Carmel-by-the-Sea City Council
September 12, 2023

Doc
Type*
Comment Received From: Edits
Made?
(Y/N)
Responses and References

PLANNING COMMISSION
ORD/CL An attorney (Andrew Campaneli) hired by the SCTCN Citizens Group provided a sample ordinance with specific language requiring applicants to offer Probative Evidence proving gaps in coverage and/or deficient capacity by conducting Drive Tests and providing Drop Call Data. It also offers a specific definition of “Adequate Coverage.” I would like to understand why such language is not included in our new draft. In my own research I have discovered several other municipalities that have included this language.

Y & N Section 17.46.080(C) of the ordinance establishes the circumstances under which the City may grant a special exception to the standards in this chapter, Chapter 17.58 or the Administrative Detailed Wireless Facility Design Guidelines if the applicant makes a claim that granting a special exception is necessary to avoid conflict with applicable federal or state law. The application checklist (Types I-IV) then addresses the proof required for various special exception claims. For example various types of “effective prohibition” claims may be made requiring different evidence. The City’s draft ordinance has not been revised to add submittal requirements for special exception requests but revisions have been made to the checklist to require information to support effective prohibition claims.

The Campanelli ordinance purports to deal with one type of special exception request, that is federal (not state) preemption claims in what Campanelli ordinance calls a Notice of Effective Prohibition Conditions but it defines an effective prohibition using an “adequate coverage” test that is different from the significant gap/least intrusive means test developed in Ninth Circuit case law interpreting what is an effective prohibition. Further, the Campanelli ordinance does not attempt to address or require any proof for other types of federal effective prohibition claims (such as the materially inhibits claims discussed in the FCC Small Cell Order and the Ninth Circuit decision related to that Order), nor does it address state preemption claims.

In other words, the draft ordinance prepared by the City more comprehensively covers ALL of the potential Special Exemption Requests.

COMMENT MATRIX #1
PC MEETING AUGUST 2023

RESPONSE TO COMMENTS ON PC WORKSHOP DRAFT ORDINANCE
August 4, 2023

Doc
Type*
Comment Received From: Edits
Made?
(Y/N)
Responses and References
ORD/CL I would furthermore suggest language that calls for any/all approved wireless facilities to be active before any proof of need testing is done, and that such testing be submitted as part of an application and if missing, the application would be deemed incomplete.

Y & N Added to checklist a requirement for modeling to include coverage of recently approved/not yet operable sites. However, requiring sites to be operable has not been added. It is not uncommon for applicants to pursue multiple applications at the same time and the FCC rules recognize batching applications can occur (see 47 CFR 1.6003(c)(2)).

Further, under the FCC’s 2018 Moratoria Order, local governments cannot impose an express or de facto moratorium on the processing of applications. Per the FCC Moratoria Order: De facto moratoria are “…state or local actions that are not express moratoria, but that effectively halt or suspend the acceptance, processing, or approval of applications or permits for telecommunications services or facilities in a manner akin to an express moratorium.” (¶139) In light of this, requiring an applicant to complete construction of a facility before applying for another facility would put the City at risk of claims that the City is unlawfully refusing to process of applications.

ORD Type I, II, III and IV applications are first defined on page 9 (in Definitions) and then much more language is added beginning on page 19 (17.46.050 A – Application Types), and then again on the second page of the Application for Wireless Facility.

While the wording in each is similar, I think it should be identical and clear.

Y Cleaned up as suggested.

COMMENT MATRIX #1
PC MEETING AUGUST 2023

RESPONSE TO COMMENTS ON PC WORKSHOP DRAFT ORDINANCE
August 4, 2023

Doc
Type*
Comment Received From: Edits
Made?
(Y/N)
Responses and References
ORD Also, I get confused by the use of the terms “existing structure” and “new structure”. I believe the intent here is that an “existing structure” is a structure that already has a wireless facility on it and a “new structure” is one that does not. But what if the proposal is to place a new wireless facility on an existing building’s roof where no wireless facility currently exists? That building is a structure (per definition on page 22), it does exist, and it is not new, so I would call it an existing structure, yet I think the current language would call it a new structure. Perhaps we should introduce more descriptive terms like “structure already supporting one or more wireless facilities” instead of “existing structure” and “structure not currently supporting wireless facilities or a new structure or a replacement structure” instead of “new structure.” N The defined term “existing” only applies to EFRs. The specialized meaning for EFRs essentially means the structure has a wireless facility already on it. Where the code is addressing EFRs, the terms used are existing tower or base station (all of which are defined).

Where the code is not addressing EFRs, the distinction is generally between existing and new structures, and “existing” has its normal meaning, that the structure currently exists. Note the FCC definition of “structure” included in the Code does not require a wireless facility on it. Where the proposal is to place a new wireless facility on a rooftop where no wireless facility currently exists that would be a placement on an existing structure.

ORD Adding an example of an application for each Type would be helpful. N Would be difficult to cover all application types as part of a regulatory document. Consider creating as part of a separate guidance document that is less formal.

ORD Page 7. 12. “non-pole concealment structure” – do we really want to offer a list of examples here ? I doubt we’ll see public support for antennas on monuments, kiosk, bus shelters and street furniture, so why include it here suggesting it’s ok ? Y The definition is not used and has been removed.

ORD Page 7. 16. “public right of way” – “The term does not include private or public utility easements….” Language elsewhere addresses wireless facilities in the PROW and utility poles are the prime structure that Telecom Companies would be wanting to use.

I assume such poles are in a Utility Easement so we better include such easements in the PROW we’re trying to regulate.

N The utility poles in Carmel are mainly in public rights-of-way, not utility easements. The definition is limited because later constraints on placements in public rights of way (highly incompatible locations) are imposed to address traffic/pedestrian access and other safety concerns in streets. Utility poles that are on private parcels are also regulated just not a strictly.

COMMENT MATRIX #1
PC MEETING AUGUST 2023

RESPONSE TO COMMENTS ON PC WORKSHOP DRAFT ORDINANCE
August 4, 2023

Doc
Type*
Comment Received From: Edits
Made?
(Y/N)
Responses and References
ORD Page 12. B.1 – “wireless facilities operated for the City for public purposes” Why are these excluded? I think we want to hold the City accountable to the same standards as all wireless providers. I understand it is customary to exclude City Government from it’s own ordinances, but in this case I strongly disagree. Local governments elsewhere have realized the revenue potential of streetlights, parking meters and other city property when allowed to support wireless facilities – let’s nor open that door.

Y Amended to delete exclusion. Please note that the Small Cell Order in effect requires local governments to make structures they own in the public rights-of-way available for placement wireless facilities at cost-based rates. However, local governments retain full proprietary authority over whether to allow wireless facilities on non-ROW public land.

ORD Page 13 – Tier III includes RC as most compatible. I’d suggest it be in Tier I or at least Tier II.

N Not changed, as this is policy matter for the full Planning Commission to consider – RC is technically one of the City’s commercial districts, so staff is recommending leaving as-is. One consideration is that moving RC to a different Tier could create a situation where we’re excluding too much land (40% of total commercial is RC) ORD Page 14 D.1 – See previous comments on “new” and “existing” structures N see above regarding same topic.

ORD Page 14 E.1 – See previous comments on Utility Easements being excluded from the PROW definition. Let’s be sure not to inadvertently exclude utility poles from inclusion here as highly incompatible.

N See discussion above on page 3. WCFs on utility poles not in public right-of-way would be subject to other standards for placements on parcels.

ORD Page 15 2 – again, see prior comments re” “new” and “existing” For 2.a, why not 10 feet instead of 5? Also, consider adding language from the Original Draft that prohibited (or at least strongly discouraged?) structures within 10 feet of a driveway or primary walkway to a residence. For 2.b, why not 500 or even 1000 feet instead of 250?
Y & N See earlier discussion re new and existing.
5ft. criteria not changed–10 ft becomes problematic with overlap of other regulations such as placement in front of doors and windows. 250ft. criteria was changed – Staff changed to 500 feet. 1,000 feet would not be reasonable because of city size
COMMENT MATRIX #1
PC MEETING AUGUST 2023

RESPONSE TO COMMENTS ON PC WORKSHOP DRAFT ORDINANCE
August 4, 2023

Doc
Type*
Comment Received From: Edits
Made?
(Y/N)
Responses and References
ORD Page 15 3.c, third line, add “distracts” – that obstructs, restricts or distracts the view…..

N Leave as-is. “Distracts” is more subjective than “obstruct” or “restrict” since those both deal with an object directly in a line of sight to a view, as opposed to just being in an undetermined periphery area ORD Page 16 F.1.3 – Do we need definition for “average height of mature natural trees”? Y Removed “average height” standard. Upon investigation, this is an overly complicated measurement. Also, it is likely that in most cases, the number of trees over 24-feet (many well over 50-feet) would cause the average height to almost always be greater than the maximum height of the zoning district. So, this was modified to just use the standard of no-taller than 10-feet above the max height of the zoning district.

ORD Page 17 f. “within any tree drip line” – do we want to clarify that this applies whether above or below the tree canopy ?
N No need to clarify, this is defined in CMC 17.60
ORD Page 18 k. View Protection – I think this should be MUCH stronger. “Substantially Eliminate an existing significant view” would be very difficult to achieve while a view is still significantly impacted. This would seem to be an important design guidelines tool.

N Keeping the same as test for all other development 17.10.010.K ORD Page 21 1 5. Voluntary Community Meetings – why can’t these be mandatory? N A mandatory community meeting before application submittal would trigger the FCC shot clock. As a practical matter, there is not a lot of time for community meetings. The FCC shot clocks are short and leave little time for the public hearing already required for all discretionary reviews and potential appeals.

COMMENT MATRIX #1
PC MEETING AUGUST 2023

RESPONSE TO COMMENTS ON PC WORKSHOP DRAFT ORDINANCE
August 4, 2023

Doc
Type*
Comment Received From: Edits
Made?
(Y/N)
Responses and References
ORD Page 27. E. Do fall zone requirements apply to all wireless facilities including those mounted on utility poles? I believe they should and not just for habitable structures intended for residential occupancy but any for of occupancy (specifically hotels).

Y CPUC regulates the safe installation of electric and communications utility infrastructure including attachments of wireless facilities on utility poles. See for e.g., CPUC General Order 95 which was updated in 2020 to strengthen pole safety requirements. The fall zone in the Administrative Detailed Wireless Facility Design Guidelines does not apply. Bear in mind that the Code favors the use of existing poles and not the construction of new poles, so the fall zone is already fixed by the original placement of the pole.

Further, if the applicant does not own the structure or pole, the applicant must include with the application a written authorization executed by the owner(s) that authorizes the applicant to file the application and perform the work to the extent described in the application. Pole owner’s will review proposals for compliance with CPUC rules (and their own requirements which may be more stringent) before granting such authorization.

COMMENT MATRIX #1
PC MEETING AUGUST 2023

RESPONSE TO COMMENTS ON PC WORKSHOP DRAFT ORDINANCE
August 4, 2023

Doc
Type*
Comment Received From: Edits
Made?
(Y/N)
Responses and References
COA General – Can we add language for annual RF Compliance reporting ? N City can and does require demonstration of compliance with RF emissions standards in the application and post-installation in the COA. The COA also provides that Director may ask for a report if Director has good cause to believe the facility is not in compliance.

The FCC has compliance and enforcement authority. Thus, local regulation of the facility’s compliance on an ongoing operation may be subject to legal challenge in the courts or at the FCC as unlawful supplemental regulation e.g.Crown Castle USA Inc, v. City of Calabasas, Superior Court of California, County of Los Angeles, Case No. BS140933, January 24, 2014 (Chalfant, J.); see also Procedures for Reviewing Requests for Relief From State and Local Regulations Pursuant to Section 332(c)(7)(B)(v) of the
Communications Act of 1934, FCC 00-408 (rel. Nov. 17, 2000).

Concerns about suspected non-compliance should be reported to the FCC for enforcement action. Phone: 1-888-225-5322 (1-888-CALLFCC); E-mail: [email protected] General – Do we have a stated policy of undergrounding utilities? It would seem that if we did and if we made clear that anything on a utility pole that is later undergrounded must also be placed underground or eliminated might provide Telecom providers some pause before investing in pole mounted antennas.

Y & N CMC Chapter 13.28 (Underground Utilities) provides the process for establishing underground districts by City Council resolution. Once an underground district is established, unless the resolution provides otherwise, undergrounding requirements do not apply to certain types of facilities, including “antennae, associated equipment and supporting structures, used by a utility for furnishing communication services.” See CMC Section 13.28.070(E).

In the proposed conforming amendments (Section 4) 13.28.070.E, a change is proposed to ensure remaining equipment is not visible.

ORD General – my comments on “new and existing structures” apply throughout these documents. I have not cited every instance.

Y see earlier comments on this matter
COMMENT MATRIX #1
PC MEETING AUGUST 2023

RESPONSE TO COMMENTS ON PC WORKSHOP DRAFT ORDINANCE
August 4, 2023

Doc
Type*
Comment Received From: Edits
Made?
(Y/N)
Responses and References

SCTCN COMMENTS
ORD (1) Start with the Campanelli Ordinance for Carmel (March 2022) as the framework and make any additions to make it stronger; rather than starting with the City Wireless Ordinance Draft and trying to strengthen it to the level of the Campanelli Ordinance….we find that overall, the Andrew Campanelli Ordinance we submitted to the city last March 2022 is a stronger wireless ordinance than the city’s draft because:
(i) Everything is included within the ordinance for transparency to the public and the courts , (ii) The description and explanation of the application types are clearer and more defined, (iii) The critical role of the Planning Commissioner’s authority to render factual determinations and the findings are covered in 6 pages within the ordinance:
articulating 8 zoning impacts and 4 effective prohibition conditions to determine adequate coverage, significant gap/capacity deficiency, and least intrusive means, and (iv) the Campanelli ordinance outshines the city’s draft it it’s ability for the Planning Commission to be able to make factual determinations on significant gap and capacity deficiency claims when an applicant has effective prohibition claims.

N Relevant topics from the Campanelli Ordinance are already addressed in the draft ordinance and the specific comments made at the workshop were responded to and changes made in the current draft to the extent deemed advisable (as explained in this chart). The Campanelli Ordinance would require major revisions if the city were to use it. Among other things, the Campanelli Ordinance is not complete misstates certain legal requirements, and does not address California law.

CL (2) The role of The Planning Commission as the discretionary reviewing authority of evidentiary findings must be clearly articulated within the ordinance and the Wireless Ordinance Facility Application Checklist Types I-IV.Add language from Andrew Campanelli’s Wireless Ordinance Refering to Evidentiary Standards for Effective Prohibition conditions (p. 22-24) and rendering evidence for significant gap and capacity deficiency claims (page 30-36) in the Campanelli Ordinance 17.46.100 Y & N No changes have been made to the ordinance. See comments on page 1 above regarding special exception findings and why we have not incorporated Campanelli ordinance language regarding effective prohibition in the City’s ordinance.

Some revisions to the checklist for Type I-IV applications have been made to require information to support effective prohibition claims.

COMMENT MATRIX #1
PC MEETING AUGUST 2023

RESPONSE TO COMMENTS ON PC WORKSHOP DRAFT ORDINANCE
August 4, 2023

Doc
Type*
Comment Received From: Edits
Made?
(Y/N)
Responses and References
ORD/CL (3) The city draft’s “Wireless Ordinance Application Types I-IV” do not require applicants to provide all of the probative evidence necessary for the Planning Commission to make factual determinations as to whether a denial of the application would materially inhibit an identified wireless carrier from providing personal wireless services. All the evidence necessary should also be articulated in the ordinance.

17.46.080 Effective prohibition claims --We recommend the language used in Sonoma’s June 21, 2022 ordinance under 5.30.120 exceptions B. as such,“An applicant may request an exception only at
the time of applying for a wireless telecommunications facility permit and not at any time thereafter. 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 city has deemed an application complete shall be treated as a new application.”
Checklists-The application instructions must, “require” applicants to make a showing of all probative evidence necessary for the Planning Commission to make factual determinations as to whether a denial of the application would materially inhibit an identified wireless carrier from providing personal wireless services.

Drive test data--include the “history of effective prohibition claims” and the “specific drive test data and map evidence” an applicant must provide for the Planning Commission to be able to make factual determinations about significant gap claims. Include the specific language and testing criteria outlined in Andrew Campanelli’s ordinance (effective prohibition claims/drive test data and maps) Connect to landline-add a checkbox requiring applicants to make a showing as to whether “mobile wireless services could connect to a landline”, and if so, all results and data together with a report that describes how and when the applicant conducted such test(s), so that the Planning Commission may fully determine significant gap claims.

Denial of service - add in a checkbox on the city application instructions requiring applicants make a showing of denial of service and/or dropped call records so that the Planning Commission may determine capacity deficiency claims. We recommend the specific language from Andrew Campanelli’s ordinance as such (denial of service and/or dropped call records)
Y & N See edit to Ordinance Section 17.46.080(C)(1) to address the timing of claims for special exceptions (only one special exception claim involves effective prohibition. It is inappropriate to put detailed requirements “effective prohibition” showings in an ordinance because the tests for effective prohibition are multiple and evolving as case law develops. Putting a specific judicial test in the ordinance would require frequent amendments to keep the ordinance current with the law, which could leave it vulnerable to challenge during the long process of updating. Further, the Campanelli ordinance only addresses one of the several judicial tests and not quite as formulated in the Ninth Circuit. Most of the requested items have been added to the checklist where appropriate for the Ninth Circuit.

Additional items have been added to address other effective prohibition tests.

COMMENT MATRIX #1
PC MEETING AUGUST 2023

RESPONSE TO COMMENTS ON PC WORKSHOP DRAFT ORDINANCE
August 4, 2023

Doc
Type*
Comment Received From: Edits
Made?
(Y/N)
Responses and References
ORD/CL (4) All the Evidentiary Standards to be rendered by the Planning Commission must be within the ordinance or in both the ordinance and the checklist.

Y & N Some revisions have been made to the checklist. The ordinance now references the requirement for applications to contain probative evidence in order to strengthen the requirement for those materials to be included, but the specific application requirements have not been added to the ordinance and have been included in the checklist for the reasons discussed above.

CL (5) The city draft’s Wireless Ordinance Application Types I-IV & V must include a fire safety and engineering checklist outlined by consultant Susan Foster in an attachment
N Fire safety and engineering were already addressed in the previous ordinance and checklist drafts and remain sufficient in staff’s opinion.

ORD (7) The city draft’s public noticing to neighbors is limited to a 100-foot radius. The city draft’s public noticing to neighbors by the applicant must be expanded from a 100 foot radius of the site to a 300-foot radius of the site. In addition to hand delivery, require the applicant to send public mailings within a 300-foot radius of the site and require the applicant to file an Affidavit of Delivery and Mailing. Example: from Andrew Campanelli’s wireless ordinance for CBTS
N The ordinance is consistent with the current city permit procedures in Section 17.52.110 for hearing notices. 100 ft hand deliver and 300 ft mailing. Further, hand delivery is being done by the City for wireless applications to make sure that it is timely done.

COMMENT MATRIX #1
PC MEETING AUGUST 2023

RESPONSE TO COMMENTS ON PC WORKSHOP DRAFT ORDINANCE
August 4, 2023

Doc
Type*
Comment Received From: Edits
Made?
(Y/N)
Responses and References
ORD (6) The city draft ordinance omits the finding of “adverse impacts upon real estate values” to be determined by the Planning Commission. Add as stated in Andrew Campanelli’s ordinance (p.34) (potential adverse impacts upon real estate values) N Development within the City is regulated through design and location guidelines. Example – viewshed is already regulated to an extent.

All development standards implicitly serve to protect property values already. Adding this finding will unnecessarily put the City at risk of legal challenge. Courts have cautioned that requirements or decisions that are ostensibly concerned with property values may be found to be unlawfully based on concerns about RF emissions. For example, in a California federal district court case in which a city had denied a wireless facility application based on the city’s finding that the wireless facility would “negatively affect property values of nearby homes based upon the perceived fear of the health effects cause by the RF emissions,” the court held against the city since it may not regulate based on the “direct or indirect concerns over the health effects of RF.” The court explained that the denial could not be based on substantial evidence (as required by law) “…if the fear of property value depreciation is based on concerns over the health effects caused by RF emissions.” See AT&T Wireless Servs. v. City of Carlsbad, 308 F. Supp. 2d 1148 (S.D. Cal. 2003). This ruling is relevant because the proposed wireless regulations already have detailed aesthetic and safety standards, and it is not clear on what basis --other than an unlawful concern over the health effects of RF emissions-- would a finding be made that a facility that is found to meet those design and development requirements nonetheless creates adverse impacts upon real estate values and must be denied. .

COMMENT MATRIX #1
PC MEETING AUGUST 2023

RESPONSE TO COMMENTS ON PC WORKSHOP DRAFT ORDINANCE
August 4, 2023

Doc
Type*
Comment Received From: Edits
Made?
(Y/N)
Responses and References
ORD (8) The city draft’s “View Protection” language is weak and does not fully protect view impacts to individual properties and neighborhoods. Add: ++Wireless communications facilities, to every extent possible, should not be sited to create visual clutter or negatively affect important public or private views as determined by the Planning Commission.
++During the site visit, the City Planner shall annotate the survey regarding the potential view and privacy issues on neighboring lots.
++The project does not present excess visual mass or bulk to public view or to adjoining properties.
++Mitigate impacts on visual quality, circulation and ambience to the extent possible. ++Co-location is encouraged when it will decrease visual impact.

Delete: “No single parcel should enjoy a greater right than other parcels except the natural advantages of each site’s topography.”
Y & N Added the following suggestions to 17.46.040.F.1.K (View Protection). The remainder were not added due to redundancy or lack or relevance to View Protection
 Wireless communications facilities, to every extent possible, should be sited to not create visual clutter or negatively affect important public or private views as determined by the
reviewing authority
 The project does not present excess visual mass or bulk to public view or to adjoining properties
 Collocation is encouraged when it will decrease visual impact Deletion Request – Not done. This language is part of municipal code under 17.10.10 that is standard for all development projects in the City.

ORD (9) The city draft’s 250 feet spacing requirement between wireless facilities in the public-rights-of-way results in a proliferation effect of about 2 facilities per block. The city staff must do a technical analysis to determine the maximum public-rights-of-way distance between facilities that does not create an effective prohibition. e.g. Sonoma has 1500 feet
Y Spacing was changed to 500 ft. It is not possible for staff to do a meaningful technical analysis to determine the maximum publicrights-of-way distance between facilities that does not create an effective prohibition. Each carrier can make an effective prohibition claim based on its own service capabilities and circumstances and these change over time.

COMMENT MATRIX #1
PC MEETING AUGUST 2023

RESPONSE TO COMMENTS ON PC WORKSHOP DRAFT ORDINANCE
August 4, 2023

Doc
Type*
Comment Received From: Edits
Made?
(Y/N)
Responses and References
ORD (10) The city draft’s “Purpose & Findings statements” are lacking protections of Carmel-by-the-Sea’s character and safety elements in 5 areas. Include additional language:
++ The preservation of the residential character in Carmel is central to all land uses. ++ Respecting the past as a continuing legacy that challenges each citizen to preserve the City's character in spite of on-going change. ++ Preserving Carmel’s primarily residential character with business and commerce subordinate to its residential character.
++ The encroachment shall not create, extend, or be reasonably likely to lead to an undesirable land use precedent
++ SCALE. Underlying much of Carmel's design character is a respect for scale.

Scale can be defined as a relationship of size among two or more objects. In Carmel, the scale tends to be small and related to human size. The City itself is compact, its lots are small, and its streets are narrow. The character established by existing small homes and cottages reinforces this intimate size relationship. All of these contribute to a human scale and a pedestrian-friendly, built environment. ++ Designing buildings, infrastructure, and other improvements to a human scale ++ Oversized design elements make structures appear dominating and monumental.

This out-of-scale character represents a poor fit to the human form, vitiates the more intimate, rural charm and village character of Carmel-by-the-Sea and shall be avoided. ++ That the project will preserve the community character and will be compatible with the streetscape, mass, bulk and height of the surrounding neighborhood context. ++ Each site shall contribute to neighborhood character including the type of forest resources present, the character of the street, the response to local topography and the treatment of open space resources such as setbacks and landscaping. It is intended by this objective that diversity in architecture be encouraged while preserving the broader elements of community design that characterize the streetscape within each neighborhood.
++ Carmel by-the-Sea’s urban forest poses significant fuel source for fire within the Community
++ High density of structures within the Carmel residential areas and business districts among numerous trees increase the hazard
Y & N Added the following to the ordinance:
 Ensure the safe installation and maintenance of wireless facilities to protect against fire hazards made more prevalent by the City’s unique urbanized forest, topography and
accessibility.
 Preserve Carmel’s primarily residential character by
keeping business and commerce subordinate to its
residential character
 … recognizing that the preservation of the residential character in Carmel is central to all land uses…
The remaining suggestions were not added due to redundancy, or because they were not appropriate to be put in the purpose statement as they were specific design guidelines, or codes that are already captured elsewhere in the wireless regulations. Some were not relevant to wireless facilities, such as the concept of “human scale”, which has to do with architectural elements of a building meant for human habitation.

COMMENT MATRIX #1
PC MEETING AUGUST 2023

RESPONSE TO COMMENTS ON PC WORKSHOP DRAFT ORDINANCE
August 4, 2023

Doc
Type*
Comment Received From: Edits
Made?
(Y/N)
Responses and References
(cont. from previous page)
++Many buildings in the commercial district are very closely located with many building having common walls;
++Many of the commercial buildings and residential dwellings are older without fire sprinklers or fire resistant building materials;
++Of the approximately 250 commercial buildings in Carmel, more than half are
equipped with fire alarm systems, and approximately 20 percent have automatic fire
sprinkler systems.
++Most construction within Carmel contains wood; most roofs are made of combustible
materials;
++High-density development with small setbacks increase fire spread and limit effectiveness of fire fighting efforts;
++The most significant factor increasing fire risk is human proximity; ++Areas with limited access prevent containment goals;
++Coastal windstorms and hillsides promote strong gusts of wind toward the city; ++Steep slopes promote spreading of wildfire through increased speed and preheating
of vegetation;
++Risk of burning embers pushed by wind-blown wildfires from igniting building through small setbacks and vegetation;
++The village layout creates access challenges for the emergency vehicles. Many of the
roads in the residential districts are very narrow and lack adequate turnaround space for larger emergency vehicles, such as fire trucks;
++In addition to constricted access, the tightly knit community of houses and trees doesn’t provide adequate fuel breaks throughout the City; ++Another aspect of the “village” character that creates an obstacle to emergency response is lack of addresses. The lack of house numbers in response to (cont. from previous page)
COMMENT MATRIX #1
PC MEETING AUGUST 2023

RESPONSE TO COMMENTS ON PC WORKSHOP DRAFT ORDINANCE
August 4, 2023

Doc
Type*
Comment Received From: Edits
Made?
(Y/N)
Responses and References
(cont. from previous page)
emergencies such as fire, or flooding may not have a significant impact on the ability of emergency responders to find a property, as these are highly visible events.

However, in case of medical emergency, lack of the house number may delay the arrival of the medical team.
++Dry summer and fall seasons with no precipitation create ideal conditions for fire spreading;
++A combination of generous rainy season followed by dry summer can result in large amounts of vegetation for fire fuel;
++Accidents related to spark charges from overhead transmission lines have started fires, as well as embers from wood burning stoves and faulty electrical wiring; ++ aleady includedWe have 4 very high severity hazard zones within the community (Pescadero Canyon, Forest Hill Park, Del Monte Forest and Mission Trails Nature Preserve);
++As discussed in the Public Facilities and Services Element, the water supply is one of the biggest challenges for Carmel and other Monterey Peninsula Cities. The City and its emergency responders have a limited supply of water. In case of a large, regional fire incident, where adjoining cities would be also drawing on water supply, the City of Carmel may experience inadequate water supply to fight fires. (cont. from previous page)
COMMENT MATRIX #1
PC MEETING AUGUST 2023

RESPONSE TO COMMENTS ON PC WORKSHOP DRAFT ORDINANCE
August 4, 2023

Doc
Type*
Comment Received From: Edits
Made?
(Y/N)
Responses and References
CL (11) The city draft is missing “visual impact analysis from the perspectives of the properties situated in closest proximity to the location” of a proposed facility. Add a checkbox in this section from Andrew Campanelli’s ordinance:“Visual Impact Analysis A completed visual impact analysis, which, at a minimum, shall include the following:
(a) Small Wireless Facilities
For applications seeking approval for the installation of a small wireless facility, the applicant shall provide a visual impact analysis which shall include photographic images taken from the perspectives of the properties situated in closest proximity to the location being proposed for the siting of the facility, as well as those properties which would reasonably be expected to sustain the most significant adverse aesthetic impacts due to such factors as their close proximity to the site, their elevation relative to the site, the existence or absence of a “clear line of sight” between the tower location and their location.”
Y& N See addition to Type I-IV Checklist 3.1. The city may not require photos from private property to which the applicant may not have access, but language has been added requiring the applicant to attempt to obtain pictures or provide proof that they could not get permission.

CL (12) The city does not require the applicant to construct “a real-world mock-up” of the mass, scale, and height of the structure as field evidence necessary for the Planning Commission to be able to make factual determination on visual impacts to neighboring properties. Require balloon test (Campanelli ordinance) or mock-up for community meeting (Sonoma ordinance)
Y& N . Amendments made to Design Review Chapters in Municipal Code which make the City’s Story Pole Policy applicable to all wireless applications now, which will serve the same purpose as a mock-up. “Balloon tests” are a method of perceiving the height of much taller, free standing towers that is not applicable in the context of the facilities that would be applied for in the City.

CL (13) The city does not ask applicants to explore co-location of service opportunities outside of city limits before adding a new facility in Carmel as least intrusive means.

Specify applicants to plot existing and predicted co-location opportunities in a geographic radius of 45 miles from the city as co-location opportunities to provide service to the area proposed, as least intrusive means before adding a new wireless facility in Carmel. All results and data together with a report that describes how and when and how far away the applicant conducted such test(s),” so that the Planning Commission can determine the full-range of co-location opportunites a carrier has available to provide to existing and predicted facilities aready in Carmel.

Y& N We require justification analysis for deviating from the most compatible location and/or structure. We have removed the requirement to identify existing wireless facilities only within the City.

See 12.3.

For significant gap/least intrusive means we require an alternatives analysis that is not limited to City locations. See 15.2.1(c). It does not specify the mileage but 45 miles is not a viable requirement. The appropriate radius will depend on the size of the gap and the available means to fill the gap.

COMMENT MATRIX #1
PC MEETING AUGUST 2023

RESPONSE TO COMMENTS ON PC WORKSHOP DRAFT ORDINANCE
August 4, 2023

Doc
Type*
Comment Received From: Edits
Made?
(Y/N)
Responses and References
ORD (14) The city draft’s ordinance is missing “Definitions” necessary to give full explanation, distinction, and clarity to the document. ADD from Campanelli ordinance:

ADEQUATE COVERAGE; DBM; NOTICE OF EFFECTIVE PROHIBITION CONDITIONS; PROBATIVE EVIDENCE; SITE DEVELOPER; SMALL WIRELESS

FACILITY
SUBSTANTIAL EVIDENCE; TOLLING OR TOLLED
N Already have small wireless facility. The others are not necessary in the ordinance or generally are not used.

VERIZON WIRELESS
ORD A problematic new Draft Ordinance provision prefers private parcels over the right-ofway. Draft Ordinance § 17.46.040(C). This directly contradicts California Public Utilities Code Section 7901 which grants telephone corporations such as Verizon Wireless a statewide right to place their equipment along any right-of-way, including new poles. Accordingly, the City cannot deny a proposed right-of-way facility due to a preference for private parcels, nor can it require applicants to demonstrate that private parcels are infeasible or unavailable.

The justification for the private parcel preference—that it is necessary to ensure access for pedestrians, vehicles, and emergency personnel, among other motives—is lifted verbatim from the City’s code regarding sidewalk vendors. Code § 12.46.010(B).

However, those concerns are misplaced as applied to small cells in the right-of-way.

State safety regulations already require that small cell equipment be elevated on utility poles, posing no impediment to circulation or access by pedestrians and motorists.

Draft Ordinance Section 17.46.040(E)(3)(f) includes safety standards to protect access to transportation, fire hydrants and other public infrastructure along the rightof-way. New poles would have the same minimal footprint as utility poles.

Consistent with the statewide franchise to use the right-of-way granted by Section 7901, numerous California cities including San Francisco, San Jose, San Bruno and Salinas have adopted distinct wireless regulations for private property and the right-ofway, with separate permit requirements and standards. Carmel would invite legal challenges by adopting a preference for private parcels over the right-of-way. Section

17.46.040(C) must be deleted.

N The City disagrees that this is a prohibition. It is a rationale level of preference based on the reality of the physical circumstances of the City streets.

COMMENT MATRIX #1
PC MEETING AUGUST 2023

RESPONSE TO COMMENTS ON PC WORKSHOP DRAFT ORDINANCE
August 4, 2023

Doc
Type*
Comment Received From: Edits
Made?
(Y/N)
Responses and References
ORD The Draft Ordinance would subject small cells to a host of vague standards. These include a location that is “least intrusive to community character and values.” Draft Ordinance § 17.46.040(A), (B). A “stealth” design is required, defined to require a facility to “mimic or blend” with surroundings, with all equipment screened from view.

Draft Ordinance §§ 17.46.020(A)(21), 17.46.040(F)(1)(a). Such broad stealth criteria are unrealistic for small cells in the right-of-way, which are not “out-of-character” compared to other utility infrastructure such as utility poles, transformers, and utility lines.

N The City disagrees that the standards are vague or unrealistic. Per the Ninth Circuit ruling, small cells do not have to be limited to “objective” standards.

ORD In a major reversal from the original version, which required administrative design review for right-of-way facilities, the revised Draft Ordinance now requires the vague findings for conditional use permits, discretionary design review and coastal development permits. Draft Ordinance §§ 17.46.080(A)(1)(g), (h), (i). Those findings include “compatible with surrounding land uses,” “contributes to neighborhood character,” “sensitive to the natural features,” “modesty and simplicity” and other criteria inappropriate for needed utility infrastructure. Code §§ 17.58.060, 17.64.010.

Further, the referenced code findings require compliance with the General Plan, the various zone purposes and standards, and the local coastal program, all of which involve additional vague, excessive criteria.

Alone or in combination, the various vague standards could be used to deny small cells that otherwise satisfy specific criteria such as volume thresholds. For small cells, vague standards unrelated the FCC’s goal of avoiding “out-of-character deployments” are “unreasonable” and prohibitive. Federal courts have ruled that vague, generalized concerns or opinions about the aesthetics of wireless facilities do not constitute substantial evidence upon which a city can deny a permit. See City of Rancho Palos Verdes v. Abrams (2002) 101 Cal. App. 4th 367, 381.

By contrast, the Draft Guidelines provide specific direction, which benefits applicants and City decision-makers alike. Our minor suggested revisions below would ensure that the Draft Guidelines are technically feasible. The Draft Ordinance should be revised to eliminate any vague standards and findings for small cells in the right-ofway, and instead simply require compliance with the Design Guidelines.

N There is no legal requirement for administrative review for right of way facilities. An initial draft set of wireless regulations did have administrative design review, but based on public feedback the workshop draft went back to the existing Code’s approach. The City disagrees that the findings are inappropriate. The Guidelines inform the decisions on the findings.

COMMENT MATRIX #1
PC MEETING AUGUST 2023

RESPONSE TO COMMENTS ON PC WORKSHOP DRAFT ORDINANCE
August 4, 2023

Doc
Type*
Comment Received From: Edits
Made?
(Y/N)
Responses and References
ORD Draft Ordinance Section 17.46.040(E)(1) requires a “special exception” for right-of-way facilities in the R1–Residential zone that covers most of Carmel, as well as the many City historic sites and coastal sites. The exception scheme is problematic because it requires an applicant to show that denial would violate federal or state law. Draft Ordinance § 17.46.080(C). The exception findings are not based on reasonable aesthetic criteria, and they inappropriately place City officials in a quasi-judicial position. By relying on “exceptions” that would be required over and over, the City would concede that its location standards are unreasonable and preempted.*** In the right-of-way, small cells serve targeted areas with a limited coverage footprint.

Steering a small cell too far from a proposed location would leave a target coverage area underserved or unserved, constituting a prohibition of service.

Accordingly, we suggest that instead of requiring exceptions for residential rights-ofway, the City add a reasonable search distance of 500 feet for any preferred locations or structures. Section 17.46.040(E)(1) must be deleted. Sections 17.46.040(B) and (D) should be revised to allow a less-preferred location or structure if there is no preferred option “...within 500 feet along the right-of-way that is technically feasible and available.”
N The City disagrees that requiring a special exception is inappropriate or a concession that the standards are unreasonable.

CL To prove that denial would violate federal law, Item 15 of the proposed Type I-IV application checklist requires applicants to demonstrate an effective prohibition by providing information regarding coverage gaps, which the FCC found are not pertinent to small cells. Infrastructure Order, ¶ 40. Instead, the FCC determined that local requirements constitute an effective prohibition of service if they “materially inhibit” the goals of “densifying a wireless network, introducing new services or otherwise improving service capabilities.” Id., ¶ 37. The FCC emphasized that “a legal requirement can ‘materially inhibit’ the provision of services even if it is not an insurmountable barrier.” Id., ¶ 35. The hurdle of requiring a special exception to site in residential rights-of-way is one such barrier that is preempted by the FCC’s Infrastructure Order.

Y & N This section of the checklist has been updated to expand the alternative bases for an effective prohibition claim.

The city does not agree that the requirement to demonstrative a special exception was itself preempted by the FCC Order.

COMMENT MATRIX #1
PC MEETING AUGUST 2023

RESPONSE TO COMMENTS ON PC WORKSHOP DRAFT ORDINANCE
August 4, 2023

Doc
Type*
Comment Received From: Edits
Made?
(Y/N)
Responses and References
ORD 17.46.040 – General Development Standards
E(3)(d). No new pole in right-of-way that would affect existing vegetation or root structure. Portions of some Carmel rights-of-way are covered with vegetation that in many cases extends from adjacent private property. While installation of a new pole foundation may require minimal vegetation removal, a pole itself has a very small footprint. Roots of established trees can be protected by a specific standard. This provision should be replaced with a requirement that a new pole not be installed within a tree’s existing drip line.

Y Modified to protect tree roots and preserve open space/possible future tree locations.

ORD E(4). Encroachments over parcels (RF emissions). This provision attempts to regulate radio frequency emissions based on a subjective determination of whether the emissions would render a private parcel “inaccessible” or hinder future development, potentially requiring property owner consent. However, the federal Telecommunications Act clearly bars such local regulation of wireless facilities that comply with the FCC’s exposure limits. 47 U.S.C. § 332(c)(7)(B)(iv). If a licensed engineer confirms that a proposed facility will not exceed the FCC’s general population exposure limits, then the City cannot impose its own supplemental regulations pertaining to RF emissions. This reference to RF emissions must be deleted.

Y The intention was not to regulate RF emissions but to preserve existing property/development rights on private property, for example if a wireless facility is placed in ROW adjacent to a parking lot and the lot later gets developed into housing. To better express this intent, the development standard has been deleted from the ordinance and new language has been added to the standard COA related to compliance with applicable laws. See Exhibit C Standard Conditions of Approval, revised Item 11.

ORD/DG F(1)(b). Overall height. This would limit the height of any facility to 10 feet over mature trees in the vicinity or zone height limits, whichever less. On private property, this could prohibit facilities on rooftops already reaching the zone height limit. Tree screening is unnecessary because the Draft Guidelines already require full concealment. Draft Guidelines § I(B)(1). In the right-of-way, state safety rules require that pole-top antennas be elevated six feet above electric supply conductors, in which case the proposed height limits would be technically infeasible. Public Utilities Code General Order 95, Rule 94.4(C). With greater height, antennas provide a larger coverage footprint, and fewer facilities are needed to serve an area. For private property, we suggest allowing antennas to extend up to 10 feet over the height of the existing building or the zone height limit, whichever greater. For the right-of-way, we suggest allowing an antenna to extend up to 10 feet over the height of an existing utility pole, to accommodate the antenna plus the required six-foot separation distance.

Y Modified to let view impacts rules guide, rather than limiting simply because of height.

Generally, allow 10’ over height for district and in right-of-way, existing utility poles.

COMMENT MATRIX #1
PC MEETING AUGUST 2023

RESPONSE TO COMMENTS ON PC WORKSHOP DRAFT ORDINANCE
August 4, 2023

Doc
Type*
Comment Received From: Edits
Made?
(Y/N)
Responses and References
ORD F(1)(f). Trees and landscaping. This would prohibit right-of-way facilities within a tree’s drip line, but that should not apply to facilities placed on existing/replacement utility poles where tree branches have grown nearby. Public utility companies may prune branches as needed for safety without compromising a tree’s health, obtaining a permit if needed, and a tree can provide screening of small cell accessory equipment.

The first sentence should be revised to apply only to new poles, but not to facilities on existing/replacement poles.

Y Wording change – addressed new poles and equipment
ORD F(1)(k). View protection. This requires a location and design that preserves significant coastal views from the right-of-way while “respecting” views from neighboring parcels, referencing “private rights to views.” This is another vague standard that could be used to deny a small cell that satisfies the Design Guidelines and is not “out-ofcharacter” compared to existing right-of-way utility infrastructure. Curtailing antenna height to satisfy this provision could be technically infeasible by compromising signal propagation. Ultimately, this standard would be unreasonable. The FCC’s Infrastructure Order preempts both City regulations and the referenced California Coastal Act. This provision should be deleted.

N A site might meet all design guidelines and then still fail the view impact test but coastal view protection is a well-documented and important aesthetic concern not only for Carmel but statewide under the Coastal Act. The concerns expressed about implementation are speculative. The City does not agree that state and local laws protecting coastal views are facially unlawful and preempted by the FCC Small Cell Order as Verizon appears to suggest.

ORD 17.46.050 – Wireless Application Types and Submittal Requirements B(4). Other permits and reviews that may be required. This provision does not address the encroachment permits required for right-of-way facilities. The findings for an encroachment permit include vague, discretionary determinations such as “public interest” and “enjoyment” as well as “justifiable need.” Code § 12.08.060. However, encroachments for wireless facilities are unique because Public Utilities Code Section 7901 grants telephone corporations a statewide right to place their equipment along any right-of-way with no requirement to justify the need for a facility. An applicant could secure zoning permits only to be denied an encroachment permit due to these vague standards of the City’s streets and sidewalks code. The Draft Ordinance should streamline the encroachment permit review process by eliminating vague code standards for wireless facilities in the right-of-way.

Y The encroachment permit process has been modified to eliminate duplicative reviews. Encroachment permit will be considered at the same time as the Use Permit by the Planning Commission. See conforming amendments inSection 4 of Ordinance – 12.08.050 and

12.08.060
COMMENT MATRIX #1
PC MEETING AUGUST 2023

RESPONSE TO COMMENTS ON PC WORKSHOP DRAFT ORDINANCE
August 4, 2023

Doc
Type*
Comment Received From: Edits
Made?
(Y/N)
Responses and References
ORD 17.46.060 – Application Review Procedures
D. Director denial without prejudice due to failure to respond to notice of incompleteness. The City cannot terminate an application if an applicant does not respond to a notice of incomplete application (“NOI”) within 120 days (or any period of time). FCC rules plainly state that the Shot Clock restarts or resumes running on the date an applicant responds to a timely NOI. 47 C.F.R. §§ 1.6003(d)(1), (d)(3)(ii); 47 C.F.R. § 1.6100(c)(3)(ii). FCC rules do not allow early, unilateral termination. The City would lack substantial evidence to deny on this basis. This provision should be deleted.

N The City would not be denying the application on the merits. The purpose of this provision is to give the City the administrative option to terminate inactive, stale applications, without prejudice to the applicant re-applying. Keeping an application “active” indefinitely presents a risk that the City will be asked to make a decision based on information that hase become dated and inaccurate with the passage of time. This provision is not inconsistent with the FCC rules; the FCC shot clocks were adopted because the industry sought to expedite application processing. Given that application requirements must be published in advance and shot clocks are as short as 60 days, giving an applicant 120 days to respond to a NOI is reasonable.

ORD 17.46.070 – Public Notices, Public Hearings, Decision Notices and Appeals A(1), D(1), E(1). Notice and appeals for eligible facilities requests. These sections apply to Type V eligible facilities requests to modify facilities, but there is no reason to require public notice or allow public appeals of these applications. For eligible facilities requests, the City may only consider the FCC’s “substantial change” criteria. 47 C.F.R. §§ 1.6100(b)(7), 1.6100(c). Because these criteria are objective, the FCC emphasized that approval of eligible facilities requests is “obligatory and non-discretionary.” See In Re: Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, Etc., 29 FCC Rcd.12950, ¶¶ 188-89, 227, 232 (FCC October 17, 2014) (the “Spectrum Act Order”). These provisions should be revised to eliminate public notice and public appeals for Type V eligible facilities requests. Only an applicant should receive notice of a decision, with a right to appeal a denial.

N Federal law dictates result (must approve EFR if meet criteria) but does not dictate the process.

COMMENT MATRIX #1
PC MEETING AUGUST 2023

RESPONSE TO COMMENTS ON PC WORKSHOP DRAFT ORDINANCE
August 4, 2023

Doc
Type*
Comment Received From: Edits
Made?
(Y/N)
Responses and References
ORD 17.46.080 – Findings Required
B(2)(c). Denial finding for Type V eligible facilities requests. The City cannot deny an eligible facilities request due to health and safety factors, but the FCC allows a city to “condition” approval on that basis, as provided by the following provision, Draft Ordinance Section 17.46.080(B)(3). See Spectrum Act Order, ¶ 202. At the zoning stage, the Planning Division should only confirm that a proposed modification causes no “substantial change,” while conditioning approval on applicable health and safety codes to be considered by the Building Safety Division in its review of a building permit. This finding should be deleted.

N Para 202 does not say that the City cannot deny EFRs due to health and safety factors. It says cities can require compliance with generally applicable health and safety laws and can condition on compliance. That is broader than building permit review—e.g. noise ordinance compliance review would not be done for building permit.

DG I – Facilities on Parcels
B(2). Height limitations (building-mounted facilities). Similar to the Draft Ordinance, this limits building-mounted facilities to zone height limits, which could prohibit rooftop antennas. This provision should be revised to allow an additional 10 feet over an existing building or the zone height limit, whichever greater, if a facility is fully screened as required by Section I(B)(1).

Y Design Guidelines updated to allow additional height in these circumstances up to 10 feet over allowable building height limit with screening
DG II – Facilities in the Right-of-Way
Verizon Wireless has deployed small cells on utility poles and new stand-alone poles in residential neighborhoods throughout California. We have attached photosimulations of three small cell designs currently under consideration as options to improve service in the western Carmel area, as well as a plan elevation of a typical small cell on a utility pole which complies with PG&E rules and General Order 95.

A(2)(2). New pole designed to resemble existing poles. Given that almost all poles in Carmel rights-of-way are wood utility poles, this likely would require a new pole for a small cell to be a wood pole as well. While that is possible, it may not be aesthetically appropriate in certain areas. The City should consider allowing a new metal pole where preferred. For metal poles, network equipment can placed in a shroud at the base of the pole, on the side of the pole, or in a ground cabinet.

Y Modified to let the ordinance and design guidelines control the design of the new stand-alone pole. Requiring only wood poles may miss opportunity for stealth.

COMMENT MATRIX #1
PC MEETING AUGUST 2023

RESPONSE TO COMMENTS ON PC WORKSHOP DRAFT ORDINANCE
August 4, 2023

Doc
Type*
Comment Received From: Edits
Made?
(Y/N)
Responses and References
DG B(1). Antenna placement. To be reasonable per the FCC’s Infrastructure Order, antenna standards must be technically feasible for new and emerging technologies by accommodating the antenna and radio models available from manufacturers. In addition to the low-band frequencies long in use, Verizon Wireless recently licensed new mid- and high-band frequencies from the FCC. These require different equipment. Accordingly, certain small cells may involve several types of antennas, and up to three of each, facing different directions where they provide service. Some facilities include several small panel antennas mounted on a cross-arm attached to the side of a pole. Accordingly, antennas may be placed on top and/or on the side of a pole. For these reasons, this provision should not prefer “poletop” antennas, but should allow antennas both above and on the side of a pole, or be deleted.

Y Changed to not prefer “top” of pole to allow for more flexibility in antenna placement to ensure the “least intrusive” and most compatible design based on site-specific circumstances.

DG B(2). Antenna concealment. This requires all antennas to be placed within a “unified shroud to the extent technically feasible.” A typical 4G “cantenna” is already manufactured with its own concealing shroud. Shrouding is infeasible for mid- and high-band antennas because it impedes their signal propagation. Further, mid- and high-band antennas are small in size, and multiple small panel antennas pose less visual impact than a shroud covering them all, which only adds bulk. As explained above, antennas may not all be placed in the same location on a pole. This shrouding provision could be technically infeasible, and it should be stated as an encouragement, but not a requirement.

N Already states to extent technically feasible
COMMENT MATRIX #1
PC MEETING AUGUST 2023

RESPONSE TO COMMENTS ON PC WORKSHOP DRAFT ORDINANCE
August 4, 2023

Doc
Type*
Comment Received From: Edits
Made?
(Y/N)
Responses and References
DG C(1). Accessory equipment placement preference. This prefers accessory equipment in an underground vault, rather than mounted on a pole or placed in a ground cabinet, with a narrow exception for technical feasibility or compatibility. However, blanket undergrounding requirements are unreasonable in two ways. First, undergrounding generally is technically infeasible due to sidewalk space constraints or Carmel’s lack of sidewalks along many streets (where parked vehicles could block vault access), plus utilities already routed underground and operational impacts of required cooling and dewatering equipment. Second, small cell accessory equipment is not “out-ofcharacter” on the side of utility poles that support other utility infrastructure (see attached photosimulations and plans of example designs for utility poles). Rather than imposing hurdles on applicants to demonstrate infeasibility, the City should allow a reasonable volume of associated equipment on a pole. The City should allow up to 15 cubic feet of associated (non-antenna) equipment on the side of a utility pole, or six cubic feet on a new stand-alone pole, before undergrounding is considered.

Y Allowing a minimal volume of pole mounted equipment (6 cu. ft) would be consistent with the appearance of typical utility poles and minimally visually intrusive
CL 2.2, 2.4. Site development plan, site survey (Type V). For eligible facilities requests, the City can only request information that is reasonably related to determining whether a proposed modification causes a substantial change to a wireless facility. 47 C.F.R. §

1.6100(c)(1). Section 2 of the Type V application checklist, Project Plans, asks for irrelevant information that is not pertinent to the FCC’s “substantial change” criteria.

For example, Section 2.2 requests depiction of non-wireless improvements elsewhere on the property (e.g., driveways, gutters, trees) or within 500 feet. Likewise, Item 2.4 seeks irrelevant survey information, such as traffic lanes, non-wireless utilities, mailboxes and trees within 75 feet, among numerous other items. A City notice of incomplete based on failure to provide such irrelevant information would not toll the Shot Clock. Ibid. For the Type V application, Section 2.2 and 2.4 should request only that information on plans that is relevant to determining if there will be a “substantial change” to an existing wireless facility.

Y Some items were amended/removed from section 2.4 of checklist that are not relevant to the review of a type V application, including:
 Removed: Show the location of benches, trash cans, mail boxes, kiosks, and other street furniture;
 Removed: Show approximate topographical contour lines with elevations called out;
 Removed: Show all structures or improvements within the public right-of-way within any block partially or entirely occupied by the project and any elements thereof;
 Removed: Requirement for wet stamp and wet signature from preparer
COMMENT MATRIX #1
PC MEETING AUGUST 2023

RESPONSE TO COMMENTS ON PC WORKSHOP DRAFT ORDINANCE
August 4, 2023

Doc
Type*
Comment Received From: Edits
Made?
(Y/N)
Responses and References
CL 2.2, 2.5. Depiction of fiber backhaul. On both checklists, these items require “depictions of the applicant’s plan for electric and data backhaul utilities” and a fiber network plan, even if fiber backhaul is provided by a third party. However, fiber networks are beyond the scope of a “small wireless facility” as defined by the FCC.

Fiber is regulated differently, and it is provided by other companies under distinct permits or franchises. Small cell permittees should be responsible for only their own equipment, and fiber companies cannot be subject to the conditions imposed on wireless providers. For Type V eligible facilities requests, information regarding another company’s fiber backhaul is irrelevant to the “substantial change” criteria, which pertain to the modified wireless facility. These provisions should be replaced with a requirement to show the applicant’s own fiber lines only up to the point of connection or “meet-me point,” if relevant.

Y The requirement has been removed for Small Wireless Facility applications. For EFRs, this could be relevant to substantial change criteria (excavation outside the “site”) so not removed.

CL 11. Project purpose and technical objectives (Type I-IV). For right-of-way facilities, the City cannot require applicants to provide this information regarding the need for a facility because Public Utilities Code Section 7901 grants telephone corporations a statewide right to use any right-of-way. Further, the FCC determined that small cells are needed to densify networks and improve service, which are Verizon Wireless’s objectives in placing small cells in Carmel. As noted above, the FCC disfavored dated service standards based on “coverage gaps” and the like, so the coverage/capacity information sought by this submittal requirement is preempted. Infrastructure Order, ¶¶ 37-40. This submittal requirement should be deleted, or at a minimum, it should not apply to right-of-way facilities.

N This provision is not asking for a demonstration of need; it is simply asking for the purpose of the project. The title has been changed.

CL 12.3.1. Justification for using less-preferred locations/structures (Type I-IV). We emphasize our suggestion above that the City adopt a 500-foot search distance for any preferred locations or structures in the right-of-way. In that case, an applicant would simply submit information confirming that preferred options (if any, generally other existing poles) are technically infeasible, consistent with the FCC’s direction regarding “reasonable” aesthetic criteria. The request for information regarding existing wireless facility locations and a “search ring” would be unnecessary. This section should be revised to require a demonstration of technical infeasibility for any preferred locations or structures within 500 feet along the right-of-way.

N The City prefers the approach outlined in the documents.

COMMENT MATRIX #1
PC MEETING AUGUST 2023

RESPONSE TO COMMENTS ON PC WORKSHOP DRAFT ORDINANCE
August 4, 2023

Doc
Type*
Comment Received From: Edits
Made?
(Y/N)
Responses and References
CL 15. Special exception request (Type I-IV). This would be required in most cases, because Draft Ordinance Section 17.46.040(E)(1) requires an exception for right-ofway facilities in all R1–Residential zones and certain other locations. However, the exception requirement “materially inhibits” small cell deployments, as explained above. An applicant could simply submit a simple statement that a proposed small cell will densify its network and improve service, citing the Infrastructure Order. The City should not require exceptions for certain locations.

N The City does not agree with Verizon’s unsubstantiated claim that simply requiring a special exception in certain circumstances is itself a material inhibition of service.

COA C(1). Permit term for eligible facilities requests. This would curtail the term for a modification permit to that of the existing facility’s permit, even if it was granted to a different carrier. This contradicts California Government Code Section 65964(b), which states that permit durations of less than ten years are generally presumed to be unreasonable, absent public safety or substantial land use reasons. As noted, FCC rules allow the City to condition approval on applicable safety regulations (which do not include permit terms), and a modification that causes no “substantial change” does not pose a substantial land use impact. This condition must be deleted.

N The City does not agree with Verizon’s interpretation of state law, this is consistent as there are substantial land use reasons for the EFR permit modifying the existing facility to end when the permit term for the existing facility ends
COA C(2). Permit subject to conditions of existing permit. The City cannot subject an eligible facilities request to existing permit conditions that are not related to health and safety. Instead, the permit for an eligible facilities request should clearly state any appropriate conditions of approval, rather than referencing prior permit conditions.

This condition should be deleted.

N The City does not agree with Verizon’s narrow interpretation of FCC EFR orders.
*Doc Type Key:
 ORD = Ordinance
 DG = Design Guidelines
 CL = Application Checklist
 COA = Conditions of Approval
COMMENT MATRIX #1
PC MEETING AUGUST 2023
RESPONSE TO NEW COMMENTS August 23, 2023 Page 1 of 27

DOC (ORD/DG/ CL/COA)

COMMENT EDITS
MADE? (Y/N)

RESPONSE AND REFERENCES

INDUSTRY COMMENTS
#1 ORD
AT&T 1. Obstructing Right-of-Way Siting. The city’s proposed regulations erect a series of obstacles to placing wireless facilities in the public rights-of-way, which will violate the law in almost all situations. Section 17.46.040(C) specifically discourages all PROW sites. Section 17.46.040(E)(1) prohibits PROW sites throughout a large portions of the city, including all PROW sites in single-family residential zoning districts and all PROW sites along and near the coast. A review of the city’s Zoning Map shows this restriction amounts to a very significant prohibition across the vast majority of the city. The only way around these prohibitions under the city’s proposal is to obtain a special exception. But that process requires burdensome proof for each and every site, using the city’s improperly limited types of evidence, and the restriction will violate state and federal laws in most (if not all) circumstances.

These restrictions are also unlawful as AT&T and other telecommunications providers have the state law franchise right to construct poles and install lines and other necessary equipment in the public rights-of-way, so long as doing so does not incommode the public use of the roads and highways. Cal. Govt. Code Section 7901. While AT&T’s broad right to place wireless facilities in the PROW is subject to reasonable and nondiscriminatory aesthetic requirements, those restrictions must be narrowly tailored. The city cannot simply create a process that renders impossible or nearly impossible every PROW location on the broad basis that the city prefers wireless facilities elsewhere.

Moreover, the city can only apply reasonable time, place, and manner restrictions on PROW placements “to all entities in an equivalent manner.” Cal. Govt. Code Section 7901.1(b). The city cannot, therefore, impose restrictions on wireless facilities that do not apply to other PROW users. Given the existence of vertical infrastructure in the PROW throughout the city, the city must abandon its proposed provisions obstructing deployments of wireless facilities in wide swaths of the city. Beyond the legal problems with this approach, it does not make practical sense to prohibit low-profile wireless facilities in the PROW where there already is a plethora of utility infrastructure.

N No changes to preferences are warranted based on these comments as discussed further below. AT&T and Verizon object to the provisions discouraging facilities in PROW. Verizon made similar comments in response to the prior draft. T-Mobile does not object – though they brought and lost the seminal case that AT&T and Verizon claim supports their positions. Previously we explained the outside ROW preference is a rationale level of preference based on the reality of the physical circumstances and spatial limitations of the City streets.

AT&T overstates the limitations on local authority under state law and misinterprets the scope of PUC 7901 and 7901.1. PUC 7901.1 only addresses conditions of accessing ROW for construction. PUC 7901’s requirement that telephone installations be placed “in such as manner and at such points as not to incommode the public use" addresses regulation of permanent installations.

Aesthetics can be considered under 7901 per T-Mobile
v. San Francisco, 438 P.3d 239, 249 (2019) (“San Francisco”);see also Sprint PCS Assets, L.L.C. v. City of Palos VerdesEstates, 583 F.3d 716, 722 (9th Cir. 2009) (“Palos VerdesEstates”) (construing broadly the meaning of “incommode,”which means to “subject [the public use] to inconvenience ordiscomfort; to trouble, annoy, molest, embarrass, inconvenienceor [t]o affect with inconvenience, to hinder, impede, obstruct (anaction, etc.)”) (quotes omitted).

COMMENT MATRIX #2
PC MEETING AUGUST 2023
RESPONSE TO NEW COMMENTS August 23, 2023 Page 2 of 27

DOC (ORD/DG/ CL/COA)

COMMENT EDITS
MADE? (Y/N)

RESPONSE AND REFERENCES
Rather than encouraging specific types of deployments, the city’s proposed regulations invite disputes. They will prevent city residents, businesses, and visitors from reliable access to personal wireless services. There is no reason for this; the city should delete these restrictions. The city’s proposal already requires careful placements of safe and stealth facilities.

AT&T recommends, instead, that the city come up with preferred design criteria that it will accept in the PROW throughout the city, including near the coast and in residential areas. One common way to do so in a win-win fashion is to implement a pre-approved design process. Such a process will not only help expedite needed deployments, it incentivizes applicants to propose pre-approved designs. AT&T would be happy to suggest language to incorporate such a process in the proposed ordinance or proposed design guidelines. VERIZON: The Preference for Private Parcels over the Right-of-Way Violates California Public Utilities Code Section 7901.

As explained in our prior letter, the preference for private parcels over the right-of-way directly contradicts California Public Utilities Code Section 7901, which grants telephone corporations such as Verizon Wireless a statewide right to place their equipment along any right-ofway. Draft Ordinance § 17.46.040(C). In its response to public comments, City staff did not dispute the violation of Section 7901, and simply wrote that the preference is “based on the reality of the physical circumstances of the City streets.” However, City streets are already lined with utility poles supporting telephone and other utility equipment, and the City can exercise reasonable aesthetic discretion over the appearance of right-of-way facilities.

For over a century, the California Supreme Court has confirmed that Public Utilities Code Section 7901 grants telephone corporations a statewide franchise right to place telephone equipment in the right-of-way without charge. See Western Union Tel. Co. v. Hopkins, 160 Cal. 106, 123 (Cal. Sup. Ct. 1911) (statute grants “exclusive occupation of portions of the streets...free of charge”); Pacific Tel. & Tel. Co. v. City & Cty. of San Francisco, 51 Cal.2d 766, 771 (Cal. Sup. Ct. 1959) (statute “gives a franchise from the state to use the public highways for the prescribed purposes without the necessity for any grant by a subordinate legislative body”); T-Mobile West LLC v. City City aesthetic rules for permanent installations must be reasonable but AT&T is wrong that 7901.1(b) applies. Their alleged interpretation was firmly rejected by the Cal. Sup Ct in San Francisco case: “Contrary to plaintiffs’ argument, construing section 7901.1 in this manner does not render the scheme incoherent. It is eminently reasonable that a local government may: (1) control the time, place, and manner of temporary access to public roads during construction of equipment facilities; and (2) regulate other, longer term impacts that might incommode public road use under section 7901. Thus, we hold that section 7901.1 only applies to temporary access during construction and installation of telephone lines.” Verizon likewise provides a misleading suggestion about what the San Francisco case stands for. The quoted text Verizon references is not a court statement of the law but rather a description of the San Francisco ordinance that was challenged. Further, we disagree with Verizon’s materially inhibits argument. Wireless carriers go on private property all the time. In some states they have to pay to use ROW. The preference here is a valid exercise of regulatory authority over aesthetics and safety. Regulating design and location of development is a fundamental police power, which PUC 7901 does not preempt. In San Francisco case, court noted: “Municipalities may surrender to the PUC regulation of a utility’s relations with its customers (§ 2901), but they are forbidden from yielding to the PUC their police powers to protect the public from the adverse impacts of utilities operations (§ 2902).Consistent with these statutes, the PUC’s default policy is one of deference to COMMENT MATRIX #2
PC MEETING AUGUST 2023
RESPONSE TO NEW COMMENTS August 23, 2023 Page 3 of 27

DOC (ORD/DG/ CL/COA)

COMMENT EDITS
MADE? (Y/N)

RESPONSE AND REFERENCES
and County of San Francisco, 6 Cal.5th 1107, 1122 (Cal. Sup. Ct. 2019) (“Any wireless provider may construct telephone lines on the City’s public roads so long as it obtains a permit, which may sometimes be conditioned on aesthetic approval”). State law is long settled on this matter.

The federal Telecommunications Act neither preempts Section 7901 nor protects a preference for private property. Verizon Wireless would challenge any denial based on that preference, claiming a violation of Section 7901 and a prohibition of service under federal law. The City could not prevail under either federal prohibition standard. Under the Ninth Circuit standard, private property could not be the “least intrusive means” to fill a service gap, because the “least intrusive” standard must be based on applicable local regulations, and Section 7901 preempts any preference for private property.

Under the FCC standard, a preference for private parcels would “materially inhibit” service improvements in part by imposing burdensome requirements. For example, forcing a telephone corporation to relocate to private property would require a lease, payments and restrictive terms not required for the right-of-way. That would increase costs of deployment and inappropriately involve private landowners in the site selection process and ongoing operation of a facility.

The federal Telecommunications Act neither preempts Section 7901 nor protects a preference for private property. Verizon Wireless would challenge any denial based The FCC’s “materially inhibit” standard is based on two Telecommunications Act provisions barring a prohibition of service. Infrastructure Order, ¶¶ 36, 82. One of these, Section 253(c), reserves the authority of state governments to manage the public rights-of-way, which the FCC found “includes any conduct that bears on access to and use of those ROW.” 47 U.S.C. § 253(c); Infrastructure Order, ¶ 94. Through Section 7901, California has long granted telephone corporations a statewide right to use the rightof-way with no local franchise requirement.

In sum, the City cannot justify a preference for private property over the right-of-way, which clearly violates state law and must be stricken from the Draft Ordinance. Draft Ordinance Section 17.46.040(C) must be deleted.
municipalities in matters concerning the design and location of wireless facilities.” The court also pointed to CPUC GO 159-A (a CPUC general order deferring to local decision-making on wireless siting) which itself “acknowledges that local citizens and local government are often in a better position than the [PUC] to measure local impact and to identify alternative sites. Accordingly, the [PUC] will generally defer to local governments to regulate the location and design of cell sites.. . .” (PUC, General order No. 159-A (1996)p. 3 (General Order 159A), available at <http://docs.cpuc.ca.gov/PUBLISHED/Graphics/611.PDF> [as of April 3, 2019].) The exception to this default policy is telling: the PUC right to preempt local decisions about specific sites “when there is a clear conflict with the [PUC’s] goals and/or statewide interests.” (General Order 159A, supra, at p. 3.) In other words, generally the PUC will not object to municipalities dictating alternate locations based on local impacts,13 but it will step in if statewide goals such as “high quality, reliable and widespread cellular services to state residents” are threatened.” COMMENT MATRIX #2
PC MEETING AUGUST 2023
RESPONSE TO NEW COMMENTS August 23, 2023 Page 4 of 27

DOC (ORD/DG/ CL/COA)

COMMENT EDITS
MADE? (Y/N)

RESPONSE AND REFERENCES
#2 ORD
AT&T 2. Subjective, Improper, and Impossible Special Exception Requirements. Proposed Section 17.46.080(C) defines how an applicant can pursue a special exception. The city needs to eliminate or rethink its special exception process, especially since it will likely be triggered by the vast majority of wireless siting applications. As an initial matter, a wireless provider should not be required to demonstrate with each and every application that the city’s prohibitions and preferences will violate state and federal laws. Combined with the proofs required under the city’s proposed application checklists, the burden of the required findings for a special exception are excessive to the point of prohibition. And as to the specific data the city demands as proof of effective prohibition (for each and every PROW site, among others), the city cannot demand specific types of data or specific forms of proof. A wireless provider may be materially inhibited from providing service in many ways, and its proofs will come in various forms depending on the specific nature of its needs. VERIZON: The City Should Not Require “Special Exceptions” to Locate Small Cells in Residential Rights-of-Way.

Requiring a “special exception” for right-of-way facilities in the R1–Residential zone as well as the City’s many historic and coastal sites would impose burdensome requirements that “materially inhibit” service improvements. Draft Ordinance § 17.46.040(E)(1). Given that most of Carmel is zoned residential, this “exception” generally would be the rule. To secure a “special exception,” applicants would need to prove that denial of facility would violate federal and/or state law, and submit evidence regarding coverage gaps or service improvements. However, the City could disregard an applicant’s legal rights and/or network engineering needs, and deny the exception request.

We previously suggested that, instead of requiring “special exceptions” for certain discouraged locations, the City should allow them if there is no technically feasible preferred location within 500 feet along the right-of-way. In the alternative, the City could eliminate the “special exception” requirement for R-1 zone rights-of-way and other sites. That would still leave special exceptions available for truly exceptional deviations from other standards, similar to a variance. Draft Ordinance Section 17.46.040(E)(1) should be deleted.

N and Y No changes are warranted to the text or scope of the existing exceptions based on comments from AT&T and Verizon. The City disagrees that requiring a special exception and proof is inappropriate or rises to the level of a prohibition. AT&T’s suggestion that the City cannot require specific kinds of proof contradicts the directive of the FCC shot clock orders that cities delineate application requirements in advance. However, language is proposed to address T-Mobile’s suggestion for allowing minor deviations in limited circumstances. T-Mobile’s language and suggested placement in a different section of the ordinance (which appears below in T-Mobile’s redlines list) was not accepted. Proposed below is a change to 17.46.080.C, modeling the minor deviations on an existing concept in the Carmel’s municipal code17.58.060 which allows approval of deviations from design guidelines that do not have negative aesthetic consequences.

COMMENT MATRIX #2
PC MEETING AUGUST 2023
RESPONSE TO NEW COMMENTS August 23, 2023 Page 5 of 27

DOC (ORD/DG/ CL/COA)

COMMENT EDITS
MADE? (Y/N)

RESPONSE AND REFERENCES
T-MOBILE 1. Deviation from Design Standards
Currently, the existing draft Ordinance lacks a provision for applicants to seek limited exceptions from the prescribed design standards. For example, Section 17.46.040(F)(1)(b) imposes a 10‐foot height restriction on wireless facilities above the underlying zoning district. Unlike conventional land uses, wireless antennas have distinct height requirements. The current height limitation offers only a marginal increase above the underlying zoning district, but situations may arise where additional height is essential for maintaining antenna separation in cases of colocation or ensuring clearance from nearby obstacles like trees or structures.

Strict height caps might inadvertently lead to the construction of new facilities, a result contrary to the code's intent. A limited exception process would provide the Planning Commission with flexibility to allow deviations that achieve a superior aesthetic result than could be achieved with strict compliance to the design standards.

T‐Mobile suggests incorporating a limited exception process, as proposed in the attached redline, within Section 17.46.040(F)(3).
#3 CL
VERIZON: The Submittals Required to Show that Standards “Materially Inhibit” Service Improvements Cannot Include Coverage Gap Information. The revised Wireless Facility Application Checklist Type I-IV now addresses a potential “materially inhibit” claim for applicants seeking a “special exception” to unreasonable Draft Ordinance standards. Checklist § 15.2.2. However, two of the required items—propagation maps and drive test data—are pertinent only to a claimed coverage gap.

The FCC ruled that coverage gaps are irrelevant to the “materially inhibit” standard for a prohibition of service. Infrastructure Order, ¶¶ 38-40. Instead, the FCC determined that local requirements constitute an effective prohibition of service if they materially inhibit the goals of N Propagation maps are requested as evidence to demonstrate the applicant’s claim whether it is that a proposed facility will densify the applicant’s network, introduce new services, or otherwise improve service capabilities. Contrary to the comment, drive test data is not mandatory unless a significant gap claim is being made.

COMMENT MATRIX #2
PC MEETING AUGUST 2023
RESPONSE TO NEW COMMENTS August 23, 2023 Page 6 of 27

DOC (ORD/DG/ CL/COA)

COMMENT EDITS
MADE? (Y/N)

RESPONSE AND REFERENCES
“densifying a wireless network, introducing new services or otherwise improving service capabilities.” Id., ¶ 37.

Because the FCC has clearly specified three different tests for showing that local requirements “materially inhibit” service improvements, the City cannot impose its own additional tests. At a minimum, the propagation map and drive test submittals must be deleted from Section 15.2.2 of the checklist. In the alternative, the City could simply request that an applicant submit information confirming that a proposed facility will densify its network, introduce new services, or otherwise improve service capabilities. #4 ORD
AT&T 2. (CONT’D) In addition, the city’s subjective aesthetic requirements are unreasonable (and therefore unlawful) because they make it impossible for providers to predict how to comply with the city’s requirements, which the FCC specifically found results in an effective prohibition under the TCA.13 AT&T echoes Verizon’s comment that the city should revise its proposed regulations to provide that compliance with objective criteria under the proposed design guidelines is prima facie evidence of compliance under the proposed ordinance.

VERIZON: Vague Visual Impact and View Protection Standards Could Lead to Denial of Small Cells that Satisfy the Design Guidelines.

A proposed small cell could satisfy the City’s proposed Design Guidelines, yet be denied due to the various visual impact standards of the Draft Ordinance and the code’s required permit findings. The Draft Ordinance requires a “stealth” design, meaning a facility must “mimic or blend” with an underlying structure (e.g., a utility pole) as well as the surroundings (homes, streetscapes). Draft Ordinance §§ 17.46.020(A)(20), 17.46.040(F)(1)(a). Findings for approval of design review in the R1 zone include “contributes to neighborhood character,” “sensitive to the natural features,” and “modesty and simplicity.” Municipal Code § 17.58.060(C). Use permit findings include “compatible with surrounding land uses.” Municipal Code § 17.64.010(A).

N The City disagrees that the standards are vague or unrealistic.

The City has the right to apply reasonable discretion. Per the Ninth Circuit ruling regarding the Small Cell Order, aesthetic requirements for small cells do not have to be limited to “objective” standards. The court struck that requirement and recognized that subjective standards are not out of place in zoning regulation. The City disagrees that the findings are inappropriate. The Guidelines inform the decisions on the findings. The concerns expressed about implementation are speculative.

COMMENT MATRIX #2
PC MEETING AUGUST 2023
RESPONSE TO NEW COMMENTS August 23, 2023 Page 7 of 27

DOC (ORD/DG/ CL/COA)

COMMENT EDITS
MADE? (Y/N)

RESPONSE AND REFERENCES
Additionally, the Draft Ordinance view protection standard, which already required applicants to “respect views enjoyed by neighboring parcels,” has been expanded to forbid “excess visual mass or bulk,” “visual clutter,” and designs that “negatively affect important public or private views as determined by the reviewing authority.” Draft Ordinance § 17.64.040(F)(1)(k).

These visual and view impact standards are vague compared to the specific criteria in the proposed Design Guidelines, which provide clear direction to applicants so they can design compliant facilities. The various vague standards would “materially inhibit” service improvements if used to deny small cells that satisfy the Design Guidelines and are not “out-of-character” compared to other right-ofway utility infrastructure. That would constitute an unlawful prohibition of service according to the FCC’s Infrastructure Order.

The Draft Ordinance grants the Planning Commission authority to develop the Design Guidelines consistent with “generally applicable design standards contained in this ordinance.” Draft Ordinance § 17.64.010(F)(2). We suggest revising Section 17.64.010(F)(2) to confirm that compliance with the Design Guidelines demonstrates prima facie compliance with the various visual impact and view protection standards of the Draft Ordinance and the Municipal Code’s permit findings #5 ORD
AT&T 3. Shot Clock Problem With Submittal Appointments. Proposed Section 17.46.050(B)(3) provides that applications for wireless facilities must be submitted during pre-scheduled appointments. The city should eliminate this requirement in order to avoid inadvertently violating the FCC’s shot clock. The FCC’s regulations provide the city with specific timeframes to review wireless facility applications for completeness and to take final actions on applications. The FCC has also made clear that localities may not delay commencement of the shot clock by imposing pre-submittal requirements.14 Thus, under the city’s proposed process, the shot clock would commence on the date the applicant requests to schedule the appointment.

This not only cuts into the city’s overall review timeframe, it may, in many instances, eliminate the city’s ability to toll a shot clock for incompleteness. For example, if a pre-submittal appointment Y and N AT&T and T-Mobile say they will claim shot clock starts upon request for application appointment. The City believe the application appointment procedure is a convenience for the city and applicants and is not uncommon in smaller jurisdictions with limited staff. However, to eliminate these types of arguments being raised in future, changes to the language are proposed to allow city to establish preset application submittal windows instead. What this means is there will be less flexibility to arrange a submittal time convenient to applicants, and if a couple of applicants show up during the window, one may have to wait for the other to complete its submittal review before being served.

COMMENT MATRIX #2
PC MEETING AUGUST 2023
RESPONSE TO NEW COMMENTS August 23, 2023 Page 8 of 27

DOC (ORD/DG/ CL/COA)

COMMENT EDITS
MADE? (Y/N)

RESPONSE AND REFERENCES
for a small wireless facility is set more than 10 days after the request, the city’s 10-day timeframe for tolling due to incompleteness will have passed before it has the chance to begin its review. While AT&T will certainly work with the city to provide needed materials in a timely manner, the city would be much better served by removing this problem from the proposed ordinance.

AT&T 4. EFR Shot Clock Issue. AT&T recommends the city eliminate or truncate the right to appeal approval of an eligible facilities request under Section 6409(a), 47 U.S.C. § 1455(a). The applicable shot clock is 60 days. Adding time to re-review a non-discretionary review based on the FCC’s objective standards does not make practical sense and only serves to risk shot clock compliance and resulting deemed granted applications. T‐MOBILE 3. Shot Clock ConcernsSection 17.46.050(A)(1) of the draft ordinance establishes that application types I ‐ IV necessitate initial review by the Planning Commission, with the possibility of contesting these decisions through appeals to the City Council. Section 17.46.050(A)(2) similarly indicates that Eligible Facilities Requests are also open to appeal at the City Council level. T‐Mobile expresses concerns about the City's ability to carry out the application reviews and facilitate procedures for noticed hearings within the time constraints stipulated by the relevant FCC Shot Clocks.

Additionally, 17.46.020(B)(3) requires that all applications must be submitted at a pre‐scheduled appointment with the Community Planning and Building Department. The FCC Order clarified that all permits and authorizations necessary for the deployment of wireless facilities must be approved or denied within the applicable shot clock period.2 Any pre‐application procedures, public meetings or hearings, or appeals are included in this calculation.3 Therefore, the applicable FCC Shot Clock would commence at the time of Applicant’s request for the application intake appointment.

AT&T and T-Mobile also expressed concerns appeals will take too long to complete within shot clocks. City is aware it will have to manage process to meet shot clocks to avoid potential deemed granted remedies being invoked. No changes have been proposed to the appeal process. #6 ORD
AT&T 5. Spacing Requirement. Section 17.46.040(E)(2)(b) prohibits wireless facilities in the PROW within 500 feet of any other wireless facility in the PROW. This is too restrictive as it creates a substantial risk for prohibitions not only in high-traffic areas where multiple providers will need facilities, but even in less dense areas where existing utility poles are already deployed closer together. This restriction also discriminates against wireless facilities vis-à-vis other PROW users, which N T-Mobile also objects (see T-Mobile redlined comments below).

This was changed from 250 to 500 after workshop. The City believes this is reasonable. AT&T’s 7901.1 argument is wrong for the reasons stated earlier.

COMMENT MATRIX #2
PC MEETING AUGUST 2023
RESPONSE TO NEW COMMENTS August 23, 2023 Page 9 of 27

DOC (ORD/DG/ CL/COA)

COMMENT EDITS
MADE? (Y/N)

RESPONSE AND REFERENCES
contravenes Section 7901.1. Plus, there can hardly be an aesthetic justification for this separation requirement of low-profile facilities like small cells, especially given the additional proposed stealth and design requirements. #7 ORD
AT&T 6. Cost Reimbursement. Section 17.46.050(B)(2) requires payment of a fee or deposit for costs incurred in connection with the permit. It also authorizes, without setting any specific standard or basis, the city to ask for additional fees and deposits. This provision should be revised because only objectively reasonable costs that are recovered on a nondiscriminatory basis can be included in fees. To the extent the city’s costs exceed the FCC’s safe harbor for presumptively reasonable fees and are not objectively reasonable, the costs are preempted and unlawful. AT&T looks forward to working with the city to ensure its proposed fees comport with state and federal laws.

N Language already says “deposit estimated by the Director to reimburse the City for its reasonable costs incurred in connection with the application, including costs of consultants retained by City.” AT&T language not necessary. No other industry commenter objected to this language. This is as applied concern. #8 ORD
AT&T 7. Consultants. Section 17.46.060(B)(1) authorizes the city to engage consultants whenever they are deemed necessary, and Sections 17.46.060(B)(2)&(3) require applicants to advance and replenish deposits to cover open-ended consulting charges. While AT&T appreciates the city’s desire to thoroughly review applications, consultants can unnecessarily increase the cost of deployment and slow down the permitting process. For small cell applications, the city needs to make sure that all fees, including those of a consultant, are within the FCC safe harbor or are reasonable, cost-based fees. For all applications, the city should be mindful that the cost of a consultant may not automatically pass through to an applicant as only objectively reasonable costs can be imposed.15 The city will be unable justify fees that will routinely exceed the FCC’s safe harbor for small cell applications. Plus, excessive consulting fees risk disputes that may result in striking down ordinance provisions requiring the use of consultants.16 The city should limit the use of consultants to technical and objective criteria, such as a structural safety assessment or compliance with FCC regulations of radio frequency emissions, and only to the extent these topics exceed the capabilities of City Staff.

Y While the City disagrees with many of AT&T’s
unsupported statements, upon closer review in response to these and T-Mobile’s comments, the language in Section 17.46.060(B)(1) has been modified to require City to provide detailed invoice for consultant services and (B)(3) has been deleted. (See comment #17 below as well).

COMMENT MATRIX #2
PC MEETING AUGUST 2023
RESPONSE TO NEW COMMENTS August 23, 2023 Page 10 of 27

DOC (ORD/DG/ CL/COA)

COMMENT EDITS
MADE? (Y/N)

RESPONSE AND REFERENCES
T-MOBILE 2. Liability for Consultants Expenses.

Currently, Section 17.46.060(B)(3) requires an Applicant to submit written consent from property owners, assuming responsibility for expenses incurred by third‐party consultants, including legal fees. Imposingonerous authorization requirements on property owners could materially limit or inhibit a provider’s ability to provide service within the City. It could also eliminate properties where the City would prefer facilities to be located, simply because those property owners may not be willing to accept unlimited liability associated with fees charged by third‐party consultants.

This requirement might inadvertently create limitations on feasible locations for wireless facilities situated on privately owned parcels due to onerous demands placed on property owners. Additionally, it might steer wireless service providers towards seeking locations in the right‐of‐way, where this written consent is not required. This contradicts the City's stated preference in the Ordinance for facilities to be predominantly situated on private parcels.

Upon comparing the City's standard Affidavit of Owner Authorization form used for standard land use categories, it's notable that the standard form only entails a property owner granting legal authorization to an Applicant for submitting planning applications on their behalf. The form does not include provisions related to the payment of consultant fees or assumption of unlimited liability.

To the extent that this requirement is limited to wireless facility applications and not applied to other land use applications, it could potentially be viewed as discriminatory and should be removed. T‐Mobile suggests a more workable standard in the attached redline
#9 COA
AT&T 8. Indemnification. The indemnification provision in the proposed conditions of approval needs to carve out exceptions to indemnity in instances of the city’s own negligence. In addition, AT&T must retain the right to select its own counsel. The second portion of the indemnity provision needs to be eliminated or significantly revised. For example, AT&T obviously cannot be made to defend the city from actions or omissions by its customers. The city also must limit the overall scope Y AT&T did not provide any language but raised some valid concerns about the scope of the indemnity. T-Mobile also requested an edit in their redlined comments below. Some edits are proposed that make the indemnity requirements more consistent with City’s existing practice. (Also see comment #24 below) COMMENT MATRIX #2
PC MEETING AUGUST 2023
RESPONSE TO NEW COMMENTS August 23, 2023 Page 11 of 27

DOC (ORD/DG/ CL/COA)

COMMENT EDITS
MADE? (Y/N)

RESPONSE AND REFERENCES
of this provision, which must be much more narrowly tailored than referring to all activities “in connection with this permit or the wireless facility.” T-MOBILE REDLINES #10 ORD
Y “Reasonable Person” language change has been accepted. #11 ORD

5. “substantial change” N This is not necessary – phrasing tracks federal language. It would defeat the concealment elements of the eligible support structure COMMENT MATRIX #2
PC MEETING AUGUST 2023
RESPONSE TO NEW COMMENTS August 23, 2023 Page 12 of 27

DOC (ORD/DG/ CL/COA)

COMMENT EDITS
MADE? (Y/N)

RESPONSE AND REFERENCES
#12 ORD
ADD TO LIST OF EXEMPT FACILITIES IN 17.46.030.B: 6. temporary wireless facilities needed to maintain coverage provided by an existing WCF whose support structure is demolished, relocated, repaired or redeveloped in connection with new construction.

N Temporary facilities would be tied to some sort of new construction, and should go through the standard design review process. #13 ORD

17.46.040.E REQUESTS:

3. Public Right-of-Way Safety Considerations.

N
Factual and verifiable evidence is what is require in the checklist FOR Type I-IV, section 12.On review a typo was discovered (reference is missing that would make this more clear) which is cleaned up in the checklist As discussed earlier, separation changed from 250 to 500 after workshop. Significantly reduce greenbelt will not be quantified as it depends on context, but the term is used throughout the code, and is well understood by the department.

COMMENT MATRIX #2
PC MEETING AUGUST 2023
RESPONSE TO NEW COMMENTS August 23, 2023 Page 13 of 27

DOC (ORD/DG/ CL/COA)

COMMENT EDITS
MADE? (Y/N)

RESPONSE AND REFERENCES
#14 ORD

17.46.040.F REQUESTS: N and Y
Overall Height – this can be subject of special exception request already. No change needed. Trees and Landscaping – hardscaping is a term of art that generally means built as part of the landscaped environment, but “hard’. For example, stone patios, low garden walls, brick walkways, etc. There is no need to add a definition. Deviation language -- T-Mobile request for deviations exception is OK concept but not their language or location in code. Concept is added to Special Exception section 17.46.080.C which incorporates the minor deviation concept already existing in the City’s code in 17.58.060.D for all other Design Review applications.

COMMENT MATRIX #2
PC MEETING AUGUST 2023
RESPONSE TO NEW COMMENTS August 23, 2023 Page 14 of 27

DOC (ORD/DG/ CL/COA)

COMMENT EDITS
MADE? (Y/N)

RESPONSE AND REFERENCES
#15 Ord

17.46.050.A.c. N Replacement poles require additional analysis like new poles due to excavation etc, It is not just about visual impact. The 90 day shot clock for new poles should apply. #16 Ord

17.46.060.A. N Unnecessarily wordy and not needed
#17 ORD

17.46.060.B. Y and N
Use of consultants: the proposed revision has been incorporated Advance Deposits: Estimate requirement is already stated in 17.46.050.B.2 (if not established by City Council per B.1). Also the ordinance already states the City Council can establish policies and procedures. Suggestion not incorporated COMMENT MATRIX #2
PC MEETING AUGUST 2023
RESPONSE TO NEW COMMENTS August 23, 2023 Page 15 of 27

DOC (ORD/DG/ CL/COA)

COMMENT EDITS
MADE? (Y/N)

RESPONSE AND REFERENCES
Liability – T-Mobile edits are not incorporated – they completely change the intent. However, on closer review other section of code 18.04.260, already covers liability for permit expenses, and the application form requires owner authorization. No need to include.B.3.

COMMENT MATRIX #2
PC MEETING AUGUST 2023
RESPONSE TO NEW COMMENTS August 23, 2023 Page 16 of 27
#18 DG
I. FACILITIES ON PARCELS N The concerns are misplaced. This only applies to Types I-IV. It would not apply to EFRs for backup power. CA Gov Code provision applies to existing macro sites only and is about to expire. City policy is not to limit per se but to consider case by case. #19 DG
II. FACILITIES IN PUBLIC RIGHTS OF WAY A. ANTENNAS
II. FACILITIES IN PUBLIC RIGHTS OF WAY C. ACCESSORY EQUIPMENT N This is a valid aesthetic regulation. If unable to meet the allowed circumstances for exceeding (where not visually incompatible), applicant may alternatively seek a special exception. Federal definition of SWF with 28 cu ft is for shot clock purposes; city has authority to regulate aesthetics and may require smaller volumes. Volume itself creates an aesthetic impact, City disagrees with TMobile’s logic that concealment is for city benefit and should not count toward volume.

COMMENT MATRIX #2
PC MEETING AUGUST 2023
RESPONSE TO NEW COMMENTS August 23, 2023 Page 17 of 27
#20 COA
N Disagree wording change is needed.
#21 COA
N While the statement is correct, disagree wording change is needed. Language already contemplates City may approve alternative if circumstances warrant.

COMMENT MATRIX #2
PC MEETING AUGUST 2023
RESPONSE TO NEW COMMENTS August 23, 2023 Page 18 of 27
#22 COA
Y Ok: Proposed edit is consistent with intent
#23 COA
Y Ok to accept changes as proposed. It is true that FCC is responsible.

COMMENT MATRIX #2
PC MEETING AUGUST 2023
RESPONSE TO NEW COMMENTS August 23, 2023 Page 19 of 27
#24 COA
Y Some changes are made in response to these edits and
AT&T’s comments above to in line with City practice. (Also See comment # 9 above) #25 COA
N The City disagrees with the premise of the comment. Permittees should keep records of their permits.

COMMENT MATRIX #2
PC MEETING AUGUST 2023
RESPONSE TO NEW COMMENTS August 23, 2023 Page 20 of 27
#26 COA
N The City will regulate future undergrounding under its undergrounding resolutions and code provisions. No special requirements will go in this ordinance. However, note that the default exemption for undergrounding is being slightly modified in a conforming amendment.

Section 13.28.070.E. shall be amended to read as follows:
“E. Antennae, associated equipment that is within
the supporting structure or integrated with the antennae, and supporting structures, used by a utility for furnishing communication services.”

SCTCN COMMENTS
#27 CL

1. Strengthen Material Inhibition Claim Information Required by the Applicant
Applicants are not required to disclose the full details of their service plans, which must be required for full transparency in the application process. a) Bullet # 3 (Application Checklist, page 14) Weakness: The statement gives the applicant a choice whether to describe new services “and/or” minimum service levels they seek to provide. Solution: Remove the word “or” which allows a choice to explain either new services or minimum services levels. Both explanations must be required. This is very important because only telephone service is protected under the Federal Telecommunications Act, while non-telephone services goals are not protected by the TCA.

Y and N
OK to delete word “or”, request “(a)” has been incorporated.

COMMENT MATRIX #2
PC MEETING AUGUST 2023
RESPONSE TO NEW COMMENTS August 23, 2023 Page 21 of 27
b) Bullet #4 (Application Checklist, page 14) Weakness: The statement gives the applicant a choice “whether” they would like to submit drive tests. Solution: Require the applicant to submit drive test data and maps as required in a significant gap/least intrusive means claim.

Request “(b)” not accepted. If the materially inhibits claims is based on a claim of significant gap, applicant must provide drive test data but not for other materially inhibits claims. #28 CL

2. The City Does Not Require Telecom Companies to Activate all Their Cell Sites Before They Apply for a New cell Site Weakness: The City Does Not Require Telecom companies to activate all their facilities before they apply for a new facility. Because Camel-by-the Sea is only one-mile-square, it seems perfectly reasonable and logical to require all facilities to be turned on so we can see if a new facility is actually needed. Solution: Require telecom companies to turn on all their facilities before they apply for a new facility.

N Under federal law and FCC Moratoria Order, the city may not impose a de facto moratorium on the acceptance and processing of applications. By requiring applicants to finish construction of one facility before applying for another, the city will be vulnerable to legal challenge. Further, FCC shot clock rules contemplate bulk applications as does a pending state bill. #29 ORD

3. The City Neglects to Include the Potential Adverse Impacts on Real Estate Values in Residential Zoning Districts (Omitted from the Ordinance) Weakness: The City neglects the welfare of its residents by not evaluating how the close proximity of cell towers in residential neighborhoods could substantially affect their property value in the zoning district. For many residents, their home is their single greatest asset, whose real estate value is threatened by the close proximity of a cell tower whose presence is incompatible with the character of residential districts. Cell towers in residential zones put people at unnecessary fall zone and electrical fire risk with no way to indemnify themselves if a tower fails. Residents must be allowed to present N As previously stated, development within the City is regulated through design and location guidelines. This ordinance pays very special attention to aesthetics and things that create or detract from property value, so no need to call out property value specifically. Example – viewshed is already regulated to an extent. All development standards implicitly serve to protect property values already. Adding this finding will unnecessarily put the City at risk of legal challenge. Generalized concerns are not considered substantial evidence Further, Courts have cautioned that requirements or decisions that are ostensibly concerned with property values may be found to be unlawfully based on concerns about RF emissions. For example, in a California federal district court case in which a city had denied a wireless facility application based on the city’s finding that the wireless facility would “negatively affect property values of nearby homes based upon the perceived fear of the health COMMENT MATRIX #2
PC MEETING AUGUST 2023
RESPONSE TO NEW COMMENTS August 23, 2023 Page 22 of 27
evidence at a public hearing that a cell tower in close proximity to their home affects their personal welfare. Weakness: The City incorrectly identifies just on reason a cell tower can create property devaluation; RF health emission concerns, when there are many other reasons. Federal Communications Act of 1996 says health concerns are not a valid reason for a municipality to deny zoning for a cell tower or antenna. However, Telecommunications Act of 1996 has found that property values and aesthetics are valid reason for a municipality to deny zoning for a cell tower or antenna.

Evidence That Cell Towers Impact Property Values:

The Federal Telecommunications Act of 1996 has found that property values and aesthetics are valid reason for a municipality to deny zoning for a cell tower or antenna. https://www.nytimes.com/2010/08/29/realestate/29Lizo.html https://www.ashland.or.us/SIB/files/Walker_351_PA-T1-2021-00158_Comment_Period_Oct_19.pdfThe legislature could require the council to specifically consider property values, but the federal Telecommunications Act of 1996 requires specific evidence to deny an application. In other jurisdictions, courts have upheld regulators' decisions to deny applications to build telecommunication towers based on an anticipated decline in property values in some cases (see Cellular Tel. Co. V. Zoning Bd. of Adjustment of the Borough of Ho-Ho-Kus, 24 F. Supp. 2d 359, 364 (D.N.J. 1998)). https://www.cga.ct.gov/2014/rpt/2014-R-0281.htm effects cause by the RF emissions,” the court held against the city since it may not regulate based on the “direct or indirect concerns over the health effects of RF.” The court explained that the denial could not be based on substantial evidence (as required by law) “…if the fear of property value depreciation is based on concerns over the health effects caused by RF emissions.” See AT&T Wireless Servs. v. City of Carlsbad, 308 F. Supp. 2d 1148 (S.D. Cal. 2003). This ruling is relevant because the proposed wireless regulations already have detailed aesthetic and safety standards, and it is not clear on what basis --other than an unlawful concern over the health effects of RF emissions-- would a finding be made that a facility that is found to meet those design and development requirements nonetheless creates adverse impacts upon real estate values and must be denied.

COMMENT MATRIX #2
PC MEETING AUGUST 2023
RESPONSE TO NEW COMMENTS August 23, 2023 Page 23 of 27
“You also have the right to: (a) fight against sustaining a loss to the value of your property as a result of the installation of a Cell Tower in close proximity, (b) protect yourself, your family, friends and neighbors against the dangers of Cell Tower failures and fires, which occur more often than the average person realizes and (c) fight against having the installation of a Cell Tower adversely affect the character or aesthetics of your neighborhood.”- Andrew Campanelli https://campanellipc.com/practice-areas/cell-tower-opposition-nationwide/ Studies The Bond and Hue ‐ Proximate Impact StudyThe Bond and Hue study conducted in 2004 involved the alanysis of 9,514 residential home sales in 10 suburbs. The study reflected that close proximity to a Cell Tower reduced price by 15% on average.The Bond and Wang ‐ Transaction Based Market StudyThe Bond and Wang study involved the analysis of 4,283 residential home sales in 4 suburbs between 1984 and 2002. The study reflected that close proximity to a Cell Tower reduced price between 20.7% and 21%.

The Bond and Beamish ‐ Opinion Survey Study
The Bond and Beamish study involved surveying whether people who lived within 100' of a tower would have to reduce the sales price of their home. 38% said they would reduce the price by morethan 20%, 38% said they would reduce the price by only 1%‐9%, and 24% said they would reduce their sale price by 10%‐19%.United States Court of Appeals for the 11th Circuit upheld a denial of a Cell Tower application basedupon testimony of residents and a real estate broker, that the Tower would reduce the values ofproperty which were in close proximity to the Tower.

COMMENT MATRIX #2
PC MEETING AUGUST 2023
RESPONSE TO NEW COMMENTS August 23, 2023 Page 24 of 27
Cell Towers are Hazards and Nuisances to Single Family Properties (https://ehtrust.org/cell-phone-towers-lower-property-valuesdocumentation-research/ ) The U.S. Department of Housing and Urban Development (HUD) considers cell towers “Hazards and Nuisances”
 HUD requires its certified appraisers to take the presence of nearby cell towers into consideration when determining the value of a single family property.  HUD prohibits FHA underwriting of mortgages for homes that are within the engineered fall zone of a cell tower.

Some Home Buyers Back Out of Purchases Due to Disclosure of Cell Tower as Neighborhood Nuisance (https://ehtrust.org/wp- content/uploads/Real-Estate-Seller-PropertyQuestionaire- reduced-12-17-1.pdf) California Realtors are required to prepare a disclosure statement upon sale for all homes near a cell tower as a neighborhood nuisance. Disclosures cause some buyers to back out of the sale of purchasing a home near a cell tower. 20% Property Reduction Living Next to a Cell Tower  Documentation of a price drop of up to 20% is found in multiple surveys and published articles. https://www.nationalbusinesspost.com/cell-towers-impact-home-values/  Local, state and International Real Estate Agents estimate a minimum 20% property devaluation for homes next to cell towers
COMMENT MATRIX #2
PC MEETING AUGUST 2023
RESPONSE TO NEW COMMENTS August 23, 2023 Page 25 of 27
 Research finds, cell towers, high powered powerlines and electric substations near homes can drop property values up to 20%.
 The National Institute for Science, Law & Public Policy (NISLAPP) reports that an overwhelming 94 percent of home buyers and renters surveyed say they are less interested and would pay less for a property located near a cell tower or antenna. https://www.businesswire.com/news/home/20140703005726/en/surveyNational-Institute-Science-Law-Public-Policy#.U8muiLGO1oY Property Appraisers Recognize Property Values are Impacts by Adverse Aesthetics in Proximity to Cell Towers  “In 32 years of experience as a Real Estate Appraiser specializing in detrimental conditions, takings, adverse impacts and right-of-way, I have found that aesthetics (or rather the adverse impact on aesthetics) of externalities routinely has the largest impact on property values. As a result, proximity to towers of all types (cell, wind turbine, and electric transmission) has an impact on property values. The same is true with all sorts of surface installations such as pump stations and communication equipment boxes. This would apply to new small cell and DAS equipment, although again, one would expect that the less intrusive the facility, the less significant the impact. Small cell and DAS installations can be unsightly, bulky, inconsistent, and even noisy.” “Impact of Communication Towers and Equipment on Nearby Property Values” prepared by Burgoyne Appraisal Company, March 7, 2017 Weakness: The City also justifies that allowing a negative impact to property value finding to the wireless ordinance opens the city to litigation. However, no city can control whether telecoms will bring forth litigation. When a telecom does choose to litigate, it doesn’t mean that they win their legal battles, as proven COMMENT MATRIX #2
PC MEETING AUGUST 2023
RESPONSE TO NEW COMMENTS August 23, 2023 Page 26 of 27
with the most recent Carmelo Tower litigation. Also, cities are not required to compensate telecoms for their losses. The City can and does include insurance compensation protection for the City and City Officials in the ordinance. While the City and City Officials can seek protective compensations for losses from a cell tower approval, residents have no way to indemnify themselves should a cell tower located in close proximity fail and cause physical harm or property loss. Local, state and international realtors document multiple reasons, including negative aesthetics and neighborhood nuisance disclosure statements as reasons to not risk purchase a home next to a cell tower. The City must block residential property owners from making the case in a public hearing that a cell tower located near their residential property would create a negative effect on their welfare. Solution: The City must add the legally viable “Potential Adverse Impact Impact to Real Estate Value” as a finding in the wireless ordinance to protect the welfare of its residents and the essential residential character of Carmel-by-the-Sea. #30 --

4. Wireless Facility Shot Clock Noticing & Community Outreach Must Be Strengthened
Weakness: Wireless facility developments are public utilities that affect the entire community. The FCC shot clock is a unique timeline than any other planned development in the City. Residents could miss important shot clock timelines or pauses and restarts in the shot clock due to lack of community-wide noticing.

N/A The City understands this request is not seeking any changes to the ordinance or companion documents but the City will explore this as part of department operating procedures to ensure the greatest amount of public awareness that is practically possible.

COMMENT MATRIX #2
PC MEETING AUGUST 2023
RESPONSE TO NEW COMMENTS August 23, 2023 Page 27 of 27
Solution: Once the shot clock starts, inform the community at the same time through public email notices, including shot clock stop and restart times. #31 ORD

5. Increase Public Noticing Distance Weakness: The current draft ordinance only provides hand-delivered postcard notice to neighbors within 100-feet radius of the site. Solution: Increase the radius to 500-1,000 feet. The rule is, the higher the structure, the further the noticing. Petaluma does 1,000 feet.

Y Section 17.46.070.B language proposed to expand the mailing radius to 500 ft. Hand delivery is being done by the City for wireless applications to make sure that it is timely done but the radius will not be expanded for hand delivery. #32 CL
*Error?- Wireless Facility Application Check list Type l-lV (page 9) 12.1 Incompatibility items The project is proposed in a location that it is: **(Last square) in the public right-of-way within a 250-foot radius (should be 500 feet. On Page 16 of the ordinance , this was changed to 500 ft Y Typo corrected
#33 ORD
*Fire Safety- All wireless facilities (page19) *says, “ should” We need to change this to, “ shall be proactively monitored.” Y Typo corrected
END
COMMENT MATRIX #2
CC MEETING SEPTEMBER 2023
MODIFICATIONS DIRECTED BY PC AT AUGUST 23 MEETING
September 7, 2023

ITEM PC DIRECTION REDLINED CHANGE

PC CHANGES TO ORDINANCE
Ord Add full definitions
of each of the five
application types
listed in the
"Definitions"
section.

17.46.020 Definitions.

A. Generally Applicable Definitions

24. “Type I application” means an application type that shall be limited to applications wherein an applicant seeks to place a new small wireless facility upon an existing structure and either (i) the structure is not an existing tower or base station (as defined for EFR purposes) or (ii) the structure is an existing tower or base station (as defined for EFR purposes) but the proposed facility does not qualify as an EFR. If the completed facility would still meet the physical limits and requirements to meet the definition of a small wireless facility after the installation of the new equipment, then the application to install such new equipment is a Type I applicationdescribed in 17.46.050(A)(1)(a).

25. “Type II application” means an application type that shall be limited to applications wherein an applicant is seeking to place a new personal wireless service facility upon an existing structure which does not meet the definition of a small wireless facility or which will not meet the definition of a small wireless facility if and when the proposed new personal wireless service equipment is installed upon the existing facility and/or structure and either (i) the structure is not an existing tower or base station (as defined for EFR purposes) or (ii) the structure is an existing tower or base station (as defined for EFR purposes) but the proposed facility does not qualify as an EFRdescribed in 17.46.050(A)(1)(b).

26. “Type III application” means an application type that shall be limited to applications seeking to install and/or construct a new small wireless facility that involves placement of a new or replacement structuredescribed in 17.46.050(A)(1)(c).

27. “Type IV application” means an application type that shall include any applications for the installation of a new personal wireless service facility which does not meet the criteria for Type I, Type II, Type III or Type V applicationsdescribed in

17.46.050(A)(1)(d).

28. “Type V application” means an eligible facilities request or EFR as defined by the FCC in 47 C.F.R. § 1.6100(b)(3), which is 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.

COMMENT MATRIX #3
CC MEETING SEPTEMBER 2023
MODIFICATIONS DIRECTED BY PC AT AUGUST 23 MEETING
September 7, 2023

ITEM PC DIRECTION REDLINED CHANGE
Ord Treat Residential
and Limited
Commercial (RC)
like R-1 with
respect to location
rankings

17.46.040 General Development Standards.

B. Ranked Locations. Applicants must propose placement in locations with the least intrusive land use designation (i.e.: Zoning) technically feasible and potentially available. Applications proposing placement in Tier I or II must include a written justification as part of the application submittal, supported by factual and verifiable evidence, that shows no location in a Tier III land use tier is technically feasible and available. The following land use tiers are ranked from least compatible to most compatible:

Tier I (Least Compatible):

Senior Citizen Facility (A-3), Multi-Family Residential (R-4), and Single-Family Residential (R-1), and Residential and Limited Commercial (RC).

Tier II:

Improved Parklands (P-2), Natural Parklands and Preserves (P-1), and Theatrical (A-1).

Tier III (Most Compatible):

Central Commercial (CC), Service Commercial (SC), and Community and Cultural (A-2), Residential and Limited Commercial (RC) Ord Add some of the
clarifying language
from the Design
Guidelines about
the equipment also
counting towards
height into the
ordinance itself

17.46.040 General Development Standards.

F. Design Standards

1. General Requirements. This subsection establishes generally applicable design standards for all Type I, Type II, Type III and Type IV wireless facilities in all locations. The design of Type I, Type II, Type III and Type IV wireless facilities must also comply with applicable administrative guidelines adopted by the Planning Commission pursuant to subsection

17.46.040(B)(2), Chapter 17.58, and the City Council pursuant to subsection 17.58.020(E). b. Overall Height. On public and private parcels, wireless facilities may not exceed more than 10 feet above the maximum height allowed by this code for the underlying zoning district where the facility is proposed. In the public rightof-way, wireless facilities on an existing pole may not have an overall increase the height that exceeds the height of anthe existing pole by more than 10 feet and wireless facilities that orinvolve a replacement pole or a new pole may not have an overall height that is more than 10 feet above the height of the replaced pole or existing poles in the vicinity unless additional height necessary to comply with CPUC safety standards such as General Order 95.

COMMENT MATRIX #3
CC MEETING SEPTEMBER 2023
MODIFICATIONS DIRECTED BY PC AT AUGUST 23 MEETING
September 7, 2023

ITEM PC DIRECTION REDLINED CHANGE
Ord Add a ban on
visible alarms

17.46.040 General Development Standards.

F. Design Standards

1. General Requirements. This subsection establishes generally applicable design standards for all Type I, Type II, Type III and Type IV wireless facilities in all locations. The design of Type I, Type II, Type III and Type IV wireless facilities must also comply with applicable administrative guidelines adopted by the Planning Commission pursuant to subsection

17.46.040(B)(2), Chapter 17.58, and the City Council pursuant to subsection 17.58.020(E). h. Security Measures. To prevent unauthorized access, theft, vandalism, attractive nuisance or other hazards, reasonable and appropriate security measures, such as fences, walls and anti-climbing devices, may be approved.

Security measures shall be designed and implemented in a manner that enhances or contributes to the overall stealth, and the reviewing authority may condition approval on additional stealth elements to mitigate any aesthetic impacts, which may include, without limitation, additional landscape or hardscape features. Barbed wire, razor ribbon, electrified fences or any similar security measures are prohibited. Alarm systems shall not include any visible alarms or audible sirens or other sounds.

Ord Add no adverse
impact to property
values to findings
for approval.

17.46.080 Findings Required.

A. Types I to IV Applications

1. Required Findings for Approval. The reviewing authority may approve wireless facility applications only when the reviewing authority makes all the following findings:

1. the proposed wireless facility will not result in adverse visual impacts or have an adverse impact on property values because it complies with all applicable development standards in Section 17.46.040 and the Administrative Detailed Wireless Facility Design Guidelines;
COMMENT MATRIX #3
CC MEETING SEPTEMBER 2023
MODIFICATIONS DIRECTED BY PC AT AUGUST 23 MEETING
September 7, 2023

ITEM PC DIRECTION REDLINED CHANGE

OTHER PC CHANGES
CL For the significant
gap showing, require
probative evidence to
take into account all
existing and
approved facilities
 15.2.1 SIGNIFICANT GAP/LEAST INTRUSIVE MEANS CLAIM
If an applicant asserts that: (i) an identified wireless provider suffers from a significant gap in its personal wireless services within the City, (ii) that the applicant’s proposed facility is the least intrusive means of remedying such gap in services, having considered alternatives and (iii) that under the circumstances pertaining to the application, a denial of the application would constitute an “effective prohibition” under Section 47 U.S.C. §332, then, the applicant shall be required to file the following information:

If an applicant makes a significant gap/least intrusive means claim, then the applicant shall be required to submit probative evidence taking into account all existing and approved facilities of the carrier serving the City, including the following:

CL For other effective
prohibition claims,
do not refer to the
materially inhibits
explicitly
 15.2.2 MATERIALLY INHIBITS OTHER EFFECTIVE PROHIBITION CLAIMS If an applicant asserts that (i) one or more City requirement(s) will have the effect of prohibiting wireless telecommunications services because it inhibits the provision of personal wireless services because, for example, it inhibits an identified wireless provider’s ability to densify a wireless network, introduce new services to a new or existing geographic area or otherwise improve existing service capabilities, or restricts the entry of a new wireless provider in providing personal wireless service in a particular area, and (ii) the inability to meet the identified service and performance goals materially inhibits effectively prohibits the wireless provider’s ability to compete in a fair and balanced legal and regulatory environment, and (iii) that under the circumstances pertaining to the application, a denial of the application would constitute an “effective prohibition” under Section 47 U.S.C. §332, then, the applicant shall be required to file the following information:

If the materially inhibits other effective prohibition claim is based on a claim of the existence of a significant gap, the applicant shall provide the information in 15.2.1 above.

If the materially inhibits other effective prohibition claim is based on grounds other than the existence of a significant gap, the applicant shall provide:
 a street-level map that shows the general geographic area of the service area(s) to be densified, to be improved, to receive COMMENT MATRIX #3
CC MEETING SEPTEMBER 2023
MODIFICATIONS DIRECTED BY PC AT AUGUST 23 MEETING
September 7, 2023

ITEM PC DIRECTION REDLINED CHANGE
new services through the proposed wireless facility (the “Service Area”);  full-color signal propagation maps in scale with the street level map that show current and predicted service coverage in the area for all active frequencies in RSRP (or other relevant signal level or quality indicator) and with a legend that describes the objective signal levels in dBm that correspond to any colors used to depict signal levels on such propagation maps. Graduations between signal levels shown on the map shall not exceed 3 dBm;  a written narrative that describes the new services and minimum service levels the applicant seeks to provide within the Service Area, the uses (commercial, residential, primary thoroughfare, highway, etc.) within the Service Area, and the manner in which those uses would be negatively affected if the Service Area were to remain unaddressed;  a statement as to whether the applicant conducted any drive test(s) and, if so, all drive test results and data (in .XLS or .CSV or similar format) together with a report that describes how and when the applicant conducted such test(s).  an explanation of how the inability to meet the identified service and performance goals due to a City denial on the basis of the City requirement effectively prohibitsmaterially inhibits the wireless provider’s ability to compete in a fair and balanced legal and regulatory environment.

COA Allow for City to
perform annual RF
emissions test

11. Compliance with Applicable Laws/RF Emissions Exposure Limits. The permittee shall maintain compliance at all times with all federal, state and local statutes, regulations, orders or other rules that carry the force of law (“Laws”) applicable to the permittee, the subject property, the wireless facility or any use or activities in connection with the use authorized in this permit, including any Laws applicable to human exposure to RF emissions. This permit is not granting the permittee any rights to make any portion of the adjacent properties inaccessible to the general public or to hinder future lawful development of adjacent properties as a mitigation measure to ensure the wireless facility will comply with Laws applicable to human exposure to RF emissions, absent agreement from the adjacent land owner. The permittee understands that if site conditions change in the future due to lawful development on adjacent property, the permittee may need to modify or remove its wireless facility or obtain adjacent property owner consent to mitigation measures on the adjacent property if required to maintain compliance with any Laws applicable to human exposure to RF emissions. If the Director finds good cause to believe that the wireless facility is not in compliance with any Laws applicable to human exposure to RF emissions, the Director may require the permittee to submit a COMMENT MATRIX #3
CC MEETING SEPTEMBER 2023
MODIFICATIONS DIRECTED BY PC AT AUGUST 23 MEETING
September 7, 2023

ITEM PC DIRECTION REDLINED CHANGE
written report, signed by an RF engineer under penalty of perjury, that: (1) the installation is operated in compliance with 47 U.S.C. § 324 (use of minimum power); and (2) the installation complies with all applicable FCC rules and regulations for human exposure to RF emissions and will not cause members of the general public to be exposed to RF levels that exceed the maximum permission exposure levels deemed safe by the FCC. Further, the City or its contractors may perform an annual RF emissions exposure compliance test without notice to the permittee. 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 Laws.

CONFORMING CHANGE TO WIRELESS APPLICATION FORM
APP PC recommended
ordinance had
change to Section

17.46.050.B.3 to
have City establish
application
submittal hours
rather than
application
appointments due
to shot clock
concerns which
requires a
conforming
modification to
wireless application
form
All applications submitted under this chapter must be submitted to the City during the office hours specified for intake of applications submitted under this chapter as established by the Community Planning and Building Department and posted on the City’s webpage. Applicants may submit one application or multiple applications whenever feasible and not prejudicial to other applicants.

Any application received in a different manner or outside those established intake hours, whether delivered in-person, by mail or through any other means, will not be considered duly filed whether the City retains the submitted materials or not INSTRUCTIONS:

Applicants that wish to submit an application for a wireless facility must fill out this Application for Wireless Facility form and not the General Planning Application form. All applications must be submitted in person to the Community Planning and Building Department at a pre-scheduled appointment. during the office hours specified for intake of wireless facility applications as established by the Community Planning and Building Department and posted on the City’s webpage.

To schedule an appointment email: [email protected]. For questions about the application requirements or process call: (831) 620- 2010 or email: [email protected]. Emails and calls will be responded to during normal City business hours.

COMMENT MATRIX #3
Attachment 6
Attachment 6
Attachment 6