Agenda packet — Monterey City Council, February 7, 2023 (part 9 of 9)

Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 35, Packet Page 1789

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18 6. Freestanding Towers Outside of Rights-of-Way. In addition to satisfying the requirements of Section 38-112.4(F)(4)):
a. General Design Preferences. All applicants shall, to the extent feasible and appropriate for the proposed location, design wireless communications facilities on new towers according to the following preferences, ordered from most preferred to least preferred:
i. Faux architectural stealth structures including, but not limited to, sculptures, clock towers, and flagpoles of a size, type and proportions, and with design features consistent with the neighborhood and adjacent structures; then
ii. Faux trees in a stealth design of a size, type and proportions consistent with nearby trees, and landscaped and located near other vegetation to blend in and appear part of the natural environment.
b. Tower-Mounted Equipment. All tower-mounted equipment shall be mounted as close to the tower as possible, or integrated within it to reduce its visual profile.

Applicants shall mount non-antenna, tower-mounted equipment (including, but not limited to, remote radio units/heads, surge suppressors, and utility demarcation boxes) directly behind the antennas to the maximum extent feasible, and to the extent not inconsistent with a design under Section 38- 112.4(F)(6)(a).
c. Ground-Mounted Equipment. All equipment should generally be incorporated into the design of a tower proposed pursuant to Section 38-112.4(F)(6)(a)(i)-(ii).

Where that is not technically feasible, and unless undergrounded, applicants shall use a stealth design or may be permitted to conceal ground-mounted equipment with opaque fences or other opaque enclosures, consistent with Section 38-112.4(F)(4)(a) provided that the concealment can be maintained throughout the term of the permit. The City shall require, as a condition of approval, design and/or landscape features in addition to other concealment when necessary to blend the equipment or enclosure into the surrounding environment.

7. Public Rights-of-Way Facilities.
a. Limitation on facilities permitted. The only wireless communications facilities permitted in the public rights-of-way are:
i. Modified facilities which shall be permitted pursuant to an eligible facilities request, or
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 36, Packet Page 1790

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19 ii. Wireless communications facilities used in the provision of personal wireless services, which, absent a showing of effective prohibition, shall be small wireless facilities; or
iii. Wireless communications facilities, or other wireless equipment or structures that the City shall permit a person holding a state or local franchise to install pursuant to that franchise.
b. Structure Preference. The City’s preference for wireless communications facilities in the public right-of-way in order of preference is as follows:
i. Locate antennas on existing or replacement light poles and other vertical structures owned or controlled by City that City chooses to make available for placement of wireless communications facilities; then ii. Locate antennas on existing or replacement supporting structures; then iii. New support structures or towers in the public rights-of-way. c. Wireless communications facilities in the public rights-of-way shall be designed in compliance with Section 38-112(F)(4), except,
i. Setback requirements applicable to private property do not apply (requirements for setbacks from curbs and walkways applicable to users of the public rights-of-way, as well as sight line requirements do apply); ii. Wireless communications facilities and any support structure shall satisfy the height requirements of this subsection 7;
iii. Fencing and enclosure requirements applicable to private property do not apply (requirements related to fencing required to prevent hazards to pedestrians or vehicles, as may be required by applicable design manuals, do apply).
d. Undergrounded Equipment. Applicants shall comply with applicable undergrounding requirements, including the requirements of Section 32-08.03-

04. Vaults shall be installed as if the same were subject to regulation by the California Public Utilities Commission, and shall satisfy that agency’s safety standards.
e. Ground-Mounted Equipment. To the extent that the applicant qualifies for a deviation or exception from an undergrounding requirement, applicants shall only install the antenna and wiring on the support structure, or tower and all other equipment shall be ground-mounted, unless:

Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 37, Packet Page 1791

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20 i. ground-mounted equipment cannot be installed consistent with other applicable requirements, including the encroachment conditions; or ii. where part of an approved stealth facility, or if integrated into a design for a street light pole or other vertical structure which design conforms to, and is consistent with the design of those facilities; or iii. based on the permitted location, and available designs, placement of equipment on the support structure or tower will have a lesser overall impact on properties affected by the placement, and on pedestrian or vehicular use of the public right-of-way.
f. In the event that the City approves ground-mounted equipment, the applicant shall conform to the following requirements:
i. Self-Contained Cabinet or Shroud. City may require placement of the equipment in a cabinet or shroud to conceal equipment, or where appropriate to protect persons or property. The equipment shroud or cabinet shall contain all the equipment associated with the facility other than the antenna, or the meter, if one is required and cannot be integrated into the cabinet. All cables and conduits associated with the equipment shall be undergrounded to the supporting structure or tower. ii. Size. The equipment, excluding the meter and disconnect and including the cabinet, shall be the smallest size feasible but no larger than 16 cu. ft., and no higher than 50 inches above ground level, except that a larger size may be approved as part of a stealth design. Electrical meters, if required, and disconnects shall be the smallest possible size available. iii. Stealth Design and Concealment. The City may require the applicant to incorporate concealment elements into the proposed design, including but not limited to public art displayed on the cabinet, or to otherwise take steps to camouflage or minimize the visual impacts of the proposed design, including strategic placement in less obtrusive locations and placement within existing or replacement street furniture, or integration into the base of an existing or replacement supporting structure. g. Pole-Mounted Equipment. Other than antennas, equipment mounted on the exterior of an existing or replacement support structure (referred to herein as “pole-mounted equipment”) is permitted if an applicant shows it is not required to install the equipment underground; that ground-mounted equipment is not required, or cannot be installed at a proposed location in a manner that complies with the requirements of this Code; and applicant cannot integrate the equipment within an existing or replacement supporting structure approved by City. Polemounted equipment other than antennas shall be installed as close to the Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 38, Packet Page 1792

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21 support structure as technically and legally feasible to minimize impacts to the visual profile, and positioned on one side of the pole to minimize visibility. If a facility shall be permitted in a residential area, the wireless communications facility shall be placed to minimize visibility from doors and windows of the residential properties closest to the wireless communications facility, and subject to other provisions of this Code, to mimic other structures commonly mounted on utility poles. All required or permitted signage in the public rights-of-way shall face toward the street or otherwise be placed to minimize visibility from adjacent sidewalks and structures, except as inconsistent with the encroachment conditions in Chapter 32. All conduits, conduit attachments, cables, wires and other connectors shall be concealed from public view to the greatest extent feasible.
h. Antennas. Antennas shall be placed in a radome at top of the pole, so that the antenna appears to be an extension of, or a design element integral to, the supporting structure or tower, and so that the cable connections, antenna mount and other hardware are concealed, with cut-outs if required for signal propagation. The total volume of each antenna shall not exceed 3 cu. ft., not including the connector to the supporting structure. GPS antennas shall be placed within the radome or directly above the radome not to exceed six inches. i. Extensions of structures and antenna height. To maintain consistency with the height of other, similar structures in the public rights-of-way, and as means of reducing and concealing the placement of an antenna, an antenna added to an existing supporting structure, or tower, including any extensions of that supporting structure or tower; or a replacement for an existing supporting structure or tower, may cumulatively add no more than four feet to the height of the existing structure, or the minimum amount required to obtain separation from electrical facilities on the pole. Provided that, City may permit a greater extension to street lights poles or other vertical structures that it owns or controls where that extension is consistent with the design of the supporting structures, and can be installed without adversely affecting the overall design of similar facilities in the same corridor.
j. Pole-Mounted Equipment Cabinets. Except when integrated within a supporting structure or tower, all equipment other than the antenna(s) and disconnect switch shall be concealed within an equipment housing. Generally, all equipment other than the meter or disconnect associated with a wireless communications facility shall be enclosed in a single equipment housing, unless applicant demonstrates that an alternative design will be less visible and more consistent with other pole-mounted equipment in the same portion of the public right-ofway. The equipment housing on the exterior of any supporting structure shall be centered and placed on a single side of the structure. Equipment housing mounted on the pole shall be no greater than 15 inches wide and 15 inches deep so that the housing is not readily visible to a reasonable observer on the opposite Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 39, Packet Page 1793

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22 side of the pole. Wider equipment housing units are permitted where, consistent with a stealth design, such as signage placed at an appropriate height (a stop sign, for example). Equipment housing shall be of a uniform depth, not exceeding 15” from the pole to which it is attached so that it appears, as far as possible, like part of the pole. All pole-mounted equipment shall be installed as flush to the pole as possible. Any standoff mount for the equipment cage may not exceed four inches and shall include metal flaps (or “wings”) to conceal the space between the cage and the pole. Sizes are intended to be cumulative, reflecting the sizes of the equipment housings for all wireless facilities installed on a particular supporting structure. Total volume of all equipment housing on any support structure and strand within 20 feet of the attachment shall not exceed 16 cu. ft.
k. Exterior mounted equipment housing shall be placed to avoid interfering or creating any hazard to any other use of the public rights-of-way, and with the lowest edge of any exterior mounted equipment at least eight feet above ground level. Equipment shall not project over any street unless above the level approved for placement of wires across streets.
l. Decorative Light Poles. Pole-mounted facilities are prohibited on decorative light pole fixtures where the height of the existing structure is 20 feet or less. m. Towers or New Supporting Structures. If a new supporting structure is permitted:
i. City may require or approve installation of a light pole of a stealth design and consistent in height and appearance to other light poles in the corridor, provided that the lighting is consistent with lighting plans for the area; and alternatively, the City may require or approve installation of a structure no higher than utility poles in the corridor in which it will be located, and if none, no higher than 35 feet.
ii. Unless a stealth design can be reasonably used at the proposed location, the new support structure shall be a hollow, non-wood pole, in which all elements of the wireless communications facility other than antennas, undergrounded equipment, or equipment in approved ground-mounted facilities may be concealed. It shall be colored and incorporate other elements, including camouflage and landscaping if appropriate at the location proposed, to minimize its visual impact.
iii. City shall be permitted, at no charge, to attach and maintain traffic or similar signage or other devices; and City may require, as a condition of approval, sharing of the facility with others to minimize the need for additional facilities in the public rights-of-way.
n. Strand mounting. Wireless communications facilities requiring a permit under this section may not be mounted on strand.

Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 40, Packet Page 1794

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23 o. Non-reflective Finishes. All above-ground or pole-mounted equipment in the rights-of way shall be finished with non-reflective materials, colored or painted to match the structure to which it is attached, or as consistent with the concealment element for the facility.

8. General Conditions. In addition to the foregoing:
a. A wireless communications facility shall be designed to be resistant to and minimize opportunities for unauthorized access, climbing, vandalism, graffiti, and other conditions that would result in hazardous conditions, visual blight or attractive nuisances.
b. The wireless communications facility shall not unreasonably impair or diminish views of and vistas from adjacent properties and designated scenic corridors. c. The design of the facility shall be compatible with the neighborhood or community in which it is located. The City may consider factors that take into account the proposed facility in the context of its proposed location, which may include, but shall not be limited to, the proportionality and scale of the facility relative to the surrounding natural and/or constructed environment, the proximity of the facility to residential structures, the compatibility of the facility with uses on adjacent and nearby properties, and the effect, if any, on surrounding properties, the surrounding topography, the surrounding tree coverage and foliage, and the compatibility with the values and objectives expressed in the General Plan and any applicable specific plan.

9. Placement Preferences. The City has the following preferences. An applicant’s project plan shall show that it took these preferences into account and explain why a preferred placement or design was not used; or may show that because of the design proposed, its design and geographic placement will be more consistent with the overall goals of this section. A preferred design shall also be consistent with the other requirements of this section.
a. Preferences City-owned or controlled parcels outside of open space districts, residential zoning districts (R-E, R-1, R-2, R-3 and PC zones not governed by a Specific Plan) or the H-1, H-2, H-D, D-1 overlay zones; and other City-owned properties identified by the City as preferred by resolution. Within this area, preferred designs in order of preference are: a. Placement on existing towers off the public rights-of-way or on similar, large vertical structures, such as water towers; or within or upon existing supporting structures, other than buildings, in a stealth configuration; b. Building-mounted facilities with rooftop mounted antennas; c. Building-mounted facilities with façade-mounted antennas; d. New towers or supporting structures in a stealth design; e. Existing or replacement supporting structures (other than buildings) where the wireless facility can be Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 41, Packet Page 1795

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24 camouflaged; f. Placement on existing or replacement supporting structures (other than buildings) where the wireless communications facility is not stealth or camouflaged or a new non-stealth small wireless facility whose height above ground level is the lower of 35’ or the height of the closest utility poles. The design choice between existing, replacement or new structures will be based on the overall visual impact of the facility on adjacent properties. b. Parcels and public rights-of-way in industrial districts. Within this area, preferred designs in order of preference are: a. Placement on existing towers off the public rights-of-way or on similar, large vertical structures, such as water towers; or within or upon existing supporting structures (other than buildings) in a stealth configuration; b. Building-mounted facilities with rooftop mounted antennas; c.

Building-mounted facilities with façade-mounted antennas; d. New towers or supporting structures in a stealth design; e. Existing or replacement supporting structures (other than buildings) on private property (including easements), or in the public rights-of-way where the wireless facility can be camouflaged; f.

Placement on existing or replacement supporting structures (other than buildings) where the wireless communications facility is not stealth or camouflaged or a new non-stealth small wireless facility whose height above ground level is the lower of 35’ or the height of the closest utility poles. The design choice between existing, replacement or new structures will be based on the overall visual impact of the facility on adjacent properties. c. Parcels and public rights-of-way in commercial districts. Within this area, preferred designs in order of preference are: a. Placement on existing towers off the public rights-of-way or on similar, large vertical structures, such as water towers; or within or upon existing supporting structures (other than buildings) in a stealth configuration; b. Building-mounted facilities with rooftop mounted antennas; c. Building-mounted facilities with façade-mounted antennas; d. New towers or supporting structures in a stealth design; e. Existing or replacement supporting structures (other than buildings) on private property (including easements), or in the public rights-of-way where the wireless facility can be camouflaged; f. Placement on existing or replacement supporting structures (other than buildings) where the wireless communications facility is not stealth or camouflaged or a new non-stealth small wireless facility whose height above ground level is the lower of 35’ or the height of the closest utility poles. The design choice between existing, replacement or new structures will be based on the overall visual impact of the facility on adjacent properties. d. City-owned or controlled parcels other than those listed in Section 38- 112.4(F)(9)(a) Within this area, preferred designs in order of preference are: a.

Placement on existing towers or on similar, large vertical structures, such as water towers; or within or upon existing supporting structures (other than buildings) in a stealth configuration; b. Building-mounted facilities with rooftop mounted antennas; c. Building-mounted facilities with façade-mounted Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 42, Packet Page 1796

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25 antennas; d. New towers or supporting structures in a stealth design; e. Existing or replacement supporting structures (other than buildings) where the wireless facility can be camouflaged; f. Placement on existing or replacement supporting structures (other than buildings) where the wireless communications facility is not stealth or camouflaged or a new non-stealth small wireless facility whose height above ground level is the lower of 35’ or the height of the closest utility poles.

The design choice between existing, replacement or new structures will be based on the overall visual impact of the facility on adjacent properties. e. If the provider shows it shall be permitted to place the wireless communications facility in a non-preferred area, the preferred designs in order of preference: a.

Placement on existing towers off the public rights-of-way or on similar, large vertical structures, such as water towers; or within or upon existing structures in a stealth configuration; b. Non-residential building-mounted facilities with rooftop mounted antennas; c. Non-residential building-mounted facilities with façademounted antennas; d. Existing or replacement supporting structures (other than buildings) on private property (including easements), or in the public rights-ofway where the wireless facility can be camouflaged; e. New towers or supporting structures in a stealth design; f. Placement on existing or replacement supporting structures (other than buildings) where the wireless communications facility is not stealth or camouflaged or a new non-stealth small wireless facility whose height above ground level is the lower of 35’ or the height of the closest utility poles. The design choice between existing, replacement or new structures will be based on the overall visual impact of the facility on adjacent properties.

Additionally, if the non-preferred area is identified as a residential or historic district, placement in open space areas or the pubic rights-of-way adjacent to open space areas are preferred if the result is that the facility will be farther away from residences.

10. Special Considerations for Certain Districts: In addition to satisfying the standards in this section, in certain districts and at certain locations, an applicant shall show that denial of an application will result in an effective prohibition or otherwise violate federal law such that an application shall be approved and show that the design used and the placement will minimize the impact of granting the permit (these showings are referred to as an “effective prohibition showing”):
a. In H-1, H-2 and H-D, overlay zones, any wireless communications facility shall be either a stealth facility, or a facility that is not visible to the general public (a rooftop facility, for example), and is subject to conditions that would prevent it from becoming visible to the general public as a matter of right. Any other placement requires an effective prohibition showing.
b. In any residential zoning district (R-E, R-1, R-2, R-3, and PC zones not governed by a Specific Plan), placement of a wireless communications facility requires an effective prohibition showing.

Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 43, Packet Page 1797

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26 c. In any portion of any district where there are no utility lines aboveground in the public rights-of-way, and no street lights or traffic signals, placement of a wireless communications facility requires an effective prohibition showing. d. For wireless communications facilities proposed for the public rights-of-way in any portion of any district (other than residential zoning districts – R-E, R-1, R-2, R-3 and PC zones not covered by a Specific Plan) with aboveground street lights or traffic signals in the public rights-of-way, but no aboveground utility poles, an effective prohibition showing is required unless the City determines that the wireless communications facility will be integrated into those street lights or traffic signals in a manner consistent with the requirements of this Code. e. For wireless communications facilities proposed for the public rights-of-way, in order to avoid visual clutter the wireless communications facility shall meet the following spacing requirements: (i) no proposed wireless communications facility shall be placed in the public right-of-way within 250 feet in any direction from an existing facility; (ii) no proposed wireless communications facility shall be placed within 100 feet in any direction from an existing facility; and (iii) no proposed wireless communications facility shall be placed within 100 feet of an existing facility unless required by federal law.
f. Notwithstanding the foregoing, with respect to wireless communications facilities proposed for the public rights-of-way, an application may be granted if applicant shows that issuance of a permit is required by state law. To the extent applicant claims that its proposed facility would not incommode the public, City will consider factors relevant to that determination under state law, including whether it diminishes public use or enjoyment, either visual or physical, of the public right of way, or of adjoining properties.

G. Eligible Facilities Requests. This section applies to eligible facilities requests, as that term is defined under federal law and applicable regulations.

1. Applications. Applications for eligible facilities requests shall contain the information required by Section 38-112.4(E)(3)(a)-(v), and shall be submitted in the manner required for all other applications.

2. Justification. Without limiting the foregoing, the project plan for an eligible facilities request shall specifically list every element that shall be satisfied in order for a request to be an eligible facilities request under federal law, and shall show that each element is satisfied.

3. Notwithstanding Section 38-112.4(J)(2) below, an application submitted as an eligible facilities request shall be approved by the Director if the following findings are made:
a. That the application qualifies as an eligible facilities request; b. That the proposed facility will comply with all generally-applicable laws; and Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 44, Packet Page 1798

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27 c. The finding required by Section 38-112.4(J)(3), if applicable.

4. If an application submitted as an eligible facilities request is not an eligible facilities request, it shall be denied and, in addition to the notice required by Section 38- 112.4(J)(4), the Director shall provide an incompleteness notice indicating what information is required for the applicable wireless application. The Director’s decision on an eligible facilities request application is final and not appealable.

H. Abandoned or Decommissioned Facilities

1. Procedures for Abandoned or Discontinued Facilities. a. To promote the public health, safety and welfare, the Director may declare a facility abandoned or discontinued when:
i. The permittee notifies the Director that it abandoned or discontinued the use of a facility for a continuous period of 90 days; or ii. The permittee fails to respond within 30 days to a written notice sent by certified U.S. Mail, return receipt requested, from the Director that states the basis for the Director’s belief that the facility has been abandoned or discontinued for a continuous period of 90 days; or
iii. The permit expires, in the case where the permittee has failed to file a timely application for renewal.
b. If the Director declares a facility abandoned or discontinued, Director shall mail a notice of declaration to the last known address of permittee and the permittee shall have 90 days from the date of the notice(or longer time as the Director may approve in writing as reasonably necessary) to remove the facility and all improvements installed solely in connection with the facility, and restore the site to a condition compliant with all applicable codes and consistent with the thenexisting surrounding area. c. If the permittee fails to remove the facility as required by Section 38-112.4(H), the City may exercise any rights or remedies to abate the public nuisance pursuant to City Code chapter 22, Article 4, and exercise any other remedy allowed by law.

I. Transfer of Ownership. Within 30 days after a permittee transfers any interest in the facility or permit(s) in connection with the facility, the permittee shall deliver written notice to the City. Failure to submit the notice required herein shall be a cause for the City to revoke the applicable permits pursuant to Section 38-221, and to exercise any other remedy allowed by law. The written notice required in this section shall include: 1 the transferee’s legal name;

2. the transferee’s full contact information, including a primary contact person, mailing address, telephone number and email address; and 3. a statement signed by the transferee that the transferee shall accept all permit terms and conditions.

Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 45, Packet Page 1799

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28 J. Notices—Findings—Decisions.

1. Notice.

Notice Required for a Use Permit. The Planning Commission shall conduct a noticed public hearing in accordance with Section 38-159.

2. Use Permit Findings. In addition to the findings required by Section 38-161, the Planning Commission may approve an application for a use permit if, based on the record, it finds:
a. The facility will comply with Section 38-112.4(C), General Requirements; and b. The facility satisfies the applicable design standards set forth herein; or c. The applicant proves that denial would result in an actual or effective prohibition or otherwise violate applicable law, such that the City is required to permit applicant to install a wireless communications facility, and the wireless communications facility adheres to the design standards except to the minimum extent necessary to avoid an effective prohibition. By way of example, and not limitation, if applicant shows a larger antenna is required than is permitted under the design standards, application of this section would permit a larger antenna, but not placement of cabinets aboveground.

3. Additional Finding Required for All Applications within the Monterey Regional Airport Influence Area. In addition to other findings required by this section, for a wireless communication facility located within the Monterey Regional Airport Influence Area, the Planning Commission shall find that the applicant has demonstrated the following: 1) applicant submittal to the FAA of the FAA Form 7460-1 Form, Notice of Proposed Construction or Alteration, or other written notification to the FAA of the proposed construction or alteration of any wireless communications facility in the AIA, except for minor alterations that do not have a potential to obstruct or pose a hazard to air navigation, navigational aids, or navigational facilities; 2) written authorization from the FAA or other official FAA determination of no objection to the proposed construction or alteration; and 3) compliance with all applicable FAA and FCC rules, regulations, and standards.

4. Written Denial Decision. If the application is denied, the City shall provide the applicant written notice of the denial decision that contains both the decision and the findings for the decision or indicates how a copy of the decision and the findings may be obtained.

5. Denials Without Prejudice. The Director may deny an incomplete application without prejudice to the applicant refiling, if the applicant has not provided all of the information required by notice(s) of incompleteness to permit the City to approve, approve with conditions, or deny the application, taking into account legal deadlines affecting the City conducting, or the public participating in, a timely review of the application. Such a Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 46, Packet Page 1800

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29 denial may be appealed to the Planning Commission, but the appeal is limited to consideration of whether the application was properly denied for incompleteness and the decision of the Planning Commission is final and not appealable.

6. Appeals. Any interested party may appeal an action of the Planning Commission, except for any decision made pursuant to Section 38-112.4(J)(5) in accordance with Chapter 38, Article 27.

K. Independent Consultant Review.

1. Deposit. The applicant shall pay for the cost of any independent consultant retained by the City to review any issue or evidence submitted in connection with the application and for the technical consultant’s testimony in any hearing as requested by the City and shall provide a reasonable advance deposit of the estimated cost of such review with the City prior to the commencement of any work by the technical consultant. Once the deposit is reduced to 50% the applicant shall restore the fund to its original amount. Promptly upon issuance of the final decision on the application, City shall issue an invoice, showing as a credit against the amount owed the amount deposited; return any amounts deposited in excess of the invoice; and bill for any expense not covered by the invoice, which invoice shall be paid within thirty (30) days.

L. Additional Conditions of Approval for Wireless Use Permits.

1. Standard Conditions for Use Permits. Generally, City shall include appropriate conditions consistent with other use permits it issues.

2. Permit Term. Any validly issued conditional use permit for a wireless communications facility will automatically expire at 12:01 a.m. local time exactly 10 years and one day from the issuance date, except when California Government Code Section 65964(b), as may be amended, authorizes the City to issue a permit with a shorter term. Provided that:
i. Permits for eligible facilities requests shall expire on the date the underlying permit expires.
ii. Where City is required by federal law or regulation to issue a permit, and the federal law or regulation is changed, or declared invalid, it shall be a condition of the continuing validity of the permit that the City may amend the permit to include any condition that it could have included in the absence of the changed or invalid law or regulation. Alternatively, City may terminate the permit where the placement would not have been permitted. Provided that, a permittee will be provided a reasonable opportunity to show the Planning Commission that the wireless communications facility should be allowed to remain in place under then applicable laws and regulations.

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30 3. Ongoing Compliance. City may inspect and test wireless facilities to ensure ongoing compliance with permit conditions, and charge the cost of the inspection to persons holding wireless permits for the facilities inspected. Testing and inspection may include, but is not limited to, testing to ensure compliance with RF exposure limits. Tests may be based on complaints received, or may be part of a regular testing and inspection program. Permittee shall, within 30 days of a request therefor, provide the City with access and information it may require regarding the wireless communications facility in order to inspect or conduct testing.

4. Disconnection. The permittee shall provide the City with access to the facility to disconnect it from power in an emergency.

5. Maintenance of Elements Designed to Reduce Visual Impacts. Without limiting the general obligation to maintain the site and facility, all concealment elements shall be maintained in a manner so that the concealment elements are not defeated. By way of example, if a stealth facility is approved, it shall be maintained so that color fading and damage do not result in changing the approved appearance of the facility. Likewise, requirements intended to camouflage or otherwise limit the visual impacts of a wireless communications facility, shall be maintained so that the effectiveness of the same is not diminished. By way of example and not limitation, if permittee is entitled to increase the size or number of ground cabinets, and the placement is subject to requirements designed to conceal cabinetry, the existing requirements will also be read to require concealment of the additional or larger cabinets.

6. Construction Period. Unless a permit specifically provides otherwise, in order to prevent applicants from applying for unnecessary facilities, or from stockpiling locations, it is a permit condition that a wireless communications facility shall be constructed and shall be in use for the provision of wireless services within twelve (12) months of issuance of the use permit. The period may be extended by the Director for good cause shown.

7. Modifications. No modification may be made to the approved facility without obtaining a permit required by Section 38-112.4.

8. Removal upon Termination. Upon termination of the wireless permit, unless renewed, permittee shall remove the wireless communications facility and all improvements installed in connection with the facility (including but not limited to a supporting structure, or an extension to a supporting structure), and restore the site to a condition compliant with all applicable codes and consistent with the surrounding area.

M. Post Construction Reporting.

1. Permittee shall notify the City within 30 days of completion of construction of a wireless communications facility, and shall provide as-built plans showing all elements of the wireless communications facility and supporting structure as built. The plans, without limitation, shall show the location of power and communication lines serving the facility, Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 48, Packet Page 1802

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31 and the location of disconnect boxes. City shall promptly inspect the facility to ensure compliance with all permit conditions, and shall charge the permittee the costs thereof.

2. Within 30 calendar days following the activation of any wireless communications facility (including a modification that affects the RF emissions patterns of the wireless communications facility), the applicant shall provide a radio frequency emissions compliance report to the city prepared and certified by a RF licensed engineer. The report shall be prepared in accordance with FCC guidelines and shall include the calculations and information on which the engineer relied. The report shall: clearly identify any differences between the facility as proposed and the facility as built, including differences in areas where RF emissions exceed the FCC’s general and occupational levels, and any necessary mitigation measures. In addition, the report shall include:
a. A certification of compliance with all mitigation measures required by the use permit.
b. The date and time of the inspection, the methodology used to make the determination, including certification documents of test equipment. c. The name and title of the person(s) conducting the tests. d. information on whether the levels of radio frequency emissions comply with applicable FCC standards, and identify the source or sources of any noncompliance.

3. If the report shows that FCC general and occupational exposure levels are exceeded in areas that were not reported in the application; or that necessary mitigation measures have not been implemented; the permit for any wireless communications facility that bears responsibility in whole or in part for the non-compliance will be deemed suspended pending correction. As part of the suspension, general operations shall cease until the facility is brought into compliance, and mitigation measures implemented. If the City finds that the correction or mitigation either requires a change to the facility inconsistent with the use permit; or that the necessary mitigation measures would adversely affect the community in a manner not contemplated in the review of the application, it may require removal, relocation or modification of the wireless communications facility as a condition of ending the suspension, or take any other permitted enforcement action. The City may require applicant to provide additional reports, and may require additional independent technical evaluation of the wireless communications facility, at the applicant’s sole cost, to ensure compliance with FCC standards and to ensure appropriate mitigation measures have been implemented.

N. Municipally-Owned or Controlled Property and Supporting Structures.

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32 1. Policy Statement. The City may negotiate agreements for use of city owned or controlled property and supporting structures for the placement of wireless communications facilities, including street light poles in the rights of way. In exercising its decision to agree to access to a City property or supporting structure, the City will generally consider factors and consider designs consistent with this section. Any design shall be consistent with the supporting structure to be used, and result in no uncompensated cost to City. Without limitation, for example, the design for a wireless communications facility to be attached to a street light shall be consistent with designs in use along the corridor or (if more consistent with plans for the corridor) consistent with planned designs. Further, use will not be permitted if it requires the City to incur uncompensated costs, or accept risks or liability it would not otherwise face. Access will only be granted if it presents no safety issues, causes no harm to a structure, does not interfere with present or planned uses of the property or structure, and is in the City’s best interests as facilities owner. Subject to lawful limits imposed by state or federal law, the agreement shall specify the compensation to the City for use of the property or structures. Except as prohibited by law, the person seeking the agreement shall additionally reimburse the city for all costs the city incurs in connection with its review of, and action upon, the person’s request for an agreement.

2. Requests for Use. A request for use of a City-owned property or structure may be submitted to Community Development Director. The request can be submitted before an application is submitted to the Planning Commission, so long as the requesting party agrees that the request does not trigger any shot clock with respect to any permit that may be required for deployment of the structure. Community Development Director is authorized to negotiate agreements for use of City-owned or controlled supporting structures, and to bring those agreements to the City for approval. Community Development Director may also issue a written denial of access, stating reasons therefore. If City receives multiple, conflicting requests for placement of wireless communications facilities for the same location from different entities, City, may require consolidation of wireless communications facilities or, allocate sites on any basis consistent with applicable law.

3. Compliance with RF Standards. No permit and no agreement for use of city owned or controlled supporting structures, shall be issued or effective unless it is shown that the wireless communications facility will comply with Federal Communication Commission (“FCC”) regulations governing radio frequency (“RF”) emissions. Every wireless communications facility shall at all times comply with applicable FCC regulations governing RF emissions, and failure to comply shall be a treated as a material violation of the terms of any agreement.

4. Non-Interference. Before a wireless communications facility is attached to city owned or controlled supporting structure, the owner of the wireless communications facility shall submit a study showing that the attachment or modification will not interfere with thenexisting or planned City uses of the structure, including communications uses. Any Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 50, Packet Page 1804

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33 request for use shall include detailed drawings and specifications so that the City may determine whether there will be interference with City uses.

O. Pre-Approval of Designs.

1. Alternative. A person who wishes to install a wireless communications facility with a design that does not comply with the design standards set forth in Section 112.4(F), but who believes that the design is fully consistent with the goals of this Section may submit a request for pre-approval of the design to the Planning Commission. A pre-approval request is not mandatory, and is not an application for a wireless communications facility within the meaning of this section, and shall be submitted with a clear statement that consideration of the request is not subject to any FCC shot clock or other mandatory timeline for action. The purpose of permitting the request is to encourage development of, and provide a means for public consideration of those designs.

2. Consideration. The proposed design will be publicly published, and the Planning Commission may conduct such investigations, and require the person requesting preapproval to submit such information, and provide such mock-ups as may be necessary to evaluate the impact of the design. If, after a full opportunity for public hearing the Planning Commission finds that the design serves the goals of this Section, it may recommend pre-approval to the City Council for the placement as a design permitted under Section 112.4(F)(1)-(10). The recommendation may limit areas where the facility would be pre-approved for placement. The Planning Commission may also recommend elimination or modification of any pre-approved design, after a public hearing where it finds that the design as adopted does not serve the purposes of this Section.

3. Council Action. The Council may pre-approve the design by resolution. The design will be published. Council may also eliminate or modify a pre-approval.

P. Definitions. Except where otherwise expressly incorporated into a provision of the Code, the following definitions only apply to this Section 38-112.4, and shall not be construed to define the same terms found in any other section of this code. “Accessory equipment” means any equipment associated with the installation of a wireless communication facility, including but not limited to cabling, generators, fans, air conditioning unit, electrical panels, equipment shelters, equipment cabinets, equipment buildings, pedestals, meters, vaults, splice boxes, and surface location markers. “ALUC” means the Monterey Airport Land Use Commission or successor agency. “Antenna” means any system of wires, poles, rods, reflecting discs, dishes, whips or other similar devices used for transmission or receptions of electromagnetic waves. A device where the antenna is integrated with the radio unit shall be treated as an antenna.

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34 “Base station” has the same meaning as the term used in 47 CFR Section 1.16100(b)(1), as may be amended, except that, to the extent not included within the FCC definition, the term includes accessory equipment.
“Camouflage” means a wireless communications facility or supporting structure to which the applicant applies some concealment techniques in order to blend all or a portion of the facility or structure into the surrounding area or to appear to be an object that is congruent with its environment, but which is not designed to look like some feature other than a wireless communications facility to a reasonable person. “City Manager” means the City Manager or the Manager’s designee. “Community Development Director” or “Director” means the Community Development Director or the Director’s designee.
“CPUC” means the California Public Utilities Commission established in the California Constitution, Article XII, Section 5, or its duly appointed successor agency. “Eligible facilities request” means the same as defined by the FCC in 47 CFR Section

1.6100(b)(3), as may be amended. “Eligible support structure” means the same as defined by the FCC in 47 CFR Section 1.6100(b)(4), as may be amended. “FAA” means the Federal Aviation Administration or its duly appointed successor agency. “FCC” means the Federal Communications Commission or its duly appointed successor agency.
“Mock-up” means a temporary, full-sized, structural model built to scale chiefly for study, testing, or displaying a wireless communications facility. It is nonfunctional and has no power source.
“Modification” means a change to an existing wireless communications facility that involves a change to the size, physical configuration, appearance, height, weight or structural loading of the existing wireless communications facility or its supporting structure, or which results in an increase in the noise emitted by the wireless communications facility.

Modification does not include repair, replacement or maintenance if those actions do not involve a change to the size, physical configuration, appearance, height, weight or structural loading of the existing facility or its supporting structure, or result in an increase in the noise emitted by the wireless communications facility. Modification does not include removal unless the facility is replaced, and the replacement would constitute a modification. “Mounted” means attached or supported.
“Public rights-of-way” means land which by deed, conveyance, agreement, easement, dedication, usage or process of law is reserved and dedicated to the general public for street, highway, alley, public utility or pedestrian walkway purposes, whether or not the land Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 52, Packet Page 1806

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35 has been improved or accepted for maintenance by the City. Public right-of-way includes but is not limited to street, roadway, planter strip and sidewalk. “Radome” means a weatherproofed enclosure (typically constructed from fiberglass or plastic material) that protects and conceals an antenna or antennas contained therein. “RF” means “radio frequency” or electromagnetic waves between 30 kHz and 300 GHz in the electromagnetic spectrum range.
“Rooftop Mounted” means mounted directly on the roof of any building or structure, above the eave line of such building or structure.
“Shot Clock” means a timeline for action on an application for a wireless communications facility that is imposed by state or federal law or regulations. “Site” means the same as defined in 47 CFR Section 1.6100(b)(6), as may be amended. “Small wireless facility” means the same as defined in 47 CFR Section 1.6002. , as may be amended.
“Stealth” means a wireless tower or base station designed to look like some feature other than a wireless tower or base station to a reasonable person. Examples include, but are not limited to: (1) wireless equipment placed completely within existing architectural features such that the installation causes no visible change to the underlying structure; (2) new architectural features that match the underlying building in architectural style, physical proportion and construction-materials quality; (3) flush-to-grade underground equipment vaults with flush-to-grade entry hatches, with wireless equipment placed completely within. “Supporting Structure” means any structure, other than a tower, capable of supporting, or supporting a Base Station. An existing supporting structure is a structure in place at the time an application is filed; a replacement supporting structure is a structure that replaces an existing structure, which structure shall be removed; a new supporting structure is a structure other than a tower, that is not in place at the time an application is filed, and that will be constructed as part of the placement of the Base Station. “Temporary wireless communications facility” means a wireless communications facilities intended or used to provide personal wireless services on a temporary or emergency basis, such as a large-scale special event in which more users than usual gather in a confined location or when a disaster requires additional service capabilities. Temporary wireless communications facilities include without limitation, cells on wheels (COW), sites on wheels (SOW) and cells on light trucks (COLTs) or other similar wireless facilities: (1) that will be in place for no more than 60 days (or such other longer time as the City may allow); (2) for which required notice is provided to the FAA; (3) that do not require marking or lighting under FAA regulations; (4) that will be less than 100 feet in height; and (5) that will either involve no excavation or involve excavation only as required to safely anchor the facility, where the depth of previous disturbance exceeds the proposed construction depth (excluding footings and other anchoring mechanisms) by at least two feet.

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36 “Tower” means the same as defined in 47 CFR Section 1.6100(b)(9), as may be amended. “Transmission equipment” means the same as defined by the FCC in 47 CFR Section

1.6100(b)(8).
“Utility Pole” means any wood, steel, concrete or other structure used primarily to support overhead electric or communications lines.
“Wireless” means any FCC-licensed or authorized wireless communication service transmitted over frequencies in the electromagnetic spectrum. “Wireless communications facility” means all elements of a facility at a fixed location used in connection with the provision of any FCC licensed or authorized wireless service to the public, including the base station and tower, if any, but excluding the supporting structure to which the base station is attached or within which it is enclosed. Provided that, the term does not include:
a. wireless devices entirely enclosed within an existing building outside of the rights of way, where installations does not require a modification of the exterior of the building;
b. wireless devices attached to the exterior of a building, which would constitute an accessory use of the building permitted under this Code, and where the wireless communications facility located on the exterior is less than 3 cubic feet in size; c. Amateur radio antennas (including ham and shortwave). d. Over-the-air reception devices (“OTARDs”) as defined in 47 CFR Section 1.4000 et seq., as may be amended or superseded.
e. Wireless communications facilities owned and operated by the City for its use, or by any governmental agency for its own or public safety uses. f. The exemptions under subsections (c)-(d) do not apply to the extent the facility is used for any purpose, or integrates any wireless facility such that the entire facility is not required to be treated as an “amateur radio antenna” or an OTARD under FCC rules. By way of example, if an antenna is used in the provision of personal wireless services, it is not treated as an OTARD. g. The exempt facilities remain subject to other provisions of the Code. By way of example, and not limitation, a modification to an historic structure to install a wireless communications facility exempt under this provision of the Code would be subject to review under other provisions of the Code governing modifications to historic structures.

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37 “Wireless service provider” means the FCC licensed or authorized entity offering wireless communication services to the public.

SECTION 5: If any section, subsection, line, sentence, clause, phrase, or word of this ordinance is for any reason held to be invalid or unconstitutional, either facially or as applied, by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this ordinance are severable. The City Council of the City of Monterey hereby declare that it would have passed this ordinance, and each and every individual section, subsection, line, sentence, clause, phrase, or word without regard to any such decision.

SECTION 6: All ordinances and parts of ordinances in conflict herewith are hereby repealed.

SECTION 7: This ordinance shall be in full force and effect thirty (30) days from and after its final passage and adoption.

PASSED AND ADOPTED BY THE COUNCIL OF THE CITY OF MONTEREY this _____ day of _______, 202_, by the following vote:

AYES: COUNCILMEMBERS:

NOES: COUNCILMEMBERS:

ABSENT: COUNCILMEMBERS:

ABSTAIN: COUNCILMEMBERS:

APPROVED:

ATTEST:

Mayor of said City
City Clerk thereof
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 55, Packet Page 1809

M I N U T E S

PLANNING COMMISSION

CITY OF MONTEREY
April 26, 2022
4:00 PM – 6:30 PM

COUNCIL CHAMBER AND ZOOMGOV TELECONFERENCE

MONTEREY, CALIFORNIA
Commissioners Present: Freeman, Reed*, Brassfield*, Dawson, Fletcher*, Latasa, Millich* * Participated remotely by videoconference
Commissioners Absent: None
Staff Members Present: Community Development Director Cole, City Attorney Davi, Administrative Assistant Cleary
This meeting was held with a combination of in-person and teleconference attendance, pursuant to the Ralph M. Brown Act, Calif. Government Code section 54953(e)(1)(C) and Resolution No. 22-026 C.S.

CALL TO ORDER
Chair Freeman called the meeting to order at 4:00 p.m. and Administrative Assistant Cleary provided information to the public on how to participate and provide public comment during the meeting.

1. Meeting Procedures

CONSENT ITEMS
Approval of Minutes

2. April 12, 2022
ACTION: Approved as submitted.

Commissioner Dawson made a motion to approve the minutes as submitted. Commissioner Latasa seconded the motion. Vice Chair Reed said he missed the evening session of April 12, 2022, but will vote to approve the minutes as he was present for the afternoon session.

On a motion by Commissioner Dawson, seconded by Commissioner Latasa, and carried by the following vote, the Planning Commission approved the April 12, 2022 minutes as submitted:

AYES: 7 COMMISSIONERS: Freeman, Reed, Brassfield, Dawson, Fletcher, Latasa, Millich
NOES: 0 COMMISSIONERS: None
ABSENT: 0 COMMISSIONERS: None
ABSTAIN: 0 COMMISSIONERS: None
RECUSED: 0 COMMISSIONERS: None
***End of Consent Agenda***
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2 PUBLIC COMMENTS
Nina Beety shared concerns that meetings on important matters are scheduled for the afternoon, barring attendance of full-time workers, and the City’s Compatible Use Plan was initiated without transparency. Ms. Beety asked the Planning Commission to act on these concerns as they limit confidence in the City following rules and respecting the public while conducting their business.

PUBLIC HEARING

3. Consider Recommending an Ordinance to the City Council Amending City Code Chapter 38 Article 17 Section 112.4 Related to Wireless Communication Facilities (Exempt from CEQA Article 19, Sections 15305 and 15308, Classes 5 and 8) ACTION: Continued to June 28, 2022.

Staff Presentation/Commissioner Questions
Community Development Director Cole presented the Agenda Report and answered Commissioner questions. Ms. Cole added suggested continuance of the item to address concerns raised through a high number of public comments. City Attorney Davi was also present and answered Commissioners’ questions.

Responding to Vice Chair Reed’s question, Ms. Cole said mock-ups were proposed to be installed on the subject building or in a cordoned-off area so the public could see the impact, but staff did not recommend this going forward.

Responding to Chair Freeman’s question, City Attorney Davi said School Districts can exempt themselves from City regulations and the City also does not have jurisdiction on Federal land.

Regarding Commissioner Latasa’s question, Ms. Cole said wireless facility applications are treated the same as Major Use Permits, which require a $4,000 deposit to cover costs of staff time, specialized engineers, and outside consultants. In response to Commissioner Latasa’s question about the “shot clock” and Americans with Disabilities Act (ADA), Ms. Davi affirmed these items do not need to be recodified in the City’s Wireless Ordinance as they are already codified at the State and Federal level. To Commissioner Latasa’s question regarding noticing, Ms. Cole replied that applicants can either contact the City for a property owner notice list or utilize a private title company. In response to Commissioner Latasa’s question regarding mockups and Draft Ordinance, Kim said the Ordinance provides opportunity for pre-approval of certain types of projects and mock-ups may be necessary to show their designs.

Commissioner Dawson said public comments received from Andrew Campanelli and Verizon conflict and asked how to resolve this issue since they are both considered experts in the field.

Ms. Cole said the City uses legal staff specializing in telecommunication laws to provide independent advice to the City on these issues.

To Commissioner Millich’s question about the Radio Frequency (RF) Compliance Report, Ms.

Cole confirmed the Federal Communications Commission (FCC) standard is the standard cellular providers must meet.

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3 The Planning Commission requested staff review the following items on the Draft Wireless Ordinance (Exhibit A to Draft Resolution):
• Page 4, Section 3 – The abbreviations “ALUC” and “FAA” should be mentioned as “Airport Land Use Commission” and “Federal Aviation Administration” the first time referenced and abbreviated in subsequent references.
• Page 4, Section 3.b-3.d – Consider rewording “The City shall refer objects…to the ALUC and FAA” for clarity.
• Page 5, Section D.2.a – Consider specifying “appropriate engineer” since there are three types of engineers discussed in the text.
• Page 7, Section E.3.d – Paragraph title is missing.
• Page 7, Section E.3.e.iv – Consider language outlining what will be done to address aging camouflage and colors changing from exposure to the elements. • Page 7, Section E.3.f – This section is not formatted in a sentence and other sections include sentences.
• Page 9, Section E.3.m.i – Consider rewording the last sentence of paragraph for clarity. • Page 9, Section E.3.m.ii.d – Consider specifying who sworn statements are from. • Page 10, Section E.3.p – Consider clarifying the statement “Information regarding the radio units that will be installed at the site, including the manufacturer’s name and manufacturer’s specifications…” as equipment make and model could change. • Page 11, Section E.3.u – Consider rewording “a permit must issue” for clarity. • Page 11, Section E.3.u.v – Consider specifying that coverage maps must include areas outside the City.
• Page 11, Section E.3.u.v – Regarding service coverage maps, consider that if certain areas show need for increased service capability, a wireless facility could be placed on another political entity’s land instead of under City jurisdiction. • Page 13, Section 4.d – Title uses phrase – Facilities Should Permit Collocation. Is the word should needed?
• Pages 15-16, Section E.5.b – Text uses the word “unless” in regard to denial. Consider changing to reflect approval or denial.
• Page 16, Section E.5.c – Consider rewording for clarity so meaning is more definitive. • Page 17, Section E.7.c – Consider specifying who makes the consideration and what guidelines the decision is based on.
• Page 18, Section E.7.g.ii – Clarify that the 50-inch maximum height refers to height of equipment and not height off the ground.
• Page 18, Section E.7.g.ii – Consider starting with a requirement that the equipment is “the smallest size possible” as some other approved sites are substantial in size. • Page 20, Section 7.l – Consider ADA (sidewalk width)
• Page 21, Section F.8.a – Is attractive nuisance the correct word? • Page 21, Section F.9.a – Consider rewording the first sentence for clarity. • Page 30, Section P – Consider specifying “shall” and “must” are equivalent in meaning. • Provide information about how a coverage gap affects the right for poles. • Consider setbacks such as Calabasas Ordinance
• Entire Draft Ordinance – Includes the word “should” 18 times and “encourages” three times. Consider changing to stronger language.
• Entire Draft Ordinance – Find the word “may” or “may not” and change to be stronger.

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4 • Mock up – Consider requiring mock-ups but they do not have to installed in the field on a building or pole.

Public Comments
Former Wireless Subcommittee Member Susan Nine expressed concern with the number of changes in the Draft Ordinance as the City Council said the Subcommittee’s work would last.

She requested that mock-ups, community noticing, wind testing, and regulating facility colocation be included in the Ordinance and suggested changing “should” to “shall” throughout.

Monterey resident Ray Meyers spoke of electromagnetic radiation and said he had reviewed wireless applications that were misleading and lacking information. He suggested applications be required to contain complete information and be reviewed by an independent RF engineer.

Monterey resident Gina Jett said the proposed Ordinance is weak and more information is available regarding rules for cell towers in residential areas. She spoke of attorney Andrew Campanelli and the need for an iron-clad Wireless Ordinance, and recommended that the City of Monterey follow the City of Carmel’s lead and hire Mr. Campanelli for Draft Ordinance review.

Pat Venza, Monterey Vista Neighborhood resident, said when 13 wireless facilities were previously proposed for the Monterey Vista Neighborhood, drive-by testing was done to confirm wireless coverage in the area. She suggested this requirement be added to the Ordinance so the City would not have to rely on potentially inaccurate computer-generated maps.

Laurie Putnam said she lives in Monterey directly across from a cell tower permitted and she suggested the Ordinance include requirements for monitoring Conditions of Approval. It is an undue burden for residents to do the monitoring.

Daniel Dotterrer, Monterey Vista Neighborhood resident and member of the Monterey Vista Neighborhood Association (MVNA), spoke of the 13 previously proposed Extenet wireless facilities, suggesting he supports everything included in the Association’s public comment. Mr.

Dotterrer suggested utilizing as strong as possible local control and input from the community.

Hans Jannasch, Monterey Vista Neighborhood resident and MVNA member, also spoke of the Extenet wireless facilities and said it is important to require mock-ups, even if not on the structure itself. Mr. Jannasch also said it is important to mark each pole where a facility will be added and suggested further examination of the City of Calabasas’s setback requirements.

Monterey Vista resident Jean Rasch showed appreciation for the advanced Agenda Packet publication. She said the neighborhood is still less represented in the Ordinance than preferred and suggested it be as restrictive as possible for time, place, manner, and aesthetics. Ms. Rasch said 1,000-foot setbacks, notice of temporary cell facilities, and correct scientific documents should all be required. She also suggested that the City utilize Mr. Campanelli and his team.

Monterey Resident Nina Beety said all residents including renters and business owners should be notified of wireless applications instead of only property owners and suggested the notice radius be increased to 500-1,000 feet. She also said it is helpful when reading an Ordinance to have all the laws included even if they are already codified elsewhere. Ms. Beety suggested generic poles can be erected on City property allowing companies to post mock-up equipment.

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5 She also said the Draft Ordinance presented is not the Subcommittee’s draft, but rather Staff’s draft, and that the Subcommittee’s draft should be brought back.

Marcello Cosentino, Monterey Vista Neighborhood resident, said he is opposed to having small cell towers in the neighborhood littering the scenic vistas and suggested small cell towers are dangerous for humans and wildlife. Mr. Cosentino suggested all projects with view, noise, or environmental impacts undergo California Environmental Quality Act (CEQA) review.

Commissioner Comments
Ms. Davi announced that Joseph Van Eaton and Gail Karish of Best, Best, and Krieger have significant expertise and were present to answer questions.

Commissioner Dawson said the Wireless Subcommittee was disbanded a year and a half ago and a lot has happened around small cell towers since then. He asked Mr. Van Eaton and Ms.

Karish if they could summarize those changes. Mr. Van Eaton said one of the largest issues is the FCC’s decision that a significant gap in coverage and least intrusive alternatives are no longer the test to determine cell tower location. He also said another issue is the number of changes the FCC made to provisions relating to concealment versus stealth, meaning an operator may be able to ignore an adopted concealment condition unless clear Conditions of Approval with timelines are set forth and made obvious for each project. Ms. Karish added that implementation has moved to litigation, so there are more areas where the laws or FCC orders are not entirely clear and are subject to different interpretations. She also said there is starting to be more litigation to resolve ambiguities in the law, but that is at a very early stage.

Commissioner Millich said it is important to get as much protection as possible for the residential areas and suggested the Commission concentrate on making clear what is and is not allowed.

Commissioner Brassfield said he is gratified to hear what Mr. Van Eaton had to say and he is glad people went to the meeting to discuss the matter. He noted that there is only a certain amount of time to address these issues and he appreciates everyone’s efforts.

Vice Chair Reed said he feels mock-ups are a necessary part of the Ordinance, even if it is a small mock-up that can be done in a way that makes sense and is not regressive to the applicant.

He stated he did not review the video suggested by public commenters because as a Planning Commissioner he believes it best to listen to advice given by the City Attorney and attorneys provided by the City. He also recommended that a new single-color redline version of the Draft Ordinance be prepared and circulated for clarity. Vice Chair Reed agreed that something must be done to protect the citizens and that the public comments are helpful, but suggested it is necessary to listen to guidance of the experts being provided.

Commissioner Fletcher said a tremendous amount of work went into the Draft Ordinance over the past few years and he appreciates everyone’s efforts. He said he also appreciates all the comments submitted and said they have been helpful in considering the issues.

Commissioner Latasa said the shot clock is unreasonable and unrealistic and asked if any municipalities have tried to challenge it. Mr. Van Eaton said the issue was raised unsuccessfully twice by a group of municipalities, including the City of Monterey, before the Ninth Circuit Court.

Commissioner Latasa asked about the City of Calabasas’s setbacks and Mr. Van Eaton said creating setbacks could leave the City with no areas for wireless facilities, making it easy for DocuSign Envelope ID: 272EDBAD-520E-45ED-884C-4BBBA20E8D2E ATTACHMENT 2
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6 cellular carriers to win in Court. Ms. Karish said setbacks are challenging because when carriers look at the rules they examine the cumulative impact of all the rules. Commissioner Latasa concurred with Vice Chair Reed that a model should be required to help the public understand how proposed facilities will look.

Chair Freeman said many of the submitted comment letters had overarching opinions and some had specific recommendations. She said that as the specific suggestions seem simple it may be easy to determine feasibility. Chair Freeman also suggested that in lieu of a mock-up it may be appropriate to have applicants give an address of an existing installment similar to their proposal.

She noted satellites will supersede wireless in the future, rendering cell towers pointless, but agreed the Ordinance should be as tight as possible to protect neighborhoods and schools.

Vice Chair Reed motioned to continue the item to May 24, 2022. Commissioner Fletcher seconded the motion. The Planning Commission discussed their planned absences over the next scheduled meetings and decided by consensus to continue the item to June 28, 2022, allowing all Commissioners to attend. Vice Chair Reed amended the motion and moved to continue the item to June 28, 2022. Commissioner Fletcher seconded the amended motion.

On a motion by Vice Chair Reed, seconded by Commissioner Fletcher and carried by the following vote, the Planning Commission continued the item to June 28, 2022:

COMMISSIONER COMMENTS
None.

INFORMATIONAL REPORTS & STAFF COMMENTS

4. Planning Office Update
Update received.

ADJOURNMENT
There being no further business, the meeting adjourned at 6:32 p.m.

Respectfully Submitted, Approved,
Kimberly Cole
Community Development Director
Chair
Planning Commission
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Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 61, Packet Page 1815

M I N U T E S

PLANNING COMMISSION

CITY OF MONTEREY
August 09, 2022
7:00 PM – 11:00 PM

COUNCIL CHAMBER

AND ZOOMGOV TELECONFERENCE

MONTEREY, CALIFORNIA
Commissioners Present: Fletcher, Brassfield*, Dawson*, Freeman, Latasa, Millich* Commissioners Absent: None
Staff Members Present: Community Development Director Cole, City Attorney Davi*, Recording Secretary Cleary
* Participated remotely by videoconference
This meeting was held with a combination of in-person and teleconference attendance pursuant to the Ralph M. Brown Act, Calif. Government Code section 54953(e)(1)(C), and the Monterey City Council’s Resolution authorizing virtual participation in public meetings given the COVID19 pandemic.

CALL TO ORDER
Vice Chair Fletcher called the meeting to order at 7:01 p.m. and Recording Secretary Cleary explained to the public how to participate and provide public comment during the meeting.

1. Meeting Procedures

PUBLIC COMMENTS
None.

PUBLIC HEARING

2. Consider Recommending an Ordinance to the City Council Repealing and Replacing City Code Chapter 38 Article 17 Section 112.4 Related to Wireless Communication Facilities Exempt from CEQA (Article 19, Sections 15305 and 15308, Classes 5 and 8) ACTION: Continued to the September 13, 2022 Planning Commission Meeting Staff Presentation/Commissioner Questions
Community Development Director Cole introduced the item, provided background information regarding the Wireless Ordinance process and status, and answered Commissioner questions.

Gail Karish, Legal Consultant from Best Best & Krieger, provided further details regarding recent legal proceedings involving wireless facilities. Ms. Karish, Ms. Cole, and City Attorney Davi answered Commissioner questions throughout the presentations.

Commissioner Latasa requested a description of the Wireless Subcommittee’s membership.

Ms. Cole supplied details.

Commissioner Millich asked if the City could ban 5G poles in residential areas that are high risk of fire and unable to get fire insurance. Ms. Karish explained the Public Utilities Commission DocuSign Envelope ID: 9AFF2BCC-B9C6-4D9B-9ED7-79956C0AC436 ATTACHMENT 3
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 62, Packet Page 1816 Planning Commission Minutes Tuesday August 09, 2022
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2 sets safety requirements for installations of communications and power infrastructure and there are orders addressed by them that specify what a safe structure is.

Commissioner Latasa inquired about Ms. Karish’s work with the City of Carmel and noticing requirements. Ms. Karish provided information. Ms. Davi added that the City of Monterey has notice provisions in the City Code that are applicable to all Use Permits.

Commissioner Freeman asked clarifying questions regarding aesthetics of colocation. Ms.

Karish explained colocation is often preferred to maximize use of existing antennas rather than adding more sites and specified that requirements are in place to ensure utility poles are safe.

Ms. Cole provided background information regarding the Subcommittee’s thoughts on this.

Commissioner Freeman inquired further. Ms. Cole explained the goal in the current proposal is to utilize existing poles.

Commissioner Brassfield asked questions regarding logistics of potential prohibitions. Ms.

Karish explained State Law says the Federal Communications Commission (FCC) is the only agency to establish standards for safe Radio Frequency (RF) emission and at a local level the City can ensure compliance with existing FCC guidelines and added that local governments cannot regulate based on concerns for RF emissions while applications demonstrate compliance with existing FCC standards.

Commissioner Brassfield asked if there is a cumulative effect of colocation and if the City could effectively object to the number of cell towers in various areas. Ms. Karish described limitations and potential solutions associated with this idea.

Public Comments
Christy Hollenbeck claimed the draft ordinance is not strong enough to protect the City and recommended wireless carriers be required to prove significant gaps in services.

Jeanna Jett suggested residents do not want wireless cell facilities in residential communities and urged the City to hire a new law firm as the Subcommittee’s work is outdated.

Pat Venza expressed confusion with the direction of the ordinance, requested answers to comments and questions submitted by the Monterey Vista Neighborhood Association, and suggested denying applications that do not prove a significant gap in coverage exists.

Barbara Moore requested that Staff go through the draft ordinance to explain where it differs from the original and provide an analysis describing why recommendations were not followed.

Marta Kraftzeck asked the Commission not to recommend the ordinance as it needs the strongest language possible to deter cell towers near schools and residents.

Former Wireless Subcommittee member Susan Nine said Ms. Karish’s analysis differed from those of other attorneys and suggested Carmel required a significant gap analysis. Ms. Nine supplied reasons why wireless facilities should not be allowed in residential neighborhoods.

DocuSign Envelope ID: 9AFF2BCC-B9C6-4D9B-9ED7-79956C0AC436 ATTACHMENT 3
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 63, Packet Page 1817 Planning Commission Minutes Tuesday August 09, 2022
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3 Nina Beety suggested Staff has not provided the existing ordinance and requested the Planning Commission not to approve this version because ADA section A.2 is missing, the redline version was provided in black and white, and fair housing issues have not been addressed.

Ray Meyers urged the Planning Commission to reject the ordinance, explained wireless regulations have remained the same since 1996 despite modern technology changes, and highlighted needs for evaluation methods, safety verification, graphics showing radiation in twodimensional view, measurements of EMF after installation, and random inspections to verify compliance.

Laurie Putnam claimed conditions are not monitored at a cell tower in the New Monterey neighborhood and suggested investigation to ensure compliance, urging the Commission to find more ways to monitor sites after permits are issued.

Jean Rasch, MVNA president, suggested citizens need the advocacy of the Planning Commission, more dialogue, and responses to the Neighborhood’s submitted comments. Ms.

Rasch asked the Commission not to approve the draft ordinance as MVNA concerns have not yet been addressed.

Vice Chair Fletcher called a five-minute recess and reopened the meeting at 9:16 p.m.

Commissioner Comments
Commissioner Latasa said the public members of the Subcommittee seemed disappointed and agreed that nothing was provided showing what recommendations were rejected and why.

Commissioner Brassfield said MVNA has been consistent, and the repeat comments were overwhelming, and suggested looking at each recommendation to compare them with the existing and proposed ordinances.

Commissioner Millich asserted that City Attorney staff is doing their best to withstand legal challenge and suggested that tying fire hazard areas to global warming and health and safety is a justified action. Commissioner Brassfield agreed and suggested that when changes are made there should be an explanation.

Commissioner Freeman claimed the public comments downgraded the proposed ordinance, asked why the Subcommittee’s recommendations were not followed, and suggested an analysis of the Subcommittee’s ordinance versus staff recommendation to explain which changes the public were interested in and weighing whether they could be added to the ordinance.

Commissioner Latasa spoke in favor of providing an analysis for the public. Vice Chair Fletcher agreed, citing the need to be sure everyone understands clearly. Ms. Davi provided further details regarding the process and legal limitations.

Commissioner Millich suggested providing a comparison of the Subcommittee draft ordinance and the current proposed draft to exhibit what can or cannot be included and why. Vice Chair Fletcher agreed.

DocuSign Envelope ID: 9AFF2BCC-B9C6-4D9B-9ED7-79956C0AC436 ATTACHMENT 3
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4 Commissioner Millich said there are mistakes in the Agenda Packet. Ms. Cole requested an email showing which spelling and grammatical errors need corrections.

Commissioner Latasa motioned to continue the item with conditions to return with a point-bypoint comparison between the two drafts, and Commissioner Freeman seconded the motion.

Commissioner Millich requested adding a requirement to review the City’s ability to deny or oppose 5G poles based on a lack of fire insurance in a high fire hazard area.

Commissioner Latasa amended the motion to include Commissioner Millich’s suggestion.

Discussion followed regarding specifics of the information requested to be included and why.

Ms. Cole restated the amended motion for clarity. Commissioner Freeman seconded the amended motion.

Ms. Cleary stated a date of continuance was not determined and advised selecting a date certain or tabling instead of continuing the item. Ms. Cole suggested continuing the item to September 13, 2022. The motion maker and seconder agreed to add this date to the motion for continuance.

On a motion by Commissioner Latasa, seconded by Commissioner Freeman and carried by the following vote, the Planning Commission continued the item to a date certain of September 13, 2022 to allow staff to do an analysis of the Subcommittee draft in comparison to the current proposal to respond to recommendations on a point-by-point basis and explain which recommendations were added to the ordinance and why:

AYES: 6 COMMISSIONERS: Fletcher, Brassfield, Dawson, Freeman, Latasa, Millich
NOES: 0 COMMISSIONERS: None
ABSENT: 0 COMMISSIONERS: None
ABSTAIN: 0 COMMISSIONERS: None
RECUSED: 0 COMMISSIONERS: None
Commissioner Brassfield suggested answering questions submitted for public comment. Ms.

Cole suggested the Commission typically combs through comments and recommends what Staff should focus on and requested direction toward policy issues to explore in more detail.

Commissioner Brassfield offered to organize comments submitted for the August 09, 2022 meeting into a list for Staff reference.

COMMISSIONER COMMENTS
Commissioner Brassfield asked how the Wireless Subcommittee’s checklist is working. Ms. Cole said the Planning Commission received the checklist in 2019 with a goal to review the checklist for compliance after the ordinance is completed to make sure it complies with the new ordinance.

INFORMATIONAL REPORTS & STAFF COMMENTS
DocuSign Envelope ID: 9AFF2BCC-B9C6-4D9B-9ED7-79956C0AC436 ATTACHMENT 3
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5 4. Planning Office Update
• Update received.

ADJOURNMENT
There being no further business, the meeting adjourned at 9:58 p.m.

Respectfully Submitted, Approved,
Kimberly Cole
Community Development Director
Vice Chair
Planning Commission
DocuSign Envelope ID: 9AFF2BCC-B9C6-4D9B-9ED7-79956C0AC436 ATTACHMENT 3
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 66, Packet Page 1820

M I N U T E S

PLANNING COMMISSION

CITY OF MONTEREY
September 13, 2022
4:00 PM – 5:30 PM
7:00 PM – 11:00 PM

COUNCIL CHAMBER

AND ZOOMGOV TELECONFERENCE

MONTEREY, CALIFORNIA
Commissioners Present: Fletcher, Millich*, Freeman, Brassfield*, Dawson, Latasa * Participated remotely by videoconference
Commissioners Absent: None
Staff Members Present: Community Development Director Cole, City Attorney Davi (evening session only), Recording Secretary Cleary
This meeting was held with a combination of in-person and teleconference attendance pursuant to the Ralph M. Brown Act, Calif. Government Code section 54953(e)(1)(C), and the Monterey City Council’s Resolution authorizing virtual participation in public meetings given the COVID19 pandemic. ***Afternoon Session Agenda***
4:00 p.m. – 5:30 p.m.

CALL TO ORDER
Chair Fletcher called the meeting to order at 4:00 p.m.

Recording Secretary Cleary provided information to the public on how to participate and provide public comment during the meeting.

PUBLIC COMMENTS
None.

CONSENT ITEMS
Approval of Minutes

2. July 26, 2022
ACTION: Approved as submitted.

On a motion by Commissioner Dawson, seconded by Commissioner Latasa, and carried by the following vote, the Planning Commission approved the April 27, 2022 Minutes as submitted:

AYES: 6 COMMISSIONERS: Fletcher, Millich*, Freeman, Brassfield*, Dawson, Latasa
NOES: 0 COMMISSIONERS: None
ABSENT: 0 COMMISSIONERS: None
ABSTAIN: 0 COMMISSIONERS: None
DocuSign Envelope ID: C24065B7-B527-4E56-9796-9A99BB896AB8 ATTACHMENT 4
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 67, Packet Page 1821 Planning Commission Minutes Tuesday September 13, 2022
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2 RECUSED: 0 COMMISSIONERS: None
***End of Consent Agenda***

PUBLIC HEARING

3. Consider 350 Calle Principal Use Permit UP-22-0135 to Allow Modifications to an Existing Dish Wireless LLC (Dish) Personal Wireless Service Facility; Applicant Adam Ehrlich, J5 Infrastructure Partners on behalf of Dish; Owner: San Carlos Associates, a California Partnership; VAF Visitor Accommodation Facility Zoning District; Commercial General Plan Land Use Designation; Exempt from CEQA per Article 19, Section 15303, Class 3 ACTION: Continued the item to a date certain of September 27, 2022, pending further detailed drawings on elevations of the three locations of the wireless antennas. Applicant agreed to waive the shot clock.

Staff Presentation/Commissioner Questions
Wireless Application Consultant Jerry Hittleman presented the Agenda Report and answered Commissioner questions.

Commissioner Dawson asked if 5G emits a stronger signal than 4G. Mr. Hittleman explained the signal is stronger but only the Radio Frequency (RF) Report could say by how much.

Commissioner Latasa shared concerns regarding safety at the upper-level hotel rooms and inquired about the higher RF emission areas. Mr. Hittleman explained the diagrams in Exhibit D. Vice Chair Fletcher suggested the elevation was drawn incorrectly as the drawings are inconsistent. Commissioner Latasa agreed and said the plans do not reflect the building accurately. Commissioner Brassfield agreed, and the matter was discussed further.

Commissioner Brassfield requested clarification regarding the definition of significant change.

Ms. Cole explained Federal Communications Commission (FCC) regulations define 6409 applications and outlined applicable criteria and processes for 6409 application evaluations.

Applicant
Applicant Adam Ehrlich was present to answer questions.

Jeff Diether, on behalf of Dish, confirmed antennas broadcast out away from the building and added that 5G broadcasts differently and more directly towards the receiver.

Commissioner Dawson expressed concerns regarding the scale of the Electromagnetic Field (EMF) and asked if it would be broadcast vertically into the hotel rooms. Mr. Diether suggested the drawing included a scale of Electromagnetic Energy (EME) distribution. Ms. Cole asked if Dish would agree to halt the review shot clock to amend the exposure drawings and more accurately show exposure areas, suggesting the Commission could not tell if top rooms are affected as they are not shown on the drawings . Mr. Diether confirmed Dish could pause the shot clock to provide more accurate EME details and asked what other information the Commission may need.

DocuSign Envelope ID: C24065B7-B527-4E56-9796-9A99BB896AB8 ATTACHMENT 4
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3 Commissioner Brassfield questioned the difference in power between 4G and 5G. Mr. Diether explained.

Vice Chair Millich asked how long the shot clock would be halted. Ms. Cole offered potential continuation dates and corresponding deadlines.

Commissioner Latasa described inaccuracies of the RF Radius depictions and requested elevation drawings for Franklin and Calle Principal that show the antenna in relation to the tan part of the building. Mr. Diether confirmed that information could be provided.

Public Comments
None.

Commissioner Comments
Commissioner Freeman moved to continue the item to a date certain of September 27, 2022, pending further detailed drawings on elevations of the three locations of the wireless capsules.

Vice Chair Millich Seconded the motion.

Vice Chair Millich requested that the record show the shot clock timeframe has been waived by the applicant. Vice Chair Fletcher agreed.

On a motion by Commissioner Freeman, seconded by Vice Chair Millich and carried by the following vote, the Planning Commission, with the applicant agreeing to waive shot clock deadlines, continued the item to a date certain of September 27, 2022, pending further detailed drawings on elevations of the three locations of the wireless capsules:

AYES: 6 COMMISSIONERS: Fletcher, Millich, Freeman, Brassfield, Dawson, Latasa
NOES: 0 COMMISSIONERS: None
ABSENT: 0 COMMISSIONERS: None
ABSTAIN: 0 COMMISSIONERS: None
RECUSED: 0 COMMISSIONERS: None

4. Consider 600 Hawthorne Street Use Permit UP-22-0165 to Allow Modifications to an Existing Dish Wireless LLC (Dish) Personal Wireless Service Facility; Applicant Adam Ehrlich, J5 Infrastructure Partners on behalf of Dish; Owner: First Baptist Church of Monterey c/o Nathan M. Rehn; R-3 Zoning District; Residential – Medium General Plan Land Use Designation; Exempt from CEQA per Article 19, Section 15303, Class 3; Recommended for Continuance to September 27, 2022
ACTION: Continued to a date certain of September 27, 2022 Staff Presentation/Commissioner Questions
Community Development Director Cole recommended continuing the item to a date certain of September 27, 2022 to allow Staff time to analyze new submittal materials received.

Applicant
None.

DocuSign Envelope ID: C24065B7-B527-4E56-9796-9A99BB896AB8 ATTACHMENT 4
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4 Public Comments
None.

Commissioner Comments
None.

On a motion by Commissioner Latasa, seconded by Commissioner Dawson and carried by the following vote, the Planning Commission continued the item to a date certain of September 27, 2022:

AYES: 6 COMMISSIONERS: Fletcher, Millich, Freeman, Brassfield, Dawson, Latasa
NOES: 0 COMMISSIONERS: None
ABSENT: 0 COMMISSIONERS: None
ABSTAIN: 0 COMMISSIONERS: None
RECUSED: 0 COMMISSIONERS: None
RECESS 5:30 p.m.
***End of Afternoon Session Agenda***
The Planning Commission recessed at 4:53 p.m. and reconvened at 7:00 p.m. with all Commissioners present.
***Evening Session Agenda***
7:00 p.m. – 11:00 p.m.

CONTINUED PUBLIC COMMENTS
None.

PUBLIC HEARING (EVENING)

5. Consider Recommending an Ordinance to the City Council Repealing and Replacing City Code Chapter 38 Article 17 Section 112.4 Related to Wireless Communication Facilities Exempt from CEQA (Article 19, Sections 15305 and 15308, Classes 5 and 8) ACTION: Continued to a date certain of September 27, 2022, to research and discuss mockups, setbacks, bonds, and specified designs not yet addressed from submitted public comments
Staff Presentation/Commissioner Questions
DocuSign Envelope ID: C24065B7-B527-4E56-9796-9A99BB896AB8 ATTACHMENT 4
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5 Community Development Director Cole introduced the item and summarized the current Draft Wireless Ordinance process and status. Legal Consultant Gail Karish provided further details.

Ms. Karish, Ms. Cole, and City Attorney Davi answered Commissioner questions throughout.

Commissioner Freeman identified primary issues raised via public comment and said all were addressed except for administrative permits for temporary cell phone towers, mock-ups, and Planning Commission oversight on submittal forms. Ms. Cole discussed these concerns.

Commissioner Latasa inquired about Subsection E of Exhibit A and how hotel residents are considered. Ms. Cole provided details and examples, explaining the Ordinance encourages wireless facilities in mixed use and commercial areas over residential neighborhoods.

Commissioner Latasa requested more information regarding effective prohibition. Ms. Cole explained carriers could go before the Planning Commission to prove there is an effective prohibition if they wish to apply in an area the City has prohibited or discouraged these facilities.

Vice Chair Millich asked for clarification regarding significant gaps in coverage. Ms. Karish elaborated on the matter. Ms. Davi added that the draft Ordinance does not define “gap in coverage” but instead states an effective prohibition is as the Ninth Circuit tells us it is.

Commissioner Latasa suggested revising the word showing.

Commissioner Latasa inquired about eligible facilities. Ms. Karish explained. Ms. Cole added that 6409 applications are Eligible Facilities Requests and that the draft Ordinance uses FCC definitions.

Commissioner Latasa questioned if a third-party testing process is described in the Ordinance and what the procedure would be. Ms. Cole provided details.

Commissioner Latasa asked what drive test data is. Ms. Cole suggested drive test data is one of many ways to demonstrate effective prohibition and if used the Planning Commission would evaluate results to determine if antennas should be allowed in prohibited or discouraged areas.

Commissioner Latasa asked if the Planning Commission could require mock-ups. Ms. Cole explained it could be a submittal requirement and shared concerns of implementation challenges.

Commissioner Latasa inquired about a comment letter regarding district courts. Ms. Karish provided details, specifying that any Ninth Circuit Court must comply with Ninth Circuit rulings.

Commissioner Brassfield expressed frustration that presiding laws limit the ability to support citizens’ wants and suggested including a cautionary statement in the Ordinance outlining concerns for public health and safety. Ms. Cole referenced the provided cautionary statement example and discussed options.

Vice Chair Millich requested clarification regarding setbacks. Ms. Cole supplied further information. Vice Chair Millich advocated for requiring setbacks from homes and schools.

DocuSign Envelope ID: C24065B7-B527-4E56-9796-9A99BB896AB8 ATTACHMENT 4
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6 Vice Chair Millich suggested requiring performance bonds to ensure poles are removed when they are no longer in use.

Public Comments
Jean Rasch, on behalf of the Monterey Vista Neighborhood Association (MVNA), urged the Planning Commission to work with the City of Carmel, add drive testing requirements, and assign all costs and responsibilities to vendors.

Susan Nine expressed concern for general misunderstandings of current telecommunications laws, suggesting Grant of Authority provides absolute authority over placement of wireless cell towers unless applicants prove effective prohibition exists. Ms. Nine suggested seeking specialized opinions regarding interpretation of the law.

Judy Schmidt said cell coverage in Monterey is horrible despite drive test indications, asked what percentage of the population actively opposes cell towers, and suggested the group does not reflect views of the whole of Monterey.

Marta Kraftzeck requested the strongest possible ordinance to protect residents and said the current draft is not strong enough as it acquiesces impacts to views by antennas and polemounted equipment.

Pat Venza of Monterey Vista Neighborhood suggested specifying how to collect drive test data to ensure accurate results, expressed confusion with Ninth Circuit requirements, and requested establishment of follow-up measures to ensure Conditions of Approval are followed.

Christy Hollenbeck suggested the Telecommunications Act maintains local authority over decisions of placement, construction, and modification of wireless facilities, and alleged that although the City cannot establish effective prohibition it can select the least intrusive placement.

Jeana Jett reiterated previous complaints, questioned the draft Ordinance’s strength, claimed residences are unprotected from potential property devaluation, risk of urban fire and topheavy utility poles, and threats to health, and insisted on a stronger wireless ordinance.

Commissioner Comments
Commissioner Freeman suggested the previous draft did not entirely reflect Subcommittee concerns or some of the community’s issues and spoke in support of the current draft as it provides answers to questions and concerns raised by the public in previous meetings.

Commissioner Latasa agreed with Commissioner Freeman, spoke in favor of enforcing setbacks from school property lines, confirmed the Ordinance discourages wireless facilities in neighborhoods, noted frustration that health effects of RF emissions were not addressed, and suggested the Ordinance is close but not finished.

Vice Chair Millich shared Commissioner Brassfield’s concerns regarding capability versus necessity and asserted he would support the Ordinance only if it requires a 250-foot setback from school properties and residentially zoned properties. Ms. Davi provided guidance and advised that some schools want wireless facilities on campus as some children do not have DocuSign Envelope ID: C24065B7-B527-4E56-9796-9A99BB896AB8 ATTACHMENT 4
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7 internet access away from school. Ms. Karish added that the map included with the analysis shows that having that level of setback could result in effective prohibition. Vice Chair Millich suggested enforcing a severability clause and changing the setback amount and restated he would not support the Ordinance without a setback requirement.

Vice Chair Fletcher asked Commissioner Latasa whether he would prefer mockups be included with submittal or addressed at the Planning Commission phase. Commissioner Latasa echoed Ms. Cole, saying all requirements should be included at the Ordinance level, and asked if the City could require mockups only for specific types of applications. Vice Chair Fletcher advocated for establishing an ability to ensure complete understanding of each facility to allow proper analysis. Ms. Cole explained the Ordinance allows the City to regulate aesthetics, summarized the Subcommittee’s thoughts on the matter, and confirmed it is possible to create specific allowed equipment designs.

Commissioner Brassfield agreed with Vice Chair Millich’s suggestion regarding setbacks and spoke in support of the rest of the Ordinance.

Vice Chair Millich moved to continue the item to the next feasible date so feedback can be provided regarding setbacks from schools. Ms. Cole proposed September 27, 2022.

Commissioner Freeman and Chair Fletcher asked Vice Chair Millich to include in the motion issues of mockups, setbacks, and specified designs that had not been addressed from submitted public comments. Vice Chair Millich added all three items to the motion.

Commissioner Latasa inquired about bonding. Ms. Karish stated the City could require removal bonds. Commissioner Latasa suggested that is not a bad idea. Commissioner Freeman agreed. Commissioners concurred with adding bonds to the issues to be researched.

Commissioner Freeman seconded the motion to continue the item to September 27, 2022 with included information regarding the three topics not responded to from public comment.

On a motion by Vice Chair Millich, seconded by Commissioner Freeman and carried by the following vote, the Planning Commission continued the item to a date certain of September 27, 2022, to research and discuss mockups, setbacks, bonds and specified designs not yet addressed from submitted public comments:

AYES: 6 COMMISSIONERS: Fletcher, Millich, Brassfield, Dawson, Freeman, Latasa
NOES: 0 COMMISSIONERS: None
ABSENT: 0 COMMISSIONERS: None
ABSTAIN: 0 COMMISSIONERS: None
RECUSED: 0 COMMISSIONERS: None

COMMISSIONER COMMENTS
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8 Commissioner Brassfield requested status updates regarding various topics. Ms. Karish provided updates.

Commissioner Dawson shared concerns for access to PG&E equipment designs. Ms. Cole suggested information is available.

Vice Chair Millich requested photos be provided of collocated poles.

Commissioner Freeman noted commenters had come prepared with pre-written comments.

Commissioner Brassfield asked if a wireless engineer could be required to be available for questions at public hearings. Chair Fletcher agreed. Ms. Davi advised against discussing agendized items during the Commissioner Comment period.

Commissioner Latasa requested that vantage points from application photos be less than three blocks away.

INFORMATIONAL REPORTS & STAFF COMMENTS
Update received.

ADJOURNMENT
There being no further business, the meeting adjourned at 9:13 p.m.

Respectfully Submitted, Approved,
Kimberly Cole
Community Development Director
Chair
Planning Commission
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Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 74, Packet Page 1828

M I N U T E S

PLANNING COMMISSION

CITY OF MONTEREY
September 27, 2022
4:00 PM – 5:30 PM
7:00 PM – 11:00 PM

COUNCIL CHAMBER

AND ZOOMGOV TELECONFERENCE

MONTEREY, CALIFORNIA
Commissioners Present: Millich, Brassfield*, Dawson, Freeman, Latasa Commissioners Absent: Fletcher
* Participated remotely by videoconference
Staff Members Present: Community Development Director Cole, City Attorney Davi (evening session only), Recording Secretary Cleary
This meeting was held with a combination of in-person and teleconference attendance pursuant to the Ralph M. Brown Act, Calif. Government Code section 54953(e)(1)(C), and the Monterey City Council’s Resolution authorizing virtual participation in public meetings given the COVID19 pandemic. ***Afternoon Session Agenda***
4:00 p.m. – 5:30 p.m.

CALL TO ORDER
Vice Chair Millich, serving as meeting Chair, called the meeting to order at 4:00 p.m.

Recording Secretary Cleary provided information to the public on how to participate and provide public comment during the meeting.

PUBLIC COMMENTS
None.

CONSENT ITEMS
Approval of Minutes

2. August 23, 2022
ACTION: Approved as submitted.

On a motion by Commissioner Dawson, seconded by Commissioner Freeman, and carried by the following vote, the Planning Commission approved the August 23, 2022 Minutes as submitted:

AYES: 5 COMMISSIONERS: Millich, Brassfield, Dawson, Freeman, Latasa NOES: 0 COMMISSIONERS: None
ABSENT: 1 COMMISSIONERS: Fletcher
ABSTAIN: 0 COMMISSIONERS: None
DocuSign Envelope ID: 3138BFF3-3976-4B75-94E9-90D522D4348A ATTACHMENT 5
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 75, Packet Page 1829 Planning Commission Minutes Tuesday September 27, 2022
Planning Commission Meeting Minutes
Tuesday September 27, 2022
2 RECUSED: 0 COMMISSIONERS: None
***End of Consent Agenda***

PUBLIC HEARING

4. Consider 600 Hawthorne Street Use Permit UP-22-0165 to Allow Modifications to an Existing Dish Wireless LLC (Dish) Personal Wireless Service Facility; Applicant Adam Ehrlich, J5 Infrastructure Partners on behalf of Dish; Owner: First Baptist Church of Monterey c/o Nathan M. Rehn; R-3 Zoning District; Residential – Medium General Plan Land Use Designation; Exempt from CEQA per Article 19, Section 15303, Class 3 ACTION: Approved Use Permit UP-22-0165 to allow modifications to an existing Dish Wireless LLC (Dish) Personal Wireless Service Facility at 600 Hawthorne Street, pursuant to findings and conditions submitted in the Agenda Report Staff Presentation/Commissioner Questions
Wireless Application Consultant Jerry Hittleman presented the Agenda Report. Community Development Director Cole and Mr. Hittleman answered Commissioner questions.

Commissioner Latasa inquired about worker safety near the proposed antennas. Mr. Hittleman explained the equipment could be turned off if needed and signage would be required. Ms.

Cole added that all signage would have to comply with Occupational Safety and Health Administration (OSHA) regulations.

Commissioner Freeman asked if the proposal would be considered a stealth facility. Mr.

Hittleman confirmed it would.

Applicant
Applicant Adam Ehrlich was present to answer questions.

Jeff Diether, on behalf of Dish, alleged a Point of Contact sign would include a phone number to the network operations center that could shut the site down remotely or create a shutdown schedule for worker access.

Commissioner Dawson asked if signage would be posted at the roof’s edge instead of solely near the cupola. Mr. Diether explained sign placement would be taken into consideration at the engineering phase and signage must follow Federal Communications Commission (FCC) requirements for safe access. Ms. Cole iterated signage requirements.

Commissioner Brassfield asked if master switches are available or if the equipment must be turned off remotely. Mr. Diether suggested it would be done electronically through the Cloud.

Mr. Ehrlich added that three warning signs would be posted to the outer wall of the cupola.

Public Comments
None.

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3 Commissioner Comments
Commissioner Dawson asked if this is a 6409 application. Ms. Cole confirmed it is.

Commissioner Dawson suggested that since 6409 applies there is a Federal law saying the project must be approved no matter what. Ms. Cole explained the criteria that defines 6409 applications. Commissioner Dawson and Vice Chair Millich asked clarifying questions regarding the process. Ms. Cole provided details.

On a motion by Commissioner Freeman, seconded by Commissioner Dawson and carried by the following vote, the Planning Commission approved Use Permit UP-22-0165 to allow modifications to an existing Dish Wireless LLC (Dish) Personal Wireless Service Facility at 600 Hawthorne Street, pursuant to findings and conditions submitted in the Agenda Report:

AYES: 5 COMMISSIONERS: Millich, Brassfield*, Dawson, Freeman, Latasa NOES: 0 COMMISSIONERS: None
ABSENT: 1 COMMISSIONERS: Fletcher
ABSTAIN: 0 COMMISSIONERS: None
RECUSED: 0 COMMISSIONERS: None

5. Consider 350 Calle Principal Use Permit Amendment PA-22-0135 to Allow Modifications to an Existing Dish Wireless LLC (Dish) Personal Wireless Service Facility; Applicant Adam Ehrlich, J5 Infrastructure Partners on behalf of Dish; Owner: San Carlos Associates, a California Partnership; VAF Visitor Accommodation Facility Zoning District; Commercial General Plan Land Use Designation; Exempt from CEQA per Article 19, Section 15303, Class 3; Recommended for Continuance to October 11, 2022 ACTION: Continued to a date certain of October 11, 2022 Staff Presentation/Commissioner Questions
Community Development Director Cole recommended continuing the item to a date certain of October 11, 2022.

Applicant
Applicants Adam Ehrlich and Jeff Diether were present to answer questions.

Public Comments
None.

Commissioner Comments
None.

On a motion by Commissioner Dawson, seconded by Commissioner Latasa and carried by the following vote, the Planning Commission continued the item to a date certain of October 11, 2022:

AYES: 5 COMMISSIONERS: Millich, Brassfield*, Dawson, Freeman, Latasa NOES: 0 COMMISSIONERS: None
ABSENT: 1 COMMISSIONERS: Fletcher
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Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 77, Packet Page 1831 Planning Commission Minutes Tuesday September 27, 2022
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4 ABSTAIN: 0 COMMISSIONERS: None
RECUSED: 0 COMMISSIONERS: None
RECESS 5:30 p.m.
***End of Afternoon Session Agenda***
The Planning Commission recessed at 4:37 p.m. and reconvened at 7:00 p.m. with the same Commissioners present as noted above.
***Evening Session Agenda***
7:00 p.m. – 11:00 p.m.

CONTINUED PUBLIC COMMENTS
None.

PUBLIC HEARING (EVENING)

6. Consider Recommending an Ordinance to the City Council Repealing and Replacing City Code Chapter 38 Article 17 Section 112.4 Related to Wireless Communication Facilities Exempt from CEQA (Article 19, Sections 15305 and 15308, Classes 5 and 8) ACTION: Continued the item to a date certain of October 25, 2022 to specify that:
mockups are not required but photo simulations are required both from a distance and close-up; facilities must be separated by a minimum of 250 feet to avoid visual clutter; distances from schools and residences must be 100 feet minimum excluding situations in which effective prohibition could be proven; and, standardized pole design shall be included in the draft Ordinance
Staff Presentation/Commissioner Questions
Community Development Director Cole introduced the item, summarized the current Draft Wireless Ordinance process and status, and presented new information. Legal Consultant Gail Karish provided further details. Ms. Karish, Ms. Cole, and City Attorney Davi answered Commissioner questions.

Commissioner Brassfield suggested requiring applicants to provide better photo simulations than one- or two-dimensional images, asked if distance between facilities could be regulated, and spoke in support of including drive-by data requirements in the Ordinance.

Commissioner Freeman asked if there was a suggested setback distance from schools. Ms.

Cole stated 150 feet was suggested in public comment and shared concern for legal risks.

Commissioner Freeman spoke in favor of pole-mounted styles and suggested considering the wires rather than distance or height.

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5 Commissioner Latasa inquired about requiring scale models or mockups on an as-needed basis. Ms. Cole advised that all requirements should be included in the submission checklist.

Ms. Karish suggested possible solutions and specifics were discussed regarding possibilities and limitations. Commissioner Latasa suggested requiring applicants to submit photo simulations with both a street view and a close-up view to allow the ability to understand project size and scope. Ms. Cole clarified that is achievable, provided examples of what could be required, and said another option is to select design by location or area. Commissioner Latasa asked if the Subcommittee had preferred utilizing existing poles. Ms. Cole confirmed they did.

Ms. Karish added that there is a section in the Draft Ordinance regarding pre-approval of designs.

Commissioner Dawson asked why the FCC does not require drive-by testing for wireless service facilities. Ms. Karish provided details, explaining it cannot be required for some types of applications.

Commissioner Brassfield asked if there are any conflicts in FCC rules and the Charter written by Congress and inquired about proof of significant gaps in coverage. Ms. Karish explained.

Vice Chair Millich recommended utilizing performance bonds to ensure applicants remove unused equipment and suggested amending the setback language over consideration for effective prohibition. Ms. Karish listed legal concerns and example outcomes.

Commissioner Latasa asked about requiring setbacks from residential structures instead of property lines. Ms. Cole explained possible challenges, suggesting structures change more commonly than property lines. Commissioner Latasa expressed concern for proximity of poles to residences. Ms. Cole stated the Ordinance prohibits wireless facilities in residential areas unless effective prohibition is proven.

Ms. Davi provided information regarding the City’s Public Works performance bonds stating they are only required for projects over $150,000.

Public Comments
Nancy Soulé read a previously submitted public comment raising concerns regarding safety hazards, financial risk, and cost responsibility.

Pat Venza of the Monterey Vista Neighborhood Association requested clarification regarding requirements of drive test data, suggested requiring mock-ups for proposals in residential areas, and suggested potential spaces to house those mockups.

Christy Hollenbeck suggested gathering multiple perspectives regarding legal possibilities and limits, claimed the Ordinance is unenforceable, and urged the Planning Commission to rethink setbacks and significant gaps in coverage.

Marta Kraftzeck suggested the proposal is not strong enough to prevent 5G throughout the City, recommended that the Ordinance require drive test data, opposed allowing increased antenna height and size due to visual impact, and requested protection from the telecommunications industry.

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6 Susan Nine recommended that the City collect call data from wireless companies, supplied reasons why setback requirements from schools and residential properties are preferred, and spoke in favor of maintaining the lowest height limit from the current Ordinance.

Charles Martin spoke in favor of maintaining the beauty and character of the City, alleging that as Monterey is not a technological center it could withstand more stringent requirements and wireless costs could be paid by applicants.

Jean Rasch spoke in favor of enforcing setbacks between poles, advocated for enforcing the smallest maximum equipment size possible, shared concerns regarding enforcing a specific design, and thanked Staff for adding claims for effective prohibition.

Laurie Putnam, from New Monterey, suggested focusing on post-approval processes and compliance enforcement, outlining instances where previously approved projects failed to maintain compliance with approved conditions.

Commissioner Comments
Commissioner Brassfield proposed adhering to advice from the provided legal counsel, articulated concerns regarding public preference conflicting with legal limitations, argued that young people want cell towers and data, and supported the idea of performance bonds.

Vice Chair Millich recessed the meeting at 8:31 p.m. and reconvened at 8:36 p.m. with the same five Commissioners present.

Commissioner Freeman summarized public comments not yet addressed including postapproval monitoring and compliance enforcement, ensuring safety and development standards especially on collocated poles, selecting maximum equipment dimensions, and establishing an effective maintenance program.

Commissioner Latasa agreed that the Ordinance is close but not perfect, spoke in favor of requiring photo simulations from two separate angles, suggested the Commission select a minimum distance between facilities, advocated for a 150-foot setback from schools, requested feedback on standardized pole designs, and agreed with Commissioner Freeman regarding maximum equipment size.

Commissioner Dawson showed support for enforcing a minimum distance between poles and creating a standardized pole design. Vice Chair Millich advised considering colocation.

Commissioner Dawson suggested contacting regional authorities like PG&E or the School District to understand their positions on the matter.

Vice Chair Millich reiterated his performance bond suggestion, spoke in favor of a 150-foot setback from schools but not from residences, and advocated for protecting the residents.

Commissioner Dawson cautioned against cluttering neighborhoods with new poles.

Commissioner Freeman agreed and suggested a minimum distance between facilities is key.

Commissioner Latasa requested input regarding setbacks. Ms. Cole suggested requiring setbacks between facilities for aesthetic reasons is feasible. Commissioner Brassfield brought DocuSign Envelope ID: 3138BFF3-3976-4B75-94E9-90D522D4348A ATTACHMENT 5
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 80, Packet Page 1834 Planning Commission Minutes Tuesday September 27, 2022
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7 up legal concerns. Ms. Karish provided insight. Commissioner Freeman asked Ms. Karish to recommend a reasonable distance. Ms. Karish provided examples and said a common range is 150 to 500 feet between antenna facilities.

Commissioner Dawson suggested having a consultant perform the drive tests to ensure more trustworthy data.

Commissioner Latasa spoke in favor of enforcing setbacks in residential areas. Vice Chair Millich suggested mandating a 150-foot setback.

Commissioner Latasa inquired about the additional pole height and width issue. Ms. Cole disclosed how the proposed measurements were determined. Ms. Karish supplied details regarding equipment makeup. Commissioner Dawson advocated for taking the safest option.

Commissioner Latasa motioned to continue the item to a date certain to specify that: mockups are not required but photo simulations are required both from a distance and close-up; facilities must be separated by a minimum of 250 feet; distances from schools and residences must be 100 feet minimum; and, standardized pole design shall be included in the draft Ordinance.

Commissioner Freeman seconded the motion. Vice Chair Millich suggested adding to the 100- foot setback an exception requiring applicants to provide clear and convincing evidence of effective prohibition where applicable. Ms. Cole requested clarification. Commissioner Latasa elaborated.

Commissioner Freeman suggested stating the City will establish a standardized pole design in the future. Commissioner Latasa revised the motion to include the suggestion.

Recording Secretary Cleary repeated the motion for clarity. Commissioner Latasa specified that the 100-foot setback from facilities and residences should include the Vice Chair’s statement to exclude situations in which the applicant could prove effective prohibition. Vice Chair Millich questioned the legal and appeal processes. Ms. Davi and Ms. Karish explained.

Commissioner Freeman inquired about enforcing the design as approved projects are constructed. Ms. Cole outlined the Building process, saying each site would be inspected prior to Building permit issuance.

Commissioner Brassfield asked why the setback was placed at 100 feet. Commissioner Latasa suggested 150 feet seemed too high and 100 feet might be less restrictive.

Commissioner Latasa asked if language would be included regarding the aesthetic rationale.

Ms. Davi advised the Commission to articulate visual concerns. Commissioner Latasa specified the priority is to establish setbacks based on goals of avoiding visual clutter and limiting visual impact.

Ms. Davi advised that Staff would continue to not recommend to the City Council a setback from residences or schools and clarified that Staff and Planning Commission recommendations may differ. Vice Chair Millich spoke in support of including the notion to avoid visual clutter.

DocuSign Envelope ID: 3138BFF3-3976-4B75-94E9-90D522D4348A ATTACHMENT 5
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 81, Packet Page 1835 Planning Commission Minutes Tuesday September 27, 2022
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8 Ms. Cole proposed revisiting the discussion at the October 25, 2022 Planning Commission meeting. Commissioner Latasa revised the motion to continue the item to date certain of October 25, 2022. Commissioner Freeman agreed to the terms of the revised motion.

On a motion by Commissioner Latasa, seconded by Commissioner Freeman and carried by the following vote, the Planning Commission continued the item to a date certain of October 25, 2022 to specify that: mockups are not required but photo simulations are required both from a distance and close-up; facilities must be separated by a minimum of 250 feet to avoid visual clutter; distances from schools and residences must be 100 feet minimum excluding situations in which effective prohibition could be proven; and, standardized pole design shall be included in the draft Ordinance:

AYES: 6 COMMISSIONERS: Millich, Brassfield, Dawson, Freeman, Latasa NOES: 0 COMMISSIONERS: None
ABSENT: 0 COMMISSIONERS: Fletcher
ABSTAIN: 0 COMMISSIONERS: None
RECUSED: 0 COMMISSIONERS: None

INFORMATIONAL REPORTS & STAFF COMMENTS
Update received.

COMMISSIONER COMMENTS
None.

ADJOURNMENT
There being no further business, the meeting adjourned at 9:38 p.m.

Respectfully Submitted, Approved,
Kimberly Cole
Community Development Director
Vice Chair
Planning Commission
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Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 82, Packet Page 1836

M I N U T E S

PLANNING COMMISSION

CITY OF MONTEREY
October 25, 2022
4:00 PM – 5:30 PM
7:00 PM – 11:00 PM

COUNCIL CHAMBER AND ZOOMGOV TELECONFERENCE

MONTEREY, CALIFORNIA
Commissioners Present: Fletcher, Millich, Freeman, Brassfield*, Dawson** (remote for evening session only)
Commissioners Absent: Latasa
Staff Members Present: Community Development Director Cole, City Attorney Davi** (remote for afternoon session only), Senior Associate Planner Schmidt** (attended evening session only), Associate Planner Buggert, Recording Secretary Cleary
* Participated remotely by videoconference for full meeting ** Participated remotely by videoconference for partial meeting This meeting was held with a combination of in-person and teleconference attendance pursuant to the Ralph M. Brown Act, Calif. Government Code section 54953(e)(1)(C), and the Monterey City Council’s Resolution authorizing virtual participation in public meetings given the COVID19 pandemic. ***Afternoon Session Agenda***
4:00 p.m. – 5:30 p.m.

CALL TO ORDER
Chair Fletcher called the meeting to order at 4:00 p.m.

Recording Secretary Cleary provided information to the public on how to participate and provide public comment during the meeting.

PUBLIC COMMENTS
None.

CONSENT ITEMS
Approval of Minutes

2. October 11, 2022
ACTION: Approved as submitted.

On a motion by Commissioner Freeman, seconded by Commissioner Dawson, and carried by the following vote, the Planning Commission approved the October 11, 2022 Minutes as submitted:

AYES: 5 COMMISSIONERS: Fletcher, Millich, Freeman, Brassfield, Dawson NOES: 0 COMMISSIONERS: None
DocuSign Envelope ID: F28E5075-C375-46D5-9E73-E9C0F51E254C ATTACHMENT 6
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 83, Packet Page 1837 Planning Commission Minutes Tuesday October 25, 2022
Planning Commission Meeting Minutes
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2 ABSENT: 1 COMMISSIONERS: Latasa
ABSTAIN: 0 COMMISSIONERS: None
RECUSED: 0 COMMISSIONERS: None

3. Consider 113 Spray Avenue; Variance Application VA-22-0132 to Increase the Maximum Allowed Building Height from 25 Feet to 30 Feet 4 Inches on a Portion of the Existing Three-Story Single-Family Dwelling; Applicant Allen Robinson; Owner Stephen H Meyer Tr.; R-1-6-D1 Zoning District; Low Density Residential Land Use Designation (Exempt from CEQA per Article 18, Section 15270a) - Continue to November 8, 2022 ACTION: Continued item to a date certain of November 08, 2022 Staff Presentation/Commissioner Questions
Community Development Director Cole recommended continuing the item to a date certain of November 8, 2022 as the applicant was unavailable to be present at the hearing.

Applicant
None.

Public Comments
None.

Commissioner Comments
None.

On a motion by Commissioner Millich, seconded by Commissioner Dawson, and carried by the following vote, the Planning Commission continued the item to a date certain of November 08, 2022:

PUBLIC HEARING

4. Consider 828 Pacific Street; Application for H-2 Historic Zoning (TM-22-0190); Applicant/Owner Ben Michael Beesley and Shannon Highfield; R-1-6 Zoning District; Low Density Residential General Plan Land Use Designation; Exempt from CEQA per Article 19, Section 15305, Class 5
ACTION: Approved Text/Map Amendment application TM-22-0190 for H-2 Historic Zoning at 828 Pacific Street
DocuSign Envelope ID: F28E5075-C375-46D5-9E73-E9C0F51E254C ATTACHMENT 6
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 84, Packet Page 1838 Planning Commission Minutes Tuesday October 25, 2022
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3 Staff Presentation/Commissioner Questions
Chair Fletcher recused from the item because of owned property near the project site. Vice Chair Millich filled-in as Chair while Chair Fletcher was away from the meeting.

Community Development Director Cole introduced the item then Associate Planner Buggert presented the Agenda Report and answered Commissioner questions.

Commissioner Freeman asked if the garage would be included in the historic status. Mr.

Buggert said the garage onsite was not considered as a factor of historicity but if it were on a historic property any future alterations would require a historic permit.

Applicant
Project site owner Ben Beesley was present to answer questions and added that the builder, Albert Seeno, was a Sicilian immigrant and this was one of his first homes built. Commissioner Dawson referenced a street in Old Town called Seeno and said he may have also built boats.

Public Comments
None.

Commissioner Comments
Commissioner Freeman spoke in full support of approval, suggested it is wonderful to have the working-class cottage as part of the town’s historic resources, and reminded the applicant that the garage must stay as far away from the house as possible to avoid including it in the historic structure.

Commissioner Dawson spoke in support of H-2 historic zoning, suggesting the owner of the house has taken wonderful care of it.

Commissioner Brassfield also spoke in support of approval.

On a motion by Commissioner Dawson, seconded by Commissioner Brassfield and carried by the following vote, the Planning Commission approved Text/Map Amendment application TM-22-0190 for H-2 Historic Zoning at 828 Pacific Street:

AYES: 4 COMMISSIONERS: Millich, Freeman, Brassfield, Dawson NOES: 0 COMMISSIONERS: None
ABSENT: 1 COMMISSIONERS: Latasa
ABSTAIN: 1 COMMISSIONERS: Fletcher
RECUSED: 0 COMMISSIONERS: None

5. Consider Adopting the Supplemental Mitigated Negative Declaration for the Greenbelt Fuel Reduction Project – Old Capitol Site; Applicant City of Monterey; Open Space Zoning District; Parks and Open Space General Plan Designation ACTION: Approved a Resolution adopting the Supplemental Mitigated Negative Declaration for the Greenbelt Fuel Reduction Project – Old Capitol Site DocuSign Envelope ID: F28E5075-C375-46D5-9E73-E9C0F51E254C ATTACHMENT 6
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 85, Packet Page 1839 Planning Commission Minutes Tuesday October 25, 2022
Planning Commission Meeting Minutes
Tuesday October 25, 2022
4 Staff Presentation/Commissioner Questions
Associate Planner Buggert presented the Agenda Report and answered Commissioner questions.

Community Development Director Cole announced that Chair Fletcher had returned late from recusal and as he missed some of the presentation, he would be unable to vote on the matter.

Commissioner Dawson asked if the City pays tribes for them to oversee soil disturbance. Mr.

Buggert provided details regarding the process. Mr. Buggert cited regulations regarding the tribe’s association with the project.

Commissioner Brassfield asked if other funding sources have been identified to help with this work. Ms. Cole suggested approval of funds is included in the budgetary process for each year and elaborated that the current phase is preparation of the environmental document so the project could be ready to start once funding is secured. Commissioner Brassfield suggested finding grant funding as more expenditures for this project have been identified.

Commissioner Freeman requested clarification regarding the reason for the proposal. Mr.

Buggert explained that when the original Mitigated Negative Declaration (MND) was approved, these sites had not yet been obtained by the City and could not be included as such, hence the Supplemental MND.

Public Comments
Tom Rowley from Fishermans Flats neighborhood said this was a high priority item with the Neighborhood Improvement Program Committee recognizing the area badly needs cleanup, and thanked staff for working on the project.

Nina Beety shared concerns of stripping habitats or vegetation as well as tree removal potentially not happening in a careful or judicious manner. Ms. Beety stated that the forest is stressed and expressed fear of lower moisture in the forest if vegetation is removed, possibly raising the risk of fire or damage to the ecosystem.

Commissioner Comments
Commissioner Dawson suggested the City needs the fuel cleanup, shared concerns for fire moving uphill into homes, and requested that poison oak be removed in the process.

Commissioner Brassfield provided suggestions to improve water retention capabilities and recommended examining solutions to determine where water retention could be improved.

On a motion by Commissioner Freeman, seconded by Commissioner Dawson and carried by the following vote, the Planning Commission approved a Resolution adopting the Supplemental Mitigated Negative Declaration for the Greenbelt Fuel Reduction Project – Old Capitol Site:

AYES: 4 COMMISSIONERS: Millich, Freeman, Brassfield, Dawson NOES: 0 COMMISSIONERS: None
ABSENT: 1 COMMISSIONERS: Latasa
ABSTAIN: 1 COMMISSIONERS: Fletcher
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Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 86, Packet Page 1840 Planning Commission Minutes Tuesday October 25, 2022
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5 RECUSED: 0 COMMISSIONERS: None

6. Consider 350 Calle Principal Use Permit Amendment PA-22-0135 to Allow Modifications to an Existing Dish Wireless LLC (Dish) Personal Wireless Service Facility; Applicant Adam Ehrlich, J5 Infrastructure Partners on behalf of Dish; Owner: San Carlos Associates, a California Partnership; VAF Visitor Accommodation Facility Zoning District; Commercial General Plan Land Use Designation; Exempt from CEQA per Article 19, Section 15303, Class 3
ACTION: Adopted a Resolution approving Use Permit Amendment PA-22-0135 to allow modifications to an existing Dish Wireless LLC (Dish) personal wireless service facility at 350 Calle Principal subject to stated Findings and Conditions of Approval with the additional requirement that prior to issuing a Building permit the plans would be modified to accurately show windows, decks, and elevations
Staff Presentation/Commissioner Questions
On-call Wireless Application Consultant Jerry Hittleman presented the Agenda Report and answered Commissioner questions.

Commissioner Dawson asked if the signage would be posted in Spanish and in English. Mr.

Hittleman deferred to applicant.

Commissioner Brassfield asked where the balcony chairs are in relation to the transmitter. Mr.

Hittleman explained the Radio Frequency (RF) was measured at the deck level if a person is standing on the deck. Vice Chair Millich suggested Mr. Hittleman show where the chairs would be to get an idea of the distance. Mr. Hittleman discussed the matter. Chair Fletcher said he did not think the balconies are deep enough to put chairs on. Commissioner Brassfield referenced an illustration showing chairs to the left and shared concerns for RF emissions being close to chairs on the balconies. Mr. Hittleman provided estimated distances. Ms. Cole explained that the occupational and public exposure areas are substantially above the deck areas.

Applicant
Adam Ehrlich was present to answer questions and said an RF Engineer was present on the call as well.

Commissioner Dawson asked if the safety signs would be posted in more than one language.

Mr. Ehrlich said it appears the signs are only in English. Chair Fletcher asked if signs are required to be posted in more than one language. Mr. Ehrlich said they are not, but dual signs are available and if the Commission would like they can be provided in English and Spanish.

Public Comments
None.

Commissioner Comments
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6 Commissioner Dawson requested that safety signs be posted in Spanish and in English for safety. Chair Fletcher agreed. City Attorney Davi suggested deferring to Occupational Safety and Health Administration (OSHA) rules rather than making new ones.

Commissioner Freeman said the project was continued because the original plans did not accurately show the RF emission radius, however, the plans have since been improved and at the Building permit level they will have to be even more comprehensive.

Chair Fletcher agreed and said that although it is a good idea to have signage in two languages, that decision should be referred to the City Attorney. Commissioner Brassfield advised that if the applicant wants to volunteer for dual signage they should not be stopped.

On a motion by Commissioner Freeman, seconded by Commissioner Dawson and carried by the following vote, the Planning Commission adopted a Resolution approving Use Permit Amendment PA-22-0135 to allow modifications to an existing Dish Wireless LLC (Dish) personal wireless service facility at 350 Calle Principal subject to stated Findings and Conditions of Approval with the additional requirement that prior to issuing a Building permit the plans would be modified to accurately show windows, decks, and elevations:

AYES: 5 COMMISSIONERS: Fletcher, Millich, Freeman, Brassfield, Dawson NOES: 0 COMMISSIONERS: None
ABSENT: 1 COMMISSIONERS: Latasa
ABSTAIN: 0 COMMISSIONERS: None
RECUSED: 0 COMMISSIONERS: None
RECESS 5:30 p.m.
***End of Afternoon Session Agenda***
The Planning Commission recessed at 5:14 p.m. and reconvened at 7:00 p.m. After technical difficulties were found and resolved, Chair Fletcher reconvened the meeting again at 7:20 p.m. with all Commissioners present except Commissioner Latasa, who remained absent. ***Evening Session Agenda***
7:00 p.m. – 11:00 p.m.

CONTINUED PUBLIC COMMENTS
Nina Beety said she is disabled by electromagnetic sensitivity and could not attend the hearing in person because of barriers due to wi-fi and internet access, and shared concerns regarding public safety. She said the Commission has asked the City to provide information on where the Telecommunications Act intersects with ADA and shared concerns regarding enforcement issues and public safety, alleging there are utility poles in the City that are leaning and unsafe with no penalty and no abatement.

DocuSign Envelope ID: F28E5075-C375-46D5-9E73-E9C0F51E254C ATTACHMENT 6
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 88, Packet Page 1842 Planning Commission Minutes Tuesday October 25, 2022
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7 PUBLIC HEARING (EVENING)

7. Consider Recommending an Ordinance to the City Council Repealing and Replacing City Code Chapter 38 Article 17 Section 112.4 Related to Wireless Communication Facilities Exempt from CEQA (Article 19, Sections 15305 and 15308, Classes 5 and 8) ACTION: Adopted a Resolution recommending an Ordinance to the City Council repealing and replacing City Code Chapter 38 Article 17 Section 112.4 related to wireless communication facilities as presented, with added conditions that a 100-foot setback from schools and residences must be required and any relief granted from showing effective prohibition must be the least intrusive
Staff Presentation/Commissioner Questions
Community Development Director Cole introduced the item, provided background information regarding the Wireless Ordinance process and status, and answered Commissioner questions. Gail Karish, Legal Consultant from Best Best & Krieger, provided further details.

Ms. Karish, Ms. Cole, and City Attorney Davi answered Commissioner questions throughout the presentations.

Vice Chair Millich referenced Agenda Packet page 305 to ask why encouraged was used instead of shall regarding how applicants could show effective prohibition. Ms. Karish detailed reasons for utilizing the selected verbiage.

Commissioner Dawson asked how colocation is addressed if several providers use all the poles and what happens when they are less than 250 feet apart. Ms. Cole explained that the setback between poles would be 250 feet. Commissioner Dawson shared concerns for potentially running out of space and discussed the matter with Ms. Karish.

Chair Fletcher inquired about congestion indications when carriers switch from Fourth Generation (4G) to Fifth Generation (5G) services. Ms. Cole said the new technology will predominantly be on utility poles near the public right-of-way.

Chair Fletcher inquired about the provided aesthetic examples of poles and what happened to the City’s goal to put equipment in vaults. Ms. Davi stated the Council adopted an Encroachment Ordinance specifying undergrounding regulations and that part of Wireless equipment is addressed there.

Commissioner Brassfield requested clarification regarding Paul Albritton’s letter. Ms. Karish provided background information regarding effective prohibition standards and challenges involving them.

Commissioner Brassfield shared concerns regarding capacity and ability to regulate wireless facilities while protecting the public, asking who is responsible for ensuring safety and oversight and how general safety operations would be recognized.

Public Comments
DocuSign Envelope ID: F28E5075-C375-46D5-9E73-E9C0F51E254C ATTACHMENT 6
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8 Monterey Vista resident Pat Venza requested clarification and shared concerns regarding proving effective prohibition, gaps in coverage, drive test data, drop call records, denial of service records, setbacks, and safety.

Ray Meyers of Monterey Vista Neighborhood suggested cell towers do not belong in residential areas as faster broadband is unnecessary and can be done via fiberoptics and wifi routers. Mr. Meyers advocated for a 100-foot setback in residential and school areas and requirements to provide models for graphically predicting 2D and 3D field radiation patterns along with topography and elevation of the structures being utilized.

Susan Nine cited wireless Ordinances from other cities, recommended similar regulations for Monterey, and suggested 250 feet between poles is not enough while 500 or 1,000 feet is more appropriate in residential areas.

Nina Beety discussed recommendations and concerns regarding project noticing, standardized designs, CEQA, equipment attached to building exteriors, ADA compliance, public rights-of-way, strand-mounting, temporary cell towers, RF exposure report, mockups, and setbacks.

Marta Kraftzeck encouraged the Planning Commission to maintain a 100-foot setback for aesthetic and safety purposes, shared concerns for noise and health risks, and suggested placing limitations on equipment height and size, view impacts, and potential risk to residents.

Christy Hollenbeck spoke in support of a 500-foot setback, referenced other California cities with similar setbacks requirements, opposed wireless facilities near homes and schools, and urged the Commission to require mockups.

Bruce Zanetta, resident of Monterey Vista Neighborhood and member of the Monterey Vista Neighborhood Association (MVNA) Undergrounding Subcommittee, argued in favor of requiring that wireless facilities be undergrounded and enforcing the Commission’s 100-foot setback proposal.

Jean Rash, member of Monterey Vista Neighborhood Association (MVNA), urged the Planning Commission to support 100-foot setbacks from residents, and require three-dimensional mockups as well as policy issue documentation.

Jeanne Ferrara suggested property values decrease when cell towers are nearby, argued in favor of requiring 100-foot setbacks from schools and residences, three-dimensional mockups, and drive-by testing, then shared concerns for fire risk, global warming, and public health.

Commissioner Comments
Commissioner Dawson inquired about the feasibility of requiring a 100-foot setback from residences and schools. Ms. Cole explained that Staff’s conclusion was that the 100-foot setbacks to residences and schools eliminates too much of the City from having wireless facilities.

Commissioner Brassfield asked if there was a map showing right-of-way locations where cell towers are preferred instead of in residential neighborhoods. Ms. Cole provided ways the draft DocuSign Envelope ID: F28E5075-C375-46D5-9E73-E9C0F51E254C ATTACHMENT 6
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 90, Packet Page 1844 Planning Commission Minutes Tuesday October 25, 2022
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9 Ordinance encourages facilities to be in commercial and industrial areas over residential neighborhoods.

Commissioner Freeman outlined the process neighbors and City Staff have gone through to create the Wireless Ordinance, suggested requiring photo simulations and establishing a 250- foot setback with 500-foot coverage, said the 100-foot setback from schools and homes is not viable, and spoke in favor of adopting a standardized pole design.

Vice Chair Millich asked clarifying questions about effective prohibition, argued in favor of enforcing a 100-foot setback from schools and residences, raised questions regarding legal course if a lawsuit occurs, and said wireless facilities do not belong in residential areas.

Chair Fletcher agreed with Vice Chair Millich, suggested limiting visual clutter to preserve aesthetics, and spoke in support of what had been approved at the September 27, 2022 hearing he could not attend.

Commissioner Brassfield recommended requiring applicants to provide three-dimensional mockups with their proposals.

Vice Chair Millich moved to approve the Draft Ordinance as presented, with added conditions that a 100-foot setback from schools and residences must be required and any relief granted from showing effective prohibition must be the least intrusive.

Ms. Davi requested clarification on the motion. Ms. Karish suggested the Ordinance may already fit the condition regarding effective prohibition and discussed verbiage with Vice Chair Millich. Commissioner Brassfield suggested including the phrase in the definitions list.

Commissioner Freeman seconded the motion.

Ms. Cole reiterated the verbiage Vice Chair Millich suggested and Vice Chair Millich confirmed she had listed the changes accurately reflecting the motion.

Commissioner Freeman raised issues with the photo simulation and standardized pole design by area, highlighting potential difficulties with each.

Commissioner Dawson shared concerns regarding the 100-foot setback requirement.

On a motion by Vice Chair Millich, seconded by Commissioner Freeman and carried by the following vote, the Planning Commission adopted a Resolution recommending an Ordinance to the City Council repealing and replacing City Code Chapter 38 Article 17 Section 112.4 related to wireless communication facilities as presented, with added conditions that a 100- foot setback from schools and residences must be required and any relief granted from showing effective prohibition must be the least intrusive:

AYES: 3 COMMISSIONERS: Fletcher, Millich, Freeman
NOES: 2 COMMISSIONERS: Brassfield, Dawson
ABSENT: 1 COMMISSIONERS: Latasa
ABSTAIN: 0 COMMISSIONERS: None
RECUSED: 0 COMMISSIONERS: None
DocuSign Envelope ID: F28E5075-C375-46D5-9E73-E9C0F51E254C ATTACHMENT 6
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 91, Packet Page 1845 Planning Commission Minutes Tuesday October 25, 2022
Planning Commission Meeting Minutes
Tuesday October 25, 2022
10 8. Consider 601 Lighthouse Avenue; Use Permit Application UP-22-0115 to Allow Residential Density to Exceed 30 Units Per Acre (36 Units per Acre Proposed; Exceptional Design Finding Required) for a Commercial Building Conversion to a Mixed Use Building with Five Residential Units, New Interior Parking, Roof Access and Roof Deck, and Ground-level Retail Space; Applicant Ethan Hare, Hare Construction; Owner Monterey 601 Lighthouse Ave, LLC.; PC-LH Zoning District; Commercial General Plan Land Use Designation; Exempt from CEQA Requirements per Article 19, Section 15303, Class 3 and Section 15331, Class 31
ACTION: Approved Use Permit application UP-22-0115 to allow residential density to exceed 30 units per acre (36 units per acre proposed; exceptional design finding required) for a commercial building conversion to a mixed-use building with five residential units, new interior parking, roof access and roof deck, and ground-level retail space at 601 Lighthouse with an added condition to eliminate portion of deck railing that would exceed the 35-foot height limit
Staff Presentation/Commissioner Questions
Senior Associate Planner Schmidt presented the Agenda Report and answered Commissioner questions.

Community Development Director Cole added that story poles were installed for the rooftop elevator and reiterated that Staff’s recommendation is to pull back the deck railing from Lighthouse Avenue so it does not exceed 35 feet because the ADA finding could not be met.

Applicant
Applicant Ethan Hare outlined challenges faced with this property, spoke of excitement for adding housing and commercial units while reinvigorating the building, and stated the maximum height could be addressed through collaboration with the City and its Architectural Review Committee.

Public Comments
Bill Blume, project Partner, expressed excitement to get the project moving, said a lot of work had been done to make it a good project, and conveyed hope to make this the shining star of the Lighthouse Corridor.

Project Architect Christopher Barlow shared background information regarding a previous project at the site, said the proposal includes an extra unit, and claimed the project would be a good example for adaptive reuse within the Lighthouse Specific Plan design standards for mixed-use buildings.

Commissioner Brassfield spoke in favor of the design and square footage of the apartments and inclusion of parking, then inquired about fire escape requirements. Mr. Barlow detailed requirements for fire escape safety.

Commissioner Comments
DocuSign Envelope ID: F28E5075-C375-46D5-9E73-E9C0F51E254C ATTACHMENT 6
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 92, Packet Page 1846 Planning Commission Minutes Tuesday October 25, 2022
Planning Commission Meeting Minutes
Tuesday October 25, 2022
11 Commissioner Freeman spoke in support of approval as this area was determined ideal for mixed use buildings. Chair Fletcher, Commissioner Millich, and Commissioner Brassfield agreed and commended the design.

Commissioner Freeman moved to approve the proposal with an added condition to eliminate the portion of deck railing that would exceed the 35-foot height limit. Commissioner Brassfield seconded the motion.

On a motion by Commissioner Freeman, seconded by Commissioner Brassfield and carried by the following vote, the Planning Commission approved Use Permit application UP-22-0115 to allow residential density to exceed 30 units per acre (36 units per acre proposed; exceptional design finding required) for a commercial building conversion to a mixed-use building with five residential units, new interior parking, roof access and roof deck, and groundlevel retail space at 601 Lighthouse with an added condition to eliminate portion of deck railing that would exceed the 35-foot height limit:

AYES: 5 COMMISSIONERS: Fletcher, Millich, Dawson, Brassfield, Freeman NOES: 0 COMMISSIONERS: None
ABSENT: 1 COMMISSIONERS: Latasa
ABSTAIN: 0 COMMISSIONERS: None
RECUSED: 0 COMMISSIONERS: None

INFORMATIONAL REPORTS & STAFF COMMENTS
Update received.

COMMISSIONER COMMENTS
Commissioner Brassfield asked if is possible to include the 6409 designation in item titles. Ms.

Cole suggested that may be possible however Staff occasionally disagrees with applicants regarding 6409 applicability so if there is a legal reason it may be done differently.

Commissioner Brassfield asked if a new Planning Commission Member been found. Ms. Cole said the position has been advertised and applications were received and elaborated on the replacement process.

ADJOURNMENT
There being no further business, the meeting adjourned at 9:31 p.m.

Respectfully Submitted, Approved,
Kimberly Cole
Community Development Director
Chair
Planning Commission
DocuSign Envelope ID: F28E5075-C375-46D5-9E73-E9C0F51E254C ATTACHMENT 6
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 93, Packet Page 1847 Dear Planning Commissioners,
The map generated by the staff that shows possible locations available for cell tower placement in Monterey if 100’ setbacks are added from residences and schools demonstrates that these setbacks would not constitute an effective prohibition because:

1. There are already many approved and/or already built wireless facilities currently in place throughout Monterey that are available for additional collocation within the City limits and immediately adjacent areas. These facilities are already providing robust, adequate and ubiquitous wireless coverage throughout Monterey. These existing or approved facilities will be grandfathered in and allowed to remain as approved under the original ordinance. The Spectrum Act gives carriers access to existing facilities for adding new equipment as Eligible Facility Requests, a preferred option in the proposed ordinance.

2. Effective prohibition is not created by reasonable setbacks, because there remains sufficient alternatives for the addition of new wireless sites shown on the map provided

3. Applicants claiming that effective prohibition would result from adherence to codified setback requirements have the opportunity to prove this on a case by case basis as a way to obtain an exemption from reasonable setback requirements. If the applicant proves to the City’s satisfaction that no alternatives exist more than 100 feet from residences or schools and that denial would result in a prohibition of service, applicants may be eligible for an exemption from this requirement on a case by case basis. The Courts do not favor facial challenges to ordinance requirements that do not constitute an outright ban on wireless facilities. They will address ordinance provisions as applied resulting in a possible effective prohibition on a case by case basis.

4. Applicant Site Developers such as Crowne Castle and Extenet who do not themselves provide any wireless services cannot claim that denial would result in effective prohibition of services since they are not service providers. Only Verizon, AT&T, T-Mobile etc. can claim prohibition of services.

5. Many wireless ordinances written for Cities throughout the US by prominent telecommunications attorneys impose similar or more stringent setback requirements. Setbacks up to 500 feet or more are not unusual.

6. The FCC and Courts have distinguished telecommunications (phone calling) services from informational services (internet and broadband), the former subject to the effective prohibition protections of the Telecommunications Act and the latter not. No effective prohibition claim can be upheld in areas with existing adequate telecommunications services (reliable cell phone service).

7. Even with the reasonable setbacks in place, there remain adequate locations available to carriers who demonstrate they will be unable to provide reliable service without additional new wireless facilities, either collocated on existing facilities or in locations that will not violate setback requirements. Effective zoning and City planning require localities to provide appropriate citing locations somewhere in the City or unincorporated areas, not everywhere in cities. It would not, for example be appropriate to allow sewage treatment plants near homes or schools, while still providing appropriate alternatives somewhere else. You don’t need to hand over the entire city to the telecom giants resulting in unbridled proliferation and resultant loss of property values and aesthetic character not to mention public safety from increased fire risk and unsafe fall zones. The Telecommunications Act specifically preserves local authority over the “placement, construction and maintenance” of wireless facilities. Modest setbacks fall within this authority and will not, in themselves, constitute a prohibition of service.

Sincerely,
Susan Nine,
Monterey Homeowner & Monterey Vista Representative on the CC’s Wireless Subcommittee Attachment 7
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 94, Packet Page 1848

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]A:9A:A644:7S64B=7:7O>4874NB7:CB=>764B=7^C;=AA:7A Attachment 7
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 95, Packet Page 1849 10/25/22, 1:20 PM Mail - Oncall Planning - Outlook
https://outlook.office365.com/mail/inbox/id/AAQkADdkNTZjNjdhLTVmMjQtNDAwOS1hNWZjLWNiOTQyMTQ3OGQyNgAQAEY2Thvh3EhIoaCUsTbgg… 1/1 Planning Commission tonight, Item #7 Wireless Ordinance Jean Rasch
Tue 10/25/2022 12:43 PM
To: Oncall Planning <[email protected]>
Please share this for tonight's Planning Commission meeting. Thank you! Sincerely,
Jean Rasch
[NOTICE: This message originated outside of the City of Monterey mail system -- DO NOT CLICK on links or open attachments unless you are sure the content is safe.] Attachment 7
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 96, Packet Page 1850 Attachment 7
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 97, Packet Page 1851 10/25/22, 1:18 PM Mail - Oncall Planning - Outlook
https://outlook.office365.com/mail/inbox/id/AAQkADdkNTZjNjdhLTVmMjQtNDAwOS1hNWZjLWNiOTQyMTQ3OGQyNgAQAFFYLHzjTFJGt%2B%2BG… 1/1 Verizon Wireless Comments on Wireless Facilities Ordinance - Tonight's Monterey Planning Commission Agenda Item 7
Paul Albritton <[email protected]>
Tue 10/25/2022 11:35 AM
To: Oncall Planning <[email protected]>
Cc: Kimberly Cole <[email protected]>;City Clerk's Office Team <[email protected]>;Christine Davi <[email protected]>
1 attachments (430 KB)
Verizon Wireless Letter 10.25.22.pdf;
Some people who received this message don't often get email from [email protected]. Learn why this is important
Dear Planning Commissioners, for tonight's meeting, please find attached our follow-up letter prepared on behalf of Verizon Wireless regarding the draft wireless facilities ordinance.

We urge the Commission to adopt a reasonable 500-foot search distance for preferred locations in the right-of-way, as well as to delete the setbacks from school and residential properties and the required showing of “prohibition” for residential zones.

Thank you.

Paul Albritton
Mackenzie & Albritton, LLP
155 Sansome Street, Suite 800
San Francisco, California 94104
(415) 288-4000
[email protected]
[NOTICE: This message originated outside of the City of Monterey mail system -- DO NOT CLICK on links or open attachments unless you are sure the content is safe.] Attachment 7
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 98, Packet Page 1852

MACKENZIE & ALBRITTON LLP
155 SANSOME STREET, SUITE 800
SAN FRANCISCO, CALIFORNIA 94104
TELEPHONE 415 / 288-4000
FACSIMILE 415 / 288-4010
October 25, 2022

VIA EMAIL
Chair Daniel Fletcher
Vice Chair Stephen Millich
Commissioners Michael Brassfield,
Michael Dawson, Sandra Freeman,
and Terry Latasa
Planning Commission
City of Monterey
580 Pacific Street
Monterey, California 93940
Re: Draft Wireless Communications Facilities Ordinance
Planning Commission Agenda Item 7, October 25, 2022
Dear Chair Fletcher, Vice Chair Millich and Commissioners:

We write again on behalf of Verizon Wireless regarding the draft wireless facilities ordinance (the “Draft Ordinance”). Verizon Wireless is concerned about the new requirement that right-of-way facilities be set back 100 feet from school and residential properties, with a narrow exception requiring applicants to prove that placement within those setbacks is required by federal law. Draft Ordinance § 38-112.4(F)(10)(e).

Planning Office staff does not support such setbacks because they would exclude significant portions of Monterey. Further, in our prior letter of September 27, 2022 (attached), we explained why federal law preempts the ordinance requirement for an “effective prohibition” showing and related submittals (such as drive test data) for facilities in residential zones. We urge the Commission to delete the required setbacks and “effective prohibition” showings for right-of-way facilities, and instead adopt a reasonable 500-foot search distance for any preferred options, as we previously suggested.

With respect to small cells, the FCC’s Infrastructure Order adopted a nationwide prohibition of service standard, which has been sustained by federal courts. While in the past, various federal courts of appeal set forth differing prohibition standards for “macro” wireless facilities, the FCC declined to adopt the outdated “coverage gap”-based approach for small cells.1
Instead, the FCC determined that local actions that “materially inhibit” 1 See Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, Declaratory Ruling and Third Report and Order, 33 FCC Rcd. 9088, ¶ 40 (September 27, 2018).

Attachment 7
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 99, Packet Page 1853 Monterey Planning Commission
October 25, 2022

Page 2 of 2 ends

the goals of “densifying a wireless network, introducing new services or otherwise improving service capabilities” constitute a prohibition of service.2 Local governments and other parties filed challenges to the FCC’s Infrastructure Order in several courts of appeal, and the suits were consolidated under the Ninth Circuit Court of Appeal, which upheld the “materially inhibit” standard for small cells. 3 The Supreme Court declined to
hear local governments’ appeal, so the “materially inhibit” standard is settled law.4 Accordingly, the FCC has already provided the legal basis to support approval of small cells where they enhance service and introduce new services (such as the 5G technology installed in new smartphones). The City cannot require Verizon Wireless to justify the need for its small cells or to submit information such as drive tests, dropped call records or other gap-related data. Draft Ordinance § 38-112.4(E)(3)(v).

The proposed 100-foot setbacks from school and residential properties would clearly contradict the FCC’s findings because they are an outright prohibition of service in broad areas. Both the requirement to show that those setbacks violate federal law and the “effective prohibition” showings for certain zones would set the stage for prolonged legal conflict. Ultimately, the setbacks and “effective prohibition” showings impose hurdles that “materially inhibit” service improvements and exceed the City’s authority according to FCC regulations. We urge the Commission to delete those requirements.

Instead, we again propose that the City apply a reasonable search distance to its location preferences for small cells in the right-of-way, whereby an applicant can use a less-preferred location if there is no technically feasible preferred option within 500 feet along the subject right-of-way. Many California cities have adopted a reasonable search distance, including Concord (250 feet) and San Mateo (500 feet).

Verizon Wireless appreciates the City’s ongoing invitation to provide comment on the Draft Ordinance.

Very truly yours,

Paul B. Albritton
Attachment
cc: Christine Davi, Esq.

Kimberly Cole
2 Id. at 37. 3 See City of Portland v. United States, 969 F.3d 1020, 1035 (9th Cir. 2020). 4 See City of Portland v. United States, cert. denied, 141 S.Ct. 2855 (Mem) (U.S. 2021).

Attachment 7
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 100, Packet Page 1854

MACKENZIE & ALBRITTON LLP
155 SANSOME STREET, SUITE 800
SAN FRANCISCO, CALIFORNIA 94104
TELEPHONE 415 / 288-4000
FACSIMILE 415 / 288-4010
September 27, 2022

VIA EMAIL
Chair Daniel Fletcher
Vice Chair Stephen Millich
Commissioners Michael Brassfield,
Michael Dawson, Sandra Freeman,
and Terry Latasa
Planning Commission
City of Monterey
580 Pacific Street
Monterey, California 93940
Re: Draft Wireless Communications Facilities Ordinance
Planning Commission Agenda Item 6, September 27, 2022
Dear Chair Fletcher, Vice Chair Millich and Commissioners:

We write again on behalf of Verizon Wireless regarding the draft wireless facilities ordinance (the “Draft Ordinance”). Verizon Wireless appreciates the time and effort that the Commission and staff have invested in the Draft Ordinance, and we provide comment on a few topics raised at the recent hearing on September 13 and discussed in the current staff report. We also attach our prior comment letter of August 8, and urge the Commission to adopt our suggestions prior to recommending the Draft Ordinance to the City Council.

School setbacks and location preferences. Schools create high demand for wireless service, but the proposed 150-foot setback from schools would prohibit facilities on certain streets that may optimal locations for service coverage. Small cell facilities pose no more land use impact near schools than other locations. Despite any attempt to justify a school setback for aesthetic reasons, such setbacks are clearly based on concern over radio frequency emissions which is preempted by the federal Telecommunications Act.1 A prohibitive school setback was a subject of Verizon Wireless’s recent litigation against Los Altos which caused that city to convert its prohibition of facilities near schools to a preference, by which a small cell is allowed on a utility pole adjacent to a school if there is no feasible alternative within 500 feet. Numerous other California cities have adopted a reasonable 500-foot search distance for their various location preferences. 1 See 47 U.S.C. § 332(c)(7)(B)(iv).

Attachment 7
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 101, Packet Page 1855 Monterey Planning Commission
September 27, 2022

Page 2 of 3 ends

Monterey should consider this approach not only for facilities near schools, but for all of the location standards of Draft Ordinance Section 38-112.4(F)(9). Experience shows that a complicated preference system without a reasonable limit on the search distance for alternatives leads to unwarranted exclusions from large areas. As we urged in our prior letters, the location preferences should favor industrial and commercial areas over residential and historic areas, while allowing a less-preferred location if there is no feasible preferred option within 500 feet. Further, the City should develop distinct lists of location preferences for the right-of-way and private property sites.

Drive tests, dropped call data. While staff describes such materials that may prove an “effective prohibition” as optional submittals that are encouraged, Draft Ordinance Section 38-112.4(F)(10) requires an “effective prohibition showing” for many locations, including all residential zones. This inappropriately places City decision-makers in a quasi-judicial role, and they would be free to base denials on any materials listed under Section 38-112.4(E)(3)(v) such as coverage maps, as well as drive tests and dropped call data as now proposed.

However, for small cells in the right-of-way, requiring such demonstrations of service need contradicts Federal Communications Commission (“FCC”) regulations. As described in our prior letters, the FCC determined that small cells are needed for “densifying a wireless network, introducing new services or otherwise improving service capabilities.”2 The FCC disfavored a “‘coverage gap’-based approach” to prove the need for a facility, and disregarded federal circuit court interpretations of the federal effective prohibition standard that rely on a “significant gap” in coverage.3 Drive tests and dropped call data are dated metrics for evaluating the need for the service enhancements provided by small cells. The City can avoid unfounded denials and legal challenges by eliminating requirements to show an “effective prohibition,” and instead adopting the reasonable 500-foot search distance described above.

Mock-ups. Requiring mock-ups of proposed facilities is burdensome and unnecessary.

Mock-ups require additional architectural drawings, structural load calculations and building or encroachment permits. For utility poles, placement of temporary faux equipment would require other utilities to rearrange their equipment attached to a pole, which they are not obligated to perform for non-functional installations. Further, faux equipment could contradict the state’s strict safety regulations for utility poles, Public Utilities Commission General Order 95. Photosimulations and example photos of built facilities provide sufficient representation to allow the public and decision-makers to assess visual impacts.
2 See Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, Declaratory Ruling and Third Report and Order, 33 FCC Rcd. 9088, ¶ 37 (September 27, 2018). Federal courts have upheld these FCC requirements. See City of Portland v. United States, 969 F.3d 1020 (9th Cir. 2020), cert. denied, 141 S.Ct. 2855 (Mem) (U.S. June 26, 2021). 3 Id., ¶¶ 38, 40.

Attachment 7
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 102, Packet Page 1856 Monterey Planning Commission
September 27, 2022

Page 3 of 3 ends

Verizon Wireless appreciates the opportunity to provide comment, and we urge the Commission to incorporate our suggested revisions prior to recommending the Draft Ordinance to the City Council.

Very truly yours,

Paul B. Albritton
Attachment
cc: Christine Davi, Esq.

Kimberly Cole
Attachment 7
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 103, Packet Page 1857

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Attachment 7
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 104, Packet Page 1858 Dear Commissioners,
I was looking over San Anselmo’s wireless Ordinance and noticed that they include very detailed insurance requirements. I do not believe similar language is included within the current draft ordinance and think perhaps it should be. I am forward the applicable language for your consideration. (o) Insurance. At all times relevant to this permit, the permittee shall obtain and maintain insurance policies as follows:
i. Commercial General Liability. Insurance Services Office Form CG 00 01 covering Commercial General Liability (“CGL”) on an “occurrence” basis, with limits not less than $1,000,000 per occurrence or $2,000,000 in the aggregate. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. CGL insurance must include coverage for the following:

Bodily Injury and Property

TITLE: WIRELESS COMMUNICATIONS FACILITIES PAGE POLICY NUMBER 22 of 100 6-1 Damage; Personal Injury/Advertising Injury; Premises/Operations Liability; Products/Completed Operations Liability; Aggregate Limits that Apply per Project; Explosion, Collapse and Underground (“UCX”) exclusion deleted; Contractual Liability with respect to the permit; Broad Form Property Damage; and Independent Consultants Coverage. The policy shall contain no endorsements or provisions limiting coverage for (i) contractual liability; (ii) cross liability exclusion for claims or suits by one insured against another; (iii) products/completed operations liability; or (iv) contain any other exclusion contrary to the conditions in this permit.
ii. Automotive Insurance. Insurance Services Office Form Number CA 00 01 covering, Code 1 (any auto), or if permittee has no owned autos, Code 8 (hired) and 9 (non-owned), with limit no less than $1,000,000 per accident for bodily injury and property damage. iii. Workers’ Compensation. The permittee shall certify that it is aware of the provisions of California Labor Code § 3700, which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and further certifies that the permittee will comply with such provisions before commencing work under this permit. To the extent the permittee has employees at any time during the term of this permit, at all times during the performance of the work under this permit the permittee shall maintain insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. iv. Errors and Omissions Policy. The permittee shall maintain Professional Liability (Errors and Omissions) Insurance appropriate to the permittee’s profession, with limit no less than $1,000,000 per occurrence or claim. This insurance shall be endorsed to include contractual liability applicable to this permit and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the permittee. “Covered Professional Services” as designed in the policy must specifically include work performed under this permit.
v. Umbrella Policy. If an umbrella or excess liability insurance policy is used to satisfy the minimum requirements for CGL or Automobile Liability insurance coverage listed above, the umbrella or excess liability policies shall provide coverage at least as broad as specified for the underlying coverages and covering those insured in the underlying policies. Coverage shall be “pay on behalf,” with defense costs payable in addition to policy limits. Permittee shall provide a “follow form” endorsement or schedule of underlying coverage satisfactory to the Town indicating that such coverage is subject to the same terms and conditions as the underlying liability policy.

Attachment 7
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 105, Packet Page 1859

TITLE: WIRELESS COMMUNICATIONS FACILITIES PAGE POLICY NUMBER 23 of 100 6-1 vi. Endorsements. The relevant policy(ies) shall name the Town of San Anselmo, its elected/ appointed officials, commission members, officers, representatives, agents, volunteers and employees as additional insureds. The permittee shall use its best efforts to provide thirty (30) calendar days’ prior written notice to the Town of the cancellation or material modification of any applicable insurance policy; provided, however, that in no event shall the permittee fail to provide written notice to the Town within 10 calendar days after the cancellation or material modification of any applicable insurance policy.
vii. Certificates. Before the Town issues any permit, the permittee shall deliver to the Director insurance certificates, in a form satisfactory to the Director, that evidence all the coverage required above. In addition, the permittee shall promptly deliver complete copies of all insurance policies upon a written request by the Town.
(p)
Sincerely,
Susan Nine
Monterey Resident and Homeowner
Attachment 7
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 106, Packet Page 1860 12/19/22, 4:38 PM Mail - Kimberly Cole - Outlook
https://outlook.office365.com/mail/id/AAQkAGU4M2JhOWM2LTNlNzQtNDE5NC04M2EzLWYxOWNjYmNhOTczOAAQAFc5mPr%2FTrJMmkEnkwfNb… 1/1 Verizon Wireless Small Cell Designs [Monterey]
Paul Albritton <[email protected]>
Fri 11/11/2022 12:47 PM
To: Kimberly Cole <[email protected]>
Cc: Christine Davi <[email protected]>
2 attachments (2 MB)
8T C-Band Example.pdf; 16T C-Band Example.pdf;
Some people who received this message don't often get email from [email protected]. Learn why this is important Kimberly: In the Planning Commission’s October 25, 2022, hearing we understood that standard small cell designs may be included in the City Council’s review of the proposed wireless ordinance. In response to your earlier request, I am attaching Verizon Wireless’s current small cell designs for wooden poles and metal light standards. These are designs for use with Verizon Wireless’s C-Band technology. We hope that the availability of these designs will assist in the preparation of materials for the City Council.

Please feel free to contact us regarding any of these designs or any of our prior comments to the wireless ordinance. We do remain concerned regarding last minute changes to the ordinance by the Planning Commission, particularly with regard to setbacks and demonstration of federal preemption in certain circumstances.

Thank you for your diligent efforts.

Paul
Paul Albritton
Mackenzie & Albritton LLP
155 Sansome Street, Suite 800
San Francisco, California 94104
(415) 288-4000
[email protected]
[NOTICE: This message originated outside of the City of Monterey mail system -- DO NOT CLICK on links or open attachments unless you are sure the content is safe.] Attachment 7
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 107, Packet Page 1861 Verizon confidential and proprietary. Unauthorized disclosure, reproduction or other use prohibited. 5 C-Band Template 1
Wood Pole
C-Band Only
Attachment 7
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 108, Packet Page 1862 Verizon confidential and proprietary. Unauthorized disclosure, reproduction or other use prohibited. 6 Photo Sim - Wood Pole, C-Band Only
Attachment 7
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 109, Packet Page 1863 Verizon confidential and proprietary. Unauthorized disclosure, reproduction or other use prohibited. 7 C-Band Template 2
Light Standard
C-Band Only
Attachment 7
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 110, Packet Page 1864 Verizon confidential and proprietary. Unauthorized disclosure, reproduction or other use prohibited. 8 Photo Sim - Light Standard, C-Band Only
Attachment 7
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 111, Packet Page 1865 SITE ID: CA_SJ_SANJOSE_DT_816
102 N 9TH ST
SAN JOSE, CA 95112
Location Code: 517300
Site Coordinates: 37.341814, -121.883208
THE CBR GROUP I 2840 Howe Road, Ste. E Martinez, CA 94553 I [email protected]

PROPOSED SITE LOCATION
CA_SJ_SANJOSE_DT_816

VIEW 1
Attachment 7
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 112, Packet Page 1866 SITE ID: CA_SJ_SANJOSE_DT_816
102 N 9TH ST
SAN JOSE, CA 95112
Location Code: 517300
Site Coordinates: 37.341814, -121.883208
THE CBR GROUP I 2840 Howe Road, Ste. E Martinez, CA 94553 I [email protected] View 1: Looking Northeast along N 9th St | Produced 12/31/2019

EXISTING

PROPOSED NEW COMMSCOPE

INTEGRATED POLE

PROPOSED PROPOSED NEW CANISTER

ANTENNA AND SMART ME
TER

PROPOSED

PROPOSED DISCONNECT

SWITCH AND SMART METER

PROPOSED WIRELESS
ANTENNAS/ RADIOS (3)
Attachment 7
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 113, Packet Page 1867 10/25/22, 1:18 PM Mail - Oncall Planning - Outlook
https://outlook.office365.com/mail/inbox/id/AAQkADdkNTZjNjdhLTVmMjQtNDAwOS1hNWZjLWNiOTQyMTQ3OGQyNgAQAFFYLHzjTFJGt%2B%2BG… 1/1 Verizon Wireless Comments on Wireless Facilities Ordinance - Tonight's Monterey Planning Commission Agenda Item 7
Paul Albritton <[email protected]>
Tue 10/25/2022 11:35 AM
To: Oncall Planning <[email protected]>
Cc: Kimberly Cole <[email protected]>;City Clerk's Office Team <[email protected]>;Christine Davi <[email protected]>
1 attachments (430 KB)
Verizon Wireless Letter 10.25.22.pdf;
Some people who received this message don't often get email from [email protected]. Learn why this is important
Dear Planning Commissioners, for tonight's meeting, please find attached our follow-up letter prepared on behalf of Verizon Wireless regarding the draft wireless facilities ordinance.

Thank you.

Paul Albritton
Mackenzie & Albritton, LLP
155 Sansome Street, Suite 800
San Francisco, California 94104
(415) 288-4000
[email protected]
[NOTICE: This message originated outside of the City of Monterey mail system -- DO NOT CLICK on links or open attachments unless you are sure the content is safe.] Attachment 8
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 114, Packet Page 1868

MACKENZIE & ALBRITTON LLP
155 SANSOME STREET, SUITE 800
SAN FRANCISCO, CALIFORNIA 94104
TELEPHONE 415 / 288-4000
FACSIMILE 415 / 288-4010
October 25, 2022

Attachment 8
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 115, Packet Page 1869 Monterey Planning Commission
October 25, 2022

Page 2 of 2 ends

Verizon Wireless appreciates the City’s ongoing invitation to provide comment on the Draft Ordinance.

Very truly yours,

Paul B. Albritton
Attachment
cc: Christine Davi, Esq.

Kimberly Cole
2 Id. at 37. 3 See City of Portland v. United States, 969 F.3d 1020, 1035 (9th Cir. 2020). 4 See City of Portland v. United States, cert. denied, 141 S.Ct. 2855 (Mem) (U.S. 2021).

Attachment 8
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 116, Packet Page 1870

MACKENZIE & ALBRITTON LLP
155 SANSOME STREET, SUITE 800
SAN FRANCISCO, CALIFORNIA 94104
TELEPHONE 415 / 288-4000
FACSIMILE 415 / 288-4010
September 27, 2022

VIA EMAIL
Chair Daniel Fletcher
Vice Chair Stephen Millich
Commissioners Michael Brassfield,
Michael Dawson, Sandra Freeman,
and Terry Latasa
Planning Commission
City of Monterey
580 Pacific Street
Monterey, California 93940
Re: Draft Wireless Communications Facilities Ordinance
Planning Commission Agenda Item 6, September 27, 2022
Dear Chair Fletcher, Vice Chair Millich and Commissioners:

Attachment 8
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 117, Packet Page 1871 Monterey Planning Commission
September 27, 2022

Page 2 of 3 ends

Mock-ups. Requiring mock-ups of proposed facilities is burdensome and unnecessary.

Attachment 8
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 118, Packet Page 1872 Monterey Planning Commission
September 27, 2022

Page 3 of 3 ends

Verizon Wireless appreciates the opportunity to provide comment, and we urge the Commission to incorporate our suggested revisions prior to recommending the Draft Ordinance to the City Council.

Very truly yours,

Paul B. Albritton
Attachment
cc: Christine Davi, Esq.

Kimberly Cole
Attachment 8
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 119, Packet Page 1873 12/19/22, 4:38 PM Mail - Kimberly Cole - Outlook
https://outlook.office365.com/mail/id/AAQkAGU4M2JhOWM2LTNlNzQtNDE5NC04M2EzLWYxOWNjYmNhOTczOAAQAFc5mPr%2FTrJMmkEnkwfNb… 1/1 Verizon Wireless Small Cell Designs [Monterey]
Paul Albritton <[email protected]>
Fri 11/11/2022 12:47 PM
To: Kimberly Cole <[email protected]>
Cc: Christine Davi <[email protected]>
2 attachments (2 MB)
8T C-Band Example.pdf; 16T C-Band Example.pdf;
Some people who received this message don't often get email from [email protected]. Learn why this is important Kimberly: In the Planning Commission’s October 25, 2022, hearing we understood that standard small cell designs may be included in the City Council’s review of the proposed wireless ordinance. In response to your earlier request, I am attaching Verizon Wireless’s current small cell designs for wooden poles and metal light standards. These are designs for use with Verizon Wireless’s C-Band technology. We hope that the availability of these designs will assist in the preparation of materials for the City Council.

Thank you for your diligent efforts.

Paul
Paul Albritton
Mackenzie & Albritton LLP
155 Sansome Street, Suite 800
San Francisco, California 94104
(415) 288-4000
[email protected]
[NOTICE: This message originated outside of the City of Monterey mail system -- DO NOT CLICK on links or open attachments unless you are sure the content is safe.] Attachment 8
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 120, Packet Page 1874 Verizon confidential and proprietary. Unauthorized disclosure, reproduction or other use prohibited. 5 C-Band Template 1
Wood Pole
C-Band Only
Attachment 8
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 121, Packet Page 1875 Verizon confidential and proprietary. Unauthorized disclosure, reproduction or other use prohibited. 6 Photo Sim - Wood Pole, C-Band Only
Attachment 8
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 122, Packet Page 1876 Verizon confidential and proprietary. Unauthorized disclosure, reproduction or other use prohibited. 7 C-Band Template 2
Light Standard
C-Band Only
Attachment 8
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 123, Packet Page 1877 Verizon confidential and proprietary. Unauthorized disclosure, reproduction or other use prohibited. 8 Photo Sim - Light Standard, C-Band Only
Attachment 8
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 124, Packet Page 1878 SITE ID: CA_SJ_SANJOSE_DT_816
102 N 9TH ST
SAN JOSE, CA 95112
Location Code: 517300
Site Coordinates: 37.341814, -121.883208
THE CBR GROUP I 2840 Howe Road, Ste. E Martinez, CA 94553 I [email protected]

PROPOSED SITE LOCATION
CA_SJ_SANJOSE_DT_816

VIEW 1
Attachment 8
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 125, Packet Page 1879 SITE ID: CA_SJ_SANJOSE_DT_816
102 N 9TH ST
SAN JOSE, CA 95112
Location Code: 517300
Site Coordinates: 37.341814, -121.883208
THE CBR GROUP I 2840 Howe Road, Ste. E Martinez, CA 94553 I [email protected] View 1: Looking Northeast along N 9th St | Produced 12/31/2019

EXISTING

PROPOSED NEW COMMSCOPE

INTEGRATED POLE

PROPOSED PROPOSED NEW CANISTER

ANTENNA AND SMART ME
TER

PROPOSED

PROPOSED DISCONNECT

SWITCH AND SMART METER

PROPOSED WIRELESS
ANTENNAS/ RADIOS (3)
Attachment 8
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 126, Packet Page 1880 Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 127, Packet Page 1881 A second significant error within that paragraph states that Public comment was received from 38 members of the public in opposition to the project. At the meeting, the chambers could not contain the hundred plus residents who showed up with standing room only and an overflow room with video.

Not one person spoke in favor of the project at the hearing. The record shows, and I am attaching photos* of the 333 postcards received from different individuals by the City in opposition to the project as public comment. In addition, there were another approximately 500 pages of additional public email comment against the project. There were also petitions submitted with many signatures.

It is also important to note that some of the oppositional comments came from individuals living in other than the affected neighborhoods who realized that since federal law does not permit the City to discriminate between providers, allowing a single facility to be built in any residential district in Monterey would open the flood gates to all residential neighborhoods, including their own. One approval truly would have operated as a Trojan Horse leading to widespread proliferation of wireless facilities in disfavored areas which has been the undoing of many once beautiful and desirable coastal communities. ExteNet said they needed all 13 to function for the network to function, so why did they persist in a single location if not to set a precedent? No one wants wants a wireless facility operating 24/7 just outside or very near their homes, regardless of the neighborhood. You now represent various districts, and none of your residential districts should be subjected to this threat. The current draft does prohibit wireless facilities in residential districts, but if your hired attorney is telling you you can’t vigorously enforce that provision or minimum setbacks, you need a different attorney. After the one application was denied, many of those fighting here for appropriate placement of wireless equipment went on to help Seaside residents likewise threatened by Verizon applications in their residential neighborhoods resulting in unanimous City Council denial there shortly after those in Monterey. Monterey residents also provided support for Carmel residents recently similarly threatened by Verizon which was also unanimously denied by their City Council denial for residential placement directly adjacent to homes. Verizon appealed that denial and lost their appeal. This was not an isolated one neighborhood campaign as portrayed to protect a single residential district from unnecessary exploitation by telecom giants. It is about the public’s right to peaceful enjoyment of their homes, without avoiding a taking of property and aesthetic values. It’s about the City’s right to enforce its codes and require appropriate placement that maintain the safety and aesthetics upon which the local economy depends. A chief spokespersons against cell towers in residential neighborhoods is a CONA resident and neighborhood association member. This is a Citywide issue.

Cell towers, like sewage treatment plants, may be considered modern and perhaps necessary conveniences, but you don’t allow sewage treatment plants next to people’s homes. The same should be true for wireless facilities. Telecommunications services are being and can continue to be provided by antennas in code preferred locations of cities outlined in ordinances here and throughout the country without damaging the beauty, character, and views within our precious residential and historic districts, and with fewer negative impacts on the health and welfare of residents. Countless downtown and other commercial and non residential areas facilities have been approved and installed throughout Monterey. The right to regulate placement was upheld by the California Supreme Court and is guaranteed by the Federal Telecommunications Act.

As a member of the Subcommittee I need to mention an important omission in the historic timeline.

The Committee consisted of representatives from five neighborhoods. I was the sole remaining member from MVN when a vote was taken to approve. That vote occurred on Dec. 17, 2019. The next step in the adoption process, agendizing the ordinance before the Planning Commission, did not ATTACHMENT 9
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 128, Packet Page 1882 occur until April 26, 2022, over two years later, which is described in staff’s timeline as “First Planning Commission hearing on the Wireless Subcommittee’s draft ordinance.” This is inaccurate. The draft ordinance presented was not the Subcommittee’s draft, but was a staff-revised version with many changes, deletions and additions made to what was approved by the Committee. Neither the public nor the Commissioners were given the approved Subcommittee version. Nor were they given a “redline” version to show what was added or removed until requested repeatedly by the public and the Commissioners. By way of example, the Subcommittee unanimously approved requiring mock-ups (life size models) of all equipment and wind load testing which other California cities are known to require.

Those and other requirements were deleted in staff’s version submitted to the Commission even though staff was present when the subcommittee approved these and many other requirements during all meetings. There was no legal basis that required these alterations. I do support the Planning Commission’s decision to include setbacks from homes in residential districts though other CA cities require larger ones. I also support setbacks between facilities, though 250 feet is less than many cities require. Other CA ordinances provide for 500 to up to 1500 feet between facilities in the rights of way.

A mere 250 foot distance would allow two or more every City block and would result in significant visual clutter and increased concentration of rf emissions .

In retrospect, I truly wish the City had simply hired a long time telecommunications expert lawyer, such as Andrew Campanelli who is known for his strong but defensible ordinances, to write Monterey’s ordinance. The cost of flying Mr. Van Eaton back and forth from the East Coast was a staff decision the subcommittee never requested. We of course served without compensation. The residents of Carmel paid Mr. Campanelli to produce the strongest possible ordinance for their City, a decision which is pending in Carmel. There are many California ordinances that are stronger than the version that will be coming before you. I do not even see a list of required findings in the current draft. I have attached a short video** by Mr.Campanelli explaining, in part, what an updated ordinance should include. “BB&K are very conservative and will generally not support any setbacks or restrictions on small cell towers.” (Physicians for Safe Technology). The staff decided on Ms. Karsh independently. I would therefore encourage the Council to consider at least consulting with Mr. Campanelli for a review of the current draft to make certain we have the strongest possible wireless ordinance, which is what the Council said they wanted originally. Andrew Campanelli charges a very modest sum. He only charged the Carmel group about eight thousand dollars for a complete new draft ordinance for Carmel that included consulting with City officials. I am including a link to the Carmel draft ordinance*** written by Mr. Campanelli.

Yours, truly,
Susan Nine, Monterey Resident and former Wireless Ordinance Subcommittee Member Please see below :
*PDF of 333 postcards as part of 800 pages of public comment against proposed 13 towers ** Link to short Campanelli video
***PDF of Campanelli draft ordinance for Carmel.
https://youtu.be/bKqB8wYY7cA
Sent from my iPad
ATTACHMENT 9
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 129, Packet Page 1883 ATTACHMENT 9
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 130, Packet Page 1884 From: Jean Rasch
To: Tyller Williamson
Cc: City Clerk"s Office Team;
Subject: Letter for City Council Meeting re Wireless Ordinance Jan. 17 Date: Tuesday, January 17, 2023 9:21:47 AM
January 17, 2023
Re: Wireless Ordinance
Dear Council Members and Mayor Williamson:

Please support the work of the Planning Commission in including 100-foot setbacks of small cell towers from residences. Many cities have broader set backs so this isn?t an edgy standard to include.

Please also support the 250- foot spacing between towers in the right of way.

If we don?t call out the protections we need in the ordinance, the presumption will be that it?s open season on neighborhoods and we will have no statutory defense in our ordinance.

Remember the Council instructed staff and the subcommittee to create the strongest possible ordinance to prevent proliferation of small cell towers into neighborhoods.

Thank you,
Jean Rasch
Sincerely,
Jean Rasch
Monterey, CA 93940
Phone
[NOTICE: This message originated outside of the City of Monterey mail system -- DO NOT CLICK on links or open attachments unless you are sure the content is safe.] ATTACHMENT 9
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 131, Packet Page 1885 ATTACHMENT 9
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 132, Packet Page 1886 Thank you very much and kind regards,
Kristin Dotterrer
[NOTICE: This message originated outside of the City of Monterey mail system -- DO NOT CLICK on links or open attachments unless you are sure the content is safe.] ATTACHMENT 9
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 133, Packet Page 1887 ATTACHMENT 9
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 134, Packet Page 1888 ATTACHMENT 9
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 135, Packet Page 1889 ATTACHMENT 9
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 136, Packet Page 1890 Protect Your Neighborhood &Property Values ~ Say NO to residential cell towers! Other once beautiful coastal communities, such as La Jolla, are being devastated by the unbridled proliferation of wireless facilities throughout these cities. To see what happened in La Jolla go to:
https://www.lajollalight.com/news/story/2019-09-04/5gs-a-hard-cell-residents-sour-on-towers-going-up-across-la-jolla *Proximity to cell towers is a “legally required disclosure on real estate sales forms along with sewage treatment plants, mines, and other property value decreasing elements.

Surveys of potential buyers on the effects of cell facilities on home values show:
• 94% said a nearby cell tower would negatively impact interest in a property or the price they would be willing to pay for it.
• 95% said they would opt to buy or rent a property that had zero antennas on the building over a comparable property that had antennas on the building.
• 79% said under no circumstances would they ever purchase or rent a property within a few blocks of a cell tower or antennas.
• 89% said they were generally concerned about the increasing number of cell towers and antennas in their residential neighborhoods
• The few homebuyers who would consider a home near a wireless facility, expected to pay from 10% to over 20% less for a property if it were in close proximity to a cell phone base station. * The FCC has not updated their safety standards since 1996, but EMF radiation has increased in strength exponentially in the past 25 years! Close wireless antennas will surround Monterey residents 24/7 with pulsed microwave high frequency radiation in perpetuity, with NO safety testing. * The world's largest insurance companies have responded by excluding any liability coverage for claims "directly or indirectly arising out of, resulting from or contributed to by electromagnetic fields, electromagnetic radiation, electromagnetism, radio waves or noise." Lloyd's of London and Swiss Reinsurance Company have put wireless radiation in the highest risk category, next to smoking and asbestos. A Sprint tower installed at an elementary school in Rippon was removed due to a highly unusual number of pediatric and staff cancers at and adjacent to the school. *Humans are not the only potential victims:. birds, butterflies, bees and other insects, all wildlife and vegetation near these devices will be impacted. They cannot read the required hazard signs! * Many Dozens of wireless devices have already been approved and built throughout Monterey that are currently providing strong reliable service with more to come without the necessity of putting them next to homes and apartments outside bedrooms in residentially zoned districts. *Hundreds of homeowners gathered in Monterey City Council chambers on March 15, 2018 to reject the 13 proposed cell towers in a 1 mile radius in Monterey Vista, Old Town and Skyline Forest neighborhoods, all in high fire risk districts. Cell facilities have been implicated in devastating wildfires that required telecoms to pay damages. Telecoms want to install countless numbers of these devices across our city including residential neighborhoods.

To protect the beauty and historic character of our neighborhoods We must gather in large numbers once again on February 7, 2023 to save the required setbacks from homes demanded by our local Planning Commission! ATTACHMENT 9
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 137, Packet Page 1891 ATTACHMENT 9
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 138, Packet Page 1892 ATTACHMENT 9
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 139, Packet Page 1893 Please enter into the public record for the City Council Meeting, February 7, 2023 regarding the Wireless Ordinance.
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February 1, 2023
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Re: Wireless Ordinance and Cell Facilities - City Council Meeting, Tuesday, February 7, 2023 .

Dear Honorable City Council Members;
Mayor Tyller Williamson; Mr. Alan Haffa; Mr. Ed Smith; Mr. Gino Garcia; Ms. Kim Barber:

We express our deep concerns again with the upcoming City Council meeting on February 7th, regarding the Wireless Ordinance. We as well as every neighbor we know are demanding minimum 100 foot setbacks or more of these small cell towers from our homes and any occupied structure. We actually want more and 500 foot setbacks would be better to protect the beautiful city of Monterey. Other cities have included 500 foot setbacks or more into their Wireless Ordinance for safety for their residents, to maintain aesthetic beauty, and property values. The unique and scenic city of Monterey deserves the same to prevent its ruin. No one who lives in our charming city wants to look at a view of a nearby ugly small cell tower with its blatant “warning sign” attached to it, and the sign is on them for a hazardous reason. Please follow the wise recommendation of your Planning Commissioners for this setback regulation. .

Again, small cell facilities don’t belong in neighborhoods and we don’t want them here or even installed nearby us at all. They should not be forced on the residents where they live, eat and sleep. The Wireless Ordinance must be strong in favor of your residents who live here, for their protection rights, safety, for property values, for the beauty of this city with its scenic neighborhoods, health, and increased fire risks. .

With cell towers placed in neighborhoods and close to homes, Monterey’s property values will certainly depreciate. No one moves to charming and scenic Monterey to live near a hideous telecom eyesore, when it could easily be placed in a commercial district without hindering technology.
.

Much of Monterey is so environmentally sensitive and with global warming disasters, the liberal and unrestricted placement of these small cell towers in neighborhoods is like a ticking time bomb. Also fire risks will certainly increase with them and Monterey has poor evacuation routes in many neighborhoods for the population of residents in an emergency situation. Small cell towers unlimitedly place in our neighborhoods will certainly complicate any natural disaster that have been increasing in California. The lack of residential control on unlimited cell facility placement will certainly open up a Pandora’s Box of future troubles within our neighborhoods with the telecoms wanting to install countless numbers of them. .

Again remember all the residents that completely detested these small cell towers being placed near their homes and strongly protested against them during the Planning Commission Meeting of March 15, 2018. The residents are still demanding the same protection rights! .

The Wireless Ordinance will decide the future of all the residents living here and it must include a minimum 100 foot set-back or more of the cell facilities from our homes and any occupied ATTACHMENT 9
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 140, Packet Page 1894 structure. We are asking for 500 foot setbacks like other cities adopted in their Wireless Ordinance and certainly the Monterey Sanctuary is entitled to that. Under no circumstances to allow small cell towers in residentially zoned districts.

We beseech you to please make the right decision for your residents to ensure our safety, and for the preservation of the beauty of Monterey, and protection of our homes and yours which will all be decided within the Wireless Ordinance. Thank you for your careful thought with this imperative issue that will affect all the residents and our future here.

Respectfully,
Dr. John Adamo
Catherine Adamo
Charisse Carlile
Monterey Residents
ATTACHMENT 9
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 141, Packet Page 1895 February 2, 2023
Re: City Council Meeting, February 7, 2023 – Wireless Ordinance Dear Honorable City Council Member; Mr. Gino Garcia,
Thank you Gino for reaching back out and I hope it’s appropriate to use your first name.

I have an additional issue for your consideration for the upcoming February 7th, City Council Meeting regarding the Wireless Ordinance. As with my previous letter to you on February 1st, I mentioned a list of reasons the community of neighbors are opposing the small cell towers in their neighborhoods. There is another important reason for your personal contemplation.

We have a huge problem with the powerful electromagnetic radiation that these small cell towers will emit in the neighborhoods. With advancing technology the radiation emitted will continue to increase and be more powerful yet. There is more and more documented and accumulating evidence that the radiation emitted through the electromagnetic frequency (EMF) of these small cell towers is at a high health risk and can cause cancer and other serious health problems.

Anyone who tells you differently is largely misinformed and is making a serious mistake. The children are real concerns with their still developing bodies and the radiation emitted will be continual 24/7. Also, for the poor birds and animals that flourish through our nature habitat.

I should also mention that these cell facilities also generate extreme heat and don’t belong in very high fire zones of Monterey with the rising concerns of global warming and with the preservation of our trees and forest. If there is a common malfunction with these cell facilities to any part of its cooling system or an unexpected disaster this could quickly turn destructive and fatal for our very high fire neighborhoods.

These are just more serious reasons why the community of neighbors don’t want the small cell facilities placed near their homes and definitely not in our neighborhoods. Again the community of neighbors is requiring the 100 foot setbacks or more. We really want the 500 foot setbacks from these cell facilities to preserve the picturesque city of Monterey, as other cities have already successfully adopted in their Wireless Ordinance.

Thank you for your careful reflections on all these serious and important issues for the residents, for our health, safety, property values, aesthetic beauty or our city, and for our future lives here.

Best Regards,
Dr. John Adamo
Catherine Adamo
Charisse Carlile
Monterey Residents
ATTACHMENT 9
Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 142, Packet Page 1896 Council Regular Meeting, 2/7/2023, Item No. 17., Item Page 143, Packet Page 1897 Council
Agenda Report
№08/22
FROM: Hans Uslar, City Manager
SUBJECT: Authorize the City Manager to Terminate Cruise Ship Passenger Landing Services by the City of Monterey (Not a Project Subject to Approval Under CEQA, Pub. Resources Code, §§ 21065, 21080, subd. (a), 14 CCR §§ 15061, 15352, 15378)
RECOMMENDATION:

That the City Council Authorize the City Manager to Terminate Cruise Ship Passenger Landing Services by the City of Monterey.

VALUE DRIVERS:

Protect and preserve our natural environment by addressing climate change through ecologically responsible and pragmatic solutions.

POLICY IMPLICATIONS:

This policy is consistent with the City’s position that the City has limited, if any, regulatory authority to ban cruise ships from docking in the Monterey Bay National Marine Sanctuary.

However, the City of Monterey’s Harbor Division provides passenger landing services to passengers, which includes processing disembarking passengers at the City’s Public Dock via the cruise ships’ own tender boats. City staff receives and processes passengers consistent with U.S. Department of Homeland Security policy. The City Council has the ability to, as is being recommended, authorize the City Manager to terminate Cruise Ship Passenger Landing Services by the City of Monterey.

FISCAL IMPLICATIONS:

The termination of cruise ship passenger services would result in the loss of passenger landing fee revenues to the City of Monterey, which totaled $178,066 in 2019. However, expenditures incurred by the Harbor Division for providing these services would be eliminated. The estimated sales tax revenue loss is approximately $32,000 annually, based on 2019 direct visitor spending.

ENVIRONMENTAL DETERMINATION:

Council Regular Meeting, 2/7/2023, Item No. 18., Item Page 1, Packet Page 1898 certainty that there is no possibility that the activity will have a significant environmental effect, the activity is not subject to CEQA. Because the proposed action and this matter have no potential to cause any effect on the environment, or because it falls within a category of activities excluded as projects pursuant to CEQA Guidelines section 15378, this matter is not a project. Because the matter does not cause a direct or any reasonably foreseeable indirect physical change on the environment, this matter is not a project. Any subsequent discretionary projects resulting from this action will be assessed for CEQA applicability.

ALTERNATIVES CONSIDERED:

The City Council could choose not to terminate Cruise Ship Passenger Landing Services.

However, that is not recommended, given the environmental risks of the cruise ships in the Monterey Bay National Marine Sanctuary.

DISCUSSION:

With this agenda report, I am asking the Council to provide me with feedback and approval of my decision to direct staff not to assist cruise ships with the on and off-boarding process. It is my hope that this step will signal to the cruise ship industry that they are no longer welcomed by our City.

COVID-19 and the subsequent economic crisis hit the City of Monterey harder than many other cities on the Peninsula, in the County, and in the State of California. As a matter of fact, the California State Auditor ranked Monterey among the 11 cities in the State most negatively impacted by the pandemic fiscally. Some of Monterey’s premier hotels closed, large commercial operators shut down and disappeared for good, and restaurants closed and never opened again. Thousands of employees were laid off. The worst economic scenario happened within 45 days of the Governor’s declared emergency. In April 2020 more than 22 million Americans were without jobs.

At the beginning of 2020, no one could have predicted the impacts of this worldwide pandemic on our local economy. COVID-19 was a catastrophe of the worst kind. During Council meetings staff introduced and used the term “Black Swan” event, which is a metaphor that describes an event that comes as a surprise, has a major effect, and is often inappropriately rationalized after the fact with the benefit of hindsight.

Cruise ships entering the Monterey Bay National Marine Sanctuary represent future “Black Swan” events. The act of entering and leaving the Monterey Bay without any major challenges or incidents is routine, secured by layers of additional safety measures and heightened alertness by the entire navigational and engineering professionals on the bridge and in the engine rooms. It can be stipulated that the cruise lines are aware of the rules and regulations entering the Monterey Bay National Marine Sanctuary and adhere to them.

My concern, however, stems from the most recent experience the City had to go through. The City alone eliminate 102 positions and laid off more than 70 hard-working employees.

Additionally, we closed the library, the recreation centers, our Sports Center and our Conference Center just to ensure that we could continue to fund public safety and public works functions.

Council Regular Meeting, 2/7/2023, Item No. 18., Item Page 2, Packet Page 1899 Cruise ships are impressive floating small cities generating their own electricity by using powerful electric generators powered by diesel; the ship’s engines are fueled by large diesel tanks; the waste of thousands of passengers and crews gets stored in grey and black water tanks. In short, the ships are full of liquids, which are waiting for a “Black Swan” event to occur, namely an accidental discharge into our pristine Monterey Bay.

As your City Manager, it is my recommendation for the City Council, by minute action, to sanction my direction to staff to no longer service cruise ships. Cruise ships are not banned from docking, landing, and discharging passengers at the wharf in Monterey, but we just simply should do not provide shore services for them.

Attachments: 1. Agenda Report from September 17, 2019: “Presentation on Municipal Authority to Regulate Cruise Ships”

2. Letter from Cruise Lines International Association, January 31, 2023

3. Letter from Fisherman’s Wharf Association, December 28, 2022

4. Letter from Monterey Peninsula Chamber of Commerce, January 31, 2023 e: Fisherman’s Wharf Association
Cruise Lines International Association
Writings distributed for discussion or consideration on this matter within 72 hours prior to the meeting, pursuant to Government Code § 54957.5, will be made available at the following link:
https://monterey.org/Submitted-Comments
Council Regular Meeting, 2/7/2023, Item No. 18., Item Page 3, Packet Page 1900 Council
Agenda Report
ver. 2 Page 1 of 6
FROM: Christine Davi, City Attorney
Prepared By: Ryan Donlon, Deputy City Attorney
SUBJECT: Presentation on Municipal Authority to Regulate Cruise Ships (Not a Project Subject to Approval Under CEQA, Pub. Resources Code, §§ 21065, 21080, subd. (a), 14 CCR §§ 15061, 15352, 15378)
RECOMMENDATION:

It is recommended that the City Council receive a report from the City Attorney’s Office regarding local government’s authority to regulate cruise ships. The report concludes that the City has no authority to ban cruise ships from docking in the Monterey Bay National Marine Sanctuary, and the City’s ability to regulate cruise ships within its tidelands is limited.

POLICY IMPLICATIONS:

There are no policy implications involved in receiving this report, though the report may inform the City’s legal authority to enact policy.

FISCAL IMPLICATIONS:

There are no fiscal implications involved in receiving this report.

ENVIRONMENTL DETERMINATION:

The recommended action is not a project subject to approval pursuant to the California Environmental Quality Act (CEQA) (Pub. Resources Code, §§ 21065, 21080, subd. (a)) and the CEQA Guidelines (14 CCR, §§ 15061, 150352, 15378). CEQA only applies to activities having the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity will have a significant environmental effect, the activity is not subject to CEQA. Because the proposed action and this matter have no potential to cause any effect on the environment, or because it falls within a category of activities excluded as projects pursuant to CEQA Guidelines section 15378, this matter is not a project. Because the matter does not cause a direct or any reasonably foreseeable indirect physical change on the environment, this matter is not a project. Any subsequent discretionary projects resulting from this action will be assessed for CEQA applicability.

ALTERNATIVES:

The Council City may choose not to receive this report.

DISCUSSION:

Large cruise ships began visiting Monterey in 2002. From 2003 to 2005, between 9-18 cruise ships called on Monterey per year. From 2006 to 2013, the annual number dropped to 2-3 visits. From 2014 to 2018, it increased to 7-12 visits. In 2019, the City is scheduled to have 14 Date: 9/17/2019
Item No.: 14.

ATTACHMENT 1
Council Regular Meeting, 2/7/2023, Item No. 18., Item Page 4, Packet Page 1901 visits; in 2020, 20 visits; ten (10) visits in 2021; and nine (9) visits in 2022.1 The schedule for upcoming cruise ship visits is set forth in Attachment 1.

Recently, members of the public and local businesses have expressed environmental concerns regarding cruise ships visiting the Monterey Bay National Marine Sanctuary. Consequently, on June 17, 2019, the City of Monterey, along with the National Oceanic and Atmospheric Administration (NOAA)’s Monterey Bay National Marine Sanctuary, hosted an informational session with a panel of representatives from multiple agencies with regulatory oversight over cruise ship operations including:
• United States Coast Guard,
• California State Lands Commission,
• California Department of Fish and Wildlife’s Office of Spill Prevention, • the Monterey Bay Air Resources District and
• the San Francisco Bar Pilots Association.

The June 17th presentation related to current regulations over cruise ship operations in the Monterey Bay National Marine Sanctuary. On June 18, 2019, Councilmember Haffa requested that staff summarize what authority the City of Monterey has, if any, to regulate cruise ship operations. This report therefore focuses solely on the city’s ability to regulate cruise ships. For a summary of the regulatory purview of other entities, please refer to Attachment 2 and the video of the June 17th informational session available at https://videoplayer.telvue.com/player/m_3HX6961GRMsvkqSCdwmGeJ8rwpRZrR/media/48920 7?fullscreen=false&showtabssearch=true&autostart=false
Introduction: The Waters Off Our Coast: Whose Waters?
The City, State, and federal governments each has some interest in the waters adjacent to the City’s coastline. The issues presented in this agenda item are whether a municipal attempt to regulate cruise ships would withstand (1) the federal government’s preemptive authority or (2) the terms by which the State conveyed tidelands to the City.

As to the first issue, Monterey Bay is within the territorial waters of the State of California. (Cal.

Const., art. III, § 2; Cal. Const. 1849 (superseded), art. XII; Gov. Code, §§ 171-173; United States v. California II (1965) 381 U.S. 139, 169-170 [“Monterey Bay is inland water”].) But federal waters overlay and encompass all of Monterey Bay, and beyond. For regulatory purposes, federal waters include everything that is “navigable.” (Gibbons v. Ogden (1824) 22 U.S. 1, 19; see also Muckleshoot Indian Tribe v. FERC (9th Cir. 1993) 993 F.2d 1428.) All of Monterey Bay is “navigable” and therefore within the federal government’s jurisdiction. Indeed, the United States Coast Guard (USCG) issues regulations and actively enforces them here, including regulations specific to cruise ships.

Similarly, all of Monterey Bay (except the City’s Marina and Harbor) is within the federallycreated Monterey Bay National Marine Sanctuary (MBNMS or Sanctuary). (15 CFR, § 922.130.) The National Ocean and Atmospheric Administration (NOAA), an agency within the U.S. Department of Commerce, actively administers the Sanctuary, including the creation and enforcement of specific regulations about permitted cruise ship activities within the Sanctuary.

The designation of a sanctuary, “and the regulations implementing it, are binding on any person 2 ATTACHMENT 1
Council Regular Meeting, 2/7/2023, Item No. 18., Item Page 5, Packet Page 1902 subject to the jurisdiction of the United States.” (15 CFR, § 922.4.) Such federal involvement likely preempts local regulation of cruise ships.

As to the second issue, the State’s conveyance of tidelands to the City of Monterey contains specific provisions about the use of the tidelands that would limit attempts by the City to regulate cruise ships.

City of Monterey’s Procedure When a Cruise Ship Calls
Cruise ships calling on smaller California ports such as Monterey typically only do so during specific sailing “seasons.” Generally, cruise ships sail toward Alaska in the spring to spend the summer there, and then sail south in the autumn to spend the winter in warmer weather.

Accordingly, there are a limited number of vessels that call here, and of those, they are only here during seasonal passages.

A cruise ship visit usually starts with vessel representatives contacting the City’s Harbormaster to inquire whether the City will receive a vessel. This contact typically occurs at least one year in advance. Monterey Bay has two cruise ship anchorages owned by the State just outside the Monterey Harbor and Marina, and outside the City’s tidelands. The City does not accept two cruise ships to be anchored at a time. That timing is consistent with the cruise ships’ itineraries, since they are typically loading passengers in the larger ports on the weekends, and are only calling on Monterey in the interim. Finally, the City does not accept cruise ships during other busy tourist events, e.g., Car Week. To date, cruise ship operators have cooperated with City scheduling, which the City can dictate (within reason, given the conditions on which the State placed the conveyance of the tidelands) because the City provides the facility service of processing disembarking passengers at the City’s Public Dock (discussed below). These limitations further restrict the number of cruise ships that call on Monterey.

Vessels must arrive at a designated time, piloted by a licensed bar pilot specially trained to navigate in and out of Monterey Bay. After anchoring at the designated anchorage, the vessel disembarks passengers at the City’s Public Dock via the cruise ship’s own shore boats. City staff receives and processes the passengers pursuant to policies required by the United States Department of Homeland Security. The City charges a service fee of $7.00 per passenger. (Resolution no. 15-215 CS.) For departures, the process works in reverse, with the bar pilot guiding the vessel out of Monterey Bay. In fact, the bar pilot remains on the vessel for the entire time that the vessel is in Monterey Bay.

The City requires vessels utilizing City personnel and facilities to first sign a Letter of Agreement. The Letter of Agreement notifies cruise ships that they are within the boundaries of the MBNMS and are subject to NOAA’s environmental discharge regulations. It also contains a reporting procedure, requiring all cruise ships to immediately notify the City Harbormaster’s Office of any discharge and to provide a written report of discharges within 14 days of departure. The City forwards these inspection records to MBNMS.

In exchange, the City allows its shore boats to enter its jurisdiction and agrees to “provide a sufficient number of crew members at or about the Fisherman’s Wharf Visitor Dock, for passenger loading and unloading[.]”
If a vessel does not comply with the Letter of Agreement, “it shall be understood that … the City will not welcome it and reserves the right to withhold all City services for future visits of Ship.” 3 ATTACHMENT 1
Council Regular Meeting, 2/7/2023, Item No. 18., Item Page 6, Packet Page 1903 Analysis: The City Has Limited, If Any, Regulatory Power Over Cruise Ships In general terms, a municipality has limited, if any, authority to regulate cruise ships, which authority is preemptively exercised by the federal government. But the issue is not a simple one. “For both historical and practical reasons, the law governing coastal and ocean management offshore of the California coast is a complex nexus of sovereign interests.” (Cal.

Ocean Protection Council, Overview of Ocean and Coastal Laws, p. 17 (underlining added).) Monterey Bay is no exception, and has been the subject of litigation all the way up to the U.S.

Supreme Court.

The State possesses sovereign authority within Monterey Bay and the full range of police powers, while the City has control over its tidelands which are held by the City in trust for the public’s benefit. But, cruise ships do not enter into the tidelands; only its shore boats do. And the State’s and the City’s authorities and rights, such as they are, do not exclude federal authority within Monterey Bay. (U.S. v. California (1947) 332 U.S. 19, 38-39 (California I).) Just as the federal government has jurisdiction over certain matters within the territorial jurisdiction of California’s (and Monterey’s) lands, it has jurisdiction over certain matters within California’s (and Monterey’s) territorial waters. Those federal powers are supreme and preemptive. (Gibbons, supra, 22 US at p. 10; see also U.S. v. Locke (2000) 529 U.S. 89, 100 (Locke).) All cruise ships that call on Monterey have a USCG-issued license: a Certificate of Compliance and/or a coastwise license. In such cases, federal law preempts state law, even within a state’s territorial waters. (UFO Chuting of Hawaii, Inc. v. Smith (9th Cir. 2007) 508 F.3d 1189, 1192- 1193.) A municipal government could not ban cruise ships. (Id. p. 1194.) At most, “states may impose upon federal licensees reasonable, nondiscriminatory conservation and environmental protection measures otherwise within their police power,” provided that such measures do not conflict with federal measures. (Ibid.) But a City’s authority would be even more questionable, especially any attempt to regulate a vessel beyond the City’s territorial reach.

Similarly, NOAA’s regulations create a management system for cruise ships to operate within the MBNMS. (15 CFR, § 922.2(a), 922.131.) NOAA may receive input from “State and local governments” (15 CFR § 922.2(b)(1), (5), (6)), but NOAA’s regulations would preempt any conflicting or even parallel City regulations.

Maritime Law
Additionally, federal law is supreme on and concerning navigable waters. (Muckleshoot, supra, 993 F.2d 1428.) The principal underlying admiralty (maritime law) preemption is creating a uniform set of laws, lest ships calling in the various ports be subject to differing regulations wherever they go. (Sudden & Christenson v. Industrial Accident Commission (1920) 182 Cal. 437, 444-445.) The federal government jealously guards its preemptive admiralty authority, as summarized by the U.S. Supreme Court:

If [one state] can subject foreign ships coming into her ports to such obligations as those imposed by her … statute, other states may do likewise. The necessary consequence would be destructive to the very uniformity in respect to maritime matters which the Constitution was designed to establish, and the freedom of navigation between the states and with foreign countries would be seriously hampered and impeded.
4 ATTACHMENT 1
Council Regular Meeting, 2/7/2023, Item No. 18., Item Page 7, Packet Page 1904 (Southern Pacific Co. v. Jenson (1917) 244 U.S. 205, 217.) Similarly, attempts to impose municipal regulations on cruise ships would likely be challenged for undermining maritime uniformity.

International Relations
Nearly all cruise ships calling Monterey are foreign-flagged. The passage of foreign ships is the subject of the nation’s foreign relations, and to specific treaties. The federal government has taken the position that such treaties preempt state statutes designed to impose additional environmental and safety regulations on foreign-flagged ships. (Ibid.) In enforcement of such treaties, “Congress left it to the Coast Guard to use its expertise as the regulatory agency entrust with the administration of the statute [implementing the treaty] to determine when a ship may reenter U.S. waters.” (Wilmina Shipping AS v. U.S. Dept. of Homeland Sec. (D.C. Cir. 2013) 934 F.Supp.2d 1, 13-15.) Any municipal regulation having the tendency of restricting access to U.S. waters would likely interfere with the federal government’s authority to control foreign relations, including defense. (See also California I, supra, 332 U.S. at pp. 34-36.) In short, federal law preempts municipal regulation and the City does not have the power to create regulations that reach beyond its territory.

Analysis: The State’s Conveyance of Tidelands Limits Restrictions Placed on Navigation Besides the U.S. Constitution, other legal principles restrict the City’s authority over its tidelands, including (1) the terms by which the State conveyed the tidelands to the City; and (2) the public trust doctrine.

The Terms of California’s Conveyance
The State enacted statutes in 1868, 1903, 1919, and 1984. The 1868 Statute was the original conveyance, including to a depth of 20 feet (later extended to 60 feet). The 1903 Statute required “that at and upon any wharf erected or built upon property so leased any and all vessels shall have a right to dock, land and discharge passengers or merchandise upon payment to such lessee or lessees of reasonable dockage and wharfage.” (1903 Statute, § 2.) The 1919 and 1984 Statutes reiterate this condition, which would limit the City’s authority to restrict the type of vessels (“… any and all vessels…”) that may dock and discharge passengers at the City’s wharves. Shore boats from cruise ships – cruise ships that never actually enter into the City’s tidelands – qualify as “any and all vessels.” Public Trust Doctrine
Pursuant to the 1984 Statute, the tidelands are “to be forever held by the City of Monterey in trust for uses and purposes of commerce, navigation, fisheries, and recreation, which are of general statewide interest and benefit[.]” (1984 Statute, § 1.) The State is sovereign over the tidelands, but it and the City must act “in trust for the public purposes of navigation and fishery.” (People v. California Fish Co. (1913) 166 Cal. 576, 584.) “[T]he state can make no disposition of [the tidelands] prejudicial to the right of the public to use them for the purposes of navigation and fishery, and whatever disposition [the state] does make of them [the state’s] grantee takes them upon the same terms upon which [the state] holds them[.]” (Ward v. Mulford (1867) 32 Cal. 365, 372.)
5 ATTACHMENT 1
Council Regular Meeting, 2/7/2023, Item No. 18., Item Page 8, Packet Page 1905 The implied public trust that the tidelands be used for “navigation” and “commerce,” and the express language that the tidelands must be used for “general statewide interest and benefit,” further limit the City’s authority to restrict shore boats’ access to its wharves.

Next Steps
The report concludes that the City has no authority to ban cruise ships from docking in the Monterey Bay National Marine Sanctuary, and the City’s ability to regulate cruise ships within its tidelands is limited. Based on these facts, staff recommends the City continue its procedures when a cruise ship calls. Furthermore, staff’s recommendation is for the City to continue to work collaboratively with NOAA, cruise ship operators, hospitality industry, and the environmental community to ensure that cruise ship visits are courteous and respectful of federal laws and the Monterey community as a whole.
6 ATTACHMENT 1
Council Regular Meeting, 2/7/2023, Item No. 18., Item Page 9, Packet Page 1906 September 26, Thursday 8:00 a.m. - 5:00 p.m. Star Princess September 28, Saturday 8:00 a.m. - 5:00 p.m. MS Amsterdam October 2, Wednesday 8:00 a.m. - 6:00 p.m. Star Legend
October 3, Thursday 8:00 a.m. - 5:00 p.m. Star Princess October 12, Saturday 7:00 a.m. - 5:00 p.m. Norwegian Jewel October 14, Monday 8:00 a.m. - 4:00 p.m. M/V - Seabourn Sojourn October 22, Tuesday 8:00 a.m. - 6:00 p.m. Royal Princess November 1 - 20 Daily Tours - Except 12th and 15th Hawaiian Chieftain November 12, Tuesday 8:00 a.m. - 6:00 p.m. Royal Princess November 15, Friday 7:00 a.m. - 4:00 p.m. Celebrity Eclipse November 23 - 24 9:00 a.m. - 4:30 p.m. Nat Geo Venture
December 12, Thursday 8:00 a.m. - 5:00 p.m. MS Sirena
December 17 Tuesday 8:00 a.m. - 7:00 p.m. MS Sirena
2020
January 7, Tuesday 8:00 a.m. - 5:00 p.m. Crystal Symphony March 3, Tuesday 8:00 a.m. - 6:00 p.m. Amadea
March 31, Tuesday 8:00 a.m. - 6:00 p.m. Royal Princess
April 14, Tuesday 8:00 a.m. - 6:00 p.m. Royal Princess
April 28, Tuesday 8:00 a.m. - 6:00 p.m Royal Princess
April 29, Wednesday 8:00 a.m. - 5:00 p.m Maasdam- Holland Americ May 7, Thursday 12:00 p.m. - 6:00 p.m. Star Breeze
May 12, Tuesday 8:00 p/m. - 10:00 p.m. Roald Amundsen
May 13, Wednesday 7:00 a.m. - 10:00 p.m. Nat Geo Venture June 3, Wednesday 7:00 a.m. - 6:00 p.m. Sun Princess
Sept 25, Friday 8:00 a.m. - 2:00 p.m. Scenic Eclipse
Sept 28, Monday 7:00 a.m. - 5:00 p.m MS Regatta
ATTACHMENT 1
ATTACHMENT 1
Council Regular Meeting, 2/7/2023, Item No. 18., Item Page 10, Packet Page 1907 Sept 29, Tuesday 7:00 a.m. - 5:00 p.m. Ruby Princess
Sept 30, Wednesday 8:00 a.m. - 5:00 p.m. Koningsdam
Oct 6, Tuesday 7:00 a.m. - 6:00 p.m. Royal Princess
Oct 12, Monday 8:00 a.m. - 4:00 p.m. Seaboum, Sojourn
Oct 20, Tuesday 7:00 a.m. - 6:00 p.m. Royal Princess
Oct 21, Wednesday 8:00 a.m. - 5:00 p.m. Volendam
Oct 27, Tuesday 8:00 a.m. - 5:00 p.m. Volendam
Nov 3, Tuesday 7:00 a.m. - 6:00 p.m. Royal Princess
2021
Mar 16, Tuesday 8:00 a.m. - 6:00 p.m. Royal Princess
Mar 30, Tuesday 8:00 a.m. - 6:00 p.m. Royal Princess
Apr 20, Tuesday 8:00 a.m. - 5:00 p.m. Koningsdam
Apr 23, Friday 8:00 a.m. - 5:00 p.m. Volendam
Apr 27, Tuesday 8:00 a.m. - 6:00 p.m. Royal Princess
May 06, Thursday 8:00 a.m. - 5:00 p.m. Emerald Princess May 17, Friday 8:00 a.m. - 5:00 p.m. Seabourn Odyssey
Sept 21, Tuesday 7:00 a.m. - 5:00 p.m. MS Regatta
Sept 30, Thursday 7:00 a.m. - 5:00 p.m. MS Regatta
Oct 6, Sunday 8:00 a.m. - 4:00 p.m. Seabourn Odyssey
2022
March 4, Friday 8:00 a.m. - 3:00 p.m. Europa 2
March 9, Wednesday 8:00 a.m. - 6:00 p.m. Royal Class TBA March 23, Wednesday 8:00 a.m. - 6:00 p.m. Royal Class TBA April 6, Wednesday 8:00 a.m. - 6:00 p.m. Royal Class TBA April 20, Wednesday 8:00 a.m. - 6:00 p.m. Royal Class TBA May 4, Wednesday 8:00 a.m. - 6:00 p.m. Royal Class TBA
ATTACHMENT 1
ATTACHMENT 1
Council Regular Meeting, 2/7/2023, Item No. 18., Item Page 11, Packet Page 1908 May 21, Saturday 8:00 a.m. - 5:00 p.m. Seabourn Odyssey June 16, Thursday 8:00 a.m. - 6:00 p.m. Crystal Serenity Oct 5, Wednesday 8:00 a.m. - 4:00 p.m. Seabourn Odyssey ATTACHMENT 1
ATTACHMENT 1
Council Regular Meeting, 2/7/2023, Item No. 18., Item Page 12, Packet Page 1909 ATTACHMENT 2
EXISTING REGULATIONS RE: CRUISE SHIPS

1. US Coast Guard (USCG)
The USCG enacts regulations and exercises federal authority over all navigable waters, including the MBNMS. No cruise ship may operate in navigable waters without a USCG-issued “Certificate of Compliance.” Before issuance of a Certificate of Compliance, the USCG performs a multi-phase survey and inspection of all cruise ships to ensure safe design, construction, maintenance, and operation. (See 46 USC §§ 3301, 3303, 3313(b)(3), 70021(a)(2); 46 CFR, §§ 2.01-1, 2.01-6, 2.01-13, 70.01-1 et seq.) USCG conducts random physical inspections of cruise ships within MBNMS to determine if any unlawful discharges of oil, sewage, refuse, ballast water, etc. have occurred in violation of these federal laws.

Additionally, no cruise ship may perform passenger services between two US ports without a “coastwise license.” The USCG issues the necessary coastwise license and endorsements. (46 USC § 12106; 46 CFR §§ 67.3, 67.7, 67.19(a).)

2. National Oceanic and Atmospheric Administration (NOAA) NOAA creates regulations to “manage areas of the marine environment of special national … significance due to their conservation, recreational, ecological, historical, research, educational, or aesthetic qualities (15 CFR, § 922.2(a)), including specific regulations for cruise ships (15 CFR, § 922.131). Specifically within the MBNMS, NOAA prohibits “[d]ischarging … any … matter from a cruise ship except clean vessel engine cooling water, clean vessel generator cooling water, vessel engine or generator exhaust, clean bilge water, or anchor wash.” (15 CFR, § 933.132(a)(2)(ii).) It conducts random physical inspections of cruise ships, along with the USCG, to ensure compliance.

3. Environmental Protection Agency
The EPA created additional anti-dumping regulations applicable to California’s territorial sea, prohibiting the dumping of sewage – even sewage treated at a higher level than shorebased wastewater treatment – within three miles of the California coast.

4. California Lands Commission
The California Lands Commission created regulations to prevent invasive marine organisms.

The Commission physically inspects vessels and vessel records to determine unlawful discharge of ballast water; and (2) bio-fouling (organisms attached to the vessel’s hull).

5. California Department of Fish & Wildlife (CDFW), Office of Spill Prevention and Response (OSPR)
The state’s Office of Spill Prevention and Response requires cruise ships to:
- provide advance notice of their arrival (14 CCR, § 826.01(b)); - have a pre-approved oil spill response plan (14 CCR, § 826.01(a)); - designate a qualified individual with knowledge of the plan who is available at all times to communicate with regulators (14 CCR, § 790(q)(1));
ATTACHMENT 1
Council Regular Meeting, 2/7/2023, Item No. 18., Item Page 13, Packet Page 1910 ATTACHMENT 2
- designate a qualified oil spill response organization (OSRO) to respond to a discharge incident (14 CCR, § 826.01(o)(8));1
- possess a current certificate of financial responsibility (COFR), e.g., insurance or membership in a protection and indemnity club, showing an ability to pay at least $300,000,000 in case of a spill (14 CCR, §§ 791.6, 791.7; see also OPA 90)

6. Board of Pilot Commissioners
California law requires a specially trained bar pilot to navigate cruise ships into Monterey Bay (Harb. & Nav. Code, § 1127, subd. (d).) The Board of Pilot Commissioners trains and regulates these bar pilots.

7. Monterey Bay Air Resources District (MBARD)
The Monterey Bay Air Resources District monitors air pollutants emitted from cruise ship’s nonpropulsion systems2 and requires cruise ships “plug in” to shore power while in port. 1 https://www.wildlife.ca.gov/OSPR/OSRO
2 https://ww3.arb.ca.gov/drdb/mbu/cur.htm
ATTACHMENT 1
Council Regular Meeting, 2/7/2023, Item No. 18., Item Page 14, Packet Page 1911 1201 F Street NW, Suite 250
Washington, DC 20004 | +1 202 759 9370
January 31, 2023
The Honorable Tyller Williamson
Mayor of Monterey
580 Pacific Street
Monterey, CA 93940
Dear Mayor Williamson:

On behalf of Cruise Lines International Association (CLIA) and our cruise line members, I am writing regarding the future of cruise ships in Monterey. We understand that the City Council may be considering a proposal to permanently end cruise ship visits during the February 7 City Council meeting. Before action is taken, we hope that the City Council will engage in discussions with private sector stakeholders from across the Monterey cruise community who would be adversely impacted by such a decision. For over 20 years, cruise ships have brought visitors from around the world to experience the amazing people and places that make Monterey a truly special California destination. CLIA data shows that on average, each cruise passenger spends $125 per shore visit at U.S. ports of call, and more than 60 percent of cruise travelers return to a destination for a land-based vacation after visiting for the first time during a cruise holiday. From restaurants to small shops to tour operators and more, the impact on local businesses from ending cruise ship visits would be felt by many stakeholders.

CLIA represents 95 percent of the world’s ocean-going cruise capacity, and our cruise line members are leaders in responsible tourism and committed to being outstanding stewards of the communities they visit. Our cruise line members set a high bar for themselves, and they attest to follow policies for practices related shipboard safety, security, environmental stewardship, and more, which often exceed requirements of international law. CLIA’s cruise line members are also leading the way toward a more sustainable future, investing in innovative technologies aboard their global fleet of cruise ships with the goal of reaching net-zero carbon cruising by 2050. Additionally, CLIA’s cruise line members are dedicated to protecting public health, employing robust cleaning practices, public health protocols, and screening procedures.

Cruise operations are tightly regulated with rigorous enforcement by authorities, with the U.S. Coast Guard as the primary regulator and enforcement mechanism. These regulatory authorities set comprehensive standards for safety, security, crewmember protections, health, and environmental performance. Furthermore, as Monterey Bay is a National Marine Sanctuary within the National Marine Sanctuary System, CLIA’s cruise line members adhere to the federal regulations that define certain aspects of sanctuary operations, such as prohibited and restricted activities.

As we look ahead, the first pending cruise ship reservation for 2023 is approaching in March and given the timing now so close to the start of the season, we encourage the City Council to allow this year’s planned visits to proceed.

Concurrently, we hope the City Council will engage in a constructive dialogue with the cruise community ahead of a decision to end cruise ship visitation. CLIA and our cruise line members would appreciate the opportunity to take part in these conversations. Brian Beall, CLIA’s Vice President for Government Affairs, would be pleased to coordinate participation with our cruise line members. He may be reached at [email protected].

ATTACHMENT 2
Council Regular Meeting, 2/7/2023, Item No. 18., Item Page 15, Packet Page 1912 page 2 of 2
January 31, 2023
Correspondence to Honorable Tyller Williamson
Mayor of Monterrey, CA
[Organization]
Cruise Lines International Association
cruising.org
2 We sincerely appreciate your attention to this important matter. If you have any questions or need additional information on the cruise industry, I can always be reached at [email protected].

Best regards,
Kelly Craighead
President & CEO
cc: Vice Mayor Alan Haffa
Councilmember Kim Barber
Councilmember Gene "Gino" Garcia
Councilmember Ed Smith
Hans Uslar, City Manager
ATTACHMENT 2
Council Regular Meeting, 2/7/2023, Item No. 18., Item Page 16, Packet Page 1913 December 28, 2022
Attention: Monterey City Council
On behalf of Fisherman’s Wharf Association, we want to stress the importance of allowing Cruise Ships to resume visiting the City of Monterey again in 2023 and respectfully ask that you allow their visits this coming year.

The businesses on Old Fisherman’s Wharf definitely appreciate and value the many visits from the passengers who disembark and board at the California Dock at the Wharf as they often patronize our restaurants, gift stores and boat trips.

Numerous other organizations derive value such as Downtown and Cannery Row businesses, Monterey Bay Aquarium, Monterey Movie Tours and the City of Carmel, and many more.

We know that many people who first visit on the cruises often come back and stay for a multinight trip after they enjoy their visit to the Monterey Peninsula.

The cruise ships also take great precautions to safely visit the Monterey Harbor as well.

As you are aware, the businesses in the City of Monterey and on the Monterey Peninsula have faced many obstacles over the past 3 years.

The Wharf business owners continue to deal with inflation, a recession, high cost of labor, high cost of food and other supplies and more.

Covid-19 affected the Wharf businesses and over a thousand employees who have struggled over the last 2 1/2 years not being able to work at full capacity.

The Cruise Ships provide our employees and their families with much needed income during slow times of the year at Old Fisherman’s Wharf.

The Cruise Ship passengers do not increase vehicle traffic and often take buses to their destinations when they visit.

The Cruise Ship visits provide a welcome economic boost to the City of Monterey businesses that should be encouraged.

ATTACHMENT 3
Council Regular Meeting, 2/7/2023, Item No. 18., Item Page 17, Packet Page 1914 Thank you for your consideration of restoring the Cruise Ship visits again to the City of Monterey in 2023.

Sincerely,
Wendy Brickman
Wendy Brickman, President
Fisherman’s Wharf Association
ATTACHMENT 3
Council Regular Meeting, 2/7/2023, Item No. 18., Item Page 18, Packet Page 1915 ATTACHMENT 4
Council Regular Meeting, 2/7/2023, Item No. 18., Item Page 19, Packet Page 1916 ATTACHMENT 4
Council Regular Meeting, 2/7/2023, Item No. 18., Item Page 20, Packet Page 1917

Monterey City CouncilFebruary 7, 2023

Monterey City Council
February 7, 2023