§ 19.04.110  ADDITIONAL CONDITIONS OF APPROVAL FOR FACILITIES IN THE PUBLIC RIGHT-OF-WAY.
   (A)   In addition to compliance with the requirements of this chapter, upon approval all facilities in the public right-of-way shall be subject to each of the conditions of approval set forth in § 19.04.100, each of the following conditions of approval, and any modification of these conditions or additional conditions of approval deemed necessary by the reviewing authority throughout the duration of the permit:
      (1)   The wireless telecommunications facility shall be subject to such conditions, changes or limitations as are from time to time deemed necessary by the Town Manager or his or her designee for the purpose of: (a) protecting the public health, safety, and welfare, (b) preventing interference with pedestrian and vehicular traffic, and (c) preventing damage to the public right-of-way or any property adjacent to it. The town may modify the permit to reflect such conditions, changes or limitations by following the same notice and public hearing procedures as are applicable to the grant of a wireless telecommunications facility permit for similarly located facilities, except the permittee shall be given notice by personal service or by registered or certified mail at the last address provided to the town by the permittee.
      (2)   The permittee shall not move, alter, temporarily relocate, change, or interfere with any existing structure, improvement, or property without the prior consent of the owner of that structure, improvement, or property. No structure, improvement or property owned by the town shall be moved to accommodate a wireless telecommunications facility, unless the town determines that such movement will not adversely affect the town or any surrounding businesses or residents, and the permittee pays all costs and expenses related to the relocation of the town's structure, improvement, or property. Prior to commencement of any work pursuant to an encroachment permit issued for any facility within the public right-of-way, the permittee shall provide the with documentation establishing to the town's satisfaction that the permittee has the legal right to use or interfere with any other structure, improvement, or property within the public right-of-way to be affected by applicant's facilities.
      (3)   The permittee shall assume full liability for damage or injury caused to any property or person by the facility.
      (4)   The permittee shall repair, at its sole cost and expense, any damage including, but not limited to, subsidence, cracking, erosion, collapse, weakening, or loss of lateral support to town streets, sidewalks, walks, curbs, gutters, trees, parkways, street lights, traffic signals, improvements of any kind or nature, utility lines and systems, underground utility lines and systems, or sewer systems and sewer lines that result from any activities performed in connection with the installation or maintenance of a wireless telecommunications facility in the public right-of-way. The permittee shall restore such areas, structures and systems to the condition in which they existed prior to the installation or maintenance that necessitated the repairs. In the event the permittee fails to complete such repair within the number of days stated on a written notice by the Zoning Administrator, the Zoning Administrator shall cause such repair to be completed at permittee's sole cost and expense.
      (5)   Prior to issuance of a building permit, the applicant shall obtain the Zoning Administrator's approval of a tree protection plan prepared by a certified arborist if the installation of the wireless telecommunication facility will be located within the canopy of a street tree, or a protected tree on private property, or within a ten-foot radius of the base of such a tree. Depending on site specific criteria (e.g., location of tree, size, and type of tree, etc.), a radius greater than ten feet may be required by the Zoning Administrator.
      (6)   If a meter cabinet has been approved for the facility and subsequently any utility company offers electrical service that does not require the use of a meter cabinet, the permittee shall seek approval of the utility company to switch to the unmetered service and, at its sole cost and expense, remove the meter cabinet and any related foundation within 30 days of such service being obtained and reasonably restore the area to its prior condition.
      (7)   The permittee shall modify, remove, or relocate its facility, or portion thereof, without cost or expense to the town, if and when made necessary by:
         (a)   Any public improvement project, including, but not limited to, the construction, maintenance, or operation of any underground or aboveground facilities, including, but not limited to, sewers, storm drains, conduits, gas, water, electric or other utility systems, or pipes owned by the town or any other public agency;
         (b)   Any abandonment of any street, sidewalk, or other public facility;
         (c)   Any change of grade, alignment or width of any street, sidewalk, or other public facility; or
         (d)   A determination by the Zoning Administrator that the wireless telecommunications facility has become incompatible with public health, safety, or welfare or the public's use of the public right-of-way.
      (8)   Any modification, removal, or relocation of the facility shall be completed within 90 days of written notification by the town, unless exigencies dictate a shorter period for removal or relocation. Modification or relocation of the facility shall require submittal, review, and approval of a permit amendment pursuant to the Fairfax Municipal Code. The permittee shall be entitled, on permittee's election, to either a pro-rata refund of fees paid for the original permit or to a new permit, without additional fee, at a location as close to the original location as the standards set forth in the Fairfax Municipal Code allow. In the event the facility is not modified, removed, or relocated within said period of time, the town may cause the same to be done at the sole cost and expense of permittee. Further, due to exigent circumstances as provided in the Fairfax Municipal Code, the town may modify, remove, or relocate wireless telecommunications facilities without prior notice to permittee, provided permittee is notified within a reasonable period thereafter.
      (9)   The applicant has the right to enter the public right-of-way pursuant to state or federal law, or by virtue of a franchise or other agreement with the town permitting them to use the public right-of-way.
      (10)   The facility will not interfere with the use of the public right-of-way, existing subterranean infrastructure, or the town's plans for modification or use of such location and infrastructure.
(Ord. 833, passed 8-7-2019)