TITLE 19:  TELECOMMUNICATIONS
   Chapter
      19.04.   WIRELESS TELECOMMUNICATIONS FACILITIES
      19.08.   STANDARDS FOR CRITERIA FOR WIRELESS TELECOMMUNICATIONS FACILITIES
CHAPTER 19.04:  WIRELESS TELECOMMUNICATIONS FACILITIES
Section
   19.04.010      Purpose
   19.04.020      Definitions
   19.04.030      Applicability
   19.04.040      Wireless telecommunications facility permit required
   19.04.050      Application for permit
   19.04.060      Location and configuration preferences
   19.04.070      Design and development standards for all facilities
   19.04.080      Additional design and development standards for facilities outside the public right-of-way
   19.04.090      Additional design and development standards for facilities in the public right-of-way
   19.04.100      Conditions of approval for all facilities
   19.04.110      Additional conditions of approval for facilities in the public right-of-way
   19.04.120      Findings
   19.04.130      Exceptions
   19.04.140      Eligible facilities requests
   19.04.150      Wireless telecommunications collocation facilities covered under Cal. Government Code § 65850.6
   19.04.160      Business license
   19.04.170      Emergency deployment
   19.04.180      Operation and maintenance standards
   19.04.190      No dangerous conditions or obstructions allowed
   19.04.200      Permit expiration
   19.04.210      Cessation of use or abandonment
   19.04.220      Removal and restoration, permit expiration, revocation or abandonment
   19.04.230      Authorization for departmental forms, rules, and other regulations
   19.04.240      Appeals
   19.04.250      Effect on other ordinances
§ 19.04.010  PURPOSE.
   (A)   The purpose and intent of this chapter is to provide a uniform and comprehensive set of regulations and standards for the permitting, development, siting, installation, design,  operation and maintenance of wireless telecommunications facilities in the Town of Fairfax to avoid visual impacts to the downtown, scenic corridors, residential and visually distinctive areas; to avoid impact to listed and candidate endangered species including habitats; and to provide a uniform and comprehensive set of standards for the orderly development of telecommunications facilities and installation of antennas. These regulations are intended to prescribe clear and reasonable criteria to assess and process applications in a consistent and expeditious manner, while reducing the impacts associated with wireless telecommunications Facilities. This chapter provides standards necessary to: (1) preserve and promote harmonious land uses and the public right-of-way in the town; (2) promote and protect public health and  safety, community welfare, visual resources, and the aesthetic quality of the town consistent with the goals, objectives, and policies of the General Plan; (3) provide for the orderly, managed, and efficient development of wireless telecommunications facilities in accordance with the state and federal laws, rules, and regulations; and (4) encourage new technology in the provision of wireless telecommunications facilities.
   (B)   This chapter is not intended to, nor shall it be interpreted or applied to: (1) prohibit or effectively prohibit any personal wireless service provider's ability to provide personal wireless services; (2) prohibit or effectively prohibit any entity's ability to provide any interstate or intrastate telecommunications service, subject to any competitively neutral and nondiscriminatory rules or regulation for rights-of-way management; (3) unreasonably discriminate among providers of functionally-equivalent services; (4) deny any request for authorization to place, construct or modify personal wireless service facilities on the basis of environmental effects of radio frequency emissions to the extent that such wireless facilities comply with the FCC's regulations concerning such emissions; or (5) prohibit any collocation or modification that the town may not deny under federal or state law.
(Ord. 833, passed 8-7-2019)
§ 19.04.020  DEFINITIONS.
   For the purposes of this chapter, the following defined terms shall have the meaning set forth in this section, unless otherwise defined or the context clearly indicates or requires a different meaning.
   ACCESSORY EQUIPMENT. Any equipment associated with the installation of a wireless telecommunications facility, including, but not limited to, cabling, generators, air conditioning units, electrical panels, equipment shelters, equipment cabinets, equipment buildings, pedestals, meters, vaults, splice boxes, and surface location markers.
   ANTENNA. That part of a wireless telecommunications facility designed to radiate or receive radio frequency signals or electromagnetic waves for the provision of services, including, but not limited to, cellular, paging, personal communications services (PCS) and microwave communications. Such devices include, but are not limited to, directional antennas, such as panel antenna, microwave dishes, and satellite dishes; omnidirectional antennas; wireless access points (Wi-Fi); and strand-mounted wireless access points. This definition does not apply to broadcast antennas, antennas designed for amateur radio use, or satellite dishes designed for residential or household purposes.
   BASE STATION. The same as defined by the FCC in 47 C.F.R. § 1.6100(b)(1), as may be amended, which currently defines that term as a structure or equipment at a fixed location that enables FCC-licensed or authorized wireless communications between user equipment and a communications network. The term does not encompass a tower as defined in 47 C.F.R. § 1.6100(b)(9) or any equipment associated with a tower. The term includes, but is not limited to, equipment associated with wireless communications services such as private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul. The term includes, but is not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration (including distributed  antenna systems and small-cell networks). The term includes any structure other than a tower that, at the time the relevant application is filed with the state or local government under this chapter, supports or houses equipment described in 47 C.F.R. §1.6100(b)(1)(i)-(ii) that has been reviewed and approved under the applicable zoning or siting process, or under another state or local regulatory review process, even if the structure was not built for the sole or primary purpose of providing such support. The term does not include any structure that, at the time the relevant application is filed with the state or local government under this chapter, does not support or house equipment described in 47 C.F.R. §1.6100(b)(1)(i)-(ii).
   BUILDING-MOUNTED. Mounted to the side or façade, but not the roof, of a building or another structure such as a water tank, pump station, church steeple, freestanding sign, or similar structure.
   COLLOCATION. The same as defined by the FCC in 47 C.F.R. § 1.6100(b)(2), as may be amended, which currently defines that term as the mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting or receiving radio frequency signals for communications purposes.
   ELIGIBLE FACILITIES REQUEST. The same as defined by the FCC in 47 C.F.R. § 1.6100(b)(3), as may be amended, which currently defines that term as any request for modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or base station, involving: (i) collocation of new transmission equipment; (ii) removal of transmission equipment; or (iii) replacement of transmission equipment.
   ELIGIBLE SUPPORT STRUCTURE. The same as defined by the FCC in 47 C.F.R. § 1.6100(b)(4), as may be amended, which currently defines that term as any tower or base station as defined in this section; provided that it is existing at the time the relevant application is filed with the state or local government under this chapter.
   EXISTING. The same as defined by the FCC in 47 C.F.R. § 1.6100(b)(4), as may be amended, which currently provides that a constructed tower or base station is existing for purposes of the FCC's §6409(a) regulations if it has been reviewed and approved under the applicable zoning or siting process, or under another state or local regulatory review process; provided that, a tower that has not been reviewed and approved because it was not in a zoned area when it was built, but was lawfully constructed, is existing for purposes of this definition.
   FCC. The Federal Communications Commission or its duly appointed successor agency.
   LISTED SPECIES. Any species, endangered, threatened or rare species as listed by the Department of Fish and Wildlife (Cal. Fish and Game Code §§2 050 et seq.), the United States Fish and Wildlife Service (Endangered Species Act, 16 U.S.C. §§ 1531 et seq.) or the National Marine Fisheries Service (re: anadromous fish), or locally designated, such as heritage trees, and natural communities, including wetland habitat or wildlife dispersal or migration corridors.
   MODIFICATION. Any change to an existing wireless telecommunications facility that involves any of the following: collocation, expansion, modification, alteration, enlargement, intensification, reduction, or augmentation, including, but not limited to, a change in size, shape, color, visual design, or exterior material. MODIFICATION does not include repair, replacement, or maintenance if those actions do not involve a change to the existing facility involving any of the following: collocation, expansion, modification, alteration, enlargement, intensification, reduction, or augmentation.
   MONOPOLE. A wireless communication facility support structure which consists of a self-supported monopolar structure, usually rounded, erected on the ground to support antennas and connecting appurtenances.
   NON-IONIZING ELECTROMAGNETIC RADIATION. Electromagnetic radiation primarily in the visible, infrared and radio frequency portions of the electromagnetic spectrum).
   PERSONAL WIRELESS SERVICE FACILITIES. The same as defined in 47 U.S.C. § 332(c)(7)(C)(i), as may be amended, which defines the term as facilities that provide personal wireless services.
   PERSONAL WIRELESS SERVICES. The same as defined in 47 U.S.C. § 332(c)(7)(C)(i), as may be amended, which defines the term as commercial mobile services, unlicensed wireless services and common carrier wireless exchange access services.
   POLE. A single shaft of wood, steel, concrete, or other material capable of supporting the equipment mounted thereon in a safe and adequate manner and as required by provisions of the Fairfax Municipal Code.
   PUBLIC RIGHT-OF-WAY or RIGHT-OF-WAY. Any public street, public way, public alley or public place, laid out or dedicated, and the space on, above or below it, and all extensions thereof, and additions thereto, under the jurisdiction of the town.
   REVIEWING AUTHORITY. The person or body who has the authority to review and either grant or deny a wireless telecommunications facility permit pursuant to this chapter.
   RF. Radio frequency or electromagnetic waves.
   ROOF-MOUNTED. Mounted directly on the roof of any building or structure, above the eave line of such building or structure.
   SECTION 6409(a). Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. No. 112-96, 126 Stat. 156, codified as 47 U.S.C. § 1455(a), as such law may be amended from time to time.
   SECTION 6409(a) APPROVAL. The approval required by § 6409(a).
   SHARED-LOCATION. More than one wireless communications facility comprised of multiple structures used to support antennas operated by one or more carriers where the structures are located within proximity to each other.
   SITE. The same as defined by the FCC in 47 C.F.R. § 1.6100(b)(6), as may be amended, which provides that for towers other than towers in the public rights-of-way, the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site, and, for other eligible support structures, further restricted to that area in proximity to the structure and to other transmission equipment already deployed on the ground.
   SUBSTANTIAL CHANGE. The same as defined by the FCC in 47 C.F.R. § 1.6100(b)(7), as may be amended, which currently defines that term differently based on the particular wireless facility type (tower or base station) and location (in or outside the public right-of-way). For clarity, this definition organizes the FCC's criteria and thresholds for a substantial change according to the wireless facility type and location.
      (1)   For towers outside the public rights-of-way, a SUBSTANTIAL CHANGE occurs when:
         (a)   The proposed collocation or modification increases the overall height more than ten percent or the height of one additional antenna array not to exceed 20 feet (whichever is greater); or
         (b)   The proposed collocation or modification increases the width more than 20 feet  from the edge of the wireless tower or the width of the wireless tower at the level of the appurtenance (whichever is greater); or
         (c)   The proposed collocation or modification involves the installation of more than the standard number of equipment cabinets for the technology involved, not to exceed four; or
         (d)   The proposed collocation or modification involves excavation outside the current boundaries of the leased or owned property surrounding the wireless tower, including any access or utility easements currently related to the site.
      (1)   For towers in the public rights-of-way and for all base stations, a substantial change occurs when:
         (a)   The proposed collocation or modification increases the overall height more than  ten percent or ten feet (whichever is greater); or
         (b)   The proposed collocation or modification increases the width more than six feet from the edge of the wireless tower or base station; or
         (c)   The proposed collocation or modification involves the installation of any new equipment cabinets on the ground when there are no existing ground-mounted equipment cabinets; or
         (d)   The proposed collocation or modification involves the installation of any new ground-mounted equipment cabinets that are ten percent larger in height or volume than any existing ground-mounted equipment cabinets; or
         (e)   The proposed collocation or modification involves excavation outside the area in proximity to the structure and other transmission equipment already deployed on the ground.
      (3)   In addition, for all towers and base stations wherever located, a substantial change  occurs when:
         (a)   The proposed collocation or modification would defeat the existing concealment elements of the support structure as determined by the Zoning Administrator; or
         (b)   The proposed collocation or modification violates a prior condition of approval, provided however that the collocation need not comply with any prior condition of approval related to height, width, equipment cabinets or excavation that is  inconsistent with the thresholds for a substantial change described in this section.
The thresholds for a substantial change outlined above are disjunctive. The failure to meet any one or more of the applicable thresholds means that a substantial change would occur. The thresholds for height increases are cumulative limits. For sites with horizontally separated deployments, the cumulative limit is measured from the originally-permitted support structure without regard to any increases in size due to wireless equipment not included in the original design. For sites with vertically separated deployments, the cumulative limit is measured from the permitted site dimensions as they existed on February 22, 2012—the date that Congress passed § 6409(a).
   TELECOMMUNICATIONS TOWER or TOWER. A freestanding mast, pole, guyed tower, lattice tower, free standing tower or other structure designed and primarily used to support wireless telecommunications facility antennas. For the purposes of "Eligible Facilities Requests", the term TOWER means the same as defined by the FCC in 47 C.F.R. § 1.6100(b)(9), as may be amended, which currently defines that as any structure built for the sole or primary purpose of supporting any FCC-licensed or authorized antennas and their associated facilities, including structures that are constructed for wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul, and the associated site.
   TRANSMISSION EQUIPMENT. The same as defined by the FCC in 47 C.F.R. § 1.6100(b)(8), as may be amended, which currently defines that term as equipment that facilitates transmission for any FCC-licensed or authorized wireless communication service, including, but not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, and regular and backup power supply. The term includes equipment associated with wireless communications services, including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul.
   UTILITY POLE. A pole or tower owned by any utility company that is primarily used to support wires or cables necessary to the provision of electrical or other utility services regulated by the California Public Utilities Commission.
   WIRELESS SERVICES. Any FCC-licensed or authorized wireless communication service transmitted over frequencies in the electromagnetic spectrum.
   WIRELESS TELECOMMUNICATIONS FACILITY. Any facility constructed, installed, or operated for wireless service. WIRELESS TELECOMMUNICATIONS FACILITY includes, but is not limited to, antennas or other types of equipment for the transmission or receipt of such signals, telecommunications towers or similar structures supporting such equipment, related accessory equipment, equipment buildings, parking areas, and other accessory development. WIRELESS TELECOMMUNICATIONS FACILITY does not mean any of the following:
      (1)    A ground-, building- or tower-mounted antenna facility operated by a federally licensed amateur radio operator as part of the Amateur Radio Service that qualifies as an amateur station as defined by the FCC, 47 C.F.R. Part 97, of the Commission's Rules, or its successor regulation, provided that the antenna does not exceed 30 feet above grade and is subject to the allowable setbacks pursuant to Title 17.
      (2)   A single ground- or building-mounted receive-only radio or television antenna facility, for the sole use of the owner or tenant occupying a parcel on which the antenna is located, that is subject to the FCC Over-The-Air-Reception Devices rule, 47 C.F.R. §1.4000, or any successor regulation, including, but not limited to, TV antennas used to receive television broadcast signals and wireless cable antennas. The antenna is not to exceed 30 feet above grade and must be subject to the allowable setbacks pursuant to Title 17.
      (3)   A single ground-, pole- or building- mounted receive-only radio or television satellite dish antenna, not to exceed 48 inches in diameter, for the sole use of the owner or tenant occupying a parcel on which the antenna is located; satellite dish antenna height not to exceed the height of the roof ridge of the host structure; (All such applications shall be subject to regulations pursuant to Title 17.)
      (4)   Portable radios and devices including, but not limited to, hand-held, vehicular, or other portable receivers, transmitters or transceivers, cellular phones, CB radios, emergency services radio, and other similar portable devices as determined by the Zoning Administrator.
      (5)   Wireless telecommunications facilities owned and operated by any government agency.
      (6)   Wireless telecommunications facilities owned and operated by any emergency medical care provider.
      (7)   Mobile services providing public information coverage of news events of a temporary nature.
      (8)   Any wireless telecommunications facilities exempted from the Fairfax Municipal Code by federal law or state law.
   ZONING ADMINISTRATOR. The town's Planning and Building Services Director or his or her designee.
(Ord. 833, passed 8-7-2019)
§ 19.04.030  APPLICABILITY.
   (A)   This chapter applies to all wireless telecommunications facilities as follows:
      (1)   All facilities for which applications were pending prior to the effective date of this chapter shall be subject to and comply with all provisions of this chapter;
      (2)   All facilities, notwithstanding the date approved, shall be subject immediately to the provisions of this chapter governing the operation and maintenance, cessation of use and abandonment, removal and restoration of wireless telecommunications facilities and wireless telecommunications collocation facilities and the prohibition of dangerous conditions or obstructions by such facilities; provided, however, that in the event a condition of approval conflicts with a provision of this chapter, the condition of approval shall control unless and until the permit is amended or revoked.
   (B)   Notwithstanding any provision of the Fairfax Municipal Code to the contrary, provisions governing the installation of a public utility structure or facility shall not apply to wireless telecommunications facilities. Title 19 shall govern all applications for wireless telecommunications facilities.
(Ord. 833, passed 8-7-2019)
§ 19.04.040  WIRELESS TELECOMMUNICATIONS FACILITY PERMIT REQUIRED.
   (A)   Permit required.
      (1)   No wireless telecommunications facility shall be located or modified within the town on any property, including the public right-of-way, without compliance with this chapter.
      (2)   Excluding eligible facilities request applications, applications for wireless facilities shall require a use permit subject to the requirements of this chapter, to be acted upon by the Planning Commission pursuant to Chapter 17.032, and other permits as set forth in the table below, in addition to any other permit required pursuant to the Fairfax Municipal Code. Eligible facilities request applications shall be processed according to the requirements of § 19.04.140.
      (3)   Notwithstanding any other provision of this chapter, a conditional use permit shall be required for a facility when an exception is requested. Subject to any applicable limitations in federal or state law, nothing in this chapter is intended to limit the approval authority's ability to conditionally approve or deny without prejudice any application for a use permit as may be necessary or appropriate to protect and promote the public health, safety and welfare, and to advance the goals or policies in the Fairfax Municipal Code or the General Plan.
 
Description of Wireless Facility
Private Property
Public Right-of- Way3
RS, RD, RM, PDD, UR Residential Zoning Districts and CR Commercial Zoning District
OA and PD Zoning District
All Other Zoning Districts
Non-Residential Zoning Districts except for OA, PD, and CR
Roof-mounted facility, building-mounted facility, or facility mounted on an existing pole
Not Permitted
Not Permitted
Conditional Use Permit/Design Review
Conditional Use Permit/Design Review
Facility mounted on a replacement pole or new telecommunications tower
Not Permitted
Not Permitted
Conditional Use Permit/Design Review
Conditional Use Permit/Design Review
New wireless telecommunications collocation facility
Not Permitted
Not Permitted
Conditional Use Permit/Design Review
Conditional Use Permit/Design Review
Eligible facilities request1 or application pursuant to Cal. Government Code § 65850.62
Permitted
Not Permitted
Permitted
Permitted
1   See requirements of section 19.04.140.
2   See requirements of section 19.04.150.
3   For any public right-of-way on the boundary between zoning districts, the zone applicable to the location of a wireless telecommunication facility shall be determined based upon the closest district adjacent to the facility's location. The centerline of the public right-of-way will be used as the boundary between districts.
   (B)   Non-exclusive grant; no warranty. No approval granted under this chapter shall confer any exclusive right, privilege, license, or franchise to occupy or use the public right-of-way of the town for delivery of telecommunications services or any other purposes. Further, no approval shall be construed as any warranty of title.
(Ord. 833, passed 8-7-2019)
§ 19.04.050  APPLICATION FOR PERMIT.
   (A)   Application content. All applications for a permit required by this chapter must be made in writing on such form as the Zoning Administrator prescribes. The Zoning Administrator may waive the requirements for submittal of any information described herein only when determined that it is inapplicable based on project-specific factors, and documentation is provided to that effect. For permit applications other than eligible facilities requests (which are addressed in § 19.04.140), the form shall include the following information, in addition to all other information determined necessary by the Zoning Administrator or the town as part of an application for a conditional use permit, variance, and design review:
      (1)   Full name and contact information for the facility owner, facility operator, agent (if any), and property owner, and related letter(s) of authorization.
      (2)   The type of facility, including a full written description of the proposed facility, its purpose, technical specifications, and an assessment of any fire hazard a proposed installation presents to surrounding vegetation and structures;
      (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 its height from the ground level. Applicants must demonstrate that facilities have been designed to attain the minimum height required from a technological standpoint for the proposed site. The site and engineering plans shall show the proposed facility from each cardinal direction. The site and engineering plan shall also include technical information, including, but not limited to visual analysis, alternative sites analysis, landscape plans, lighting plans, and architectural and engineering plans. Technical information, including, but not limited to radio frequency reports, visual analysis, alternative sites analysis, landscape plans, lighting plans, and architectural and engineering plans shall be prepared by an appropriate qualified professional acceptable to the Zoning Administrator.
      (4)   The visual analysis shall include, but not necessarily be limited to, a photo montage or photo simulation and story poles erected at the proposed site (and surrounded by temporary construction fencing) or other similar technique. The visual analysis shall address visually distinctive areas and scenic corridors as depicted and described in the Fairfax General Plan, views from public vantage points and private residences if determined appropriate by the town. The visual analysis shall also depict cumulative conditions by including information pertaining to existing, approved and proposed telecommunications facilities that will or may eventually be constructed at the site by all carriers based upon permit applications which have been filed with or approved by the town. The visual analysis may be expanded to include alternative locations within the proposed service area.
      (5)   Photographs of facility equipment and an accurate visual impact analysis with photo simulations.
      (6)   Proof of all applicable licenses or other approvals required by the FCC.
      (7)   A technically sufficient written report certified by a qualified radio frequency emissions engineer, certifying that the facility, operating by itself and in combination with other existing or approved facilities which can be measured at the proposed facility site, is in compliance with such FCC standards. Measurements for radio frequency emissions shall be based on all proposed, approved and existing facilities operating at maximum power densities at all relevant frequencies being used. Posting of a financial security may be required as a condition of approval to pay the cost for preparation of radio frequency reports evaluating the conformance of approved and operative facilities with applicable health standards adopted by the FCC. The carrier may post a single financial security in an amount not to exceed $25,000 and indexed to the annual construction index hereafter, to satisfy radio frequency performance reports for build-out of the carrier's network facilities plan.
      (8)   If the application is for a facility that will be located within the public right-of-way, the applicant shall certify that it is a telephone corporation or state the basis for its claimed right to enter the right-of-way, and provide a copy of its certificate of public convenience and necessity (CPCN), if a CPCN has been issued by the California Public Utilities Commission.
      (9)   A written description identifying the geographic service area for the subject installation, accompanied by a plan and maps showing anticipated future installations and modifications for the following two years.
      (10)   A written report that analyzes acoustic levels for the proposed wireless  telecommunications facility and all associated equipment, including, without limitation, all environmental control units, sump pumps, temporary backup power generators, and permanent backup power generators in order to demonstrate compliance with Chapter 8.20 (Noise Control). The acoustic analysis must be prepared and certified by a qualified engineer and include an analysis of the manufacturer specifications for all noise-emitting equipment and a depiction of the proposed equipment relative to all adjacent property lines. In lieu of a written report, the applicant may submit evidence from the equipment manufacturer that the ambient noise emitted from all the proposed equipment will not, both individually and cumulatively, exceed the applicable limits.
      (11)   If the applicant claims it requires an exception to the requirements of this chapter, all information and studies necessary for the town to evaluate that claim.
      (12)   An application and processing fee and a deposit for a consultant review as set forth in division (B) of this section.
      (13)   A copy of any land use easement or restriction (access, open space, public utility and the like) which encumbers the proposed facility site, as well as a copy of the proposed site's title report.
      (14)   A detailed lighting plan including the location and type of all exterior lighting fixtures.
      (15)   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.
      (16)   Any other studies or information determined necessary by the Zoning Administrator.
   (B)   Independent expert. The Zoning Administrator is authorized to retain on behalf of the town an independent, qualified consultant to review any application for a permit for a wireless telecommunications facility. The cost of this review shall be paid by the applicant through a deposit pursuant to an adopted fee schedule resolution. Such fee resolution may include the contract price of a third party consultant and the town's overhead costs for staff time expended on administration of the consultant contract. The independent consultant shall have maximum latitude as to how and when monitoring is done. The consultant may review the technical aspects of the application, including, but not limited to, the following matters:
      (1)   The accuracy, adequacy, and completeness of submissions;
      (2)   Compliance with applicable radio frequency emission standards and applicable electrical codes and fire codes and best practices for fire and electrical safety;
      (3)   Whether any requested exception is justified;
      (4)   An engineering and seismic assessment of the proposed installation to ensure that the proposed location is structurally adequate to support the proposed installation, and that the installation will meet the seismic standards set forth for "Risk Category IV" for "essential facilities" as set forth in the California Building Code (CBC), and that it is adequately engineered to withstand the maximum wind loads that could be reasonably anticipated for the location. For installations on utility poles, the assessment would be based on conformance to CPUC standards;
      (5)   An assessment of any fire hazard a proposed installation presents to surrounding vegetation and structures;
      (6)   An assessment of any impact on trees or flora;
      (7)   A technical evaluation of alternative sites, facility designs or configurations, and coverage analysis; and
      (8)   The validity of conclusions reached or claims made by applicant.
   (C)   Procedures for duly filed applications.
      (1)   Voluntary pre-submittal conference. Before application submittal, applicants are encouraged (but not required) to schedule and attend a pre-application meeting with the Zoning Administrator. A pre-submittal conference is intended to streamline the review process through informal discussion that includes, without limitation, the appropriate project classification, including whether the project qualifies for § 6409(a); potential concealment issues (if applicable); coordination with other town departments responsible for application review; and application completeness issues. To mitigate unnecessary delays due to application incompleteness, applicants are encouraged (but not required) to bring any draft applications or other materials so that town staff may provide informal feedback about whether such applications or other materials may be incomplete or unacceptable.
      (2)   Submittal appointment. All applications must be filed with the town at a pre-scheduled appointment with the Zoning Administrator or his or her designee. Applicants may generally submit one application per appointment, but may schedule successive appointments for multiple applications whenever feasible. Any application received without an appointment, whether delivered in-person or  through any other means, will not be considered duly filed, unless the applicant received a written exemption from the Zoning Administrator at a pre-submittal conference.
      (3)   Appointment scheduling procedures. For any event in the submittal process that requires an appointment, applicants must submit a written request to the Zoning Administrator.
   (D)   Applications deemed denied. To promote efficient review and timely decisions, the town may deem an application denied without prejudice to the applicant to re-file as a new application when the applicant fails to tender a substantive response to the town within 90 calendar days after the town deems the application incomplete in a written notice to the applicant.
(Ord. 833, passed 8-7-2019)
§ 19.04.060  LOCATION AND CONFIGURATION PREFERENCES.
   (A)   Purpose. The purpose of this section is to provide guidelines to applicants and the reviewing authority regarding the preferred locations and configurations for wireless telecommunication facilities in the town, provided that nothing in this section shall be construed to permit a wireless telecommunication facility in any location or configuration that is otherwise prohibited by this chapter.
   (B)   Review of location and configuration. The reviewing authority shall consider the extent to which a proposed wireless telecommunication facility complies with these preferences and whether there are feasible alternative locations or configurations to the proposed facility that are more preferred under this section.
   (C)   Order of preference – configurations. The order of preference for the configuration for wireless telecommunication facilities from most preferred to least preferred is:
      (1)   Collocation with existing facilities outside the public rights-of-way;
      (2)   Roof-mounted;
      (3)   Building-mounted;
      (4)   Mounted on an existing pole or utility pole;
      (5)   Mounted on a new pole or utility pole that will replace an existing pole or utility pole; and
      (6)   Mounted on a new telecommunication tower or pole.
   (D)   Order of preference – location. The order of preference for the location of wireless telecommunications facilities from most preferred to least preferred is:
      (1)   In the CH zoning district;
      (2)   In the CS zoning district;
      (3)   In the CC zoning district;
      (4)   In the CL zoning district;
      (5)   In the PD zoning district; and
      (6)   In the public right-of-way with the closest adjacent district being a commercial district.
   (E)   Applications for new wireless communications facilities shall only be for placement a minimum of 50 feet from all residences and a minimum 300 feet from child day care centers, schools, playgrounds, parks, ballfields, and medical facilities unless the applications include information sufficient to demonstrate:
      (1)   The location and type of preferred sites which exist within the proposed or technically feasible coverage area is mapped;
      (2)   The preferred location site was not available as shown by the good faith efforts and  measures taken by the carrier to secure the preferred location sites;
      (3)   Specific reasons why such efforts and measures were unsuccessful;
      (4)   Specific reasons why the location of the proposed facility site is essential to meet the service demands of the carrier; and
      (5)   Through reports required pursuant to § 19.04.050 demonstrating compliance with current federal health standards.
   (F)   Wireless communications facilities shall be attached or sited adjacent to existing structures unless the carrier demonstrates to the satisfaction of the town that no other technically feasible site exists or that construction of a freestanding facility on or at a distant location from an existing structure will mitigate adverse effects related to land use compatibility, visual resources, public safety and other environmental factors addressed by CEQA. Appropriate types of existing structures may include, but not be limited to: buildings, water tanks and some telephone/utility poles.
   (G)   Monopoles for wireless communications facilities should not be located in residential or open space areas unless technical evidence demonstrates to the satisfaction of the town that no other alternative facility site or type of antenna support structure is feasible and/or if the use of a monopole for the proposed facility by itself or in combination with other existing, approved and proposed facilities will avoid or mitigate adverse effects related to land use compatibility, visual resources and public safety.
   (H)   Accessory equipment. In order of preference from most preferred to least preferred, accessory equipment for wireless telecommunication facilities and wireless telecommunications collocation facilities (excluding antennas and electric meters) shall be  located underground where possible, within a building or structure, on a screened roof top area or structure, or in a rear yard if not readily visible from surrounding properties and the roadway, unless the reviewing authority finds that another location is preferable under the circumstances of the application. The applicant shall bear the burden of demonstrating that accessory equipment cannot be placed in the most preferred location.
   (I)   Collocation and shared-location of wireless telecommunications facilities should be required when it is feasible and mitigates adverse effects related to land use compatibility, visual resources, public safety and other environmental factors addressed by CEQA. Collocation and shared-location sites should not be required when it creates or significantly increases such adverse effects and/or technical evidence demonstrates to the satisfaction of the town that it is not feasible due to service impairment or operational failures. To ensure adequate and complete consideration of collocation and shared-location siting of proposed wireless communications facilities, the carrier may be required to submit to the town a graphic and written analysis which identifies all technically feasible sites within the coverage area that would accommodate the proposed service. The analysis shall include:
      (1)   Enough information to provide adequate consideration of technically feasible alternative sites and/or facility designs that would avoid or minimize adverse effects related to land use compatibility, visual resources, public safety and other environmental factors addressed by CEQA;
      (2)   In writing, the specific factors for selection of the proposed facility site over alternative sites;
      (3)   Facilities which are not proposed to be sited on a collocation or shared-location site shall provide information substantiating the unfeasibility of the sites; and
      (4)   The town may require independent peer review of the analysis prior to making a decision on the permit applications. The analysis should, to the extent practical, be incorporated with the coverage area map.
   (J)   The town should, to the extent practicable and legal, discourage leases which convey exclusive (i.e., single user) rights for new wireless communications facilities to the extent that the leases may preclude development of a suitable collocation facilities site.
   (K)   The design of collocation sites should promote shared use among different carriers. To the extent feasible, antenna support and equipment structures should be designed to consolidate future planned facilities to eliminate or minimize the visual clutter resulting from multiple telecommunications structures. Where appropriate, as demonstrated by the carrier and determined by the town, multiple antenna support structures may be approved (shared-location) rather than a single larger/higher structure. Facilities should make available unutilized space for collocation of other antennas and equipment, including space for competing service carriers.
(Ord. 833, passed 8-7-2019)
§ 19.04.070  DESIGN AND DEVELOPMENT STANDARDS FOR ALL FACILITIES.
   (A)   Basic requirements. The design and development standards set forth in this section apply to all wireless telecommunications facilities no matter where they are located. Wireless telecommunications facilities shall be designed and maintained so as to minimize visual, noise, and other impacts on the surrounding community and shall be planned, designed, located, and erected in accordance with the design and development standards in this section.
   (B)   Build-out period. Approvals will automatically expire six months 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, permits required pursuant to Title 15, and any other permits or approvals required by any federal, state, or local public agencies with jurisdiction over the subject property, the wireless facility, or its use and constructs the approved facility. 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 (B). No further extensions may be granted but the permittee may resubmit a complete application, including all application fees for the same or substantially similar project.
   (C)   General guidelines.
      (1)    The applicant shall employ screening and camouflage design techniques in the design and placement of wireless telecommunications facilities in order to ensure that the facility is as visually inconspicuous as possible, to prevent the facility from dominating and disrupting the surrounding area, and to hide the facility from predominant views from surrounding properties, all in a manner that achieves compatibility with the community.
      (2)   For open space or hillside locations that would be generally viewed from a distance,  innovative design solutions may be appropriate where the screening potential of a site is low (i.e., disguise facility as a landscape element, public art and the like).
      (3)   Facilities should not be located on historically or architecturally significant structures unless the Secretary of Interior's guidelines determine that facilities can be visually and architecturally integrated with the structure; historical landscapes shall be avoided.
      (4)   Facilities should be sited to avoid adverse impacts to existing views from surrounding residences.
   (D)   Traffic safety; roads. All facilities shall be designed and located in such a manner as to avoid adverse impacts on traffic safety. Whenever feasible, existing roads and parking areas should be used to access, build and service new telecommunications facilities. Any new access roads or parking areas constructed shall be shared with subsequent telecommunications facilities and/or other permitted uses to the extent feasible. New access roads constructed in open space areas shall have the minimum width and surfacing necessary to meet fire safety and access requirements, and shall be graded and drained consistent with Town Code Chapter 8.32, Urban Runoff Pollution Prevention. The size of new parking areas shall be limited to the minimum necessary to accommodate vehicles associated with periodic maintenance of the facility.
   (E)   Antennas. The applicant shall use the least visible antennas possible to accomplish the coverage objectives. Antenna elements shall be flush mounted, to the extent reasonably feasible. All antenna mounts shall be designed so as not to preclude possible future collocation by the same or other operators or carriers. Antennas shall be situated as to reduce visual impact without materially compromising their function. Whip antennas need not be screened.
   (F)   Landscaping; vegetation.
      (1)   Where appropriate, facilities shall be installed so as to maintain, protect, and enhance existing landscaping on the site, including trees, foliage, and shrubs, whether or not utilized for screening. Additional landscaping shall be planted, irrigated, and maintained where such vegetation is deemed necessary by the town to provide screening or to block the line of sight between facilities and adjacent uses.
      (2)   Applications for wireless facilities shall be accompanied by a landscape plan that shows existing vegetation, indicates any vegetation proposed for removal or trimming, and identifies proposed planting by type, size and location. The emphasis of the landscape plan should be to visually screen the proposed facility and stabilize soils on sloping sites. Introduced vegetation shall be native, drought tolerant species compatible with the predominant natural setting of the project area.
      (3)   Existing trees and other screening vegetation in the vicinity of the proposed facility and associated accessways shall be protected from damage both during and after construction. Submission of a tree protection plan may be required to ensure compliance with this requirement.
      (4)   All vegetation disturbed during project construction shall be replanted with compatible vegetation and soils disturbed by development shall be reseeded to control erosion.
      (5)   No vegetation shall be removed subsequent to project completion, except to comply with local and state fire safety regulations, to prevent the spread of disease as required by the state's Food and Agriculture Department, or to prevent safety hazards to people and property.
      (6)   The carrier shall enter into a landscape performance and maintenance agreement with the town to ensure the installation and establishment of required landscaping. This agreement shall be secured by financial securities in an amount equal to 150 percent of estimates to cover the cost of materials and labor for required improvements. The duration of the landscape maintenance agreement shall be for a minimum period of no less than one year and may be extended for an additional period of up to two additional years upon renewal of the permit applications.
      (7)   Antennas and associated structures and equipment shall be painted to blend with the structures, vegetation, sky or landscape against which they will be primarily viewed.
      (8)   Wireless telecommunications facilities are not permitted on ridgelines.
   (G)   Signage. Wireless telecommunications facilities and wireless telecommunications collocation facilities shall not bear any signs or advertising devices other than certification, warning, or other signage required by law or permitted by the town.
   (H)   Lighting. No wireless telecommunications facility may be illuminated, unless either specifically required by the Federal Aviation Administration or other government agency or in association with the illumination of an athletic field on town or school property. Lightning arresters and beacon lights are not permitted, unless required by the Federal Aviation Administration, FCC or other applicable regulations for health and safety. Legally-required lightning arresters and beacons shall be included when calculating the height of facilities. If lighting is permitted, the following requirements apply to such lighting:
      (1)   Mechanically-operated, low wattage, hooded and downward directed exterior lighting shall be permitted for safety purposes only and shall be kept off, except when maintenance or safety personnel are present at night.
      (2)   Tower lighting required under FAA regulations should, to the greatest extent feasible, be shielded or directed to minimize light and glare impacts visible from publicly accessible areas.
      (3)   Nighttime lighting of warning signs required near publicly accessible facilities must consist of low-wattage fixtures, and must be directed downward and hooded to mitigate impacts visible from publicly accessible areas.
   (I)   Noise.
      (1)   Each wireless telecommunications facility and wireless telecommunications collocation facility shall be operated in such a manner so as to minimize any possible disruption caused by noise.
      (2)   Normal testing and maintenance activities shall not take place weekends, holidays or between the hours of 5:00 p.m. and 7:00 a.m., excluding emergency repairs. Normal testing and maintenance activities, which do not involve the use or operation of telecommunications and maintenance equipment that is audible from residences and other nearby sensitive receptors, may occur at all other times.
      (3)   Backup generators shall only be operated during periods of power outages or emergency occurrences, and shall not be tested on weekends, holidays, or between the hours of 5:00 p.m. and 7:00 a.m.
      (4)   At no time shall equipment noise from any facility exceed an exterior noise level of 50 dBA at the facility's property line if the facility is located in a business or commercial zone that permits those uses; provided, however, that for any such facility located within 500 feet of any property zoned residential or improved with a residential use, such equipment noise shall not exceed an exterior noise level of 40 dBA at the property line of any such residential property. For any facility located within a residential zone, such equipment noise shall at no time be audible at the property line of any residentially-improved or residential zoned property.
      (5)   Any equipment, including, but not limited to, air conditioning units, that may emit noise that would be audible from either beyond three feet from the facility in the case of a facility located in the right-of-way, or the facility's property line in the case of other facilities, shall be enclosed or equipped with noise attenuation devices to the extent necessary to ensure compliance with applicable noise limitations under the Fairfax Municipal Code.
   (J)   Security. Each wireless telecommunications facility shall be designed to be resistant to, and minimize opportunities for, unauthorized access, climbing, vandalism, graffiti, and other conditions that would result in hazardous situations, visual blight, or attractive nuisances. The reviewing authority may require the provision of warning signs, fencing, anti-climbing devices, or other techniques to prevent unauthorized access.
   (K)   Modification. At the time of modification of a wireless telecommunications facility, existing equipment shall, to the extent feasible, be replaced with equipment that reduces visual, noise, and other impacts, including but not limited to undergrounding the equipment and replacing larger, more visually-intrusive facilities with smaller, less visually-intrusive facilities.
(Ord. 833, passed 8-7-2019)
§ 19.04.080  ADDITIONAL DESIGN AND DEVELOPMENT STANDARDS FOR FACILITIES OUTSIDE THE PUBLIC RIGHT-OF-WAY.
   (A)   Basic requirements. Facilities located outside the public right-of-way are subject to the design and development standards set forth in this section in addition to all design and development standards that apply to all facilities.
   (B)   No parking interference. In no event shall the installation of facilities replace or interfere with parking spaces in such a way as to reduce the total number of parking spaces below the number that is required.
   (C)   Roof-mounted facilities. Roof-mounted facilities shall be designed and constructed to be fully concealed or screened in a manner compatible with the existing architecture of the building the facility is mounted to in color, texture, and type of material. Screening shall not increase the bulk of the structure nor alter the character of the structure. Roof-mounted antennas and associated equipment shall be located as far back from the edge of the roof as possible to minimize visibility from street level locations. Where appropriate, construction of a roof-top parapet wall to hide the facility may be required. To avoid or mitigate the appearance of visual clutter on rooftops, proposed facilities should, to the extent feasible, be located adjacent to existing rooftop antennas or equipment, incorporated into rooftop antenna or equipment enclosures, or otherwise screened from view. In addition, existing rooftop antennas and equipment should be consolidated where practical and shall be removed if abandoned.
   (D)   Wall-mounted antennas shall be integrated architecturally with the style and character of the structure or otherwise made as unobtrusive as possible. If possible, antennas should be located entirely within an existing or newly-created architectural feature so as to be completely screened from view. To the extent feasible, wall-mounted antennas should not be located on the front, or most prominent facade of a structure, and should be located above the pedestrian line-of-sight.
   (E)   Facilities mounted to a telecommunications tower.
      (1)   Facilities mounted to a telecommunications tower shall be located in close proximity to existing above-ground utilities, such as electrical towers or utility poles (which are not scheduled for removal or under grounding for at least 18 months after the date of application), light poles, trees of comparable heights, and in areas where they will not detract from the appearance of the town.
      (2)   Facilities mounted to a telecommunications tower, including, but not limited to, the attached antennas, shall be designed to be the minimum functional height and width required to adequately support the proposed facility and meet FCC requirements. The applicant shall provide documentation satisfactory to the Zoning  Administrator establishing compliance with this division (E)(2). In any event, facilities mounted to a telecommunications tower shall not exceed the applicable height limit for structures in the applicable zoning district.
      (3)   Aside from the antenna itself, no additional equipment may be visible. All cables, including, but not limited to, electrical and utility cables, shall be laid within the interior of the telecommunications tower and camouflaged or hidden to the fullest extent feasible without jeopardizing the physical integrity of the tower.
      (4)   Pole installations shall be situated so as to utilize existing natural or man-made features including topography, vegetation, buildings, or other structures to provide the greatest amount of visual screening.
      (5)   All antenna components and accessory wireless equipment shall be treated with exterior coatings of a color and texture to match the predominant visual background or existing architectural elements so as to visually blend in with the surrounding development. Subdued colors and non-reflective materials that blend with surrounding materials and colors shall be used.
      (6)   Poles shall be no greater in diameter or other cross-sectional dimensions than is necessary for the proper functioning of the facility.
      (7)   If a faux tree is proposed for the pole installation, it shall be of a type of tree compatible with those existing in the immediate areas of the installation. If no trees exist within the immediate areas, the applicant shall create a landscape setting that integrates the faux tree with added species of a similar height and type. Additional camouflage of the faux tree may be required depending on the type and design of faux tree proposed.
   (F)   Accessory equipment. All accessory equipment associated with the operation of any wireless telecommunications facility shall be fully screened or camouflaged and located so as to minimize their visibility to the greatest extent possible, utilizing the following methods for the type of installation:
      (1)   Accessory equipment for roof-mounted facilities shall be installed inside the building to which it is mounted or underground, if feasible. If not feasible, such accessory equipment may be located on the roof of the building that the facility is mounted on, provided that both the equipment and screening materials are painted the color of the building, roof, or surroundings. All screening materials for roof-mounted facilities shall be of a quality and design that is architecturally integrated with the design of the building or structure.
      (2)   Accessory equipment for facilities mounted to a telecommunications tower shall be visually screened by locating the equipment either within a nearby building, in an underground vault (with the exception of required electrical panels), or in another type of enclosed structure, which shall comply with the development and design standards of the zoning district in which the accessory equipment is located. Such enclosed structure shall be architecturally treated and adequately screened from view by landscape plantings, decorative walls, fencing or other appropriate means, selected so that the resulting screening will be visually integrated with the architecture and landscaping of the surroundings.
      (3)    Whenever possible, base stations, equipment cabinets, back-up generators and other equipment associated with building-mounted antennas should be installed within the existing building envelope or underground. If this is not feasible, the equipment shall be painted, screened, fenced, landscaped or otherwise treated architecturally to minimize its appearance from off-site locations and to visually blend with the surrounding natural and built environments. Equipment buildings should be designed in an architectural style and constructed of exterior building materials that are consistent with surrounding development and/or land use setting.
(Ord. 833, passed 8-7-2019)
§ 19.04.090  ADDITIONAL DESIGN AND DEVELOPMENT STANDARDS FOR FACILITIES IN THE PUBLIC RIGHT-OF-WAY.
   (A)   Basic requirements. Facilities located in the public right-of-way are subject to the design and development standards set forth in this section in addition to all design and development standards that apply to all facilities.
   (B)   Right-of-way authority. An encroachment permit must be obtained for any work in the public right-of-way. Only applicants authorized to enter the public right-of-way pursuant to state or federal law or a franchise or other agreement with the town shall be eligible for a permit to install or modify a wireless telecommunications facility in the public right-of-way.
   (C)   Antennas.
      (1)   Utility poles. The maximum height of any antenna mounted to an existing utility pole shall not exceed two feet above the height of the existing utility pole, nor shall any portion of the antenna or equipment mounted on a pole be less than 18 feet above any drivable road surface. Notwithstanding the foregoing, all installations on utility poles shall fully comply with the California Public Utilities Commission general orders, including, but not limited to, General Order 95, as revised.
      (2)   Street light poles. The maximum height of any antenna mounted to a street light pole shall not exceed seven feet above the existing height of the street light pole in a location with its closest adjacent district being a commercial zoning district, and shall not exceed three feet above the existing height of the street light pole in any other zoning district. Any portion of the antenna or equipment mounted on a street light pole shall be no less than 18 feet above any drivable road surface.
   (D)   Poles.
      (1)   Only pole-mounted antennas shall be permitted in the public right-of-way. All other types of telecommunications towers are prohibited, and no new poles are permitted that are not replacing an existing pole unless an exception is granted pursuant to § 19.04.130.
      (2)   Pole height and width limitations.
         (a)   All replacement poles shall be designed to be the minimum functional height and width required to support the proposed antenna installation and meet FCC and CPUC requirements. Replacement poles and antennas and similar structures shall be no greater in diameter or other cross-sectional dimensions than is necessary for the proper functioning of the facility. Replacement poles must match existing poles, as determined by the Zoning Administrator.
         (b)   Notwithstanding division (D)(2)(a) above, no facility shall be located on a pole that is less than 20 feet in height, and no facility shall exceed 35 feet in height as measured from the ground, including, but not limited to, the pole or replacement pole and any antenna that protrudes above the pole or replacement pole.
      (3)   Pole-mounted equipment shall not exceed six cubic feet in dimension per pole.
      (4)   If an applicant proposes to replace a pole in order to accommodate the facility, the pole shall match the appearance of the original pole to the extent feasible, unless another design better accomplishes the objectives of this chapter. Such  replacement pole shall not exceed the height of the pole it is replacing by more than seven feet, and no facility shall exceed 35 feet in height as measured from where the base of the pole meets the ground.
      (5)   Mounting any and all hardware or antennas on decorative light poles is prohibited except as a replacement pole that matches the existing decorative light poles in the vicinity.
      (6)   If an exception is granted for placement of new poles in the public right-of-way, new poles shall be designed to resemble existing poles in the public right-of-way, including size, height, color, materials and style, with the exception of any existing pole designs that are scheduled to be removed and not replaced, unless another design better accomplishes the objectives of this section. Such new poles that are not replacement poles shall be located no closer than 90 feet to an existing pole.
      (7)   All new wires needed to service the wireless telecommunications facility must be installed within the width of the existing utility pole so as to not exceed the diameter and height of the existing utility pole. For streetlights, any replacement pole must allow for an integrated design with wires inside the pole.
   (E)   Space occupied. Facilities shall be designed to occupy the least amount of space in the public right-of-way that is technically feasible.
   (F)   Location.
      (1)   Each component part of a facility shall be located so as not to cause any physical or visual obstruction to pedestrian or vehicular traffic, inconvenience to the public's use of the right-of-way, or safety hazards to pedestrians and motorists.
      (2)   A facility shall not be located within any portion of the public right-of-way that would interfere with access to fire hydrants, fire stations, fire escapes, water valves, underground vaults, valve housing structures, or any other vital public health and safety facility.
      (3)   Each pole mounted wireless telecommunications facility must be separated by at least 1,500 feet.
      (4)   All cables, including, but not limited to, electrical and utility cables, between the pole and any accessory equipment shall be placed underground, if feasible.
      (5)   For all applications in undergrounding districts, all undergrounding district regulations apply.
   (G)   Americans with Disabilities Act compliance. All facilities shall be built in compliance with the Americans with Disabilities Act (ADA).
   (H)   Accessory equipment. The wireless facility shall be powered using unmetered service, whenever available. If not available, the electric meter shall be pole-mounted to the extent feasible, and all accessory equipment shall be located underground within three feet of the pole and ground flush mounted to the extent feasible. When above-ground is the only feasible location for a particular type of accessory equipment and when such accessory equipment cannot be pole-mounted, such accessory equipment shall be enclosed within a structure, and shall not exceed a height of five feet and a total footprint of 15 square feet, and shall be screened and camouflaged to the fullest extent possible, including the use of landscaping or alternate screening. Required electrical meter cabinets shall be adequately screened and camouflaged.
   (I)   Documentation. The applicant shall provide documentation satisfactory to the Zoning Administrator establishing compliance with this section.
(Ord. 833, passed 8-7-2019)
§ 19.04.100  CONDITIONS OF APPROVAL FOR ALL FACILITIES.
   (A)   In addition to compliance with the requirements of this chapter, upon approval all facilities shall be subject to each of the following conditions of approval, as well as any modification of these conditions or additional conditions of approval deemed necessary by the reviewing authority throughout the duration of the permit:
      (1)   Before the permittee submits any application for a permit or other permits required by the Fairfax Municipal Code, the permittee must incorporate the wireless telecommunication facility permit granted under this chapter, all conditions associated with the wireless telecommunications facility permit and engineering and electrical plans, schematics and specifications 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)   Where feasible, as new technology becomes available, the permittee shall:
         (a)   Place above-ground wireless telecommunications facilities below ground, including, but not limited to, accessory equipment that has been mounted to a telecommunications tower or mounted on the ground; and
         (b)   Replace larger, more visually-intrusive facilities with smaller, less visually-intrusive facilities, after receiving all necessary permits and approvals required pursuant to the Fairfax Municipal Code.
      (3)   The permittee shall submit and maintain current at all times basic contact and site information, in a form as may be required by the town. The permittee shall notify the town of any changes to the information submitted within seven days of any change, including change of the name or legal status of the owner or operator. This information shall include, but is not limited to, the following:
         (a)   Identity, including the name, address and 24-hour local or toll free contact phone number of the permittee, the owner, the operator, and the agent or person responsible for the maintenance of the facility;
         (b)   The legal status of the owner of the wireless telecommunications facility, including official identification numbers and FCC certification; and
         (c)   The name, address, and telephone number of the property owner if different than the permittee.
      (4)   The permittee shall not place any facilities that will deny access to, or otherwise interfere with, any public utility, easement, or right-of-way located on the site. The permittee shall allow the town reasonable access to, and maintenance of, all utilities and existing public improvements within or adjacent to the site, including, but not limited to, pavement, trees, public utilities, lighting, and public signage.
      (5)   At all times, all required notices and signs shall be posted on the site as required by the FCC and California Public Utilities Commission, and as approved by the town. The location and dimensions of a sign bearing the emergency contact name and telephone number shall be posted pursuant to the approved plans.
      (6)   At all times, the permittee shall ensure that the facility complies with the most current regulatory and operational standards including, but not limited to, radio frequency emissions standards adopted by the FCC, antenna height standards adopted by the Federal Aviation Administration, and all electrical code requirements for the equipment, wiring the equipment and providing power to the equipment. At the sole expense of the permittee and using a consultant approved by the town, testing shall be performed demonstrating compliance with current regulatory and operational standards, and to ensure the equipment is operating within proper specifications and does not pose an undue fire risk or electrical risk. Tests shall occur upon commencement of operations and annually thereafter, and results provided in a written report to the town.
      (7)   If, upon inspection, the Town Building Official determines there is good cause to believe that the facility (including, without limitation, its accessory equipment, antenna and/or base station) may present a fire risk or electrical hazard, the Building Official may order the facility to be shut down and powered off until such time as the facility is repaired and restored to its correct operating specifications, at the sole expense of the permittee.
      (8)   Permittee shall pay for and provide a performance bond, which shall be in effect until the facilities are fully and completely removed and the site reasonably returned to its original condition, to cover permittee's obligations under these conditions of approval and the Fairfax Municipal Code. The bond coverage shall include, but not be limited to, removal of the facility, maintenance obligations and landscaping obligations. The amount of the performance bond shall be set by the Zoning Administrator in an amount rationally related to the obligations covered by the bond and shall be specified in the conditions of approval.
      (9)   Permittee shall defend, indemnify, protect, and hold harmless the town, its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees, and volunteers from and against any and all claims, actions, or proceeding against the town and its elected and appointed Council members, boards, commissions, officers, officials, agents, consultants, employees, and volunteers to attack, set aside, void or annul, an approval of the town, Planning Commission or Town Council concerning the permit, the project, and any and all claims, actions, or proceedings arising from, or related to, the installation, operation, or inspection of any facility. Such indemnification shall include damages, judgments, settlements, penalties, fines, defensive costs or expenses, including, but not limited to, interest, attorneys' fees, and expert witness fees, or liability of any kind related to or arising from such claim, action, or proceeding. The town shall promptly notify the permittee of any claim, action, or proceeding that this indemnification obligation may cover. Nothing contained herein shall prohibit the town from participating in a defense of any claim, action or proceeding. The town shall have the option of coordinating the defense, including, but not limited to, choosing counsel for the defense at permittee's expense. The town shall retain the right to participate in any claim, action or proceeding if the town bears its own attorney's fees and costs, and the town defends the action in good faith.
      (10)   Permittee shall obtain and maintain insurance for the coverages and in the amounts  reasonably specified by the Zoning Administrator.
      (11)   All conditions of approval shall be binding as to the applicant and all successors in interest to permittee.
      (12)   The proposed facility complies with all applicable provisions of this chapter, including the technical review by the town's independent expert set forth in § 19.04.050(B).
      (13)   The proposed facility has been designed and located to achieve compatibility with the community to the maximum extent reasonably feasible.
      (14)   Noise generated by equipment will not be excessive, annoying nor be detrimental to the public health, safety, and welfare and will not exceed the standards set forth in this chapter.
      (15)   A condition setting forth the permit expiration date in accordance with § 19.04.200 shall be included in the conditions of approval.
      (16)   Record retention. The permittee must maintain complete and accurate copies of all permits and other regulatory approvals issued in connection with the wireless facility, including, without limitation, any approval, the approved plans and photo simulations incorporated into the approval, all conditions associated with the approval, and any other ministerial permits or approvals issued in connection with the approval. In the event that the permittee does not maintain such records as required in this condition, any ambiguities or uncertainties that would be resolved through an inspection of the missing records will be construed against the permittee.
      (17)   Compliance obligations. An applicant or permittee will not be relieved of its obligation to comply with every applicable provision in the Fairfax Municipal Code, any permit, any permit condition, or any applicable law or regulation by reason of any failure by the town to timely notice, prompt or enforce compliance by the applicant or permittee.
(Ord. 833, passed 8-7-2019)
§ 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)
§ 19.04.120  FINDINGS.
   (A)   Where a wireless telecommunication facility requires a conditional use permit under this chapter, the reviewing authority shall not approve any application unless, in addition to the findings generally applicable to all conditional use permits, all of the following additional findings are made:
      (1)   The proposed facility complies with all applicable provisions of this chapter.
      (2)   The proposed facility has been designed and located to achieve compatibility with the community to the maximum extent reasonably feasible.
      (3)   The applicant has submitted a statement of its willingness to allow other carriers to collocate on the proposed wireless telecommunications facility wherever technically and economically feasible and where collocation would not harm community compatibility.
      (4)   Noise generated by equipment will not be excessive, annoying nor be detrimental to the public health, safety, and welfare and will not exceed the standards set forth in this chapter.
   (B)   In addition to the findings in division (A) above, approval of a wireless telecommunications facility permit for a facility that will be located in the public right-of-way may be granted only if the following findings are made by the reviewing authority:
      (1)   The applicant has provided substantial written evidence supporting the applicant's claim that it has the right to enter the public right-of-way pursuant to state or federal law, or the applicant has entered into a franchise or other agreement with the town permitting them to use the public right-of-way.
      (2)   The applicant has demonstrated that 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)
§ 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)
§ 19.04.140  ELIGIBLE FACILITIES REQUESTS.
   (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)
§ 19.04.150  WIRELESS TELECOMMUNICATIONS COLLOCATION FACILITIES COVERED UNDER CAL. GOVERNMENT CODE § 65850.6.
   (A)   Purpose. The purpose of this section is to comply with an application for a wireless telecommunications collocation facility under Cal. Government Code § 65850.6, for which a § 6409(a) approval is not being requested. This section provides the requirements, standards, and regulations for a wireless telecommunications collocation facility for which subsequent collocation is a permitted use pursuant to California law. Only those facilities that fully comply with the eligibility requirements set forth in Cal. Government Code § 65850.6, or its successor provision, and which strictly adhere to the requirements and regulations set forth in this section, shall qualify as a wireless telecommunications collocation facility.
   (B)   Definitions. For the purposes of this section, the following terms are defined as follows:
      COLLOCATION FACILITY. The placement or installation of wireless facilities, including antennas, and related equipment, on, or immediately adjacent to, a wireless telecommunications collocation facility.
      WIRELESS TELECOMMUNICATIONS COLLOCATION FACILITY. A wireless telecommunications facility that includes collocation facilities.
      WIRELESS TELECOMMUNICATIONS FACILITY. Equipment and network components such as towers, utility poles, transmitters, base stations, and emergency power systems that are integral to providing wireless telecommunications services.
   (C)   Procedures. Applications for wireless telecommunications collocation facilities shall comply with this section and other applicable provisions of this chapter. An application for a collocation facility under Cal. Government Code § 65850.6 shall be processed in the same manner as an application for § 6409(a) approval is processed, except that where the process requires justification for the § 6409(a) approval, the applicant shall instead provide the justification for a collocation facility under Cal. Government Code § 65850.6.
   (D)   Requirements. All requirements, regulations, and standards set forth in this chapter for a wireless telecommunications facility shall apply to a wireless telecommunications collocation facility; provided, however, the following shall also apply to a wireless telecommunications collocation facility:
      (1)   The applicant for a wireless telecommunications collocation facility permit shall describe or depict:
         (a)   The wireless telecommunications collocation facility as it will be initially built; and
         (b)   All collocations at full build-out, including, but not limited to, all antennas, antenna support structures, and accessory equipment.
      (2)   Any collocation shall use screening methods substantially similar to those used on the existing wireless telecommunications facilities, unless other optional screening methods are specified in the conditions of approval.
      (3)   A wireless telecommunications collocation facility permit shall not be approved, unless an environmental impact report, negative declaration, or mitigated negative declaration was prepared and approved for the wireless telecommunications collocation facility.
   (E)   Permitted use. Notwithstanding any other provision of this chapter, a subsequent collocation facility on a wireless telecommunications collocation facility shall be a permitted use only if all of the following requirements are satisfied:
      (1)   The wireless telecommunications collocation facility:
         (a)   Was approved after January 1, 2007, by discretionary permit;
         (b)   Was approved subject to an environmental impact report, negative  declaration, or mitigated negative declaration; and
         (c)   Otherwise complies with the requirements of Cal. Government Code § 65850.6(b), or its successor provision, for addition of a collocation facility to a wireless telecommunications collocation facility, including, but not limited to, compliance with all performance and maintenance requirements, regulations, and standards in this chapter and the conditions of approval in the wireless telecommunications collocation facility permit.
      (2)   The collocations were specifically considered when the relevant environmental document was prepared for the wireless telecommunications collocation facility.
      (3)   Before collocation, the applicant seeking collocation shall obtain all other applicable non-discretionary permits, as required pursuant to the Fairfax Municipal Code.
   (F)   New or amended permit. Except as otherwise provided above, approval of a new or amended permit shall be required when the facility is modified other than by collocation in accordance with this section, or the proposed collocation:
      (1)   Increases the height of the existing permitted telecommunications tower or otherwise changes the bulk, size, location, or any other physical attributes of the existing permitted wireless telecommunications collocation facility, unless specifically permitted under the conditions of approval applicable to such wireless telecommunications collocation facility; or
      (2)   Adds any microwave dish or other antenna not expressly permitted to be included in a collocation facility by the conditions of approval.
(Ord. 833, passed 8-7-2019)
§ 19.04.160  BUSINESS LICENSE.
   A permit issued pursuant to this chapter shall not be a substitute for any business license otherwise required under the Fairfax Municipal Code.
(Ord. 833, passed 8-7-2019)
§ 19.04.170  EMERGENCY DEPLOYMENT.
   In the event of a declared federal, state, or local emergency, or when otherwise warranted by conditions that the Zoning Administrator deems to constitute an emergency, the Zoning Administrator may approve the installation and operation of a temporary wireless telecommunications facility (e.g., a cell on wheels or "COW"), which is subject to such reasonable conditions that the Zoning Administrator deems necessary.
(Ord. 833, passed 8-7-2019)
§ 19.04.180  OPERATION AND MAINTENANCE STANDARDS.
   (A)   All wireless telecommunications facilities must comply at all times with the following operation and maintenance standards. All necessary repairs and restoration shall be completed by the permittee, owner, or operator within 48 hours:
      (1)   After discovery of the need by the permittee, owner, operator or any designated maintenance agent; or
      (2)   After permittee, owner, operator, or any designated maintenance agent receives notification from a resident or the Zoning Administrator.
   (B)   All facilities, including, but not limited to, telecommunication towers, poles, accessory equipment, lighting, fences, walls, shields, cabinets, artificial foliage or camouflage, and the facility site shall be maintained in good condition, including ensuring the facilities are reasonably free of:
      (1)   General dirt and grease;
      (2)   Chipped, faded, peeling, and cracked paint;
      (3)   Rust and corrosion;
      (4)   Cracks, dents, and discoloration;
      (5)   Missing, discolored, or damaged artificial foliage or other camouflage;
      (6)   Graffiti, bills, stickers, advertisements, litter and debris;
      (7)   Broken and misshapen structural parts; and
      (8)   Any damage from any cause.
   (C)   All trees, foliage, and other landscaping elements approved as part of the facility shall be maintained in good condition at all times, and the permittee, owner, and operator of the facility shall be responsible for replacing any damaged, dead, or decayed landscaping. No amendment to any approved landscaping plan may be made until it is submitted to and approved by the Zoning Administrator.
   (D)   The permittee shall replace its facilities, after obtaining all required permits, if maintenance or repair is not sufficient to return the facility to the condition it was in at the time of installation.
   (E)   Each facility, operating alone and in conjunction with other telecommunications facilities, shall be operated and maintained at all times in compliance with applicable federal regulations, including FCC radio frequency emissions standards. Within one month post-construction and annually thereafter, permittee must provide a radio frequency report as a condition of project approval to verify that actual levels of radio frequency emitted by the approved facilities, operating alone and in combination with other approved facilities, substantially conform to the pre-approved radio frequency report and do not exceed current standards for permissible human exposure to radio frequency as adopted by the FCC. In the event of an increase over accepted levels is detected, the permittee shall be responsible for immediately making the necessary adjustments to comply with FCC standards.
   (F)   Each facility shall be operated and maintained to comply at all times with the noise regulations of this chapter and shall be operated and maintained in a manner that will minimize noise impacts to surrounding residents. Except for emergency repairs, any testing and maintenance activities that will be audible beyond the property line shall only occur between the hours of 7:00 a.m. and 5:00 p.m. on Monday through Friday, excluding holidays, unless alternative hours are approved by the Zoning Administrator. Backup generators, if permitted, shall only be operated during periods of power outages or for testing.
   (G)   If a flagpole is used for camouflaging a wireless telecommunications facility, flags shall be flown and shall be properly maintained at all times.
   (H)   Each owner or operator of a facility shall routinely inspect each site to ensure compliance with the standards set forth in this section and the conditions of approval.
   (I)   Annual certification.
      (1)   Each year on July 1, the permittee shall submit an affidavit which shall list, by location, all facilities it owns within the town by location, and shall certify (1) each such installation remains in use; (2) that such in use facility remains covered by insurance; and (3) each such installation which is no longer in use, and pay applicable recertification fees established by the town. Any facility which is no longer in use shall be removed by permittee within 60 days of delivery of the affidavit, or be subject to a fine of $100 per day until removal.
      (2)   Where such annual re-certification has not timely submitted, or equipment no longer in use has not been removed within the required 60-day period, no further application for that small cell wireless installation will be accepted by the town until such time as the annual re-certification has been submitted and fee and fines paid.
(Ord. 833, passed 8-7-2019)
§ 19.04.190  NO DANGEROUS CONDITIONS OR OBSTRUCTIONS ALLOWED.
   No person shall install, use, or maintain any wireless telecommunications facility which in whole or in part rests upon, in or over any public sidewalk or parkway, when such installation, use, or maintenance endangers or is reasonably likely to endanger the safety of persons or property, or when such site or location is used for public utility purposes, public transportation purposes, or other governmental use, or when such facility unreasonably interferes with or impedes the flow of pedestrian or vehicular traffic including any legally parked or stopped vehicle, the ingress into or egress from any residence or place of business, the use of poles, posts, traffic signs or signals, hydrants, mailboxes, permitted sidewalk dining, permitted street furniture, or other objects permitted at or near said location.
(Ord. 833, passed 8-7-2019)
§ 19.04.200  PERMIT EXPIRATION.
   (A)   A permit for any wireless telecommunications facility shall be valid for a period of ten years, unless the Planning Commission authorizes a different period, or pursuant to another provision of the Fairfax Municipal Code the permit lapses sooner or is revoked. At the end of such period, the permit shall expire.
   (B)   A permittee may apply for renewals of its permit in increments of no more than ten years and no sooner than 12 months prior to expiration of the permit.
   (C)   An application for renewal shall be evaluated based on federal, state, and local law as it exists at the time applicant seeks renewal. The following may also be required for an application to renew a wireless permit:
      (1)   At the Zoning Administrator's discretion, additional studies and information may be required of the applicant.
      (2)   If the Zoning Administrator determines that the facility is nonconforming or that additional conditions of approval are necessary to bring the facility into compliance with the provisions of the Fairfax Municipal Code that are then in effect, the Zoning Administrator shall refer the renewal request to the Planning Commission.
   (D)   The request for a renewal shall be decided by the Planning Commission if the permit expired before the application is made for a renewal or if the Zoning Administrator refers the matter to the Planning Commission. After notice and a public hearing, the Planning Commission may approve, conditionally approve, or deny the renewal. A permit application may not be renewed if the facility is not upgraded to mitigate its impacts, including land use compatibility, visual resources, public safety or other factors addressed by CEQA, to the greatest extent permitted by technology which exists at the time of renewal and is consistent with the provisions of adequate service at affordable rates.
(Ord. 833, passed 8-7-2019)
§ 19.04.210  CESSATION OF USE OR ABANDONMENT.
   (A)   A wireless telecommunications facility is considered abandoned and shall be promptly removed as provided herein if it ceases to provide wireless telecommunications services for 90 or more consecutive days. If there are two or more users of a single facility, then this provision shall not become effective until all users cease using the facility.
   (B)   The operator of a facility shall notify the town in writing of its intent to abandon or cease use of a permitted site or a nonconforming site (including unpermitted sites) within ten days of ceasing or abandoning use. Notwithstanding any other provision herein, the operator of the facility shall provide written notice to the Zoning Administrator of any discontinuation of operations of 30 days or more.
   (C)   Failure to inform the Zoning Administrator of cessation or discontinuation of operations of any existing facility as required by this section shall constitute a violation of any approvals and be grounds for:
      (1)   Prosecution;
      (2)   Revocation or modification of the permit;
      (3)   Calling of any bond or other assurance required by this chapter or conditions of approval of the permit;
      (4)   Removal of the facilities by the town in accordance with the procedures established under the Fairfax Municipal Code for abatement of a public nuisance at the owner's expense; and
      (5)   Any other remedies permitted under the Fairfax Municipal Code or applicable law.
(Ord. 833, passed 8-7-2019)
§ 19.04.220  REMOVAL AND RESTORATION, PERMIT EXPIRATION, REVOCATION OR ABANDONMENT.
   (A)   Permittee's removal obligation. Upon the expiration date of the permit, earlier termination or revocation of the permit or abandonment of the facility, the permittee, owner or operator shall remove its wireless telecommunications facility and restore the site to its natural condition, except for retaining the landscaping improvements and any other improvements at the sole discretion of the Zoning Administrator. Removal shall be in accordance with proper health and safety requirements and all ordinances, rules, and regulations of the town. The facility shall be removed from the property within 30 days of the permit's expiration, at no cost or expense to the town. If the facility is located on private property, the private property owner shall also be jointly and severally responsible for the expense of timely removal and restoration.
   (B)   Failure to remove. Failure of the permittee, owner, or operator to promptly remove its facility and restore the property within 30 days after expiration, earlier termination, or revocation of the permit, or abandonment of the facility, shall be a violation of the Fairfax Municipal Code, and be grounds for:
      (1)   Prosecution;
      (2)   Calling of any bond or other assurance required by this chapter or conditions of approval of permit;
      (3)   Removal of the facilities by the town in accordance with the procedures established under the Fairfax Municipal Code for abatement of a public nuisance at the owner's expense; or
      (4)   Any other remedies permitted under the Fairfax Municipal Code.
   (C)   Summary removal. In the event the Zoning Administrator determines that the condition or placement of a wireless telecommunications facility located in the public right-of-way constitutes a dangerous condition, obstruction of the public right-of-way, or an imminent threat to public safety, or determines other exigent circumstances require immediate corrective action (collectively, "exigent circumstances"), the Zoning Administrator may cause the facility to be removed summarily and immediately without advance notice or a hearing. If the circumstances allow for it and, to the extent feasible, the Zoning Administrator will notify the permittee to remove the facility and allow for the reinstallation of the facility, subject to the permittee demonstrating to the satisfaction of the town's Building Official and Zoning Administrator that the work can be done in safe manner compliant with the original approved plans and § 19.04.100. Written notice of the removal shall be served upon the person who owns the facility within five business days of removal and all property removed shall be preserved for the owner's pick-up, as is reasonably feasible. If the owner cannot be identified following reasonable effort or if the owner fails to pick-up the property within 60 days, the facility shall be treated as abandoned property.
   (D)   Removal of facilities by town. In the event the town removes a facility in accordance with this chapter, any such removal shall be without any liability to the town for any damage to such facility that may result from reasonable efforts of removal. In addition to the procedures for recovering costs of nuisance abatement, the town may collect such costs from the performance bond posted and to the extent such costs exceed the amount of the performance bond, collect those excess costs in accordance with the Fairfax Municipal Code. Unless otherwise provided herein, the town has no obligation to store such facility. Neither the permittee, the owner, nor the operator shall have any claim if the town damages or destroys any such facility not timely removed by the permittee, owner, or operator after notice, or removed by the town due to exigent circumstances.
(Ord. 833, passed 8-7-2019)
§ 19.04.230  AUTHORIZATION FOR DEPARTMENTAL FORMS, RULES, AND OTHER REGULATIONS.
   The Town Council authorizes the Zoning Administrator to develop and publish permit application forms, checklists, informational handouts and other related materials that the Zoning Administrator finds necessary, appropriate or useful for processing requests, applications, permits, or any other matter under this chapter. Without further authorization from the Town Council, the Zoning Administrator may from time-to-time update and alter any such permit application forms, checklists, informational handouts and other related materials as the Zoning Administrator deems necessary, appropriate or useful to respond to regulatory,  technological or other changes related to this chapter. The Town Council authorizes the Zoning Administrator to establish other reasonable rules and regulations, which may include, without limitation, regular hours for appointments with applicants, as the Zoning Administrator deems necessary or appropriate to organize, document, and manage the application intake and permitting process.
(Ord. 833, passed 8-7-2019)
§ 19.04.240  APPEALS.
   (A)   Appeals by applicants. Notwithstanding any provision of the Fairfax Municipal Code to the contrary, including, but not limited to, Chapter 17.036, any applicant may appeal a decision by the Zoning Administrator under this chapter. The appeal must be filed within two days from the Zoning Administrator's decision. The appeal must state in plain terms the grounds for reversal and the facts that support those grounds. The Town Council shall serve as the appellate authority for all appeals of all actions of the Zoning Administrator taken pursuant to this section. The town shall provide notice for an administrative hearing by the Town Council. The Town Council shall limit its review to whether the project should be approved or denied in accordance with the provisions in this chapter.
   (B)   Appeals by the general public. Any interested person or entity may appeal any decision by the approval authority in accordance with the standards and procedures in Chapter 17.036, except as modified in this section. On the next available meeting date after the appeal period lapses, or as soon as reasonably feasible thereafter, the appellate body shall hold a public hearing to consider and act on the application in accordance with the applicable provisions in the General Plan, any applicable specific plan and all applicable provisions in the Fairfax Municipal Code. Appeals from an approval will not be permitted to the extent that the appeal is based on environmental effects from RF emissions that comply with all applicable FCC regulations.
(Ord. 833, passed 8-7-2019)
§ 19.04.250  EFFECT ON OTHER ORDINANCES.
   Compliance with the provisions of this chapter shall not relieve a person from complying with any other applicable provision of the Fairfax Municipal Code, including, but not limited to, obtaining any necessary encroachment or building permits. In the event of a conflict between any provision of this chapter and other provisions of the Fairfax Municipal Code, this chapter shall control.
(Ord. 833, passed 8-7-2019)