall be obtained within ninety (90) days from the date the facility is damaged or destroyed. If no permit is obtained or if said permit expires, the tower or antenna shall be deemed abandoned as specifled in Section 17.16 A. Chapter 17 Wireless Telecommunications Towers and Antennas Section 17.01 Purpose The purpose of this ordinance is to establish general guidelines for the siting of wireless communications towers and antennas. The goals of this ordinance are to: (1) protect residential areas and land uses from potential adverse impacts of towers and antennas; (2) encourage the location of towers in nonresidential areas; (3) minimize the total number of towers throughout the community; (4) strongly encourage the joint use of new and existing tower sites as a primary option rather than construction of additional single-use towers; (5) encourage users of towers and antennas to locate them, to the extent possible, in areas where the adverse impact on the community is minimal; (6) encourage users of towers and antennas to conflgure them in a way that minimizes the adverse visual impact of the towers and antennas through careful design, siting, landscape screening, and innovative camoufiaging techniques; (7) enhance the ability of the providers of telecommunications services to provide such services to the community quickly, effectively, and efficiently; (8) consider the public health and safety of communication towers; and (9) avoid potential damage to adjacent properties from tower failure through engineering and careful siting of tower structures. In furtherance of these goals, Town of Fountain Hills shall give due consideration to the Town of Fountain Hills General Plan, the Town of Fountain Hills Zoning Ordinance, existing land uses, and environmentally sensitive areas in approving sites for the location of towers and antennas. Section 17.02 Definitions As used in this ordinance, the following terms shall have the meanings set forth below: Alternative Tower Structure: means man-made trees, clock towers, bell steeples, light poles and similar alternative-design mounting structures that camoufiage or conceal the presence of antennas or towers. Antenna: means any exterior transmitting or receiving device mounted on a tower, building or structure and used in communications that radiates or captures electromagnetic waves, digital signals, analog signals, radio frequencies (excluding radar signals), wireless telecommunications signals or other communication signals. Backhaul network: means the lines that connect a provider's towers/cell sites to one or more cellular telephone switching offices, and/or long distance providers, or the public switched telephone network. Existing Structure: means light poles, power poles, chimneys, billboards, and other similar structures, which are placed, within the Town at the time of adoption of this Chapter, except existing buildings. FAA: means the Federal Aviation Administration. FCC: means the Federal Communications Commission. Height: means, when referring to a tower or other structure, the vertical distance measured from the natural grade level to the highest point of the structure directly above the natural grade when such structure is not located in a platted subdivision. If the structure is located in a platted subdivision, the height shall be the vertical distance measured from the flnished grade as shown on the subdivision grading plans or flnished grade as shown on the individual lot's grading plans, (whichever is lower), to the highest point of the structure directly above the flnished grade. In the event that terrain problems prevent an accurate determination of height, the Zoning Administrator shall rule as to height and appeal from that decision shall be to the Board of Adjustment. Pre-existing towers and preexisting antennas: means any tower or antenna for which a building permit has been properly issued prior to the effective date of this ordinance, including permitted towers or antennas that have not yet been constructed so long as such approval is current and not expired. Tower: means any structure that is designed and constructed primarily for the purpose of supporting one or more antennas for telephone, radio and similar communication purposes, including self-supporting lattice towers, guyed towers, or monopole towers. The term includes radio and television transmission towers, microwave towers, common-carrier towers, cellular telephone towers, alternative tower structures, and the like. The term also includes the structure and any support thereto. Section 17.03 Applicability A. New Towers and Antennas: All new towers or antennas in Town of Fountain Hills shall be subject to these regulations. B. Exceptions: 1. Amateur Radio Station Operators/Receive Only Antennas. This ordinance shall not govern any tower, or the installation of any antenna, that is under the maximum building height of the zoning district in which such structure is located and which is owned and operated by a federally-licensed amateur radio station operator or is used exclusively for receive only operations. 2. Preexisting Towers or Antennas. Legally established preexisting towers and preexisting antennas shall not be required to meet the requirements of this ordinance, other than the requirements of Sections 17.04(F) & (G). 3. AM Array. For purposes of implementing this ordinance, an AM array, consisting of one or more tower units and supporting ground system which functions as one AM broadcasting antenna, shall be considered one tower. Measurements for setbacks and separation distances shall be measured from the outer perimeter of the towers included in the AM array. Additional tower units may be added within the perimeter of the AM array by right. Section 17.04 General Requirements A. Principal or Accessory Use: Antennas and towers may be considered either principal or accessory uses. A different existing use of an existing structure on the same lot shall not preclude the installation of an antenna or tower on such lot. B. Lot Size: For purposes of determining whether the installation of a tower or antenna complies with district development regulations, including but not limited to setback requirements, lot-coverage requirements, and other such requirements, the dimensions of the entire lot shall control, even though the antennas or towers may be located on leased parcels within such lot. C. Inventory of Existing Sites: Each applicant for an antenna and/or tower shall provide to the Community Development Director an inventory of its existing towers, antennas, or sites approved for towers or antennas, that are either within the jurisdiction of the Town of Fountain Hills or within one mile of the border thereof, including speciflc information about the location, height, and design of each tower. Each applicant shall also provide a one-year build-out plan for all other wireless communications facilities within the Town. The Community Development Director may share such information with other applicants applying for administrative approvals or special use permits under this ordinance or with other organizations seeking to locate antennas within the jurisdiction of Town of Fountain Hills, provided, however that the Community Development Director is not, by sharing such information, in any way representing or warranting that such sites are available or suitable. D. Aesthetics: Towers and antennas shall meet the following requirements: 1. Towers shall, subject to any applicable standards of the FAA, be painted a neutral color so as to reduce visual obtrusiveness. 2. At a tower site, the design of the buildings and related structures shall, to the extent possible, use materials; colors, textures, screening, and landscaping that will blend them into the natural setting and surrounding buildings. 3. If an antenna is installed on a structure other than a tower, the antenna and supporting electrical and mechanical equipment must be of a neutral color that is identical to, or closely compatible with, the color of the supporting structure so as to make the antenna and related equipment as visually unobtrusive as possible. E. Lighting: Towers shall not be artiflcially lighted, unless required by the FAA or other applicable authority. If lighting is required, the lighting alternatives and design chosen must cause the least disturbance to the surrounding views. F. State or Federal Requirements: All towers must meet or exceed current standards and regulations of the FAA, the FCC, and any other agency of the state or federal government with the authority to regulate towers and antennas. If such standards and regulations are changed, then the owners of the towers and antennas governed by this chapter shall bring such towers and antennas into compliance with such revised standards and regulations within six (6) months of the effective date of such standards and regulations, unless a different compliance schedule is mandated by the controlling state or federal agency. Failure to bring towers and antennas into compliance with such revised standards and regulations shall constitute grounds for the removal of the tower or antenna at the owner's expense. G. Building Codes; Safety Standards: To ensure the structural integrity of towers, the owner of a tower shall ensure that it is maintained in compliance with standards contained in applicable state or local building codes and the applicable standards for towers that are published by the Electronic Industries Association, as amended from time to time. If, upon inspection, the Town of Fountain Hills concludes that a tower fails to comply with such codes and standards and constitutes a danger to persons or property, then upon notice being provided to the owner of the tower, the owner shall have thirty (30) days to bring such tower into compliance with such standards. Failure to bring such tower into compliance within said thirty (30) days shall constitute grounds for the removal of the tower or antenna at the owner's expense. H. Measurement: For purposes of measurement, tower setbacks and separation distances shall be calculated and applied to facilities located in the Town of Fountain Hills irrespective of municipal and county jurisdictional boundaries. I. Not Essential Services: Towers and antennas shall be regulated and permitted pursuant to this chapter and shall not be regulated or permitted as essential services, public utilities, or private utilities. J. Franchises: Owners and/or operators of towers or antennas shall certify that all franchises required by law for the construction and/or operation of a wireless communication system in the Town of Fountain Hills have been obtained and shall flle a copy of all required franchises with the Community Development Director. K. Public Notice: For purposes of this chapter, any special use request shall require public notice pursuant to Section 2.02(C) of this Zoning Ordinance except that the notice required shall include posting of the property, and mailing to all property owners within 300 feet of the proposed use, and publication in a newspaper of general circulation regardless of any expression to the contrary in Section 2.02. L. Signs: No signs shall be allowed on an antenna or tower. M. Buildings and Support Equipment: Buildings and support equipment associated with antennas or towers shall comply with the requirements of Section 17.08. N. Co-location and Multiple Antenna/Tower Plan: The Town of Fountain Hills encourages tower and antenna users to submit a single application for approval of multiple towers and/or antenna sites and to submit applications, which utilize co-location with an existing wireless telecommunications provider. Applications for approval of multiple sites or for co-location with an existing provider shall be given priority in the review process. O. Security fencing: Towers shall be enclosed by security fencing not less than six (6) feet in height and no more than eight (8) feet in height, shall be constructed of a block or masonry, and shall be equipped with an appropriate anti-climbing device; provided however, that the Town Council may waive such requirements, as it deems appropriate. P. Landscaping: The following requirements shall govern the landscaping surrounding towers; provided, however, that the Town Council may waive such requirements if the goals of this chapter would be better served thereby. 1. Tower facilities shall be landscaped with a buffer of plant materials that effectively screens the view of the tower compound from residential property. The standard buffer shall consist of a landscaped strip at least four (4) feet wide outside the perimeter of the compound. 2. In locations where the visual impact of the tower would be minimal, the landscaping requirement may be reduced or waived. 3. Existing mature plant growth and natural landforms on the site shall be preserved to the maximum extent possible. Section 17.05 Permitted Uses A. General: The uses listed in this Section are deemed to be permitted uses and shall not require administrative approval or a special use permit. B. Permitted Uses: The following uses are speciflcally permitted: 1. Antennas or towers located on property owned, leased, or otherwise controlled by the Town of Fountain Hills provided a license or lease authorizing such antenna or tower has been approved by the Town of Fountain Hills. No such license or lease shall be issued for a tower located within three hundred (300) feet of any residentially zoned property until a public hearing has been held at a regular or special Town Council meeting. 2. Alternative tower structures when such structures and their accompanying equipment are appropriately blended into the surrounding terrain, are within the height limitations of the underlying zoning district and are not nearer than three hundred (300) feet to residentially zoned and platted property. Section 17.06 Special Use Permits A. General: The following provisions shall govern the issuance of special use permits for towers or antennas by the Town Council: 1. If the tower or antenna is not a permitted use under Section 17.05 of this chapter, then a special use permit shall be required for the construction of a tower or the placement of an antenna in all zoning districts. 2. Applications for special use permits under this Section shall be subject to the procedures and requirements of Chapter 2, Section 2.02, of this Zoning Ordinance, except as modifled in this Section. 3. In granting a special use permit, the Town Council may impose conditions to the extent such conditions are necessary to minimize any adverse effect of the proposed tower on adjoining properties. 4. Any information of an engineering nature that the applicant submits, whether civil, mechanical, or electrical, shall be certifled by an Arizona Licensed Professional Engineer. 5. An applicant for a special use permit shall submit the information described in this section and a nonrefundable fee established pursuant to Section 2.02(H) of this Zoning Ordinance. 6. A Special Use Permit issued under this Chapter shall be conditioned upon veriflcation by the Town Engineer or designee that such tower structure is structurally sound. Such veriflcation shall be received by the applicant prior to submission. B. Towers: 1. Information required. In addition to any information required for applications for special use permits pursuant to Chapter 2, Section 2.02 of this Zoning Ordinance, applicants for a special use permit for a tower shall submit the following information: a. A site Plan as required in Section 2.04 plus zoning, General Plan classiflcation of the site and all properties within the applicable separation distances set forth in Section 17.07(B), adjacent roadways, proposed means of access, elevation drawings of the proposed tower and any other structures, and other information deemed by the Development Services Director to be necessary to assess compliance with this chapter. b. The setback distance between the proposed tower and the nearest residential unit and residentially zoned properties. c. The separation distance from other towers described in the inventory of existing sites submitted pursuant to Section 17.04(C) shall be shown on an updated site plan or map. The applicant shall also identify the type of construction of the existing tower(s) and the owner/operator of the existing tower(s), if known. d. Method of fencing, and flnished color and, if applicable, the method of camoufiage and illumination. e. A description of compliance with Sections 17.04(C), (D), (E), (F), (G), (J), (L), and (M), (N), (O) and (P), 17.07(A), 17.07(B) and all applicable federal, state or local laws. f. A notarized statement by the applicant as to whether construction of the tower will accommodate collocation of additional antennas for future users. g. Identiflcation of the entities providing the backhaul network for the tower(s) described in the application and other cellular sites owned or operated by the applicant in the municipality. h. A description of the suitability of the use of existing towers, other structures or alternative technology not requiring the use of towers or structures to provide the services to be provided through the use of the proposed new tower. i. A description of the feasible alternative location(s) of future towers or antennas within the Town of Fountain Hills based upon existing physical, engineering, technological or geographical limitations in the event the proposed tower is erected. j. A statement of compliance with Federal Communications Commission (FCC) Radio Frequency (RF) exposure standards. 2. Noise: No permit shall be issued for any facility, which generates a noise level greater than flfty decibels (50 db) as measured at the edge of the property upon which such facility is sited. 3. Factors Considered in Granting Special Use Permits for Towers: In addition to any standards for consideration of special use permit applications pursuant to Chapter 2, Section 2.02 of this Zoning Ordinance, the Town Council shall consider the following factors in determining whether to issue a special use permit, although the Town Council may waive or reduce the burden on the applicant of one or more of these criteria if the Town Council concludes that the goals of this ordinance are better served thereby: a. Height of the proposed tower; b. Proximity of the tower to residential structures and residentially zoned district boundaries; c. Nature of uses on adjacent and nearby properties; d. Surrounding topography; e. Surrounding tree coverage and foliage; f. Design of the tower, with particular reference to design characteristics that have the effect of reducing or eliminating visual obtrusiveness. g. Proposed ingress and egress; and h. Availability of suitable existing towers, other structures, or alternative technologies not requiring the use of towers or structures, as discussed in Section 17.06(B)(4) of this chapter. 4. Availability of Suitable Existing Towers, Other Structures, or Alternative Technology: No new tower shall be permitted unless the applicant demonstrates to the reasonable satisfaction of the Town Council that no existing tower, structure or alternative technology that does not require the use of towers or structures can accommodate the applicant's a proposed antenna. An applicant shall submit information requested by the Town Council related to the availability of suitable existing towers, other structures or alternative technology. Evidence submitted to demonstrate that no existing tower, structure or alternative technology can accommodate the applicant's proposed antenna may consist of any of the following: a. No existing towers or structures are located within the geographic area, which meet applicant's engineering requirements. b. Existing towers or structures are not of sufficient height to meet applicant's engineering requirements. c. Existing towers or structures do not have sufficient structural strength to support applicant's proposed antenna and related equipment. d. The applicant's proposed antenna would cause electromagnetic interference with the antenna on the existing towers or structures, or the antenna on the existing towers or structures would cause interference with the applicant's proposed antenna. e. The fees, costs, or contractual provisions required by the owner in order to share an existing tower or structure or to adapt an existing tower or structure for sharing are unreasonable. Costs exceeding new tower development are presumed to be unreasonable. f. The applicant demonstrates that there are other limiting factors that render existing towers and structures unsuitable. g. The applicant demonstrates that an alternative technology that does not require the use of towers or structures, such as a cable micro cell network using multiple low- powered transmitters/receivers attached to a wire line system, is unsuitable. Costs of alternative technology that exceed new tower or antenna development shall not be presumed to render the technology unsuitable. Section 17.07 Minimum Setbacks and Separation A. Setbacks: The following setback requirements shall apply to all towers; provided, however, that the Town Council may reduce the standard setback requirements if the goals of this chapter would be better served thereby: 1. Towers must be set back a distance equal to at least one hundred percent (100%) of the height of the tower from any adjoining lot line. Provided, however, that separation distances from residential uses shall be in accordance with Table 1 set forth below. 2. Accessory buildings must satisfy the minimum zoning district setback requirements. B. Separation: The following separation requirements shall apply to all towers and antennas provided, however, that the Town Council may reduce the standard separation requirements if the goals of this chapter would be better served thereby. 1. Separation from off-site uses/designated areas. a. Tower separation shall be measured from the base of the tower to the lot line of the off-site uses and/or designated areas as specifled in Table 1, except as otherwise provided in Table 1. b. Separation requirements for towers shall comply with the minimum standards established in Table 1. Table 1. Separation Requirements from Offsite Uses/Areas Off-site Use/Designated Area Separation Distance Single-family or duplex residential units1 200 feet or 300% of tower height, whichever is greater Off-site Use/Designated Area Separation Distance Vacant single-family or duplex residentially zoned land which is either platted or has preliminary plat approval which is not expired 200 feet or 300% of tower height, whichever is greater2 Vacant unplatted residentially zoned lands3 100 feet or 100% of tower height, whichever is greater Existing multifamily residential units greater than duplex units 100 feet or 100% of tower height, whichever is greater Nonresidentially zoned lands or nonresidential uses None, only setbacks apply 1 Includes modular homes and mobile homes used for living purposes. 2 Separation measured from base of tower to closest building setback line. 3 Includes any unplatted residential use properties without a valid preliminary subdivision plan or valid development plan and any multifamily residentially zoned land greater than a duplex. 2. Separation distances between towers: Separation distances between towers shall be applicable for and measured between the proposed tower and preexisting towers. The separation distances shall be measured by drawing or following a straight line between the base of the existing tower and the proposed base, pursuant to a site plan, of the proposed tower. The separation distances (listed in linear feet) shall be as shown in Table number 2. Table 2. Separation Distances between Towers Monopole 65 ft. in height or greater Monopole less than 65 ft. in height but greater than 40 ft. in height Monopole less than 40 ft. in height Monopole 65 ft. in height or greater 2,000 feet 1,500 feet 1,000 feet Monopole 65 ft. in height or greater Monopole less than 65 ft. in height but greater than 40 ft. in height Monopole less than 40 ft. in height Monopole less than 65 ft. in height but greater than 40 ft. in height 1,500 feet 1,500 feet 1,000 feet Monopole less than 40 ft. in height 1,000 feet 1,000 feet 750 feet Section 17.08 Buildings or Other Equipment Storage A. Antennas Mounted on Structures or Rooftops: The equipment cabinet or structure used in association with antennas shall comply with the following: 1. The cabinet or structure shall not contain more than one hundred-twenty (120) square feet of gross fioor area or be more than eight (8) feet in height and shall be located on the ground. 2. Equipment storage buildings or cabinets shall comply with all applicable building codes. B. Antennas Mounted on Utility Poles, Light Poles, or Towers: The equipment cabinet or structure used in association with antennas shall be located in accordance with the following: 1. In residential districts, the equipment cabinet or structure may be located: a. In a required front yard or required street side yard provided the cabinet structure is no greater than three and one-half (3.5) feet in height or twenty (20) square feet of gross fioor area and the cabinet/structure is located a minimum of three (3) feet from all lot lines. The cabinet/structure shall be screened by sight obscuring landscaping which obscures at least ninety-flve percent (95%) of the structure at planting and throughout the duration of the cabinet or structure’s existence with an ultimate height not to exceed forty-two (42) inches. b. In a required rear yard, provided the cabinet or structure is no greater than flve (5) feet in height or one hundred-twenty (120) square feet in gross fioor area. The cabinet/structure shall be screened by sight obscuring landscaping which obscures at least ninety-flve percent (95%) of the structure at planting and throughout the duration of the cabinet or structure’s existence with an ultimate height of six (6) feet. c. The entry or access side of a cabinet or structure shall be gated by a solid, sight- obscuring gate that is separate from the cabinet or structure. 2. In commercial or industrial districts the equipment cabinet or structure shall be no greater than fourteen (14) feet in height or three hundred (300) square feet in gross fioor area. The structure or cabinet shall be screened by sight-obscuring landscaping with an ultimate height of sixteen (16) feet and a planted height of at least six (6) feet. The entry or access side of a cabinet or structure shall be gated by a solid, sight-obscuring gate that is separate from the cabinet or structure. Such access way shall not face residentially zoned property. C. Modiflcation of Building Size Requirements: The requirements of Sections 17.08(A) through (C) may be modifled by the Town Council in the case of uses permitted by special use to encourage collocation. Section 17.09 Co-Location A. Good Faith: Applicants and permittees shall cooperate and exercise good faith in co-locating wireless telecommunications facilities on the same support structures or site, if the Town so requests. Good faith shall include sharing technical information to evaluate the feasibility of co- location, and may include negotiations for erection of a replacement support structure to accommodate co-location. A competitive confiict to co-location or flnancial burden caused by sharing such information normally will not be considered as an excuse to the duty of good faith. B. Third Party Technical Review: In the event a dispute arises as to whether a permittee has exercised good faith in accommodating other users, the Town may require the applicant to obtain a third party technical study at the applicant’s expense. The Town may review any information submitted by the applicant and permittee(s) in determining whether good faith has been exercised. C. Exceptions: No co-location may be required where the shared use would or does result in signiflcant interference in the broadcast or reception capabilities of the existing wireless telecommunications facilities or failure of the existing wireless telecommunications facilities to meet federal standards for emissions. D. Violation; penalty: Failure to comply with co-location requirements when feasible may result in denial of a permit request or revocation of an existing permit. Section 17.10 Removal of Abandoned Antennas and Towers Any antenna or tower that is not operated for a continuous period of ninety (90) days shall be considered abandoned, and the owner of such antenna or tower shall remove the same within ninety (90) days of receipt of notice from the Town of Fountain Hills notifying the owner of such abandonment. Failure to remove an abandoned antenna or tower within said ninety (90) day period shall be grounds to remove the tower or antenna at the owner's expense. If there are two or more users of a single tower, then this provision shall not become effective until all users cease using the tower for the prescribed period. Section 17.11 Nonconforming Uses A. Not Expansion of Nonconforming Use: Towers that are constructed, and antennas that are installed, in accordance with the provisions of this chapter shall not be deemed to constitute the expansion of a nonconforming use or structure. B. Pre-existing towers: Pre-existing towers shall be allowed to continue their usage as they presently exist. Routine maintenance (including replacement with a new tower of like construction and height) shall be permitted on such preexisting towers. New construction other than routine maintenance on a preexisting tower shall comply with the requirements of this chapter. C. Rebuilding Damaged or Destroyed Nonconforming Towers or Antennas: Notwithstanding other provisions of this chapter, bona flde nonconforming towers or antennas that are damaged or destroyed may be rebuilt without having to flrst obtain a special use permit and without having to meet the separation requirements specifled in Sections 17.07(A) and 17.07(B). The type, height, and location of the tower onsite shall be of the same type and intensity as the original facility approval; provided, however, that any destroyed lattice or guyed tower shall be replaced with a monopole structure only. Building permits to rebuild the facility shall comply with the then applicable building codes and shall be obtained within ninety (90) days from the date the facility is damaged or destroyed. If no permit is obtained or if said permit expires, the tower or antenna shall be deemed abandoned as specifled in Section 17.10. The Fountain Hills Zoning Ordinance is current through Ordinance 23-06, and legislation passed through September 19, 2023. Disclaimer: The town clerk’s office has the official version of the Fountain Hills Zoning Ordinance. Users should contact the town clerk’s office for ordinances passed subsequent to the ordinance cited above. Town Website: www.fh.az.gov Hosted by Code Publishing Company, A General Code Company.