The purpose of this chapter is:
A. 
To implement Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 ("Spectrum Act"), as interpreted by the Federal Communications Commission's ("FCC" or "Commission") Acceleration of Broadband Deployment Report and Order, which requires the town to approve any eligible facilities request for a modification of an existing tower or base station that does not result in a substantial change to the physical dimensions of a tower or base station;
B. 
To exempt facilities modifications approved under this chapter as eligible facilities requests from the zoning regulations that are inconsistent with or preempted by Section 6409 of the Spectrum Act;
C. 
To provide for review of eligible facilities modifications approved pursuant to this chapter as nonconforming structures in the event that Section 6409(a) of the Spectrum Act is found to be unconstitutional or otherwise determined to be invalid or unenforceable and such modifications would otherwise have been in conflict with development regulations in place at the time of receipt of a complete application.
(Ord. 2016-110 § 1)
"Base station"
means 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 this chapter or any equipment associated with a tower.
1. 
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.
2. 
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 (DAS) and small cell networks).
3. 
The term includes any structure other than a tower that, at the time the eligible facilities modification application is filed with the town under this chapter, supports or houses equipment described in subsections (1) and (2) of this definition, and 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 that support.
4. 
This term does not include any structure that, at the time the eligible facilities modification application is filed with the town under this chapter, does not support or house equipment described in subsections (1) and (2) of this definition.
"Collocation"
means the mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signals for communications purposes.
"Conceal" or "concealment"
shall mean eligible support structures and transmission facilities designed to look like some feature other than a wireless tower or base station. Concealed facilities are those built to meet the town's standards for camouflage, as described in Chapter 18.60 STC.
"Deemed approved"
means an eligible facilities modification application that has become effective, as provided pursuant to the FCC Eligible Facilities Request Rules, based upon the town's failure to act.
"Eligible facilities modification"
means any proposed facilities modification that has been determined pursuant to the provisions of this chapter to be subject to this chapter and which does not result in a substantial change in the physical dimensions of an eligible support structure.
"Eligible support structure"
means any tower or base station that is existing at the time the eligible facilities modification application is filed with the town.
"Existing"
shall, for the purpose of this chapter and as applied to a tower or base station, mean a constructed tower or base station that has been reviewed and approved under the applicable zoning or siting process of the town, or under another state, county, 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 the purposes of this definition.
"FCC"
means the Federal Communications Commission or its successor.
"FCC Eligible Facilities Request Rules"
means 47 C.F.R. Part 1 (Part 1 – Practice and Procedure), Subpart CC Section 1.40001 as established pursuant to its Report and Order in re Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, WT Docket Nos. 13-238, 13-32; WC Docket No. 11-59; FCC 14-153, or as may be thereafter amended.
"Proposed facilities modification"
means a proposal submitted by an applicant to modify an eligible support structure which the applicant asserts is subject to review under Section 6409 of the Spectrum Act, involving:
1. 
Collocation of new transmission equipment;
2. 
Removal of transmission equipment; or
3. 
Replacement of transmission equipment.
Site.
For the purposes of this chapter, the "site" for a wireless communication facility may consist of one lot or an area on a lot or within a right-of-way which is legally described on a lease.
"Small cell facility"
means a personal wireless services facility that meets both of the following qualifications:
1. 
Each antenna is located inside an antenna enclosure of no more than three cubic feet in volume or, in the case of an antenna that has exposed elements, the antenna and all of its exposed elements could fit within an imaginary enclosure of no more than three cubic feet; and
2. 
Primary equipment enclosures are no larger than 17 cubic feet in volume. The following associated equipment may be located outside of the primary equipment enclosure and, if so located, are not included in the calculation of equipment volume: electric meter, concealment, telecomm demarcation box, ground-based enclosures, battery back-up power systems, grounding equipment, power transfer switch, and cut-off switch.
"Small cell network"
means a collection of interrelated small cell facilities designed to deliver personal wireless services.
"Spectrum Act"
means the "Middle Class Tax Relief and Job Creation Act of 2012" (Public Law 112-96; codified at 47 U.S.C. Section 1455(a)).
"Substantial change criteria"
means the criteria set forth in this chapter at STC § 18.62.040.
"Tower"
means any structure built for the sole or primary purpose of supporting any antennas and their associated facilities, licensed or authorized by the FCC, 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"
means equipment that facilitates transmission for any wireless communication service licensed or authorized by the FCC, 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.
(Ord. 2016-110 § 1)
A. 
Sole and Exclusive Procedure.
1. 
Except as may be otherwise provided in this chapter, and not withstanding any other provisions in the Sahuarita Town Code, the provisions of this chapter shall be the sole and exclusive procedure for review and approval of a proposed facilities modification which the applicant asserts is subject to review under Section 6409 of the Spectrum Act.
2. 
In the event that an application includes a proposal to modify an eligible support structure, and the applicant does not assert in the application that the proposal is subject to review under Section 6409 of the Spectrum Act, such proposal shall not be subject to review under this chapter and may be subject to review under other applicable provisions of the Sahuarita Town Code.
B. 
Nonconforming Structures. This chapter shall not apply to a proposed facility modification to an eligible support structure that is not a legal conforming, or legal nonconforming, structure at the time a complete eligible facilities modification application is filed with the town. To the extent that the nonconforming structures and use provisions of the town code would operate to prohibit or condition approval of a proposed facilities modification application otherwise allowed under this chapter, such provisions are superseded by the provisions of this chapter and shall not apply.
C. 
Replacement of Eligible Support Structure. This chapter shall not apply to a proposed facility modification to an eligible support structure that will involve replacement of the tower or base station.
D. 
First Deployment – Base Station. This chapter shall not apply to a proposed facility modification to a structure, other than a tower, that does not, at the time of submittal of the application, already house or support transmission equipment lawfully installed within or upon, or attached to, the structure.
E. 
Interpretation. Interpretations of this chapter shall be guided by Section 6409 of the Spectrum Act; the FCC Eligible Facilities Request Rules, the FCC's Report and Order in Acceleration of Broadband Deployment Report and Order; and STC § 18.62.010 (Purpose).
F. 
Reservation of Authority. Nothing herein is intended or shall operate to waive or limit the town's right to enforce, or condition approval on, compliance with generally applicable building, structural, electrical, and other health and safety codes.
(Ord. 2016-110 § 1)
A proposed facilities modification will substantially change the physical dimensions of an eligible support structure if it meets any of the following criteria:
A. 
For towers other than towers in the public rights-of-way, it increases the height of the tower by more than 10 percent or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed 20 feet, whichever is greater; for other eligible support structures, it increases the height of the structure by more than 10 percent or more than 10 feet, whichever is greater.
B. 
Changes in height shall be measured from the original support structure in cases where deployments are or will be separated horizontally, such as on buildings' rooftops; in other circumstances, changes in height shall be measured from the dimensions of the tower or base station, inclusive of originally approved appurtenances and any modifications that were approved prior to the passage of the Spectrum Act.
C. 
For towers other than towers in the public right-of-way, it involves adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than 20 feet, or more than the width of the tower structure at the level of appurtenance, whichever is greater; for other eligible support structures, it involves adding an appurtenance to the body of the structure that would protrude from the edge of the structure by more than six feet.
D. 
For any eligible support structure, it involves installation of more than the standard number of new equipment cabinets for the technology involved, but not to exceed four cabinets; or, for towers in the public right-of-way and base stations, it involves installation of any new equipment cabinets on the ground if there are no preexisting ground cabinets associated with the structure, or else involves installation of ground cabinets that are more than 10 percent larger in height or overall volume than any other ground cabinets associated with the structure.
E. 
It entails any excavation or deployment outside the current site.
F. 
It would defeat the concealment elements of the eligible support structure.
G. 
It does not comply with conditions associated with the siting approval of the construction or modification of the eligible support structure or base station equipment; provided, however, that this limitation does not apply to any modification that is noncompliant only in a manner that would not exceed the thresholds identified in this section.
(Ord. 2016-110 § 1)
A. 
Submittal Requirements. No eligible facilities modification application shall be deemed complete unless it is accompanied by the applicable completed application forms and review fee, includes the required submittals, and is attested to by the authorized agent submitting the application on behalf of the applicant, certifying the truth and accuracy of the information provided in the application. The application shall include the following submittals, unless waived by the planning and building director:
1. 
A completed application form;
2. 
Fees;
3. 
An assertion that the proposed facilities modification is subject to review under Section 6409 of the Spectrum Act;
4. 
If the applicant is not the owner or person in control of the eligible support structure and/or site, the application shall also include an attestation that the owner or person in control of the eligible support structure and/or site has consented to the proposed facilities modification. If the eligible support structure is located in a public right-of-way, the applicant must also attest that the applicant has authorization to install, maintain, and operate transmission equipment in, under and above the public right-of-way.
5. 
A statement from a qualified professional or technician that the modification will be in compliance with FCC radio-frequency emission standards.
6. 
If the applicant proposes a modification involving an existing tower or base station that was not approved by the approval authority, the application shall also include a copy of the most recent underlying land use approval for siting or modifying the tower or base station proposed to be modified, or other reliable evidence indicating, in the sole opinion of the town, that at the time of submittal of the application, such tower or base station constituted an eligible support structure.
7. 
If the applicant proposes a modification that will result in an increase in height of the eligible support structure, the application shall also include record drawings, as-built plans, or the equivalent, showing the height of the eligible support structure: a) as originally constructed and granted approval by the town or other applicable local zoning or similar regulatory authority; or b) as of the most recent modification that received town or other local zoning or regulatory approval, prior to the passage of the Spectrum Act; whichever height is greater.
8. 
If the applicant proposes a modification to an eligible support structure, which structure, or proposed modification of the same, is subject to preexisting restrictions or requirements imposed by a reviewing official or decision-making body pursuant to authority granted under the Sahuarita Town Code, or an ordinance or a municipal code of another local government authority, the application shall also include a copy of the document (e.g., CUP) setting forth such preexisting restrictions or requirements together with a certification that the proposed facilities modification conforms to such restrictions or requirements; provided, that such certification shall have no application to the extent the proposed facilities modification relates solely to an increase in height, increase in width, addition of cabinets, or new excavation, that does not result in a substantial change in the physical dimensions of the eligible support structure.
9. 
If the applicant proposes a modification to an eligible support structure, which structure, or proposed modification of the same, is subject to preexisting concealment restrictions or requirements, or was constructed with concealment or camouflage elements, the application shall also include a statement from the applicant setting forth the facts and circumstances demonstrating that the proposed modification would not defeat the existing concealment elements of the eligible support structure. If the proposed modification will alter the exterior dimensions or appearance of the eligible support structure, the applicant shall include a detailed visual simulation depicting how the eligible support structure will appear after the proposed modification is complete, and particularly, how concealment or camouflage will be extended with the modification. The visual simulation shall depict to scale the eligible support structure in relation to the trees, landscaping and other structures adjacent to, or in the immediate vicinity of, the eligible support structure.
10. 
If the applicant proposes a modification that will protrude from the edge of a nontower eligible support structure, the application shall also include record drawings, as-built plans, or the equivalent, showing at a minimum the edge of the eligible support structure at the location of the proposed modification.
11. 
If the applicant proposes a modification to an eligible support structure that will include any excavation or deployment outside the current site of the tower or base station, would result in a protrusion from the edge of a tower that exceeds an existing protrusion of any transmission equipment attached to a tower, or would protrude from the edge of a nontower eligible support structure, the application shall also include a description of the boundaries of the site together with a scaled drawing depicting the boundaries of the site in relation to the tower or base station proposed to be modified and depicting the proposed location, elevation and dimensions of the new or replacement transmission equipment. If excavation is proposed, the town may require a survey by a land surveyor licensed in the state of Arizona when, in the judgment of the planning and building director, a survey is reasonably necessary to verify the boundaries of the site.
12. 
If the applicant proposes a modification to an eligible support structure that includes hardening through structural enhancement, the application shall also include a technical report by a qualified engineer accredited by the state of Arizona, demonstrating that the structural enhancement conforms to applicable code requirements. The town may retain the services of an independent technical expert to review, evaluate, and provide an opinion regarding the sufficiency and accuracy of the report required in this subsection.
13. 
If the applicant proposes a modification to a tower, the application shall also include a stamped report by a state of Arizona registered professional engineer demonstrating that the tower with the proposed modifications will comply with applicable structural, electrical and safety codes, including but not limited to allowable wind speed for the applicable zone in which the tower is located and describing the general structural capacity of the tower with the proposed modifications. The town may retain the services of an independent technical expert to review, evaluate, and provide an opinion regarding the sufficiency and accuracy of the report required in this subsection.
14. 
If the applicant proposes a modification to a base station, the application shall also include a stamped report by a state of Arizona registered professional engineer demonstrating that the base station, with the proposed modifications, will comply with applicable structural, electrical, and safety codes.
15. 
If the applicant proposes a modification requiring alteration to the eligible support structure, excavation, installation of new equipment cabinets, or any other activities impacting or altering the land, existing structures, fencing, or landscaping on the site, the application shall also include a detailed site plan and drawings, showing the true north point, a graphic scale, and drawn to an appropriate decimal scale, indicating and depicting:
a. 
The location, elevation, and dimensions of the existing eligible support structure;
b. 
The location, elevation, and dimensions of the existing transmission equipment;
c. 
The location, elevation, and dimensions of the transmission equipment, if any, proposed to be collocated or that will replace existing transmission equipment;
d. 
The location, elevation, and dimensions of any proposed new equipment cabinets and the intended use of each;
e. 
Any proposed modification to the eligible support structure;
f. 
The location of existing structures on the site, including fencing, screening, trees, and other significant site features; and
g. 
The location of any areas where excavation is proposed, showing the elevations, depths, and width of the proposed excavation and materials and dimensions of the equipment to be placed in the area excavated.
B. 
Waiver of Submittal Requirements. The planning and building director may waive any submittal requirement upon determination that the required submittal or part thereof, is not reasonably related to the substantial change criteria. A waiver, to be effective, must be in writing and signed by the planning and building director.
C. 
When Received. An eligible facilities modification application and any supplemental submittals shall be deemed received by the town upon the date such application or supplemental submittal is filed with the town.
1. 
Determination of Completeness. The town shall, within 30 days of receipt of the application, review the application for completeness. An application is complete if it includes the applicable review fee(s) and contains all of the applicable submittal requirements set forth in subsection A of this section, unless waived by the planning and building director pursuant to subsection B of this section.
2. 
Incomplete Application. The town shall notify the applicant within 30 days of receipt of the application that the application is incomplete. Such notice shall clearly and specifically delineate all missing documents or information.
3. 
Tolling Time Frame for Review. The application review period begins to run when the application is received, and may be tolled when the approval authority determines that the application is incomplete and provides notice as set forth below. The application review period may also be tolled by mutual agreement of the approval authority and applicant. The time frame for review is not tolled by a moratorium on the review of eligible facilities modification applications.
a. 
To toll the time frame for review for incompleteness, the town must provide written notice to the applicant within 30 days of the date of receipt of the application, clearly and specifically delineating all missing documents or information. Such delineated information is limited to submittals set forth in subsection A of this section and any supplemental information requested by the town that is reasonably related to determining whether the proposed facilities modification will substantially change the physical dimension of an eligible support structure.
b. 
The time frame for review begins running again when the town is in receipt of applicant's supplemental submission in response to the town's notice of incompleteness.
c. 
Following a supplemental submission, the town shall have 10 days to notify the applicant that the supplemental submission did not provide the information identified in the original notice delineating the missing information. The time frame is tolled in the case of second or subsequent notices pursuant to the procedures identified in this subsection (C)(3). Except as may be otherwise agreed to by the applicant and the town, second or subsequent notices of incompleteness may not specify missing documents or information that was not delineated in the original notice of incompleteness.
d. 
A notice of incompleteness from the town will be deemed received by the applicant upon the earlier of personal services upon the agent, delivery by electronic mail to the agent (if such delivery is authorized for receipt by notice of the agent), or three days from deposit of the notice in the Unites States mail, postage prepaid, and in an envelope properly addressed to the agent using the address set forth in the application.
4. 
Modification of Proposed Facilities Modification. In the event that after submittal of the application, or as a result of any subsequent submittals, the applicant significantly modifies the proposed facilities modification described in the initial application, the application as modified will be considered a new application subject to commencement of a new application review period; provided, that the applicant and the town may, in the alternative, enter into a mutually agreeable tolling agreement allowing the town to request additional submittals and additional time that may be reasonably necessary for review of the modified application.
(Ord. 2016-110 § 1)
A. 
Review of Application. The town shall review an eligible facilities modification application to determine if the proposed facilities modification is subject to this chapter, and if so, if the proposed facilities modification will result in a substantial change to the physical dimensions of an eligible support structure.
B. 
Time Frame for Review. Within 60 days of the date on which the town receives an eligible facilities modification application, less any time period that may be excluded under the tolling provisions of this chapter or a tolling agreement between the applicant and the town, the town shall approve the application unless the town determines that the application is not subject to this chapter, or the proposed facilities modification will substantially change the physical dimension of an eligible support structure.
C. 
Approval, Denial. An eligible facilities modification application shall be approved upon determination by the town that the proposed facilities modification is subject to this chapter and that it does not substantially change the physical dimensions of an eligible support structure. An eligible facilities modification application shall be denied upon determination by the town that the proposed facilities modification application is not subject to this chapter or will substantially change the physical dimension of an eligible support structure. A proposed facilities modification will substantially change the physical dimensions of an eligible support structure if it meets any of the substantial change criteria.
D. 
Deemed Approved Application. An application that has been deemed approved shall be the equivalent of an approved facilities modification approval, except as may be otherwise determined by a court of competent jurisdiction, and shall be subject to generally applicable enforcement and compliance requirements in the same manner as an eligible facilities modification application that has been approved pursuant to this chapter.
E. 
Denial of Application. A denial of an eligible facilities modification application shall set forth in writing the reasons for the denial and shall be provided to the applicant.
F. 
Code Requirements. Any eligible facilities modification approved pursuant to this chapter, and any application that has been deemed approved, shall be and is conditioned upon compliance with any generally applicable building, structural, electrical, and safety codes and other laws codifying objective standards reasonably related to health and safety. Violations of any such applicable code or standard shall be deemed to be a violation of the eligible facilities modification or deemed approved application.
G. 
Term of Eligible Facilities Modification Approval. An eligible facilities modification approval issued pursuant to this chapter, and any deemed approved application, shall be valid for a term consistent with the time period provided for building permits.
H. 
Remedies. Notwithstanding any other provisions in the town code, no administrative appeal is provided for review of a decision to condition, deny or approve an application. Applicant and the town retain any and all remedies that are available at law or in equity, including by way of example and not limitation those remedies set forth in the FCC Eligible Facilities Request Rules. In the event no other time period is provided at law for bringing an action for a remedy, any action challenging a denial of an application or notice of a deemed approved remedy shall be brought within 30 days following the date of denial or following the date of notification of the deemed approved remedy.
(Ord. 2016-110 § 1)
A. 
Applicability. The provisions of this section shall apply to any facilities modification constructed, installed, placed or erected pursuant to an eligible facilities modification approval, or pursuant to a deemed approved remedy, which facilities modification did not conform to substantive zoning and/or development regulations, exclusive of this chapter, in effect at the time the completed eligible modification application was filed.
B. 
Nonconforming Structure Determination. A facilities modification approval or a facilities modification pursuant to a deemed approved remedy is subject to review by the town as a nonconforming structure upon the following conditions:
1. 
Final, Nonappealable Decision. A final decision, after any applicable appeal deadlines have expired, in the U.S. District Court or the U.S. Supreme Court determines that portion of Section 6409(a)(1) of the Spectrum Act, 47 C.F.R. Part 1, Subpart CC, or FCC Report and Order, WT Dockets 13-238, 11-59, 13-32 (adopted October 17, 2014) is unconstitutional or otherwise determined to be invalid or unenforceable in such a way that the town's otherwise applicable substantive standards are no longer preempted by federal law; and
2. 
Notice of Nonconforming Structure Determination. The town provides written notice to the applicant that the town has determined that the facilities modification did not conform to zoning and/or development regulations, exclusive of this chapter, in effect at the time the completed eligible facilities modification application was filed and that the facilities modification constitutes a nonconforming structure.
C. 
Conformance, Administrative Review. Upon receipt of notice of the town's nonconforming structure determination under subsection (B)(2) of this section, applicant shall within one year from the date of the town's notice of nonconformance:
1. 
Abate the nonconformance by conforming the site to the zoning and development regulations in effect at the time the completed eligible facilities modification application was filed; or
2. 
Request the town conduct an administrative review of the existing facilities modification.
D. 
If the applicant elects to seek administrative review pursuant to the foregoing, the town may:
1. 
Reapprove the existing facilities modification subject to existing code regulations;
2. 
Require reasonable modifications to the existing facilities modifications; or
3. 
Terminate the facilities modification and require removal of the facilities modification and return the site to the condition that existed prior to the construction, installation, placement or erection of the facilities modification.
E. 
Health and Safety Codes. Nothing in this section shall relieve the applicant from compliance with applicable building, structural, electrical and safety codes and with other laws codifying objective standards reasonably related to health and safety.
F. 
Administrative Appeal. The applicant, or its successors or assigns, may appeal the town's determination of nonconformation to the town's board of adjustment by filing a notice of appeal within 10 working days of the date of the determination of nonconformance.
(Ord. 2016-110 § 1)