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(A) Applicability. This section applies to all eligible facilities requests pursuant to § 6409(a).
(B) Approval required. Applicants for eligible facilities requests must submit a written request for a § 6409(a) approval consistent with this section, which will be reviewed by the Zoning Administrator who will determine whether the request should be approved, conditionally approved, or denied without prejudice pursuant to the standards and procedures contained in this section.
(C) Other regulatory approvals. Any eligible facilities request approved under this chapter shall be subject to any and all lawful conditions or requirements associated with such other permits or regulatory approvals from the town and state or federal agencies.
(D) Eligible facilities request application requirement. An application must include the following information:
(1) Full name and contact information for the facility owner, facility operator, agent (if any), and property owner, and related letter(s) of authorization. If the applicant does not own the subject property, the application must include a written authorization signed by the property owner that empowers the applicant to file the application and perform all wireless facility construction, installation, operation, and maintenance to the extent described in the application.
(2) The type of facility, including a full, written description of the proposed facility, its purpose, and technical specifications.
(3) A detailed site and engineering plan of the proposed facility containing the exact proposed location of the facility, created by a qualified, licensed engineer and in accordance with requirements set by the Zoning Administrator. The site and engineering plan shall display the dimensions of each proposed facility, including, but not limited to, its height from the ground level. The site and engineering plans shall show the proposed facility from each cardinal direction.
(4) Photographs of facility equipment and an accurate visual impact analysis with photo simulations.
(5) A written statement that explains why the applicant believes § 6409(a) and the related FCC regulations require approval. A complete written narrative analysis will state the applicable standard and all the facts that allow the town to conclude the standard has been met. Bare conclusions not factually supported do not constitute a complete written analysis. As part of this written statement the applicant must also include (a) whether and why the support structure qualifies as an existing tower or existing base station; and (b) whether and why the proposed eligible facilities request does not cause a substantial change in height, width, excavation, equipment cabinets, concealment, or permit compliance. The analysis provided under (b) shall include a copy of all prior conditions of approval and an explanation as to why the prior conditions of approval are met by the proposed wireless facility application.
(6) A technically-sufficient written report by a qualified radio frequency emissions engineer, certifying that the facility is in compliance with such FCC standards.
(7) Public notification. Proof that the applicant has provided public notification, at its own cost, via mail to all property owners and occupants within a radius of 300 feet from its proposed facilities. Information regarding the application shall be displayed on the outside of the envelope.
(E) Administrative review; decision notices. The Zoning Administrator shall administratively review an application for an eligible facilities request and act on such an application without prior notice or a public hearing. Within five working days after the Zoning Administrator approves, conditionally approves, or denies an eligible facilities request application, the Zoning Administrator shall send a written notice to the applicant. In the event that the Zoning Administrator determines that an application submitted for approval pursuant to § 6409(a) does not qualify for approval, the Zoning Administrator will send written notice to the applicant that includes the reasons to support the review authority's decision and states that the application will be denied without prejudice.
(F) Required findings for § 6409(a) approval. The Zoning Administrator may approve or conditionally approve an application submitted for § 6409(a) approval when the Zoning Administrator finds that the proposed project:
(1) Qualifies as an eligible facilities request; and
(2) Complies with (or is conditioned to comply with) all generally applicable health and safety rules.
(G) Criteria for denial without prejudice. The Zoning Administrator may deny without prejudice an application submitted for approval pursuant to § 6409(a) when it finds that the proposed project does not meet the criteria under division (D) above.
(H) Conditional § 6409(a) approvals. Subject to any applicable limitations in federal or state law, nothing in this chapter is intended to limit the town's authority to conditionally approve an application for a § 6409(a) approval to protect and promote the public health, safety, and welfare.
(I) Standard conditions of approval. In addition to all other conditions adopted by the Zoning Administrator, all § 6409(a) approvals, whether approved by the Zoning Administrator or deemed approved by the operation of law, shall be automatically subject to the following conditions in this section; provided, however, that the Zoning Administrator shall have discretion to modify or amend these conditions on a case-by-case basis as may be necessary or appropriate under the circumstances:
(1) Approved plans. Before the permittee submits any application for a building permit or other permits required by the Fairfax Municipal Code, the permittee must incorporate the wireless telecommunications facility permit granted under this section, all conditions associated with the wireless telecommunications facility permit and the approved plans and any photo simulations into the project plans (the "approved plans") . The permittee must construct, install and operate the wireless telecommunications facility in strict compliance with the approved plans. The permittee shall submit an as-built drawing within 90 days after installation of the facility.
(2) Permit term. The town's grant or grant by operation of law of a § 6409(a) approval will not extend the permit term, if any, for any conditional use permit, or other underlying prior regulatory authorization. Accordingly, the term for a § 6409(a) approval shall be coterminous with the underlying permit or other prior regulatory authorization for the subject tower or base station.
(3) Accelerated permit terms due to invalidation. In the event that any court of competent jurisdiction invalidates any portion of § 6409(a) or any FCC Rule 1217 that interprets § 6409(a) such that federal law would not mandate approval for any § 6409(a) approval, such § 6409(a) approvals shall automatically expire one year from the effective date of the judicial order, unless the decision would not authorize accelerated termination of previously-approved § 6409(a) approvals or the Zoning Administrator grants an extension upon written request from the permittee that shows good cause for the extension, which includes, without limitation, extreme financial hardship. Notwithstanding anything in the previous sentence to the contrary, the Zoning Administrator may not grant a permanent exemption or indefinite extension. A permittee shall not be required to remove its improvements approved under the invalidated § 6409(a) approval when it has submitted an application for a conditional use permit for those improvements before the one-year period ends.
(4) No waiver of standing. The town's grant or grant by operation of law of a § 6409(a) approval does not waive, and shall not be construed to waive, any standing by or right of the town to challenge § 6409(a), any FCC rules that interpret § 6409(a), or any § 6409(a) approval.
(5) Build-out period. The § 6409(a) approval will automatically expire one year from the issuance date, unless the permittee obtains all other permits and approvals required to install, construct and operate the approved wireless facility, which includes, without limitation, any permits or approvals required by the any federal, state, or local public agencies with jurisdiction over the subject property, the wireless facility, or its use. The Zoning Administrator may grant one written extension to a date certain when the permittee shows good cause to extend the limitations period in a written request for an extension submitted at least 30 days prior to the automatic expiration date in this division (I)(5). Any further extensions may be granted by the Planning Commission, in its sole discretion, pursuant to the same procedures to request an extension from the Zoning Administrator.
(6) Maintenance obligations; vandalism. The permittee shall keep the site, which includes, without limitation, any and all improvements, equipment, structures, access routes, fences and landscape features, in a neat, clean, and safe condition in accordance with the approved plans and all conditions in the § 6409(a) approval. The permittee shall keep the site area free from all litter and debris at all times. The permittee, at its sole cost, shall remove and remediate any graffiti or other vandalism at the site within two days after the permittee receives notice or otherwise becomes aware that such graffiti or other vandalism occurred.
(7) Compliance with laws. The permittee shall maintain compliance at all times with all federal, state, and local laws applicable to the permittee, the subject property, the wireless facility, or any use or activities in connection with the use authorized in this § 6409(a) approval, including, but not limited to, compliance with the Americans with Disability Act. The permittee expressly acknowledges and agrees that this obligation is intended to be broadly construed and that no other specific requirements in these conditions are intended to reduce, relieve, or otherwise lessen the permittee's obligations to maintain compliance with all applicable laws.
(8) Adverse impacts on other properties. The permittee shall use all reasonable efforts to avoid any and all undue or unnecessary adverse impacts on nearby properties that may arise from the permittee's construction, installation, operation, modification, maintenance, repair, removal, or other activities at the site. The permittee shall not perform or cause others to perform any construction, installation, operation, modification, maintenance, repair, removal, or other work that involves heavy equipment or machines on any day and at any time prohibited under the Fairfax Municipal Code. The restricted work hours in this condition will not prohibit any work required to prevent an actual, immediate harm to property or persons, or any work during an emergency declared by the town. The Zoning Administrator may issue a stop work order for any work that violates this condition.
(9) Noise complaints. The permittee shall conduct all activities on the site in compliance with the noise standards in the Fairfax Municipal Code. In the event that any person files a noise complaint and the town verifies that such complaint is valid, the permittee must remedy the violation within ten days after notice from the town, which may include a demonstration that the permittee has amended its operational guidelines in situations where the violation arises from the permittee's personnel rather than the permittee's equipment.
(10) Inspections; emergencies. The permittee expressly acknowledges and agrees that the town or its designee may enter onto the site and inspect the improvements and equipment upon reasonable prior notice to the permittee; provided, however, that the town or its designee may, but is not obligated to, enter onto the site area without prior notice to support, repair, disable, or remove any improvements or equipment in emergencies or when such improvements or equipment threatens actual, imminent harm to property or persons. The permittee will be permitted to supervise the town or its designee while such inspection or emergency access occurs.
(11) Contact information. The permittee shall furnish the town with accurate and up-to-date contact information for a person responsible for the wireless facility, which includes, without limitation, such person's full name, title, direct telephone number, facsimile number, mailing address, and email address. The permittee shall keep such contact information up-to-date at all times.
(12) Performance bond. Before the town issues any construction permit in connection with the wireless facility, if, in the town's sole discretion, the existing performance bond for the facility is inadequate or the facility is not associated with any existing performance bond, the permittee shall post a performance bond from a surety and in a form acceptable to the Town Manager in an amount equal to or greater than a written estimate from a qualified contractor with experience in wireless facilities removal. The written estimate must include the cost to remove all equipment and other improvements, which includes, without limitation, all antennas, radios, batteries, generators, utilities, cabinets, mounts, brackets, hardware, cables, wires, conduits, structures, shelters, towers, poles, footings and foundations, whether above ground or below ground, constructed or installed in connection with the wireless facility. In establishing or adjusting the bond amount required under this condition, and in accordance with Cal. Government Code § 65964(a), the Town Manager shall take into consideration information provided by the permittee regarding the cost to remove the wireless facility.
(13) Conditions of approval shall specify a maximum number of trips on a case-by-case basis based upon the carrier's maintenance and testing schedule.
(Ord. 833, passed 8-7-2019)