Fountain Hills Planning Commission advances wireless ordinance overhaul designed to fortify local land-use authority while respecting federal preemption limits. On

uh the work session u July 28th. All items listed are for discussion only. No action can or will be taken. The primary purpose of work sessions is to provide the commission with the opportunity for in-depth discussion and study of specific subjects. Public comment is not provided for on the agenda and may be made only as approved by consensus of the commission.

In appropriate circumstances, a brief presentation may be permitted by a member of the public or another interested party if invited by the chair or the director to do so. The presiding officer may limit or end the time for such presentations. We have a roll call. Paula, Commissioner Proctor, present. Commissioner Seam, present. Commissioner Corgan, here. Vice Chair Gray, present. Chair Kova Sevk present. Okay.

Discussion and possible direction regarding draft ordinances amending and replacing town code article six 16-2 small wireless facilities and zoning ordinance chapter 17 wireless telecommunication towers and antennas. Okay Vanessa. All right. Well, uh, thank you commissioners. Um, I'm very excited to be here and so is our team and we are excited to present the two draft wireless ordinances.

Um, I am joined by attorney Scott McCulla and I am leveraging his 40 years plus of telecommunications, wireless internet regulations and utilities law. um including his experience as consumer advocate for the city of Austin electric utility and he was also served as regulatory counsel for the Texas internet service providers and chief of public agency representation at the Texas Attorney General office.

So he has drafted over 12 ordinances and I have drafted three including the small wireless facilities ordinance. Um, and I will also be starting a fourth ordinance for another jurisdiction. So, we are presenting these proposed amendments to the town of Fountain Hills, these two ordinances. And I'm going to start first now. Can you see my screen because I believe I need to share it first, right? We can Let me go ahead. Need you to share that. You you you need me to share that.

So, let me go ahead and do that. I I realized as I was looking at it, uh, let's see. How do I share? Ah, here we go. Okay. Can you see this? Um, commissioners. Yes. Okay. So, I'll start with the first slide. Um, here. Okay. So these are the two um amendments and these have both been prepared by Makulla Law Firm PC and the purposes of the amendments are to um preserve local authority to the fullest extent allowed by federal and Arizona law.

And second is to protect Fountain Hills desert character, the scenic views, the historic resources and cultural resources, residential properties and neighborhoods. Uh, one of the cultural resources of note is um the town's international dark sky status and its discovery center which I believe is slated to open in 2027. And so that's a major purpose especially for the macro ordinance.

Then next um the amendments implement comprehensive permit application requirements and review procedures and that's true for both both ordinances. And lastly, they improve transparency. And it's not just transparency to the residents. It's also transparency for applicants who will understand their obligations because the amendments make it clear uh what information they are obligated to provide and how they are supposed to conduct um their operations when they do erect facilities in the town.

uh and it also um it it also provides force provides them with accountability and it helps the town defend permitting decisions. Now, one of the things about the amendments is under federal law, the town any permit denials, the town must provide in writing substantial evidence that is needed to defend potential litigation. And the town can head that off because these amendments are baked in.

all the substantial evidence is baked in in terms of what application material the ordinance requires and the criteria that the town can use to either approve or deny permit applications from wireless applicants.

So the legal framework that we used when we drafted these ordinances is first we looked to federal law and that's um explicitly section uh 332C7A and this is um section tele 704 of the telecommunications act and uh se sub paragraph A preserves local authority because it recognizes that local jurisdictions the town has authority over its land development, over its permitting activity, and that this is an inherently local activity.

However, the Telecommunications Act prohibits denials that a effectively prohibit a carrier from providing personal wireless services. And what that term personal wireless services means is voice, you know, mobile voice communications. It doesn't apply to streaming cat videos or other services. those are under a different regulatory framework.

But unfortunately sometimes wireless applicants conflate the two because there is a big push for them to occupy the internet services and that's an information service that's not personal wireless services. So that is one of the things that the both ordinances do is clarify that it must be for these voice personal wireless services. Then the next thing that federal law prohibits the town from doing is discriminating among providers of what they call equally functional services.

So for instance, if AT&T has a tower and then Verizon wants to come in with a new tower and the town says, "Well, but we already have good coverage from AT&T. We don't need Verizon." that would be discriminatory because Verizon is also providing personal wireless services and they they could bring a lawsuit for that. So, the town isn't allowed to do that.

And then lastly, and this is the big issue is the um the town cannot base any denials of permits on the environmental and health impacts of radio frequency radiation. So, that is the last thing. Then there's a few other limitations in terms of uh and I alluded to this before the substantive evidence requirement that when the town denies permits they have to be in writing and they have to provide um substantive evidence of why they denied it. And so that that's the federal framework.

And then there's also the state Arizona overlay and that is that Arizona law mandates approval of certain types.

This is mostly for the um the 162 the article 162 small wireless facilities in the public rights of way uh facilities that are coll-located and there's definitions that we will discuss when I discuss that overview those those are mandated approvals however even within those mandated approvals there is some leverage and that's the last bullet point on this slide is that both ordinances leverage the remaining local authority and and expressing reference the federal and Arizona wireless regulations and both state federal and state law they do preserve local authority.

I mean there's um there's Arizona law. So we look at the wireless providers which is um the statutes. It's uh 9-951 through99. Um but it does talk about the the town's authority to regulate it rights away. And then there's another regular zoning ordinance ordinance in Arizona law that also gives that town the town that authority.

So I will move on to article 162 and this is the overview which I know won't will not be considered today but I would like to give an introduction to this because um I I drafted this one and um I'm very proud of it. I think that it really does it the best that it can to take the room that Arizona allows and make sure that the town at least has as much power as it can over these facilities.

Now most of the permitting of these facilities happens in the rights of way and um so th this is where things can get difficult because they do impact nearby properties but that technically given it's given where it's at in the town zoning code it's not really the purview of the planning and zoning commission. However, because it does impact properties it's good to have an introduction to it. So, one thing we did was to expand the definitions with new protective terms.

So I would say I' I've put like about maybe doubled the the amount of definitions because uh the old articles to to the definitions it they incorporated by reference um Arizona revised statutes it's nine you know section 9591 and that one has about 27 definitions and it was incorporated by reference but there is nothing that doesn't keep us we can still add new protective terms that really clarify ify applicant obligations clarify the terms so that both applicants and the town and residents understand you know what these terms mean.

Now one thing to note is that uh the Arizona definition of small wireless facilities is a little bit less protective and normally most circumstances that is what is going to apply to the permitting. So, that one is Arizona allows the antennas to be these are called small wireless facilities, but they're not that small. Um, even with the federal regime, they can be at least no more than 50 feet in height, which is still a pretty big structure.

Uh, so they can be no more than 50 feet or height or 10 10% taller than the height of the surrounding structures. And then for the federal, the ground equipment must be no more than 28 cubic feet in volume and the antennas must be no more than 3 cubic feet. But Arizona allows the antennas to be twice the size in terms of volume. That's capped at six cubic feet.

and they keep the same volume for the related equipment but that does not include certain certain accessories like the electric meter any kind of concealment elements or a shroud uh any grounding equipment or cut off switches those aren't included so Arizona small wireless facilities can be bigger but that we just we have to work with that um now there are new application requirements and review procedures so even though Arizona law mandates approval of the colloccated small wireless facilities, there still are documentation requirements that the town can can um implement which it does allow the town to require a permit.

So even though the town may have to approve these, at least the town can ask for documentation requirements, ensuring that these proposed facilities meet federal and Arizona criteria for mandated approval. So for instance, by having construction drawings, site plans, site surveys, surveys of the surrounding utilities, the town can take a look at that information, say, "Okay, this does meet the criteria. We have to approve it. there's nothing we can do.

But at least the town has a fair shot at making sure that it is what they say it is because in many instances wireless applicants have been known to fudge the edges a bit. So this this is one way to at least make sure that this doesn't clutter up the rights of way and make the town um unsightly. Then another part of the new application requirements is that the town can request waiverss from both the federal and Arizona shot clock time limits.

Now Arizona shot clock time limits are a little bit shorter and more restrictive than the federal. So it makes it a little bit harder for the town. Um there is a shot clock requirement for completeness review of these applications and it's 20 days for facilities that will be colllocated and 30 days for new facilities.

Uh and then the review period once the completeness application once the application is reviewed for completeness then the town must review it for whether it will either approve or deny and the review period for collocations is 75 days and it's 150 days for the new uh for new monopoles or new new uh small wireless facilities. And now then one other thing we did was we did strengthen the design and location standards of these facilities.

So all of these facilities have to be engineered and certified by a professional Arizona licensed structural engineer and that's really to make sure that they I mean especially for the ones in the rights of way. I mean people use the rights of way traffic use the rights of way. If there's a structural failure and they fail, it presents a danger to public safety. So that makes sure that at least at the application stage that um they have been certified that they're not going to fail.

The next design standard is what this falls in line with Arizona requirements that all town ordinances or design standards be quote unquote objective which means that they have to be um that they have to be criteria that everybody can factually agree upon.

But this ordinance does that because one thing that that is mandated is that the visible exterior of the surface uh of the small wireless facility it has to be visually compatible with the surrounding area and then their location the the proposed location it has to be put in a place that minimizes any kind of adverse visual impacts on the nearby properties. One thing about small wireless facilities is that their location tends to be somewhat flexible in terms of where they they can be placed.

They don't have to be, say, for instance, on a sidewalk in front of someone's front yard. They they can be moved off a hundred feet off to the side or even a couple hundred feet off to another corner where they're they're not going to obstruct someone's view or they're not going to be right on top of someone's house. Um the um next thing that we did with this small wireless ordinance is to implement permit conditions and accountability.

So that would be uh making sure that once they are once they are constructed that there is a postcertification installation and it's within 60 days of construction showing that at least the facility has is actually what they say it would be. So that it matches the construction drawings.

it matches the photo simulations that it it matches what the town approved that it wasn't something that suddenly shows up and the town has said, "Well, we didn't approve that." But um because of the criteria in the documentation, the application requirements, the town has that information that they can compare it to and then they can certify that this is constructed the way the town approved.

And last but not least, there are operational requirements that also address um RF or radio frequency exposures, which um there's there's a lot going on in that realm, but basically the FCC has full control and full preeemption over the emissions limits and neither the town nor the state of Arizona can regulate these.

and and it and it's in the interest of achieving uniformity in wireless technology and that's um and that's a whole thing that you know that we can we'll discuss more about the town's role in terms of ensuring compliance with at least the FCC safety exposure guidelines and limits. So, so that is a short overview of the small wireless facilities ordinance and now I will move on to the main star of the show and that is chapter 17.

It's the macro towers and antennas and here is a brief summary of the amendments that we propose. First is the expanded purpose and applicability. So, we added some new express purposes that that discussed the town's desert character, scenic character, the fountain, that kind of thing. Um, and then the applicability.

We also made sure that it applied to existing towers and antennas in the town and that the operation and maintenance requirements apply and that any upgrades to the existing towers have to go through the new ordinance process. Second, we substantially expanded the definitions clarifying essential terms and we added about 83 new definitions. Another thing we did was enhance documentation requirements for application.

And th this is a really important piece of it because it really gives the town we added about I'm going to say about 17 new provisions. But all of these provide the town with the quote unquote substantive evidence that it would need. And I say quote unquote because that's the term of art in in section 332 that explains any written denials have to show it said they have to be in writing and they have to have substantive evidence. But these documentation requirements provide that.

So once once the town has that it um it can it has all the information it needs. And it's not just to defend permit denials. It's also just to make sure that that it pro that all applications are properly reviewed and and that the facility will actually fit and that's not going to endanger or hurt nearby properties. The next thing we did is we we added new application review procedures and these are really important because of both the federal um especially the federal shot clock requirement.

There is a time frame and one of the things the new application procedures does is split it into uh a completeness review where the town reviews all the initial application and it it all of those requirements. There's about 20 of them. They they function as a checklist. So for instance uh you know is there a certificate of a proof of occupancy? Like for instance a lease if um it's for a tower on private property. Um, does the tower is there certification of structural safety?

Is there a section 106 review if the tower happens to be close to a historical area or if is there an environmental assessment? Those types of things. So, there's a checklist that the town can go through and that's for the completeness review. And then if anything is not there, that will stop the shot clock.

Then once the town has all of the information and all of the the check boxes are marked off, then the the next procedures are the town can move on to actually review the merits of the application. Like is is this really something that will fit here? Will it be visually compatible? How is it going to look? That kind of thing. Um does does the applicant really need it? for instance, like we're going to talk about coverage gaps and effective prohibitions.

Next, our detailed sighting design and safety standards. And one thing we added was a 500 ft residential step back. And and that's critical because there are instances we've seen in our practice where some towers are as close as say even 70 ft away from a home and it's 150 foot tower which makes the fall zone very um dangerous because it threatens the property.

it could potentially threaten the physical safety of the residents in the home and and also there is the debris zone if there is a an adverse weather event for instance that antennas can blow off. So 500 ft is a good a good balance. I know that there are people want more but but this is a good balance because it allows for some some permitting of towers but ensures that it protects residential properties as much as possible.

Then we also ensure verification of compliance with the FCC's radio frequency exposure guidelines. And and this is a really important aspect of the ordinance because although the FCC sets these guidelines, they're they're not terribly good at enforcing it. Then this is where the town comes in because the town has authority to protect public safety.

Of course, the town can't can't mandate the exposure guidelines be less, but the town can ensure that the facilities are operating within the FCC limits. And then lastly, we have maintenance and operation requirements that include um and that include applicants providing a bond.

And then operation, making sure that this is part of the the radio frequency exposure guidelines that those that that the facilities are operating safely and they're operating within those guidelines and that they're also there's also some insurance requirements that keep makes put the liability where it belongs on the wireless carrier and the um app the tower companies and not the town that it doesn't for instance if if um a facility fails and then it damages property that it's not going to come out of the towns and the taxpayers kitty.

It's going to come out of where it belongs with the wireless providers because they are the ones that are profiting from this infrastructure. So the first thing we did is we focused on expanding the purpose and applicability and that's section 17.01 01 and A is the expanded purpose.

And what we did was that we added express language incorporating the federal grant of authority as well as the Arizona grant of authority which is the general zoning statute and and th those expressly reference the town's the town's authority over its land development over granting permits because again this is a very local matter. So we added that to the purpose. Then one other thing we did was we um modified we strengthened the language around what the towers are.

I mean it's not just you know limiting it's limiting the number of towers because they they clutter up the sky and once again I'll point to the international dark sky status. um that's part of the town's cultural resources and towers can block views of major constellations in the Milky Way and we don't you know the town doesn't want that. So that's one way to explicitly reference that. The next natural resource the town has that provides the town's visual character is the cigaro cacti.

So we added that in in terms of the town protecting those and making sure that at least if any proposed towers are near those cacti that they they will do an environmental review and ensure that those cacti are protected.

Um, one other thing we did is we added express provisions about complying with the FCC's radio exposure guidelines and with really section uh 332C7 in general, the limitations because that we don't want um we don't want a judge to come in and say, "Oh, the town really doesn't, you know, they want to prohibit the towers. They they they they they're putting an effective prohibition.

That's their intent." And so we expressly say it's not our intent and we added that into the purpose of the ordinance. And then we also added applicability that and I talked about this a bit before but it it applies to existing towers. So that towers that are already existing in the town um they they don't get a free pass once this ordinance becomes law.

they don't get a free pass to not maintain them or not keep up the landscaping or not repair them when something looks like it's off or when there's a report or they don't get a free pass to upgrade them without at least going through the application requirements. So that that really helps that really helps with the protectiveness of the ordinances is having these express purposes in there.

Now next we also expanded the definitions and uh we added over first we added a section with introductory language and that governs the construction of the terms added. So for instance the big term is the term sha and shall is not discretionary it's mandatory and we we explicitly add a paragraph at the very beginning of the definition section stating that so that it makes it clear applicants shall do this. This is a must. It's not it's not optional.

Then we added over 80 new definitions that clarify important legal and technical terms. And one technical term I would like to highlight is the decibel millwatts. And this measures the signal of the radio frequency wave um at the transmitter power source which really is a crucial starting point for calculating exposure limits.

So this goes to the operation the safety um the safe operation of the towers that the the ordinance requires to protect the public from these exposures and and and this provides clarity on you know what this measurement is.

uh another another technical term is really the reference to the RF exposures themselves and that's to one there's there's a definition for general population and uncontrolled exposures and these are the exposures that the FCC has deemed safe for the general public for people like you and I uh that are not you know we're not cable we're not telephone pole repair people we're so they they have occupational standards, but we also include that in the um in our definitions so that applicants are clear like this is the these are the uh uncontrolled these are the exposure guidelines that the facilities must abide by once they're operational and and we reference the specific FCC regulation in that provision.

We also um have definitions for the permitting process.

So one of note is an 11th what we call an 11th hour submission which is when and this we have seen this happen in our practice when the shot clock is coming very close to the end and depending on what kind of facility is for instance if it's a some facilities the federal government mandates approval and then if the town fails to act they're automatically approved and then the the wireless applicant can can bring a lawsuit to force approval of that because it's already been approved.

But um if there is, for instance, they'll they'll they'll submit documentation that the town asked for maybe say two three days before the shot clock and it's 300 pages of technical information. That's just completely unreasonable. So we we have a provision saying that that town can take the time that it needs to review those submissions.

The next um permit process definition is complete application and we we put a we we we define that term in terms of what that means and it's everything that is in um the the application documentation requirements. And if one of those things are missing, then that application is incomplete. Uh we also have definitions for both the federal and the Arizona shot clocks.

And then we have um the notice of incomplete application and how that would stop the shot clock because that's the federal law is that if anything is missing if it's incomplete and it's reasonable that applicant hasn't provided it then you know we have to we have to we have to suspend the shot clock or toll it so that it doesn't keep ticking while the applicant takes their time to provide the information. Lastly, we also have aesthetic terms. And we actually do define the term aesthetic.

And it's it's a subjective both subjective and objective determination of how well the facility or the tower is it going to fit with the character of the area. And um one of the other aesthetic definitions we have is a balloon test for the visual impact of the tower if the tower is going to be over 100 ft. And there is a very specific definition.

It's a it's a test that is required as part of our application requirements so that a town and residents can gauge the visual impact of what the height is going to look like if the tower is built. They'll have a visual of that with the balloon test. So, one of the things that we did, we're moving on to section 7 1703 and 17.03 and 17.04. Now, we we didn't make a lot of changes to this section because it it was pretty good on its own. We just did a few tweaks to make it a bit stronger.

So, the one tweak that we made was to ensure that all of the accessory equipment that's related to the tower, it's required to be undergrounded and and that's per the town code. Um the town code actually has an undergrounding requirement. So we we we put that into the ordinance and then there is an exception to the undergrounding that um um it can be put above ground. The the equipment can be put above ground if you know the town council approves it.

But even then, there are certain concealment requirements um elements that that the town council still has to comply with. If it does approve that, then another thing we added was making sure that the lighting of the towers that if they have to be lit that they're they're consistent with the town's outdoor light control zoning ordinance. And again, that goes to helping to preserve the town's dark skies.

Uh then we also added a section to or actually we eliminated that's what we did we eliminated a section in 17.04 and this is the types of permits and it's administrative permitting. So administrative permitting generally doesn't undergo public review.

And one thing that was in the ordinance that we eliminated were um applications certain types of applications for new towers previously if they were on town owned property or in a commercial industrial or like a you know lodging zone or if it was like an alternative tower structure like a flag pole or a chimney or or a clock face that um those were only subject to administrative per permitting.

Um but what we did was we eliminated that provision so that all applications for new towers must undergo public review and and it's a good thing. It increases transparency.

It it gives the public an opportunity to review all new tower applications and it also really gives applicants I think it makes them pause in terms of really evaluating like how much do they really need the tower because should it really come at the expense of the town's character or the residential properties that it's going to impact and we don't think it should and it doesn't have to. So we eliminated that provision.

As I discussed before, we also strengthened the application documentation requirements. And so I have here it's 14. We added 14 new requirements of documentation. And some of them are very basic. Uh but I you would be surprised how I I have seen applications that don't really have applicant contact info. they only have an email or a phone number and and not even a business address. So this requires this in section 1705.8 A we require applicant contact info, all of it.

And then we also added provisions for instance for a soil erosion and sedimentation control report which is critical in a a town like Fountain Hills because it is a desert desert climate with the desert loose sediment and soil. And so the town is vulnerable to erosion and and the these towers they they put a lot of weight on the soil and and they can so there's got to be a a report making sure like are how do they plan to control that because that would make it structurally unsafe if they don't.

There's also an engineers report that certifies the safety and structural integrity of the towers and then an environmental assessment form. So these are some of the application requirements. I will also talk about uh the um FCC. There's two other provisions but I will talk about them more in length [clears throat] in the upcoming slides and and those are the compliance with the um RF the radio frequency exposure limits and then also the notice of effective prohibition.

So um but but those are part of the application requirements. Another thing that we required was a comprehensive fire safety plans and unfortunately these towers are fireprone and they do present fire risks and the town of Fountain Hills has the wild urban interface fire wildfire risk because of its the interface of the urban infrastructure with the desert and the dry heat that it does create a fire risk and and so it's important to have a comprehensive fire safety plan.

And this would include the list of emergency contacts to contact who do you call when when a tower sets on fire, a description of the battery types, the lo where the batteries are located and how many batteries there are. And that's really useful to help f with the procedures of shutting it down, which are also the depowering procedures.

like how are these how are how do we depower these because electrical fires electrical fires the power must be shut off before firefighters can begin fighting the fire. So this is a very critical plan that applicants need to think very thoroughly through in order to protect public safety because fire is a huge risk. it damages property and injures people and and so we don't at least have the applicant have some sort of fire safety plan in place for it for its facility.

Now we also require a visual impact analysis and I talked about this in terms of the definitions but the visual impact analysis includes photographs like what what is the completed tower going to look like? How is it going to fit in the background? And then balloon tests for facilities taller than 100 ft. And that's when uh they take a crane, they take a brightly colored balloon and they take it up to the sky and and you get an idea of how it's going to look at least.

How's the hike going to look in relation to other structures of the natural the built environment? How's it how is it going to look in the buildings? How is it going to look you know set by the mountains and any other any other structures or vegetation? [clears throat] Now we also added a new provision in the application documentation requirements and this has to do with a completeness review and we added a time limit of 30 days.

So if for instance an application is missing, say for instance it's missing the photograph simulation and the town says this application is incomplete, we're sending you a written notice that of incomplete application. And if the applicant does not respond within 30 days with the requested information, the application is deemed withdrawn, which means that finishes the shot clock. Application is done.

And then if the applicant wants to, they're going to have to open up a completely entirely new application. And that's really helpful for the town because it it doesn't it keeps the town from waiting.

It also eliminates potential issues with the shop clock running out because that that could arise if say for instance this the application is hanging around for a new tower and then about maybe in 120 days in when the federal shock clock for a new tower is 150 days the um the the applicant could come and say oh well our application is still pending and it it eliminates any kind of argument very clear they they have to provide it within 30 days or it's over.

So as a whole uh I may have mentioned this before the application requirements they they act like a checklist. It's it's to determine completeness. So any of these are missing the town know has it right away and they can send a notice of incompleteness to the applicant and then the shock clock is paused. So the time frame is paused and that's that gives the applicant time to submit the information.

So these documentation requirements are very important and they help protect the town and help the town have as much control and authority over the permitting of these structures. Now we also implemented heightened application review standards and those are we added considerations that really really affect residents. One thing that is important to note is the impact on property values and and this is one of the legitimate grounds to basically oppose a tower is the impact on property values.

Now we have seen national studies that um that the impact can be as much up to as much as 20% of the property value but even a two to 3% drop in in property value can be pretty substantial especially for the type of properties that are in Fountain Hills and and that's not that's very difficult for homeowners especially because for most ordinary Americans a home is the primary source of wealth And so when you have a property value drop, it's it's something that you've worked very hard on and it's going to be taken away because the applicant says it needs the tower.

So this is a really critical part of protecting the town and protecting the residents, protecting the people who live in Fountain Hills. So we added that in. And then we also add another in which is the adverse impacts on the town's character. like if there if the tower is going to uh hurt the desert scenic views.

One uh one scenic view that I understand is treasured in the town that we did put in the provisions is the McDow Mountain Preserve and and that's one of the the um natural resources of the town and and if a tower is going to impact that view then it's going to have an adverse um impact. it's going to hurt hurt the view of that and that is a legitimate basis to deny the tower. So we put that in the ordinance for the so that the town can consider it and it can be part of the substantive evidence.

If a photo simulation shows that the tower is going to be right in the middle of the mountain and it's really going to make it look bad, it then then the town can deny it. Um we also added um a requirement of a sufficient fall zone that the the the tower has to have um you know enough space to fall should it structurally fail.

And then we also added you know one other thing that the town can consider is how much did the wireless applicants h how much did they try to mitigate the potential you know any of these adverse impacts like did they consider alternative sites? Did they consider maybe a lower height of the tower? Um maybe maybe they could put smaller facilities. Are there other uh alternatives?

And one thing that we added to the ordinance is that the mere fact that a less intrusive location, a less intrusive design or like a site that it would be more expensive, that's not a reasonable justification for their failure to not propose for their failure to propose reasonable mitigation measures.

So they can't just say, "Well, it's going to be too expensive." And that's that's not reasonable because that's an expense that they should bear given, you know, the impacts of these facilities on the town. They these are not not very sightly facilities. They're they're industrial. They're urban. They do pose visual blight and and it's important for the town to protect its um its character. So we added those and th those are very helpful that also adds to the substantive evidence review.

Now next thing we talked about and this is a really important uh this is a really important addition that we added that this is about the federal prohibition on an effective prohibition. So if a permit denial is an effective prohibition or if an ordinance say would effectively prohibit any wireless car um any wireless carrier so it could be Verizon or T-Mobile if any one of them oh you know we don't have good coverage in the town.

Uh, one thing we do require is that if the applicant intends to claim that a permit denial would effectively prohibit personal wireless service, and again, this is for the voice um, mobile voice communications that um, then this ordinance requires them to provide objective evidence that will allow the town to determine, well, if we deny it, will it effectively prohibit? because it because it might.

But at least the town will have objective evidence and not just an assertion because applicants have a knack for making assertions that um that oh you don't give you don't allow me to have this tower then we then we can't provide coverage and now we're going to sue because it's an effective prohibition. Well, now the town can say, "Here is what here's here's the evidence. Give us the evidence." Which is basically because an effective prohibition, it's it it's a factual determination.

It's it's really based on the location. It's based on the topography. It's based on the geography. It's based on what the built environment is, what the natural environment is. you know whether there is a line of sight that needs to be clear for the radio frequency waves to propagate for the signal to propagate.

So, one of the things that the the if the applicants are going to claim this, they have to provide a written statement with a notice that there is going to be that they're going to claim effective prohibition and then they have to provide sufficient evidence that you know where is the gap? Does the gap really exist? Like how how big is this coverage gap? Is there like a dead zone in the mile within a mile of on the road? Say for instance I think Cigaro Boulevard where there's no coverage.

So how big is this gap? Where is the gap? And then the ordinance also requires you know the precise geographical boundaries like a map of where the gap is. In addition to that the ordinance requires applicants to provide a realworld drive test. And it's not just many applicants what they do is they they provide a a propagation map.

And I've seen many of these and they have purple gray they have purple shaded areas and white shaded areas and saying that there's no coverage but those are based on predictive computer models not actual real world conditions. So this ordinance makes them provide the the raw data and it's they have to conduct the drive test and when they conduct the drive test they've got to collect the raw data. They have to note the date and time that they conducted the drive test.

They have to provide GPS coordinates for every measurement point and then maps with the actual signal strength that's measured. So now this provides these requirements provide the town with objective.

this here's the here's the re here are the real world conditions and it gives the town evidence or criteria the town can look at and say well maybe if we deny this tower it is going to maybe there is a gap here maybe we have to we have to approve it but at least it's because it the tower was actually needed that the applicant actually needed the tower and it's really important to make applicants prove that because a lot of times they they just want to rush their towers through and and this is one thing the ordinance does is it really puts them on notice in terms of if they are going to claim an effective prohibition then they have to prove that they are going to um that they actually have one.

So let's see um I'm going to move through these slides. Um see let's see. Okay. Um so the next thing is the verification of compliance with radio frequency exposure limits. And um one thing that the ordinance has it it's an express prohibition against and there is a definition for this illegally excessive emissions. And you know this is by the FCC's own standards.

So basically because there isn't much FCC enforcement of its own standards, this is where the this is the town's role where it can come in and at least make sure that the facilities are are not excessively emitting radio frequencies. And then they also allow um local authorities because the FCC actually has suggested or actually allows local authorities to enforce the exposure limits.

And so the ordinance also has penalties for failure for instance to I if there's a reason to believe that a facility is operating or is excessive there's penalties for failure to submit requested you know radio frequency reports. And then there is a potential to to revoke the permit if the um operator is not correcting the situation. And then there's also an an addition of a testing if the town has good cause to believe emissions exceed FCC limits. So, um I am looking at the time.

I'm not sure if I'm going over I've got a couple more slides to go over. So, I I hope I haven't gone over too much, but the last the last um the the last um additions that we did were maintenance and consultant review. And one thing we did was we we require a decommissioning and reclamation plan for any kind of facilities that or towers that the the permit carriers they're not going to use anymore. They don't need them anymore. Well, um they have to have a plan.

How are they going to remove them? Because otherwise the town risks having facilities that are abandoned and then they're just littering the landscape and and the town doesn't want that.

Uh one thing that we require is a maintenance bond and that is to ensure that tower operators maintain the facilities, the equipment and the landscaping and then you know the failure to maintain that the town can call upon the bond and the town will need to uh to implement procedures in terms of how to um implement this the bond requirement. But we added that in. That's an extra layer of protection for the town. And then we also require um insurance.

There's there's indemnity and liability for damages and there's insurance that's required and and there's also required of verification of coverage and these are the types of insurance that are required. Um one it's general liability, general commercial liability uh with a $2 million coverage per occurrence or 4 million in the aggregate. Then there's environmental pollution insurance because radio frequency radiation is a recognized pollutant.

Um the telecom industry actually does have exclusions for loss in their device protection. So there is a a tacet recognition that it is a pollutant and um there's also other policy insurance policies that exclude that. But so that's that's part of that. Um u and then there's also umbrella coverage is is the third insurance requirement. And what these insurance requirements do is ensure that the um liability belongs where it really should. It belongs to the wireless carriers.

These are their facilities and the tower operators. It's they're they're the ones that are maintaining it. Of course, they are providing wireless service and providing the technology, the mobile communications technology. It's not all bad, but you know they are profiting and so they should have the liability for damages. It it should not come out of the town's pocket and the taxpayers's pocket.

So those we added and we also added a new section where the town can retain an independent consultant at the applicant's expense and also at the landowner's expense too. Um that the landowner is also liable and that's part of it because the landowner is profiting perhaps not as much as the applicant but a lot of land owners like the passive income. I mean who doesn't?

I like it too, but um but it should not come at the expense of neighboring properties and um aesthetic impacts and that kind of thing. So, so the the key takeaways for the ordinance are that it protects local authority, it improves permit review and also defensibility of any decisions that any denials. It it it provides that evidence that the town needs.

It enhances public safety because there are public safety and engineering certification requirements for these towers to be built safely and operate safely. And it helps with aesthetics and the town's character in terms of really keeping the unsightly towers to a minimum or at least if they have to be there having proper stealth designs, concealment paint colors, those types of things that will help it blend in a little bit.

Like personally, I'm I'm not a big fan of the monopines or the the fake the fake nature ones. But some of the other ones might not be so bad. for instance, the flag poles or the clock towers that um conceal them so that they're at least not too unsightly. They might not be too bad. And then it also enhances transparency and that's for both the town uh and the wireless applicants and the residents and accountability as well.

It's important that um the wireless companies are accountable for you know their their decisions in terms of their sighting and and the impacts that these facilities have. And it also balances, you know, which is important. I mean, we we do want this technology. We're not against it. You know, we want the innovation. Um we we also want it to be efficient.

We want it to be reliable and, you know, and to be as um I would say um economically feasible or as cheap as possible, consumer friendly, but it balances that with the community character. So, those are the key takeaways. And now I will turn it over to the planning commission. Uh if they have if you have any questions um please feel free to ask and I will be on site to answer. Um and if so um those are my closing thoughts. I Okay. Should I keep this up or should I stop the screen share?

I think you can keep it up for now. Okay, I'll keep it up. Um commissioners Commissioner Gray, Vanessa, thank thank you for the overview of of both chapters. um very very informative [clears throat] and offered some um clarity that that's um maybe not been there for some of us um especially me uh over the past couple years that this has been uh in deliberation. Um I had just just one structural question just so I can I can have it answered. Sure.

for I can't tell you exactly the impetus for it, but we we had shredded over the the course of time here the the idea of of co-mingling chapters 16 and 17 together. Um you've chosen the bifurcation of them still. Um, and I was just curious, I I I think it's fine um based on how you how you walk through that, but I was curious um what your thoughts or rationale are on on keeping those as separate chapters. You know, that's a really great question.

I mean, frankly, I'm going to say that my my preference would have been to collapse them into one. Um I I do wonder I would have to take a closer look at the Arizona right away. I still think that it could be a permitting. It's just that it would still be mandated. So that may be an option. I think that when the town put it in streets and sidewalks, it was really the recognition that most of the small wireless facilities are in the rights of way.

And because of that, that's where the Arizona law tends to be very stringent. Um, and that that that could have been the recognition and and that maybe that that was the town's way of addressing that. I I am very open to revising article 162 or putting it in the zoning ordinance. Um, because I think that that's they it does have a physical impact on nearby properties. And even if it is in the rights of ways, I I don't see any reason for keeping it in streets and sidewalks.

And if the planning and zoning commission wanted to have more authority over these and my answer would be to um have them combined or put put chapter or article 162 in the zoning ordinance. Okay. Um can I keep asking chair? Yes. Um couple other uh questions I guess one more kind of macro uh and then some specifics.

Um, another question that you answered for for me in particular was there is a difference in in mobile voice versus data and absolutely I'm going to show some naivity here but I I through your presentation everything to me is geared towards that mobile voice uh application. I'm curious. Most of our again our our deliberation over time here has probably been um more with reservations about data uh and and and the breath and the and the speed and the power of data.

Um how how do these chapters then apply in that data realm? So basically the federal preeemption doesn't apply to data because under the regulatory scheme data the internet for instance internet broadband it's classified as a um as an information service. Now I'm going to take a closer look at there is section 2253 but I still think that's telecommunications and not data. And so really this one thing where this fits is to ensure that the that this the tower is for voice.

Of course I think that there is an overlap with data and that it can provide both. Um and so one thing I will say that if a provider is going to provide both voice and data that then it can be subject to the federal preeemption. But we did have a case in the Ninth Circuit where the tower applicant was providing fixed broadband wireless services, not personal voice services, and we were able to get the tower denied because the federal preeemption didn't apply to that particular tower.

So then is is there a third lane to this in your mind where where you're writing language around the data component um and then allowing for some some cross reference co-mingling of of the two? Yes, I would say that that is the approach that we're taking.

I mean, what what we're trying to address with at least with the ordinances headon is to really is to address the the federal preeemption for the um personal wireless service because that because that's really where uh local authority becomes limited. Okay. But I I imagine that there are and and one thing that we are keeping in mind is that you know the FCC is very much um on a track uh to eliminate what it c what it deems regulatory barriers.

And so there isn't I mean I'm fairly certain that at some point there is going to be proposals to mingle these two or to apply a federal preeemption to the data. Okay. Um two more if you don't mind. No, of course. Um, you referenced um in different words, but you referenced dimminion evaluation in in regard to uh 17. Is that also applicable um with 16 and and small cell?

Um even given the the um the the the more extended the further extended um uh you know by right that that comes with small cell placement. Is there still a dimminionive evaluation component to a a jurisdiction evaluating placement even with the constraints that are imposed? So basically um there the the thing about it is that Arizona mandates it.

So there isn't really the town won't have the um you know the right to review it on the property value impacts but the town can still suggest alternatives. So um but that is a big problem that that the Arizona preeemption would made it difficult to to draft you know section 162 for the small wireless facilities because of the mandated.

But having said that, and and this is, you know, I spoke with um both Director Wesley and um Councilman Watts about this that this really is something that needs to be taken up at the legislative at the Arizona legislative level in terms of addressing this problem because unfortunately as it stands the the property value impact, it's not it's not gerine.

the town still has to approve it even if it's going to impact property values and um so that that is a big problem with the small wireless facilities ordinance but we are asserting with the language that the town I'll say has a heavy hand in in being able to push a tower left like to push a tower to a a boundary property line versus placing it directly in front of a residence or something There is some we're we're at least asserting some control of the town to to govern placement where the provider can't just absolutely have unilateral Yeah.

Exactly. Well, and they don't have unilateral rights to put it wherever they want them. You know, they may act like they do, but they don't. Okay. U and then last one if you don't mind. Um you referenced uh in relation to 17 again um uh fire fire protection uh fire protection planning and so on and so forth.

Um, do we have an ability to take that a little bit further in definition maybe both in 16 and 17 and uh place requirements like uh iron phosphate batteries instead of lithium iron for example or to to force compliance with NFPA70. Um, can can we can we get a little more prescriptive to where you take some of that ambiguity and some of that, you know, lowest first capital dollar option off the table for a provider? I believe so.

I mean, I would have to delve into it a little bit deeper, but I don't see why not. I mean, especially if there is a legitimate basis. I there is the wild urban fire um, you know, the that interface that. So, I I don't see why not because just because it's the cheapest version doesn't necessarily mean that it's safest and and if a certain type of battery would be more compliant with you know the international fire code or like um you know building codes or those types of things.

I I don't see why not. I would have to delve a little bit more into it, but I do think that it's critical that with respect to the fire that that it should be as safe as possible because fire is just has a way of taking over everything and um really you know it really is a public safety threat and I don't think right now as it stands there is enough appreciation on the part of the wireless um providers to really appreciate that threat.

Um yeah, and in application there you we're we're just saying, you know, if if a provider is is going to, you know, ha have their way. They're going to go, you know, a lowest capital dollar installation. In terms of battery selections, I I would go lead acid, lithium ion, and then uh and then iron phosphate. Okay. But the but in terms of fire prevention and protection, they go in an inverse order. So I I think to the extent, you know, those sorts of things could be layered in, it would be great.

And I I apologize. I'm gonna ask you one more. Um Oh, no. Of course. So again, given all the preeemption with the with the small cell, um have you ever uh seen a a municipality or jurisdiction um require additional improvements uh that come along with that almost in a development agreement type manner where for for simplicity's sake um I'm going to place a tower in in the ride ofway on any given street.

the city comes in and says, "Sure, you you can place the tower because you know you have rights to place that tower, but we're going to require these other two or three improvements to come along with it." Well, we we have seen that. Um and some of the improvements are mandated by like say for instance the county code.

Um, you know, one one case that we were dealing with in the Washington state area, um, that the tower would require it was a gravel road and in installing the tower will require the road to be widened from right now, I believe it's about 10 feet across and it's not even paved. parts of it are paved, but it's going to have to be widened to 20 feet and then it's going to have to be paved with asphalt because as it stands that road will not um bear the heavy equipment.

So I I guess the short answer to your question is yes that the town can um impose certain conditions and as long as those conditions are justifiable and and it's not just safety conditions, it can also be aesthetic conditions.

So, for instance, if there's maybe there's some unsightly retaining wall next to a small a proposed small wireless facility that um then the town I I think if it's related enough the town could say well I mean if if the wireless applicant is going to use it in some way like put the equipment against it or something that the town could require that to be um as a condition. Okay, we'll fix this retaining wall like paint it makes it make it look better.

So, I would say that I would say yes that those improvements can be required. Okay. Thank you very much, Chair. I yield back. Thank you, Commissioner Gray. Commissioners, Commissioner Coran, Vanessa, thank you for a comprehensive and specific uh um outline of what you've prepared here and um the following uh legal documents which I didn't delve into.

But um [laughter] one of the questions I have is we have an ongoing discussion here in town and uh it it applies to uh underground utilities and so our preference because we're a dark sky community and we'll have that prominence especially in January when the dark sky um discovery center opens up. That's as you mentioned that's one of our not only significant to business but also to our identity in Arizona.

Um so that's that's a specific um I would think requirement for us that all utilities be underground including and I may be going beyond my scope here but um 16 small cell. Could we kind of wrap that around a requirement for everything to be underground to the greatest extent possible? I that's a difficult question because that might have to do with a a fact-based determination on whether it's going to be technically feasible.

Now, my understanding of the technology, at least for the radio frequencies, is that they do require a certain level of height and and a clear line of sight. So, I'm not exactly wondering. I'm not sure how far underground they could be. I mean, I wonder if there may be some new technologies that could do that, but I do believe at least the antenna portion would need to be a certain level above grade and that that would be difficult.

But the rest of the accessory equipment, um, you know, the meters, those types of things. I believe those those things can be underground and that is at least in chapter 17, that's a requirement. And I think we did we may have added that requirement in chapter 16 to in article 16 too. And I probably wasn't specific enough.

What I had in mind was um you know uh instead of having a number of uh towers that uh would be used for broadband um and data so on so forth um fiber optics specifically which would be underground with the other utilities for you know television in other words cable and uh you know gas we don't there's limited amount of gas supply around here but electric and and so on.

So what you're saying is that you would want most of it to be like fiber connected because fiber is a superior technology to wireless. It's it's a lot secure. It's faster. It's more reliable and it's it's also Yeah, it's it's and it's it also takes away the unsightliness of the the you know the wireless facilities that are required or at least minimizes it to an extent possible. So I I that is I is that what you're referring to the fiber optic um networks, right?

And I'm thinking could we uh craft that into the ordinance? Would that be something that we could do legally? So I I'm I'm hesitant to answer that. My my sense is that it might be a little bit too far be because that could potentially be a barrier to deployment. Um, I would have to look into to it more in terms of what the fiber is.

It really I will say I would say the preference seems to be that they they're just very gung-ho about wireless probably I think it's more because it's it's cheaper and it fiber lasts a lot longer. I mean the initial outlay is more expensive but then it's 50ear shelf life as opposed to say I think I believe it's five years. So you know I I would have to take a look.

I my my sense is that it might function as an effective prohibition or it might it may um you know present a a substantive barrier, but I would have to actually consult with you know attorney McCulla and Mike and and get a better answer to that. But I do think that that is something that the town should consider. Okay, great. Thank you. Thank you. Um All right, I'll take a turn.

Um my strategy when in going through this over the last four years, whatever it's been, is to look at ordinances all over the country and come up with provisions that they had and um what you've given us is wonderful and incorporated most of what I had asked for in the course of going through these. Um here's a I I do want to go through a couple more things though. They're it's small potatoes compared to um the things you've put together.

But um one ordinance that I had reviewed and and had mentioned before said no RF emissions below 8 1/2 ft above grade. And for the small cell, I that sounds like it would be important that you wouldn't want the RF emissions being emitted at head height. Um, so I I'm I'm mentioning that to see if there's room for that and if that's something that uh that that wouldn't be too objectionable. I don't think it would be objectionable.

I mean, I think the more protections against the RF, the better and and as long as it's not running into federal law and if this ordinance is currently existing. Now, having said that, I will say that there perhaps the reason that ordinance exists, there is there is the possibility that it um is hasn't been challenged maybe because the wireless carriers don't see a profit in that particular jurisdiction and and so they haven't challenged it.

So that's something to keep in mind, but I mean we would be more than happy to add as much protections as we can, you know, for the radio frequency emission. Thank you. Um, another one we when we reviewed these ordinances earlier, um, towers were allowed within 100 ft of vacant and unplatted residential land. And I think the ordinance has been silent to that. Um, and and my preference would be that if it's residential land, it should still have the 500 foot setback requirement.

Um, but I I think the ordinance is is the do you recall is the ordinance silent? You know, I believe it is silent on that. I don't Let me um I can probably take a quick look about and this is chapter 17, correct? chapter. Yeah, that would be chapter 17. I'm I'm going to go back and forth just because I have these. Okay. No, no problem. Um I think it is silent. It may be that I think mostly it's it's really the setback applies to the residential districts and not the unplatted.

Uh that I do understand that there is an area in town that is slated for residential development. I wonder if that's the one that you um well director Wesley came up to the mic so we're um he has something to say to us. Yeah. So chair so it is uh in go back here to find the start of which section is I think it's some 1704 um is where it's at. B uh 2 A Roman at 2. So I'm on page 25. So it is uh 500 feet from any residentially zoned or used land.

So as long as it's zoned residential whether it's platted or not, it's 500 foot separation. Perfect. Okay. Okay. Thank you. Thank Thank you. Um that that solves that. Uh, one of the other things I asked for, new developments over some number of acres, and I I suggested 50, but a 100 would, but new development over some number of acres should provide for a tower location. Is Is that something in the I didn't see that in the ordinance either. Is that something we could consider?

I I suppose you could consider. So you what you're saying is that you would want a tower with a new development just to ensure coverage or is that what you're saying? Yes, that that is fine. I mean if that's um something I mean what I would say is that um again like there there can be exceptions. The town can grant exceptions to that. So if if um say you wanted a tower in in a particular spot that there that that could be something that could be added to the ordinance. Okay.

And 1704 talks about utility service antennas and that those can be approved administrative approval. But that's not wireless facilities. Correct. That's something completely different than wireless. Yeah, that's something different. Mhm. [snorts] Yeah, those are for you. Those are basically for the utilities because those also use radio frequency radiation to communicate, but that's for the utility company.

So wireless antennas are not utility service antennas and utility service antennas are not wireless antennas, right? Okay. Um, Phoenix has a 25 ft door setback rule for small cell facilities and and 10-ft um at the rightway across from a door. Is that something we want to put into the code or Now you say door like an entryway to a to a building. Is that what um Phoenix has? Yes, exactly.

The if so um you know in the downtown area if there's uh the wireless facility on a a light pole or or something it can't or they they want to put a light pole or something. It can't be directly across from the door to a facility. It can't be within 25 ft of the doorway and it has to be at least 10 ft to one side or the other of the doorway in in the rightway. Okay.

I mean, I there is no reason if if that's something that the town wanted to do is is to, you know, model it after Phoenix and and put it put it like in front of the door that that that's something that could be done for the small wireless facilities if if that was something that suited the town's needs. I I I mean I I would think again I mean we'd want them out of the way.

Uh well that's what I would think too because in terms of impeding the flow of traffic or just the flow of pedestrians moving in and out of the building right and then um when we last uh with the last meeting that we had on this um the agreement between wireless carriers and the town had 20page list of terms and conditions and and I'm wondering if that's part of your scope and if you're going through that list of terms and conditions in the contract between the town and the wireless carriers.

I I had gone through it when I drafted um article 162 and really there weren't a lot of inconsistencies. It was pretty consistent with with my draft. Uh, one thing that was interesting is that the town's, you know, terms and conditions, standard terms and conditions, the insurance requirements were more stringent. So, I ended up adding the more stringent insurance requirements to the small wireless facilities ordinance. Okay. And and those are my questions and comments. Anybody else?

Oh, Commissioner Spume. Uh Vanessa, thank you for the presentation and John and Farad great work on all this. It's and Rick Watts um it's someone like myself can even understand some of these things. But my my uh question is centers around the aesthetics and it's it's fairly um generic or very general on what the submission should provide. um mono palms or flag poles.

I mean, John, how are you I guess maybe John, how are you going to address someone that brings in John, how are you going to address someone that brings in an application uh with what are you going to be asking for from an aesthetic standpoint or or should there be more specificity on what the applicant should be expecting to present?

Um well what I would say um and this is what I would speak to is that um aesthetic requirements I mean there there is a subjective element to them in terms of you know how everybody perceives them differently like one person might find you know it not to look so bad say for instance and then other people might say it is um you know one thing to keep in mind is that the ninth circuit um rejected because the FCC had a proposal in 2018 to force all municipal alities to require quote unquote objective design standards and to take away any kind of subjective um consideration of the facilities and um in the city of Portland and this decision was handed down in 2020 the ninth circuit court of appeals struck that down.

So basically because there is a subjective element to it and there is a harm that even if it's not tangible necessarily just really there's sort of um what I would call a demoralizing character sometimes when you walk you know with an area that's ugly and the facilities you know they they add to that and and the town has an interest in protecting you know its scenic character.

So you know those are the things that I I would say are open to debate where I think what applicants should expect and I think the ordinance provides that is that you know that that's part of the visual impact analysis that they have to provide. So they need to provide you know drawings of the site drawings, site surveys, photo simulations, you know, design plans, those types of things that you can take them and you look at them as a whole as a gestalt and and make that determination.

And yes, there may be some back and forth between that and that that's you know entirely up to the town but uh but I don't think that it's it would be too difficult to for applicants at least they understand that they do have to provide some sort of visual impact analysis. They have to show like here here's what could how it's going to potentially look. So I don't really see that as a problem per se.

like I think it's okay that it's somewhat subjective and I know that it's um one of those sibly definitions but because there is that element of subjectivity to it. So chair commissioner uh I full agreement with what Vanessa said. She said it much better than I think I would have.

Uh there are a lot of different circumstances and conditions that a tower may be in, whether it's something downtown in a more urban area off next to an open space and and if we try to get too prescriptive in the ordinance about what you know that design should be, we might build ourselves a box that we really don't want to be in.

So by having the the goals or after and then getting the the visual uh preferences shown and and simulation shown, that'll help us look at each individual case and determine what the best fit is for a given location. Well, I guess my point is then maybe should none neither of these ideas should be put out there. That's a possibility. We turned one down up by the church on Fountain Hills Boulevard. It was the palm tree, right, replica um for good reason.

And why even suggest something like that than that that could be could possibly be approved. So, I think you're better off not mentioning anything that would put uh possibly be approved as far as design from a design purpose. Okay, we can look at modification. Yeah, we we could re-evaluate that provision. It sounds like what you're saying is that you you you want to eliminate that whole stealth definition. Is that what I'm that's what I'm hearing?

I don't know, but that is something that we could take into consideration. Our perspective is that those definitions enhance the p protectiveness of the ordinance in terms of at least requiring applicants to consider um some aesthetic mitigation. Now granted, I I will say personally they're they're they're usually not great. So I I guess what I think maybe part of what I heard commissioner was if we know we really don't like the faux palms, then why put that in there as an example? Correct.

Okay. Yeah. So if we Yeah. Just lead them to maybe introduce them. Oh, I see. And they they look worse. They would look worse than just a single poll. Right. Right. Yeah. So we can take that out. We can Yeah. So if if as you commissioners continue discussion, we're not taking any votes. We're not taking official action.

But if we can kind of hear a consensus and I've got a couple of things I may ask about in a minute, hear consensus about something like that, then that gives us some idea that yes, we ought to change it. But if it's, you know, if we're not hearing anybody else have that type of idea, then you maybe leave it as is for now. But well, I think you want language that says it's going to it's going to communicate with the adjacent environment, right?

You want you want something that's complimentary, not something that's uh exact application of a 400 foot palm tree. I mean, that's kind of what that flag pole was right at the at on Fountain Hills Boulevard. It was a 150 foot palm tree.

Yeah, but I think as long as you say, you know, something that that communicates and interfaces with the adjacent environment and it's proportionally um in line, then it's specific that last sentence in that particular paragraph 1703D 17.03D 03 3D just removing that last sentence. It just not even talk about it specifics. Can you read the sentence though? Concealment elements such as monopalms or flag poles should be utilized to camouflage the pole and antennas.

Oh yeah, I see why Phil doesn't like that. Mhm. Right. Yeah, we could absolutely remove that. I mean, I I would say, you know, we that that's just a a strikeout for sure. Yeah. Just change it to disguised to to stop at Yeah. Stop at the sentence before. Commissioner Gray. Um I I I know it's dangerous to challenge the chair and the councilman elect, but I I want to revisit the the offsetting uh separations from the Phoenix ordinance.

And my my uh challenge to that is is kind of in the same way that Phil just um highlighted with the uh with the aesthetics. I think if we say a 10-ft offset, we're now saying you can place that that small cell pull 10- foot offset from Phil's front door. Whereas, I think the language not having that in there allows staff the ability to push it all the way to a lateral property line, you know, much further away.

So, if we're going to do it, let's let's say let's let's let's put a bigger u separation distance in there or let's say, you know, should be placed at at the intersection of of property lines, adjacent property lines versus saying 10t offset from a front door. I don't know if I said I did not say that. Well, but I think once it's in there, then you're saying, hey, this is an appropriate placement. I don't know that we want to do that. Yeah, and I'm okay with that.

I I my point was that Phoenix addresses not blocking doorways and not um you know, not keeping them out of the way and and I think that is something that we would want to address. Yeah. What I would say though is that that could be part of the um you know the flow of like of pedestrian traffic. I mean that is a basis under Arizona law to deny a permit is that if it if it impedes the flow of traffic and then that's something that could be considered.

So I I mean I wonder if it might be better to I would agree with Commissioner Greg maybe just not have that language in there just that that could be a casebyase determination. Okay. But again, this is all this is completely up to the town. And then uh one more uh chair and Vanessa, if you don't mind, um uh Commissioner Corgan started down a path and I wanted to maybe take it a little one step further.

Um he was talking about underground utilities and and you know strengthening the language to say you know utilities coming to and from uh one of these sites uh would need to be underground.

What if you as we you know extrapolate that what if you if you take that same application um and apply it to the bifurcation of of telecom versus data and and the way that the the way that the I'm going to paraphrase here but the way the ordinance is basically written today is it says all all utilities that can be provided underground should be provided underground and so if we're afforded this bifurcation of of voice versus data Uh can that application be can that discriminator be to say that um if you're applying for a small cell data tower that that data can also be that same service at that same level or better can be provided by a via subterranean fiber.

uh is that is that a viable um discriminator to allowing that application by right for a data small cell? I believe so. I again I would have to take a very close look at that um uh the data but it is it given that it is under a different regulatory scheme that that could be something that the town could leverage to keep many as many things underground as possible. Thank you, Vanessa. Okay. Anybody else? Director Wesley? Yes.

Uh, commissioners, uh, first of all, I want to myself thank Vanessa and, uh, Scott for their help in getting us this far. We've done a lot of good work here that uh I think we'll be able to take forward onto the public hearings and so uh we heard some things this evening that we will work on and making some modifications uh to the the ordinances as they have been drafted.

Our plan at this point is to come back uh to the planning zoning commission in September with a public hearing on chapter 17 because that's the chapter of the ordinances that is within your purview then to review and make a recommendation on to town council uh based on uh the work we've done thus far and uh what the the staff feels is still the best way and also to keep this thing moving on in a timely manner is to go ahead and still keep 16 and 17 as two separate documents.

uh if at some point we really find that it's not working well, we can come back and revisit the idea of bringing them together. But so that's our plan is to notice chapter 17 for a public hearing uh in September. Again, we'll look on the modifications for both chapters as you've commented been helpful for both as we then go on to town council. Any questions uh for me about where we are, what to expect next. Thank you, Vanessa.

Um, and thank you commissioners and thank you John and um the town I'm for the opportunity to draft and present these ordinances and I'm very excited the town is moving forward on at least chapter 17. So it's really exciting. So thank you. And Commissioner Gray, did you have something else to say? No, I was just going to say say the same thing. um really really appreciate the the effort and the the uh the the the overview at a level that we could all comprehend this today.

We've we've really struggled with that over time. So really appreciative. Thank you. We're adjourned.