A.   The purpose of this chapter is to reasonably regulate, to the extent permitted by state and federal law, the installation, operation, collocation, modification and removal of wireless facilities in the town in a manner that protects and promotes public health, safety and welfare, and balances the benefits that flow from robust wireless services with the unique and historic character, aesthetics, and local values of the town.

B.   This chapter does not intend to, and shall not be interpreted or applied to:

   1.   Prohibit or effectively prohibit personal wireless services; or

   2.   Unreasonably discriminate among providers of functionally equivalent personal wireless services; or

   3.   Regulate the installation, operation, collocation, modification or removal of wireless facilities on the basis of the environmental effects of RF emissions to the extent that such emissions comply with all applicable FCC regulations; or

   4.   Prohibit or effectively prohibit any collocation or modification that the town may not deny under state or federal law; or

   5.   Preempt any applicable state or federal law.

C.   Wireless communication facilities located in the public right-of-way are subject to the requirements set forth in town code chapter 12-8 (wireless communication facilities in the right-of-way).

The following definitions shall apply throughout this chapter unless the context clearly indicates otherwise.

A.   “ACC” means the Arizona corporation commission or its successor agency.

B.   “Antenna” means a device used to transmit and/or receive radio or electromagnetic waves. Examples include, but are not limited to, panel antennas, directional antennas, microwave dishes and whip (omni-directional) antennas.

C.   “Approval authority” means the public body or official responsible for review of permit applications and vested with the authority to approve or deny them. The approval authority for a project which requires a conditional use permit refers to the planning commission, except that the approval authority refers to the council if the commission’s decision is appealed to the council. The approval authority for a project which requires an administrative wireless facilities permit or for a project which qualifies as a section 6409(a) modification refers to the planning manager.

D.   “Array” means one or more antennas mounted at approximately the same level above ground on tower or base station.

E.   “Base station” means the same as defined in 47 CFR § 1.6100(b)(1), as may be amended.

F.   “Collocation” means the same as defined in 47 CFR § 1.6100(b)(2), as may be amended.

G.   “Distributed antenna system” or “DAS” means a network of one or more antennas and related fiber optic nodes typically mounted to or located at streetlight poles, utility poles, sporting venues, arenas or convention centers which provide access and signal transfer for wireless service providers. A DAS also includes the equipment location, sometimes called a “hub” or “hotel” where the DAS network is interconnected with one or more wireless service provider’s facilities to provide the signal transfer services.

H.   “Eligible facilities request” means the same as defined in 47 CFR § 1.6100(b)(3), as may be amended.

I.   “Eligible support structure” means the same as defined in 47 CFR § 1.6100(b)(4), as may be amended.

J.   “Existing” means the same as defined in 47 CFR § 1.6100(b)(5), as may be amended.

K.   “Facility” means an installation used to transmit signals over the air from facility to facility or from facility to user equipment for any wireless service and includes, but is not limited to, personal wireless services facilities.

L.   “FCC” means the federal communications commission, its designated representative, or its lawful successor.

M.   “Monopole” means the same as defined in A.R.S. § 9-591 paragraph 13, as may be amended.

N.   “OTARD antenna” means antennas covered by the “over-the-air reception devices” rule in 47 CFR §§ 1.4000 et seq., as may be amended.

O.   “Personal wireless services” means the same as defined in 47 U.S.C. § 332(c)(7)(C)(i), as may be amended.

P.   “Personal wireless service facilities” means the same as defined in 47 U.S.C. § 332(c)(7)(C)(ii), as may be amended.

Q.    “Radome” means a weatherproof enclosure, typically constructed from fiberglass or plastic material, that protects and conceals an antenna or antennas contained inside.

R.   “RF” means radio frequency.

S.   “Right-of-way” means the same as defined in A.R.S. § 9-591 paragraph 18, as may be amended.

T.    “Section 6409(a)” means section 6409(a) of the middle class tax relief and job creation act of 2012, Pub. L. No. 112-96, 126 Stat. 156, codified as 47 U.S.C. § 1455(a), as may be amended.

U.   “Section 6409(a) modification” means any eligible facilities request that does not cause a substantial change and that is submitted for approval pursuant to section 6409(a) and the FCC’s regulations at 47 CFR § 1.6100 et seq.

V.   “Site” means the same as defined in 47 CFR § 1.6100(b)(6), as may be amended.

W.   “Small wireless facility” means the same as defined in A.R.S. § 9-591 paragraph 19, as may be amended.

X.   “Substantial change” means the same as defined in 47 CFR § 1.6100(b)(7), as may be amended.

Y.   “Tower” means the same as defined in 47 CFR § 1.6100(b)(9), as may be amended. Includes monopole and wireless support structure.

Z.   “Transmission equipment” means the same as defined in 47 CFR § 1.6100(b)(8), as may be amended.

AA.   “Utility pole” means the same as defined in A.R.S. § 9-591 paragraph 21, as may be amended.

BB.   “Wireless” means any FCC-licensed or authorized wireless communication service transmitted over frequencies in the electromagnetic spectrum.

CC.   “Wireless support structure” means the same as defined in A.R.S. § 9-591 paragraph 27, as may be amended.

A.   This chapter applies to all new facilities and all modifications to existing facilities for which a permit is issued after the effective date of this chapter, unless the facility qualifies for an exemption.

B.   Conflicts.

   1.   With respect to wireless communication facilities in the right-of-way, the provisions in town code chapter 12-8 shall apply in the event of a conflict with this chapter.

   2.   In all other situations, the provision included in this chapter shall apply where conflicts exist between this chapter and the remainder of the town code.

C.   This chapter does not apply to the following:

   1.   Amateur radio facilities

   2.   OTARD antennas

   3.   Facilities owned and operated by the town for its use

A.   Section 6409(a) permit. All section 6409(a) modifications are subject to review and approval or denial of a section 6409(a) permit by the planning manager in accordance with this chapter. Section 6409(a) modifications do not require an administrative wireless facilities permit; provided, however that section 6409(a) modifications must comply with all prior conditions of approval related to concealment or reasonably related to public health and safety.

B.   Exempt small wireless facilities in the right-of-way. Collocation of small wireless facilities within a right-of-way that are exempt from zoning pursuant to A.R.S. § 9-592 (I) or (J) do not require a conditional use permit or other zoning approval, but are subject to the requirements set forth in town code chapter 12-8.

C.   Administrative wireless facilities permit. A new facility, collocation or modification to an existing facility is subject to the planning manager’s approval of an administrative wireless facilities permit, and not subject to a conditional use permit, when all the following criteria are met:

   1.   The proposed project is not a section 6409(a) modification

   2.   The proposed project qualifies as a design listed in section 17-18-6 A. 2 through 17-18-6 A. 3 below; specifically,

      a.   A collocation on an existing base station outside the right-of-way,

      b.   A collocation on a tower outside the right-of-way, or

      c.   A collocation on an eligible support structure or utility pole in the right-of-way that is not exempt from zoning (see paragraph 17-18-4 B above).

   3.   The proposed project will not require any limited exemption pursuant to section 17-18-16 below.

D.   Conditional use permit. Except as provided in paragraphs A through C of this section, any new facility or modification or collocation to an existing facility is subject to the approval of a conditional use permit pursuant to section 17-3-2 of this code.

A.   Each permit granted under this chapter requires an application.

B.   Unless an exemption or waiver applies, each application submitted under this chapter must include the following:

   1.   Application fee. The applicable wireless facility application fee in an amount established by a fee schedule adopted by the council and amended from time to time.

   2.   Master application. A fully completed and executed master application on the form provided by the town for that purpose, as may be amended or updated from time-to-time. The master application must state what approval is being sought, i.e., conditional use permit, administrative wireless facilities permit, or section 6409(a) permit.

   3.   Required licenses or approvals. Evidence that the applicant has all current licenses and registrations from the FCC, the ACC, and any other applicable regulatory bodies where such license(s) or registration(s) are necessary to provide wireless communication services utilizing the proposed wireless communication facility.

   4.   Proof of property rights. Proof either that the applicant is the owner of the property where the facility is to be located, or that the applicant has the right to use the property for the facility, in the form of a lease or license agreement from the property owner. For wireless communication facilities in the right-of-way, the license need not be submitted with the application but shall be submitted no later than the applicant’s submission of a building permit request.

   5.   Site development plans. Fully dimensioned site plan and elevation drawings prepared and sealed by an Arizona-licensed engineer or architect showing any existing wireless facilities with all existing transmission equipment and other improvements, the proposed facility with all proposed transmission equipment and other improvements and the legal boundaries of the leased or owned area surrounding the proposed facility and any associated access or utility easements. For new facilities, the plans shall also include, in plan and elevation views, a scaled depiction of the maximum permitted increase as authorized by section 6409(a) using the proposed project as a baseline.

   6.   Photo simulations. Photo simulations that show the proposed facility in context of the site from reasonable line-of-sight locations from nearby public streets or other public viewpoints, together with a map that shows the photo location of each view angle.

   7.   RF exposure compliance report. A radio frequency report acceptable to the town prepared and certified by an RF engineer that certifies that the proposed facility and any collocated facilities will comply with applicable federal RF exposure standards and exposure limits as set forth in the code of federal regulations, including without limitation those set forth in 47 CFR §§ 1.1307(b), 1.1310, 2.1091, and 2.1093. The RF report must include all of the following:

      a.   The actual frequency and power levels in watts effective radiated power (ERP) for all existing and proposed antennas at the site

      b.   Exhibits that show the location and orientation of all transmitting antennas and the boundaries of areas with RF exposures in excess of the uncontrolled/general population limit and the boundaries of areas with RF exposures in excess of the controlled/occupational limit, as these terms are defined by the FCC.

      c.   Each project site boundary shall be clearly marked and identified for every transmitting antenna.

   8.   Alternative sites analysis.

      a.   The applicant must provide a list of all existing structures considered as alternatives to the proposed location, together with a general description of the site design considered at each location.

      b.   The applicant must also provide a written explanation as to why the alternatives considered were unacceptable or infeasible, unavailable, or not as consistent with the development standards in this chapter as the proposed location. This explanation must include a meaningful comparative analysis and such technical information and other factual justification as are necessary to document the reasons why each alternative is unacceptable, infeasible, unavailable, or not as consistent with the development standards in this chapter as the proposed location.

      c.   If an existing facility is listed among the alternatives, the applicant must specifically address why the modification of that wireless communication facility is not a viable option.

   9.   Noise study. A noise study prepared and certified by an engineer for the proposed facility and all associated equipment including all environmental control units, sump pumps, temporary backup power generators, and permanent backup power generators demonstrating compatibility with existing nearby land uses and compliance with any applicable noise regulations. The noise study must also include an analysis of the manufacturers’ specifications for all noise-emitting equipment and a depiction of the proposed equipment relative to all adjacent property lines.

   10.   Deposit. A cash or other sufficient deposit tendered by the applicant to the town for any third party peer review determined by the planning manager to be necessary to ensure compliance with the requirements of this chapter.

C.   The planning manager is authorized and directed to develop permit applications and other materials specific for wireless facilities, make them publicly available, and update and amend them as the planning manager deems appropriate.

D.   Applications for a section 6409(a) permit are exempt from the requirement for an alternative sites analysis (subparagraph 17-18-5 B. 8 above).

E.   The planning manager may waive a specific application requirement for a specific project only when all of the following are true:

   1.   The applicant attends a pre-submittal consultation meeting for the project

   2.   The planning manager finds that compliance with the specific application requirement would create an unnecessary or unreasonable burden on the applicant

   3.   The planning manager memorializes the waiver and grounds for it in writing.

A.   Preferred siting. All applicants should, to the extent feasible, propose new facilities and substantial changes to existing facilities with designs according to the following preferences, ordered from most preferred to least preferred:

   1.   Collocations on existing base stations outside the right-of-way

   2.   Collocations on towers outside the right-of-way

   3.   Collocations on eligible support structures and utility poles in the right-of-way that are not exempt from zoning (see paragraph 17-18-4 B above)

   4.   New building-mounted facilities outside the right-of-way

   5.   New towers outside the right-of-way

   6.   New eligible support structures and utility poles in the right-of-way that are not exempt from zoning (see paragraph 17-18-4 B above).

B.   Preferred locations. All applicants should, to the extent feasible, propose new facilities and substantial changes to existing facilities in non-residential zones.

   1.   Non-residential preferences. Non-residential preferences are as follows, ordered from most preferred to least preferred:

      a.   Town-owned or -controlled parcels, not including right-of-way

      b.   Parcels in industrial zones

      c.   Parcels in commercial zones

      d.   Right-of-way in non-residential areas

   2.   Residential preferences. If an applicant seeks to site wireless facilities in a residential zone, the applicant should, to the extent feasible, propose new facilities and substantial changes to existing facilities in residential zones according to the following preferences, ordered from most preferred to least preferred:

      a.   In the right-of-way abutting a residential zone

      b.   Town-owned or -controlled parcels

      c.   Parcels that contain approved non-residential conditional uses and do not contain approved residential uses

      d.   Parcels that contain approved non-residential conditional uses and do contain approved residential uses

      e.   Parcels that do not contain single-family residences

      f.   All other parcels.

   3.   Additional alternative sites analysis. If an applicant proposes to locate a new facility or substantial change to an existing facility on a parcel that contains a single-family residence, the applicant shall provide an additional alternative sites analysis that at a minimum shall include a meaningful comparative analysis of all the alternative sites in the more preferred locations that the applicant considered, and states the underlying factual basis for concluding why each alternative in a more preferred location was:

      a.   Technically infeasible;

      b.   Not available; and/or

      c.   More intrusive.

A.   General design and aesthetic standards. All facilities must conform to the following standards.

   1.   Concealment.

      a.   All new facilities and substantial changes to existing facilities must incorporate concealment measures and/or techniques appropriate for the proposed location and design.

      b.   All ground-mounted equipment must be completely concealed to the extent feasible according to the following preferences, ordered from most preferred to least preferred:

         i.   Within an existing structure including, but not limited to, an interior equipment room, mechanical penthouse or dumpster corral

         ii.   Within a new structure designed to integrate with or mimic the adjacent existing structure

         iii.   Within an underground equipment vault if no other feasible above-ground design that complies with subsections (i) or (ii) exists.

   2.   Height.

      a.   General. All new facilities and substantial changes to existing facilities must not exceed the applicable zone height limit, provided, however, that the approval authority may approve height extensions of not more than eight feet above the applicable zone height limit when the proposed site is (1) mounted on the rooftop of an existing building; (2) completely concealed; and (3) architecturally integrated into the underlying building. This exception does not apply to any towers or utility poles.

      b.   Right-of-way. New facilities and substantial changes to existing facilities in the right-of-way must conform to the height limitations set forth in chapter 12-8 of this code.

   3.   Setbacks.

      a.   General. All facilities must comply with all applicable setback requirements of the zone where the facility is located.

      b.   Right-of-way. Facilities in the right-of-way shall conform to the clearance and location limitations set forth in chapter 12-8 of this code.

   4.   Collocation. Applicants shall design their facilities to accommodate future collocated facilities to the extent feasible.

   5.   Fences. The town will not approve any barbed wire, razor wire, or electrified fences associated with a proposed facility.

   6.   Landscaping. In addition to any landscaping required by the town for concealment or screening purposes, the applicant shall propose, install and maintain additional landscaping to replace any existing landscaping displaced during the construction or installation of the applicant’s facility on private property or in the right-of-way. The applicant’s landscaping plan shall be subject to the town’s approval.

   7.   Backup or standby power sources and generators. The town may not approve any fossil fuel-powered backup power sources or generators unless the applicant demonstrates that the facility cannot feasibly achieve its power needs with batteries, fuel cells, or other similarly non-polluting, low noise-level means.

   8.   Lights. Unless otherwise required under FAA or FCC regulations, applicants may install only timed or motion-sensitive light controllers and lights, and must install lights that comply with the town-adopted outdoor lighting code. Lighting must avoid illumination impacts to adjacent properties to the maximum extent feasible. The town may, in its discretion, exempt an applicant from the foregoing requirement when the applicant demonstrates a substantial public safety need. All aircraft warning lighting must use lighting enclosures that avoid illumination impacts to properties in the town to the maximum extent feasible.

   9.   Noise. All transmission equipment and other equipment, including without limitation air conditioners and sump pumps, associated with the facility must not emit sound that exceeds the applicable noise limits established by the town.

   10.   Signage and advertising. No facility may display any signage or advertisements unless expressly allowed by the town in a written approval, recommended under FCC regulations, or required by law or permit condition. Every facility shall at all times display signage that accurately identifies the facility owner and provides the facility owner’s unique site number, and also provides a local or toll-free telephone number to contact the facility owner’s operations center.

   11.   Code compliance. Applicant shall design and maintain all facilities in compliance with all applicable federal, state and local laws, codes, regulations, ordinances or other rules.

B.   Tower-mounted facilities. In addition to the general standards set forth in paragraph A of this section, all tower-mounted facilities must conform to the following standards.

   1.   General design preferences. All applicants should, to the extent feasible and appropriate for the proposed location, design new towers according to the following preferences, ordered from most preferred to least preferred:

      a.   Faux architectural features, include, but are not limited to, bell towers, clock towers, lighthouses, obelisks, and water tanks

      b.   Faux cactus

      c.   Monopalms.

   2.   Most disfavored designs. The town may not approve any designs that do not conceal the antennas within a radome or other concealment device without a limited exemption pursuant to this chapter.

   3.   Tower-mounted equipment. All tower-mounted equipment must be mounted as close to the vertical support structure as possible to reduce its visual profile. Applicants should mount non-antenna, tower-mounted equipment, including, but not limited to, remote radio units/heads, surge suppressors, and utility demarcation boxes, directly behind the antennas to the maximum extent feasible.

   4.   Ground-mounted equipment. Notwithstanding subparagraph 17-18-7 A. 1. b above, applicants must conceal ground-mounted equipment associated with tower-mounted facilities with opaque fences or other opaque enclosures. The town may require, as a condition of approval, design and/or landscape features in addition to other concealment when necessary to blend the equipment or enclosure into the surrounding environment.

   5.   Concealment standards for faux trees and cacti. All permits for faux tree and cactus facilities approved under this chapter are subject to the following required conditions of approval:

      a.   The canopy must completely envelop all tower-mounted equipment and extend beyond the tower-mounted equipment at least 18 inches;

      b.   The canopy must be naturally tapered to mimic the particular tree or cactus species;

      c.   All tower-mounted equipment, including all antennas, equipment cabinets, cables, mounts, and brackets, must be painted flat natural colors to mimic the particular tree or cactus species;

      d.   For faux trees, all antennas and other tower-mounted equipment cabinets must be covered to blend in with the faux foliage; and

      e.   For faux trees, the entire vertical structure must be covered with permanently-affixed three-dimensional faux bark cladding to mimic the particular tree species.

C.   Building- or facade-mounted facilities. In addition to the general standards set forth in paragraph A above, all building- or facade-mounted facilities must conform to the following standards.

   1.   General design preferences. All applicants should, to the extent feasible, propose new non-tower facilities according to the following preferences, ordered from most preferred to least preferred:

      a.   Completely concealed and architecturally integrated facade- or rooftop-mounted base stations with no visible impacts from any publicly accessible areas at ground level, including, but not limited to, antennas behind existing parapet walls or facades replaced with RF-transparent material and finished to mimic the replaced materials.

      b.   Completely concealed new structures or appurtenances designed to mimic the support structure’s original architecture and proportions, including, but not limited to, cupolas, steeples, chimneys, and water tanks.

   2.   Facade-mounted equipment. Applicants must conceal all facade-mounted transmission equipment behind screen walls as flush to the facade as practicable. The town may not approve any “pop-out” screen boxes unless the design is architecturally consistent with the original support structure. The town may not approve any exposed facade-mounted antennas, which includes exposed antennas painted to match the facade.

   3.   Rooftop-mounted equipment. The town may approve unscreened rooftop transmission equipment only when it expressly includes a condition of approval that the equipment is effectively concealed due to its low height and setback from the roofline.

   4.   Ground-mounted equipment. Outdoor ground-mounted equipment associated with base stations must be avoided whenever feasible. In locations visible or accessible to the public, applicants must conceal outdoor ground-mounted equipment with opaque fences or landscape features that mimic the adjacent structure(s), including, but not limited to, dumpster corrals and other accessory structures.

D.   Facilities in the right-of-way. Facilities in the right-of-way must conform to the requirements of chapter 12-8 (wireless communication facilities in the right-of-way) of this code.

A.   Before the planning commission may grant any conditional use permit under this chapter, the planning commission shall conduct a noticed public hearing as provided in section 17-3-2 of this code.

B.   Before the planning manager may grant any administrative wireless facilities permit or approve any application for a section 6409(a) modification under this chapter, notice of the application shall be posted on the project site. The notice shall include a general explanation of the proposed facility, modification, or collocation, and a general description, in text or by diagram, of the location of the real property that is the subject of the application. For a section 6409(a) modification, the notice shall also state: “Federal law may require approval for this application. Further, Federal Communications Commission regulations may deem this application granted by the operation of law unless the town approves or denies the application, or the town and applicant reach a mutual tolling agreement.”

A.   Conditional use permit. The planning commission may grant a conditional use permit for a new wireless facility or a substantial change to an existing wireless facility only when the planning commission makes all the findings required by section 17-3-2 of this code, as well as the following additional findings.

   1.   The proposed use is deemed essential or desirable to the public convenience or welfare.

   2.   The total area of the site and the setbacks of all facilities from property and street lines are of sufficient magnitude in view of the character of the land and of the proposed development that significant detrimental impact on surrounding properties is avoided.

   3.   The appearance of the developed site in terms of the arrangement, height, scale and architectural style of the buildings, location of parking areas, landscaping and other features is compatible with the character of the area.

   4.   The applicant demonstrated that it proposed the least intrusive means to achieve its technical objectives.

B.   Administrative wireless facilities permit. The planning manager may grant an administrative wireless facilities permit for a new wireless facility or a substantial change to an existing wireless facility when the planning manager finds all of the following:

   1.   The proposed design qualifies as a design subject to administrative approval as set forth in this chapter.

   2.   The proposed location qualifies as a location subject to administrative approval as set forth in this chapter.

   3.   The proposal conforms to all applicable design standards set forth in this this chapter.

   4.   The proposed project will not require any exemption pursuant to section 17-18-16 of this chapter.

C.   Section 6409(a) permit.

   1.   Findings for approval. The planning manager may approve a section 6409(a) modification when the planning manager finds that the proposed collocation or modification qualifies as an eligible facilities request and does not cause a substantial change.

   2.   Grounds for denial. In addition to any other alternative recourse permitted under federal law, the planning manager may deny a section 6409(a) permit when the planning manager finds that the proposed collocation or modification:

      a.   Violates any legally enforceable standard or permit condition reasonably related to public health and safety; or

      b.   Involves a structure constructed or modified without all regulatory approvals required at the time of the construction or modification; or

      c.   Involves the replacement of the entire support structure; or

      d.   Does not qualify for mandatory approval under section 6409(a) for any lawful reason.

   3.   Any denial of a section 6409(a) permit application shall be without prejudice to the applicant, the real property owner, or the project. Subject to the application and submittal requirements in this chapter, the applicant may immediately resubmit a permit application for a conditional use permit, an administrative wireless facilities permit, or a section 6409(a) permit as appropriate.

The following standard conditions of approval apply to all permits issued under this chapter, except as otherwise provided in this chapter.

A.   Permit term. Any validly issued conditional use permit or administrative wireless facilities permit for a wireless facility will automatically expire at 12:01 a.m. local time exactly ten years and one day from the issuance date.

B.   Code compliance. The permittee shall at all times maintain compliance with all applicable federal, state and local laws, regulations and other rules.

C.   Inspections; emergencies. The town or its designee may enter onto the facility area to inspect the facility upon reasonable notice to the permittee. The permittee shall cooperate with all inspections. The town reserves the right to enter or to direct its designee to enter the facility and support, repair, disable or remove any elements of the facility in emergencies, or when the facility threatens imminent harm to persons or property.

D.   Contact information for responsible parties. The permittee shall at all times maintain accurate contact information for all parties responsible for the facility, which shall include a phone number, street mailing address, and email address for at least one natural person. All such contact information for responsible parties shall be provided to the planning department upon permittee’s receipt of the planning department’s written request, except in an emergency as determined by the town, when all contact information for responsible parties shall be immediately provided to the planning manager upon verbal request.

E.   Indemnities. The permittee and, if applicable, the non-government owner of the private property upon which the facility is located shall defend, indemnify and hold harmless the town, its agents, officers, officials, and employees (i) from any and all damages, liabilities, injuries, losses, costs, and expenses, and from any and all claims, demands, lawsuits, writs of mandamus, and other actions or proceedings brought against the town or its agents, officers, officials, or employees to challenge, attack, seek to modify, set aside, void, or annul the town’s approval of the permit, and (ii) from any and all damages, liabilities, injuries, losses, costs, and expenses, and any and all claims, demands, lawsuits, or causes of action and other actions or proceedings of any kind or form, whether for personal injury, death or property damage, arising out of or in connection with the activities or performance of the permittee or, if applicable, the private property owner or any of each one’s agents, employees, licensees, contractors, subcontractors, or independent contractors. If the town becomes aware of any such actions or claims, the town shall promptly notify the permittee and the private property owner and shall reasonably cooperate in the defense. It is expressly agreed that the town shall have the right to approve, which approval shall not be unreasonably withheld, the legal counsel providing the town’s defense, and the property owner and/or permittee (as applicable) shall reimburse the town for any costs and expenses directly and necessarily incurred by the town in the course of the defense.

F.   Interference with public safety radio services. If the town finds reason to believe that permittee’s radio communications operations are causing interference with the town’s radio communications operations, then the permittee shall, at its cost, immediately cooperate with the town to either rule-out permittee as the interference source or eliminate the interference. Cooperation with the town may include, but shall not be limited to, temporarily switching the transmission equipment on and off for intermittent testing.

G.   Adverse impacts on adjacent properties. Permittee shall undertake all reasonable efforts to avoid undue adverse impacts to adjacent properties and/or uses that may arise from the construction, operation, maintenance, modification, and removal of the facility.

H.   General maintenance. The site and the facility, including, but not limited to, all landscaping, fencing and related transmission equipment, must be maintained in a neat and clean manner and in accordance with all approved plans and conditions of approval.

I.   Graffiti removal. All graffiti on facilities must be removed at the sole expense of the permittee in accordance with chapter 11-3 of this code.

J.   RF exposure compliance. All facilities must comply with all standards and regulations of the FCC and any other state or federal government agency with the authority to regulate RF exposure standards.

K.   Optional completion time limit. As a condition of approval, the approval authority may establish a reasonable time limit for completion of the approved facility.

L.   Section 6409(a) modifications. In addition to all applicable standard conditions of approval required under this section, any section 6409(a) permit granted by the planning manager or deemed granted by the operation of law includes the following conditions of approval:

   1.   No permit term extension. The town’s grant or grant by operation of law of a section 6409(a) permit constitutes a federally-mandated modification to the underlying permit or approval for the subject tower or base station. The town’s grant or grant by operation of law of a section 6409(a) permit will not extend the permit term for any conditional use permit, administrative wireless facilities permit, or other underlying regulatory approval and its term shall be coterminous with the underlying permit or other regulatory approval for the subject tower or base station.

   2.   Accelerated permit terms due to invalidation. If any court of competent jurisdiction invalidates any portion of section 6409(a) or any FCC rule that interprets section 6409(a) such that federal law would not mandate approval for any section 6409(a) modification, the permit or permits issued in connection with a section 6409(a) modification(s) shall automatically expire one year from the effective date of the judicial order. A permittee shall be required to remove its improvements approved under the invalidated section 6409(a) permit unless it has submitted an application for either a conditional use permit or an administrative wireless facilities permit for those improvements before the one-year period ends. The planning manager may extend the expiration date on the accelerated permit upon a written request from the permittee that shows good cause for an extension.

   3.   No waiver of standing. The town’s grant or grant by operation of law of a section 6409(a) modification does not waive, and shall not be construed to waive, any standing by the town to challenge section 6409(a), any FCC rules that interpret section 6409(a), or any section 6409(a) modification.

A.   Within five working days after final decision by the approval authority on an application submitted for approval pursuant to this chapter, notice of the decision shall be mailed to the applicant at the address shown on the master application. The town shall provide the reasons for any denial either in the written decision or in some other written record available at the same time as the denial.

B.   Any person or entity may appeal a final decision by the planning commission on a conditional use permit application to the council in accordance with section 17-3-2 of this code. The council shall review the decision of the planning commission de novo.

C.   Any person or entity may appeal a final decision by the planning manager on an administrative wireless facilities permit application to the council in accordance with this paragraph. The appeal must state in plain terms the grounds for reversal and the facts that support those grounds. The appellant must pay a fee in an amount established by a fee schedule adopted by the council and amended from time to time at the time the appeal is filed. The council shall review the decision of the planning manager de novo solely on the specific issues raised by the appellant.

D.   Subject to applicable federal timeframes for local review, any person or entity may file a written appeal to the council to reverse the planning manager’s final decision to approve or deny without prejudice a section 6409(a) permit application. The appeal must state in plain terms the grounds for reversal and the facts that support those grounds. The appellant must pay a fee in an amount established by a fee schedule adopted by the council and amended from time to time at the time the appeal is filed. The council shall review the decision of the planning manager de novo.

A.   Any application to renew any conditional use permit or administrative wireless facilities permit granted under this chapter must be tendered to the town between 365 days and 180 days prior to the expiration of the current permit, and shall be accompanied by all required application materials, fees and deposits for a new application as then in effect.

B.   The town shall review an application for permit renewal in accordance with the standards for new facilities as then in effect.

C.   If an applicant timely submits a permit renewal application and the town is unable to fully review the application prior to its expiration, the planning manager shall grant a written temporary extension on the permit term to allow sufficient time to review the application.

A.   A permit granted under this chapter may be revoked for noncompliance with any enforceable permit, permit condition, or law applicable to the facility.

B.   When the planning manager finds reason to believe that grounds for permit revocation exist, the planning manager shall send written notice by certified U.S. mail, return receipt requested, to the permittee at the permittee’s last known address that states the nature of the noncompliance as grounds for permit revocation. The permittee shall have a reasonable time from the date of the notice to cure the noncompliance or show that no noncompliance ever occurred.

C.   If the permittee fails to cure any noncompliance after notice and opportunity to dispute or cure the noncompliance, the council shall conduct a noticed public hearing to determine whether to revoke the permit. The permittee shall be afforded an opportunity to be heard and may speak and submit written materials to the council. After the noticed public hearing, the council may deny the revocation or revoke the permit when it finds that the permittee had notice of the noncompliance and a reasonable opportunity to cure the noncompliance, but failed to comply with any enforceable permit, permit condition, or law applicable to the facility. Written notice of the council’s determination and the reasons for it shall be dispatched by certified U.S. mail, return receipt requested, to the permittee’s last known address.

D.   Upon revocation, the council may take any legally permissible action or combination of actions necessary to protect public health, safety and welfare.

A.   To promote the public health, safety and welfare, the planning manager may declare a facility abandoned or discontinued when:

   1.   The permittee notifies the planning manager that it abandoned or discontinued the use of a facility for a continuous period of 90 days; or

   2.   The permittee fails to respond within 30 days to a written notice sent by certified U.S. mail, return receipt requested, from the planning manager that states the basis for the planning manager’s belief that the facility has been abandoned or discontinued for a continuous period of 90 days; or

   3.   The permit expires and the permittee has failed to file a timely application for renewal.

B.   After the planning manager declares a facility abandoned or discontinued, the permittee shall have 90 days from the date of the declaration, or a longer time as the planning manager may approve in writing as reasonably necessary, to:

   1.   Reactivate the use of the abandoned or discontinued facility subject to the provisions of this chapter and all conditions of approval; or

   2.   Transfer its rights to use the facility, subject to the provisions of this chapter and all conditions of approval, to another person or entity that immediately commences use of the abandoned or discontinued facility; or

   3.   Remove the facility and all improvements installed solely in connection with the facility, and restore the site to a condition compliant with all applicable codes consistent with the then-existing surrounding area.

C.   If the permittee fails to act as required in paragraph B of this section within the prescribed time period, the council may deem the facility abandoned at a noticed public meeting. The planning manager shall send written notice by certified U.S. mail, return receipt requested, to the last-known permittee or real property owner that provides 30 days (or longer time as the planning manager may approve in writing as reasonably necessary) from the notice date to take any of the actions listed in subparagraphs B.1 through B.3 of this section.

D.   If the permittee fails to act as required in paragraph C of this section within the prescribed time period, the town may remove the abandoned facility, restore the site to a condition compliant with all applicable codes and consistent with the then-existing surrounding area, and repair any and all damages that occurred in connection with such removal and restoration work.

   1.   The town may, but shall not be obligated to, store the removed facility or any part of it, and may use, sell or otherwise dispose of it in any manner the town deems appropriate.

   2.   The last-known permittee or its successor-in-interest and, if on private property, the real property owner shall be jointly liable for all costs incurred by the town in connection with its removal, restoration, repair and storage, and shall promptly reimburse the town upon receipt of a written demand, including any interest on the balance owing at the maximum lawful rate.

   3.   The town may, but shall not be obligated to, use any financial security required in connection with the granting of the facility permit to recover its costs and interest.

   4.   Until the costs are paid in full, a lien shall be placed on the facility, all related personal property in connection with the facility and, if applicable, the real private property on which the facility was located for the full amount of all costs for removal, restoration, repair and storage. The town shall cause the lien to be recorded with the recorder’s office of the county where the facility is located. Within 60 days after the lien amount is fully satisfied including costs and interest, the town shall cause the lien to be released.

E.   After a permittee fails to comply with any provision in this section, the council may elect to treat the facility as a nuisance to be abated as provided by applicable law.

A.   Within 30 days after a permittee transfers any interest in the facility or permit(s) in connection with the facility, the permittee shall deliver written notice to the town.

B.   The written notice required in this section must include all of the following:

   1.   The transferee’s legal name

   2.   The transferee’s full contact information, including a primary contact person, mailing address, telephone number and email address

   3.   A statement signed by the transferee that the transferee shall accept of all permit terms and conditions.

C.   Failure to submit the notice required by this section shall be a cause for the town to revoke the applicable permits pursuant to and following the procedure set out in this chapter.

A.   An applicant seeking an exemption under this section for personal wireless services facilities on the basis that a permit denial would effectively prohibit personal wireless services must demonstrate to the approval authority with clear and convincing evidence all of the following:

   1.   A significant gap in the applicant’s service coverage exists.

   2.   All alternative sites identified in the application review process are either technically infeasible or not potentially available.

B.   All exemptions granted under this section are subject to review and reconsideration by the council. The applicant always bears the burden to demonstrate why an exemption should be granted.

A.   The planning manager is authorized to, in his or her discretion, select and retain an independent consultant with expertise in telecommunications satisfactory to the planning manager in connection with any permit application.

B.   The planning manager may request independent consultant review on any issue that involves specialized or expert knowledge in connection with the permit application. Such issues may include, but are not limited to:

   1.   Permit application completeness or accuracy;

   2.   Planned compliance with applicable RF exposure standards;

   3.   Whether technically feasible and potentially available alternative locations and designs exist;

   4.   The applicability, reliability and/or sufficiency of analyses or methodologies used by the applicant to reach conclusions about any issue within this scope; and

   5.   Any other issue that requires expert or specialized knowledge identified by the planning manager.

C.   The applicant must pay for the cost of independent consultant review and for the consultant’s testimony in any hearing as requested by the planning manager, and must provide a reasonable advance deposit of the estimated cost of such review with the town prior to the commencement of any work by the consultant. The applicant must provide an additional advance deposit to cover the consultant’s testimony and expenses at any meeting where that testimony is requested by the planning manager. Where the advance deposit is insufficient to pay for the cost of such review and/or testimony, the planning manager shall invoice the applicant and the applicant shall pay the invoice in full within ten calendar days after receipt of the invoice. No permit shall issue to an applicant where that applicant has not timely paid a required fee, provided any required deposit, or paid any invoice as required in the code.

An applicant or permittee shall not be relieved of its obligation to comply with every provision of the code, this chapter, any permit issued hereunder, or any applicable law or regulation by reason of any failure of the town to notice, enforce, or request compliance by the applicant or permittee.