§ 19.04.130  EXCEPTIONS.
   (A)   Exceptions pertaining to any provision of this chapter, including, but not limited to, exceptions from findings that would otherwise justify denial, may be granted by the reviewing authority if the reviewing authority makes the finding that a refusal to grant the exception would violate federal law, state law, or both. Such exceptions may be granted if the reviewing authority finds, without limitation, that:
      (1)   A provision of this chapter, as applied to applicant, would deprive applicant of its rights under federal law, state law, or both; and
      (2)   The proposed wireless facility qualifies as a "personal wireless service facility" as defined in § 19.04.020, as may be amended or superseded; and
      (3)   The applicant has provided the reviewing authority with a reasonable and clearly defined technical service objective to be achieved by the proposed wireless facility; and
      (4)   The applicant has provided the reviewing authority with a written statement that contains a detailed and fact-specific explanation as to why the proposed wireless facility cannot be deployed in compliance with the applicable provisions in this chapter, the Fairfax Municipal Code, the General Plan and/or any specific plan; and
      (5)   The applicant has provided the reviewing authority with a meaningful comparative analysis with the factual reasons why all alternative locations and/or designs identified in the administrative record (whether suggested by the applicant, the town, public comments or any other source) are not technically feasible or potentially available to reasonably achieve the applicant's reasonable and clearly defined technical service objective to be achieved by the proposed wireless facility; and
      (6)   The applicant has demonstrated to the reviewing authority that the proposed location and design is the least non-compliant configuration that will reasonably achieve the applicant's reasonable and clearly defined technical service objective to be achieved by the proposed wireless facility, which includes without limitation a meaningful comparative analysis into multiple smaller or less intrusive wireless facilities dispersed throughout the intended service area; and
      (7)   The applicant has demonstrated that its proposed wireless facility will be in compliance with all applicable health, safety, and environmental regulations, which include without limitation the Americans with Disabilities Act, the Endangered Species Act, and all FCC rules and regulations for human exposure to RF emissions.
   (B)   An applicant may only request an exception at the time of applying for a wireless telecommunications facility permit. The request must include both the specific provision(s) of this chapter from which the exception is sought and the basis of the request. Any request for an exception after the town has deemed an application complete shall be treated as a ew application.
   (C)   The applicant shall have the burden of proving that the exception should be granted.
(Ord. 833, passed 8-7-2019)