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ORDINANCE NO. ____________
AN INTERIM URGENCY ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF BRENTWOOD AMENDING BRENTWOOD
MUNICIPAL CODE SECTION 16.120.120 TO AUTHORIZE THE
CITY ENGINEER TO WAIVE LIMITED UNDERGROUND UTILITY
REQUIREMENTS, AND FINDING THE ACTION EXEMPT FROM
CEQA.
WHEREAS, the City of Brentwood (“City”) presently requires development projects that include a land subdivision to install utility distribution facilities, including, but not limited to, electric, communication, street lighting and advanced technology systems installed in and for the purpose of supplying service to any development, to be placed underground as governed by Chapter 16.120.120 of the Brentwood Municipal Code (“BMC”); and
WHEREAS, according to multiple media sources, as well as developer testimonials, the construction industry is currently experiencing a severe shortage of subsurface electric distribution transformers; and
WHEREAS, the causes for this shortage are complex, and include increases in demand for such facilities due to growth in EV charger installation and the use of renewable energy sources, federal investment, storms and political events that have disrupted the global supply chain, the imposition of tariffs on foreign transformers, and the impacts of the COVID pandemic; and
WHEREAS, the lead time for the receipt of subsurface electric distribution transformers may delay the completion of construction projects by years if this requirement continues to be implemented; and
WHEREAS, the City desires to allow currently entitled development projects subject to BMC Chapter 16.120.120 to move forward with construction, while also enacting this interim urgency moratorium on new entitlements for projects with land subdivisions, in order to ensure electricity is available to future homeowners and businesses; and
WHEREAS, this interim urgency moratorium on undergrounding requirements in the city will give the City sufficient time to monitor the supply of subsurface transformers; and
WHEREAS, the City Council of the City of Brentwood is authorized, pursuant to Article 11, Section 7 of the California Constitution, to make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws; and
WHEREAS, California Government Code Section 65858 authorizes the City Council to adopt, by a four-fifths vote and without following the procedures otherwise
required for the adoption of a zoning ordinance, an interim urgency ordinance prohibiting any uses that may be in conflict with a contemplated general plan, specific plan, or zoning proposal that the City Council, planning commission, or planning department is considering, or studying, or intending to study within a reasonable time.
NOW, THEREFORE, the City Council of the City of Brentwood does ordain as follows:
SECTION 1. Recitals.
The recitals set forth above are hereby adopted as the findings of the City Council in connection with the adoption of this ordinance. In support of the recitals stated above, the City Council hereby finds and determines that it is necessary to adopt an interim urgency ordinance to allow pad-mounted transformers for projects applicable to BMC Chapter 16.120.120 with additional screening requirements for residential applications, while City staff continues to monitor the availability of subsurface transformers.
SECTION 2. Urgency Findings.
In addition to the recitals adopted pursuant to Section 1 of this ordinance, the City Council also hereby finds and determines that the absence of subsurface transformers nation-wide constitutes an immediate threat to the public health, safety, and welfare.
Specifically, the City Council finds as follows:
A. The proposed Ordinance is consistent with the General Plan, insomuch as it will allow for the continued provision of high quality design and installation of electric distribution transfers in new commercial and residential development, thus implementing General Plan Policy ED 6-1 (“Strive for high quality in all types of development.”)
B. The City Council hereby finds that there is a current and immediate threat to the public health, safety and/or welfare and a need for immediate preservation of the public peace, health, or safety that warrants the adoption of this Urgency Ordinance, given that:
1. The Brentwood Municipal Code does not provide a practical exception for pad-mounted in its regulations governing land subdivisions.
Specifically, to allow pad-mounted transformers would require currently entitled and future projects to request Planning Commission recommendation and City Council approval on an individual basis. In addition, those projects that are subject to processing under the Housing Crisis Act of 2019 (SB 330) are only subject to five hearings. For those projects that do not require City Council approval, or those that have already received approval, adding a further hearing for the limited purpose of issuing a waiver of this type could be infeasible. Additionally, the requirement to
form an underground, reimbursement or improvement district would be infeasible for a single commercial property owner or a group of 6-8 single family home owners for each transformer. There would also be an issue due to the uncertainty of the availability of subsurface transformers.
2. The failure to provide a timely mechanism for waiving this requirement, in light of the ongoing shortage of subsurface electric distribution transformers, could imperil the ability of entitled residential projects to complete construction, thereby delaying or perhaps precluding the construction of housing, including needed affordable housing.
3. Many other Cities in Contra Costa County and the Bay Area either allow pad-mounted transformers or provide exceptions under unreasonable or unfeasible circumstances.
C. It is necessary for the City to give staff time to monitor the subsurface transformer availability.
D. The City finds that an interim allowance for pad-mounted transformers for projects applicable to BMC Chapter 16.120.120 with additional screening requirements for residential applications is necessary for a period of 45 days.
1. Based on the foregoing, continuing to prohibit pad-mounted transformers would result in a current and immediate threat to the public health, safety, and welfare.
2. An initial period of 45 days will permit City staff to undertake an initial investigation of these matters and recommend a course of action to the City Council. These suggestions will likely involve the City amending, repealing, and/or adding certain language to the BMC to address the lack of availability of sub-surface transformers and to provide an allowance for pad-mounted transformers similar to other Cities.
E. Brentwood Municipal Code Section 16.120.120 is therefore hereby amended as set forth in Exhibit ‘A’, attached hereto and incorporated herein, for the duration of this Urgency Ordinance. Newly adopted language is underlined.
SECTION 3. This Urgency Ordinance will be published in accordance with Government Code Section 36933 by either posting or publishing the Urgency Ordinance in accordance with that law.
SECTION 4. This Urgency Ordinance is adopted by a four-fifths vote of the Brentwood City Council. It shall take effect immediately upon its adoption and remain in effect for 45 days as provided by Government Code Section 65858(a). Any extension of this Urgency Ordinance will require a four-fifths vote of the City Council.
SECTION 5. Ten days prior to the expiration of this Urgency Ordinance or any extension, the City Council will issue a written report describing the measures taken
to alleviate the condition which led to the adoption of this Urgency Ordinance, as required under Government Code Section 65858(d).
THE FOREGOING URGENCY ORDINANCE was adopted by the City Council of the City of Brentwood at a regular meeting held on the 26th day of March 2024 by the following vote:
EXHIBIT ‘A’
BRENTWOOD MUNICIPAL CODE
TITLE 16 (‘Subdivisions and Land Development’)
§ 16.120.120 Undergrounding—Electric, communication, street lighting and advanced technology systems.
A. General Provisions.
1. Utility distribution facilities, including, but not limited to, electric, communication, street lighting and advanced technology systems installed in and for the purpose of supplying service to any development, shall be required to be placed underground. "Advanced technology systems" shall be defined as all necessary appurtenances, equipment and facilities required for the provision of Internet, computer, fiber optic, cable television, telephone, and other communication services within the public right-of-way and upon private property. The design, installation, inspection and testing requirements for city acceptance of such system shall meet the minimum requirements as outlined in the city of Brentwood standard plans and specifications as approved by the city engineer. The developer shall also dedicate to the city that portion of the system within the public right-of-way and shall dedicate to the property owner the portion of the system within the private property.
2. All existing facilities except transmission facilities either along abutting streets or within a development shall also be underground at the time of development. "Along abutting streets" means on the same side of the abutting street as the property being developed, not the other side of the street.
3. The developer is responsible for complying with all requirements of this subsection, and shall make the necessary arrangements with the utility companies for the installation of such facilities.
4. The city council, following the consideration by the planning commission, may waive undergrounding requirements if unusual topographical, soil or any other unusual problems (such as prolonged supply chain delays) make such underground installations unreasonable or impractical in accordance with the following:
a. If the requirement to underground utilities is waived, the city council may require the recordation of an improvement agreement, requiring the property owner and any subsequent owner of the subject property to join an underground utility assessment district, reimbursement district or similar improvement district, when such a district is formed, and to guarantee participation in such district by posting an improvement bond and recording a lien on subject property.
b. The affected developer or any utility company may submit information supporting a request for such waivers.
c. No waiver shall be granted in any undergrounding district previously established.
d. In the event such a waiver is granted as to a residential development, the developer shall be responsible for installing screening to the satisfaction of the City Engineer.
5. The City Engineer may waive undergrounding requirements as to equipment appurtenant to underground facilities (such as surface-mounted transformers, pedestal-mounted terminal boxes and meter cabinets, and concealed ducts) if unusual topographical, soil, or any other unusual problems (such as prolonged supply chain delays) make such underground installations unreasonable or impractical in accordance with the following:
a. The affected developer or any utility company may submit information supporting a request for such waiver.
b. In the event such a waiver is granted as to a residential development, the developer shall be responsible for installing screening to the satisfaction of the City Engineer.
c. The City Engineer’s authority to waive such requirement shall sunset on December 31, 2028, unless otherwise amended by the city council.
B. Electric, Communication, Street Lighting and Advanced Technology Systems. All costs of placing existing or new facilities, required to be undergrounded by the developer, shall be paid for by the developer subject to the current California Public Utility Commission rules and regulations.
C. Advanced Technology Systems.
1. The developer shall design, install, test and dedicate to the city two advanced technology system conduits, size to be determined, within the public right-ofway. The developer shall install, in one of the conduits, a fiber optic system designed to serve the subject development for use by the city of Brentwood or one of its licensed franchisee. The fiber optic system shall be installed in accordance with the citywide advance technology master plan and approved by the city engineer. The second conduit shall remain empty and shall be reserved to serve the subject development for the use of a city licensed franchisee not wishing to utilize the city's fiber optic system. Both conduits shall be installed to each lot line. The developer shall bear all design, construction, inspection, and testing costs associated with these underground requirements. Furthermore, the developer shall design, install, test and dedicate to the city all necessary components of the advanced technology system as depicted on the citywide advanced technology master plan.
2. The developer shall design, install, test and dedicate to the property owner two advanced technology system conduits, size to be determined, to connect the public advanced technology system to the individual home or building. The developer shall install, in one of the conduits, a fiber optic system designed to serve the subject property. The fiber optic system shall be installed in accordance with the citywide advance technology master plan and approved by the city engineer. The second conduit shall remain empty and shall be reserved to serve the subject property for the use of a city licensed franchisee not wishing to utilize the city's fiber optic system. The developer shall bear all design, construction, inspection and testing costs associated with these underground requirements.
3. The cable television or advanced technology company franchisee that elects to install facilities in the city's vacant conduit shall provide plans and specifications to the developer and the city of Brentwood. The licensed franchisee shall also inspect the facilities and certify to the city prior to final approval of the development that the cable television facilities or advanced technology systems are properly installed and serviceable. The design and installation shall meet the minimum criteria as outlined in the city of Brentwood standard plans and specifications.
(Ord. 471 § 3, 1990; Ord. 609, 1999)
CITY COUNCIL AGENDA ITEM NO. G.3
03/26/2024
SUBJECT: Consider a request from Mayor Bryant and Council Member Mendoza related to the City Manager Resident Engagement Meetings and Potentially Provide Further Direction from the City Council
DEPARTMENT: City Manager
STAFF: Tim Ogden, City Manager
TITLE/RECOMMENDATION
That the City Council consider and discuss the request from Mayor Bryant and Council Member Mendoza related to a public update on the progress of the monthly resident engagement meetings held by the City Manager and receive any additional direction from the City Council about such engagement efforts.
FISCAL IMPACT
There is no fiscal impact to this item.
BACKGROUND
At the request of Council Member Mendoza to discuss changing parameters around the City Manager’s engagement efforts with residents, and at the request of Mayor Bryant, this staff report has been prepared following Council/Administrative Policy
4.4 (a)(2).
Annually, the City Council performs a review of the City Manager during a closed session and sets goals for the year. One of the goals finalized in September 2023 related to resident engagement:
Resident Engagement. Increase engagement with residents by conducting monthly publically noticed meetings with residents at varying times and locations by June 30, 2024. Report attendance and major topics in the weekly update email to the Council.
The City Manager began hosting resident engagement meetings advertised as “Townhalls with Tim” in October 2023, and these community engagement opportunities have occurred on a monthly basis, at various times and locations. One resident engagement meeting was held on Zoom, and included all of the executive
CITY COUNCIL AGENDA ITEM NO. G.3
03/26/2024
team to further introduce them to the community to add variety to the meetings and give residents the opportunity to hear directly from them.
At these meetings, the City Manager has introduced himself, provided a brief overview of a few key city updates, and then turns the majority of the time over to the audience for questions. Each “Townhall with Tim” has lasted at least one hour, followed by the City Manager staying after to meet people personally and answer additional questions. After each meeting, the City Manager ensures city staff follow up with outstanding issues highlighted during the meetings.
Below is a list of each meeting with the date, time, location, estimated number of attendees, and sample topics covered:
Date Time Location Attendees Sample Topics Covered
10/3/23 4:00pm Summerset
I
~125 · Diablo 9 golf course closure
plans; operations and
maintenance issues: dead trees,
weeds, pond stench, vector
issues, etc.
· Costco, Lazy Dog, Whole
Foods
· Several school traffic
concerns
· Council–Manager form of
government
· Bridle Gate
· Retail crime
· Recycled water to HOA
· Speed trailers
· Water quality
· Trails ownerships, etc.
11/9/23 5:30pm City Hall ~75 · WinCo noise
· Innovation Center
· School counseling support
· Bicycle safety
· Vision for the City
· DEI
· Bridle Gate
CITY COUNCIL AGENDA ITEM NO. G.3
03/26/2024
Date Time Location Attendees Sample Topics Covered
· Planning procedures
· Israel/Gaza war
12/8/23 11:30am Senior
Center
~100 · Costco, Lazy Dog, Locanda
Capri
· Barnes & Noble
· Expanding Senior Center
· Sand Creek Road Extension
· Mokelumne Bridge Project
1/18/24 5:30pm City Hall 7 · Major new retailers
· Fire Station Downtown
· Temporary downtown parking
· Subdivision updates
· Golf Course garbage
· Environmental cleanup
· Brentwood Librarian updates
· Fence height ordinance
2/13/24 5:30pm Zoom 33 · Homeless
· Major retailers status
· Downtown parking stalls
· Bicycle safety
· Pickleball courts noise
· Park development process
· Builder's Remedy
· Invasive tree species in creek
· CalTrans median landscaping
· 24/7 reporting application
3/5/24 10:30am Summerset
III
~40 · Costco, Lazy Dog
· Sand Creek Road Extension
· Sports Complex update
· Downtown parking
CITY COUNCIL AGENDA ITEM NO. G.3
03/26/2024
Date Time Location Attendees Sample Topics Covered
· Ownership/maintenance of
HOA areas
· Traffic signal timing on
Balfour/Fairview
· Brentwood golf course
In addition to the Townhalls with Tim, the City Manager has engaged residents at National Night Out, attended Police Department Townhalls, and provided formal presentations to service clubs.
The City Manager will continue to hold resident engagement meetings each month through June 30, 2024, consistent with the goal set for the year. The 2024 general election nomination period opens in July, and to avoid election campaigns, and informal candidate debates, the City Manager’s formal resident engagement meetings may resume in 2025 after the election season concludes.
CITY COUNCIL STRATEGIC INITIATIVE
Not Applicable.
PREVIOUS ACTION
Not Applicable.
DATE OF NOTICE
Not Applicable.
ENVIRONMENTAL DETERMINATION
Not Applicable.
ALTERNATIVE OPTION(S)
Not Applicable.
ATTACHMENT(S)
CITY COUNCIL AGENDA ITEM NO. G.3
03/26/2024
Not Applicable
CITY COUNCIL AGENDA ITEM NO. G.4
03/26/2024
SUBJECT: Consider a request from Vice Mayor Meyer and Council Member Pierson related to revisions to the Age Friendly Communities Committee, and the Racial Equity Committee
DEPARTMENT: City Manager’s Office
STAFF: Tim Ogden, City Manager
Margaret Wimberly, City Clerk
TITLE/RECOMMENDATION
That the City Council consider and discuss the request from Vice Mayor Meyer and Council Member Pierson to rename the Age Friendly Communities Committee to Age and Disability Friendly Communities Committee, and the Racial Equity Committee to Diversity, Equity, Inclusion, and Belonging Committee, or as recommended by Council.
FISCAL IMPACT
There is no fiscal impact associated with this action other than staff time.
BACKGROUND
Jointly requested via email on March 7 and 8, 2024, and pursuant to Council Policy 110-1 Rule 4.4 (a)(2), this item has been placed on the agenda so that Council may discuss it and provide further direction to staff.
With the proposed name changes to the two committees, and minor expansion of scope, these committees can easily be changed without complication. However, if the scope and/or duration of the committee’s work changes significantly, a standing committee may be warranted, and additional information may need to be considered before action can be taken.
CITY COUNCIL STRATEGIC INITIATIVE
Not Applicable.
PREVIOUS ACTION
CITY COUNCIL AGENDA ITEM NO. G.4
03/26/2024
Previous Action by the City Council is included on Attachment 1.
DATE OF NOTICE
Not Applicable.
ENVIRONMENTAL DETERMINATION
Not Applicable.
ALTERNATIVE OPTION(S)
Not Applicable
ATTACHMENT(S)
1. Previous Action
ATTACHMENT “1”
Previous actions related to this agenda item that were taken by the Council are listed below. To view prior actions and materials, and Brentwood Municipal Code references in the staff report, as applicable:
Visit www.brentwoodca.gov/meetings, and select the meeting date(s) desired to see the reference materials and videos.
Visit www.brentwoodca.gov/municipalcode to research references to the Brentwood Municipal Code and search by the code section(s) cited.
On January 23, 2024, the City Council, by motion, approved the creation of two new ad-hoc committees, the Age Friendly Communities and the Racial Equity Committee, and appointed Vice Mayor Meyer and Council Member Pierson to these ad-hoc committees.
On March 7, 2024, Vice Mayor Meyer and Council Member Pierson sent a joint request to the City Manager requesting an item be added the agenda related to revisions to the Age Friendly Communities and the Racial Equity Committee.
CITY COUNCIL AGENDA ITEM NO. I.1
03/26/2024
SUBJECT: Consider a request from Council Member Pierson related to potential updates to the Brentwood Municipal Code and the potential creation of a Council committee
DEPARTMENT: City Manager’s Office
STAFF: Tim Ogden, City Manager
Margaret Wimberly, City Clerk
TITLE/RECOMMENDATION
That the City Council consider and discuss the request from Council Member Pierson related to updates to Title 1 and Title 2 of the Brentwood Municipal Code (“Code”) and the potential creation of a Council committee to advise additional Code changes.
FISCAL IMPACT
There is no fiscal impact associated with this action. However, additional General Fund obligations may be incurred for outside legal service costs dependent on the nature and scope of proposed Code updates.
BACKGROUND
Pursuant to Council Policy 110-1 Rule 4.4 (b)(2), this item has been placed on the agenda so that Council may discuss it and provide further direction to staff. Pursuant to Section 4.4, Council discussion is limited to whether staff time and City resources should be spent on the item and the time period for scheduling.
On October 24, 2023, the City Council authorized staff to spend time and resources on the preparation of a report on required funding, a timeline, and the prioritization of review the Code for sections that are no longer enforceable, and that the process be continuous. This was work already authorized generally, and planned to occur over time once securing sufficient funds and/or consultant assistance on specific Code sections through the budget process. This request is now more focused starting with Title 1 and 2 of the Code.
If the Council would like to establish a Council committee, it should consider whether it is a standing or ad-hoc committee, scope of work, and frequency of meeting, and this will be prepared for a future Council meeting.
CITY COUNCIL AGENDA ITEM NO. I.1
03/26/2024
CITY COUNCIL STRATEGIC INITIATIVE
Not Applicable.
PREVIOUS ACTION
Previous Action by the City Council is included on Attachment 1.
DATE OF NOTICE
Not Applicable.
ENVIRONMENTAL DETERMINATION
Not Applicable.
ALTERNATIVE OPTION(S)
Not Applicable
ATTACHMENT(S)
1. Previous Action
ATTACHMENT “1”
Previous actions related to this agenda item that were taken by the Council are listed below. To view prior actions and materials, and Brentwood Municipal Code references in the staff report, as applicable:
Visit www.brentwoodca.gov/meetings, and select the meeting date(s) desired to see the reference materials and videos.
Visit www.brentwoodca.gov/municipalcode to research references to the Brentwood Municipal Code and search by the code section(s) cited.
On September 26, 2023, Council Member Pierson requested a future agenda item for the review of Municipal Code section 2.45.020 pertaining to the powers and duties of Park and Recreation Commission, and any sections of the Municipal Code that are longer enforceable.
On October 10, 2023, the City Council continued consideration of the request from Council Member Pierson regarding a review of Municipal Code section 2.45.020 regarding the powers and duties of the Park and Recreation Commission, and any sections of the Municipal Code that are no longer enforceable to the City Council meeting of October 24, 2023.
On October 24, 2023, the City Council authorized staff to spend time and resources on the preparation of a report on required funding, a timeline, and the prioritization of review the Brentwood Municipal Code for sections that are no longer enforceable, and that the process be continuous.
On March 12, 2024, the City Council by motion, requested staff to recommend additional updates to sections of the Municipal Code related to the Park and Recreation Commission to ensure consistency with other City commissions.
On March 12, 2024, Council Member Pierson requested an item to consider updates to Title 1 and Title 2 of the Brentwood Municipal Code and for the potential creation of an ad-hoc subcommittee to review those sections.
CITY COUNCIL AGENDA ITEM NO. I.2
03/26/2024
SUBJECT: Consider a request from Vice Mayor Meyer to consider potential methods to restrict hate speech during public comments
DEPARTMENT: City Manager’s Office
STAFF: Tim Ogden, City Manager
Margaret Wimberly, City Clerk
TITLE/RECOMMENDATION
That the City Council consider and discuss the request from Vice Mayor Meyer from the March 12, 2024, City Council meeting to consider methods to restrict hate speech during the public comment portion of public meetings.
FISCAL IMPACT
There is no fiscal impact associated with this action other than staff time.
BACKGROUND
Pursuant to Council Policy 110-1 Rule 4.4 (b)(2), this item has been placed on the agenda so that Council may discuss it and provide further direction to staff. Pursuant to Section 4.4, Council discussion is limited to whether staff time and City resources should be spent on the item and the time period for scheduling.
On February 12, 2024, Vice Mayor Meyer withdrew her request for a future agenda item related to reconsideration and evaluation of the public comment period on City Agendas based on the Council discussion. This additional request mentioned that the City of Emeryville had crafted a policy on the topic that could be assessed.
CITY COUNCIL STRATEGIC INITIATIVE
Not Applicable.
PREVIOUS ACTION
Previous Action by the City Council is included on Attachment 1.
DATE OF NOTICE
CITY COUNCIL AGENDA ITEM NO. I.2
03/26/2024
Not Applicable.
ENVIRONMENTAL DETERMINATION
Not Applicable.
ALTERNATIVE OPTION(S)
Not Applicable
ATTACHMENT(S)
1. Previous Action
ATTACHMENT “1”
Previous actions related to this agenda item that were taken by the Council are listed below. To view prior actions and materials, and Brentwood Municipal Code references in the staff report, as applicable:
Visit www.brentwoodca.gov/meetings, and select the meeting date(s) desired to see the reference materials and videos.
Visit www.brentwoodca.gov/municipalcode to research references to the Brentwood Municipal Code and search by the code section(s) cited.
On October 10, 2023, the City Council adopted Resolution 2023-122 approving amendments to City Council/Administrative Policy No. 110-, Meeting Rules and Procedures; sections 3.2, which clarified that the agenda order may be changed pursuant to Section 4.3, by the Mayor or Vice-Mayor (in the Mayor’s absence) and
5.2 which pertains to public speaking times, and allows the Mayor to reduce public speaking times for reasons other than an anticipated large number of speakers of the City’s Meeting Rules and Procedures (Policy 110-1). The City Council further provided direction to staff to: Provide opportunity for virtual public comments for agendized items only, and verbal public comments on items not on the agenda will be taken in person only.
On January 23, 2024, Vice Mayor Meyer requested a future agenda related to reconsideration and evaluation of the public comment period on City Agendas.
On February 12, 2024, Vice Mayor Meyer withdrew her request for a future agenda related to reconsideration and evaluation of the public comment period on City Agendas.
On March 12, 2024, Vice Mayor Meyer requested an item to consider policies the City Council might adopt to restrict hate speech during public comments.