Planning and Zoning Commission Approves Comprehensive Wireless Tower Ordinance 26-12 with Five Stipulations; Federal Preemption Constrains School/Daycare Protections

Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. I'd like to call to order the regular meeting of planning and zones. on Monday, September 14, 2026. We could all rise and say the Pledge of Allegiance with a moment of silence to follow. I pledge allegiance to the flag of the United States of America and to the Republic for which it stands, one nation under God, indivisible, with liberty and justice for all.

Thank you Okay we have a roll call please Matthew, excuse me, Commissioner Corrigan? Here. Commissioner Sebum? Yes, here. Commissioner Proctor? Here. Commissioner McDermott? Here. Commissioner Schlossberg? Here. Chair Kovacevic? Here. Vice chair Gray. We have a quorum. Okay, take a minute to read the statement of participation. And Director Wesley, you're up. So I guess the next item is the summary of current events by director.

And again, I don't really have anything that I feel like I need to bring to your attention at this point, so we can move on. Okay. Agenda item 6A, consideration and possible action, approving the meeting minutes of Planning and Zoning Commission work session, July 28, 2026. So moved. Support. Okay, we have a motion and a second. All in favor? Aye. Opposed? 7-0. Okay, seven zero.

Six B public hearing with consideration of possible action relating to ordinance 26-12 repealing and replacing zoning ordinance chapter 17 wireless telecommunication towers and antennas. Director Wesley. Commissioners, thank you for being here this evening and for the members of the public who have joined us and I believe we have our consultants on the line here. Vanessa and Scott, are you there? Yes, I'm here and present. Okay. And Scott? I'm here as well. Okay, very good. Scott is here too.

Okay, great. And so we do have four or five people, Vanessa and Scott, who have come and turned in some speaker cards. So I know I'll be having some comments and questions later after I'm done with the presentation. Um, so commissioners, as you know, this has been kind of a long time coming. Been working on this for a couple of years.

Uh, council has directed the commission to look back through all of our ordinances with relation to the wireless communication facilities, and I began that about a year and a half ago. We're fortunate to be able to hire the McCulloch law firm to help us out here this last four or five months to get us to this point of a draft ordinance. We held the work session back at the end of July. Got some good feedback from that. I've made some adjustments since then.

So this evening, I'll be stepping through the final draft ordinance as we have it prepared for you and kind of highlighting what the ordinance does and then pointing out where some of the modifications have been made from the version that you saw at the work session. So the first portion of the ordinance deals with the purpose, intent and applicability of the ordinance.

That's a basic framework for the overall ordinance, what we're trying to accomplish with regard to the need for towers and antennas, balancing that with some of the community needs for protecting neighborhoods, community character and so forth. The draft you have before you substantially increases some of those statements and clarifies what we're looking for and trying to accomplish with the community.

Based on some of the comments received, a few changes that have been made is to recognize the storm desert tortoise in a couple of places. Um, have also, uh, clarified that, uh, all new towers and modifications existing towers will need to comply with this ordinance. And then also this, again, the existing towers, uh, in terms of maintenance operation are subject to the provisions of 1706.

Next section, uh, 1702 definitions, uh, these play a very key role in, in helping to implement the ordinance by having a clear understanding of what the different terms The different elements of the industry. More than 80 new definitions have been added compared to the currently adopted ordinance. A couple of additions were made, uh, since your last review. The general population uncontrolled exposure limits was modified.

Uh, Vanessa, you can correct me if I remember this incorrectly, but, uh, there's a question about bulletin 65 and that has changed. And so the change here changed. You know, so the change here, this general population addresses that comment about About the bulletin 65. And then definition added for thermal runaway. That's a deal with a question brought up before with regard to the fire. Moving on to section 1703.

This is basic requirements for the code and for towers and the applications And so it has a long list of general items I just listed a few of the things that cover some of the topics There's a lot more in there, but aesthetics, visual impacts, lighting and so forth, provides multiple standards for a lot of those items. And then provides for the setbacks and separations in this section.

And so this has changed, as you know, from the current ordinance, which had a table and could allow towers within, I believe it was 100 feet to certain types of residential properties. Now it's 500 feet from any type of residential zoning or use. So that includes a mixed use commercial facility that has residential components 500 feet away. It does have a vision where the council can approve reduction down to 300 feet if it can be shown.

that doing so complies with the with the ordinance and is the best option. The section also covers issues with regard to building equipment and colocations based on comments received both from the council and from the public or excuse me from the commission and the public. Again, there have been several changes that were made. One of the comments last time was when we were specifying or showing palm trees as being a type of stealth design.

There's Concern that will people just designed to that design and so remove those specific statements like that to encourage greater flexibility and options with regard to this stealth design. There is a question concerned about whether it's a data only antenna or tower. Can we require those to be underground and treat them a little bit differently? And so a section has been added to address data only facilities.

Another concern was brought up as setting some minimum height for an antenna to make sure it's not too close to people. It might be at a pedestrian level close by. And so that was added at 8.5 feet. We added some clarifying language with regard to fall zones and measurements. There was a table in there that was no longer needed. Again, it's the one about the setbacks. and so that was removed.

It also added clarification that if you have a guy wire, I'm not aware of any currently in town, but if it's a pole that requires a guy wire, that we're measuring separations from the base of the guy wires, not the tower itself. And then the separation distance between towers, those were all increased by 500 feet, except for the shortest towers, that was a 250 foot increase. So you see that change in the ordinance. Section 704 is the different types of applications we can have.

Basically, it's either administrative or public review type of application. And so most of that stayed the same, but there was some interest in providing a little more clarity to the temporary facilities, sometimes called CALS, sales on wheels. If they're changing out or having special events, they had to bring in temporarily a cell tower. Let's add a little bit more provision for how those are reviewed and processed.

Section 1705 gets into the actual application submittal, those requirements, how we review it and how they're processed. And so again, this includes a wide range of topics. I've listed a few of the newer ones here that we've added in terms of the types of things we're looking for and the types of information that's required to be submitted with the applications. This also again, um, provided a lot more detail on how we review the applications.

A lot of items are added for that, including things such as the factual determinations, the environmental impact reviews, historic impacts, and tribal site impacts. Modifications have been made since you look at this at the work session, uh, a little more a month ago. We've amended some language to provide more specificity regarding to blue tests, when they happen in the time of day that they happen.

Also, with regard to the drive test, they have to let us know exactly when those happened and things that might be going on, when that happened, type of equipment they use with the drive tests, or we're clear that they've done a good job on how they've done it and what might be happening at the same time. And then in this section we added a new K to provide more detail about a biological survey, particularly addressing the issue of the snored desert tortoises.

1706 is maintenance and operations section.

So this provides overall guidance for the long-term ongoing maintenance and operation facility and what expected what they need to do with regard to that And so again there some things we talked about before that are new in the ordinance with regard to the bonding the RF testing notification insurance And we still looking at how we handle the bond issue A little bit of research I done since preparing this draft as it may be an approach you want to take is that the applicant will be required to submit an engineer estimate of what what the cost of removal would be or the maintenance might be, so that can give us the level of bond that's required.

That's something that we'll still be adding as we finalize this with council. Things we have changed since the work session. A new section F was provided, updated information on persons responsible for maintenance of the facility, And then also added some provisions requiring them standards for insurance providers. Section 1707, nonconforming uses defines how existing towers are handled. There's no changes in this section. And 1708 was a new section. Again, you saw this at the work session.

Deals with retention of consultants that the ordinance provides for, both for the review of towers, the new ones that are coming in and also assistance with monitoring towers as they are up. There are no changes were proposed for this particular section. A couple other items to make sure that you're aware of. A discussion at the last meeting was, has come up several times before.

Should we establish a provision that requires any large developments, 50 acres or more, to designate a location up front for a cell tower. As we discussed that, we felt the best place for that is in the subdivision ordinance rather than here in this ordinance. So some language has been drafted. It was in your report, but it's not something that would ordinarily come to the commission for review and recommendation. But you can see the language being proposed.

Then we'll take to council as a part of the overall package to them to provide that provision. And there's also a few questions that came up with regard to the application itself and the checklist and so forth. Those are all good suggestions, but ones that we want to wait until we really have a final ordinance to draft those things. And so those will be coming as we work with the consultant on those between now and the council meeting. Any questions for me?

I've tried to keep this a little bit short here. You've had a good time to look at it in the work session before, so anything for me or more importantly for Vanessa or Scott at this point? Commissioner Gray. Thank you, Chair. John, I just had one clarifying inquiry on, I think it's page 165 of the packet, which is under 1706. Page 165 of the packet where it talks about... I'm going to do better with the section number because I don't have the packet. That's a non-conforming use.

It's the section that calls out a thousand dollar penalty and then a follow-up within year two of, I think, up to 20,000 in kind of an escalating penalty. Sorry, that's the wrong page. It's page 160. And the page numbers. Of the meeting packet. Yeah, section number is going to be a better way for me to find it here for what's going to be on the screen. Section 1706 maintenance and operation. Okay, and then sub... Subsection B. C. And then about paragraph six or eight.

It's actually the second paragraph on the second page. You said 1708? Yeah. 1706. Right there. That second paragraph there, I'm just curious, the cure component of that, or the cure window, is missing from that? A violation and then how many days for corrective action days, weeks, months for corrective action before a second violation is triggered. That was my only inquiry. So do you have that to where we're at, Vanessa? I do.

Well, and that I would say that would that would be what what what you did, what the town would like. I mean, I would say maybe between 30 and 60 days would be a good cure just to get them to correct that situation. Yeah, you're affording them two weeks for a hearing with the town council, so you gotta allow for that, then some reasonable time. Right. So I would say about 60 days would be a fair cure time.

I mean, 30 days is probably a bit more protective than 60, but that would be like 30 days after the two weeks written notice. So we could draft that into the ordinance. Chair, that would be as we get to a motion, ultimately, I would like to see something like that left in. Yes. So I will draft it. I will add that to, I will do 30 days. I think 30 days is a reasonable time. Okay, any other questions from the commissioners? Commissioner Corrigan.

Vanessa, just one question, and John, a question about the underground portion of this, and it looks like the existing statute or portion under section 1703 requirements, and it looks like data only and information service facilities, and then it spells out the underground. Will we see something a little more comprehensive in terms of as much as possible new installations being underground as far as the equipment and so on? Or is that not part of the plan?

Well, we could review that a bit more to see if we could put things underground. One of the issues with the undergrounding is the characteristics of the RF signal and that the requirements to put those underground would require very specialized antennas, and because soil and sand and those types of materials are not necessarily the, you know, they're not as easy for the RF signal to propagate. And if for the data, they need the antennas, they might, we may not be able to underground those.

I mean, maybe we would if, but it may not be financially or technically feasible to underground those. So we could take a look at that more closely and see maybe there is a way to, say, connect them to a fiber-to-fiber point where we could underground it as much as possible. Okay, and that might be then more characteristic of Chapter 16, which is broadband then. Actually, the Chapter 16, are you speaking about the small wireless ordinance? Right.

Yeah, which we're not talking about tonight, but... Right. So that ordinance actually, so that unfortunately it would be very difficult. I mean, we can underground as much of the equipment as possible, but it would run into the quote unquote effective prohibition and also the Arizona statutory mandates on those. So the underground, like the equipment could be undergrounded, but the actual antenna itself would have to be above ground. Oh, okay.

I know we discussed the last meeting, the fiber optic and so on, having that as the transmission line. So, anyway, that's a different topic for a different chapter. Yes, it is. And it's a different topic, but it can be included if it's a data-only antenna. That does not fall under the preemption. but it may fall under the Arizona preemption because that does include cable operators, but that's more for the small wireless. Okay, thank you. Chair. Any other comments, Commissioner? Or questions?

Questions? Okay, do we have speaker cards? We do, Chair. We have five speaker cards.

The first speaker will be Joanne Lyles and the speaker after her will be Brett Blakenship Thank you Chairman and Commissioners for the opportunity to speak I wanted to applaud the detailed provisions of the new ordinance toward protecting Fountain Hills It shows a lot of work and I appreciate that I have a simple question and it's regarding the goal of protecting residential areas and land uses from potential adverse impacts.

Does the term land use include schools and places of employment where humans carry out business for more than eight hours a day? That wasn't in the glossary, the definition, so I personally was just curious if it included those two uses. I believe we did have the definitions for school. Oh, you know, the schools was in the small wireless ordinance, the small wireless facilities ordinance. We added a definition for school and for residential properties.

And we are working to keep the separation distance from it. And there's a whole level of analysis that the application goes through in terms of the impact on residential uses. Is there also places of employment involved? I'm just curious if that term... We cannot replace... I was curious if... One of the issues with the place... Oh, go ahead.

I wanted to know if the term included more than...it says residential, but the other areas being protected would include human use locations like places of employment and schools. I know that parks and many other historical locations are being protected, but I was just curious if there was something written that demonstrated that schools and places of employment were going to be protected. The one thing is schools are protected.

Places of employment generally are not because most of those are typically tend to be in commercial districts, And there is a balance between where the people are because that's where the coverage needs to be applied. And so those were more favorable places for the self-towers. One thing I can say is that there is a requirement in the ordinance that was added that at least the antennas do not expose people to more than the FCC's safety exposure guidelines for general population above Aisle.

above 8.5 feet, which is like above head height. And so that is one of the ways we do protect people from, you know, the radio frequency radiation. Good. All right. Thank you. Thank you. Next speaker. Hi. Thank you for joining me speak. I'm Brett. I'm a resident. I'm in a Fountain Hills Facebook group about citizens for safe technology of Fountain Hills. Our fearless leader couldn't make it tonight. Unfortunately, I don't see her here. And I know she had some concerns.

But I just wanted you to know we've been putting up these flyers. I do. I teach classes here in town, a lot of aerobics, other classes. I gathered signatures. People are concerned about this issue. I think what I'm, what I just really want to know is what can I tell them about these setbacks? Like five, people always ask me, well, how close will this be to my house if they do build a tower? And I know there's different kinds of towers.

But I just I guess I need advice because now suddenly people are coming to me with all these questions. And obviously we should read what you're presenting here, but just as a brief little soundbite that I can tell people to reassure them. There's just a lot of concern about this topic. Of course, Brett. I can I understand why there would be a lot of concern about the topic. Well, yeah, you know, property values, etc. Things like that. Right, no.

And so basically like the ordinance, and I can cite you the section, the page number on the packet is page 129. And separation requirements from towers, they're at least 500 feet from any residentially zoned structure. And in addition to that, we also include a fall zone requirement of equal to 125% of the tower, so of the tower height. And that's also to protect properties from damage should the tower structurally fail and those types of things.

And I'm sorry, the 500 feet, what particular kind of tower are you talking about that meets that?

Well it is for the macro towers I mean one thing I can speak to is that it more difficult to enforce that kind of separation requirement for the small wireless facilities which are the ones that are typically in the rights of ways and generally end up much closer to people homes But I did work that ordinance to the small wireless facilities ordinance to be as protective as possible, bearing in mind both the federal preemption on the small wireless facilities and, as well, Arizona law, which also mandate certain types of approvals for collocations on in the right of way.

Right. So I will print out the ordinance and hand it out when they have questions. And I just wanted to add, again, I just kind of fell into this because it is a topic I'm concerned about. I just want to add, I was researching, for example, there are appeals, one's called the International Appeal, The scientists for protection from non-ionizing electromagnetic field exposure. This was submitted to the UN, the World Health Organization. I'm sure you're familiar with these documents.

They are a bit concerning, and they do talk about how the FCC isn't always reliable or maybe their information is outdated. So just something to keep in mind. Sometimes there's accusations that they're bought and paid for from telecommunication companies. We've all heard those accusations. But just something to keep in mind, I looked up several of these appeals. One was from the state of New Hampshire, their government commissioned committee to research. I've seen reports of 2020, yes.

And of course, of safe recommended distances, 1,640 feet. Now, I would like to address your concern. And one of the things that we added to both ordinances are radio frequency compliance requirements, that at least they have to undergo post-certification. Once they're built, they have to undergo post-certification that they will be compliant with, unfortunately, I know it's not great, the FCC guidelines. And then every year they require annual testing.

And then we also baked in a component of random testing. Because as you know, the FCC generally is not enforcing its own limits against towers, but it does allow the towns to do that. The only thing the town cannot do is adjust or try to regulate the frequencies themselves. That's something that is under the purview of the FCC. But at least what we try to do is protect people within the FCC limits. And I can assure you that our team is working very hard to get that changed.

We filed a mandamus petition. You may or may not know that in 2021, the D.C. Circuit Court ordered the FCC to provide a reasoned explanation of its guidelines. Five years have passed. And so I think, yeah, so we're working pretty hard to, you know, at least get them to revisit their guidelines and definitely change them. Well, that is truly appreciated.

And once again, I'm clearly learning about this topic, but I will bring these messages to the people that are concerned who signed this petition. All right, thank you so much. Next speaker is Lori Troller and then Larry Myers. Can I throw a party? Can I also get another 30 minutes? I probably won't need six, but I'm just gonna ask. And I need the hat for the... that would complete me tonight. Anyway, I'm more gonna hit on some of the technicality of this stuff in the document, unfortunately.

I didn't get all the way through. Sorry to disappoint everybody, so I'll reach out with a few more, John. My first, the first thing I want to draw attention to is, and when I'm looking at, when I say page four, I'm looking at the draft with the markups on it. I think what you guys have on the screen is the no markup. So on the draft, there's under applicability, there's section F, and they talk about the utility towers in ROW.

And that really stopped me because that's exactly what we're trying to avoid in the data section. So if we're talking about utilities, our utilities are underground. So why are we talking about antennas in the ROW? I know we have them. That's, and we're going to try and curtail that and make sure everything else goes underground.

But the fact that that verbiage is there it to me feels like it almost inviting versus concerning or trying to put a few breaks on that So it the verbiage of it I don understand what that verbiage is accomplishing So I don want to delete something that we trying to protect somewhere else in the ordinance I don know why that verbiage is there So there that And I used to not getting answers up here So I just going to keep going The next thing would be, again, on that version of the ordinance, page five, the definition under antenna.

It says it will, it wants to include or exclude the fact that satellite dishes are used. I'm going to raise a concern there, especially when we're talking about future protections, which would be... So the next technology, we've been at this for five years, all right? The next technology is already coming in. It's Starlink. So we're talking satellites. Those satellites are going to work with an antenna, a dish, on your house. So your phone is going to connect to your dish.

Your dish is going to go out interstellar. Not going to go to a cell tower at that point. It's going to go interstellar. So, and I've mentioned this on an email that John included in the packet, is to To include verbiage for the next technology. So what I here's what I would like to have is that our neighbors aren't pointing our dishes at each other because those things are going interstellar. So I don't want verbiage that keeps you from putting it on your house. It's certainly don't need that.

But so, for example, my house, I have a hill going up my my house is in the middle of the hill, but I live on a cul-de-sac. It's the end of that street. There's another street up here. If I aimed my dish 70 degrees, so that the interstellar dishes are for 35 degrees to 70 degrees. If I aim mine pretty much up, I'm going to hit that house. But if I put it on the other end of the house, I'm fine. I'm going over everybody. I'm not aiming it at anybody. The cone of it isn't going to hit anything.

It's that kind of verbiage I would like to get in here for satellite deployments because this is coming up. This is 2027 in February. That's going to be a product that Elon's going to be able to put out. So in the definition of antenna, I don't want to exclude the fact that we're not talking about satellite dishes.

Because if we put that here, when we go to put in the preventative or protective verbiage for the next technology, we're going to lock ourselves out because we just excluded satellite dishes and we won't be able to include it. So that's either going to have to change or something like that. So some consideration around the word antenna.

The next, John has a chart, again it's page 21, it's the separation of towers chart and it's a grid, but if you look at the grid, only three blocks on that grid are valid because one says over 65 feet but under 40 feet. And I'm like, you can't have the majority of grid values that are on there. Can we just change that to three lines? Those three lines would be towers anywhere between zero and 40 feet, less than 40 feet, is a thousand foot separation.

Then anything that's equal to or greater than 40 feet but less than 65 feet is 2,000 foot separation. And then anything greater than 65 feet is 2,500 foot separation. And then can we just put those three lines in and then get rid of that chart? Because if you look at the chart, the majority of those little boxes are physically impossible. You can't have something that's less than 40 feet but greater than 65 feet.

So when you look at that and you put some time on that, I kind of want to change that guy. There was another point in there, again, this was page 15, and John was talking about pre-existing towers that have permits. There was a qualifier on it, pre-existing towers with permits. A lot of these towers, the towers we have predate John, and I just know from FOIAs that I've done a lot of FOIAs on this topic over five years that not, I don't know that we have the permits for all our existing towers.

So if we're going to qualify towers with permits, I don't know that we're going to get all the towers included in it. That statement. That's just it's just a check. I don't know about that. Okay now the little stuff. We use the word health. It starts on page one. We talk about health and safety. Do we want to really include the word health? Because usually that's when these things get thrown out the doors when we say health. We can't do anything for health reasons.

We can do it for safety reasons, but we can't do it for health reasons. So health is used throughout the document. I want to discuss should we even use that word? Is that word going to get us in trouble? If Attorney McCullough and Vanessa, you guys know that that's not a problem, that's great, but that kind of scares me because I know that's been a problem in the past. Also on page one, we talk about adverse effects. That's a quote on there. It's not spelled out what adverse effects are.

It's not a definition. It's subjective and it's vague. And I don't know if we want to address that, but that's an issue for me. Vagueness, I don't like that in this document. There's also another part in the document where we talk about camouflage that used to be a definition, but we took that out. I don't know why. Maybe I can understand why it was taken out, but when it's used in the document, I don't know if it's clear what camouflage means.

We all know what camouflage means, but are we going to get in a lawsuit where they're going to play that one out? I don't know. Also on page four we talk about mobile temporary towers. It just, and it's point E as in egg. It doesn't read well. That's a very difficult read for me. I read that and I'm confused. I know what they're trying to say, but I would like to see that worded a little differently. We also talk about adequate coverage.

I believe, and Vanessa, this was in Environmental Health Trust at some point, what a gap is defined as is a quarter mile. I don't know if that's an old standard. We're not using that anymore. But we talk about adequate coverage and we talk about a physical size of a gap. Those are quotes in here. It's not defined. I don't know if that should be a quarter mile. So I'll leave that up to Environmental Health Trust to let them figure out what...

If we can put a distance to that, I'd like to see a distance there. Balloon test. The balloon test here, I don't know if it's a misprint, John. It says it's for only four hours one day. Well, I can guarantee you I miss four hours of any one day very easily because I'm working, I'm not home, I'm on vacation. A balloon test that's only four hours in total isn't enough for everyone to see it and say, oh, that's what that tower's going to mean to me.

So I'd like to revisit the timing on the balloon test. Let's see, what else? I'm almost done. Almost done. We talk on page 10 about maintenance or routine maintenance and the word modification there is not defined. So I believe what they're talking about is the external modification of the tower. So does that mean they can just repaint it or they can put weird things? Modification is not defined, so I'd kind of like that. Dan, you're smiling at me. I know my time is up. Noise.

Noise is the other thing. This is the last one I got. Noise on page 20, sorry, yeah, page 19 and 20. They talk about noise. It's just the definition. I haven't seen it used. I haven't been able to get through the document. But when they talk about noise, there's no decibel level. So if me as a resident, if I get one of these things on my yard and there's all this noise coming about, I don't know how this law can back me up when I say, hey, this thing is too loud.

There's no definition of what too loud is. That's it. That's all I got. Thanks. Sorry. Thank you. Yeah, sure. Larry.

Chair commissioners I be really brief since Lori used up most of the evening I really thought we were going to walk and chew gum at the same time and get the 16 over to the council as well So the first thing I'd like you all to consider is, I know you get paid a huge sum of money to sit up there, so I'd like you to consider a special meeting and deal with 16 so the council can deal with it at the first meeting of October.

Because to me, 16 is pretty important and it's also the part of the two ordinances that most people pay attention to and have the least understanding of. So please consider that because we're only talking about 17 tonight. But in the packet in 17, I was going to address this. Our general plan calls for all utilities to be underground. Data is a utility. So there shouldn't be any antennas at all sticking up out of the ground for a utility.

So this is, I like to hear the attorney's view of how the FCC, which has no control over broadband frequencies, deals with a town that has actually in their general plan says that utilities are underground and broadband is a utility. And so I'd like to know how the oxymoron where an antenna sticks up out of the ground because somebody wants to have an antenna. Dovetailing on that, we've been rolling over and getting our bellies rubbed here in Fountain Hills and bullied by SRP.

Because they claim that they have a land-grant status that predates, actually, Arizona as a state. That land-grant status goes for water. It has nothing to do with their rights for electric or anything else. So when they stick their antennas up out of the ground to feed their data, and they don't go through any process, this panel or the town council panel, and they just go to our public works director, Justin Welby, and he says, yeah, okay, fine, stick it. Put it up.

That's what they do, and that's what they're doing. I like to put an end to that. And I'd like us to absolutely focus on the fact that utilities are utilities and telecom is telecom and 17 is telecom and yes those are antennas and they are governed and preempted by the feds and the state. But broadband isn't. From everything I've read, broadband is a utility and the antenna should not be sticking up out of the ground unless you allow it to stick up out of the ground.

And I don't think, I mean, I know it's in 16, but that's why I thought we were going to do both of them tonight. That's why I'd like you to get this over with in September. I mean, I was blonde when we started this and now I'm turning gray. It goes on and on. So let's get it over with. I appreciate your hard work on this and listening for five years, but it all comes to an end at some point. Let's get it over with and get it over to the council and let them deal with it. Thank you.

Any more speaker cards, Paula? The last speaker is Claire Sukman, but she's not here. Okay. That's it. Okay. Then we'll close the public hearing and commissioners comments. Commissioner Gray. Yeah, I just, thank you, Chair.

I just wanted to ask Vanessa, going back to uh, uh, Miss Joanne's inquiry about separations from commercial uses, but predominantly, I think where she was maybe going with that is, is a lot of schools in the Arizona market are, especially charter schools and daycares and so on and so forth end up inside of commercial zoning districts And so I kind of wanted to hear Any extrapolated thoughts that you might have Vanessa on that front because I think her point if I understood correctly I think her point is valid that you talking about students children you know in an environment for eight hours and sometimes more that may have some of these narrower separations than what we set out in the you know against residential placement and I'm just curious if is there any extrapolated thought to that or has that has that come up or been discussed in any way?

We had um so I know that there was a spot in the ordinance where we did do some separations from school One of the issues is really addressing the effect of prohibition and that's the balance that we decided to focus on were the residential areas. One of the things about RF energy is that it does impact how people sleep, for instance. So there is a lot of discussion on putting them away from schools and trying to keep them away from schools as far as possible.

But then running up against what, you know, the kind of balance between the effective prohibition in terms of because if the schools are in the commercial areas, it's more difficult to kind of keep them separated from those uses. But, you know, we do discuss that internally.

I guess what I'd like us to consider as this thing moves forward theoretically onto the council is any mechanics that would at least allow the language to address grandfathered, you know, number one, I guess, take a look at the definition of schools and education. There's nine references to it in the current draft.

I don't know that any of them extend into the pre-traditional school eras, but you know, looking to expand that maybe to include daycare type, anywhere where you might have children in a captive environment for, you know, pick your time duration, six hours, eight hours, whatever it might be. and then maybe find some way to weave in existing locations.

So if there's a daycare, for example, in a commercial district and an application comes in that we give some opportunity for the location of that charter or that daycare facility to be considered, even though it isn't a commercial district. I don't think it would be fair to let a tower come in after an existing, call it charter school. Absolutely.

We could look into it and see if we could draft something to include daycares, because that is a consideration in terms of children's vulnerability to the RF propagation. Of course, as you know, we can't necessarily say that. And so that's one of the rubs that we come up Because it may be that if it doesn't have another harmful impact, because that's why we're able to keep it from the residential areas, is that, you know, the impacts aesthetics and property values.

But that's a little bit of a harder sell in commercial zones, because the legitimate bases are not as strong to permit the cell towers. And so if you were to, say, keep it away from a daycare in a commercial area and then the rationale comes down to the radiofrequency exposures, that runs very, very close to Section 1332, C7 for the prohibition on a locality regulating on the basis of health impacts of radiofrequency. And so, yeah, no, it's a very difficult issue.

I mean, we do have a lot of internal discussions about it because it's very difficult to address that exposure when the FCC basically doesn't even allow, you know, states or local governments to regulate that. I mean, I don't know if you're aware of, you know, Gilardi versus Pittsfield at the Massachusetts Supreme Court.

It's not, it's a very unfortunate ruling, but essentially a board of health, found that a cell tower that had been erected in a residential area was making people sick and so they actually issued an order to Verizon to explain why the tower wasn causing it And this is after an extensive investigation that produced 20 pages showing a very strong correlation between the activation of that tower and the people getting sick. And yet it went all the way up to the Massachusetts Supreme Court.

And last July, that court ruled that the health board was preempted by Section 1332 because it was an attempt to regulate the RF emissions of the tower, and that basically the plaintiffs that were getting sick have no remedy other than to go to federal court. And so that is, you know, I do say this with a very heavy heart because it's absolutely imperative that we protect children from, you know, these exposures.

But right now our hands are tied and now with that that adverse ruling, it makes it even harder to to address that issue. So chair, if I may add one more piece to this, if you think back to the map we provided back in July, when we take the 500 foot from any residential use or zoning, there are only a couple of very small areas in town that are left that meet that criteria.

And those as they apply to the town center area are going to shrink even more as we approve a couple more mixed-use projects in the town center. So the practical impact is really practically nil. There just aren't going to be any places. Commissioner, is there anybody else? I'll make a couple of comments then. I want to thank Vanessa and her team for putting together a very strong ordinance. I think that we can pretty much go forward with some some stipulations.

Would like to review for any daycare school protections that we can If we can't put them in, I'd like to review for that. I'd like to review for the satellite dish orientation. That was a comment that I think we can put in there that was missed. Using an engineer estimate. Can I speak to the satellite dish? One of the issues with the satellite dishes is that that's preempted under the FCC's OTARD rule, which is the over-the-air reception devices. And that the FCC sets the standards for those.

So I don't believe, I can take another look at it, but I don't believe we can really do much about the orientation or anything, provided that those devices meet certain criteria. And we did put that into the ordinance in terms of the criteria that are set out in the Code of Federal Regulations. If I can speak to that, having litigated the OTARD rule. This is Scott McCullough. There is a very broad preemption, both in the Communications Act and in FCC rules.

There is basically no zoning authority at all for a device that meets the criteria for being an over-the-air receiving device. And the satellite dishes, including Starlink, fall squarely within that definition. There is a way that you could get at this to some extent, however, because the FCC did hold in its OTAR rulings that a local jurisdiction retains the authority to regulate under its electric building or fire code.

But you must be very specific in it and point specifically to, in any ordinance, what it is in the code that you're enforcing. So if you can come up with an electric building fire reason within your building code or your fire code or your electric code for why you would want to regulate the orientation, then that would be the way to do it. It wouldn't be in this ordinance. It would be in your building code. Thank you. So, Director, that definitely falls outside our purview.

Okay, so we'll forget that one. The using, getting engineers estimates as to determine the bonds, the maintenance bond, or the, yeah, the maintenance bond and the decommissioning bond. And time's a factor. The margin of safety, but it's what do we have a standard one in town? 15-20% something like that. Okay. Is there a way to work in a hold harmless clause that if we get, you know, if somebody does file against Verizon and includes the town that Verizon holds us harmless?

I believe I saw one in either the standard terms and conditions, and I think there is one in the ordinance. There is. Let me take it. There is. There's an indemnity clause. It's subsection F to...let's see here. Trying to get the main number for it. I'm sorry, I'm having to scroll up. 1706, I believe it is, F, has an indemnity clause where the permittee has to indemnify. Great, thank you. I missed that.

In the cure period that we talked about earlier, in section 1706, so going back over them, with the one excluding the ones that were answered. We want to review for daycare school protection. We want an engineer's estimate times a factor for the maintenance bond and decommissioning bond, and we want the cure period addressed. So I would look for a motion with those stipulations. If anybody cares to make it, Commissioner Seeham. Chair, I'd like to make sure that Ms.

Troller's comments will be fully discussed. I think there were several probably more miscellaneous items that she mentioned that seemed to be practical. The balloon testing for one, I would think would be rather important. That's probably the low hanging fruit for my education from well below what Ms. Stroller brings to the table. I just think there's things that should be still kind of flushed out that she mentioned tonight. And I'm not sure how much longer the list will be beyond tonight.

I know we want to put this to bed, but I think there's some legitimacy and maybe they've already been addressed. I think that since she put her notes together, that perhaps Vanessa and her team can discuss and work closely with John. I'm just throwing it out there that it seems that some things that would be definitely would be of interest if I were to have a tower located near I live Thank you. I guess I was looking at those as more administrative, that John could work those into the ordinance.

But, commissioners, that's a fair comment. I'd like to know if you have further comments along those lines. Commissioner McDermott. Yeah, Chairman, I think if we can reach agreement on additional time, because I agree with the Commissioner, I think that time period is probably inadequate. So, I mean, if we could agree to extend it to eight hours or some amount of time, I mean, I agree with you, Chairman.

I'd like to move this forward and not prolong it any further, because I think a lot of hard work has gone into it. And I think it's an improvement for the town. But in the same token, you know, at some point we gotta move it forward. So if we could agree on additional length of time, if that's something we can do, or administratively if John can do afterwards, then that would be okay as well.

Chair, commissioners, if you want to lengthen that, change that time, it would be better because it's a specific statement in the ordinance about the time. Part of my response to it is they'll do the balloon test and pictures will be taken. And those pictures will be made available publicly. So you don't have to be there during the four hours or eight hours or ten hours, however long you set it or that day. They'll be available. People can see them later.

And so I'm not sure why it really needs to be much longer of a period of time. And I would also like to add that, you know, there is a notice that has to be mailed out to the property owners one week before and published so that there would be plenty of time and the notice would include the time frame so if people had an interest to see the actual balloon test itself, then they could work that into their schedule too. Commissioner McDermott?

Just because I'm an expert on balloon tests, but what is the standard of care nationally for the duration of a balloon test? Can you answer that, Vanessa? Yeah, well, actually, four hours is really on the larger side of the balloon test. And, you know, I did want to do it for eight hours, but when I was reviewing other ordinances, I saw some as little as two. Some of them were like, you know, in the morning, some of them were in the evening.

And so I thought that four was a permissible window without maybe getting too lengthy. But, you know, I'm happy to actually extend the time if that is something that you would like. I mean, I can take a look and make sure that it's not going to be a problem.

I just, I think the reason why I kept it to four hours is that when I looked in tandem I guess my worry is just having it get very close to becoming an effective prohibition or to becoming like go and extend the time I mean I would be happy to extend the time because I do understand those concerns that people may want to see it in real life and that maybe the photo may not suffice I mean, that's something, you know, that I think we could work with.

Yeah, I mean, just for myself, I would think you would want to, granted, you may be able to see the photos, but I think actually seeing it in person in this town would be important for folks. So I would, I mean, if we can, I would suggest eight hours. Well, what I will do is I'll do some more research and then, you know, if I can get it to eight hours, I'll do eight hours or extend it as much as, you know, we think is feasible. Commissioner Silliam.

I only mentioned the balloon because it's something I think everybody can visualize, but I'm willing to go along with what's been presented. As long as there's more dialogue between John and Vanessa and Ms. Troller on her concerns that she brought up and they can flush them out after, before it goes to council. That's what I would, if you're fine with that, I'll make that motion to approve. Commissioner Corrigan. Chair, just a general question.

And we know that the next opportunity the council has to address this, I think, is in October, not tomorrow. Is that right? Because it has to be agendized. And so... Correct. So... I'm sorry, John, go ahead. Oh, yeah. So, Chair, Commissioners, October 20th is the target date for this to be on the council, as well as the other chapter on the small cell. Okay, so it sounds like we're under our own shot clock here, and I'm in agreement that we really need to move it forward.

It's well more than half a loaf, and I think maybe that the council, you know, viewing this meeting, or at least with attention to it, can improve the ordinance that we suggest. And so my thought on that then with John's answer and your answer would be to a yes vote would be great. I'm willing to move ahead on that. So I've got five stipulations to your motion then if that's Commissioner Sveum.

I've got a review for daycare and school protection, an engineer's estimate and a factor for the bond, specify an engineer's estimate and factor for the bonds, specify the cure period in 1706, review balloon test timing and increase if feasible and administratively continue the dialogue on Ms Troller comments and work them into the ordinance that goes to council the comment she made tonight So with those five modifications is that your motion That's my motion. Can I get a second? I'll second it.

Any discussion? All in favor, can we have a roll call vote, please? Commissioner Schlossberg. Aye. Commissioner Corrigan. Aye. Commissioner McDermott. Aye. Commissioner Proctor. Aye. Commissioner Seatham. Aye. Chair Kovacevic. Aye. Vice Chair Gray. Aye. 7-0. Do we have any speaker cards? Agenda item 7, call to the public. Do we have any speaker cards? No, Chair. Anybody have direction for the director? Commissioner Corrigan. Commissioner Corrigan. Chair, just a general question.

The topic of chapter 16, of course, is a hot topic, and the question would be, is McCullough working on that now, or when do we plan to have kind of an interim session to address that before council sees that, or would that be the October? So, Chair, Commissioner Corrigan, we had that at your work session back in July, so we discussed both 16 and 17 then. We got some comments from you with regard to 16 at that point, and some of the things that Ms. Trollers brought up also impact 16.

So we're in the process of taking those comments and making those adjustments to Chapter 16. We'll have that ready then for council consideration on October 20th. Okay, and one of the things I think is shared by some of the commissioners here, as well as myself, as a priority is the underground with Chapter 16. And so I hope that McCullough, I think, is addressing that and would appreciate seeing that in that new ordinance document. Yes. Thank you.

But that, to be clear, that's not coming back to us. That's correct. We will not have a vote on the Chapter 16 items. Correct. That'll go straight to council. Correct. Okay, Commissioner Gray, your light was on? Okay. Anything for future agenda items? Chair, Commissioners, we do have a rezoning application that you will be hearing at your October meeting. Maybe another item that Pop said, but for sure we don't have one rezoning item. Okay, anybody want to make a motion to adjourn? So moved.

Second. Second. All in favor? Aye. All right. We're adjourned.