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HomeMy WebLinkAbout2026.1020.TCRS.AGENDA.PACKET NOTICE OF REGULAR MEETING OF THE TOWN COUNCIL Mayor Gerry M. Friedel Vice Mayor Gayle Earle Councilmember Peggy McMahon Councilmember Brenda J. Kalivianakis Councilmember Allen Skillicorn Councilmember Hannah Larrabee Councilmember Rick Watts TIME: WHEN: WHERE: 5:30 PM - REGULAR MEETING DOORS OPEN 15 MINUTES PRIOR TO THE START OF THE MEETING TUESDAY, OCTOBER 20, 2026 FOUNTAIN HILLS COUNCIL CHAMBERS 16705 E. AVENUE OF THE FOUNTAINS, FOUNTAIN HILLS, ARIZONA Councilmembers of the Town of Fountain Hills will attend either in person or by telephone conference call; a quorum of the Town’s various Commission, Committee or Board members may be in attendance at the Council meeting. Notice is hereby given that pursuant to A.R.S. §1-602.A.9, subject to certain specified statutory exceptions, parents have a right to consent before the State or any of its political subdivisions make a video or audio recording of a minor child. 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. PARTICIPATION IN PUBLIC MEETINGS Request to Comment Cards - To speak or submit written comments, a Request to Comment card is required. Cards must be completed and submitted to the Town Clerk before the meeting begins. Late or incomplete cards will not be accepted. A separate card is required for each agenda item. Agenda Items (Consent or Regular) - Request to Comment cards must include the agenda item number, whether the speaker is FOR or AGAINST the item, and whether the individual wishes to speak or submit written comments. Online Request to Comment cards may be submitted for regular agenda items only to either provide written comments or request to speak at the meeting. Online submissions must be received by 12:00 PM the day before the meeting at: https://www.fountainhillsaz.gov/publiccomment. Online comments are shared with the Town Council. Call to the Public requests are accepted in person only. Request to Comment cards must be submitted prior to the meeting commencing. Online submissions are not accepted for Call to the Public. Speaking Rules - Speakers may speak only when recognized by the Presiding Officer and are limited to three (3) minutes. All comments must be directed through the Presiding Officer, not to individual Councilmembers or staff. Request to Comment cards and submitted information are public records subject to public disclosure. NOTICE OF OPTION TO RECESS INTO EXECUTIVE SESSION Pursuant to A.R.S. §38-431.02, notice is hereby given to the members of the Town Council, and to the general public, that at this meeting, the Town Council may vote to go into executive session, which will not be open to the public, for legal advice and discussion with the Town's attorneys for legal advice on any item listed on the following agenda, pursuant to A.R.S.§38- 431.03(A)(3). Meeting Packet Page 1 of 301 1. CALL TO ORDER AND PLEDGE OF ALLEGIANCE 2. INVOCATION a. INVOCATOR: Pastor Keith Pavia, Christ's Church of Fountain Hills 3. ROLL CALL 4. STATEMENT OF PARTICIPATION Anyone wishing to address the Council regarding items listed on the agenda or during Call to the Public must completely fill out a Request to Comment card located in the back of the Council Chambers and hand it to the Town Clerk prior to the start of the meeting. Once the meeting has started, late requests to speak cannot be accepted. When your name is called, please approach the podium, speak into the microphone, and state your name and if you are a resident for the public record. Comments may not exceed three minutes. It is the policy of the Mayor and Council not to comment on items brought forth under "Call to the Public." However, staff can be directed to report back to the Council at a future date or to schedule items raised for a future Council agenda. To avoid disruption of the meeting, to maintain decorum, and provide for an equal and uninterrupted presentation, applause is not permitted, except during Proclamations, Awards, and Recognitions. All meeting participants must maintain proper decorum as specified in Section 6 of the Council Rules of Procedure. 5. SUMMARY OF CURRENT EVENTS BY TOWN MANAGER 6. PROCLAMATIONS, AWARDS, AND RECOGNITIONS a. RECOGNITION: Mayor's Business Spotlight: Phil's Filling Station b. RECOGNITION: Mayor's Veteran of the Month: Stephen Messel, US Army Ret. c. PROCLAMATION: October 18-24, 2026 as AZ Cities and Towns Week d. PROCLAMATION: October as Italian American Heritage Month e. PROCLAMATION: November 11 as Veterans Day f. PROCLAMATION: October 23-31, 2026 as Red Ribbon Week 7. PRESENTATIONS 8. CONSENT AGENDA All items listed are considered to be routine, non-controversial matters and will be enacted by one motion and vote of the Council. All motions and subsequent approvals of consent items will include all recommended staff stipulations unless otherwise stated. There will be no separate discussion of these items unless a Councilmember or member of the public so requests. If a Councilmember or member of the public wishes to discuss an item on the Consent Agenda, he/she may request so prior to the motion to accept the Consent Agenda or with notification to the Town Manager or Mayor prior to the date of the meeting for which the item was scheduled. The item will be removed from the Consent Agenda and considered as the first item on the Regular Agenda. The remaining items on the Consent Agenda will be enacted by one motion and vote of the Council. a. CONSIDERATION AND POSSIBLE ACTION: Approving the meeting minutes of the Town Council Regular Meeting of September 15, 2026. b. CONSIDERATION AND POSSIBLE ACTION: Approving Council recommending for approval, to the Arizona Department of Liquor Licenses and Control, the application for the Acquisition of Control of the Series 10 - Beer and Wine Store License for Walgreens #06060, located at 16415 E Palisades Blvd, Fountain Hills, Arizona 85268. c. CONSIDERATION AND POSSIBLE ACTION: Approving Resolution 2026-25, an Intergovernmental Agreement with Salt River Pima-Maricopa Indian Community for receipt of Proposition 202 Funding for the Town of Fountain Hills annual Music Fest. Meeting Packet Page 2 of 301 d. CONSIDERATION AND POSSIBLE ACTION: Approving Resolution 2026-23 IGA with the City of Mesa for Fleet Services for the Fire Department. 9. REGULAR AGENDA a. PUBLIC HEARING, with CONSIDERATION AND POSSIBLE ACTION: Relating to Ordinance 26-12 repealing and replacing Zoning Ordinance Chapter 17, Wireless Telecommunication Towers and Antennas. b. CONSIDERATION AND POSSIBLE ACTION: Regarding Ordinance 26-16, amending Subdivision Ordinance Article 3, Section 3.03 B adding a new standard to require plats of 50 acres or more to designate a location for future siting of wireless telecommunications facilities. c. DISCUSSION: Regarding a proposed Ordinance related to Sharia Law. d. DISCUSSION: Regarding Ordinance No. 26-17, amending the Fountain Hills Town Code, Chapter 16 (Streets and Sidewalks), by adding Article 16-4, Automated License Plate Readers. (Tabled at the October 6, 2026, Council meeting to the October 20, 2026, Council meeting. Presented at the request of Councilmember Skillicorn with the support of Councilmembers Larrabee and Watts). 10. CALL TO THE PUBLIC Pursuant to A.R.S. §38-431.01, or as prescribed by state law. 11. COUNCIL DISCUSSION/DIRECTION TO THE TOWN MANAGER Members of the Council may (1) request the Town Manager follow-up on matters raised at that meeting; (2) request one two- minute response to directed criticism raised any portion of the meeting; (3) a consensus of the Council may request the Town Manager to research a matter and report back to the Council. 12. FUTURE AGENDA ITEMS 13. ADJOURNMENT Dated this 13 day of October, 2026. Bevelyn J. Bender, Town Clerk The Town of Fountain Hills endeavors to make all public meetings accessible to persons with disabilities. Please call (480) 816-5100 (voice) or AZRelay 7-1-1 the Thursday prior to the meeting to request reasonable accommodation. Meeting Packet Page 3 of 301 ITEM 6.a. TOWN OF FOUNTAIN HILLS STAFF REPORT Meeting Date: 10/20/2026 Meeting Type: Town Council Regular Meeting Submitting Department: Administration Prepared by: Hannah Martin, Executive Assistant Staff Contact Information: Phone: 480-816-5107 Email: hmartin@fountainhillsaz.gov Request to Town Council Regular Meeting (Agenda Language) RECOGNITION: Mayor's Business Spotlight: Phil's Filling Station Staff Summary (background) NA 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) Suggested Motion FISCAL IMPACT Fiscal Impact: N/A Budget Reference: N/A Funding Source: N/A ATTACHMENTS 1. Business Spotlight October 2026- Phil's Filling Station SIGNED Meeting Packet Page 4 of 301 Meeting Packet Page 5 of 301 ITEM 6.b. TOWN OF FOUNTAIN HILLS STAFF REPORT Meeting Date: 10/20/2026 Meeting Type: Town Council Regular Meeting Submitting Department: Administration Prepared by: Hannah Martin, Executive Assistant Staff Contact Information: Phone: 480-816-5107 Email: hmartin@fountainhillsaz.gov Request to Town Council Regular Meeting (Agenda Language) RECOGNITION: Mayor's Veteran of the Month: Stephen Messel, US Army Ret. Staff Summary (background) This initiative honors local veterans who have served their country and continue to contribute to their community. 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) Suggested Motion FISCAL IMPACT Fiscal Impact: N/A Budget Reference: N/A Funding Source: N/A ATTACHMENTS 1. Oct Vet of Month_Stephen Messel_SIGNED Meeting Packet Page 6 of 301 Meeting Packet Page 7 of 301 ITEM 6.c. TOWN OF FOUNTAIN HILLS STAFF REPORT Meeting Date: 10/20/2026 Meeting Type: Town Council Regular Meeting Submitting Department: Administration Prepared by: Hannah Martin, Executive Assistant Staff Contact Information: Phone: 480-816-5107 Email: hmartin@fountainhillsaz.gov Request to Town Council Regular Meeting (Agenda Language) PROCLAMATION: October 18-24, 2026 as AZ Cities and Towns Week Staff Summary (background) The citizens of Fountain Hills depend on the Town to provide essential services that ensure safety, quality of life, and community well-being. Arizona’s cities and towns deliver vital programs such as public safety, utilities, parks, sanitation, libraries, and recreation that enrich daily life. Through participation and cooperation, citizens, community leaders, local businesses and municipal staff can work together to ensure that services provided by the Town of Fountain Hills can remain exceptional elements of the quality of life of our community. The Town of Fountain Hills joins with the Arizona League of Cities and Towns and fellow municipalities across Arizona in proclaiming October 18–24, 2026, as Arizona Cities & Towns Week. 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) Suggested Motion FISCAL IMPACT Fiscal Impact: N/A Budget Reference: N/A Funding Source: N/A ATTACHMENTS 1. 2026_CitiesAndTownsWeek_Proclamation_SIGNED Meeting Packet Page 8 of 301 Meeting Packet Page 9 of 301 ITEM 6.d. TOWN OF FOUNTAIN HILLS STAFF REPORT Meeting Date: 10/20/2026 Meeting Type: Town Council Regular Meeting Submitting Department: Administration Prepared by: Hannah Martin, Executive Assistant Staff Contact Information: Phone: 480-816-5107 Email: hmartin@fountainhillsaz.gov Request to Town Council Regular Meeting (Agenda Language) PROCLAMATION: October as Italian American Heritage Month Staff Summary (background) The Town of Fountain Hills honors and celebrates the rich heritage, traditions, and contributions of Italian Americans, whose dedication, talent, and cultural legacy have enriched both our nation and local community. Italian American Heritage Month provides an opportunity to reflect upon and commemorate the achievements of generations past and present who have preserved and promoted Italian cultural, social, and economic heritage. Accordingly, the month of October is hereby proclaimed as Italian American Heritage Month, and all residents are encouraged to join in celebrating these significant contributions. 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) Suggested Motion FISCAL IMPACT Fiscal Impact: N/A Budget Reference: N/A Funding Source: N/A ATTACHMENTS 1. Italian American Heritage Month - October 2026 SIGNED Meeting Packet Page 10 of 301 Meeting Packet Page 11 of 301 ITEM 6.e. TOWN OF FOUNTAIN HILLS STAFF REPORT Meeting Date: 10/20/2026 Meeting Type: Town Council Regular Meeting Submitting Department: Administration Prepared by: Hannah Martin, Executive Assistant Staff Contact Information: Phone: 480-816-5107 Email: hmartin@fountainhillsaz.gov Request to Town Council Regular Meeting (Agenda Language) PROCLAMATION: November 11 as Veterans Day Staff Summary (background) The Town of Fountain Hills proclaims November 11, 2026, as Veterans Day, honoring the men and women who have served in the United States Armed Forces. The proclamation expresses the community’s gratitude for their sacrifices in protecting our freedoms and calls on all residents to join in recognizing and respecting our veterans while upholding the values of liberty, justice, and unity. 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) Suggested Motion FISCAL IMPACT Fiscal Impact: N/A Budget Reference: N/A Funding Source: N/A ATTACHMENTS 1. 2026_VeteransDay_Proclamation_SIGNED Meeting Packet Page 12 of 301 Meeting Packet Page 13 of 301 ITEM 6.f. TOWN OF FOUNTAIN HILLS STAFF REPORT Meeting Date: 10/20/2026 Meeting Type: Town Council Regular Meeting Submitting Department: Administration Prepared by: Hannah Martin, Executive Assistant Staff Contact Information: Phone: 480-816-5107 Email: hmartin@fountainhillsaz.gov Request to Town Council Regular Meeting (Agenda Language) PROCLAMATION: October 23-31, 2026 as Red Ribbon Week Staff Summary (background) Red Ribbon Week, October 23–31, is the Nation’s largest drug prevention campaign, raising awareness about the dangers of alcohol and drug abuse and promoting healthy, drug-free lifestyles. This year, the Town recognizes the work of the East Valley Young Marines, a youth program fostering leadership, character, and drug-free living. The Town of Fountain Hills joins communities nationwide in encouraging residents, businesses, schools, and organizations to demonstrate their commitment by wearing and displaying red ribbons. This proclamation affirms the Town’s dedication to substance abuse prevention and a healthy community. The Mayor and Council will proclaim October 23–31, 2026, as Red Ribbon Week in Fountain Hills. 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) Suggested Motion FISCAL IMPACT Fiscal Impact: N/A Budget Reference: N/A Funding Source: N/A ATTACHMENTS 1. 2026_RedRibbonWeek_Proclamation_SIGNED Meeting Packet Page 14 of 301 Meeting Packet Page 15 of 301 ITEM 8.a. TOWN OF FOUNTAIN HILLS STAFF REPORT Meeting Date: 10/20/2026 Meeting Type: Town Council Regular Meeting Submitting Department: Prepared by: Angela Espiritu, Deputy Town Clerk Staff Contact Information: Phone: 480-816-5116 Email: aespiritu@fountainhillsaz.gov Request to Town Council Regular Meeting (Agenda Language) CONSIDERATION AND POSSIBLE ACTION: Approving the meeting minutes of the Town Council Regular Meeting of September 15, 2026. 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 Town Council Regular Meeting of September 15, 2026, as presented. Suggested Motion MOVE TO APPROVE the meeting minutes of the Town Council Regular Meeting of September 15, 2026, as presented. FISCAL IMPACT Fiscal Impact: N/A Budget Reference: N/A Funding Source: N/A ATTACHMENTS 1. 2026.0915.TCRS.MINUTES Meeting Packet Page 16 of 301 TOWN OF FOUNTAIN HILLS MINUTES OF THE REGULAR SESSION OF THE FOUNTAIN HILLS TOWN COUNCIL September 15, 2026 A Regular Session of the Fountain Hills Town Council was convened at 5:30 p.m. Members Present: Mayor Gerry M. Friedel: Vice Mayor Gayle Earle; Councilmember Rick Watts; Councilmember Peggy McMahon; Councilmember Brenda J. Kalivianakis; Councilmember Hannah Larrabee; Councilmember Allen Skillicorn Staff Present: Deputy Town Manager David Trimble; Town Attorney Jennifer Wright; Deputy Town Clerk Angela Padgett-Espiritu Meeting Packet Page 17 of 301 TOWN OF FOUNTAIN HILLS SEPTEMBER 15, 2026 REGULAR TOWN COUNCIL MEETING MINUTES Page 1 of 32 Post-Production File Town of Fountain Hills Regular Town Council Meeting Minutes September 15, 2026 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. * * * * * Meeting Packet Page 18 of 301 TOWN OF FOUNTAIN HILLS SEPTEMBER 15, 2026 REGULAR TOWN COUNCIL MEETING MINUTES Page 2 of 32 MAYOR FRIEDEL: I'd like to call this meeting to order. Would you please rise for the Pledge of Allegiance? 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. MAYOR FRIEDEL: And if you choose to remain standing, our invocator tonight will be Kerry Schneider, director of Promised Land preschool at Christ Church in Fountain Hills. SCHNEIDER: Good evening. Thank you for allowing me to come and pray for your Council meeting today. Lord God, creator of all, we thank you for the beautiful Town of Fountain Hills and for the people who call it home. We come before you and ask for your wisdom and guidance this evening. Give the Mayor, Councilmembers, and staff, clear minds, open hearts, and a spirit of cooperation to make decisions that will honor you , and be for the common good of the citizens they serve. We also ask you, Lord, to help everyone in attendance this evening to be respectful of differing opinions, realizing that we are all made in your image. It's in Jesus name we pray. Amen. MAYOR FRIEDEL: Thank you. Town Clerk, can I get a roll call, please? BENDER : Mayor Friedel. MAYOR FRIEDEL: Present. BENDER : Vice Mayor Earle. EARLE: Present. BENDER: Councilmember Skillicorn. SKILLIKORN: Present. BENDER : Councilmember Kalivianakis. KALIVIANAKIS: Here. BENDER: Councilmember Watts. WATTS: Present. BENDER: Councilmember Larrabee. Meeting Packet Page 19 of 301 TOWN OF FOUNTAIN HILLS SEPTEMBER 15, 2026 REGULAR TOWN COUNCIL MEETING MINUTES Page 3 of 32 LARRABEE: Here. BENDER: Councilmember McMahon. MCMAHON: Here. BENDER: We have a quorum. MAYOR FRIEDEL: Thank you. We'll move on now to our summary of current town events by our Deputy Town Manager, Dave Trimble. Dave? TRIMBLE: Thank you. Thank you, Mayor and Council. Good to be here, filling in for Rachael. This weekend was busy at Fountain Park. The community gathered on September 11th to remember the lives lost and those affected by the attacks of September 11th, for the 25th anniversary for that, Fountain Park also hosted the Fountain Hills High School Cross Country Invitational on Saturday, which brought approximately 1,000 runners to town. Also, work is nearing completion on the additional eastbound lane on Shea Boulevard between Palisades and Fountain Hills Boulevard. That segment has been closed recently on several nights, and -- but we expect the project to be complete within the next few weeks. So that's the good news there. Staff continues working with EPCOR on the Palisades Boulevard water main work, as well as current maintenance activity, and we'll continue to keep residents informed as we -- as that work moves forward. Looking forward, Ballet Arizona will present the Free Ballet Under the Stars at Fountain Park at 7 p.m. on Thursday, September 24th. Oktoberfest. Friday and Saturday, October 2nd and 3rd, at Centennial Pavilion is coming up. And finally, Make a Difference Day is also coming up on Saturday, October seventeenth, and the last day to sign up as a volunteer is Monday, October 12th. And that's it for me. MAYOR FRIEDEL: Thank you. We have a lot going on in our town. Okay. Now we'll move on to proclamations, awards, and recognitions. And I want to start out by recognizing our sheriff and MCSO. The Town of Fountain Hills continues to work closely with Maricopa County Sheriff's Meeting Packet Page 20 of 301 TOWN OF FOUNTAIN HILLS SEPTEMBER 15, 2026 REGULAR TOWN COUNCIL MEETING MINUTES Page 4 of 32 Office as partners in the shared commitment of public safety, service and responsiveness to our community. Following the Mayor's Visibility Initiative in 2025, which further enhanced MCO's -- MCSO's community engagement through partnerships with local businesses stakeholders. The increased communication and interactions with our residents helped drive public safety efforts. Community-led feedback on safety and quality of life issues helped direct the attention and resources of MCSO to address key concerns from our public. This collaboration drove patrol presence, in-person meetings with businesses and community groups, and highlighted areas where Fountain Hills residents needed extra support. The results of this partnership with the Town of Fountain Hills, the businesses and community leaders and the personnel at MCSO has been recognized by town, by our town government and internally at MCSO. Increased community engagement does not always show tangible results outside of the day-to-day interactions or closer close relationships it produces. However, in today's case, there is one area that provides a clear view showing the results of town government, law enforcement, and the business community coming together. The Fountain Hills Municipal Court reported total case firing -- filings of 1781 in fiscal year 2025. Following the Mayor's Visibility Initiative, community engagement, and driven by the dedication of our MCSO deputies on the front lines, the municipal court reported total case filings of 4171 in fiscal year '26. That's an increase of 134 percent over the previous year. This represents the direct impact of town public safety and community, and the community working together to continue keeping Fountain Hills one of the safest communities in the country. The success of MCSO in service to Fountain Hills was recently recognized by Sheriff Jerry Sheridan. We are glad to have him here today to present the Sheriff's Accommodation to the personnel who serve Fountain Hills and are responsible for making this success possible. Meeting Packet Page 21 of 301 TOWN OF FOUNTAIN HILLS SEPTEMBER 15, 2026 REGULAR TOWN COUNCIL MEETING MINUTES Page 5 of 32 So can I get all the Jerry's to come forward? That was a joke. So you could laugh at that. [LAUGHTER] SHERIDAN: Well, you're always so serious, so somebody knows when you're kidding. Anyway I moved to Fountain Hills 50 years ago this month, and it has been my adopted second home. And the only reason I had to move out is because MCO took away the stables from us where we had our horses, so it was either moved to Goldfield Ranch, or get rid of my horses. Well, I moved to Goldfield Ranch, just so you know. But I still own my home in Fountain Hills. I love Fountain Hills, and I have to recognize -- I know you're probably going to recognize Enrique, but many years ago Fountain Hills considered getting their own police department. And I knew that was the wrong thing for the town, especially as a taxpayer, that they'd get a much better deal with the sheriff's office. Little did I know -- how long ago was that, Rick? RICK: 21 years. SHERIDAN: 21 years ago that I would stand here in front of you as your sheriff. And I'm glad we made that decision back 21 years ago. And the sheriff's office is still serving the town to the best of its ability, and will continue, especially as long as I'm the sheriff and Gerry's here. You know you can't go wrong with a Jerry, right? [LAUGHTER] SHERIDAN: So anyway, I wanted to take a moment and thank the confidence that the Town Council has had and the community has had in the sheriff's office, because we feel that, you know, policing here, at least I know I policed here before Fountain Hills was a town, and I hope to long continue to do that and serve this community and the great people that live here. Thank you. MAYOR FRIEDEL: So I know you have some special recognitions tonight. RICK: Thank you, Mayor, and Council and Sheriff, for allowing me to speak and allowing MCSO to highlight this major operational achievement. I want to begin by sharing what Meeting Packet Page 22 of 301 TOWN OF FOUNTAIN HILLS SEPTEMBER 15, 2026 REGULAR TOWN COUNCIL MEETING MINUTES Page 6 of 32 a profound honor it is to serve the Fountain Hills community. The incredible public safety successes we have achieved were only possible because of the tremendous support we've received from our residents, the Town Council, and the dedicated town staff. Public safety is a partnership, and Fountain Hills is a shining example of how a community and law enforcement work together to keep families safe. It is with that spirit of partnership I am proud to present a Sheriff's commendation to the District 7 Patrol Group, comprising of deputies, sergeants, and admin staff for their exceptional work during the fiscal year 2026. Managing this growth required flawless efficiency and teamwork. Their relentless work ethic brings great credit upon themselves and our entire agency. Will the members of the District 7 Patrol Group please step forward to receive the Sheriff's commendation? [CROSS TALK] MAYOR FRIEDEL: I don't know. Is there anybody out on the streets tonight? [LAUGHTER] [CROSS TALK] MAYOR FRIEDEL: Thank you. Now we'll move on to the Mayor's business spotlight. And tonight's Mayor's business spotlight is Mindful Barbell. It's my pleasure to recognize John Speakman, owner of Mindful Barbell, as part of the Mayor's business spotlight. Since opening in Fountain Hills in 2021, Mindful Barbell has become much more than a fitness studio. Located on the avenue of the fountains, it has become a place where people come together to build strength, confidence, independence and community. The studio offers strength training, Pilates, balance, mobility, and mindful mindfulness, with a particular focus on helping adults over 50 stay active and move well. What makes John's story especially meaningful is the personal connection behind the business. John and his partner, Jason, left their life in Santa Barbara, brought their dog, Hugo, and chose Fountain Hills for a fresh start. Meeting Packet Page 23 of 301 TOWN OF FOUNTAIN HILLS SEPTEMBER 15, 2026 REGULAR TOWN COUNCIL MEETING MINUTES Page 7 of 32 They wanted to create a space where people could feel supported, encouraged, and safe while working toward their individual wellness goals. Their story is a wonderful example of what makes Fountain Hills special. People come here looking for a community, find one they love, and then give back by creating something meaningful for their neighbors. And of course, Hugo gave Fountain Hills two paws up and quickly claimed the studio as his second home. John also understands the journey of rebuilding strength firsthand. After suffering a ruptured lumbar disc, he used targeted training to rebuild his strength and mobility, and today, he brings that experience and understanding to his clients. His small group Pilates classes limited to just four participants, provide personalized attention focused on core strength, flexibility, posture, balance, and joint health. Just as important as physical benefits, is the sense of connection. Mindful barbell has created this in our community. Monthly social gatherings, educational events, and First Friday meetups give clients opportunities to connect beyond their workouts and build genuine friendships. Mindful Barbell has continued to grow through the acquisition of Pilates 101, expanding the variety of fitness and wellness opportunities available in Fountain Hills, and allowing John to serve people with different interests, abilities, and goals. It's exciting to see a local business not only succeed, but continue investing in itself, and in our community. John has created more than a gym. He has created a community where neighbors can connect, laugh, support, and recognize that getting older does not mean giving up on living and active, healthy, and independent life. On behalf of the Town of Fountain Hills, congratulations and thank you to John Speakman, and the entire Mindful Barbell community for everything you contribute to Fountain Hills. It's my honor to recognize Mindful Barbell as this month's Mayor's Business spotlight. John, come on up. JOHN: Hi, I'm John, and honestly, I think the Mayor should be my marketing guy, and -- because I don't think I could -- there's nothing I can add to what he said. Meeting Packet Page 24 of 301 TOWN OF FOUNTAIN HILLS SEPTEMBER 15, 2026 REGULAR TOWN COUNCIL MEETING MINUTES Page 8 of 32 You captured everything that Mindful Barbell is about, and I truly appreciate it. However, I do have a prepared speech. I feel like I'm going to do a quick, quick speech here. Again, I'd like to thank Mayor, Councilmembers, everybody in attendance tonight. This recognition was completely unexpected, and it really does mean a great deal to me and to my family as well. When Jason and I moved to Fountain Hills, we really hoped that this would become our new home, and it has. We've met some truly wonderful people here, many of whom now spend several hours each week doing exactly what I tell them to do, and -- even when it involves squats. So that alone deserves some recognition. Mindful barbell may be our business, but our clients are the main reason it has become such a meaningful part of my life. They show up, they work hard, they support one another, and they remind me every day that becoming stronger is about much more than lifting weights. It's about continuing to live life with confidence and independence. I'm very proud to serve this community, and I'm sincerely grateful for this honor. I thank you. MAYOR FRIEDEL: You're welcome. And now we'll move on to our veteran recognition of the month. It's my distinct honor and privilege to honor Enrique Melendez. Enrique Melendez, USMC, retired, was born in Santa Tecla, El Salvador, and moved to the United States to pursue his education. Enrique graduated from a California Marine Military Academy. He served in special military operations, training troops in jungle warfare, and supporting missions throughout Central America. Years later, he worked with Senator John McCain to facilitate the deployment of forces from El Salvador to serve alongside the US forces in Iraq. In recognition of this joint effort, Enrique was honored and decorated for his distinguished service by Senator John McCain in 2003. Enrique continued his lifelong dedication to public service as a member of the Fountain Hills Town Council in 2001, and later as a Council representing El Salvador in the State of Meeting Packet Page 25 of 301 TOWN OF FOUNTAIN HILLS SEPTEMBER 15, 2026 REGULAR TOWN COUNCIL MEETING MINUTES Page 9 of 32 Arizona. Today, he continues his service to the community as an ambassador to the Diplomatic Corps of America. The Mayor and Town Council are honored to present Enrique with this veteran of the month recognition. Enrique, please come on up. MELENDEZ: First of all, thank you, Mayor, the committee that approved my being here today in receiving this award, Hannah, who wrote the resolution and -- and before I go any further, I want to thank God for giving me almost 90 years of health and strength starting in January. And also thank him for bringing me my guardian angel, my beautiful wife Pam. That without her support and love, I wouldn't be here. Mayor, as you know, I hold the title of ambassador in the Diplomatic Corps of Arizona, and the Corps is composed of 34 countries in Africa, Middle East, Asia, Europe, and Central America. And I have the privilege of having three of your constituents here who are consuls. And I want to start by naming them the Council of Poland. Please stand up, Bogumil Horsham. The Council of Norway, Alex Womack. The Council was awarded a medal by the King of Norway, who recently passed away, for the merit that in serving the constituents of Norway, in Arizona and New Mexico. And the last one is a tall fellow. He's a consul of Sweden. Mikael Orlm. Mikael won the Olympic medal in the 1984 Olympics in Los Angeles. Thank you. You know, Mayor, when I took the oath of office, it was in the old building, and I was asked to sit next to the Mayor, and I sat there and when we moved to this building. I also sat next to the mayor, Mayor Sharon Morgan, Mayor Wally Nickels and Mayor John Beidler. And it gives me a feeling of strength to be here getting this award from you and the Council. And I just want to say that I will continue with the hope of the big boss upstairs to serve our country in the best way that I can. Now, with respect to the award I would like to mention that in 2003 we went into war with Iraq, and a fellow by the name of Dennis DeConcini, a United States senator, and I Meeting Packet Page 26 of 301 TOWN OF FOUNTAIN HILLS SEPTEMBER 15, 2026 REGULAR TOWN COUNCIL MEETING MINUTES Page 10 of 32 went to the Marine Military Academy together, and he said, you ought to meet a fellow by the name of John McCain, and I said, okay, and I met him in the year 2000. Then when the war in Iraq started in 2003, Senator McCain came to me and said, look, I like you to go to your home country, meet with the president, the commanding general of the armed forces, and get me some damn Marines. And I said, sir, I don't think I'm able to do that. Two weeks later, he called me into his office and he was shorter than me, stout. And he -- both hands he put on my shoulders and he said to me, get your know what down to El Salvador and get me those Marines. So I did that. Spent two days in El Salvador, met with the president. We were able to get 381 Marines. The next day, we put them in a C-130 transport, and they went to Fort Benning, Georgia, and then to Iraq. Out of that 381 Marines, we lost 37 of them. And then the last thing I want to do, and I'm not going to take any more time, is when I was here in the Council, there was a fellow that I was sitting, I believe, where you are, Mr. Skillikorn, and he didn't vote with me most of the time. But there was one vote that was potent, which brought the Sheriff's Office into Fountain Hills. I didn't tell the town manager, I didn't tell the Mayor, I didn't tell the town attorney what I was going to do. But I made a motion to bring MCSO into Fountain Hills. And right before I finish, gentlemen, I'm talking about said, I agree. And so I want to thank him, Senator John Kavanagh. Thank you John. And next to him is a lady that serves six years in the Town Council as our Mayor. She was reelected twice. And Linda, thank you for your service. With that, I want to thank you. You're doing a great job, a good Mayor, and I know it's been difficult to all of you, just like it was difficult for me. But that's the price you pay for serving the community. So I want to thank you all. I want to thank the audience. I want to say, God bless you all and God bless the United States of America, the greatest country in the world. MAYOR FRIEDEL: Okay. And we have some proclamations tonight. We're going to start with Vice Mayor Gayle Earle. Meeting Packet Page 27 of 301 TOWN OF FOUNTAIN HILLS SEPTEMBER 15, 2026 REGULAR TOWN COUNCIL MEETING MINUTES Page 11 of 32 EARLE: Thank you. Mayor. Tonight we're going to talk about ovarian cancer awareness, and we're dedicating this month, September, to that. Whereas ovarian cancer is the fifth leading cause of cancer-related death among women in the United States, with an estimated 21,010 diagnoses and 12,450 deaths nationwide in 2026, including 450 new cases and 313 deaths in Arizona. Whereas, a woman's lifetime risk is one in 91 for diagnosis and one in 443 for death. Whereas vague symptoms and no reliable early detection test means most women are diagnosed at stage three or later. Whereas stage diagnoses have over 90 percent five-year survival rates, but represent only 17 percent of cases, while later stages drop below 50 percent. Whereas no equivalent screening exists for ovarian cancer like mammograms or PAP tests -- PAP tests and making symptoms and risk factor awareness crucial. Whereas public education can promote early diagnosis, access to gynecological oncology, and research funding. Whereas, the town joins survivors, families, caregivers and healthcare professionals in raising awareness, promoting education, and fostering hope. Now therefore, Mary -- Mayor Gerry Friedel proclaims September 2026 as Ovarian Cancer Awareness Month. The Great Fountain will be lit teal and residents are encouraged to participate in awareness activity, wear teal, and engage in life saving conservation -- conversations, supporting affected families. And do we have someone here to receive this? Thank you. Okay. PUTMAN: Hi there. My name is Rachel Sackett Putman, and I'm here as a stage three ovarian cancer survivor, thriver, and advocate, and as a proud Arizona resident for the past 20 years. Thank you, Mayor and Councilmembers of the Town of Fallon Hills for once again recognizing September as Ovarian Cancer Awareness Month. Arizona is where I built my adult life, my marriage, my career, and my survivorship. So receiving this proclamation is so deeply meaningful, from the Town of Fountain Hills. Meeting Packet Page 28 of 301 TOWN OF FOUNTAIN HILLS SEPTEMBER 15, 2026 REGULAR TOWN COUNCIL MEETING MINUTES Page 12 of 32 Ovarian cancer is one of the deadliest cancers affecting women, yet it remains one of the most underfunded and least understood. Over 21,000 women in the U.S. will be diagnosed this year, and over 12,000 will lose their lives, a staggering 60 percent mortality rate. Most women are diagnosed at advanced stages because symptoms are vague, and there are still no reliable early detection test. For many of us, that lack of awareness is the difference between catching cancer early and fighting for our lives. I was diagnosed at 38 with a rare subtype called low grade serous ovarian cancer, a chronic disease with no standard of care and an 85-percent recurrence rate. Like many women, I lost my ability to have biological children, dreams my husband and I hadn't yet fulfilled. And this year, I've suffered some very deep losses to this disease, losses that weigh heavily on me and remind me why awareness is so urgently needed. Every teal light, every social media message, and every proclamation, including yours, helps someone recognize symptoms earlier, and brings much needed attention to this insidious disease. I'm also so grateful for the illumination of the fountain in teal, and for joining in solidarity all those impacted by ovarian cancer. These actions truly save lives and honor the women we've lost far too soon. Thank you for standing with survivors, honoring the women we've lost, and helping to protect families across the Town of Fountain Hills and the great State of Arizona. Your continued leadership makes a real and lasting difference. Together, we can shine a light on this gravely overlooked disease and give hope to the women and families who need it most. MAYOR FRIEDEL: Thank you. Our next proclamation is going to be Hannah Larrabee. LARRABEE: Thank you, mayor. And we are proclaiming September 17th through the 23rd as Constitution Week. Whereas the Constitution of the United States of America, the Guardian of our liberties, embodies the principles of limited government and a republic dedicated to rule by law. And whereas September 17th, 2026 marks the 239th anniversary of the framing of the Constitution of the United States of America by the Meeting Packet Page 29 of 301 TOWN OF FOUNTAIN HILLS SEPTEMBER 15, 2026 REGULAR TOWN COUNCIL MEETING MINUTES Page 13 of 32 Constitutional Convention. And whereas, it is fitting and proper to accord official recognition to this magnificent document and it's memorable anniversary, and to the patriotic celebrations which will commemorate it. And whereas Public Law 915 guarantees the issuing of a proclamation each year by the president of the United States of America, designated September 17th through 23rd as Constitution Week. Now, therefore, the Mayor and Town Council of Fountain Hills do hereby proclaim September 17th through the twenty-third 2026 as Constitution Week and encourage all citizens to reaffirm the principles of freedom and justice set forth by the framers of the Constitution. The DAR is here to accept the resolution. RACHEL: My name is Rachel. There we go. Hi, my name is Rachel and I'm the Regent of the Four Peaks chapter of the Daughters of the American Revolution, here in Fountain Hills. The Daughters of the American Revolution was founded in 1890 and is a nonprofit, nonpolitical women's service organization that promotes the missions of historic preservation, education, and patriotism, and by this proclamation, it underscores all three. So thank you very much to our Mayor, and to our town. We're so thankful also to have partnered with our local schools here in elementary school and our middle school with a special display on the Constitution. So if you all have kids in school, feel free to stop by our booth. We'd love to see you. So thank you. MAYOR FRIEDEL: Thank you. And our last proclamation is going to be read by Brenda. And this is for our Sister Cities, which is a very important organization in our town. And it connects us with countries internationally around the world. So Brenda. KALIVIANAKIS: Thank you, Mr. Mayor. Yeah, last but not least, we'd like to recognize our sister cities and our cultural heritage months. Whereas the Town of Fountain Hills Meeting Packet Page 30 of 301 TOWN OF FOUNTAIN HILLS SEPTEMBER 15, 2026 REGULAR TOWN COUNCIL MEETING MINUTES Page 14 of 32 values its friendships, its cultural exchanges and mutual understanding fostered through sister cities relationships. Whereas our sister cities Ataco, El Salvador, Dierdorf, Germany, and Zamosc, Poland strengthen our community through international friendship and cultural exchange. Whereas, we join the nation in honoring Hispanic American Heritage Month, German American Heritage Month, and Polish American Heritage Month, celebrating the rich cultures and the traditions our sister cities represent. Now, therefore, the Mayor, Gerry Friedel, and this Town Council of Fountain Hills do hereby recognize our sister cities, and celebrate Hispanic, German, and Polish American Heritage Month. MAYOR FRIEDEL: There you go. UNIDENTIFIED SPEAKER: Thank you, Mayor Friedel, how it would be pronounced in Germany and Town Council for this great honor bestowed to Fountain Hills sister cities. Fountain Hills Sister Cities was founded in 2000 and slowly but surely, we grew our sister cities in El Salvador, and Poland, and in Germany. We're really proud to work for this organization and really appreciate the support that we get from the Town. Because of our efforts, we have been able to give our students here, an opportunity to explore worldwide activities outside of their comfort zone. We send students to Poland, to Germany, and we had one year, 40 students going to Ataco to help rebuild homes that were washed away from floods. So these students came back with a life-changing attitude, and we continue to do that. And we're proud to welcome students from Poland, from Germany. Ataco students have been here as well. In January, we're planning a trip to Ataco, El Salvador to meet our new friends there. And with me, I have Elizabeth Horsham. She's the leader for Zamosc Poland. I have Tanya. She's helping me tremendously with Sister Cities. And we have Steve Baggio, who is in charge of finding our next sister city, which will be in Italy. I thank everybody, and I expect to see all of you at Oktoberfest on October 2nd or 3rd, Meeting Packet Page 31 of 301 TOWN OF FOUNTAIN HILLS SEPTEMBER 15, 2026 REGULAR TOWN COUNCIL MEETING MINUTES Page 15 of 32 because that's our fundraiser for Sister Cities. Thank you very much. KALIVIANAKIS: Thank you. MAYOR FRIEDEL: Thank you. We'll move on now with our presentations. David? TRIMBLE: Yes. Mayor and Council. Paul Soldinger, our Chief Financial Officer, will walk us through and tell us how we did on our revenues for the fourth quarter and full year for fiscal year 2026. SOLDINGER: All right. I was expecting everyone to stick around, but I was just kind of observing that no one stayed for my report. So I don't know if I should -- how I should take that, but I'll think about it. But yeah, tonight I'll be presenting our quarter four and full year fiscal year 2026 revenues to the Mayor and Council. It's generally a very positive report. So I'll kind of go through it, but please feel free to ask any questions along the way. Our total net taxable activity for the quarter was 192.2 million, an increase of 3.6 percent compared to the prior year. And for the full year activity, we were about 0.4 percent more than fiscal year '25. But keep in mind, fiscal year '25 had half a year of the residential rental taxes that went away, that the State eliminated in January of 2025. So just to seeing an increase at all was a positive development. Total local sales taxes of 5.8 million for the quarter, outpaced last year by seven percent. It was a very good quarter for us, buoyed by construction and services, which I'll get into. Very strong quarter. As you can see, the first two quarters of the year were pretty slow compared to the prior year, and then we kind of sped up through the end of the year. We ended up two percent above last year, at 20.6 million. But that -- again, that's pretty good because we lost, you know, three to $400,000 of local sales tax revenues for residential rentals for that half year that we lost. So that was pretty strong outcome for the town, and we're looking pretty good for fiscal year '27. It was very strong compared to projections, 22 percent above projections for the quarter, 14 percent for the year, very similar to fiscal year '25. Meeting Packet Page 32 of 301 TOWN OF FOUNTAIN HILLS SEPTEMBER 15, 2026 REGULAR TOWN COUNCIL MEETING MINUTES Page 16 of 32 And one thing to point out is something that I thought was really good. Looking at fiscal year '24, we were at 20.6 million. We kind of dipped down with the loss of residential rental taxes, but we're back up. So we're starting to turn back upwards in fiscal year 2026. Retail sales, our biggest category, a little more than half of our total local sales taxes. We brought in 2.74 million, about 1.4 percent more than the prior year, fourth quarter. A little bit of coming back down to earth from the third quarter, which was very, very strong. But compared to projections, still 1.3 percent above, and for the year at $10.8 million, about five percent more than the prior year in our retail category. So that's pretty good. That's a good outcome for the town, especially earlier in the year, or even the fiscal year '24, towards the end of the year, things seem to be up and down month to month. Retail sales. We've been presenting this information just taking out the food sales. It just gives you a better indicator of actual retail shopping in the town and the trends. We did have a little bit of a dip, $2.18 million for the quarter of retail sales without food -- 1.2 percent below the prior year, fourth quarter. But all in all, for the year, we were still 1.5 percent above the prior year. So still upward trend, not as strong as the overall retail sales. So retail sales for remote sellers. We've been looking at this; it's kind of a indicator of online shopping. You know, it's showing us where the trends are going. And right now we're still seeing that trend. $579,000 of local sales tax from remote sellers for the quarter, an increase of 24 percent over the prior year. And for the year, at 2.16 million, about 17 percent over the prior year. So we continue to see this trend where people are buying online more and more. Just something to think of when you're out there talking to constituents and stakeholders of the town. Construction. This was a very good quarter for construction. We also had a very good fourth quarter in fiscal year '25, but we brought in $1.1 million of construction sales tax in the fourth quarter, about seven percent more than fiscal year 2025. $3.3 million in total for the year, almost 11 percent more than the prior. And that was, again, a good Meeting Packet Page 33 of 301 TOWN OF FOUNTAIN HILLS SEPTEMBER 15, 2026 REGULAR TOWN COUNCIL MEETING MINUTES Page 17 of 32 trend for us, because you can't see all the prior years, fiscal year '22, when development started picking up more after the pandemic recovery kind of things, our local sales tax for construction was lower than $2 million for that year. Then we kind of started shooting up. There's a lot of development for fiscal year '23, '24. We came back down to earth in '25 a little bit, and now we're starting to see that trend back up as well. So again, just another good sign that after a slower fiscal year '25, we're trending back up in construction activity. For the quarter, 1.1 million was 83 percent more than our conservative projections. This is one of the categories where we have talked about with Council, that we're probably being a little bit too overly conservative. Just kind of what I just stated, how things were very choppy for a few years. And that's kind of why we're starting to see more of a baseline level of revenues for the town. So definitely we'll be addressing that through the budget in the next few years. But for the year, $3.3 million, 38 percent above projections for the year. Utilities and communications, it was a good quarter for us $375,000, seven percent more than the prior year, fourth quarter for overall for the year, it trended down slightly in utilities, for whatever the reasons that may be. The 1.71 million we brought in was slightly lower, about 0.75 percent lower than the prior year in total, but we were still barely above our projections for the year, at 0.9 percent above our projections. Definitely something to monitor. Again, like I've stated, utilities are relatively stable slightly going up this year was a little bit of a down year for utilities, for us. Real estate. It looks bad on the screen, but just remember, the local sales taxes for residential rental taxes went away in January of 2025. The fourth quarter is actually the first fully comparable quarter where there wasn't a residential rental tax from year to year. So you did see that 170,000 we brought in this category was nine percent above the prior year, fourth quarter. The $712,000 for the year was 26 percent below the prior year. But again, that's very much expected with the loss of those long term taxes. All in all, if you compare the projections, we were three percent -- 3.7 percent above projections for the quarter and Meeting Packet Page 34 of 301 TOWN OF FOUNTAIN HILLS SEPTEMBER 15, 2026 REGULAR TOWN COUNCIL MEETING MINUTES Page 18 of 32 4.6 percent above projections for the year. Restaurants and bars. I know in fiscal year '25 and even '24, this was a very choppy category, but we have seen three consecutive quarters of pretty strengthening revenues here. We brought in $34,000, eight -- 8.7 percent above the prior year. And again, similar to our retail category, and I -- was it construction as well. We had stronger revenues for a couple of years at 1.45 million there in fiscal year '24. You see that drop in '25, and now you're starting to see that upward trend again. So I mean, we've heard we've all heard about the restaurants opening in town and some of the impending restaurants coming in. We are already seeing this trend up for us. So I think that's a good sign as well. 434,000, 18 percent above our conservative projections and for the year 12.7 percent above our projections. Services. This was really the star of our -- so shout out to Amanda. I believe she's here in the back. Our tourism sector, really it was a great quarter for the town. We brought in $951,000. 26 percent above the prior year, fourth quarter. I want to say that's the best quarter we've had. It's pretty close in this category. And in total for the year -- as you can see, the first two quarters were actually lagging. We weren't doing that great in this sector the first two quarters. But then all in all, for the year, we still outpaced last year by six percent. This is another one of the categories that we've probably been a little overly conservative on, and we've established a better baseline over the past three years, that we can probably address through the budget process as well. All in all, 91 percent above our conservative projections for the fourth quarter and 55 percent above projections for the year. So yeah, we had a really good year from a tourism standpoint for the town. So like I said, very positive report for the town, for our state shared revenues, we barely exceeded our projections at $960,000 in the general fund for the quarter, for state shared sales taxes. We get a share of those sales taxes from the State on a monthly basis, as well as urban revenue sharing, or income taxes. Pretty close to our projections Meeting Packet Page 35 of 301 TOWN OF FOUNTAIN HILLS SEPTEMBER 15, 2026 REGULAR TOWN COUNCIL MEETING MINUTES Page 19 of 32 right below that amount. Where we did underperform -- we did have a couple underperformers for the quarter in our streets fund vehicle license, taxes and HERF both came in slightly below projections for the quarter. So with that, happy to answer any questions or address anything you might want to talk about. WATTS: Paul, thanks for the presentation. Better than expected. The $900,000 in the hotels goal, short-term rentals -- SOLDINGER: Uh-huh. WATTS: Why? Can Amanda explain, so we can duplicate it? SOLDINGER: So do you want -- I can touch on a little bit, and then Amanda will come. I think people are coming to town more, you know, not just special events, more marketing, even better output and attention for social media with what Mike Pelton is doing, things like that. And actually Councilmember Skillicorn asked me to work on providing more data to economic development. We kind of went through that process and because of -- so much of the taxpayer information is confidential, that was hard to do. But I'm sure she can speak on it from more of a broader perspective. WATTS: So if you're saying that, though, that you've identified those things as a root cause of what occurred, we can expect that to continue? SOLDINGER: Mayor, Councilmember, I think it would be challenging to have record breaking quarters, you know, every quarter. But I think the trend is going upwards at least the last few quarters. And overall, one thing that we talked about in the budget process, like I said, this category is one of the ones that was fluctuating, especially in the pandemic recovery. So that's why we've been even more especially conservative. Like, I think we projected 1.7 million for the year. I think for fiscal year '27, it's 1.8 million or so that we projected still being somewhat conservative. But we've developed a baseline now, where we're bringing in well over $2 million a Meeting Packet Page 36 of 301 TOWN OF FOUNTAIN HILLS SEPTEMBER 15, 2026 REGULAR TOWN COUNCIL MEETING MINUTES Page 20 of 32 year, and that's three years straight. So I think our tourism activity is strong right now for the town, and I'd like to see that continue. WATTS: Thank you. AMANDA: Good evening. Mayor. Council. Councilmember Watts. So Paul pretty much cover it. And then you may recall back in June, instead of providing the Mayor and Council with an economic development update, we focused on tourism, just so the Council and public could understand that we were being intentional and strategic. And so Paul mentioned our social media, so unexperienced Fountain Hills that is under economic development, and we have a third-party, again, a couple of years back, thanks to the Mayor and Council, allowed for additional funding so that we could have someone watching, collecting data, and then making sure our messaging met the data we were seeing in regards to visitors. We also did a significant update, you may recall back in June, regarding our hotel page. So previously the hotel page on Experience Fountain Hills, you went. It was a brief description. Now it's more detailed. It talks about the accommodations. And then there's a call to action to say book your reservation. And so I don't have the number right in front of me, but I think we saw over an 80 percent increase. And so we're seeing what we're doing is working. And so part of that too, is, again, over the last few years, coming to Council, requesting more marketing so that we can -- we can target the different again, audience visitors. What we're seeing, again, we are seeing a little bit more variety in our restaurants. People are loving to come here with our events and then doing specific targeted marketing with advertising. And so again, knowing that we have the international Dark Sky Discovery Center coming in the spring of next year. We know we're a Dark Sky community. We've been also really capitalizing on that. And there's been other stuff up our sleeve, but we're here just for a report. We'll talk about that at another time. But again, we hope we can duplicate this. I never want to disappoint. WATTS: Thank you. AMANDA: So the pressure's on. Meeting Packet Page 37 of 301 TOWN OF FOUNTAIN HILLS SEPTEMBER 15, 2026 REGULAR TOWN COUNCIL MEETING MINUTES Page 21 of 32 WATTS: Thank you for the insight and nice job. AMANDA: You're welcome. Thank you. MAYOR FRIEDEL: And I'll just add, you know what? Our social media has really taken off. It's much better than it was before. We've had record numbers at our town events as well. So that all feeds into the social media and getting the word out, as to what we're doing. And also internally with our public information officer, we're leaps and bounds ahead of where we were with what he's doing for the town, as well. So good job. Thank you. Thank you Paul. KALIVIANAKIS: I'd like to make a motion to approve the consent agenda. MAYOR FRIEDEL: I have a motion. Is there a second? MCMAHON: Second. MAYOR FRIEDEL: Town Clerk, can we get a roll call, please? BENDER : Councilmember Larrabee. LARRABEE: Aye. BENDER: Councilmember McMahon. MCMAHON: Aye. BENDER: Councilmember Watts. WATTS: Aye. BENDER: Councilmember. Skillicorn. SKILLIKORN: Yes. BENDER: Councilmember Kalivianakis. KALIVIANAKIS: Aye. BENDER: Vice Mayor Earle. EARLE: Aye. BENDER: Mayor Friedel. MAYOR FRIEDEL: Aye. BENDER: Motion passes, seven to zero. MAYOR FRIEDEL: Thank you. Meeting Packet Page 38 of 301 TOWN OF FOUNTAIN HILLS SEPTEMBER 15, 2026 REGULAR TOWN COUNCIL MEETING MINUTES Page 22 of 32 We'll move on to our regular agenda. So we have consideration of possible action regarding Resolution 2026-21 authorizing the dissolution of the Municipal Property Corporation. David. TRIMBLE: Once again, CFO Paul Soldinger will walk us through this one. It closes out the Municipal Property Corporation, which was created in 1998 for past town capital financings. All related debt was paid back in 2018, and the MPC board approved dissolution last month. So Paul, give us more details. SOLDINGER: Yes. Thank you Dave. It's kind of interesting to see you in this position. I'm not used to seeing you up there. So yeah, thank you for -- that was pretty much a good summary of this. I also have Bill DeHahn from Greenberg Traurig there representing us and helping us close the MPC as our bond Council, special Districts Council. Any specific legal questions that you have, I may bring him up. But it's a relatively straightforward resolution. The MPC, the Municipal Property Corporation is a nonprofit corporation formed in 1998, and the sole purpose was to be used as a middleman to help the town issue pledge revenue obligations, or issue debt to finance, really the building you're in, the community center, the library building, as well as help the town purchase 200 acres of open space preserve land. And so at the time, this was a common practice because of the way the Treasury regulations worked at the time. There was a change around that time in the late '90s, to Treasury regulations that no longer really made an MPC necessary, but governments still continue to use them. But now you're seeing a lot of governments close them down, because they're really more of a middle -- an unnecessary middleman in these financing arrangements. So MPC, all the bond debt was paid off around 2018, 2019 time frame. They're different than the Eagle Mountain dissolution that you considered a couple of months ago. There is no -- there's no potential liability. There are no liabilities of the MPC. In fact, the Meeting Packet Page 39 of 301 TOWN OF FOUNTAIN HILLS SEPTEMBER 15, 2026 REGULAR TOWN COUNCIL MEETING MINUTES Page 23 of 32 town already owns the buildings, and the land, and there's about $13,000 in the fund sitting there. And so we've been, you know, having these MPC board meetings once a year, filing regulatory reports with the Corporation Commission. And really, number 1, there's no need to do that anymore. We can issue a pledge revenue obligation as a town, if the Council would choose to go down that route. And number 2, there's been no activity, no plans to use the MPC in about seven, eight years. So the last thing is the MPC board approved dissolution at its August 27th meeting. And so the last step would be for the Town Council to consider resolution 2026-21 for closure of the MPC. Me being the person that everyone knows likes to use AI, use AI to create this simple, illustrative graphic. And all it's saying is what I just described, the MPC was kind of necessary at the time as a middleman to help us issue tax exempt bonds. After the Treasury regulations changed around that time, you no longer really need that middleman. You can do it yourself at a cheaper cost and a more effective process. So really, today we're recommending closure. And again, we have legal counsel here available for any questions. SKILLIKORN: Thank you, Mr. Mayor. Motion to approve as drafted. LARRABEE: Second. MAYOR FRIEDEL: Are there any comment cards? BENDER: No, Mayor. MAYOR FRIEDEL: Okay. We have a motion and a second. Can I get a roll call, please? BENDER: Yes. Councilmember McMahon. MCMAHON: Aye. MAYOR FRIEDEL: Councilmember Watts. WATTS: Aye. BENDER: Councilmember Skillicorn. Meeting Packet Page 40 of 301 TOWN OF FOUNTAIN HILLS SEPTEMBER 15, 2026 REGULAR TOWN COUNCIL MEETING MINUTES Page 24 of 32 SKILLIKORN: Yes. BENDER: Councilmember Kalivianakis. KALIVIANAKIS: Aye. BENDER: Councilmember Larrabee. LARRABEE: Aye. BENDER: Vice Mayor Earle. EARLE: Aye. BENDER: Mayor Friedel. MAYOR FRIEDEL: Aye. BENDER: Motion passes, seven to zero. MAYOR FRIEDEL: Thank you. We'll move on to Regular Agenda Item B, which is a public hearing. So I'm going to open a public hearing. This is with consideration of possible action relating to a request for a special use permit to allow residential use of a property zoned C1 on Saguaro Boulevard. David. TRIMBLE: Yes, Mayor. We have John Wesley, Development Services director, to walk us through this one. As you mentioned, special use permit to allow an apartment on the second floor of the building, commercial building on Saguaro Boulevard. Already contains -- includes a caretaker quarters and P and Z recommended approval. So John will take it away from there. WESLEY: Mayor. Council. Not too much more to add from that. It's pretty straightforward case, but we'll step through a couple of items. So Chapter 12, the zoning ordinance lays out all the requirements with regard to commercial zoning districts. It mostly allows commercial uses, but does allow for residential uses, with approval of a special use permit by the Council. And Section 202 of the zoning ordinance sets out the procedures for that. As stated, we're dealing with property at 11669 North Saguaro Boulevard, Zone C-1. Currently, if you're familiar with that, Pals Inn is that building, and it was constructed Meeting Packet Page 41 of 301 TOWN OF FOUNTAIN HILLS SEPTEMBER 15, 2026 REGULAR TOWN COUNCIL MEETING MINUTES Page 25 of 32 back in early 2000. The SUP was issued at that time to allow the kennel use of the property. And the development, as from the beginning, included a watchman's quarters, which is allowed by right with a commercial development. But since then they've taken part of their second floor, and done some remodel work, and made it appropriate for another residential use. So that additional apartment use does require this special use permit. So here is the site plan of the current facility with the parking. And this is the second floor with the existing watchman's quarters. And then in this corner is an area that is -- has been office, but has been remodeled to now be appropriate for a residential use. It's what will be changed if the SUP is approved. So the ordinance sets out certain criteria for the Planning and Zoning Commission to look at in the review to determine if a special use permit should be approved. And this case is, the Commission looked at these requirements in terms of the impact on adjacent businesses, the community, the neighborhood. They found that there really were no negative impacts. And so as has been mentioned, the Commission has recommended approval. Any questions for me? EARLE: I'd like to make a motion to approve the -- to approve the special use permit, allowing one apartment in the Commercial Zoning District at 11669 North Saguaro. LARRABEE: Second. WATTS: John, did you say that I understand correctly that the remodeling has already been completed prior to the special use permit being passed? WESLEY: Yes, that is correct. WATTS: So they got a building permit for something that wasn't initially zoned properly? WESLEY: So as they labeled the permit, the areas that are shown here that can now -- if this is approved, become bedrooms that are labeled as offices. So as -- for the permit, as it was requested, it was appropriate. And how they really want to use it does require this approval. If this doesn't get approved, those will be Meeting Packet Page 42 of 301 TOWN OF FOUNTAIN HILLS SEPTEMBER 15, 2026 REGULAR TOWN COUNCIL MEETING MINUTES Page 26 of 32 offices instead of bedrooms. WATTS: But the remodeling has already been completed. WESLEY: Yes. WATTS: For a bedroom and an apartment. WESLEY: For four offices, that also happens to have a little kitchenette with it. WATTS: Okay. Thank you. MCMAHON: Thank you. John. Excuse me. SKILLIKORN: Thank you, Mr. Mayor. Director Wesley, this has been mostly vacant for a few years, correct? WESLEY: Mayor, Councilmember. I'm not sure how much the office has been used. I know it has had some challenges with its use, but I really don't know how much it's been. SKILLIKORN: Okay. And Mr. Mayor, so I -- you know, I believe I've been upstairs in the building a long time ago, and I recall it being vacant. And normally I'm not a huge fan of going residential in situations like this. I mean, there's no other residential around there. You know, there's other commercial. But really the exception here is that it's been vacant. And that's where I would change my tune. So something that's vacant, I wouldn't -- I have much less of an issue going to residential. And there's a big distinction between something we're building brand new that isn't vacant yet, to residential, you know, changing that zoning that's -- in that situation because I do look at zoning as a promise. But in a situation like this where it has been vacant, and it appears that the zoning is not working, or the demand is not working, or whatever, that is more of a special case to me. So that's normally I would not support something like this, but in this case, because it has been, you know, apparently chronically vacant, that kind of changes the tune. So I would support this. Thank you. MCMAHON: Thank you. I don't think this is a special case, but that's my personal opinion. I did -- it does bother me that this person already built out this, and is now Meeting Packet Page 43 of 301 TOWN OF FOUNTAIN HILLS SEPTEMBER 15, 2026 REGULAR TOWN COUNCIL MEETING MINUTES Page 27 of 32 asking for a special use permit. It's like backwards to me. So could you please explain a little bit more clearly what he renovated that for, what it is, and if what he renovated -- is those -- are those offices or is it residential? And if it's residential, is he going to live there or is it going to be rented out? Or -- a little bit more information, please, if you don't mind. WESLEY: Mayor, Councilmember, I won't be able to add too much more than what I have already said, but on the building construction or remodel plans that they had for this area, it did label these areas, and if we look real close, it may actually say that, label these as offices. And so it was a remodel of an office to add a kitchenette area. And then this was a big meeting space back here in the back. If it does get approved for the special use permit, then these offices will be used as bedrooms, and that will become a living room in what was otherwise going to be a conference room in an office building. MCMAHON: So is he going to convert it further? If he gets this special use permit, is this like a pause in order to convert it further to residential, or is he just going to use those offices as -- I mean, I'm trying to understand this. WESLEY: Sure. MCMAHON: Because to me, this is the first time I've seen something like this, where he's already -- the person has already renovated and is now asking for a special use permit. So I'm just trying to understand what we're approving -- WESLEY: Right, and so -- MCMAHON: -- better. WESLEY: Okay. Mayor, Councilmember. So again, the request is to allow the office or the residential use of this corner of this building. To my understanding, they have done all the renovations that they plan to do. I don't know if there's anything else left to renovate at this point. There may be, to fully make it an apartment versus a -- an office building, but the key pieces have already been done. MAYOR FRIEDEL: John, I also believe I've been up in that office a couple of years ago. Meeting Packet Page 44 of 301 TOWN OF FOUNTAIN HILLS SEPTEMBER 15, 2026 REGULAR TOWN COUNCIL MEETING MINUTES Page 28 of 32 There was already a kitchenette in there, so they didn't add that without the SUP. They're taking these two offices and they're going to convert it to a bedroom, is what it is. They've got a -- they've got an existing caretaker's office -- I mean apartment in the back already. So they're just adding another apartment up there. So I don't see it as a problem. MCMAHON: Not a problem. I just wanted to have more information about it and understand it. Because usually you don't see it in this order, so to speak. WESLEY: That's correct. MCMAHON: Yeah. WESLEY: Usually you'd get the SUP first rather than do the investment with the hope that it would be approved. MAYOR FRIEDEL: Agreed. WESLEY: Okay. MAYOR FRIEDEL: So we have a -- are there any comment cards? BENDER: No, there is not. MAYOR FRIEDEL: Okay. So we have a motion and a second, I think, on the floor. Can we get a roll call? Oh I'm sorry. I've got to close the special meeting. All right. Now we have a motion and a second. Can we get a roll call, please? BENDER: Yes, Mayor. Councilmember Skillicorn. SKILLIKORN: Yes. BENDER: Councilmember Larrabee. LARRABEE: Aye. BENDER: Councilmember McMahon. MCMAHON: Aye. BENDER: Councilmember Kalivianakis. KALIVIANAKIS: Aye. Meeting Packet Page 45 of 301 TOWN OF FOUNTAIN HILLS SEPTEMBER 15, 2026 REGULAR TOWN COUNCIL MEETING MINUTES Page 29 of 32 BENDER: Councilmember Watts. WATTS: Aye. BENDER: Vice Mayor Earle. EARLE: Aye. BENDER: Mayor Friedel. MAYOR FRIEDEL: Aye. BENDER: Motion passes, seven to zero. MAYOR FRIEDEL: Thank you. We'll move on now to the call to the public. Do we have any speaker cards? BENDER: No, we do not. MAYOR FRIEDEL: We don't. Okay. Then we'll move on to Council discussion or direction to the Town Manager. Does anybody have anything? Okay. Seeing nothing, does anybody have anything for future agenda items? Councilman? SKILLIKORN: Thank you, Mr. Mayor. Thank you, Mr. Mayor. Yeah, I actually did want to make a motion, and I was going to be fairly specific if you want to bear with me here. I wanted to make a motion to work with the Town Attorney for an ordinance regulating automatic license plate readers. EARLE: I'll second. Second. LARRABEE: I'll support that as well. EARLE: I support that, I should say. MCMAHON: Can we even do that? Is that state? UNIDENTIFIED SPEAKER: So I believe even the last meeting we had a request for a flock camera ordinance. So I believe today is asking to work directly with me to write -- draft an ordinance and bring it back for approval. Is that what I'm understanding? SKILLIKORN: That is correct. UNIDENTIFIED SPEAKER: Yeah. So certainly towns are perfectly -- can regulate within their own town limits' automatic license plate readers. Meeting Packet Page 46 of 301 TOWN OF FOUNTAIN HILLS SEPTEMBER 15, 2026 REGULAR TOWN COUNCIL MEETING MINUTES Page 30 of 32 MCMAHON: I'd like to see some information on that, please, if you don't mind, before this becomes on the agenda. UNIDENTIFIED SPEAKER: I don't understand your question. What is it specifically you're requesting? MCMAHON: No. I'll send you an email. Thank you. MAYOR FRIEDEL: Councilman? SKILLIKORN: Thank you, Mr. Mayor. The second one I did want to work with the Town Attorney about drafting up a -- like a Florida-style ban on Sharia law. MCMAHON: What was that? LARRABEE: Second. EARLE: I would be -- are we having a discussion here? Can I -- I'll be open to a discussion on that? I'm not quite sure what that would involve, but I'm open to discussing it. UNIDENTIFIED SPEAKER: So I believe that Councilmember Skillicorn had asked to go directly to drafting an ordinance to bring for review. And so we have two that are -- that he got one second to bring it for a drafted ordinance for review. And then -- but you -- you're saying that you want to have a discussion before the ordinance? EARLE: I would like to understand a little more about it. Is that -- that's -- UNIDENTIFIED SPEAKER: (Indiscernible). WATTS: In that light, I'd be the third. MCMAHON: And before we spend legal time on that, I would like to have a discussion so we can understand it better. Because I -- be honest with you, I don't know what he's talking about, and I don't think it's appropriate to spend legal time and fees on something without some type of discussion about this subject before we delve into it with the ordinance. Thank you. UNIDENTIFIED SPEAKER: Sorry. Three for what? MCMAHON: For an ordinance. [CROSS TALK] WATTS: Three to write the ordinance. Meeting Packet Page 47 of 301 TOWN OF FOUNTAIN HILLS SEPTEMBER 15, 2026 REGULAR TOWN COUNCIL MEETING MINUTES Page 31 of 32 MAYOR FRIEDEL: Anything else? Anyone? Okay. Can I get a motion and a second for adjournment? LARRABEE: So moved. EARLE: Second. MAYOR FRIEDEL: All in favor? WATTS: Aye. MAYOR FRIEDEL: Thank you. Meeting Packet Page 48 of 301 TOWN OF FOUNTAIN HILLS SEPTEMBER 15, 2026 REGULAR TOWN COUNCIL MEETING MINUTES Page 32 of 32 Having no further business, Mayor Gerry Friedel adjourned the regular meeting of the Town Council at 6:40 p.m. APPROVED: ____________________________________ GERRY FRIEDEL, MAYOR ATTEST: ____________________________________ ANGELA PADGETT-ESPIRITU, DEPUTY TOWN CLERK CERTIFICATION I HEREBY CERTIFY THAT THE FOREGOING MINUTES ARE A TRUE AND CORRECT COPY OF THE MINUTES OF THE REGULAR TOWN COUNCIL MEETING OF THE TOWN COUNCIL, FOUNTAIN HILLS, ARIZONA HELD ON SEPTEMBER 15, 2026. I FURTHER CERTIFY THAT THE MEETING WAS DULY CALLED AND HELD AND THAT A QUORUM WAS PRESENT. ________________________________ ANGELA PADGETT-ESPIRITU, DEPUTY TOWN CLERK Meeting Packet Page 49 of 301 ITEM 8.b. TOWN OF FOUNTAIN HILLS STAFF REPORT Meeting Date: 10/20/2026 Meeting Type: Town Council Regular Meeting Submitting Department: Administration / Finance Prepared by: Michael Stelpstra, Accountant Staff Contact Information: Phone: 480-816-5165 Email: mstelpstra@fountainhillsaz.gov Request to Town Council Regular Meeting (Agenda Language) CONSIDERATION AND POSSIBLE ACTION: Approving Council recommending for approval, to the Arizona Department of Liquor Licenses and Control, the application for the Acquisition of Control of the Series 10 - Beer and Wine Store License for Walgreens #06060, located at 16415 E Palisades Blvd, Fountain Hills, Arizona 85268. Staff Summary (background) The purpose of this item is to obtain the Town Council’s recommendation (approval, disapproval, or no recommendation) regarding an Acquisition of Control Liquor License application for a Series 10 Beer and Wine Store License submitted by Andrea Lewkowitz, agent of Walgreens #06060, for submission to the Arizona Department of Liquor Licenses and Control. This license is one of approximately 200 licenses included in the Acquisition of Control application for Walgreens locations throughout Arizona. Staff reviewed the liquor license application and found that it is in full compliance with Town Ordinances. Related Ordinance, Policy or Guiding Principle A.R.S. §4-201; 4-202; 4-203; 4-205 and R19-1-102. Risk Analysis N/A Recommendation(s) by Board(s) or Commission(s) N/A Staff Recommendation(s) Staff recommends the Council recommend approval of the liquor license application to the Arizona Department of Liquor Licenses and Control. Suggested Motion Move to approve the Council’s recommendation for approval to the Arizona Department of Liquor Licenses and Control regarding the Acquisition of Control application for a Series 10 Beer and Wine Store License for Andrea Lewkowitz, agent of Walgreens #06060. FISCAL IMPACT Fiscal Impact: N/A Budget Reference: N/A Funding Source: N/A ATTACHMENTS 1. Local Governing Body Report #408077 Meeting Packet Page 50 of 301 Meeting Packet Page 51 of 301 Meeting Packet Page 52 of 301 Meeting Packet Page 53 of 301 Meeting Packet Page 54 of 301 Meeting Packet Page 55 of 301 Meeting Packet Page 56 of 301 Meeting Packet Page 57 of 301 Meeting Packet Page 58 of 301 Meeting Packet Page 59 of 301 Meeting Packet Page 60 of 301 Meeting Packet Page 61 of 301 ITEM 8.c. TOWN OF FOUNTAIN HILLS STAFF REPORT Meeting Date: 10/20/2026 Meeting Type: Town Council Regular Meeting Submitting Department: Administration / Economic Development & Tourism Prepared by: Amanda Jacobs, Economic Development Director Staff Contact Information: Phone: 480-816-5104 Email: ajacobs@fountainhillsaz.gov Request to Town Council Regular Meeting (Agenda Language) CONSIDERATION AND POSSIBLE ACTION: Approving Resolution 2026-25, an Intergovernmental Agreement with Salt River Pima-Maricopa Indian Community for receipt of Proposition 202 Funding for the Town of Fountain Hills annual Music Fest. Staff Summary (background) Proposition 202 (Gaming Compact with the State of Arizona) was a ballot measure passed by Arizona voters in the 2002 state general election and codified in ARS 5-601.02. This legislation allows for distribution of funds to cities, towns and counties for their programs from Arizona Indian Tribes for government services that benefit the general public, including public safety, mitigation of the impacts of gaming, and the promotion of commerce and economic development. The Gaming Compact permits the Nation to allocate 12% of the fees it pays to the State to cities, towns and counties in the State of Arizona. Many non-profit organizations also request Proposition 202 funding as "pass through dollars" from cities, towns, and counties to support programs within their communities. The Salt River Pima-Maricopa Indian Community (SRPMIC) grant program is by invitation- only. SRPMIC invited the Town to apply and is awarding Fountain Hills $50,000 for the annual Music Fest. Related Ordinance, Policy or Guiding Principle 2022 Town of Fountain Hills Strategic Plan Priorities: Targeted Collaborative Economic Development and Promote the Long-Term Financial Sustainability of Town Infrastructure, Environmental and Social Resources; Section 12 of the Gaming Compact 2002 and A.R.S. 5- 601.02; Fountain Hills Resolution 2025-06. Risk Analysis If the intergovernmental agreement is not approved, the Town will not receive $50,000 towards the 2027 Music Festival. Recommendation(s) by Board(s) or Commission(s) N/A Staff Recommendation(s) Staff recommends approval of the IGA. Suggested Motion MOVE TO Approve Resolution 2026-25. FISCAL IMPACT Fiscal Impact: $50,000 in grant funding towards the annual Music Fest. Budget Reference: FY2027 Meeting Packet Page 62 of 301 Funding Source: Tourism Fund ATTACHMENTS 1. Resolution 2026-25 IGA Between Town and SRPMIC 2. 12percent_cy2027_IGA_FountainHills FINAL Meeting Packet Page 63 of 301 RESOLUTION NO. 2026-25 A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, APPROVING THE INTERGOVERNMENTAL AGREEMENT WITH SALT RIVER PIMA-MARICOPA INDIAN COMMUNITY, ARIZONA RELATING TO PAYMENT OF REGULATORY COSTS AND THE STATE OF ARIZONA GAMING COMPACT WHEREAS, The Intergovernmental Agreement (“IGA”) between the Town of Fountain Hills (the "Town") and Salt River Pima-Maricopa Indian Community (“SRPMIC”) relating the Proposition 202 funding distribution of $50,000 for the Music Fest (the “Agreement”) is hereby approved in substantially the form and substance attached hereto as Exhibit A and incorporated herein by reference. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, as follows: SECTION 1. The recital above is hereby incorporated as if fully set forth herein. SECTION 2. The Town hereby authorizes the acceptance of funds. SECTION 3. The Mayor, the Town Manager, the Town Clerk, and the Town Attorney are hereby authorized and directed to cause the execution of the grant funding and to take all steps necessary to carry out the purpose and intent of this Resolution. PASSED AND ADOPTED by the Mayor and Council of the Town of Fountain Hills, Arizona, this 20th day of October 2026. FOR THE TOWN OF FOUNTAIN HILLS: ATTESTED TO: Mayor Town Clerk REVIEWED BY: APPROVED AS TO FORM: Town Manager Town Attorney Meeting Packet Page 64 of 301 EXHIBIT A TO RESOLUTION NO. 2026-25 IGA Between Town and SRPMIC See following pages Meeting Packet Page 65 of 301 INTERGOVERNMENTAL AGREEMENT BETWEEN THE SALT RIVER PIMA MARICOPA INDIAN COMMUNITY AND THE TOWN OF FOUNTAIN HILLS This Intergovernmental Agreement (“Agreement) is entered into by and between the Salt River Pima-Maricopa Indian Community (“SRPMIC”), a Federally-Recognized Indian Tribe, and the Town of Fountain Hills (the “Town”), pursuant to Section 12 Payment of Regulatory Costs; Tribal Contributions (“Section 12”) of the SRPMIC and State of Arizona Gaming Compact 2002 (“Compact”), as Amended and Restated in 2021, and Article VII, § 1(h) of the SRPMIC Constitution and A.R.S. §5-601.02. RECITALS 1. The SRPMIC and the Town may enter into an agreement with one another for the distribution of a portion of 12% of the SRPMIC annual contribution (“Contribution”) under Section 12 of the Compact to cities, towns, or counties that benefit the general public or promote commerce and economic development pursuant to A.R.S. §5- 601.02. 2. The SRPMIC is authorized by Article VII, Section 1(h) of the Constitution of SRPMIC to consult, negotiate, contract and conclude and perform agreements with Federal, state, local governments and Indian Tribes, as well as any person, association, partnership, corporation, government or other private entity. 3. The Town is authorized by A.R.S. § 11-951 through § 11-954 to enter into intergovernmental agreements with other governmental agencies including Indian Tribes. 4. The SRPMIC desires to convey to the Town a portion of its annual 12% local revenue- sharing contribution (“Contribution”) required to be paid to local governments. NOW THEREFORE, in consideration of the foregoing recitals, which are incorporated herein, and the covenants and promises set forth below, the SRPMIC and the Town hereby mutually agree as follows: AGREEMENT 1. Purpose. The purpose of this Agreement is to set forth the rights and responsibilities of the parties with respect to the payment and distribution of the Contribution(s), as hereinafter defined. Meeting Packet Page 66 of 301 Page 2 of 6 2. Contribution: $ 50,000.00 to the Town of Fountain Hills for a tourism collaboration in support of the annual “Music Fest” event. 3. Payment and Use of Funds. a. Use of Funds for Purposes Other Than to Fulfill Agreement. The Town shall use the Contribution only for the express purpose contained herein. b. Inspection and Audit. To ensure compliance with this Agreement, the SRPMIC hereby reserves the right to inspect any and all records maintained by the Town with respect to this transaction upon seven (7) days prior, written notice to the Town. The Town shall allow the SRPMIC reasonable access to the records pertaining thereto. This section shall survive termination, cancellation, or revocations, whether whole or in part, of this Agreement for a period of one (1) year following the date of such termination, cancellation, or revocation. 4. Management of the Project. a. Use of Contributions and Recordkeeping. The Town shall have responsibility for disbursing the Contributions to the recipients in amounts consistent with this Agreement. Within a reasonable time following receipt of the Contributions from the SRPMIC, the Town shall use the Contributions in accordance with applicable Town policies and procedures governing the use of funds. The Town shall keep and maintain records relating to this Agreement. 5. Notices. Any notice, communication or modification shall be given in writing and shall be given by registered or certified mail or in person to the following individuals. The date of receipt of such notices shall be the date the notice shall be deemed to have been given. For the SRPMIC: Martin Harvier, President Salt River Pima Maricopa Indian Community 10005 E. Osborn Road Scottsdale, Arizona 85256 For the Town of Fountain Hills: Rachael Goodwin, Town Manager Town of Fountain Hills 16705 East Avenue of the Fountains Meeting Packet Page 67 of 301 Page 3 of 6 Fountain Hills, Arizona 85268 6. Transactional Conflict of Interest. All parties hereto acknowledge that this Agreement is subject to cancellation by the Town pursuant to the provisions of Section 38-511, Arizona Revised Statutes. 7. Term and Termination of Agreement. a. Effective Date. This Agreement shall be effective on the date it is signed by the SRPMIC authorized representative. b. Term. This Agreement shall commence upon the Effective Date and shall terminate when the Contribution has been received and fully used by the Town, as specified in Section 2 of this Agreement. c. Termination: The SRPMIC may terminate this Agreement with or without cause at any time by providing the Town five (5) days advance notice in writing. In the event the SRPMIC terminates this Agreement after the Town receives the Contribution but before the Town has disbursed the Contribution to the recipients, the SRPMIC shall include in the notice of termination specific instructions regarding disposition of the Contribution. 8. Indemnification. a. Indemnification. Each party (as “Indemnitor”) shall indemnify, defend, and hold harmless the other party (as “Indemnitee”), its governing body, officers, departments, employees and agents from and against any and all suits, actions, legal or administrative proceedings, claims, demands, liens, losses, fines or penalties, damages, liability, interest, attorneys, consultants and accountant fees or costs and expenses of whatsoever kind and nature (collectively referred to as “Claims”), but only to the extent that such Claims which result in vicarious/derivative liability to the Indemnitee resulting from or arising out of the negligence or willful misconduct of the Indemnitor’s employees or agents in performing the duties set forth in this Agreement. b. Severability. This section shall survive termination, cancellation, or revocation whether whole or in part, of this Agreement for a period of one (1) year from the date of such termination, cancellation or revocation unless a timely claim is filed under A.R.S. § 12-821.01, in which case this paragraph shall remain in effect for each claim and/or lawsuit filed thereafter, but in no event shall this paragraph survive more than five (5) years from the date of termination, cancellation or revocation of this Agreement. Meeting Packet Page 68 of 301 Page 4 of 6 9. Interpretation of Agreement. a. Entire Agreement. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter contained herein, and all prior or contemporaneous agreements and understandings, oral or written, are hereby superseded and merged herein. b. Amendment. This Agreement shall not be modified, amended, altered, or changed except by written agreement signed by both parties. c. Construction and Interpretation. All provisions of this Agreement shall be construed to be consistent with the intention of the parties as expressed in the recitals contained herein. d. Relationship of the Parties. Neither party shall be deemed to be an employee or agent of the other party to this Agreement. e. Days. Days shall mean calendar days. f. Severability. In the event that any provisions of this Agreement or the application thereof is declared invalid or void by statute or judicial decision, such action shall have no effect on other provisions and their application which can be given effect without the invalid or void provision or application, and to this extent the provisions of the Agreement are severable. In the event that any provision of this Agreement is declared invalid or void, each party agrees to meet promptly upon request of the other party in an attempt to reach an agreement on a substitute provision. 10. Non-Waiver of Sovereign Immunity. Nothing in this Intergovernmental Agreement shall be construed to waive the Sovereign Immunity of the SRPMIC. IN WITNESS WHEREOF, the Town has caused this Intergovernmental Agreement to be approved by the Town Council, executed by its Mayor and attested to by its Town Clerk, pursuant to the above stated powers and authority, and the SRPMIC has caused this Intergovernmental Agreement to be executed by the SRPMIC Council and attested to by its President. This Agreement is effective upon signature of a duly appointed representative of the Salt River Pima-Maricopa Indian Community. Meeting Packet Page 69 of 301 Page 5 of 6 IN WITNESS WHEREOF, the Parties have executed this Agreement. SALT RIVER TOWN OF FOUNTAIN HILLS, PIMA-MARICOPA INDIAN COMMUNITY, an Arizona Municipal Corporation: A Federally Recognized Indian Tribe: By:______________________________ By:___________________________ Name:_Martin Harvier ________ Name: Its: President_________________________ Its: Mayor Date: Date: ATTEST: ______________________________ [Insert name, title] Meeting Packet Page 70 of 301 Page 6 of 6 APPROVAL OF SRPMIC ATTORNEY The undersigned attorney acknowledges that s/he has reviewed the above Agreement on behalf of the Salt River Pima-Maricopa Indian Community, and has determined that this Agreement is in proper form and that execution hereof is within the powers and authority granted under the Constitution of the Salt River Pima-Maricopa Indian Community, Article VII, §1(h). This acknowledgement shall not constitute nor be construed as a waiver of the Sovereign Immunity of the Salt River Pima-Maricopa Indian Community. ________________________________ ______________________ General Counsel Date APPROVAL OF TOWN ATTORNEY In accordance with the requirements of A.R.S. § 11-952(D), the undersigned attorney acknowledges that (i) s/he has reviewed the above Agreement on behalf of the Town of Fountain Hills and (ii) as to the Town of Fountain Hills only, has determined that this Agreement is in proper form and that execution hereof is within the powers and authority granted under the laws of the State of Arizona. By: _______________________________ _______________________ Town Attorney Date Meeting Packet Page 71 of 301 ITEM 8.d. TOWN OF FOUNTAIN HILLS STAFF REPORT Meeting Date: 10/20/2026 Meeting Type: Town Council Regular Meeting Submitting Department: Fire Department Prepared by: Dave Ott, Fire Chief Staff Contact Information: Phone: 480-816-5280 Email: dott@fountainhillsaz.gov Request to Town Council Regular Meeting (Agenda Language) CONSIDERATION AND POSSIBLE ACTION: Approving Resolution 2026-23 IGA with the City of Mesa for Fleet Services for the Fire Department. Staff Summary (background) FHFD currently uses two vendors to service our apparatus (fire trucks and the ladder), Velocity Truck Centers (VTC) in Tolleson and Fire Truck Solutions (FTS) in Phoenix. Although the service from both of the vendors is great, the IGA with the City of Mesa Fleet Services will provide another layer of excellent service options for us. The per hour labor charge for Mesa will be approximately $111 per hour. VTC is $189 per hour and FTS is $$160. The IGA will also allow us access to loaner apparatus if needed. Our current vendors are not able to provide this service. 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 Approval of Resolution 2026-23 IGA with the City Mesa for Fleet Services. Suggested Motion MOVE TO APPROVE Resolution 2026-23 IGA with the City of Mesa for Fleet Services for the Fire Department. FISCAL IMPACT Fiscal Impact: The use of the City of Mesa Fleet will reduce travel time and distance saving on wear and tear and fuel costs. The hourly rate is approximately $50-$80 less than our other fleet services vendors and we hope this will reflect in lower maintenance costs. Budget Reference: N/A Funding Source: Operating Budget FDOP 6240 ATTACHMENTS 1. Res. 2026-23 - Mesa Fleet Services with IGA Meeting Packet Page 72 of 301 RESOLUTION NO. 2026-23 A RESOLUTION OF THE MAYOR AND TOWN COUNCIL OF FOUNTAIN HILLS, MARICOPA COUNTY, ARIZONA, APPROVING AN INTERGOVERNMENTAL AGREEMENT WITH THE CITY OF MESA RELATING TO FLEET SERVICES FOR FIRE APPARATUS. WHEREAS the Town desires to coordinate with the City of Mesa, a political subdivision of the State of Arizona, to assure fleet services; and WHEREAS the Town desires to have a loaner fire engine when the need arises. BE IT RESOLVED BY THE MAYOR AND TOWN COUNCIL OF THE TOWN OF FOUNTAIN HILLS as follows: SECTION 1. That the Town, through its Mayor and Council, hereby approves the Intergovernmental Agreement (the "Agreement"), in substantially the form attached hereto as Exhibit A. SECTION 2. The Mayor, the Town Manager, the Town Clerk and the Town Attorney are hereby authorized and directed to cause the execution of the Agreement and to take all steps necessary to carry out the purpose and intent of this Resolution. PASSED AND ADOPTED by the Mayor and Council of the Town of Fountain Hills, Maricopa County, Arizona, this 20th day of October, 2026. FOR THE TOWN OF FOUNTAIN HILLS: ATTESTED TO: ____________________________ __________________________ Mayor Town Clerk REVIEWED BY: APPROVED AS TO FORM: _______________________________ _____________________________ Town Manager Town Attorney Meeting Packet Page 73 of 301 EXHIBIT A Intergovernmental Agreement City of Mesa Meeting Packet Page 74 of 301 {00211259.1} 1 INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF MESA AND TOWN OF FOUNTAIN HILLS RELATING TO FIRE APPARATUS MAINTENANCE AND REPAIR SERVICES This intergovernmental agreement (“Agreement”) is entered into this ______ day of _______________________, 20_____, between the City of Mesa, an Arizona municipal corporation (“Mesa”), and the Town of Fountain Hills (“Fountain Hills”) (collectively referred to herein as “the Parties” or individually as a “Party”). RECITALS: WHEREAS Arizona Revised Statutes, sections 11-951 et seq., authorizes the Parties to enter into an intergovernmental agreement for services; and WHEREAS the Parties are authorized by law to provide fire and emergency medical services; and WHEREAS the Mesa Fire and Medical Department has a Fleet Maintenance Division that provides preventive maintenance and repair services on all Fire Department vehicles and apparatus; and WHEREAS the Town of Fountain Hills desires to have Mesa provide preventive maintenance and repair services on its fire apparatus; and WHEREAS the Parties have determined that it is mutually beneficial for the Mesa Fire and Medical Department to provide fire apparatus maintenance and repair services on Town of Fountain Hills fire vehicles/apparatus. NOW THEREFORE, in consideration of the mutual promises, covenants and agreements contained in this Agreement, the Parties agree as follows: SECTION 1 – TERM, TERMINATION 1.1 Term. This Agreement shall commence on ____________________, 20___ and shall continue until ________________, 20 ____, unless sooner terminated or renewed pursuant to the provisions of this agreement. Renewal. This Agreement may be renewed two times following re-negotiation of the terms and conditions of the Agreement. If either Party desires to renew this Agreement, it must give the other Party ninety (90) days’ notice before the expiration of the then-current term of the Agreement. A renewal term shall not exceed one (1) year. Meeting Packet Page 75 of 301 {00211259.1} 2 1.2 Termination on Notice. Either Party may terminate this Agreement for any or no reason by providing at least sixty (60) days’ written notice to the non-terminating party of the intention to terminate. Termination shall be effective sixty (60) days after the effective date of service of the notice. 1.3 Termination for Cause. In the event of a material breach of any of the provisions of this Agreement, the non-breaching party may terminate this Agreement by delivering written notice to the breaching party specifically stating the nature of the breach. Upon being served with such notice, the breaching party shall have sixty (60) days from the date of the notice in which to cure said breach. If said breach has not been cured within this sixty (60) days’ time period, this Agreement shall be deemed terminated. During the cure period, the non-breaching party may suspend performance under this Agreement without penalty. 1.4 Termination for Non-appropriation. Mesa is a governmental agency that relies upon the appropriation of funds by its governing body to satisfy its obligations. If Mesa reasonably determines that it does not have funds to meet its obligations under the Agreement, Mesa will have the right to terminate the Agreement without penalty on the last day of the fiscal period for which funds were legally available. In the event of such termination, the City will provide written notice of its intent to terminate thirty (30) calendar days prior to the stated termination. SECTION 2 – SCOPE OF WORK AND COMPENSATION 2.1 Mesa’s Responsibilities and Obligations: a. For the term of this Agreement, Mesa shall provide full maintenance and repair services that meet manufacturer maintenance schedules and the applicable National Fire Protection Association fire apparatus guidelines for Fountain Hills fire apparatus as needed on a 24-hour basis, seven (7) days per week. b. All maintenance and repair services shall be performed by Emergency Vehicle Technician (EVT) certified technicians. c. Routine preventative maintenance and major repairs for Fountain Hills fire apparatus will be performed by Mesa at the Mesa Fire Department Fire Maintenance Facility located at 708 W. Baseline Road, Mesa, Arizona, 85210. d. Mesa shall provide emergency maintenance services at a Fountain Hills facility in the event a Fountain Hills fire apparatus is not drivable and thus cannot be delivered to the Mesa Fire Maintenance shop. Meeting Packet Page 76 of 301 {00211259.1} 3 e. In providing maintenance services for Fountain Hills fire apparatus, Mesa shall not obtain assistance from an outside source without the prior written consent of Fountain Hills if the cost of such assistance exceeds ten thousand dollars ($10,000.00). f. Mesa will loan fire apparatus to Fountain Hills upon request at the compensation rate set forth in Section 2.2b (vi) if Mesa has such apparatus available. g. Mesa shall maintain records on all repairs made by Mesa to Fountain Hills fire apparatus on a computerized record keeping system and shall provide Fountain Hills with monthly summaries of the repairs on request. h. Mesa shall provide workers compensation coverage, under Mesa’s self-insured policy, for all Mesa employees performing services under this Agreement. i. Mesa shall submit an invoice to Fountain Hills on a quarterly basis reflecting the compensation owed by Fountain Hills, which amount shall be calculated pursuant to the provisions set out in Section 2.2. 2.2 Town of Fountain Hills Responsibilities and Obligations: a. Fountain Hills shall both deliver to, and pick up from the Fire Maintenance shop, located at 708 W. Baseline Road, Mesa, Arizona, 85210, all fire apparatus needing or having received maintenance or repairs. b. Compensation to be paid by Fountain Hills to Mesa under this Agreement shall be calculated as follows: (i) Fountain Hills shall pay a labor rate of $110.23 per hour for maintenance services performed between the hours of 5:00 am and 3:30 p.m., Monday through Friday; and (ii) Fountain Hills shall pay a labor rate of $123.58 per hour for maintenance services performed outside of the “business hours” stated in Section 2.2b (i); and on holidays observed by Mesa. (iii) In addition to the hourly labor rates stated in Sections 2.2b (i) and 2.2b (ii), Fountain Hills agrees to pay for all parts and materials utilized in the maintenance and repair of Fountain Hills fire apparatus. The cost to Fountain Hills for such parts and Meeting Packet Page 77 of 301 {00211259.1} 4 materials shall be the same as Mesa’s cost, plus a ten percent (10%) handling fee; and (iv) Fountain Hills agrees to pay for costs incurred in the event that Mesa obtains maintenance assistance from an outside source as provided in Section 2.1e. The cost for such outside maintenance assistance shall be Mesa’s cost plus a ten percent (10%) handling fee with a cap of ten thousand dollars ($10,000.00), absent prior approval from Fountain Hills for any amount exceeding the cap; and (v) Fountain Hills does not deliver and/or pick up fire apparatus needing or receiving maintenance or repairs as required under Section 2.2a, then Fountain Hills shall reimburse Mesa for any costs incurred by Mesa in delivering or returning Fountain Hills fire apparatus; and (vi) Fountain Hills shall pay Mesa five hundred dollars ($500.00) per day for the rental of apparatus as specified in Section 2.1f. The rented apparatus shall be returned to Mesa cleaned and fully fueled. (vii) The compensation described in Section 2.2b(i) and 2.2b(ii), may be adjusted up to 8% on __________ of each year of the contract term. c. Within forty-five (45) days after receiving an invoice(s), Fountain Hills shall pay Mesa all compensation due and owing as determined pursuant Section 2.2b. SECTION 3 – INDEMNIFICATION AND LIMITATION OF LIABILITY; INSURANCE 3.1 Fountain Hills shall defend, indemnify, and hold harmless Mesa, its officers, agents, employees, elected and appointed officials, and volunteers, from and against all actions, lawsuits, losses and expenses (including court costs, expenses for litigation, and reasonable attorney fees), damages, claims, or other liabilities of any kind (“Liability”) resulting from or arising out of this Agreement and/or Mesa’s performance hereunder (including, without limitation, Liability on account of any injury, sickness, disease, or death of any person or damage, destruction, or loss of any property). The obligations of the foregoing indemnification provision shall not apply in the event that any such Liability is found to have resulted from the negligence or intentional misconduct of Mesa. 3.2 Fountain Hills shall obtain and maintain at its expense throughout the Term of this Agreement, at a minimum, commercial general liability insurance in amounts not less Meeting Packet Page 78 of 301 {00211259.1} 5 than $3 million per occurrence and $5 million in the aggregate for bodily injury, personal injury, and products and completed operations with broad form contractual and property damage coverage. Fountain Hills shall also obtain and maintain at its expense through the Term of this Agreement automobile liability insurance for bodily injury and property damage with a limit of $1 million per occurrence, including owned, hired and non-owned autos. Fountain Hills shall also cause their annual automobile insurance policy to be endorsed to be the primary coverage on any and all Mesa vehicles/apparatus whenever those vehicles/apparatus are loaned to Fountain Hills as set forth in Section 2.1f. Failure to produce sufficient evidence of the endorsement on an annual basis shall be considered a breach of this Agreement and must be remedied before any further vehicles loans can continue. The intent of this provision is that any coverage that Mesa may carry on its vehicles shall be secondary to and non- contributory to Fountain Hills coverage during the loan period when the substitute vehicles are under Fountain Hills control. Nothing in Section 3.2 shall limit Fountain Hills responsibility to Mesa. The insurance requirements herein are minimum requirements for the Agreement and in no way limit the indemnity promise contained in Section 3.1 of this Agreement. Mesa does not warrant that the minimum limits contained herein are sufficient to protect Fountain Hills from liabilities that might arise out this Agreement Fountain Hills is encouraged to purchase additional insurance as it deems necessary. Each insurance policy required under this Agreement must be in effect at or prior to the execution of the Agreement and remain in effect for the Term of the Agreement. Prior to the execution of the Agreement, Fountain Hills will provide Mesa with a Certificate of Insurance (using an appropriate “ACORD” or equivalent certificate) signed by the insurer with applicable endorsements. Mesa reserves the right to request additional copies of any or all of the policies, endorsements or notices relating thereto under the Agreement. When Mesa requires a Certificate of Insurance to be furnished, Fountain Hills insurance is primary of all other sources available. When Mesa is a certificate holder or additional insured Fountain Hills agrees no policy will expire, be canceled, or be materially changed to affect the coverage available without advance written notice to the City. The policies required by this Agreement must contain a waiver of transfer of rights of recovery (waiver of subrogation) against Mesa, its agents, representatives, officials, volunteers, officers, elected and appointed officials, and employees for any claims arising out of the performance of services under this Agreement. All insurance certificates and applicable endorsements are subject to review and approval by Mesa’s Risk Management Division. Meeting Packet Page 79 of 301 {00211259.1} 6 SECTION 4 - MISCELLANEOUS 4.1 Funding. Each party to this agreement shall have the separate and independent responsibility of budgeting for and funding its own participation in this Agreement. 4.2 A.R.S. §38-511. This Agreement may be cancelled in accordance with Arizona Revised Statutes §38-511. 4.3 Entire Agreement. This Agreement constitutes the entire agreement between Fountain Hills and Mesa with respect to the subject matter hereof. This Agreement further supersedes all other oral and written representations, understandings, or agreements relating to the subject matter hereof. 4.4 Amendments. This Agreement may be modified only by a written amendment signed by both parties. However, if mutually agreed, the parties may enter into specific supplemental written agreements, subject to appropriate approvals, to accomplish the goals of this Agreement and to carry out its terms and conditions. 4.5 Assignment. Neither party shall assign or otherwise transfer this Agreement, in whole or in part, without the prior written consent of the other party. Any such assignment or other transfer, either voluntary or by operation of law, shall be void. 4.6 Waiver. The parties agree that no waiver of any default or breach of any of the terms or conditions of this Agreement shall be construed to be a waiver of any succeeding breach or default. 4.7 Governing Law. This Agreement shall be governed by the laws of Arizona. 4.8 Severability. If any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of this Agreement shall remain in full force and effect and shall in no way be affected, impaired, or invalidated. 4.9 No Partnership. Nothing contained in this Agreement shall create any partnership, joint venture or other arrangement between the parties. Except as specifically provided hereunder, each party shall at all times be an independent operator and shall not at any time purport to act as an agent of any other party, or any of its officers or agents. 4.10 Force Majeure. Either party shall be excused for delay or failure to perform its obligations under this Agreement, in whole or in part, when and to the extent that such delay or failure is a result of causes beyond the control and without the fault or negligence of the party unable to perform. Such causes include, without limitation, Meeting Packet Page 80 of 301 {00211259.1} 7 acts of God, acts of the public enemy, acts of the United States government, fires, floods, epidemics, quarantine restrictions or embargoes. IN WITNESS WHEREOF, the Parties have executed this Agreement on the date and year first written above. CITY OF MESA TOWN OF FOUNTAIN HILLS A Municipal Corporation __________________________ ____________________________ Scott Butler Rachael Goodwin City Manager Town Manager ATTEST: ____________________________ _____________________________ City Clerk Town Clerk In accordance with A.R.S. §_________, this Agreement has been reviewed by the undersigned attorneys who have determined that it is in proper form and within the power and authority granted under the laws of the State of Arizona to the respective public entities they represent. _____________________________ _____________________________ Mesa City Attorney Town of Fountain Hills Attorney _____________________________ _____________________________ Date Date Meeting Packet Page 81 of 301 ITEM 9.a. TOWN OF FOUNTAIN HILLS STAFF REPORT Meeting Date: 10/20/2026 Meeting Type: Town Council Regular Meeting Submitting Department: Development Services Prepared by: John Wesley, Development Services Director Staff Contact Information: Phone: 480-816-5138 Email: jwesley@fountainhillsaz.gov Request to Town Council Regular Meeting (Agenda Language) PUBLIC HEARING, with CONSIDERATION AND POSSIBLE ACTION: Relating to Ordinance 26-12 repealing and replacing Zoning Ordinance Chapter 17, Wireless Telecommunication Towers and Antennas. Staff Summary (background) In their January 2025 meeting, the Town Council directed staff to work with the Planning and Zoning Commission to update all the Town's ordinances and other regulatory documents regarding wireless telecommunications towers and antennas. To help complete this project, with direction from the Town Council, staff entered into a contract with McCollough Law Firm PC to assist staff in the drafting of the updates to the ordinances and associated documents. This firm was selected based on their expertise in this field of law and their responsiveness to working with staff to complete this project in a timely manner. This project involved reviewing and making recommendations for changes to Chapter 17 of the Zoning Ordinance and Articles 16-2 and 16-3 of the Town Code along with the associated documents for small cell facilities in the Town rights-of-way. The Planning and Zoning Commission held a work session on July 28 to review the draft ordinances to amend Chapter 17 and Articles 16-2 and 16-3. Based on the input received at that meeting, the consultant and staff prepared a final draft ordinance amending Zoning Ordinance Chapter 17 for consideration at a public hearing of the Planning and Zoning Commission on September 14, 2026. The ordinance provided to the Commission for their public hearing included responses to comments made by the Commission at their work session as well as addressing comments received from the public following the work session. The consultant and staff have worked to revise Chapter 17 to provide the maximum protection for the town while also complying with legal requirements and providing reasonable means to have adequate wireless communication coverage throughout the Town. Overarching purposes of the update were to: •Preserve local authority to the fullest extent allowed by federal and Arizona law •Protect Fountain Hills' desert character, scenic views, historic resources, residential properties, and neighborhoods •Implement comprehensive permit application requirements and review procedures •Improve transparency, accountability, and defensibility of permitting decisions At the public hearing on September 14, the public and Commissioners expressed strong support for the revised ordinance. Through the discussion, a few additional recommendations were made for inclusion in the ordinance. Those changes have been made and are reflected in Meeting Packet Page 82 of 301 the attached ordinance. Attached are two copies of the final draft ordinance. One is a strike-through version of Chapter 17 as presented to the Commission at the public hearing with the changes made based on the recommendation of the Commission and the second version is a clean copy of the ordinance with all the new changes accepted. Also attached is a copy of the strikethrough version of the draft ordinance presented at the July work session. This version provides a review of the changes made to the current Chapter 17. This report provides an overview of the final draft ordinance, including changes made in response to the stipulations included in the motion for approval by the Planning and Zoning Commission. Section 17.01 Purpose, Intent, and Applicability The list of purposes for the ordinance has been expanded to a more comprehensive description of the goals for the ordinance. The intent provisions have been expanded to more fully capture the intent to comply with Federal Communication Commission rules while protecting the Town's natural and cultural resources. This section now expressly states the requirement to comply with radiofrequency exposure guidelines. The applicability section now has a statement that clearly requires existing towers and antennas to comply with the new regulations when they are modified in any manner. Section 17.02 Definitions Over 80 new definitions were added to clarify important legal and technical terms. Two changes made in this section in response to the stipulations of the Planning and Zoning Commission were: • add a definition "Mobile or temporary tower" to help address the comments on temporary towers; and • a change to "Pre-existing towers and pre-existing antennas" to address a concern regarding the potential there are existing towers that the Town may not have documented permits for. Section 17.03 Requirements This section of the ordinance sets out the basic requirements to be followed when making an application for new towers or upgrading existing towers and antennas. Much of Section 17.03 A, General Requirements, has remained unchanged from what was reviewed by the Planning and Zoning Commission. There are, however, a few significant additions to this section compared to the existing ordinance. Those changes include: • Section 17.03 A 3 e i. Removed the language regarding certain types of designs that could be used to camouflage a tower and antennas. The concern was that by stating specific types of camouflage, applicants would design to those choices rather than provide a more site-specific solution. • Section 17.03 A 3 h i. Removed the last sentence regarding using additional palm trees to help screen a tower. This was removed as a companion to the change in A 3 e i regarding specific design solutions. Additional trees may still be required, but it is not limited to palm trees. Meeting Packet Page 83 of 301 • To address the topic of facilities that are data only, added Section 17.03 A 3. j. Data-Only and Information Service Facilities. To the maximum extent permitted by federal and state law, any wireless facility used exclusively for the provision of an information service, data collection, telemetry, machine-to-machine communication, sensing, monitoring, or another service that does not constitute a personal wireless service under 47 U.S.C. ss 332(c)(7)(C) or a telecommunications service protected by 47 U.S.C. ss 253 shall be installed underground or flush with grad, including its antenna, antenna equipment and accessory equipment, where technically feasible. An applicant seeking above-ground installation shall demonstrate through clear and convincing technical evidence that underground or flush-to-grade installation would prevent the facility from performing its intended function and that the proposed above-ground installation is the least visually intrusive technically feasible alternative. Nothing in this subsection shall require underground placement to the extent the applicant demonstrates that such requirement is expressly prohibited or preempted by applicable federal or Arizona law. • Section 17.03 A 14 was added to ensure there is parking available around a tower site to provide for maintenance activities. • Section 17.03 A 15, Minimum Height of Antennas, was added to ensure all antennas are placed above head height. • Section 17.03 A 16 was added to clarify regulations regarding fall zones and to ensure that if a tower falls it will not fall on neighboring property or any adjacent public streets or sidewalks. Compared to the current ordinance, a couple of significant changes were made to Section 17.03 B Minimum Setbacks and Separations. Section 17.03 B 2 a currently has a table with setback requirements for towers requiring a separation between 100' and 200' from residential properties. The new ordinance requires all towers to be at least 500' from any residential use or zoning district. There is a provision, however, that the Town Council a reduction down to 300' if the applicant provides information and data showing the goals of the ordinance are better served at the reduced distance. Section 17.03 B 2 b includes a table for separation distances between towers. Table 17.03 B 2 b was amended to increase the separation distance by 500' for most tower heights. The separation distance between towers less than 40' in height was just increased 250'. In the new ordinance the minimum distance between towers will range from 1000' for two towers of less than 40' in height to 2,500' for towers that are 65' tall or taller. Section 17.03 C has two primary changes from the current ordinance. Sec. 17.03 C 1 was amended to require all equipment vaults to be placed underground unless Council approves above-ground equipment placement through good cause shown. At the Planning and Zoning Commission work session, several Commissioners expressed support for requiring a specific type of battery to decrease potential fire hazards. This language was added in Section 17.03 C: 4. Battery Safety. Any battery energy storage or backup power system installed in connection with a PSWF shall utilize lithium ion phosphate (LiFePO4 or LPE) batteries, which are less prone to thermal runaway and fire hazard. All battery systems shall comply with applicable fire, electrical, building, and product-safety codes and standards. Meeting Packet Page 84 of 301 Section 17.03 D, Co-location, has remained largely unchanged. A change made to address the stipulations of the Planning and Zoning Commission recommendation was to amend 17.03 B 2 a to address the concern for wireless facility separation from schools and daycare facilities. This will now require wireless facilities to be at least 500' from schools and daycare facilities unless Council approves a reduction down to 300'. Section 17.04 Application Types This section defines what types of applications can be reviewed administratively and which require public review. This section was modified to require all new towers to go through a public review process. A change made to address the stipulations of the Planning and Zoning Commission recommendation was to amend Section 17.04 A 6 to provide more detail on what information is needed for the review and approval of a temporary wireless facility. Section 17.05 Application Submittal, Review, and Processing This section of the ordinance defines what type of information is required for the different application types and the review process that will be followed for administrative and public review applications. Section 17.05 A regarding general application requirements has been significantly modified to increase the General submission requirements. Items 5 - 18, which include things such as fire safety information, visual impact analysis, FCC compliance report, and effective prohibition claims, were all added to the items required. Several changes were made to this section based on feedback received at the Commission work session. Section 17.05 B regarding shot clocks and tolling has remained largely unchanged from the current ordinance. Section 17.05 C has been updated to require some additional information to be submitted with the application. Subsections C 1 h - l are all new. Subsection C 3 b in the new ordinance regarding factual determinations which need to be made as part of the review and approval process is all new. This section requires Council to use factual determinations based on both local zoning requirements and Telecommunications Act of 1996 (TCA) requirements. Section 17.05 C was also expanded to add review items 4, Environmental Impacts; 5, Historic Sites Impacts; 6, Tribal Site Impacts; and 7, Force Majeure. A change to address the stipulations of the Planning and Zoning Commission recommendation was to amend Sec. 17.05 A 11 to increase the time for a balloon test from four hours to eight hours. Section 17.06 Maintenance and Operation This section addresses the ongoing maintenance and operations of a tower, antennas, and the associated equipment. This also includes provisions for the removal of the tower and equipment if the site is abandoned. Section 17.06 A regarding removal of abandoned antennas has been expanded to require a bond for the cost of removal and Section 17.06 B 2 regarding state and federal requirements has been greatly expanded to address excessive radiofrequency (RF) emissions. The following additional sections have been added: Meeting Packet Page 85 of 301 • Section 17.06 E, Maintenance. This requires ongoing maintenance of the tower and tower site and includes a requirement for a maintenance bond the Town can call if needed to perform needed maintenance. • Section 17.06 F, Maintenance Contact Information. This has been added in response to comments about ensuring ongoing maintenance. This will ensure the Town has a contact for any required maintenance issues. • Section 17.06 G, Indemnity and Liability for damages. • Section 17.06 H Certificate of Insurance required. This section outlines in detail the insurance requirements needed for the installation and operation of a wireless communications tower. • Section 17.06 I, ADA Accommodations. • Section 17.06 J, Decommissioning and Reclamation Plan. This section sets standards for the restoration of a site if a tower is decommissioned and removed. Changes to address the stipulations of the Planning and Zoning Commission include: • Amending Sec. 17.06 A 2 regarding the amount of the bond required. The revised language requires the estimate to be approved by a certified engineer and that the bond be 125% of the estimate. • Amending Sections 17.06 B 2 b and 17.06 B 3 to provide more direction and a cure period when addressing issues of excessive RF emissions. • Amending Sec. 17.06 E to provide the requirements for the required maintenance bond for wireless facilities. Section 17.07 Nonconforming Uses This section remains largely unchanged. Section 17.08 Retention of Consultants This is a new section which provides the process for the Town to hire consultants to help administer the requirements of the ordinance. Related Ordinance, Policy or Guiding Principle N/A Risk Analysis N/A Recommendation(s) by Board(s) or Commission(s) The Planning and Zoning Commission has been working on the review and update to this ordinance and related ordinances and requirements since March 2025. They have reviewed the ordinance at multiple meetings, including two sessions with the consultant hired by the Council to complete the ordinance amendments. The Commission held a public hearing on September 14, 2026, to receive comments from the public regarding the proposed revisions. At that meeting, the Commission voted 7-0 to forward a recommendation for approval to the Council with five stipulations. Each of those stipulations has been address with the revised ordinance attached to this report. Staff Recommendation(s) Staff recommends adoption of Ordinance 26-12. Suggested Motion Meeting Packet Page 86 of 301 MOVE TO approve Ordinance 26-12. FISCAL IMPACT Fiscal Impact: N/A Budget Reference: N/A Funding Source: N/A ATTACHMENTS 1. Ordinance 26-12 Chapter 17 2. Ch 17_Sep 14 P&Z Stipulations 3. Draft Chapter 17 for P&Z study session with strikethrough Meeting Packet Page 87 of 301 ORDINANCE NO. 26–12 AN ORDINANCE OF THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, MARICOPA COUNTY, ARIZONA, AMENDING THE FOUNTAIN HILLS ZONING ORDINANCE BY REPEALING AND REPLACING CHAPTER 17, WIRELESS TELECOMMUNICATION TOWERS AND ANTENNAS WITH A NEW CHAPTER 17, WIRELESS TELECOMMUNICATION TOWERS AND ANTENNA. WHEREAS, the Mayor and Council of the Town of Fountain Hills (the “Town Council”) adopted Ordinance No. 93-22 on November 18, 1993, which adopted the Zoning Ordinance for the Town of Fountain Hills (the “Zoning Ordinance”); and WHEREAS, the Town desires to enhance the ability of the providers of telecommunications services to provide such services to the community quickly, effectively, and efficiently while protecting residential areas and land uses from potential adverse impacts of towers and antennas; and WHEREAS, the Town Council desires to repeal the existing Chapter 17, Wireless Communication Towers and Antennas and replace it with a new and updated Chapter 17, Wireless Communication Towers and Antennas; and WHEREAS, in accordance with the Zoning Ordinance and pursuant to ARIZ. REV. STAT. § 9-462.04, public hearings regarding this ordinance were advertised in the August 26, 2026, and September 1, 2026, editions of the Fountain Hills Times; and WHEREAS, a public hearing was held by the Planning and Zoning Commission on September 14, 2026, and by the Town Council on October 20, 2026; and WHEREAS, in accordance with Article II, Sections 1 and 2, Constitution of Arizona, and the laws of the State of Arizona, the Town Council has considered the individual property rights and personal liberties of the residents of the Town and the probable impact of the proposed ordinance on the cost to construct housing for sale or rent before adopting this ordinance. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, as follows: SECTION 1. The recitals above are hereby incorporated as if fully set forth herein. SECTION 2. Chapter 17 of the Fountain Hills Zoning Ordinance is hereby repealed and replaced with the ordinance as provided in Exhibit A. Meeting Packet Page 88 of 301 SECTION 3. If any provision of this Ordinance is for any reason held by any court of competent jurisdiction to be unenforceable, such provision or portion hereof shall be deemed separate, distinct and independent of all other provisions and such holding shall not affect the validity of the remaining portions of this Ordinance. SECTION 4. EMERGENCY CLAUSE - WHEREAS, it is necessary for the preservation of the peace, health, and safety of the Town of Fountain Hills, Arizona, an emergency is declared to exist, and this ordinance shall become immediately operative and in force from and after the date of adoption. PASSED AND ADOPTED by the Mayor and Council of the Town of Fountain Hills, Arizona, this 20th day of October, 2026. TOWN OF FOUNTAIN HILLS, ARIZONA ATTEST: ____________________________________________ _______________________________________ Gerry M. Friedel, Mayor Bevelyn Bender, Town Clerk REVIEWED BY: APPROVED AS TO FORM: _____________________________________________ ________________________________________ Rachael Goodwin, Town Manager Town Attorney Meeting Packet Page 89 of 301 ORDINANCE NO. 26-12 EXHIBIT A Chapter 17 Wireless Telecommunications Towers and Antennas Section 17.01 Purpose, Intent, and Applicability A. The purpose of this chapter is to establish general guidelines for the siting of wireless communications towers and antennas. The goals of this chapter are to: 1. Protect residential areas and land uses from potential adverse impacts of towers and antennas; 2. Employ the “General Authority” preserved to the Town under 47 U.S.C. § 332(c)(7)(A) to the greatest extent the United States Congress intended while simultaneously complying with each of the substantive and procedural requirements set forth within the subsection 47 U.S.C. § 332(c)(7)(B). 3. Employ the authority reserved under A.R.S. §§ 9-462.01, and 9-596.A to exercise the Town’s zoning powers, land use, planning and permitting authority, exercise its police powers, and manage access to the Town’s public rights of way. 4. Promote the location of towers in nonresidential areas; 5. Limit the total number of towers throughout the community; 6. Strongly encourage the joint use of new and existing tower sites as a primary option rather than construction of additional single-use towers; 7. Require users of towers and antennas to locate them, to the extent possible, in areas where the adverse impact on the community is minimal; 8. Require users of towers and antennas to configure them in a way that minimizes the adverse visual impact of the towers and antennas through careful design, siting, landscape screening, and camouflaging techniques; 9. Enhance the ability of the providers of telecommunications services to provide such services to the community quickly, effectively, and efficiently; Meeting Packet Page 90 of 301 10. Recognize that technology and laws regarding these facilities have changed, so the Town’s regulations need to change accordingly; 11. Consider the public health and safety of communication towers; and 12. Avoid potential damage to adjacent properties from tower failure through engineering and careful siting of tower structures. 13. Maintain the Town’s status as a designated International Dark Sky Community and an optimum environment for stargazing, 14. Conserve and enhance the unique natural beauty, irreplaceable natural resources, historical, natural, and man-made character and appearance of Fountain Park, McDowell Mountain Preserve, Pleasantville Park, and views of Red Mountain and Four Peaks. 15. Protect Saguaro cacti as a unique natural resource promoting tourism, contributing to the aesthetic well-being of the community, high property values, high quality of life, unique lifestyles, and providing habitat protection for desert wildlife. Saguaro cacti grow slowly and cannot be replaced by a plant of like character. 16. Protect the Sonoran Desert tortoise and its habitats as a unique natural resource and an important component of Town of Fountain Hills natural environment that contributes to the aesthetic, environmental, and personal well-being of the community. The Sonoran Desert tortoise is a state-protected species in Arizona and a petitioned candidate for inclusion as a federally endangered species pursuant to the Endangered Species Act of 1973, 16 U.S.C. §§ 1531–1544. Populations of the Sonoran Desert tortoise has been documented in the Town of Fountain Hills. 17. Protect the quiet small-town suburban, scenic and visual character of the Town. In furtherance of these goals, Town of Fountain Hills shall give due consideration to the Town of Fountain Hills General Plan, the Town of Fountain Hills Zoning Ordinance, existing land uses, and environmentally sensitive areas in approving sites for the location of towers and antennas. B. It is the intent of this chapter: 1. That no wireless communication towers or antenna be sited, constructed, reconstructed, installed, materially changed, expanded, or used unless in conformity with this chapter. 2. To achieve a balance between the need to provide wireless services with the health, safety, and general welfare of the residents of Fountain Hills by balancing five (5) simultaneous objectives: a. Enabling personal wireless service providers to provide adequate personal wireless services throughout the Town so that Town residents can enjoy the benefits of same from any FCC-licensed wireless carrier from which they choose to obtain such services; Meeting Packet Page 91 of 301 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; d. Complying with each of the substantive and procedural requirements set forth within the subsection 47 U.S.C. § 332(c)(7)(B) for permit applications seeking approvals for the siting, construction and operation of cell towers and/or other personal wireless service facilities; and e. Complying with the Federal Communications Commission’s (FCC) legislative rules for communications facilities including those for Radio Frequency human exposure limits in 47 C.F.R. Part 1, Subpart I and those addressing State and Local government regulation of the Placement, Construction, and Modification of Personal Wireless Service Facilities, in 47 C.F.R. Part 1, Subpart U. This Section is not intended to, nor shall it be interpreted or applied to: (1) prohibit or effectively prohibit any wireless telecommunications service provider's ability to provide reasonable and necessary wireless communications services; (2) prohibit or effectively prohibit any entity's ability to provide reasonable and necessary interstate or intrastate telecommunications service; (3) unreasonably discriminate among providers of functionally equivalent services; (4) deny any request for authorization to place, construct or modify wireless telecommunications service facilities solely on the basis of environmental effects of radio frequency emissions so long as such wireless facilities comply in every instance and regard with all FCC's regulations concerning such emissions; (5) prohibit any eligible facility that the Town may not deny under federal or state law; or (6) otherwise authorize the Town to violate any applicable federal or state law. C. Applicability. 1. New Towers and Antennas. All new towers or antennas in the Town of Fountain Hills shall be subject to these regulations. The following exceptions apply: a. Amateur Radio Station Operators/Receive Only Antennas. This chapter shall not govern any tower, or the installation of any antenna, that is under the maximum building height of the zoning district in which such structure is located and which is owned and operated by a federally licensed amateur radio station operator or is used exclusively for receive only operations. b. Pre-existing Towers or Antennas. Legally established pre-existing towers and pre-existing antennas shall not be required to meet the requirements of this chapter, other than the requirements of Sections 17.06(B)(1) and 17.06(C). c. AM Array. For purposes of implementing this chapter, an AM array, consisting of one (1) or more tower units and supporting ground system which functions as one (1) AM Meeting Packet Page 92 of 301 broadcasting antenna, shall be considered one (1) tower. Measurements for setbacks and separation distances shall be measured from the outer perimeter of the towers included in the AM array. Additional tower units may be added within the perimeter of the AM array by right. d. Small Wireless Facilities. Wireless communication towers and antenna meeting the definition of small wireless facilities as contained in A.R.S. 9-591 are subject to the requirements of Article 19-1, Small Wireless Facilities, of the Town Code. e. 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. f. Utility Service Antennas in the Right-of-Way. Utility service antennas as defined in this chapter placed in the public right-of-way are subject to the requirements of Article 19-2, Utility Service Antenna, of the Town Code. g. Over-the-Air-Reception Devices ("OTARD") antennas as defined by 47 C.F.R. § 1.4000(a). 2. Existing Towers and Antennas. Any existing towers which are modified, upgraded, or changed in any manner shall be subject to the provisions of this ordinance as applicable. All existing towers and antennas shall be subject to the maintenance and operations requirements in Sec. 17.06. Section 17.02 Definitions For the purposes of this article, and where not inconsistent with the context of a particular section, the defined terms, phrases, words, abbreviations, and their derivations shall have the meanings provided in this section. When not inconsistent with the context, words in the present tense include the future tense, words used in the plural number include words in the singular number, and words in the singular number include the plural number. The word “shall” is always mandatory and not merely directory. The definitions set forth herein shall supersede any definitions set forth within the Town Code and Zoning Ordinance, and the definitions set forth herein below shall control and apply to Chapter 17 of the Zoning Ordinance and all subparagraphs herein. “Accessory facility or accessory structure” means a facility or structure serving or being used in conjunction with a personal wireless services facility or complex and located on the same property or lot as the personal wireless services facility or complex or an immediately adjacent lot, including, but not limited to utility or transmission equipment storage sheds or cabinets. “ACHP” means the Federal Advisory Council on Historic Preservation. Meeting Packet Page 93 of 301 “ADA” means American Disabilities Act. “ADEQ” means the Arizona Department of Environmental Quality. “Adequate coverage” means, as determined by the Town Council, that a specific wireless carrier’s personal wireless service coverage is such that the vast majority of its customers’ equipment can successfully connect to the carrier’s radio access network and achieve a received signal strength of - 110 dBm or better and deliver a -90 dBm or better signal to the base station receiver (uplink) with a signal to noise ratio (SINR) of 3 dB or higher the vast majority of the time, in the vast majority of the geographic locations within the Town, that the Voice Drop Call Rate, e.g. the percentage ratio of dropped voice calls to total call attempts or successful call setups remains at or below 3%. A “gap” can exist when there is a lack of coverage or when coverage exists but quality is below the above metrics. The Town will assess whether a gap in a carrier’s personal wireless services are significant, based upon such factors including, but not limited to, lack of significant physical size of the gap, whether the gap is located upon a lightly traveled or lightly occupied area, whether only a small number of customers are affected by the gap, and/or whether or not the carrier’s customers are affected for only limited periods of time. A wireless carrier’s coverage shall not be deemed inadequate simply because the frequency or frequencies at which its customers are using its services are not the most preferred frequency of the wireless carrier. For claimed capacity or quality shortfalls in an area that has coverage, the applicant must demonstrate through independently-verifiable data and analysis, including network generated recordings based on user equipment reports that users are consistently experiencing dropped voice calls (in contrast to dropped sessions involving non-voice communications) at an unacceptable level during peak periods, or user devices are consistently denied access to the network due to lack of overall capacity at peak periods. If the applicant relies on signal strength data (whether network recorded or through drive tests) to demonstrate a lack of coverage or inadequate quality/capacity the applicant must disclose all underlying data, its thresholds for acceptable quality in such fashion that all claims and conclusions are independently verifiable. The Town strongly encourages all applicants to use methods consistent with the FCC rules governing provider reports and mapping data in 47 C.F.R. Part 1, Subpart V (§§ 1.7000 – 1.7010). “Adjacent properties or properties adjacent” shall mean (i) those lots or parcels of land that abut another lot or parcel of land or public right-of-way that is contiguous to a wireless facility site or proposed site and (ii) the lots or parcels of land or public right-of-way that would be contiguous to lots or parcels or public rights-of-way but for an intervening local or collector roadway. “Aesthetic or aesthetics” refers to subjective or objective determinations related to whether and if so, how well a facility will fit within the character of the area where the facility is proposed. This requires a broad range of factors including but not limited to visual effects and impact on property values. The Meeting Packet Page 94 of 301 Town will consider aesthetics for all applications and, where not prohibited by federal or state law, reserves the ability to impose careful placement conditions or restrictions. “Alternative tower structure” means man-made trees, clock towers, bell steeples, light poles and similar alternative-design mounting structures that camouflage or conceal the presence of antennas or towers. “Antenna” means an apparatus designed for the purpose of emitting radiofrequency (RF) radiation, to be operated or operating from a fixed location pursuant to FCC authorization, for the provision of personal wireless service and any commingled information services. This definition does not apply to antennas designed for amateur radio use or satellite dishes for residential or household purposes. “Antenna equipment” means equipment, switches, wiring, cabling, power sources, shelters or cabinets associated with an Antenna, located at the same fixed location as the Antenna, and, when Co-located on a PWSF Structure, is mounted or installed at the same time as such Antenna. “Antenna facility” means Antenna and associated Antenna Equipment. "Applicant" means any individual, corporation, limited liability company, general partnership, limited partnership, estate, trust, joint-stock company, association of two or more persons having a joint common interest, or any other entity submitting an application for a wireless communication facility permit, site plan approval, building permit, and/or any other related approval, for the installation, operation and/or maintaining of one or more wireless communication facilities. "Application" shall mean all necessary and required documentation, information, and evidence that an applicant must submit to receive a wireless communications facility permit, building permit, or other Town approval for personal wireless service facilities from the Town. “Backhaul network” means the lines that connect a provider’s towers/cell sites to one (1) or more cellular telephone switching offices, and/or long distance providers, or the public switched telephone network. “Balloon test” means the raising of a balloon (or placement of a “crank up” tower, crane or temporary structure) equal to the height of a proposed personal wireless services facility tower for a period of 4 hours on a pre-determined date and time prior to approval of a wireless facility permit application to assess the visual impact of a proposed tower. “Base station” means for purposes of eligible facilities requests the definition in the FCC’s regulations at 47 CFR § 1.6100 shall apply. A structure or equipment at a fixed location that enables FCC- licensed or authorized wireless communications between user equipment and a communications network. The term does not encompass a tower or any equipment associated with a tower. Meeting Packet Page 95 of 301 “Board of Adjustment” means the Board of Adjustment of the Town of Fountain Hills, established pursuant to Sec. 1.07 of the Zoning Ordinance with membership, powers, duties, and responsibilities as set forth in Article 2A-2 of the Town Code. Carriers. See Wireless Carriers. “Cell tower” means a free-standing, guy-wired, or otherwise supported pole, tower, or other structure designed to support or employed to support equipment and/or antennas used to provide personal wireless services, including, but not limited to, a pole, monopole, monopine, slim stick, lattice tower or other types of standing structures. “CEQ” means the Council on Environmental Quality, as established under NEPA. "Collocate, colocate" or "collocation, colocation" can have different meanings depending on context. 1. When and where A.R.S. §§ 9-951 — 9-600 apply, the definition in A.R.S. §§ 9-951.8 shall also apply. That definition currently states: "Collocate" or "collocation" means to install, mount, maintain, modify, operate or replace wireless facilities on, within or adjacent to a wireless support structure or utility pole. 2. Where and when the FCC’s general rules for placement, construction and modification of personal wireless facilities apply, the definition in 47 C.F.R. § 1.6002(g) shall also apply. That definition currently states: Collocation, consistent with § 1.1320(d) and the Nationwide Programmatic Agreement (NPA) for the Collocation of Wireless Antennas, appendix B of this part, section I.B, means— (1) Mounting or installing an antenna facility on a pre-existing structure; and/or (2) Modifying a structure for the purpose of mounting or installing an antenna facility on that structure. (3) The definition of “collocation” in § 1.6100(b)(2) applies to the term as used in that section. 3. Where and when the FCC’s rules for wireless facility modifications apply, the definition in 47 C.F.R. § 1.6100(b)(2) shall also apply. That definition currently states: (2) Collocation. The mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signals for communications purposes. “Complete application, completed application” means an application that contains all the necessary and required information, records, evidence, reports, and/or data necessary to enable an informed decision to be made with respect to an application. Where any information is provided pursuant to the terms of this Chapter and the Development Services Director, Town Engineer or the Town’s expert or Meeting Packet Page 96 of 301 consultant, or the Council determines, based upon information provided, that any additional, further, or clarifying information is needed as to one or more aspects, then the application will be deemed incomplete until that further or clarifying information is provided to the satisfaction of the Development Services Director, Town Engineer, Town Council or the Town’s expert or consultant of the Council. “Complex” means the entire site or facility, including all structures and equipment, located at the site. “Council or Town Council” means the Town Council of the Town of Fountain Hills. “DBM” (dBm) stands for decibel milliwatts, which is a concrete measurement of the wireless signal strength of wireless networks. It expresses power relative to 1 milliwatt (mW) on a logarithmic scale. Emissions are measured using positive whole or fractional numbers. Received signal strengths are typically recorded in negative numbers because they are usually weaker than 1 milliwatt, and can range from approximately -30 dBm to -110 dBm. The closer the number is to 0, the stronger the cell signal. FCC, HHS and OSHA regulate safe exposure thresholds but transmitter power (in dBm) is crucial to determining exposure, as it is the starting point for calculating current exposure limits. “Deployment” means the placement, construction, or substantial modification of a personal wireless service facility. “Development Services Director” (or “Director): T” means the person appointed by the Town Manager to be the Development Services Director. If there is no such person designated by the Town Manager, the Town Manager is the Development Services Director. “Distributed antenna system, DAS” means a network of spatially separated antenna nodes connected to a common source via a transport medium that provides personal wireless service within a geographic area. “Effective prohibition” means a finding by the Town Council that if an application seeking approval for a specific new Personal Wireless Service Facility at a specific location, and a specific height, were to be denied, such denial would either: (a) prevent an identified Wireless Carrier from providing personal wireless services within a specific geographic area, or areas, within the Town, or (b) would prevent a specific Wireless Carrier from constructing a sufficient number of such facilities necessary to enable it to provide Personal Wireless Services within the Town. An effective prohibition shall not be found to exist if a Wireless Carrier has Adequate Coverage in a specified geographic area , such that its end-use customers can use their cellular telephones to connect to landlines using the Carrier’s Personal Wireless Services; however, the frequencies are not the “most preferred” frequencies of the Carrier. An effective prohibition shall also not be found to exist if an applicant fails to establish before the Town Council that any existing geographic gap or capacity deficiency in the specific Wireless Carrier’s coverage cannot be remedied through a less intrusive means than what is being proposed, Meeting Packet Page 97 of 301 including, but not limited to, potential installations on alternative less intrusive sites, a shorter tower or facility, the incorporation of a more stealthy design, etc. A finding of Effective Prohibition, or lack thereof, shall be based upon an applicant’s submission of sufficient probative, relevant, and sufficiently reliable evidence and the appropriate weight the Town Council deems appropriate to afford. “Eleventh hour submissions” means an applicant’s submission of new and/or additional materials in support of an application less than five (5) business days before the expiration of an applicable shot clock or at an otherwise unreasonably short period of time before the expiration of the shot clock, making it impracticable for the Town Council to adequately review and consider such submissions due to their complexity, volume, or other factors, before the expiration of the shot clock. “Eligible facilities request” means a request that meets the requirements in 47 CFR § 1.6100 for modification of an existing Tower or Base Station that does not substantially change the physical dimensions of such Tower or Base Station and involving: (a) Co-location of new transmission equipment, (b) Removal of transmission equipment, or (c) Replacement of transmission equipment. “Enure” means to operate or take effect. To serve to a person or party's use, benefit, or advantage. “EPA” means the United States Environmental Protection Agency. “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 or its duly designated and authorized successor agency. “Facility” means a set of wireless transmitting and/or receiving equipment, including any associated electronics and electronics shelter or cabinet and generator. “FCC” means the Federal Communications Commission. “General population/uncontrolled exposure limits” means the applicable radiofrequency radiation exposure limits set forth within 47 CFR §1.1310(e)(1), Table 1 Section (ii), made applicable pursuant to 47 CFR §1.1310(e)(3), as further described and supplemented by the FCC Office of Engineering and Technology Laboratory Division’s advisory Knowledge Database (KBD), available at https://apps.fcc.gov/oetcf/kdb/index.cfm. “HHS” means U.S. Department of Health and Human Services or its constituent agencies, including FDA Food and Drug Administration, charged with review and compliance, meeting or exceeding Meeting Packet Page 98 of 301 requirements of the RF-emitting consumer devices (e.g., electronic products such as cell phones) for health impacts. “Height” means, when referring to a tower, personal wireless service facility, or personal wireless service facility structure, the height shall mean the distance measured from the pre-existing grade level to the highest point on the tower, facility, or structure, including, but not limited to, any accessory, fitting, fitment, extension, addition, add-on, antenna, whip antenna, lightning rod or other types of lightning-protection devices attached to the top of the structure. “Historic Structure” means any structure that is either on the National Register of Historic Places or is eligible for inclusion in the national register, irrespective of whether or not an application for inclusion onto the national register has been filed or not filed. “Illegally excessive RF radiation or illegally excessive radiation” means RF radiation emissions at levels that exceed the legally permissible limits set forth within 47 CFR §1.1310(e)(1), Table 1 Sections (i) and (ii), as made applicable pursuant to 47 CFR §1.1310(e)(3). “In-kind call testing” means testing designed to measure the gap in Personal Wireless Service coverage asserted by an applicant. In-Kind Call Testing for a claimed gap in Personal Wireless Services in buildings means call testing performed in buildings to establish the existence or absence of such a gap, unless the applicant provides an affidavit sworn under penalties of perjury demonstrating good faith but unsuccessful attempts to secure access to buildings to conduct such testing. In-Kind Call Testing for a claimed gap in Personal Wireless Services in vehicles or in the open air means call testing performed in vehicles or in the open to establish the existence or absence of such a gap. “In-kind replacement” means the replacement of a malfunctioning component(s) with a properly functioning component of substantially the same weight, dimensions, and outward appearance. “Least intrusive” means the location and design of a personal wireless service facility that would remedy a significant gap in Personal Wireless Service coverage and (1) does the least disservice to the objectives stated in § 270-219A(2), and (2) deviates as little as possible from (a) the preferential order of location in subsection K (Priority of siting locations) and (b) applicable design standards in subsection L. “Macrocell” means a cellular base station that typically sends and receives radio signals from large towers and antennas. These include traditionally recognized cell towers, typically ranging from 50 to 199 feet in height. “Maintenance or routine maintenance” means plumbing, electrical or mechanical work that may require a building permit but that does not constitute a modification to the personal wireless service facility. It is work necessary to assure that a wireless facility and/or telecommunications structure exists and operates reliably and in a safe manner, presents no threat to persons or property, and remains compliant with the provisions of this chapter and FCC requirements. Meeting Packet Page 99 of 301 “Mobile or temporary tower” means a portable tower or other wireless communications facility capable of being transported in or by a motor vehicle, or otherwise designed to be readily relocated, that is intended or used to provide wireless communications services on a temporary or emergency basis and is not permanently affixed to the site on which it is located. The term includes, but is not limited to, cells-on-wheels (COWs), sites-on-wheels (SOWs), cells-on-light-trucks (COLTs), trailer- mounted monopoles, and similar portable facilities. “Monopole” means a wireless support structure that is not more than forty inches in diameter at the ground level and that has all of the wireless facilities mounted on the pole or contained inside of the pole. Monopoles are typically unguyed. “Necessary, or necessity, or need” means what is technologically required for the equipment to function as designed by the manufacturer and anything less will result in prohibiting the provision of service as intended and described in the narrative of the application. “Necessary” or “need” does not mean what may be desired, preferred, or the most cost-efficient approach and is not related to an applicant’s specific chosen design standards or unspecified “coverage objectives.” Any situation involving a choice between or among alternatives or options is not a need or a necessity. “NEPA” means the National Environmental Policy Act, 42 U.S.C. §4321, et seq. “NHPA” means the National Historic Preservation Act, 54 U.S.C. 300101 et seq, and 36 CFR Part 800, et seq. “Node, DAS node” means a fixed antenna and related equipment installation that operates as part of a system of spatially separated antennas, all of which are connected through a medium through which they work collectively to provide personal wireless services, as opposed to other types of personal wireless facilities, such as macrocells, which operate independently. “Node” means a fixed antenna and antenna equipment installation that operates as part of a system of spatially separated Antennas, all of which are connected through a medium through which they work collectively to provide personal wireless services using hand-off capabilities. A 4G (LTE) node is referred to as an ENode B, and a 5G node is referred to as a GNode B. Some sites incorporate both 4G and 5G. Some 5G capable sites still rely on a 4G network core. “Notice address” means an address, which is required to be provided by an applicant at the time it submits an application, at which the Town, Town Council, and/or Development Services Director or Town Engineer designee can mail notice, and the mailing of any notice to such address by first-class mail shall constitute sufficient notice to any and all applicants, co-applicants, and/or their attorneys, to satisfy any notice requirements under this Chapter, as well as any notice requirements of any other local, state and/or federal law. “Notice of incompleteness, notice of incomplete application” means a written notice, sent by electronic mail , to an applicant seeking approval for the installation of a PWSF, wherein the sender advises the applicant that its application is either incomplete, the wrong type of application, or is Meeting Packet Page 100 of 301 otherwise defective, and setting for the reason or reasons why the application is incomplete and/or defective. “Notice of effective prohibition conditions” means a written notice, which is required to be provided to the Town at the time of the filing of any application by all applicants seeking any approval, of any type, for the siting, installation, and/or construction of a PWSF, wherein the respective applicant asserts, claims or intends to assert or claim, that a denial of their respective application, by any agent, employee, board or body of the Town, would constitute an “effective prohibition ” within the meaning of the TCA, and concomitantly, that a denial of their respective application or request would violate Section 47 U.S.C. §332(c)(7)(B)(i)(II) of the TCA. “Occupational/controlled exposure limits” means the applicable radiofrequency radiation exposure limits set forth within 47 CFR §1.1310(e)(1), Table 1 Section (i), made applicable pursuant to 47 CFR §1.1310(e)(2). "Permit" means written permission required by an authority to install, mount, maintain, modify, operate or replace a utility pole or monopole, to collocate a wireless facility on a utility pole or wireless support structure or to collocate wireless facilities on a monopole. “Permittee” means a holder of a Personal Wireless Service Facility Permit. “Personal wireless service/personal wireless services” means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services, within the meaning of 47 U.S.C. §332(c)(7)(c)(i), and as defined therein. “Personal wireless service facility, personal wireless services facility or PWSF” means a facility or facilities used for the provision of personal wireless services, within the meaning of 47 U.S.C. §332(c)(7)(c)(ii). It means a specific location at which a structure that is designed or intended to be used to house or accommodate antennas or other transmitting or receiving equipment is located. This includes, without limitation, towers of all types and all kinds of support structures, including but not limited to buildings, church steeples, silos, water towers, signs, utility poles, or any other structure that is used or is proposed to be used as a telecommunications structure for the placement, installation and/or attachment of antennas or the functional equivalent of such. It expressly includes all related facilities and equipment such as cabling, radios and other electronic equipment, equipment shelters and enclosures, cabinets, and other structures enabling the complex to provide personal wireless services. “Pre-existing towers and pre-existing antennas” means any tower or antenna lawfully constructed or permitted prior to the effective date of this Chapter, including any tower or antenna for which no permit or other zoning approval was required at the time of construction, provided that the tower or antenna was otherwise lawfully constructed. "Private easement" means an easement or other real property right that is only for the benefit of the grantor and grantee and the grantor's or grantee's successors and assigns. Meeting Packet Page 101 of 301 “Probative evidence” means evidence which tends to prove facts, and the more a piece of evidence or testimony proves a fact, the greater its probative value, as shall be determined by the Town Council or other decision making authority, as the finder-of-fact in determining whether to grant or deny applications under this provision of the Town Code. “Repairs” means the replacement or repair of any components of a wireless facility or complex where the replacement is substantially identical to the component or components being replaced, or for any matters that involve the normal repair and maintenance of a wireless facility or complex without the addition, removal, or change of any of the physical or visually discernible components or aspects of a wireless facility or complex that will impose new visible intrusions of the facility or complex as originally permitted. “RF” means radiofrequency. “RF radiation” means radiofrequency radiation. That being electromagnetic radiation, which is a combination of electric and magnetic fields that move through space as waves, and can include both Non-Ionizing radiation and Ionizing radiation. “School” means a public, charter, or private educational institution providing instruction for elementary and secondary grades as defined in A.R.S. § 15-101 and includes the real property and facilities used for such educational purpose. “School property” means any parcel containing a public, charter, or private educational institution providing instruction for elementary and secondary grades as defined in A.R.S. § 15-101 and includes associated playgrounds, athletic fields, administrative buildings, parking areas, and other school- related facilities. “Section 106 Review” means a review under Section 106 of the National Historic Preservation Act. “Setback” means the distance between (a) any portion of a personal wireless facility and/or complex, including but not limited to any and all accessory facilities and/or structures, and (b) the exterior line of any parcel of real property or part thereof which is owned by, or leased by, an applicant seeking to construct or install a personal wireless facility upon such real property or portion thereof. In the event that an applicant leases only a portion of real property owned by a landlord, the setback shall be measured from the facility to the line of that portion of the real property that is actually leased by the applicant, as opposed to the exterior lot line of the non-leased portion of the property owned by the landlord. “Shot clock, Arizona” means the statutory timeframes within which the Town must review a wireless application for completeness of an application for wireless facilities in right-of-way pursuant to A.R.S. § 9-594.C.2 and act on a wireless application before it is otherwise deemed approved pursuant to A.R.S. § 9-594.C.2. For deemed approved purposes, the Arizona shot clock begins on the date when the Town determines the application is properly completed. For applications involving wireless facilities not in right-of-way the FCC shot clock will apply. Meeting Packet Page 102 of 301 Shot clock, FCC: the presumptively reasonable time frame within which the Town must act on a wireless application, as defined by the FCC, shown below subject to amendment from the FCC. The shot clock begins when the applicant takes the first procedural step that the Town requires. a. Aggregate of 60 days: 1) Standby emergency generators at previously permitted macro cell tower sites. 2) Collocation of small wireless facilities at existing small wireless facility sites. 3) Eligible Facilities Requests. b. Aggregate of 90 days: 1) New small wireless facilities. 2) Collocation applications for additions to existing communications facilities not defined as an eligible facilities request. c. Aggregate of 150 days: 1) All other applications, such as development of a new communication tower or facility. “SHPO” means the Arizona State Historic Preservation Office. “Site developer or site developers” means individuals and/or entities engaged in the business of constructing wireless facilities and wireless facility infrastructure and leasing space and/or capacity upon, or use of, their facilities and/or infrastructure to wireless carriers. Unlike wireless carriers, site developers generally do not provide personal wireless services to end-use consumers. “Small cell” means a fixed cellular base station that sends and receives radio signals and is typically mounted upon poles or support structures at substantially lower elevations than macrocell facilities. "Small wireless facility" can have different meanings depending on context. 1. When and where A.R.S §§ 9-591 – 9-599 applies, the definition in A.R.S §§ 9-591.19 shall also apply. That definition 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. Meeting Packet Page 103 of 301 vii. Vertical cable runs for the connection of power and other services 2. Where and when the FCC’s general rules for placement, construction and modification of personal wireless service facilities apply, the definition in 47 CFR §1.6002(l) shall apply. That definition states as follows: (a) Small wireless facilities are facilities that meet each of the following conditions: (i) The facilities— Are mounted on structures 50 feet or less in height including their antennas as defined in § 1.1320(d); or Are mounted on structures no more than 10 percent taller than other adjacent structures; or Do not extend existing structures on which they are located to a height of more than 50 feet or by more than 10 percent, whichever is greater; (ii) Each antenna associated with the deployment, excluding associated antenna equipment (as defined in the definition of “antenna” in § 1.1320(d)), is no more than three cubic feet in volume; (iii) All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume; (iv) The facilities do not require antenna structure registration under part 17 of this chapter; (v) The facilities are not located on Tribal lands, as defined under 36 CFR 800.16(x); and (vi) The facilities do not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in § 1.1307(b). "Special taxing district" means a special district formed pursuant to title ARS 48, chapter 11, 12, 17, 18, 19, 20 or 22. “Special Use Permit” means the official document or permit granted by the Town Council pursuant to which an applicant is allowed to file for and obtain a building permit to construct and use a personal wireless services facility, personal wireless service equipment, and/or any associated structures and/or equipment which are used to house, or be a part of, any such facility or complex, or to be used to provide personal wireless services. “State” means the State of Arizona. “Structure” means a pole, tower, base station, or other building, physical support of any form used for, or to be used for, the provision of personal wireless service. “Substantial evidence” means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It means less than a preponderance but more than a scintilla of evidence. Meeting Packet Page 104 of 301 “TCA” means the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996), codified at various provisions of Title 47 U.S.C. “Thermal runaway” means self-heating of an electrochemical system in an uncontrollable fashion. “Tolling or tolled” means the pausing of the running of the time period permitted under the applicable shot clock for the respective type of application for a personal wireless services facility. Where a shot clock is tolled because an application has been deemed incomplete and timely notice of incompleteness was mailed to the applicant, the submission of additional materials by the applicant to complete the application will end the tolling, thus causing the shot clock period to resume running, as opposed to causing the shot clock to begin running anew. “Tower” means a mast, pole, monopole, slim stick, guyed tower, lattice tower, freestanding tower, or other structure designed to support or employed to support antennas and other equipment, including but not limited to dishes, transceivers and arrays used to provide personal wireless services and wireless communications services. A ground- or building-mounted mast greater than ten feet tall and six inches in diameter supporting one or more antennas, dishes, arrays, etc. shall be considered a communications tower. “Town” means the Town of Fountain Hills. “Town code” means the Town Code of the Town of Fountain Hills. “Undertaking” means any application seeking Town approval for the installation of a personal wireless services facility licensed under the authority of the FCC shall constitute an undertaking within the meaning of NEPA, in accord with 42 CFR §137.289 and 36 CFR §800.16. “Utility” means Arizona (under ARS § 40-360.51 (5)): A public utility includes corporations or persons engaged in furnishing water, gas, electricity, telephone service, or sewage disposal to the public for compensation. “Utility service antennas” means antenna placed on or near utility boxes, poles, switches, storage tanks, etc., and used by a utility provider to facilitate the operation of the utility system. “Wireless carriers or carrier” means companies that provide Personal Wireless Services to end-use consumers. “Wireless communication” means the transmission of voice or data without cable or wires. “Wireless communication facility” means wireless communication facilities including, but not limited to, facilities that transmit and/or receive electromagnetic signals for cellular radio telephone service, personal communications services, enhanced specialized mobile services, paging systems, and related technologies. Such facilities also include antennas, microwave dishes, parabolic antennas, and all other types of equipment used in the transmission or reception of such signals; telecommunication towers or similar structures supporting said equipment; associated equipment cabinets and/or Meeting Packet Page 105 of 301 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. “Zoning ordinance” means the Zoning Ordinance of the Town of Fountain Hills, as codified in Chapter 1, Sec. 1.01 of the Zoning Ordinance. Section 17.03 Requirements A. General Requirements. 1. Principal or Accessory Use. Antennas and towers may be considered either principal or accessory uses. A different existing use of an existing structure on the same lot shall not preclude the installation of an antenna or tower on such lot. 2. Lot Size. For purposes of determining whether the installation of a tower or antenna complies with district development regulations, including but not limited to setback requirements, lot coverage requirements, and other such requirements, the dimensions of the entire lot shall control, even though the antennas or towers may be located on leased parcels within such lot. 3. Aesthetics. Towers and antennas shall meet the following requirements: a. Towers shall, subject to any applicable standards of the FAA, be painted a neutral color so as to reduce visual obtrusiveness. b. At a tower site, the design of the buildings and related structures shall, to the extent possible, use materials, colors, textures, screening, and landscaping that will blend them into the natural setting and surrounding buildings. c. If an antenna is installed on a structure other than a tower, the antenna and supporting electrical and mechanical equipment must be of a neutral color that is identical to, or closely compatible with, the color of the supporting structure so as to make the antenna and related equipment as visually unobtrusive as possible. d. The choice of design for installing a new wireless communication facility or the substantial modification of an existing wireless communication facility shall be chosen to minimize the potential adverse impacts that the new or expanded facility may, or is likely to, inflict upon nearby properties. Concealment elements should be used to camouflage the pole and antennas. e. Accessory Structures. Unless approved by the Town Council, all equipment associated with a wireless communication tower is to be located below grade in a vault. If above grade Meeting Packet Page 106 of 301 accessory structures are approved by the Town Council, they shall comply with the following requirements. i. Accessory structures shall maximize the use of building materials, colors, and textures designed to blend with the natural surroundings. The use of specified concealment elements for communications towers may be required by the Council to blend the communications tower and/or its accessory structures further into the natural surroundings using specified concealment elements. ii. Accessory structures shall be designed to be architecturally similar, compatible with each other, and shall be no more than 12 feet high. The buildings shall be used only for housing equipment related to the particular site. Whenever possible, the buildings shall be joined or clustered so as to appear as one (1) building. iii. No portion of any telecommunications tower or accessory structure shall be used for a sign or other advertising purpose, including but not limited to the company name, phone numbers, banners, and streamers, except the following. A sign of no greater than 2 square feet indicating the name of the facility owner(s) and a twenty-four (24) hour emergency telephone shall be posted adjacent to any entry gate. In addition, “no trespassing” or other warning signs may be posted on the fence. All signs shall conform to the sign requirements of the Town. f. Visual Impacts. Towers must be placed to minimize visual impacts. Applicants shall place towers on the side slope of the terrain so that, as much as possible, the top of the tower does not protrude over the ridgeline, as seen from public ways. g. Existing Vegetation. Existing vegetation shall be preserved to the maximum extent possible. No cutting of trees shall take place on a site connected with an application made under this chapter prior to the approval of the application. h. Screening. i. Tree plantings may be required to screen portions of the telecommunications tower and accessory structures from nearby residential property as well as from public sites known to include important views or vistas. The standard buffer shall consist of a landscaped strip at least 4 feet wide outside the perimeter of the compound. 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 Meeting Packet Page 107 of 301 generators. Telecommunications towers shall comply with all applicable sections of this chapter as it pertains to noise control and abatement. i. Utility Services Antennas. i. If placed on another utility structure such as a water tower, the antenna shall be painted to blend with the building or equipment it is placed on. ii. If a separate tower structure is used, the design shall comply with the provisions in this section. j. Data-Only and Information Service Facilities. To the maximum extent permitted by federal and state law, any wireless facility used exclusively for the provision of an information service, data collection, telemetry, machine-to-machine communication, sensing, monitoring, or another service that does not constitute a personal wireless service under 47 U.S.C. § 332(c)(7)(C) or a telecommunications service protected by 47 U.S.C. § 253 shall be installed underground or flush with grad, including its antenna, antenna equipment and accessory equipment, where technically feasible. An applicant seeking above-ground installation shall demonstrate through clear and convincing technical evidence that underground or flush-to- grade installation would prevent the facility from performing its intended function and that the proposed above-ground installation is the least visually intrusive technically feasible alternative. Nothing in this subsection shall require underground placement to the extent the applicant demonstrates that such requirement is expressly prohibited or preempted by applicable federal or Arizona law. 4. Lighting. Towers shall not be artificially lighted, unless required by the FAA or other applicable authority. If lighting is required, the lighting alternatives and design chosen must cause the least disturbance to the surrounding views and, to the degree possible while complying with FAA requirements, meet the standards set in Zoning Ordinance Chapter 8, Outdoor Lighting Control. 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 Meeting Packet Page 108 of 301 Town of Fountain Hills have been obtained and shall file a copy of all required franchises with the Community Development Director. 8. Signs. No signs other than those required by law shall be allowed on an antenna or tower. 9. Co-location and Multiple Antenna/Tower Plan. The Town of Fountain Hills encourages tower and antenna users to submit a single application for approval of multiple towers and/or antenna sites and to submit applications, which utilize co-location with an existing wireless telecommunications provider. Applications for approval of multiple sites or for co-location with an existing provider shall be given priority in the review process. 10. Security fencing. PWSF shall be enclosed by security fencing not less than 6 feet in height and no more than 8 feet in height, shall be constructed of a block or masonry, and shall be equipped with an appropriate anti-climbing device; provided, however, that the Town Council may waive such requirements, as it deems appropriate. 11. Noise. Submission of applications for towers and associated equipment placed above grade, including backup generators or power supplies, shall include noise and acoustical information, prepared by a qualified firm or individual, for the base transceiver station(s), equipment buildings, and associated equipment such as air conditioning units and backup generators. The Town may require the applicant to incorporate appropriate noise baffling materials and/or strategies to avoid any ambient noise from equipment reasonably likely to exceed the applicable noise regulations contained in Section 11-1-7 of the Town Code. 12. Arizona Licensed Engineer. Any information of an engineering nature that the applicant submits, whether civil, mechanical, or electrical, shall be certified by an Arizona licensed professional engineer. 13. Verification by Town Engineer. Application approval issued under this chapter shall be conditioned upon verification by the Town Engineer or designee that such tower structure is structurally sound. Such verification shall be received by the applicant prior to submission. 14. Access and Parking. Areas sufficient for access to the tower and equipment location and for temporary off-street parking of at least two vehicles shall be provided. The type and configuration of the access and parking shall be subject to the standards set forth in Zoning Ordinance Chapter 7, Parking and Loading Requirements. 15. Minimum Height of Antennas. All antennas shall be located such that: a. Any person walking adjacent to the transmitting surface of the antenna will be walking on a grade that is a minimum of eight and one-half (8.5) feet below the transmitting surface; and, b. No person at ground level will be exposed to an exposure level that is higher than allowed by the FCC’s general population exposure rules. Meeting Packet Page 109 of 301 16. Fall Zone. Each new tower shall maintain a fall zone having a radius of not less than one hundred twenty-five percent (125%) of the total height of the tower, measured from the base of the tower. The fall zone of any tower, pole shall not overlap, in whole or in part, any portion of a public sidewalk, street, alley, right-of-way, or occupied building. B. Minimum Setbacks and Separations. 1. Setbacks From Property Lines. Except for utility service antennas, the following setback requirements shall apply to all towers; provided, however, that the Town Council may reasonably reduce the standard setback requirements if the goals of this chapter would be better served thereby: a. Towers must be set back a distance equal to at least one hundred fifty percent (150%) of the height of the tower from any adjoining lot line. For guyed towers, the required setback shall be measured from the outermost guy wire anchor point, and shall additionally account for the manufacturer's or structural engineer's certified guy-wire failure/whip radius. In no case shall a guy wire anchor, guy wire, or its calculated failure radius be located within 500 feet of an occupied structure, public right-of-way, or property line, whichever is more restrictive. b. Accessory buildings must satisfy the minimum zoning district setback requirements. 2. Separations From Adjacent Uses. Except for utility service antennas, the following separation requirements shall apply to all towers and antennas. a. Separation From Residential Uses, Schools, and Daycare Centers. i. Tower separation shall be measured from the base of the tower to the lot line of the residential uses. ii. Separation requirements for towers shall be 500 feet from any residentially zoned or used land including mixed-use. The Town Council may reduce the standard separation requirements to 300’ if, through information and data presented, the Council determines the goals of this chapter would be better served thereby. iii. Separation requirements for towers shall be 500 feet away from public or private K- 12 schools and licensed daycare facilities unless an applicant establishes that a lesser setback is necessary to close a significant gap in the applicant's personal communication service and the proposed tower is the least intrusive means to do so. b. Separation Distances Between Towers. Separation distances between towers shall be applicable for and measured between the proposed tower and pre-existing towers. The Meeting Packet Page 110 of 301 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 17.03 B. Table 17.03 B. 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 2,500 feet 2,000 feet 1,500 feet Monopole less than 65 ft. in height but greater than 40 ft. in height 2,000 feet 2,000 feet 1,500 feet Monopole less than 40 ft. in height 1,500 feet 1,500 feet 1,000 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. Unless approved otherwise by the Town Council for good cause shown, but located in an underground vault. b. If located above ground: i. The cabinet or structure shall not contain more than 120 square feet of gross floor area or be more than 8 feet in height and shall be located on the ground. ii. 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, unless otherwise approved by the Town Council in an underground vault. If approved to be above ground, then in accordance with the following: a. In residential districts, the equipment cabinet or structure may be located: i. In a required front yard or required street side yard, provided the cabinet structure is no greater than 3.5 feet in height and 20 square feet of gross floor area and the cabinet/structure is located a minimum of 3 feet from all lot lines. The cabinet/structure Meeting Packet Page 111 of 301 shall be screened by sight obscuring landscaping which obscures at least ninety-five percent (95%) of the structure at planting and throughout the duration of the cabinet or structure’s existence with an ultimate height not to exceed forty-two (42) inches. ii. In a required rear yard, provided the cabinet or structure is no greater than 5 feet in height or 120 square feet in gross floor area. The cabinet/structure shall be screened by sight obscuring landscaping which obscures at least ninety-five percent (95%) of the structure at planting and throughout the duration of the cabinet or structure’s existence with an ultimate height of 6 feet. iii. The entry or access side of a cabinet or structure shall be gated by a solid, sight- obscuring gate that is separate from the cabinet or structure. b. In commercial or industrial districts the equipment cabinet or structure shall be no greater than 14 feet in height or 300 square feet in gross floor area. The structure or cabinet shall be screened by sight-obscuring landscaping with an ultimate height of 16 feet and a planted height of at least 6 feet. The entry or access side of a cabinet or structure shall be gated by a solid, sight-obscuring gate that is separate from the cabinet or structure. Such access way shall not face residentially zoned property. 3. Modification of Building Size Requirements. In the case of wireless facilities considered by the Town Council, the requirements of subsections (C)(1) and (C)(2) of this section may be modified by the Town Council to address site specific conditions and requirements. 4. Battery Safety. Any battery energy storage or backup power system installed in connection with a PSWF shall utilize lithium ion phosphate (LiFePO4 or LPE) batteries, which are less prone to thermal runaway and fire hazard. All battery systems shall comply with applicable fire, electrical, building, and product-safety codes and standards. D. Co-location. 1. Any new telecommunications tower shall be designed to accommodate future shared use by other communications providers. Design considerations shall include sufficient area for additional ground equipment, structural design of the tower, and sufficient electrical power available for the load of at least two (2) additional wireless service providers. 2. Good Faith. Applicants and permittees shall cooperate and exercise good faith in co-locating wireless telecommunications facilities on the same support structures or site, if the Town so requests. Good faith shall include sharing technical information to evaluate the feasibility of co- location, and may include negotiations for erection of a replacement support structure to accommodate co-location. A competitive conflict to co-location or financial burden caused by sharing such information normally will not be considered as an excuse to comply with this section. Meeting Packet Page 112 of 301 3. Third Party Technical Review. In the event a dispute arises as to whether a permittee has exercised good faith in accommodating other users, the Town may require the applicant to obtain a third-party technical study at the applicant’s expense. The Town may review any information submitted by the applicant and permittee(s) in determining whether good faith has been exercised. 4. Exceptions. No co-location may be required where the shared use would or does result in significant interference in the broadcast or reception capabilities of the existing wireless telecommunications facilities or failure of the existing wireless telecommunications facilities to meet federal standards for emissions. 5. Violation; penalty. Failure to comply with co-location requirements when feasible may result in denial of a permit request or revocation of an existing permit. (24-08, Amended, 09/04/2024, Deleted and replaced) Section 17.04 Application Types A. Administrative. The following types of applications are processed administratively by staff: 1. Applications to change or modify an existing administratively approved wireless communication facility that remains in compliance with all chapter requirements. 2. Applications to change or modify an existing wireless communication facility approved through public review; provided, that the modification will not: a. Increase the approved height of the supporting structure by more than ten percent (10%) or 20 feet, whichever is greater; b. Cause the original approved number of antennas to be exceeded by more than fifty percent (50%); c. Increase the original approved square footage of accessory buildings by more than 200 square feet; d. Add new, additional, or larger microwave antenna dishes; e. Expand the footprint of said support structure; or f. Potentially cause significant adverse impacts on the existing support structure or the surrounding area. 3. Applications for co-location of additional antenna for an additional service provider on an existing administratively approved tower that remains in compliance with all chapter requirements. Meeting Packet Page 113 of 301 4. Applications for co-location of additional antenna for an additional service provider on an existing tower approved through public review; provided, that the modification will not: a. Increase the approved height of the supporting structure by more than ten percent (10%) or 20 feet, whichever is greater; b. Cause the original approved number of antennas to be exceeded by more than fifty percent (50%); c. Increase the original approved square footage of accessory buildings by more than 200 square feet; d. Add new, additional, or larger microwave antenna dishes; e. Expand the footprint of said support structure; or f. Potentially cause significant adverse impacts on the existing support structure or the surrounding area. 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. An application shall identify the proposed location, purpose, date of installation, anticipated duration of use, maximum height, equipment to be installed, and measures necessary to ensure public and structural safety. The permit shall specify the period during which the mobile or temporary tower or facility may remain at the site, after which the Tower or Facility and all associated equipment shall be removed unless an extension is approved by the Town. Application materials shall include: a. Proof of event, emergency, or documented capacity need; b. A site plan showing setback and fall zone compliance; and c. Proof of general liability insurance per Section 17.06.G.1. B. Public Review. 1. Any new tower or modification to existing towers or antennas that do not meet the requirements in subsection (A) of this section for administrative review shall require review and approval as provided in subsection 17.05 (C). 2. Any new tower not meeting the setback or separation requirements in Section 17.03 (B). Meeting Packet Page 114 of 301 Section 17.05 Application Submittal, Review, and Processing A. General. Unless waived in writing by Zoning Administrator, the following provisions shall govern the review of all wireless communication facility applications: 1. Complete Application. Applications for wireless communication facilities shall be filed electronically on the Town’s website by an owner of real property and shall contain the area proposed for the wireless communication facility using the process established by the Director for such applications. All such applications shall include the information required in this section. Applications filed on behalf of the property owner by a third party shall include a statement from the property owner authorizing the submittal of the application. 2. Applications shall include documentation of compliance with items listed in Section 17.03(A) as applicable to the application submitted. 3. Inventory of Existing Sites. Each applicant for a new tower or co-location of new antenna on an existing tower shall provide to the Development Services Director an inventory of its existing towers, antennas, or sites approved for towers or antennas, that are either within the jurisdiction of the Town of Fountain Hills or within one (1) mile of the border thereof, including specific information about the location, height, and design of each tower. Each applicant shall also provide a one (1) year build-out plan for all other wireless communications facilities within the Town. The Development Services Director may share such information with other applicants applying for administrative approvals or special use permits under this chapter or with other organizations seeking to locate antennas within the jurisdiction of Town of Fountain Hills; provided, however, that the Development Services Director is not, by sharing such information, in any way representing or warranting that such sites are available or suitable. 4. Utility Service Antennas. a. If the antenna complies with the height requirements of the underlying zoning district, the plans for the antenna will be reviewed and approved with the overall site development plans if the site is being developed concurrently. If the antenna is being added to an existing utility site, the plans will be reviewed and processed consistent with the requirements of subsection (C)(2) of this section. b. If the antenna does not comply with the height requirements of the underlying zoning district, the plans for the antenna will be reviewed and processed consistent with the requirements of subsection (C)(3) of this section. 5. A list of the full names and contact information for all applicants, co- applicants, facility owner(s), facility operator(s), site developer(s), and wireless carrier(s), property owner(s) and other related third parties and their agent(s), if any, on whose behalf the application is being submitted. Meeting Packet Page 115 of 301 6. Proof of Authorization for Site Occupancy. Where an applicant is not the owner of the real property upon which it seeks to install its equipment or facility, it shall submit proof of authorization to occupy the site at issue. If the applicant is leasing all or a portion of real property upon which it intends to install its facility or equipment, then the applicant shall provide a written copy of its lease with the owner of such property. The applicant may redact any financial terms contained within the lease, but it shall not redact any portion of the lease which details the amount of area leased nor the specific portion of the real property to which the applicant has obtained the right to occupy, access, or preclude others from entering. Where an applicant seeks to Co-Locate new equipment into an existing facility, it shall provide a copy of its written co-location agreement with the owner of such pre-existing facility, from which it may redact any financial terms. 7. Fire Safety: The applicant shall submit a Fire Safety Plan that includes a general description of the personal wireless services facility for purposes of ensuring the Fire Department is fully informed and prepared in case of a fire. The Fire Safety Plan shall include: a. Location of all Fire Safety Plan documents. b. Location of the facility’s alarm panel. c. List of emergency contacts. d. Specific responsibilities assigned to designated personnel. e. Location of signal-processing equipment. f. Location and listing of types of power equipment, including rectifiers, inverters, distribution cabinets, bus bars, cables, and communications raceways. g. Listing and location of batteries, including description of quantities and types of batteries, specifying whether batteries are lithium-ion, nickel cadmium, sodium-nickel, valve-regulated lead acid, and/or vented, and description of any associated exhaust ventilation system(s). h. Description of actions to detect and prevent thermal runaway events. i. Description of whether the facility will be located in a lightning-prone area. If the facility is to be located in a lightning-prone area, description of how the facility shall comply with NFPA 780 Standard for the Installation of Lightning Protection Systems; j. Description of location and types of fuses used to ensure that if the wireless transmission facility experiences overcurrent resulting from current exceeding the rating of equipment or the ampacity of a conductor, the facility shall turn off temporarily. Meeting Packet Page 116 of 301 k. Depowering procedures including identification of locations of electrical depowering devices, which include: i. Coded floor prints located in the Fire Safety Plan document; ii. Facility signage to direct fire personnel to depowering locations; iii. The method of turning off power to the following: 1) Alternating current power board. This is the primary source of electric power for a telecommunications facility and is supplied by the local power company. 2) Standby power generator. This unit, usually a turbine or diesel generator, provides standby ac power that is transferred manually or automatically whenever a loss of ac power is experienced. 3) Direct current primary disconnect fuse or circuit breaker bay. This unit distributes dc power to the secondary fuse or circuit breaker panels throughout the central office. The secondary fuse or circuit breaker panels feed all the operating voltages to the central office branch circuits. 4) Uninterruptible power supply (UPS) 5) HVAC systems serving the facility 6) Alternative energy devices, such as wind turbines, fuel cells, photovoltaic systems, or other devices providing power to the facility. l. Detailed electrical designs, signed and stamped by a licensed electrical engineer, demonstrating compliance with the Building, Electric and Fire Code. The Code compliance demonstration shall include all necessary underlying calculations and inputs, including but not limited to: a. A short circuit and coordination study (“SCCS”) calculated pursuant to the IEEE 551-2006: Recommended Practice for Calculating AC Short-Circuit Currents in Industrial and Commercial Power Systems or the latest version of that standard. The study must demonstrate the protection devices will ensure the equipment enclosure will not be breached. The SCCS must include analysis of Voltage Transient Surges due to contact of conductors of different voltages; b. A one-line diagram of the electrical system; c. Voltage Drop & Load Flow Study; d. Load Calculation; e. Panel Directories; 8. Soil Erosion and Sedimentation Control: A soil erosion and sedimentation control plan, prepared in accordance with the standards as established by the Town Engineering Division. Meeting Packet Page 117 of 301 9. Engineer’s Report: For the construction of all new wireless facilities and to the extent not already mandated herein, the applicant shall provide a report prepared and certified by a professional engineer certifying the integrity and safety of all proposed new towers and/or structures and indicating the location, type, and height of the proposed personal wireless services facility, antenna capacity, on-site and abutting off-site land uses, means of access, setbacks from property lines, all applicable American National Standards Institute (ANSI) technical and structural codes. To the extent that an application proposes the co-location of new equipment onto an existing tower or personal wireless services facility, the applicant shall provide an engineer's report certifying that the proposed shared use will not diminish the structural integrity and safety of the existing structure and explaining what modifications, if any, will be required in order to certify above. 10. Visual Impact Analysis. The applicant shall provide a completed visual impact analysis that shall include the following: a. A “Zone of Visibility Map” to determine locations from where the new facility will be seen. b. A visual impact analysis which shall include photographic images taken from the perspectives of the properties situated in closest proximity to the location being proposed for the siting of the facility, as well as those properties which would reasonably be expected to sustain the most significant adverse aesthetic impacts due to such factors as their close proximity to the site, their elevation relative to the site, the existence or absence of a “clear line of sight” between the tower location and their location. The photographic images shall depict the height at which the proposed facility shall stand when completed, including all portions and proposed attachments to the facility, including, but not limited to, the main support structure, all antennas, transmitters, whip antennas, lightning rods, t- bars, crossbars, and cantilever attachments which shall, in whole or in part, be affixed to it, any and all surrounding equipment compound(s), fencing, cellular equipment cabinets, transformers, transformer vaults and/or cabinets, sector distribution boxes, ice bridges, backup generators, including but not limited to equipment boxes, switch boxes, backup generators, ice bridges, etc., to the extent that any of such compound and/ or equipment will be visible from properties other than the property upon which the proposed tower and compound are to be installed. The photographic images shall show the maximum silhouette, viewshed analysis, color and finish palette, and proposed screening and landscaping. The analysis shall include the results of the drone/balloon test, and other information as necessary to determine visual impact of the facility. The analysis shall include a map depicting where the photos were taken. Where consistent with the natural or built environment, the analysis shall include a native vegetation landscaping plan with a visual simulation of how the chosen plants, at maturity, will screen the site. Meeting Packet Page 118 of 301 11. For proposed towers and facilities taller than 100 feet, the applicant shall perform a balloon test and shall publish reasonably advanced public notice of the same to enable the Reviewing Authority, property owners, and the community an opportunity to assess the actual adverse aesthetic impact which the proposed facility is likely to inflict upon the nearby properties and surrounding community. The balloon test shall be conducted for not less than eight consecutive hours between 7:00 a.m. and 6:00 p.m. The primary test shall be conducted on a weekend. Said date and time will be established by the Development Services Director in coordination with the applicant, including an alternative date in case of inclement weather. If a balloon is used, the diameter shall be equal to the largest antenna or dish proposed for the CRS tower or the width of the tower, whichever is larger. The applicant will be responsible for publishing a public notice of the balloon test in at least one local newspaper publication and notifying abutters owning property within one thousand (1,000) feet radius, via U.S. Mail at least one week prior to the test. 12. If the application is for a facility that will not be attached to an existing utility pole and the facility’s proposed height will be greater than 30 feet then structural elevations of the facility(ies) shall include any trees and other structures within twenty (20’) feet, and their height. 13. Environmental Assessment Form. A completed environmental assessment form (EAF) and a completed visual EAF addendum if required by ADEQ. 14. FCC Compliance Report. An FCC compliance report, prepared by a licensed engineer, and certified under penalties of perjury, that the content thereof is true and accurate, wherein the licensed engineer shall certify that the proposed facility will be FCC compliant as of the time of its installation, meaning that the facility will not expose members of the general public to radiation levels that exceed the permissible radiation limits which the FCC has set. If it is anticipated that more than one carrier and/or user is to install transmitters into the facility, the FCC compliance report shall take into account anticipated exposure from all users on the facility and shall indicate whether or not the combined exposure levels will or will not exceed the permissible General Population Exposure Limits, or alternatively, the occupational Exposure Limits, where applicable. Such FCC Compliance Report shall provide the calculation or calculations with which the engineer determined the levels of RF radiation and/or emissions to which the facility will expose members of the general public. On the cover page of the report, the report shall explicitly specify: (a) Whether the applicant and their engineer are claiming that the applicable FCC limits based upon which they are claiming FCC compliance are the General Population Exposure Limits or the Occupational Exposure Limits. If the applicant and/or their engineer are asserting that the Occupational Exposure Limits apply to the proposed installation, they shall detail a factual basis as to why they claim that the Meeting Packet Page 119 of 301 higher set of limits is applicable, (b) The exact mi nimum distance factor, measured in feet, which the applicant’s engineer used to calculate the level of radiation emissions to which the proposed facility will expose members of the general public. The minimum distance factor is the closest distance (i.e., the minimum distance) to which a member of the general public shall be able to gain access to the transmitting antennas mounted upon, or which shall be a part of, the proposed facility. 15. FCC License. A copy of any applicable Federal Communications Commission license possessed by any carrier named as an applicant, co-applicant, or whose equipment is proposed for installation as of the time the application is being filed with the Town. 16. Effective Prohibition Claims. a. The Town is aware that applicants seeking approvals for the installation of new wireless Facilities often assert that federal law, and more specifically the TCA, prohibits the local government from denying their respective applications. In doing so, they assert that their desired facility is “necessary” to remedy one or more significant gaps in a carrier’s personal wireless service, and they proffer computer-generated propagation maps to establish the existence of such purported gaps. The Town is additionally aware that, in December 2018, driven by a concern that propagation maps created and submitted to the FCC by wireless carriers were inaccurate, the FCC caused its staff to perform actual drive tests, wherein the FCC staff performed 24,649 tests, driving nearly ten thousand (10,000) miles through twelve (12) states, with an additional 5,916 stationary tests conducted at 42 locations situated in nine (9) states. At the conclusion of such testing, the FCC Staff determined that the accuracy of the propagation maps submitted to the FCC by the wireless carriers had ranged from as little as 16.2% accuracy to a maximum of 64.3% accuracy. As a result, the FCC Staff recommended that the FCC no longer accept propagation maps from wireless carriers without supporting drive test data to establish their accuracy. A copy of the FCC Staff’s 66-page report is made a part of this Chapter as Appendix 1. The Town considers it of critical import that applicants provide truthful, accurate, complete, and sufficiently reliable data to enable the Town Council to render determinations upon applications for new wireless facilities consistent with this Chapter’s requirements and the TCA’s statutory requirements. Consistent with same, if, at the time of filing an application under this Chapter, an applicant intends to assert before the Town Council or the Town that: (a) an identified wireless carrier suffers from a significant gap in its personal wireless services within the Town, (b) that the applicant’s proposed installation is the least intrusive means of remedying such gap in Meeting Packet Page 120 of 301 services, and/or (c) that under the circumstances pertaining to the application, a denial of the application by the Town Council would constitute an “effective prohibition” under Section 47 U.S.C. §332 the TCA, then, at the time of filing such application, the applicant shall be required to file a written statement which shall be entitled: “Notice of Effective Prohibition Conditions” If an applicant files a Notice of Effective Prohibition Conditions, then the applicant shall be required to submit Probative Evidence to enable the Town Council to reasonably determine: i. Whether or not the conditions alleged by the respective applicant exist, ii. Whether there exists a significant gap or gaps in an identified wireless carrier’s personal wireless services within the Town, iii. The geographic locations of any such gaps, and iv. The geographic boundaries of such gaps, to enable the Town Council to determine whether granting the respective application would be consistent with the requirements of this Chapter and the legislative intent behind same, and whether or not Federal law would require the Town Council to grant the respective application, even if it would otherwise violate the Town Code, including, but not limited to, this Chapter. b. The additional materials which the applicant shall then be required to provide shall include the following: i. Drive Test Data and Maps. If, and to the extent that an applicant claims that a specific wireless carrier suffers from a significant gap in its personal wireless services within the Town, the applicant shall conduct or cause to be conducted a drive test within the specific geographic areas within which the applicant is claiming such gap or gaps exist, for each frequency at which the carrier provides personal wireless services. The applicant shall provide the Town and the Town Council with the actual drive test data recorded during such drive test, in a simple format which shall include, in table format: 1) The date and exact time of day for the test or tests, 2) The location, in longitude and latitude, of each point at which signal strength was recorded and 3) Each signal strength recorded, measured in DBM, for each frequency. Such data is to be provided in a separate table for each frequency at which the respective carrier provides personal wireless services to any of its end-use customers. Meeting Packet Page 121 of 301 4). The applicant shall also submit drive test maps depicting the actual signal strengths recorded during the actual drive test for each frequency at which the carrier provides personal wireless services to its end-use customers. If an applicant claims that it needs a “minimum” signal strength (measured in DBM) to remedy its gap or gaps in service, then for each frequency, the applicant shall provide three (3) signal strength coverage maps reflecting actual signal strengths in three (3) DBM bins, the first being at the alleged minimum signal strength, and two (2) additional three (3) DBM bin maps depicting signal strengths immediately below the alleged minimum signal strength claimed to be required. By way of example, if the applicant claims that it needs a minimum signal strength of – 95 DBM to remedy its alleged gap in service, then the applicant shall provide maps depicting the geographic area where the gap is alleged to exist, showing the carrier’s coverage at – 95 to -98 DBM, -99 to -101 DBM, and -102 to -104 DBM, for each frequency at which the carrier provides personal wireless services to its end-use customers. ii. Denial of Service and/or Dropped Call Records. If and to the extent that an applicant claims that a specific wireless carrier suffers from a capacity deficiency or a gap in service that renders the carrier incapable of providing adequate coverage of its personal wireless services within the Town, then the applicant shall provide dropped call records and denial of service records evidencing the number and percentage of calls within which the carrier’s customers were unable to initiate, maintain and conclude the use of the carrier’s personal wireless services without actual loss of service, or interruption of service. iii. The equipment and methodology used. iv. A list of any concurrent special events, festivals, road closures, or unusual network conditions occurring in the test area during the test period. 17. Estimate for Cost of Removal of Facility. At or prior to the filing of an application for a special use permit for the installation of a new personal wireless service facility, each respective applicant shall provide a written estimate for the cost of the decommissioning and removal of the facility, including all equipment that comprises any portion or part of the facility, compound and/or complex, as well as any accessory facility or structure, including the cost of the full restoration and reclamation of the site, to the extent practicable, to its condition before development in accord with the decommissioning and reclamation plan required herein. The Town Council’s Engineer shall review this estimate. A bond for the cost of removal as required in Sec. 17.06 A. 2. shall be filed prior to commencement of construction. Meeting Packet Page 122 of 301 18. Property Owner Consent & Liability Acknowledgement. A signed written consent from each owner of the subject real property upon which the respective applicant is seeking installation of its proposed personal wireless service facility, wherein the owner or owners both authorize the applicant to file and pursue its application and acknowledge the potential landowner’s responsibility, under Section 17.08 for engineering, legal and other consulting fees incurred by the Town. 19. Applications Using Existing Towers. a. Dimensioned, to-scale drawings showing the existing and proposed antenna on the tower including the height of the tower and the antennas. b. The number and type of existing and proposed antennas. c. Engineering calculations documenting the structural changes and certifying the tower’s ability to carry the new antennas. d. Dimensioned, to-scale drawings illustrating modification of ground equipment, if any. 20. Applications Using New Towers In addition to any information required for applications for special use permits pursuant to Chapter 2, Section 2.02, applicants for a new wireless facility shall submit the following information: a. A site plan as required in Section 2.04 plus zoning, General Plan classification of the site and all properties within the applicable separation distances set forth in Section 17.03(B)(1), adjacent roadways, proposed means of access, elevation drawings of the proposed tower and any other structures, photo simulations showing the tower in the proposed location from at least four (4) directions, and other information deemed by the Development Services Director to be necessary to assess compliance with this chapter. b. The setback distance between the proposed tower and the nearest residential unit and residentially zoned properties. Include an illustration of the fall zone for the tower. c. The separation distance from other towers described in the inventory of existing sites submitted pursuant to Section 17.03(B)(2) shall be shown on an updated site plan or map. The applicant shall also identify the type of construction of the existing tower(s) and the owner/operator of the existing tower(s), if known. d. Method of fencing, and finished color and, if applicable, the method of camouflage and illumination. e. A description of compliance with Sections 17.03(A)(3), 17.03(A)(4), 17.03(A)(5), 17.03(A)(7), 17.03(A)(8), 17.03(A)(9), 17.03(A)(10), 17.03(A)(11), 17.03(B), subsection Meeting Packet Page 123 of 301 (A)(3) of this section, Sections 17.06(A) and 17.06(B) and all applicable federal, state or local laws. f. A notarized statement by the applicant as to whether construction of the tower will accommodate collocation of additional antennas for future users. g. Identification of the entities providing the backhaul network for the tower(s) described in the application and other cellular sites owned or operated by the applicant in the municipality. h. Alternatives Analysis. An itemized list of alternative sites considered, with a comprehensive explanation of reasons alternative sites are not technologically feasible. Explanation shall include specific comparative analysis of how different sites would impact aesthetic values, and other environmental values. 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. k. A biological resource survey addressing potential impacts to locally present protected or sensitive species, including but not limited to the Sonoran Desert Tortoise (Gopherus morafkai). The survey shall include the following: i. A proposed facility description including location, height of tower as measured from the ground, description of associated equipment, width and length of access roads and driveways, and length and right-of-way width of power and communication lines; ii. Existing biological resources on-site including quantification of vegetation and habitat types, color photo documentation of on-site and surrounding vegetation, a description of water resources, potential habitat for federal and state-listed species, and sensitive species habitats; iii. The results of any focused surveys for federally listed species (if required); and iv. Impacts to biological resources including quantification of the habitat to be removed as a result of the proposed facility. The director may waive this requirement based on a finding that existing information verifies the lack of such biological resources on the site. Meeting Packet Page 124 of 301 20. Filing Fee. Payment of a filing fee in an amount established by a schedule adopted by resolution of the Council and filed in the offices of the Town Clerk. No part of the filing fee shall be returnable. B. Shot Clocks and Tolling. To comply with the requirements of Section 47 U.S.C. §332(c)(7)(B)(ii) of the TCA, the following shot clock periods set forth hereinbelow shall be presumed to be reasonable periods within which the Town shall render determinations upon applications for wireless communication facilities. The Town shall render determinations upon such applications within the periods set forth hereinbelow, unless the applicable shot clock period listed below is tolled, extended by agreement or the processing of the application is delayed due to circumstances beyond the Town’s control. 1. Application Shot Clocks. a. Receipt of Initial Application. Upon receipt of an application, the Development Services Director, or designee, shall review the application for completeness. If the Director determines the application is: (i) incomplete, (ii) missing required application materials, (iii) is the wrong type of application, or (iv) is otherwise defective, then, within ten (10) days for administrative applications and thirty (30) days for public hearing applications of the Town’s receipt of the application, the Director, or their designee, shall notify the applicant of the finding and state what is needed to have a complete application. The notice of incompleteness shall toll the shot clock, which shall not thereafter resume running unless and until the applicant tenders an additional submission to the Director to remedy the issues identified in the notice of incomplete application. The submission of any responsive materials by the applicant shall automatically cause the shot clock period to resume running. If upon receipt of any additional materials from the applicant, the Director determines that the application is still incomplete and/or defective, then the Director shall, once again notify the applicant within ten (10) days for administrative applications and thirty (30) days for public hearing applications of the applicant having filed its supplemental or corrected materials to the Town and the shot clock shall once again be tolled, and the same procedure provided for hereinabove shall be repeated. If Applicant does not cure the stated deficiencies within 30 days, the application shall be considered withdrawn or closed. b. Application Review. The shot clock for administrative applications is ninety (90) days. The shot clock for applications with new towers, monopoles, utility poles and other wireless facilities that trigger public review applications is one hundred fifty (150) days. Meeting Packet Page 125 of 301 2. Shot Clock Tolls, Extensions and Reasonable Delay Periods. Consistent with the letter and intent of Section 47 U.S.C. §332(c)(7)(B)(ii) of the TCA, each of the shot clock periods set forth within subsection (B) of this section shall generally be presumed to be sufficient periods within which the Town shall render decisions upon applications. Notwithstanding the same, the applicable shot clock periods may be tolled, extended by mutual agreement between any applicant and/or its representative and the Town, and the Town shall not be required to render its determination within the shot clock period presumed to be reasonable for each type of application, where the processing of such application is reasonably delayed, as described hereinbelow. a. Tolling of the Applicable Shot Clock Due to Incompleteness and/or Applicant Error. As provided for within subsection (B)(1) of this section, in the event that the Development Services Director deems an application incomplete, the Director shall send a notice of incompleteness to the applicant to notify the applicant that its application is incomplete and/or contains material errors, and shall reasonably identify the missing information and/or documents and/or the error(s) in the application. If the Director sends a notice of incompleteness as described hereinabove, the applicable shot clock shall automatically be tolled, meaning that the applicable shot clock period within which the Town is required to render a final decision upon the application shall immediately cease running, and shall not resume running, unless and until the Town receives a responsive submission from the applicant. If and when the applicant thereafter submits additional information in an effort to complete its application, or cure any identified defect(s), then the shot clock shall automatically resume running, but shall not be deemed to start running anew. The applicable shot clock period shall, once again, be tolled if the Director thereafter provides a second notice that the application is still incomplete or defective, despite any additional submissions which have been received by the Town, from the applicant, up to that point. b. Shot Clock Extension by Mutual Agreement. The Town shall be free to extend any applicable shot clock period by mutual agreement with any respective applicant. This discretion on the part of the Town shall include the Town’s authority to request, at any time, and for any period of time the Town may deem 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. Meeting Packet Page 126 of 301 In response to any request by the Town, the applicant, by its principal, agent, attorney, site acquisition agent, or other authorized representative, can consent to any extension of any applicable shot clock by affirmatively indicating its consent either in writing or by affirmatively indicating its consent on the record at any public hearing or public meeting. The Town shall be permitted to reasonably rely upon a representative of the applicant indicating that they are authorized to grant such consent on behalf of the respective applicant, on whose behalf they have been addressing the Town within the review process. c. Reasonable Delay Extensions of Shot Clock Periods. The Town recognizes that there may be situations wherein, due to circumstances beyond the control of the Town and/or the Town Council, the review and issuance of a final decision upon an application for a wireless communication facility cannot reasonably be completed within the application shot clock periods delineated within subsection (B) of this section. If, despite the exercise of due diligence by the Town, the determination regarding a specific application cannot reasonably be completed within the applicable shot clock period, the Town shall be permitted to continue and complete its review and issue its determination at a date beyond the expiration of the applicable period, if the delay of such final decision is due to circumstances including, but not limited to, those enumerated hereinbelow, each of which shall serve as a reasonable basis for a reasonable delay of the applicable shot clock period. i. In the event that the rendering of a final decision upon an application under this chapter is delayed due to natural and/or unnatural events and/or forces which are not within the control of the Town, such as the unavoidable delays experienced in government processes due to the COVID 19 pandemic, and/or mandatory compliance with any related federal or state government orders issued in relation thereto, such delays shall constitute reasonable delays which shall be recognized as acceptable grounds for extending the period for review and the rendering of final determinations beyond the period allotted under the applicable shot clock. ii. In the event that applicant tenders eleventh-hour submissions to the Town in the form of (a) expert reports, (b) expert materials, and/or (c) materials which require a significant period for review due either to their complexity or the sheer volume of materials which an applicant has chosen to provide to the Town at such late point in the proceedings, the Town shall be afforded a reasonable time to review such late-submitted materials. If reasonably necessary, the Town shall be permitted to retain the services of an expert consultant to review any late-submitted expert reports which were provided to the Town, even if such review or services extend beyond the applicable shot clock period, so long as the Town completes such review and retains and secures such expert services within a reasonable period of time thereafter and otherwise acts with reasonable diligence in completing its review and rendering its final decision. Meeting Packet Page 127 of 301 C. Review and Processing of Applications. 1. Conformity to the following shall be considered in review of all applications: a. The application is consistent with the objectives of this chapter. b. The height of the proposed tower. c. The adequacy of the proposed site, considering such factors as the sufficiency of the size of the site to comply with the established criteria, the configuration of the site, and the extent to which the site is formed by logical boundaries (e.g., topography, natural features, streets, relationship of adjacent uses, etc.) that provide for the ability to comply with the provisions of this chapter. d. The extent to which the proposal responds to the impact of the proposed development on adjacent land uses, especially in terms of visual impact. e. The extent to which the proposed telecommunications facility uses concealment elements. 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. h. Whether the proposed installation will inflict a significant adverse impact upon the property values of properties that are located adjacent to, or in close proximity to, the proposed site or properties that are otherwise situated in a manner that would cause the proposed installation to inflict a significant adverse impact upon their value. i. Whether the proposed installation will be incompatible with the use and/or character of properties located adjacent to or in close proximity to the proposed site or other properties situated in a manner that would cause the proposed installation to be incompatible with their respective use. j. Whether the proposed installation will be incompatible with and/or would have an adverse aesthetic impact upon or detract from the use and enjoyment of, and/or character of, recognized aesthetic assets of the Town, including, but not limited to, scenic areas and/or scenic ridgelines, scenic areas, public parks, and/or any other traditionally or historically recognized valuable scenic assets of the Town. k. Whether the proposed installation shall have a sufficient fall zone and/or safe zone around the facility to afford the general public safety against the potential dangers of structural failure, icefall, debris fall, and fire. Meeting Packet Page 128 of 301 l. Whether the applicant has mitigated the potential adverse impacts of the proposed facility to the greatest extent reasonably feasible. To determine mitigation efforts on the part of the applicant, the mere fact that a less intrusive site, location, or design would cause an applicant to incur additional expense is not a reasonable justification for an application to have failed to propose reasonable mitigation measures. 2. Review of Administrative Applications. a. Administrative applications will be reviewed by staff using the Town’s standard building permit review processes. b. Applications for mobile or temporary wireless facilities which remain in place for more than seven (7) consecutive days must submit a request for a temporary use permit as provided in Section 2.03. 3. Review and Processing of Public Review Applications. a. Applications which require public review and approval on private property will be processed as special use permits and follow the requirements listed in Section 2.02 for special use permits. Applications on Town owned property will not require a special use permit but will follow the same requirements for notice for review by the Town Council. b. Factual Determinations. To decide applications under this Section, the Town Council shall render factual determinations, which shall include two (2) specific types of factual determinations, as applicable. First, the Council shall render local zoning determinations according to Section i. hereinbelow. Then, if, and only if, an applicant asserts claims that a denial of its application would effectively prohibit an identified Wireless Carrier from providing Personal Wireless Services within the Town, or its proposed wireless facility or installation is necessary to remedy a significant gap in personal wireless services for an explicitly identified Wireless Carrier, and that its proposed installation is the least intrusive means of remedying a specifically identified significant gap or gaps. The Council shall then additionally render TCA determinations in accord with Section ii. herein below. The Council shall separately record each factual determination it makes in a written decision and shall reference, or make note of, the evidence based upon which it rendered each of its factual determinations. Meeting Packet Page 129 of 301 Each factual determination made by the Council shall be based upon Substantial Evidence. For purposes of this provision, “Substantial Evidence” shall mean such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It means less than a preponderance but more than a scintilla of evidence. Evidence that the Council may consider shall include any evidence submitted in support of an application and any evidence submitted by anyone opposing a respective application, whether such evidence is in written or photographic form or whether it is in the form of testimony by any expert, or any person who has personal knowledge of the subject of their testimony. The Council may, of course, additionally consider as evidence any information or knowledge which they, themselves, personally possess and any documents, records, or other evidence which is a matter of public record, irrespective of whether such public record is a record of the Town, or is a record of or is maintained by, another federal, state and/or other governmental entity and/or agency which maintains records which are available for, or subject to, public review. The requirements for specific factual determinations set forth below are intended to enure to the benefit of the Town, its residents, and property owners, and not applicants. If, and to the extent that the Town Council fails to render one or more of such determinations, that omission shall not constitute grounds upon which the respective applicant can seek to annul, reverse or modify any decision of the Town Council. i Local Zoning Determination The Council shall make the following factual determinations as to whether the application meets the requirements for granting a special use permit under this Chapter. (a) Compliance with Section 2.02 Whether the proposed installation will meet each of the conditions and standards set forth within Section 2.02 in the absence of which the Town Council is not authorized to grant a special use permit. (b) Potential Adverse Aesthetic Impacts Whether the proposed installation will inflict a significant adverse aesthetic impact upon properties located adjacent to, or in close proximity to, the proposed site or any other properties situated in a manner that would sustain significant adverse aesthetic impacts by the installation of the proposed facility. (c) Potential Adverse Impacts Upon Real Estate Values Whether the proposed installation will inflict a significant adverse impact upon the property values of properties that are located adjacent to, or in close proximity to, the Meeting Packet Page 130 of 301 proposed site or properties that are otherwise situated in a manner that would cause the proposed installation to inflict a significant adverse impact upon their value. (d) Potential Adverse Impact Upon the Character of the Surrounding Community Whether the proposed installation will be incompatible with the use and/or character of properties located adjacent to or in close proximity to the proposed site or other properties situated in a manner that would cause the proposed installation to be incompatible with their respective use. (e) Potential Adverse Impacts Upon Historic Properties or Historic Districts Whether the proposed installation will be incompatible with and/or would have an adverse impact upon, or detract from the use and enjoyment of, and/or character of a historic property, historic site, and/or historic district, including, but not limited to, historic structures, properties and/or districts which are listed on, or are eligible for listing on, the National Register of Historic Places. (f) Potential Adverse Impacts Upon Ridgelines or Other Aesthetic Resources of the Town Whether the proposed installation will be incompatible with and/or would have an adverse aesthetic impact upon or detract from the use and enjoyment of, and/or character of, recognized aesthetic assets of the Town, including, but not limited to, scenic areas and/or scenic ridgelines, scenic areas, public parks, and/or any other traditionally or historically recognized valuable scenic assets of the Town. (g) Sufficient Fall Zones Whether the proposed installation shall have a sufficient fall zone and/or safe zone around the facility to afford the general public safety against the potential dangers of structural failure, icefall, debris fall, and fire. (h) Mitigation Whether the applicant has mitigated the potential adverse impacts of the proposed facility to the greatest extent reasonably feasible. To determine mitigation efforts on the part of the applicant, the mere fact that a less intrusive site, location, or design would cause an applicant to incur additional expense is not a reasonable justification for an application to have failed to propose reasonable mitigation measures. If, when applying the evidentiary standards set forth in Section 17.05 C. 3. b. i. hereinabove, the Town Council determines that the proposed facility would not meet the standards set forth within Section 2.02 or that the proposed facility would inflict one or Meeting Packet Page 131 of 301 more of the adverse impacts described hereinabove to such a substantial extent that granting the respective application would inflict upon the Town and/or its citizens and/or property owners the types of adverse impacts which this provision was enacted to prevent, the Town Council shall deny the respective application unless the Council additionally finds that a denial of the application would constitute an Effective Prohibition, as provided for in Sections 17.05 C. 3. b. ii. and iii immediately hereinbelow. ii. TCA Determinations In cases within which an applicant has filed a “Notice of Effective Prohibition Conditions,” the Town Council shall determine if a denial of the respective application would “Effectively Prohibit” a specifically identified Wireless Carrier from providing Personal Wireless Services within any geographic area or areas in the Town. More specifically, the Town Council shall determine whether a denial of the specific application would either: (i) prevent an identified Wireless Carrier from providing personal wireless services within a specific geographic area or areas within the Town or (ii) would prevent a specific Wireless Carrier from constructing a sufficient number of such facilities necessary to enable it to provide Personal Wireless Services within the Town. In determining whether a denial of any specific application would constitute an “Effective Prohibition,” the Town Council shall determine: (1) whether an applicant has established that an identified Wireless Carrier suffers from one or more significant gaps in its Personal Wireless Services, and (2) whether its proposed installation is the least intrusive means of remedying any such gap or gaps. (a) Significant Gap in Personal Wireless Services of an Identified Carrier The Town Council shall determine whether the applicant has established, based upon probative evidence provided by the applicant and/or its representative, that a specific Wireless Carrier suffers from a significant gap in its personal wireless services within the Town. In rendering such determination, the Council shall consider factors including, but not necessarily limited to: (1) Whether the identified Wireless Carrier, which is alleged to suffer from any significant gap in their personal wireless services, already provides Adequate Service in its Personal Wireless Services to its customers at any frequency being used by the carrier to provide personal wireless services to its end-use customers, (2) Whether any such alleged gap is relatively large or small in geographic size, Meeting Packet Page 132 of 301 (3) Whether the number of the carrier’s customers affected by the gap is relatively small or large, (4) Whether or not the location of the gap is situated on a lightly traveled road, or sparsely or densely occupied area, and/or (5) Overall, whether the gap is relatively insignificant or otherwise relatively de minimis. An Effective Prohibition shall not be found to exist under subparagraph (iii) hereinbelow if a Wireless Carrier has adequate coverage in any specified geographic area, such that its end-use customers can use their cellular telephones to connect to landlines using the Carrier’s Personal Wireless Services, but the frequency at which the customers are using such services is not the frequency most desired by the Carrier. (b) Least Intrusive Means of Remedying Gap(s) in Service The Town Council shall determine whether the applicant has established, based upon probative evidence provided by the applicant and/or its representative, that the installation of the proposed facility at the specific site proposed by the applicant and the specific portion of the site proposed by the applicant, and at the specific height proposed by the applicant, is the least intrusive means of remedying whatever significant gap or gaps which the applicant has contemporaneously proven to exist as determined by the Town Council based upon any evidence in support of, and/or in opposition to, the subject application. In rendering such determination, the Council shall consider factors including, but not necessarily limited to: (1) Whether the proposed site is the least intrusive location at which a facility to remedy an identified significant gap may be located, and the applicant has reasonably established a lack of potential alternative less intrusive sites and lack of sites available for co-location, (2) Whether the specific location on the proposed portion of the selected site is the least intrusive portion of the site for the proposed installation (3) Whether the height proposed for the facility is the minimum height actually necessary to remedy an established significant gap in service, (4) Whether or not a pre-existing structure can be used to camouflage the facility and/or its antennas, Meeting Packet Page 133 of 301 (5) Whether or not, as proposed, the installation mitigates adverse impacts to the greatest extent reasonably feasible through the employ of Stealth design, screening, use of color, noise mitigation measures, etc., and/or (6) Overall whether or not there is a feasible alternative to remedy the gap through alternative, less intrusive substitute installations. An Effective Prohibition shall also not be found to exist in subparagraph (iii) hereinbelow if an applicant fails to establish before the Town Council that any existing geographic gap or capacity deficiency in the specific Wireless Carrier’s coverage cannot be remedied through a less intrusive means than what is being proposed, including, but not limited to, potential installations on alternative less intrusive sites, a shorter tower or facility, the incorporation of a more stealthy design, etc. iii. Finding of Effective Prohibition or Lack of Effective Prohibition After considering the evidence presented before it, the Town Council shall determine whether or not a denial of the respective application would constitute an effective Prohibition. If the Town Council affirmatively determines that the applicant has failed to establish either: (i) that a denial of the application would prevent an identified Wireless Carrier from providing personal wireless services within a specific geographic area or areas within the Town or (ii) that a denial of the application would prevent a specific Wireless Carrier from constructing a sufficient number of such facilities necessary to enable it to provide Personal Wireless Services within the Town, then the Town Council shall find that a denial of the application does not constitute an Effective Prohibition. If the Town Council affirmatively determines that: (i) a denial of the application would prevent an identified Wireless Carrier from providing personal wireless services within a specific geographic area or areas within the Town, or (ii) that a denial of the application would prevent a specific Wireless Carrier from constructing a sufficient number of such facilities necessary to enable it to provide Personal Wireless Services within the Town, then the Town Council shall find that a denial of the application would constitute an Effective Prohibition, and the Town Council shall grant the subject application, irrespective of whether or not the granting of same would otherwise be inconsistent with any other provision of this Section §17.05 C. 3. b. Provided, the Town reserves the right to deny an application even if doing so leads to an effective prohibition to the extent allowed by the safe harbors contained in 47 U.S.C. §§ 253(b) and (c) and incorporated into 332(c)(7)(B)(i), based on the evidence of record. 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 Meeting Packet Page 134 of 301 of the Town Council that no existing tower, structure or alternative technology that does not require the use of towers or structures can accommodate the applicant’s proposed antenna. An applicant shall submit information requested by the Town Council related to the availability of suitable existing towers, other structures or alternative technology. Evidence submitted to demonstrate that no existing tower, structure or alternative technology can accommodate the applicant’s proposed antenna may consist of any of the following: i. No existing towers or structures are located within the geographic area, which meet applicant’s reasonable engineering and personal wireless service related quality requirements. This evidence cannot be merely conclusory and must be supported by propagation maps that include the underlying analysis models, engineering reports speaking to the technical infeasibility, dropped call logs, and other data showing that a new tower is the only means of accommodating the proposed antenna. ii. Existing towers or structures are not of sufficient height to meet applicant’s engineering requirements. iii. Existing towers or structures do not have sufficient structural strength to support applicant’s proposed antenna and related equipment. iv. The applicant’s proposed antenna would cause electromagnetic interference with the antenna on the existing towers or structures, or the antenna on the existing towers or structures would cause interference with the applicant’s proposed antenna as certified by an RF engineer. 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. d. Following approval by the Town Council, the applicant may apply for a building permit through the standard application process. Construction shall not commence prior to approval of the building permit. 4. Environmental Impacts Meeting Packet Page 135 of 301 If, and to the extent that, the Town Council determines a proposed installation bears the potential for a significant adverse impact upon the environment within the meaning of ADEQ and/or the NEPA, then the Council shall be expected to comply with the requirements of ADEQ in determining both: a. The extent of adverse impacts upon the environment and/or historic properties; and, b. What mitigation measures the applicant should be required to undertake to minimize the adverse environmental impacts and/or impacts upon historic sites, structure and/or districts. If a respective applicant fails to obtain a review from the ADEQ and/or NEPA and opinion letters from the ADEQ and the FCC pertaining to its proposed installation prior to a first public hearing before the Town Council for the respective application, then the Town Council may make direct requests to the ADEQ and the FCC for their review of the application. The Town Council may request the FCC’s review and input in completing the statutorily-required environmental impact analysis pursuant to ADEQ and NEPA. In addition, the Town Council shall comply with the statutory requirements of ADEQ to complete an ADEQ review, make determinations of significance, and, where appropriate, require the applicant to complete a draft environmental impact statement and, if additionally appropriate, to thereafter complete a final environmental impact statement and analysis. So long as the Town Council acts with reasonable diligence in completing its ADEQ and NEPA review, if compliance with the statutory requirements for environmental review requires a period of effort that extends beyond the expiration of the applicable shot clock period, the delays beyond such period shall be deemed reasonable. 5. Historic Site Impacts The Town Council shall consider the potential adverse impacts of any proposed facility upon any historic site, district, or structure consistent with the Town’s historic preservation law requirements and comprehensive plan and ADEQ. If, and to the extent that, the Town Council determines that a proposed installation bears the potential for a significant adverse impact on a historic site or a historic district within the meaning of ADEQ and/or the NHPA (especially if the historic site at issue is listed upon the National Register of historic places), then the Council shall comply with the requirements of both ADEQ and Town law in determining both: a. The extent of adverse impacts upon the historic properties, and b. What mitigation measure might the applicant be required to undertake to minimize the adverse environmental impacts and/or adverse impacts upon historic sites, structures and/or district. Meeting Packet Page 136 of 301 Should a respective applicant fail to obtain a SHPO and/or a Section 106 review under NHPA, and opinion letters from SHPO and the FCC pertaining to its proposed installation prior to a first public hearing before the Town Council for the respective application, then the Town Council shall make direct requests to SHPO and the FCC for their review of the application. They shall request SHPO and the FCC’s review and input in completing the statutorily-required environmental/historic impact analysis pursuant to ADEQ and NHPA. This request shall include, but not be limited to, a request to the FCC for a Section 106 review, as defined in this Chapter, as the Town recognizes each application for a special use permit for the installation of a personal wireless services facility shall constitute “an undertaking” for purposes of compliance with the National Historic Preservation Act. In addition, the Town Council shall comply with the statutory requirements of ADEQ to complete a SEQ ADEQ RA review, make determinations of significance, and, where appropriate, require the applicant to complete a draft environmental impact statement, and if additionally appropriate, to thereafter complete a final environmental impact statement and analysis. So long as the Town Council acts with reasonable diligence in completing its ADEQ and NHPA review, if compliance with the statutory requirements for historic preservation review requires a period of effort that extends beyond the expiration of the applicable shot clock period, the delays beyond such period shall be deemed reasonable. 6. Tribal Site Impacts The Town Council shall consider the potential adverse impacts of any proposed facility upon any tribal lands associated with the Fort McDowell Yavapai Nation and the Salt River Prima- Maricopa Indian Community near or within the general area of Fountain Hills, Arizona. If, and to the extent that, the Town Council determines that a proposed installation bears the potential for a significant adverse impact on such tribal lands, then the Council shall issue notice to tribal representatives and request tribal review of the application. 7. Force Majeure In the event that the rendering of a final decision upon an application under this Chapter is delayed due to natural and/or unnatural events and/or forces which are not within the control of the Town or the Town Council, such as the unavoidable delays experienced in government processes due to the COVID 19 pandemic, and/or mandatory compliance with any related federal or state government orders issued in relation thereto, such delays shall constitute reasonable delays which shall be recognized as acceptable grounds for extending the period for review and the rendering of final determinations beyond the period allotted under the applicable shot clock. 8. 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. Meeting Packet Page 137 of 301 Section 17.06 Maintenance and Operation A. Removal of Abandoned Antennas and Towers; Bond Required. 1. Any antenna or tower that is not operated for a continuous period of ninety (90) days shall be deemed abandoned. Within ninety (90) days of receipt of notice from the Town of Fountain Hills notifying the owner of such abandonment, the owner of such antenna or tower shall completely remove the same and all related equipment and improvements and shall restore all affected areas to a condition compliant with all applicable laws, which includes without limitation the Code. 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. The Town shall have the right (but not the obligation) to perform such removal and restoration with or without notice. If there are two (2) or more users of a single tower, then this provision shall not become effective until all users cease using the tower for the prescribed period. 2. Upon receiving a special use permit approval from the Town Council and a building permit, prior to the commencement of installation and/or construction of such facility or any part thereof, the applicant shall file with the Town a bond for a length of no less than three (3) years in an amount of the estimate of a certified engineer of one-hundred twenty-five percent (125%) of the cost of removal of the facility and all associated structures, fencing, power supply, and other appurtenances connected with the facility. The bond must be provided within thirty (30) days of the approval date and before any installation or construction begins. Replacement bonds must be provided ninety (90) days prior to the expiration of any previous bond. At any time the Town has good cause to question the sufficiency of the bond at the end of any three-year (3) period, the owner and/or operator of the facility, upon request by the Town, shall provide an updated estimate and bond in the appropriate amount. Failure to keep the bonds in effect is cause for the removal of the facility at the owner's expense. Each facility will require a separate bond, regardless of the number of owners or location. B. State or Federal Requirements. 1. Compliance with state and 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 Meeting Packet Page 138 of 301 antennas into compliance with such revised standards and regulations shall constitute grounds for the removal of the tower or antenna at the owner’s expense. 2. Prohibition against illegally excessive emissions and RF testing. As disclosed on the FCC’s public internet website, personal wireless services facilities erected at any height under 200 feet are not required to be registered with the FCC. Of even greater potential concern to the Town is the fact that the FCC does not enforce the RF radiation limits codified within the CFR by either: (a) testing the actual radiation emissions of wireless Facilities either at the time of their installation or at any time thereafter, or (b) requiring their owners to test them. See relevant excerpts from the FCC’s public internet website annexed as Appendix 2. This means that when wireless Facilities are constructed and operated within the Town, the FCC will have no idea where they are located and no means of determining, much less ensuring, that they are not exposing residents within the Town and/or the general public to Illegally Excessive levels of RF Radiation. The Town deems it to be of critical importance to the health, safety, and welfare of the Town, its residents, and the public at large that personal wireless service facilities do not expose members of the general public to levels of RF radiation that exceed the limits which have been deemed safe by the FCC, and/or are imposed under CFR. The FCC has recognized that 47 U.S.C. § 332(c)(7)(B)(iv) permits state and local governments, when making decisions on the placement, construction, and modification of personal wireless service facilities, to consider whether such facilities comply with the Commission's regulations concerning RF emissions. In re Human Exposure to Radiofrequency Electromagnetic Fields et al., 34 FCC Rcd 11687, 11739, ¶114 (2019). In accord with the same, the Town enacts the following RF Radiation testing requirements and provisions set forth herein below. No wireless telecommunications facility shall at any time be permitted to emit illegally excessive RF Radiation as defined in Section 17.02 or to produce power densities that exceed the legally permissible limits for electric and magnetic field strength and power density for transmitters, as codified within 47 CFR §1.1310(e)(1), Table 1 Sections (i) and (ii), as made applicable pursuant to 47 CFR §1.1310(e)(3) unless the operator implements and retains responsibility for ongoing effectiveness of the mitigation actions contained in 47 C.F.R. §1.1307(b)(4). 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. Meeting Packet Page 139 of 301 As set forth hereinbelow, the Town may additionally require, at the owner and/or operator’s expense, independent verification of the results of any analysis set forth within any reports submitted to the Town by the owner and/or operator. If an operator of a personal wireless service facility fails to supply the required reports or fails to correct a violation of the legally permissible limits described hereinabove, following notification that their respective facility is believed to be exceeding such limits, any special use permit or other zoning approval granted by the Town Council or any other body or representative of the Town is subject to modification or revocation by the Town Council following a public hearing. a. Certification of Compliance with Applicable RF Radiation Limits. Within forty-five (45) days of initial operation or a substantial modification of a wireless communication facility, the owner and/or operator of each telecommunications antenna shall submit to the Development Services Director a written certification by a licensed professional engineer, sworn to under penalties of perjury, that the facility’s radio frequency emissions comply with the limits codified within 47 CFR §1.1310(e)(1), Table 1 Sections (i) and (ii), as made applicable pursuant to 47 CFR §1.1310(e)(3). The engineer shall also measure the emissions of the approved wireless facility, including the cumulative impact from other nearby wireless facilities, and determine if such emissions are within the limits described hereinabove. A report of these measurements and the engineer’s findings with respect to compliance with the FCC’s maximum permissible exposure (MPE) limits shall be submitted to the Development Services Director. If the report shows that the facility does not comply with applicable limits, then the owner and/or operator shall cease operation of the facility until the facility is brought into compliance with such limits. Proof of compliance shall be a certification provided by the engineer who prepared the original report. The Town may require, at the applicant’s expense, independent verification of the results of the analysis. b. Random RF Radiofrequency Testing. At the operator’s expense, the Town may retain an engineer to conduct random unannounced RF radiation testing of such wireless facilities to ensure the facility’s compliance with the limits codified within 47 CFR §1.1310(e)(1) et seq. The Town may cause such random testing to be conducted as often as the Town may deem appropriate. However, the Town may not require the owner and/or operator to pay for more than one (1) test per facility per calendar year unless such testing reveals that one (1) or more of the owner and/or operator’s facilities are exceeding the limits codified within 47 CFR §1.1310(e)(1) et seq., in which case the Town shall be permitted to demand that the wireless facility be brought into compliance with such limits, and to conduct additional tests to Meeting Packet Page 140 of 301 determine if, and when, the owner and/or operator thereafter brings the respective wireless facility and/or facilities into compliance. If the Town at any time finds that there is good cause to believe that a personal wireless service facility and/or one or more of its antennas are emitting RF radiation at levels in excess of the legal limits permitted under 47 CFR §1.1310(e)(1) et seq., then the Town shall provide written notice to the owner and/or operator identifying the noncompliance and the corrective action required. Except where the violation presents an immediate threat to public safety, the owner or operator shall be afforded a reasonable period, not to exceed thirty (30) days, to cure the violation or demonstrate compliance. If the violation has not been cured within the prescribed period, a hearing shall be scheduled before the Town Council at which the owner and/or operator of such facility shall be required to show cause why any and all permits and/or approvals issued by the Town for such facility and/or facilities should not be revoked, and a fine should not be assessed against such owner and/or operator. Such hearing shall be duly noticed to both the public and the owner and/or operator of the respective facility or facilities at issue. The owner and/or operator shall be afforded not less than two (2) weeks' written notice by first-class mail to its Notice Address. At such hearing, the burden shall be on the Town to show that, by a preponderance of the evidence, the Facilities emissions exceeded the permissible limits under 47 CFR §1.1310(e)(1) et seq. In the event that the Town establishes same, the owner and/or operator shall then be required to establish, by clear and convincing evidence, that a malfunction of equipment caused their failure to comply with the applicable limits through no fault on the part of the owner/operator. If the owner and/or operator fails to establish same, the Town Council shall have the power to and shall revoke any special use permit, variance, building permit, and/or any other form of zoning-related approval(s) which the Town Council, Board of Adjustment, Town Engineer and/or any other representative of the Town may have then issued to the owner and/or operator, for the respective facility. In addition, the Town may issue a civil citation of not less than $1,000, nor more than $5,000 for such violation of subparagraph 1. hereinabove, or, in the case of a second offense within less than five (5) years, a minimum fine of $5,000, nor more than $25,000. In the event that an owner or operator of one or more personal wireless service facilities is found to violate subparagraph 1. hereinabove three or more times within any five (5) year period, then in addition to revoking any zoning approvals for the facilities which were violating the limits codified in 47 CFR §1.1310(e)(1) et seq., the Town Council shall render a determination within which it shall deem the owner/operator prohibited from filing any Meeting Packet Page 141 of 301 applications for any new wireless personal services facilities within the Town for a period of five (5) years. c. Annual Testing. The owner or operator of all PWSF shall provide for and conduct an inspection of radio frequency radiation at least once annually by a licensed radio frequency engineer. Three copies of a report shall be provided to the Development Services Department, verifying that the radio frequency radiation is in compliance with FCC Guidelines. 3. Actions for Noncompliance. If the Town at any time finds that there is good cause to believe that a wireless communication facility and/or one (1) or more of its antennas are emitting RF radiation at levels in excess of the legal limits permitted under 47 CFR §1.1310(e)(1) et seq., the Town shall provide written notice to the owner and/or operator identifying the noncompliance and the corrective action required. Except where the violation presents an immediate threat to public safety, the owner or operator shall be afforded a reasonable period, not to exceed thirty (30) days, to cure the violation or demonstrate compliance. If the violation has not been cured within the prescribed period, then a hearing shall be scheduled before the Town’s Zoning Administrator at which the owner and/or operator of such facility shall be required to show cause why any and all permits and/or approvals issued by the Town for such facility and/or facilities should not be revoked, and a fine should not be assessed against such owner and/or operator. The owner and/or operator shall be afforded not less than two (2) weeks’ written notice of the hearing. At such hearing, the burden shall be on the Town to show that, by a preponderance of the evidence, the facilities emissions exceeded the permissible limits under 47 CFR §1.1310(e)(1) et seq. In the event that the Town establishes same, the owner and/or operator shall then be required to establish, by clear and convincing evidence, that a malfunction of equipment caused their failure to comply with the applicable limits through no fault on the part of the owner/operator. If the owner and/or operator fails to establish same, the Town shall have the power to revoke any permit, building permit, and/or any other form of approval(s) which the Town Council or any other representative of the Town may have then issued to the owner and/or operator, for the respective facility. The Zoning Administrator may revoke an administrative approval. The decision of the Zoning Administrator may be appealed to the Town Manager. If the tower or antenna was approved by the Town Council, revocation will be considered by the Town Council in the same manner as the original approval. In addition, the Town may issue a civil citation for noncompliance as provided in Section 1-8-3 of the Town Code. In the event that an owner or operator of one (1) or more wireless communication facility is found to violate subsection (B)(1) of this section three (3) or more times within any five (5) year period, Meeting Packet Page 142 of 301 then in addition to revoking any zoning approvals for the facilities which were violating the limits codified in 47 CFR §1.1310(e)(1) et seq., the Town Council shall render a determination within which it shall deem the owner/operator prohibited from filing any applications for any new wireless personal services facilities within the Town for a period of five (5) years. C. Building Codes; Safety Standards. To ensure the structural integrity of towers, the owner of a tower shall ensure that it is maintained in compliance with standards contained in applicable state or local building codes and the applicable standards for towers that are published by the Electronic Industries Association, as amended from time to time. If, upon inspection, the Town of Fountain Hills concludes that a tower fails to comply with such codes and standards and constitutes a danger to persons or property, then upon notice being provided to the owner of the tower, the owner shall have thirty (30) days to bring such tower into compliance with such standards. Failure to bring such tower into compliance within said thirty (30) days shall constitute grounds for the removal of the tower or antenna at the owner’s expense. D. Noise. Wireless facilities and all related equipment must comply with all noise regulations and shall not exceed such regulations, either individually or collectively. Backup generators shall only be operated during power outages and/or for testing and maintenance purposes between the hours of 9:00 a.m. and 4:00 p.m. E. Maintenance. Prior to scheduling a final inspection for construction of a tower and associated equipment, the applicant shall file with the Town a bond in the amount of the estimate of a certified engineer of one-hundred twenty-five percent (X 125% ) of the maintenance, equipment, and landscaping to cover the ongoing maintenance of the tower, equipment, and landscaping. The bond amount shall be reviewed and revised every three years thereafter. Should the owner of the tower, equipment, and/or landscaping fail to maintain said facilities consistent with the Town’s approval and ordinance requirements, and after notice for correction by the Town, the Town may call and utilize the bonds to perform the needed maintenance activities. F. Maintenance Contact Information. Each permittee of a wireless telecommunications facility shall provide the director with the name, address and 24-hour local or toll-free contact phone number of the permittee, the owner, the operator and the agent responsible for the maintenance of the facility ("contact information"). The contact information for the agent responsible for the maintenance of the facility must include at least one natural person. Contact information shall be updated within seven (7) days of any change. G. Indemnity and liability for damages. 1. The wireless telecommunications facility provider shall defend, indemnify, and hold harmless the Town or any of its boards, commissions, agents, officers, and employees from any claim, action or proceeding against the Town, its boards, commission, agents, officers, or employees to attack, set aside, void, or annul, the approval of the project when such claim or action is brought within the time period provided for in applicable state and/or local statues. The Town shall Meeting Packet Page 143 of 301 promptly notify the provider(s) of any such claim, action or proceeding if the Town bears its own attorney's fees and costs, and the Town defends the action in good faith. 2. Wireless telecommunications facility operators shall be strictly liable for interference caused by their facilities with Town communications systems. The operator shall be responsible for costs for determining the source of the interference, all costs associated with eliminating the interference (including but not limited to filtering, installing cavities, installing directional antennas, powering down systems, and engineering analysis), and all costs arising from third party claims against the Town attributable to the interference. H. Certificate of Insurance required. The applicant shall maintain adequate and sufficient liability insurance during the construction period and thereafter, the carrier shall maintain liability insurance, issued by an insured authorized to do business in the State of Arizona meeting the criteria of this section throughout the life of any PWSF erected within the Town of Fountain Hills, at least as broad as follows: 1. Commercial General Liability Insurance. The permittee shall procure and maintain at its expense or cause its contractor or subcontractor to procure and maintain throughout the term of this permit, commercial General Liability ("CGL") insurance on an "occurrence" basis, with limits not less than $2,000,000 per occurrence per wireless carrier or $4,000,000 per wireless carrier in the aggregate. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project location or the general aggregate limit shall be twice the required occurrence limit. CGL insurance must include coverage for the following: Bodily Injury and Property Damage; Personal Injury/Advertising Injury; Premises/Operations Liability; Products/Completed Operations Liability; Aggregate Limits that Apply per Project; Explosion, Collapse and Underground ("UCX") exclusion deleted; Contractual Liability with respect to the permit; Broad Form Property Damage; and Independent Consultants Coverage. The policy shall contain no endorsements or provisions limiting coverage for (i) contractual liability; (ii) cross liability exclusion for claims or suits by one insured against another; (iii) products/completed operations liability; (iv) bodily injury or damage from RF exposure at levels exceeding the FCC limits; or (v) contain any other exclusion contrary to the conditions in this permit. 2. Environmental Pollution Liability Insurance. The permittee shall procure and maintain at its expense or cause its contractor or subcontractor to procure and maintain throughout the term of this permit, Contractors Pollution Liability Insurance including contractual liability coverage to cover liability and legal expenses arising out of cleanup, removal, storage, or handling of hazardous or toxic chemicals, materials, substances, or any other pollutants by the permittee or any subcontractor resulting from pollution conditions associated with the personal wireless services facility in an amount not less than $1,000,000 each occurrence combined single limit for bodily injury and property damage. Meeting Packet Page 144 of 301 3. Umbrella Policy. If an umbrella or excess liability insurance policy is used to satisfy the minimum requirements for insurance coverage listed above, the umbrella or excess liability policies shall provide coverage at least as broad as specified for the underlying coverages and covering those insured in the underlying policies. Coverage shall be "pay on behalf," with defense costs payable in addition to policy limits. Permittee shall provide a "follow form" endorsement or schedule of underlying coverage satisfactory to the Town indicating that such coverage is subject to the same terms and conditions as the underlying liability policy. 4. Endorsements. The relevant policy(ies) shall name the Town, its elected/appointed officials, commission members, officers, representatives, agents, volunteers and employees as additional insureds. The permittee shall use its best efforts to provide thirty (30) days' prior notice to the Town of the cancellation or material modification of any applicable insurance policy. 5. Verification of Coverage. Permittee shall furnish the Development Services Department with original certificates and amendatory endorsements or copies of the applicable policy language providing the insurance coverage required herein. All certificates and endorsements are to be received and approved by the Development Services Department before any work commences. However, failure to obtain required documents prior to the work beginning shall not waive the Licensee's obligation to provide them. Permittee shall furnish updated certificates and endorsements to the Town annually. The Town reserves the right to require updated certificates and endorsements or complete, certified copies of all required insurance policies, including the endorsements required herein, at any time. 6. Permittee Has Full Liability: The permittee shall assume full liability for damage or injury caused to any property or person by the personal wireless services facility. 7. Permittee shall provide an executed agreement, pursuant to which Permittee and any related third parties agree to defend, hold harmless and fully indemnify the Town, its officers, employees, agents, attorneys, and volunteers, from (i) any claim, action or proceeding brought against the Town or its officers, employees, agents, or attorneys to attack, set aside, void, or annul any such approval of the Town or (ii) a successful legal action brought against the Town for loss of property value or other harm caused by the placement or operation of a small cell installation. Such indemnification shall include damages, judgments, settlements, penalties, fines, defensive costs or expenses, including, but not limited to, interest, attorneys’ fees and expert witness fees, or liability of any kind related to or arising from such claim, action, or proceeding whether incurred by the Permittee, the Town and/or the parties initiating or bringing such proceeding. The agreement shall also include a provision obligating the Permittee to indemnify the Town for all of the Town’s costs, fees and damages which the Town incurs in enforcing the indemnification provisions of this Section. All insurance required under this Chapter shall be issued by an insurer holding a current A.M. Best rating of A- or better, that is not an affiliate, subsidiary, or captive insurance entity of the applicant, Meeting Packet Page 145 of 301 permittee, or any parent or related company thereof. Self-insurance and insurance issued by a special- purpose or single-project entity created by the applicant shall not satisfy this requirement. The Town reserves the right to request and independently verify the insurer's rating and independence prior to permit issuance and at each renewal. I. ADA Accommodations. The Town seeks to comply with the Americans With Disabilities Act, and shall comply with same in the event that any person who is disabled within the meaning of the Act seeks a reasonable accommodation, to the extent they are entitled to same under the Act. J. Decommissioning and Reclamation Plan shall include the following information: 1. A plan for disposal of all solid waste, special waste and hazardous waste in accordance with local, state, and federal waste disposal regulations detailing the types and quantities of waste materials and methods of disposal; 2. A description of how and on what schedule stabilization and re-vegetation of the site as deemed necessary to minimize erosion will be accomplished. Permittee should include, to the extent possible, restoration of native vegetation, and pollinator-friendly seed mixtures shall be used to the maximum extent possible in re-vegetation of ground cover; 3. An estimate of costs for the decommissioning of the personal wireless services facility with a detailed description of how the estimated costs were derived, including the date which was the basis for the estimate; 4. A decommissioning plan signed by the party responsible for decommissioning and the landowner (if different) whose minimum requirements meet the standards of this Ordinance. Such plan must be filed in the Town Office prior to the first operation of the personal wireless services facility; 5. An estimate of the total cost of decommissioning value of the equipment and itemization of the estimated major expenses, including the projected costs of measures taken to minimize or prevent adverse effects on the environment during the implementation of the decommissioning plan. 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) Meeting Packet Page 146 of 301 shall be permitted on such pre-existing towers. New construction other than routine maintenance on a pre-existing tower shall comply with the requirements of this chapter. C. Rebuilding Damaged or Destroyed Nonconforming Towers or Antennas. Notwithstanding other provisions of this chapter, bona fide nonconforming towers or antennas that are damaged or destroyed may be rebuilt without having to first obtain a special use permit and without having to meet the separation requirements specified in Section 17.03. The type, height, and location of the tower on site shall be of the same type and intensity as the original facility approval; provided, however, that any destroyed lattice or guyed tower shall be replaced with a monopole structure only. Building permits to rebuild the facility shall comply with the then applicable building codes and shall be obtained within ninety (90) days from the date the facility is damaged or destroyed. If no permit is obtained or if said permit expires, the tower or antenna shall be deemed abandoned as specified in Section 17.06(A). Section 17.08 Retention of Consultants A. Use of Consultants. Where deemed reasonably necessary by the Town Council and/or the Town, the Town Council and/or the Town may retain the services of professional consultants to assist the Town in carrying out its duties in review and approval of personal wireless service facilities. Where the Town Council uses the services of private engineers, attorneys, or other consultants for purposes of engineering, scientific, land use planning, environmental, legal, or similar professional reviews of the adequacy or substantive aspects of applications or of issues raised during the course of review of applications for special use permit approvals of personal wireless service facilities, the applicant and landowner, if different, shall be jointly and severally responsible for payment of all the reasonable and necessary costs incurred by the Town for such services. That responsibility shall not exceed the actual cost to the Town of such engineering, legal, or other consulting services. B. Advance Deposits for Consultant Costs. The Town and/or Town Council may require advance periodic monetary deposits held by the Town on account of the applicant or landowner to secure the reimbursement of the Town's consultant expenses. The amount of the deposit required shall be established through the Council adoption of the fee schedule resolution based on the schedule of fees charged by the Town’s approved consultant. After the review and approval of itemized invoices by the Development Services Director, or designee, as to the reasonableness and necessity of the consultant charges, the Town may make payments from the deposited monies for engineering, legal, or consultant services. Upon receiving a request by the applicant or landowner, the Town shall supply copies of such invoices to the applicant and/or landowner reasonably in advance of review and approval, appropriately redacted where necessary to shield legally privileged communications between Town officers or employees and the Town's consultant. When it appears that the remaining deposit held for the applicant or landowner by the Town may be insufficient to pay current or anticipated invoices, the Town shall cause the applicant or landowner to deposit additional monies to meet such expenses or anticipated expenses in accordance with the fee schedule. Consultants shall undertake no review on any matter scheduled before the Town until the initial deposit has been made Meeting Packet Page 147 of 301 or requested replenishment of the deposit has been made. No reviewing agency shall be obligated to proceed unless the applicant complies with deposit requirements. C. Reasonable Limit Upon Consultant Expenses. A consultant expense or part thereof is reasonable in amount if it bears a reasonable relationship to the customary fee charged by engineers, attorneys, or planners within the region for services performed on behalf of applicants or reviewing boards in connection with comparable applications for land use or development. The Town may also take into account any special conditions for consideration as it may deem relevant, including but not limited to the quality and timeliness of submissions on behalf of the applicant and the cooperation of the applicant and agents during the review process. A consultant expense or part thereof is necessarily incurred if it was charged by the engineer, attorney or planner, or other consultants for a service that was rendered to assist the Town in: (a) making factual determinations consistent with the goals of protecting or promoting of the health, safety or welfare of the Town or its residents; (b) assessing potential adverse environmental impacts such as those identified within an ADEQ process; (c) accessing potential adverse impacts to historic properties, structures and/or districts, and/or (d) assessing and determining factual issues relevant to Effective Prohibition claims, as addressed herein, enabling the Council to best comply with the letter and intent of the provision of the TCA which is relevant thereto. D. Audits Upon the Request of an Applicant. Upon request of the applicant or landowner, the Town Council shall review all invoices and determine whether such engineering, legal, and consulting expenses are reasonable in amount and necessarily incurred by the Town in connection with the review and consideration of an application for personal wireless service facility. In the event of such a request, the applicant or landowner shall be entitled to be heard by the Town Council on reasonable advance notice. E. Liability for Consultant Expenses. For a land-use application to be complete, the applicant shall provide the written consent of all owners of the subject real property, both authorizing the applicant to file and pursue land development proposals and acknowledging potential landowner responsibility, under this section, for engineering, legal, and other consulting fees incurred by the Town. If different from the applicant, the owner(s) of the subject real property shall be jointly and severally responsible for reimbursing the Town for funds expended to compensate services rendered to the Town under this section by private engineers, attorneys, or other consultants. The applicant and the owner shall remain responsible for reimbursing the Town for its consulting expenses, notwithstanding that the deposit account may be insufficient to cover such expenses. No building permit or other permit shall be issued until reimbursement of costs and expenses determined by the Town to be due. In the event of failure to reimburse the Town for such fees, the following shall apply: The Town may seek recovery of unreimbursed engineering, legal, and consulting fees by court action in an appropriate jurisdiction, and the defendant(s) shall be responsible for the reasonable and necessary attorney's fees expended by the Town in prosecuting such action. Meeting Packet Page 148 of 301 Alternatively, and at the sole discretion of the Town, a default in reimbursement of such engineering, legal, and consulting fees expended by the Town shall be remedied by charging such sums against the real property that is the subject of the application by adding that charge to and making it a part of the next annual real property tax assessment roll of the Town. Such charges shall be levied and collected simultaneously and in the same manner as Town-assessed taxes and applied in reimbursing the fund from which the costs were defrayed for the engineering, legal, and consulting fees. Prior to charging such assessments, the owners of the real property shall be provided written notice to their last known address of record by certified mail, return receipt requested, of an opportunity to be heard and object before the Town Council to the proposed real property assessment, at a date to be designated in the notice, which shall be no less than 30 days after its mailing. Meeting Packet Page 149 of 301 1 Chapter 17 Wireless Telecommunications Towers and Antennas Section 17.01 Purpose, Intent, and Applicability A. The purpose of this chapter is to establish general guidelines for the siting of wireless communications towers and antennas. The goals of this chapter are to: 1. Protect residential areas and land uses from potential adverse impacts of towers and antennas; 2. Employ the “General Authority” preserved to the Town under 47 U.S.C. § 332(c)(7)(A) to the greatest extent the United States Congress intended while simultaneously complying with each of the substantive and procedural requirements set forth within the subsection 47 U.S.C. § 332(c)(7)(B). 3. Employ the authority reserved under A.R.S. §§ 9-462.01, and 9-596.A to exercise the Town’s zoning powers, land use, planning and permitting authority, exercise its police powers, and manage access to the Town’s public rights of way. 4. Promote the location of towers in nonresidential areas; 5. Limit the total number of towers throughout the community; 6. Strongly encourage the joint use of new and existing tower sites as a primary option rather than construction of additional single-use towers; 7. Require users of towers and antennas to locate them, to the extent possible, in areas where the adverse impact on the community is minimal; 8. Require users of towers and antennas to configure them in a way that minimizes the adverse visual impact of the towers and antennas through careful design, siting, landscape screening, and camouflaging techniques; 9. Enhance the ability of the providers of telecommunications services to provide such services to the community quickly, effectively, and efficiently; 10. Recognize that technology and laws regarding these facilities have changed, so the Town’s regulations need to change accordingly; 11. Consider the public health and safety of communication towers; and Meeting Packet Page 150 of 301 2 12. Avoid potential damage to adjacent properties from tower failure through engineering and careful siting of tower structures. 13. Maintain the Town’s status as a designated International Dark Sky Community and an optimum environment for stargazing. 14. Conserve and enhance the unique natural beauty, irreplaceable natural resources, historical, natural, and man-made character and appearance of Fountain Park, McDowell Mountain Preserve, Pleasantville Park, and views of Red Mountain and Four Peaks. 15. Protect Saguaro cacti as a unique natural resource promoting tourism, contributing to the aesthetic well-being of the community, high property values, high quality of life, unique lifestyles, and providing habitat protection for desert wildlife. Saguaro cacti grow slowly and cannot be replaced by a plant of like character. 16. Protect the Sonoran Desert tortoise and its habitats as a unique natural resource and an important component of Town of Fountain Hills natural environment that contributes to the aesthetic, environmental, and personal well-being of the community. The Sonoran Desert tortoise is a state-protected species in Arizona and a petitioned candidate for inclusion as a federally endangered species pursuant to the Endangered Species Act of 1973, 16 U.S.C. §§ 1531–1544. Populations of the Sonoran Desert tortoise has been documented in the Town of Fountain Hills. 17. Protect the quiet small-town suburban, scenic and visual character of the Town. In furtherance of these goals, Town of Fountain Hills shall give due consideration to the Town of Fountain Hills General Plan, the Town of Fountain Hills Zoning Ordinance, existing land uses, and environmentally sensitive areas in approving sites for the location of towers and antennas. B. It is the intent of this chapter: 1. That no wireless communication towers or antenna be sited, constructed, reconstructed, installed, materially changed, expanded, or used unless in conformity with this chapter. 2. To achieve a balance between the need to provide wireless services with the health, safety, and general welfare of the residents of Fountain Hills by balancing five (5) simultaneous objectives: a. Enabling personal wireless service providers to provide adequate personal wireless services throughout the Town so that Town residents can enjoy the benefits of same from any FCC-licensed wireless carrier from which they choose to obtain such services; b. Minimizing the number of cell towers and/or other personal wireless service facilities needed to provide such coverage; Meeting Packet Page 151 of 301 3 c. Preventing, to the greatest extent reasonably practical, any unnecessary adverse impacts upon the Town’s communities, residential areas, and individual homes; d. Complying with each of the substantive and procedural requirements set forth within the subsection 47 U.S.C. § 332(c)(7)(B) for permit applications seeking approvals for the siting, construction and operation of cell towers and/or other personal wireless service facilities; and e. Complying with the Federal Communications Commission’s (FCC) legislative rules for communications facilities including those for Radio Frequency human exposure limits in 47 C.F.R. Part 1, Subpart I and those addressing State and Local government regulation of the Placement, Construction, and Modification of Personal Wireless Service Facilities, in 47 C.F.R. Part 1, Subpart U. This Section is not intended to, nor shall it be interpreted or applied to: (1) prohibit or effectively prohibit any wireless telecommunications service provider's ability to provide reasonable and necessary wireless communications services; (2) prohibit or effectively prohibit any entity's ability to provide reasonable and necessary interstate or intrastate telecommunications service; (3) unreasonably discriminate among providers of functionally equivalent services; (4) deny any request for authorization to place, construct or modify wireless telecommunications service facilities solely on the basis of environmental effects of radio frequency emissions so long as such wireless facilities comply in every instance and regard with all FCC's regulations concerning such emissions; (5) prohibit any eligible facility that the Town may not deny under federal or state law; or (6) otherwise authorize the Town to violate any applicable federal or state law. C. Applicability. 1. New Towers and Antennas. All new towers or antennas in the Town of Fountain Hills shall be subject to these regulations. The following exceptions apply: a. Amateur Radio Station Operators/Receive Only Antennas. This chapter shall not govern any tower, or the installation of any antenna, that is under the maximum building height of the zoning district in which such structure is located and which is owned and operated by a federally licensed amateur radio station operator or is used exclusively for receive only operations. b. Pre-existing Towers or Antennas. Legally established pre-existing towers and pre-existing antennas shall not be required to meet the requirements of this chapter, other than the requirements of Sections 17.06(B)(1) and 17.06(C). c. AM Array. For purposes of implementing this chapter, an AM array, consisting of one (1) or more tower units and supporting ground system which functions as one (1) AM broadcasting antenna, shall be considered one (1) tower. Measurements for setbacks and separation distances shall be measured from the outer perimeter of the towers included in the AM array. Additional tower units may be added within the perimeter of the AM array by right. Meeting Packet Page 152 of 301 4 d. Small Wireless Facilities. Wireless communication towers and antenna meeting the definition of small wireless facilities as contained in A.R.S. 9-591 are subject to the requirements of Article 19-1, Small Wireless Facilities, of the Town Code. e. 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. f. Utility Service Antennas in the Right-of-Way. Utility service antennas as defined in this chapter placed in the public right-of-way are subject to the requirements of Article 16-3, Utility Service Antenna, of the Town Code. (24-08, Amended, 09/04/2024, Deleted and replaced) g. Over-the-Air-Reception Devices ("OTARD") antennas as defined by 47 C.F.R. § 1.4000(a). 2. Existing Towers and Antennas. Any existing towers which are modified, upgraded, or changed in any manner shall be subject to the provisions of this ordinance as applicable. All existing towers and antennas shall be subject to the maintenance and operations requirements in Sec. 17.06. Section 17.02 Definitions For the purposes of this article, and where not inconsistent with the context of a particular section, the defined terms, phrases, words, abbreviations, and their derivations shall have the meanings provided in this section. When not inconsistent with the context, words in the present tense include the future tense, words used in the plural number include words in the singular number, and words in the singular number include the plural number. The word “shall” is always mandatory and not merely directory. The definitions set forth herein shall supersede any definitions set forth within the Town Code and Zoning Ordinance, and the definitions set forth herein below shall control and apply to Chapter 17 of the Zoning Ordinance and all subparagraphs herein. “Accessory facility or accessory structure” means a facility or structure serving or being used in conjunction with a personal wireless services facility or complex and located on the same property or lot as the personal wireless services facility or complex or an immediately adjacent lot, including, but not limited to utility or transmission equipment storage sheds or cabinets. “ACHP” means the Federal Advisory Council on Historic Preservation. “ADA” means American Disabilities Act. “ADEQ” means the Arizona Department of Environmental Quality. “Adequate coverage” means, as determined by the Town Council, that a specific wireless carrier’s personal wireless service coverage is such that the vast majority of its customers’ equipment can successfully connect to the carrier’s radio access network and achieve a received signal strength of -110 dBm or better and deliver a - 90 dBm or better signal to the base station receiver (uplink) with a signal to noise ratio (SINR) of 3 dB or Meeting Packet Page 153 of 301 5 higher the vast majority of the time, in the vast majority of the geographic locations within the Town, that the Voice Drop Call Rate, e.g. the percentage ratio of dropped voice calls to total call attempts or successful call setups remains at or below 3%. A “gap” can exist when there is a lack of coverage or when coverage exists but quality is below the above metrics. The Town will assess whether a gap in a carrier’s personal wireless services are significant, based upon such factors including, but not limited to, lack of significant physical size of the gap, whether the gap is located upon a lightly traveled or lightly occupied area, whether only a small number of customers are affected by the gap, and/or whether or not the carrier’s customers are affected for only limited periods of time. A wireless carrier’s coverage shall not be deemed inadequate simply because the frequency or frequencies at which its customers are using its services are not the most preferred frequency of the wireless carrier. For claimed capacity or quality shortfalls in an area that has coverage, the applicant must demonstrate through independently-verifiable data and analysis, including network generated recordings based on user equipment reports that users are consistently experiencing dropped voice calls (in contrast to dropped sessions involving non-voice communications) at an unacceptable level during peak periods, or user devices are consistently denied access to the network due to lack of overall capacity at peak periods. If the applicant relies on signal strength data (whether network recorded or through drive tests) to demonstrate a lack of coverage or inadequate quality/capacity the applicant must disclose all underlying data, its thresholds for acceptable quality in such fashion that all claims and conclusions are independently verifiable. The Town strongly encourages all applicants to use methods consistent with the FCC rules governing provider reports and mapping data in 47 C.F.R. Part 1, Subpart V (§§ 1.7000 – 1.7010). “Alternative tower structure” means man-made trees, clock towers, bell steeples, light poles and similar alternative-design mounting structures that camouflage or conceal the presence of antennas or towers. “Adjacent properties or properties adjacent” shall mean (i) those lots or parcels of land that abut another lot or parcel of land or public right-of-way that is contiguous to a wireless facility site or proposed site and (ii) the lots or parcels of land or public right-of-way that would be contiguous to lots or parcels or public rights-of-way but for an intervening local or collector roadway. “Aesthetic or aesthetics” refers to subjective or objective determinations related to whether and if so, how well a facility will fit within the character of the area where the facility is proposed. This requires a broad range of factors including but not limited to visual effects and impact on property values. The Town will consider aesthetics for all applications and, where not prohibited by federal or state law, reserves the ability to impose careful placement conditions or restrictions. “Antenna” means an apparatus designed for the purpose of emitting radiofrequency (RF) radiation, to be operated or operating from a fixed location pursuant to FCC authorization, for the provision of personal wireless service and any commingled information services. This definition does not apply to antennas designed for amateur radio use or satellite dishes for residential or household purposes. Meeting Packet Page 154 of 301 6 “Antenna equipment” means equipment, switches, wiring, cabling, power sources, shelters or cabinets associated with an Antenna, located at the same fixed location as the Antenna, and, when Co-located on a PWSF Structure, is mounted or installed at the same time as such Antenna. “Antenna facility” means Antenna and associated Antenna Equipment. "Applicant" means any individual, corporation, limited liability company, general partnership, limited partnership, estate, trust, joint-stock company, association of two or more persons having a joint common interest, or any other entity submitting an application for a wireless communication facility permit, site plan approval, building permit, and/or any other related approval, for the installation, operation and/or maintaining of one or more wireless communication facilities. "Application" shall mean all necessary and required documentation, information, and evidence that an applicant must submit to receive a wireless communications facility permit, building permit, or other Town approval for personal wireless service facilities from the Town. “Backhaul network” means the lines that connect a provider’s towers/cell sites to one (1) or more cellular telephone switching offices, and/or long distance providers, or the public switched telephone network. “Balloon test” means the raising of a balloon (or placement of a “crank up” tower, crane or temporary structure) equal to the height of a proposed personal wireless services facility tower for a period of 4 hours on a pre-determined date and time prior to approval of a wireless facility permit application to assess the visual impact of a proposed tower. “Base station” means for purposes of eligible facilities requests the definition in the FCC’s regulations at 47 CFR § 1.6100 shall apply. A structure or equipment at a fixed location that enables FCC-licensed or authorized wireless communications between user equipment and a communications network. The term does not encompass a tower or any equipment associated with a tower. “Board of Adjustment” means the Board of Adjustment of the Town of Fountain Hills, established pursuant to Sec. 1.07 of the Zoning Ordinance with membership, powers, duties, and responsibilities as set forth in Article 2A-2 of the Town Code. Carriers. See Wireless Carriers. “Cell tower” means a free-standing, guy-wired, or otherwise supported pole, tower, or other structure designed to support or employed to support equipment and/or antennas used to provide personal wireless services, including, but not limited to, a pole, monopole, monopine, slim stick, lattice tower or other types of standing structures. “CEQ” means the Council on Environmental Quality, as established under NEPA. "Collocate, colocate" or "collocation, colocation" can have different meanings depending on context. Meeting Packet Page 155 of 301 7 1. When and where A.R.S. §§ 9-951 — 9-600 apply, the definition in A.R.S. §§ 9-951.8 shall also apply. That definition currently states: "Collocate" or "collocation" means to install, mount, maintain, modify, operate or replace wireless facilities on, within or adjacent to a wireless support structure or utility pole. 2. Where and when the FCC’s general rules for placement, construction and modification of personal wireless facilities apply, the definition in 47 C.F.R. § 1.6002(g) shall also apply. That definition currently states: Collocation, consistent with § 1.1320(d) and the Nationwide Programmatic Agreement (NPA) for the Collocation of Wireless Antennas, appendix B of this part, section I.B, means— (1) Mounting or installing an antenna facility on a pre-existing structure; and/or (2) Modifying a structure for the purpose of mounting or installing an antenna facility on that structure. (3) The definition of “collocation” in § 1.6100(b)(2) applies to the term as used in that section. 3. Where and when the FCC’s rules for wireless facility modifications apply, the definition in 47 C.F.R. § 1.6100(b)(2) shall also apply. That definition currently states: (2) Collocation. The mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signals for communications purposes. “Complete application, completed application” means an application that contains all the necessary and required information, records, evidence, reports, and/or data necessary to enable an informed decision to be made with respect to an application. Where any information is provided pursuant to the terms of this Chapter and the Development Services Director, Town Engineer or the Town’s expert or consultant, or the Council determines, based upon information provided, that any additional, further, or clarifying information is needed as to one or more aspects, then the application will be deemed incomplete until that further or clarifying information is provided to the satisfaction of the Development Services Director, Town Engineer, Town Council or the Town’s expert or consultant of the Council. “Complex” means the entire site or facility, including all structures and equipment, located at the site. “Council or Town Council” means the Town Council of the Town of Fountain Hills. “DBM” (dBm) stands for decibel milliwatts, which is a concrete measurement of the wireless signal strength of wireless networks. It expresses power relative to 1 milliwatt (mW) on a logarithmic scale. Emissions are measured using positive whole or fractional numbers. Received signal strengths are typically recorded in negative numbers because they are usually weaker than 1 milliwatt, and can range from approximately -30 dBm to -110 dBm. The closer the number is to 0, the stronger the cell signal. FCC, HHS and OSHA regulate Meeting Packet Page 156 of 301 8 safe exposure thresholds but transmitter power (in dBm) is crucial to determining exposure, as it is the starting point for calculating current exposure limits. “Deployment” means the placement, construction, or substantial modification of a personal wireless service facility. “Development Services Director” (or “Director): T” means the person appointed by the Town Manager to be the Development Services Director. If there is no such person designated by the Town Manager, the Town Manager is the Development Services Director. “Distributed antenna system, DAS” means a network of spatially separated antenna nodes connected to a common source via a transport medium that provides personal wireless service within a geographic area. “Effective prohibition” means a finding by the Town Council that if an application seeking approval for a specific new Personal Wireless Service Facility at a specific location, and a specific height, were to be denied, such denial would either: (a) prevent an identified Wireless Carrier from providing personal wireless services within a specific geographic area, or areas, within the Town, or (b) would prevent a specific Wireless Carrier from constructing a sufficient number of such facilities necessary to enable it to provide Personal Wireless Services within the Town. An effective prohibition shall not be found to exist if a Wireless Carrier has Adequate Coverage in a specified geographic area, such that its end-use customers can use their cellular telephones to connect to landlines using the Carrier’s Personal Wireless Services; however, the frequencies are not the “most preferred” frequencies of the Carrier. An effective prohibition shall also not be found to exist if an applicant fails to establish before the Town Council that any existing geographic gap or capacity deficiency in the specific Wireless Carrier’s coverage cannot be remedied through a less intrusive means than what is being proposed, including, but not limited to, potential installations on alternative less intrusive sites, a shorter tower or facility, the incorporation of a more stealthy design, etc. A finding of Effective Prohibition, or lack thereof, shall be based upon an applicant’s submission of sufficient probative, relevant, and sufficiently reliable evidence and the appropriate weight the Town Council deems appropriate to afford. “Eleventh hour submissions” means an applicant’s submission of new and/or additional materials in support of an application less than five (5) business days before the expiration of an applicable shot clock or at an otherwise unreasonably short period of time before the expiration of the shot clock, making it impracticable for the Town Council to adequately review and consider such submissions due to their complexity, volume, or other factors, before the expiration of the shot clock. Meeting Packet Page 157 of 301 9 “Eligible facilities request” means a request that meets the requirements in 47 CFR § 1.6100 for modification of an existing Tower or Base Station that does not substantially change the physical dimensions of such Tower or Base Station and involving: (a) Co-location of new transmission equipment, (b) Removal of transmission equipment, or (c) Replacement of transmission equipment. “Enure” means to operate or take effect. To serve to a person or party's use, benefit, or advantage. “EPA” means the United States Environmental Protection Agency. “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 or its duly designated and authorized successor agency. “Facility” means a set of wireless transmitting and/or receiving equipment, including any associated electronics and electronics shelter or cabinet and generator. “FCC” means the Federal Communications Commission. “General population/uncontrolled exposure limits” means the applicable radiofrequency radiation exposure limits set forth within 47 CFR §1.1310(e)(1), Table 1 Section (ii), made applicable pursuant to 47 CFR §1.1310(e)(3), as further described and supplemented by the FCC Office of Engineering and Technology Laboratory Division’s advisory Knowledge Database (KBD), available at https://apps.fcc.gov/oetcf/kdb/index.cfm. “HHS” means U.S. Department of Health and Human Services or its constituent agencies, including FDA Food and Drug Administration, charged with review and compliance, meeting or exceeding requirements of the RF-emitting consumer devices (e.g., electronic products such as cell phones) for health impacts. “Height” means, when referring to a tower, personal wireless service facility, or personal wireless service facility structure, the height shall mean the distance measured from the pre-existing grade level to the highest point on the tower, facility, or structure, including, but not limited to, any accessory, fitting, fitment, extension, addition, add-on, antenna, whip antenna, lightning rod or other types of lightning-protection devices attached to the top of the structure. “Historic Structure” means any structure that is either on the National Register of Historic Places or is eligible for inclusion in the national register, irrespective of whether or not an application for inclusion onto the national register has been filed or not filed. Meeting Packet Page 158 of 301 10 “Illegally excessive RF radiation or illegally excessive radiation” means RF radiation emissions at levels that exceed the legally permissible limits set forth within 47 CFR §1.1310(e)(1), Table 1 Sections (i) and (ii), as made applicable pursuant to 47 CFR §1.1310(e)(3). “In-kind call testing” means testing designed to measure the gap in Personal Wireless Service coverage asserted by an applicant. In-Kind Call Testing for a claimed gap in Personal Wireless Services in buildings means call testing performed in buildings to establish the existence or absence of such a gap, unless the applicant provides an affidavit sworn under penalties of perjury demonstrating good faith but unsuccessful attempts to secure access to buildings to conduct such testing. In-Kind Call Testing for a claimed gap in Personal Wireless Services in vehicles or in the open air means call testing performed in vehicles or in the open to establish the existence or absence of such a gap. “In-kind replacement” means the replacement of a malfunctioning component(s) with a properly functioning component of substantially the same weight, dimensions, and outward appearance. “Least intrusive” means the location and design of a personal wireless service facility that would remedy a significant gap in Personal Wireless Service coverage and (1) does the least disservice to the objectives stated in § 270-219A(2), and (2) deviates as little as possible from (a) the preferential order of location in subsection K (Priority of siting locations) and (b) applicable design standards in subsection L. “Macrocell” means a cellular base station that typically sends and receives radio signals from large towers and antennas. These include traditionally recognized cell towers, typically ranging from 50 to 199 feet in height. “Maintenance or routine maintenance” means plumbing, electrical or mechanical work that may require a building permit but that does not constitute a modification to the personal wireless service facility. It is work necessary to assure that a wireless facility and/or telecommunications structure exists and operates reliably and in a safe manner, presents no threat to persons or property, and remains compliant with the provisions of this chapter and FCC requirements. “Mobile or temporary tower” means a portable tower or other wireless communications facility capable of being transported in or by a motor vehicle, or otherwise designed to be readily relocated, that is intended or used to provide wireless communications services on a temporary or emergency basis and is not permanently affixed to the site on which it is located. The term includes, but is not limited to, cells-on-wheels (COWs), sites-on-wheels (SOWs), cells-on-light-trucks (COLTs), trailer-mounted monopoles, and similar portable facilities. “Monopole” means a wireless support structure that is not more than forty inches in diameter at the ground level and that has all of the wireless facilities mounted on the pole or contained inside of the pole. Monopoles are typically unguyed. “Necessary, or necessity, or need” means what is technologically required for the equipment to function as designed by the manufacturer and anything less will result in prohibiting the provision of service as intended and described in the narrative of the application. “Necessary” or “need” does not mean what may be desired, Meeting Packet Page 159 of 301 11 preferred, or the most cost-efficient approach and is not related to an applicant’s specific chosen design standards or unspecified “coverage objectives.” Any situation involving a choice between or among alternatives or options is not a need or a necessity. “NEPA” means the National Environmental Policy Act, 42 U.S.C. §4321, et seq. “NHPA” means the National Historic Preservation Act, 54 U.S.C. 300101 et seq, and 36 CFR Part 800, et seq. “Node, DAS node” means a fixed antenna and related equipment installation that operates as part of a system of spatially separated antennas, all of which are connected through a medium through which they work collectively to provide personal wireless services, as opposed to other types of personal wireless facilities, such as macrocells, which operate independently. “Node” means a fixed antenna and antenna equipment installation that operates as part of a system of spatially separated Antennas, all of which are connected through a medium through which they work collectively to provide personal wireless services using hand-off capabilities. A 4G (LTE) node is referred to as an ENode B, and a 5G node is referred to as a GNode B. Some sites incorporate both 4G and 5G. Some 5G capable sites still rely on a 4G network core. “Notice address” means an address, which is required to be provided by an applicant at the time it submits an application, at which the Town, Town Council, and/or Development Services Director or Town Engineer designee can mail notice, and the mailing of any notice to such address by first-class mail shall constitute sufficient notice to any and all applicants, co-applicants, and/or their attorneys, to satisfy any notice requirements under this Chapter, as well as any notice requirements of any other local, state and/or federal law. “Notice of incompleteness, notice of incomplete application” means a written notice, sent by electronic mail , to an applicant seeking approval for the installation of a PWSF, wherein the sender advises the applicant that its application is either incomplete, the wrong type of application, or is otherwise defective, and setting for the reason or reasons why the application is incomplete and/or defective. “Notice of effective prohibition conditions” means a written notice, which is required to be provided to the Town at the time of the filing of any application by all applicants seeking any approval, of any type, for the siting, installation, and/or construction of a PWSF, wherein the respective applicant asserts, claims or intends to assert or claim, that a denial of their respective application, by any agent, employee, board or body of the Town, would constitute an “effective prohibition ” within the meaning of the TCA, and concomitantly, that a denial of their respective application or request would violate Section 47 U.S.C. §332(c)(7)(B)(i)(II) of the TCA. “Occupational/controlled exposure limits” means the applicable radiofrequency radiation exposure limits set forth within 47 CFR §1.1310(e)(1), Table 1 Section (i), made applicable pursuant to 47 CFR §1.1310(e)(2). Meeting Packet Page 160 of 301 12 "Permit" means written permission required by an authority to install, mount, maintain, modify, operate or replace a utility pole or monopole, to collocate a wireless facility on a utility pole or wireless support structure or to collocate wireless facilities on a monopole. “Permittee” means a holder of a Personal Wireless Service Facility Permit. “Personal wireless service/personal wireless services” means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services, within the meaning of 47 U.S.C. §332(c)(7)(c)(i), and as defined therein. “Personal wireless service facility, personal wireless services facility or PWSF” means a facility or facilities used for the provision of personal wireless services, within the meaning of 47 U.S.C. §332(c)(7)(c)(ii). It means a specific location at which a structure that is designed or intended to be used to house or accommodate antennas or other transmitting or receiving equipment is located. This includes, without limitation, towers of all types and all kinds of support structures, including but not limited to buildings, church steeples, silos, water towers, signs, utility poles, or any other structure that is used or is proposed to be used as a telecommunications structure for the placement, installation and/or attachment of antennas or the functional equivalent of such. It expressly includes all related facilities and equipment such as cabling, radios and other electronic equipment, equipment shelters and enclosures, cabinets, and other structures enabling the complex to provide personal wireless services. “Pre-existing towers and pre-existing antennas” means any tower or antenna lawfully constructed or permitted prior to the effective date of this Chapter, including any tower or antenna for which no permit or other zoning approval was required at the time of construction, provided that the tower or antenna was otherwise lawfully constructed for which a building permit has been properly issued prior to the effective date of the ordinance codified in this chapter, including permitted towers or antennas that have not yet been constructed so long as such approval is current and not expired. "Private easement" means an easement or other real property right that is only for the benefit of the grantor and grantee and the grantor's or grantee's successors and assigns. “Probative evidence” means evidence which tends to prove facts, and the more a piece of evidence or testimony proves a fact, the greater its probative value, as shall be determined by the Town Council or other decision making authority, as the finder-of-fact in determining whether to grant or deny applications under this provision of the Town Code. “Repairs” means the replacement or repair of any components of a wireless facility or complex where the replacement is substantially identical to the component or components being replaced, or for any matters that involve the normal repair and maintenance of a wireless facility or complex without the addition, removal, or change of any of the physical or visually discernible components or aspects of a wireless facility or complex that will impose new visible intrusions of the facility or complex as originally permitted. “RF” means radiofrequency. Meeting Packet Page 161 of 301 13 “RF radiation” means radiofrequency radiation. That being electromagnetic radiation, which is a combination of electric and magnetic fields that move through space as waves, and can include both Non-Ionizing radiation and Ionizing radiation. “School” means a public, charter, or private educational institution providing instruction for elementary and secondary grades as defined in A.R.S. § 15-101 and includes the real property and facilities used for such educational purpose. “School property” means any parcel containing a public, charter, or private educational institution providing instruction for elementary and secondary grades as defined in A.R.S. § 15-101 and includes associated playgrounds, athletic fields, administrative buildings, parking areas, and other school-related facilities. “Section 106 Review” means a review under Section 106 of the National Historic Preservation Act. “Setback” means the distance between (a) any portion of a personal wireless facility and/or complex, including but not limited to any and all accessory facilities and/or structures, and (b) the exterior line of any parcel of real property or part thereof which is owned by, or leased by, an applicant seeking to construct or install a personal wireless facility upon such real property or portion thereof. In the event that an applicant leases only a portion of real property owned by a landlord, the setback shall be measured from the facility to the line of that portion of the real property that is actually leased by the applicant, as opposed to the exterior lot line of the non-leased portion of the property owned by the landlord. “Shot clock, Arizona” means the statutory timeframes within which the Town must review a wireless application for completeness of an application for wireless facilities in right-of-way pursuant to A.R.S. § 9- 594.C.2 and act on a wireless application before it is otherwise deemed approved pursuant to A.R.S. § 9- 594.C.2. For deemed approved purposes, the Arizona shot clock begins on the date when the Town determines the application is properly completed. For applications involving wireless facilities not in right-of-way the FCC shot clock will apply. Shot clock, FCC: the presumptively reasonable time frame within which the Town must act on a wireless application, as defined by the FCC, shown below subject to amendment from the FCC. The shot clock begins when the applicant takes the first procedural step that the Town requires. a. Aggregate of 60 days: 1) Standby emergency generators at previously permitted macro cell tower sites. 2) Collocation of small wireless facilities at existing small wireless facility sites. 3) Eligible Facilities Requests. b. Aggregate of 90 days: Meeting Packet Page 162 of 301 14 1) New small wireless facilities. 2) Collocation applications for additions to existing communications facilities not defined as an eligible facilities request. c. Aggregate of 150 days: 1) All other applications, such as development of a new communication tower or facility. “SHPO” means the Arizona State Historic Preservation Office. “Site developer or site developers” means individuals and/or entities engaged in the business of constructing wireless facilities and wireless facility infrastructure and leasing space and/or capacity upon, or use of, their facilities and/or infrastructure to wireless carriers. Unlike wireless carriers, site developers generally do not provide personal wireless services to end-use consumers. “Small cell” means a fixed cellular base station that sends and receives radio signals and is typically mounted upon poles or support structures at substantially lower elevations than macrocell facilities. "Small wireless facility" can have different meanings depending on context. 1. When and where A.R.S §§ 9-591 – 9-599 applies, the definition in A.R.S §§ 9-591.19 shall also apply. That definition 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 2. Where and when the FCC’s general rules for placement, construction and modification of personal wireless service facilities apply, the definition in 47 CFR §1.6002(l) shall apply. That definition states as follows: Meeting Packet Page 163 of 301 15 (a) Small wireless facilities are facilities that meet each of the following conditions: (i) The facilities— .i Are mounted on structures 50 feet or less in height including their antennas as defined in § 1.1320(d); or .ii Are mounted on structures no more than 10 percent taller than other adjacent structures; or .iii Do not extend existing structures on which they are located to a height of more than 50 feet or by more than 10 percent, whichever is greater; (ii) Each antenna associated with the deployment, excluding associated antenna equipment (as defined in the definition of “antenna” in § 1.1320(d)), is no more than three cubic feet in volume; (iii) All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume; (iv) The facilities do not require antenna structure registration under part 17 of this chapter; (v) The facilities are not located on Tribal lands, as defined under 36 CFR 800.16(x); and (vi) The facilities do not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in § 1.1307(b). "Special taxing district" means a special district formed pursuant to title ARS 48, chapter 11, 12, 17, 18, 19, 20 or 22. “Special Use Permit” means the official document or permit granted by the Town Council pursuant to which an applicant is allowed to file for and obtain a building permit to construct and use a personal wireless services facility, personal wireless service equipment, and/or any associated structures and/or equipment which are used to house, or be a part of, any such facility or complex, or to be used to provide personal wireless services. “State” means the State of Arizona. “Structure” means a pole, tower, base station, or other building, physical support of any form used for, or to be used for, the provision of personal wireless service. “Substantial evidence” means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It means less than a preponderance but more than a scintilla of evidence. “TCA” means the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996), codified at various provisions of Title 47 U.S.C. “Thermal runaway” means self-heating of an electrochemical system in an uncontrollable fashion. Meeting Packet Page 164 of 301 16 “Tolling or tolled” means the pausing of the running of the time period permitted under the applicable shot clock for the respective type of application for a personal wireless services facility. Where a shot clock is tolled because an application has been deemed incomplete and timely notice of incompleteness was mailed to the applicant, the submission of additional materials by the applicant to complete the application will end the tolling, thus causing the shot clock period to resume running, as opposed to causing the shot clock to begin running anew. “Tower” means a mast, pole, monopole, slim stick, guyed tower, lattice tower, freestanding tower, or other structure designed to support or employed to support antennas and other equipment, including but not limited to dishes, transceivers and arrays used to provide personal wireless services and wireless communications services. A ground- or building-mounted mast greater than ten feet tall and six inches in diameter supporting one or more antennas, dishes, arrays, etc. shall be considered a communications tower. “Town” means the Town of Fountain Hills. “Town code” means the Town Code of the Town of Fountain Hills. “Undertaking” means any application seeking Town approval for the installation of a personal wireless services facility licensed under the authority of the FCC shall constitute an undertaking within the meaning of NEPA, in accord with 42 CFR §137.289 and 36 CFR §800.16. “Utility” means Arizona (under ARS § 40-360.51 (5)): A public utility includes corporations or persons engaged in furnishing water, gas, electricity, telephone service, or sewage disposal to the public for compensation. “Utility service antennas” means antenna placed on or near utility boxes, poles, switches, storage tanks, etc., and used by a utility provider to facilitate the operation of the utility system. “Wireless carriers or carrier” means companies that provide Personal Wireless Services to end-use consumers. “Wireless communication” means the transmission of voice or data without cable or wires. “Wireless communication facility” means wireless communication facilities including, but not limited to, facilities that transmit and/or receive electromagnetic signals for cellular radio telephone service, personal communications services, enhanced specialized mobile services, paging systems, and related technologies. Such facilities also include antennas, microwave dishes, parabolic antennas, and all other types of equipment used in the transmission or reception of such signals; telecommunication towers or similar structures supporting said equipment; associated equipment cabinets and/or buildings; and all other accessory development used for the provision of personal wireless services. These facilities do not include radio and television broadcast towers and government-operated public safety networks. “Zoning ordinance” means the Zoning Ordinance of the Town of Fountain Hills, as codified in Chapter 1, Sec. 1.01 of the Zoning Ordinance. Meeting Packet Page 165 of 301 17 Section 17.03 Requirements A. General Requirements. 1. Principal or Accessory Use. Antennas and towers may be considered either principal or accessory uses. A different existing use of an existing structure on the same lot shall not preclude the installation of an antenna or tower on such lot. 2. Lot Size. For purposes of determining whether the installation of a tower or antenna complies with district development regulations, including but not limited to setback requirements, lot coverage requirements, and other such requirements, the dimensions of the entire lot shall control, even though the antennas or towers may be located on leased parcels within such lot. 3. Aesthetics. Towers and antennas shall meet the following requirements: a. Towers shall, subject to any applicable standards of the FAA, be painted a neutral color so as to reduce visual obtrusiveness. b. At a tower site, the design of the buildings and related structures shall, to the extent possible, use materials, colors, textures, screening, and landscaping that will blend them into the natural setting and surrounding buildings. c. If an antenna is installed on a structure other than a tower, the antenna and supporting electrical and mechanical equipment must be of a neutral color that is identical to, or closely compatible with, the color of the supporting structure so as to make the antenna and related equipment as visually unobtrusive as possible. d. The choice of design for installing a new wireless communication facility or the substantial modification of an existing wireless communication facility shall be chosen to minimize the potential adverse impacts that the new or expanded facility may, or is likely to, inflict upon nearby properties. Concealment elements should be used to camouflage the pole and antennas. e. Accessory Structures. Unless approved by the Town Council, all equipment associated with a wireless communication tower is to be located below grade in a vault. If above grade accessory structures are approved by the Town Council, they shall comply with the following requirements. i. Accessory structures shall maximize the use of building materials, colors, and textures designed to blend with the natural surroundings. The use of specified concealment elements for communications towers may be required by the Council to blend the communications tower and/or its accessory structures further into the natural surroundings using specified concealment elements. Meeting Packet Page 166 of 301 18 ii. Accessory structures shall be designed to be architecturally similar, compatible with each other, and shall be no more than 12 feet high. The buildings shall be used only for housing equipment related to the particular site. Whenever possible, the buildings shall be joined or clustered so as to appear as one (1) building. iii. No portion of any telecommunications tower or accessory structure shall be used for a sign or other advertising purpose, including but not limited to the company name, phone numbers, banners, and streamers, except the following. A sign of no greater than 2 square feet indicating the name of the facility owner(s) and a twenty-four (24) hour emergency telephone shall be posted adjacent to any entry gate. In addition, “no trespassing” or other warning signs may be posted on the fence. All signs shall conform to the sign requirements of the Town. f. Towers must be placed to minimize visual impacts. Applicants shall place towers on the side slope of the terrain so that, as much as possible, the top of the tower does not protrude over the ridgeline, as seen from public ways. g. Existing Vegetation. Existing vegetation shall be preserved to the maximum extent possible. No cutting of trees shall take place on a site connected with an application made under this chapter prior to the approval of the application. h. Screening. i. Tree plantings may be required to screen portions of the telecommunications tower and accessory structures from nearby residential property as well as from public sites known to include important views or vistas. The standard buffer shall consist of a landscaped strip at least 4 feet wide outside the perimeter of the compound. ii. Where a site adjoins a residential property or public property, including streets, screening suitable in type, size and quantity shall be required by the Town Council. iii. The applicant shall demonstrate to the approving board that adequate measures have been taken to screen and abate noise emanating from on-site equipment, including but not limited to heating and ventilating units, air conditioners, and emergency power generators. Telecommunications towers shall comply with all applicable sections of this chapter as it pertains to noise control and abatement. i. Utility Services Antennas. i. If placed on another utility structure such as a water tower, the antenna shall be painted to blend with the building or equipment it is placed on. ii. If a separate tower structure is used, the design shall comply with the provisions in this section. Meeting Packet Page 167 of 301 19 j. Data-Only and Information Service Facilities. To the maximum extent permitted by federal and state law, any wireless facility used exclusively for the provision of an information service, data collection, telemetry, machine-to-machine communication, sensing, monitoring, or another service that does not constitute a personal wireless service under 47 U.S.C. § 332(c)(7)(C) or a telecommunications service protected by 47 U.S.C. § 253 shall be installed underground or flush with grad, including its antenna, antenna equipment and accessory equipment, where technically feasible. An applicant seeking above- ground installation shall demonstrate through clear and convincing technical evidence that underground or flush-to-grade installation would prevent the facility from performing its intended function and that the proposed above-ground installation is the least visually intrusive technically feasible alternative. Nothing in this subsection shall require underground placement to the extent the applicant demonstrates that such requirement is expressly prohibited or preempted by applicable federal or Arizona law. 4. Lighting. Towers shall not be artificially lighted, unless required by the FAA or other applicable authority. If lighting is required, the lighting alternatives and design chosen must cause the least disturbance to the surrounding views and, to the degree possible while complying with FAA requirements, meet the standards set in Zoning Ordinance Chapter 8, Outdoor Lighting Control. 5. Measurement. For purposes of measurement, tower setbacks and separation distances shall be calculated and applied to facilities located in the Town of Fountain Hills irrespective of municipal and county jurisdictional boundaries. 6. Not Essential Services. Towers and antennas shall be regulated and permitted pursuant to this chapter and shall not be regulated or permitted as essential services, public utilities, or private utilities. 7. Franchises. Owners and/or operators of towers or antennas shall certify that all franchises required by law for the construction and/or operation of a wireless communication system in the Town of Fountain Hills have been obtained and shall file a copy of all required franchises with the Community Development Director. 8. Signs. No signs other than those required by law shall be allowed on an antenna or tower. 9. Co-location and Multiple Antenna/Tower Plan. The Town of Fountain Hills encourages tower and antenna users to submit a single application for approval of multiple towers and/or antenna sites and to submit applications, which utilize co-location with an existing wireless telecommunications provider. Applications for approval of multiple sites or for co-location with an existing provider shall be given priority in the review process. 10. Security fencing. PWSF shall be enclosed by security fencing not less than 6 feet in height and no more than 8 feet in height, shall be constructed of a block or masonry, and shall be equipped with an Meeting Packet Page 168 of 301 20 appropriate anti-climbing device; provided, however, that the Town Council may waive such requirements, as it deems appropriate. 11. Noise. Submission of applications for towers and associated equipment placed above grade, including backup generators or power supplies, shall include noise and acoustical information, prepared by a qualified firm or individual, for the base transceiver station(s), equipment buildings, and associated equipment such as air conditioning units and backup generators. The Town may require the applicant to incorporate appropriate noise baffling materials and/or strategies to avoid any ambient noise from equipment reasonably likely to exceed the applicable noise regulations contained in Section 11-1-7 of the Town Code. 12. Arizona Licensed Engineer. Any information of an engineering nature that the applicant submits, whether civil, mechanical, or electrical, shall be certified by an Arizona licensed professional engineer. 13. Verification by Town Engineer. Application approval issued under this chapter shall be conditioned upon verification by the Town Engineer or designee that such tower structure is structurally sound. Such verification shall be received by the applicant prior to submission. 14. Access and Parking. Areas sufficient for access to the tower and equipment location and for temporary off-street parking of at least two vehicles shall be provided. The type and configuration of the access and parking shall be subject to the standards set forth in Zoning Ordinance Chapter 7, Parking and Loading Requirements. 15. Minimum Height of Antennas. All antennas shall be located such that: a. Any person walking adjacent to the transmitting surface of the antenna will be walking on a grade that is a minimum of eight and one-half (8.5) feet below the transmitting surface; and, b. No person at ground level will be exposed to an exposure level that is higher than allowed by the FCC’s general population exposure rules. 16. Fall Zone. Each new tower shall maintain a fall zone having a radius of not less than one hundred twenty-five percent (125%) of the total height of the tower, measured from the base of the tower. The fall zone of any tower, pole shall not overlap, in whole or in part, any portion of a public sidewalk, street, alley, right-of-way, or occupied building. B. Minimum Setbacks and Separations. 1. Setbacks From Property Lines. Except for utility service antennas, the following setback requirements shall apply to all towers; provided, however, that the Town Council may reasonably reduce the standard setback requirements if the goals of this chapter would be better served thereby: a. Towers must be set back a distance equal to at least one hundred fifty percent (150%) of the height of the tower from any adjoining lot line. For guyed towers, the required setback shall be measured Meeting Packet Page 169 of 301 21 from the outermost guy wire anchor point, and shall additionally account for the manufacturer's or structural engineer's certified guy-wire failure/whip radius. In no case shall a guy wire anchor, guy wire, or its calculated failure radius be located within 500 feet of an occupied structure, public right- of-way, or property line, whichever is more restrictive. b. Accessory buildings must satisfy the minimum zoning district setback requirements. 2. Separations From Adjacent Uses. Except for utility service antennas, the following separation requirements shall apply to all towers and antennas. a. Separation From Residential Uses, Schools, and Daycare Centers. i. Tower separation shall be measured from the base of the tower to the lot line of the residential uses. ii. Separation requirements for towers shall be 500 feet from any residentially zoned or used land including mixed-use. iii. Separation requirements for towers shall be 500 feet away from public or private K-12 schools and licensed daycare facilities unless an applicant establishes that a lesser setback is necessary to close a significant gap in the applicant's personal communication service and the proposed tower is the least intrusive means to do so. The Town Council may reduce the standard separation requirements to 300’ if, through information and data presented, the Council determines the goals of this chapter would be better served thereby. b. Separation Distances Between Towers. Separation distances between towers shall be applicable for and measured between the proposed tower and pre-existing towers. The separation distances shall be measured by drawing or following a straight line between the base of the existing tower and the proposed base, pursuant to a site plan, of the proposed tower. The separation distances (listed in linear feet) shall be as shown in Table 2. Table 17.03 B. 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 2,500 feet 2,000 feet 1,000 feet Meeting Packet Page 170 of 301 22 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 2,000 feet 2,000 feet 1,500 feet Monopole less than 40 ft. in height 1,000 feet 1,500 feet 1,000 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. Unless approved otherwise by the Town Council for good cause shown, but located in an underground vault. b. If located above ground: i. The cabinet or structure shall not contain more than 120 square feet of gross floor area or be more than 8 feet in height and shall be located on the ground. ii. 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, unless otherwise approved by the Town Council in an underground vault. If approved to be above ground, then in accordance with the following: a. In residential districts, the equipment cabinet or structure may be located: i. In a required front yard or required street side yard, provided the cabinet structure is no greater than 3.5 feet in height and 20 square feet of gross floor area and the cabinet/structure is located a minimum of 3 feet from all lot lines. The cabinet/structure shall be screened by sight obscuring landscaping which obscures at least ninety-five percent (95%) of the structure at planting and throughout the duration of the cabinet or structure’s existence with an ultimate height not to exceed forty-two (42) inches. ii. In a required rear yard, provided the cabinet or structure is no greater than 5 feet in height or 120 square feet in gross floor area. The cabinet/structure shall be screened by sight obscuring landscaping which obscures at least ninety-five percent (95%) of the structure at planting and throughout the duration of the cabinet or structure’s existence with an ultimate height of 6 feet. Meeting Packet Page 171 of 301 23 iii. The entry or access side of a cabinet or structure shall be gated by a solid, sight-obscuring gate that is separate from the cabinet or structure. b. In commercial or industrial districts the equipment cabinet or structure shall be no greater than 14 feet in height or 300 square feet in gross floor area. The structure or cabinet shall be screened by sight- obscuring landscaping with an ultimate height of 16 feet and a planted height of at least 6 feet. The entry or access side of a cabinet or structure shall be gated by a solid, sight-obscuring gate that is separate from the cabinet or structure. Such access way shall not face residentially zoned property. 3. Modification of Building Size Requirements. In the case of wireless facilities considered by the Town Council, the requirements of subsections (C)(1) and (C)(2) of this section may be modified by the Town Council to address site specific conditions and requirements. 4. Battery Safety. Any battery energy storage or backup power system installed in connection with a PSWF shall utilize lithium ion phosphate (LiFePO4 or LPE) batteries, which are less prone to thermal runaway and fire hazard. All battery systems shall comply with applicable fire, electrical, building, and product- safety codes and standards. D. Co-location. 1. Any new telecommunications tower shall be designed to accommodate future shared use by other communications providers. Design considerations shall include sufficient area for additional ground equipment, structural design of the tower, and sufficient electrical power available for the load of at least two (2) additional wireless service providers. 2. Good Faith. Applicants and permittees shall cooperate and exercise good faith in co-locating wireless telecommunications facilities on the same support structures or site, if the Town so requests. Good faith shall include sharing technical information to evaluate the feasibility of co-location, and may include negotiations for erection of a replacement support structure to accommodate co-location. A competitive conflict to co-location or financial burden caused by sharing such information normally will not be considered as an excuse to comply with this section. 3. Third Party Technical Review. In the event a dispute arises as to whether a permittee has exercised good faith in accommodating other users, the Town may require the applicant to obtain a third-party technical study at the applicant’s expense. The Town may review any information submitted by the applicant and permittee(s) in determining whether good faith has been exercised. 4. Exceptions. No co-location may be required where the shared use would or does result in significant interference in the broadcast or reception capabilities of the existing wireless telecommunications facilities or failure of the existing wireless telecommunications facilities to meet federal standards for emissions. 5. Violation; penalty. Failure to comply with co-location requirements when feasible may result in denial of a permit request or revocation of an existing permit. (24-08, Amended, 09/04/2024, Deleted and replaced) Meeting Packet Page 172 of 301 24 Section 17.04 Application Types A. Administrative. The following types of applications are processed administratively by staff: 1. Applications to change or modify an existing administratively approved wireless communication facility that remains in compliance with all chapter requirements. 2. Applications to change or modify an existing wireless communication facility approved through public review; provided, that the modification will not: a. Increase the approved height of the supporting structure by more than ten percent (10%) or 20 feet, whichever is greater; b. Cause the original approved number of antennas to be exceeded by more than fifty percent (50%); c. Increase the original approved square footage of accessory buildings by more than 200 square feet; d. Add new, additional, or larger microwave antenna dishes; e. Expand the footprint of said support structure; or f. Potentially cause significant adverse impacts on the existing support structure or the surrounding area. 3. Applications for co-location of additional antenna for an additional service provider on an existing administratively approved tower that remains in compliance with all chapter requirements. 4. Applications for co-location of additional antenna for an additional service provider on an existing tower approved through public review; provided, that the modification will not: a. Increase the approved height of the supporting structure by more than ten percent (10%) or 20 feet, whichever is greater; b. Cause the original approved number of antennas to be exceeded by more than fifty percent (50%); c. Increase the original approved square footage of accessory buildings by more than 200 square feet; d. Add new, additional, or larger microwave antenna dishes; e. Expand the footprint of said support structure; or f. Potentially cause significant adverse impacts on the existing support structure or the surrounding area. 5. Applications for new utility service antenna that comply with the height and setback requirements of the zoning district in which they are located. Meeting Packet Page 173 of 301 25 6. Applications for mobile or temporary wireless facilities for more than seven (7) consecutive days. An application shall identify the proposed location, purpose, date of installation, anticipated duration of use, maximum height, equipment to be installed, and measures necessary to ensure public and structural safety. The permit shall specify the period during which the mobile or temporary tower or facility may remain at the site, after which the Tower or Facility and all associated equipment shall be removed unless an extension is approved by the Town. Application materials shall include upon submittal of: a. Proof of event, emergency, or documented capacity need; b. A site plan showing setback and fall zone compliance; and c. Proof of general liability insurance per Section 17.06.G.1. B. Public Review. 1. Any new tower or modification to existing towers or antennas that do not meet the requirements in subsection (A) of this section for administrative review shall require review and approval as provided in subsection 17.05 (C). 2. Any new tower not meeting the setback or separation requirements in Section 17.03(B). Section 17.05 Application Submittal, Review, and Processing A. General. Unless waived in writing by Zoning Administrator, the following provisions shall govern the review of all wireless communication facility applications: 1. Complete Application. Applications for wireless communication facilities shall be filed electronically on the Town’s website by an owner of real property and shall contain the area proposed for the wireless communication facility using the process established by the Director for such applications. All such applications shall include the information required in this section. Applications filed on behalf of the property owner by a third party shall include a statement from the property owner authorizing the submittal of the application. 2. Applications shall include documentation of compliance with items listed in Section 17.03(A) as applicable to the application submitted. 3. Inventory of Existing Sites. Each applicant for a new tower or co-location of new antenna on an existing tower shall provide to the Development Services Director an inventory of its existing towers, antennas, or sites approved for towers or antennas, that are either within the jurisdiction of the Town of Fountain Hills or within one (1) mile of the border thereof, including specific information about the location, height, and design of each tower. Each applicant shall also provide a one (1) year build-out plan for all other wireless communications facilities within the Town. The Development Services Director may Meeting Packet Page 174 of 301 26 share such information with other applicants applying for administrative approvals or special use permits under this chapter or with other organizations seeking to locate antennas within the jurisdiction of Town of Fountain Hills; provided, however, that the Development Services Director is not, by sharing such information, in any way representing or warranting that such sites are available or suitable. 4. Utility Service Antennas. a. If the antenna complies with the height requirements of the underlying zoning district, the plans for the antenna will be reviewed and approved with the overall site development plans if the site is being developed concurrently. If the antenna is being added to an existing utility site, the plans will be reviewed and processed consistent with the requirements of subsection (C)(2) of this section. b. If the antenna does not comply with the height requirements of the underlying zoning district, the plans for the antenna will be reviewed and processed consistent with the requirements of subsection (C)(3) of this section. 5. A list of the full names and contact information for all applicants, co- applicants, facility owner(s), facility operator(s), site developer(s), and wireless carrier(s), property owner(s) and other related third parties and their agent(s), if any, on whose behalf the application is being submitted. 6. Proof of Authorization for Site Occupancy. Where an applicant is not the owner of the real property upon which it seeks to install its equipment or facility, it shall submit proof of authorization to occupy the site at issue. If the applicant is leasing all or a portion of real property upon which it intends to install its facility or equipment, then the applicant shall provide a written copy of its lease with the owner of such property. The applicant may redact any financial terms contained within the lease, but it shall not redact any portion of the lease which details the amount of area leased nor the specific portion of the real property to which the applicant has obtained the right to occupy, access, or preclude others from entering. Where an applicant seeks to Co-Locate new equipment into an existing facility, it shall provide a copy of its written co-location agreement with the owner of such pre-existing facility, from which it may redact any financial terms. 7. Fire Safety: The applicant shall submit a Fire Safety Plan that includes a general description of the personal wireless services facility for purposes of ensuring the Fire Department is fully informed and prepared in case of a fire. The Fire Safety Plan shall include: a. Location of all Fire Safety Plan documents. b. Location of the facility’s alarm panel. c. List of emergency contacts. Meeting Packet Page 175 of 301 27 d. Specific responsibilities assigned to designated personnel. e. Location of signal-processing equipment. f. Location and listing of types of power equipment, including rectifiers, inverters, distribution cabinets, bus bars, cables, and communications raceways. g. Listing and location of batteries, including description of quantities and types of batteries, specifying whether batteries are lithium-ion, nickel cadmium, sodium-nickel, valve-regulated lead acid, and/or vented, and description of any associated exhaust ventilation system(s). h. Description of actions to detect and prevent thermal runaway events. i. Description of whether the facility will be located in a lightning-prone area. If the facility is to be located in a lightning-prone area, description of how the facility shall comply with NFPA 780 Standard for the Installation of Lightning Protection Systems; j. Description of location and types of fuses used to ensure that if the wireless transmission facility experiences overcurrent resulting from current exceeding the rating of equipment or the ampacity of a conductor, the facility shall turn off temporarily. k. Depowering procedures including identification of locations of electrical depowering devices, which include: i. Coded floor prints located in the Fire Safety Plan document; ii. Facility signage to direct fire personnel to depowering locations; iii. The method of turning off power to the following: 1) Alternating current power board. This is the primary source of electric power for a telecommunications facility and is supplied by the local power company. 2) Standby power generator. This unit, usually a turbine or diesel generator, provides standby ac power that is transferred manually or automatically whenever a loss of ac power is experienced. 3) Direct current primary disconnect fuse or circuit breaker bay. This unit distributes dc power to the secondary fuse or circuit breaker panels throughout the central office. The secondary fuse or circuit breaker panels feed all the operating voltages to the central office branch circuits. 4) Uninterruptible power supply (UPS) 5) HVAC systems serving the facility Meeting Packet Page 176 of 301 28 6) Alternative energy devices, such as wind turbines, fuel cells, photovoltaic systems, or other devices providing power to the facility. l. Detailed electrical designs, signed and stamped by a licensed electrical engineer, demonstrating compliance with the Building, Electric and Fire Code. The Code compliance demonstration shall include all necessary underlying calculations and inputs, including but not limited to: a. A short circuit and coordination study (“SCCS”) calculated pursuant to the IEEE 551-2006: Recommended Practice for Calculating AC Short-Circuit Currents in Industrial and Commercial Power Systems or the latest version of that standard. The study must demonstrate the protection devices will ensure the equipment enclosure will not be breached. The SCCS must include analysis of Voltage Transient Surges due to contact of conductors of different voltages; b. A one-line diagram of the electrical system; c. Voltage Drop & Load Flow Study; d. Load Calculation; e. Panel Directories; 8. Soil Erosion and Sedimentation Control: A soil erosion and sedimentation control plan, prepared in accordance with the standards as established by the Town Engineering Division. 9. Engineer’s Report: For the construction of all new wireless facilities and to the extent not already mandated herein, the applicant shall provide a report prepared and certified by a professional engineer certifying the integrity and safety of all proposed new towers and/or structures and indicating the location, type, and height of the proposed personal wireless services facility, antenna capacity, on-site and abutting off-site land uses, means of access, setbacks from property lines, all applicable American National Standards Institute (ANSI) technical and structural codes. To the extent that an application proposes the co-location of new equipment onto an existing tower or personal wireless services facility, the applicant shall provide an engineer's report certifying that the proposed shared use will not diminish the structural integrity and safety of the existing structure and explaining what modifications, if any, will be required in order to certify above. 10. Visual Impact Analysis. The applicant shall provide a completed visual impact analysis that shall include the following: a. A “Zone of Visibility Map” to determine locations from where the new facility will be seen. b. A visual impact analysis which shall include photographic images taken from the perspectives of the properties situated in closest proximity to the location being proposed for the siting of the facility, as well as those properties which would reasonably be expected to sustain the most significant adverse aesthetic impacts due to such factors as their close proximity to the site, their elevation relative to the site, the existence or absence of a “clear line of sight” between the tower location and their location. Meeting Packet Page 177 of 301 29 The photographic images shall depict the height at which the proposed facility shall stand when completed, including all portions and proposed attachments to the facility, including, but not limited to, the main support structure, all antennas, transmitters, whip antennas, lightning rods, t-bars, crossbars, and cantilever attachments which shall, in whole or in part, be affixed to it, any and all surrounding equipment compound(s), fencing, cellular equipment cabinets, transformers, transformer vaults and/or cabinets, sector distribution boxes, ice bridges, backup generators, including but not limited to equipment boxes, switch boxes, backup generators, ice bridges, etc., to the extent that any of such compound and/ or equipment will be visible from properties other than the property upon which the proposed tower and compound are to be installed. The photographic images shall show the maximum silhouette, viewshed analysis, color and finish palette, and proposed screening and landscaping. The analysis shall include the results of the drone/balloon test, and other information as necessary to determine visual impact of the facility. The analysis shall include a map depicting where the photos were taken. Where consistent with the natural or built environment, the analysis shall include a native vegetation landscaping plan with a visual simulation of how the chosen plants, at maturity, will screen the site. 11. For proposed towers and facilities taller than 100 feet, the applicant shall perform a balloon test and shall publish reasonably advanced public notice of the same to enable the Reviewing Authority, property owners, and the community an opportunity to assess the actual adverse aesthetic impact which the proposed facility is likely to inflict upon the nearby properties and surrounding community. The balloon test shall be conducted for not less than eight four consecutive hours between 7:00 a.m. and 6:00 p.m. The primary test shall be conducted on a weekend. Said date and time will be established by the Development Services Director in coordination with the applicant, including an alternative date in case of inclement weather. If a balloon is used, the diameter shall be equal to the largest antenna or dish proposed for the CRS tower or the width of the tower, whichever is larger. The applicant will be responsible for publishing a public notice of the balloon test in at least one local newspaper publication and notifying abutters owning property within one thousand (1,000) feet radius, via U.S. Mail at least one week prior to the test. 12. If the application is for a facility that will not be attached to an existing utility pole and the facility’s proposed height will be greater than 30 feet then structural elevations of the facility(ies) shall include any trees and other structures within twenty (20’) feet, and their height. 13. Environmental Assessment Form. A completed environmental assessment form (EAF) and a completed visual EAF addendum if required by ADEQ. 14. FCC Compliance Report. An FCC compliance report, prepared by a licensed engineer, and certified under penalties of perjury, that the content thereof is true and accurate, wherein the licensed engineer shall certify that the proposed facility will be FCC compliant as of the time of its installation, meaning that the facility will not expose Meeting Packet Page 178 of 301 30 members of the general public to radiation levels that exceed the permissible radiation limits which the FCC has set. If it is anticipated that more than one carrier and/or user is to install transmitters into the facility, the FCC compliance report shall take into account anticipated exposure from all users on the facility and shall indicate whether or not the combined exposure levels will or will not exceed the permissible General Population Exposure Limits, or alternatively, the occupational Exposure Limits, where applicable. Such FCC Compliance Report shall provide the calculation or calculations with which the engineer determined the levels of RF radiation and/or emissions to which the facility will expose members of the general public. On the cover page of the report, the report shall explicitly specify: (a) Whether the applicant and their engineer are claiming that the applicable FCC limits based upon which they are claiming FCC compliance are the General Population Exposure Limits or the Occupational Exposure Limits. If the applicant and/or their engineer are asserting that the Occupational Exposure Limits apply to the proposed installation, they shall detail a factual basis as to why they claim that the higher set of limits is applicable, (b) The exact minimum distance factor, measured in feet, which the applicant’s engineer used to calculate the level of radiation emissions to which the proposed facility will expose members of the general public. The minimum distance factor is the closest distance (i.e., the minimum distance) to which a member of the general public shall be able to gain access to the transmitting antennas mounted upon, or which shall be a part of, the proposed facility. 15. FCC License. A copy of any applicable Federal Communications Commission license possessed by any carrier named as an applicant, co-applicant, or whose equipment is proposed for installation as of the time the application is being filed with the Town. 16. Effective Prohibition Claims. a. The Town is aware that applicants seeking approvals for the installation of new wireless Facilities often assert that federal law, and more specifically the TCA, prohibits the local government from denying their respective applications. In doing so, they assert that their desired facility is “necessary” to remedy one or more significant gaps in a carrier’s personal wireless service, and they proffer computer-generated propagation maps to establish the existence of such purported gaps. The Town is additionally aware that, in December 2018, driven by a concern that propagation maps created and submitted to the FCC by wireless carriers were inaccurate, the FCC caused its staff to perform actual drive tests, wherein the FCC staff performed 24,649 tests, driving nearly ten thousand (10,000) miles through twelve (12) states, with an additional 5,916 stationary tests conducted at 42 locations situated in nine (9) states. Meeting Packet Page 179 of 301 31 At the conclusion of such testing, the FCC Staff determined that the accuracy of the propagation maps submitted to the FCC by the wireless carriers had ranged from as little as 16.2% accuracy to a maximum of 64.3% accuracy. As a result, the FCC Staff recommended that the FCC no longer accept propagation maps from wireless carriers without supporting drive test data to establish their accuracy. A copy of the FCC Staff’s 66-page report is made a part of this Chapter as Appendix 1. The Town considers it of critical import that applicants provide truthful, accurate, complete, and sufficiently reliable data to enable the Town Council to render determinations upon applications for new wireless facilities consistent with this Chapter’s requirements and the TCA’s statutory requirements. Consistent with same, if, at the time of filing an application under this Chapter, an applicant intends to assert before the Town Council or the Town that: (a) an identified wireless carrier suffers from a significant gap in its personal wireless services within the Town, (b) that the applicant’s proposed installation is the least intrusive means of remedying such gap in services, and/or (c) that under the circumstances pertaining to the application, a denial of the application by the Town Council would constitute an “effective prohibition” under Section 47 U.S.C. §332 the TCA, then, at the time of filing such application, the applicant shall be required to file a written statement which shall be entitled: “Notice of Effective Prohibition Conditions” If an applicant files a Notice of Effective Prohibition Conditions, then the applicant shall be required to submit Probative Evidence to enable the Town Council to reasonably determine: i. Whether or not the conditions alleged by the respective applicant exist, ii. Whether there exists a significant gap or gaps in an identified wireless carrier’s personal wireless services within the Town, iii. The geographic locations of any such gaps, and iv. The geographic boundaries of such gaps, to enable the Town Council to determine whether granting the respective application would be consistent with the requirements of this Chapter and the legislative intent behind same, and whether or not Federal law would require the Town Council to grant the respective application, even if it would otherwise violate the Town Code, including, but not limited to, this Chapter. b. The additional materials which the applicant shall then be required to provide shall include the following: i. Drive Test Data and Maps. If, and to the extent that an applicant claims that a specific wireless carrier suffers from a significant gap in its personal wireless services within the Town, Meeting Packet Page 180 of 301 32 the applicant shall conduct or cause to be conducted a drive test within the specific geographic areas within which the applicant is claiming such gap or gaps exist, for each frequency at which the carrier provides personal wireless services. The applicant shall provide the Town and the Town Council with the actual drive test data recorded during such drive test, in a simple format which shall include, in table format: 1) The date and exact time of day for the test or tests, 2) The location, in longitude and latitude, of each point at which signal strength was recorded and 3) Each signal strength recorded, measured in DBM, for each frequency. Such data is to be provided in a separate table for each frequency at which the respective carrier provides personal wireless services to any of its end-use customers. 4) The applicant shall also submit drive test maps depicting the actual signal strengths recorded during the actual drive test for each frequency at which the carrier provides personal wireless services to its end-use customers. If an applicant claims that it needs a “minimum” signal strength (measured in DBM) to remedy its gap or gaps in service, then for each frequency, the applicant shall provide three (3) signal strength coverage maps reflecting actual signal strengths in three (3) DBM bins, the first being at the alleged minimum signal strength, and two (2) additional three (3) DBM bin maps depicting signal strengths immediately below the alleged minimum signal strength claimed to be required. By way of example, if the applicant claims that it needs a minimum signal strength of – 95 DBM to remedy its alleged gap in service, then the applicant shall provide maps depicting the geographic area where the gap is alleged to exist, showing the carrier’s coverage at – 95 to - 98 DBM, -99 to -101 DBM, and -102 to -104 DBM, for each frequency at which the carrier provides personal wireless services to its end-use customers. ii. Denial of Service and/or Dropped Call Records. If and to the extent that an applicant claims that a specific wireless carrier suffers from a capacity deficiency or a gap in service that renders the carrier incapable of providing adequate coverage of its personal wireless services within the Town, then the applicant shall provide dropped call records and denial of service records evidencing the number and percentage of calls within which the carrier’s customers were unable to initiate, maintain and conclude the use of the carrier’s personal wireless services without actual loss of service, or interruption of service. iii. The equipment and methodology used. Meeting Packet Page 181 of 301 33 iv. A list of any concurrent special events, festivals, road closures, or unusual network conditions occurring in the test area during the test period. 17. Estimate for Cost of Removal of Facility. At or prior to the filing of an application for a special use permit for the installation of a new personal wireless service facility, each respective applicant shall provide a written estimate for the cost of the decommissioning and removal of the facility, including all equipment that comprises any portion or part of the facility, compound and/or complex, as well as any accessory facility or structure, including the cost of the full restoration and reclamation of the site, to the extent practicable, to its condition before development in accord with the decommissioning and reclamation plan required herein. The Town Council’s Engineer shall review this estimate. A bond for the cost of removal as required in Sec. 17.06 A. 2. shall be filed prior to commencement of construction. 18. Property Owner Consent & Liability Acknowledgement. A signed written consent from each owner of the subject real property upon which the respective applicant is seeking installation of its proposed personal wireless service facility, wherein the owner or owners both authorize the applicant to file and pursue its application and acknowledge the potential landowner’s responsibility, under Section 17.08 for engineering, legal and other consulting fees incurred by the Town. 19. Applications Using Existing Towers. a. Dimensioned, to-scale drawings showing the existing and proposed antenna on the tower including the height of the tower and the antennas. b. The number and type of existing and proposed antennas. c. Engineering calculations documenting the structural changes and certifying the tower’s ability to carry the new antennas. d. Dimensioned, to-scale drawings illustrating modification of ground equipment, if any. 20. Applications Using New Towers In addition to any information required for applications for special use permits pursuant to Chapter 2, Section 2.02, applicants for a new wireless facility shall submit the following information: a. A site plan as required in Section 2.04 plus zoning, General Plan classification of the site and all properties within the applicable separation distances set forth in Section 17.03(B)(1), adjacent roadways, proposed means of access, elevation drawings of the proposed tower and any other structures, photo simulations showing the tower in the proposed location from at least four (4) directions, and other information deemed by the Development Services Director to be necessary to assess compliance with this chapter. b. The setback distance between the proposed tower and the nearest residential unit and residentially zoned properties. Include an illustration of the fall zone for the tower. Meeting Packet Page 182 of 301 34 c. The separation distance from other towers described in the inventory of existing sites submitted pursuant to Section 17.03(B)(2) shall be shown on an updated site plan or map. The applicant shall also identify the type of construction of the existing tower(s) and the owner/operator of the existing tower(s), if known. d. Method of fencing, and finished color and, if applicable, the method of camouflage and illumination. e. A description of compliance with Sections 17.03(A)(3), 17.03(A)(4), 17.03(A)(5), 17.03(A)(7), 17.03(A)(8), 17.03(A)(9), 17.03(A)(10), 17.03(A)(11), 17.03(B), subsection (A)(3) of this section, Sections 17.06(A) and 17.06(B) and all applicable federal, state or local laws. f. A notarized statement by the applicant as to whether construction of the tower will accommodate collocation of additional antennas for future users. g. Identification of the entities providing the backhaul network for the tower(s) described in the application and other cellular sites owned or operated by the applicant in the municipality. h. Alternatives Analysis. An itemized list of alternative sites considered, with a comprehensive explanation of reasons alternative sites are not technologically feasible. Explanation shall include specific comparative analysis of how different sites would impact aesthetic values, and other environmental values. 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. k. A biological resource survey addressing potential impacts to locally present protected or sensitive species, including but not limited to the Sonoran Desert Tortoise (Gopherus morafkai). The survey shall include the following: i. A proposed facility description including location, height of tower as measured from the ground, description of associated equipment, width and length of access roads and driveways, and length and right-of-way width of power and communication lines; ii. Existing biological resources on-site including quantification of vegetation and habitat types, color photo documentation of on-site and surrounding vegetation, a description of water resources, potential habitat for federal and state-listed species, and sensitive species habitats; iii. The results of any focused surveys for federally listed species (if required); and Meeting Packet Page 183 of 301 35 iv. Impacts to biological resources including quantification of the habitat to be removed as a result of the proposed facility. The director may waive this requirement based on a finding that existing information verifies the lack of such biological resources on the site. 21. Filing Fee. Payment of a filing fee in an amount established by a schedule adopted by resolution of the Council and filed in the offices of the Town Clerk. No part of the filing fee shall be returnable. B. Shot Clocks and Tolling. To comply with the requirements of Section 47 U.S.C. §332(c)(7)(B)(ii) of the TCA, the following shot clock periods set forth hereinbelow shall be presumed to be reasonable periods within which the Town shall render determinations upon applications for wireless communication facilities. The Town shall render determinations upon such applications within the periods set forth hereinbelow, unless the applicable shot clock period listed below is tolled, extended by agreement or the processing of the application is delayed due to circumstances beyond the Town’s control. 1. Application Shot Clocks. a. Receipt of Initial Application. Upon receipt of an application, the Development Services Director, or designee, shall review the application for completeness. If the Director determines the application is: (i) incomplete, (ii) missing required application materials, (iii) is the wrong type of application, or (iv) is otherwise defective, then, within ten (10) days for administrative applications and thirty (30) days for public hearing applications of the Town’s receipt of the application, the Director, or their designee, shall notify the applicant of the finding and state what is needed to have a complete application. The notice of incompleteness shall toll the shot clock, which shall not thereafter resume running unless and until the applicant tenders an additional submission to the Director to remedy the issues identified in the notice of incomplete application. The submission of any responsive materials by the applicant shall automatically cause the shot clock period to resume running. If upon receipt of any additional materials from the applicant, the Director determines that the application is still incomplete and/or defective, then the Director shall, once again notify the applicant within ten (10) days for administrative applications and thirty (30) days for public hearing applications of the applicant having filed its supplemental or corrected materials to the Town and the shot clock shall once again be tolled, and the same procedure provided for hereinabove shall be repeated. If Applicant does not cure the stated deficiencies within 30 days, the application shall be considered withdrawn or closed. Meeting Packet Page 184 of 301 36 b. Application Review. The shot clock for administrative applications is ninety (90) days. The shot clock for applications with new towers, monopoles, utility poles and other wireless facilities that trigger public review applications is one hundred fifty (150) days. 2. Shot Clock Tolls, Extensions and Reasonable Delay Periods. Consistent with the letter and intent of Section 47 U.S.C. §332(c)(7)(B)(ii) of the TCA, each of the shot clock periods set forth within subsection (B) of this section shall generally be presumed to be sufficient periods within which the Town shall render decisions upon applications. Notwithstanding the same, the applicable shot clock periods may be tolled, extended by mutual agreement between any applicant and/or its representative and the Town, and the Town shall not be required to render its determination within the shot clock period presumed to be reasonable for each type of application, where the processing of such application is reasonably delayed, as described hereinbelow. a. Tolling of the Applicable Shot Clock Due to Incompleteness and/or Applicant Error. As provided for within subsection (B)(1) of this section, in the event that the Development Services Director deems an application incomplete, the Director shall send a notice of incompleteness to the applicant to notify the applicant that its application is incomplete and/or contains material errors, and shall reasonably identify the missing information and/or documents and/or the error(s) in the application. If the Director sends a notice of incompleteness as described hereinabove, the applicable shot clock shall automatically be tolled, meaning that the applicable shot clock period within which the Town is required to render a final decision upon the application shall immediately cease running, and shall not resume running, unless and until the Town receives a responsive submission from the applicant. If and when the applicant thereafter submits additional information in an effort to complete its application, or cure any identified defect(s), then the shot clock shall automatically resume running, but shall not be deemed to start running anew. The applicable shot clock period shall, once again, be tolled if the Director thereafter provides a second notice that the application is still incomplete or defective, despite any additional submissions which have been received by the Town, from the applicant, up to that point. b. Shot Clock Extension by Mutual Agreement. The Town shall be free to extend any applicable shot clock period by mutual agreement with any respective applicant. This discretion on the part of the Town shall include the Town’s authority to request, at any time, and for any period of time the Town may deem 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 Meeting Packet Page 185 of 301 37 federal, state, or local law and/or the requirements of any provision of the Town Code, including but not limited to this chapter. In response to any request by the Town, the applicant, by its principal, agent, attorney, site acquisition agent, or other authorized representative, can consent to any extension of any applicable shot clock by affirmatively indicating its consent either in writing or by affirmatively indicating its consent on the record at any public hearing or public meeting. The Town shall be permitted to reasonably rely upon a representative of the applicant indicating that they are authorized to grant such consent on behalf of the respective applicant, on whose behalf they have been addressing the Town within the review process. c. Reasonable Delay Extensions of Shot Clock Periods. The Town recognizes that there may be situations wherein, due to circumstances beyond the control of the Town and/or the Town Council, the review and issuance of a final decision upon an application for a wireless communication facility cannot reasonably be completed within the application shot clock periods delineated within subsection (B) of this section. If, despite the exercise of due diligence by the Town, the determination regarding a specific application cannot reasonably be completed within the applicable shot clock period, the Town shall be permitted to continue and complete its review and issue its determination at a date beyond the expiration of the applicable period, if the delay of such final decision is due to circumstances including, but not limited to, those enumerated hereinbelow, each of which shall serve as a reasonable basis for a reasonable delay of the applicable shot clock period. i. In the event that the rendering of a final decision upon an application under this chapter is delayed due to natural and/or unnatural events and/or forces which are not within the control of the Town, such as the unavoidable delays experienced in government processes due to the COVID 19 pandemic, and/or mandatory compliance with any related federal or state government orders issued in relation thereto, such delays shall constitute reasonable delays which shall be recognized as acceptable grounds for extending the period for review and the rendering of final determinations beyond the period allotted under the applicable shot clock. ii. In the event that applicant tenders eleventh-hour submissions to the Town in the form of (a) expert reports, (b) expert materials, and/or (c) materials which require a significant period for review due either to their complexity or the sheer volume of materials which an applicant has chosen to provide to the Town at such late point in the proceedings, the Town shall be afforded a reasonable time to review such late-submitted materials. If reasonably necessary, the Town shall be permitted to retain the services of an expert consultant to review any late-submitted expert reports which were provided to the Town, even if such review or services extend beyond the applicable shot clock period, so long as the Town completes such review and retains and secures such expert services within a reasonable period of time thereafter Meeting Packet Page 186 of 301 38 and otherwise acts with reasonable diligence in completing its review and rendering its final decision. C. Review and Processing of Applications. 1. Conformity to the following shall be considered in review of all applications: a. The application is consistent with the objectives of this chapter. b. The height of the proposed tower. c. The adequacy of the proposed site, considering such factors as the sufficiency of the size of the site to comply with the established criteria, the configuration of the site, and the extent to which the site is formed by logical boundaries (e.g., topography, natural features, streets, relationship of adjacent uses, etc.) that provide for the ability to comply with the provisions of this chapter. d. The extent to which the proposal responds to the impact of the proposed development on adjacent land uses, especially in terms of visual impact. e. The extent to which the proposed telecommunications facility uses concealment elements. 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. h. Whether the proposed installation will inflict a significant adverse impact upon the property values of properties that are located adjacent to, or in close proximity to, the proposed site or properties that are otherwise situated in a manner that would cause the proposed installation to inflict a significant adverse impact upon their value. i. Whether the proposed installation will be incompatible with the use and/or character of properties located adjacent to or in close proximity to the proposed site or other properties situated in a manner that would cause the proposed installation to be incompatible with their respective use. j. Whether the proposed installation will be incompatible with and/or would have an adverse aesthetic impact upon or detract from the use and enjoyment of, and/or character of, recognized aesthetic assets of the Town, including, but not limited to, scenic areas and/or scenic ridgelines, scenic areas, public parks, and/or any other traditionally or historically recognized valuable scenic assets of the Town. k. Whether the proposed installation shall have a sufficient fall zone and/or safe zone around the facility to afford the general public safety against the potential dangers of structural failure, icefall, debris fall, and fire. Meeting Packet Page 187 of 301 39 l. Whether the applicant has mitigated the potential adverse impacts of the proposed facility to the greatest extent reasonably feasible. To determine mitigation efforts on the part of the applicant, the mere fact that a less intrusive site, location, or design would cause an applicant to incur additional expense is not a reasonable justification for an application to have failed to propose reasonable mitigation measures. 2. Review of Administrative Applications. a. Administrative applications will be reviewed by staff using the Town’s standard building permit review processes. b. Applications for mobile or temporary wireless facilities which remain in place for more than seven (7) consecutive days must submit a request for a temporary use permit as provided in Section 2.03. 3. Review and Processing of Public Review Applications. a. Applications which require public review and approval on private property will be processed as special use permits and follow the requirements listed in Section 2.02 for special use permits. Applications on Town-owned property will not require a special use permit but will follow the same requirements for notice for review by the Town Council. b. Factual Determinations. To decide applications under this Section, the Town Council shall render factual determinations, which shall include two (2) specific types of factual determinations, as applicable. First, the Council shall render local zoning determinations according to Section i. hereinbelow. Then, if, and only if, an applicant asserts claims that a denial of its application would effectively prohibit an identified Wireless Carrier from providing Personal Wireless Services within the Town, or its proposed wireless facility or installation is necessary to remedy a significant gap in personal wireless services for an explicitly identified Wireless Carrier, and that its proposed installation is the least intrusive means of remedying a specifically identified significant gap or gaps. The Council shall then additionally render TCA determinations in accord with Section ii. herein below. The Council shall separately record each factual determination it makes in a written decision and shall reference, or make note of, the evidence based upon which it rendered each of its factual determinations. Each factual determination made by the Council shall be based upon Substantial Evidence. For purposes of this provision, “Substantial Evidence” shall mean such relevant evidence as a reasonable Meeting Packet Page 188 of 301 40 mind might accept as adequate to support a conclusion. It means less than a preponderance but more than a scintilla of evidence. Evidence that the Council may consider shall include any evidence submitted in support of an application and any evidence submitted by anyone opposing a respective application, whether such evidence is in written or photographic form or whether it is in the form of testimony by any expert, or any person who has personal knowledge of the subject of their testimony. The Council may, of course, additionally consider as evidence any information or knowledge which they, themselves, personally possess and any documents, records, or other evidence which is a matter of public record, irrespective of whether such public record is a record of the Town, or is a record of or is maintained by, another federal, state and/or other governmental entity and/or agency which maintains records which are available for, or subject to, public review. The requirements for specific factual determinations set forth below are intended to enure to the benefit of the Town, its residents, and property owners, and not applicants. If, and to the extent that the Town Council fails to render one or more of such determinations, that omission shall not constitute grounds upon which the respective applicant can seek to annul, reverse or modify any decision of the Town Council. i Local Zoning Determination The Council shall make the following factual determinations as to whether the application meets the requirements for granting a special use permit under this Chapter. (a) Compliance with Section 2.02 Whether the proposed installation will meet each of the conditions and standards set forth within Section 2.02 in the absence of which the Town Council is not authorized to grant a special use permit. (b) Potential Adverse Aesthetic Impacts Whether the proposed installation will inflict a significant adverse aesthetic impact upon properties located adjacent to, or in close proximity to, the proposed site or any other properties situated in a manner that would sustain significant adverse aesthetic impacts by the installation of the proposed facility. (c) Potential Adverse Impacts Upon Real Estate Values Whether the proposed installation will inflict a significant adverse impact upon the property values of properties that are located adjacent to, or in close proximity to, the proposed site or properties that are otherwise situated in a manner that would cause the proposed installation to inflict a significant adverse impact upon their value. Meeting Packet Page 189 of 301 41 (d) Potential Adverse Impact Upon the Character of the Surrounding Community Whether the proposed installation will be incompatible with the use and/or character of properties located adjacent to or in close proximity to the proposed site or other properties situated in a manner that would cause the proposed installation to be incompatible with their respective use. (e) Potential Adverse Impacts Upon Historic Properties or Historic Districts Whether the proposed installation will be incompatible with and/or would have an adverse impact upon, or detract from the use and enjoyment of, and/or character of a historic property, historic site, and/or historic district, including, but not limited to, historic structures, properties and/or districts which are listed on, or are eligible for listing on, the National Register of Historic Places. (f) Potential Adverse Impacts Upon Ridgelines or Other Aesthetic Resources of the Town Whether the proposed installation will be incompatible with and/or would have an adverse aesthetic impact upon or detract from the use and enjoyment of, and/or character of, recognized aesthetic assets of the Town, including, but not limited to, scenic areas and/or scenic ridgelines, scenic areas, public parks, and/or any other traditionally or historically recognized valuable scenic assets of the Town. (g) Sufficient Fall Zones Whether the proposed installation shall have a sufficient fall zone and/or safe zone around the facility to afford the general public safety against the potential dangers of structural failure, icefall, debris fall, and fire. (h) Mitigation Whether the applicant has mitigated the potential adverse impacts of the proposed facility to the greatest extent reasonably feasible. To determine mitigation efforts on the part of the applicant, the mere fact that a less intrusive site, location, or design would cause an applicant to incur additional expense is not a reasonable justification for an application to have failed to propose reasonable mitigation measures. If, when applying the evidentiary standards set forth in Section 17.05 C. 3. b. i. hereinabove, the Town Council determines that the proposed facility would not meet the standards set forth within Section 2.02 or that the proposed facility would inflict one or more of the adverse impacts described hereinabove to such a substantial extent that granting the respective application would inflict upon the Town and/or its citizens and/or property owners the types of adverse impacts Meeting Packet Page 190 of 301 42 which this provision was enacted to prevent, the Town Council shall deny the respective application unless the Council additionally finds that a denial of the application would constitute an Effective Prohibition, as provided for in Sections 17.05 C. 3. b. ii. and iii immediately hereinbelow. ii. TCA Determinations In cases within which an applicant has filed a “Notice of Effective Prohibition Conditions,” the Town Council shall determine if a denial of the respective application would “Effectively Prohibit” a specifically identified Wireless Carrier from providing Personal Wireless Services within any geographic area or areas in the Town. More specifically, the Town Council shall determine whether a denial of the specific application would either: (i) prevent an identified Wireless Carrier from providing personal wireless services within a specific geographic area or areas within the Town or (ii) would prevent a specific Wireless Carrier from constructing a sufficient number of such facilities necessary to enable it to provide Personal Wireless Services within the Town. In determining whether a denial of any specific application would constitute an “Effective Prohibition,” the Town Council shall determine: (1) whether an applicant has established that an identified Wireless Carrier suffers from one or more significant gaps in its Personal Wireless Services, and (2) whether its proposed installation is the least intrusive means of remedying any such gap or gaps. (a) Significant Gap in Personal Wireless Services of an Identified Carrier The Town Council shall determine whether the applicant has established, based upon probative evidence provided by the applicant and/or its representative, that a specific Wireless Carrier suffers from a significant gap in its personal wireless services within the Town. In rendering such determination, the Council shall consider factors including, but not necessarily limited to: (1) Whether the identified Wireless Carrier, which is alleged to suffer from any significant gap in their personal wireless services, already provides Adequate Service in its Personal Wireless Services to its customers at any frequency being used by the carrier to provide personal wireless services to its end-use customers, (2) Whether any such alleged gap is relatively large or small in geographic size, (3) Whether the number of the carrier’s customers affected by the gap is relatively small or large, Meeting Packet Page 191 of 301 43 (4) Whether or not the location of the gap is situated on a lightly traveled road, or sparsely or densely occupied area, and/or (5) Overall, whether the gap is relatively insignificant or otherwise relatively de minimis. An Effective Prohibition shall not be found to exist under subparagraph (iii) hereinbelow if a Wireless Carrier has adequate coverage in any specified geographic area, such that its end-use customers can use their cellular telephones to connect to landlines using the Carrier’s Personal Wireless Services, but the frequency at which the customers are using such services is not the frequency most desired by the Carrier. (b) Least Intrusive Means of Remedying Gap(s) in Service The Town Council shall determine whether the applicant has established, based upon probative evidence provided by the applicant and/or its representative, that the installation of the proposed facility at the specific site proposed by the applicant and the specific portion of the site proposed by the applicant, and at the specific height proposed by the applicant, is the least intrusive means of remedying whatever significant gap or gaps which the applicant has contemporaneously proven to exist as determined by the Town Council based upon any evidence in support of, and/or in opposition to, the subject application. In rendering such determination, the Council shall consider factors including, but not necessarily limited to: (1) Whether the proposed site is the least intrusive location at which a facility to remedy an identified significant gap may be located, and the applicant has reasonably established a lack of potential alternative less intrusive sites and lack of sites available for co- location, (2) Whether the specific location on the proposed portion of the selected site is the least intrusive portion of the site for the proposed installation (3) Whether the height proposed for the facility is the minimum height actually necessary to remedy an established significant gap in service, (4) Whether or not a pre-existing structure can be used to camouflage the facility and/or its antennas, (5) Whether or not, as proposed, the installation mitigates adverse impacts to the greatest extent reasonably feasible through the employ of Stealth design, screening, use of color, noise mitigation measures, etc., and/or (6) Overall whether or not there is a feasible alternative to remedy the gap through alternative, less intrusive substitute installations. Meeting Packet Page 192 of 301 44 An Effective Prohibition shall also not be found to exist in subparagraph (iii) hereinbelow if an applicant fails to establish before the Town Council that any existing geographic gap or capacity deficiency in the specific Wireless Carrier’s coverage cannot be remedied through a less intrusive means than what is being proposed, including, but not limited to, potential installations on alternative less intrusive sites, a shorter tower or facility, the incorporation of a more stealthy design, etc. iii. Finding of Effective Prohibition or Lack of Effective Prohibition After considering the evidence presented before it, the Town Council shall determine whether or not a denial of the respective application would constitute an effective Prohibition. If the Town Council affirmatively determines that the applicant has failed to establish either: (i) that a denial of the application would prevent an identified Wireless Carrier from providing personal wireless services within a specific geographic area or areas within the Town or (ii) that a denial of the application would prevent a specific Wireless Carrier from constructing a sufficient number of such facilities necessary to enable it to provide Personal Wireless Services within the Town, then the Town Council shall find that a denial of the application does not constitute an Effective Prohibition. If the Town Council affirmatively determines that: (i) a denial of the application would prevent an identified Wireless Carrier from providing personal wireless services within a specific geographic area or areas within the Town, or (ii) that a denial of the application would prevent a specific Wireless Carrier from constructing a sufficient number of such facilities necessary to enable it to provide Personal Wireless Services within the Town, then the Town Council shall find that a denial of the application would constitute an Effective Prohibition, and the Town Council shall grant the subject application, irrespective of whether or not the granting of same would otherwise be inconsistent with any other provision of this Section §17.05 C. 3. b. Provided, the Town reserves the right to deny an application even if doing so leads to an effective prohibition to the extent allowed by the safe harbors contained in 47 U.S.C. §§ 253(b) and (c) and incorporated into 332(c)(7)(B)(i), based on the evidence of record. c. Availability of Suitable Existing Towers, Other Structures, or Alternative Technology. No new tower shall be permitted unless the applicant demonstrates to the reasonable satisfaction of the Town Council that no existing tower, structure or alternative technology that does not require the use of towers or structures can accommodate the applicant’s proposed antenna. An applicant shall submit information requested by the Town Council related to the availability of suitable existing towers, other structures or alternative technology. Evidence submitted to demonstrate that no existing tower, structure or alternative technology can accommodate the applicant’s proposed antenna may consist of any of the following: Meeting Packet Page 193 of 301 45 i. No existing towers or structures are located within the geographic area, which meet applicant’s reasonable engineering and personal wireless service related quality requirements. This evidence cannot be merely conclusory and must be supported by propagation maps that include the underlying analysis models, engineering reports speaking to the technical infeasibility, dropped call logs, and other data showing that a new tower is the only means of accommodating the proposed antenna. ii. Existing towers or structures are not of sufficient height to meet applicant’s engineering requirements. iii. Existing towers or structures do not have sufficient structural strength to support applicant’s proposed antenna and related equipment. iv. The applicant’s proposed antenna would cause electromagnetic interference with the antenna on the existing towers or structures, or the antenna on the existing towers or structures would cause interference with the applicant’s proposed antenna as certified by an RF engineer. 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. d. Following approval by the Town Council, the applicant may apply for a building permit through the standard application process. Construction shall not commence prior to approval of the building permit. 4. Environmental Impacts If, and to the extent that, the Town Council determines a proposed installation bears the potential for a significant adverse impact upon the environment within the meaning of ADEQ and/or the NEPA to the extent NEPA procedures apply to the project, then the Council shall be expected to comply with the requirements of ADEQ in determining both: a. The extent of adverse impacts upon the environment and/or historic properties; and, Meeting Packet Page 194 of 301 46 b. What mitigation measures the applicant should be required to undertake to minimize the adverse environmental impacts and/or impacts upon historic sites, structure and/or districts. If a respective applicant fails to obtain a review from the ADEQ and/or NEPA and opinion letters from the ADEQ and the FCC pertaining to its proposed installation prior to a first public hearing before the Town Council for the respective application, then the Town Council may make direct requests to the ADEQ and the FCC for their review of the application. The Town Council may request the FCC’s review and input in completing the statutorily-required environmental impact analysis pursuant to ADEQ and NEPA. In addition, the Town Council shall comply with the statutory requirements of ADEQ to complete an ADEQ review, make determinations of significance, and, where appropriate, require the applicant to complete a draft environmental impact statement and, if additionally appropriate, to thereafter complete a final environmental impact statement and analysis. So long as the Town Council acts with reasonable diligence in completing its ADEQ and NEPA review, if compliance with the statutory requirements for environmental review requires a period of effort that extends beyond the expiration of the applicable shot clock period, the delays beyond such period shall be deemed reasonable. 5. Historic Site Impacts The Town Council shall consider the potential adverse impacts of any proposed facility upon any historic site, district, or structure consistent with the Town’s historic preservation law requirements and comprehensive plan and ADEQ. If, and to the extent that, the Town Council determines that a proposed installation bears the potential for a significant adverse impact on a historic site or a historic district within the meaning of ADEQ and/or the NHPA (especially if the historic site at issue is listed upon the National Register of historic places), then the Council shall comply with the requirements of both ADEQ and Town law in determining both: a. The extent of adverse impacts upon the historic properties, and b. What mitigation measure might the applicant be required to undertake to minimize the adverse environmental impacts and/or adverse impacts upon historic sites, structures and/or district. Should a respective applicant fail to obtain a SHPO and/or a Section 106 review under NHPA, and opinion letters from SHPO and the FCC pertaining to its proposed installation prior to a first public hearing before the Town Council for the respective application, then the Town Council shall make direct requests to SHPO and the FCC for their review of the application. They shall request SHPO and the FCC’s review and input in completing the statutorily-required environmental/historic impact analysis pursuant to ADEQ and NHPA. Meeting Packet Page 195 of 301 47 This request shall include, but not be limited to, a request to the FCC for a Section 106 review, as defined in this Chapter, as the Town recognizes each application for a special use permit for the installation of a personal wireless services facility shall constitute “an undertaking” for purposes of compliance with the National Historic Preservation Act. In addition, the Town Council shall comply with the statutory requirements of ADEQ to complete a SEQ ADEQ RA review, make determinations of significance, and, where appropriate, require the applicant to complete a draft environmental impact statement, and if additionally appropriate, to thereafter complete a final environmental impact statement and analysis. So long as the Town Council acts with reasonable diligence in completing its ADEQ and NHPA review, if compliance with the statutory requirements for historic preservation review requires a period of effort that extends beyond the expiration of the applicable shot clock period, the delays beyond such period shall be deemed reasonable. 6. Tribal Site Impacts The Town Council shall consider the potential adverse impacts of any proposed facility upon any tribal lands associated with the Fort McDowell Yavapai Nation and the Salt River Prima-Maricopa Indian Community near or within the general area of Fountain Hills, Arizona. If, and to the extent that, the Town Council determines that a proposed installation bears the potential for a significant adverse impact on such tribal lands, then the Council shall issue notice to tribal representatives and request tribal review of the application. 7. Force Majeure In the event that the rendering of a final decision upon an application under this Chapter is delayed due to natural and/or unnatural events and/or forces which are not within the control of the Town or the Town Council, such as the unavoidable delays experienced in government processes due to the COVID 19 pandemic, and/or mandatory compliance with any related federal or state government orders issued in relation thereto, such delays shall constitute reasonable delays which shall be recognized as acceptable grounds for extending the period for review and the rendering of final determinations beyond the period allotted under the applicable shot clock. 8. 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; Bond Required. Meeting Packet Page 196 of 301 48 1. Any antenna or tower that is not operated for a continuous period of ninety (90) days shall be deemed abandoned. Within ninety (90) days of receipt of notice from the Town of Fountain Hills notifying the owner of such abandonment, the owner of such antenna or tower shall completely remove the same and all related equipment and improvements and shall restore all affected areas to a condition compliant with all applicable laws, which includes without limitation the Code. 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. The Town shall have the right (but not the obligation) to perform such removal and restoration with or without notice. If there are two (2) or more users of a single tower, then this provision shall not become effective until all users cease using the tower for the prescribed period. 2. Upon receiving a special use permit approval from the Town Council and a building permit, prior to the commencement of installation and/or construction of such facility or any part thereof, the applicant shall file with the Town a bond for a length of no less than three (3) years in an amount of the estimate of a certified engineer of one-hundred twenty-five percent (125% )equal to or exceeding the estimate of the cost of removal of the facility and all associated structures, fencing, power supply, and other appurtenances connected with the facility. The bond must be provided within thirty (30) days of the approval date and before any installation or construction begins. Replacement bonds must be provided ninety (90) days prior to the expiration of any previous bond. At any time the Town has good cause to question the sufficiency of the bond at the end of any three-year (3) period, the owner and/or operator of the facility, upon request by the Town, shall provide an updated estimate and bond in the appropriate amount. Failure to keep the bonds in effect is cause for the removal of the facility at the owner's expense. Each facility will require a separate bond, regardless of the number of owners or location. B. State or Federal Requirements. 1. Compliance with state and 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. 2. Prohibition against illegally excessive emissions and RF testing. As disclosed on the FCC’s public internet website, personal wireless services facilities erected at any height under 200 feet are not required to be registered with the FCC. Meeting Packet Page 197 of 301 49 Of even greater potential concern to the Town is the fact that the FCC does not enforce the RF radiation limits codified within the CFR by either: (a) testing the actual radiation emissions of wireless Facilities either at the time of their installation or at any time thereafter, or (b) requiring their owners to test them. See relevant excerpts from the FCC’s public internet website annexed as Appendix 2. This means that when wireless Facilities are constructed and operated within the Town, the FCC will have no idea where they are located and no means of determining, much less ensuring, that they are not exposing residents within the Town and/or the general public to Illegally Excessive levels of RF Radiation. The Town deems it to be of critical importance to the health, safety, and welfare of the Town, its residents, and the public at large that personal wireless service facilities do not expose members of the general public to levels of RF radiation that exceed the limits which have been deemed safe by the FCC, and/or are imposed under CFR. The FCC has recognized that 47 U.S.C. § 332(c)(7)(B)(iv) permits state and local governments, when making decisions on the placement, construction, and modification of personal wireless service facilities, to consider whether such facilities comply with the Commission's regulations concerning RF emissions. In re Human Exposure to Radiofrequency Electromagnetic Fields et al., 34 FCC Rcd 11687, 11739, ¶114 (2019). In accord with the same, the Town enacts the following RF Radiation testing requirements and provisions set forth herein below. No wireless telecommunications facility shall at any time be permitted to emit illegally excessive RF Radiation as defined in §17-2 or to produce power densities that exceed the legally permissible limits for electric and magnetic field strength and power density for transmitters, as codified within 47 CFR §1.1310(e)(1), Table 1 Sections (i) and (ii), as made applicable pursuant to 47 CFR §1.1310(e)(3) unless the operator implements and retains responsibility for ongoing effectiveness of the mitigation actions contained in 47 C.F.R. §1.1307(b)(4). To ensure continuing compliance with such limits by all owners and/or operators of wireless communication facilities within the Town, all owners, and operators of wireless communication facilities shall submit reports as required by this section. As set forth hereinbelow, the Town may additionally require, at the owner and/or operator’s expense, independent verification of the results of any analysis set forth within any reports submitted to the Town by the owner and/or operator. If an operator of a personal wireless service facility fails to supply the required reports or fails to correct a violation of the legally permissible limits described hereinabove, following notification that their respective facility is believed to be exceeding such limits, any special use permit or other zoning approval granted by the Town Council or any other body or representative of the Town is subject to modification or revocation by the Town Council following a public hearing. Meeting Packet Page 198 of 301 50 a. Certification of Compliance with Applicable RF Radiation Limits. Within forty-five (45) days of initial operation or a substantial modification of a wireless communication facility, the owner and/or operator of each telecommunications antenna shall submit to the Development Services Director a written certification by a licensed professional engineer, sworn to under penalties of perjury, that the facility’s radio frequency emissions comply with the limits codified within 47 CFR §1.1310(e)(1), Table 1 Sections (i) and (ii), as made applicable pursuant to 47 CFR §1.1310(e)(3). The engineer shall also measure the emissions of the approved wireless facility, including the cumulative impact from other nearby wireless facilities, and determine if such emissions are within the limits described hereinabove. A report of these measurements and the engineer’s findings with respect to compliance with the FCC’s maximum permissible exposure (MPE) limits shall be submitted to the Development Services Director. If the report shows that the facility does not comply with applicable limits, then the owner and/or operator shall cease operation of the facility until the facility is brought into compliance with such limits. Proof of compliance shall be a certification provided by the engineer who prepared the original report. The Town may require, at the applicant’s expense, independent verification of the results of the analysis. b. Random RF Radiofrequency Testing. At the operator’s expense, the Town may retain an engineer to conduct random unannounced RF radiation testing of such wireless facilities to ensure the facility’s compliance with the limits codified within 47 CFR §1.1310(e)(1) et seq. The Town may cause such random testing to be conducted as often as the Town may deem appropriate. However, the Town may not require the owner and/or operator to pay for more than one (1) test per facility per calendar year unless such testing reveals that one (1) or more of the owner and/or operator’s facilities are exceeding the limits codified within 47 CFR §1.1310(e)(1) et seq., in which case the Town shall be permitted to demand that the wireless facility be brought into compliance with such limits, and to conduct additional tests to determine if, and when, the owner and/or operator thereafter brings the respective wireless facility and/or facilities into compliance. If the Town at any time finds that there is good cause to believe that a personal wireless service facility and/or one or more of its antennas are emitting RF radiation at levels in excess of the legal limits permitted under 47 CFR §1.1310(e)(1) et seq., then the Town shall provide written notice to the owner and/or operator identifying the noncompliance and the corrective action required. Except where the violation presents an immediate threat to public safety, the owner or operator shall be afforded a reasonable period, not to exceed thirty (30) days, to cure the violation or demonstrate compliance. If the violation has not been cured within the prescribed period, a hearing shall be scheduled before the Town Council at which the owner and/or operator of such facility shall be required to show cause why Meeting Packet Page 199 of 301 51 any and all permits and/or approvals issued by the Town for such facility and/or facilities should not be revoked, and a fine should not be assessed against such owner and/or operator. Such hearing shall be duly noticed to both the public and the owner and/or operator of the respective facility or facilities at issue. The owner and/or operator shall be afforded not less than two (2) weeks' written notice by first-class mail to its Notice Address. At such hearing, the burden shall be on the Town to show that, by a preponderance of the evidence, the Facilities emissions exceeded the permissible limits under 47 CFR §1.1310(e)(1) et seq. In the event that the Town establishes same, the owner and/or operator shall then be required to establish, by clear and convincing evidence, that a malfunction of equipment caused their failure to comply with the applicable limits through no fault on the part of the owner/operator. If the owner and/or operator fails to establish same, the Town Council shall have the power to and shall revoke any special use permit, variance, building permit, and/or any other form of zoning-related approval(s) which the Town Council, Board of Adjustment, Town Engineer and/or any other representative of the Town may have then issued to the owner and/or operator, for the respective facility. In addition, the Town may issue a civil citation of not less than $1,000, nor more than $5,000 for such violation of subparagraph 1. hereinabove, or, in the case of a second offense within less than five (5) years, a minimum fine of $5,000, nor more than $25,000. In the event that an owner or operator of one or more personal wireless service facilities is found to violate subparagraph 1. hereinabove three or more times within any five (5) year period, then in addition to revoking any zoning approvals for the facilities which were violating the limits codified in 47 CFR §1.1310(e)(1) et seq., the Town Council shall render a determination within which it shall deem the owner/operator prohibited from filing any applications for any new wireless personal services facilities within the Town for a period of five (5) years. c. Annual Testing. The owner or operator of all PWSF shall provide for and conduct an inspection of radio frequency radiation at least once annually by a licensed radio frequency engineer. Three copies of a report shall be provided to the Development Services Department, verifying that the radio frequency radiation is in compliance with FCC Guidelines. 3. Actions for Noncompliance. If the Town at any time finds that there is good cause to believe that a wireless communication facility and/or one (1) or more of its antennas are emitting RF radiation at levels in excess of the legal limits permitted under 47 CFR §1.1310(e)(1) et seq., the Town shall provide written notice to the owner and/or operator identifying the noncompliance and the corrective action required. Except where the violation presents an immediate threat to public safety, the owner or operator shall be afforded a reasonable period, not to exceed thirty (30) days, to cure the violation or demonstrate compliance. If the violation has not been cured within the prescribed period, then a hearing shall be Meeting Packet Page 200 of 301 52 scheduled before the Town’s Zoning Administrator at which the owner and/or operator of such facility shall be required to show cause why any and all permits and/or approvals issued by the Town for such facility and/or facilities should not be revoked, and a fine should not be assessed against such owner and/or operator. The owner and/or operator shall be afforded not less than two (2) weeks’ written notice of the hearing. At such hearing, the burden shall be on the Town to show that, by a preponderance of the evidence, the facilities emissions exceeded the permissible limits under 47 CFR §1.1310(e)(1) et seq. In the event that the Town establishes same, the owner and/or operator shall then be required to establish, by clear and convincing evidence, that a malfunction of equipment caused their failure to comply with the applicable limits through no fault on the part of the owner/operator. If the owner and/or operator fails to establish same, the Town shall have the power to revoke any permit, building permit, and/or any other form of approval(s) which the Town Council or any other representative of the Town may have then issued to the owner and/or operator, for the respective facility. The Zoning Administrator may revoke an administrative approval. The decision of the Zoning Administrator may be appealed to the Town Manager. If the tower or antenna was approved by the Town Council, revocation will be considered by the Town Council in the same manner as the original approval. In addition, the Town may issue a civil citation for noncompliance as provided in Section 1-8-3 of the Town Code. In the event that an owner or operator of one (1) or more wireless communication facility is found to violate subsection (B)(1) of this section three (3) or more times within any five (5) year period, then in addition to revoking any zoning approvals for the facilities which were violating the limits codified in 47 CFR §1.1310(e)(1) et seq., the Town Council shall render a determination within which it shall deem the owner/operator prohibited from filing any applications for any new wireless personal services facilities within the Town for a period of five (5) years. C. Building Codes; Safety Standards. To ensure the structural integrity of towers, the owner of a tower shall ensure that it is maintained in compliance with standards contained in applicable state or local building codes and the applicable standards for towers that are published by the Electronic Industries Association, as amended from time to time. If, upon inspection, the Town of Fountain Hills concludes that a tower fails to comply with such codes and standards and constitutes a danger to persons or property, then upon notice being provided to the owner of the tower, the owner shall have thirty (30) days to bring such tower into compliance with such standards. Failure to bring such tower into compliance within said thirty (30) days shall constitute grounds for the removal of the tower or antenna at the owner’s expense. D. Noise. Wireless facilities and all related equipment must comply with all noise regulations and shall not exceed such regulations, either individually or collectively. Backup generators shall only be operated during power outages and/or for testing and maintenance purposes between the hours of 9:00 a.m. and 4:00 p.m. Meeting Packet Page 201 of 301 53 E. Maintenance. Prior to scheduling a final inspection for construction of a tower and associated equipment, the applicant shall file with the Town a bond in the amount of the estimate of a certified engineer of one- hundred twenty-five percent (125% ) of the maintenance, equipment, and landscaping to cover the ongoing maintenance of the tower, equipment, and landscaping. The bond amount shall be reviewed and revised every three years thereafter. Should the owner of the tower, equipment, and/or landscaping fail to maintain said facilities consistent with the Town’s approval and ordinance requirements, and after notice for correction by the Town, the Town may call and utilize the bonds to perform the needed maintenance activities. F. Maintenance Contact Information. Each permittee of a wireless telecommunications facility shall provide the director with the name, address and 24-hour local or toll-free contact phone number of the permittee, the owner, the operator and the agent responsible for the maintenance of the facility ("contact information"). The contact information for the agent responsible for the maintenance of the facility must include at least one natural person authorized to respond to maintenance and emergency matters concerning the facility. Contact information shall be updated within seven (7) days of any change. G. Indemnity and liability for damages. 1. The wireless telecommunications facility provider shall defend, indemnify, and hold harmless the Town or any of its boards, commissions, agents, officers, and employees from any claim, action or proceeding against the Town, its boards, commission, agents, officers, or employees to attack, set aside, void, or annul, the approval of the project when such claim or action is brought within the time period provided for in applicable state and/or local statues. The Town shall promptly notify the provider(s) of any such claim, action or proceeding if the Town bears its own attorney's fees and costs, and the Town defends the action in good faith. 2. Wireless telecommunications facility operators shall be strictly liable for interference caused by their facilities with Town communications systems. The operator shall be responsible for costs for determining the source of the interference, all costs associated with eliminating the interference (including but not limited to filtering, installing cavities, installing directional antennas, powering down systems, and engineering analysis), and all costs arising from third party claims against the Town attributable to the interference. H. Certificate of Insurance required. The applicant shall maintain adequate and sufficient liability insurance during the construction period and thereafter, the carrier shall maintain liability insurance, issued by an insured authorized to do business in the State of Arizona meeting the criteria of this section throughout the life of any PWSF erected within the Town of Fountain Hills, at least as broad as follows: 1. Commercial General Liability Insurance. The permittee shall procure and maintain at its expense or cause its contractor or subcontractor to procure and maintain throughout the term of this permit, commercial General Liability ("CGL") insurance on an "occurrence" basis, with limits not less than $2,000,000 per occurrence per wireless carrier or $4,000,000 per wireless carrier in the aggregate. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project Meeting Packet Page 202 of 301 54 location or the general aggregate limit shall be twice the required occurrence limit. CGL insurance must include coverage for the following: Bodily Injury and Property Damage; Personal Injury/Advertising Injury; Premises/Operations Liability; Products/Completed Operations Liability; Aggregate Limits that Apply per Project; Explosion, Collapse and Underground ("UCX") exclusion deleted; Contractual Liability with respect to the permit; Broad Form Property Damage; and Independent Consultants Coverage. The policy shall contain no endorsements or provisions limiting coverage for (i) contractual liability; (ii) cross liability exclusion for claims or suits by one insured against another; (iii) products/completed operations liability; (iv) bodily injury or damage from RF exposure at levels exceeding the FCC limits; or (v) contain any other exclusion contrary to the conditions in this permit. 2. Environmental Pollution Liability Insurance. The permittee shall procure and maintain at its expense or cause its contractor or subcontractor to procure and maintain throughout the term of this permit, Contractors Pollution Liability Insurance including contractual liability coverage to cover liability and legal expenses arising out of cleanup, removal, storage, or handling of hazardous or toxic chemicals, materials, substances, or any other pollutants by the permittee or any subcontractor resulting from pollution conditions associated with the personal wireless services facility in an amount not less than $1,000,000 each occurrence combined single limit for bodily injury and property damage. 3. Umbrella Policy. If an umbrella or excess liability insurance policy is used to satisfy the minimum requirements for insurance coverage listed above, the umbrella or excess liability policies shall provide coverage at least as broad as specified for the underlying coverages and covering those insured in the underlying policies. Coverage shall be "pay on behalf," with defense costs payable in addition to policy limits. Permittee shall provide a "follow form" endorsement or schedule of underlying coverage satisfactory to the Town indicating that such coverage is subject to the same terms and conditions as the underlying liability policy. 4. Endorsements. The relevant policy(ies) shall name the Town, its elected/appointed officials, commission members, officers, representatives, agents, volunteers and employees as additional insureds. The permittee shall use its best efforts to provide thirty (30) days' prior notice to the Town of the cancellation or material modification of any applicable insurance policy. 5. Verification of Coverage. Permittee shall furnish the Development Services Department with original certificates and amendatory endorsements or copies of the applicable policy language providing the insurance coverage required herein. All certificates and endorsements are to be received and approved by the Development Services Department before any work commences. However, failure to obtain required documents prior to the work beginning shall not waive the Licensee's obligation to provide them. Permittee shall furnish updated certificates and endorsements to the Town annually. The Town reserves the right to require updated certificates and endorsements or complete, Meeting Packet Page 203 of 301 55 certified copies of all required insurance policies, including the endorsements required herein, at any time. 6. Permittee Has Full Liability: The permittee shall assume full liability for damage or injury caused to any property or person by the personal wireless services facility. 7. Permittee shall provide an executed agreement, pursuant to which Permittee and any related third parties agree to defend, hold harmless and fully indemnify the Town, its officers, employees, agents, attorneys, and volunteers, from (i) any claim, action or proceeding brought against the Town or its officers, employees, agents, or attorneys to attack, set aside, void, or annul any such approval of the Town or (ii) a successful legal action brought against the Town for loss of property value or other harm caused by the placement or operation of a small cell installation. Such indemnification shall include damages, judgments, settlements, penalties, fines, defensive costs or expenses, including, but not limited to, interest, attorneys’ fees and expert witness fees, or liability of any kind related to or arising from such claim, action, or proceeding whether incurred by the Permittee, the Town and/or the parties initiating or bringing such proceeding. The agreement shall also include a provision obligating the Permittee to indemnify the Town for all of the Town’s costs, fees and damages which the Town incurs in enforcing the indemnification provisions of this Section. All insurance required under this Chapter shall be issued by an insurer holding a current A.M. Best rating of A- or better, that is not an affiliate, subsidiary, or captive insurance entity of the applicant, permittee, or any parent or related company thereof. Self-insurance and insurance issued by a special-purpose or single- project entity created by the applicant shall not satisfy this requirement. The Town reserves the right to request and independently verify the insurer's rating and independence prior to permit issuance and at each renewal. I. ADA Accommodations. The Town seeks to comply with the Americans With Disabilities Act, and shall comply with same in the event that any person who is disabled within the meaning of the Act seeks a reasonable accommodation, to the extent they are entitled to same under the Act. J. Decommissioning and Reclamation Plan shall include the following information: 1. A plan for disposal of all solid waste, special waste and hazardous waste in accordance with local, state, and federal waste disposal regulations detailing the types and quantities of waste materials and methods of disposal; 2. A description of how and on what schedule stabilization and re-vegetation of the site as deemed necessary to minimize erosion will be accomplished. Permittee should include, to the extent possible, restoration of native vegetation, and pollinator-friendly seed mixtures shall be used to the maximum extent possible in re-vegetation of ground cover; Meeting Packet Page 204 of 301 56 3. An estimate of costs for the decommissioning of the personal wireless services facility with a detailed description of how the estimated costs were derived, including the date which was the basis for the estimate; 4. A decommissioning plan signed by the party responsible for decommissioning and the landowner (if different) whose minimum requirements meet the standards of this Ordinance. Such plan must be filed in the Town Office prior to the first operation of the personal wireless services facility; 5. An estimate of the total cost of decommissioning value of the equipment and itemization of the estimated major expenses, including the projected costs of measures taken to minimize or prevent adverse effects on the environment during the implementation of the decommissioning plan. Section 17.07 Nonconforming Uses A. Not Expansion of Nonconforming Use. Towers that are constructed, and antennas that are installed, in accordance with the provisions of this chapter shall not be deemed to constitute the expansion of a nonconforming use or structure. B. Pre-existing Towers. Pre-existing towers shall be allowed to continue their usage as they presently exist. Routine maintenance (including replacement with a new tower of like construction and height) shall be permitted on such pre-existing towers. New construction other than routine maintenance on a pre-existing tower shall comply with the requirements of this chapter. C. Rebuilding Damaged or Destroyed Nonconforming Towers or Antennas. Notwithstanding other provisions of this chapter, bona fide nonconforming towers or antennas that are damaged or destroyed may be rebuilt without having to first obtain a special use permit and without having to meet the separation requirements specified in Section 17.03. The type, height, and location of the tower on site shall be of the same type and intensity as the original facility approval; provided, however, that any destroyed lattice or guyed tower shall be replaced with a monopole structure only. Building permits to rebuild the facility shall comply with the then applicable building codes and shall be obtained within ninety (90) days from the date the facility is damaged or destroyed. If no permit is obtained or if said permit expires, the tower or antenna shall be deemed abandoned as specified in Section 17.06(A). Section 17.08 Retention of Consultants A. Use of Consultants. Where deemed reasonably necessary by the Town Council and/or the Town, the Town Council and/or the Town may retain the services of professional consultants to assist the Town in carrying out its duties in review and approval of personal wireless service facilities. Where the Town Council uses the services of private engineers, attorneys, or other consultants for purposes of engineering, scientific, land use planning, environmental, legal, or similar professional reviews of the adequacy or substantive aspects of applications or of issues raised during the course of review of applications for special use permit approvals of Meeting Packet Page 205 of 301 57 personal wireless service facilities, the applicant and landowner, if different, shall be jointly and severally responsible for payment of all the reasonable and necessary costs incurred by the Town for such services. That responsibility shall not exceed the actual cost to the Town of such engineering, legal, or other consulting services. B. Advance Deposits for Consultant Costs. The Town and/or Town Council may require advance periodic monetary deposits held by the Town on account of the applicant or landowner to secure the reimbursement of the Town's consultant expenses. The Town Council shall establish policies and procedures for the fixing of deposits and the management of payment from them. After the review and approval of itemized invoices by the Development Services Director, or designee, as to the reasonableness and necessity of the consultant charges, the Town may make payments from the deposited monies for engineering, legal, or consultant services. Upon receiving a request by the applicant or landowner, the Town shall supply copies of such invoices to the applicant and/or landowner reasonably in advance of review and approval, appropriately redacted where necessary to shield legally privileged communications between Town officers or employees and the Town's consultant. When it appears that the remaining deposit held for the applicant or landowner by the Town may be insufficient to pay current or anticipated invoices, the Town shall cause the applicant or landowner to deposit additional monies to meet such expenses or anticipated expenses in accordance with policies and procedures established by the Town Council. Consultants shall undertake no review on any matter scheduled before the Town until the initial deposit has been made or requested replenishment of the deposit has been made. No reviewing agency shall be obligated to proceed unless the applicant complies with deposit requirements. C. Reasonable Limit Upon Consultant Expenses. A consultant expense or part thereof is reasonable in amount if it bears a reasonable relationship to the customary fee charged by engineers, attorneys, or planners within the region for services performed on behalf of applicants or reviewing boards in connection with comparable applications for land use or development. The Town may also take into account any special conditions for consideration as it may deem relevant, including but not limited to the quality and timeliness of submissions on behalf of the applicant and the cooperation of the applicant and agents during the review process. A consultant expense or part thereof is necessarily incurred if it was charged by the engineer, attorney or planner, or other consultants for a service that was rendered to assist the Town in: (a) making factual determinations consistent with the goals of protecting or promoting of the health, safety or welfare of the Town or its residents; (b) assessing potential adverse environmental impacts such as those identified within an ADEQ process; (c) accessing potential adverse impacts to historic properties, structures and/or districts, and/or (d) assessing and determining factual issues relevant to Effective Prohibition claims, as addressed herein, enabling the Council to best comply with the letter and intent of the provision of the TCA which is relevant thereto. D. Audits Upon the Request of an Applicant. Upon request of the applicant or landowner, the Town Council shall review all invoices and determine whether such engineering, legal, and consulting expenses are Meeting Packet Page 206 of 301 58 reasonable in amount and necessarily incurred by the Town in connection with the review and consideration of an application for personal wireless service facility. In the event of such a request, the applicant or landowner shall be entitled to be heard by the Town Council on reasonable advance notice. E. Liability for Consultant Expenses. For a land-use application to be complete, the applicant shall provide the written consent of all owners of the subject real property, both authorizing the applicant to file and pursue land development proposals and acknowledging potential landowner responsibility, under this section, for engineering, legal, and other consulting fees incurred by the Town. If different from the applicant, the owner(s) of the subject real property shall be jointly and severally responsible for reimbursing the Town for funds expended to compensate services rendered to the Town under this section by private engineers, attorneys, or other consultants. The applicant and the owner shall remain responsible for reimbursing the Town for its consulting expenses, notwithstanding that the deposit account may be insufficient to cover such expenses. No building permit or other permit shall be issued until reimbursement of costs and expenses determined by the Town to be due. In the event of failure to reimburse the Town for such fees, the following shall apply: The Town may seek recovery of unreimbursed engineering, legal, and consulting fees by court action in an appropriate jurisdiction, and the defendant(s) shall be responsible for the reasonable and necessary attorney's fees expended by the Town in prosecuting such action. Alternatively, and at the sole discretion of the Town, a default in reimbursement of such engineering, legal, and consulting fees expended by the Town shall be remedied by charging such sums against the real property that is the subject of the application by adding that charge to and making it a part of the next annual real property tax assessment roll of the Town. Such charges shall be levied and collected simultaneously and in the same manner as Town-assessed taxes and applied in reimbursing the fund from which the costs were defrayed for the engineering, legal, and consulting fees. Prior to charging such assessments, the owners of the real property shall be provided written notice to their last known address of record by certified mail, return receipt requested, of an opportunity to be heard and object before the Town Council to the proposed real property assessment, at a date to be designated in the notice, which shall be no less than 30 days after its mailing. Meeting Packet Page 207 of 301 1 Chapter 17 Wireless Telecommunications Towers and Antennas Section 17.01 Purpose, Intent, and Applicability A. The purpose of this chapter is to establish general guidelines for the siting of wireless communications towers and antennas. The goals of this chapter are to: 1. Protect residential areas and land uses from potential adverse impacts of towers and antennas; 2. Employ the “General Authority” preserved to the Town under 47 U.S.C. § 332(c)(7)(A) to the greatest extent the United States Congress intended while simultaneously complying with each of the substantive and procedural requirements set forth within the subsection 47 U.S.C. § 332(c)(7)(B). 3. Employ the authority reserved under A.R.S. §§ 9-462.01, and 9-596.A to exercise the Town’s zoning powers, land use, planning and permitting authority, exercise its police powers, and manage access to the Town’s public rights of way. 24. Encourage Promote the location of towers in nonresidential areas; 35. Minimize Limit the total number of towers throughout the community; 46. Strongly encourage the joint use of new and existing tower sites as a primary option rather than construction of additional single-use towers; 57. Encourage Require users of towers and antennas to locate them, to the extent possible, in areas where the adverse impact on the community is minimal; 68. Encourage Require users of towers and antennas to configure them in a way that minimizes the adverse visual impact of the towers and antennas through careful design, siting, landscape screening, and innovative camouflaging techniques; Meeting Packet Page 208 of 301 2 79. Enhance the ability of the providers of telecommunications services to provide such services to the community quickly, effectively, and efficiently; 10. Recognize that technology and laws regarding these facilities have changed, so the Town’s regulations need to change accordingly; 811. Consider the public health and safety of communication towers; and 912. Avoid potential damage to adjacent properties from tower failure through engineering and careful siting of tower structures. 13. Maintain the Town’s status as a designated International Dark Sky Community and an optimum environment for stargazing, 14. Conserve and enhance the unique natural beauty, irreplaceable natural resources, historical, natural, and man-made character and appearance of Fountain Park, McDowell Mountain Preserve, Pleasantville Park, and views of Red Mountain and Four Peaks. 15. Protect Saguaro cacti as a unique natural resource promoting tourism, contributing to the aesthetic well-being of the community, high property values, high quality of life, unique lifestyles, and providing habitat protection for desert wildlife. Saguaro cacti grow slowly and cannot be replaced by a plant of like character. 16. Protect the quiet small-town suburban, scenic and visual character of the Town. In furtherance of these goals, Town of Fountain Hills shall give due consideration to the Town of Fountain Hills General Plan, the Town of Fountain Hills Zoning Ordinance, existing land uses, and environmentally sensitive areas in approving sites for the location of towers and antennas. B. It is the intent of this chapter: 1. That no wireless communication towers or antenna be sited, constructed, reconstructed, installed, materially changed, expanded, or used unless in conformity with this chapter. 2. To achieve a balance between the need to provide wireless services with the health, safety, and general welfare of the residents of Fountain Hills by balancing five (5) simultaneous objectives: Meeting Packet Page 209 of 301 3 a. Enabling personal wireless service providers to provide adequate personal wireless services throughout the Town so that Town residents can enjoy the benefits of same from any FCC-licensed wireless carrier from which they choose to obtain such services; b. Minimizing the number of cell towers and/or other personal wireless service facilities needed to provide such coverage; c. Preventing, to the greatest extent reasonably practical, any unnecessary adverse impacts upon the Town’s communities, residential areas, and individual homes; and d. Complying with all the legal requirements which the Telecommunications Act of 1996, as amended (“TCA”) imposes upon the Town, when the Town receives, processes and determines each of the substantive and procedural requirements set forth within the subsection 47 U.S.C. § 332(c)(7)(B) for permit applications seeking approvals for the siting, construction and operation of cell towers and/or other personal wireless service facilities. e. Complying with the Federal Communications Commission’s (FCC) legislative rules for communications facilities including those for Radio Frequency human exposure limits in 47 C.F.R. Part 1, Subpart I and those addressing State and Local government regulation of the Placement, Construction, and Modification of Personal Wireless Service Facilities, in 47 C.F.R. Part 1, Subpart U. This Section is not intended to, nor shall it be interpreted or applied to: (1) prohibit or effectively prohibit any wireless telecommunications service provider's ability to provide reasonable and necessary wireless communications services; (2) prohibit or effectively prohibit any entity's ability to provide reasonable and necessary interstate or intrastate telecommunications service; (3) unreasonably discriminate among providers of functionally equivalent services; (4) deny any request for authorization to place, construct or modify wireless telecommunications service facilities solely on the basis of environmental effects of radio frequency emissions so long as such wireless facilities comply in every instance and regard with all FCC's regulations concerning such emissions; (5) prohibit any eligible facility that the Town may not deny under federal or state law; or (6) otherwise authorize the Town to violate any applicable federal or state law. Meeting Packet Page 210 of 301 4 C. Applicability. 1. New Towers and Antennas. All new towers or antennas in the Town of Fountain Hills shall be subject to these regulations. The following exceptions apply: a. Amateur Radio Station Operators/Receive Only Antennas. This chapter shall not govern any tower, or the installation of any antenna, that is under the maximum building height of the zoning district in which such structure is located and which is owned and operated by a federally licensed amateur radio station operator or is used exclusively for receive only operations. b. Pre-existing Towers or Antennas. Legally established pre-existing towers and pre- existing antennas shall not be required to meet the requirements of this chapter, other than the requirements of Sections 17.06(B)(1) and 17.06(C). c. AM Array. For purposes of implementing this chapter, an AM array, consisting of one (1) or more tower units and supporting ground system which functions as one (1) AM broadcasting antenna, shall be considered one (1) tower. Measurements for setbacks and separation distances shall be measured from the outer perimeter of the towers included in the AM array. Additional tower units may be added within the perimeter of the AM array by right. d. Small Cell Towers Wireless Facilities in the Right-of-Way. Wireless communication towers and antenna meeting the definition of small wireless facilities as contained in A.R.S. 9-591 are subject to the requirements of Article 16-2, Small Wireless Facilities, of the Town Code. e. 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. f. Utility Service Antennas in the Right-of-Way. Utility service antennas as defined in this chapter placed in the public right-of-way are subject to the requirements of Article 16-3, Utility Service Antenna, of the Town Code. (24-08, Amended, 09/04/2024, Deleted and replaced) g. Over-the-Air-Reception Devices ("OTARD") antennas as defined by 47 C.F.R. § 1.4000(a). Meeting Packet Page 211 of 301 5 2. Existing Towers and Antennas. Any existing towers which are modified, upgraded, or changed in any manner shall be subject to the provisions of this ordinance as applicable. All existing towers and antennas shall be subject to the maintenance and operations requirements in Sec. 17.06. Section 17.02 Definitions For the purposes of this article, and where not inconsistent with the context of a particular section, the defined terms, phrases, words, abbreviations, and their derivations shall have the meanings provided in this section. When not inconsistent with the context, words in the present tense include the future tense, words used in the plural number include words in the singular number, and words in the singular number include the plural number. The word “shall” is always mandatory and not merely directory. The definitions set forth herein shall supersede any definitions set forth within the Town Code and Zoning Ordinance, and the definitions set forth herein below shall control and apply to Chapter 17 of the Zoning Ordinance and all subparagraphs herein.As used in this chapter, the following terms shall have the meanings set forth below: “Accessory facility or accessory structure” means a facility or structure serving or being used in conjunction with a personal wireless services facility or complex and located on the same property or lot as the personal wireless services facility or complex or an immediately adjacent lot, including, but not limited to utility or transmission equipment storage sheds or cabinets. “ACHP” means the Federal Advisory Council on Historic Preservation. ACHP Review and compliance, meeting or exceeding the requirements of the Federal Advisory Council on Historic Preservation. ADA means American Disabilities Act. Review and compliance, meeting or exceeding the requirements of the ADA is codified in Title 42 of the United States Code, starting at Section 12101 ADEQ Arizona Department of Environmental Quality Meeting Packet Page 212 of 301 6 Review and compliance, meeting or exceeding requirements of the ADEQ operates under the statutory authority found in Arizona Revised Statutes (A.R.S.) §§ 49-101 et seq., and its regulatory rules are detailed in Arizona Administrative Code (A.A.C.) Title 18, Chapters 1 through 18. “ADEQ” means the Arizona Department of Environmental Quality. “Adequate coverage” means, as determined by the Town Council, that a specific wireless carrier’s personal wireless service coverage is such that the vast majority of its customers’ equipment can successfully use connect to the carrier’s radio access network and achieve a received signal strength of -110 dBm or better and deliver a -90 dBm or better signal to the base station receiver (uplink) with a signal to noise ratio (SINR) of 3 dB or higher the vast majority of the time, in the vast majority of the geographic locations within the Town, that the Voice Drop Call Rate, e.g. the percentage ratio of dropped voice calls to total call attempts or successful call setups remains at or below 3%. personal wireless service the vast majority of the time, in the vast majority of the geographic locations within the Town, that the success rate of using their devices exceeds 97%, and that any geographic gaps in a carrier’s gaps in personal wireless services are not significant gaps, A “gap” can exist when there is a lack of coverage or when coverage exists but quality is below the above metrics. The Town will assess whether a gap in a carrier’s personal wireless services are significant, based upon such factors including, but not limited to, lack of significant physical size of the gap, whether the gap is located upon a lightly traveled or lightly occupied area, whether only a small number of customers are affected by the gap, and/or whether or not the carrier’s customers are affected for only limited periods of time. A wireless carrier’s coverage shall not be deemed inadequate simply because the frequency or frequencies at which its customers are using its services are not the most preferred frequency of the wireless carrier. For claimed capacity or quality shortfalls in an area that has coverage, the applicant must demonstrate through independently-verifiable data and analysis, including network generated recordings based on user equipment reports that users are consistently experiencing dropped voice calls (in contrast to dropped sessions involving non-voice communications) at an unacceptable level during peak periods, or user devices are consistently denied access to the network due to lack of overall capacity at peak periods. If the applicant relies on signal strength data (whether network recorded or through drive tests) to demonstrate a lack of coverage or inadequate quality/capacity the applicant must disclose all Meeting Packet Page 213 of 301 7 underlying data, its thresholds for acceptable quality in such fashion that all claims and conclusions are independently verifiable. The Town strongly encourages all applicants to use methods consistent with the FCC rules governing provider reports and mapping data in 47 C.F.R. Part 1, Subpart V (§§ 1.7000 – 1.7010). “Alternative tower structure” means man-made trees, clock towers, bell steeples, light poles and similar alternative-design mounting structures that camouflage or conceal the presence of antennas or towers. “Adjacent properties or properties adjacent” shall mean (i) those lots or parcels of land that abut another lot or parcel of land or public right-of-way that is contiguous to a wireless facility site or proposed site and (ii) the lots or parcels of land or public right-of-way that would be contiguous to lots or parcels or public rights-of-way but for an intervening local or collector roadway. “Aesthetic or aesthetics” refers to subjective or objective determinations related to whether and if so, how well a facility will fit within the character of the area where the facility is proposed. This requires a broad range of factors including but not limited to visual effects and impact on property values. The Town will consider aesthetics for all applications and, where not prohibited by federal or state law, reserves the ability to impose careful placement conditions or restrictions. “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. an apparatus designed for the purpose of emitting radiofrequency (RF) radiation, to be operated or operating from a fixed location pursuant to FCC authorization, for the provision of personal wireless service and any commingled information services. This definition does not apply to antennas designed for amateur radio use or satellite dishes for residential or household purposes. “Antenna equipment” means equipment, switches, wiring, cabling, power sources, shelters or cabinets associated with an Antenna, located at the same fixed location as the Antenna, and, when Co-located on a PWSF Structure, is mounted or installed at the same time as such Antenna. Meeting Packet Page 214 of 301 8 “Antenna facility” means Antenna and associated Antenna Equipment. “Antenna” means an apparatus designed for emitting radiofrequency (RF) radiation to be operated or operating from a fixed location for personal wireless service. ANTENNA Similar definition in Section 17.02 An apparatus designed for emitting radiofrequency (RF) radiation to be operated or operating from a fixed location for personal wireless service. ANTENNA-An apparatus designed for the purpose of emitting radiofrequency (RF) radiation, to be operated or operating from a fixed location pursuant to Federal Communication Commission authorization, for the provision of Personal Wireless Services and any commingled information services. For purposes of this definition, the term Antenna does not include an unintentional radiator, mobile station, or device authorized under 47 CFR Part 15 (Radio Frequency Devices). ANTENNA EQUIPMENT Equipment, switches, wiring, cabling, power sources, shelters or cabinets associated with an Antenna, located at the same fixed location as the Antenna, and, when Co-located on a PWSF Structure, is mounted or installed at the same time as such Antenna. ANTENNA FACILITY Antenna and associated Antenna Equipment. "Applicant" means any individual, corporation, limited liability company, general partnership, limited partnership, estate, trust, joint-stock company, association of two or more persons having a joint common interest, or any other entity submitting an application for a wireless communication facility permit, site plan approval, building permit, and/or any other related approval, for the installation, operation and/or maintaining of one or more wireless communication facilities. “Applicant” means any individual, corporation, limited liability company, general partnership, limited partnership, estate, trust, joint-stock company, association of two or more persons having a joint common interest, or any other entity submitting an application for a special use Meeting Packet Page 215 of 301 9 permit, site plan approval, variance, building permit, and/or any other related approval, for the installation, operation and/or maintaining of one or more personal wireless service facilities. "Application" shall mean all necessary and required documentation, information, and evidence that an applicant must submit to receive a wireless communications facility permit, building permit, or other Town approval for personal wireless service facilities from the Town. “Application” refers to all necessary and required documentation and evidence that an applicant must submit to receive a special use permit, building permit, or other approval for personal wireless service facilities from the Town. “Backhaul network” means the lines that connect a provider’s towers/cell sites to one (1) or more cellular telephone switching offices, and/or long distance providers, or the public switched telephone network. “Balloon test” means the raising of a balloon (or placement of a “crank up” tower, crane or temporary structure) equal to the height of a proposed personal wireless services facility tower for a period of 4 hours on a pre-determined date and time prior to approval of a wireless facility permit application to assess the visual impact of a proposed tower. “Base station” means for purposes of eligible facilities requests the definition in the FCC’s regulations at 47 CFR § 1.6100 shall apply. A structure or equipment at a fixed location that enables FCC-licensed or authorized wireless communications between user equipment and a communications network. The term does not encompass a tower or any equipment associated with a tower. BASE STATION Shall have the definition in the FCC’s regulations at 47 CFR § 1.6100. “Board of Adjustment” means the Board of Adjustment of the Town of Fountain Hills, established pursuant to Sec. 1.07 of the Zoning Ordinance with membership, powers, duties, and responsibilities as set forth in Article 2A-2 of the Town Code. Carriers. See Wireless Carriers. Meeting Packet Page 216 of 301 10 “Camouflage” is defined as the use of materials incorporated into the communications tower design that give communications towers the appearance of tree branches and bark coatings, church steeples and crosses, sign structures, lighting structures, or other similar structures. “Cell tower” means a free-standing, guy-wired, or otherwise supported pole, tower, or other structure designed to support or employed to support equipment and/or antennas used to provide personal wireless services, including, but not limited to, a pole, monopole, monopine, slim stick, lattice tower or other types of standing structures. “CEQ” means the Council on Environmental Quality, as established under NEPA. "Collocate, colocate" or "collocation, colocation" can have different meanings depending on context. 1. When and where A.R.S. §§ 9-951 — 9-600 apply, the definition in A.R.S. §§ 9-951.8 shall also apply. That definition currently states: "Collocate" or "collocation" means to install, mount, maintain, modify, operate or replace wireless facilities on, within or adjacent to a wireless support structure or utility pole. 2. Where and when the FCC’s general rules for placement, construction and modification of personal wireless facilities apply, the definition in 47 C.F.R. § 1.6002(g) shall also apply. That definition currently states: Collocation, consistent with § 1.1320(d) and the Nationwide Programmatic Agreement (NPA) for the Collocation of Wireless Antennas, appendix B of this part, section I.B, means— (1) Mounting or installing an antenna facility on a pre-existing structure; and/or (2) Modifying a structure for the purpose of mounting or installing an antenna facility on that structure. (3) The definition of “collocation” in § 1.6100(b)(2) applies to the term as used in that section. 3. Where and when the FCC’s rules for wireless facility modifications apply, the definition in 47 C.F.R. § 1.6100(b)(2) shall also apply. That definition currently states: Meeting Packet Page 217 of 301 11 (2) Collocation. The mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signals for communications purposes. “Complete application, completed application” means an application that contains all the necessary and required information, records, evidence, reports, and/or data necessary to enable an informed decision to be made with respect to an application. Where any information is provided pursuant to the terms of this Chapter and the Development Services Director, Town Engineer or the Town’s expert or consultant, or the Council determines, based upon information provided, that any additional, further, or clarifying information is needed as to one or more aspects, then the application will be deemed incomplete until that further or clarifying information is provided to the satisfaction of the Development Services Director, Town Engineer, Town Council or the Town’s expert or consultant of the Council. “Complex” means the entire site or facility, including all structures and equipment, located at the site. CEQ Council on Environmental Quality, Review and compliance, meeting or exceeding requirements of the Council on Environmental Quality “The Council on Environmental Quality derives its authority from the National Environmental Policy Act of 1969 (42 U.S.C. § 4342) and implements regulations at 40 C.F.R. §§ 1500–1508.” “Council or Town Council” means the Town Council of the Town of Fountain Hills. “Colocation, co-location, and/or co-locate means to install, mount or add new or additional equipment to be used for the provision of personal wireless services to a pre-existing structure, facility, or complex which is already built and is currently being used to provide personal wireless services by a different provider of such services, wireless carrier or site developer. CO-LOCATION and/or CO-LOCATE The mounting or installation of an Antenna Facility on a pre-existing PWSF Structure, or the modification of a PWSF Structure for the purpose of mounting or installing an Antenna Facility on that PWSF Structure. Meeting Packet Page 218 of 301 12 “DBM” (dBm) stands for decibel milliwatts, which is a concrete measurement of the wireless signal strength of wireless networks. Signal strengths are recorded in negative numbers It expresses power relative to 1 milliwatt (mW) on a logarithmic scale. Emissions are measured using positive whole or fractional numbers. Received signal strengths are typically recorded in negative numbers because they are usually weaker than 1 milliwatt, and can range from approximately -30 dBm to -110 dBm. The closer the number is to 0, the stronger the cell signal. FCC, HHS and OSHA regulate safe exposure thresholds but transmitter power (in dBm) is crucial to determining exposure, as it is the starting point for calculating current exposure limits. dBm (decibel-milliwatts) is a unit of power used in radio, microwave, and fiber optic communication systems. It expresses power relative to 1 milliwatt (mW) on a logarithmic scale. FCC and OSHA regulate safe exposure thresholds, not device power directly—but transmitter power (in dBm) is crucial to determining exposure “Deployment” means the placement, construction, or substantial modification of a personal wireless service facility. “Development Services Director” (or “Director): T” means the person appointed by the Town Manager to be the Development Services Director. If there is no such person designated by the Town Manager, the Town Manager is the Development Services Director. “Distributed antenna system, DAS” means a network of spatially separated antenna nodes connected to a common source via a transport medium that provides personal wireless service within a geographic area. “Effective prohibition” means a finding by the Town Council that if an application seeking approval for a specific new Personal Wireless Service Facility at a specific location, and a specific height, were to be denied, such denial would either: (a) prevent an identified Wireless Carrier from providing personal wireless services within a specific geographic area, or areas, within the Town, or (b) would prevent a specific Wireless Carrier from constructing a sufficient number of such facilities necessary to enable it to provide Personal Wireless Services within the Town. An effective prohibition shall not be found to exist if a Wireless Carrier has Adequate Coverage in a specified geographic area , such that its end-use customers can use their cellular telephones to connect to landlines using the Carrier’s Personal Wireless Services; however, the frequencies are not the “most preferred” frequencies of the Carrier. Meeting Packet Page 219 of 301 13 An effective prohibition shall also not be found to exist if an applicant fails to establish before the Town Council that any existing geographic gap or capacity deficiency in the specific Wireless Carrier’s coverage cannot be remedied through a less intrusive means than what is being proposed, including, but not limited to, potential installations on alternative less intrusive sites, a shorter tower or facility, the incorporation of a more stealthy design, etc. A finding of Effective Prohibition, or lack thereof, shall be based upon an applicant’s submission of sufficient probative, relevant, and sufficiently reliable evidence and the appropriate weight the Town Council deems appropriate to afford. EFFECTIVE PROHIBITION- Denial by the Town of a PWSF approval or permit for a Personal Wireless Service Facility that is the Least Intrusive Means of remedying a significant gap in Personal Wireless Service coverage (the ability of wireless telephones to make and receive voice calls to and from land-lines that are connected to the national telephone network). “Eleventh hour submissions” means an applicant’s submission of new and/or additional materials in support of an application less than five (5) business days before the expiration of an applicable shot clock or at an otherwise unreasonably short period of time before the expiration of the shot clock, making it impracticable for the Town Council to adequately review and consider such submissions due to their complexity, volume, or other factors, before the expiration of the shot clock. “Eligible facilities request” means a request that meets the requirements in 47 CFR § 1.6100 for modification of an existing Tower or Base Station that does not substantially change the physical dimensions of such Tower or Base Station and involving: (a) Co-location of new transmission equipment, (b) Removal of transmission equipment, or (c) Replacement of transmission equipment. “Enure” means to operate or take effect. To serve to a person or party's use, benefit, or advantage. “EPA” means the United States Environmental Protection Agency. Meeting Packet Page 220 of 301 14 EPA United States Environmental Protection Agency. Review and compliance, meeting or exceeding requirements of the EPA regulations “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. “FAA” means the Federal Aviation Administration or its duly designated and authorized successor agency. FAA The Federal Aviation Administration or its duly designated and authorized successor agency. Review and compliance, meeting or exceeding requirements of the FAA “Facility” means a set of wireless transmitting and/or receiving equipment, including any associated electronics and electronics shelter or cabinet and generator. FACILITY A set of wireless transmitting and/or receiving equipment, including any associated electronics and electronics shelter or cabinet and generator. See Personal Wireless Service Facility or PWSF. “FCC” means the Federal Communications Commission. FCC Review and compliance, meeting or exceeding requirements of the The Federal Communications Commission. Sets limits on RF emissions for wireless and broadband devices (47 CFR §§ 1.1307– 1.1310) FDA Food and Drug Administration Review and compliance, meeting or exceeding requirements of the RF-emitting consumer devices (e.g., cell phones) for health impacts Meeting Packet Page 221 of 301 15 “General population/uncontrolled exposure limits” means the applicable radiofrequency radiation exposure limits set forth within 47 CFR §1.1310(e)(1), Table 1 Section (ii), made applicable pursuant to 47 CFR §1.1310(e)(3). “HHS” means U.S. Department of Health and Human Services or its constituent agencies, including FDA Food and Drug Administration, charged with review and compliance, meeting or exceeding requirements of the RF-emitting consumer devices (e.g., electronic products such as cell phones) for health impacts. “Height” means, when referring to a tower or other structure, the vertical distance measured from the natural grade level to the highest point of the structure directly above the natural grade when such structure is not located in a platted subdivision. If the structure is located in a platted subdivision, the height shall be the vertical distance measured from the finished grade as shown on the subdivision grading plans or finished grade as shown on the individual lot’s grading plans (whichever is lower), to the highest point of the structure directly above the finished grade. In the event that terrain problems prevent an accurate determination of height, the Zoning Administrator shall rule as to height and appeal from that decision shall be to the Board of Adjustment. “Height” means, when referring to a tower, personal wireless service facility, or personal wireless service facility structure, the height shall mean the distance measured from the pre- existing grade level to the highest point on the tower, facility, or structure, including, but not limited to, any accessory, fitting, fitment, extension, addition, add-on, antenna, whip antenna, lightning rod or other types of lightning-protection devices attached to the top of the structure. The distance measured from the pre-existing grade level to the highest point of a Personal Wireless Service Facility. “Historic Structure” means any structure that is either on the National Register of Historic Places or is eligible for inclusion in the national register, irrespective of whether or not an application for inclusion onto the national register has been filed or not filed. Review and compliance, meeting or exceeding requirements of National Register of Historic Places “Illegally excessive RF radiation or illegally excessive radiation” means RF radiation emissions at levels that exceed the legally permissible limits set forth within 47 CFR §1.1310(e)(1), Table 1 Sections (i) and (ii), as made applicable pursuant to 47 CFR §1.1310(e)(3). Meeting Packet Page 222 of 301 16 “In-kind call testing” means testing designed to measure the gap in Personal Wireless Service coverage asserted by an applicant. In-Kind Call Testing for a claimed gap in Personal Wireless Services in buildings means call testing performed in buildings to establish the existence or absence of such a gap, unless the applicant provides an affidavit sworn under penalties of perjury demonstrating good faith but unsuccessful attempts to secure access to buildings to conduct such testing. In-Kind Call Testing for a claimed gap in Personal Wireless Services in vehicles or in the open air means call testing performed in vehicles or in the open to establish the existence or absence of such a gap. “In-kind replacement” means the replacement of a malfunctioning component(s) with a properly functioning component of substantially the same weight, dimensions, and outward appearance. LAST-MINUTE SUBMISSIONS An applicant’s submission of new and/or additional materials in support of an application within 48 hours of the expiration of an applicable Shot Clock Period, or at an otherwise unreasonably short period of time before the expiration of the Shot Clock Period, making it impracticable for the Planning Board, Director of Planning or Director of Code Enforcement to adequately review and consider such submissions due to their complexity, volume, or other factors, before the expiration of the Shot Clock Period. “Least intrusive” means the location and design of a personal wireless service facility that would remedy a significant gap in Personal Wireless Service coverage and (1) does the least disservice to the objectives stated in § 270-219A(2), and (2) deviates as little as possible from (a) the preferential order of location in subsection K (Priority of siting locations) and (b) applicable design standards in subsection L. “Macrocell” means a cellular base station that typically sends and receives radio signals from large towers and antennas. These include traditionally recognized cell towers, typically ranging from 50 to 199 feet in height. “Maintenance or routine maintenance” means plumbing, electrical or mechanical work that may require a building permit but that does not constitute a modification to the personal wireless service facility. It is work necessary to assure that a wireless facility and/or telecommunications structure exists and operates reliably and in a safe manner, presents no Meeting Packet Page 223 of 301 17 threat to persons or property, and remains compliant with the provisions of this chapter and FCC requirements. “Monopole” means a wireless support structure that is not more than forty inches in diameter at the ground level and that has all of the wireless facilities mounted on the pole or contained inside of the pole. Monopoles are typically unguyed. “Necessary, or necessity, or need” means what is technologically required for the equipment to function as designed by the manufacturer and anything less will result in prohibiting the provision of service as intended and described in the narrative of the application. “Necessary” or “need” does not mean what may be desired, preferred, or the most cost-efficient approach and is not related to an applicant’s specific chosen design standards or unspecified “coverage objectives.” Any situation involving a choice between or among alternatives or options is not a need or a necessity. “NEPA” means the National Environmental Policy Act, 42 U.S.C. §4321, et seq. 8 NEPA regulations and compliance. Review and compliance, meeting or exceeding requirements of NEPA “NHPA” means the National Historic Preservation Act, 54 U.S.C. 300101 et seq, and 36 CFR Part 800, et seq. Review and compliance, meeting or exceeding requirements of NHPA NIOSH National Institute for Occupational Safety and Health OSHA sets enforceable limits, NIOSH provides science-based guidance through RELs (Recommended Exposure Limits) Risk assessments Hazard evaluations Review and compliance, meeting or exceeding requirements of OSHA “Node, DAS node” means a fixed antenna and related equipment installation that operates as part of a system of spatially separated antennas, all of which are connected through a medium through which they work collectively to provide personal wireless services, as opposed to other types of personal wireless facilities, such as macrocells, which operate independently. Meeting Packet Page 224 of 301 18 “Node” means a fixed antenna and antenna equipment installation that operates as part of a system of spatially separated Antennas, all of which are connected through a medium through which they work collectively to provide personal wireless services using hand-off capabilities. A 4G (LTE) node is referred to as an ENode B, and a 5G node is referred to as a GNode B. Some sites incorporate both 4G and 5G. Some 5G capable sites still rely on a 4G network core. “Notice address” means an address, which is required to be provided by an applicant at the time it submits an application, at which the Town, Town Council, and/or Development Services Director or Town Engineer designee can mail notice, and the mailing of any notice to such address by first-class mail shall constitute sufficient notice to any and all applicants, co- applicants, and/or their attorneys, to satisfy any notice requirements under this Chapter, as well as any notice requirements of any other local, state and/or federal law. “Notice of incompleteness, notice of incomplete application” means a written notice, sent by electronic mail , to an applicant seeking approval for the installation of a PWSF, wherein the sender advises the applicant that its application is either incomplete, the wrong type of application, or is otherwise defective, and setting for the reason or reasons why the application is incomplete and/or defective. “Notice of effective prohibition conditions” means a written notice, which is required to be provided to the Town at the time of the filing of any application by all applicants seeking any approval, of any type, for the siting, installation, and/or construction of a PWSF, wherein the respective applicant asserts, claims or intends to assert or claim, that a denial of their respective application, by any agent, employee, board or body of the Town, would constitute an “effective prohibition ” within the meaning of the TCA, and concomitantly, that a denial of their respective application or request would violate Section 47 U.S.C. §332(c)(7)(B)(i)(II) of the TCA. “Occupational/controlled exposure limits” means the applicable radiofrequency radiation exposure limits set forth within 47 CFR §1.1310(e)(1), Table 1 Section (i), made applicable pursuant to 47 CFR §1.1310(e)(2). OSHA requirements and compliance Review and compliance, meeting or exceeding requirements of the Occupational Safety and Health Act Meeting Packet Page 225 of 301 19 "Permit" means written permission required by an authority to install, mount, maintain, modify, operate or replace a utility pole or monopole, to collocate a wireless facility on a utility pole or wireless support structure or to collocate wireless facilities on a monopole. “Permittee” means a holder of a Personal Wireless Service Facility Permit. “Personal wireless service/personal wireless services” means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services, within the meaning of 47 U.S.C. §332(c)(7)(c)(i), and as defined therein. “Personal wireless service facility, personal wireless services facility or PWSF” means a facility or facilities used for the provision of personal wireless services, within the meaning of 47 U.S.C. §332(c)(7)(c)(ii). It means a specific location at which a structure that is designed or intended to be used to house or accommodate antennas or other transmitting or receiving equipment is located. This includes, without limitation, towers of all types and all kinds of support structures, including but not limited to buildings, church steeples, silos, water towers, signs, utility poles, or any other structure that is used or is proposed to be used as a telecommunications structure for the placement, installation and/or attachment of antennas or the functional equivalent of such. It expressly includes all related facilities and equipment such as cabling, radios and other electronic equipment, equipment shelters and enclosures, cabinets, and other structures enabling the complex to provide personal wireless services. The permit granted by the Director of Code Enforcement pursuant to which an applicant is allowed to construct and use a Personal Wireless Service Facility. PERSONAL WIRELESS SERVICE FACILITY or PWSF An Antenna Facility and a PWSF Structure, or any components thereof, used for the provision of Personal Wireless Service, whether such Personal Wireless Service is provided on a stand-alone basis or commingled with other wireless communications services. PWSF STRUCTURE A pole, Tower, Base Station, or other building, whether or not it has an existing Antenna Facility, that is used or to be used for the provision of Personal Wireless Service (whether on its own or comingled with other types of services). PWSF Structure also includes the on-site fencing, equipment, switches, Meeting Packet Page 226 of 301 20 wiring, cabling, power sources, shelters, and cabinets associated with that PWSF Structure but not installed as part of an Antenna. “Pre-existing towers and pre-existing antennas” means any tower or antenna for which a building permit has been properly issued prior to the effective date of the ordinance codified in this chapter, including permitted towers or antennas that have not yet been constructed so long as such approval is current and not expired. "Private easement" means an easement or other real property right that is only for the benefit of the grantor and grantee and the grantor's or grantee's successors and assigns. “Probative evidence” means evidence which tends to prove facts, and the more a piece of evidence or testimony proves a fact, the greater its probative value, as shall be determined by the Town Council or other decision making authority, as the finder-of-fact in determining whether to grant or deny applications under this provision of the Town Code. “Repairs” means the replacement or repair of any components of a wireless facility or complex where the replacement is substantially identical to the component or components being replaced, or for any matters that involve the normal repair and maintenance of a wireless facility or complex without the addition, removal, or change of any of the physical or visually discernible components or aspects of a wireless facility or complex that will impose new visible intrusions of the facility or complex as originally permitted. “RF” means radiofrequency. “RF radiation” means radiofrequency radiation. That being electromagnetic radiation, which is a combination of electric and magnetic fields that move through space as waves, and can include both Non-Ionizing radiation and Ionizing radiation. “School” means a public, charter, or private educational institution providing instruction for elementary and secondary grades as defined in A.R.S. § 15-101 and includes the real property and facilities used for such educational purpose. “School property” means any parcel containing a public, charter, or private educational institution providing instruction for elementary and secondary grades as defined in A.R.S. § 15- 101 and includes associated playgrounds, athletic fields, administrative buildings, parking areas, and other school-related facilities. Meeting Packet Page 227 of 301 21 “Section 106 Review” means a review under Section 106 of the National Historic Preservation Act. “Setback” means the distance between (a) any portion of a personal wireless facility and/or complex, including but not limited to any and all accessory facilities and/or structures, and (b) the exterior line of any parcel of real property or part thereof which is owned by, or leased by, an applicant seeking to construct or install a personal wireless facility upon such real property or portion thereof. In the event that an applicant leases only a portion of real property owned by a landlord, the setback shall be measured from the facility to the line of that portion of the real property that is actually leased by the applicant, as opposed to the exterior lot line of the non-leased portion of the property owned by the landlord. “Shot clock, Arizona” means the statutory timeframes within which the Town must review a wireless application for completeness of an application for wireless facilities in right-of-way pursuant to A.R.S. § 9-594.C.2 and act on a wireless application before it is otherwise deemed approved pursuant to A.R.S. § 9-594.C.2. For deemed approved purposes, the Arizona shot clock begins on the date when the Town determines the application is properly completed. For applications involving wireless facilities not in right-of-way the FCC shot clock will apply. Shot clock, FCC: the presumptively reasonable time frame within which the Town must act on a wireless application, as defined by the FCC, shown below subject to amendment from the FCC. The shot clock begins when the applicant takes the first procedural step that the Town requires. a. Aggregate of 60 days: 1) Standby emergency generators at previously permitted macro cell tower sites. 2) Collocation of small wireless facilities at existing small wireless facility sites. 3) Eligible Facilities Requests. b. Aggregate of 90 days: 1) New small wireless facilities. 2) Collocation applications for additions to existing communications facilities not defined as an eligible facilities request. Meeting Packet Page 228 of 301 22 c. Aggregate of 150 days: 1) All other applications, such as development of a new communication tower or facility. “Shot clock” means the applicable period, which is presumed to be a reasonable period within which the Town is generally required to issue a final decision upon an application approval for the installation or substantial modification of a personal wireless services facility or structure to comply with Section 47 U.S.C. §332(c)(7)(B)(ii) of the TCA. SHOT CLOCK PERIOD- The sum of the number of days specified by federal regulation as the presumptively reasonable time for the Town to act on the relevant Personal Wireless Services Facility application type, plus the number of days of any applicable Tolling period, per 47 CFR § 1.6003. “SHPO” means the Arizona State Historic Preservation Office. “Site developer or site developers” means individuals and/or entities engaged in the business of constructing wireless facilities and wireless facility infrastructure and leasing space and/or capacity upon, or use of, their facilities and/or infrastructure to wireless carriers. Unlike wireless carriers, site developers generally do not provide personal wireless services to end-use consumers. “Small cell” means a fixed cellular base station that sends and receives radio signals and is typically mounted upon poles or support structures at substantially lower elevations than macrocell facilities. “Small wireless facility” means a personal wireless service facility that meets all of the following criteria (a) The facility does not extend the height of an existing structure to a total cumulative height of more than fifty (50) feet from ground level to the top of the structure, and any equipment affixed thereto ; (b) Each antenna associated with the deployment is no more than three (3) cubic feet in volume; Meeting Packet Page 229 of 301 23 (c) All wireless equipment associated with the facility, including any pre-existing equipment and any proposed new equipment, cumulatively total no more than twenty-eight (28) cubic feet in volume; (d) The facility is not located on tribal land; and (e) The facility will not result in human exposure to radiofrequency radiation in excess of the applicable FCC safety standards set forth within Table 1 of 47 CFR §1.1310(E)(1). SMALL WIRELESS FACILITY A personal wireless service facility that meets all of the following criteria The facility does not extend the height of an existing structure to a total cumulative height of more than fifty (50) feet from ground level to the top of the structure, and any equipment affixed thereto; Each antenna associated with the deployment is no more than three (3) cubic feet in volume; All wireless equipment associated with the facility, including any pre-existing equipment and any proposed new equipment, cumulatively total no more than twenty-eight (28) cubic feet in volume; The facility is not located on tribal land; and The facility will not result in human exposure to radiofrequency radiation in excess of the applicable FCC safety standards set forth within Table 1 of 47 CFR §1.1310(E)(1). SMALL WIRELESS FACILITY STRUCTURE-A PWSF Structure for a Small Wireless Facility. "Small wireless facility" can have different meanings depending on context. 1. When and where A.R.S §§ 9-591 – 9-599 applies, the definition in A.R.S §§ 9-591.19 shall also apply. That definition 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. Meeting Packet Page 230 of 301 24 (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: () An electric meter. () Concealment elements. () A telecommunications demarcation box. () Grounding equipment. () A power transfer switch. () A cutoff switch. () Vertical cable runs for the connection of power and other services 2. Where and when the FCC’s general rules for placement, construction and modification of personal wireless service facilities apply, the definition in 47 CFR §1.6002(l) shall apply. That definition states as follows: (a) Small wireless facilities are facilities that meet each of the following conditions: (i) The facilities— . Are mounted on structures 50 feet or less in height including their antennas as defined in § 1.1320(d); or . Are mounted on structures no more than 10 percent taller than other adjacent structures; or . Do not extend existing structures on which they are located to a height of more than 50 feet or by more than 10 percent, whichever is greater; (ii) Each antenna associated with the deployment, excluding associated antenna equipment (as defined in the definition of “antenna” in § 1.1320(d)), is no more than three cubic feet in volume; (iii) All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume; Meeting Packet Page 231 of 301 25 (iv) The facilities do not require antenna structure registration under part 17 of this chapter; (v) The facilities are not located on Tribal lands, as defined under 36 CFR 800.16(x); and (vi) The facilities do not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in § 1.1307(b). "Special taxing district" means a special district formed pursuant to title ARS 48, chapter 11, 12, 17, 18, 19, 20 or 22. “Special Use Permit” means the official document or permit granted by the Town Council pursuant to which an applicant is allowed to file for and obtain a building permit to construct and use a personal wireless services facility, personal wireless service equipment, and/or any associated structures and/or equipment which are used to house, or be a part of, any such facility or complex, or to be used to provide personal wireless services. “State” means the State of Arizona. “Stealth or stealth technology” means a design or treatment that minimizes adverse aesthetic and visual impacts on the land, property, buildings, and other facilities adjacent to, surrounding, and generally in the same area as the requested location of such personal wireless service facilities. This shall mean building the least visually and physically intrusive facility and complex under the facts and circumstances. “Structure” means a pole, tower, base station, or other building, physical support of any form used for, or to be used for, the provision of personal wireless service. “Substantial evidence” means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It means less than a preponderance but more than a scintilla of evidence. “TCA” means the Telecommunications Act of 1996, 47 U.S.C. §332(c) Pub. L. No. 104-104, 110 Stat. 56 (1996), codified at various provisions of Title 47 U.S.C. “Tolling or tolled” means the pausing of the running of the time period permitted under the applicable shot clock for the respective type of application for a personal wireless services facility. Where a shot clock is tolled because an application has been deemed incomplete and timely notice of incompleteness was mailed to the applicant, the submission of additional Meeting Packet Page 232 of 301 26 materials by the applicant to complete the application will end the tolling, thus causing the shot clock period to resume running, as opposed to causing the shot clock to begin running anew. “Tower” means any structure that is designed and constructed primarily for the purpose of supporting one (1) or more antennas for telephone, radio and similar communication purposes, including self-supporting lattice towers, guyed towers, or monopole towers. The term includes radio and television transmission towers, microwave towers, common-carrier towers, cellular telephone towers, alternative tower structures, and the like. The term also includes the structure and any support thereto a mast, pole, monopole, slim stick, guyed tower, lattice tower, freestanding tower, or other structure designed to support or employed to support antennas and other equipment, including but not limited to dishes, transceivers and arrays used to provide personal wireless services and wireless communications services. A ground- or building-mounted mast greater than ten feet tall and six inches in diameter supporting one or more antennas, dishes, arrays, etc. shall be considered a communications tower. TOWER, Commented Any structure designed primarily to support one or more antennas and/or equipment used or designed for receiving and/or transmitting a wireless signal. A structure built for the sole or primary purpose of supporting FCC-licensed or authorized Antennas. The term Tower also includes the on-site fencing, equipment, switches, wiring, cabling, power sources, shelters, and cabinets associated with that Tower but not installed as part of an Antenna. “Tower, telecommunications tower” means any structure designed primarily to support one or more antennas and/or equipment used or designed for receiving and/or transmitting a wireless signal. “Town” means the Town of Fountain Hills. “Town code” means the Town Code of the Town of Fountain Hills. “Undertaking” means any application seeking Town approval for the installation of a personal wireless services facility licensed under the authority of the FCC shall constitute an undertaking within the meaning of NEPA, in accord with 42 CFR §137.289 and 36 CFR §800.16. Meeting Packet Page 233 of 301 27 “Utility” means Arizona (under ARS § 40-360.51 (5)): A public utility includes corporations or persons engaged in furnishing water, gas, electricity, telephone service, or sewage disposal to the public for compensation. “Utility service antennas” means antenna placed on or near utility boxes, poles, switches, storage tanks, etc., and used by a utility provider to facilitate the operation of the utility system. “Wireless carriers or carrier” means companies that provide Personal Wireless Services to end- use consumers. “Wireless communication” means the transmission of voice or data without cable or wires. “Wireless communication facility” means wireless communication facilities including, but not limited to, facilities that transmit and/or receive electromagnetic signals for cellular radio telephone service, personal communications services, enhanced specialized mobile services, paging systems, and related technologies. Such facilities also include antennas, microwave dishes, parabolic antennas, and all other types of equipment used in the transmission or reception of such signals; telecommunication towers or similar structures supporting said equipment; associated equipment cabinets and/or buildings; and all other accessory development used for the provision of personal wireless services. These facilities do not include radio and television broadcast towers and government-operated public safety networks. “Zoning ordinance” means the Zoning Ordinance of the Town of Fountain Hills, as codified in Chapter 1, Sec. 1.01 of the Zoning Ordinance. 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 Meeting Packet Page 234 of 301 28 the entire lot shall control, even though the antennas or towers may be located on leased parcels within such lot. 3. Aesthetics. Towers and antennas shall meet the following requirements: a. Towers shall, subject to any applicable standards of the FAA, be painted a neutral color so as to reduce visual obtrusiveness. b. At a tower site, the design of the buildings and related structures shall, to the extent possible, use materials, colors, textures, screening, and landscaping that will blend them into the natural setting and surrounding buildings. c. If an antenna is installed on a structure other than a tower, the antenna and supporting electrical and mechanical equipment must be of a neutral color that is identical to, or closely compatible with, the color of the supporting structure so as to make the antenna and related equipment as visually unobtrusive as possible. d. The choice of design for installing a new wireless communication facility or the substantial modification of an existing wireless communication facility shall be chosen to minimize the potential adverse impacts that the new or expanded facility may, or is likely to, inflict upon nearby properties. Stealth designs Concealment elements such as mono-palms or flagpoles should be utilized to camouflage the pole and antennas. e. Accessory Structures. Unless approved by the Town Council, all equipment associated with a wireless communication tower is to be located below grade in a vault. If above grade accessory structures are approved by the Town Council, they shall comply with the following requirements. i. Accessory structures shall maximize the use of building materials, colors, and textures designed to blend with the natural surroundings. The use of camouflage specified concealment elements for communications towers may be required by the Council to blend the communications tower and/or its accessory structures further into the natural surroundings using specified concealment elements. “Camouflage” is defined as the use of materials incorporated into the communications tower design that give communications towers the appearance of tree branches and bark coatings, church steeples and crosses, sign structures, lighting structures, or other similar structures. Meeting Packet Page 235 of 301 29 ii. Accessory structures shall be designed to be architecturally similar, compatible with each other, and shall be no more than 12 feet high. The buildings shall be used only for housing equipment related to the particular site. Whenever possible, the buildings shall be joined or clustered so as to appear as one (1) building. iii. No portion of any telecommunications tower or accessory structure shall be used for a sign or other advertising purpose, including but not limited to the company name, phone numbers, banners, and streamers, except the following. A sign of no greater than 2 square feet indicating the name of the facility owner(s) and a twenty-four (24) hour emergency telephone shall be posted adjacent to any entry gate. In addition, “no trespassing” or other warning signs may be posted on the fence. All signs shall conform to the sign requirements of the Town. f. Towers must be placed to minimize visual impacts. Applicants shall place towers on the side slope of the terrain so that, as much as possible, the top of the tower does not protrude over the ridgeline, as seen from public ways. g. Existing Vegetation. Existing vegetation shall be preserved to the maximum extent possible. No cutting of trees shall take place on a site connected with an application made under this chapter prior to the approval of the application. h. Screening. i. Tree plantings may be required to screen portions of the telecommunications tower and accessory structures from nearby residential property as well as from public sites known to include important views or vistas. The standard buffer shall consist of a landscaped strip at least 4 feet wide outside the perimeter of the compound. Additional palm trees may be required to accompany towers which use a palm tree stealth design. ii. Where a site adjoins a residential property or public property, including streets, screening suitable in type, size and quantity shall be required by the Town Council. iii. The applicant shall demonstrate to the approving board that adequate measures have been taken to screen and abate noise emanating from on-site equipment, including but not limited to heating and ventilating units, air conditioners, and emergency power generators. Telecommunications towers shall Meeting Packet Page 236 of 301 30 comply with all applicable sections of this chapter as it pertains to noise control and abatement. i. Utility Services Antennas. i. If placed on another utility structure such as a water tower, the antenna shall be painted to blend with the building or equipment it is placed on. ii. If a separate tower structure is used, the design shall comply with the provisions in this section. 4. Lighting. Towers shall not be artificially lighted, unless required by the FAA or other applicable authority. If lighting is required, the lighting alternatives and design chosen must cause the least disturbance to the surrounding views and, to the degree possible while complying with FAA requirements, meet the standards set in Zoning Ordinance Chapter 8, Outdoor Lighting Control. 5. Measurement. For purposes of measurement, tower setbacks and separation distances shall be calculated and applied to facilities located in the Town of Fountain Hills irrespective of municipal and county jurisdictional boundaries. 6. Not Essential Services. Towers and antennas shall be regulated and permitted pursuant to this chapter and shall not be regulated or permitted as essential services, public utilities, or private utilities. 7. Franchises. Owners and/or operators of towers or antennas shall certify that all franchises required by law for the construction and/or operation of a wireless communication system in the Town of Fountain Hills have been obtained and shall file a copy of all required franchises with the Community Development Director. 8. Signs. No signs other than those required by law shall be allowed on an antenna or tower. 9. Co-location and Multiple Antenna/Tower Plan. The Town of Fountain Hills encourages tower and antenna users to submit a single application for approval of multiple towers and/or antenna sites and to submit applications, which utilize co-location with an existing wireless telecommunications provider. Applications for approval of multiple sites or for co- location with an existing provider shall be given priority in the review process. Meeting Packet Page 237 of 301 31 10. Security fencing. Towers PWSF shall be enclosed by security fencing not less than 6 feet in height and no more than 8 feet in height, shall be constructed of a block or masonry, and shall be equipped with an appropriate anti-climbing device; provided, however, that the Town Council may waive such requirements, as it deems appropriate. 11. Noise. Submission of applications for towers and associated equipment placed above grade, including backup generators or power supplies, shall include noise and acoustical information, prepared by a qualified firm or individual, for the base transceiver station(s), equipment buildings, and associated equipment such as air conditioning units and backup generators. The Town may require the applicant to incorporate appropriate noise baffling materials and/or strategies to avoid any ambient noise from equipment reasonably likely to exceed the applicable noise regulations contained in Section 11-1-7 of the Town Code. 12. Any information of an engineering nature that the applicant submits, whether civil, mechanical, or electrical, shall be certified by an Arizona licensed professional engineer. 13. Application approval issued under this chapter shall be conditioned upon verification by the Town Engineer or designee that such tower structure is structurally sound. Such verification shall be received by the applicant prior to submission. 14. Access and Parking. Areas sufficient for access to the tower and equipment location and for temporary off-street parking of at least two vehicles shall be provided. The type and configuration of the access and parking shall be subject to the standards set forth in Zoning Ordinance Chapter 7, Parking and Loading Requirements. B. Minimum Setbacks and Separations. 1. Setbacks From Property Lines. Except for utility service antennas, the following setback requirements shall apply to all towers; provided, however, that the Town Council may reasonably reduce the standard setback requirements if the goals of this chapter would be better served thereby: a. Towers must be set back a distance equal to at least one hundred twenty fifty percent (100120150%) of the height of the tower from any adjoining lot line; provided, however, that the setback distance shall be increased as required to comply with the separation distances from residential uses in accordance with Table 1 set forth below. Meeting Packet Page 238 of 301 32 b. Accessory buildings must satisfy the minimum zoning district setback requirements. 2. Separations From Adjacent Uses. Except for utility service antennas, the following separation requirements shall apply to all towers and antennas; provided, however, that the Town Council may reasonably reduce the standard separation requirements if the goals of this chapter would be better served thereby. a. Separation From Residential Uses. i. Tower separation shall be measured from the base of the tower to the lot line of the residential uses. ii. Separation requirements for towers shall comply with the minimum standards established in Table 1 be 500 feet from any residentially zoned or used land including mixed-use. Table 1. Separation Requirements From Offsite Uses/Areas Off-Site Use/Designated Area Separation Distance Single-family or duplex residential buildings Residentially zoned or used land1, 2, 200 feet or 300% of tower height, whichever is greater 500 feet3 Vacant single-family or duplex residentially zoned land which is either platted or has preliminary plat approval which is not expired2 200 feet or 300% of tower height, whichever is greater2 Vacant unplatted residentially zoned lands3 100 feet or 100% of tower height, whichever is greater Existing multifamily residential units greater than duplex units Nonresidentially zoned lands or nonresidential uses None, only setbacks apply 1 Includes modular homes and mobile homes used for living purposes. Separation measured from base of tower to the closest building wall. Meeting Packet Page 239 of 301 33 2 If vacant residential property, Sseparation 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.The Town Council may reduce the standard separation requirements to 300’ if, through information and data presented, the Council determines the goals of this chapter would be better served thereby. b. Separation Distances Between Towers. Separation distances between towers shall be applicable for and measured between the proposed tower and pre-existing towers. The separation distances shall be measured by drawing or following a straight line between the base of the existing tower and the proposed base, pursuant to a site plan, of the proposed tower. The separation distances (listed in linear feet) shall be as shown in Table 2. Table 2. Separation Distances Between Towers Monopole 65 ft. in height or greater Monopole less than 65 ft. in height but greater than 40 ft. in height Monopole less than 40 ft. in height Monopole 65 ft. in height or greater 2,000 feet 1,500 feet 1,000 feet Monopole less than 65 ft. in height but greater than 40 ft. in height 1,500 feet 1,500 feet 1,000 feet Monopole less than 40 ft. in height 1,000 feet 1,000 feet 750 feet C. Buildings or Other Equipment Storage. 1. Antennas Mounted on Structures or Rooftops. The equipment cabinet or structure used in association with antennas shall comply with the following: a. Unless approved otherwise by the Town Council for good cause shown, but located in an underground vault. Meeting Packet Page 240 of 301 34 b. If located above ground: i. The cabinet or structure shall not contain more than 120 square feet of gross floor area or be more than 8 feet in height and shall be located on the ground. bii. 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, unless otherwise approved by the Town Council in an underground vault. If approved to be above ground, then in accordance with the following: a. In residential districts, the equipment cabinet or structure may be located: i. In a required front yard or required street side yard, provided the cabinet structure is no greater than 3.5 feet in height and 20 square feet of gross floor area and the cabinet/structure is located a minimum of 3 feet from all lot lines. The cabinet/structure shall be screened by sight obscuring landscaping which obscures at least ninety-five percent (95%) of the structure at planting and throughout the duration of the cabinet or structure’s existence with an ultimate height not to exceed forty-two (42) inches. ii. In a required rear yard, provided the cabinet or structure is no greater than 5 feet in height or 120 square feet in gross floor area. The cabinet/structure shall be screened by sight obscuring landscaping which obscures at least ninety-five percent (95%) of the structure at planting and throughout the duration of the cabinet or structure’s existence with an ultimate height of 6 feet. iii. The entry or access side of a cabinet or structure shall be gated by a solid, sight- obscuring gate that is separate from the cabinet or structure. b. In commercial or industrial districts the equipment cabinet or structure shall be no greater than 14 feet in height or 300 square feet in gross floor area. The structure or cabinet shall be screened by sight-obscuring landscaping with an ultimate height of 16 feet and a planted height of at least 6 feet. The entry or access side of a cabinet or Meeting Packet Page 241 of 301 35 structure shall be gated by a solid, sight-obscuring gate that is separate from the cabinet or structure. Such access way shall not face residentially zoned property. 3. Modification of Building Size Requirements. In the case of wireless facilities considered by the Town Council, the requirements of subsections (C)(1) and (C)(2) of this section may be modified by the Town Council to address site specific conditions and requirements. D. Co-location. 1. Any new telecommunications tower shall be designed to accommodate future shared use by other communications providers. Design considerations shall include sufficient area for additional ground equipment, structural design of the tower, and sufficient electrical power available for the load of at least two (2) additional wireless service providers. 2. Good Faith. Applicants and permittees shall cooperate and exercise good faith in co- locating wireless telecommunications facilities on the same support structures or site, if the Town so requests. Good faith shall include sharing technical information to evaluate the feasibility of co-location, and may include negotiations for erection of a replacement support structure to accommodate co-location. A competitive conflict to co-location or financial burden caused by sharing such information normally will not be considered as an excuse to comply with this section. 3. Third Party Technical Review. In the event a dispute arises as to whether a permittee has exercised good faith in accommodating other users, the Town may require the applicant to obtain a third-party technical study at the applicant’s expense. The Town may review any information submitted by the applicant and permittee(s) in determining whether good faith has been exercised. 4. Exceptions. No co-location may be required where the shared use would or does result in significant interference in the broadcast or reception capabilities of the existing wireless telecommunications facilities or failure of the existing wireless telecommunications facilities to meet federal standards for emissions. 5. Violation; penalty. Failure to comply with co-location requirements when feasible may result in denial of a permit request or revocation of an existing permit. (24-08, Amended, 09/04/2024, Deleted and replaced) Meeting Packet Page 242 of 301 36 Section 17.04 Application Types A. Administrative. The following types of applications are processed administratively by staff: 1. Applications to change or modify an existing administratively approved wireless communication facility that remains in compliance with all chapter requirements. 2. Applications to change or modify an existing wireless communication facility approved through public review; provided, that the modification will not: a. Increase the approved height of the supporting structure by more than ten percent (10%) or 20 feet, whichever is greater; b. Cause the original approved number of antennas to be exceeded by more than fifty percent (50%); c. Increase the original approved square footage of accessory buildings by more than 200 square feet; d. Add new, additional, or larger microwave antenna dishes; e. Expand the footprint of said support structure; or f. Potentially cause significant adverse impacts on the existing support structure or the surrounding area. 3. Applications for co-location of additional antenna for an additional service provider on an existing administratively approved tower that remains in compliance with all chapter requirements. 4. Applications for co-location of additional antenna for an additional service provider on an existing tower approved through public review; provided, that the modification will not: a. Increase the approved height of the supporting structure by more than ten percent (10%) or 20 feet, whichever is greater; b. Cause the original approved number of antennas to be exceeded by more than fifty percent (50%); Meeting Packet Page 243 of 301 37 c. Increase the original approved square footage of accessory buildings by more than 200 square feet; d. Add new, additional, or larger microwave antenna dishes; e. Expand the footprint of said support structure; or f. Potentially cause significant adverse impacts on the existing support structure or the surrounding area. 5. Applications for new utility service antenna that comply with the height and setback requirements of the zoning district in which they are located. 6. Applications for mobile or temporary wireless facilities for more than seven (7) consecutive days. 7. Applications for new towers in the following locations: a. Town property with the tower located at least 300 feet from a residential zoning boundary. b. On commercial, industrial, utility, or lodging zoned property and located at least 300 feet from a residential zoning boundary. c. Alternative tower structures when such structures and their accompanying equipment are appropriately blended into the surrounding terrain, are within the height limitations of the underlying zoning district and are at least 300 feet from a residential zoning boundary. B. Public Review. 1. Any new tower or modification to existing towers or antennas that do not meet the requirements in subsection (A) of this section for administrative review shall require review and approval as provided in subsection 17.05 (C)(2). 2. Any new tower not meeting the setback or separation requirements in Section 17.03(B). Meeting Packet Page 244 of 301 38 Section 17.05 Application Submittal, Review, and Processing A. General. Unless waived in writing by Zoning Administrator, Tthe following provisions shall govern the review of all wireless communication facility applications: 1. Complete Application. Applications for wireless communication facilities shall be filed electronically on the Town’s website by an owner of real property and shall contain the area proposed for the wireless communication facility using the process established by the Director for such applications. All such applications shall include the information required in this section. Applications filed on behalf of the property owner by a third party shall include a statement from the property owner authorizing the submittal of the application. 2. Applications shall include documentation of compliance with items listed in Section 17.03(A) as applicable to the application submitted. 3. Inventory of Existing Sites. Each applicant for a new tower or co-location of new antenna on an existing tower shall provide to the Development Services Director an inventory of its existing towers, antennas, or sites approved for towers or antennas, that are either within the jurisdiction of the Town of Fountain Hills or within one (1) mile of the border thereof, including specific information about the location, height, and design of each tower. Each applicant shall also provide a one (1) year build-out plan for all other wireless communications facilities within the Town. The Development Services Director may share such information with other applicants applying for administrative approvals or special use permits under this chapter or with other organizations seeking to locate antennas within the jurisdiction of Town of Fountain Hills; provided, however, that the Development Services Director is not, by sharing such information, in any way representing or warranting that such sites are available or suitable. 4. Utility Service Antennas. a. If the antenna complies with the height requirements of the underlying zoning district, the plans for the antenna will be reviewed and approved with the overall site development plans if the site is being developed concurrently. If the antenna is being added to an existing utility site, the plans will be reviewed and processed consistent with the requirements of subsection (C)(2) of this section. Meeting Packet Page 245 of 301 39 b. If the antenna does not comply with the height requirements of the underlying zoning district, the plans for the antenna will be reviewed and processed consistent with the requirements of subsection (C)(3) of this section. 5. A list of the full names and contact information for all applicants, co- applicants, facility owner(s), facility operator(s), site developer(s), and wireless carrier(s), property owner(s) and other related third parties and their agent(s), if any, on whose behalf the application is being submitted. 56. Proof of Authorization for Site Occupancy. Where an applicant is not the owner of the real property upon which it seeks to install its equipment or facility, it shall submit proof of authorization to occupy the site at issue. If the applicant is leasing all or a portion of real property upon which it intends to install its facility or equipment, then the applicant shall provide a written copy of its lease with the owner of such property. The applicant may redact any financial terms contained within the lease, but it shall not redact any portion of the lease which details the amount of area leased nor the specific portion of the real property to which the applicant has obtained the right to occupy, access, or preclude others from entering. Where an applicant seeks to Co-Locate new equipment into an existing facility, it shall provide a copy of its written co-location agreement with the owner of such pre-existing facility, from which it may redact any financial terms. 7. Fire Safety: The applicant shall submit a Fire Safety Plan that includes a general description of the personal wireless services facility for purposes of ensuring the Fire Department is fully informed and prepared in case of a fire. The Fire Safety Plan shall include: a. Location of all Fire Safety Plan documents. b. Location of the facility’s alarm panel. c. List of emergency contacts. d. Specific responsibilities assigned to designated personnel. e. Location of signal-processing equipment. Meeting Packet Page 246 of 301 40 f. Location and listing of types of power equipment, including rectifiers, inverters, distribution cabinets, bus bars, cables, and communications raceways. g. Listing and location of batteries, including description of quantities and types of batteries, specifying whether batteries are lithium-ion, nickel cadmium, sodium-nickel, valve-regulated lead acid, and/or vented, and description of any associated exhaust ventilation system(s). h. Description of actions to detect and prevent thermal runaway events. i. Description of whether the facility will be located in a lightning-prone area. If the facility is to be located in a lightning-prone area, description of how the facility shall comply with NFPA 780 Standard for the Installation of Lightning Protection Systems; j. Description of location and types of fuses used to ensure that if the wireless transmission facility experiences overcurrent resulting from current exceeding the rating of equipment or the ampacity of a conductor, the facility shall turn off temporarily. k. Depowering procedures including identification of locations of electrical depowering devices, which include: (a) Coded floor prints located in the Fire Safety Plan document; (b) Facility signage to direct fire personnel to depowering locations; (c) The method of turning off power to the following: i. Alternating current power board. This is the primary source of electric power for a telecommunications facility and is supplied by the local power company. ii. Standby power generator. This unit, usually a turbine or diesel generator, provides standby ac power that is transferred manually or automatically whenever a loss of ac power is experienced. iii. Direct current primary disconnect fuse or circuit breaker bay. This unit distributes dc power to the secondary fuse or circuit breaker panels throughout Meeting Packet Page 247 of 301 41 the central office. The secondary fuse or circuit breaker panels feed all the operating voltages to the central office branch circuits. iv. Uninterruptible power supply (UPS) v. HVAC systems serving the facility vi. Alternative energy devices, such as wind turbines, fuel cells, photovoltaic systems, or other devices providing power to the facility. l. Detailed electrical designs, signed and stamped by a licensed electrical engineer, demonstrating compliance with the Building, Electric and Fire Code. The Code compliance demonstration shall include all necessary underlying calculations and inputs, including but not limited to: (a) A short circuit and coordination study (“SCCS”) calculated pursuant to the IEEE 551-2006: Recommended Practice for Calculating AC Short-Circuit Currents in Industrial and Commercial Power Systems or the latest version of that standard. The study must demonstrate the protection devices will ensure the equipment enclosure will not be breached. The SCCS must include analysis of Voltage Transient Surges due to contact of conductors of different voltages; (b) A one-line diagram of the electrical system; (c) Voltage Drop & Load Flow Study; (d) Load Calculation; (e) Panel Directories; 8. Soil Erosion and Sedimentation Control: A soil erosion and sedimentation control plan, prepared in accordance with the standards as established by the Town Engineering Division. 9. Engineer’s Report: For the construction of all new wireless facilities and to the extent not already mandated herein, the applicant shall provide a report prepared and certified by a professional engineer certifying the integrity and safety of all proposed new towers and/or structures and indicating the location, type, and height of the proposed personal wireless services facility, antenna capacity, on-site and abutting off-site land uses, means of access, setbacks from property lines, all applicable American National Standards Institute (ANSI) Meeting Packet Page 248 of 301 42 technical and structural codes. To the extent that an application proposes the co-location of new equipment onto an existing tower or personal wireless services facility, the applicant shall provide an engineer's report certifying that the proposed shared use will not diminish the structural integrity and safety of the existing structure and explaining what modifications, if any, will be required in order to certify above. 10. Visual Impact Analysis. The applicant shall provide a completed visual impact analysis that shall include the following: a. A “Zone of Visibility Map” to determine locations from where the new facility will be seen. b. A visual impact analysis which shall include photographic images taken from the perspectives of the properties situated in closest proximity to the location being proposed for the siting of the facility, as well as those properties which would reasonably be expected to sustain the most significant adverse aesthetic impacts due to such factors as their close proximity to the site, their elevation relative to the site, the existence or absence of a “clear line of sight” between the tower location and their location. The photographic images shall depict the height at which the proposed facility shall stand when completed, including all portions and proposed attachments to the facility, including, but not limited to, the main support structure, all antennas, transmitters, whip antennas, lightning rods, t-bars, crossbars, and cantilever attachments which shall, in whole or in part, be affixed to it, any and all surrounding equipment compound(s), fencing, cellular equipment cabinets, transformers, transformer vaults and/or cabinets, sector distribution boxes, ice bridges, backup generators, including but not limited to equipment boxes, switch boxes, backup generators, ice bridges, etc., to the extent that any of such compound and/ or equipment will be visible from properties other than the property upon which the proposed tower and compound are to be installed. The photographic images shall show the maximum silhouette, viewshed analysis, color and finish palette, and proposed screening and landscaping. The analysis shall include the results of the drone/balloon test, and other information as necessary to determine visual impact of the facility. The analysis shall include a map depicting where the photos were taken. Where consistent with the natural or built environment, the analysis shall include a Meeting Packet Page 249 of 301 43 native vegetation landscaping plan with a visual simulation of how the chosen plants, at maturity, will screen the site. 11. For proposed towers and facilities taller than 100 feet, the applicant shall perform a balloon test and shall publish reasonably advanced public notice of the same to enable the Reviewing Authority, property owners, and the community an opportunity to assess the actual adverse aesthetic impact which the proposed facility is likely to inflict upon the nearby properties and surrounding community. Said date and time will be established by the Development Services Director in coordination with the applicant, including an alternative date in case of inclement weather. If a balloon is used, the diameter shall be equal to the largest antenna or dish proposed for the CRS tower or the width of the tower, whichever is larger. The applicant will be responsible for publishing a public notice of the balloon test in at least one local newspaper publication and notifying abutters owning property within one thousand (1,000) feet radius, via U.S. Mail at least one week prior to the test. 12. If the application is for a facility that will not be attached to an existing utility pole and the facility’s proposed height will be greater than 30 feet then structural elevations of the facility(ies) shall include any trees and other structures within twenty (20’) feet, and their height. 613. Environmental Assessment Form. A completed environmental assessment form (EAF) and a completed visual EAF addendum if required by ADEQ. 714. FCC Compliance Report. An FCC compliance report, prepared by a licensed engineer, and certified under penalties of perjury, that the content thereof is true and accurate, wherein the licensed engineer shall certify that the proposed facility will be FCC compliant as of the time of its installation, meaning that the facility will not expose members of the general public to radiation levels that exceed the permissible radiation limits which the FCC has set. If it is anticipated that more than one carrier and/or user is to install transmitters into the facility, the FCC compliance report shall take into account anticipated exposure from all users on the facility and shall indicate whether or not the combined exposure levels will or Meeting Packet Page 250 of 301 44 will not exceed the permissible General Population Exposure Limits, or alternatively, the occupational Exposure Limits, where applicable. Such FCC Compliance Report shall provide the calculation or calculations with which the engineer determined the levels of RF radiation and/or emissions to which the facility will expose members of the general public. On the cover page of the report, the report shall explicitly specify: (a) Whether the applicant and their engineer are claiming that the applicable FCC limits based upon which they are claiming FCC compliance are the General Population Exposure Limits or the Occupational Exposure Limits. If the applicant and/or their engineer are asserting that the Occupational Exposure Limits apply to the proposed installation, they shall detail a factual basis as to why they claim that the higher set of limits is applicable, (b) The exact minimum distance factor, measured in feet, which the applicant’s engineer used to calculate the level of radiation emissions to which the proposed facility will expose members of the general public. The minimum distance factor is the closest distance (i.e., the minimum distance) to which a member of the general public shall be able to gain access to the transmitting antennas mounted upon, or which shall be a part of, the proposed facility. 815. FCC License. A copy of any applicable Federal Communications Commission license possessed by any carrier named as an applicant, co-applicant, or whose equipment is proposed for installation as of the time the application is being filed with the Town. 916. Effective Prohibition Claims. a. The Town is aware that applicants seeking approvals for the installation of new wireless Facilities often assert that federal law, and more specifically the TCA, prohibits the local government from denying their respective applications. In doing so, they assert that their desired facility is “necessary” to remedy one or more significant gaps in a carrier’s personal wireless service, and they proffer computer- generated propagation maps to establish the existence of such purported gaps. The Town is additionally aware that, in August 2020December 2018, driven by a concern that propagation maps created and submitted to the FCC by wireless carriers were inaccurate, the FCC caused its staff to perform actual drive tests, wherein the FCC staff performed 24,649 tests, driving nearly ten thousand (10,000) miles through nine Meeting Packet Page 251 of 301 45 (9)twelve (12) states, with an additional 5,916 stationary tests conducted at 42 locations situated in nine (9) states. At the conclusion of such testing, the FCC Staff determined that the accuracy of the propagation maps submitted to the FCC by the wireless carriers had ranged from as little as 16.2% accuracy to a maximum of 64.3% accuracy. As a result, the FCC Staff recommended that the FCC no longer accept propagation maps from wireless carriers without supporting drive test data to establish their accuracy. A copy of the FCC Staff’s 66-page report is made a part of this Chapter as Appendix 1. The Town considers it of critical import that applicants provide truthful, accurate, complete, and sufficiently reliable data to enable the Town Council to render determinations upon applications for new wireless facilities consistent with this Chapter’s requirements and the TCA’s statutory requirements. Consistent with same, if, at the time of filing an application under this Chapter, an applicant intends to assert before the Town Council or the Town that: (a) an identified wireless carrier suffers from a significant gap in its personal wireless services within the Town, (b) that the applicant’s proposed installation is the least intrusive means of remedying such gap in services, and/or (c) that under the circumstances pertaining to the application, a denial of the application by the Town Council would constitute an “effective prohibition” under Section 47 U.S.C. §332 the TCA, then, at the time of filing such application, the applicant shall be required to file a written statement which shall be entitled: “Notice of Effective Prohibition Conditions” If an applicant files a Notice of Effective Prohibition Conditions, then the applicant shall be required to submit Probative Evidence to enable the Town Council to reasonably determine: i. Whether or not the conditions alleged by the respective applicant exist, ii. Whether there exists a significant gap or gaps in an identified wireless carrier’s personal wireless services within the Town, Meeting Packet Page 252 of 301 46 iii. The geographic locations of any such gaps, and iv. The geographic boundaries of such gaps, to enable the Town Council to determine whether granting the respective application would be consistent with the requirements of this Chapter and the legislative intent behind same, and whether or not Federal law would require the Town Council to grant the respective application, even if it would otherwise violate the Town Code, including, but not limited to, this Chapter. b. The additional materials which the applicant shall then be required to provide shall include the following: i. Drive Test Data and Maps. If, and to the extent that an applicant claims that a specific wireless carrier suffers from a significant gap in its personal wireless services within the Town, the applicant shall conduct or cause to be conducted a drive test within the specific geographic areas within which the applicant is claiming such gap or gaps exist, for each frequency at which the carrier provides personal wireless services. The applicant shall provide the Town and the Town Council with the actual drive test data recorded during such drive test, in a simple format which shall include, in table format: (a) The date and time for the test or tests, (b) The location, in longitude and latitude, of each point at which signal strength was recorded and (c) Each signal strength recorded, measured in DBM, for each frequency. Such data is to be provided in a separate table for each frequency at which the respective carrier provides personal wireless services to any of its end-use customers. (d). The applicant shall also submit drive test maps depicting the actual signal strengths recorded during the actual drive test for each frequency at which the carrier provides personal wireless services to its end-use customers. If an applicant claims that it needs a “minimum” signal strength (measured in DBM) to remedy its gap or gaps in service, then for each frequency, the applicant Meeting Packet Page 253 of 301 47 shall provide three (3) signal strength coverage maps reflecting actual signal strengths in three (3) DBM bins, the first being at the alleged minimum signal strength, and two (2) additional three (3) DBM bin maps depicting signal strengths immediately below the alleged minimum signal strength claimed to be required. By way of example, if the applicant claims that it needs a minimum signal strength of – 95 DBM to remedy its alleged gap in service, then the applicant shall provide maps depicting the geographic area where the gap is alleged to exist, showing the carrier’s coverage at – 95 to -98 DBM, -99 to -101 DBM, and - 102 to -104 DBM, for each frequency at which the carrier provides personal wireless services to its end-use customers. ii. Denial of Service and/or Dropped Call Records. If and to the extent that an applicant claims that a specific wireless carrier suffers from a capacity deficiency or a gap in service that renders the carrier incapable of providing adequate coverage of its personal wireless services within the Town, then the applicant shall provide dropped call records and denial of service records evidencing the number and percentage of calls within which the carrier’s customers were unable to initiate, maintain and conclude the use of the carrier’s personal wireless services without actual loss of service, or interruption of service. 1017. Estimate for Cost of Removal of Facility. At or prior to the filing of an application for a special use permit for the installation of a new personal wireless service facility, each respective applicant shall provide a written estimate for the cost of the decommissioning and removal of the facility, including all equipment that comprises any portion or part of the facility, compound and/or complex, as well as any accessory facility or structure, including the cost of the full restoration and reclamation of the site, to the extent practicable, to its condition before development in accord with the decommissioning and reclamation plan required herein. The Town Council’s Engineer shall review this estimate. A bond for the cost of removal as required in Sec. 17.06 A. 2. shall be filed prior to commencement of construction. 1118. Property Owner Consent & Liability Acknowledgement. A signed written consent from each owner of the subject real property upon which the respective applicant is seeking Meeting Packet Page 254 of 301 48 installation of its proposed personal wireless service facility, wherein the owner or owners both authorize the applicant to file and pursue its application and acknowledge the potential landowner’s responsibility, under Section 17.08 for engineering, legal and other consulting fees incurred by the Town. 51219. Applications Using Existing Towers. a. Dimensioned, to-scale drawings showing the existing and proposed antenna on the tower including the height of the tower and the antennas. b. The number and type of existing and proposed antennas. c. Engineering calculations documenting the structural changes and certifying the tower’s ability to carry the new antennas. d. Dimensioned, to-scale drawings illustrating modification of ground equipment, if any. 61320. Applications Using New Towers – Information Required. In addition to any information required for applications for special use permits pursuant to Chapter 2, Section 2.02, applicants for a new wireless facility shall submit the following information: a. A site plan as required in Section 2.04 plus zoning, General Plan classification of the site and all properties within the applicable separation distances set forth in Section 17.03(B)(1), adjacent roadways, proposed means of access, elevation drawings of the proposed tower and any other structures, photo simulations showing the tower in the proposed location from at least four (4) directions, and other information deemed by the Development Services Director to be necessary to assess compliance with this chapter. b. The setback distance between the proposed tower and the nearest residential unit and residentially zoned properties. Include an illustration of the fall zone for the tower. c. The separation distance from other towers described in the inventory of existing sites submitted pursuant to Section 17.03(B)(2) shall be shown on an updated site plan Meeting Packet Page 255 of 301 49 or map. The applicant shall also identify the type of construction of the existing tower(s) and the owner/operator of the existing tower(s), if known. d. Method of fencing, and finished color and, if applicable, the method of camouflage and illumination. e. A description of compliance with Sections 17.03(A)(3), 17.03(A)(4), 17.03(A)(5), 17.03(A)(7), 17.03(A)(8), 17.03(A)(9), 17.03(A)(10), 17.03(A)(11), 17.03(B), subsection (A)(3) of this section, Sections 17.06(A) and 17.06(B) and all applicable federal, state or local laws. f. A notarized statement by the applicant as to whether construction of the tower will accommodate collocation of additional antennas for future users. g. Identification of the entities providing the backhaul network for the tower(s) described in the application and other cellular sites owned or operated by the applicant in the municipality. h. A description of the suitability of the use of existing towers, other structures or alternative technology not requiring the use of towers or structures to provide the services to be provided through the use of the proposed new tower. Alternatives Analysis. An itemized list of alternative sites considered, with a comprehensive explanation of reasons alternative sites are not technologically feasible. Explanation shall include specific comparative analysis of how different sites would impact aesthetic values, and other environmental values. 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. 71420. Filing Fee. Payment of a filing fee in an amount established by a schedule adopted by resolution of the Council and filed in the offices of the Town Clerk. No part of the filing fee shall be returnable. Meeting Packet Page 256 of 301 50 B. Shot Clocks and Tolling. To comply with the requirements of Section 47 U.S.C. §332(c)(7)(B)(ii) of the TCA, the following shot clock periods set forth hereinbelow shall be presumed to be reasonable periods within which the Town shall render determinations upon applications for wireless communication facilities. The Town shall render determinations upon such applications within the periods set forth hereinbelow, unless the applicable shot clock period listed below is tolled, extended by agreement or the processing of the application is delayed due to circumstances beyond the Town’s control. 1. Application Shot Clocks. a. Receipt of Initial Application. Upon receipt of an application, the Development Services Director, or designee, shall review the application for completeness. If the Director determines the application is: (i) incomplete, (ii) missing required application materials, (iii) is the wrong type of application, or (iv) is otherwise defective, then, within ten (10) days for administrative applications and thirty (30) days for public hearing applications of the Town’s receipt of the application, the Director, or their designee, shall notify the applicant of the finding and state what is needed to have a complete application. The notice of incompleteness shall toll the shot clock, which shall not thereafter resume running unless and until the applicant tenders an additional submission to the Director to remedy the issues identified in the notice of incomplete application. The submission of any responsive materials by the applicant shall automatically cause the shot clock period to resume running. If upon receipt of any additional materials from the applicant, the Director determines that the application is still incomplete and/or defective, then the Director shall, once again notify the applicant within ten (10) days for administrative applications and thirty (30) days for public hearing applications of the applicant having filed its supplemental or corrected materials to the Town and the shot clock shall once again be tolled, and the same procedure provided for hereinabove shall be repeated. If Applicant does not cure the stated deficiencies within 30 days, the application shall be considered withdrawn or closed. Meeting Packet Page 257 of 301 51 b. Application Review. The shot clock for administrative applications which do not involve new towers is ninety (90) days. The shot clock for administrative applications with new towers, monopoles, utility poles and other wireless facilities that trigger public review applications is one hundred fifty (150) days. 2. Shot Clock Tolls, Extensions and Reasonable Delay Periods. Consistent with the letter and intent of Section 47 U.S.C. §332(c)(7)(B)(ii) of the TCA, each of the shot clock periods set forth within subsection (B) of this section shall generally be presumed to be sufficient periods within which the Town shall render decisions upon applications. Notwithstanding the same, the applicable shot clock periods may be tolled, extended by mutual agreement between any applicant and/or its representative and the Town, and the Town shall not be required to render its determination within the shot clock period presumed to be reasonable for each type of application, where the processing of such application is reasonably delayed, as described hereinbelow. a. Tolling of the Applicable Shot Clock Due to Incompleteness and/or Applicant Error. As provided for within subsection (B)(1) of this section, in the event that the Development Services Director deems an application incomplete, the Director shall send a notice of incompleteness to the applicant to notify the applicant that its application is incomplete and/or contains material errors, and shall reasonably identify the missing information and/or documents and/or the error(s) in the application. If the Director sends a notice of incompleteness as described hereinabove, the applicable shot clock shall automatically be tolled, meaning that the applicable shot clock period within which the Town is required to render a final decision upon the application shall immediately cease running, and shall not resume running, unless and until the Town receives a responsive submission from the applicant. If and when the applicant thereafter submits additional information in an effort to complete its application, or cure any identified defect(s), then the shot clock shall automatically resume running, but shall not be deemed to start running anew. The applicable shot clock period shall, once again, be tolled if the Director thereafter provides a second notice that the application is still incomplete or defective, despite any Meeting Packet Page 258 of 301 52 additional submissions which have been received by the Town, from the applicant, up to that point. b. Shot Clock Extension by Mutual Agreement. The Town shall be free to extend any applicable shot clock period by mutual agreement with any respective applicant. This discretion on the part of the Town shall include the Town’s authority to request, at any time, and for any period of time the Town may deem reasonable or appropriate under the circumstances, consent from a respective applicant to extend the applicable shot clock period to enable the Town, the applicant, or any relevant third party, to complete any type of undertaking or task related to the review, analysis, processing, and determination of the particular application, which is then pending before the Town, to the extent that any such undertaking, task, or review is consistent with, or reasonably related to, compliance with any federal, state, or local law and/or the requirements of any provision of the Town Code, including but not limited to this chapter. In response to any request by the Town, the applicant, by its principal, agent, attorney, site acquisition agent, or other authorized representative, can consent to any extension of any applicable shot clock by affirmatively indicating its consent either in writing or by affirmatively indicating its consent on the record at any public hearing or public meeting. The Town shall be permitted to reasonably rely upon a representative of the applicant indicating that they are authorized to grant such consent on behalf of the respective applicant, on whose behalf they have been addressing the Town within the review process. c. Reasonable Delay Extensions of Shot Clock Periods. The Town recognizes that there may be situations wherein, due to circumstances beyond the control of the Town and/or the Town Council, the review and issuance of a final decision upon an application for a wireless communication facility cannot reasonably be completed within the application shot clock periods delineated within subsection (B) of this section. If, despite the exercise of due diligence by the Town, the determination regarding a specific application cannot reasonably be completed within the applicable shot clock period, the Town shall be permitted to continue and complete its review and issue its determination at a date beyond the expiration of the applicable period, if the delay of such final decision is due to circumstances including, but not limited to, those Meeting Packet Page 259 of 301 53 enumerated hereinbelow, each of which shall serve as a reasonable basis for a reasonable delay of the applicable shot clock period. i. In the event that the rendering of a final decision upon an application under this chapter is delayed due to natural and/or unnatural events and/or forces which are not within the control of the Town, such as the unavoidable delays experienced in government processes due to the COVID 19 pandemic, and/or mandatory compliance with any related federal or state government orders issued in relation thereto, such delays shall constitute reasonable delays which shall be recognized as acceptable grounds for extending the period for review and the rendering of final determinations beyond the period allotted under the applicable shot clock. ii. In the event that applicant tenders eleventh-hour submissions to the Town in the form of (a) expert reports, (b) expert materials, and/or (c) materials which require a significant period for review due either to their complexity or the sheer volume of materials which an applicant has chosen to provide to the Town at such late point in the proceedings, the Town shall be afforded a reasonable time to review such late- submitted materials. If reasonably necessary, the Town shall be permitted to retain the services of an expert consultant to review any late-submitted expert reports which were provided to the Town, even if such review or services extend beyond the applicable shot clock period, so long as the Town completes such review and retains and secures such expert services within a reasonable period of time thereafter and otherwise acts with reasonable diligence in completing its review and rendering its final decision. C. Review and Processing of Applications. 1. Conformity to the following shall be considered in review of all applications: a. The application is consistent with the objectives of this chapter. b. The height of the proposed tower. c. The adequacy of the proposed site, considering such factors as the sufficiency of the size of the site to comply with the established criteria, the configuration of the site, and the extent to which the site is formed by logical boundaries (e.g., topography, natural Meeting Packet Page 260 of 301 54 features, streets, relationship of adjacent uses, etc.) that provide for the ability to comply with the provisions of this chapter. d. The extent to which the proposal responds to the impact of the proposed development on adjacent land uses, especially in terms of visual impact. e. The extent to which the proposed telecommunications facility is camouflaged (i.e., use of stealth technology) uses concealment elements. 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. h. Whether the proposed installation will inflict a significant adverse impact upon the property values of properties that are located adjacent to, or in close proximity to, the proposed site or properties that are otherwise situated in a manner that would cause the proposed installation to inflict a significant adverse impact upon their value. i. Whether the proposed installation will be incompatible with the use and/or character of properties located adjacent to or in close proximity to the proposed site or other properties situated in a manner that would cause the proposed installation to be incompatible with their respective use. j. Whether the proposed installation will be incompatible with and/or would have an adverse aesthetic impact upon or detract from the use and enjoyment of, and/or character of, recognized aesthetic assets of the Town, including, but not limited to, scenic areas and/or scenic ridgelines, scenic areas, public parks, and/or any other traditionally or historically recognized valuable scenic assets of the Town. k. Whether the proposed installation shall have a sufficient fall zone and/or safe zone around the facility to afford the general public safety against the potential dangers of structural failure, icefall, debris fall, and fire. l. Whether the applicant has mitigated the potential adverse impacts of the proposed facility to the greatest extent reasonably feasible. To determine mitigation efforts on the Meeting Packet Page 261 of 301 55 part of the applicant, the mere fact that a less intrusive site, location, or design would cause an applicant to incur additional expense is not a reasonable justification for an application to have failed to propose reasonable mitigation measures. 2. Review of Administrative Applications. a. Administrative applications will be reviewed by staff using the Town’s standard building permit review processes. b. Applications for new towers shall provide staff with the same information as required in subsection of this section for public review applications. cb. Applications for mobile or temporary wireless facilities which remain in place for more than seven (7) consecutive days must submit a request for a temporary use permit as provided in Section 2.03. 3. Review and Processing of Public Review Applications. a. Applications which require public review and approval on private property will be processed as special use permits and follow the requirements listed in Section 2.02 for special use permits. Applications on Town owned property will not require a special use permit but will follow the same requirements for notice for review by the Town Council. b. In addition to the factors listed in subsection (C)(1) of this section for review of applications, public review applications will also be subject to the standards for consideration of special use permit applications pursuant to Chapter 2, Section 2.02 of this chapter. Factual Determinations. To decide applications under this Section, the Town Council shall render factual determinations, which shall include two (2) specific types of factual determinations, as applicable. First, the Council shall render local zoning determinations according to Section i. hereinbelow. Then, if, and only if, an applicant asserts claims that a denial of its application would effectively prohibit an identified Wireless Carrier from providing Personal Wireless Services within the Town, or its proposed wireless facility or installation is necessary to Meeting Packet Page 262 of 301 56 remedy a significant gap in personal wireless services for an explicitly identified Wireless Carrier, and that its proposed installation is the least intrusive means of remedying a specifically identified significant gap or gaps. The Council shall then additionally render TCA determinations in accord with Section ii. herein below. The Council shall separately record each factual determination it makes in a written decision and shall reference, or make note of, the evidence-based upon which it rendered each of its factual determinations. Each factual determination made by the Council shall be based upon Substantial Evidence. For purposes of this provision, “Substantial Evidence” shall mean such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It means less than a preponderance but more than a scintilla of evidence. Evidence that the Council may consider shall include any evidence submitted in support of an application and any evidence submitted by anyone opposing a respective application, whether such evidence is in written or photographic form or whether it is in the form of testimony by any expert, or any person who has personal knowledge of the subject of their testimony. The Council may, of course, additionally consider as evidence any information or knowledge which they, themselves, personally possess and any documents, records, or other evidence which is a matter of public record, irrespective of whether such public record is a record of the Town, or is a record of or is maintained by, another federal, state and/or other governmental entity and/or agency which maintains records which are available for, or subject to, public review. The requirements for specific factual determinations set forth below are intended to enure to the benefit of the Town, its residents, and property owners, and not applicants. If, and to the extent that the Town Council fails to render one or more of such determinations, that omission shall not constitute grounds upon which the respective applicant can seek to annul, reverse or modify any decision of the Town Council. i Local Zoning Determination Meeting Packet Page 263 of 301 57 The Council shall make the following factual determinations as to whether the application meets the requirements for granting a special use permit under this Chapter. (a) Compliance with Section 2.02 Whether the proposed installation will meet each of the conditions and standards set forth within Section 2.02 in the absence of which the Town Council is not authorized to grant a special use permit. (b) Potential Adverse Aesthetic Impacts Whether the proposed installation will inflict a significant adverse aesthetic impact upon properties located adjacent to, or in close proximity to, the proposed site or any other properties situated in a manner that would sustain significant adverse aesthetic impacts by the installation of the proposed facility. (c) Potential Adverse Impacts Upon Real Estate Values Whether the proposed installation will inflict a significant adverse impact upon the property values of properties that are located adjacent to, or in close proximity to, the proposed site or properties that are otherwise situated in a manner that would cause the proposed installation to inflict a significant adverse impact upon their value. (d) Potential Adverse Impact Upon the Character of the Surrounding Community Whether the proposed installation will be incompatible with the use and/or character of properties located adjacent to or in close proximity to the proposed site or other properties situated in a manner that would cause the proposed installation to be incompatible with their respective use. (e) Potential Adverse Impacts Upon Historic Properties or Historic Districts Whether the proposed installation will be incompatible with and/or would have an adverse impact upon, or detract from the use and enjoyment of, and/or character of a historic property, historic site, and/or historic district, including, Meeting Packet Page 264 of 301 58 but not limited to, historic structures, properties and/or districts which are listed on, or are eligible for listing on, the National Register of Historic Places. (f) Potential Adverse Impacts Upon Ridgelines or Other Aesthetic Resources of the Town Whether the proposed installation will be incompatible with and/or would have an adverse aesthetic impact upon or detract from the use and enjoyment of, and/or character of, recognized aesthetic assets of the Town, including, but not limited to, scenic areas and/or scenic ridgelines, scenic areas, public parks, and/or any other traditionally or historically recognized valuable scenic assets of the Town. (g) Sufficient Fall Zones Whether the proposed installation shall have a sufficient fall zone and/or safe zone around the facility to afford the general public safety against the potential dangers of structural failure, icefall, debris fall, and fire. (h) Mitigation Whether the applicant has mitigated the potential adverse impacts of the proposed facility to the greatest extent reasonably feasible. To determine mitigation efforts on the part of the applicant, the mere fact that a less intrusive site, location, or design would cause an applicant to incur additional expense is not a reasonable justification for an application to have failed to propose reasonable mitigation measures. If, when applying the evidentiary standards set forth in Section 17.05 C. 3. b. i. hereinabove, the Town Council determines that the proposed facility would not meet the standards set forth within Section 2.02 or that the proposed facility would inflict one or more of the adverse impacts described hereinabove to such a substantial extent that granting the respective application would inflict upon the Town and/or its citizens and/or property owners the types of adverse impacts which this provision was enacted to prevent, the Town Council shall deny the respective application unless the Council additionally finds that a denial of the application Meeting Packet Page 265 of 301 59 would constitute an Effective Prohibition, as provided for in Sections 17.05 C. 3. b. ii. and iii immediately hereinbelow. ii. TCA Determinations In cases within which an applicant has filed a “Notice of Effective Prohibition Conditions,” the Town Council shall determine if a denial of the respective application would “Effectively Prohibit” a specifically identified Wireless Carrier from providing Personal Wireless Services within any geographic area or areas in the Town. More specifically, the Town Council shall determine whether a denial of the specific application would either: (i) prevent an identified Wireless Carrier from providing personal wireless services within a specific geographic area or areas within the Town or (ii) would prevent a specific Wireless Carrier from constructing a sufficient number of such facilities necessary to enable it to provide Personal Wireless Services within the Town. In determining whether a denial of any specific application would constitute an “Effective Prohibition,” the Town Council shall determine: (1) whether an applicant has established that an identified Wireless Carrier suffers from one or more significant gaps in its Personal Wireless Services, and (2) whether its proposed installation is the least intrusive means of remedying any such gap or gaps. (a) Significant Gap in Personal Wireless Services of an Identified Carrier The Town Council shall determine whether the applicant has established, based upon probative evidence provided by the applicant and/or its representative, that a specific Wireless Carrier suffers from a significant gap in its personal wireless services within the Town. In rendering such determination, the Council shall consider factors including, but not necessarily limited to: (1) Whether the identified Wireless Carrier, which is alleged to suffer from any significant gap in their personal wireless services, already provides Adequate Service in its Personal Wireless Services to its customers at any Meeting Packet Page 266 of 301 60 frequency being used by the carrier to provide personal wireless services to its end-use customers, (2) Whether any such alleged gap is relatively large or small in geographic size, (3) Whether the number of the carrier’s customers affected by the gap is relatively small or large, (4) Whether or not the location of the gap is situated on a lightly traveled road, or sparsely or densely occupied area, and/or (5) Overall, whether the gap is relatively insignificant or otherwise relatively de minimis. An Effective Prohibition shall not be found to exist under subparagraph (iii) hereinbelow if a Wireless Carrier has adequate coverage in any specified geographic area, such that its end-use customers can use their cellular telephones to connect to landlines using the Carrier’s Personal Wireless Services, but the frequency at which the customers are using such services is not the frequency most desired by the Carrier. (b) Least Intrusive Means of Remedying Gap(s) in Service The Town Council shall determine whether the applicant has established, based upon probative evidence provided by the applicant and/or its representative, that the installation of the proposed facility at the specific site proposed by the applicant and the specific portion of the site proposed by the applicant, and at the specific height proposed by the applicant, is the least intrusive means of remedying whatever significant gap or gaps which the applicant has contemporaneously proven to exist as determined by the Town Council based upon any evidence in support of, and/or in opposition to, the subject application. In rendering such determination, the Council shall consider factors including, but not necessarily limited to: (1) Whether the proposed site is the least intrusive location at which a facility to remedy an identified significant gap may be located, and the applicant has Meeting Packet Page 267 of 301 61 reasonably established a lack of potential alternative less intrusive sites and lack of sites available for co-location, (2) Whether the specific location on the proposed portion of the selected site is the least intrusive portion of the site for the proposed installation (3) Whether the height proposed for the facility is the minimum height actually necessary to remedy an established significant gap in service, (4) Whether or not a pre-existing structure can be used to camouflage the facility and/or its antennas, (5) Whether or not, as proposed, the installation mitigates adverse impacts to the greatest extent reasonably feasible through the employ of Stealth design, screening, use of color, noise mitigation measures, etc., and/or (6) Overall whether or not there is a feasible alternative to remedy the gap through alternative, less intrusive substitute installations. An Effective Prohibition shall also not be found to exist in subparagraph (iii) hereinbelow if an applicant fails to establish before the Town Council that any existing geographic gap or capacity deficiency in the specific Wireless Carrier’s coverage cannot be remedied through a less intrusive means than what is being proposed, including, but not limited to, potential installations on alternative less intrusive sites, a shorter tower or facility, the incorporation of a more stealthy design, etc. iii. Finding of Effective Prohibition or Lack of Effective Prohibition After considering the evidence presented before it, the Town Council shall determine whether or not a denial of the respective application would constitute an effective Prohibition. If the Town Council affirmatively determines that the applicant has failed to establish either: (i) that a denial of the application would prevent an identified Wireless Carrier from providing personal wireless services within a specific geographic area or areas within the Town or (ii) that a denial of the application would prevent a specific Wireless Carrier from constructing a sufficient number of such facilities necessary to Meeting Packet Page 268 of 301 62 enable it to provide Personal Wireless Services within the Town, then the Town Council shall find that a denial of the application does not constitute an Effective Prohibition. If the Town Council affirmatively determines that: (i) a denial of the application would prevent an identified Wireless Carrier from providing personal wireless services within a specific geographic area or areas within the Town, or (ii) that a denial of the application would prevent a specific Wireless Carrier from constructing a sufficient number of such facilities necessary to enable it to provide Personal Wireless Services within the Town, then the Town Council shall find that a denial of the application would constitute an Effective Prohibition, and the Town Council shall grant the subject application, irrespective of whether or not the granting of same would otherwise be inconsistent with any other provision of this Section §17.05 C. 3. b. Provided, the Town reserves the right to deny an application even if doing so leads to an effective prohibition to the extent allowed by the safe harbors contained in 47 U.S.C. §§ 253(b) and (c) and incorporated into 332(c)(7)(B)(i), based on the evidence of record. c. Availability of Suitable Existing Towers, Other Structures, or Alternative Technology. No new tower shall be permitted unless the applicant demonstrates to the reasonable satisfaction of the Town Council that no existing tower, structure or alternative technology that does not require the use of towers or structures can accommodate the applicant’s proposed antenna. An applicant shall submit information requested by the Town Council related to the availability of suitable existing towers, other structures or alternative technology. Evidence submitted to demonstrate that no existing tower, structure or alternative technology can accommodate the applicant’s proposed antenna may consist of any of the following: i. No existing towers or structures are located within the geographic area, which meet applicant’s reasonable engineering and personal wireless service related quality requirements. This evidence cannot be merely conclusory and must be supported by propagation maps that include the underlying analysis models, engineering reports speaking to the technical infeasibility, dropped call logs, and other data showing that a new tower is the only means of accommodating the proposed antenna. Meeting Packet Page 269 of 301 63 ii. Existing towers or structures are not of sufficient height to meet applicant’s engineering requirements. iii. Existing towers or structures do not have sufficient structural strength to support applicant’s proposed antenna and related equipment. iv. The applicant’s proposed antenna would cause electromagnetic interference with the antenna on the existing towers or structures, or the antenna on the existing towers or structures would cause interference with the applicant’s proposed antenna as certified by an RF engineer. v. The fees, costs, or contractual provisions required by the owner in order to share an existing tower or structure or to adapt an existing tower or structure for sharing are unreasonable. Costs exceeding new tower development are presumed to be unreasonable. vi. The applicant demonstrates that there are other limiting factors that render existing towers and structures unsuitable. vii. The applicant demonstrates that an alternative technology that does not require the use of towers or structures, such as a cable micro cell network using multiple low-powered transmitters/receivers attached to a wire line system, is unsuitable. Costs of alternative technology that exceed new tower or antenna development shall not be presumed to render the technology unsuitable. viii. If the applicant asserts a claim that a proposed facility is necessary to remedy one (1) or more existing significant gaps in an identified wireless carrier’s personal wireless services, the Council may require the applicant to provide drive-test generated coverage maps, as opposed to computer-generated coverage maps, for each frequency at which the carrier provides personal wireless services, to show signal strengths in bins of three (3) DBM each, to enable the Council to assess the existence of such significant gaps accurately, and/or whether the carrier possesses adequate coverage within the geographic area which is the subject of the respective application. Meeting Packet Page 270 of 301 64 d. Following approval by the Town Council, the applicant may apply for a building permit through the standard application process. Construction shall not commence prior to approval of the building permit. 4. Environmental Impacts If, and to the extent that, the Town Council determines a proposed installation bears the potential for a significant adverse impact upon the environment within the meaning of ADEQ and/or the NEPA, then the Council shall be expected to comply with the requirements of ADEQ in determining both: a. The extent of adverse impacts upon the environment and/or historic properties; and, b. What mitigation measures the applicant should be required to undertake to minimize the adverse environmental impacts and/or impacts upon historic sites, structure and/or districts. If a respective applicant fails to obtain a review from the ADEQ and/or NEPA and opinion letters from the ADEQ and the FCC pertaining to its proposed installation prior to a first public hearing before the Town Council for the respective application, then the Town Council may make direct requests to the ADEQ and the FCC for their review of the application. The Town Council may request the FCC’s review and input in completing the statutorily-required environmental impact analysis pursuant to ADEQ and NEPA. In addition, the Town Council shall comply with the statutory requirements of ADEQ to complete an ADEQ review, make determinations of significance, and, where appropriate, require the applicant to complete a draft environmental impact statement and, if additionally appropriate, to thereafter complete a final environmental impact statement and analysis. So long as the Town Council acts with reasonable diligence in completing its ADEQ and NEPA review, if compliance with the statutory requirements for environmental review requires a period of effort that extends beyond the expiration of the applicable shot clock period, the delays beyond such period shall be deemed reasonable. 5. Historic Site Impacts Meeting Packet Page 271 of 301 65 The Town Council shall consider the potential adverse impacts of any proposed facility upon any historic site, district, or structure consistent with the Town’s historic preservation law requirements and comprehensive plan and ADEQ. If, and to the extent that, the Town Council determines that a proposed installation bears the potential for a significant adverse impact on a historic site or a historic district within the meaning of ADEQ and/or the NHPA (especially if the historic site at issue is listed upon the National Register of historic places), then the Council shall comply with the requirements of both ADEQ and Town law in determining both: a. The extent of adverse impacts upon the historic properties, and b. What mitigation measure might the applicant be required to undertake to minimize the adverse environmental impacts and/or adverse impacts upon historic sites, structures and/or district. Should a respective applicant fail to obtain a SHPO and/or a Section 106 review under NHPA, and opinion letters from SHPO and the FCC pertaining to its proposed installation prior to a first public hearing before the Town Council for the respective application, then the Town Council shall make direct requests to SHPO and the FCC for their review of the application. They shall request SHPO and the FCC’s review and input in completing the statutorily-required environmental/historic impact analysis pursuant to ADEQ and NHPA. This request shall include, but not be limited to, a request to the FCC for a Section 106 review, as defined in this Chapter, as the Town recognizes each application for a special use permit for the installation of a personal wireless services facility shall constitute “an undertaking” for purposes of compliance with the National Historic Preservation Act. In addition, the Town Council shall comply with the statutory requirements of ADEQ to complete a SEQ ADEQ RA review, make determinations of significance, and, where appropriate, require the applicant to complete a draft environmental impact statement, and if additionally appropriate, to thereafter complete a final environmental impact statement and analysis. So long as the Town Council acts with reasonable diligence in completing its ADEQ and NHPA review, if compliance with the statutory requirements for historic preservation review Meeting Packet Page 272 of 301 66 requires a period of effort that extends beyond the expiration of the applicable shot clock period, the delays beyond such period shall be deemed reasonable. 6. Tribal Site Impacts The Town Council shall consider the potential adverse impacts of any proposed facility upon any tribal lands associated with the Fort McDowell Yavapai Nation and the Salt River Prima- Maricopa Indian Community near or within the general area of Fountain Hills, Arizona. If, and to the extent that, the Town Council determines that a proposed installation bears the potential for a significant adverse impact on such tribal lands, then the Council shall issue notice to tribal representatives and request tribal review of the application. 67. Force Majeure In the event that the rendering of a final decision upon an application under this Chapter is delayed due to natural and/or unnatural events and/or forces which are not within the control of the Town or the Town Council, such as the unavoidable delays experienced in government processes due to the COVID 19 pandemic, and/or mandatory compliance with any related federal or state government orders issued in relation thereto, such delays shall constitute reasonable delays which shall be recognized as acceptable grounds for extending the period for review and the rendering of final determinations beyond the period allotted under the applicable shot clock. 478. 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; Bond Required. 1. Any antenna or tower that is not operated for a continuous period of ninety (90) days shall be considereddeemed abandoned, and. Within ninety (90) days of receipt of notice from the Town of Fountain Hills notifying the owner of such abandonment, the owner of such antenna or tower shall completely remove the same and all related equipment and improvements and shall restore all affected areas to a condition compliant with all Meeting Packet Page 273 of 301 67 applicable laws, which includes without limitation the Codewithin 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. The Town shall have the right (but not the obligation) to perform such removal and restoration with or without notice. If there are two (2) or more users of a single tower, then this provision shall not become effective until all users cease using the tower for the prescribed period. 2. Upon receiving a special use permit approval from the Town Council and a building permit, prior to the commencement of installation and/or construction of such facility or any part thereof, the applicant shall file with the Town a bond for a length of no less than three (3) years in an amount equal to or exceeding the estimate of the cost of removal of the facility and all associated structures, fencing, power supply, and other appurtenances connected with the facility. The bond must be provided within thirty (30) days of the approval date and before any installation or construction begins. Replacement bonds must be provided ninety (90) days prior to the expiration of any previous bond. At any time the Town has good cause to question the sufficiency of the bond at the end of any three-year (3) period, the owner and/or operator of the facility, upon request by the Town, shall provide an updated estimate and bond in the appropriate amount. Failure to keep the bonds in effect is cause for the removal of the facility at the owner's expense. Each facility will require a separate bond, regardless of the number of owners or location. B. State or Federal Requirements. 1. Compliance with state and 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 Meeting Packet Page 274 of 301 68 federal agency. Failure to bring towers and antennas into compliance with such revised standards and regulations shall constitute grounds for the removal of the tower or antenna at the owner’s expense. 2. Prohibition against illegally excessive emissions and RF testing. As disclosed on the FCC’s public internet website, personal wireless services facilities erected at any height under 200 feet are not required to be registered with the FCC. Of even greater potential concern to the Town is the fact that the FCC does not enforce the RF radiation limits codified within the CFR by either: (a) testing the actual radiation emissions of wireless Facilities either at the time of their installation or at any time thereafter, or (b) requiring their owners to test them. See relevant excerpts from the FCC’s public internet website annexed as Appendix 2. This means that when wireless Facilities are constructed and operated within the Town, the FCC will have no idea where they are located and no means of determining, much less ensuring, that they are not exposing residents within the Town and/or the general public to Illegally Excessive levels of RF Radiation. The Town deems it to be of critical importance to the health, safety, and welfare of the Town, its residents, and the public at large that personal wireless service facilities do not expose members of the general public to levels of RF radiation that exceed the limits which have been deemed safe by the FCC, and/or are imposed under CFR. The FCC has recognized that 47 U.S.C. § 332(c)(7)(B)(iv) permits state and local governments, when making decisions on the placement, construction, and modification of personal wireless service facilities, to consider whether such facilities comply with the Commission's regulations concerning RF emissions. In re Human Exposure to Radiofrequency Electromagnetic Fields et al., 34 FCC Rcd 11687, 11739, ¶114 (2019). In accord with the same, the Town enacts the following RF Radiation testing requirements and provisions set forth herein below. No wireless telecommunications facility shall at any time be permitted to emit illegally excessive RF Radiation as defined in §17-2 or to produce power densities that exceed the legally permissible limits for electric and magnetic field strength and power density for transmitters, as codified within 47 CFR §1.1310(e)(1), Table 1 Sections (i) and (ii), as made Meeting Packet Page 275 of 301 69 applicable pursuant to 47 CFR §1.1310(e)(3) unless the operator implements and retains responsibility for ongoing effectiveness of the mitigation actions contained in 47 C.F.R. §1.1307(b)(4). To ensure continuing compliance with such limits by all owners and/or operators of wireless communication facilities within the Town, all owners, and operators of wireless communication facilities shall submit reports as required by this section. As set forth hereinbelow, the Town may additionally require, at the owner and/or operator’s expense, independent verification of the results of any analysis set forth within any reports submitted to the Town by the owner and/or operator. If an operator of a personal wireless service facility fails to supply the required reports or fails to correct a violation of the legally permissible limits described hereinabove, following notification that their respective facility is believed to be exceeding such limits, any special use permit or other zoning approval granted by the Town Council or any other body or representative of the Town is subject to modification or revocation by the Town Council following a public hearing. a. Certification of Compliance with Applicable RF Radiation Limits. Within forty-five (45) days of initial operation or a substantial modification of a wireless communication facility, the owner and/or operator of each telecommunications antenna shall submit to the Development Services Director a written certification by a licensed professional engineer, sworn to under penalties of perjury, that the facility’s radio frequency emissions comply with the limits codified within 47 CFR §1.1310(e)(1), Table 1 Sections (i) and (ii), as made applicable pursuant to 47 CFR §1.1310(e)(3). The engineer shall also measure the emissions of the approved wireless facility, including the cumulative impact from other nearby wireless facilities, and determine if such emissions are within the limits described hereinabove. A report of these measurements and the engineer’s findings with respect to compliance with the FCC’s maximum permissible exposure (MPE) limits shall be submitted to the Development Services Director. If the report shows that the facility does not comply with applicable limits, then the owner and/or operator shall cease operation of the facility until the facility is brought Meeting Packet Page 276 of 301 70 into compliance with such limits. Proof of compliance shall be a certification provided by the engineer who prepared the original report. The Town may require, at the applicant’s expense, independent verification of the results of the analysis. b. Random RF Radiofrequency Testing. At the operator’s expense, the Town may retain an engineer to conduct random unannounced RF radiation testing of such wireless facilities to ensure the facility’s compliance with the limits codified within 47 CFR §1.1310(e)(1) et seq. The Town may cause such random testing to be conducted as often as the Town may deem appropriate. However, the Town may not require the owner and/or operator to pay for more than one (1) test per facility per calendar year unless such testing reveals that one (1) or more of the owner and/or operator’s facilities are exceeding the limits codified within 47 CFR §1.1310(e)(1) et seq., in which case the Town shall be permitted to demand that the wireless facility be brought into compliance with such limits, and to conduct additional tests to determine if, and when, the owner and/or operator thereafter brings the respective wireless facility and/or facilities into compliance. If the Town at any time finds that there is good cause to believe that a personal wireless service facility and/or one or more of its antennas are emitting RF radiation at levels in excess of the legal limits permitted under 47 CFR §1.1310(e)(1) et seq., then a hearing shall be scheduled before the Town Council at which the owner and/or operator of such facility shall be required to show cause why any and all permits and/or approvals issued by the Town for such facility and/or facilities should not be revoked, and a fine should not be assessed against such owner and/or operator. Such hearing shall be duly noticed to both the public and the owner and/or operator of the respective facility or facilities at issue. The owner and/or operator shall be afforded not less than two (2) weeks' written notice by first-class mail to its Notice Address. At such hearing, the burden shall be on the Town to show that, by a preponderance of the evidence, the Facilities emissions exceeded the permissible limits under 47 CFR §1.1310(e)(1) et seq. In the event that the Town establishes same, the owner and/or operator shall then be required to establish, by clear and convincing evidence, that a malfunction of equipment Meeting Packet Page 277 of 301 71 caused their failure to comply with the applicable limits through no fault on the part of the owner/operator. If the owner and/or operator fails to establish same, the Town Council shall have the power to and shall revoke any special use permit, variance, building permit, and/or any other form of zoning-related approval(s) which the Town Council, Board of Adjustment, Town Engineer and/or any other representative of the Town may have then issued to the owner and/or operator, for the respective facility. In addition, the Town may issue a civil citation of not less than $1,000, nor more than $5,000 for such violation of subparagraph 1. hereinabove, or, in the case of a second offense within less than five (5) years, a minimum fine of $5,000, nor more than $25,000. In the event that an owner or operator of one or more personal wireless service facilities is found to violate subparagraph 1. hereinabove three or more times within any five (5) year period, then in addition to revoking any zoning approvals for the facilities which were violating the limits codified in 47 CFR §1.1310(e)(1) et seq., the Town Council shall render a determination within which it shall deem the owner/operator prohibited from filing any applications for any new wireless personal services facilities within the Town for a period of five (5) years. c. Annual Testing. The owner or operator of all PWSF shall provide for and conduct an inspection of radio frequency radiation at least once annually by a licensed radio frequency engineer. Three copies of a report shall be provided to the Development Services Department, verifying that the radio frequency radiation is in compliance with FCC Guidelines. 3. Actions for Noncompliance. If the Town at any time finds that there is good cause to believe that a wireless communication facility and/or one (1) or more of its antennas are emitting RF radiation at levels in excess of the legal limits permitted under 47 CFR §1.1310(e)(1) et seq., then a hearing shall be scheduled before the Town’s Zoning Administrator at which the owner and/or operator of such facility shall be required to show cause why any and all permits and/or approvals issued by the Town for such facility and/or facilities should not be revoked, and a fine should not be assessed against such owner and/or operator. Meeting Packet Page 278 of 301 72 The owner and/or operator shall be afforded not less than two (2) weeks’ written notice of the hearing. At such hearing, the burden shall be on the Town to show that, by a preponderance of the evidence, the facilities emissions exceeded the permissible limits under 47 CFR §1.1310(e)(1) et seq. In the event that the Town establishes same, the owner and/or operator shall then be required to establish, by clear and convincing evidence, that a malfunction of equipment caused their failure to comply with the applicable limits through no fault on the part of the owner/operator. If the owner and/or operator fails to establish same, the Town shall have the power to revoke any permit, building permit, and/or any other form of approval(s) which the Town Council or any other representative of the Town may have then issued to the owner and/or operator, for the respective facility. The Zoning Administrator may revoke an administrative approval. The decision of the Zoning Administrator may be appealed to the Town Manager. If the tower or antenna was approved by the Town Council, revocation will be considered by the Town Council in the same manner as the original approval. In addition, the Town may issue a civil citation for noncompliance as provided in Section 1- 8-3 of the Town Code. In the event that an owner or operator of one (1) or more wireless communication facility is found to violate subsection (B)(1) of this section three (3) or more times within any five (5) year period, then in addition to revoking any zoning approvals for the facilities which were violating the limits codified in 47 CFR §1.1310(e)(1) et seq., the Town Council shall render a determination within which it shall deem the owner/operator prohibited from filing any applications for any new wireless personal services facilities within the Town for a period of five (5) years. C. Building Codes; Safety Standards. To ensure the structural integrity of towers, the owner of a tower shall ensure that it is maintained in compliance with standards contained in applicable state or local building codes and the applicable standards for towers that are published by the Electronic Industries Association, as amended from time to time. If, upon inspection, the Town of Fountain Hills concludes that a tower fails to comply with such codes and standards and Meeting Packet Page 279 of 301 73 constitutes a danger to persons or property, then upon notice being provided to the owner of the tower, the owner shall have thirty (30) days to bring such tower into compliance with such standards. Failure to bring such tower into compliance within said thirty (30) days shall constitute grounds for the removal of the tower or antenna at the owner’s expense. D. Noise. Wireless facilities and all related equipment must comply with all noise regulations and shall not exceed such regulations, either individually or collectively. Backup generators shall only be operated during power outages and/or for testing and maintenance purposes between the hours of 9:00 a.m. and 4:00 p.m. E. Maintenance. Prior to scheduling a final inspection for construction of a tower and associated equipment, the applicant shall file with the Town a bond in the amount of X to cover the ongoing maintenance of the tower, equipment, and landscaping. The bond amount shall be reviewed and revised every three years thereafter. Should the owner of the tower, equipment, and/or landscaping fail to maintain said facilities consistent with the Town’s approval and ordinance requirements, and after notice for correction by the Town, the Town may call and utilize the bonds to perform the needed maintenance activities. F. Indemnity and liability for damages. 1. The wireless telecommunications facility provider shall defend, indemnify, and hold harmless the Town or any of its boards, commissions, agents, officers, and employees from any claim, action or proceeding against the Town, its boards, commission, agents, officers, or employees to attack, set aside, void, or annul, the approval of the project when such claim or action is brought within the time period provided for in applicable state and/or local statues. The Town shall promptly notify the provider(s) of any such claim, action or proceeding if the Town bears its own attorney's fees and costs, and the Town defends the action in good faith. 2. Wireless telecommunications facility operators shall be strictly liable for interference caused by their facilities with Town communications systems. The operator shall be responsible for costs for determining the source of the interference, all costs associated with eliminating the interference (including but not limited to filtering, installing cavities, installing directional antennas, powering down systems, and engineering analysis), and all costs arising from third party claims against the Town attributable to the interference. Meeting Packet Page 280 of 301 74 G. Certificate of Insurance required. The applicant shall maintain adequate and sufficient liability insurance during the construction period and thereafter, the carrier shall maintain liability insurance meeting the criteria of this section throughout the life of any PWSF erected within the Town of Fountain Hills. Prior to the issuance of any necessary permit, whether special permit or building permit, documentation that liability insurance in the amount of at least $1,000,000 single occurrence, $3,000,000 aggregate has been secured identifying the Town as coinsured shall be submitted to the Development Services Department, such policy shall not include a pollution exclusion. The carrier’s maintenance without interruption of liability insurance in like or greater amount with the Town named as coinsured is a continuing condition of any permit or certificate of building compliance. , issued by an insured authorized to do business in the State of Arizona meeting the criteria of this section throughout the life of any PWSF erected within the Town of Fountain Hills, at least as broad as follows: 1. Commercial General Liability Insurance. The permittee shall procure and maintain at its expense or cause its contractor or subcontractor to procure and maintain throughout the term of this permit, commercial General Liability ("CGL") insurance on an "occurrence" basis, with limits not less than $2,000,000 per occurrence per wireless carrier or $4,000,000 per wireless carrier in the aggregate. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project location or the general aggregate limit shall be twice the required occurrence limit. CGL insurance must include coverage for the following: Bodily Injury and Property Damage; Personal Injury/Advertising Injury; Premises/Operations Liability; Products/Completed Operations Liability; Aggregate Limits that Apply per Project; Explosion, Collapse and Underground ("UCX") exclusion deleted; Contractual Liability with respect to the permit; Broad Form Property Damage; and Independent Consultants Coverage. The policy shall contain no endorsements or provisions limiting coverage for (i) contractual liability; (ii) cross liability exclusion for claims or suits by one insured against another; (iii) products/completed operations liability; (iv) bodily injury or damage from RF exposure at levels exceeding the FCC limits; or (v) contain any other exclusion contrary to the conditions in this permit. 5. Environmental Pollution Liability Insurance. The permittee shall procure and maintain at its expense or cause its contractor or subcontractor to procure and maintain throughout the term of this permit, Contractors Pollution Liability Insurance including contractual liability coverage to cover liability and legal expenses arising out of cleanup, Meeting Packet Page 281 of 301 75 removal, storage, or handling of hazardous or toxic chemicals, materials, substances, or any other pollutants by the permittee or any subcontractor resulting from pollution conditions associated with the personal wireless services facility in an amount not less than $1,000,000 each occurrence combined single limit for bodily injury and property damage. 6. Umbrella Policy. If an umbrella or excess liability insurance policy is used to satisfy the minimum requirements for insurance coverage listed above, the umbrella or excess liability policies shall provide coverage at least as broad as specified for the underlying coverages and covering those insured in the underlying policies. Coverage shall be "pay on behalf," with defense costs payable in addition to policy limits. Permittee shall provide a "follow form" endorsement or schedule of underlying coverage satisfactory to the Town indicating that such coverage is subject to the same terms and conditions as the underlying liability policy. 7. Endorsements. The relevant policy(ies) shall name the Town, its elected/appointed officials, commission members, officers, representatives, agents, volunteers and employees as additional insureds. The permittee shall use its best efforts to provide thirty (30) days' prior notice to the Town of the cancellation or material modification of any applicable insurance policy. 8. Verification of Coverage. Permittee shall furnish the Development Services Department with original certificates and amendatory endorsements or copies of the applicable policy language providing the insurance coverage required herein. All certificates and endorsements are to be received and approved by the Development Services Department before any work commences. However, failure to obtain required documents prior to the work beginning shall not waive the Licensee's obligation to provide them. Permittee shall furnish updated certificates and endorsements to the Town annually. The Town reserves the right to require updated certificates and endorsements or complete, certified copies of all required insurance policies, including the endorsements required herein, at any time. 9. Permittee Has Full Liability: The permittee shall assume full liability for damage or injury caused to any property or person by the personal wireless services facility. Meeting Packet Page 282 of 301 76 10. Permittee shall provide an executed agreement, pursuant to which Permittee and any related third parties agree to defend, hold harmless and fully indemnify the Town, its officers, employees, agents, attorneys, and volunteers, from (i) any claim, action or proceeding brought against the Town or its officers, employees, agents, or attorneys to attack, set aside, void, or annul any such approval of the Town or (ii) a successful legal action brought against the Town for loss of property value or other harm caused by the placement or operation of a small cell installation. Such indemnification shall include damages, judgments, settlements, penalties, fines, defensive costs or expenses, including, but not limited to, interest, attorneys’ fees and expert witness fees, or liability of any kind related to or arising from such claim, action, or proceeding whether incurred by the Permittee, the Town and/or the parties initiating or bringing such proceeding. The agreement shall also include a provision obligating the Permittee to indemnify the Town for all of the Town’s costs, fees and damages which the Town incurs in enforcing the indemnification provisions of this Section. H. ADA Accommodations. The Town seeks to comply with the Americans With Disabilities Act, and shall comply with same in the event that any person who is disabled within the meaning of the Act seeks a reasonable accommodation, to the extent they are entitled to same under the Act. I. Decommissioning and Reclamation Plan shall include the following information: 1. A plan for disposal of all solid waste, special waste and hazardous waste in accordance with local, state, and federal waste disposal regulations detailing the types and quantities of waste materials and methods of disposal; 2. A description of how and on what schedule stabilization and re-vegetation of the site as deemed necessary to minimize erosion will be accomplished. Permittee should include, to the extent possible, restoration of native vegetation, and pollinator-friendly seed mixtures shall be used to the maximum extent possible in re-vegetation of ground cover; 3. An estimate of costs for the decommissioning of the personal wireless services facility with a detailed description of how the estimated costs were derived, including the date which was the basis for the estimate; Meeting Packet Page 283 of 301 77 4. A decommissioning plan signed by the party responsible for decommissioning and the landowner (if different) whose minimum requirements meet the standards of this Ordinance. Such plan must be filed in the Town Office prior to the first operation of the personal wireless services facility; 5. An estimate of the total cost of decommissioning value of the equipment and itemization of the estimated major expenses, including the projected costs of measures taken to minimize or prevent adverse effects on the environment during the implementation of the decommissioning plan. Section 17.07 Nonconforming Uses A. Not Expansion of Nonconforming Use. Towers that are constructed, and antennas that are installed, in accordance with the provisions of this chapter shall not be deemed to constitute the expansion of a nonconforming use or structure. B. Pre-existing Towers. Pre-existing towers shall be allowed to continue their usage as they presently exist. Routine maintenance (including replacement with a new tower of like construction and height) shall be permitted on such pre-existing towers. New construction other than routine maintenance on a pre-existing tower shall comply with the requirements of this chapter. C. Rebuilding Damaged or Destroyed Nonconforming Towers or Antennas. Notwithstanding other provisions of this chapter, bona fide nonconforming towers or antennas that are damaged or destroyed may be rebuilt without having to first obtain a special use permit and without having to meet the separation requirements specified in Section 17.03. The type, height, and location of the tower on site shall be of the same type and intensity as the original facility approval; provided, however, that any destroyed lattice or guyed tower shall be replaced with a monopole structure only. Building permits to rebuild the facility shall comply with the then applicable building codes and shall be obtained within ninety (90) days from the date the facility is damaged or destroyed. If no permit is obtained or if said permit expires, the tower or antenna shall be deemed abandoned as specified in Section 17.06(A). Section 17.08 Retention of Consultants Meeting Packet Page 284 of 301 78 A. Use of Consultants Where deemed reasonably necessary by the Town Council and/or the Town, the Town Council and/or the Town may retain the services of professional consultants to assist the Town in carrying out its duties in review and approval of personal wireless service facilities. Where the Town Council uses the services of private engineers, attorneys, or other consultants for purposes of engineering, scientific, land use planning, environmental, legal, or similar professional reviews of the adequacy or substantive aspects of applications or of issues raised during the course of review of applications for special use permit approvals of personal wireless service facilities, the applicant and landowner, if different, shall be jointly and severally responsible for payment of all the reasonable and necessary costs incurred by the Town for such services. That responsibility shall not exceed the actual cost to the Town of such engineering, legal, or other consulting services. B. Advance Deposits for Consultant Costs The Town and/or Town Council may require advance periodic monetary deposits held by the Town on account of the applicant or landowner to secure the reimbursement of the Town's consultant expenses. The Town Council shall establish policies and procedures for the fixing of deposits and the management of payment from them. After the review and approval of itemized invoices by the Development Services Director, or designee, as to the reasonableness and necessity of the consultant charges, the Town may make payments from the deposited monies for engineering, legal, or consultant services. Upon receiving a request by the applicant or landowner, the Town shall supply copies of such invoices to the applicant and/or landowner reasonably in advance of review and approval, appropriately redacted where necessary to shield legally privileged communications between Town officers or employees and the Town's consultant. When it appears that the remaining deposit held for the applicant or landowner by the Town may be insufficient to pay current or anticipated invoices, the Town shall cause the applicant or landowner to deposit additional monies to meet such expenses or anticipated expenses in accordance with policies and procedures established by the Town Council. Consultants shall undertake no review on any matter scheduled before the Town until the initial deposit has been made or requested replenishment of the deposit has been made. No reviewing agency shall be obligated to proceed unless the applicant complies with deposit requirements. Meeting Packet Page 285 of 301 79 C. Reasonable Limit Upon Consultant Expenses A consultant expense or part thereof is reasonable in amount if it bears a reasonable relationship to the customary fee charged by engineers, attorneys, or planners within the region for services performed on behalf of applicants or reviewing boards in connection with comparable applications for land use or development. The Town may also take into account any special conditions for consideration as it may deem relevant, including but not limited to the quality and timeliness of submissions on behalf of the applicant and the cooperation of the applicant and agents during the review process. A consultant expense or part thereof is necessarily incurred if it was charged by the engineer, attorney or planner, or other consultants for a service that was rendered to assist the Town in: (a) making factual determinations consistent with the goals of protecting or promoting of the health, safety or welfare of the Town or its residents; (b) assessing potential adverse environmental impacts such as those identified within an ADEQ process; (c) accessing potential adverse impacts to historic properties, structures and/or districts, and/or (d) assessing and determining factual issues relevant to Effective Prohibition claims, as addressed herein, enabling the Council to best comply with the letter and intent of the provision of the TCA which is relevant thereto. D. Audits Upon the Request of an Applicant Upon request of the applicant or landowner, the Town Council shall review all invoices and determine whether such engineering, legal, and consulting expenses are reasonable in amount and necessarily incurred by the Town in connection with the review and consideration of an application for personal wireless service facility. In the event of such a request, the applicant or landowner shall be entitled to be heard by the Town Council on reasonable advance notice. E. Liability for Consultant Expenses For a land-use application to be complete, the applicant shall provide the written consent of all owners of the subject real property, both authorizing the applicant to file and pursue land development proposals and acknowledging potential landowner responsibility, under this section, for engineering, legal, and other consulting fees incurred by the Town. If different from the applicant, the owner(s) of the subject real property shall be jointly and severally responsible for reimbursing the Town for funds expended to compensate services rendered to the Town Meeting Packet Page 286 of 301 80 under this section by private engineers, attorneys, or other consultants. The applicant and the owner shall remain responsible for reimbursing the Town for its consulting expenses, notwithstanding that the deposit account may be insufficient to cover such expenses. No building permit or other permit shall be issued until reimbursement of costs and expenses determined by the Town to be due. In the event of failure to reimburse the Town for such fees, the following shall apply: The Town may seek recovery of unreimbursed engineering, legal, and consulting fees by court action in an appropriate jurisdiction, and the defendant(s) shall be responsible for the reasonable and necessary attorney's fees expended by the Town in prosecuting such action. Alternatively, and at the sole discretion of the Town, a default in reimbursement of such engineering, legal, and consulting fees expended by the Town shall be remedied by charging such sums against the real property that is the subject of the application by adding that charge to and making it a part of the next annual real property tax assessment roll of the Town. Such charges shall be levied and collected simultaneously and in the same manner as Town-assessed taxes and applied in reimbursing the fund from which the costs were defrayed for the engineering, legal, and consulting fees. Prior to charging such assessments, the owners of the real property shall be provided written notice to their last known address of record by certified mail, return receipt requested, of an opportunity to be heard and object before the Town Council to the proposed real property assessment, at a date to be designated in the notice, which shall be no less than 30 days after its mailing. Meeting Packet Page 287 of 301 ITEM 9.b. TOWN OF FOUNTAIN HILLS STAFF REPORT Meeting Date: 10/20/2026 Meeting Type: Town Council Regular Meeting Submitting Department: Development Services Prepared by: John Wesley, Development Services Director Staff Contact Information: Phone: 480-816-5138 Email: jwesley@fountainhillsaz.gov Request to Town Council Regular Meeting (Agenda Language) CONSIDERATION AND POSSIBLE ACTION: Regarding Ordinance 26-16, amending Subdivision Ordinance Article 3, Section 3.03 B adding a new standard to require plats of 50 acres or more to designate a location for future siting of wireless telecommunications facilities. Staff Summary (background) During the Planning Commission review of the new wireless telecommunication facilities ordinance, one of the concerns expressed was the need to require new developments to designate places early in the development process for the location of future towers and antennas. In response to that staff and the consultant prepared the attached amendment for the Subdivision ordinance. This change requires any plat for property of 50 acres or more to include in the design a place for a future tower and associated equipment. The specific amendment is in Article 3, Subdivision Design Principles and Standards, Section 3.03, Subdivision Site Design Standards. It is proposed that a new subsection B 10 be added to require this information during the review of the preliminary plat. The specific language proposed is: 10. Wireless communications facility planning for large developments. For any subdivision containing fifty (50) gross acres or more, the preliminary plat shall identify and propose to preserve at least one location within the subdivision that will be suitable for the potential future installation of a wireless communications tower and associated facilities in accordance with Chapter 17 of the Zoning Ordinance. In selecting such location(s), the subdivider shall prioritize locations that maximize separation from residential lots and other sensitive land uses, minimize visual and aesthetic impacts, utilize existing topography and vegetation for screening, provide suitable access and utility service, and minimize the need for the future siting of wireless communications towers within or immediately adjacent to residential areas. Identification of a location pursuant to this subsection does not constitute approval of a wireless communications facility at that location, and any future facility shall obtain all approvals otherwise required by the Town Code, Zoning Ordinance, and all approvals otherwise required by federal and Arizona law. The Planning and Zoning Commission received this language during their review of Chapter 17 of the Zoning Ordinance and agreed it addressed their concern. Related Ordinance, Policy or Guiding Principle N/A Risk Analysis Meeting Packet Page 288 of 301 N/A Recommendation(s) by Board(s) or Commission(s) N/A Staff Recommendation(s) Staff recommends adoption of Ordinance 26-16. Suggested Motion MOVE TO approve Ordinance 26-16. FISCAL IMPACT Fiscal Impact: N/A Budget Reference: N/A Funding Source: N/A ATTACHMENTS 1. ORD 26-16 Wireless facilities requirement Meeting Packet Page 289 of 301 ORDINANCE NO. 26-16 AN ORDINANCE OF THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, AMENDING THE TOWN OF FOUNTAIN HILLS SUBDIVISION ORDINANCE, ARTICLE 3, SECTION 3.03, SUBDIVISION SITE DESIGN STANDARDS, SUBSECTION B, IN THE FOUNTAIN HILLS SUBDIVISION ORDINANCE TO ADD A NEW ITEM 10 ESTABLISHING A REQUIREMENTS IN SUBDIVISIONS OF 50 ACRES OR MORE TO INCLUDE A LOCATION SUITABLE FOR INSTALLATION OF A FUTURE WIRELESS TELECOMMUNICATIONS TOWER AND ASSOCIATED FACILITIES. WHEREAS, the Mayor and the Council of the Town of Fountain Hills (the “Town Council”) adopted Ordinance No. 96-29, which established the Subdivision Ordinance for the Town of Fountain Hills (the “Subdivision Ordinance”); and WHEREAS, the Town Council desires to amend Article 3, Subdivision Design Principles and Standards, Section 3.03, Subdivision Site Design Standards, of the Subdivision Ordinance to address issues related to provision of wireless telecommunication towers and equipment; and NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS as follows: SECTION 1. The foregoing recitals are incorporated as if fully set forth herein. SECTION 2. The Subdivision Ordinance, Article 3, Subdivision Design Principles and Standards, Section 3.03, Subdivision Site Design Standards, is hereby amended as contained in Exhibit A. SECTION 3. If any provision of this Ordinance is for any reason held by any court of competent jurisdiction to be unenforceable, such provision or portion hereof shall be deemed separate, distinct and independent of all other provisions and such holding shall not affect the validity of the remaining portions of this Ordinance. SECTION 4. In accordance with Article II, Sections 1 and 2, Constitution of Arizona, and the laws of the State of Arizona, the City/Town Council has considered the individual property rights and personal liberties of the residents of the City/Town and the probable impact of the proposed ordinance on the cost to construct housing for sale or rent before adopting this ordinance. SECTION 6. This ordinance shall become effective thirty (30) days after its passage and adoption by the Town Council of the Town of Fountain Hills, Arizona, and its approval by the Mayor and attestation by the Town Clerk. PASSED AND ADOPTED by the Mayor and Council of the Town of Fountain Hills, Arizona, this 20th day of October, 2026. Meeting Packet Page 290 of 301 2 TOWN OF FOUNTAIN HILLS, ARIZONA ATTEST: __________________________________ ___________________________________ Gerry M. Friedel, Mayor Bevelyn Bender, Town Clerk REVIEWED BY: APPROVED AS TO FORM: ___________________________________ ___________________________________ Rachael Goodwin, Town Manager Town Attorney Meeting Packet Page 291 of 301 3 ORDINANCE NO. 26-16 EXHIBIT A Article 3, Subdivision Design Principles and Standards Section 3.03 Subdivision Site Design Standards … B. Subdivision Design: … 10. WIRELESS COMMUNICATIONS FACILITY PLANNING FOR LARGE DEVELOPMENTS. FOR ANY SUBDIVISION CONTAINING FIFTY (50) GROSS ACRES OR MORE, THE PRELIMINARY PLAT SHALL IDENTIFY AND PROPOSE TO PRESERVE AT LEAST ONE LOCATION WITHIN THE SUBDIVISION THAT WILL BE SUITABLE FOR THE POTENTIAL FUTURE INSTALLATION OF A WIRELESS COMMUNICATIONS TOWER AND ASSOCIATED FACILITIES IN ACCORDANCE WITH CHAPTER 17 OF THE ZONING ORDINANCE. IN SELECTING SUCH LOCATION(S), THE SUBDIVIDER SHALL PRIORITIZE LOCATIONS THAT MAXIMIZE SEPARATION FROM RESIDENTIAL LOTS AND OTHER SENSITIVE LAND USES, MINIMIZE VISUAL AND AESTHETIC IMPACTS, UTILIZE EXISTING TOPOGRAPHY AND VEGETATION FOR SCREENING, PROVIDE SUITABLE ACCESS AND UTILITY SERVICE, AND MINIMIZE THE NEED FOR THE FUTURE SITING OF WIRELESS COMMUNICATIONS TOWERS WITHIN OR IMMEDIATELY ADJACENT TO RESIDENTIAL AREAS. IDENTIFICATION OF A LOCATION PURSUANT TO THIS SUBSECTION DOES NOT CONSTITUTE APPROVAL OF A WIRELESS COMMUNICATIONS FACILITY AT THAT LOCATION, AND ANY FUTURE FACILITY SHALL OBTAIN ALL APPROVALS OTHERWISE REQUIRED BY THE TOWN CODE, ZONING ORDINANCE, AND ALL APPROVALS OTHERWISE REQUIRED BY FEDERAL AND ARIZONA LAW. … Meeting Packet Page 292 of 301 ITEM 9.c. TOWN OF FOUNTAIN HILLS STAFF REPORT Meeting Date: 10/20/2026 Meeting Type: Town Council Regular Meeting Submitting Department: Administration / Town Clerk Prepared by: Angela Espiritu, Deputy Town Clerk Staff Contact Information: Phone: 480-816-5116 Email: aespiritu@fountainhillsaz.gov Request to Town Council Regular Meeting (Agenda Language) DISCUSSION: Regarding a proposed Ordinance related to Sharia Law. Staff Summary (background) n/a 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) N/A Suggested Motion N/A FISCAL IMPACT Fiscal Impact: N/A Budget Reference: N/A Funding Source: N/A ATTACHMENTS None Meeting Packet Page 293 of 301 ITEM 9.d. TOWN OF FOUNTAIN HILLS STAFF REPORT Meeting Date: 10/20/2026 Meeting Type: Town Council Regular Meeting Submitting Department: Administration / Town Clerk Prepared by: Angela Espiritu, Deputy Town Clerk Staff Contact Information: Phone: 480-816-5116 Email: aespiritu@fountainhillsaz.gov Request to Town Council Regular Meeting (Agenda Language) DISCUSSION: Regarding Ordinance No. 26-17, amending the Fountain Hills Town Code, Chapter 16 (Streets and Sidewalks), by adding Article 16-4, Automated License Plate Readers. (Tabled at the October 6, 2026, Council meeting to the October 20, 2026, Council meeting. Presented at the request of Councilmember Skillicorn with the support of Councilmembers Larrabee and Watts). Staff Summary (background) N/A Related Ordinance, Policy or Guiding Principle N/A Risk Analysis Recommendation(s) by Board(s) or Commission(s) Staff Recommendation(s) N/A Suggested Motion N/A FISCAL IMPACT Fiscal Impact: Budget Reference: Funding Source: ATTACHMENTS 1. ORDINANCE NO 26-17 Meeting Packet Page 294 of 301 ORDINANCE NO. 26–17 AN ORDINANCE OF THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, MARICOPA COUNTY, ARIZONA, AMENDING THE FOUNTAIN HILLS TOWN CODE, CHAPTER 16, STREETS AND SIDEWALKS, BY ADDING ARTICLE 16-4, AUTOMATED LICENSE PLATE READERS. WHEREAS, the Town of Fountain Hills has determined that revisions to its Town Code are necessary to protect the privacy of Town residents; and WHEREAS, the Town of Fountain Hills owns or controls public streets, rights-of-way, parks, buildings, and other public property within the Town, and has the authority to regulate encroachments upon and uses of that property, including under Town Code Chapter 16, Article 16-1; and WHEREAS, the Mayor and Council find and determine that automated license plate reader systems and similar vehicle-identification technologies capture images of vehicles and license plates traveling on public streets, convert those images into searchable data, and commonly store or share that data across networked databases; and WHEREAS, the Mayor and Council find and determine that the placement of such systems on Town property or in the public right-of-way converts Town infrastructure into a persistent, location-logged vehicle-tracking network without a warrant, individualized suspicion, or the knowledge of the persons whose movements are recorded, and raises substantial concerns regarding privacy, data sharing with third parties and other jurisdictions, and the Town’s ability to control the use of its own streets and property; and WHEREAS, the Town does not presently operate or host an automated license plate reader system, and the Mayor and Council find that the Town’s policy should be established before such systems are installed rather than after; and WHEREAS, since 2025 at least eleven Arizona jurisdictions, including Flagstaff, Sedona, Sierra Vista, South Tucson, Chandler, Surprise, Tempe, Cave Creek, Payson, and Pinal County, have terminated or declined to renew automated license plate reader contracts, and Arizona agencies have in 2026 disciplined or criminally investigated officers for misuse of such systems, demonstrating that administrative safeguards on networked systems have not proven reliable in practice; and WHEREAS, the Town already requires an encroachment permit to erect or maintain a pole, post, or other structure in the right-of-way, and an express prohibition for this class of devices provides clarity to staff, vendors, law-enforcement partners, and residents and Meeting Packet Page 295 of 301 avoids ad hoc permitting of a use the Council has determined is inconsistent with the Town’s interest in its public property; and WHEREAS, nothing in this Ordinance is intended to restrict a person from installing or operating a personal or commercial security system located wholly on private property for the protection of that property, including a camera that incidentally captures a license plate of a vehicle on or immediately adjacent to that private property. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, as follows: SECTION 1. The recitals above are hereby incorporated as if fully set forth herein. SECTION 2. Chapter 16, Article 16-4, of the Fountain Hills Town Code is hereby adopted as set forth in Exhibit A. SECTION 3. If any provision of this Ordinance is for any reason held by any court of competent jurisdiction to be unenforceable, such provision or portion hereof shall be deemed separate, distinct and independent of all other provisions and such holding shall not affect the validity of the remaining portions of this Ordinance. SECTION 4. The Mayor, the Town Manager, the Town Clerk and Town Attorney are hereby authorized and directed to take all steps necessary to carry out the purpose and intent of this ordinance. SECTION 5. This ordinance shall become effective thirty (30) days after its passage and adoption by the Town Council of the Town of Fountain Hills, Arizona, and its approval by the Mayor and attestation by the Town Clerk. PASSED AND ADOPTED by the Mayor and Council of the Town of Fountain Hills, Arizona, this 6th day of October, 2026. TOWN OF FOUNTAIN HILLS, ARIZONA ATTEST: ____________________________________ ______________________________________ Mayor Town Clerk REVIEWED BY: APPROVED AS TO FORM: ____________________________________ ______________________________________ Town Manager Town Attorney Meeting Packet Page 296 of 301 ORDINANCE NO. 26-17 EXHIBIT A Chapter 16, Streets and Sidewalks Article 16-4, Automated License Plate Readers ARTICLE 16-4 AUTOMATED LICENSE PLATE READERS 16-4-1 Purpose The purpose of this Article is to prohibit the installation and operation of automated license plate reader systems and equivalent vehicle-identification technology on Town public property and in the public right-of-way, while preserving the right of persons to operate personal and commercial security systems located wholly on private property. This Article shall be liberally construed to accomplish that purpose, and nothing in it authorizes any installation or use not expressly permitted. 16-4-2 Definitions In this Article, unless the context otherwise requires: A. “Automated license plate reader system” or “ALPR system” means any camera, sensor, pole, cabinet, trailer, or networked system, whether fixed, semi- permanent, portable, trailer-mounted, or relocatable, that is designed or used to automatically capture an image of a license plate, vehicle, or vehicle identifier, and to convert, store, analyze, transmit, or render searchable that image or derived data, including license-plate numbers, plate images, vehicle make, model, color, or other vehicle-signature characteristics. The term includes systems commonly known as automated license plate readers, ALPRs, LPRs, and any functionally equivalent technology, regardless of vendor. The term does not include a camera or recording system that performs no automated recognition of license plates or vehicles and requires manual review of recorded images to identify a plate. B. “Person” means any individual, corporation, partnership, limited liability company, association, homeowners’ association, vendor, contractor, or other Meeting Packet Page 297 of 301 legal entity, and any governmental agency or unit of government other than the Town, including any law enforcement agency providing services to the Town under an intergovernmental agreement. Obligations of the Town are set forth in Section 16-4-5. C. “Private property” means real property that is not public property and is not public right-of-way. D. “Public property” means real property owned, leased, or controlled by the Town, including without limitation Town buildings, parks, parking lots, drainage facilities, open space, streetlights, traffic signals, utility poles owned or controlled by the Town, and other Town facilities. E. “Public right-of-way” or “right-of-way” has the meaning given in Section 16-1- 1(G) of this Code. F. “Personal security system” means a camera, doorbell camera, video doorbell, floodlight camera, or similar device installed on private property by or for the owner, occupant, or lawful possessor of that property, primarily to protect that property, its occupants, or invited guests, and that is not installed on public property or in the public right-of-way. 16-4-3 Prohibition A. No person shall install, construct, erect, attach, operate, maintain, or cause to be installed, constructed, erected, attached, operated, or maintained an automated license plate reader system on public property or in, on, over, or under the public right-of-way within the Town. B. No person shall use Town streetlights, traffic signals, utility poles, cabinets, conduit, power, or other Town infrastructure to support or serve an automated license plate reader system. C. An automated license plate reader system located on public property or in the public right-of-way is deemed an encroachment within the meaning of Section 16-1-1(B), whether or not it obstructs or interferes with the normal use of the right-of-way, and is unlawful under Section 16-1-3. No encroachment permit, right-of-way permit, or pole-attachment authorization shall be issued for such a system, and any permit or authorization purporting to allow one is void. D. This Section applies to installations by private vendors, homeowners’ associations, business improvement organizations, other units of government, and any other person. Meeting Packet Page 298 of 301 16-4-4 Exemptions This Article regulates only public property and the public right-of-way. Without implying that it otherwise reaches any device located wholly on private property, this Article does not apply to: A. A personal security system located wholly on private property, including a system that incidentally captures an image of a license plate of a vehicle on that private property or of a vehicle on an adjacent street when the camera itself is mounted on the private property and is not mounted on public property or in the public right-of-way. B. A commercial security system located wholly on private property and operated by or for the owner or occupant of that property for the protection of that property, subject to Chapter 18 of this Code where applicable, provided the cameras and supporting equipment are not installed on public property or in the public right-of-way. C. A handheld device, or a device mounted on a lawfully operating motor vehicle, that is used by a peace officer during a specific investigation or patrol and that is not a fixed or semi-permanent installation on public property or in the public right-of-way. A vehicle parked or stationed for the predominant purpose of collecting license-plate or vehicle data from passing traffic is a fixed or semi- permanent installation for purposes of this Article. D. A traffic-control device, traffic-management camera, or intersection- monitoring camera that performs no automated recognition of license plates or vehicles and does not render vehicle images searchable by plate or vehicle attribute. E. Equipment located within the right-of-way of the state highway system under the jurisdiction of the Arizona Department of Transportation. F. License-plate recognition used solely and internally for access control at a gated private community or private parking facility, where the equipment is located wholly on private property. This exemption does not authorize placement of any device in the public right-of-way. 16-4-5 No Town operation or participation Meeting Packet Page 299 of 301 A. The Town shall not acquire, lease, fund, subscribe to, contract for, install, operate, host, or participate in an automated license plate reader system or network, or purchase or accept access to ALPR data or ALPR query services, wherever the system, network, or data is located. No Town officer or employee shall enter into, renew, or extend any contract, subscription, grant, pilot, trial, intergovernmental agreement, or data-sharing agreement for any such system, network, or access. B. No Town officer or employee shall authorize, permit, or agree, by permit, license, lease, intergovernmental agreement, or otherwise, to the placement by another agency or vendor of an automated license plate reader system on public property or in the public right-of-way. Any request by another agency or vendor to place such a system shall be reported to the Council in a public meeting within sixty (60) days of receipt. C. Nothing in this Section prohibits a peace officer providing law-enforcement services in the Town from querying a database lawfully maintained by another jurisdiction when that query is made in connection with a specific criminal investigation and does not involve an automated license plate reader system located in the Town. 16-4-6 Removal; restoration A. Any automated license plate reader system installed in violation of this Article is a public nuisance and an unlawful encroachment as provided in Section 16-4- 3.C. B. Upon written notice from the Town Manager or designee, the owner, vendor, or operator shall deactivate the system within forty-eight (48) hours and shall remove the system and restore the site within fourteen (14) days, or within such longer period as the Town Manager specifies in writing for good cause. C. If the owner, vendor, or operator fails to remove the system after notice, the Town may remove it and restore the site, and shall recover the actual cost of removal and restoration, plus an administrative fee in an amount set by Council resolution, as a civil obligation. The Town may also pursue any remedy available under Article 16-1 and Section 1-8-3. D. Any automated license plate reader system located on public property or in the public right-of-way on the effective date of this Article shall be deactivated within seven (7) days and removed within thirty (30) days of that date without notice under subsection B. The Town Manager shall report to the Council in a Meeting Packet Page 300 of 301 public meeting within ninety (90) days of the effective date whether any such system was identified and the disposition of each. 16-4-7 Enforcement and penalties A. A violation of this Article is a civil offense punishable as provided in Section 1- 8-3 of this Code. Each day a violation continues after notice constitutes a separate offense. B. In addition to any civil sanction, the Town may seek injunctive or other equitable relief, revocation of any related permit, and recovery of costs and attorney fees as allowed by law. C. The Town Manager, Town Engineer, Development Services Director, code compliance officers, and law-enforcement personnel serving the Town are authorized to enforce this Article. D. The Town Attorney may initiate proceedings in the Fountain Hills Municipal Court or other court of competent jurisdiction to enforce this Article. E. Any resident of the Town may bring an action in a court of competent jurisdiction for declaratory or injunctive relief to enforce Section 16-4-5. 16-4-8 Relationship to other provisions A. This Article is in addition to, and does not limit, Fountain Hills Town Code Article 16-1 (Encroachments), Article 16-2 (Small Wireless Facilities), Section 7- 1-6 (Utility Poles and Wires), Chapter 18 (Alarm Systems), and the Fountain Hills Zoning Ordinance. B. If a provision of this Article conflicts with a more general provision of the Fountain Hills Town Code, this Article controls as to automated license plate reader systems. C. Nothing in this Article authorizes a use that is otherwise prohibited by the Fountain Hills Zoning Ordinance or by state or federal law. D. Nothing in this Article limits the collocation of small wireless facilities under Article 16-2 and A.R.S. § 9-591 et seq.; provided that no permit or authorization under Article 16-2 authorizes an automated license plate reader system, which is not a wireless facility within the meaning of that article. Meeting Packet Page 301 of 301